Charles Joseph La Trobe arrived in the Port Phillip District in October 1839 he believed emphatically in a dual approach to improving conditions for those Aboriginal people who were suffering as a result of European settlement. A Colonial Office appointment, La Trobe agreed with the British Secretary of State for War and the Colonies, Lord John Russell, that it was the government's 'sacred duty' to compensate Aboriginal people for the taking of their land by giving them the 'blessings of Christianity' and the 'advantages of civilized life'.² While a belief in God would take care of their spiritual well-being, La Trobe believed that the application of British law would protect Aboriginal people and settlers alike. He also agreed with the British Government policy that 'English Law would be a means of civilising indigenous people'.³ God and the law were the mainstays of La Trobe's approach to ensuring a peaceful co-existence of Aboriginal people and Europeans in his District. Unfortunately, neither was particularly successful. While La Trobe could offer few ideas for the improvement of missionary endeavours towards the Aboriginal community, he repeatedly tried to draw attention to the problematic character of criminal cases involving Aboriginal people.

On taking up his appointment as Superintendent, La Trobe soon became aware of the extent of violence occurring between the settlers and the Aboriginal population. In October 1840 he reported to the Colonial Secretary the 'continued and increasing acts of aggression by the natives on the property of the settlers, and the acts of reprisal to which they give rise in the Port Phillip district'.⁴ Armed with a heightened sense of right and wrong and an adherence to a notion of justice based on the revelatory power of the 'truth', La Trobe ordered the Chief Protector of Aborigines and his Assistants to investigate any acts of aggression.⁵ The varying success of the Protectors' enquiries quickly brought to La Trobe's attention the numerous challenges that inhibited the judiciary when bringing cases to trial.

Established as a result of the British Government's Port Phillip Aboriginal Protectorate plan, the Protectors formed part of the Chief Protector's Department in La Trobe's public service. In 1835 the British Parliament had appointed a Select Committee to investigate the 'condition of Aborigines' in British colonies and develop appropriate policy. The Committee's investigations prompted them to propose the trial of an experimental protectorate system in Australia. In its report of 1837 the Committee made some general statements about how the system would work and suggested the employment of 'Protectors' for Aboriginal people. By the end of 1837 the Colonial Office decided to adopt the system in the newly created Port Phillip District of New South Wales. The head of the Colonial Office at the time, Lord Glenelg, appointed four Assistant Protectors and one Chief Protector for this purpose. George Augustus Robinson, the Chief Protector, gave each of his Assistants a specific area of Port Phillip in which they were to settle and take responsibility for the welfare of the Aboriginal people who lived there. Glenelg advised the Governor of New South Wales, Sir George Gipps, about the plan at the beginning of 1838 and expected the New South Wales Government to fund it.⁶ The Chief Protector was to undertake the actual daily management of the Protectorate under the cautious supervision of La Trobe.

The system adopted in Port Phillip was unique in an Australian context at this time. In 1839 the Colonial Office appointed a single Aboriginal Protector in South Australia, Matthew Moorhouse, but did not adopt a protectorate system on the scale of that initiated in Port Phillip. The Colonial Office believed that a single Protector was all that would be required in South Australia, given the small size of the proposed settlement on Kangaroo Island compared to the size and popularity with settlers of the Port Phillip District.⁷ The Colony of New South Wales did not appoint a 'Protector of the Aborigines' until 1881.⁸

As envisaged by the Select Committee, the duties of the Protectors included some legal responsibilities. The Protectors were to act as magistrates and initiate legal proceedings in the event of an attack on any member of the Aboriginal community or their property. If an Aboriginal person within their area was accused of a crime, it was the duty of the Protector to 'undertake and superintend the defence of the accused party'.⁹ The Committee also suggested that the Protectors act as coroners and investigate all instances in which an Aboriginal person was 'slain'. Finally, in recognition of some of the difficulties the Protectors might experience fulfilling these duties, the Select Committee proposed that the local government adopt 'such short and simple rules as may form a temporary and provisional code for the regulation of the Aborigines, until advancing knowledge and civilization shall have superseded the necessity for any such special laws'.¹⁰

Unfortunately, most of the Protectors resented being asked to act in a magisterial capacity and, like other magistrates appointed in the Port Phillip District at this time, had little legal knowledge or experience.¹¹ Three of the Protectors, James Dredge, William Thomas and Edward Stone Parker, owed their appointment to their association with the Wesleyan Church. All three men accepted their positions in Port Phillip because of the opportunity they would have to convert Aboriginal people to Christianity. They were lay preachers with earnest missionary-like aspirations and the Colonial Office had led them to believe that this would be a major aspect of their role in Port Phillip. One of their earliest tasks upon arrival in Melbourne, however, had been to undertake criminal investigations. When James Dredge resigned his position in February 1840, he complained about the overemphasis of his work on secular rather than spiritual matters. Dredge believed his role as a Protector would be 'as much as possible of a missionary character'. The reality of his situation was quite different:

Upon my arrival in this country, I was informed that the office would be one of an entirely civil character; and I was subsequently appointed a magistrate, a distinction I never coveted, but one, so far as I was concerned, almost entirely nominal, inasmuch as I received instructions that I was not to act in a magisterial capacity, not even to issue a warrant for the apprehension of an offender, should I be applied to for that purpose under the most urgent circumstances, unless the aborigines were concerned.¹²

The Protectors did not know how to act as magistrates. Their first efforts at investigating crimes involving Aboriginal people were disastrous, eroding La Trobe's idealism about justice wrought from the rule of law.

In their magisterial role the Protectors were to assist in the determination of whether or not an offence had been committed, take any depositions required for prosecution of a case and make any necessary arrests. Just two months after arriving in Melbourne La Trobe had cause to question the Protectors' capacity to undertake this aspect of their duties. In mid-1838 Chief Protector Robinson directed Assistant Protector Parker to investigate a possible 'affair' between the Mounted Police and a group of Aboriginal people on the Campaspe River. La Trobe forwarded Parker's findings and the statements that he took in evidence to Sydney for review by the Attorney-General, who would prosecute the offenders if there was a case to answer. Parker believed that the Mounted Police shot as many as forty Aboriginal people during the incident, nearly the entire clan.

Parker cited the source of his knowledge as 'private information'.¹³ The Attorney-General, however, questioned the reliability of this source and requested that Parker name his informant. Parker had to admit his information was second-hand from someone he trusted but that 'a man whose veracity could not be depended on' made the original statement. At this point the whole case began to fall apart. La Trobe lamented that 'The proper measures to elicit the truth have evidently never been taken, and delay of seven or eight months in setting on such foot [sic], cannot be otherwise than productive'.¹⁴ The Superintendent sent Robinson to assist Parker in his magisterial duties and effectively begin the investigation again. No matter how badly the case had been dealt with, wrote La Trobe, 'no time is now to be lost in bringing the circumstances of the case before the Attorney-General in such a form as may facilitate the ends of justice'.¹⁵