Henry Reynolds is a supporter and regular contributor to John Menadue’s social policy blog Pearls and Irritants. One obsequious post on the site has suggested he should receive the Nobel Prize either for literature or peace—why not both? In 2017 he used the site to put forward a phrase-making error that he would repeat and incorporate into two books and which has since spread into Left orthodoxy:
There were always people who spoke out about Australia’s founding defect [the lack of a treaty]. One of the earliest and most influential was the English political philosopher Jeremy Bentham. In an essay on the constitutional arrangements made for New South Wales written in 1803 he observed that, legal obfuscation notwithstanding, the colony had been acquired by conquest. The Aborigines had been accorded no diplomatic power nor had their representatives signed a treaty with the King. He believed this created problems which would endure. “The flaw,” he declared, “is an incurable one.”
Certainly fiction, for it is empty and inaccurate history. The call for a treaty is modern and Jeremy Bentham never made an argument in its favour. Though Reynolds says Bentham was one of the “most influential” voices to have made this argument, neither he nor any real historian (Bruce Pascoe? Lyndall Ryan?) had previously pointed this out. In the text Reynolds is misusing, Bentham also states that New South Wales was not acquired by conquest, and he does not describe the absence of a treaty as an incurable flaw. How did Reynolds get it so wrong?
This essay appears in the latest Quadrant.
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The document Reynolds abused is in the Historical Records of Australia, Series IV, Volume I (pages 883 to 900) published in 1922. The series, though only one volume was published, is devoted to legal papers and includes as an appendix “Extracts from A Plea for a Constitution by Jeremy Bentham, 1803”. The editor, Frederick Watson, reduced Bentham’s sixty-eight-page pamphlet to seventeen pages dealing specifically with New South Wales and it is this edited version and not the original document which Reynolds has used. Bentham’s own title for his pamphlet was gloriously long and suggests he had little to say about Aborigines:
A plea for the Constitution, shewing the enormities committed to the oppression of British subjects, Innocent as well as Guilty, in breach of Magna Charta, the Petition of Right, the Habeas Corpus Act, and the Bill of Rights; as likewise of the several Transportation Acts; in and by the design, foundation and government of the penal colony of New South Wales; including an inquiry into the right of the Crown to legislate without parliament in Trinidad, and other British colonies.
Watson provided a succinct and accurate overview of the text he was publishing:
His [Bentham’s] criticism was based on the system of government, prior to September 1796, as detailed by D. Collins in his Account of the English Colony in New South Wales, published in 1798. He commented strongly on the illegality of the orders and proclamations issued by the governors, of the forcible detention of expirees, and of the detention of expirees with forced labour. He claimed that the governors had committed breaches of the habeas corpus and several transportation acts, and had transgressed the provisions of the magna charta, the petition of right, and the declaration of rights. He stated that the illegalities of the government were so numerous that an immediate inquiry was necessary. This pamphlet had no immediate effect.
Bentham argued that New South Wales, which had been established by Act of Parliament, lacked a Royal Charter, without which all the governors’ administrative acts and the colony’s legal proceedings were invalid and illegal. His statement “No charter, no colony” was provocative and summed up arguments which were entirely in relation to the rights of the colonial emigrants, not of Aborigines. Part six of his pamphlet is headed “Nullity of Legislation in New South Wales, for want of an Assembly to consent”. It is only a few lines from this section which Reynolds has taken and abused. At the beginning of a long paragraph, Bentham refers to colonies acquired by conquest, but then his argument looks directly towards Sydney:
To the host of follies included in the circumstance of distant possession, this colony at least [New South Wales], with all its peculiarities and all its faults, has not added that vulgar and crowning folly of distant conquest. It is needless to enquire, what on this occasion might have been the virtue of a string of wampum: no wampum, nor any substitute for wampum, has either been received or given in New South Wales. When, from their immense continental island, Benillong and Yem-mer-ra-wannie [two Aborigines who travelled to Britain] did us the honour to bestow a glance upon this our little one, it was in the character of private gentlemen, travelling for their amusement, or at least for our’s: they signed no treaty with his Majesty, nor brought with them any diplomatic powers.
Where Reynolds states that Bentham claimed “the colony had been acquired by conquest” he is clearly incorrect. Bentham also seems amused at the idea of a treaty with Aborigines, which he derides as an exchange of colourful shells or other trinkets for territory.
In a recent collection of academic essays, Jeremy Bentham and Australia: Convicts, Utility and Empire (2022), the historian Zoe Laidlaw interpreted these words in her own fashion:
In denying the Eora visitors diplomatic powers, Bentham was arguing that Australia’s Indigenous peoples lacked any recognizable government and any claim to sovereignty; their alleged “savagery” placed them outside the colony.
Possibly her analysis is coloured by a sentence elsewhere in the pamphlet where Bentham referred to local regulations adopted in the colony to provide “Security against mischiefs from without, viz. against injuries from the native savages” for in this part of his text Bentham does not refer to Aboriginal savages or “savagery”.
Then, the first six words at the beginning of Bentham’s next paragraph caught Reynolds’s attention: “The flaw is an incurable one: if it were not, it would be none. No charter ever could, can now, or ever can be granted.” The historian ignored the obvious context and the flow of Bentham’s discussion and applied them to his own fantasy of a treaty. Another contributor to Jeremy Bentham and Australia, the historian Deborah Oxley, discusses the same text as Reynolds and suggests, “Bentham actually appears to commend the failure to write a treaty.” She also corrects the further error made by Reynolds: “Reynolds attributes Bentham’s sentence ‘The flaw is an incurable one’ to the absence of a treaty, but Bentham appears to be referring to charters.” As her correction was in footnote 104 of her essay, perhaps few readers of Henry Reynolds would have noticed, and by the time she wrote the error had already been widely spread.
