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R v Ballard is the least known of the three. The account printed here is a direct transcript of the notebook of Dowling J. [3] Dowling states that the defendant was called Dirty Dick, but the newspaper reports of the case make clear that the victim was known by that name. The defendant was called Ballard (or Barnett or Barrett in other accounts), but the case was often called Dirty Dick's case. It was reported in less detail by the Australian, 16 June 1829 and the Sydney Gazette, 16 June 1829. [4]
R v Murrell has the dubious reputation of being the founding case for the application of the terra nullius doctrine in Australia. It is the only one of the three to be formally reported, in (1836) 1 Legge 72. This report was not published until 1896, 60 years after the decision was made. At that time, Gordon Legge attempted to repair the inadequacy of early New South Wales law reports by reprinting newspaper accounts of what he thought were the most important decisions of the Supreme Court. In this case, he relied on the Sydney Gazette of 23 February 1836 and 12 April 1836, but he did not check the account against the judges' notes. The version of the judgment by Burton J which is reproduced here is the closest we can get to an authentic version of the case. It is taken from a file called "Supreme Court, Miscellaneous Correspondence relating to Aborigines" in the Archives Office of New South Wales, 5/1161, pp. 210-16. The particular document is headed "Judgment of Mr Justice Burton in the Case of Jack Congo Morral on a charge of Murder" and appears to have been corrected in the hand of Burton J. This report is a verbatim transcript of the document, so far as that is possible with a handwritten original, although it omits deletions made in the original. The judgments of Forbes CJ and Dowling J are taken from the Sydney Gazette of 12 April 1836. These judges' own versions of their judgments are not in the Archives Office of New South Wales. The striking feature of their judgments is the complete reversal of their former decision in R v Ballard.
There are significant differences between the Legge/Gazette version of Burton's judgment and that in the archives which is printed here. The Legge version omits the statements that the Indigenous people of New South Wales were "entitled to the possession of those rights which as such are valuable to them." It also missed the main conclusion, that he found that natives had not attained such numbers and civilisation as to be recognised as sovereign states governed by their own laws. On the second point in the judgment, the Legge version omitted the preamble about the land being unappropriated by anyone at the time it was taken into actual possession of the king. That is, it failed to report that Burton's judgment was based explicitly on a terra nullius theory. It also omitted Burton's important statement in the fifth point that Aborigines would have been liable for murdering one another whether they were aliens or British subjects: this was one of his ways around the argument that they were subject only to their own customs and usages.
As suggested at the beginning of his judgment, Burton was prepared to deliver a longer version of the judgment, had he been in a minority. His notes for judgment are in the same Archives Office file as the judgment itself: at pp. 237-71. The most important additional statement there concerns the subject status of Indigenous people. It shows that Burton J did not assume that all Indigenous people residing in what became New South Wales automatically became British subjects in 1788 or on their subsequent birth. They must either be subjects or aliens, he said, and if aliens, they were entitled to become subjects at their own choice. In either event, they were amenable to the law of England, Burton stated. Contrary to a common misconception, the case is not authority for the proposition that all Indigenous people in New South Wales were automatically British subjects.
After the court found that it had jurisdiction over Murrell, he was tried on 13 May 1836 and acquitted. [5]
The third of these cases, R v Bonjon was decided by Willis J in the Port Phillip district of New South Wales, before its separation as the new colony of Victoria. The version on which this report is based is that of the Port Phillip Patriot of 20 September 1841. Justice Willis sent another newspaper account (that of the Port Phillip Herald of 21 September 1831) to Governor Gipps on the day after he delivered the judgment. Gipps sent it on to England, and eventually it was printed in British Parliamentary Papers, Papers Relating to Emigration, the Aboriginal Population and Other Affairs in Australia 1844, Irish University Press, Shannon, 1969, Vol. 8, Colonies Australia, pp. 143-56. In his letter to the governor accompanying the newspaper, Willis J told the governor that this newspaper printed the judgment from his notes: p. 146. It is this version which is used most often today.
This report is based on that of the Port Phillip Patriot, 20 September 1841, p. 1. The Patriot account of all but the beginning of the judgment and the last paragraph is nearly identical to that of the Herald, except for minor differences such as punctuation. This means that the Patriot version, too, was taken from the judge's notes, and is thus as reliable an account as is now possible to publish. The judgment is printed here as it appears in the Patriot, including errors in typesetting and the use of italics for emphasis.
