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CONNECTING
WITH LAW
FOURTH EDITION

MICHELLE SANSON
THALIA ANTHONY
OXFORD
ASCEND
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CONNECTING
WITH LAW
CONNECTING
WITH LAW
FOURTH EDITION

MICHELLE SANSON
THALIA ANTHONY
1
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research,
scholarship, and education by publishing worldwide. Oxford is a registered
trademark of Oxford University Press in the UK and in certain other
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Published in Australia by
Oxford University Press
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© Michelle Sanson and Thalia Anthony 2019
The moral rights of the authors have been asserted.
First edition published 2009
Second edition published 2010
Third edition published 2014
Fourth edition published 2019
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BRIEF CONTENTS

List of Figures xii

Table of Cases xiv
Table of Statutes xxi
Preface xxx
Guided Tour xxxi
Acknowledgments xxxiii
About the Book xxxiv

1 Learning Law: How Can I Develop a Legal Mind? 1

2 Sources: What Is the Law Itself? 57
3 Legal Institutions: How Is Law Made? 111
4 Classifying and Practising Law: How Are Cases Resolved? 157
5 Research: How Do I Find the Law? 187
6 Communication: How Do I Engage with Others about
the Law? 241
7 Jurisprudence: What Is Law? 301
8 History: How Did Australian Law Develop? 353
9 Australia: Where Do Indigenous Laws Fit In? 379
10 Precedent: How Do Judicial Decisions Become Law? 417
11 Statutory Interpretation: How Do Courts Interpret
Legislation? 465
12 The Profession: What Do Lawyers Do? 517
13 Law in Society: What Are the Problems and Remedies
for Accessing Justice? 564
14 My Law Career: How Can I Best Prepare for It? 595

Glossary 635
Index 645

v
EXTENDED CONTENTS

List of Figures xii

Table of Cases xiv
Table of Statutes xxi
Preface xxx
Guided Tour xxxi
Acknowledgments xxxiii
About the Book xxxiv

1 Learning Law: How Can I Develop a Legal Mind? 1

1 Law as a discipline 2
Reflection exercise 3
2 Legal reasoning 4
Exercise: Inductive and deductive reasoning 7
Exercise: What’s your reasoning? 8
3 Outcomes of your legal education 10
Exercise: Priestley 11 requirements 13
Exercise: Critical thinking 26
Exercise: Assessing sources 29
4 Success in law school 42
Exercise: Basic IRAC application 47

2 Sources: What Is the Law Itself? 57

1 Primary and secondary sources of law 58
Exercise: Sources practice 59
2 Legislation 59
Exercise: Anatomy of an Act 69
3 Cases 76
Exercise: Reading a citation 81
Exercise: Case summary 1 92
Exercise: Case summary 2 93
4 Secondary sources 97

vi
EXTENDED CONTENTS vii

3 Legal Institutions: How Is Law Made? 111

1 Government in Australia 113
Reflection exercise: Rule of law perspectives 117
2 Constitutions of the Commonwealth and the states and territories 117

3 Parliament’s role in creating law 125

4 The executive’s role in administering law 128

5 The judicature’s role in interpreting law 132

Problem exercise: Intra or ultra vires 143
6 Alternatives to courts 145

4 Classifying and Practising Law: How Are Cases Resolved? 157

1 Major legal classifications 159

2 Branches of substantive law 163

3 Aspects of procedural law 178

5 Research: How Do I Find the Law? 187

1 The importance of legal research 189

2 Legal research methodology 189

Exercise: Research types 190
Exercise: Research strategy scenario 192
Exercise: Ranking sources 199
3 Using a library catalogue or search engine 200
Exercise: Boolean searching 202
4 Finding legislation 203
Exercise: Finding a bill 209
5 Finding cases 212
Exercise: Using FirstPoint and CaseBase 220
Exercise: Searching phrases in CaseBase 222
6 Finding and using secondary sources 223

7 Legal referencing 234

viii EXTENDED CONTENTS

6 Communication: How Do I Engage with Others

about the Law? 241
1 The importance of communication 242

2 Formulation: Preparing to communicate 245

Exercise: Reading a case for a particular purpose 248
Exercise: Preparing to be excused from jury duty 250
3 Engagement: In-person communications 255

4 Engagement: Written communications 265

Problem exercise: Drone on, party people 273
Exercise: Drafting a submission 278
Exercise: Advising Alan 282
Exercise: Hitting the right tone 282
Exercise: Keeping it clear 283
5 Collaboration 284
Reflection exercise: Good team, bad team 287
Exercise: Group work scenario 292
6 Review: Continual improvement 296

7 Jurisprudence: What Is Law? 301

1 Introduction 303

2 Early and continuing jurisprudence: Indigenous jurisprudence 306

3 The birth of modern jurisprudence 307

4 Modernism, Marxism and socio-legal theory 324

5 Legal realism 329

6 Critical legal theories 331

7 Dominant jurisprudence today 342

Exercise: Applying jurisprudence 349

8 History: How Did Australian Law Develop? 353

1 Legal systems of Indigenous societies and their early exclusion
from the common law 356

2 Displacement of Indigenous laws 358

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EXTENDED CONTENTS ix

3 Reception of English law 363

4 Military origins of the Australian legal system 363

5 Key concepts from English legal and constitutional history 364

6 How English legal and constitutional history apply to Australia 369

7 Adoption of English common law—from the frontier to the

Australia Acts 371

8 Federation and British remnants today 376

9 Australia: Where Do Indigenous Laws Fit In? 379

1 Historical developments in official policies relating to Indigenous
people: Exclusion and inclusion 381
Exercise: The intervention 386
2 Recognition of Indigenous rights to land 389

3 Developments since Mabo 395

4 Other forms of recognition of Indigenous rights to land 399

5 Persistent non-recognition of Indigenous laws 405

6 Alternative paths for incorporating customary law into the

common law 407

7 Filling the legal gap—treaty and sovereignty rights 414

10 Precedent: How Do Judicial Decisions Become Law? 417

1 Introduction to precedent 418

2 Key concepts in the law of precedent 420

Exercise: Low blow for a high roller 422
Exercise: Finding more than one ratio 426
Exercise: The ratio of disturbance 431
3 Applying precedent 435
Exercise: Which judgment is which? 439
4 Judicial approaches to precedent 442
Exercise: Judging Sophie 442
x EXTENDED CONTENTS

5 Problem solving using precedent 449

Exercise: Which precedent takes precedence? 449
Exercise: Application of precedents 450
Exercise: Distinguish the precedent 455
Exercise: Jurisprudence in precedent 457

11 Statutory Interpretation: How Do Courts

Interpret Legislation? 465
1 Introduction to statutory interpretation 466

2 Modern statutory approach 470

Exercise: ‘Make poverty history’ 476
Exercise: ‘Penalty for possession’ 478
3 Traditional common law approaches 480

4 Other tools of statutory interpretation 485

Exercise: Applying ejusdem generis 491
Exercise: Latin maxims 492
Exercise: Getting out of military service 495
Exercise: Betel nut therapy 496
5 Applying the rules of statutory interpretation 498
Exercise: Jimbo and Baba visit Parliament House 499
Exercise: No standing 500
Exercise: Double jeopardy 501
Exercise: Danny and his motorbike 503
Exercise: Supergrass 509
Exercise: Olympic ring accessorising 510

12 The Profession: What Do Lawyers Do? 517

1 Overview of Australian legal practice 518

2 Solicitors 527
Exercise: Confidentiality and disclosure 539
3 Barristers 542

4 Judicial officers 554

5 Some other roles in the legal profession 556

6 Ethics 558
Exercise: Ethical decision making 560
EXTENDED CONTENTS xi

13 Law in Society: What Are the Problems and Remedies for

Accessing Justice? 564
1 Access to justice—key issues 565

2 Access to justice for specific groups 570

Exercise 574
3 The role of legal aid 581

4 Other initiatives to promote access to justice 588

14 My Law Career: How Can I Best Prepare for It? 595

1 What is a law career ‘for’? 596

2 Is law really for me? How do I know? 599

Exercise: Am I suited to becoming a lawyer? 606
3 What kind of career can I expect as a lawyer? 608

