In August 1826 a British soldier, Lieutenant Nathaniel Lowe, of the 40th regiment, was charged with murdering an Aboriginal man at Wallis Plains (now known as Maitland).
It was extremely unusual for a white to stand trial for a crime against a native, and to say the odds were stacked in the defendant’s favour would be an understatement. Indigenous Australians were not allowed to give evidence in court, so if the only witnesses to a crime were Black, then there was effectively no crime. But even if there were white witnesses to a crime against a Black, they were seldom willing to testify, since the consequences of bearing witness against a white – especially one with any rank or power – could be serious.
The case of Nathaniel Lowe proves the point.
For some time there had been undeclared war in the valley of the Hunter River, as white settlers pushed further inland and forced the aboriginal people who had lived there for generations to move away or perish. Naturally some resisted, sometimes violently. When this happened vigilante “justice” was often visited not only on the person who committed the violence, but on any other Blacks who happened to be nearby.
In July 1826 a stock-keeper named Tyler, working for landholder Dr Bowman, was killed by an Aboriginal man. It was noted in the journals of missionary Lancelot Threlkeld that soldiers had arrested a suspect, brought him down from Bowman’s farm to the barracks at Wallis Plains and summarily executed him. An apparent eyewitness to the crime reported that the man was brought out from the barracks after being detained overnight, was tied to two saplings and shot. Threlkeld wrote to the Attorney-General, Saxe Bannister:
One [soldier] fired at him, the ball hit him on the back of the neck, the black turned round his head and looked at him, the next fired and the bullet cut along the jaw and broke the bone; the black turned his head round again; another soldier stepped up and blew his head to pieces. They then buried him by the privy belonging to Government House. The officer mounted his horse and went in pursuit of two other Blacks. Such a lawless proceeding committed in such a brutal manner fills me with feelings too strong for utterance.
Threats of vengeance
Another Aboriginal man, named Billy, was arrested and kept in jail, raising fears among the tribes that he was also to be executed. Threats of vengeance against the whites were made, and Threlkeld warned the colonial government to either charge the prisoner or release him.
Do not keep them in gaol without some decision, guilty or not guilty. If you deem it needful for me to come forward, here I am. I will not flinch in the face of the whole Colony. Can I move a writ of habeas corpus to bring the Blacks out of gaol. I know nothing of the law but wish to be guided legally, honorably and as a Christian I will maintain the cause of the oppressed.
A false rumour circulated that the Governor himself had given an unofficial sanction to the wholesale murder of Blacks and Saxe Bannister wrote to Threlkeld, telling him that “three other natives have since been shot by the same authority”.
On August 16 Threlkeld wrote that the Horse police had called at his mission with two Black prisoners, tied with ropes around their necks and handcuffed together. It was said that another had been shot dead while allegedly trying to escape at “Mr Cobb’s farm”. “This makes the fourth summary execution of the Blacks in as many weeks,” Threlkeld wrote.
On August 21 Threlkeld wrote that he had visited one of Dr Bowman’s labourers in hospital. He had been speared while chopping wood on Bowman’s farm. Soldiers arrested a Black, whom the wounded man said had been among the party that attacked him, but who had not thrown a spear. The police tied the man to a tree, shot him dead and left his body hanging. Threlkeld elaborated in a letter to the acting Attorney General, W. H. Moore, who was sent by the Governor to investigate the escalating violence:
A rope was borrowed from a person, tied round the Black’s neck and he was marched nearly a mile to a suitable tree. He was then ordered to climb it. He did so. He was ordered to crawl to the extremity of a bough of the tree. When he had done this he was ordered to tie the rope tight to the branch, the other end being fast round his neck. This he did and sat crouched on the tree. One then fired at him, wounded him, another fired and wounded him again. A volley was then fired which knocked him off and left him suspended by the neck on the tree.
Transferred to Van Diemens Land
Threlkeld wrote that he had heard that Lieutenant Lowe, the officer who gave the orders to execute the Blacks, had been transferred to Van Diemens Land and that:
Some persons removed the body of the murdered Black from the place in which it was buried at Wallis’s plains, so that no body could be found if inquiry were instituted. Thus the matter ended in this Colony.
Actually it didn’t end there, although it may as well have. The Australian newspaper reported on May 23, 1827, that Nathaniel Lowe faced court charged with the murder of the Black man, “named Jackey Jackey, alias Commandant, alias Jeffery”. One of Lowe’s lawyers, Dr Wardell, argued that the court had no jurisdiction over crimes against Aborigines.
Is he an alien enemy? he is not because his tribe is not in hostilities with the British Sovereign. Is he an alien friend? he is not because his tribe may be, and in fact is, in conflict with individual subjects of the British Sovereign and because no friendly alliance has ever been entered into. He is not a subject of the British King, because his tribe has not been reduced under his Majesty’s subjection, and because there has been no treaty, either expressed or understood, between his country and that of the British King and because, in fact, there could be treaty between him as a member of no commonwealth and the British King. Killing a native by way of revenge, Wardell argued, was not a crime.
