Aboriginal Sovereignty and Status in the ‘Empire(s) of Uniformity’
Aboriginal Sovereignty and Status in the ‘Empire(s) of Uniformity’
Abstract and Keywords
Through the 17th and most of the 18th centuries, the formal pattern of British relations with non-Christian societies carried strong residual traces of a medieval and personalized approach to the nature of sovereign authority. This was expressed through an underlying jurisdictionalism by which British authority over non-Christians was based upon treaty, protocol and suchlike relations with those people. Essentially this approach recognized and worked through the political authority of the non-Christian polity. In the late 18th and 19th centuries, however, a new, modern approach towards sovereign authority emerged and was applied to tribal peoples. This chapter describes that transition.
Through the seventeenth and most of the eighteenth centuries, the formal pattern of British relations with non-Christian societies carried strong residual traces of a medieval and personalized approach to the nature of sovereign authority. This was expressed through an underlying jurisdictionalism by which British authority over non-Christians was based upon treaty, protocol and suchlike relations with those people. Essentially this approach recognized and worked through the political authority of the non-Christian polity. In the late eighteenth and nineteenth centuries, however, a new, modern approach towards sovereign authority emerged and was applied to tribal peoples. This chapter describes that transition.
In the United States the jurisdictionalism of the colonial era represented by the Royal Proclamation (1763) was transmuted by the court of Chief Justice Marshall into a doctrine of residual tribal sovereignty. The British rejected that approach and lurched from episode to episode in the second quarter of the nineteenth century towards a more absolutist and thoroughgoing concept of Crown sovereignty over tribal peoples. This process came about mostly through the need to define more precisely the Crown's criminal jurisdiction over the tribes as British settlement spread in the post-Napoleonic period. The Crown's exclusive sovereignty was moderated by its obligations as ‘guardian’ to use its constitutional discretion to protect the tribes and its members. The tribes’ best protection lay, the British were sure, in subjecthood rather than an American-like apartness. The British position was that the tribes lacked juridical status and standing in the colonial legal system. This meant their legal ‘protection’ was channelled through the Crown. American courts also spoke of the tribes as ‘wards’ but, unlike the British, accepted the inherent legal authority of the tribe amongst its own people (whilst also disabling the tribes from using the courts in pursuit of their rights against the government). Governors of Britain's settlement colonies may have tolerated tribalism but this was policy in the administration of the law and no more than a temporary shielding. In these British possessions, the tribe was never regarded by colonial and imperial officials or (least of all) the settlers as having a juridical foundation.
Those mantles of federal and Crown sovereignty ran parallel to the massive settlement and technological developments of the nineteenth century that brought great demand (p.118) for tribal land. As this happened the settler polities developed an accompanying and growing consciousness of their distinct constitutional identity. As their economies and political institutions consolidated and grew more confident, there formed in all jurisdictions a sharper sense of the absolute character of the legislative power. Once the tribes had been physically vanquished in the great mid-century wars and dispossessions, all jurisdictions set about erecting legal regimes for the dissolution of the tribalism that both impeded the progress of settler society and challenged its constitutional authority. For tribal peoples the end of the nineteenth century saw the onset of the ‘Empire(s) of Uniformity’.
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The tempo and character of British imperialism changed dramatically after the Seven Years War and the Treaty of Paris (1763). With the French threat considerably diminished, emigration to British North America increased significantly. This influx aggravated the already heavy westward pressure on land for settlement. Meanwhile the reach and power of the East India Company had been considerably enhanced by Clive's victory at Plassey (1757). With those important military victories, the Britain of the early 1760s found itself with large numbers of non-Christian people under its rule. However, for a long while after those victories, the precise juridical character of these non-Christian peoples’ status remained unresolved. So long as circumstance did not push the issue—as eventually it must—the question was not directly addressed through most of the second half of the eighteenth century. By the time the century was closing the consolidation of British dominion in these non-Christian parts was pushing the question of Crown relations and authority. In North America (republican and loyalist), there was the ever-growing, unquenchable demand by settlers for land. At the same time half a globe away, controversy raged over the East India Company's management of its jurisdictional rights in Asia. These strains brought a growing need for clearer juridical definition of the status of those non-Christian people.
It has been seen that during the early nineteenth century the Crown eventually acknowledged that it held sovereignty over the non-Christian people of British India and North America, a belated and awkward step that followed decades of inattention and, more latterly in the piece, avoidance of the question. So far as the Amerindian people were concerned, the avowal of Crown sovereignty of itself—mere legalism—did not displace their customary forms of political organization (the tribal nation) and customary laws. Likewise American Independence and the assertion of the republic's sovereignty did not produce any such result: apart from those on the Atlantic seaboard the tribes of the interior maintained a custom-based integrity and remained still powerful political forces. British and republican practice to the end of the eighteenth century and into the nineteenth had to work with those forms, however fragmented they might be (as around the Great Lakes). However, as the need to solicit aboriginal support in military matters abated and the pace and westward push of settlement (p.119) increased in North America, imperial and republican policymaking became more interventive and hands-on. Arms-length dealing and strategizing with the powerful fur-trading Indian nations of the interior were no longer the object of official relations. The tribal nations themselves were being drawn into closer-quarter relations with the settlers and their economy and this also affected the settler polities’ impression of its authority over them. Land—the acquisition of it for white settlement—became the focus. Circumstance now demanded the reconciliation of aboriginal status with the sovereignty of the Crown (in British North America) and American republic that European nations could no longer traduce.
By the early mid-nineteenth century, British officials and practice regarded the nature of Crown sovereignty in its (remaining) American possessions as thoroughgoing and exclusive. A more doctrinaire and absolutist approach superseded the essentially improvisatory ways of the old jurisdictionalism. As this happened, the fate of the tribal nations of the Atlantic coast, long since reduced to dependency and their land-base depleted, was also to become that of the great prairie nations. That journey from sovereign independence to depletion and dependence would be the doom of those Indian nations east of the St Lawrence basin during the nineteenth century. This chapter will later show that as the fate also of the tribes in the American republic as settlement spread into the Ohio basin, the Great Plains, and inexorably towards the Pacific.
This juridical transition from sovereign independence to subjection was a slide down which the East Indies polities were also descending, at least in British constitutional theorizing. In the century after Plassey (1757), the East India Company and Crown moved from interloper to protector to, eventually, declared sovereign. However the outcome of this journey was not the same for the Amerindians as the people of the Indian subcontinent. The Raj had continued the East India Company's early accommodation of Hindu, Muslim, and English law, although that had been adulterated by attempts to codify and anglicize. The sovereignty proclaimed over India by the young Victoria, its newly styled Empress, was titular but in substance still deeply dependent on Indian support. The Mutiny of 1857 revealed starkly the extent of that reliance. It was reflected in Britain's return to a policy of recognition of princely sovereignty late in the nineteenth century. Put crudely, the British never outnumbered or, when all was said and done, outgunned the people of the subcontinent. Eventually, necessity and bitter experience—the aftertaste of 1857 not least—brought the British to reconstituting and working through Indian sovereignty. The goal in (British and republican) North America, however, was the exact opposite. Again it was the outcome of circumstance. As settler numbers overwhelmed the tribal, the policy increasingly followed through the nineteenth century contemplated the dissolution of tribalism. Native sovereignties were used where that suited the imperial design or spiked when it did not.
In North America and Australasia at the end of the nineteenth century the settlerstate claimed not only the titular sovereignty but also a very real physical domination over the indigenous peoples. In these parts, unlike the subcontinent, permanent white settlement had been the design and the outcome. That supremacy had been achieved after war with the plains Indians of the American continent (north and (p.120) south of the 49th parallel) and the Maori of New Zealand's central North Island in the 1860s and ’70s. It was also expressed through the new forms of legalism devised by the settler-state for managing relations with its aboriginal peoples, particularly in the aftermath of those hostilities. The settler-state's ascendancy was harder won than it cared to admit, an insecurity demonstrated by the ferocity with which it attacked (and reviled) tribalism. United States law seemed to make an earlier and greater apparent accommodation of the tribalism that so offended late nineteenth-century eyes, do-gooder and foe of the Indian alike. There, however, as in the other jurisdictions at the end of the nineteenth century, laws set in place processes designed to civilize the native and acquire their remnant land for those who better knew how to exploit it. In all jurisdictions, then, the tribes’ experience of colonialism intensified considerably during the nineteenth century, the last quarter most especially. For many it was a case of war followed by law. Each proved as debilitating as the other, and probably were indistinguishable in the minds of aboriginal peoples. The lawfare of the settler state attempted to suppress their traditional forms of political association and identity. It supplied a means of taking their land. It professed either to lead indigenous peoples to civilization or to manage them as anachronistic relics of their ‘doomed’ tribalism. This law did not of itself cause the misery, but it was the apologia of those men who did.
The acknowledgment of British dominion over the non-Christian peoples in British America and the East Indies required a fuller articulation of their status than the military and trading considerations that had previously driven relations. Not surprisingly, as that consciousness emerged during the late-eighteenth century and into the early nineteenth, the British drew upon past practice and remoulded it to the exigencies of the present. At that time this practice carried its own momentum of legality, yet by the end of the nineteenth century that legality had become more a matter of stipulation than custom. American courts also considered this question early in the nineteenth century but, informed by the young republic's recent experience, took a position different to that of the British. This chapter considers the evolution and history in this period of rising and changing consciousness about the legal position of tribal peoples. The nineteenth century began with vague protestations of the Crown and republic's respective trusteeship roles and with aboriginal societies still mostly in a condition of actual, if increasingly frail, autonomy accepted as such by the white authorities (the battered remnants on the Atlantic seaboard mostly excepted). Through the nineteenth century, as the Australasian colonies entered the picture, questions of the various tribes’ juridical capacity and status became more prominent in British and republican practice. In British North America and Australasia, it ended in elaborate statutory regimes framed by settler-nations with new constitutional arrangements and status in the Empire. These codes for the management of tribal peoples encased, indeed virtually entombed aboriginal culture. In the United States a similar process occurred as a doctrine of supervening Congressional authority over Indian nations took hold late in the century and glossed earlier principles of residual tribal sovereignty. In the final decades of the century the enveloping American laws affecting Indian tribes were judicially as well as legislatively erected. The result—that of thoroughgoing encasement by law—was the same as in other jurisdictions. Legal subjection marched alongside the physical subordination of aboriginal nations.
(p.121) British practice will be discussed first, followed by the American. This chapter ends with a description of how the legal regimes of each jurisdiction enclosed tribal peoples as the nineteenth century closed.
2. Claiming and exercising sovereign authority over tribal societies—Britain's imperial trusteeship
The appearance of a need to describe the character of British authority over non-Christian peoples coincided with that phase in Euro-American history known as the Enlightenment. One should not speak of the Enlightenment as a process or event, for it was a broad, complex discourse (or series of them) encompassing many diverse and often contradictory strands. The rights of man and the integrity of the individual represented one particularly dominant strand of Enlightenment consciousness. Strains of evangelical Christianity also blended with that thinking about mankind, and gave it an aggressive edge that peaked with the humanitarian movement in early Victorian England.
Humanitarianism grew from late eighteenth- and early nineteenth-century evangelicalism, which maintained the traditional holistic view of the world as an integrated order requiring Christians to be as much concerned with political and social as purely confessional issues. This humanitarianism was fuelled also by the prevalence of Arminianism in the Anglican Church—the belief in free will and responsibility. This became inseparable from the equally pervasive ideology of free trade, which called for the liberalization of productive and commercial relations. The values of individual responsibility and self-interest were regarded as the optimal spur to both productive labour and salvation—the free market in labour, trade, and souls. This humanitarianism had permeated the upper reaches of British society in the post-Napoleonic period, assisted by the famous Clapham Sect, where it became a central element in the broad movement managing the adaptation to an industrial economy and society.1 In Britain it peaked in the reforms of the 1830s, including the legislative emancipation of slaves (1833).2 Having achieved that, the abolitionists turned their attention to the plight of indigenous peoples. Indeed, reform abroad often seemed more palatable to these people than reform at home. Humanitarians took a high profile in British public life during the second quarter of the nineteenth century, but their influence, whatever it had been, waned after that. However their agitation had made the fate of tribal peoples a matter of more overt official concern than otherwise would have been the case, and in doing so added momentum to the nascent theme of imperial policy stressing the sovereign's ‘trusteeship’.
As Imperial Britain thought about its duties in relation to non-Christian peoples, imperialists of various hues, official and otherwise, returned to the long-standing (p.122) though until then rather inconsistently uttered duty to introduce Christian ‘civilization’ to the heathen. The influential ‘stadial’ view of human history was associated with Scottish thinkers of the second half of the eighteenth century such as Millar and Fergusson.3 History became viewed not as a Polybian cycle of decline and renewal, but as a progression through four stages of development from hunter-gatherer, pastoral, agricultural to commercial society. This ‘stadialism’, which usually excluded the cruel despotism of Asia, caused most humanitarian talk to locate particular tribal peoples on this scale. The humanitarian witnesses before the Aborigines Select Committee (1836–37) went to lengths to talk up certain aboriginal societies (those of southern Africa most notably) as a sign of their movement (with missionary assistance) towards civilization and participation in that single history. At much the same time in the United States Jeremiah Evarts’ famous ‘William Penn’ essays repeatedly characterized the Cherokee as thriving agriculturalists with their own laws and system of government.4 Much of the British policy in acquiring sovereignty over New Zealand (1840) was predicated upon Maori being sedentary agricultural and self-governing people.5 This notion of civilization encompassed the entire human family (‘monogenism’) and purported to describe a momentum—or ‘law’ of development—common to all. The parochialized and racialized late nineteenth century notion of civilization was altogether different.6 However, the mid-nineteenth century conception of civilization, in all its permutations, still drew on what was then the rather ragged Scottish tradition. Like the humanitarianism it informed and the legalism to which it was harnessed, it was rooted in a view of the ultimate unity of mankind.
The older theme of British imperialism, the fluid constitutionalist one stressing the legality of colonization and empire of liberty, entangled with this strengthening notion of civilization. Victorian evangelism mixed with it too. In that regard there was no better proponent than the Aborigines Protection Society. This London organization was an early pressure group, like the Church Missionary Society, and was associated with the humanitarian movement of the mid-century. It grew in influence after being founded by five members of the Select Committee on Aborigines that issued a famous report in 1837. Benthamite-tinged proposals from the Aborigines Protection Society included a ‘Bill of Aboriginal Rights’ (January 1838) and a legislative programme based on trusteeship principles.7 It took the position that the interests of aboriginal peoples were best realized through the civilizing influence that came from recognition of their rights of property and the extension towards them of the same liberality of treatment that marked the Crown's relations with its natural-born subjects. As the (p.123) British considered the status of the Crown's non-Christian subjects they instinctively and chauvinistically applied the idea of law which they regarded as the foundation of their polity and the Empire. What was best for them, was best for everyone (the tribal especially).
At the Colonial Office Lord Glenelg and James Stephen had evangelical sympathies and shared with the humanitarian movement the association of Christianity and British subjecthood as mutually redemptive conditions. During the second quarter of the nineteenth century—in the period immediately before the onset of responsible government in the colonies—imperial officers of their ilk, influenced but not mesmerized by the Clapham Sect, consistently regarded the amenability to English law that came with Crown sovereignty as the best protection of aboriginal interests. This obligation was now ranking high on the imperial agenda.
In the 1830s, to give an early theme-setting example, the humanitarian movement opposed the passage of vagrancy laws in Cape Colony. Ordinance 50 (1828) had been passed by Acting-Governor Bourke under London Missionary Society influence, and ratified by London.8 It famously removed legal disabilities affecting the tribal Khoi (‘Hottentot’) people, although, contrary to legend, it preserved their distinct status in the colony and did not treat them in a colour-blind fashion.9 The pass laws were repealed as well as the statutory criminalization of ‘vagrancy’. Summary punishment without benefit of trial was also prohibited. In keeping with the anti-slavery mood of the time, Ordinance 50 abolished all forms of compulsory service and set rules and formalities for all contracts of service, including the obligations of children and spouses. It also affirmed the right of Khoi to buy and own land. The Ordinance has acquired a profile in South African historiography well beyond its actual significance in its own time. Anyway, its legal liberalism and equality of treatment did little to abate Khoi landlessness and poverty.10 The colonists themselves loathed the law and in 1834 proposed the re-introduction of vagrancy laws. In the event London disallowed the local legislation to that effect11 although in the longer run the liberal policy of the Cape was doomed.
Disallowance was an outcome that might have been expected in the same period as slave emancipation so engaged the political energy of Englishmen. In this period before extension of full local jurisdiction over aboriginal relations, it presaged the ongoing tension between, on the one hand, the equality of all British subjects and, on the other, the perceived need for special legal treatment of tribal peoples. In the following century that tension was a recurrent theme in the legalism surrounding aboriginal peoples. Tribal people under Crown sovereignty were to be treated as though they were British subjects (which they were); indeed, as the humanitarians and Colonial Office avowed, (p.124) that was vital to the protection of their interests. Yet that legal status was apt to be no more than notional, for it was invariably qualified or in some way left incomplete (as in denial of the right to vote). In the period before responsible government that impulse towards equal status was a metropolitan one prone to qualification by local pressure. To the extent that the locals accepted the principle of equality they hedged it with qualification in such a manner as the vagrancy law proposal in the Cape. Once the local assembly was jurisdictionally equipped, its will ultimately prevailed through the enactment of special, discriminatory laws such as those described later in this chapter and the next. The legal experience of the tribal peoples in the Cape thus prefigured a similar historical pattern in the jurisdictions of North America and Australasia.12 More often than not the equality the law offered, like the discrimination it also licensed, worked against them.
As the nineteenth century progressed, the emerging and increasingly prevalent liberalism heavily influenced the approach towards relations with and governance of subject non-Christian peoples. Liberalism—like the Enlightenment—was no coherent doctrine or programme so much as a disposition or tendency. As with Christianity, it encompassed a variety of heterogeneous positions and developed over a long period of social upheaval and political change. Above all liberals believed that human nature was intrinsically the same everywhere, and that it could be totally and completely transformed, if not by revelation, as the evangelicals envisaged, then by the workings of law, education, and free trade.13 Liberals never doubted the possibility of the wholesale transformation of society, their own and, most particularly, the lesser ‘uncivilized’ ones they had come to govern. Indeed, despite the new order inaugurated by the Reform Act 1832, England remained a difficult polity where those values could not always prevail: local bodies, with the support of insurrectionary urban workers, opposed sanitary legislation; landed gentry frequently contested the reorganization of local government as well as repeal of the Corn Laws; aristocrats sought to retain the right to duel and purchase army commissions. If there was one area where liberal values with their emphasis upon the individual's capacity for improvement were relatively unopposed in England it was in their applicability elsewhere. All Englishmen agreed that the uncivilized non-Christian peoples under British dominion were demonstrably inferior and in need of improvement.
The threads of Victorian thought that influenced or that were deployed to justify aboriginal policy in the colonies were occasional, half-formed, and applied episodically. In many cases this ‘thought’ supplied an excuse for action rather than a spur. Where there was a semblance of coherence in attitude towards the status of aboriginal peoples—as in the Colonial Office of James Stephen and, to a lesser extent, Herman Merivale in the early Victorian period—it was not necessarily shared by other interest groups (such as those in the City). Yet, if there was a time when a coherent and uniform position on the status of aboriginal peoples in British colonies could have formed it was in these early Victorian years when a sharper legal consciousness was emerging, (p.125) encouraged in part by the similar reflecting of American jurists. At that time London kept a tight grip of native policy and would not release its trusteeship to the colonial legislatures. Also there were officials at the helm with the intellectual capacity consciously to forge a law-based policy matching the freshness of the American. However, though imperial officials articulated the guardianship role of the Crown they were too wedded to their secular (and some measure of Christian) evangelism. There was an unshakeable belief in the virtues of the British constitution and the benefits that Crown sovereignty, once assumed, and concomitant English law offered tribal peoples. They maintained a strong belief in the pyramidic structure of the colonies and the exercise of constitutional discretion through the Governor. The principles that they continued to articulate and put into practice in native affairs simply (and in true common law fashion) maintained the practices from the previous century, albeit with a sharpening sense of the protective role of Crown sovereignty. There never evolved a cogent, articulated set of ‘aboriginal rights’.14 That, after all, had been one of the aims of the Aborigines Protection Society whose Benthamite belief in codification had been resisted by the Colonial Office. True common lawyers, the official regimes of Stephen and Merivale preferred to tend these relations by cobbling from the material already available rather than by handcuffing themselves in a statutory regime. There was no formed consciousness of a set or corpus of ‘aboriginal rights’, so much as a loose set of principles governing the management and conduct of relations with tribal peoples. These involved the interaction of the Governor and his political masters in London guiding the exercise of his considerable constitutional discretion. Even where legislation was sought in this period for the management of imperial activity in lands inhabited by tribal peoples—the Foreign Jurisdiction Act (1843) the example par excellence —it was to endorse the continuation of an incremental approach based upon high executive discretion. Above all, and whatever the influence of the various brands of nineteenthcentury thought, a common law mentality prevailed in the early Victorian Colonial Office.
A new mode of thought called social Darwinism spread during the 1860s as the settlement colonies were acquiring and quickly becoming used to the exercise of legislative authority in native policy. This new manner of thinking, which introduced the mantra of ‘survival of the fittest’, brought the tired and ragged Scottish tradition to a grinding halt. Historians of aboriginal relations in the settlement colonies have described the Darwinist mode of thought as a paradigm that motivated the oppressive statutory regimes erected in the final decades of the century.15 However, the extent to which colonial authorities were actually relying upon social Darwinism, or, indeed, any coherent set of political beliefs is problematic. If the political versions of Darwinism did influence colonial and republican practice it was in a scrambled manner mixed with Victorian religious moralism and providentialism16 as well (p.126) as a vague liberalism. Colonial political discourse, its legal dimension included, was robust, but vastly smaller and disjointed, less complex, highly improvisational and more excitable than that of the more sophisticated metropolitan one. It is difficult, for example, to speak of coherent languages of discourse occurring in the colonial polities of early and mid-Victorian Australasia and Canada. These were polities where individuals could make a big splash and dominate local politics by force of personality rather than power of creed or ideology. Nonetheless there is no doubt that from the 1860s all colonies as well as the United States applied more aggressive policies of intervention in aboriginal life. In this period the ‘civilization’ of the native had overtones that it certainly lacked earlier in the century when Scottish stadialism still had some purchase. ‘Civilization’ came to describe a state into which aboriginal culture would be prodded and shepherded by the calculated application of laws and policies of assimilation. The monogenetic idea of a single family of man had been replaced by a sense of the Darwinian survival of the superior European civilization. No longer was it a story of a single though variegated ‘us’ embarked upon a common historical trajectory. It was a tale of a special ‘us’ and a separate ‘them’, each locked inside their own histories engaged competitively in a Darwinian tussle for survival.
The statutory regimes that encircled aboriginal peoples during the late nineteenth century in order to ‘civilize’ them were less the philosophically-driven outcome of the ragbag of political ideas characteristic of colonial and republican discourse at the time than the growing pressure on aboriginal land. The inventions of a steam-driven world, such as refrigerated cargo-holds, transcontinental railway lines, and the grain-harvesting of the Canadian prairies, accentuated that pressure. ‘Civilization’ was as much about obtaining aboriginal land for settlement as an ideological mission to transform their society.
Nonetheless these Victorian beliefs, in all their various shapes and hues, like the American version known as Manifest Destiny, licensed a vision of the management of aboriginal policy that grew in power during the nineteenth century (commensurate with the pressure for land for white settlement). This was a belief in the benefit and redemptive potential of individual enterprise. As the early American republic transformed into a laissez-faire economy, that principle was regarded as politically foundational and the heroic individual (especially those Indian-killing on the western ‘frontier’) became the stuff of nationalist myth-making. This Anglo-settler vision secularized through the century, in Britain as the influence of the Clapham Sect—which was never pervasive in its time anyway—drained. The intensity of the application of this individualist and Anglocentric vision undoubtedly increased during the nineteenth century. There was a juridical tightening of what had started as the vaguely articulated principle of metropolitan trusteeship with its whiff of ancien-regime paternalism. Trusteeship remained the theme of relations with aboriginal peoples but now, mid-century in the settlement colonies, jurisdictional competence was transferred from London to the local legislatures. The British colonies of settlement were granted responsible government and (not always at the same time) legislative authority to manage native affairs. So equipped, none needed a second invitation to use law to meddle with aboriginal peoples’ autonomy and lifestyle. Instead of a distant paternalism wielded through a Governor who mediated between the aboriginal and settler (p.127) communities, the settler polities actively projected the individualist vision onto the tribal one. The tribalism that a century of Governors had condoned benignly or tolerated bad-naturedly was now attacked frontally, with law at the helm. All manner of Victorian thought and its Americanized versions could be rallied in justification of the ‘civilizing’ mission and goal of assimilation. The lawmakers administering aboriginal policy and relations were no longer patriarchs but settler populists.
Only in southern Africa—the region that promised yet seemed unwilling to deliver the richesse supplied more freely by the colonies of Canada and Australasia—did that policy remain less tenable in the final quarter of the nineteenth century. Throughout the Victorian period British design and policy in this region was complicated by the political impact of the nationalist Dutch settlers. Although major but bloody victories had been won against the native nations during the late 1870s, it was only once the area had been subdued after the Boer War that full attention could be turned towards any programme of ‘civilizing’ the many and various tribal nations.
The history of common law sovereignty and aboriginal peoples from the early nineteenth century was, therefore, one in which aboriginal peoples became the objects of increasing legalism. This was the case in all jurisdictions, British and the American. In British colonies the administration of aboriginal affairs went from Governors to settler legislatures. As the settler-state consolidated its sense of self, it tended increasingly to see and treat aboriginal peoples as part of and entirely subject to its own sovereignty rather than as separate polities. If the history of sovereignty described in the last chapter represented a period when the common law was disposed towards a pluralistic model, its orientation through the nineteenth century tended strongly the other direction.
Even the Americans, whose new republic rested upon a conception of sovereignty as limited and divided, could not escape that disposition, as a later section in this chapter will explain. Jeffersonian civic humanism, for all its ambivalences about Indian policy, was replaced by the rampant populism of Andrew Jackson. The Supreme Court of John Marshall captured deftly the flavour of both tendencies. It described the independent tribes as nations, but as ‘domestic, dependent’ ones—separate but not apart, holding their own tribal sovereignty whilst also incorporated into the American.
The willingness of the Australasian and North American legislatures in the last quarter of the nineteenth century to frame laws for aboriginal peoples was an expression not only of the pressures of increased settlement and demand for land, powerful as those were. It was also a manifestation of emergent nationalism and more conscious efforts by these jurisdictions to fashion their own constitutional identity. The economic and political identity of the settler-state and its constitutionalism were linked. By that time, America was experiencing Reconstruction after the Civil War and the great western states, with their promise of gold and other riches, had joined the union. Canada had confederated in 1867 with Rupert's Land following in 1870, British Columbia the year after, and Prince Edward Island in 1873. New Zealand had been given a full federal system in 1852 but that was dismantled and replaced by a unitary one in 1875. Towards the end of the nineteenth century imperial federation was a much-discussed issue in and among the Australasian colonies, the formation of the Commonwealth of Australia being the outcome in 1900. In this period all British settlement colonies (p.128) experienced controversies of different sorts about their relations with the mother country, episodes that reinforced the settlers’ experience of distance and that necessarily produced a sense of political identity apart from the mother country. In the last quarter of the nineteenth century, therefore, these jurisdictions were in their different ways thinking about and acting upon their own constitutional identity. In many regards aboriginal peoples were the victims of those essentially solipsistic (and narcissistic) processes.
In the British settlement colonies this thinking about constitutional identity was essentially an outgrowth from the system of responsible government devised by imperial officials in the mid-nineteenth century anxious to prevent a recurrence of the American breakaway. Responsible government was described by Alpheus Todd (1894) as:
… a system of local self-government akin to that which prevails in the mother country, introduced to relieve the Colonies of imperial interference in their domestic or internal concerns; public affairs are administered in conformity with the principles of ministerial responsibility which, since the Revolution of 1688, have been engrafted upon the British Constitution; the members of the [colonial] Government are appointed with the understanding that, upon their ceasing to retain the confidence of the popular branch of the [colonial] legislature, they must resign office… The system is designed to extend to distant parts of the Empire the practical benefits of a parliamentary system similar to that which exists in the parent state and thus, to render political constitutions in the Colonies, so far as possible, ‘to the very image and transcript of those of Great Britain.17
This new authority validated the settler communities’ increasing perception of their constitutional distinctiveness, one that was apart from Westminster whilst still under Crown sovereignty. Political life in the loyalist colonies in the period between loss of the thirteen and the Canadian disturbances that sparked the Durham Report (1837) had shown that this perception, and action upon it, would occur irrespective of imperial endorsement. In that period the imperial mood towards settler populism and clamour for greater autonomy in loyalist colonies had not been accommodating. The Crown colony with the Governor acting upon the advice of non-elective executive and legislative councils was the more preferred model of colonial governance. It gave settler communities much less power than that which most of their antecedent counterparts had held in the constitutions of the thirteen colonies. That imperial grip could not last once the colonial economies became viable and more prosperous. It began to ease in the early Victorian period, with responsible government an important outcome. The contrivance of responsible government was effected without the aid of Parliament, as Herman Merivale boasted (1861).18 Its purpose was to ensure that this formation of constitutional identity occurred in a manner sympathetic to imperial interests. It was not founded upon any imperial consciousness of colonial nationhood as some predestined condition but, as always in British imperial history, a pragmatic response (p.129) to the actual state of things.19 As the settler-polity clawed more power from London and gnawed at the imperial apron string, its appetite grew. By a series of bites, most of them coming from the hubbub of local politics rather than any systemic protonational design, each colony inched at its own pace into an altered constitutional identity and relation with London. Depiction of that nationhood as predestined was the invention of the Whig historiography of Empire and nationalist myth-making of the early twentieth century.
Unsurprisingly the visions of constitutional identity that emerged in the British settings of the late nineteenth century were of an individualist and Anglocentric hue. Once the pacification of the aboriginal peoples had been accomplished towards the end of that century, colonial authorities were in a position to apply it with a vengeance. It was a vision sealed in blood and set in law, as the tardy admission of South Africa to the club at the beginning of the century demonstrated. This process did not accommodate cultural or legal diversity. The Boer War, like the Maori Wars and Riel Rebellion, had been a testament to that intolerance of alternative sites of political authority.
James Tully has called the tendency towards a centralizing and absolute model of sovereignty ‘the Empire of Uniformity.’20 This ‘Empire’ has a disposition towards homogenizing constitutional identity into a ‘monologic’ or single-voiced sovereign, ruling over a culturally undifferentiated polity. This is certainly a good way of describing the misery-ridden experience of aboriginal peoples in the North America and Australasian jurisdictions from the late nineteenth century. Each jurisdiction, highly conscious of its sovereign self and not thinking of its relations with aboriginal peoples in any way other than as an aspect of that sovereignty, imposed its own ‘Empire of Uniformity.’ Exercising their legislative authority, the colonial and American Leviathans became distinct Empires of Uniformity. One Empire—the British one—might have been in the process of dissolving at the end of the nineteenth century (and then, for the most part, in an unwitting manner). But as it expired a series of others were spawning. The manner in which they treated their aboriginal peoples at this time was as much a reflection of how they saw themselves as the tribes. Their sense of self was projected onto aboriginal culture.
If that proto-nationalism was an internal (frequently turbulent) and narcissistic process that did not admit aboriginal peoples, then the same could not be said of other areas of British imperialism where settlement was not such a crucial part of the design. At the same time late in the nineteenth century as the Empires of Uniformity were squeezing aboriginal peoples in North America and Australasia, the policy of ‘indirect rule’ was making a comeback in India and being applied in Africa (except the southern parts). As used by the British in Asia and Africa, indirect rule recognized the authority of native chiefs and enabled the customary system to retain an internal integrity (although even there the tendency of imperial officials to interfere with and anglicize (p.130) the aboriginal laws was irresistible). In some parts of the globe the agents of British imperialism, surrounded by an indigenous population, sought to maintain and manoeuvre through the customary bond rather than smash it. Dissolving the indigenous polity was only an option where the settlers had the physical as well as their own sense of intellectual superiority, and, crucially, needed tribal land for settlement.
3. The ‘trusteeship’ principle in British imperial and colonial practice at the end of the eighteenth century
(a) The Crown as guardian
It was not the situation of the North American tribes in the last quarter of the eighteenth century that first pressed the issue of the juridical character of British relations with non-Christian peoples under its dominion. Rather it was the position of the native people under the rule of the East India Company and the conduct of its agent, the formidable Warren Hastings. Edmund Burke spoke eloquently before Parliament in December 1783 on the East India Bill and Britain's obligations as the possessor of sovereign power over other peoples:21
all political power which is set over men, and … all privilege claimed … in exclusion of them, being wholly artificial, and … a derogation from the natural equality of mankind at large, ought to be some way or other exercised to their benefit. If this is true with regard to every species of political dominion, and every description of commercial privilege… then such rights or privileges, or whatever else you choose to call them, are all in the strictest sense a trust; and it is of the very essence of every trust to be rendered accountable; and even totally to cease; when it substantially varies from the purpose for which alone it could have a lawful existence.
Burke thought that the working of this trust required the British to refrain from ‘shaking ancient establishments’. He projected onto India his deep-seated attachment to the common law as the heart pulse of the English community. For him private property recognized and derived from the law was at the heart of any enduring social order. To ensure India was justly ruled, property had to be secured. And so he execrated Warren Hastings and his English conquerors. ‘Animated with all the avarice of age and all the impetuosity of youth’, he continued, ‘they roll in one after another, wave after wave; and there is nothing before the eyes of the natives but an endless, hopeless prospect of new flights of birds of prey and passage.’22 In 1776 Burke's friend, Philip Francis, a member of the Supreme Council of Bombay in the 1770s, drew up the first comprehensive plan for a ‘rule of property’ in Bengal.23 Cornwallis incorporated this into his Regulations (1793) which have been described as ‘the institutional structure of the Whig vision’24 of law, property, liberty of the individual and education in Western knowledge. In keeping both with the jockeying then still prevailing on the question of Crown sovereignty and the common law's own principle of the continuity of lex loci, the Regulations sought to reform rather than replace the native laws. So also began the Indian peoples’ experience of codification and adaptation of their customary law. (p.131) This was a distinctly hybridizing phenomenon, one that was signified most by Macaulay's proposals finally enacted in the 1860s.
The Cornwallis period in India set the model for the governance of native peoples in the approaching century. This was a model based upon the applicability of England's own historical experience to these people as signified (and glorified) by the common law, coupled with the new liberal science of social engineering by legislation. At the close of the eighteenth century, Bentham had berated common law method as ‘nonsense on stilts’ whilst Burke and Blackstone had stoutly defended it. However, in colonies occupied by non-Christian people common law thinking and the science of legislation, portrayed in England as antagonistic, melded much more happily. The common law set out the political forms and liberal constitutional principles to which native peoples should (in British eyes) aspire. As the nineteenth century progressed, there came a greater willingness to pass legislation to dilute and transform the nativism that impeded that result. In this sphere, common law constitutionalism and Benthamite, liberal programmes of codification and transformation of customary law worked together. Law became a conscious tool of social and cultural engineering to anglicize the native.
The notion of a special ‘guardianship’ vested in the Crown (as representative of the British state) emerged from that Indian context. From then on, imperial officials believed that governmental power was to be exercised as to protect and guard the non-Christian people until such time as they could achieve full political equality with the Crown's natural-born subjects. In the meanwhile, until the Whig dream (enfranchised, property-owing individuals transformed by education and Christianity) became reality, these vulnerable people were under a special species of Crown protection or guardianship. Crown sovereignty over non-Christian peoples thus entailed a relation of protection. What this notion did not clarify—at least as it was first articulated late in the eighteenth century and early in the next—was the extent to which that left juridical room for the native polities and custom.
This was the starting point—the notion of Crown guardianship—from which legal doctrine in a modernist sense of a distinct corpus of principles and rules began to develop. Aboriginal peoples were regarded as being subjects in a special relationship with the Crown. So far as their individual rights were concerned—that is their person and individual property (including contractual rights)—each native was considered to hold the same rights as ordinary subjects, although even on that question officials were by no means consistent or certain. Notionally the aboriginal native's liberty of person was the same as that of a white subject but in reality it was frequently treated as far more expendable. Through most of the nineteenth century, however, those rights of the individual were not the type that these people, organized tribally and unversed in or averse to English ways and manner of thought, were minded to believe and disposed to exercise. For the most part a sense of individual rights did not animate or excite the tribal person's consciousness or behaviour. Instead they asserted collective rights linked to their aboriginality, in particular rights associated with the governing and continuing authority of their traditional polities and collective ownership of land. Once British practice was sure that the Crown held sovereignty over these people and as British rule over them itself consolidated, the willingness to recognize the status de jure of those polities diminished considerably. British practice recognized that aboriginal polities had the capacity to make (p.132) a cession of sovereignty or jurisdiction and land title to the Crown but that once this had been done those polities held no legal status. Recognition of group status was a means towards achieving its legal disappearance or getting its land. The Crown's dealings with aboriginal peoples were matters entirely of non-justiciable prerogative.