4 Important choices of subjects and course structures 621

5 What can I do as a student to become the lawyer I want to be? 624

6 Maintaining wellbeing 628

Glossary 635
Index 645
LIST OF FIGURES

Figure 1.1: Inductive and deductive reasoning 7

Figure 1.2: Relationship between the TLOs, Priestley 11 and graduate attributes 10
Figure 1.3: Interrelationship between the TLOs, Priestley 11 and graduate attributes 18
Figure 1.4: Tree diagram: Get a law-related job or volunteer position for the summer 32
Figure 3.1: The three arms of government 114
Figure 3.2: The federal court hierarchy 135
Figure 3.3: The state court hierarchy 135
Figure 4.1: Substantive and procedural law 163
Figure 5.1: The Laws of Australia user interface 193
Figure 5.2: The search refined using quote marks 193
Figure 5.3: Exploring the results 194
Figure 5.4: A useful lead 194
Figure 5.5: The AustLII user interface 195
Figure 5.6: Index page of an Act 196
Figure 5.7: Homing in on particular sections 196
Figure 5.8: Checking notations for extra information 197
Figure 5.9: The Noteup feature 198
Figure 5.10: Commonwealth legislation page at AustLII 203
Figure 5.11: Federal Register of Legislation home page 204
Figure 5.12: Browsing legislation by subject on Lawlex 206
Figure 5.13: Browsing Lawlex to WA legislation on adoption 207
Figure 5.14: Example of AustLII’s Point-in-Time facility 210
Figure 5.15: AustLII High Court case search options by year and starting letter 213
Figure 5.16: Cardiff Index example 214
Figure 5.17: CaseBase Cases search screen 214
Figure 5.18: CaseBase results screen for Engineers’ Case 215
Figure 5.19: CaseBase results screen for Tasmanian Dam Case 215
Figure 5.20: LexisNexis unreported judgments 216
Figure 5.21: CaseBase legislation judicially considered 217
Figure 5.22: AustLII Noteup function for legislation 217
Figure 5.23: LawCite home page on AustLII 218
Figure 5.24: LawCite results screen 218
Figure 5.25: The FirstPoint case search screen 219
Figure 5.26: The FirstPoint case citator results screen 219

xii
LIST OF FIGURES xiii

Figure 5.27: The CaseBase case citator results screen 220

Figure 5.28: Browse and advanced search screen for IntelliConnect 221
Figure 5.29: Example entry from Australian Law Dictionary 225
Figure 5.30: The Informit search screen 225
Figure 5.31: The Australian Legal Journals Index search screen 226
Figure 5.32: Australasian Legal Scholarship Library on AustLII 226
Figure 5.33: HeinOnline example 227
Figure 5.34: Subject headings in Halsbury’s online at Lexis Advance® 228
Figure 5.35: Laws of Australia at Westlaw AU 229
Figure 5.36: Checking currency of Laws of Australia information 229
Figure 5.37: ALRC report download options 230
Figure 5.38: Australian Treaties Database treaty example 233
Figure 7.1: Jeremy Bentham 315
Figure 7.2: Karl Marx 325
Figure 7.3: Emile Durkheim 327
Figure 7.4: Relationships between schools of thought within critical legal theory 332
Figure 7.5: Michel Foucault 339
Figure 9.1: Colonial Frontier Massacres in eastern Australia 1788–1872 382
Figure 11.1: Depiction of case and statute development 469
Figure 11.2: An approach to statutory interpretation problems 499
Figure 12.1: Legal Profession Uniform Law Framework 520
Figure 14.1: Sources of fee income: other legal services 609
Figure 14.2: Sources of fee income: barristers 609
Figure 14.3: Some career options after a law degree 611
Figure 14.4: Engaged in first-year law 633
TABLE OF CASES

The titles of case extracts appear in bold.

A (Children), Re [2001] 2 WLR 480 350
Aboriginal Lands Act 1995, Re, and Marianne Watson, Re (No 2) [2001] TASSC 105 354
Adani Mining Pty Ltd and Another v Adrian Burragubba, Parick Malone and Irene White on
behalf of the Wangan and Jagalingou People [2015] NNTTA 16 404
Adler v George [1964] 2 QB 7 481
Al-Kateb v Godwin (2004) 219 CLR 562 102
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920)
28 CLR 129 214, 215, 481
Andrews v Henderson [2004] QCA 145 437
Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 442
Astley v Austrust Ltd (1999) 197 CLR 1 534
Attorney-General (Cth) v The Queen (1957) 95 CLR 529 136
Attorney-General v Brown (1847) 1 Legge 312 363, 370, 371
Attwells v Jackson Lalic Lawyer Pty Ltd [2016] HCA 16 552
Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] StR Qd 135 480
Australian Broadcasting Corp (ABC) v Obeid (2006) 66 NSWLR 605 437
Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 122
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd
(2015) 317 ALR 279 486
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 439 445
Australian Federation of Construction Contractors, Re; Ex Parte Billing (1986) 68 ALR 416 475
Australian Municipal, Administrative, Clerical and Services Union (AMACSU) v Ergon Energy
Corp Ltd (2005) 149 IR 35 437

Barrett v Lets Go Adventures Pty Ltd v [2016] NSWDC 345 198

Bolton, Re; Ex Parte Beane (1987) 162 CLR 514 476
Brisciani v Piscioneri (No 4) [2016] ACTCA 32 436
British American Tobacco Australia Limited v Gordon (No. 2) [2009] VSC 77 537
British American Tobacco Australia Limited v Gordon (No. 3) [2009] VSC 619 537
Broome Helicopter Services Pty Ltd v Anderson [2014] WASCA 12 439
Bropho v Western Australia (1990) 171 CLR 1 488
Brown v Tasmania [2017] HCA 43 226
Bugmy v The Queen [2013] HCA 37 411, 412, 426–431
Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and
Warkworth Mining Ltd [2013] NSWLEC 48 337
Burch v South Australia (1998) 71 SASR 12 472
xiv
TABLE OF CASES xv

Canavan, Re; Ludlum, Re; Waters, Re; Roberts (No 2), Re; Joyce, Re; Nash, Re;
Xenophon, Re [2017] HCA 45 135
Carr v Western Australia (2007) 239 ALR 415 472
Cattanach v Melchior (2003) 215 CLR 1 220
Chamberlain v The Queen (1983) 72 FLR 1 438
Chandra v Perpetual Trustees Victoria Ltd [2007] NSWSC 694 535
Cheatle v The Queen (1993) 177 CLR 541 185
Coco v The Queen (1994) 179 CLR 427 480
Coe v Commonwealth (1979) 24 ALR 118 379
Coe v Commonwealth (1993) 118 ALR 193 379, 406
Cole v Director-General of Department of Youth and Community Services
(1987) 7 NSWLR 541 484
Collins v Wilcock [1984] 1 WLR 1172 274
Commercial Bank of Australia v Amadio (1983) 151 CLR 447 81, 422, 423, 424, 425
Commissioner of Police v Eaton [2013] HCA 2 440
Commonwealth Minister for Justice v Adamas [2013] HCA 59 106
Commonwealth v Australian Capital Territory [2013] HCA 55 59, 446
Commonwealth v Tasmania (1983) 158 CLR 1 125, 214, 215
Commonwealth v Yarmirr (2001) 208 CLR 1 398
Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 213
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation
(1981) 147 CLR 297 81, 488
Cooper v Stuart (1889) 14 App Cas 286 359
Cooper v Universal Music Australia (2007) 71 IPR 1 421
Council of the Law Society of New South Wales v Paul [2012] NSWADT 280 553
Council of the New South Wales Bar Association v Hart [2009] NSWADT 252 553
Council of the New South Wales Bar Association v Hart [2011] NSWCA 64 553
Cowell (Estate of McCabe decd) v British American Tobacco Australia Services
Ltd [2007] VSCA 301 537
Culleton (No 2), Re [2017] HCA 4 218
Curnuck v Nitschke [2001] NSWCA 176 534

