‘Troublesome Friends and Dangerous Enemies’

Abstract

Before British law prevailed there was a protracted struggle over what it might possibly mean to assert jurisdiction over the Indigenous peoples of Australia. If jurisdiction was ‘clearly an inseparable incident of sovereignty’, as magistrate W H Mackie put it in a Perth court in 1842, what were the implications for the ‘savage tribes’ who occupied the country? The assertion of law’s authority depended on two instruments: one linguistic, the other physical. In the colonial encounter, these instruments were exercised on both sides. Aboriginal peoples used force tactically, and negotiated terms of engagement with invading settlers where they could. On their side, settlers pondered the application of their own laws, argued between themselves over the development of a policy towards the ‘natives’, but rarely hesitated to use force when their own presumptions of property and personal rights were threatened.