For the British this denial of aboriginal legal capacity meant not so much a denial of those rights as a means of ensuring them. It placed the duty to protect these special subjects upon the Crown and its leading officer in the colony, the Governor, and the Protectors (in Canada, called superintendents) reporting to him directly. This duty was embodied in the well-known terminology of those relations uttered on prairie, and in long-house, marae and kraal, describing Victoria as the ‘Great White Mother’: the Crown positioned itself between settler and tribe, and its laws, administered through its officer the Governor, would protect the rights of its aboriginal subjects.
For a nearly a century, from the time of the Royal Proclamation (1763) to the mid-Victorian period, the control of native policy was a matter which British officials were unhappy to entrust to the colonists.25 The Report from the Select Committee on Aborigines (1837) made this ‘recommendation’:26
The protection of the Aborigines should be considered as a duty peculiarly belonging and appropriate to the Executive Government, as administered either in this country or by the Governors of the respective Colonies. This is not a trust which could conveniently be confided to the local Legislatures. In proportion as those bodies are qualified for the right discharge of their proper functions, they will be unfit for the performance of this office. For a local Legislature, if properly constituted, should partake largely in the interests, and represent the feelings or the settled opinions of the great mass of the people for whom they act. But the settlers in almost every Colony, having either disputes to adjust with the native tribes, or claims to urge against them, the representative body is virtually a party, and therefore ought not to be the judge in such controversies…. Whatever may be the legislative system of any Colony, we therefore advise that, as far as possible, the Aborigines be withdrawn from its control. In the formation of any new colonial constitution… we think that the initiative for all enactments affecting the Aborigines should be vested in the officer administering the Government; that no such law should take effect until it has been sanctioned by the Queen … and that the Governor of each Colony should be invested by Her Majesty, so far as the Royal Prerogative should be adequate to the purpose, with the authority for the decision of all questions affecting the interests of the native tribes.
In fact that ‘recommendation’ accurately described official practice of the time. In his Lectures on Colonisation (1841) Herman Merivale, soon to become James Stephen's successor in the Colonial Office, explained the principle of metropolitan control through the Governor. The protection of natives ‘should in all cases be withdrawn altogether from the colonial legislature, and intrusted to the central executive.’ This was, he added, ‘a principle in which… even the most zealous friends of colonial freedom must acquiesce.’27
The general history of British imperial policy towards aboriginal peoples in its colonies for nearly a century after the victory at Quebec was very much a story of that (p.133) centralized control as conducted through the Colonial Office (and its influential Under-Secretaries Stephen and Merivale) and its Governors. However by the middle of the nineteenth century the (above all else) revenue-conscious metropolitan authorities acknowledged that their efforts to control native policy centrally had failed and handed jurisdiction to local legislatures.
The Select Committee on Aborigines (1837) had recommended that ‘treaties’ with tribes already under British sovereignty should not be concluded. This was a way of saying that the British should not adopt a manner of relations in its colonies that admitted the quasi-sovereignty of those traditional polities.28 It encouraged a sense of political distinctiveness that did not square with tribe members’ status as subjects of the Crown. This was advice that came too late in the day for Upper Canada where ‘treaty’ relations for the cession of land had been practised since the beginning of the century. By then this pattern was too established to discontinue. The form of this ‘treaty-making’ continued what struck Victorian eyes as an ambivalence over the nature of tribal sovereignty by seeming to treat what had come to be regarded as a real estate transaction as though it were a sovereign-to-sovereign transaction. As the Select Committee adverted in its recommendation, this was a fiction unsupportable by common law rules of Crown sovereignty. The Committee wanted to stem its use, believing, rightly, that it misled native people. Likewise in the East Indies—although the Committee was not concerned with this region—where a pattern of treaty-making had long been practised and British relations with the native polities so complex that no other model would have been feasible. British practice in southern Africa at this time was also incompatible with the Committee's recommendation, as it recognized in recommending strict subscription to Lord Glenelg's treaty-making regulations:29 treaty-making was too established in British practice to be discontinued.
There was, then, an unwillingness to recognize the legal status of the traditional polities after the acquisition of Crown sovereignty that did not square with the realities of colonial transactions with these polities. This disjuncture between the legal position—the technical non-existence of the tribal polity—and the actual one—a pattern of sustained relations with it—contrasted with the approach taken by the American Supreme Court during the early nineteenth century. The American Supreme Court recognized the residual sovereignty of the ‘domestic dependent’ tribal nations. However by the end of the nineteenth century the American and British-settler jurisdictions had reached a similar constitutional result but by separate intellectual means. The outcome was the complete subordination of aboriginal polities to the settler-state's legislative authority. By the late nineteenth century the Hobbesian belief in an absolute sovereign power had hardened into rigid doctrine.
The British version was especially unaccommodating and inflexible, its non-pluralistic notion of sovereignty being encouraged by the condition of British national and (p.134) imperial politics of the nineteenth century. For common lawyers, we will soon see (for lawyers at least), that notion of an Empire of Uniformity was shaped from the teachings of the Victorian jurist John Austin by his apostle Albert Venn Dicey. It was also grounded, however, in a strong belief that the Crown's conduct and exercise of its guardianship role over its aboriginal subjects was an expression of this liberality of treatment grounded in law. The influential Under-Secretary of the Colonial Office, James Stephen, was scornful of the American ‘doctrine of discovery’ and residual sovereignty. He saw this as a denial rather than facilitation of right. He regarded the Marshall Court's notion of an assumption of Crown sovereignty by ‘discovery’ as a means of refusing American Indians the liberality of treatment and rights that aboriginal peoples in North America and (prospectively) New Zealand received through the Crown as its specially protected subjects. He said:30
Whatever may be the ground occupied by international jurists they never forget the policy and interests of their own Country. Their business is to give to rapacity and injustice, the most decorous veil which legal ingenuity can weave. Selden, in the interest of England maintained the doctrine of what was called mare clausum. Vattel in the interest of Holland laid down the principle of open fisheries. Mr Marshall great as he was, was still an American, and adjudicated against the rights of Indians. All such law is good, just as long as there is power to enforce it, and no longer.
The rejection by the Select Committee on Aborigines of treaty-making with the Indian nations already under Crown sovereignty endorsed that view. In the Committee's eyes the proper recognition of the rights of aboriginal peoples came through the Crown's guardianship of its aboriginal subjects rather than the ‘decorous veil’ of a pretended, retained tribal sovereignty. It was precisely because aboriginal peoples were regarded as subjects of the Crown that they had rights and were in a position, once their tribalism was shed, to enjoy the full political and constitutional advantages of that status. The question then became one of the extent to which the British criminal law would be enforced strictly, moderately, or laxly over them.31 In that regard the discretion of the Governor was crucial.
The denial of juridical status to the tribe extended also during the nineteenth century to individuals in as much as colonial courts and officials refused to recognize any person as holding rights that were aboriginal in character. Typically, such tribally-derived rights—those that today would be described as aboriginal —fell to be protected through the office of a ‘Protector’. Essentially these Protectors exercised the duties delegated from a busy Governor unable to provide the coverage of everyday protection that colonial conditions were requiring as settlers disrupted aboriginal peoples through such enduring and recurrent issues as stock-trespassing and squatting. The practice went back to colonial times32 before the unifying of aboriginal policy in the Royal Proclamation, which, anyway, had maintained that guardianship system through the northern and southern superintendency districts. In the early Victorian period aboriginal protectorates were (p.135) a feature of British colonial practice in Australia,33 New Zealand,34 British Guiana35 and Canada (where they had by then nearly a century-old pedigree and were still designated superintendent). The use of a Protector, or person empowered legally to represent and protect the rights of aboriginal subjects, was a corollary of the Imperial authorities’ refusal to give colonial legislatures jurisdiction in this area.
These Protectors, like Governors, often found themselves caught between the proverbial rock and a hard place acting as intermediaries between aboriginals and settlers. George Clarke, the New Zealand Protector, spoke (1844) of the inadequacy of having five Protectors in the recently annexed colony. He commented icily on the ‘very anomalous position’ in which his team was placed ‘by the varied and contradictory nature of their duties, sometime employed as interpreters and protectors in the Land Commissioners and police courts, sometimes seeking compensation [from Maori] for injury inflicted on European property.’36 The inability of Maori to bring proceedings on their tribal land rights put Protectors in a corner. They (the Protectors) were ‘agents to inform the natives of their position as British subjects, amenable to British law, and yet are not prepared to point to a court which will take cognizance of and redress all their varied grievances, or give the poor bewildered native any directions for his conduct.’37 Clarke asked at least that protectors not be required to act as interpreters in transactions, calling for ‘definite instructions… in which the apparent contrarieties may be avoided, and I be placed in a position to support the interests, liberties and properties of Her Majesty's aboriginal subjects to the fullest extent.’38 His plea was not a new one, indeed it was typical of the period before the colonies acquired jurisdiction. Officers in the field like the Protectors and Canadian superintendents copped flak from both sides, and were frequently required to arrive at some accommodation based upon their own assessment of the aboriginal group's best interests in the face of pressure from the settler quarter.
It will be seen that the ‘Protection’ regimes survived the transmission of legislative jurisdiction to the colonies over native policy, although thence they took distinct, localised formats in the self-governing dominions. These re-oriented ‘protection’ regimes changed to reflect local aims and interests rather than the vague intermediary ideals of a distant though well-meaning White Mother. However, in the period before and even for some while after the erection of those special statutory regimes for the management of aboriginal affairs, all jurisdictions kept to the model of a non-justiciable Crown trust exercised through the executive.
(b) The Colonial Laws Validity Act 1865
Although the Governor exercised this wide discretionary power in the administration of native policy, it must not be thought that the legal culture within which he operated before the onset of responsible government was a virtual tabula rasa. His discretionary (p.136) powers were certainly unreviewable in the modern sense of being justiciable before a court. As the sole source of title to land in the colony, for example, it was up to him to determine when or if the native title had been extinguished and a Crown patent might issue. In consequence the settlers, inevitably querulous, and tribal chiefs, also argumentative, regularly petitioned the Governor as well as the Colonial Office and Secretaries of State on land matters. There were structures and procedures applied to the operation of the discretion and these could be found in the formal instructions under the sign manual or informal instructions sent by despatch from London. Although the landgrant power was subject to close specification in the constituent instruments erecting the colonial offices, the management of native affairs was generally left to the Governor and the counsel and guidance of despatch. The purpose of land-titles procedures was to regularize and ensure even-handed administration of the law in what was the most sensitive issue of colonial life. These procedures were set out publicly to make the process plain to a group that was never slow to complain. The purpose was not to set rigid legal standards by which to render the Governor accountable in the colonial or other courts so much as to make sure the settlers were clear of the position.
During the nineteenth century—with one major exception that proved the proverbial rule—there was never any question of the Governor being brought before the courts for failure to follow his instructions, formal or informal. His discretion was not generally regarded as encompassed by rules or requirements that could be enforced through the courts (especially as the Governor himself played a central role in the colonial legal system). Settler society was disputatious, particularly where land was concerned. Had there been such a pervasive idea of legal obligation seeing the Governor as amenable to court jurisdiction the stroppy settlers would undoubtedly have availed themselves. Governors exercised equitable jurisdiction in Council, a feature of colonial legal process underlining their status as the source rather than subject of justice. Instead disgruntled colonial inhabitants worked through his authority, by petitioning him, or going over his head to London. A Governor who failed to follow his instructions risked disallowance and recall rather than judicial process. To the extent issues arose as to the legal liability of the Governor, they were highly occasional and centred on his criminal39 and tortious40 liability or subscription to statutory powers.41 In the century after the American Revolution, no jurisprudence of any remark developed about gubernatorial vires. That was just not the way of thinking, (p.137) legal or otherwise, in that time. Colonial Governors knew they had a broad and elastic discretion enabling them to exercise a wide latitude of authority.42 Some were very skilled at it, others less effective. But all knew they wielded considerable constitutional authority.
In Cameron v Kyte (1835) the court said:43
But if the Governor be an officer, merely with a limited authority from the Crown, his assumption of an act of sovereign power, out of the limits of the authority so given him, would be purely void, and the Courts of the Colony over which he presided could not give it any legal effect. We think that the office of Governor is of the latter description, for no authority or dictum had been cited before us to show that a Governor can be considered as having delegation of the whole Royal power in any colony, as between him and the subject, when it is not expressly given by his commission.
The key phrase has been italicized. It indicated that colonial courts should refuse to give effect to the usurpation by the Governor of sovereign powers outside those expressly given him by commission. What, then, would have comprised an ‘assumption of an act of sovereign power, out of the limits of the authority’ vested in the Governor as to justify a colonial court intervening?
When Governors assumed powers of legislation, taxation, and the erection of courts44 in colonies where the authority itself could not be exercised in the colony or else it had not been conferred upon them, they arrogated ‘sovereign powers’ in the unlawful manner described in Cameron v Kyte. Two examples of that in the first half of the nineteenth century were the regimes of Governor Macquarie in New South Wales (1809–21) and Governor Douglas on Vancouver Island (1849–64). In the colony of New South Wales before 1823 when the government was put on a statutory footing, Governors (Macquarie especially) issued laws and taxed the inhabitants—the free settlers included—without the authority of an imperial statute. On Vancouver Island, founded as a colony in 1849, Governor Douglas deferred establishment of a representative assembly as required by royal warrant and through the early 1850s ruled by gubernatorial edict.45 These were both settled colonies where by the common law principles accredited to Lord Mansfield in Campbell v Hall (1774) the Crown lacked any general prerogative legislative power and where the form of government it might erect by exercise of the constituent power was limited to a representative assembly.
(p.138) Directing his ire at the penal colony, Jeremy Bentham had railed against that sort of unlawful assumption by Governors of sovereign authority.46 In New South Wales the assumption of a gubernatorial legislative power ostensibly under the prerogative was tested in local courts in 1822. When the matter finally reached London for scrutiny, James Stephen thought likewise.47 This determination underlined an earlier local ruling (1818), one subsequently endorsed by the Law Officers, that Governor Macquarie lacked any taxing power without the support of imperial legislation.48 Others were less inclined towards the higher ground of constitutional principle and thought that within defined limits the Governor's assumption of legislative power was quite proper.49 Imperial legislation cured these defects in New South Wales (1823)50 and ensured they did not recur in the new mainland colony of British Columbia (1858).51
These were examples of a Governor assuming important prerogative powers that at common law the Crown could not exercise in the colony much less delegate (which it did not) to its representative. Where, however, the Governor was acting upon a power that was plainly vested in the Crown and delegated to him there was little contemplation of testing the exercise of such powers in the courts.
The Governor Eyre controversy showed the unlikelihood of a Governor being impleaded before a court on matters related to exercise of delegated prerogative powers, particularly those with racial overtones and/or related to the security of the colony. During a rebellion by former slaves in Jamaica in 1865, Governor Eyre declared martial law and enforced a regime so repressive that over 400 black people died. The case became a cause célèbre in England during the late 1860s with vocal support for and against Eyre. However Eyre was never tried despite his opponents’ call, a result showing the extent to which official conduct in the colonies would have to reach before judicial proceedings against a Governor could be contemplated.52 An English court upheld the Act of indemnity passed by the Jamaican legislature to guarantee Eyre's immunity.53 At this same time similar accusations were also being directed against Governor George Grey for his allegedly inhumane treatment of Maori in the New Zealand Wars. These allegations had been sent directly to the Secretary of State from an Englishman who relied upon reports from New Zealand. Grey's response was typically splenetic. (p.139) But once calmed and the allegations withdrawn, he objected to the receipt by imperial authorities of complaints against the Governor in breach of the colonial service rule that they were to be transmitted through the Governor himself. The outcome was regulations setting this ‘rule’ out more clearly.54
The Eyre episode was a particularly controversial and extreme example of a constant theme attending the role of Governors in British colonial history after the Revolution and before the onset of responsible government. Colonists frequently complained of these officials’ excessive conduct, mostly to little or no avail, sometimes with good grounds. Indeed, some Governors showed a cruel talent for turning the legal system against those who complained about them.55 Such conduct, painted afterwards in the contrast of black and white, licensed the nationalist Whig historiography of the Crown colony period as a dark age of pre-democratic, autocratic rule. This retrospection downplayed or ignored the subtleties of the political culture and personalities surrounding these important figures.56 For the most part in the period before and accompanying the onset of responsible government, the settler community of a British colony did not challenge so much as work through the authority of the Governor. This was so inscribed in the rhythm and patterns of colonial politics that when this understanding was directly challenged in the early 1860s the response in London and the colonies was almost apoplectic. Imperial legislation in the form of the Colonial Laws Validity Act 1865 comprehensively set back in place what had been understood as the status quo ante.
In the courts of the colony of South Australia during the early 1860s one Justice Boothby had been taking a very wide view57 of the ‘repugnancy’ provision in the imperial legislation for the colony.58 This rule prevented the enactment by the local assembly of laws ‘repugnant to the laws of England’, a phrase and notion that went back as far as the medieval charters for boroughs, guilds, and merchants in Europe as well as the colonies of the New World. Australian politicians were highly distressed by Boothby's unexpectedly wide notion of ‘repugnancy’, which saw him striking down all manner of (p.140) local legislation. The colony was only just enjoying the constitutional blessings of responsible government and this judicial intervention struck at the heart of its fresh legislative power. If, they said, the repugnancy rule was ‘understood in the sense of conflict, either with the fundamental principles of the English Constitution, or with Acts of Parliament affecting the Colonies, then it is easy for a Court to decide whether in relation to any subject there is an Imperial Statute affecting the question which prescribes a different rule from a Colonial Act; or whether essential principles have been violated.’59 Boothby, however, they chafed, defined it as ‘any alteration of the law of England which was either impolitic or unfair; the impolicy and unfairness being determined according to the opinions of the individual Judge who may be called upon to decide the question.’60 In addition Boothby was striking down executive actions and colonial legislation as being inconsistent with the Governor's instructions. Neither the Governor nor the colonial legislators were happy with his obdurate and wilful stance.
Governor MacDonnell of South Australia was aghast that a judge might declare colonial laws ‘incurably void’ ‘for no other reasons than that the Governor… had not construed his Instructions or used his discretion … in the mode thought most correct by the judge.’ Boothby's conduct startled him:
[T]hus I could scarcely have imagined that any one, much less a barrister and a judge, could have declared our Customs Act invalid, because by it a duty of 10s per gallon is levied on French brandy, whereas by the recent treaty with France Her Majesty merely stipulates to recommend Her Parliament a duty of only 8s per gallon on brandies imported into the United States. The learned judge even sees a ‘casus belli’ in our levying such a duty (the same as in neighbouring colonies) if we ‘had a less sincere ally’ than the present Emperor of the French.
In the Governor's estimation such ‘illogical inferences’ on ‘so simple a subject exhibit such extraordinary ignorance.’61 Small wonder that both Houses of the South Australian assembly wanted rid of Boothby, who resisted stick (appearance before the bar of both Houses) and carrot (a generous retirement package). Many considered him a troublemaker upsetting the understood and settled dynamic of colonial affairs. When, for example, his quirkiness saw him being overlooked for Chief Justice, he testily informed the Colonial Office that the post did not exist.62 For all his insistence upon the dignity of his office and his success in rallying some support from his brethren and the (literally) odd politician,63 Boothby's chopping and changing and obstinacy also had the attention-seeking air of the relentless egotist.64 However he had taken the (p.141) judicial oath. This ensured that colonial and imperial officials treaded carefully and, it must be said, respectfully around his office whilst pillorying the man. Eventually, in 1867, his letters patent of appointment were revoked.65
Boothby's position had the potential to wreak havoc in the administration of colonial laws at a time when the momentum of responsible government was growing. The colonists were not slow to see that he was advocating an essentially American form of judicial review, arrogating for colonial courts the authority to strike down the exercise of constitutional authority vested in the executive and legislature. His conduct struck at both executive discretion and legislative paramountcy. Boothby, the Select Committee of the (South Australia) Legislative Council complained (1861), was trying to emulate the American Supreme Court. They invoked the views of a popular Victorian commentator, Tremenheere, on the American Supreme Court to reject this ‘abhorrent’ challenge to ‘the principles of the English Constitution’:66
This body, therefore, is invested with an authority which cannot fail to appear to English eyes to be of a very extraordinary character, viz., that of declaring void and of none effect an Act solemnly passed by the Legislature, should that Act be, in their opinion, at variance with the Constitution. Our system of Government, which is founded partly on usage and partly on Acts of Parliament, neither knows, nor recognizes, nor would tolerate any authority extraneous to that of the Legislature, when the will of the Legislature has once been declared by a formal Act.67
Even the dissentient on the Committee felt obliged to dissociate the Boothby view from the American.
The Law Officers of the Crown acknowledged that a jurisprudence of repugnancy had not developed in the courts of the Empire. They accepted that there was a distinction between repugnancy to English law and mere ‘differences’ from British practice but did not provide a definition. In true common law style they said that courts would know this when they saw it and that, anyway, it was unlikely a colonial legislature would even enact repugnant laws. Repugnancy, they felt, was an extremity colonial laws were unlikely to reach. The paucity of case law itself attested to that. In addition, instructions were ‘a matter between the Crown and the Governor and to be to the latter, directory only.’68
Ultimately Boothby put paid to any prospect of an elaborate jurisprudence in imperial and colonial law of legislative and executive vires.69 The Colonial Laws Validity Act 1865 famously curbed any such possibility. The Act was retrospective70 and reaffirmed (p.142) the orthodoxy that Boothby had rocked. It passed through Parliament without bother, so surely did it set the received position in law ‘to remove Doubts’. Section 2 reaffirmed (and somewhat extended71) the established rule that a colonial law would be void if repugnant to any imperial statute extending to the colony. Section 3 provided that a colonial law was not to be held void for repugnancy to English law except as provided in Section 2. Section 4 prevented a colonial law from being inoperative by reason only of the Crown's instructions ‘with reference to such laws of the subject thereof ’ unless in letters patent. The authority of colonial legislatures to establish courts was confirmed (Section 5) as also the power of representative legislatures to make constitutional amendments (Section 5). The Act thus was ‘a charter of freedom for colonial legislatures’ in that it banished the unthinkable spectre of judicial review of legislative action. It confirmed the non-justiciable discretion of the Governor. It enabled the fledgling colonial assemblies to grow free from the type of judicial intervention that Boothby's meddlesome antics had unexpectedly and briefly thrust into discreditable light.
In Musgrave v Pulido (1879) it was stressed that a Governor was not a Viceroy and only held that authority derived from his commission and thereby expressly or impliedly entrusted to him. Whilst he was protected from actions within the limits of his commission, ‘the like protection [could] not be extended to acts… wholly beyond the authority confided to him.’72 The case thus acknowledged the distinction between a Governor's breach of his commission under the Great Seal (which a court could strike down) and breach of his instructions (which a court could not). If this suggested a prospective jurisprudence of gubernatorial vires based on minute judicial attention to the commission, it did not eventuate.73 For a start most commissions were highly general and vague in their specification of gubernatorial power, making any boundarysetting a slippery task for courts that were anyway still deferential to the prerogative. Moreover responsible government itself checked that possibility. Governors had moved from ‘the status of potential despots to “rubber stamps” of the colonial Ministry whose advice they were bound to follow.’74 The very folk who once were apt to challenge his authority were now his puppet-masters. Despite the ruffle made by Boothby, throughout the nineteenth century impleading Governors remained an implausible legal route.
4. Sovereignty and the American common law: the early republic and Marshall Court judgments
The young American republic's Indian policy was largely a continuation from the British. As in the Canadas during the close of the eighteenth and early in the nineteenth centuries, the orientation of Indian policy was initially military and strategic. (p.143) Gradually, however, once the authority of the republic was established and as settlement pushed westward, land became the focus of relations.
In August 1786 the Continental Congress approved an ordinance for the Indian trade that proposed a system by which a superintendent oversaw Indian relations and licensed trade and residence.75 Although never fully effective, the ordinance recognized the tension already emerging between federal and state authority over the administration of Indian policy76 and contemplated the system of the later non-intercourse statutes. The ordinance provided for southern and northern districts, adapting elements of the system of the Royal Proclamation (1763). It proposed a superintendent for each district to carry out the instructions of Congress as well as requiring licences and bonds to trade with the Indians. This was a response to the eager speculators’ and settlers’ demand for land.77 A year later a Committee Report of the Southern Department confirmed the problems being caused by state intervention.78 The American Constitution adopted in 1787 gave Congress the responsibility of managing Indian affairs, apparently excluding the states. However the residual authority of the states under the Trade and Intercourse Acts was officially revoked in 1790 with the first Nonintercourse Act.79 The Constitution allowed Congress to regulate commerce ‘with foreign Nations, and among the several States, and with the Indian Tribes.’80 It also excluded ‘Indians not taxed’ from population counts.81 Finally, the Supremacy Clause elevated ‘all Treaties made, or shall be made’ as the highest law of the land.82 The first Congress established a War Department in 1789 with a jurisdiction that included Indian affairs,83 a responsibility that remained until the Interior Department was established in 1849.84 A separate Bureau had been set up within the War Department in 1824 without special Congressional authorization85 until 1832.86
Indian policy of the young republic continued themes and principles of British practice embodied in the Royal Proclamation. The Northwest Ordinance of 1787 established the Northwest Territory and maintained the westward north-south boundary line of Indian land in which the non-intercourse statutes (passed in 1790, 1796, and 1799 before the 1802 consolidation) forbade trade and settlement. The Ordinance famously declared that the ‘utmost good faith shall always be observed towards the (p.144) Indians, their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorised by Congress.’87 The Trade and Intercourse Act of 1802 consolidated the policy of the earlier, identically titled Congressional statutes. The long-standing pre-Revolutionary rule remained, in that the Act outlawed the purchase of land directly from ‘any Indian, or nation, or tribe of Indians.’88 Another Trade and Intercourse Act of 1834 further consolidated the law89 and was passed alongside a statute for the organization of a Department of Indian Affairs which set out specific agencies and put the Indian service on a clearer footing.90 This Act also identified Indian country as comprising, first, all lands west of the Mississippi River, outside the states of Louisiana and Missouri and the Territory of Arkansas; and secondly, any lands east of the Mississippi, not within any state, the Indian title to which had not been extinguished. That definition was repealed in 1874 by which time it had become impossible to maintain the approach that had started a century before with the Royal Proclamation (1763). Thereafter, as the Supreme Court explained in 1877, ‘Indian country’ simply meant land (such as reservations) subject to an unextinguished original Indian title.91
During the late eighteenth century the constitution-building processes of the new republic had treated Indians ambivalently, the proceedings of the Continental Congress already revealing the duality that would characterize their constitutional status in the next century. The tribes were treated simultaneously as independent polities and as subjects of domestic (as opposed to diplomatic) practice. However, treaty-making resumed, commencing with the Treaty of Fort Stanwix (1784) and followed by the treaties of Fort McIntosh (1785) and Great Miami (1786).92 These early treaties were ostensibly treaties of peace and alliance but they also contained significant land cessions and in so doing set the tone for the long line of treaties that followed. The defeat of the British and their Indian allies in 1812 removed all serious threat of Indian military resistance east of the Mississippi River. The pressure on Indian land was renewed with a vengeance. The republic's victory unleashed a huge demand for land, fuelled by the explosion of nationalism and frontier entrepreneurialism. Treaties poured into Washington and were sent in batches for ratification by an eager and compliant Senate. These treaties initiated the practice of reserving land for the tribe, as well as the usual provision for presents and annuities and, in some, money for the education of Indian youth.93
Early in the nineteenth century Thomas Jefferson advocated the ‘civilization’ of the Indian, but he also raised the possibility of removal if the Indian refused to leave tribal life to move into a history of civilized yeomanry. He tended increasingly towards the removal option as Indian resistance became increasingly apparent.94 This suggestion (p.145) was not new. The Congress of 1783–84 took the view that Indian support of the British meant they had forfeited their right to possession of lands within the United States and should retire to the Canadas or east of the Mississippi River. At that time the infant republic had little by way of resources to put this policy into action. Publicly President George Washington and Secretary for War Henry Knox recognized the right of the Indians to their land. To ‘dispossess them on any other principle, would be a gross violation of the fundamental laws of nature, and of that distributive justice which is the glory of a nation.’
By the 1820s and ’30s the leading issue in Indian policy concerned the removal of the eastern tribes, the Cherokee of Georgia in particular, to land beyond the western boundary. President Monroe had proposed voluntary removal (1825),95 but as Indian presence became more contentious, his successor, the populist Andrew Jackson, took a more aggressive stance.96 President Jackson's relations with the Supreme Court were, to say the least, uneasy97 and he had secured passage of the Removal Act (1830) by Congress.98 In the end, not even the judgments of the Supreme Court could rescue the Cherokee from the ‘Trail of Tears’, the decimation of their population and culture as they were forced to trek hundreds of miles inland to a new, less hospitable home away from their ancient lands. In the teeth of Jackson's determination, it was scant comfort for the Cherokee that the court had set out what became the foundational legal principles of federal Indian law. The ringing principles of the Northwest Ordinance had done precious little for the Cherokee and the other nations expatriated during the removal period of 1835–61. Removal beyond state boundary lines was often the prelude to the admission of new states to the Union.99 The nationalist agenda prevailed easily over honourable treatment of the tribes.
In two associated cases decided closely together, Cherokee Nation v Georgia (1831) and Worcester v Georgia (1832), the Supreme Court under Chief Justice John Marshall explained the legal status of the American Indian tribes of whom the states wanted riddance. The cases concerned the attempt by the state of Georgia to assert jurisdiction in Cherokee country through a series of ‘draconian laws—completely violative of existing federal treaties’.100 These laws were specifically intended to break the integrity of the Cherokee and to open up their land for white settlement. The laws were also aimed at preventing northern missionaries encouraging anti-state sentiments amongst the (p.146) Cherokee and so required any white entering Cherokee land to obtain a licence from and make an oath of allegiance to the state.
Justices Baldwin and Johnson took the position in Cherokee Nation that the Indian tribes lacked any status at all. In words that later became notorious, Justice Johnson asked ‘[m]ust every petty kraal of Indians designating themselves a tribe or nation, and having a few hundred acres of land to hunt on exclusively, be recognised as a state?’ Comparing the Cherokees to European states he wondered ‘the applicability of the epithet “state” to a people so low on the grade of organised society as our Indian tribes.’101 Justice Johnson proceeded to approve the approach taken by British courts on the enforcement of treaty promises, using a phrase which fifty years later was to be echoed (without acknowledgment) in colonial New Zealand. ‘In the exercise of sovereign right’, he said, ‘the sovereign is sole arbiter of his own justice’ and ‘[t]he penalty of wrong is war and subjugation’.102
In Worcester Chief Justice Marshall found he could not evade the issue of tribal status as he had recently done in Cherokee Nation. His judgment in this later case was soon regarded as authoritative and became the cornerstone for federal American Indian law. The Chief Justice concluded that the Cherokee Nation was ‘a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress’.103 This conclusion embodied what became the two central principles of federal American Indian law. It recognized the distinct sovereign status of the Indian ‘tribes’ in ‘Indian country’ (the first principle) but also carried the seeds of what would become known as the ‘plenary power’ of Congress104 (the second).
The history of European practice in relation to the New World portrayed the distinct and sovereign status of the Indian tribes, the Chief Justice insisted. The ‘doctrine of discovery’ was a means by which the European powers claimed rights as against one another in the New World. However, the bold assertion of right in the Crown's charters ‘asserted a title against Europeans only, and were considered a blank paper so far as the rights of the natives were concerned.’ Thus the ‘doctrine of discovery’ was not a denial of Indian rights, as James Stephen claimed somewhat disingenuously in 1839, so much as a means of excluding competing European nations. The Crown and the United States had, he said, consistently recognized the distinct political organization of the Cherokee:105
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to (p.147) sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self-government, so far as respected themselves only.
The treaties of alliance and protection made by the British Crown and its successor sovereign authorities with the Cherokee, most especially those which reserved land for them ‘have never been supposed to imply a right … to take their lands, or to interfere with their internal government’106 —‘[p]rotection does not imply the destruction of the protected.’107 Here Chief Justice Marshall followed another contemporary and influential jurist, Chancellor James Kent in the New York Supreme Court,108 by drawing upon Vattel. It has been seen that in Le droit de gens (1758) Vattel stressed the principle of equality between sovereign states, stating famously that a ‘dwarf state’ was as much sovereign as ‘the most powerful kingdom.’109 In the following passage Marshall CJ invoked Vattel's comment that a weaker state did not lose its identity if it placed itself under a stronger one ‘without, however, divesting itself of its right to self-government and of its sovereignty.’110 The Indian nations were dwarf states and under the protection of the United States but still retained the vital hallmark of independence—self-government:
The actual state of things at the time [of the Royal Proclamation 1763], and all history since … [as well as] the very fact of repeated treaties with them recognises it; and the settled doctrine of the law of nations is that a weaker power does not surrender its independence—its right to self-government, by associating with a stronger and taking its protection. A weak State in order to provide for its safety, may place itself under the protection of one more powerful without stripping itself of the right of government and ceasing to be a state.111
The Chief Justice's elaboration in Worcester of his earlier characterization in Cherokee Nation of the Indian tribes as ‘domestic dependent nations’ recognized, then, the right of the tribes to self-government except to the extent diminished by treaty. The Constitution gave Congress the sole and exclusive right of regulating commerce with the Indians. The powers under that clause, said Chief Justice Marshall, ‘comprehend all that is required for the regulation of our intercourse with the Indians’.112
The constitutional status of the Indian tribes as ‘domestic dependent nations’ flowed from their retention of their customary self-government, that status circularly operating to protect that self-government. This recognition of the residual sovereignty of the American Indian tribes became the central predicate of the American common law. It was a conclusion fitting the post-Revolutionary constitutional climate of the United States in that it stressed the location of the sovereign power in the consent of those subject to it and the divisibility of sovereignty.113 Thomas Jefferson, no friend of (p.148) the English common law,114 had dismissed the absolutist sense of sovereignty as ‘an idea belonging to the other side of the Atlantic.’115 In recognizing the status of the Indian tribes Marshall was in a sense applying to the Indian nations constitutional principles that the Founding Fathers had applied to themselves.116
As the judgments of Baldwin and Johnson JJ showed, however, there was nothing inevitable about the position taken by the Chief Justice. The hold that his approach soon commanded was probably as much a testimony to his personal stature as to the power of its logic.117 The recognition of residual sovereignty did not extend to those groups of Indians or ‘fragments of tribes, [who] having lost the power of self-government, and who lived within the ordinary jurisdiction of a State, have been taken under the protection of the [State] laws.’118 In other words native groups of the second category identified earlier though perhaps still retaining some coherence were not to be regarded as falling under the designation of domestic dependent nations. The American common law thus configured about tribal sovereignty, which became the centrifugal force for all Indian rights. The notion of an asymmetrical sovereign-to-sovereign relation was established very early in American law.
The Marshall doctrine of residual tribal sovereignty was not reconsidered directly by the Supreme Court until 1883. Until then the few cases had skirted the topic of tribal sovereignty, ‘focussing instead on expanding the power of the federal government and limiting the power of the states.’119 The major court decisions between Worcester and Crow Dog (1883) ‘primarily determined either tribal rights against the government of the United States or preserved exclusive federal authority over the tribes at the expense of the states.’ In contrast was a line of state cases that took a position hostile to tribal sovereignty, these cases mainly concerning state jurisdiction over crimes on reservations:120
It denied the vitality of tribal law and sovereignty, dismissing tribal society as ‘savage’, fit only to be pushed aside by the forces of white civilisation. In this view criminal law was a matter reserved to the states by the Constitution as routine police powers, an essential element of state sovereignty. Accordingly, it was not sound public policy to extend any notion of sovereignty or law to the Indian tribes because that would lead to violence, disorder, and jurisdictional confusion and also serve the fiction of assigning some legitimacy to political structures that were primitive and uncivilised.
Despite state law trending that unsympathetic direction, ex parte Crow Dog (1883) represented an affirmation—if but a frail and soon undermined one—of tribal sovereignty. In this case the Supreme Court quashed the conviction of Crow Dog for shooting his chief, Spotted Tail, to death in 1881. Applying Worcester, the Supreme Court held that tribal law continued to apply amongst the Indian tribes as part of their residual sovereignty. That meant the United States courts lacked criminal jurisdiction over crimes committed between Indians in Indian country (on reservations). (p.149) This purple passage from Mr Justice Matthews bristles with ambivalence, at once recognizing and preserving the integrity of the tribes whilst also incidentally noting their cultural inferiority. To enforce the federal criminal law amongst Indians on reservation lands would be a case where:121
… by argument and inference only, [it] is sought to be extended over aliens and strangers; over the members of a community separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them, not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality.
