The Myall Creek Massacre as Part of a Broader War: War and the Common Law of the Nineteenth Century

This paper considers whether the Myall Creek Massacre of 1838 was a part of a wider war according to the common law as it applied at the time. It also addresses the question of what the significance of this might be. It draws on research into martial law in the British Empire in the nineteenth century and applies it to what is known of the violence between Aboriginal people and Australian colonists in New South Wales. It was not necessary for there to be recognition of Aboriginal sovereignty for a war to exist. At the time and still today, the Crown can wage war against its own subjects when they are in open revolt. The characterisation of Aboriginal people as subjects rather than foreign soldiers meant that the same rules of war did not apply, but not that there was no war. The significance of this is that we can consider the Myall Creek Massacre as being a war crime within a broader war, and not an isolated criminal action. This would suggest that Australia was taken by conquest, rather than cession or settlement, which would have implications for ongoing Aboriginal sovereignty and continuation of Aboriginal law.