Two of Australia's most prominent writers have tackled the convict years of Australia's founding; Robert Hughes with A Fatal Shore , which covered the entire transportation era, and Thomas Keneally with A Commonwealth of Thieves . Keneally's book is poorly named, probably due to an editor trying to troll a response from Australian commentators: it should be called, Arthur Phillip's Sydney or Arthur Phillip's NSW. The book starts with Phillip taking command of the first fleet and ends with his return to England.

I was watching Terry Jones' documentary The Barbarians last night. Central to his narrative was the Romans, and in particular Julius Caeser, wrote the modern history of the Celts. The Romans viewed the world as a permanent us and them: divided by civilised (ie Roman) and barbarian (Celts, Germanics, Dacians, essentially anyone not Roman).

Jones' argued that the Celts were the technological equals of the Romans, they had a calendar that was more accurate, they had roads for wheeled traffic and they traded across Europe including with Romans. The Celts were a wealthy decentralised iron age society that could not match the centralised authoritarian Roman military machine.

Caesar's destruction of the Celts at Alésia destroyed their ruling class and their druids, effectively stamping out their culture and history from modern knowledge. Jones' argues that our understanding of the Celts largely comes from Roman texts which were skewed by the Roman world-view.

The Aboriginal people have a similar issue, much of the modern understanding of the Aboriginal culture and history was written by late 19thC and early 20thC Australians who had rather repugnant views on race. Like the Celts found out, it is hard to get a fair or even truthful record in such an environment.

The irony is, it appears that the first fleeters didn't have the same issues with the Aboriginal people that the late 19thC Australians did. Phillip for instance was a man of the enlightenment. The other issue the initial settlements faced was permanent hunger and the worry of being overwhelmed by the numbers of Eora who were very effective in warfare despite not having gunpowder or sails.

There was plenty of pilfering from both sides, Europeans coveted the Aboriginal fizgigs which were specialised fishing spears. The Aboriginals in turn covered iron hatchets which were a massive leap in technology for them. Bennelong was actually given a shield of tin - which gave him military supremacy amongst the Eora.

The northern Eora seemed to have come to a kind of acceptance of the European presence despite the English having a policy of terra nullus . Sydney and Parramatta were established without any attempt to procure property rights from the Eora. From Kenneally's writing it appeared that this set up a blood debt between the Europeans and the northern Eora.

The Eora legal system was one of blood debt and differed slightly from the English system of punishments which included lashing and hanging. Fueds of a smaller nature were solved by non-lethal spearing or violence in order to extract the blood that would serve as payment for the transgression. Nearly each time Phillip saw Bennelong after he had been away Bennelong carried new scars that were part of the blood debt legal system.

Bennelong managed to lure Arthur Phillip to Manly where Phillip was speared by Willemering as part of the blood debt for the land, fish and animals taken. The spear went right through Phillip's shoulder and one of the marines had to snap it off to get Phillip into the boat and back to Sydney Cove.

Phillip, unlike the Romans, did not go on a rampage in return, he acted in an Enlightenment manner. Which is ironic as much later on after McEntyre's spearing he demanded the heads of the first two Eora seen and the capture of ten other Eora to be placed in chains. The Marines found this distasteful and were happy when circumstances got in the way of them carrying out this duty.

John McEntyre was the leading huntsman in the settlement and had a list of transgressions against the Eora, some real in European eyes, others a bit odd as they were transgressions against dreamtime ritual. A southern Eoran carradhy, Pemulwuy, decided that McEntyre should die.

Pemulwuy speared him in the lung. The Aboriginal technologies extended to covering their spears with ground up stone and shell that was held to the tip of the spear by eucalypt gum. This coupled with a spear design that made the tip hard to get out of the body generally meant death. McEntyre recovered so that he could walk around, before his lung collapsed from stone and shell pieces.

This points out a difference in the relations between the Europeans and the Eora. The southern Eora, led by Pemulwuy, and the Dharug who lived in what we call Sydney's western suburbs today, did not accept the presence of the Europeans.

The biggest issue facing the first fleeters was starvation. Even with the continuing arrival of other ships the government stores got smaller and smaller, and the rations shrunk and shrunk. It is hard to believe, but the first fleeters in Sydney and Parramatta suffered from scurvy.

Life was tenuous. The dehabilitating effects of the lack of food led to other issues as many of the convicts were too weak to work productively which hampered the ability to collect crops and to build permanent shelters. Another burden was that each new convict ship tended to offload sick convicts who had to have food spent on them before they could be productive - if they didn't die first.

Despite these issues by the time Phillip left Sydney the new colony of New South Wales was established as a permanent settlement - something which was in doubt for a period. There were private farms, land grants and merchants which would become the solid basis for the NSW economy during the transportation era.