The impact of Crow Dog and its eventual undoing—the judicial curtailment of the doctrine of residual tribal sovereignty—will be described soon. Dicta in the case indicated Congress might explicitly extend criminal jurisdiction in Indian territory if it so chose, an invitation which Congress was not slow to take and one that in doctrinal terms exposed the notion of residual tribal sovereignty.
5. Sovereignty and the Anglo-settler common law: the Empire(s) of Uniformity and the positivization of sovereignty
James Tully uses the term ‘the Empire of Uniformity’ to describe a totalizing tendency in Anglo-American constitution-talk. This tendency has been one suppressing diversity and constitutional pluralism in favour of an absolutist (‘monologic’) and homogenized account of state authority: the single unchallenged voice, no other, of Leviathan. Certainly that tendency occurred most dramatically in Anglo-American common law and international law as they developed during the nineteenth century, the latter half in particular. It was in that period that both systems packaged the notion of sovereignty into a doctrinal and positivized form. It was also during this period that law became a more brutal instrument of the social policy of the settler-state as the regimes described later in this chapter were enacted. As the introduction to this chapter stressed, these were designed both to make aboriginal land available for settlement and to end the ‘backward’ tribalism. Through the nineteenth century the idea of law had moved from the classical reason-based form to the positivist one emphasizing law's basis in sovereign will. The ascendant, more evidently absolutist notion of sovereignty being applied in all jurisdictions attested that movement.
The Marshall Court judgments, in formulating the sovereign-to-sovereign model or sovereign-within-sovereign (imperia in imperio), provided (at least notionally) a dialogic and pluralistic model that the British colonies did not follow during the (p.150) nineteenth century. It will be seen that even by the second quarter of the nineteenth century the more flexible and accommodating eighteenth-century approach kept some tenability. From that time, however, imperial and colonial officials and courts took a more resolute and less permissive position. Increasingly officials denied aboriginal polities any distinct status and would not acknowledge any ‘rights’ associated with the tribe and its way of life, other than those affecting the conscience and discretion of the Crown as guardian. In the British colonies and dominions, this, it was explained in opening the chapter, was an outcome of the deep-seated belief in the common law constitution based upon the sovereignty of the Crown. At this time ‘tribal rights’ were for Englishmen a contradiction in terms since ‘rights’ vested only in the individual and in terms of property-ownership and representation in a legislature under the sovereignty of the Crown. The identity of the paramount sovereign itself was juridically closed and incontrovertible. There was no constitutional authority apart from the Crown.
This was an archetypal mid-nineteenth-century view of the nature of ultimate political authority. It blended the growing legal preoccupation with law as a sovereign command with the dominant liberal ideology. This resulted in what became, as the century progressed, more aggressive state programmes of civilization and assimilation. To repeat, this blanket amenability to British law was not seen at the time as a negative result. Colonial Office officials and humanitarian advocates regarded the full extension of the rights and liberties of British subjects to aboriginal peoples as the best protection of their interests, rather than some separate but ill-defined status of the American sort.
Austin's influential122 book The Province of Jurisprudence Determined was published in 1832 at the same time as the Marshall Court was developing its doctrine of divided sovereignty. Austin's work was largely overlooked during his lifetime and only became influential, and then increasingly, during the second half of the century. It has been said that the chief effect of his work was ‘to attach an exaggerated importance to the theory of sovereignty’.123 Certainly Austin's work eventually permitted common lawyers to conceive sovereignty in a fuller, more deliberative manner. It took them beyond the long and undoubted raw premise of the legislative supremacy of Westminster. But this emergent consciousness of common lawyers about sovereignty as doctrine was not solely a result of Austin, although undoubtedly the acceptance of his tenets contributed enormously to it. What made Austin's work so influential was that it offered ‘a theory for the times’, a theory distinctly helpful to European state nationalism of the nineteenth century, English not least. More particularly he provided common lawyers with ‘the basis for elaborating legal knowledge as a well organized subject respectable within the environment of university education and as the special learned expertise of a modern profession.’124 Austin's work thus had (p.151) enormous influence as an expression of the ideology required by Victorian England in the colonies,125 empire as well as the realm.126
Austin provided a description of sovereignty127 flowing directly from his command theory of law, a position heavily influenced by Hobbes and Bentham.128 ‘Laws properly so called are a species of command’, he said and being so ‘every law flows from a determinate source or emanates from a determinate author.’129 That determinate authority was the sovereign, ‘that certain member of the society, or that certain body of its members, to whose commands, expressed or intimated, the generality or bulk of its members render habitual obedience.’130 Austin held that the members of the society must either be dependent or subject to that sovereign: ‘By “an independent political society”, or “an independent and sovereign nation”, we mean a political society consisting of a sovereign and subjects, as opposed to a political society which is merely subordinate; that is to say, which is merely a limb or member of another political society, and which therefore consists entirely of persons in a state of subjection.’131 He summarized the ‘distinguishing marks’ of the sovereign this way:
The generality of the given society must be in the habit of obedience to a determinate and common superior: whilst that determinate person or determinate body of persons must not be habitually obedient to a determinate person or body. It is the union of that positive, with this negative mark, which renders that certain superior sovereign or supreme, and which renders that given society (including that certain superior) a society political and independent.132
In this lengthy passage Austin described how tribal societies failed to meet the criteria for sovereignty:
Inasmuch as the given society lives in the savage condition, or in the extremely barbarous condition which closely approaches the savage, the generality or bulk of its members is not in a habit of obedience to one and the same superior … The bulk of each of the families which compose the given society, renders habitual obedience to its own peculiar chief: but those domestic societies are themselves independent societies, or are not united or compacted into one political society by general and habitual obedience to a certain and common superior. And, as the bulk of the given society is not in a habit of obedience to one and the same superior, there is no law (simply or strictly so styled) which can be called the law of that given society or community. The so-called laws which are common to the bulk of the community, are purely and properly customary laws; that is to say, laws which are set or imposed by the general opinion of the community, but which are not enforced by legal or political sanctions. (p.152) The state which I have briefly delineated, is the ordinary state of the savage and independent societies which live by hunting or fising in the woods or on the coasts of New Holland.133
Austin thus denied original sovereign status to tribal societies.
From the mid-Victorian period international law also demonstrated a tendency towards conceiving sovereignty in a more doctrinal or positivized (and, per Tully, monologic) form in that it formulated a standard of civilization for entry into the ‘charmed circle’ of states wherein sustained relations were maintained. The achievement of a standard of civilization measured, of course, on the European scale thus became the qualification for a state to be regarded as equal and independent. This standard of civilization and its consequences for those aboriginal polities in Africa and the Pacific who, in the second half of the nineteenth century, were at the freshest frontiers of British imperialism will be considered soon. Meanwhile and from the same time, however, in Australasia and British North America the original sovereignty of the aboriginal peoples was regarded as spent. It was at best a momentary original condition long since gone. Legal sovereignty vested exclusively in the Crown.
The remainder of this chapter will review this doctrinaire formulation of sovereignty in the common law and international law from the mid-Victorian period. One should be careful to stress that this tendency was so effective for a number of reasons. Most fundamentally it suited the practice of European states, including not least the imperial practices of Britain. It also matched the goals of particular colonies anxious to spread settlement over lands claimed and occupied by the native peoples. Accompanying these were the developments within the nature and character of legal (and scientific) reasoning itself and, in England, its practice and teaching.
(a) Upper Canada
Whilst the Marshall Court was considering the character of government relations with the Indian tribes during the early mid-nineteenth century, Canadian authorities were also reaching their own conclusions. These coincided with those of Justices Baldwin and Johnson south of the border.
The balance of power between the First Nations of Canada and the Crown had shifted after the war of 1812 with the United States. After that and as British dominion in Upper Canada consolidated, colonial and imperial officials believed that the Indian tribes were no longer distinct political entities (‘allies’) and that Indians themselves were subjects of the Crown. Their organized political forms—the ‘nation’, the ‘tribe’—thus lacked any juridical standing, as did tribal individuals themselves so far as any ‘aboriginal’ (that is, collective) rights were concerned. It was seen at the end of the previous chapter that this transition from ‘ally’ to ‘subject’ occurred during the 1820s, a result confirmed judicially a century later in Sero v Gault (1921).134 Undoubtedly the (p.153) defeat of the British and Indians in the War of 1812 severely damaged Indian military capability as to render them unthreatening to the American and considerably less potent in British Canada.135 When the increasingly fragmented Great Lakes tribal nations no longer seemed a threat, they did not have to be treated legally as though they were.
After this defeat serious pressure grew on the tribal nations’ land. Land cessions in the form of treaty-making continued, and did so throughout the century. Numerous land cessions had been negotiated in the last years of the eighteenth century by Sir John Johnson and his junior officer Captain William Crawford and Governor Haldimand, and were treated by the colonists as absolute sales. After 1812 the Indians had learnt to negotiate terms so that the rivers and forests remained open and they might continue to hunt and fish. However, those terms tended not to find their way into the documentary record. Also a new practice was introduced in the name of economy and became a permanent feature of Indian treaties in Canada. In 1818 an annuity system was commenced by which the bands would receive a small annual payment in perpetuity rather than a considerably larger, but one-off, payment.136 This practice appealed to the Indians, belief that the treaties established an enduring political relationship between their people and the Crown.
An 1836 opinion of Attorney-General (Upper Canada) Jameson set out the legal status of the Indians and the legislative jurisdiction of the local assembly:137
Hitherto the Indians have been under the exclusive and from their peculiar state, the appropriate care of His Majesty alone: The Territories which they inhabit within the Province are tracts of Crown land devoted to their sole use as his ‘Allies’, and over which His Majesty has never exercised his paramount right except at their request, and for their manifest advantage. They have within their own communities governed themselves by their own laws and customs—their Lands and property have never been subject to tax or assessment, or themselves liable to personal service. As they are not subject to such liabilities, whither to they yet possess the political privileges of His Majesty's subjects generally. The Superintendents, Missionaries, schoolmasters and others who reside among the Indians for their protection and civilization are appointed and paid by the King, and to His Representative have until now all appeals been made, and with him has all responsibility rested. In all respects they appear to be most constitutionally within the jurisdiction and prerogative of the Crown: and without denying the right of the Assembly to examine into grievances arising out of this or any other system of policy, I think that in the present case it is entirely for the Crown to determine the propriety of adhering to the present or sanctioning the adoption of a new course for their internal government.
The opinion was caught between an older, dying legal characterization of the tribes and the newer one of thoroughgoing amenability to English law. The older, late eighteenthcentury approach was noted in the previous chapter and seen as held by the likes of the (p.154) Johnson clan, Justice Powell, and Lieutenant Governor Simcoe. It anticipated the Marshall Court's formulation of a dependent but separate tribal sovereignty and can be seen in the first three sentences above. Yet Jameson's opinion also struck the emergent theme that despite their distinct political identity, in point of law the Indian tribes comprised individuals who were British subjects. He did not draw the conclusion that was then also gaining circulation, namely the full applicability of English law to the tribes in their dealing inter se. Instead he repeated the principle that management of Indian affairs was beyond the colonial legislature and solely within the prerogative of the Crown.
More than any other figure in pre-Confederation British North America, Sir John Beverly Robinson, Chief Justice of Upper Canada, expressed most fully the legal position of the Indian and the tribe.138 Unlike Jameson, the position that he took in the late 1820s was that the Indian Nations held no status as such. They were certainly not residual sovereigns on the American model, a result beyond conception to this highly loyalist Tory. Nor was he able to consider them as holding some inherent corporate status, even where that might be implied from the character of Crown relations with the particular tribe.
The Chief Justice's judgment in Doe d Sheldon v Ramsey (1852) starkly demonstrated his position. The case concerned the so-called Haldimand Grant of 1784 by which Lieutenant-Governor Haldimand had granted the Six Nations a large tract of land along the Grand River in recognition of their loyalty during the American Revolution. The Mississauga had previously surrendered this land to Britain by treaty. This land was not held by an aboriginal title so much as under grant the nature of which subsequently was disputed. Sheldon, the plaintiff, held under a sale in 1820 from the commissioner of forfeited estates. The land had been seized from Benjamin Mallory who had forfeited his lands by fighting for the United States in 1813. Mallory's title came from a lease signed in 1805 by Joseph Brant, leader of the Six Nations. Sheldon commenced an action for ejectment of squatters. The squatters replied by arguing that he lacked legal title since Mallory could not forfeit lands he did not own, it being unlawful for him to have leased from the Six Nations.
The Chief Justice held that the grant ‘“to the Mohawk Indians, and such others of the Six Nations as might wish to settle on the Grand River, of a tract of land to be enjoyed by them and their posterity for ever” could not have the effect upon any principle of the law of England of vesting a legal estate in anybody.’139 His judgment described the Six Nations’ position this way:
It can never be pretended that these Indians while situated within the limits of this province, as a British province at least, were recognised as a separate and independent nation, governed by (p.155) their laws of their own, distinct from the general law of the land, having a right to deal with the soil as they pleased; but they were considered as a distinct race of people, consisting of tribes associated together distinct from the general mass of the inhabitants, it is true, but yet as British subjects, and under the control of and subject to the general law of England. As regards these lands on the Grand River, the Indians had no national existence nor any recognized patriarchal or other form of government or management, so far as we see in any way; the lands, as appears from the document under which the tribes claim title to them, shew that they belonged to the British Government. There seems to have been no trust created in these lands on any person or body of persons for the Indians, neither was it necessary there should be, for it was more natural the crown should be in a situation to protect their interest and treat them as a people under its care, not capable of disposing of their possessions. Although they are distinct tribes as respects their race, yet that gave them no corporate powers or existence …140
This reaffirmed his position some years earlier as Attorney-General for Upper Canada when he had said that to ‘talk of treaties with the Mohawk Indians, residing in the heart of one of the most populous districts of Upper Canada, upon lands purchased for them and given to them by the British Government, is much the same, in my humble opinion, as to talk of making a treaty of alliance with the Jews in Duke street or with the French emigrants who have settled in England.’141
The legal incapacity of Indians was widely acknowledged in the pre-Confederation period. Indians could sue in respect of their personal rights and property but not individually or collectively in respect of any group rights. In 1832 the Superintendent of Indian Affairs remarked that the protection of Indian lands through the Crown officials was vital ‘because the Indians have not the same legal remedy as other subjects.’142 In 1836 in an opinion quoted earlier, the Attorney-General for Upper Canada, Robert Jameson, spoke of the ‘peculiar situation of the Indians with regard to civil rights—being a large community without any corporate capacity to hold lands or maintain suits in defence of their common property.’143 Twenty years later the Superintendent of Indian Affairs, RT Pennefather, spoke of the ‘anomalous position’ of the Indian tribes, ‘at once labouring under the disabilities imposed by law upon minors, and enjoying some of the territorial privileges of independent sovereigns.’144 Official reports of the mid-nineteenth century frequently spoke of the aboriginal tribes’ and individuals’ lack of legal status and their dependence upon the Crown to protect their lands from white encroachment.145 The Darling Report (1828), for example, commented that an ‘Indian (p.156) cannot legally defend himself, nay, a whole tribe have not more power.’146 Their rights were to be protected by the Government ‘until they are admitted individually to the rights of His Majesty's other subjects amongst whom they live’, that is, until they shed tribalism.147
Thus the once-independent Canadian tribes somehow came under Crown sovereignty during the early nineteenth century, moving from ally to subject of the Crown. Not only were they regarded as being subjects of the Crown by the end of the 1820s, but their forms of political organization and representation were denied juridical standing before the courts of Upper Canada. Their relations with the Crown were rendered ‘political’ in the sense of being non-justiciable or uncognizable in the colonial courts except through the protective agency of the Governor. That lack of status extended not only to their corporate form but also to individuals claiming rights that were ‘aboriginal’ in character. In short, aboriginal peoples were amenable to the courts’ jurisdiction, like all British subjects, but retained enough of their former status as allies (or non-subjects) to be disabled from bringing proceedings to protect their customary rights.
In the late 1830s Governor Francis Bond Head tried to emulate the American example when he proposed the removal of the aboriginal peoples of Upper Canada to Manitoulin Island. Here they could be protected, isolated from settler society. He persuaded some bands in what is today southern Ontario, but his policy of protection ran against the grain of the assimilation model that was becoming increasingly attractive to colonial and imperial intelligentsia. As a policy, assimilation was brewing in settler consciousness, aided by the humanitarian movement in England, but it was not until the second half of the century that it would mature into actual policy supported by law.
Meanwhile the courts of Lower Canada took the same position as Upper Canada, holding to the rule of Indian incapacity to commence proceedings based on the claim to collective rights.148 One case, Connolly v Woolrich (1867), has been held out as a distinguished exception.149 In this case Justice Monk of the Superior Court had to decide between two ‘marriages’ made by William Connolly. Connolly had first married as a callow seventeen-year-old in 1803, taking as his wife the daughter of a Cree chief, Suzanne, with whom he cohabited in Indian country according to tribal custom and usage and by whom he had six children. In 1832 Connolly left Suzanne and married Julia Woolrich in the Roman Catholic Church, living with her in Montreal until his death in 1849. After his death the court was called upon to determine who were his legitimate heirs. The Superior Court and on appeal Queen's Bench decided in favour of his first wife. This result was based upon judicial recognition of the continuity of the indigenous law and institutions notwithstanding the provisions of the Hudson Bay Company's charter. The judges refused to accept that (p.157) the charter or other act of the Crown such as the Royal Proclamation of 1763 could of itself introduce English law into the northern territory unless also adopted by native peoples. Justice Monk responded to the contention that by the charter of the Hudson's Bay Company ‘the territorial rights, political organisation, such as it was, [and] the laws and usages of the Indian tribes were abrogated.’ In his opinion it was ‘beyond controversy that they did not, that so far from being abolished, they were left in full force, and were not even modified in the slightest degree, in regard to the civil rights of the natives.’150 He then cited a lengthy passage from Chief Justice Marshall's judgment in Worcester v Georgia, italicizing for emphasis extracts stating that the Crown did not by the mere issue of charter ‘attempt … to interfere with the internal affairs of the Indians.’151
Significantly the passages cited by Justice Monk from Worcester were not those describing in point of law the residual sovereignty of the Indian tribes, but simply those that recognized as a matter of fact the continued integrity of tribal political structures after Crown sovereignty. He based the continuity of the Cree customary law on this retained factual integrity. Unlike the American Supreme Court, he did not explicitly base that continuity upon a legal notion of retained, residual sovereignty. Some such recognition might have been implicit in his judgment but nowhere did he make that plain. The judgment thus seems more to reflect a pre-modern idea of the common law such as that seen in The Case of Tanistry rather than a modernist view of the nature of sovereignty.
On appeal a majority of the Court of Queen's Bench agreed, although the judgments did not explore the issue as thoroughly or draw on the American cases like Justice Monk.152 This precedent was a solitary case that did not lay the foundation for a late nineteenth century Quebec jurisprudence recognizing customary institutions and laws. Indeed, some years later and still on the bench Justice Monk found his position had become that of the dissentient. In Fraser v Pouliot (1881) the Superior Court of Quebec came to the opposite conclusion, holding that British sovereignty had abrogated the Cree customary law of marriage.153
The leading nineteenth-century Canadian case on the status of aboriginal land rights was R v St Catharine's Milling and Lumber Company (1885–88). Its main concern was the nature of Indian title to their customary land.154 The case had to determine whether the federal or provincial Crown held the underlying legal title to lands occupied by the Indian nations. It did not deal directly with the status of the aboriginal polities per se, although the question of who or what body held whatever collective rights there were was an aspect of the land title question. As it was, that question of legal identity was not answered directly. The case commenced in the Ontario Court of Chancery,155 proceeding through the Ontario Court of Appeal,156 Supreme Court (p.158) of Canada,157 and, finally, to the Privy Council. At all stages and apart from two vigorous dissenting judgments in the Supreme Court by Justices Strong and Gwynne, the ruling was in favour of the province. The provincial government, represented in court by Oliver Mowat, Premier and Attorney-General, argued that the Indians lacked legal title to their land whilst conceding that the Crown had as part of its liberal policy elected to recognize their political right.158 Chancellor Boyd agreed, endorsing the approach established earlier that century by Chief Justice John Beverly Robinson.
The St Catharine's case was extensively argued and notable, at least in the three Canadian courts, for the breadth of authorities cited. Those included the American cases, most notably Johnson v M'Intosh (1823), the leading case of the Marshall Supreme Court on land rights.159 The judges were by no means consistent in their use of the American cases, but none sought to argue the ‘domestic, dependent nation’ approach. One cited the cases as showing the absence of any individual, collective, or national legal status for aboriginal people,160 as he, with all of the majority judges, reaffirmed the established approach of that time. Throughout, the judgments presumed and sometimes described the Indians as lacking legal capacity to defend their aboriginal (that is, collective) rights, collapsing standing and title into the same result. Justice Taschereau put it bluntly when he dismissed the possibility of there being any legal title enforceable by aboriginal people:161
The necessary deduction from such a doctrine would be, that all progress of civilization and development in this country is and always has been at the mercy of the Indian race. Some of the writers cited by the appellants, influenced by sentimental and philanthropic considerations do not hesitate to go as far. But legal and constitutional principles are in direct antagonism with their theories. The Indians must in the future, everyone concedes it, be treated with the same consideration for their just claims and demands that they have received in the past, but, as in the past, it will not be because of any legal obligation to do so, but as a sacred political obligation, in the execution of which the state must be free from political control.
At the end of the twentieth century, history retrospectively judged with greater favour the bold and, for that time, courageous dissenting judgments of Justices Strong and Gwynne in the Supreme Court, doing so in much the same way as it has looked backed glowingly on Justice Monk's judgment in Connolly v Woolrich. Yet even these judgments did not venture into a description of the legal status of the traditional forms of Indian political organization, keeping focus primarily on the question of title. Certainly, although citing the Cherokee Cases, neither judge attempted to describe the Canadian Indian Nations as residual sovereigns. Nonetheless in holding that the aboriginal title was legal in character they implicitly recognized the legal standing of the aboriginal political structures through which that title was constituted. It would be (p.159) nearly a century before that approach with its implicit though inspecific recognition of tribal status became recognized by the common law of Canada.
The Upper Canada legislature was given jurisdiction over native affairs in 1860.162 That legislation will be considered more fully below. It continued the supposition that relations with aboriginal peoples were non-justiciable in character. All that had changed was the locus of the trustee duties, which had moved across the Atlantic. Even those Canadian judges of the nineteenth century willing to recognize aboriginal political structures and associated rights (to land) stopped short of basing those upon the American model of retained inherent tribal sovereignty.
Instructions to the Governors of New South Wales told them ‘to endeavour by every possible means to open an intercourse with the natives, and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them.’ These instructions stipulated that if ‘any of our subjects shall wantonly destroy them, or give them unnecessary interruption in the exercise of their several occupations, it is our will and pleasure that you do cause such offenders to be brought to punishment according to the degree of the offence.’163 These instructions distinguished the ‘natives’ from ‘our subjects’, leaving the former's status distinct notwithstanding the Crown's formal claim to sovereignty over the entire Australian continent. Despite Crown sovereignty, Aborigines were regarded as apart from the colony and not usually under its jurisdiction. In earliest conception sovereignty here followed a personal form not unlike the seventeenth-century royal charters for America.
In the years that followed foundation of the colony, clashes between the colonists and Aborigines inevitably occurred and pressed the jurisdictional issue. The Governors insisted that crimes by the settlers against Aborigines should be tried in colonial courts, but convictions were difficult and sentencing light. In 1800 a frustrated Governor Hunter reported the trial of two white men accused of ‘most barbarously’ murdering two native boys. His dispatch to the Duke of Portland described the Aborigines ‘as a people now under the protection of His Majesty's Government’.164 In 1816 Governor Lachlan Macquarie issued a proclamation to Aboriginals setting out rules ‘the more effectually to prevent a Recurrence of Murders, Robberies, and Depredations by the Natives, as well as to protect the Lives and Properties of His Majesty's British Subjects residing in the several Settlements.’165 The Proclamation decreed that fighting amongst the natives and the infliction of ‘punishments on Transgressors of their own Customs and Manners at or near Sydney, and other principal Towns and Settlements in the Colony, shall be henceforth wholly abolished, as a barbarous Custom repugnant to the British Laws, and strongly militating against the Civilisation of the Natives, which is an Object of the highest Importance to effect, if possible.’ The Proclamation also invited ‘such of the Natives as may wish to be (p.160) considered under the Protection of the British Government, and disposed to conduct themselves in a peaceful, inoffensive, and honest Manner’ to hold a certificate or passport.
Officially, then, Aborigines in proximity to the settlements were regarded as subject to the colony's protective jurisdiction, at least in matters of criminal law. However this was far short of a claim to thoroughgoing jurisdiction over them all. Macquarie's attempt to interfere in tribal disputation did not purport to operate other than around the settlements. The Proclamation reflected the sense of Aborigines being outside colonial jurisdiction, except those that had voluntarily submitted to it (by certification or proximity).
In R v Lowe (1827) the defendant Nathaniel Lowe, an army lieutenant, was indicted for the murder of an Aboriginal named Jackey Jack. The defendant was represented by the redoubtable Dr Wardell and Mr WC Wentworth—an established double-act in the New South Wales Supreme Court's early days. They objected to the jurisdiction of the court on the ground that the Aboriginal was not a British subject nor an alien friend (nor even an alien enemy). Wentworth's argument cited Vattel, submitting that although the Aborigines had not settled into the shape of a nation they were still subject to the law of nations. The British ‘could not, according to any principles, have assumed any right of sovereignty over them; they are the free occupants of the demesne or soil, it belongs to them by the law of nations, anterior to any laws which follow from human institutions.’ That right, he added, was not infringed by the Supreme Court's jurisdictional statute which did not reach Aborigines. How is it, he asked, that atrocities involving them were ‘daily witnessed, almost at the Magistrates doors, and no cognizance… taken’? It was because ‘they are independent families, without any Sovereign or laws amongst themselves, besides the native customs which are peculiar to their own race.’ Chief Justice Forbes ruled that whatever the position under the law of nations the court had jurisdiction under the statute. For the purposes of this trial the deceased might be regarded as a British subject or an alien ami, but in any case he was entitled to lex loci. In short, the actual status of Aborigines remained indeterminate but the Supreme Court had jurisdiction to try their alleged murderers. As it was, the jury found Lowe ‘not guilty’ and he was escorted from the courthouse to ‘loud and general applause.’166
This case demonstrated how relations between colonists and Aboriginals were to be governed by English law, although the result and celebration afterwards showed also its largely illusory character: British justice hardly placated the ghost of Jackey Jack.167 Aboriginals continued to be tried in colonial courts, the proceedings rendered farcical by their incomprehension of legalism (which, for instance, prevented their giving evidence on oath) even after the appointment of Protectors to ensure otherwise.168
(p.161) Between 1829 and 1841 the Supreme Court of New South Wales heard three cases on whether English law applied to Aboriginal relations inter se. This was a question that Lowe had left open. The cases are notable for the change in position from the first case R v Ballard (1829) to the better-known R v Jack Congo Murrell (1836). In the first case the Supreme Court disavowed jurisdiction over Aboriginal matters inter se. The court qualified that considerably in the second case, though nowhere as much as suggested by the incomplete report published by Legge sixty years later and based upon newspaper reports.169
In Ballard (1829) the colonial Attorney-General sought the direction of the court as to whether an Aborigine could be prosecuted for the alleged murder of another, committed near Sydney. The Supreme Court ruled that it lacked jurisdiction. Chief Justice Forbes opened with the observation that this was a case that the court would have to deal with ‘upon general principles, in the absence of any fixed known rule upon the subject.’ He noted the absence of any ‘magistracy’ to enforce laws amongst the Aboriginal population and their reliance upon rigid and barbarous custom, adding ‘for reason and good sense’ in their relations with settlers English law would always apply. He was ‘not aware that British laws [had] been applied to the aboriginal natives in transactions solely between themselves, whether of contract, tort, or crime.’ If English law were to apply, he asked, where was the line to be drawn? Such interference ‘in the affairs of harmless inoffensive savages’ even if practicable would lead to results ‘as incompatible as impolitic.’ Justice Dowling made more explicit the conditions for the application of English law to the Aborigines in their dealing inter se. This passage below is lengthy but shows the emphasis put upon Aboriginal consent to an imperium over them:
Until the aboriginal natives of this Country shall consent, either actually or by implication, to the interposition of our laws in the administration of justice for acts committed by themselves upon themselves, I know of no reason human, or divine, which ought to justify us in interfering with their institutions even if such an interference were practicable. It is an undoubted principle that a Colony of Englishmen settled in a new found country shall be governed by the laws of the parent state so far as those laws are applicable to the condition of the Colony. This principle is carried a step farther, where the new found country is inhabited by aborigines. If the inhabitants hold intercourse with the new settlers then the laws of the settlers shall be appealed to in case of dispute injury or aggression, arising from the one side or the other. This rule is founded upon principles of equal justice, inasmuch as the law of England will not endure wrong or injury. The savage, or the foreigner is equally entitled to protection from British law, if by circumstances that law can be administered between Britons & the savage or foreigner. Amongst civilized nations this is the universal principle, that the lex loci, shall determine the disputes arising between the native & the foreigner. But all analogy fails when it is attempted to enforce the laws of a foreign country amongst a race of people, who owe no fealty to us, and over whom we have no natural claim of acknowledgment or supremacy.
Justice Willis would take up the same theme of consent just over a decade later in Bonjon, by which time the judgments of the American Supreme Court in the Cherokee Cases were available. The approach taken in Ballard —like the position taken in late (p.162) eighteenth-century Upper Canada by the likes of the Johnson Superintendency, Lieutenant-Governor Simcoe, and Justice Powell—anticipated the American Supreme Court's notion of a vestigial sovereignty ensuring the integrity of tribal law and authority in matters inter se.
However R v Murrell (1836) reversed that.170 Justice Burton spoke for the Supreme Court without a backward look at the earlier case. His judgment rested entirely on the assertion of sovereignty by the Crown, although interestingly the assertions relied on post-dated Ballard. This full amenability of the Aboriginal population to English law might result in ‘difficulties and inconveniences and hardships’, he said, but it would produce ‘the best results as to the Natives themselves’. If not, the local legislature or those ‘vested with the Exercise of His Royal Prerogative of Mercy’ could ameliorate the consequences.
In June 1840 a young naval officer who was to have a significant impact upon native policy in the British Empire of the mid-nineteenth century, Captain George Grey, submitted a Report on the Australian Aborigines to Lord John Russell. This report was forwarded to the Governors of Western Australia and New South Wales. Both officials accepted that Aborigines were under Crown sovereignty but each responded differently to the issue of the applicability of English law to their internal affairs. Grey noted that the Aborigines had resisted all efforts for their civilization, suggesting that those had been founded on ‘erroneous principle.’ This principle was that ‘although the natives should, as far as European property and European subjects be concerned, be made amenable to British laws, yet so long as they only exercised their own customs upon themselves, and not too immediately in the presence of Europeans, they should be allowed to do so with impunity.’ Adverting to Lord Mansfield's recognition in Campbell v Hall (1774)171 of the continuity of local law in a conquered colony, Grey proceeded:
The plea generally set up in defence of this principle is, that the natives of this country are a conquered people, and that it is an act of generosity to allow them the full power of exercising their own laws upon themselves; but this plea would appear to be inadmissible; for in the first place, savage and traditional customs should not be confounded with a regular code of laws; and, secondly, when Great Britain insures to a conquered country the privilege of preserving its own laws, all persons resident in this country become amenable to the same laws, and proper persons are selected by the Government to watch over their due and equitable administration; nothing of this kind either exists or can exist, with regard to the customs of the natives of Australia: between the two cases then there is no apparent analogy.
So Aborigines should ‘be taught that British laws are to supercede their own, so that any native who is suffering under their own customs may have the power of appeal to those of Great Britain.’172 This was a conclusion with which Governor Gipps of New South Wales had no difficulty since it reflected the position within his colony anyway, (p.163) where ‘no law, save English law, or, to speak more correctly, the law of the colony founded on English law’ was recognized as being in force.173 Governor Hutt of Western Australia was more circumspect. Any ‘attempt to make them at all times and under all circumstances in their habits and customs amenable to our laws, would be frequently next to impossible, and might have the effect of a teasing and tiresome persecution, estranging them from us.’ He added:
Captain Grey's observations have reference chiefly to the operation among the aborigines of the English criminal law, but we cannot, in justice, forcibly introduce them to this portion of our code, without permitting them to seek redress, or even requiring them to act, according to the forms and dictates of the civil law also; and for this I think we are scarcely prepared. It would indeed be productive of some singular anomalies. We could scarcely, for instance, pretend to interfere in their mode of marriage… and although we punish the aborigines for trespassing and injuring our fields and gardens, it would be in strange opposition to the hold which the Crown assumes to possess over the lands of the country, if the right of one of them was to be admitted to bring an action for the recovery of a property, which has been disposed of by the Government to a colonist.174
Governor Hutt was disposed, then, towards regarding the internal affairs of the Aborigines as not subject to English law since the practicalities as well as logical consequences of doing so were too fraught. As amongst themselves they were, in his view, better regarded as not amenable to English law.
Five years later and whilst sitting in Melbourne, then still part of the colony of New South Wales, Justice Willis declined to follow the precedent set by Murrell.175 He held that Aborigines were distinct though dependent allies, not British subjects. Not having consented to British occupation or sovereignty they were entitled to exercise their own usages and laws in their internal affairs. His judgment was lengthy compared to the earlier cases, drawing on a variety of sources and notable for its grand, self-important language. His sources included British practice in North America, New Zealand, the East Indies, and the Caribbean and as reflected in the proceedings of the Select Committee on Aborigines (1837), his references to this revealing his sympathy with the humanitarian cause. The judgment also cited Story's Commentaries, taking those passages that condensed the principles of the Cherokee Cases, and Vattel. These sources illustrated the underlying principle of consent. The Aborigines were, he said, under a state of protection, ‘a distinct though dependent people,… entitled to be regarded as self-governing communities.’ English law had no applicability amongst them until they had agreed to it:
I repeat that I am not aware of any express enactment or treaty subjecting the Aborigines of this colony to the English colonial law, and I have shown that the Aborigines cannot be considered as Foreigners in a Kingdom which is their own. From these premises rapidly indeed collected, (p.164) I am at present strongly led to infer that the Aborigines must be considered and dealt with, until some further provision be made, as distinct, though dependent tribes governed among themselves by their own rude laws and customs. If this be so, I strongly doubt the propriety of my assuming the exercise of jurisdiction in the case before me.
The judgment reserved the question for fuller argument by counsel, in the event of the Aboriginal defendant being found guilty.176 However, the judgment drew strong criticism from Chief Justice Dowling who declared that Murrell had finally settled the issue and pooh-poohed Governor Gipps’ suggestion of declaratory legislation.177 Newspapers howled and the Aboriginal Protectors protested that the best interests of their charges lay in thorough rather than partial amenability to English law.178 Governor Gipps and the imperial authorities—then also experiencing similar issues with regard to jurisdiction over Maori—agreed. The Crown's assertion of sovereignty entailed the thoroughgoing application of English law, at least in criminal matters, and left no room de jure for Aboriginal custom even in matters inter se.
(c) Southern Africa: the eastern frontier
During the first half of the nineteenth century the eastern frontier of Cape Colony was highly combustible, a tinderbox apt to ignite with the least spark. By the 1830s settler merchants were profiteering (especially in the arms trade) and had their eyes on Xhosa land across the border, greed compounded by the ongoing problem of cattle theft and the occasional bitter experience of drought. This continual disorder was compromising the authority of the native chiefs and made another outbreak of hostilities inevitable. From 1817 Governor Somerset had applied a crass reprisal policy against the colony's threatened and threatening Xhosa neighbour, but that aggravated rather than cooled the temperature. In the 1830s a well-meaning Dutch settler Andries Stockenström—destined soon to become Lieutenant-Governor of the eastern province—recommended a system of treaties as a means of rehabilitating chiefly authority and frontier discipline. The humanitarian paper in Cape Town, the Commercial Advertiser, adopted this approach which, crucially, was urged upon and taken up by the influential like-minded lobby in London. Lord Glenelg was sympathetic and issued instructions to Governor D'Urban based upon a system of treatymaking with the eastern Xhosa chiefs. However the new Governor ripped those up soon after arrival in 1834, after deftly executed Xhosa raids ignited the frontier. In May 1835 he annexed the land between the Kei and Keiskamma Rivers (called Queen Adelaide Province).179 A crucial part of his design was to maintain the integrity of the Xhosa tribes (beyond a buffer zone occupied by their freed ‘client’ nation the Mfengu or ‘Fingoes’). The tribes would retain their customary systems and laws but subject to supervening Crown sovereignty and gradually-introduced British law.