D’Aguilar Gold Ltd v Gympie Eldorado Mining Pty Ltd [2006] QSC 326 471
Damjanovic v Sharpe Hume & Co [2001] NSWCA 407 578
Dean v Wiesengrund [1955] 2 QB 120 492
Delgamuukw v British Columbia [1997] 3 SCR (Canada) 1010 398
Department of Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 438
Dietrich v The Queen (1992) 177 CLR 292 122, 578, 584, 585
Diveva Pty Ltd v Nominal Defendant [2013] NSWCA 325 436
Donoghue v Stevenson [1932] AC 562 8, 45, 76, 171, 420, 445
xvi TABLE OF CASES

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 551

DPP v Smith [1961] AC 290 376
Drake and Minister for Immigration and Ethnic Affairs, Re (No 2) (1979) 46 FLR 409 166
Duralla Pty Ltd v Plant (1984) 2 FCR 342 220

Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125 422

Earl of Oxford’s Case (1615) 21 ER 485 161
Eisele v Commowealth of Australia [2018] FCA 15 436
Ellis v Newton [2012] NSWCA 22 436

Federal Commissioner of Taxation v Salenger (1988) 81 ALR 25 435

Fejo v Northern Territory (1998) 195 CLR 96 393
Fischer v Howe [2013] NSWSC 462 535
Fisher v Bell [1961] 1 QB 394 483
Fitzwood Pty Ltd v Unique Goal Pty Ltd (in liq) [2002] FCAFC 285 437
Foxtel Management Pty Limited v The Mod Shop Pty Limited [2007] FCA 463 79

Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 220
Garcia v National Australia Bank (1998) 194 CLR 395 161
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 436
Giannarelli v Wraith (1988) 165 CLR 543 546
Gibbs v Capewell (1995) 128 ALR 577 354
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd 85
Google Inc v Australian Competition and Consumer Commission [2013] HCA 1 83
Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374 493
Green v Brown (2002) 116 IR 21 437
Green v Burgess [1960] VR 158 489
Grey v Pearson (1857) 6 HL Cas 61 481

Haddad v Foxtel Management Pty Ltd [2008] FCAFC 11 79, 80

Hales v Jamilmira [2003] NTCA 9 (15 April 2003) 213
Hanna v Director of Public Prosecutions (DPP) (NSW) (2005) 62 NSWLR 373 437
Hawkins v Clayton (1988) 164 CLR 539 534
Herbert Adams Pty Ltd v Federal Commissioner of Taxation (1932) 47 CLR 222 483
Heydon’s Case (1584) 76 ER 637 482
Higgon v O’Dea [1962] WAR 140 481
Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd [2014] VSCA 3 439

Institute of Patent Agents v Lockwood [1894] AC 347 480

TABLE OF CASES xvii

Jango v Northern Territory of Australia [2006] FCA 318 395

Jeffrey Wayne Davie v The Queen [2008] NSWCCA 2 220
John v Federal Commissioner of Taxation (1989) 166 CLR 417 438

K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 442
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 115
Kakavas v Crown Melbourne Limited [2013] HCA 25 422–426
Kartinyeri v Commonwealth (1998) 195 CLR 337 387
Kendirjian v Lepore [2017] HCA 13 552
Kingsley’s Chicken Pty Ltd v Queensland Investment Corporation & Canberra Centre
Investments Pty Ltd [2006] ACTCA 9 471
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 472, 494
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 94, 95, 110

La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 438
Laemthong International Lines Co Ltd v BPS Shipping (1997) 190 CLR 181 493
Lake Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 483
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 237
Legal Services Commissioner v Bradshaw [2009] QCA 126 436
Li v Chief of Army [2013] HCA 49 431–434
Lipohar v The Queen (1999) 200 CLR 485 140
Louth v Diprose [1992] HCA 61 422, 425, 426

Mabo v Queensland (No. 1) (1988) 166 CLR 186 392

Mabo v Queensland (No. 2) (1992) 175 CLR 1 ix, 27, 81, 214, 353, 358, 360, 361, 370, 371, 377,
379, 391, 392, 393, 395, 401, 405, 406, 414, 435,
446, 448, 489
McAlister v State of New South Wales (No 2) [2017] FCA 93 150
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73 537
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 112 537
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 537
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 172 537
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 216 537
McKenzie v McKenzie [1970] 3 WLR 472 584
McLean v Kowald (1974) 9 SASR 384 492
Mandalidis v Artline (1999) 47 N SWLR 568 494
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission
(2010) 240 CLR 409 235
Marwey v The Queen (1977) 138 CLR 630 450, 453
Mason v Tritton (1994) 34 NSWLR 572 213
xviii TABLE OF CASES

Members of the Yorta Yorta Aboriginal Community v Victoria (2002)

214 CLR 422 379, 393, 397, 398
Metropolitan Gas Co v Federated Gas Employees Industrial Union (1924) 35 CLR 449 473
Michael v The Queen [2014] NSWCCA 2 440
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 542
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 317, 358, 371, 379, 389, 391
Mills v Meeking (1990) 169 CLR 214 484
Minister for Arts, Heritage and Environment v Peko-Wallsend Pty Ltd (1987) 15 FCR 274 213
Minister for Immigration and Citizenship v SZJXO [2009] 238 CLR 642 92, 110
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 353 233
Minster for Resources v Dover Fisheries (1993) 43 FCR 565 480
Momcilovic v The Queen [2011] HCA 34 474
Moore v Hubbard [1935] VLR 95 468
Moromilov v Vojinovic [2013] ACTCA 6 440
Morris v The Queen [2006] WASCA 142 450, 454
Munungurr v The Queen (1994) 4 NTLR 63 411

NAAT v Minister for Immigration, Multicultural and Indigenous Affairs (2002) 170 FLR 177 438
Neal v The Queen (1982) 149 CLR 305 350, 431
Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 437
New South Wales Bar Association v Hart [2006] NSWADT 97 553
New South Wales Bar Association v Punch [2008] NSWADT 78 553
New South Wales v Commonwealth (1975) 135 CLR 388 359
Newcastle City Council v GIO General Limited (1997) 191 CLR 85 484

