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The Limits of the Law in Claiming Rights to Land in a Settler Colony: South Australia in the Early-to-Mid Nineteenth Century

Published online by Cambridge University Press:  03 August 2020

Abstract

In recent decades a large amount of scholarship has been devoted to the task of explaining the ways in which European powers claimed possession of indigenous people's territories across the seventeenth, eighteenth and nineteenth centuries. This research has emphasised the role of the law in the dispossession of indigenous peoples. But more work is required to establish the precise roles that the law played in the claiming of land and to measure its importance relative to other factors. In this paper I consider one British colony, South Australia, in order to investigate the changes that occurred in the roles that the law performed over time in the claiming of the indigenous people's lands, and to assess the importance of these relative to the roles played by historical, moral, political, psychological and material factors. I conclude that in this instance at least the role that the law played in the claiming of possession was rather different than that suggested by numerous studies of the claiming of possession as well as much less significant.

Type
Original Article
Copyright
Copyright © the American Society for Legal History, Inc. 2020

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Footnotes

He thanks the anonymous referees for their helpful reports and the Law and History Review editorial team for their wonderful guidance.

References

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15. Brown, Diary, December 16 and 17, 1835.

16. This claim was actually spurious.

17. Torrens to Grey, December [26] 1835.

18. Torrens to Grey, December [26] 1835, my emphases; Draft of Letters Patent, NA, CO 13/3; Torrens to Grey, January 16, 1836, NA, CO 13/5; Draft of a Bill to Amend an Act to empower His Majesty to erect South Australia into a British Province or provinces, and to provide for the Colonisation and Government thereof, NA, CO 13/5; British Parliamentary Papers, 1836, Paper no. 512, Report of the Select Committee on the Disposal of Lands in the British Colonies, 130, my emphases; and Second Letter of Instructions by the South Australian Colonisation Commission to James Hurtle Fisher, Resident Commissioner in South Australia, 8 October 1836, British Parliamentary Papers, 1837–38, Paper no. 97, Second Annual Report of the Colonisation Commissioners of South Australia, 16.

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31. Southern Australian, September 15, 1838, 3.

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33. Ibid.; and Southern Australian, May 1, 1839, 3.

34. Southern Australian, May 8, 1839, 2, emphasis in original.

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37. Southern Australian, May 8, 1839, 2.

38. Ibid., emphases in original.

39. George Stevenson to Glenelg, April 23, 1836, NA, CO 13/5; Hindmarsh to Glenelg, February 7, 1837, NA, CO 13/6; and South Australian Gazette and Colonial Register, May 11, 1839, 3–4.

40. South Australian Gazette and Colonial Register, May 11, 1839, 3–4.

41. Southern Australian, May 10, 1839, 3–4.

42. Ibid.

43. Ibid.

44. J.B. Hack and co. to Sir George Gawler, June 12, 1839; and Hack and co. to their constituents, June 17 1839, Southern Australian, June 26, 1839, 3.

45. Charles Sturt, Assistant Land Commissioner, to David McLaren and co., July 17, 1840, South Australian Register, July 25, 1840, 7–8; and Matthew Moorhouse to the Colonial Secretary, July 27, 1840, British Parliamentary Papers, 1843, Paper no. 505, Papers Relative to the Affairs of South Australia, 325.

46. Clamor Schürmann, Report to the Committee of the Lutheran Missionary Society, Dresden, February 8, 1839, MS Adelaide Missionaries (Dresden), Box 2, Folder S, Lutheran Archives, Adelaide.

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48. Sturt to John Morphett and co., July 11, 1840, SRSA, GRG 35/230; and Stephen, Minute, March 14, 1841, on Gawler to Lord John Russell, August 1, 1840, NA, CO 13/16, my emphases.

49. South Australian Gazette and Colonial Register, October 20, 1838, 2; Sturt to Morphett and co., July 11, 1840 and Sturt to McLaren and co., July 17, 1840, SRSA, GRG 35/230; and Gawler to George Fife Angas, [August] 10, 1840, George Fife Angas Papers, SLSA, PRG 174/1.

50. Sturt to McLaren and co., July 17, 1840; and Gawler to Russell, NA, CO 13/16.

51. South Australian Register, August 1, 1840, 4.

52. Ibid.