In planning to preserve Xhosa political forms and customary law, D'Urban plainly had the East Indies and North American model in mind, but shorn of the treaty (p.165) element upon which rested the Crown's claim to an imperium over those people. He founded Crown sovereignty in the Queen Adelaide Province entirely on conquest. The Governor's military chief, Colonel Harry Smith, a figure who would return to haunt the Xhosa, gathered them to this taunt: ‘You were in a lamentable way, deplorable plight; you sought and asked for mercy; it was granted you; and now you are the subjects of the most powerful nation, whose laws, manners, customs and institutions are the admiration of the world.’180
Whatever the Colonial Office model of governance D'Urban envisaged under that sovereignty was immaterial, for the omission of Xhosa consent was regarded as fatal. Moreover the Colonial Office, the humanitarian lobby looking over its shoulder and whispering in its ear, had formed the view that the Xhosa had justly retaliated to settler depradations and incitement. In a famous despatch of Boxing Day 1835 Lord Glenelg renounced British sovereignty east of the Keiskamma River, instructing D'Urban to dis-annex Xhosa territory.181 He declared that he could not admit British sovereignty rested ‘on any solid foundation of international law or justice’:
It rests upon a conquest resulting from a war, in which, as far as I am at present enabled to judge, the original justice is on the side of the conquered, not the victorious party. Even if there were the most powerful motives of apparent expediency to recommend the extension of His Majesty's dominions, which I cannot allow, yet His Majesty would never consent to consult expediency at the expense of justice…. Nor is there any one great course of events on which every humane mind dwells with such settled aversion and shame, as on that which records the intercourse between the Christian States of Europe and the heathen nations of America and Africa. I know not that a greater calamity could befall Great Britain than that of adding Southern Africa to the list of regions which have seen their aboriginal inhabitants disappear under the withering influence of European neighbourhood.182
Glenelg instructed his Governor to conclude three distinct series of treaties. These relations comprised, first, the independent Xhosa border chiefs; secondly, the chiefs of every tribe ‘to which a portion of territory is assigned within the British dominions’; and, finally, the other tribes ‘in alliance with us, or in any degree under our protection.’ One might note how these different shades of jurisdiction were straddled by a governing principle of tribal consent to Crown imperium.
As it was, the treaty system put in place at Lord Glenelg's command lasted under a decade and war renewed in the mid-1840s. Through that decade Xhosa society was disintegrating. The authority of the chiefs had haemorrhaged fatally, a process encouraged in part by Governor George Grey, the same who years earlier had written the unsolicited report on the Australian Aborigine. The new Governor Smith was the war chief of the D'Urban days, and no friend of Xhosa independence. In December 1848 his old fondness for the public humiliation of Xhosa resurfaced. He declared the former Queen Adelaide Province as the dependency of British Kaffraria. ‘I make no (p.166) treaty,’ he jubilantly informed the depleted Xhosa, ‘I say this land is mine.’183 By then the humanitarian movement had waned and no longer held the ear of the Colonial Office, and Smith's stock was so high that official remonstrance was unlikely. Conquest, a ground of sovereign title over tribal peoples that the British had so carefully avoided elsewhere for centuries, was becoming the foundation in South Africa. This was a region with its native peoples, Griqua mixed-bloods, English population, and rugged, intemperate Dutch settlers destined, as the nineteenth century closed, to become the most bitterly-fought theatre of British imperialism.
However the circumstances of the Sixth Frontier War in Cape Colony during the mid-1830s showed that at that time and in that region the established themes of British relations with tribal peoples held. As Lord Glenelg's treaty system showed, the juridical capacity of the tribes was to be recognized, even once they were under British protection or sovereignty. His approach accepted their capacity to make treaties, and contemplated preservation of their political integrity notwithstanding British sovereignty. This suggested the older model of Crown sovereignty seen already to have been applied in the East Indies and British North America in the late eighteenth century. According to this model, the continuance of customary political forms and law was not regarded as incompatible with Crown sovereignty. Indeed, the South African experience confirmed (as in Australia and Upper Canada a generation before) that in the 1830s and where tribal peoples were concerned, Crown sovereignty was regarded as more about controlling settlers than interfering with the tribes’ internal affairs. Yet, soon after, that laissez-faire approach to tribal status hardened into the less accommodating one that made British law thoroughgoing and Crown authority absolute and exclusive. Nonetheless the Southern Africa experience in this period confirmed that in British eyes consent remained the foundation for any Crown imperium over tribal people, and that any by claimed right of conquest lay in extremis.
(d) New Zealand
The Maori tribes of New Zealand came under Crown sovereignty by plainer means than the creeping character of Crown sovereignty over the Indians of Upper Canada or the late-in-the-day, after-thought manner of the Australian Aborigine. Crown sovereignty rested specifically upon the Treaty of Waitangi (1840). Under the Maori version signed by the vast majority of chiefs, kawanatanga (transliterally the ‘governorship’) was ceded to the Crown whilst the chiefs kept their rangatiratanga or chiefly authority over their people. That distinction was unnoticed and, anyway, too fine for the colonial and imperial authorities. They looked simply to the less subtle cession of sovereignty in the English text. Nonetheless in New Zealand, unlike British North America, the Crown could point to some formal measure by which it acquired sovereignty over the tribal population, however misunderstood that was by the indigenous peoples themselves.
The Crown's acquisition of the sovereignty of New Zealand was premised at all times on the original sovereignty of the Maori chiefs. In 1837, as the British pondered measures to deal with the increasing problem of lawlessness in the islands, Lord Glenelg wrote (p.167) this memorandum in which the recognition of Maori sovereignty mingled with stadialism and the humanitarian sense of obligation:184
1. It is difficult or impossible to find in the History of British Colonization an Example of a Colony having ever been founded in derogation of such Rights, whether of Sovereignty or of Property, as are those of the Chiefs and People of New Zealand. They are not Savages living by the Chase, but Tribes who have apportioned the country between them, having fixed Abodes, with an acknowledged Property in the Soil, and with some rude approaches to a regular System of internal Government. It may therefore be assumed as a basis for all Reasoning and all Conduct on this Subject, that Great Britain had no legal or moral right to establish a Colony in New Zealand, without the free consent of the Natives, deliberately given, without Compulsion, and without Fraud. To impart to any individuals an Authority to establish such a Colony, without first ascertaining the consent of the New Zealanders, or without taking the most effectual security that the Contract which is to be made with them shall be freely and fairly made, would, as it should seem, be to make an unrighteous use of our superior Power.
…[W]e acknowledge New Zealand as a sovereign and independent state, so far at least as it is possible to make that acknowledgment in favour of a people composed of numerous, dispersed and petty tribes, who possess few political relations to each other, and are incompetent to act, or even to deliberate, in concert. But the admission of their rights though inevitably qualified by this consideration, is binding on the faith of the British Crown. The Queen, in common with Her Majesty's immediate predecessor, disclaims, for herself and for Her subjects, every pretension to seize on the islands of New Zealand, or to govern them as a part of the dominion of Great Britain, unless the free and intelligent consent of the natives, expressed according to their established uses, shall be first obtained. Believing, however, that their own welfare would, under the circumstances I have mentioned, be best promoted by the surrender to Her Majesty of a right now so precarious and little more than nominal, and persuaded that the benefits of British protection, and of laws administered by British judges, would far more compensate for the sacrifice by the natives, of a national independence, which they are no longer able to maintain, Her Majesty's Government have resolved to authorise you to treat with the Aborigines of New Zealand for the recognition of Her Majesty's sovereign authority over the whole or any parts of those islands which they may be willing to place under Her Majesty's dominion …
The Crown thus recognized the original sovereignty of Maori over New Zealand. In moving towards the acquisition of sovereignty the Colonial Office considered and rejected the possibility of an approach resembling Marshall's ‘doctrine of discovery’ which would have allowed the Crown to issue constituent instruments without reference to Maori consent.187 Various lawyers of the time joined the Colonial Office in rejecting the notion of an original but limited tribal sovereignty.188 However, as the (p.168) above instructions also acknowledged, that original, unqualified sovereignty would be lost by cession to the Crown. In the case of the Maori tribes the Colonial Office did not entertain the possibility of their remaining outside the ordinary jurisdiction of English law after Crown sovereignty. The older model evident in British practice in the East Indies, British North America, Australia, and in Southern Africa was no longer viable. Crown sovereignty in New Zealand meant that in point of law (for what happened on the ground was another matter) the Crown's writ ran throughout the islands.
Upon Crown sovereignty a group styled the ‘Old Settlers’, led by the querulous former British resident James Busby, pushed for the recognition of their pre-sovereignty land purchases from Maori chiefs. A lengthy article in the Bay of Islands Observer (1841) sneered at the fondness of Sir George Gipps ‘of appealing to the law authorities of America’ according to which such purchases were invalid unless formalized by Crown grant. That rule of pre-emption was founded, they said, upon the doctrine of discovery and a limited tribal sovereignty that the Crown had renounced applying to the Maori chiefs. It had recognized their full sovereignty, an attribute of which necessarily must be the power to alienate land like any other sovereign.189 This argument cut no ice in official quarters but, as in Australia at the same time, it showed the extent to which the American case-law had disseminated through the colonies.
Soon after formal annexation the question of the amenability of the Maori tribes to English law was debated in much the same way as it had been in Upper Canada and Australia. The Attorney-General William Swainson considered the applicability of English law to feuding tribes near Rotorua, neither being signatory to the Treaty of Waitangi. A short while later he also reported on the position of two southern chiefs who had participated in the Wairau affray.
The Wairau controversy was the result of a show of strength by the Nelson magistrate, HA Thompson, who took a posse to Cloudy Bay to arrest a minor Maori chief who had destroyed some coal-working machinery that had been operating on disputed ground. In response in June 1843 the powerful Ngati Toa chiefs, Te Rauparaha and Te Rangihaeata, burnt some survey huts in the disputed land in the Wairau Valley. Captain Arthur Wakefield (brother of Edward Gibbon Wakefield, the pioneer of the then voguish theory of systematic colonization) and Thompson made a ‘ludicrous attempt’190 to arrest Te Rauparaha for arson. The chief indicated willingness to appear before ‘my pakehas’—the Sub-Protector and the Land Claims Commissioner—but his dignity would not allow arrest or manacling. Wakefield began a charge (crying ‘Englishmen forward!’) the outcome of which was his own death plus that of twentyone of his hapless squad. It soon became clear that the sorry mess was ‘brought about by the intemperance of the police magistrate, and the order given for the Europeans to advance on the natives.’ Land Commissioner Spain told the Acting-Governor that (p.169) ‘most unprejudiced persons’ would arrive at the conclusion that ‘the first act of aggression had been committed by the Europeans.’191 Consequently Ngati Toa were spared the full and vengeful wrath of English law.
Nonetheless, the Wairau incident sparked considerable debate within the young colony as to the applicability of English law to Maori. Although both chiefs had signed the Treaty, Te Rauparaha twice in fact, the Attorney-General insisted that neither could be said to have given their ‘intelligent consent’ to it. It was, he said, ‘now well known that in common with many others, they had not the most remote intention of giving up their rights and powers of dealing, according to their own laws and customs, with the members of their own tribes, or of consenting to be dealt with in all cases according to our laws.’192
Within the colony, Swainson's Marshall-like notion of a subsisting and limited tribal sovereignty initially received a cautious official response.193 Its notion of an area in which settlement was not permitted and native chiefs maintained their customary authority also had echoes of British policy and practice in the Royal Proclamation era. Whatever the germ of his position, however, it soon received short shrift from London.194 The Colonial Office view—one generally shared with the humanitarian lobby—was that the best protection of Maori interests came from their status as British subjects and the protective mantle of Crown prerogative. Crown sovereignty, once asserted, meant that English law was thoroughgoing, certainly in matters of criminal law. The answer, James Stephen insisted, was not in the rigid so much as selective application of English law:195
These people may be the Queen's Subjects without being subject to the Law of England. I know not what hinders the Enactment of a Law declaring that in all their dealings and relations with each other they shall still live under Native Law and Native Custom, with an exception only of such Customs as are directly opposed to the universal Laws of morality; as for example Cannibalism and Human sacrifices. This may not be a perfect solution; but I believe it to be the best possible solution of this difficulty.
An exasperated Stephen repeated this observation several weeks later when he stated that he did not know why the ‘Native New Zealanders might not be permitted to live among themselves according to their National Laws or Usages, as is the case with the (p.170) Aboriginal races in other British Colonies …’.196 Those administering English law should do it without hindrance ‘by the spirit of legal pedantry from which no English society is ever emancipated, and by the contempt and aversion with which the European race everywhere regard the Black races.’197
The Native Exemption Ordinance 1844 put that policy into operation. It applied to criminal offences by Maori committed outside the limits of a town.198 Where the dispute involved Maori parties only, the assent of the Protector of Aborigines was necessary before a warrant could issue. He, in turn, would liaise with the relevant chiefs, who would receive compensation if they agreed to the criminal proceedings.199 Settlers were hostile towards this exemption of Maori from English criminal law.200 The chiefs quite properly saw it as reinforcing rather than challenging their mana. To them it signified their exception rather than subjection to English law.
In New Zealand Governor George Grey successfully solicited suspension of the full application of the imperial legislation201 and ensuing instructions (1846) which allowed the setting apart of districts wherein Maori custom would operate.202 Unwilling to have settlers even notionally amenable to tribal law, he sent Resident Magistrates into Maori areas to adjudicate on Maori offences and civil matters with the assistance of tribal assessors.203 These ‘modifications of the British law’ were, he told the Legislative Council, ‘at the same time calculated to accustom [Maori] by degrees to take an active part in the administration of the laws of their country.’204 For Grey, Crown sovereignty was all.
A few years after the Wairau affray, an imperial statute, the New Zealand Constitution Act 1852, authorized the proclamation of districts within which Maori custom would run.205 This power was never used,206 although, like the 1846 statute, it plainly contemplated a Marshall-like approach towards the chiefs’ authority and the internal viability of Maori custom within specified areas. The difference was, of course, that this was a consequence of legislative concession rather than judicial subscription to a common law model of residual tribal sovereignty or exception from English law. In 1861 the Crown Law Officers advised that even if tribal law could regulate Maori relations inter se within those districts it could not be extended to Europeans.207
… [t]he natives were, in fact, left as free to follow their own devices as they had been before the British settlement came to be scattered on their shores. From the foundation of the Colony till the breaking out of war in 1860, only eleven Writs of Summons had issued out of the Supreme Court against Maories [sic], and in only one of these cases had the proceedings gone further than the Writ of Summons. There was one instance of an injunction being moved for against a Maori Chief, and that had been refused as absurd.
Likewise Governor Gore Browne criticized the fiction that English law applied throughout the colony:209
English law has always prevailed in the English settlements, but remains a dead letter beyond them … Government has been continually exposed to contempt from being unable to perform its duty, and has been driven to extemporize, and ignore aggression or crime which it could neither prevent nor punish.
The answer, he said, lay in giving the Governor more, not less authority and resources such as those that his predecessor Sir George Grey had had at his command.
Such accounts and the response to the Wairau affray demonstrate how officials dealt with the notional applicability of English law and the reality of the difficulties in actually extending it into tribal affairs. English law protected the tribal peoples—or at least it claimed to—but it also made them amenable to its reach. At least in the first twenty years of the colony more controversy lay in the theoretical application of English law to Maori than in the reality of its general non-application.
This policy of the selective application of English law to aboriginal peoples in British colonies was essentially a mid-century one that was also being applied in other colonies in Australia and British North America. Governors of colonies were advised to temper the application of English law to tribal peoples with moderation. In retrospect this can be seen as a bridge between the legalism of the jurisdictionalism of the seventeenth and eighteenth centuries and the invasive legislative regimes that appeared in the late nineteenth.210
In Wi Parata v The Bishop of Wellington (1877) the Supreme Court of New Zealand dismissed the principle of original Maori sovereignty that the Colonial Office had stressed during the 1840s. ‘No body politic existed’, said Chief Justice Prendergast, ‘capable of making cession of sovereignty nor could the thing itself exist.’211 The court went beyond Marshall's doctrine of a subsisting but limited tribal sovereignty to a denial of any original sovereignty whatsoever. That denial of juridical status to the tribe logically would have meant that Maori were to be considered as individuals and their form of political association—the tribe—no more than a mere collection of individuals. Yet later in the judgment that status as individuals and its necessary concomitant, British subjecthood, were implicitly denied. Relations between Crown and Maori were, he said, ‘to be regarded as acts of State, and therefore are not examinable by any (p.172) Court’.212 The Chief Justice had applied the non-justiciable principle of the early nineteenth-century East Indies case-law to the New Zealand context, paradoxically depicting Maori as though they were engaging in fact with the Crown as sovereignto-sovereign whilst simultaneously denying them that legal status originally as well as residually. Although consistent with the general principle of the time denying status to aboriginal polities and rights,213 that position controverted the by then long-established rule that there could be no act of state by the Crown against its own subjects.214 However, his approach seemed nonetheless to have recognized the reality of Maori political organization and Crown dealings with the tribes. Arrangements between Crown and Maori tribe, specifically agreements attaching to the cession of land, ‘although not to be regarded as properly a treaty obligation, [were] yet in the nature of a treaty obligation.’ This result, one which left Maori with the status neither of sovereign tribes (or at least recognized political entities) nor as individuals with the rights of British subjects, constituted ‘an extraordinary branch of the prerogative’ which arose ex necessitae rei.215 By those means the Chief Justice was able to underline his holding that ‘in the case of primitive barbarians, the supreme executive Government … of necessity must be the sole arbiter of its own justice’.216 These were precisely the same words used by Justice Johnson forty years earlier in Cherokee Nation v Georgia.
It should be added that the stance adopted de jure did not necessarily reflect colonial conditions de facto. For example, the journal of Henry Sewell, an English lawyer sent out to represent the Canterbury Association who became an eminent local politician (including being Premier for a few days in 1856), recorded numerous incidents highlighting the difficulty in translating the legal theory into reality. The Maori tribes were a vital and disputatious lot, hardly likely to abandon their customary ways because of Pakeha legalities. For most of the nineteenth century the central North Island remained territory in which the royal writ ran no more than notionally. In the end the building of roads and railway were ‘the true form of aggression upon native territory’.217 If anything Wi Parata highlighted that gulf between the legal fiction of all-encompassing Crown sovereignty and the reality of tribal authority and mana.
The obstreperous Old Settlers who wrote to the Bay of Islands Observer were but the first of a long line of colonial inhabitants who noted that gap between treating Maori as if they had rights as political entities led by chiefs and the legal denial of it. Maori also noticed the gap. Land was, of course, the source of this discontent, especially as access to it was based upon the Crown's exclusive (or pre-emptive) right to acquire land from the tribes. Even Governors like Sir George Grey, who used that power aggressively, could not quench the demand as the settlers—and, frequently Maori (who regarded the Crown as the biggest land-jobber of all)—argued for the capacity of chiefs to cede a valid title directly to settler purchasers. As the Supreme Court stressed in Symonds, that rule had been designed both to protect Maori from sly speculators and to ensure (p.173) orderly European land titles. For over twenty years, settler, Maori, churchman, and speculator railed against the pre-emptive rule and its foundation in a sense of Maori juridical incapacity. Yet imperial and colonial officials would not budge. The power to alienate land, Richmond the colonial Minister for Native Affairs told the Lord Bishop of Wellington in 1860, ‘is the offspring of a highly artificial state of society.’ He added that ‘its exercise in the endowment of religious bodies, has by every civilised state been rendered subject to jealous restrictions, evere [sic] when the intending donors are persons sui generis, which the natives can scarcely be considered to be.’218
Despite the ill-will that its principles generated, the judgment in Wi Parata reflected the received position in New Zealand and other British colonies of the same period. It prevented Maori recourse to the courts to vindicate the aboriginal property rights guaranteed under the Treaty of Waitangi, leaving that role to the Crown as their legal protector. The Privy Council was later to recognize original Maori sovereignty,219 but this made little difference to the justiciability of their aboriginal claims. Whatever rights Maori held subsequent to Crown sovereignty were regarded judicially as arising from statute rather than the common law.220 New Zealand courts thus reached the same position as the Canadian and the Australian.
(e) British Columbia
British settlement of the western coast of the American continent began in the 1840s. Once the Oregon Treaty between Britain and the United States (1846) had settled the boundary question in the west, the Hudson's Bay Company was prevailed upon to form a settlement colony on Vancouver Island in order to cork any northward push from the burgeoning republic. The Company's charter of 1670 did not extend to the coastal area and so a charter was issued for settlement on Vancouver Island (1849) (at what became ‘Fort Victoria’).
The formation of a new British colony followed on the heels of the annexation of New Zealand, the experience of which influenced practice in the Pacific north-west. By that time the humanitarian influence was waning and colonial policy was more amenable to the corporatist elements it had resisted in New Zealand. James Stephen, on the verge of retirement, successfully parried the proposal to grant the entire ‘Oregon Territory’ to the Company and refused, as he had in the South Australia and New Zealand settings a decade before, to countenance a proprietary or corporate form of governance. These were now anachronistic, he felt, and the only type available was the representative Crown colony form that had been refined over nearly a century.221 Nonetheless despite the resistance to ceding all control to the Company, the Colonial Office was still able tacitly to adopt a version of the Marshall doctrine of discovery such as City interests had urged years before in the New Zealand setting. There was no insistence upon obtaining a cession of sovereignty from the hwulmuhw (people of the land) after the manner of the Treaty of Waitangi. The British overlooked this matter and (p.174) based their sovereignty upon the Oregon Treaty, a sign not only of James Stephen's retirement but that broader international interests would out-trump the tribal. The 1849 charter itself as well as the Colonial Office and Company headquarters made the usual avowals of protecting the tribes’ welfare and bringing them the benefits of British settlement. The formal grant simply recited that it ‘would conduce greatly… to the protection and welfare of the native Indians residing within that portion of our territories in North America called Vancouvers Island, if such island were colonised’ under aegis of the Hudson's Bay Company.222 The use of the term ‘our territories’ showed that the Crown already regarded itself as sovereign of the island and its inhabitants.
In this new colony the corporatist elements that had been suppressed in New Zealand a few years before now took stronger profile.223 In large part that was due to the influence of Governor James Douglas, a man of immense physical as well as political presence.224 Once the ineffectual first Governor, Richard Blanshard, had been seen off, Douglas, Chief Factor for the Company, took office and for a good while represented both Company and Crown. Blanshard had treated hwulmuhw as a force to be overwhelmed by military might, an approach that Douglas, well-versed in the dynamics of the coastal fur trade, deplored. Douglas never doubted that under the charter of 1849 English law applied to hwulmuhw and that the tribes were to be treated as British subjects. Secretary of State Sir George (later Earl) Grey had written to him acknowledging that the ‘Law of England for all Criminal and all important Civil purposes is without doubt in force in the island [Vancouver]’ but its enforcement was up to his ‘judgment and discretion’.225 Like his equally canny and manipulative colleague in New Zealand, Sir George Grey, Douglas realized that the manner in which it was made to apply in matters of criminal law especially was key.226 It was not a question of technical amenability—for that was beyond doubt—so much as a matter of modulation, as James Stephen had reminded colonial officials throughout the 1840s. Douglas accepted the notion of Crown trusteeship—as his policy on extinguishment of aboriginal title demonstrated—and the role of the Crown's representative as being placed between aboriginal subject and settler. That was a role that became harder to sustain as the colony grew and the conflict of interest with his Company position more plain.
(p.175) The charter of the Company was surrendered in 1858 when the British government passed an Act establishing direct rule over Vancouver Island and the mainland colony (formerly New Caledonia and now British Columbia).227 With the termination of the Hudson's Bay Company's control Douglas also relinquished his ties with the Company. The formal instruments issued to Douglas in 1858 made no reference to Indian policy;228 however his general instructions from Lytton advised him to find the ‘best and most humane means of dealing’ with the aboriginal inhabitants. The instructions deferred entirely to his assessment of the best means of managing aboriginal policy. The prevention of affrays between settlers and natives was ‘of so local a character that it must be solved by your knowledge and experience, and I commit it to you in the full persuasion that you will pay every regard to the interests of the Natives which an enlightened humanity can suggest.’229 He was told that the ‘feelings of this country would be strongly opposed to the adoption of any arbitrary or oppressive measures’ towards the tribal inhabitants and that sufficient land should be reserved for them, but otherwise he was given a free hand.
There was no attempt by the Colonial Office to control native policy in British Columbia such as it had insisted in the Canadas, New Zealand, and southern Africa. By the time of the gold rush in the mid-1850s and the erection of a second colony on the mainland, Douglas had kept such a tight and sure-handed rein on Indian relations that there was no question of the Colonial Office clawing back control of an area that in other colonial jurisdictions it was on the verge of ceding to local control. He had shown himself adept in the public display of the even-handed administration of the criminal law, as, indeed, in the management of Indian affairs at large. Indeed, some ill-disposed settlers thought him a better manager of Indians than settlers. Douglas’ example, like that of Sir George Grey, undoubtedly contributed to the willingness that appeared in London in the late 1850s to relinquish control of native policy to the men and lawmakers on the spot. In 1861 the colony requested money to extinguish Indian land titles. The Duke of Newcastle declined, stating that while he ‘was fully sensible to the great importance of purchasing without loss of time the soil of Vancouver Island… the acquisition of title is a purely Colonial interest, and the Legislature must not entertain any expectation that the British taxpayer will be burthened to supply the funds.’230 Plainly this was the old insistence that colonies were to be self-supporting, a grumble about financial stringency that was particularly strong at that time when British military resources were stretched everywhere across the Empire. In addition imperial officials did not regard it as their obligation to defray the expenses of government in a colony flush with gold.231 The ease with which that position was taken, however, also reflected the extent to which native policy was now regarded as a local matter de-coupled from imperial control.
(p.176) In the long run that detachment frayed in British Columbia the thread of continuity that had been running through governmental relations in the colony and with aboriginal societies in other parts (except Australia). Crown sovereignty over hwulmuhw was erected without reference to their consent and treated as absolute in character, a pattern not unlike that taken in Canada in the 1820s and ’30s when Crown sovereignty was based on the Treaty of Paris (1763) rather than actual submission by the First Nations. There was an early recognition of aboriginal title when Douglas was Governor (until retirement in 1864), a pattern that was again consistent with the Canadian as well as New Zealand one. After that aboriginal land policy did not follow the pattern of cession or individualization of the other North American jurisdictions and New Zealand.232 In British Columbia, as in the other British colonies, the management of aboriginal affairs remained a matter of high executive discretion, but that discretion had been less subject to review by London during the 1850s. So long as Douglas had access to Company assets he had financial leverage with which to negotiate land cessions (all of which were on Vancouver Island) on the New Zealand template. But once that went he found imperial authorities would not supply the financial wherewithal and the settlers refusing also to dig into their pockets for a matter they regarded an imperial responsibility (provision of land for settlement). Joseph Trutch, the powerful Chief Commissioner of Lands and Works under Governor Frederick Seymour's administration, followed an aggressive policy of removing aboriginal owners from their land, leaving them with minimal reserves. Governor Seymour and his successor Anthony Musgrave condoned the actions of this administrator who effectively drove Indian policy in the colony, not least because of its popularity with the settler community.233
As British Columbia negotiated for entry into the Confederation, Indian leaders hoped for an extension of the treaty system applied east of the Rockies. When the colony joined (1871), aboriginal rights were mostly kept out of the picture234 except for article 13. It stated that ‘the charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, shall be assumed by the Dominion Government, and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after the union.’ The Terms of Union recognized the Dominion's special constitutional responsibility towards First Nations. However, there was a perverseness in the apparent implication that the British Columbia policy was more liberal than the Canadian. Trutch, now the province's first Lieutenant-Governor, was delighted it preserved the pre-Confederation ways.235
(p.177) His native policy, with its wilful disregard for aboriginal rights and refusal to go through even the motions of recognition of aboriginal title, has been a controversial and heavily criticized legacy. His aggressive policy of assimilation—which also involved corralling aboriginal peoples onto small, out-of-the-way reserves for their own ‘protection’—was consistent with settler designs. Once local legislatures of all jurisdictions started passing laws for the management of aboriginal affairs they followed aims very similar, indistinguishable indeed, from those of Trutch.
* * *
During the eighteenth century there emerged the notion of a Crown trusteeship over non-Christian people; however the character of that trusteeship was initially as vague as the nature of Crown sovereignty itself. The position initially taken was that the princely states of India and the North American tribes remained distinct political entities under their own laws, at least in their internal relations. That model of retained political status was also applied in Australia, southern Africa and, briefly but ineffectually, in New Zealand. It contemplated aboriginal tribes as lying outside the ordinary jurisdiction of colonial law in their internal affairs where their indigenous law continued to operate. During the second quarter of the nineteenth century that model was eventually rejected in all the British jurisdictions although in the United States it was recognized by the Marshall Supreme Court in the Cherokee Cases of the 1830s. Those cases characterized the independent tribes of America as ‘domestic dependent nations’ with a vestigial sovereignty entitling them to continue to govern themselves under tribal law. The Colonial Office and humanitarian movement were hostile to this approach and insisted that Crown sovereignty did not bring the tribes under a mere Crown ‘protection’ that left intact their customary political forms and legal ways. Crown sovereignty made them amenable to English law in all matters, criminal in particular. The notion of Crown trusteeship therefore moved from an earlier form in which it mostly meant the protection of tribal peoples as organized societies and ‘allies’ under ‘protection’ or simply beyond colonial jurisdiction. This was an approach reflecting the actual political condition of the highly various native polities at the time—their strategic importance in Canada, their vitality to revenue collection in the East Indies, their peripherality in Australia, their dominance in New Zealand. Although not cast in the same juridical terms, it was also consistent with the approach of the Cherokee Cases. But as British control of their territory consolidated, so did the new model of thoroughgoing Crown sovereignty become easier to apply. A more exclusive and acute notion of Crown sovereignty emerged, one unprepared to tolerate the imperia in imperio that the older approach had countenanced. The model in place by the mid-1840s was now one in which the trusteeship was over aboriginals as a collection of vulnerable individuals, all subject to English law and about to become ‘civilized.’
According to the notion of trusteeship formed during the second quarter of the nineteenth century, relations between the Crown and aboriginal peoples were an aspect of the prerogative. This made the relations inherently political in character, the Crown alone holding the legal capacity to represent the tribal or collective interest. The ejectment of squatters from aboriginal land and protection of aboriginal land from (p.178) wandering stock were two issues of immense importance in colonial British North America and New Zealand. Yet these were legally regarded as matters for the Crown and its officers charged with protecting the aboriginal peoples’ interests. In those situations, aboriginal peoples could not themselves bring proceedings to protect their collective rights. The Crown was the legal guardian of aboriginal peoples with the legal standing to protect the rights held by aboriginal peoples as a group. Special officers were appointed to protect their interests in the field, courts, and towns. Tribe members were subject to English law in all matters, especially criminal and, notionally, even their civil affairs. Imperial and colonial authorities did not regard this subjection to English law as oppressive or limiting but vital to their protection and eventual introduction to civilization.
However, as Governor Hutt of Western Australia had indicated, the logical corollary of that amenability was that English law governed all tribe members’ affairs, including marriage and land-ownership rather than simply being a matter of criminal jurisdiction. As it was, that scenario was hardly tested in the early Victorian period when management of aboriginal matters remained with the Governor and London. When London abandoned the control of native policy those protective duties were transferred to the colonial legislatures. The legal regime these authorities inherited was thus largely inspecific in that it was premised upon a vague notion of guardianship that had been erratically and unevenly applied, mostly through the ineffectual offices of Protectors. It was hardly surprising that once jurisdiction over native affairs was granted to them, the colonial legislatures set about erecting more precise statutory regimes informed by what they regarded as best for the tribes and, it need hardly be added, themselves. In 1842 Governor Hutt had taken for granted the integrity of tribal culture, but a generation later that was the very feature that the colonial legislature, assuming the trustee mantle, would attack. This legislation gave the vague sense of guardianship that had applied in Colonial Office days a more robust juridical form based on the policy of assimilation as well as setting procedures to make native land available for settlement. In the first half of the nineteenth century, the 1830s to 1850s in particular, the imperial authorities’ assertion of a guardianship role had been as much about the domestic politics of accommodating the strident humanitarian movement as the actual condition of aboriginal people. That pressure had lessened considerably by the 1860s when colonial legislatures obtained jurisdiction in the field. But the rhetoric of protection remained even after the transmission of jurisdiction. It was now issuing from different, more local, and vastly less disinterested mouths.
6. The encroaching Empire(s) of Uniformity: native polities under legal siege from the mid-late nineteenth century
During the second half of the nineteenth century the subjection and control of aboriginal peoples became the dominant theme of the jurisprudence of North America and Australasia. Those themes were the archetypal end of positivist or formalist legal method with its emphasis upon prediction and control. Positive law articulated the prevalent liberal belief in the capacity of the native to assimilate into the general ‘civilized’ population. There was a clear and growing belief during the second half of the nineteenth century that laws could and should set up mechanisms for that process of (p.179) cultural transformation. This is not to say, of course, that the aboriginal peoples were tamed by legal positivism, so much as to observe the assistance and timeliness of its influence in accomplishing that juridical containment.
From the late nineteenth century there began to grow a body of case-law on aboriginal rights. This begun the formation of a corpus of law in the modernist sense of the growth of doctrine. From an earlier period, where aboriginal relations were conceived as a matter of high prerogative for the discretion of the metropolitan authorities, litigation to an appellate level now became a more regular feature in New Zealand and Canada. This willingness of the aboriginal peoples of those jurisdictions to resort to the courts was doubtless a consequence of their sharpened perception of their status as subjects of the Crown. The United States had established its litigious pattern fifty years earlier, though there the tempo also increased considerably during the late nineteenth century. As important, however, as the practice of the courts was the wider national political culture wherein the notion of sovereignty itself was becoming more heavily juridified and positivized, and where law was being used more aggressively as a vehicle for social and cultural transformation.
In the mid- to late nineteenth century the demand for aboriginal land was at its most feverish pitch. The settlers’ vociferous demands for land occupied by the ‘indolent’ aboriginal peoples coincided with the high period of Euro-American state nationalism, a development brewing the positivization of sovereignty into a modern liberal democratic form. The notion of sovereignty which was hardening in Anglo-American jurisprudence was drawn both from international and domestic political experience. It was one that positivistically stressed the unified and centralized location of ultimate constitutional authority. The state was Leviathan presiding over its Empire of Uniformity wherein alternative sites of political authority were not to be tolerated. The American courts may have already committed themselves to a divided sovereignty ’twixt government and tribe; however they now glossed that with a more recent doctrine of Congressional plenary power. Congress, the courts now held, had an overriding legislative authority allowing it to abrogate treaties and extinguish tribal rights (such as the aboriginal title). This new development reflected the Austinian idea of an ultimate or paramount sovereign and, in reaching it, the Supreme Court converted what was no more than a perception—largely an inaccurate one—of Congressional practice into constitutional doctrine. In New Zealand the courts simply denied the Maori tribes any original as well as subsisting juridical status, an approach also taken in Canada (although the courts were more ambivalent there on the question of subsisting tribal property rights). Nationalism and liberal democracy pervaded legal doctrine. By positivizing sovereignty—by setting what had been a fluid, historically contested, and contestable concept into a hardened legal form requiring an ultimate constitutional authority—the traditional political forms of the tribal peoples were juridically eliminated.
In England itself Albert Venn Dicey's famous and highly influential236 work The Law of the Constitution (1885) showed the extent to which the positivizing tendency (p.180) that had been heralded by Austin237 (1832) had matured. Neglected in his own time, Austin's moment had now come. Dicey's account was hardly aimed at the indigenous peoples of the British Empire but it was the most significant expression of the common law's positivization of sovereignty. Its consequences for Crown sovereignty in the colonies were clear. Dicey distinguished legal from political sovereignty, the former being a rigid set of legal rules pedestalling the ultimate and unimpugnable authority of the Crown-in-Parliament (being Westminster, the Mother of Parliaments). Political sovereignty represented what had come to be known as popular sovereignty, the authority conferred upon the ruler by the ongoing consent of the people. Dicey's formulation sought to reconcile the hierarchical with the popular elements of the British constitution. This was a tension that the Glorious Revolution (1688) had hardly resolved so much as housed. The Revolutionary Settlement essentially replaced one professed absolutist power (a monarch alleging the Divine Right of Kings) with another (Parliament). It was also a tension that had been radically exposed by the American Revolution, and resolved by the Founding Fathers who vested sovereignty in the people. Nonetheless Dicey's work showed how what had formerly been a broad discourse concerning the nature of political authority in Britain, a discourse layering legal and other languages, had been reduced by lawyers into doctrinaire Austinian absolutism.