Onus v Alcoa (1981) 149 CLR 27 212

O’Rourke v Hoeven [1974] 1 NSWLR 622 162

Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 483
Parker v The Queen (1963) 111 CLR 610 377
Pearce v The Queen [1998] HCA 57 501
Petreski v Cargill (1987) 18 FCR 68 220
Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and
Citizenship [2013] HCA 53 102
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 166
Polyukhovich v The Commonwealth (1991) 172 CLR 501 217–219, 220
Post Office v Estuary Radio Ltd (1968) 2 QB 740 359
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 478, 479, 496
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 569
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would call "half and half." The fifth was of such a mixed composition
that we were unable to trace his lineage. He was nearer a white man
than a negro, not in very good health, and extremely ill-natured in
his expression of face. Pedro, the pilot, was an Amazonian Indian,
quite lazy and not worth much, though his services were needed, as
he was the only one in the party who had navigated the Madeira.
The soldiers were supplied with a decent suit of uniform,
ammunition, muskets, and farinha. We were obliged to reduce our
baggage; even the jerked beef had to be diminished in quantity, as
well as the men's provisions. The boat was too small when we were
all on board to float lively. Four of the soldiers took their seats in the
bow as paddlers. Mamoré mounted the baggage, with Pedro as
pilot; while "Titto," the sergeant, a stout, well-built negro, stood up
behind us and steered the boat. The commandante gave me a
passport for the crew, with an account of the public property in their
charge. Don Antonio entrusted me with a remittance to his father,
which was the only sign we had from the people that we would ever
gain the mouth of the Madeira. To him we are indebted for many
prominent kindnesses. If he had not been here we certainly would
either have gone to Rio Janeiro by the mail-route, or tried that from
Cuayaba, down the Paraguay, to Buenos Ayres.
At midday, on the 14th of September, 1852, we parted with Don
Antonio, who expected to be two years longer trading off the
cargoes of his two small boats, which he left at Exaltacion during a
voyage to Matto Grosso. He appears disappointed with his
undertaking, and declares he never will make such a voyage again.
He supports a party of twelve people. They remain by him in
idleness during the time he is occupied disposing of his cargo, each
man drawing regular pay, from four to six dollars a month. As our
little boat passed swiftly down the current among the rocks, the men
paddled as though they feared being recalled. They all sang as we
bid farewell to the grim old fort. The commandante treated us with
marked attention, and appeared sorry to let us go so soon. He said
he had spent several years in his younger career as an officer at the
fort. Officers generally shrunk from orders here, for the place had
the name of being unhealthy. After the death of its last commander,
he had been selected for the station because he was acclimated.
There is a horrible disease among the soldiers, called the "Fort
fever," which, for the want of medicine, slowly destroys the garrison.
We found the climate quite pleasant, but its general character is any
thing but favorable from reports.
Thirty miles below the fort I sealed a bottle, and threw it into the
Itenez river, with a note inside, requesting the finder to enclose it to
Washington city. Titto was somewhat surprised at what he saw us
doing, and inquired who the note in the bottle was directed to, and
why it was thrown into the current. On being told that the bottle
would go to North America in the water, if undisturbed, he told the
other negroes, the gentleman had sent a letter home in that bottle.
A tall, ugly looking negro in the bows, answered in Portuguese, "It
don't go there." The negroes all engaged in an argument upon the
subject. Titto said it would certainly go somewhere; that it could not
go to Matto Grosso, because the current of the river flowed from
there to the fort. A little sleek black, by the side of the other, shook
himself, laughed out loud, and paddling with all his might, said,
"Come, boys, let us get along down; that nigger in the stern of the
boat is right."
On the evening of the 16th of September we landed silently on
the sand flat, near the mouth of the Itenez, for the purpose of
making an observation upon the stars for latitude. The men stood at
ease with their arms, while Richards drove the musquitoes away
with a bunch of green bushes, for the observer is constantly under
the necessity of being fanned. We were on the Brazilian shore, while
a great prairie-fire lit up the night for the savage "Houbarayos" on
the Bolivia side of the river. We succeeded in getting a good
observation, and after continuing down stream some distance,
swung to a snag in mid-channel during the night.
Early in the morning of the 17th of September we came to the
junction where the Itenez empties into the Mamoré. The beach was
lined with water-fowl; alligators lay on the sand like canoes, half out
of water; porpoises were playing about, while fish were jumping.
Even the prairie and forest birds seem to come down to join the
congregation. It was evident, by the conduct of the birds and the
fishes, that they had all collected together in one place for some
particular public purpose.
The water of the Itenez is 4° warmer than the water of the
Mamoré. During the cool nights, the fishes and the birds sleep in or
by the warmer water, which protects them. We saw a wild hog
feeding near the bank; he, too, had been sleeping near the warm
bed of the Itenez. There are exceptions to this practice, both among
the fishes and birds; some of the fish ascend the muddy stream,
while others seek the clear. Many fish we recognise in the Mamoré,
like those found in the northern rivers of the United States; while
those in the Itenez seem to take after families we had known living
in streams flowing through the sandy soil of Florida. The porpoises
of the sea are of a deep blue color; those of the turbid waters of the
Mamoré are lighter. In the limpid waters of the Itenez, the porpoise
has a light white and pink color, though all puff and jump above the
surface of the water, and are of the same size, shape, and manners.
The drift wood, and more active current of the Mamoré, produce an
enlivening effect. After repairing one of our paddles, which was
broken by hard pulling, we launched our boat, and were carried
gallantly on the Mamoré once more.
The distance by the river from the mouth of the Itenez to Fort
Beira, is about fifty-five miles in an east-southeast direction;
opposite the junction of these rivers, there are three small hills on
the Brazil side. The Mamoré turns its course from a north direction a
little to the westward. The stream here comes in contact with the
solid formation of coarse granite in the Brazils. The commandante of
the fort told me his father made a fortune by collecting diamonds on
the head waters of the Paraguay in Brazil, and that he had found
traces of the same stones in the bed of the Itenez. The sharp
angular edges of the diamond, put in motion by rippling water, cuts
itself a little hole in the hardest rocks. As the waters rush over it in
the wet season, the diamond works deeper and deeper, so that
common stones may enter the hole. The water whirls round in this
hole, the common stones wear away the sides, and increase the size
of the cavity, while the diamonds are busily at work at the bottom.
In such holes the diamond hunter seeks his wealth. We find no
traces of silver or gold on this side of the Madeira Plate, We passed
through a rapid, between rocks on the banks, getting a cast of the
lead and no bottom.
September 17.—At 9 a. m., thermometer, 78°; water, 79°; wind
southeast. The banks are thirty feet high, and well wooded. The
river is five hundred yards wide, with a depth of from thirty to sixty
feet. The country on both sides of us appears well adapted for
cultivation, many parts of it being above the rising of the floods.
Pedro tells me we have the "Sinabos" savages on the Brazil side of
us, and the equally uncivilized tribe of "Jibo" on the Bolivia side. Our
men work well; with a one-mile current, we keep on day and night.
Large green and black flies annoy us very much, in addition to which
we have sand-flies and musquitoes at night. At 3 p. m.,
thermometer, 87°; water, 80°; wind southeast. As the moon went
down, heavy clouds rose up in the east, and lightning flashed there.
The men slept while we drifted along among snags. Here and there
a sawyer bobbed up his head. The only way to keep clear of them is
by listening to the music of the waters playing against the logs as
we pass in the darkness of the night. One man keeps watch with his