Keneally's book is a well researched and well written book of Arthur Phillip's time as Governor of NSW. Keneally writes in a fast pace with a gripping narrative. It is well worth a read.

Charles Harpur and Dan Deniehy both saw human progress in moral terms. Their view of the end of human development was moral perfection where violence, war, unethical behaviour etc all became morally impossible.

They connected moral progress to republicanism through the removal of tyranny from government with republican technologies - such as constitutionalism, democracy, universal rights etc. Their insight was that increasing liberty enabled a greater and purer expression of morality. This can be taken to its conclusion where a morally perfect humanity does not require governance. For a religious 19thC, that result can also be described as a return to Eden.

Cesare Beccaria wrote:

Whoever reads, which a philosophic eye, the history of nations, and their laws, will generally find, that the ideas of virtue and vice, of a good or a bad citizen, change with the revolution of the ages: not in proportion to the alteration of circumstances, and consequently conformable to the common good: but in proportion to the passions and errors by which the different law givers were successively influenced.

He will frequently observe, that the passions and vices of one age, are the foundation of the morality of the following: that violent passion, the offspring of fanaticism and enthusiasm, being weakened by time, which reduces all the phenomena of the natural and moral world to an equality, become, by degrees, the prudence of the age, and a useful instrument in the hands of the powerful or artful politician.

Hence the uncertainty of our notions of honor and virtue; an uncertainty which will ever remain, because they change with the revolutions of time, and names survive the things they originally signified: they change with the boundaries of states, which are often the same both physical and moral.

Harpur and Deniehy argue that this reading of legal morality need not be true, and it is republicanism which frees the people from the tyranny of their executive and legislative. We have seen in the last decade, the United States weaken as a moral force due to the tyranny of its executive and legislative who now condone torture as part of their legal system.

The loss of morality in American jurisprudence, and by implication Australia as well, is not because of the decreasing morality of the American people, but because of the tyranny of the US Executive. This restricts the full moral expression of the American people. Harpur and Deniehy are right.

The increasing morality in human progress has seen the decrease in violence, both organised and arbitrary. The legal systems and jurisprudence of nations become an expression of that increasing morality.

A good example is the Eoran and English legal systems when the first fleet landed at Port Jackson. Much of the conflict was over the differing structures of accepted justice. For instance the British, under Arthur Phillip, reduced capital punishment to property crimes. The Eoran legal system included blood debts which could only be satisfied with ritualised spearing.

This was a particularly violent legal form but which stopped greater violence between Eoran groups. Arthur Phillip was speared by Willemering as part of this legal system as a blood debt for creating a colony on Sydney Harbour and taking food such as fish from the Eoran territories without asking first. Phillip was entirely reasonable about it, and surprisingly, accepted it, though later he did not accept the murdering of John McEntyre in the same manner.

One incident that stands out, and which Thomas Kenneally relates is that of Noorooing:

A woman named Noorooing came into town to tell the whites of the ritual killing of a south Botany Bay native, Yellaway, who had abducted her. She was clearly not an unwilling abductee, since she threw ashes on herself in sadness and refused all food, and other Aboriginals explained she was go-lahng, in a state of ritual mourning and fasting. Soon after, Noorooing, travelling in the bush near Sydney Cove, met and attacked a little girl related to the murderer of Yellaway. She beat the little girl so cruelly that the child was brought into town almost dead, with six or seven deep gashes in her throat and on ear cut to the bone. She died a few days later.

The English were not sympathetic to Noorooing, but other Aboriginals explained to them "That she had done no more than what custom obliged her to ... The little victim of revenge was, from her quiet tractable manners, much beloved in the town; and what is a singular trait of the inhumanity of this proceeding, she had every day since Yellaway's death requested that Noorooing should be fed at the officer's hut, where she herself resided." The native who had committed the murder for which his little kinswoman suffered escaped apparently unpunished. In some way that the Europeans could not understand, the blood debt had been fully settled with the girl's death.

The other important thing to note, is that when the legal system under goes a moral change, it also undergoes a rationality change. The incident with Noorooing appeared irrational, inhumane and immoral to the English. Yet for us in Australia today, the idea of capital punishment for a property crime, transportation to Australia for stealing bread or five hundred lashes for sedition seem irrational, inhumane and immoral.

The morality and rationality of modern jurisprudence has progressed so far that the two competing legal systems in Sydney during the 1790s - the English and Eoran systems - are impossible to fully understand, even though the English system seemed perfectly logical, rational and moral to the English settlers; and the Eoran legal system made perfect sense to the Eora.

Where this moral improvement and rationality change can be adversely affected, and even pushed backward, is through government. When the executive and legislative act in a tyrannical manner, and outside of the moral boundaries of the current rationality, they not only halt moral progress, but turn the clock back. These are the 'passions and errors' that Beccaria writes as negatively influencing future laws and jurisprudence.