After Dicey the common law notion of Crown sovereignty was now rigidly divided into ‘legal’ and ‘political’ zones. The legal side was ring-fenced and rendered indisputable by the late Victorian common lawyers who took the baton from the great Whig historians of the generation before. These historians had produced epic accounts of a Parliamentarily-blessed nation whose representative institutions blazed a trail of historical glory through the centuries.238 In addition lawyers were organizing as a disciplined and university-trained profession with a system of organized law reporting and a much more clearly articulated doctrine of precedent.239 In the academy law had recently separated from history, meaning that ways of thinking which once were indistinguishable—at once legal and historical—and which had facilitated the earlier broader discourse on the nature of political authority were now different disciplines. There was by the late nineteenth century a legal notion of sovereignty doggedly apart from that which those outside the strict common law parameters conceived sovereignty to be. One arena might have had a dynamic element to it—the ‘political’ one—but the other embodied un-negotiable common law premises shoring up the authority of the Crown. This was Dicey's legacy. He put the legal sovereignty of the Crown into an ahistorical zone where, like the power of the Christian God, it radiated eternally beyond historical validation.
(p.181) During the last half of the nineteenth century more specific legal regimes were established to replace the vague guardianship that London and its Governors had recently and (in colonial eyes) ineffectually applied. In North America and New Zealand continued recognition of the aboriginal property rights of the tribal nations was now regarded as an initial but essentially transitional step. Native people were expected to achieve full legal and political equality through the adoption of individual land-ownership. This had political overtones as well as reflecting the assimilation policy. Individual property ownership would enfranchise the de-tribalized individual with the full set of civil and political rights of the British subject. This calculated attack on tribalism also had the not unrelated benefit of taking land out of native ownership. America's Indian Commissioner Crawford had mooted the policy of individualization as early as 1838. He said:
Common property and civilization cannot co-exist… At the foundation of the social system lies individuality of property. It is, perhaps, nine times in ten the stimulus that manhood first feels. It has produced the energy, industry, and enterprise that distinguish the civilized world, and contributes more largely to the good morals of men than those are willing to acknowledge who have not looked closely at their fellow-beings… If… the large tracts of land set apart for them [the Indian nations] shall continue to be joint property, the ordinary motive to industry (and the most powerful one) will be wanting…240
That sentiment and theme of individual property ownership endowing a man with social, economic, and political standing recurred regularly through North America and Canada in the late nineteenth century.
(a) British colonies
By the mid-nineteenth century British colonial law and practice had left the jurisdictionalism of earlier times for a more thoroughgoing notion of Crown sovereignty precluding aboriginal tribes and individuals any vestigial juridical status. That practice did not necessarily match the reality of colonial politics of the time: in Canada during the mid- and late nineteenth century official treaty-making continued in the western prairies, in particular the Numbered Treaties of the prairies signed between 1871 and 1905. Until the end of that century New Zealand's central North Island, despite the denial de jure of tribal sovereignty, was de facto an autonomous zone governed by Maori chiefs, and though these tribes were denied juridical status the region was to all intents and purposes treated as such in the practice of the Anglo-settler state.241 Thus even whilst the legal dogma of Canada and New Zealand was denying the status of the aboriginal nations de jure, colonial officials were still finding themselves required de facto to recognize the traditional forms of political organization. The conferral during the mid-nineteenth century of legislative competence over native policy resulted almost immediately in the Anglo-settler colonies attacking the political organizations of aboriginal peoples, most especially in Canada and New Zealand (p.182) where the ‘native problem’ was more pressing than Australia. The core of the policy euphemistically described as ‘assimilation’ or ‘civilization’ lay in the dismantling of the traditional political forms of aboriginal life. These regimes did not envisage any role, beyond at best a transitional, temporary one, for the indigenous, tribal form of self-management. Yet somehow those customary forms did survive and adapt in differing ways that interacted with without succumbing wholly to the legal framework about them. In the pattern of the aboriginal peoples’ subjugation lay the shape of their resistance.242
Early legislation passed in Canada relating to Indians and their land largely concerned trespass by settlers and underlined the Royal Proclamation (1763) which prohibited the direct purchase of land from its native owners. By 1844 the management of Indian affairs in Lower as well as Upper Canada243 was entrusted to the Governor's civil secretary (public servants whose presence in Canada coincided with the tenure of the Governor they served) and had ceased to be a matter of military control. In 1860 the imperial authorities approved provincial legislation244 which transferred control of the Indian Department to the provincial government and legislative competence to the provincial legislature. The earlier, post-Treaty of Paris (1763) military and strategic orientation of the Crown's Indian policy in Canada changed in the early–mid nineteenth century towards one of subjection and control or—to use the phrase of the time—‘civilization’ of the native. Until the 1830s ‘the course which had hitherto been taken in dealing with these people’, observed Sir George Murray, ‘… had reference to the advantages which might be derived from their friendship in times of war, rather than to any settled purpose of gradually reclaiming then from a state of barbarism and of introducing amongst them the industrious and peaceful habits of civilized life.’245 From that time ‘civilization’ became the dominant theme of Indian policy, a policy largely effected through superintendents who were Crown officials, responsible to the Governor and, through him, Colonial Office, for the management and supervision of Indian affairs on reservations. Acts passed in Nova Scotia in 1842246 and 1859247 appointing a Commissioner for Indian affairs whose duties included the supervision and management of reserves were early examples of this assumption of legislative control by colonial authorities.248
The Gradual Civilization Act (1857) passed by the Assembly of the United Canadas advanced the belief that civilization could only be achieved through the introduction of individualized property. The Bagot Commission on Indian Affairs had argued this (p.183) in 1844249 but the following year tribal councils had rejected the concept of reserve subdivision. This meant that ‘qualified’ Indians would have to be in a position where freehold tenure was available, or, in other words, enfranchised.250 This Act provided that a special board of examiners could determine that an application from an educated, debt-free Indian of good moral character could result in the award of twenty hectares of land and the rights accompanying it, including the vote.251 As it was, only a handful of Indians came forward, from whom one application was accepted.252 Also it is probable the Act was outside the jurisdiction of the Assembly, which, anyway, obtained power to legislate for Indian affairs in 1860.
At Confederation the British North America Act 1867 gave the federal government legislative jurisdiction over ‘Indians and lands reserved for Indians’. The position of the Indian people had not detained the founders of the Canadian federation although the first Prime Minister, John A Macdonald, advocated the policy of assimilation. By then colonial officials had formed the strong view that the Indian chiefs had blocked the success of the enfranchisement programme. The chiefs were depicted as clinging to their traditional authority so as to shore their status and impede the progress of ‘civilization.’253 As a result the Gradual Enfranchisement Act was passed in 1869.254 It provided for the election of chiefs and councillors by all male band members over the age of twenty-one according to dates, procedures, and other stipulations set by the Superintendent General of Indian affairs. The council was empowered to pass by-laws subject to the confirmation of the Governor in Council. These powers covered a variety of matters best described as municipal in character, ranging from public health, through cattle trespass and dog pounds to maintenance of roads, and construction of schools and council houses. The Act established the central principle of Canadian law for over a century, namely the federal control of on-reservation governance.255
An official of the time described the purpose of the legislation in this way:
The Acts framed in the years 1868 and 1869 relating to Indian Affairs, were designed to lead the Indian people by degrees to mingle with the white race in the ordinary avocations of life. It was intended to afford facilities for electing, for a limited period, members of bands to manage, as a Council, local matters; that intelligent and educated men, recognized as chiefs, should carry out the wishes of the male members of mature years in each band, who should be fairly represented in the conduct of their internal affairs. Thus establishing a responsible, for an irresponsible system, this provision, by law, was designed to pave the way to the establishment of simple municipal institutions.256
(p.184) The Indian Act of 1876 was a consolidating measure257 and had national application, its provisions remaining the most important governing code for Indian peoples and polities in Canada for nearly a century (until re-consolidated in 1951). The 1876 statute built upon and fortified the earlier laws denying traditional structures of political authority any inherent legal status. The Act repeated the formula through which native peoples living on reserves could obtain individual property rights so as to assume the responsibilities of civic life. First and as noted earlier, their traditional form of group organization was legally obliterated. The traditional hereditary system of band government remained supplanted by a statutory elective one, a measure that set the scene for decades of internecine on-reservation conflict over the two modes of governance.258 The band was given limited powers of self-management under the Act259 but these fell far short of self-government. Those curtailed powers were anyway subject to the supervision of the Crown's officials—its ‘agents’ who lived on the reserve and practically controlled most if not all of Indian life on behalf of the Minister. The Indian Agents managed the land and monies for the Indians (the band council having limited powers of consent). Under the Indian Act, these czars also had vital roles as the Minister's representative in the surrender process (alienation of reserve land), administration of Indian estates, and prohibition of the consumption of liquor.
Indian unresponsiveness to the civilizing features of the Indian Act meant that in practice the reserves became fiefdoms of the federal Indian Agents. The management of Indian affairs became substantially a matter at the discretion of the various Agents administering the reserve, its people, and assets under the shell provisions of the Act. In that sense the actual on-reserve administration of the Indian Act transformed the nineteenth-century legal dogma into an eventual grim reality as Indian enterprise and self-government became de facto as well as de jure severely stifled. The Indian Act may have recognized a corporate form of Indian governance, but in an elective, non-traditional mode the effectiveness of which, anyway, was neutralized by the overbearing power of the Minister's representative, the Indian Agent.
The Indian Acts reduced the territorial First Nations into statutory ‘bands’ located on particular reserves. This statutory form of group identity bore no relationship to the larger nation. Indeed, dissolution of the First Nation into these smaller units was regarded as a step towards the complete disintegration of the tribal tie. This fragmented and weakened the First Nation, to the extent that during the twentieth century, Indian Act bands became the primary form of tribal representation. The Royal Commission on Aboriginal Peoples (1996) described the impact upon aboriginal politics. ‘In the case of First Nations… one of the effects of the band orientation of the Indian Act has been to foster loyalties at the level of the local community, at the expense of broader (p.185) national affinities arising from a common language, culture, spirituality, and historical experience.’260 For First Nations organized under the Indian Acts, the band had become ingrained into their identity-practices and politics even as they negotiated movement into new political structures at the end of the twentieth century.261
(ii) New Zealand
In New Zealand, as in British North America, the Colonial Office had attempted to retain control of native policy as long as possible. The New Zealand Constitution Act 1852 gave the colony a representative legislature but Section 73 of this Imperial Act specifically preserved the Crown's exclusive right to extinguish the aboriginal title by purchase or cession from the native owners. The same Act had allowed for the setting aside of ‘districts’ in which Maori customary law would apply, but initially Governor George Grey declined to use this power262 which was clearly founded upon the established American practice.
As it was, a model that used or, rather, started from Maori custom was established later by Grey upon his return to the colony. These ‘new institutions’ were based upon two colonial statutes of 1858, the Native Circuit Courts Act and Native Districts Regulation Act. Henry Sewell commented in 1861 that ‘It is not government but self-government which is to be introduced.’263 The scheme involved village runanga (councils) under the direction of Pakeha Resident Magistrates, and district runanga under new officers (styled Civil Commissioners) empowered to make by-laws. The Pakeha officers were commissioned as Circuit Court Judges, who, sitting with Maori Assessors, would enforce the laws. The Resident Magistrates and runanga were also charged with determining tribal, hapu (genealogical sub-tribe), and whanau (family) interests in land. Once that ownership had been confirmed by Crown grant they could authorize sale of the land to Europeans. Colonial politicians made it plain that this system was not based upon nor conceded any inherent Maori authority. Premier Fox (during his first Ministry) had observed that there was no objection to Maori making the assent of a principal chief a condition of the appointment of Magistrates or Assessors ‘provided that the punishing power of the magistrates and the ordinary execution of the law were made to flow from and be dependent upon the Governor.’264 However by this time the King Movement was growing in strength and within a short time Maori refusal to use the institutions for alienation discredited the system. Nonetheless these ‘new institutions’ made inroads in some districts, although Maori receptivity was decidedly ambivalent. By establishing a mechanism for the making of laws by native runanga enforced through a combination of native and colonial officials, the system rather anticipated the ‘indirect rule’ system of British Africa than followed the enclave reservation model of North America.265
(p.186) By the late 1850s the Governor was formally conducting native policy on the newly adopted conventional basis of advice from responsible Ministers drawn from the local assembly. The resistance of Maori to land sales, organized through the overriding authority of the paramount chiefs and even in the face of the ‘new institutions’, had culminated in hostilities. As a result the futility of preserving Section 73 was plain and by then, having experienced similar difficulty in retaining control over native policy in Canada, the Colonial Office was minded to relent. The colonial legislature had previously passed a Native Territorial Rights Act (1858) but that had been disallowed. Nonetheless the ineffective Act had established the principle of individualization of title then also in the air in North America. The Minister for Native Affairs, Richmond described the purpose of the proposal as being ‘to place in the hands of the Government a new and powerful instrument for the civilization of the Natives, and by no means to increase the immediate facilities for the acquisition of land by Europeans.’266 The Duke of Newcastle informed the Governor that ‘the endeavour to keep the management of the natives under the control of the Home Government has failed.’267 He received this advice, indicating relinquishment had implications for Maori:
… considering the meaning which the chiefs and natives of New Zealand have always attached to the act of submission to the British Sovereign, and the spirit in which they have adhered to that act, it may fairly be questioned whether or not it is consistent with the honor of the Crown to hand them over to a totally different authority, namely, an assembly of European settlers, actuated frequently by adverse prejudices and interests.268
The Duke put such reservations aside and later explained his position to Governor Grey:269
[T]he failure of the system hitherto pursued, and the necessity for abandoning it, arises not from the neglect of the Home Government to exercise its powers, but from the inadequacy of those powers, and the refusal of the colonial community to confer, or submit to them. I willing admit the perfectly constitutional character of that refusal.
This measure was justified by the impossibility of overseeing native affairs at a distance. ‘What the Duke of Newcastle did,’ a commentator said soon after (1870), ‘was not to abandon the control and management of native affairs—for he never had either—but to acquit himself of responsibility for the management of them by other people.’270
In 1862 the colonial legislature was given jurisdiction271 to repeal Section 73. It made quick use of the new power. The colony's Native Land Acts of 1862 and 1865 returned to the 1858 model of individualizing title to customary land and by so doing undermined the authority of the chiefs who had previously used their status or mana to block sales.
(p.187) The 1865 legislation established a Native Land Court with the function of transmuting the tribal title into individualized tenancies in common (‘Maori freehold land’). Until that time most formal Crown dealings with Maori about land had been conducted on a tribal and hapu basis, but the 1865 Act emphasized ‘the title of persons to Native Land’. The policy of individualization was followed aggressively by the court whose judges, led by Chief Judge Fenton, strongly believed it in the best interests of Maori.
Section 23 of the Act contained the notorious provision that no certificate of title could be issued to more than ten persons. It also prohibited a tribe being granted a certificate of title unless the block of land exceeded 5,000 acres. Few tribal applications were made in respect of larger blocks of land. Instead, ten or fewer persons made most applications, but in circumstances indicating they were clearly seen as representatives of or trustees for hapu. The Native Land Court judges took the position, however, that no such trusts existed but that the grantees took absolutely.272 The Native Lands Act 1867 had addressed that problem by allowing for the registration by the court and listing in a recital of the names of ‘all persons interested in such land’ or of any tribe or hapu so interested.273 It seems the judges of the Native Land Court regarded that provision as unworkable and carried on regardless, issuing certificates of title on the basis of the absolute title of the grantees.274 Meanwhile Maori unhappiness grew and eventually the Native Equitable Owners Act 1886 was passed allowing the ascertainment of the excluded owners for land still in the ownership of the grantees or their successors. This Act did not restore the trust principle, however, as mopping up legislation of later years made plain. As the Waitangi Tribunal later commented, it ‘merely allowed more individuals to be included in the individualisation process.’275
The Native Land Act 1873 introduced a ‘more extreme version’ of individualization that increased the rate of alienation dramatically. Before then, nearly eighty per cent of investigated title land had remained in native hands under the ten-owners system, an indication that de facto the trust principle had been recognized.276 After 1873 every person found to be an owner was to be listed on a memorial of ownership, which, if the majority wanted, recorded the proportionate share of each. This was the beginning of the system of fragmented ownership that has affected and afflicted Maori freehold tenure to this day. Shares in the ownership became alienable, or partition could be ordered for the benefit of those who wished to sell or lease. The unity that Maori leaders had ensured under the customary and, to some extent, ten-owners systems was upended.
The individualization legislation proved a brutally effective means of obtaining Maori land for white settlement. By the early 1980s Maori freehold land comprised only 4.5 per cent of New Zealand's land area,277 a change from a century earlier when the first Chief Justice of New Zealand, Sir William Martin, had written that ‘[s]o far as (p.188) yet appears, the whole surface of these Islands, or as much of it as is of any value to man, has been appropriated by the natives.’278
Title to most Maori land had been transmuted by 1909.279 Thereafter the function of the court grew into a more protective one. In that sense, the Land Court, operating under its statutory jurisdiction, took up the ‘protective’ duties formerly vested in the Crown.280 The court came to depict itself as exercising a quasi-parental jurisdiction over Maori, especially regarding the alienation of land.281
The laws affecting Maori freehold land did not totally stymie Maori enterprise or enclose Maori and their land within such an overbearingly paternalistic regime as in Canada and Australia. Indeed, even in the face of considerable pressure on their cultural and political forms, Maori resilience and adaptability remained as much a feature of the operation of the Land Court as its effectiveness at facilitating settler access to their land.282 However, though the agency of the Maori Land Court had been instrumental in the sale of much land, the court had been as much the subject of cultural appropriation by Maori as the tool of Pakeha assimilation and land-grabbing. The extent to which the court maladapted Maori custom and the extent to which Maori poured custom into the legal mould presented them remain the subject of debate. It is clear, however, that the court ‘improvised’ Maori custom in some areas, for example in over-emphasizing take raupatu (title by conquest from other Maori groups) above other customary sources.283 It also set rules of procedure and evidence that took scant account of Maori custom but which elevated judicial mana (standing). A well-known example was the ‘1840 rule’ according to which a Maori customary title was to be ascertained from the date of Crown sovereignty.284 Perhaps the most notable consequence of individualization was that Maori came to associate tribal standing (turangawaewae) or, more specifically an individual's rights upon his own marae (tribal meeting place), with entitlement to a share in Maori freehold land. As a consequence the tenancies in common over Maori freehold land became severely fragmented, a result which may have served a cultural purpose but one which also crippled the land administratively.
Individualization of the title to Maori customary land as introduced in the late nineteenth century was a New Zealand version of the allotment practices being (p.189) followed during the same period in North America. In all jurisdictions the underlying philosophy was identical, being the ‘civilization’ or assimilation of native culture into the Anglo-settler. The ownership of land has always had a political resonance in common law jurisdictions particularly in the period before universal suffrage. Land-ownership was associated with the franchise and an individual's capacity to assume the full range of civic responsibility. Individualization of title was thus more than a means of attacking tribalism and, in New Zealand where it took greater hold than in North America, as a device for obtaining land for settlement: it was a chauvinistic projection onto aboriginal culture of the deeply historicized way in which Englishmen conceived their political rights and duties. And it was an approach that left no room for any legal form of association with ancestral land other than through individual ownership. In that sense the statutes affecting Maori and their land passed during the late nineteenth century had maintained the theme of denial of tribal status set out in Wi Parata. It was also little wonder that title to Maori freehold land, the individualized tenure, soon became severely fragmented. Political authority and status in traditional Maori society remained associated with land. The tribe and occupying hapu (sub-tribe), a dynamic and complex—indeed, often problematic—relationship, had been replaced by the vastly less sophisticated tenancy in common. Far from spelling the demise of those structures, the new anglocentric regime became another site for the adaptive continuation of those customary forms. For Maori, Pakeha legalism lived inside the customary framework, rather than the other way around.
The history of white settlement in Australia began with the occupation of New South Wales as a penal settlement during the late eighteenth century. Although there was an early phase of mutual discovery and curiosity between white settlers and Aborigine, by the 1820s that had shifted as the settlers pursued more aggressive policies of physical displacement and the marginalization of native people into the dry interior. Disease aided that process.285 By the 1840s organized Aboriginal resistance to settlement in the eastern states of Australia had peaked. However, as disease and warfare weakened the Aborigine and pushed the ‘frontier’ westwards, native policy changed from removal and marginalization to that of ‘protection’. Full-blooded Aborigines were to be enclosed on stations where missionaries and government officials could supervise them. Vulgarized Social Darwinism tinged with Victorian religiosity fuelled the belief that the Aborigine would disappear in the face of the vastly superior civilization that had reached their shores. ‘Protection’ was a means of ‘smoothing the dying pillow’ of the Aboriginal race, as this article in the Age newspaper in January 1888 made plain:
It may be doubted whether the Australian Aborigine would ever have advanced much beyond the status of the neo-lithic races in which we found him, and we need not therefore lament his disappearance. All that can be expected of us is that we shall make his last days as free from misery as we can.286
(p.190) Mixed-bloods, ‘half-castes’ as they were known (by a term considered offensive today), were, however, to be assimilated into the general population. They were regarded as outside any special legal or constitutional responsibility.287 The distinction was thus used as a way of containing governmental responsibility (and, of course, expenditure). Aborigines were denied the right to vote both by legislation and de facto force of circumstance despite technically being entitled as subjects of the Crown under male suffrage.288
The several colonies (and later as States) of Australia eventually passed special statutes enclosing the Aborigine in ‘protective’ regimes. The colony of Victoria was the first to enact a comprehensive code (1869), which put the Board for the Protection of Aborigines on a legal footing.289 This regulation was typical:
Every aboriginal male under 14 years of age, and also unmarried aboriginal females under the age of 18 years, shall, when so required by the person in charge of any station in connection with or under the control of the [Board for the Protection of Aborigines], reside, and take their meals, and sleep in any building set apart for such purposes.290
Similar patterns were followed throughout Australia. Western Australia established its own Aborigine Protection Board in 1886,291 which it abolished in 1897292 and replaced with the Aborigines Department. The first comprehensive legislation for Queensland was passed in 1897,293 influenced by the report of Archibald Meston, a former member of the Legislative Assembly, that had advocated a policy of total separation.294 Queensland Aborigines had already been excluded from the franchise in 1885.295 New South Wales had passed some legislation on particular matters affecting Aborigines (such as their evidence in criminal cases, supply of liquor, and possession of firearms296) but the first Aboriginal Protection Act was not passed until 1909.297 Again the thrust of this legislation was very similar to that already in place elsewhere in the country. South Australia and the Northern Territory did not have protection legislation until 1911 when a part-time Protector of Aborigines and some sub-protectors (who were mainly police) were appointed. Tasmania did not enact any protection legislation, in keeping with the fiction that there were no Aborigines left to ‘protect’.
The authoritarian protectionism in the law of the Australian states continued into the twentieth century. Indeed, rather than easing, thereafter the pattern of supervision (p.191) and intervention in Aboriginal life became progressively more intrusive, reaching a low point in the 1930s.298 After the war, however, a new policy of assimilation emerged, being officially announced as federal government policy in 1951.299 Few reforms followed this change of policy, indeed in some respects by the 1960s it had left Aborigines in a worse position especially as the mineral wealth on their lands came to be better understood. The policy of assimilation ‘with its structured rejection of Aboriginal culture now began to be invoked ideologically as justification for dispossessing Aborigines of even reserve lands.’300 The political resistance of the Aborigine began in the late 1960s.
In Australia, then, like Canada and New Zealand, one sees a pattern that can now be seen as typical of legal and political practice from the mid- to late nineteenth century. In this period indigenous peoples and their traditional polities were denied standing and enforceable legal rights where that claim was based upon their aboriginality. The Crown was the legal ‘ward’ of these people in a non-justiciable trust. Native people were regarded on the one hand as subjects of the Crown (and amenable to its laws and writ). On the other hand, they were unable to use that Crown's courts to protect their collective rights (including those of property) and seek recognition of their traditional forms of political organization. It was only after World War II (during which native people made significant contributions) that this began to change, eventually to disappear.
There is one important difference between the early histories of engagement between Crown and aboriginal in New Zealand and Canada on the one hand and Australia on the other. Whereas the former countries experienced a history of political relations with their indigenous people signified by treaty-making and quasi-diplomatic dealings, Australia had no such pattern. Geographical features undoubtedly explain in part that difference. There was (and remains) the sheer size of the Australian continent and the littoral concentration of settlement, unable to creep gradually (as in North America) into a fertile interior. However there was also an important cultural difference, in that the white settlers and officials were able to perceive structures of political authority in the Amerindian and Maori societies that they could not observe in Aboriginal culture. This inability of the British to perceive the political form of tribal society was not limited to Australia. It also affected British relations with the Nuer of Africa and the Sakai of the Malay Peninsula in the late nineteenth century, but these people inhabited territory that was not destined for permanent white settlement.
Even whilst Canadian and New Zealand officials of the nineteenth century denied the residual sovereign status of the aboriginal polities, de facto relations recognized the integrity and viability of the tribal structure. Indeed, the legislative policy was a direct attack on those political forms. The same did not hold for Australia where both law and practice revealed scant, indeed a virtually non-existent, recognition of the reality of Aboriginal political organization, so blind were the settlers to it. In North America and New Zealand, meanwhile, the period when aboriginal peoples’ political relations with (p.192) the settler-state most densely followed the de facto nation-to-nation diplomatic pattern was during the early to mid-nineteenth century, immediately preceding the aggressive assimilation period. The assimilation policies of the Dawes Act (US), Indian Acts (Canada), and Native Land Acts (New Zealand) attacked the enduring reality of tribal organization. In Australia, however, assimilation was not preceded by any such pattern. There was a murky ambivalence in which colonial officials in Australia felt scant or, at most, no more than occasional pressure to clarify the legal status of its tribal people. One does not find a similar indifference to the tribe in early colonial Canada and New Zealand. To the extent that the Aborigine has been regarded as part of Australian history, then, it has been in a social rather than political sense.301 There was no better example of how they were construed than the Report of the Select Committee on Aborigines (1840). In a famous passage cited earlier, the Committee noted the Crown's historical pattern of entering into treaties and other engagements with tribal societies. However the Australian Aborigine was ‘so destitute’ of ‘even the rudest forms of civil polity’ that no such relations were possible with them. The absence in Australia until recently of a history of political relations between Crown and Aboriginal nation has had a bearing upon the political culture of Aboriginal claims and will be explored in a later chapter. The extent to which Aboriginal life was highly regulated will also be described in a later chapter. Yet even if (Australian) Aboriginal relations with imperial Britain did not initially follow the pattern of other settlement colonies, by the late nineteenth century convergence had occurred. Aboriginal people in the Crown's settlement colonies (and dominions) were all legally disabled, their traditional polities denied any standing in law.
(b) United States and the status of the Indian tribes from the late nineteenth century
The Marshall Court judgments established the residual sovereign status of the independent Indian tribes. That became the main judicial target during the late nineteenth century when the United States, like the Anglo-settler jurisdictions of Canada and Australasia, also tended towards positivized notions of sovereignty. The Marshall Court judgments, Worcester in particular, had been very vague on the character of the residual tribal sovereignty. It has been seen that Crow Dog (1883) had held that federal criminal jurisdiction did not reach crimes committed amongst Indians on reserves. That judgment, handed down in the face of a long line of state cases claiming state jurisdiction in Indian lands, provided a benchmark recognition of residual sovereignty which soon became qualified.
In 1871, still several years before Crow Dog, Congress announced the end of treatymaking:
No Indian Nation or tribe, within the territory of the United States shall be acknowledged, or recognized, as an independent Nation, Tribe, or power, with whom the United States may (p.193) contract by treaty; but no obligation of any treaty lawfully made and ratified by any Indian Nation or Tribe prior to March 3, 1871, shall be hereby invalidated or impaired.302
This measure was largely the outcome of a long-standing dispute between the Senate and Congress over control of Indian affairs, the lower house believing the treaty ratification power gave the upper one too much pre-eminence.303 Whatever its background, this measure was soon seen as a sign that in practice the United States was becoming unwilling to follow a sovereign-to-sovereign relation with the Indian tribes. In United States v Kagama (1886)304 the Supreme Court noted how this ending of the treaty period had signalled a ‘new departure’ in Indian affairs.
A year after the ending of the treaty period, a decision at first instance by Judge Matthew Deady in Portland, Oregon refused recognition of the status of the Alaskan Indian polities. In United States v Seveloff (1872) Alaskan Indians were given the same status as white people and denied any status as tribal nations under federal Indian law. For Judge Deady the reluctance to perpetuate a distinct and separate legal status for aboriginal peoples flowed from his strong liberal beliefs. Judge Deady was in his time a stern proponent of full legal equality for all individuals, regardless of race,305 a stance contributing to his latter day status as a liberal hero. Whilst his championing of the principle of equality might have been worthy in the context of immigrant labour, in a different line of cases during the late nineteenth century he refused to recognize and support Indian sovereignty. He endorsed the state court judgment of his friend George Williams,306 by then the United States Attorney-General, that the Nonintercourse Acts did not reach that far west.
There was a further important sign in this period of the less permissive attitude towards tribal sovereignty that came in the wake of the discontinuance of treaty relations. This was the hardening of federal practice and case-law on what until then had been a rather fluid and not especially consequential distinction between ‘recognized’ and ‘unrecognized’ tribes. ‘Recognized’ groups were taken to hold a remnant sovereignty (and attract the government's responsibility) whereas the ‘unrecognized’ did not.
A series of cases in the period 1876–86 dealt with this question of recognition, establishing it doctrinally as the jurisdictional hook for Indian relations with the federal government.307 This process culminated in the famous case Montoya v United States (1901) in which the Supreme Court attempted to establish some criteria, however primitive, for what constituted a federally recognized tribe, or how an unrecognized tribe might establish or attain federal recognition.308 This case set the federal common (p.194) law test for the tribe describing it as ‘we understand [it, as] a body of Indians of the same or a similar race, united in a community under one leadership or government, inhabiting a particular though sometimes ill-defined territory …’309 American law thus claimed the right to determine if a tribe existed or not. The tribe's identity had become a legal as well as ethnological matter. As Indian dependence upon the government grew, important consequences were to flow from recognition or (more parlous) otherwise. The history that sprang from that—the legal history of tribal and individual status—will be considered more fully in the next chapter.
The most dramatic inroad into the tribal sovereignty recognized in the Marshall trilogy came, however, in the wake of Crow Dog (1883). This case denied United States jurisdiction over crimes committed amongst Indians on reserves. The Supreme Court's controversial judgment resulted in the passage of the federal Major Crimes Act (1884). This Act extended federal criminal jurisdiction onto reserves over selected intra-Indian crimes. In Kagama (1886) the Supreme Court upheld the constitutionality of the 1884 statute. In doing so it proceeded also to articulate the doctrine of plenary Congressional authority, leaving Indian status and other rights subject to the supervening will of Congress. Cohen suggested (1940) that the legislative history of the statute indicated Congress did not intend to diminish or impair tribal authority over its own membership.310 However Whaley (1888) showed how lower federal courts were apt to read the Act as curtailing and pre-empting tribal authority. In this case four Indians had killed a poison-dispensing medicine man on the instruction of the tribal council. Their conviction of manslaughter was upheld.311
One might contrast that tendency with Talton v Mayes (1896) in which the appellant, Talton, a Cherokee, was indicted under tribal law before a jury of only five persons. He challenged unsuccessfully the Cherokee processes under the Fifth Amendment. During the late nineteenth century the Cherokee had consciously adopted institutions of governance modelled on the American, but, as the respondent, Chief Mayes, had told Congress the year before, ‘distinctive still as Cherokee institutions.’312 That imitative element might have influenced the court, which stressed that the Fifth Amendment was a limitation only upon the powers of the general government. The case turned on ‘whether the powers of local government exercised by the Cherokee nation are Federal powers created by and springing from the Constitution of the United States, and hence controlled by the Fifth Amendment to that Constitution, or whether they are local powers not created by that Constitution, although subject to its general provisions and the paramount authority of Congress.’313 The Cherokee Cases showed that the former question had ‘long since’ been answered in the negative. Thus whilst reaffirming tribal subordination to Congress, it also shielded tribal governance from Constitutional review.
Though qualified by Congressional paramountcy, tribal sovereignty remained the legal cornerstone. That qualification provided the juridical platform for legislative (p.195) inroads into tribal jurisdiction, as the Major Crimes Act itself showed. The courts aggravated that over the following years with their own judicial whittling of the scope of tribal criminal jurisdiction upon their own territory. Nonetheless the Supreme Court continued to recognize the primacy of tribal law on civil and domestic matters. Although the criminal jurisdiction of the tribe had been judicially diminished, the eminent writer on Indian affairs, Felix Cohen, was able to identify several important civil areas in which Indian self-government remained paramount. These included determination of tribal membership, inheritance, tribal taxation, tribal property laws, and domestic relations.314 Nonetheless post Crow Dog the significant judicial undermining of Worcester was plain.
The Major Crimes Act and the Kagama decision occurred at a time when Indian wars were waging on the western frontier and Congress was debating the Indian policy that was to lead to the Dawes Act (1887). The formation of federal policy was also influenced at that time by reform groups like the Indian Rights Association and the Lake Mohonk Friends of the Indian Conference who believed that the native Americans should be exposed to more civilizing influences and practices. Well-meaning do-gooders were endorsing the programme of assimilation being applied by the federal government.
The General Allotment [or Dawes] Act of 1887 provided for the enforced allotment of Indian lands in order to destroy their tribalism and to replace it with the individualism of civilized society.315 It rested on the doctrine of plenary Congressional authority given by the Kagama 316 case. This congruence of armed conflict, judicial decision limiting tribal status and the introduction of a policy of individualization of tribal tenure was remarkably similar to and virtually contemporaneous with events in New Zealand.
The Dawes Act established the general policy of allotment. This policy had been put into a sort of practice by the Commissioner of Indian Affairs George Manypenny in numerous treaties negotiated during the 1850s providing for individual allotment.317 The Dawes Act, however, gave that piecemeal approach a more thoroughgoing character. The Act was justified on the basis of the inherent corruptibility and degeneracy of tribal governance, an accusation that the tribes countered strongly but unsuccessfully. For example, the Cherokee protested that they had adopted western constitutional forms and they acknowledged also that there may have been some problems in their application of those forms. But such malpractice, they said, was a western rather than Indian affliction:
Walking in your footsteps, it could hardly be expected that, in following the good you practice, some of your evils may not have also their mark. We pursue some short cuts in office down there sometimes that would hardly receive the approbation of a legislative reformer; but that we are one half as corrupt as the Dawes commission represent us we emphatically deny, neither can we admit that we are to any degree as corrupt as the newspapers assert of your average legislatures …318
(p.196) As this passage showed, Indian leaders were not slow to detect the application of double standards to their manner of self-governance.
The Dawes Act contemplated a per capita grant of reserve land to individuals (one hundred and sixty acres to each family head, eighty acres to each single person over eighteen years old and forty acres to those under that age). Allottees were to acquire United States citizenship, which also was to be conferred upon any other Indian who had abandoned their tribes for the civilized life. Once a patent was granted to an allottee it was to be inalienable for twenty-five years, after the expiry of which the allottee became liable to state law and jurisdiction. The Act also provided for ‘surplus’ land not needed for fixed-acreage allotments to be ceded by the tribe to the federal government and thence to become available for non-Indian settlement. In that way Indian reservations became opened up for non-Indian settlement.
As the allotment process was left to the agreement of particular tribes with the federal authorities it was not implemented on all reservations. Even on those reservations where it was adopted the degree of penetration varied considerably. The surplus land policy resulted in checkerboard land-ownership, sprinkling reservation and Indian allotment tenure with white homesteaders. Like the individualization policy in New Zealand, it was responsible for a considerable loss of native land. During the period 1887 to 1934 Indian landholding was reduced two-thirds, from 138 million acres to 48 million acres.319 Individuals regarded as sympathetic to the Indian people supported the Act at the time of passage. But its disastrous consequences later became plain. Theodore Roosevelt described the Act as ‘a mighty pulverising engine to break up the tribal mass. It acts directly upon the family and the individual.’320 The scrambling of ownership and titles not only compromised tenure and resource management within the reservation, but the governmental capacity of the tribes. ‘When the reservations were opened, true traditional governments were essentially doomed in most tribes, and the authority of tribal rule was undermined.’321 The promise of a ‘measured separatism’ inherent in the discontinued treaty-making policy and Marshall trilogy was shattered by allotment.
The Dawes Act (1887) had opened reservations for non-Indians. As they moved in ‘so too did state law.’322 In McBratney v United States (1882)323 the Supreme Court upheld state court jurisdiction over an alleged murder on the reservation of a non-Indian by a non-Indian despite the Indian Country Crimes Act requiring a federal court prosecution. One might have thought that statute and the supervening status of the federal government would have steered the court away from extending state jurisdiction into Indian territory. That, after all, had been the long-standing and entrenched philosophy of the Nonintercourse Acts. However, McBratney evidenced ‘one essential policy choice that the Supreme Court made and continues to honor: absent a highly explicit federal statute to the contrary, state laws prevail over tribal and federal laws in regard to an activity that occurs in Indian country and that is not directly involved with legitimate tribal concerns.’324 The notion of the reservation (p.197) as a jurisdictional and territorial enclave governed solely by the special relationship between the federal government and tribe was compromised.