paddle in the bow. He watches and talks to us at the same time. He
tells me the Emperor of Brazil pays him sixteen mil reis a month, and
finds him in board and lodging. Mil reis vary in value; at present
worth fifty-five cents. He is not a slave, but was born a free negro,
which is the case with most of those who enter the army. Every man
born free has either to serve the Emperor or pay tax money. As he
had no money, he was obliged to enlist. He did not know how long
he was enlisted for, or when he would be permitted to go home to
Cuyaba, where his mother lived. He had asked a number of times to
be paid off and discharged; but he was answered the Emperor
required his services, so he is uncertain when he will be able to get
off; though, when he returns from this trip faithfully, and reports
himself to the commandante, he may be permitted to go to Matto
Grosso with the mail, and then he thinks of detaching himself by not
returning. Slaves are not employed as soldiers, he tells me; only the
free blacks. From his tone, he considers the man who cultivates the
sugar-cane and cotton-plant is degraded, compared with his own
occupation. According to his account, there are a great number of
free-born black people in the province of Matto Grosso. He considers
the town of Matto Grosso a miserable place compared with Cuyaba.
The people in the former place are all very poor—mostly colored
folks—and the country round about is very little cultivated; but in the
latter town there are rich white people, he says, who own slaves and
cultivate corn and beans. He always has plenty of tobacco to smoke
in Cuyaba, but at Fort Beira the men have very little; they are often
without it, as well as pine-apples and plantains. The negroes at
Cuyaba have balls and parties, music and dancing, every night. They
don't drink chicha, nor do they understand how to make it; but they
drink great quantities of aguadiente, which the Emperor don't give
them as a part of their rations. They never get any at the fort except
by the mail-boat. When letters come from the Emperor, then the
soldiers get a jug or two of aguadiente by the mail-carriers, and it is
used up at once.
September 18.—The negroes gathered a quantity of cream or
Brazil nuts from under a large tree on the Bolivia side. The nuts are
encased in a hard shell, which the men broke with our hatchet. The
tree was one of the largest in the forest, and the only one of the
kind we saw. Pedro pointed it out to them, otherwise we probably
should have passed it without knowing such good things were near
us. The nuts, with a turkey and goose, shot on the beach, served us
for breakfast. The negroes are poor fishermen compared with the
Indians. There appear fewer fishes below the juncture of the Itenez
with the Mamoré; the water is still muddy. At 9 a. m., thermometer,
80°; and water of the same temperature, which is rather warm
drinking; clear and calm. At 3 p. m., thermometer, 88°; water, 83°.
The river is half a mile wide in some places, and the channel clear of
drift-wood, with from twenty-four to forty-eight feet depth.
September 19.—A turn in the river brought us in sight of high
land to the north. The negroes blew two cow's horns, and shouted
at the sight of it. Laying down their horns, they paddled with a will
to their own musical songs, by which they kept time. We met a
north wind, which created a short wave as it met the current of the
stream, increasing in speed. The land has become low on both sides,
and is swampy, with signs of being all flooded in the rainy season.
At 9 a. m., thermometer, 82°; water, 81°. At 3 p. m.,
thermometer, 87°; water, 80°. We passed an island, rocky and
wooded. Flowers bloom and decorate the richly green foliage on the
banks. The current is quite rapid, and we dash along at a rate we
have not been able to do before on the Mamoré, passing the mouth
of a small river—Pacanoba—which flows from the Brazils and
through several islands. We came alongside of one of them for the
night. Within the death-like, mournful sound of the "Guajará-merim"
falls our raw-hides were spread, hair side up, as table and chairs.
While the men made a fire, I was listening to the roaring waters,
and thinking what sensible fellows those Cuyavabos Indians were to
run from it. The night was starlight; but the mist arising from the
foaming waters below us was driven over the island by the north
wind, which prevented my getting the latitude. Small hills stood a
very short way back from the islands, in Brazil. The land appears to
be above the floods on both sides. As we are free from musquitoes
at night, and the savages do not inhabit our little island, we sleep
soundly.
September 20.—By daylight we were up and off, pulling across
to the Bolivian shore to the head of the falls. We were in doubts how
our boat would behave in the rapids. After taking out part of the
baggage, which was passed over a rocky shore below, the boat was
pulled through without any difficulty. The channel was about fifty
yards wide, with very little fall; the whole bed of the river was
divided by wooded islands and black rocks, with large and small
channels of water rushing through at a terrible rate. A steamboat
could, however, pass up and down over this fall without much
trouble. We embarked, and found our little boat, which had been
named "Nannie," gliding beautifully over the short waves formed by
the rapid motion of the water. The rocks are worn away in long
strips, and cut up into confused bits by the action of the river
constantly washing over them. On the islands, quantities of drift-
wood and prairie-grasses are heaped on the upper side.
One of these islands occupied the middle of the bed for three-
quarters of a mile in length. We followed the channel down on the
Bolivia side to its lower end at a rapid rate; when we came to the
foot of the first fall we looked back up-hill, to see the number of
streams rushing down, each one contributing its mite to the roaring
noise that was constantly kept up. We saw no fish, but last night
met large flocks of cormorants, flying in a line stretching across the
river, close to the surface of the water; this morning they came
down again. These birds spend the night over the warm bed of the
Itenez, and return here in the day to feed.
No sooner had we cleared these falls than we found ourselves at
the head of another rapid, more steep, called "Guajará-assu." Pedro
took us to the upper end of a path in the woods, on the Brazil shore,
where Don Antonio had transported his cargo overland, three
hundred and fifty paces, to the foot of the falls. His large boats were
hauled through the water by means of strong ropes rove through
large blocks.
Our cargo was landed, and while Richards, with one man, was
engaged carrying the baggage down, I took the boat over on the
Bolivian side, and we hauled her three hundred yards over the rocks
and through the small channels, down an inclined shelf of about
twelve feet fall. The main channel is in the middle of the river, with
waves rolled up five feet high by the swiftness of the current,
through which a steamboat could pass neither up nor down.
The river cuts its way through an immense mass of rock,
stretching across the country east and west like a great bar of iron.
The navigation of the river Mamoré is completely obstructed here;
the river's gate is closed, and we see no way to transport the
productions of Bolivia towards the Amazon, except by a road
through the Brazilian territory. On the east side of the river, hills are
in sight, and among them a road may be found where a cargo might
pass free from inundations.
The navigable distance by the rivers Chaparé and Mamoré, from
near the base of the Andes, at Vinchuta, to Guajará-merim falls, is
about five hundred miles. We anxiously pulled across towards the
baggage, as the division of a party in this wild region is attended
with great risk. This day's work gave us some little experience in the
new mode of navigation. The sun is powerfully hot, but the negroes
strip themselves, and ease the little boat gently down in the torrent
between rough rocks. Don Antonio's advice was of the greatest
importance to us in the choice of a boat and men. The long canoes
of Bolivia would have been broken to pieces in this first day's travel
among the rapids. There are no paths through the wilderness by
which we could travel in case of an accident, and rafts we had seen
enough of at the head of the Madre-de-Dios. Embarking our
baggage, we continued under a heavy thunder storm, which came
up from the northeast, and whirled over our heads, sending down
heavy drops of rain. The banks of the river are twenty feet high. The
country on the Bolivian side is level, and there the lands are
overflowed half the year; but the Brazilian side is hilly; the ridges
appear to run at right angles with the river, which passes over the