Though Bentham had not appeared in Reynolds’s books before 2017, he thereafter appears as a prominent figure in the politicised author’s online essays and two books, and probably a great number of public and university lectures. It fitted smoothly into his regular denunciations of our history and his usual monologues calling for the break-up of Australia. The disinformation flows across the years as again and again the historian inserted empty phrase-making into his flawed historical narratives.
2018: “Australia was founded on a hypocrisy that haunts us to this day” (published by The Conversation and Pearls and Irritants):
At much the same time in Britain [early 1800s] the great political philosopher Jeremy Bentham wrote a pamphlet criticising the legal arrangements that had been made for the settlement of New South Wales. Among many points he made was the observation that there had been no negotiation with the Aborigines and no treaty had been signed with them. This created problems which would be enduring. “The flaw,” he declared, would be “an incurable one.”
Similar concerns about the conduct of the settlers, the fate of the Aboriginal people and the linked problems of property and sovereignty continued to be expressed across the generations by men and women who responded to the “whispering in their hearts” (a whispering first raised by Sydney barrister Richard Windeyer in 1842 [actually 1844]). They are part of the most enduring political debate in our history. They are still with us as Bentham predicted more than 200 years ago.
The problem is that there is no clear explanation in Australian legal theory to show how sovereignty passed from the first nations to the British crown. On this matter international law has been clear since the 18th century. Sovereignty can be lost and acquired either by conquest or by cession, that is, by the negotiation of a treaty. This was clearly understood by Bentham.
So what can be done? Ideally we should have a decision from the High Court. They could revisit the Mabo judgement and consider the question of sovereignty as Eddie Mabo himself wanted it settled. The case would be simpler than one which considered the actions of the British Imperial government. Murray Island was annexed by the Queensland colonial administration in 1879.
And if the High Court argues that it is unable to decide on such a question, the way forward may be an appeal to the International Court of Justice for an opinion on the matter. That would clear the way for treaty making in Australia itself which would finally provide a cure for Bentham’s flaw.
The argument he makes is based on complete fantasy, but none of the 215 comments this essay attracted on The Conversation recognised that he was misusing Bentham. He was also selectively using and misrepresenting the intent of Richard Windeyer’s lecture “On the Rights of the Aborigines of Australia”, for he never explores what Windeyer, who emphatically denied the existence of Aboriginal “property and sovereignty rights” and law, actually meant when he asked, “What means this whispering in the bottom of our hearts?” No reader of Reynolds would have known that the text from which he had cut a handful of words presented a devastating description of a cruel Aboriginal environment of brutality, cannibalism, infanticide and violence against women.
Also in 2018, Reynolds published a new edition of an earlier book as This Whispering in Our Hearts Revisited. His new introduction took his errors to a wider public and spread untruth further by repeating as a fact that Bentham had claimed in 1803 that the “the colony had been acquired by conquest. The Aboriginal people had been accorded no diplomatic power, nor had their representatives signed a treaty with the King. This created problems that, he believed, would be enduring. ‘The flaw’, he declared, ‘is an incurable one’.”
Bentham wrote that the two Aborigines were in Britain “in the character of private gentlemen, travelling for their amusement”. Reynolds, for modern political purposes, turns them into representatives capable of negotiating a treaty on behalf of all Aboriginal Australia. These comments were repeated later in the book where he also stated, “When the British arrived in New South Wales, treaties with indigenous nations were already established practice.” In Australia where was the nation? Where were the ambassadors? What would the agreement have stated? In what language? Reynolds offers no guidance.
2020: “Australia Day or dying in a ditch for January 26” (Pearls and Irritants):
The conservatives, it seems, are willing to die in a ditch for January 26th … In 1791 [actually 1803] Jeremy Bentham remarked that the failure to conclude treaties in Australia was a fatal mistake that would never be remedied … The most charitable interpretation we can make of those culture warriors who are determined to die in a ditch to defend the indefensible [Australia Day] is that they don’t really know much about Australian history.
2021: “Australian ‘patriots’ wrap themselves in the flag of a colony” (Pearls and Irritants):
“Jeremy Bentham observed that New South Wales had been annexed without any treaties with the First Nations. It was, he believed, an egregious fault that could never be remedied.”
Note how the politicised term “First Nations” has entered his vocabulary and been anachronistically applied to the past.
That same year, 2021, Reynolds published Truth-Telling: History, Sovereignty and the Uluru Statement and made a tone-deaf connection between Bentham in 1803 and the 1991 song “Treaty” by Yothu Yindi:
Almost no one appreciated that the absence of treaties [plural] in Australia had been noticed in the earliest colonial years, or that Jeremy Bentham had written about the matter 200 years before “Treaty” was composed and sung … Bentham’s prophecy that the failure to negotiate a treaty would be an incurable flaw runs like a dark stain through our history.
Henry Reynolds is always simplistic, always unreliable. Though his selection and use of sources is dazzlingly inept, his political objective is clear—the destruction of modern Australia and its replacement by Balkanised race states, an independent Torres Strait and an Aboriginal nation. His impressionable audience, beyond the admiring Writers Week ladies and website flirts, are youthful activists who dream of hate and are ready and more than willing to bring violence onto our streets. The dark stain he sees is not our history but the future he is wishing upon us—Australian blood which will be shed for his errors and fantasies.