In this period in the late nineteenth century the notion of ‘Indian country’ also received closer attention. The term ‘Indian country’ described a geographical area in which tribal autonomy was recognized and state jurisdiction limited.325 Congress gave the earliest definitions of Indian country. The Royal Proclamation 1763 had famously set a western line running north to south and beyond which white settlement was prohibited. The Nonintercourse Acts moved that line ever further westward. The final one of 1834 defined Indian country as that ‘part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi River, and not within any state to which the Indian title has not been extinguished.’326 That boundary setting became meaningless as the United States expanded after the Mexican-American war and the forced removal of the eastern tribes. In 1874 Congress repealed that definition without affecting the notion of exclusive federal jurisdiction over reservation land. Problems arose, however, with regard to Indian land that had not been set apart as a reservation and over which a state had jurisdiction.327 This left it to the courts to determine what constituted Indian country, a task achieved authoritatively by three Supreme Court judgments in 1913. In Donnelly the court held that a reservation held in trust by the federal government was Indian country.328 Likewise allotment lands held in trust by the federal government were held in Pelican to be Indian country.329 However the court took what was arguably a broader approach in Sandoval 330 where it considered Indian land owned in fee simple by the tribe. The court rested the determination of Indian country not on the land title regime but the existence of a group whom the federal government had ‘regarded and treated… as requiring special consideration and protection, like other Indian communities.’331 In 1937 the Supreme Court reiterated that ‘dependent Indian community’ test for Indian country332 which was further confirmed by Congressional legislation of 1948.333
At the end of the nineteenth century there were other encroachments upon the distinct sovereign status of the Indian tribes alongside those noted already. Before 1891 persons with claims against Indian tribes had to rely upon ‘wrongs and depredations’ clauses in treaties. Under the treaties procedures claimants would generally file proofs with the Commissioner of Indian Affairs who would then compensate the claimants from funds due the tribe. The tribe could not be sued directly. That procedure was modified in 1891 when Congress passed the Indian Depredations Act by which the Court of Claims handled the victims’ claims and claimants had to prove the tribe was amity with the United States and not entitled to belligerent status under international law.
One consequence of the distinct sovereign status of the Indian nations was their status as citizens of their individual tribes, and not the United States. In Elk v Wilkins (1884) (p.198) the Supreme Court stated that the ‘members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States.’334 However, if that position cut against the grain of the policies of assimilation and federal authority emerging in the 1880s, then Winton v Amos (1921) was a correction. In that case the Supreme Court reversed itself to hold that legally Indians could be made citizens of the United States.335 As a result American citizenship was forced on all Indians in 1924.336 The Elk case had also held that Congressional legislation only applied to Indian tribes where there was a clearly expressed intention to include them. In 1931 that approach was superseded by a new one that required a ‘definitely expressed’ intention to exclude Indians from such legislation.337
The seal on the Congressional and judicial contraction of tribal sovereignty came in Lone Wolf v Hitchcock (1903). This case continued the theme of unfettered federal authority set in Kagama. In this case Lone Wolf sought an injunction against the application of a federal statute that gave effect to an allotment treaty ‘agreed’ by his tribe. He argued that tribal consent had been improperly obtained as a result of the fraud and concealment of the government officials. The Supreme Court rejected his argument, depicting the exercise of the Congressional legislative power as an unreviewable ‘political question’:338
… [A]s Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made of Congress of its power, relief must be sought by appeal to that body for redress and not to the courts.
This plenary power was taken to mean an absolute power, unlimited in the sense that Congress was free to pursue whatever aims it wished without regard to other provisions of the Constitution. This meant that the tribe's aboriginal occupancy of ancestral land was not subject to the Fifth Amendment. The Supreme Court endorsed the Congressional plenary power soon after in United States v Sandoval (1913).339 Effectively the American Indian had been reduced to a similar legal position as Maori, cast into a constitutional No Man's Land where in their dealings with the government they were neither fully sovereign nor held the full rights of individual citizens. Thomas Jefferson's declaration a century before that America did not subscribe to British notions of absolute sovereignty no longer held. It would not be until the 1970s that the Supreme Court retreated and began drawing a framework of principled restraints on the exercise of federal power in Indian law.340
Within what was at best a bare legal framework, administrative practices were also established for regulating and transforming the minutiae of everyday Native American life. The Indian police originated from the Indian scouts that had helped the American army and became on-reservation enforcement agencies of the Bureau of Indian Affairs. The police were often implicated in tribal factionalism, usually on the side of the ‘progressives’ against the tribal ‘fundamentalists.’341 In 1883 courts of ‘Indian offences’ were given formal approval ostensibly under ‘the general provisions of the law’, giving (p.199) the Department of Interior ‘supervision of the Indians.’342 These on-reservation courts were convened to enforce BIA-set codes of behaviour imposing Christian rules. A code of regulations was issued for the courts in 1892.343 The focus of the code was mainly the standardization of procedure. However it defined ‘vagrancy’ to include Indian ‘idleness’ and ‘loafing’344 and established offences for such matters as polygamy, adultery, cohabitation, and fornication. Another Indian practice banned was the destruction of property after death, indefensible even if the person was ‘a mourner and justified by the customs or rites of the tribe.’ Other regulations of the period also purported to regulate the length of Indian males’ hair and the Christianization of names.345
These ‘rules’ were administered through Indian agents, on-reservation representatives of the BIA. From 1870 to 1890 Indian agents had been appointed through church groups. It was difficult to find honest non-exploitative Indian agents so the idea of letting the church select agents was appealing, but inter-denominational disputes and anti-Catholicism compromised it. In practice Indian agents were highly influential and the history of many Native American tribes from the late nineteenth and well into the twentieth century became agent-centred. Some agents did not bother to establish courts and ran the reservations pharaoh-like themselves.
Education was also regarded as central to assimilation. In 1879 federal boarding schools were set up modelled on the (notorious) Carlisle School of Captain Richard Pratt. Congress made education compulsory in 1892346 but an 1894 regulation prohibited sending children to schools outside the state without parental consent. However Indian agents often simply ignored that rule such that ‘child-snatching was a common practice until the 1930s’.347 A Mesquite Indian agent described the tactics used:
Everything in the way of persuasion and argument having failed, it became necessary to visit the camps unexpectedly with a detachment of police, and seize such children as were proper… Some hurried their children off to the mountain or hid them away in camp, and the police had to chase or capture them like so many wild rabbits. The men were sullen and muttering, the women loud in their lamentations, and the children out of their wits with fright. There were the older girls, who fought like brought-to-bay bobcats…348
By the early 1900s day schools were replacing federal boarding schools but the latter had a lasting ‘primarily destructive’ impact upon Native American life.349
* * *
The Empire of Uniformity had as much vigour in America as in Australasia and Canada. In all jurisdictions the legal management of native peoples’ affairs was based upon a principle of detribalization, and assimilation and the settler-state's assertion of (p.200) extensive regulatory power. The laws were instrumental in design, but accomplishing their goal was easier said and pronounced in statute than done in the less tractable bustle of the everyday. The policy of assimilation will be revisited more thoroughly in the later chapters on status, which will also consider the rehabilitation of the Indian tribe in American law and practice.
(c) The standard of civilization in international law
So far attention has focused on the juridical response of imperial Britain and its colonies and the United States to the tribal polities whose presence affected the progress of white settlement. In these common law jurisdictions aboriginal relations became particularly pressing during the second half of the nineteenth century. Related to that is the question of the contemporaneous status of the native or, perhaps more accurately, the tribal polities in those regions over which England did not claim territorial sovereignty but in respect of whom it maintained some dealings usually through treaty. The juridical basis of those relations, especially as they occurred from the mid-nineteenth century on, turned on international and common law principles, both of which, in turn, were affected by imperial statutes. Specifically, the questions that arose related to the character of the jurisdiction which the Crown could exercise in territory inhabited by such polities but in respect of which it did not claim the territorial sovereignty. The various contexts in which such questions arose will become plain, but before then it is necessary to clarify the consequence which the development of a standard of civilization in international law had upon the juridical status of tribal societies.
It was seen earlier that Vattel's conception of independent and equal state sovereignty harnessed the theory to the Crown's formal conduct of its relations with non-European polities, particularly the tribal, but did so in a manner which frequently exposed the almost farcical supposition of equality. The imbalance was accentuated from the early nineteenth century by the rapid emergence of the European states system,350 which saw European nations establishing an elaborate network of regular treaty relations on matters such as extradition351 and postal services.352 Such relations clearly lay beyond the reach of the less sophisticated states, so it was hardly surprising such activity did not include them. Moreover, the European states increasingly required some guarantee that a state could protect their travelling and sojourning nationals with laws regularly and impartially enforced. Schwarzenberger observed:
[T]he test whether a state was civilised and, thus, entitled to full recognition as an international personality was, as a rule, merely whether its government was sufficiently stable to undertake binding commitments under international law, and whether it was able, and willing to protect adequately the life, liberty, and property of foreigners.353
(p.201) As a result the European nations began to distinguish by means of a standard of civilization those countries able to enter into the full range of relations from those unable to do so. This standard, with its strong connotations of the old distinction between Christian and infidel nations,354 became incorporated into European state practice during the second half of the nineteenth century and was recognized by the major works on international law written and available in English during this period. Although it is possible to see the germination of the standard of civilization in Anglo-American treatises of the early nineteenth century,355 its full presence dates from the second half of the nineteenth century. International practice, exemplified by the admission of Turkey,356 Japan,357 and China358 to full international ranks,359 and its emphatic presence in the texts of the period combined to give it an increasing juridical standard.
The development of a standard of civilization in international law by itself was not an abnegation of the sovereignty of the uncivilized states so much as a recognition drawn from the actual state of international relations that certain forms of relations were not possible with these states. The standard was never founded upon a disqualification of all juridical standing for the uncivilized polities. It was generally recognized by the European nations that some treaty relations were possible and that certain rights could accrue from such engagements with them. Such rights generally related to the conferral of jurisdictional rights or an imperium within the non-European territory. The Conference of Berlin (1885) represented a late nineteenth-century tidemark when various European nations used their treaties with indigenous African polities as a basis for excluding other European nations from their own spheres.360 Some English writers nonetheless took an absolute view (p.202) of international personality and the standard of civilization when they argued that Africa was to be considered terra nullius like the New World.361 That misrepresentation of the New World position was one that the European states did not apply in Africa, as the heavy treaty-making activity upon that continent during the nineteenth century plainly indicated.362 Although the circumstances behind these treaties may have been one of imbalance, the European nations nonetheless took the position that the native polities were able to grant them a jurisdictional presence (imperium) in their territory.
Most publicists of the period acknowledged if but inferentially that the standard of civilization had imported a two-tier form of sovereignty into international relations. They did that either negatively by limiting their discussion to the ‘European’ Law of Nations363 or, more revealingly, by acknowledging some status in uncivilized societies whilst excluding them from the inner club of civilized states. This latter group often expressed that ‘lower’ sovereignty in terms of ‘semi-’ or ‘demi-sovereignty’ and frequently invoked a feudal analogy of suzerain and vassal state to describe the relation between European nations and those uncivilized societies who had placed themselves under the protection of the former.364 Those writers recognized that whatever the other limitations, an uncivilized nation's juridical capacity—its sovereignty—extended at least to the ability to provide a European power with some jurisdictional presence in their territory.365
A revised edition of Manning (1875), for example, wrote of the acquisition of territorial sovereignty, the fulmost imperium, over uncivilized territory:366
The only two modes of acquiring territory in modern times are ‘Occupation’ and ‘Cession’ by treaty, whether following upon a war or not. It would seem at the present day that a right by Occupation is strictly limited to the case of land absolutely uninhabited, and that in the case of (p.203) colonising an already inhabited country, annexation of territory can only take place by interposing the fiction of a spontaneous cession on the part of persons representing the government of the native inhabitants.
Similarly Phillimore distinguished the general principles of international law binding upon all nations from those of the positive ‘European Code’ which bound only European (civilized) nations. Whilst uncivilized or ‘infidel’ nations were not subject to the latter code they were nonetheless valid subjects of international law to whom the former code applied:367
The great point, however, to be established is, that the principles of international justice do govern, or ought to govern, the dealings of the Christian with the Infidel Community. They are binding, for instance, upon Great Britain, in her intercourse with the native powers of India; upon France, with those of Africa; upon Russia, in her relations with Persia or America; upon the United States of North America, in their intercourse with the Native Indians.
Such writers show there was a continued recognition of the juridical capacity of non-European polities notwithstanding the development during the latter part of the nineteenth century of a standard of civilization. The exception to that recognition occurred in a small group of English writers368 who viewed international law as entirely limited to civilized nations, relations elsewhere not being the subject of ‘law’ so much as mere international ‘policy’. Lindley (1926) showed the unrepresentative character of this group with its absolutist conception of international personality and capacity and its view of territory inhabited by those outside the charmed circle as terra nullius.369 Phillimore rejected this ‘detestable’ and erroneous doctrine370 which fundamentally misapprehended long-standing European treaty-making practice. Certainly British practice had always been predicated upon the supposition that treaties with tribal polities were not mere puffs but substantive sources of rights.
(d) British jurisdictional imperialism during the nineteenth century
From the time of its earliest relations with non-Christian potentates the Crown had recognized the capacity of those rulers to grant the Crown an imperium or jurisdiction in that territory. The development of a standard of civilization did not affect the recognition of that capacity. By the mid-nineteenth century it was established that there were two types of imperium which the Crown might acquire in such territory, these being the territorial sovereignty or an extra-territorial jurisdiction.
(i) The acquisition of territorial sovereignty over tribal peoples’ territory
During the second half of the nineteenth and into the early twentieth century the Crown entered into numerous treaties of cession with uncivilized societies. On 6 August 1861 the eleko (king) of Lagos ceded the island and port of the same name to (p.204) the Crown.371 The treaty provided that ‘I, Docemo, do, with the consent and advice of my Council, give, transfer … the Port of Lagos … as well the profits and revenue as the direct, full, and absolute dominion and sovereignty of the said port, island and premises, with all the royalties thereof, freely, fully, entirely, and absolutely.’ In ceding the sovereignty whilst also preserving the King's authority over his own people and reserving their property rights this cession was similar to the Treaty of Waitangi in New Zealand (1840). Similarly in 1874 King Cakombau ceded the islands of Fiji to the Crown.372 In 1892, to take a random year from the late nineteenth century, the Crown entered into seven treaties of cession with various chiefs in Central Africa.373 Clearly the Crown considered these uncivilized polities to have the capacity to cede territorial sovereignty and used such treaties as the basis of its title.374
English courts were developing the common law principles for the recognition of foreign states during the early nineteenth century in relation to claims brought before them by and against foreign governments and the Crown on matters arising from its conduct of Britain's foreign relations. The most fundamental rule established in this period was that the recognition of the sovereign status of a foreign power was essentially a political act of the Crown to which the courts would give appropriate effect.375 A distinction merged between de facto and de jure recognition, largely in response to the claims to statehood of the newly independent former European colonies in Meso- and South America. Generally speaking de facto recognition developed as a form of tentative recognition given those states whose political control lacked an established tradition and pattern of stability.376 A state recognized de facto could nonetheless allow a British imperium in its terrritory, as Cakombau who had been recognized only as the de facto sovereign of Fiji.377
Many cases of the late nineteenth and early twentieth century proceeded on the basis that treaties of cession between the Crown and the uncivilized polities of the East Indies and Africa—polities outside the charmed circle—were arrangements concluded between two sovereign powers. The ‘act of state’ cases supposed the sovereign status of the East Indian Mughal princes.378 The African cases also supposed the sovereign status of the tribal chiefs in making a cession of their territory. In Re Southern Rhodesia (1919) (p.205) Lord Sumner indicated the Crown had recognized in 1888 the sovereignty of King Lobengula over the Mashona and Matabele tribes:379
The British Government stated to the Portuguese Government that he was ‘an independent King’, ‘undisputed ruler over Matabeleland and Mashonaland’ who had not parted with his sovereignty, though his territory was under British influence; and in 1889 the Colonial Secretary wrote to Lobengula himself, saying that he, Lobengula, ‘is King of the country’ (i.e. of Matabeleland), ‘and no one can exercise jurisdiction in it without permission’. Lobengula's sovereignty over what is now Southern Rhodesia is therefore the starting point…
Such recognition of original tribal sovereignty occurred, however, in contexts where there was no possibility of the common law allowing any residual sovereignty to the chiefs. The Privy Council regularly recognized the cession of African chiefs as the basis of Crown sovereignty in Africa, as also (and contrary to the position of local courts) in New Zealand.380 Yet according to late nineteenth-century common law doctrine, the nature of the Crown's territorial sovereignty was such that there could be no room for any other authority subsequent to formal annexation. Whatever the original sovereignty had been, there was no doubt under the common law that it disappeared upon the Crown's acquisition of sovereignty. This was so even though the treaty of cession may have contemplated—as often it did (as in New Zealand, Lagos, and Fiji, to recall some important examples appearing in this chapter)—residual authority in the native chiefs. De jure the Crown's sovereignty was regarded as absolute even if subsequent to its assertion de facto the tribal chiefs and other potentates retained significant authority.
England's positivist jurist, John Austin, had insisted that a sovereign was subordinate to no one, stating that ‘no government is sovereign and subject at once.’381 Moreover even before Austin held intellectual sway late in the nineteenth century, any division of the Crown's own declared sovereignty was inconceivable for lawyers (throughout that century). This refusal to divide the Crown's avowed sovereign power made it impossible for the common law to recognize any subsisting sovereign status of the tribes. Something resembling the Marshall doctrine in the United States was not doctrinally possible under the deferential common law until—we are about to see—1891 at the earliest. By then, however, the common law principles regarding the status of the aboriginal peoples’ polities in Australasia and Canada had been so set that the retroactive reversal and adoption of a divided sovereignty model was no longer feasible. Even though such a result may then have been more consistent with the Crown's earlier promises to those peoples and the actual state of things, legally it was an impossible result.
To some extent that non-recognition of the status of native chiefs and polities subsequent to Crown sovereignty was qualified in Africa where the policy of ‘Indirect (p.206) Rule’ ‘recognised the existence of traditional indigenous authorities… [and] allowed them to exercise a wide range of customary powers, subject to the use of these powers being brought under statutory regulation and administrative supervision.’382 The same principle was rehabilitated by the Raj in the late nineteenth century. This continuity of native political authority and processes was not grounded in any notion of residual or remnant native sovereignty, however. That is, it had no legal basis, but was seen as permissive, tolerant, and subject to the paramount authority of the Crown. As Lord Hailey stressed in his influential report on sub-Saharan Africa (1957), Indirect Rule was preferred because in the regions where it was practised there was no Anglo-settler population requiring a distinctly British form of governance. Lord Lugard, the famous British colonial administrator of an earlier generation, presented Indirect Rule as a means of exercising Crown sovereignty through the traditional chiefs, commenting that a colonial official ‘would consider it as irregular to issue direct orders to an individual native… as a General commanding a division would to a private soldier, except through his commanding officers.’383 In any event, the ostensible recognition of native political authority and customary law under Indirect Rule has since been characterized as a sense of continuity constructed by colonial officials and courts concealing the transformative and Anglicizing processes at work.384 Indirect Rule did not place the Crown and native authorities within any model of split or layered sovereignty. It was born of the pragmatic needs of the imperial frontier and technically the situation of the Crown's sovereignty under it was as simple and as Hobbesian as that which applied in all other territories of the Crown.
(ii) Extra-territorial jurisdiction and the Protectorate
Protectorates became an increasingly regular feature of British imperial practice during the second half of the nineteenth century, especially with mounting European rivalry in Africa and the Pacific. Vattel had spoken of protected states in the mid-eighteenth century, but at the beginning of the nineteenth, British experience had been limited to the Ionian Islands. By the end of the century that inexperience had turned into familiar practice, although the common law lagged in not examining the legal character of the protectorate until early in the twentieth century. The legal principles affecting the Crown's exercise of an extra-territorial jurisdiction in regions inhabited by tribal peoples were threaded through British practice during the nineteenth century. There remained, however, major jurisdictional issues that were not resolved for a good while. Early in the twentieth century, the common law recognized a model of divided sovereignty to describe the protectorate. The final part of this chapter will describe how that recognition came about, but it will be seen also that this new model of Crown sovereignty, like the colonial ones already in place in Australasia and Canada by the mid-nineteenth century, was one which put those relations into an extra-legal area.
(p.207) At the time of the Foreign Jurisdiction Act 1843 British practice recognized two types of imperium that the Crown could obtain over territory beyond the realm. They were either territorial sovereignty or extraterritorial jurisdiction. The Capitulations of the Porte have already been given as an example of the latter. They were regarded as conferring a personal jurisdiction upon the Crown over its own subjects in the territory of the granting sovereign. Essentially an extraterritorial jurisdiction was based upon the express allowance of the host sovereign and limited to British subjects. By the midnineteenth century that model was coming under growing strain.
The Foreign Jurisdiction Act 1843 was necessitated by two developments. First, a Law Officers’ opinion of 1826 had cast doubt upon the lawfulness of the exercise by consular authorities of some powers of fine and imprisonment over British subjects in the Ottoman Empire. These powers had grown gradually and in excess of those formally granted by capitulation.385 Secondly, in Africa one George Maclean had been exercising an extraterritorial jurisdiction over British subjects beyond the confines of the Gold Coast forts and without the bother of any formal grant from the tribal authorities.386 James Stephen, the influential Under-Secretary of the Colonial Office, had despaired over finding any means of legalizing the latter situation, thinking its retroactive legitimation by Westminster a usurpation of tribal sovereignty.387 The Hope Scott Report of 1843388 laid the basis for the Foreign Jurisdiction Act of the same year. Although the legislation was declaratory in tone, it was clearly innovative in character.389 The preamble of this Act declared that the Crown could acquire an extraterritorial jurisdiction in foreign territory by ‘treaty, capitulation, grant, usage, sufferance, and other lawful means’. The Act empowered the Crown to constitute such jurisdiction by the new means of a statutory Order in Council replacing the earlier prerogative power. The words ‘grant, usage, sufferance’ and the rather nebulous ‘other lawful means’ were significant, for they indicated that the Crown now believed an extraterritorial jurisdiction could be acquired other than by express grant of the host sovereign.
Implicitly that measure enabled the percolation into British practice and law of the distinction we have already seen as then beginning to emerge in European state practice between civilized and uncivilized nations. That infiltration was apparent in Papayanni v Russian Steam Company (‘The Laconia’) (1863).390 Doctor Lushington indicated that any extraterritorial jurisdiction in civilized regions constituted under the Foreign Jurisdiction Act was governed strictly by the terms of the host sovereign's grant. (p.208) He went on to indicate that extraterritorial rights were not so constrained to the terms of the formal grant in uncivilized countries. Still the predicate of the Foreign Jurisdiction Act remained, namely that any jurisdiction was derivative in character notwithstanding the imperfection of any informal acquisition from an uncivilized power. The Foreign Jurisdiction Acts very quickly became important tools of British imperial activity during the nineteenth to early twentieth centuries as the frequency of Orders in Council under their authority indicated.391
Despite this usefulness, the Foreign Jurisdiction Act still suffered some defects that hampered British practice in relation to the acquisition and constitution of satisfactory rights of governance in uncivilized territory over which no claim to territorial sovereignty was being made. In particular, the ‘treaty, capitulation, grant, usage, sufferance, and other lawful means’, for all its vagueness, supposed some local authority from whom the Crown might obtain the requisite jurisdiction. That supposition was sound enough in European and Asian392 regions where the jurisdiction was designed to exempt English subjects from a regular lex loci. However in Africa and Pacific, the new theatres of British imperial activity during the second half of the nineteenth century, there was no mistaking the function of the Foreign Jurisdiction Act as a means of bringing order to regions where none (at least in British eyes) had previously existed.
With regard to Africa, the Crown mostly accepted that it could acquire jurisdiction over its own subjects and native inhabitants by treaty, grant, usage, or sufferance from the native chiefs.393 The same position was less easily taken in relation to the Pacific, not through any objection in principle to the recognition of some juridical status in the island communities. The Crown's practice in Africa precluded that. Rather, the Foreign Office held severe doubts as to the stability of the native governments in the Pacific islands.394 The reports of its officers395 from the Pacific depicted island communities in a constant (p.209) state of warfare with no tribal ruler ever in a prolonged and stable ascendancy so as to facilitate relations from which any jurisdiction, formal or informal, might arise. This doubt about the treaty-making capacity was not limited in the late nineteenth century to the Pacific but occurred also in relation to the Nuer of the southern Sudan396 and the Sakai of the Malay Peninsula.397 In British eyes perpetual war, leaderlessness, and sheer primitivism all excluded the possibility of treaty relations. As with the Australian Aborigine the British required a minimal level of evident political organization before treaty relations of any type became conceivable.
During the late 1870s colonial officials insisted that the Crown could unilaterally establish a jurisdiction over the natives inhabiting and British subjects resorting to uncivilized territories and a draft bill to that effect was prepared.398 However the Crown only budged (p.210) to the extent that it now accepted it might unilaterally erect a jurisdiction in such regions over its own subjects only and without any grant or sufferance of any native authority.399 Special legislation, regarded at the time as innovatory400 was passed, namely the Pacific Islanders Protection Act 1875401 and the Foreign Jurisdiction Act 1878.402 For the first time these Acts gave the Crown the statutory power to establish jurisdiction by Order in Council over its own subjects in particular uncivilized territory. The jurisdiction was limited to British subjects and those natives voluntarily submitting to its exercise.403
Towards the end of the nineteenth century another shortcoming in the Foreign Jurisdiction Acts became plain. The weakness concerned the authority the Crown could assert over nationals of other European states within territory over which Britain claimed exclusive ‘influence’ though not the territorial sovereignty. The forms of jurisdiction available by the final decade of the century allowed the Crown to erect jurisdiction over its own subjects unilaterally if needs be where no stable native polity existed in uncivilized territory. The Crown could also exercise authority over native peoples where that had been granted by their chiefs. The nationals of other European states resorting to those territories were not, however, within that jurisdictional compass.404 A minute by Davidson (1887), then legal adviser to the Foreign Office, explained the rationale. Since uncivilized tribal nations lacked the ability (unlike the Eastern potentates) to enforce their criminal law they could hardly grant to the Crown a competence (to enforce the law amongst the European population within their territory) which they themselves lacked. A nation could grant extensive jurisdiction to another state within its own territory whilst still retaining the underlying sovereignty, Davidson explained; ‘it could part in theory either with all it possessed or any portion (p.211) of it but not with more than it possessed or had by showing itself able to enforce—reduced, so to say, into possession.’405
The other European nations, Germany in particular,406 did not share such objections, taking the position that a Protectorate gave jurisdiction over all foreigners.407 The Protectorate became a popular form of European imperialism during the second half of the nineteenth century, but for Britain the legal difficulties over asserting jurisdiction over European nationals remained a stumbling block. Outright annexation of large regions in Africa and the Pacific Islands was usually unpalatable (though a British Protectorate often became a precursor to eventual annexation408) and inconsistent with the ostensible justification given by the European nations to explain the ‘scramble’ for domination in Africa and the Pacific. It was argued that the backward peoples required protection and tutelage in the ways of civilization—the so-called ‘sacred trust of civilisation’.409 Annexation of large areas of their territory would have been incompatible with that protestation of temporary wardship and would have aggravated European rivalry in the African and Pacific theatres of competition. The scramble for dominance thus became a race to obtain native agreement to protection by a European power, a race in which Britain no less than any other European nation was an active participant. Protection involved the assumption of control over an uncivilized nation's external relations, including the activity of foreign nationals. Effectively the Protectorate was a device to exclude other European nations from a region without any claim to the territorial sovereignty.
English law could not accommodate the Protectorate in the form the other European states were applying it, particularly during the last quarter of the nineteenth century. In 1891 a change of mind occurred. In that year the Crown performed an about-face and began to act on the basis that a Protectorate also conferred rights over the nationals of other European states. It thus became an arrangement somewhere between the entirely personal imperium of extraterritorial jurisdiction and the full authority of territorial sovereignty. The consent of the European states to British jurisdiction over their nationals within a Protectorate was inferred from the proceedings at the Conference of Berlin (1890).410
Those British doubts about their jurisdiction over foreign nationals in Protectorates had been fuelled by their subscription to the Austinian notions of sovereignty that by (p.212) then had become influential. Austin, it may be recalled, had insisted against the divisibility of sovereignty, stating that ‘no government is sovereign and subject at once.’411 In 1888 Henry Maine had described sovereignty as a bundle of rights each of which might be separated from the other.412 Other important imperial officials such as Jenkyns413 and Ilbert414 agreed with Maine but the British did not take this position officially until 1891. Soon after, English courts came to assess the legal status of the native inhabitants of a Protectorate. The courts took the position that the Crown had acquired the ‘external’ sovereignty of the region leaving the indigenous political authority with the ‘internal’. This internal sovereignty left the indigenous institutions and laws intact and ensured the native polities’ nominal retention of the title of territorial sovereign. The recognition of the internal sovereignty did not imply, however, that in establishing the Protectorate the Crown had deprived the native state of its external sovereignty. Being uncivilized those native states had never had this attribute, so by the act of protection the Crown had stepped into the vacuum. It donned the external sovereignty until such time as the native polities had, by the civilizing process, grown into it themselves. Moreover, within the Protectorate the Crown's relations with the native inhabitants remained non-justiciable, falling as they did under the foreign relations’ prerogative power.415 The terms of a treaty of protection were, therefore, unreviewable. Any enforcement lay completely beyond the reach of the common law.
The Protectorate was for the common law an essentially non-justiciable arrangement. This was precisely the same position it had taken during the nineteenth century in relation to tribal polities in regions where the Crown held the territorial sovereignty. It was also the position taken in the ‘act of state’ cases concerning British treaties (often of protection) with the Indian princely states.416 In these cases it was invariably held that the terms of a treaty of protection or similar engagements with the Crown (through the East India Company) were incapable of enforcement in municipal courts. By the beginning of the twentieth century the common law had reached the stage where it was prepared to recognize the division of sovereignty over territory, but that was limited to the Protectorate over uncivilized people. Even were the divided sovereignty, Marshall-like model of the Protectorate available to the common law courts in British colonies during the nineteenth century and even had colonial judges and administrators been minded to use it in describing Crown relations with aboriginal peoples, there is no doubt it would have made little difference in the legal result: the conduct of native policy and relations would have remained non-justiciable even if the (p.213) common law were to have recognized the ‘internal sovereignty’ of the tribes. The common law had finally reached the stage where it could use a Marshall-like approach to the status of tribal political structures after Crown sovereignty, but the mentality of the Empire of Uniformity remained. The nineteenth-century common law was not interested in reining the imperial prerogative so much as endorsing it.
This chapter has continued the history of the means by which the Anglophone polities obtained and exercised sovereign authority over tribal peoples. It has looked at the period after the military victories of the late 1750s when large continental regions and their indigenous inhabitants came under British rule.
It cannot be said that British practice took a coherent position on sovereignty, at least with regard to the position of aboriginal polities, until the mid- to late nineteenth century. At this time the common law produced a positivized doctrine of Crown sovereignty which denied any original or residual legal capacity in the aboriginal tribes. Imperial and, less robustly, colonial officials rejected any notion of residual tribal sovereignty along the lines of the American Supreme Court in the famous Cherokee Cases of the 1830s. The Colonial Office, operating upon a guardianship principle, regarded British sovereignty over aboriginal peoples as vital to their protection from exploitation by settlers. However prior to the pouring of sovereignty into a doctrinaire mould, there were at least two centuries of regular British contact with tribal societies throughout which Crown practice had consistently recognized their contractual capacity. This treaty-making practice had occurred in the context of a more classical, less imperative attitude towards law and it remained practice even as a modernist Hobbesian notion of sovereignty was hardening. In the second half of the nineteenth century British practice towards tribal societies continued as though they were still sovereign even whilst its law described otherwise. Even though the Crown's officers were entering into formal treaty relations and compacts which suggested otherwise, the common law was unable to recognize the tribes either as residual sovereigns or as lesser, non-sovereign entities. In not recognizing the ongoing status of the aboriginal polities, the British jurisdictions differed from the United States where from the 1830s the Supreme Court described the residual sovereign status of the Indian tribes as ‘domestic dependent nations’. Further, in the British settlement colonies, governmental relations with the tribes were wrapped in an obligation of guardianship that was inherently non-justiciable. This unenforceable Crown trusteeship reflected the hierarchical and deferential attitude in the nineteenth century towards Crown prerogative. As the colonies moved towards self-governing capacity and the imperial Crown reluctantly and belatedly handed over legislative jurisdiction in native policy, the settler legislatures exercised their new authority. Congress consolidated its own authority likewise in the period after the Civil War. In Australasia and North America during the second half of the nineteenth century the white push for land resulted in the erection of laws that challenged and weakened the tribes’ traditional political structures. Colonial and republican authorities saw those structures as a barrier to land acquisition and aboriginal re-acculturation. They used law instrumentally to dismantle the tribal structures. Dispossession and marginalization became dressed in the language of assimilation.
(p.214) The common law's refusal during this period and into the twentieth century to recognize and draw juridical consequences from any such recognition of native political forms matched the broader processes of colonization then being experienced by aboriginal peoples not only in Australasia and North America but throughout the theatres of British imperial activity: the consistent legal theme was that of the non-justiciability of the government's formal relations with non-Christian peoples: the ‘higher trust of civilization’ vested in the Crown as the gentlemanly embodiment of the British Empire reflected an imperial and colonial culture that remained hierarchical. Yet that position did not alter what from the first had been an unwavering feature of British practice (however unscaffolded that was initially—or at least until Vattel wrote in the mid-eighteenth century—with any underlying conception of native juridical capacity): through over three centuries of imperial activity dating from the settlement of the New World, the Crown had refused to assert any jurisdictional competence over non-Christian peoples (as sovereign or protector) without their previous consent. The Crown consistently recognized the capacity of non-Christian rulers and chiefs to make such grants of jurisdiction. The American republic continued that pattern. Of the British settlement colonies, Australia was the only exception. When called upon to review and enforce the terms of these agreements or concessions the common law was highly deferential to Crown prerogative. It saw the enforcement of such engagements between the Crown and native polities as a matter of high policy between the contracting parties. For the common law, such pacts or treaties were certainly not a matter suitable for resolution in Leviathan's own courts. Even in the United States the potential reach of the Marshall trilogy's doctrine of residual sovereignty was severely undermined and compromised by the gloss of Congressional plenary authority and denial of tribal standing. By the end of the nineteenth century the era of state nationalism and authoritarianism was at full tide with its conceptual obsession with absolute, unqualified, and unqualifiable sovereignty: sovereignty-talk, as it became more consciously the vocabulary of the state's relations with its native peoples, spoke for Leviathan in a monologic, suppressive tone.
It will be seen in later chapters that this suppressive tendency was not a complete denial of aboriginal rights (particularly in relation to land), but it did subordinate and marginalize aboriginal peoples’ traditional political forms. And the act of denying their sovereignty gave them the conceptual end they would later seek to regain. A recurrent and dominant feature of the native resurgence and claims-talk from the late 1960s was the language of ‘native sovereignty’. That which was suppressed and denied they sought to regain. The claim to aboriginal sovereignty became a hallmark of the era of self-determination in the last quarter of the twentieth century. But then, as in the nineteenth century, the treatment of tribal nations’ claim to distinctiveness had to be made within the framework of common law constitutionalism. North American and Australasian political cultures might have become more sympathetic to such claims in the era of civil and human rights, but those still had to be located inside their common law systems that in the course of the previous century had become, where tribal peoples were concerned, doctrinaire and fixated with shoring rather than limiting the governmental hand.
(1) T Keegan, Colonial South Africa and the Origins of the Racial Order (Charlottesville, Virgina: University Press of Virginia, 1996) 75–82.
(2) ‘An Act for the Abolition of Slavery throughout the British Colonies; for promoting the Industry of the manumitted Slaves; and for compensating the Persons hitherto entitled to the Services of such Slaves’ 3 & 4 Will IV cap 73 (28 August 1833). The oceanic slave trade had been abolished in 1808 (47 Geo III Sess 1, cap 36).
(3) Mark Hickford, ‘ “Decidedly the most interesting savages on the globe”: an approach to the intellectual history of Maori property rights, 1830–1850’, paper delivered to the New Zealand Historical Association Conference, University of Canterbury, 2 December 2001.
(4) See Cherokee Removal: the ‘William Penn’ essays and other writings by Jeremiah Evarts, FP Prucha (ed), and with an introd (Knoxville: University of Tennessee Press, 1981).
(5) Pat Moloney, ‘Savagery and Civilization: Early Victorian Notions’ (2001) 35:2 New Zealand Journal of History 153.
(6) Mark Francis, ‘The “Civilizing” of Indigenous People in Nineteenth-Century Canada’ (1998) 9 Journal of World History 51.
(7) P Adams, Fatal necessity: British intervention in New Zealand, 1830–1847 (Auckland: Auckland University Press, 1977) 93.