toes of the foot of them. The whole country is thickly wooded with
moderate-sized forest trees. The river below these falls is
occasionally three-quarters of a mile wide, with a depth of from
twelve to thirty-six feet. The current is rapid as we leave the foot of
the falls, gradually decreasing in speed until the boat enters the
backed water, which is dammed up by the next ridge of rocks which
thwart the free passage of the river.
September 21.—At 3 p. m., thermometer, 83°; water, 81°. The
south wind blew all last night, accompanied with rain. Early this
morning we arrived at the head of "Bananeira" falls, distance eight
miles from the upper shelf. I find Pedro useful in pointing out the
ends of the paths over the land cut by Don Antonio. His services as
pilot, however, are not to be depended upon. Titto seems to be
perfectly at home in the management of a boat among rocks, and
assists me the most of the two. The cargo was landed on an island
near the Bolivian shore. The path led through bushes and trees,
down hill, near four hundred yards. The work of transporting the
boxes, amidst the annoyance of swarms of sand-flies, was harassing,
and with difficulty Richards could make the ill-natured member of
the crew carry as many boxes as he did himself. The river flowed
windingly; the baggage could be sent straight across; but the boat
had to be dragged, towed, lifted, and pushed through the rough
rocks and rushing waters for over a mile. This was trying work. The
heat of the sun was very great; the negroes slipped, and it was with
great difficulty at times they could hold the boat from being carried
from them by the strength of the waters as they heavily passed
through the choked passages. The men stand easing down the boat
up to their necks in water. The rocks are only a few feet above the
water level; they are smoothed by the wearing of the water and drift
wood. It is not easy for the men to keep their feet under water.
These negroes are good men for such service; they crawl among the
rocks like black snakes. Bananeira falls take their name from
quantities of wild banana trees formerly discovered here, but we saw
no traces of them. The fall is about twenty feet. The islands are
generally very low, a few feet above the present surface of the river.
All the rocks, and a great part of the islands, are overflowed in the
rainy season. Large heaps of drift wood lodge against the trees. On
the highest rocks we found pot-holes, worn down to the depth of
eight and ten feet by the action of small pebbles, put in motion by
the current as it passes over and whirls down, boring into the solid
mass of coarse granite. These pot-holes are generally half full of
stones, the large stones on top; gradually descending towards the
bottom, they were smaller, until at the very last they were composed
of bright little, transparent, angular-shaped stones, less in size than
a pin's head; among these the diamond hunter looks sharp. Some of
these pot-holes are three feet wide at the mouth, decreasing in edge
uniformly towards the bottom. When we gained the foot of these
falls, over which it is utterly impossible for a steamboat to pass at
any season of the year, we had to ascend a channel on the Bolivia
shore for the baggage. Mamoré lay by a part of it as watch, while
the rest of the party were at the other side of the island. We were
nearly exhausted; the men had nothing to eat half a day, and the
dog looked thin and sick. There were no fish, birds, monkeys, or
Indians to be seen, nor were the men successful in finding
castanhas, Brazil nuts, which they very much needed, as they had
nothing to eat but their allowance of farinha. The negroes were very
tired, but I observed the life improved them; they looked stronger,
and were getting fat. This was a great relief, for we were the worse
for wear. I was kept in constant excitement, lest some accident
should happen to our boat, or that an attack would be made upon
our baggage party by the savages. At 3 p. m., thermometer, 85°;
water, 81°, and less muddy; dashing over the rocks appears to filter
it.
The boat was carried along at a rapid rate by the current, which
boiled up and formed great globular-shaped swells, over which the
little boat gayly danced on her homeward way. The satisfaction we
felt, after having safely passed these terrible cataracts, cheers us on.
We were nearly the whole day getting two miles. We were prevented
from the danger in our path to proceed at night. The boat was
fastened to the Brazil bank, and after supping on a wild goose Titto
was fortunate enough to shoot, we slept soundly until midnight,
when we were suddenly aroused by the report of a gun. The men
were lying by a fire on the bank, near a thick tall growth of grass
which skirted the large forest trees. Richards was close by me. I
heard Titto's voice immediately following the report, saying "the
devil"—we were all up in arms; Titto said he had shot at a tiger,
which was approaching the men as they slept; Mamoré had been
faithfully prowling in the woods, keeping close watch over us while
we all slept; because he gave the men some trouble in the boat,
they laid this plan to put our trusty friend to death. Richards found
the dog shot in the heart, close by the heads of the men, four of
whom were in the secret, while Pedro and the Indian were sleeping.
We placed great confidence in the watchfulness of Mamoré; from
him we expected a quick report of savages or wild animals. With him
on watch we slept without fear, as the Indians are more afraid of the
bark of a large dog than of the Brazilian soldiers.
From what we had seen of the men, we were convinced they
were a rough, savage set, who would put us to death quite as
unceremoniously as the dog. They expressed an impudent
dissatisfaction when I ordered Titto to put a man on watch, and
keep sentinel all night. We lay till daylight, with our pistols prepared
for an attack from any quarter. The negro murderers on the
highways of Peru are more desperate and unmerciful than either the
Spaniard or Mestizo; so it is with a half-civilized African negro. At
daylight I was particular to let every man of them see my revolver.
We kept a close watch upon them, both by night and by day. They
had for some reason or other unknown to us taken a dislike to
Richards, who never gave them an order except when he was left on
shore to attend the portage of the baggage. They were under an
impression we were ignorant of what they said when speaking their
own language, as Titto and Pedro spoke to me in Spanish. On one
occasion, after the loss of Mamoré, I overheard the ill-natured one,
after Richards spoke to him about tossing water into the boat with
his paddle, say to the rest of the crew, "I don't know whether I
won't put a ball through that fellow yet, by accident!" After which I
had no confidence in any of them, and told Richards our only safety
remained in constant watchfulness, and the good condition of our
fire-arms.
September 22.—The river below Bananeira falls is seventy-eight
feet deep and half a mile wide, passing through rocks and islands,
where we found the wild Muscovy duck. With a rapid current, we
soon reached the mouth of the Yata river, a small stream flowing
from the territory of Bolivia, not navigable for a vessel larger than a
ship's boat. At "Pau Grande" rapids, the country is hilly on both
sides, and wooded with large trees, from which fact the rapids
derive their name. These rapids are about five miles from those
above, with a fall of fifteen feet in one hundred yards. The boat was
carefully passed through narrow channels among rocks fourteen feet
high. Don Antonio came up over these falls, when the river was
flooded, by keeping close along shore. He fastened the upper block
of his tackle to large trees, or heavy rocks, and by hard pulling, inch
by inch, dragged his boats along. No steamer could pass up or down
"Pau Grande." At 9 a. m., light northerly breezes; thermometer, 81°;
water, 81°. Two miles below brought us to Lajens rapids. The boat
was kept in mid-channel, and paddled with all the might of the men;
we passed through the rocks at such a swift rate, hats had to be
held on. This was a glorious passage; the little boat seemed to fly
through a channel that might be passed by a steamboat.
CHAPTER XII.
Jacares savages—Mouth of Beni river—Obstructions to steamboat navigation—
Madeira river falls—Lighten the boat—Pot holes—Granite—Pedreneira falls—
Caripuna savages—Pedro milks a savage woman—Bilious fever—Arrive at the
foot of San Antonio falls—The impracticability of navigating by steamboats the
falls of the Mamoré and Madeira rivers—Proposed road through the territory of
Brazil to Bolivia—Physical strength of the white, black, and red men, compared
under a tropical climate—Tamandua island—Turtle eggs—Oil hunters—Borba—
Mouth of the Madeira river.

