The
oath of the white man would overpower any exculpatory unsworn testimony
that the native could bring, and his conviction and punishment would be
(as they have been before) certain and severe.
Without attempting to assign a degree of credence to the testimony of a
native beyond what it deserves, I will leave it to those who are
acquainted with Colonies, and the value of an oath among the generality
of storekeepers and shepherds, to say how far their SWORN evidence is, in
a moral point of view, more to be depended upon than the unsworn parole
of the native. I would ask too, how often it occurs that injuries upon
the Aborigines are committed by Europeans in the presence of those
competent to give a CONVICTING TESTIMONY, (unless where all, being
equally guilty, are for their own sakes mutually averse to let the truth
be known)? or how often even such aggressions take place under
circumstances which admit of circumstantial evidence being obtained to
corroborate native testimony?
Neither is it in the giving of evidence alone, that the native stands at
a disadvantage as compared with a white man. His case, whether as
prosecutor or defendant, is tried before a jury of another nation whose
interests are opposed to his, and whose prejudices are often very strong
against him.
I cannot illustrate the position in which he is placed, more forcibly,
than by quoting Captain Grey's remarks, vol. ii. p. 381, where he says: -
"It must also be borne in mind, that the natives are not tried by a jury
of their peers, but by a jury having interests directly opposed to their
own, and who can scarcely avoid being in some degree prejudiced against
native offenders."
The opinion of Judge Willis upon this point may be gathered from the
following extract, from an address to a native of New South Wales, when
passing sentence of death upon him: -
"The principle upon which this court has acted in the embarrassing
collisions which have too frequently arisen between the Aborigines and
the white Europeans, has been one of reciprocity and mutual protection.
On the one hand, the white man when detected (WHICH I FEAR SELDOM
HAPPENS), has been justly visited with the rigour of the law, for
aggressions on the helpless savages; and, on the other, the latter has
been accountable for outrages upon his white brethren. As between the
Aborigines themselves, the court has never interfered, for obvious
reasons. Doubtless, in applying the law of a civilized nation to the
condition of a wild savage, innumerable difficulties must occur.
