There is yet another point to be considered with respect to the Aborigines, and upon the equitable adjustment of which hinges all our relations with this people, whilst upon it depends entirely our power of enforcing any laws or regulations we may make with respect to them, I allude to the law of evidence as it at present stands with respect to persons incompetent to give testimony upon oath.

It is true that in South Australia an act has very recently passed the legislative council to legalize the unsworn testimony of natives in a court of justice, but in that act there occurs a clause which completely neutralizes the boon it was intended to grant, and which is as follows, “Provided that no person, whether an Aboriginal or other, shall be convicted of any offence by any justice or jury upon the sole testimony of any such uncivilized persons.” 7 and 8 Victoria, section 5.

Here then we find that if a native were ill-treated or shot by an European, and the whole tribe able to bear witness to the fact, no conviction and no punishment could ensue:  let us suppose that in an attempt to maltreat the native, the European should be wounded or injured by him, and that the European has the native brought up and tried for a murderous attack upon him, how would it fare with the poor native? the oath of the white man would overpower any exculpatory unsworn testimony that the native could bring, and his conviction and punishment would be (as they have been before) certain and severe.

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

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

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

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