The purpose of republicanism's use of political technology is such that these 'passions and errors' cannot be expressed by the executive, legislative or judicature in a republican system. This means Australian Republicanism is not a static movement, it must be constantly aware of the dangers and loopholes that new executives will find in any republican system by which they can express their immoral and tyrannical passions.

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In August 1790 a whale got trapped at Manly on the harbour side and beached itself. The Eora gathered there, with several clans present, and gorged themselves on whale meat and blubber. An English party had set out to go hunting in the northern area of the harbour and came across Bennelong and Colby at the site of the whale butchering. Bennelong kept asking for Arthur Phillip and gave the party a large chunk of whale meat to give to Phillip.

When Phillip received the whale meat from Bennelong, he saw it as a chance to improve the relationship with the Eora. So he headed out to Manly in his boat with armed marines - just in case. Keneally writes:

On landing, Phillip found the natives "still busily employed around the whale." He advanced alone, with just one unarmed seaman for support, and called for Bennelong, who was mysteriously slow in approaching.

Eventually Bennelong and Colby came forward, asking about their acquaintances in Sydney. Colby even showed off how he had removed the leg iron which had been used to tether him in Sydney. Phillip had also brought wine with him, and they toasted the King while sipping the wine.

Bennelong ... introduced the governor to a number of people on the beach including a "stout, corpulative native", Willemering. One the ground was a very fine barbed spear "of uncommon size." The governor asked if he could have it. But Bennelong picked it up and took it away and dropped it near a place where Willemering stood rather separate from the rest. Bennelong brought back another gift for the governor, a throwing stick.

Willemering was from the Broken Bay area and a Caradhy or wise man. He was one of the givers of justice, a 'ritual punishment man', in the Eoran legal system. Willemering was there to take the blood debt, or extract justice from Phillip, for all the times the English had broken the Eoran law.

This included creating a permanent settlement without asking, stealing fish and animals from the Eoran territory, stealing Eoran weapons, camp equipment, tools and canoes, and the shooting of Eora. Plus other things such which Keneally records such as smallpox and genital diseases. Keneally writes there was no malice in what was about to happen, it was a rational part of the Eoran legal system, and Willemering, as a caradhy, was doing justice as Eoran law demanded.

Thinking Willemering was nervous, Phillip gamely advanced toward him, as if begging the spear. Captain Collins and Lieutenant Waterhouse followed close by. Phillip removed his own single weapon, a dirk in his belt, and threw it on the ground. Willemering reacted by lifting the spear upright from the grass with his toes and fitting it in one movement into his throwing stick, and "in an instant darted it at the governor". In the last moment before the spear was thrown, Phillip thought it was more dangerous to retreat than advance and cried out to the man, "Werre, Werre!".

Given the force with which the spear was projected, Phillip would later describe the shock of the wound to Tench as similar to a violent blow. The barb went into the governor's right shoulder, just above the collar bone, and ran downwards through his body, coming out his back. Willemering looked at his handiwork long enough to ensure the spear had penetrated, and then dashed into the woods, with miles to travel to his home ground in the Pittwater-Broken Bay region.

The Eoran scattered from the beach, and the English tried to get back to the boat as quickly as they could. Phillip had a twelve foot spear in his shoulder, so he had some problems, and Waterhouse managed to snap the spear off at the wound so Phillip could get back to the boat. By this time more spears were being thrown as part of the ritual.

Phillip recovered as Willemering didn't intend the spearing to be fatal. If the Eoran wanted someone dead they would not spear them in the collarbone; and to ensure death they would crush up shell and stone into the tip of the spear, held in place by eucalypt gum, so that when the spear was removed, the shell/stone would cause organ failure. When Pemulwey wanted McEntire dead, this was how it was performed.

Apparently Phillip saw this spearing as a 'cultural manifestation', while others thought Willemering acted out of fear of being kidnapped like Bennelong and Colby had prior. Keneally argues that this was a change in Eoran policy, and the spearing acted as an introduction for the English into the Eoran legal system. The blood debt that was extracted from Phillip, as leader of the English clan, meant that the whole relationship between English and Eora started at a legal debt of zero from that point on. Previous to the spearing the Eoran had hoped in vain the English would die out or leave. As more ships came , and dumped more convicts and marine, this became a false hope.

Keneally also argues that this established a chain of responsibility between the Eora and Phillip, with Phillip being answerable for the conduct of the English. Bennelong complained to Tench that there were still many outstanding stolen items, and Phillip ordered a search of the Sydney settlement for these items. What was found was returned to the Eora.

One outstanding thing to note is that the property systems in both the Eoran and English view were similar at that time. Both Eoran and English recognized property and trespass crimes. Additionally, honesty in property was seen as a positive in their societies. Something which Keneally records Tench commenting on.