Another advocate for Lowe, Mr Wentworth, argued that the court had no jurisdiction because the British had not been obliged to conquer Australia by force of arms. The unconquered natives therefore did not fall under British law.
The court rejected these arguments and held that Aborigines were entitled to the protection of British law. Obliged to plead, Lt Lowe pleaded not guilty.
Evidence was given by three witnesses, all either convicts or former convicts. The detail of their evidence about the shooting – and also about shifting the body when it seemed an inquiry was likely – was impressive. Thomas Farnham, the constable who brought Jackey Jackey to Wallis Plains, swore as follows:
In August last I was a stationary constable at Mr M’Intyre’s in that neighbourhood, about seventy miles from Wallis’s Plains. In the month of August last a native black was apprehended by Dr Little and placed in my charge, with directions to convey him to Wallis’s Plains. I did not know him; they called him Jackey Jackey. I proceeded with him to the old Military Barracks at Wallis’s Plains, and gave him up in charge of the military who were stationed at the barracks. I arrived there in the evening. It was shortly before the Quarter Sessions at Newcastle. He was placed in the old Barracks and left there that night, with his handcuffs on; he was chained to a post in the side of the fire place. It is a hut boarded and flagged. I left him there and went away to report what I had done to Mr. Eckford, the chief constable. I stopped at the house of one Smith’s, at Wallis’s Plains, about a quarter of an hour the same evening. About six o’clock the next morning I went to the barracks and saw the black still chained there. Two soldiers were doing duty at the barracks at the same time. About seven o’clock the two soldiers took him to government-house, where Mr Lowe was then living. I followed them to government house and heard Mr Lowe order four soldiers to take him to the rear of the government house and shoot him. They took the man about a quarter of a mile off in the bush. The soldiers had their muskets with them; they placed him by the side of a tree, three of them fired at him. I was standing close by; he fell, and the fourth soldier who had not yet discharged his piece, went within a few yards of where the black lay and put a ball through his body. Mr Lowe, the four soldiers, and myself, were the only persons present that I saw; there might be others in the bush looking on. The mounted police were at government-house at this time. I went up to the native, he was wounded in the jaw and in his head; he was quite dead. We all came away and left him there.
They dug up the body
Another witness, a messenger named William Constantine, testified that:
Some time after this a man of the name of Jones, who was in the hut with me, told me there was to be an enquiry and begged me to say nothing about it. I told him I would not unless I was put upon my oath. Some time after this Jones and another man disinterred the body of the black fellow, and put it into a bag, with which they walked away. This was done in the night time ; the body was taken towards a creek. I do not know who it was that asked them to take up the body. They asked me to help them while I was there ; but I felt myself sick from the decomposed state of the body, and stood at a distance from the grave.
I was present when the black was buried and taken up ; the body had lain in the grave between three and four months, it was rapidly advancing to decay. I agreed with Jones to deny this, unless I was put on my oath. I did deny it once to Dr. Bowman ; and I wish I had continued to do so.
Lt Lowe’s lawyers attacked the credibility of the prosecution witnesses, calling other witnesses to say they would not believe them under oath. It also worked against the witnesses that, when they had been questioned months before by others about the matter, they had chosen to deny having seen or heard anything about the killing. It isn’t hard to imagine why, and it was clear that the witnesses were uncomfortable at being forced to testify in court against an officer, before a jury of officers.
Summing up, the judge noted the objections to the credibility of the witnesses but noted that other witnesses – soldiers present at the killing – could have been called to disprove the statements in the prosecution case. This seemed “extraordinary” but the reason the defence failed to call those witnesses could only be a matter of conjecture. The Australian’s report concluded:
The Jury retired for about five minutes, during which time the utmost impatience was manifested by the auditors in Court to hear the result. The Jury having returned, and silence being restored, the Foreman delivered a verdict – NOT GUILTY. Loud and general applause accompanied this announcement of the verdict. The numerous friends of Lieutenant Lowe crowded round to congratulate him on the happy termination of the trial. A second burst of applause was given as he triumphantly left the Court.
The case report, with some interesting commentary, can be read here:
A very thorough scholarly article on the case, by Kelly K. Chaves, can be read here:
According to Jen Willett’s wonderful website, freesettlerorfelon: “Nathaniel Lowe arrived in the colony in command of the guard on the convict ship Albion in 1823. He arrived with a detachment of the Mounted Police at Wallis Plains in February 1826. In 1827 after a controversial court case, he was found not guilty of the murder of aborigine Jackey Jackey. He married Elizabeth Abbott at Launceston in 1828. Nathaniel Lowe died in Canada in 1875.”