A bark canoe lay by the Bolivia shore. Our negroes blew their
horns, which brought four savages and a black dog to the bank. Two
of them wore bark frocks, and two were naked—real red men. As we
floated along by the current, the following conversation took place
between the savages and the negroes: Savage—"Oh!" Negro in the
bows—"Oh!" Savage—"Venha ca"—come here—very clearly
pronounced. We told them to come to us, and they ran away, while
we paddled slowly on. These Indians are of the "Jacares" tribe; they
were soon paddling after us fast. We waited but a short time. Their
swift canoe was constructed of one piece of bark, twenty feet long,
and four feet beam. The bark was simply rolled up at each end, and
tied with a vine from the woods; between the sides, several
stretchers, four feet long, were fastened to the edge of the bark by
small creepers, and a grating, made of round sticks fastened
together with creepers, served as a flooring, which kept the bottom
of the canoe in shape, when the Indian stepped into her. Two young
men dressed in bark dresses sat in the stern, or one end, with well
made paddles. On the other end sat two naked women, each with a
paddle lying across her lap. As they came alongside, amidships sat
an old chief with a basket of yuca, a bunch of plantains, a large
lump of pitch, and several small pieces of a superior quality, called
by the Brazilians "breu." The Indians use it for securing arrowheads,
we find it serviceable in sealing our bottles of fish, or fixing the
screw to our ramrod; besides which, the old man brought one small
richly green parrot for sale. We bought him out with knives and fish-
hooks. One of the women was good looking, the figure of the other
was somewhat out of the usual shape. On being presented with a
shaving glass, they expressed great pleasure, and one after the
other looked as far down their throats as they could possibly see by
stretching their mouths wide open. Their greatest curiosity seemed
to be to explore the channel down which so much of the results of
their labor had passed. When they saw their dirty, half-worn teeth,
the holes in their ears, noses, and under-lips, one of them poked her
finger into her mouth through the lower hole, and brutally laughed.
They wore long hair behind, and clipt it off square over the
forehead, which gave them a wild appearance. The women were
very small; their figures, feet, and hands resembled those of young
girls. Their faces proved them to be rather old women. They appear
cheerful, laughing and making their remarks to each other about us,
while the men wore a surly, wicked expression of face. One of the
young men became very much out of temper with Pedro, because
he would not give all the fish-hooks he had for some arrows. The old
man seemed very much excited when he came alongside, as though
he half expected a fight. He was a middle-sized person, and chief of
all the Indians in his tribe who inhabit the Bolivian territory. He
represents his tribe as few in numbers and scattered over the
country. Like the women, the men have great holes in their noses
and under-lips, but nothing stuck in them. We supposed they were
in undress on the present occasion. The chief inquired the names of
the different persons, and wanted to know which was the "captain"
of the party. The women begged for beads, and assumed the most
winning smiles when they saw anything they wanted. We invited the
chief to accompany us to the next falls and assist us over. He shook
his head, pointed to his stomach, and made signs with distressed
expression of face that he would be sick. He was then told we had
more fish-hooks and knives; if he brought yuca and plantains we
would trade at the falls. To this he consented, but said his people
and the Indians below were not friendly, and that the enemy
generally whipped his people.
Three miles below Lajens we came to the mouth of the Beni
river. This stream resembles the Mamoré in color and width; but
while the latter has a depth of one hundred and two feet, the former
has only fifty-four feet water. Temperature of Mamoré water, 81°; of
Beni, 82°. Near the mouth of the Beni there are islands. The whole
width of the river is about six hundred yards. The junction of these
two streams forms the head of the great Madeira, which is one mile
wide.
In the month of October, 1846, Señor José Augustin Palacios,
then governor of the province of Mojos, explored the falls in the
Mamoré and Madeira by order of the government of Bolivia. We find
the map of Señor Palacios a remarkably correct one. He ascended
the Beni for a short distance, finding a depth of seventy feet water
to the foot of the falls beyond which he did not go, but returned and
continued his course down the Madeira to the foot of its falls, when
he retraced his steps to Mojos by the way he came. We have
accounts of many falls on the Beni river from the province of Yungas
down to the town of Reyes, between which falls the river is
navigated by the Indians in wooden balsas. The Beni has never been
explored throughout its length, but with the falls above Reyes and
those seen by Señor Palacios near its mouth, which appear to have
prevented him from ascending this stream on his return, we have
reason for saying the Beni is not navigable for steamboats. The
outlet for the productions of the rich province of Yungas is to be
sought through the country from the gold washings of Tipuani to the
most convenient point on the Mamoré between Trinidad and
Exaltacion. The distance from the latter place to Reyes, on the Beni,
is not very great. From the general conformation of the bottom of
the Madeira Plate, we are of the impression that the road would
have to be cut high up towards the base of the Andes, so as to clear
the annual floods. The Mamoré, therefore, is the only outlet for the
eastern part of the department of La Paz, as well as a great part of
the department of Santa Cruz. The ridge of hills and mountains at
the base of which the Beni flows, stretching from the falls of Madeira
to the sources of the river Madre-de-Dios, or Purus, separates the
Madeira Plate from the Amazon basin, and divides the department of
the Beni from the Gran Paititi district in Brazil, which extends north
to the Amazon river. Paititi, it may be remembered, was the name
given by Padre Revello to our favorite dog, lost on the road from
Cuzco to Lake Titicaca.
We are about to pass out of the Madeira Plate, having arrived at
the northeast corner of the territory of Bolivia. The lands about the
mouths of the Beni and Mamoré are now inhabited by wild Indians;
some parts of them are free from inundation. Cacao grows wild in
the forests. The head of the Madeira contains a number of islands.
Here we find the outlet of streams flowing from the Andes and from
the Brazils collected together in one large river. Water from hot
springs and cold springs, silvered and golden streams joining with
the clear diamond brooks, mingled at the temperature of 82°
Fahrenheit.
The Madeira river flows through the empire of Brazil, and keeps
the northerly course pointed out for it by the Mamoré. The first falls
we met were close to the junction of the Mamoré and Beni, called
"Madeira," three-quarters of a mile long. It is difficult to judge the
difference of level between the upper and lower surfaces of the river.
As the falls are shelving, and extend a great distance in length, the
distance we run during the day is not easily estimated. At one time
we go at the rate of fifteen miles an hour, and then not more than
one mile in half a day. This fall is not less than fifteen feet. Large
square blocks of stone stand one upon another in unusual confusion.
The boat was paddled through for a quarter of a mile, and by
passing half the baggage out over the rocks, she was sledded and
floated through narrow channels close along the eastern bank. The
whole bed of the river, as we stand at the foot of the fall and look
up, is a mixture of rough rocks laying in all positions on the solid
foundation of granite, surrounded by foaming streams of muddy
water. While we loaded our boat again at the foot of the falls, Titto
discovered some Indians approaching us from the woods. They
came upon us suddenly, from behind a mass of rocks, with bows and
arrows in their hands. Don Antonio had warned me before I left him
to be on my guard when the savages came up in this way. He said
when they send women and children to the boat in advance, then
there is little chance of a difficulty with the men; but when the
women and children are kept in the rear, and the men come with
bows and arrows in hand, the signs are warlike. We were, therefore,
prepared. We, however, recognised our friends, the Jacares. An old
chief brought a woman along loaded with roast pig and yuca. She
carried a deep, square willow basket on her back, suspended by a
strap of bark cloth round her breast. The chief and his two men
were dressed in bark cloth frocks and straw-hats, while the only
thing on the woman's back was her basket. One hand bore an
earthen pot, which she also offered for sale. Titto traded with the
party, and they gradually became much more easy in their manners
towards us. For the want of an interpreter, I could not make out
what customs were observed among them. These Indians bear the
name among Brazilians of great thieves. They, however, appeared to
be perfectly satisfied when we left them with the reasonable
exchange. The passion expressed by one at Pedro for not giving him
all his fish-hooks for a few arrows rather leads us to believe that, if
they had outnumbered us, they would have been troublesome. We
gave them no opportunity to treat us unkindly, for we were
exceedingly polite, and so well armed with all, that they very justly
acted their part in a spirit of reciprocity. There is great difficulty in
knowing how to meet the savage. Treat him as a civilized man, and
his better feelings are touched. It won't do to approach him
indirectly, letting him see that, while willing to trade, there is a
prudent readiness for a fight. They took a polite leave of us by
shaking hands all round. We introduced the custom, which they
seemed to like, though the stiffness of their elbow joints proved they
did not understand the matter. They sauntered up the rocky bank on
the sand to where they had left their bark canoe at the head of the
falls, and we went dashing on through the rocks in the rushing
current.
September 23.—The river was seven hundred yards wide, and
one hundred and five feet deep. We passed "Misericordia" rapids, or
swift current, but not a ripple was to be seen. The channel was clear
of rocks, and we soon came to the "Ribeirao" falls, which are two
miles long. The baggage was carried five hundred yards over a path
on the east bank. Don Antonio transported his vessels on wooden
rollers here. I think he said he was nearly one month getting up
these two miles. The men were anxious to see whether they could
not pass this fall with the boat in the water. They launched her down
one shoot of twenty feet nearly perpendicular by the rope painters in
the bow and stern.
Our boat was beginning to give way to the rough service, and as
she leaked, it became necessary to lighten her load; then, too, the
men began to fag. After they succeeded in getting the boat safely
over a dangerous place, the boxes had to be carried one by one.
The heaviest box was that in which were planted three specimens of
Mojos sugar-cane. I had just cut my first crop, and found the plants
were doing well, when it became necessary to relieve our little boat,
and we were unwillingly obliged to leave behind what might have
proved of importance to a Mississippi sugar-planter. Our baggage
was taken out and restowed a number of times. Once the boat was
on top of a rock, at another half under foam. The sun was scorching
hot, and we had the full benefit of it. When the water is thrown on
the bare rocks, it hisses as if poured upon hot iron.
The sides of the pot-holes are ridged like the inside of a female
screw; some of them are nine feet deep. The water in them is quite
hot; one of the negroes seemed to be fond of lowering himself into
the pots of hot water; his face had rather a distressed expression,
and while standing with his head above the edge of the pot, he
looks as though undergoing a hot-water cure. The river appears to
have worn away the rocks less than above. It flows over a solid
mass, in which there are many gutters cut, from four to six feet
deep, of the same width. Our canoe safely passed through one of
these by the ropes, as the crew walked along the level rock. There
were numbers of these gutters cut parallel to each other. The rock
was worn as smooth as glass. After descending some distance in the
middle, we found the channels so large and dangerous, that we
must gain the east side of the river; the only escape for us, besides
retracing our steps, was to cross a wide channel with a furious
cataract above, and another close below. We hugged the foot of the
upper as close as possible, and the men pulled with such force that
one of the paddles broke when we reached half the way. With the
remaining three, we made a hairbreadth escape; the boat could not
have lived an instant had we been carried over the lower fall. The
rollers formed by the swiftness of the current are five feet high;
large logs are carried down so fast they plough straight through the
waves, and are out of sight in an instant. The men came near
upsetting the boat in a dangerous pass. They seem to be giving out
through pure exhaustion. They have very little to eat; farinha adds
not much to their strength, and jerked beef spoils. No fish are to be
found, nor birds; a monkey would be a treat. Night overtook us half
way down the falls, and we came to, on a barren rock, where there
were two small sticks of wood, of which we made a fire, boiled
water, and gave the men coffee. I observed a southern star, and
turning for another in the north, was glad to find it had passed the
meridian, as sleep was much more necessary than latitude. On the
west side of the falls stood three small hills; on the east side a large
white-trunked forest tree. This was the largest tree we had yet seen,
though not quite equal to a North American huge oak.
September 24, 1852.—At daylight we crawled on; it would be a
mistake to grace it with the name of travelling. The country is thickly
wooded with Brazil nuts and cacao trees interspersed. Four miles
further down we came to "Periquitos" rapids, which takes its name
from numbers of parrots inhabiting the woods. These parrots are
green, scarlet, and yellow, with long tails; they fly slowly overhead in
pairs, crying an alarm as we are seen approaching. We paddled
through these few rocks without the least difficulty. Banks of the
river thirty feet high; soundings fifty-four feet. At midday a thunder
gust with rain came from the north. As we are passing out of the
Madeira Plate, we find the climate changing; northerly winds bring
rain here, while southerly winds bring them farther south. At 3 p. m.,
thermometer, 86°; water, 83°.
"Araras" rapids were passed with much toil, easing the boat
down by ropes made of bark, which are best for such work as this;
the water has little effect upon them. The fall is small, and the
channel clear. While the men gathered Brazil nuts from the woods,
we bottled a young turtle, taken from among eggs found in the
sand. Amphibia are poorly represented; we see no alligators, snakes,
or frogs. The water has become much more clear; it has a milky
appearance. The banks slope down regularly; being covered with a
light-green coat of grass, they have the appearance of cultivation.
By Lieut. L. Gibbon U. S. N. Lith. of P.S. Duval & Co. Phil.