(8) Keegan, Colonial South Africa and the origins of the racial order, 103.
(9) Ibid 104. Thus Fairbairn, the humanitarian editor of the Commercial Advertiser newspaper commented in November 1828: ‘The propriety of recognising two distinct nations within the Colony as this Ordinance does, is very questionable. There should be one law for all free persons.’ (quoted Ibid 319, n 105).
(11) The documents, including several legal opinions, are in the appendix to Report from the Select Committee on Aborigines (British Settlements); with the minutes of evidence, appendix and index. British Parliamentary Papers 1837, Paper 425.
(12) Andrew Bank, ‘Losing faith in the civilizing mission: the premature decline of humanitarian liberalism at the Cape, 1840–60’ in Daunton and Halpern (eds), Empire and Others: British Encounters with Indigenous Peoples, 1600–1850 (Philadelphia: University of Pennsylvania Press, 1998) 364.
(13) Thomas R Metcalf, The Ideologies of the Raj (Cambridge: Cambridge University Press, 1995) 29.
(14) See the comprehensive account in Mark Hickford, Making “Territorial Rights of the Natives”: Britain and New Zealand, 1830–1847 (D Phil dissertation, University of Oxford, 1999).
(15) Henry Reynolds, Frontier, Aborigines, Settlers and Land (Sydney: Allen & Unwin, 1987); DJ Mulvaney and JH Calaby, ‘So Much that is New’, Baldwin Spencer, 1860–1929 (Melbourne University Press, 1985).
(16) Mark Francis, ‘Social Darwinism and the Construction of Institutionalised Racism in Australia’ (1996) 51 Journal of Australian Studies 90.
(17) Parliamentary Government in the British Colonies (2nd edn), London: Longmans, Green & Co., 1894) 52.
(18) Lectures on Colonization (1839–41, reprinted edition with appendices, London: Longmans, Green, 1861), appendix to lecture xxii, 636.
(19) There were a variety of attitudes in Britain towards the constitutional position of colonies in the century after American Independence, ranging from Cobdenite free-trade separatism to total (unionist) integrationism: CA Bodelsen, ‘The English Attitude to the Colonies from the Loss of the First Empire Till 1869’ in Studies in Mid-Victorian Imperialism (London: Heinemann, 1960) 11–75.
(20) In Strange Multiplicity Tully does not give this ‘Empire’ a historical location other than to see it as a powerful tendency in the jurisdictions of the common law diaspora with an aboriginal population.
(21) Text in PJ Marshall (ed), The Speeches of the Right Hon. Edmund Burke, vol V, India: Madras and Bengal, 1774–1785 (Oxford: Oxford University Press, 1981) 385.
(23) Metcalf, Ideologies of the Raj, 20.
(25) See Andrew Porter, ‘Trusteeship, Anti-Slavery and Humanitarianism’ in Oxford History of the British Empire, III [The Nineteenth Century], 198 esp 212–213.
(26) Report from the Select Committee on Aborigines (British Settlements), GBPP 1837, # 425, 77.
(27) Lectures on Colonisation (reprint edition, Oxford: Oxford University Press, 1928) 495.
(28) The Treaty of Waitangi concluded with the Maori chiefs a short while after the Select Committee's Report is sometime regarded as contradicting this Report, but this recommendation concerned British colonies rather than the means of British acquisition of sovereignty. The Treaty of Waitangi was a treaty ceding sovereignty, not land (the British North American model).
(29) Report of Select Committee on Aborigines (British Settlements), GBPP 1837, # 425, 81–82.
(30) James Stephen, Minute to Vernon Smith, 28 July 1839 in CO 209/4: 343–344.
(31) Damen Ward, ‘Invoking the law: law, order and settler politics in South Australia and New Zealand, c. 1834–1845’ paper presented to the New Zealand Historical Association, 2001.
(32) Wendy B St Jean, ‘Inventing Guardianship: The Mohegan Indians and their Protectors’ (1999) 72 New England Q 362–387 at 363–364.
(33) Report of the Select Committee on Aborigines (British Settlements) 82; Glenelg to Governor Gipps, New South Wales, 31 January 1838: House of Commons GBPP 1839, vol 34, no 2, 4.
(34) Russell to Governor Hobson, New Zealand, 9 December 1840: CO 209/8: 460–504.
(35) Sir B D'Urban, Demerara, to Under-Secretary Horton, 16 May 1827 in Parliamentary Papers 1834, no 617, at 168–171; George Bagot to Major-General Sir B D'Urban, Essequibo, 20 September 1831, Ibid 184, esp 186–187.
(36) George Clarke, Chief Protector's Office, half-yearly report 30 June 1843. Text in Appendices to Report from the Select Committee on New Zealand (1844), Sess 1844, no 556, vol XIII, appendix 9.
(39) The Act 11 Will III cap 12 provided that any Governor, Lieutenant-Governor, Deputy-Governor or Commander-in-Chief who ‘shall be guilty of oppressing any of His Majesty's subjects beyond the seas within their respective governments or commands or shall be guilty of any other crime or offence contrary to the laws of this realm … ’ should be tried in England. The Criminal Jurisdiction Act 1802 (42 Geo III cap 85) modified that statute and in R v Shawe (1816) 5 M & S 403 it was held that neither of those statutes applied to a charge of felony, which would have to be tried by the local courts. Also R v Picton (1812) 30 St Tr 225 and R v Eyre (1868) LR 3 QB 487.
(40) In Mostyn v Fabrigas (1775) 1 Cowp 161, 172, 173, an action for trespass and false imprisonment, Lord Mansfield said that, locally and during his government, no civil or criminal action would lie against a Governor, because ‘upon process he would be subject to imprisonment.’ In Hill v Bigge (1841) 3 Moo PC 465 this dictum was not followed (on a debt incurred before appointment) but Lord Brougham observed that a Governor can be liable to action without his person being liable to execution, suggesting an immunity from execution. This was followed in Musgrave v Pulido (1879) 5 App Cas 102 (action in trespass). Also Glynn v Houston (1841) 2 Man & G 337.
(41) Raine and Ramsay v Piper  NSWSC 33.
(42) See Peter Burroughs, ‘Imperial Institutions and the Government of Empire’ in Oxford History of the British Empire, III [The Nineteenth Century], 170, 176–177.
(43) (1835) 3 Knapp 332, 344 (emphasis added).
(44) For example Enid Campbell, ‘The Royal Prerogative to Create Colonial Courts: a Study of the Constitutional Foundations of the Judicial System in New South Wales, 1788–1823’ (1964) 4 Sydney L Rev 343.
(45) James Douglas assumed governmental powers over Vancouver Island through a Governor and council, explaining that ‘it was not considered expedient to enter upon the subject of legislation nor to call General Assemblies of the freeholders until the population increases, and there be a sufficient number of persons of education and intelligence in the colony… ’ (Douglas to Sir John Pakington, 11 November 1852, CO 305/3:147). Sir George Grey, Secretary of State, indicated that Douglas and his council lacked legislative powers, and though acknowledging the inexpediency of a full assembly recommended Douglas have an elective council to legislate: Henry Labouchère, Secretary of State, to Douglas, 28 February 1856 in CO 410/1: no 5 at 82–89 and GBPP (1857), no 235, vol xxxviii, Sess 2, at 3–4.
(46) He had done so with the New South Wales example in mind in A Plea for the Constitution of New South Wales (1803)—extracts in Historical Records of Australia, ser iv, I, 883–900.
(49) Notably Bigge in his Report of the Commissioner of Enquiry on the Judicial Establishments of New South Wales and Van Dieman's Land (1823). Bigge's greater objections concerned the absence of safeguards against gubernatorial regulations ‘repugnant’ to English law and the disordered arrangements for publication of legislation. Nonetheless he subjected the Macquarie regime to heavy criticism—for a critique of Bigge's Report and a qualified defence of the Governor see JM Bennett, ‘The Day of Retribution—Commissioner Bigge's Inquiries in Colonial New South Wales’ (1971) 15 American J of Legal History 85.
(50) 4 Geo IV cap 96, Section 28 (1823) replaced by 9 Geo IV cap 83, Section 27 (1828). The classic account remains Enid Campbell, ‘Prerogative Rule in New South Wales, 1788–1823’ (1964) 50 Journal of the Royal Australian Historical Society 161.
(51) 21 & 22 Vict cap 99, Section 2.
(52) Gad Heuman, ‘The British West Indies’ in A Porter (ed), The Oxford History of the British Empire—The Nineteenth Century (Oxford, 5 vols: Oxford University Press, 1999) vol 4, 470 at 486–487.
(53) Phillips v Eyre (1870) LR 6 QB 1.
(54) The incident is reported in Todd, Parliamentary Government in the British Colonies (1894) 134–136.
(55) See for example Barry Cahill, ‘Sedition in Nova Scotia: R v Howe and the “Contested Legality” of Seditious Libel’ (2002) 51 University of New Brunswick LJ 95, and ‘Sedition in Nova Scotia: R v Wilkie (1820) and the incontestable illegality of seditious libel before R v Howe (1835)’ (1994) 17 Dalhousie LJ 458. Another example was the hounding of Captain Robison, who had disapproved of Governor Darling's regime in New South Wales in the late 1820s, which ended with his imprisonment in London: CH Currey, Sir Francis Forbes: the First Chief Justice of New South Wales (Sydney: Angus and Robertson, 1968) 329–331. This episode was connected with Darling's extremely hostile relations with his Chief Justice, Francis Forbes.
(56) There is an important contextual account in Mark Francis, Governors and Settlers where the author analyses the political cultures and personalities of gubernatorial governance in settlement colonies of the mid-nineteenth century.
(57) Hutchinson v Leeworthy (1860), attacking the validity of Torrens’ Real Property Act (1858) introducing a system of land registration which offended ‘fundamental constitutional principles’; Liebelt v Hunt (1861) invalidating the Grand Jury Act 1852 for wrongly displacing the common law; McEllister v Fenn (1861) invalidated the Real Property Act 1860 for not having been reserved as the Governor's instructions required and citing the impossibility of local legislation establishing the ‘great object’ of indefeasibility of title; in Payne v Dench (1863) (with the support of the majority of the court) and Dawes v Quarrel (1864) Boothby held that the executive council could not act as court of appeal after the advent of responsible government (South Australia Sessional Papers 1863 (HA) 100).
(58) 13 & 14 Vict cap 59.
(59) Report of the Select Committee of the Assembly of South Australia, South Australia Sessional Papers 1861 (HA) 154.
(61) All the quotations in this paragraph are from Sir Richard MacDonnell to the Duke of Newcastle, 25 September 1861, text in ‘Correspondence between the Governor of South Australia and the Secretary of State relative to Mr Justice Boothby’ in GBPP 1862  vol XXXVII, 21.
(63) In Driffield v The Registrar General (1863) Boothby had the support of the Supreme Court on the question of the colonial legislature's capacity to amend its constitution.
(64) Roberts Wray, Commonwealth and Colonial Law, 396–406, attempts a spirited latter-day defence of Boothby and the enduring depiction of him as a troublemaker ‘whose idiosyncracies worked like a cartload of bricks in the proverbial millpond.’
(65) Memorandum on the removal of colonial judges by Frederic Rogers (Colonial Under-Secretary), September 1868, GBPP 1870 XLIX (139) at 437–446.
(67) Hugh Seymour Tremenheere, The Constitution of the United States, Compared with Our Own (London: John Murray, 1854) 248–249. Tremenheere's account relied heavily on the Commentaries of Kent and Story as well as St George Tucker's popular American edition of Blackstone.
(68) GBPP 1862 XXXVII (3048) 180–184.
(69) I exclude from this the jurisprudence of the division of powers that emerged in Canada and later Australia.
(70) Colonial Laws Validity Act 1865, 28&29 Vict cap 63 (An Act to remove Doubts as to the Validity of Colonial Laws), Section 7.
(71) Roberts Wray, Commonwealth and Colonial Law, 397–398. The Act extended the rule not only to statutes but instruments passed under their authority.
(72) Musgrave v Pulido (1879) 5 App Cas 102.
(73) Courts did not develop a jurisprudence of any remark although the question resurfaced in an academic sense in the late 1960s just as (coincidentally?) the modern notion of judicial review of executive action was developing in English law; see D Swinfen, ‘The Legal Status of Royal Instructions to Colonial Governors’  Juridical Rev 21.
(74) Arthur Berriedale Keith, Responsible Government in the Dominions (2nd edn, Oxford: Clarendon Press, 1928) 95–98.
(75) Journals of the Continental Congress, vol 31, 490–493.
(76) South Carolina had wanted to handle Indian affairs itself; however in drafting the Articles of Confederation (July, 1776) James Wilson pointed out the Indians’ refusal to recognize any superior authority. He believed that only the United States in Congress assembled could deal with the Indians: Ibid vol 6, 1077–1079.
(77) FP Prucha, American Indian Treaties: the history of a political anomaly (London: University of California Press, 1994) 52–54.
(79) 1 Stat 329 (1729). Some eastern states remained unable to deal with this loss of authority and in several instances negotiated directly with the tribes for land, notably the state of New York (see Barbara Graymont, ‘New York State Indian Policy after the Revolution’ (1976) 57 New York History 438). Many of those were not approved by the federal government and were regarded as unfair by the tribes. Those claims were maintained over many generations and vindicated in County of Oneida v Oneida Indian Nation 435 US 191 (1978).
(80) US Const Article I, § 8, clause 3.
(83) 1 Stat 49 (1789).
(84) 9 Stat 395 (1849).
(85) F Prucha (ed), Documents of United States Indian Policy (2nd edn, London: Univserity of Nebraska Press, 1990) 37.
(86) 4 Stat 564 (1832).
(87) Journals of the Continental Congress vol 32, 340–341.
(88) 2 Stat 139, Section 12 (1802).
(89) 4 Stat 729 (1834).
(90) 4 Stat 735 (1834).
(91) Bates v Clark 95 US 204 (1877), 209. Also Wilkinson, American Indians, time, and the law 90–91.
(92) Prucha, American Indian Treaties 38–54.
(94) See generally Anthony Wallace, Jefferson and the Indians: The Tragic Fate of the First Americans (Cambridge, Mass: Harvard University Press, 1999); Jefferson's evolving native policy, culminating in his removalist disposition after the War of 1812: http://etext.lib.virginia.edu/jefferson/quotations/jeff1300.htm (extracts from his speeches and correspondence).
(95) Message of President Monroe on Indian Removal, 27 January 1825, in Prucha (ed), Documents, 39.
(97) See J Burke, ‘The Cherokee Cases: A Study in Law, Politics and Morality’ (1969) 21 Stanford Law Rev 500, and GE White, The Marshall Court and Cultural Change, 1815–35 (New York, 1988) ch 10, tit ‘Natural Law and Racial Minorities: The Court's Response to Slaves and Indians’.
(98) 4 Stat 411 (1830) which gave the President power to set aside districts ‘for the reception of such tribes or nations of Indians as may choose to exchange the lands where they now reside, and removal there… [to] forever secure and guaranty to them, and their heirs or successors, the country so exchanged with them …’. Removal was thus a voluntary process. It originated from Thomas Jefferson at the time of the Louisiana Purchase: Shattuck and Norgen, Partial Justice, 39.
(99) R Clinton, NJ Newton, and ME Price, American Indian law: cases and materials (3rd edn, Charlottesville, Va: Michie Co., 1991) 146.
(100) PT Shattuck and J Norgren, Partial Justice. Federal Indian Law in a Liberal Constitutional System (New York: Berg, 1991) 39. Also GS Woodward, The Cherokees (Norman: University of Oklahoma Press, 1963) 158–159.
(101) 30 US (5 Pet) 1 (1831) 21, 25, and 27. He added: ‘But I think it very clear that the Constitution neither speaks of them as States or foreign states, but just as they were—Indian tribes—an anomaly unknown to the books that treat of States, and which the law of nations would regard as nothing more than wandering hordes, held together only by ties of blood and habit, and having neither laws or governments, beyond what is required in a savage state” (27–28).
(102) 5 Pet, 29.
(103) 6 Pet, 361.
(104) United States v Kagama (1886) 118 US 375 and see Harring, Crow Dog's Case at 144–149 and the discussion later in this chapter.
(105) 6 Pet, 547.
(108) Chancellor Kent was later to write influential Commentaries on the American constitution. He used Vattel in confirming the juridical status of the Oneida Indian Nation in Jackson v Goodel 20 Johns, 193.
(109) E de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct of the Affairs of Nations and of Sovereigns (trsl of 1758 edn by CG Fenwick, Washington: Carnegie Institution, 1916) I, 1, paras 5–6; Introduction, para 18.
(113) J Quarles, ‘The Nature and Limitations of Sovereignty’ (1935) 24 Georgetown LJ 69.
(114) See JS Waterman, ‘Thomas Jefferson and Blackstone's Commentaries’ (1933) 27 Illinois L Rev 629.
(115) Quoted in Wilkinson, American Indians, Time and the Law, 54.
(117) Marshall's position was shared by the other two most distinguished jurists of his day, Joseph Story and Chancellor Kent.
(118) Worcester v Georgia 6 Peters, 590 per M'Lean J.
(119) S Harring, Crow Dog's Case, above, 102.
(121) (109) US 556 (1883), 559.
(122) Holdsworth, The History of English Law, vol 15, 356–360 reports that most books on jurisprudence published between 1850 and 1875 were Austinian in character.
(123) G Sabine and T Thorson, A History of Political Theory (4th edn, Hinsdale, Illinois: Dryden Press, 1973) 620.
(124) R Cotterell, The Politics of Jurisprudence, 79–82. Sir Frederick Pollock is quoted as saying that law would be ‘neither a trade, nor a solemn jugglery, but a science’ in D Sugarman, ‘Legal Theory, the Common Law Mind and the Making of the Textbook Tradition’ in W Twining (ed), Legal Theory and the Common Law (Oxford: Basil Blackwell, 1986) 26, 36.
(125) WL Morison, John Austin (London: Edward Arnold, 1982) 151–169. On Austin's influence in Africa see RB Seidman, The State, Law and Development (London: Croom Helm, 1978) 31–34.
(126) F Harrison, ‘The English School of Jurisprudence’ (1878) xxiv Fortnightly Review, 475–492; Sheldon Amos, The Science of Law (London: Henry S King, 1874). Also M Lobban, The Common Law and English Jurisprudence 1760–1851 (Oxford: Clarendon Press, 1991) 257 et seq.
(127) Lobban, above, 245–256.
(128) See M Francis, ‘The nineteenth century theory of sovereignty and Thomas Hobbes’ (1980) 1 History of Political Thought 517. Gerald Postema argues that it was Austin rather than Bentham who introduced Hobbesian authoritarianism into classical positivism: Jeremy Bentham and The Common Law Tradition (Oxford: Clarendon Press, 1986) 327.
(129) The Province of Jurisprudence Determined (1832, reprinted edn, London: Weidenfeld and Nicolson, 1955) 133.
(133) The Province of Jurisprudence Determined (1832, reprinted edn, London: Weidenfeld and Nicolson, 1955) 208. Jeremy Bentham in A Fragment on Government (1776, reprint edn by W Harrison, Oxford: Blackwells, 1948) para 48 had observed the absence of a legislator and habitual obedience in tribal society, as had Thomas Hobbes, Leviathan (1651, reprint edn London: Penguin, 1985) I, xiii, 63.
(134) Sero v Gault (1921) 64 DLR 327, 331.
(135) Robert J Surtees, ‘Indian Land Cessions in Upper Canada, 1815–1830’ in Ian A Getty and Antoine S Lussier (eds), As Long as the Sun Shines and the Water Flows. A Reader in Canadian Native Studies (Vancouver: University of British Columbia University Press, 1984) 65.
(136) Robert Surtees, ‘Land Cessions, 1763–1830’ in Edward S Rogers and Donald B Smith, Aboriginal Ontario Historical Perspectives on the First Nations (Toronto: Dundurn Press, 1993) 92.
(137) Opinion of Attorney-General Jameson (Upper Canada), 18 February 1836, NAC, RG 10, vol 6, 60737–60738.
(138) Also Robinson A-G to Boulton S-G, 31 October 1829, NAC RG 10, vol 5: fol 2290–2291 (Indians may bring actions on personal rights and wrongs but not collective rights or injuries); R v Baby (1854) 12 UCQB 346; Bown v West (1846) 1 E & A 117 (UCEC). Of Robinson generally see P Brode, Sir John Robinson. Bone and Sinew of the Compact (Toronto: Osgoode Society, 1984), which does not deal with Robinson's position on Indian relations, and ‘Robinson, Sir John Beverley’ Dictionary of Canadian Biography 9:668–679. Of the legal and political culture in Upper Canada at this time see GB Baker, ‘“So Elegant a Web”: Providential Order and the Rule of Secular Law in Early Nineteenth Century Upper Canada’ (1988) 38 University of Toronto LJ 184–205, and Carol Wilton, ‘“Lawless Law”: Conservative Political Violence in Upper Canada, 1818–41’ (1995) 13 Law and History Rev 111.
(139) (1852) 9 UCQB 105, 122–123.
(140) At 133–134.
(141) John Beverly Robinson, A-G, to Robert Wilmot Horton, Under-Secretary of State for War and Colonies, 14 March 1824, cited in Sero v Gault (1921) 64 DLR 327 (Ont SC) at 330 per Riddell J.
(142) Givins to Lieutenant-Colonel Rowan, Civil Secretary, 28 November 1832, enclosure in Sir J Colborne, Governor-General, to Viscount Goderich, 20 November 1932 in British Parliamentary Papers Anthropology ABORIGINES Volume 3 (Session 1834) (Shannon: IUP reprint series, 1968) 141, 145.
(143) National Archives (Canada), RG10 vol 60:60683. Jameson (A-G, Upper Canada) to J Joseph, Sec to Lt Gov, 24 February 1836.
(144) Annual Report 1856, in ‘Correspondence respecting the Indian Department in Canada’ GBPP (595) vol XLIV 3, 4.
(145) HC Darling, ‘Report on Indian Affairs’ to Lord Darling, 24 July 1828, Parliamentary Papers 1834 (no 617) 22, 30; JB Macaulay, ‘Report on Indian Affairs’, 1 April 1839 (NAC RG10, vol 717, no 168712); Report on the Affairs of the Indians in Canada 1844 [Bagot Report] Section I, 6 and Section III, 23; Report on Indian Affairs 1858 [Pennefather Report] 91–97.
(146) Report of HC Darling, enclosure in Lord Dalhousie to Sir George Murray, 27 October 1828, GBPP 1834, no 617, 22–29, 26.
(148) Commissioner of Indian Lands for Lower Canada v Payant (1856) 8 RJRQ 75; Nianentsiasa v Akwirente et al. (No 1) (1859) 3 LC Jur 316; Nianentsiasa v Akwirente et al (No 2) (1860) 4 LC Jur 367; Commissioner of Indian Lands v Jannal (1865) 18 RJRQ 187; Bastien v Hoffman (1867) 17 LCR 238.
(149) Harring, White Man's Law 169 et seq.
(150) (1867) 17 RJRQ 75, 79.
(152) Johnstone et al v Connolly (1869) 17 RJRQ 266.
(153) (1885) 13 RLOS 520 (QB), upheld on appeal (1886) 13 SCR 342. See also Harring, White Man's Law, 172–173.
(154) The case is discussed thoroughly in Harring, White Man's Law, ch 6. I cannot endorse his observation (125–126) that ‘the ignorance of the legal status of Indians and Indian lands shown by the dozen Canadian judges on three courts who passed on the case is remarkable.’
(155) (1885) 10 OR 196 (Chancellor Boyd).
(156) (1886) 13 OAR 148 (Hagarty CJO, Burton, Patterson, and Osler JJ A).
(157) (1887) 13 SCR 577 (Ritchie CJ, Strong, Fournier, Henry, Taschereau, and Gwynne J).
(159) The leading cases on the legal and constitutional status of the Indian tribes were decided after this case, and were Cherokee Nation v Georgia (1831) and Worcester v Georgia (1832). Some Canadian judges also referred to these cases but the main attention was given to Johnson v M'Intosh.
(160) Burton JA, 427.
(161) Taschereau J, 513.
(162) 23 Vict cap 15 (UK).
(163) Instructions to Captain Arthur Phillip, 23 April 1787 in GB Barton (ed), Historical Records of New South Wales (1889)[ HRNSW ], vol 1, 485.
(164) HRNSW 4, 2.
(165) Historical Records of Australia (Ser 1, 1917), vol 9, 141.
(166) R v Lowe  NSWSC 32 (18 May 1827). The report is available online at http://www.austlii.org/ au/special/nswsc/pre1900/1827/32.html.
(167) Bruce Kercher's informative (as always) notes to the case on the above website include references to the dispatches to London on these proceedings which indicated Lowe's almost certain guilt.
(168) For instance, ‘Return of all Trials of Aborigines with the Result arrived at’, enclosure in Governor Sir George Gipps to Lord Stanley, 21 March 1844 in Aborigines (Australian Colonies), GBPP 1844, no 627, 295 at 305.
(169) Bruce Kercher, ‘R v Ballard, R v Murrell and R v Bonjon’  AILR 27. The passages that follow are taken from this reprint (with notes) of the judgments.
(170) Also Barry Bridges, ‘The Extension of English Law to the Aborigines for Offences Committed Inter Se’ (1973) 59 Journal of the Royal Australian Historical Society 264.
(171) (1774) Lofft 655, 98 ER 723 (KB). This ‘proposition too clear to be controverted’ derived from Calvin's Case (1608) 1 Co Rep 17.
(172) Report, enclosure in Captain George Grey to Lord John Russell, 4 June 1840 in Aborigines (Australian Colonies), GBPP 1844, no 627, 100 at 100–101.
(175) Judge John Walpole Willis was something of a renegade as a judge being moved around the colonies from Canada, British Guiana, New South Wales, and finally to the outpost of Port Phillip: BA Keon-Cohen, ‘John Walpole Willis: First Resident Judge in Victoria’ (1972) 8 Melbourne University L Rev 703. For an account of this case see Susanne Davies, ‘Aborigines, Murder and the Criminal Law in Early Port Phillip, 1841–1851’ (1987) 22 Historical Studies 326.
(176) The prisoner was remanded and discharged the following month, so the issue as to jurisdiction—which would have been heard by his Supreme Court colleagues in Sydney—was never heard.
(178) Davies, ‘Aborigines, Murder and the Law’ 325–330.
(179) See Keegan, Colonial South Africa and the origins of the racial order, 137–158.
(180) Colonel Smith, notes of a ‘General Meeting with all the Tribes of the Caffres’, 7 January 1836 in (1837) GBPP, no 503, 247.
(182) Lord Glenelg to Sir B D'Urban, 26 December 1835, in (1836) GBPP, no 279, 59 at 68–69, 72.
(183) Keegan, Colonial South Africa and the origins of the racial order, 220.
(184) Lord Glenelg, Memorandum 15 December 1837, CO 209/2:409.
(186) Normanby to Hobson, Instructions 14 August 1839 in CO 881/1:25 at 1–2; also in HRNZ, I, 729.
(187) For instance, Glenelg, Memorandum, 15 December 1837, CO 209/2:409; Stephen to Vernon Smith, note, 28 July 1839, CO 209/4:343; Memorandum, 18 March 1840, CO 209/8:69; Stephen to Vernon Smith, note, 9 July 1840, CO 209/6:33; Hope to Somes, 10 January 1843, CO 209/18:388.
(188) L Chamerovzow, The New Zealand Question and the Rights of Aborigines (London: T C Newby, 1848), chs 2–3; opinion of Phillimore, 23 March 1848, Ibid appendix 3; opinion of Woolmer, 4 February 1848, Ibid appendix 25–28.
(189) Enclosure in Busby to Stanley, 39 March 1842, CO 209/19:103, 105. The same argument resurfaced late in the nineteenth century in the position taken by America as it formulated its position for the AngloAmerican arbitral tribunal in William Webster's Claim : see Kingsbury, ‘The Treaty of Waitangi: some international law aspects’ in Kawharu (ed), Waitangi, 121, 123–124. Eventually in 1925 the Tribunal rejected this approach, whilst accepting full original Maori sovereignty: (1926) 20 American J Intl L 391.
(190) Alan Ward, A show of justice: racial ‘amalgamation’ in nineteenth century New Zealand (Toronto: University of Toronto Press, 1973) 60.
(191) William Spain to Acting-Governor Shortland, 28 June 1843, enclosure in Shortland to Stanley, 13 July 1843, CO 209/22:271, 280.
(192) Attorney-General Swainson to Shortland, 27 December 1847, CO 209/16:487; opinion of 13 July 1843, enclosure in Shortland to Stanley, 13 July 1843 (no 2), CO 209/22:245, 285–293. See also his Report on Wairau Affair, 7 August 1843, CO 209/22:370. Also see the passages in NA Foden, New Zealand Legal History (1642–1842) (Wellington, NZ: Sweet & Maxwell, 1965) 97.
(193) Shortland to Stanley, 31 December 1842, CO 209/16:446 (declining to accept Swainson's opinion, preferring that of George Clarke, then Protector of Aborigines, and awaiting Stanley's response). But see the opinion of Attorney-General (later Chief Justice) James Prendergast, 30 June 1869, reprinted in HH Turton (ed), An Epitome of Official Documents relative to Native Affairs and Land Purchases in the North Island of New Zealand (Wellington: Government Printer, 1883) Part A, 191–194, esp 192.
(194) Stephen to May, 19 May 1843, CO 209/16:446: ‘… the local attorney Genl wholly omits to notice that by three formal commissions under the Great Seal of the United Kingdom, and by every other formal and solemn act, the Queen as now publicly asserted Her Sovereignty over the whole of the New Zealand island. Admit, if it must be so, that this was ill-advised—unjust—a breach of faith—and so on, yet who can gainsay that such are the claims of the Queen and of the Nation for whom H.M. acts.’ Hope and Stanley initialled their agreement, Ibid 455. Also Stanley to Shortland, 21 June 1843, CO 209/16:456.
(195) Stephen to Hope, 19 May 1843, CO 209/16:455.
(196) Stephen to Shortland, 21 June 1843, CO 209/16:457, 458–459.
(197) Stephen, Minute, 26 February 1846, CO 209/35:47.
(198) Native Exemption Ordinance 1844, sections 2 and 6 (with the exception of rape and murder).
(199) Ibid sections 4–5. Where a Maori was convicted for theft trial could be avoided by payment of four times the value of the goods (sections 6 and 7). The Ordinance was extended the next year to include convictions for assault with half the fine payable to the victim.
(200) Ward, A Show of Justice 66–67.
(201) The New Zealand Government Act 1846 (UK) 9 & 10 Vict cap 103, sections 2 and 11 proposing districts which should be ‘set apart’ and in which ‘such laws, customs, or usages [of Maori] should be so observed.’
(202) Ian Wards, The Shadow of the Land—A Study of British Policy and Racial Conflict in New Zealand 1832–1852 (Wellington: AR Shearer, Government Printer, 1968) 387–391.
(203) Governor George Grey passed the Resident Magistrates Courts Ordinance 1846 as well as the Unsworn Testimony Ordinance 1846 (allowing a non-Christian Maori to give un-sworn evidence).
(204) Sir George Grey to the Legislative Council, 10 October 1846 in The New Zealander, 3.
(205) 15 & 16 Vict cap 72, Section 73. (Interestingly this provision remained in force until 1986.)
(206) Lord Grey to Sir George Grey (draft) February 1852 had wondered if there would be ‘any present or probable necessity for the use of that power’: CO 881/1: no 31.
(207) Crown Law Officers to Colonial Office 25 June 1861, CO 885/10: no 71, fol 2.
(208) Edward Fairfield, ‘The New Zealand Question’, 13 April 1870 in Confidential Print CO 881/2: no 8, 7.
(209) Governor Gore Browne to the Duke of Newcastle, 1 November 1860, GBPP 1860, XLVII (552) 393, 394.
(210) See Damen Ward, ‘A Means and Measure of Civilisation: Colonial Authorities and Indigenous Law in Australasia’ History Compass 1 (2003) AU 049 001–023.
(211) (1877) 3 NZ Jur (OS) 72 (SC), 77.
(212) (1877) 3 NZ Jur (OS) 72 (SC), 79.
(213) For another New Zealand example Archdeacon Hadfield asked the Duke of Newcastle in a letter (29 May 1860) ‘are chiefs to be debarred from all right to defend their titles in a competent court of law?’ In BPP—Colonies—New Zealand, Vol 12 (Sess 1861) 248, 249.
(214) Entick v Carrington (1765) 19 St Tr 1030 (CP).
(217) Journal of Henry Sewell, II, 276.
(218) CW Richmond, Minister for Native Affairs, to the Lord Bishop of Wellington, 2 July 1860.
(219) Hoani Te Heu Heu Tukino v Aotea District Maori Land Board  AC 308.
(220) PG McHugh, ‘Aboriginal Title in New Zealand Courts’ (1984) 1 Canterbury L Rev 235.
(221) James Stephen, Minute, 8 March 1847 in CO 305/1:59.
(222) Text in ‘Despatches and Papers relating to Vancouver's Island and the Hudson's Bay Company’ in GBPP (1849), no 227, vol XXXV, 13, 15.
(223) The land purchases in New Zealand were used as a template by Douglas: Hamar Foster, ‘The Saanichton Bay Marina Case: Imperial Law, Colonial History and Competing Theories of Aboriginal Title’ (1989) 23 University of British Columbia L Rev 627; Chris Arnett, The Terror of the Coast: Land Alienation and Colonial War on Vancouver Island and the Gulf Islands, 1849–1863 (Burnaby, BS: Talonbooks, 1999) 30–38.
(224) See Robin Fisher, Contact and Conflict: Indian-European Relations in British Columbia, 1774–1890 (Vancouver: University of British Columbia Press, 1977) 54. The Company took the position that the New Zealand Company had advocated and which the 1844 Select Committee on New Zealand had urged. This was the view of the aboriginal title as extending only to those lands ‘actually occupied’ by the tribal inhabitants.
(225) Sir George Grey, Secretary of State, to Governor James Douglas, 5 April 1854, CO 305/5:193, 197.
(226) The model of Sir George Grey (the colonial Governor, not to be confused with the Secretary of State who shared the same name) was held up for Douglas by Lytton, Secretary of State, letter, 30 December 1858 in Papers Connected to the Indian Land Question at 15.
(227) An Act to provide for the Government of British Columbia, 21 & 22 Vict cap 99. Section 2 allowed the Governor direct rule over the mainland colony, ensuring no repetition of his unlawful assumption of government in Vancouver Island without a representative assembly. The Act gave the Crown the power by Order in Council to erect a local legislature (Section 3).
(228) Letters patent under the Great Seal and Instructions under the Sign Manual (1858) in GBPP (1859), no 2476, vol xvii, 3–8.
(230) Duke of Newcastle to Douglas, 19 October 1861, in Papers Connected to the Indian Land Question, 20.
(231) Fisher, Contact and Conflict 159.
(232) Robin Fisher, ‘Joseph Trutch and Indian Land Policy,’ in J Friesen and HK Ralston (eds), Historical Essays on British Columbia (Toronto: University of Toronto Press, 1976) 266.
(233) Seymour and his successor Musgrave had a hands-off attitude towards Indian affairs, leaving Trutch at the helm: Fisher, Contact and Conflict, 160–174.
(234) Indians were disappointed that entry into the Confederation made no provision for them. Indian affairs barely cropped up in the negotiations surrounding British Columbia's admission. The British Columbia legislature defeated 20 to 1 a motion for the protection of Indians whilst a second motion proposing to extend Canadian Indian policy to British Columbia was withdrawn. John Robson, premier of British Columbia from 1889–1892, had moved the second motion hoping for the extension of the Canadian system of appointing Indian agents to manage Indian interests. As a result, the Terms of Union for British Columbia contained no reference to Indians: Fisher, Contact and Conflict, 176.
(236) For instance John F McEldowney, ‘Dicey in Historical Perspective—A Review Essay’ in P McAuslan and McEldowney (eds), Law, Legitimacy and the Constitution (London: Sweet & Maxwell, 1985) 39–61; M Loughlin, Public Law and Political Theory (Oxford: Clarendon Press, 1992) 21–22 on the influence of Austin and Dicey's authority.
(237) For Austin's great influence on Dicey see RA Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist (London: Macmillan, 1980) 70.
(238) See JW Burrow, A liberal descent: Victorian historians and the English past (Cambridge: Cambridge University Press, 1981), and James Vernon, ‘Narrating the constitution; the discourse of “the real” and the fantasies of nineteenth-century constitutional history’ in Vernon (ed), Re-reading the constitution: new narratives in the political history of England's long nineteenth century (Cambridge: Cambridge University Press, 1996) 204.
(239) See Jim Evans, ‘The Doctrine of Precedent During the Nineteenth Century’ in L Goldstein (ed), Precedent in Law (Oxford: Clarendon Press, 1987) 35, especially 64–72 noting this as a product of the positivization of common law method heavily influenced by Bentham and Austin.
