The stand-off lasted for three-quarters of an hour. The suspect stood poised with a single spear ready to throw, and held spares in his other hand. Surrounding him on four sides were three mounted policemen and a settler, guns aimed at their quarry...

Border Police troopers James Daplin, William Sparrow and Frederick Bushe had been sent to arrest Jim Crow for allegedly threatening to kill a squatter and had tracked him to the open Wimmera plain in which they now stood. Jim Crow, regarded as an Aboriginal renegade by squatters on Western Victoria's Wimmera frontier in 1844, had made it clear he would defend himself. The settler in the party, Daniel Cameron, parleyed to persuade him to lay down his spears, to no avail. From time to time, the weapon shipped in Jim Crow's spear-thrower quivered as if he were about to discharge it. Cameron had once seen him hurl a spear 150 yards with accuracy and judged he could kill a man at ninety yards; the troopers were barely fifty yards away. They were not inclined to test his skill: when Sergeant Daplin twice ordered his men to charge, twice they refused.

Daplin would wait no longer. His party had less than three hours of daylight left in the October afternoon, and they were twenty-five miles by horse from the security of the nearest station, the nearest outpost of civilisation. Unable to effect a capture without endangering the life of man or horse, he ordered his men to fire. A single shot from Trooper Sparrow's carbine hit Jim Crow in the left breast. The ball passed through his body and out near his shoulder blade. Silently, without a cry, he dropped gently to his knees, then onto his arms, and slowly onto his side. He still held his spears in his hand. Soon after, he died. His body was left where it fell.²

The impasse on the Wimmera plain on Saturday 19 October 1844 was not simply one between black and white men but also between two forms of law, two views of justice. Just as policemen Daplin, Sparrow and Bushe acted according to their people's laws, so Jim Crow, if the accusations against him are to be believed, had acted according to the laws of his people³ - by asserting ownership of land and threatening punishment for those who unjustly occupied it. Colonial land law allowed Aboriginal people to be expelled from their lands, prompting them to complain of 'uncalled for, unreasonable and oppressive treatment'.⁴ Frontier conflict between European settlers and Indigenous inhabitants was generally a matter of disputed land use.

The shooting of Jim Crow, however, was a one-sided affair: not only at the level of manpower and firepower used or as an account rendered by his pursuers, but also in the surrounding legal process and the eventual trial of the three troopers for murder. The Jim Crow case affords an opportunity to explore some of these unequal workings of Anglo-Australian law in the frontier conflict of the 1840s in the Port Phillip District. I will examine aspects of colonial law in the order in which they enter the case - from the role of magistrates in issuing arrest warrants, through the policing of the frontier, to the operation of the criminal courts.

Prelude: Accusations, Magistrates and Warrants
In the week before the stand-off, station overseer Daniel Cameron had fired off a volley of accusations against Jim Crow. A shepherd had been attacked by a group of Aboriginal men but not killed; a station worker's life had been verbally threatened; sheep had been stolen from the runs; the Aboriginal group were planning 'to murder all the settlers in this quarter and carry off all the stock belonging to them'.⁵ Jim Crow, according to Cameron, was at the centre of it all. He was alleged to have given the command to spear the shepherd. He was accused of threatening to kill the station worker. He was said to have driven off the sheep.

Sergeant-Major Peter Bennett of the Native Police led a party of four troopers to investigate some of the claims circulating at stations on the Wimmera River, just north of the Grampians ranges. His Aboriginal troopers, known for their tracking skills, followed the tracks of the missing sheep and discovered they had merely joined another flock. He also found another report 'in a great measure to be false'.⁶ A shepherd and hutkeeper reportedly speared at Ashens station, one of two stations where Cameron worked for squatters Dugald McPherson and William Taylor, had been untouched when 'four blacks had thrown some spears ... and tried to get some sheep away but did not succeed'.⁷

Cameron was unhappy with the Native Police officer's handling of the Jim Crow case: he felt that Bennett, whom he would later describe as a 'rank coward', had allowed the suspect to escape on another matter.⁸ While Bennett was still investigating the accusations, Cameron urged Horatio Ellerman, the overseer whose life was allegedly threatened at the neighbouring Brighton station of Henry Darlot, to apply formally to an alternative legal authority for Jim Crow's capture. Ellerman rode about fifty miles east to the Pyrenees district to an honorary magistrate, James Allan Cameron (apparently no relation to his neighbour), who had control over a detachment of Border Police.⁹ There, three days before the stand-off, he presented letters from Daniel Cameron outlining the accusations made to Bennett against Jim Crow. Ellerman also swore before the magistrate:

I Horatio Ellerman do hereby Certify that I Consider myself in danger from an aboriginal native of the name of Jim Crow who has threatened to take away my life on the first opportunity.¹⁰

JA Cameron then issued an arrest warrant and ordered the Border Police party under Sergeant Daplin to capture Jim Crow. His alleged offence: using threatening language.

Magistrates' responsibilities in mid-1840s Port Phillip extended beyond judicial duties to include the detection and prevention of crime through their control over police.  They have been described as 'a combination of thief-catcher and judge'.¹¹ The separation of magisterial and police powers would not begin until well into the 1850s. As a magistrate near the frontier in 1844 and with a detachment of police at his disposal, JA Cameron was a key local representative of colonial law. His decisions could, in effect, determine who and what were policed and how.¹²