DESCENDING RIBEIRAO FALLS, MADEIRA RIVER, Brazil.

September 25.—At 9 a. m., thermometer, 84°; water, 82°; light

north wind. At 2 p. m., thunder to the northeast. On the east bank
were cliffs of red clay fifty feet high, breaking down perpendicularly.
We passed the mouth of Abuna river, which is fifty yards wide, and
flows in from the southwest. At 3 30 p. m., thermometer, 86°; water,
82°. In the evening lightning to the southwest. We came to a
number of rocky islands in the river, and took up our quarters on one
of them for the night. We slept under blankets; there is a heavy
dew, and the nights are quite cool. Richards was aroused by a
severe pain in his ear; he was suffering all night long. The men told
me it was common among the soldiers at the fort, caused by
exposing the ear to night-air and dew. The only remedy reported
was "woman's milk," which was not at hand.
September 26.—For the eighteen miles between the "Arares"
rapids and "Pedreneira" falls, we found a current of only one and a
half mile per hour, with a depth of sixty feet water. We have
observed between all the falls passed, that the current becomes
slow, and as there is very little damming up of the water by the falls,
that the general inclination could not be great. We also found the
land gradually getting higher, as though the river was flowing
through a country which sloped against the current. We find at the
"Pedreneira" falls the strata perpendicular; the river does not flow
over a flat mass of rock as before, but cuts its way through a
vertically grained rock; so fair and square has the river worn its
passage, that the gap resembles a breach in a stone dam. The river
turns from its northern course at a right angle, and flows east,
inclining a little south, as though it wanted to turn back and flow into
the Madeira Plate again. We suppose this fall to be situated on the
top of that ridge of hills and mountains extending across South
America from the Andes to Brazil. We are now on the chain which
fastens Brazil to the base of the great mountains, and the river is
sawing across and cutting it gradually asunder. Part of our baggage
was carried over, and our boat towed along the east bank with less
difficulty than we expected; we found a rapid current below.
On the south bank of the river we saw two bark canoes; the
negroes gave us music on their cow's horns, and two red women
appeared on the bank at a path in the thicket; they belonged to the
"Caripuna" tribe. We pointed down the river, and called for "Capitan
Tupé;" they ran away, and we continued to the Paredao falls. A
whale boat might pass through the main channel with ease, but our
boat was too small to attempt it. The baggage was landed on a
sand-beach near the rocks, which were elevated forty feet above the
water level. In the rainy season the floods cover them all except ten
feet. I climbed up to the top for a view of the country, and to seek a
passage for the boat. The men had a short distance to paddle, and
then tow her through a narrow channel by the ropes. The landing-
place was in the rapid current; they missed it, and the boat ran away
with them through the rocks—they were carried at a frightful rate;
Titto shouting to the negroes at the top of his voice to pull for their
lives, so that he might steer them safely, which he fortunately did.
They were all so much frightened that it brought them to their
working powers. The sight was an interesting one for me, as the
smallest rock in their way would have dashed the boat to pieces. As
I turned to go down I found myself surrounded by a party of savage
women and children, who had come up behind me. There were
eight women, ten children, and two unarmed men, all, from external
appearances, savages of the purest water. On taking out my
handkerchief, the women and children all laughed! One of the men
stepped before me, and putting his hand into my pocket, took all the
fish-hooks out, and appropriated them to his own use, by handing
them to a homely woman who bore a sucking baby, and then coolly
inquired whether I had a knife to give him. He was a short, thick-
framed man, quite fat and hearty; the women were all ugly; the
boys were the most cheerful, manly-looking Indians we ever met
with. At my suggestion, they walked to the boat with me. Their
chief' "Capitan Tupé," as they call him, was absent on a hunting
excursion. Their huts were some distance from the falls, so that we
missed seeing their houses. They were quite friendly with us. Some
of the men who came afterwards, left their bows and arrows behind
the rocks, and walked up unarmed. The women carried their babies
under the arm, seated in bark cloth straps, slung over the opposite
shoulder. The infants appeared terribly frightened at the sight of a
white man; one of them screamed out when Pedro milked the
mother into a tin pot, for the benefit of Richards' ear, which still
troubled him. The woman evidently understood what was wanted
with it, and stood still for Pedro to milk her as much as he chose.
The boys are remarkable for large bellies, as the sketch of "Matuá"
and his brother "Manú" will show. The older ones express a
willingness to go away from their mothers; Manú was asked, by
signs, if he would go with me; he shook his head, no; when he was
made to understand that he could get a pair of trousers and
something to eat, he then nodded his head, yes. Pedro tells me they
swell themselves up by eating earth, which Indian children all do.
One of the Caripunas got into the boat and examined the baggage;
he soon found a knife, which he took, and came out with it in his
hand, before everybody. It belonged to one of the negroes, who
took it from the Indian. The savage appeared disappointed; he was
then told if he would bring yuca or other provisions for the men, he
should have a knife. They all declared they had nothing to eat in
their houses. We made them a little present, and bought a bow with
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