(240) Indian Commissioner Crawford, Annual Report of the Commissioner of Indian Affairs, 25 November 1838 in Prucha (ed), Documents, 73, 74.
(241) J Belich, The New Zealand Wars and the Victorian Interpretation of Racial Conflict (Auckland: Auckland University Press, 1986) 298–310.
(242) I use the phrase of Stephen Cornell in The Return of the Native: American Indian Political Resurgence (Oxford: Oxford University Press, 1988) 7.
(243) After 1828 the control of the Indian Department in Upper Canada ceased to be under the military.
(244) An Act respecting the Management of the Indian Lands and Property, Stat Can 1860, 23 Vict cap 151.
(245) Sir George Murray, Secretary of State for War and the Colonies to Sir John Kempt, Governor-General, 25 January 1830 in Imperial Blue Books, 1834, no 617, 87–89.
(246) Statutes Nova Scotia 1842 cap XVI.
(247) Statutes Nova Scotia 1859 cap 14.
(248) See PA Cumming and NH Mickenberg (eds), Native Rights in Canada (2nd edn, Toronto: Indian-Eskimo Association of Canada, 1972) 103–105.
(249) Province of Canada, Journals of the Legislative Assembly of Canada, 1844–5, Appendix EEE, ‘Report on the Affairs of the Indians in Canada’, 20 March 1845.
(250) John S Milloy, ‘The Early Indian Acts: Developmental Strategy and Constitutional Change’ in Ian Getty and Antoine S Lussier, As Long as the Sun Shines and the River Flows. A Reader in Canadian Native Studies (Vancouver: University of British Columbia Press, 1983) 56, 58.
(251) Stat Can, 20 Vict cap 26 (10 June 1857).
(252) Milloy, above, 61.
(254) Act for the Gradual Enfranchisement of Indians and the Better Management of Indian Affairs 1869, Stat Can 1869, cap 6.
(255) Milloy, above, 62.
(256) Deputy Superintendent William Sprague to Secretary of State Joseph Howe, 2 February 1871; quoted in W Daugherty and D Madill, Indian Government under Indian Act Legislation (Ottawa: Department of Indian and Northern Affairs, 1980) 2.
(257) R Bartlett, The Indian Act of Canada (Saskatoon: Native Law Centre, 1980) 4–5.
(258) In Logan v Styres (1954) 20 DLR (2d) 416 (Ont HC) the hereditary chiefs of the Six Nations challenged the enforced application of the elective mode of government to a reserve at Brantford, Ontario. Justice King commented that the elective mode had to prevail even though ‘it might be unjust or unfair under the circumstances for the Parliament of Canada to interfere with their system of internal Government by hereditary Chiefs’ (422). See similarly Isaac v Davey (1977) 16 NR 29. For the lack of success of the elective mode see Bartlett, The Indian Act of Canada, above, 14–19.
(259) Those powers, after some extension in the 1951 revision and consolidation of the Indian Act, were associated with those given a rural municipality under Canadian law: Indian Affairs Branch Annual Report 1952 cited in Bartlett, Indian Act of Canada, above, 19.
(260) RCAP, Restructuring the Relationship (Ottawa: Supply and Services Canada, 1996) II, 235.
(261) Val Napoleon, ‘Extinction by Number: Colonialism Made Easy’ (2001) 16 Canadian Journal of Law and Society 113, 126–128.
(262) Alan Ward, A Show of Justice, 90.
(263) Journal entry of 20 October 1861, quoted by Ward, above, 126.
(264) Fox, Memo, 7 December 1861, quoted by Ward, above, 127.
(265) The Native Districts Regulation Act Amendment Act 1862, no 39, confirmed that model of ‘native (by-) law’ being applied through officialdom. It provided that a majority of the Europeans assembled at a public meeting could resolve their desire to be brought under the Act (Section 5). Upon receipt of the resolution the Governor in Council was empowered to suspend those parts of the Act that excluded lands inhabited by the ‘mixed population.’
(266) Richmond to Governor Gore Browne, 28 September 1858, 1860 AJHR, E-1, 7.
(267) Duke of Newcastle to Sir George Grey, 26 May 1862: GBPP 1863 (177) vol XXXVIII 8.
(268) Report of W Murdoch and Frederic Rogers (Permanent Under-Secretary, 1860–71) on management & c of natives in New Zealand, 1 February 1860, in Confidential Print, CO 881/2.
(270) Fairfield, ‘The New Zealand Question’ (1870) 19.
(271) New Zealand Provincial Governments Act (UK) 1862, 25 & 26 Vict cap xlviii Section 8. This included the competence to make any implied repeal of the provision, as by the New Zealand Settlements Act 1863 confiscating the land of ‘rebellious’ Maori: In re the Lundon and Whitaker Claims Act 1871 (1872) 2 CA 41.
(272) DV Williams, ‘Te Kooti tango whenua’: the Native Land Court 1864–1909 (Wellington, NZ: Huia Publishers, 1999) 162–167. See Timu Kerehi v Duff (1902) 21 NZLR 416.
(273) Native Lands Act 1867, Section 17.
(274) Williams, above, 169–173.
(275) Orakei Report (1987) 154.
(276) Williams, above, at 167.
(277) The Maori Land Courts—Report of the Royal Commission of Inquiry (Wellington: Government Printer, 1980) 2.
(278) New Zealand PP 1890, G 1, 3.
(279) See ‘Introduction’ to the Native Land Act 1909 (probably written by Sir John Salmond).
(280) See DV Williams, ‘Te Kooti tango whenua’, above, for a full history especially at 209–225 (on ineffective protective mechanisms).
(281) Pateriki Hura v Aotea District Maori Land Board  GLR 173 and the famous dictum of Hutchison J in Re Mangatu Nos 1, 3 and 4 Blocks  NZLR 624 stating that it ‘has long been recognised that the policy of the Maori land legislation has been to protect the Maori in his ownership of his land and that the jurisdiction exercised by the Maori Land Court has been of the nature of that of a guardian.’
(282) For instance Richard Boast in Spiller, Finn, and Boast, A New Zealand Legal History (Wellington: Brookers, 1995) 147, and Richard Boast et al, Maori Land Law (Wellington, NZ: Butterworths, 1999) 61–64; also the various papers and evidence presented before the Waitangi Tribunal by Fergus Sinclair, see the discussion in Williams, ‘Te Kooti tango whenua’ at 24–28. These writers challenge the wholly negative characterization of the Land Acts as simplistic and overlooking Maori agency. Williams’ response, Ibid —in keeping with his admittedly Whig historiography (or retrospective jurisprudence)—is that one must look at the overall result shown by hindsight rather than impressions and conduct of Maori and others at the time.
(283) Williams, above, 22–23 and 187–189.
(284) Bryan Gilling, ‘The 1840 Rule in the Maori Land Court’ (1994) 16 New Zealand Universities L Rev 136.
(285) Jan Roberts, Massacres to Mining (Blackburn, Aust: Dove Communications, 1981) 13–15.
(286) Quoted in J Chesterman and B Galligan, Citizens without Rights: Aborigines and Australian Citizenship (Cambridge: Cambridge University Press, 1997) 19.
(287) Chesterman and Galligan, above, 16–19 and see 21–30 (Victoria) and 53–56 (Queensland).
(288) Chesterman and Galligan, above, 14–15.
(289) An Act to Provide for the Protection and Management of the Aboriginal Natives of Victoria, 1869 (Vic). Regulations were gazetted under this statute in 1871 (Victorian Government Gazette 1871, 338–339).
(290) Regulation 2, 1880, quoted in Chesterman and Galligana, Citizens Without Rights, 18.
(291) Aborigines Protection Act 1886 (WA), Section 2.
(292) Aborigines Act 1897 (WA), see sections 4, 5, and 7. This was the so-called ‘Section 70 compromise’, see P Johnston, ‘The Repeals of Section 70 of the Western Australia Constitution Act 1889: Aborigines and Governmental Breach of Trust’ in (1989) 19 Western Australia L Rev 318.
(293) Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld).
(294) Chesterman and Galligan, Citizens Without Rights, 37–38.
(295) Elections Act 1885 (Qld), Section 6.
(296) An Act to Allow the Aboriginal Natives of New South Wales to be received as Competent Witnesses in Criminal Cases 1839 (NSW); An Act to Prohibit the Aboriginal Natives of New South Wales from Having Fire Arms or Ammunition in their Possession without the Permission of a Magistrate 1840 (NSW); Liquor Act 1898 (NSW), Section 48 (replacing earlier prohibitions).
(297) Chesterman and Galligan, Citizens Without Rights, 65.
(298) Chesterman and Galligan, Citizens Without Rights, 121 et seq.
(299) M Gumbert, Neither Justice Nor Reason: a legal and anthropological analysis of aboriginal land rights (St Lucia, Qld: University of Queensland Press, 1984) 18–20.
(301) The historian Henry Reynolds has tried to rehabilitate the Aborigine to this form of Australian history. Although his work establishes the Aborigine was a matter of political (and legal) concern during the colonial (and pre-confederation) period, he does not make a case for the existence of a history of political relations.
(302) Act of Congress, 3 March 1871, 2079 Revised Statutes, 1871.
(303) F Hoxie, The Final Promise: The Campaign to Assimilate the Indians, 1880–1920 (Lincol, Neb: University of Nebraska Press, 1984).
(304) 118 US 375 (1886).
(305) Ralph James Mooney, ‘Matthew Deady and the Federal Judicial Response to Racism in the Early West’ (1984) 63 Oregon L Rev 561. Less sympathetically see Deborah Niedermeyer, ‘“The True Interests of a White Population”: The Alaska Country Decisions of Judge Matthew P Deady’ (1988) 21 International Law and Politics 195.
(306) United States v Tom 1 Or 26 (1853).
(307) US v 43 Gallons of Whiskey 93 US 188 (1876), esp 195; United States v Joseph 94 US 614 (1876), 617; Elk v Wilkins 112 US 94 (1884) at 98–99; Eastern Band of Cherokees v US 117 US 288 (1886), 309–310.
(308) See generally William W Quinn Jr, ‘Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept’ (1990) 34 American J of Legal History 331 (esp 352–353).
(309) Montoya v United States 180 US 261 (1901), 266.
(310) F Cohen, ‘Indian Rights and the Federal Courts’ (1940) 24 Minnesota L Rev 145.
(311) United States v Whaley 37 F 145 (CCSD Cal, 1888).
(312) ‘Cherokee delegates defend their Land and Insititutions, 1895’, address by Principal Chief SH Mayes to Congress, 1895, in A Hurtado and P Iverson (eds), Major Problems in American Indian History (2nd edn, Boston: Houghton Mifflin Co, 2001) 351.
(313) Talton v Mayes 163 US 376 (1896).
(314) F Cohen, ‘Indian Rights and the Federal Courts’ (1940) 24 Minnesota L Rev 145.
(315) WT Hagan, ‘Private Property: The Indians’ Door to Civilisation’ (1956) 3 Ethnohistory 126.
(316) Harring, Crow Dog's Case, above, 143.
(317) Prucha, American Indian Treaties, 241–242.
(318) ‘Cherokee Delegates Defend their land, 1895’, above.
(319) Clinton, Newton, and Price, American Indian Law, 148–152. Also Theresa Wilson, ‘Nations within a Nation: The Evolution of Tribal Immunity’ (1999–2000) 24 Am Indian L Rev 99, 107.
(320) Quoted in Wilkinson, American Indians, Time and the Law, 19.
(322) Wilkinson, American Indians, Time and the Law, 88.
(323) 104 US 621 (1882).
(324) Wilkinson, American Indians, Time and the Law, 89.
(325) Worcester v Georgia 31 US 515 (1832), 561.
(326) The Indian Trade and Intercourse Act, ch 161, 4 Stat 729 (1834).
(327) Joseph Matal, ‘A Revisionist History of Indian Country’ (1997) 14 Alaska Law Review 283, 292.
(328) Donnelly v United States 228 US 243 (1913).
(329) United States v Pelican 232 US 442 (1913).
(330) See John Bielski, ‘Judicial Denial of Sovereignty for Alaskan Natives: An end to the era of selfdetermination’ (2000) 73 Temple L Rev 1279, 1298.
(331) United States v McGowan 302 US 535 (1937).
(332) United States v Sandoval 231 US 28 (1913), 46.
(333) Codified as 18 USC §1151.
(334) 112 US 94, 99 (1884).
(335) 255 US 373, 391 (1921).
(336) Act of 2 June 1924, ch 233, 43 State 253 (repealed 1952).
(337) Choteau v Burnet 283 US 691, 696 (1931).
(338) 187 US 553 (1903), 568.
(339) 231 US 28 (1913).
(340) See Wilkinson, American Indians, Time and the Law, 78–86.
(341) See Harring, Crow Dog's Case, 182–185.
(342) Ibid 186. Note the Board of Indian Commissioners’ view of the courts as disciplinary rather than formal courts, Ibid 188. The Board of Commissioners was ‘a semi-official body of humanitarian and philanthropical men’ established by Congress in 1869: Prucha, Indian Policy in the United States: historical essays (Lincoln: University of Nebraska Press, 1981) 200.
(345) See Linda Lacey, ‘The White Man's Law and the American Indian family in the Assimilation Era’ (1986) 40 Arkansas L Rev 327.
(346) Act of 13 July 1892, cap 164, §1, 27 Stat 120, 143.
(347) Lacey, ‘White Man's Law’, 359.
(348) From W Hagan, Indian Police and Judges; Experiments in Acculturation and Control (New Haven: Yale University Press, 1966) 110.
(349) Lacey, ‘White Man's Law’, 360–361.
(350) More fully see A Watson, ‘European International Society and its Expansion’, and H Bull, ‘The Emergence of a Universal International Society’ in Bull and Watson (eds), The Expansion of International Society (Oxford: Clarendon Society, 1984) 13 and 117.
(351) Such treaties were limited to the ‘civilized’ states: George Cornwall Lewis, On Foreign Jurisdiction (1859) 35 et seq; FW Gibbs, Extradition Treaties (London: W Ridgway, 1868).
(352) These treaties are listed chronologically in the SCI, II, pt 2, 123 et seq. They became frequent during the second quarter of the nineteenth century, the ‘uncivilized’ states being largely excluded from this treatymaking activity.
(353) ‘The Standard of Civilisation in International Law’  Current Legal Problems 212, 220.
(354) Many of the publicists indicated the standard had its origins in the requirements and practice of Christian civilization. For example: J Mackintosh, A Discourse on the Study of the Law of Nature and Nations (London: T Cadell Jr and W Davies, 1799) 5 and 62; H Wheaton, Elements of International Law (London: B Fellowes, 1836) 50–51; J Kent, Commentaries on International Law (revised English edition by JT Abdy, London: Stevens & Sons, 1866); TD Woolsey, Introduction to the Study of International Law (4th US edn, London: Sampson Low, Marston, Low and Searle, 1875) 3–5; J Lorimer, The Institutes of the Laws of Nations. A Treatise of the Jural Relations of Separate Political Communities (2 vols, Edinburgh: William Blackwood & Sons, 1883) I, 113–126; TE Holland, Studies in International Law (Oxford: Clarendon Press, 1898) 113–114; cf L Oppenheim, International Law—A Treatise (2 vols, New York: Longmans, Green & Co, 1905) 31–32.
(355) Mackintosh, Discourse (1799), above, 61–62; GF Martens, The Law of Nations (trsl of 4th edn by W Cobbett, London: W Cobbett, 1829) 5 and translator's note; Wheaton, Elements (1836), above, 50–54.
(356) Turkey's recognition as a civilized state is traditionally dated from the Treaty of Paris (1856). See Naff, ‘The Ottoman Empire and the European States System’ in Bull and Watson, Expansion of International Society, above, 143, and G Gong, The Standard of ‘Civilisation’ in International Society (Oxford: Clarendon Press, 1984) 106–119.
(357) See Holland, Studies in International Law (1898), above, 113–114 (Japan's status doubtful), and Lectures on International Law (TA and WA Walker (eds), London: Sweet & Maxwell, 1933) 39 (Japan admitted to the ‘charmed circle’), and generally Gong, The Standard of ‘Civilisation’, above, 164–200 and Suganam, ‘Japan's Entry into International Society’ in Bull and Watson (eds), International Society and its Expansion, above, 185.
(358) Holland, Lectures (1933), above, 39 (China's status still doubtful), and generally Gong, Standard of ‘Civilisation’, above, 130–163 and ‘China's Entry into International Society’ in Bull and Watson (eds), Expansion of International Society, 171.
(359) For the status of other states such as Persia, Siam, Abyssinia, and Liberia see, for example, Oppenheim, International Law (1905), above, 32–34, and Holland, Lectures (1933) 38–39. Generally Gong, The Standard of ‘Civilisation’ and Bull and Watson (eds), The Expansion of International Society.
(360) The Final Act of the Berlin Conference (articles 34 and 35) created a notification system amongst the European powers in relation to their ‘possessions’ in Africa, those invariably being claimed through treaty with the native polities.
(361) Westlake, Chapters on the Principles of International Law (Cambridge: the University Press, 1894) 144–155; TA Walker, A Manual of Public International Law (Cambridge: the University Press, 1895) 27–31; TJ Lawrence, The Principles of International Law (London: Macmillan, 1895) 143–156; Oppenheim, International Law (1905) 278–279; J Westlake, International Law (2nd edn, 2 vols, Cambridge: the University Press, 1910–13) 93–94.
(362) The SCI lists the following number of treaties in Africa: Belgium 3, France 5, Germany 75, Britain 85, Italy 327, and the Netherlands 339. See generally the classic work of MF Lindley, The Acquisition and Government of Backward Territory in International Law (New York: Longmans, Green & Co, 1926) 140–148 and Bull, ‘European States and African Political Communities’ in Bull and Watson (eds), Expansion of International Society, 99 esp 111–112.
(363) Most writers, including those not dealing expressly with the status of uncivilized societies, defined international law as the rules governing the conduct of European states at large (as opposed to inter se). For example: Mackintosh, Discourses (1799) 61–63; Martens, The Law of Nations (1829, trsl Cobbett) 3–5; Wheaton, Elements (1836) 54; HW Halleck, International Law; or Rules Regulating the Intercourse of States in Peace and War (San Francisco: HH Bancroft & Co, 1861) 43–51; Abdy (ed), Kent's Commentaries (1866) 6 and 11; S Amos, Lectures on International Law (London: Steven and Sons, 1897) 13; T Twiss, The Law of Nations considered as independent political communities (2nd edn, Oxford: Clarendon Press, 1884) 145–149; R Phillimore, Commentaries on International Laws (3rd edn, 4 vols, London: Butterworths, 1879–89) 349; H Maine, International Law (2nd edn, London: John Murray, 1894) 32–35.
(364) L Levi, International Law with Materials for a Code of International Law (London: Kegan Paul, French & Co, 1887) 83–84; Twiss, The Law of Nations (1884), above, 27; F Wharton, A Digest of the International Law of the United States (3 vols, 2nd edn, Washington: Government Printing Office, 1887) II, 533; Maine, International Law (1894) 58–59; E Creasy, First Platform of International Law (London: John Van Voorst, 1876) 94–98.
(365) See Lindley's review of the publicists in Acquisition and Government of Backward Territory, above, 12–23.
(366) WO Manning Jr, Commentaries on the Law of Nations (revised edn, by S Amos, London: H Sweet, 1875) bk 3, ch 3.
(367) Commentaries (1879) 22–23.
(368) Further examples include JS Mill, ‘A Few Words on Non-Intervention’ in Dissertations and Discussions (4 vols, London: John W Parker and Son, 1859–75) III, 152; Westlake, Chapters, above, 143–184; Lawrence, Principles of International Law (1895) 68–69 (American Indians and East Indian principalities), 145–156 (barbarous communities); Oppenheim, International Law (1905) 33–34 (Persia, Siam, China etc), 268–269 and 276–281 (treaties with tribes).
(369) Acquisition and Government of Backward Territory, above, 18–23 and 47.
(370) Commentaries (1879) 349.
(371) Treaty with the King of Lagos, 6 August 1861: 123 CTS 234, 256.
(372) Instrument of Cession, 10 October 1874, text in CO 881/4:44 at 9–10; Fiji Government Gazette, October 1874. Proclamation of British sovereignty by Sir Hercules Robinson dated the same day.
(373) SCI 170–171.
(374) Maine, International Law (1894), above, 71–75; Lindley, Acquisition and Government of Backward Territory 24–44; E Hertslet, ‘Memorandum on formalities necessary for effective annexation’, 18 October 1884 in FO 84/1813:246–265, points 4 and 6.
(375) ‘The Pelican’—Burke (1809) Edw (App) iv (PC); In re the Government of Peru (1823) BILC 12 (Ch); Jones v Garcia de Rio (1823) T & R 297 (Ch), 299. See also Phillimore to Foreign Office, opinion 31 March 1865 in CO 885/10: 323A.
(376) HA Smith (ed), Great Britain and the Law of Nations (2 vols, London: PS King & Son, 1932).
(377) Confidential Instructions to Layard, August 1873 in CO 881/13:37.
(378) For instance Nabob of Arcot v East India Co (1791) 1 Ves Jun 370, 2 Ves Jun 56; Doss and the Estate of the Ex-King of Delhi (1867) 11 Moo Ind App 277 (PC); Mayor of the City of Lyons v East India Co (1836–7) 1 Moo PC 175 (sovereignty obtained gradually with Mughal permission); Advocate-General of Bengal v Ranee Surnomoye Dossee (1863) 9 Moo Ind App 387 (PC); Secretary of State for India in Council v Bai Rajbai (1915) LR 42 Ind App 229 (PC); Vajesingji Joravasingji v Secrtary of State for India in Council (1924) Lr 51 Ind App 357 (PC).
(379) Other cases recognizing the capacity of African tribes to enter into treaties of cession include Cook v Sprigg  AC 572 (PC); Amodu Tijani v The Secretary, Southern Provinces  2 AC 399; Oyekan v Adele  2 All ER 785 (PC); Ol De Njogo v Attorney-General  Kenya Law Reports 70 (East Africa CA), holding that agreements with Masai chiefs were not enforceable contracts but international treaties unenforceable in municipal courts.
(380) Hoani Te Heu Heu Tukino v Aotea District Maori Land Board  AC 308 (PC) (original sovereignty of Maori tribes recognized); and these cases recognizing the sovereign capacity of the native King Docemo in ceding Lagos in 1862: Attorney-General (Southern Nigeria) v John Holt & Co  AC 599 (PC); Amodu Tijani v The Secretary (Southern Provinces)  2 AC 399 (PC); Oyekan v Adele  2 All ER 785 (PC).
(381) Province of Jurisprudence Determined (1832) 241.
(382) M Hailey, An Africa Survey Revised 1956: A Study of Problems arising in Africa South of the Sahara (Oxford: Oxford University Press, 1957) 414.
(383) Quoted in R Oliver and A Atmore, Africa since 1800 (Cambridge: Cambridge University Press, 1967) 162.
(384) For instance FG Snyder, ‘Colonialism and legal form—the creation of “customary law” in Senegal’ (1981) 19 Journal of Legal Pluralism 49; S Roberts, ‘Introduction: some notes on “African customary law”’ (1984) Journal of African Law 1.
(385) Hall, Foreign Powers and Jurisdiction, above, 133 and 149–150.
(386) GE Metcalfe, Maclean of the Gold Coast (London: Oxford University Press, 1962) 170–171 and 177. As to the legality of this jurisdiction see Stanley to Hill, 16 December 1843, CO 96/5. Maclean argued unsuccessfully that Britain held the de facto sovereignty of the region: Maclean to Stanley, 2 February 1844, Ibid. The Gold Coast factories were assumed by the Crown in 1843 (where sovereignty was held) whilst a series of protection treaties or bonds were negotiated with the Fanti and other tribes. The Gold Coast, with Ashanti (conquered after a series of wars, 1901), Northern Territories (Protectorate) [refer Order in Council of 26 September 1901] and Togoland (Mandate, then Trusteeship) became the independent country of Ghana in 1957. See Roberts-Wray, Commonwealth and Colonial Law, 788–790.
(387) Stephen to Hope, 26 December 1842 in CO 96/2.
(388) Text in W Hope Scott, ‘Report on British Jurisdiction in Foreign States’, Lincoln's Inn, 1843 reprinted as Appendix VI in H Jenkyns , British Rule and Jurisdiction beyond the Seas (Oxford: Clarendon Press, 1902).
(389) Cf Papayanni v Russian Steam Company (1863) 2 Moo PC (NS) 161, 15 ER 862, 870.
(390) (1863) 2 Moo PC (NS) 161.
(391) See Hall, Foreign Powers and Jurisdiction (1894) for an ‘Index of Orders in Council’ at 298 showing the regularity and frequency with which the Acts were used. See also L Hertslet (ed), Hertslet's Commercial Treaties (London, 1827–1925), vol XXII, 626–646 listing British treaties of jurisdiction and the Orders in Council under the Foreign Jurisdiction Acts establishing such rights.
(392) The Crown's foreign jurisdiction in Eastern countries (such as Turkey, Persia, China, and Japan) was usually distinguished from that in ‘barbarous’ (ie tribal) regions: Hall, Foreign Powers and Jurisdiction, 122, Jenkyns, British Rule and Jurisdiction, chs viii and ix; Paunceforte, ‘Papers relating to Foreign or Ex-territorial Jurisdiction’ in FO 91/497 (nf) (no date, c 1876).
(393) Instructions to Lieu-Gov Hill, 16 December 1843 in CO 96/2:121–132. The Bond of 6 March 1844 with the Fanti Chiefs (96 CTS 235) was concluded to regularize British jurisdiction on the Gold Coast (Hill to Stanley, 6 March 1844 in CO 96/4:98); Merivale, Memorandum for Cabinet, April 1851 in CO 879/1xx; Holland, Minute of 25 June 1874 in CO 96/113:416–427; Law Officers to Kimberley, 3 August 1880 in CO 48/498:81; Law Officers to Granville, 21 April 1886 in FO 84/2275:81. Also the following Orders in Council: Africa (1892 and 1899, the latter applying to ‘natives of Africa, being subjects of any native King or Chief, who, by Treaty or otherwise, consents to their being subject to the jurisdiction’); West Africa (1885); Gold Coast (1844, 1856, 1874, and 1887); Sierra Leone (1850, 1853, 1895); Gambia (1893); Lagos (1887); Niger Region (1872); Mashonaland and Matabeleland (1894); South Rhodesia (1898); Northwest Rhodesia (1899); Northeast Rhodesia (1900); Bechuanaland (1885 and 1851); East Africa (1897 and 1899).
(394) Foreign Office reference to Law Officers, 18 October 1866 in FO 83/2314:282–284 and 302–305; Law Officers to Stanley, 18 May 1868 in FO 58/124:162–168; Foreign Office to Colonial Office, 2 February 1869 in FO 58/124:20, 28; Law Officers’ opinion, 22 July 1871 in FO 83/2314; Law Officers to Carnarvon, 10 April 1875 in CO 881/4:no 42; Paunceforte, ‘Memorandum on HM Jurisdiction in Western Polynesia’, 1876 (no date) in FO 97/497 (nf).
(395) Two influential British officials in the Pacific, Jones and Thurston, determined the British position on the juridical status of the island communities during the third quarter of the nineteenth century: Jones toForeign Office, 6 October 1864 in FO 58/124:35–38; Jones to Foreign Office, 24 November 1865, Ibid, 65–68; Jones, ‘Report on the Present Social and Political Conditions of the Fiji Islands’, enclosure in Jones to Foreign Office, 18 July 1867, Ibid, 80–89; Jones’ influence noted in Law Officers to Stanley, 18 August 1868 in FO 83/2314:308–311; Thurston to Belmore (NSW), 22 July 1868 in CO 881/3:20 at 38–39; Thurston to Colonial Office, 2 September 1892 and 22 December 1894 in CO 225/45.
(396) The Nuer were a pastoral people living along the upper Nile, with no laws or leaders and were strongly individualistic, with social order maintained by community values and a segmentary tribal and lineage system. The classic account is EE Evans-Pritchard, The Nuer: A Description of the Modes of Livelihood and Political Institutions of a Nilotic People (Oxford: Oxford University Press, 1940). Nilote is a term for the indigenous peoples living on or near the Bahr al Jabal and its tributaries. The term refers to people speaking languages of one Section of the Nilotic sub-branch of the Eastern Sudanic branch of Nilo-Saharan and sharing a myth of common origin. They are marked by physical similarity and many common cultural features. Many had a long tradition of cattlekeeping, including some for whom cattle were no longer of practical importance. Because of their adaptation to different climates and their encounters, peaceful and otherwise, with other peoples, there was also some diversity among the Nilotes. Despite the civil war and famine, the Nilotes still constituted more than three-fifths of the population of southern Sudan in 1990. One group—the Dinka—made up roughly two-thirds of the total category. The next largest group, only one-fourth to one-third the size of the Dinka, were the Nuer. Relations among Nilotic peoples were affected in the nineteenth century by the intrusion of Ottomans, Arabs, and eventually the British. Some ethnic groups made their accommodation with the intruders and others did not, in effect pitting one southern ethnic group against another in the context of foreign rule. For example, some sections of the Dinka were more accommodating to British rule than were the Nuer. These Dinka treated the resisting Nuer as hostile, and hostility developed between the two groups as result of their differing relationships to the British. The granting of Sudanese independence in 1956, and the adoption of certain aspects of Islamic law or the sharia, by the central government in 1983 greatly influenced the nature of relations among these groups in modern times. (See http://lcweb2.loc.gov/frd/cs/sdtoc.html.)
(397) The Sakai were the indigenous inhabitants of the part of the Malay Peninsula known as Negri Sembilan (Nine States) that came under British protection in 1886. This region was treated as a single entity in the late nineteenth century.
(398) Gorrie (Chief Justice of Fiji) to Hicks Beach, 16 September 1878 in CO 225/1; Hicks Beach to Law Officers, 4 January 1879, Ibid 303, 310; Law Officers to Hicks Beach, 20 March 1879 (jurisdiction over natives required Order in Council under the Foreign Jurisdiction Act or territorial sovereignty) in CO 225/4:23–25; Herbert, note regarding Sir A Gordon's (Western Pacific High Commissioner) complaints about lack of jurisdiction over natives, 22 May 1881 in CO 225/9:303, 310; Selborne LC noting that any such legislation despite the ‘theoretical difficulty’ should ‘be carefully limited to acts of murder or other violence… in order to bring it, as distinctly as possible within recognised principles of jurisprudence’, 30 May 1881, Ibid 314. Draft Bill of 1881 giving Her Majesty power to erect courts to try natives for ‘any crimes of violence’ with the proviso that this ‘Act shall not be deemed to confer on Her Majesty any dominion or sovereignty over the Pacific Islands or the inhabitants thereof ’ in CO 225/11:19–20. Jenkyns to Herbert, note agreeing with Law Officers’ condemnation, 4 April 1882, Ibid, 21–26; Earl of Derby, note calling the Draft Bill ‘a complete innovation in regard to its theory’, 31 January 1883, Ibid 18. The Draft Bill lapsed: Johnston, Sovereignty and Protection, 138. In 1865 the Law Officers had condemned an American Act of Congress, similar to the Draft Bill of 1881, as incapable of conferring a jurisdiction upon American Consuls over natives who had not conceded or recognized American authority: Law Officers to Russell, 5 May 1865 in FO 83/2314; Russell to Jones, 11 May 1865 in FO 58/124.
(399) Law Officers to Stanley conceding for the first time that imperial legislation might give a Commissioner ‘limited jurisdiction in Civil and Criminal Cases over British subjects’ in the Pacific islands where a jurisdiction could not be got from native authorities for the purposes of the Foreign Jurisdiction Act, 18 August 1868 in FO 83/2314:308–311. Reilly's Draft Bill (enclosure in Memorandum, 1 January 1869 in FO 58/124:227) to that effect eventually lapsed (Vivian to Holland, 4 April 1871, Ibid 312–315) but the principle resurfaced in the Pacific Islanders Protection Act 1875.
(400) Paunceforte, ‘Memorandum on Her Majesty's Jurisdiction in Western Polynesia’ 1876 (no date) in FO 97/497:nf.
(401) 38 & 39 Vict cap 51; see permissive opinion of Law Officers to Carnarvon, 10 April 1875 CO 83/8:33–36.
(402) 41 & 42 Vict cap 67. The 1875 Act was used as the precedent for this Act which was passed in response to problems in the Congo: Memoranda of Reilly (17 January 1878) and Jenkyns (3 July 1878) in FO 97/489 (nf).
(403) In the Pacific the Colonial Office insisted (see note to Foreign Office, 26 August 1892 in FO 58/273) and the Law Officers agreed (17 November 1892, Ibid) that any jurisdiction held by the Western Pacific High Commissioner under the Pacific Orders in Council under the 1875 Act was, so far as native persons’ amenability was concerned, ‘dependent on an explicit or implied grant by the protected Sovereign…in whom such jurisdiction was (in theory at any rate) originally vested.’ As to the High Commission's acquisition of such jurisdiction by treaties and Resident Commissioners, see generally D Scarr, Fragments of Empire—A History of the Western Pacific High Commission 1877–1914 (Canberra: Australian National University Press, 1968) at 252–289. The SCI includes only the Tonga treaties (at 322); the sovereignty of the Tongan Kings, unlike that of other island communities, was recognized as early as 1864 when Jones urged a treaty be concluded with the reigning chief ‘King George’: Jones to Foreign Office, 6 October 1864 in CO 58/124:35–38.
(404) Law Officers to Russell, 5 May 1865, FO 83/2314:280–281; Law Officers’ opinion, 12 March 1870, CO 881/4: 20, 82–83; Law Officers and Dr Deane to Granville, 13 January 1874, FO 834/11:113, 84; Law Officers to Stanley, 10 August 1885, CO 417/8:46–55; Law Officers Report on British Jurisdiction in Protectorates, 29 June 1887, FO 64/1208:121–122; Wright, Memorandum, 18 November 1888, CO 97/562 (nf).
(405) Note (no date, circa June/July 1887) in FO 64/1208:117–118; similarly Law Officers to Carnarvon, 10 April 1875 in CO 83/8:33–36.
(406) Hatzfeldt, notes verbale, 11 May and 29 August 1886, FO 64/1152; Law Officers’ Report (inter alia on the German law), 29 June 1887, FO 64/1208:121–122; Salisbury to Hatzfeldt (draft), August (no date) 1887, FO 97/562:nf; Scott, ‘Memorandum on German Laws’, 13 September 1887, Ibid.
(407) Hatzfeldt, notes verbale, 11 May and 29 August 1886 in FO 64/1152; Law Officers Report (inter alia on the German law) 29 June 1887 in FO 64/1208:121–122; Salisbury to Hatzfeldt, draft, August (no date) 1887 in FO 97/562:nf; Scott, ‘Memorandum on German Laws’, 13 September 1887, Ibid.
(408) The following British territories were initially Protectorates: Southern Rhodesia (annexed 1923) although British sovereignty arose earlier by conquest of Lobengula in 1894: Re Southern Rhodesia  AC 211; Kenya (annexed 1920); Basutoland (annexed 1871); Gold Coast or Ghana (annexation of areas under Her Majesty's protection but not part of her Dominions, 1901); New Guinea (annexed 1888); Gilbert and Ellice Islands (annexed 1915).
(409) CH Alexandrowicz, ‘The Juridical Expression of the Sacred Trust of Civilisation’ (1971) 65 American J Intl L 149.
(410) Fairfield, minute of 9 January 1891 in CO 417/48:249–255; Bramston, minute of 11 February 1891 in CO 417/72; Bramston, Memorandum, 20 February 1891 in CO 417/69:578–587; Law Officers to Knutsford, 17 April 1891, Ibid, 118–124. Generally Johnston, Sovereignty and Protection, above, 229–269.
(411) John Austin, The Province of Jurisprudence Determined (1832) 241. The position is Hobbesian in origin: Leviathan (1651) II, xviii and 12.
(412) International Law (1888) 58. The proposition was hardly novel. Many writers before Maine had recognized the divisibility and incompleteness of sovereignty in ‘semi-sovereign’ states. For instance: Wheaton, Elements of International Law (1836) 62; Halleck, International Law (1861) 62; Woolsey, Introduction to the Study of International Law (1875) 28.
(413) ‘Application of Principles of International Law to Foreign Subjects in British Protectorates’, 26 November 1888, in CO 97/562. See Jenkyns, British Rule and Jurisdiction, above, 165–180.
(414) ‘Memorandum upon Indian and African Protectorates’, 24 January 1889, in CO 97/562.
(415) R v Earl of Crewe ex parte Sekgome  2 KB 576; Sobhuza II v Miller  AC 518.
(416) Nabob of the Carnatic v East India Company (1793) 2 Ves Jun 56; East India Company v Syed Ally (1836) 1 Moo PC 555; Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 7 Moo Ind App 476, 19 ER 388; Rajah Salig Ram v Secretary of State for India in Council (1872) LR Ind App Sup, vol 119, 120.