The Eoran and English legal systems were obviously different, which the spearing of Phillip shows. Willemering's action was perfectly rational to the Eora. It seems unfathomable to the English or a modern Australian, though Phillip managed to accurately perceive what it was. However, in terms of property, there were more similarities than differences, despite the violent variations in punishment.

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In his military campaigns into Gaul, Julius Caesar used Roman citizenship through service in the Legion as a means to introduce Roman property law; and more importantly displace Celtic tribal law. Citizenship became a mechanism for establishing Roman legal control in conquered Gaul.

The interface between the English and Eoran in 1788 wasn't racial, it was legal. Conflict was essentially over two different legal systems and the northern Eoran, according to Keneally, attempted to integrate the English into their legal system through the ritualised spearing of Arthur Phillip by Willemering. I think Keneally's argument has a great deal of merit.

The Aboriginal peoples had property laws, and their legal system, despite being non-secular, had very violent ramifications for those that broke the law . Violence is in the eye of the beholder, while the English were shocked at how indirect the Eoran blood-debt system could be, the English were just as violent and showed no qualms about hanging or lashing an individual over a property crime.

Roman property laws followed the principle of pater-familias. The highest ranking male in the family has absolute power, including life and death, over all individuals and property that the family owns. This includes the property of married sons, etc. The absolute power didn't end when a child became an adult as it does in a modern legal system.

There were exceptions in later Rome, for instance soldiers were excepted from pater-familias by Augustus, and could dispose of their pay and booty as they deemed fit. The Roman Twelve Tablets, which was the first attempt to place customary law into writing, also absolved a son from patra-potestus if he was sold by the pater-familias more than three times.

By Caesar granting Roman citizenship to Gaelic soldiers in the legions, any property they owned fell under Roman law, and as the leading male in their family, courtesy of their citizenship, that land passed from under Gaelic law into Roman law - dissipating the control of the Celtic kings, oligarchs and nobles.

From Colin Wells' The Roman Empire:

It is clear from Caesar's own account that he profited from and exploited divisions between pro and anti-Roman factions in most [Gallic] tribes.

The main benefit of citizenship in Gaul will have been to bring the new citizen under the Roman law of property, which probably meant that they could now be held wholly and in perpetuity land which probably under Celtic tribal law belonged to the tribe, although in some way assigned to the chief or one of the other tribal nobility.

Centuries later, the coming of English law, first to Wales, and later to the Scottish highlands, produced a similar effect.

It has been common on agrarian systems for the nobility, or those with access to legislative power, have exploited so-called public land, for personal benefit. The Roman Senators in later centuries exploited land held by Rome and would not give it up, a more recent and local example, is the squattocracy in NSW of the early and middle 19thC.

Caesar's granting of citizenship to Gaellic legionaries and nobles who supported his cause, appears to be a policy of dissipating the economic, and hence political power, of the Gaellic nobility.

x-posted to eurotrib

This caught my eye in Noel Pearson's discussion of the Indigenous Communities Policy from the federal government. He argued that Aboriginals need to develop laws to the new challenges of "grog, drugs, gambling, money and private property." Thomas Keneally's book, A Commonwealth of Thieves, relates a tale where the English returned the items that had been stolen from the Northern Eoran - at the Eora's insistence that their property be returned. Watkin Tench's journal recorded the meeting.

From Keneally's book:

Tench saw an old man come forward and claim one of the fizgigs (fishing spear), "slinging it from the bundle and taking only his own, and this honesty, within the circle of their society, seemed to characterise them all."

The journal notes that there were some unclaimed items at the end of the exchange. That sounds to me like an unwritten legal system that has private property laws. More importantly it appears that there was moral force behind private property as there were unclaimed items at the end of the exchange. It may be that Aboriginal peoples who Pearson is more familiar with the history of did not have private property; but I doubt it.

I am willing to accept that the clans saw the resources in their territory as communal - but I don't accept the premise that the Aboriginal people prior to colonisation of Australia by Europeans had no property laws, or the myth, which should be noted that Pearson wasn't claiming, that the whole idea of property is alien to Aboriginals.

We have an example from Tench's diary that private property was real amongst the northern Eora; and more importantly, the fizgig was a crafted item, which falls under John Locke's notion of a natural resource being worked on and fashioned as individual property.

There were also incidents on Sydney Harbour when the English first arrived where the Eora would take the fish from English boats that had harvested them from the waters. This is an assertion of property and sovereignty.

The Eora weren't savages; they had a complex legal system. It mixed divine law and human law with a council or elder type political structure. It had rules - albeit very violent ones - for dealing with conflict between individuals, clans and as it turns out with the spearing of Phillip, aliens to their land as well - which Keneally writes was a policy to incorporate Phillip and the English into the Eoran legal system.