The Patriot version was chosen for publication here because of the
additional material at the beginning and end of the judgment which is not
in
the Herald. At the beginning, the Patriot alone shows that Willis
J referred to R v Murrell. The shortest account of the case was given by
the Port Phillip Gazette,
18 September 1841, p. 3, but only it
reports that the Crown Prosecutor cited R v Ballard and R v
Murrell in his argument before Willis J.
[6]
At the end of his judgment, Willis J ordered Bonjon to stand trial, while expressly reserving the point as to jurisdiction "which His Honor would take further time to consider". [7] If Bonjon had been found guilty, it is likely that the jurisdiction point would have been heard by Willis' Supreme Court colleagues in banco, in Sydney. On the day after Willis' judgment was delivered, the court in Melbourne was told that two Aborigines had been speared on the 14th, also for murder, but under Aboriginal law. After evidence about the way Bonjon's case had been investigated, the Crown Prosecutor declined to proceed immediately with the trial, and the prisoner was remanded until the next sessions. [8] He was discharged the following month, however. [9]
Justice Willis' judgment in R v Bonjon drew criticism from Dowling CJ. He declared that the issue of jurisdiction had finally been settled in R v Murrell, and that this could have been reinforced by an appeal to the judges sitting in Sydney. This view was accepted by Governor Gipps, and by the British government. [10]
Whether because it was the only case of the three to have been formally reported, or because of the strength of the court, R v Murrell is the only one to be cited with approval in the twentieth century. [11] The strongly contrasting judgments in Ballard and Bonjon deserve closer attention, not least because they are more consistent with the writings of Vattel on the rights of nomadic peoples and, as the judgment of Willis J in Bonjon shows, because they are more consistent with the treatment of native peoples in other jurisdictions.
All of these cases will eventually be published on the internet, including other versions of the judgments and with commentary, at www.law.mq.edu.au/~bruce.
Supreme Court of New South Wales (Forbes CJ and Dowling J)
13 June 1829, Sydney
Aboriginal defendant, offence against another Aborigine -- Native title -- Aboriginal law, recognition of -- Aborigines, legal status.
The Attorney General sought the direction of the court as to whether an Aborigine could be prosecuted for the alleged murder of another Aborigine, committed at the Domain, near Sydney.
Held:
1. The Supreme Court has jurisdiction in cases of wrongs committed between Aborigines and Europeans, but not in those in which the only parties are Aborigines. It had always been the policy of the judges and government of New South Wales not to interfere in disputes between Aborigines.
2. (per Forbes CJ): Aborigines are entitled to their own laws, without interference by English law.
3. (per Dowling J): Until Aborigines consent, either actually or by implication, to the interposition of English laws in the administration of justice for acts committed by themselves upon themselves, there is no reason justifying interference with their institutions.
4. (per Dowling J): Aborigines owe no fealty to the English, and the latter have no natural claim of acknowledgment or supremacy over them. English people have no right wantonly to deprive Aborigines of any property they possess or assume dominion over.
An aboriginal native of this territory called Dirty Dick had been committed for trial by the Sydney magistrates for the wilful murder of another aboriginal native called Robert Barrett, who was killed in an affray between two tribes of his countrymen, under circumstances of great cruelty. The prisoner Dirty Dick was now put to the bar, and [sic]
The Attorney General prayed the direction of the Court, whether by the law of England he could be prosecuted for the alleged murder of one of his own countrymen; both having been in a savage state at the time of the transaction in question. In his own judgment he was disposed to consent to the discharge of the prisoner from the difficulty of coming accurately at the merits of the case; but he would submit to the direction of the court as to the course to be pursued.
Forbes CJ: Certainly this is a case sui generis, and the Court must deal with it upon general principles, in the absence of any fixed known rule upon the subject. According to the view which the Court takes of the case, the Court is of opinion that the prisoner ought to be discharged for want of jurisdiction. The facts of the case, are, as represented to us, simply these: -- The prisoner is accused of the murder of one of his own tribe -- one of the original natives of this Country, in the same state as himself -- wandering about the country, and living in the uncontrolled freedom of nature. In some way or other he has caused the death of another wild savage. The precise circumstances under which the act has been committed, have not been brought before the Court; nor indeed was it necessary that the Court should look into these circumstances.
The Court knows no further than what has been stated, namely that the deceased came by his death in consequence of some difference that arose between him and the prisoner. I believe it has been the practice of the Courts of this country, since the Colony was settled, never to interfere with or enter into the quarrels that have taken place between or amongst the natives themselves. This I look to as matter of history, for I believe no instance is to be found on record in which the acts of conduct of the aborigines amongst themselves have been submitted to the consideration of our Courts of Justice. It has been the policy of the Judges, & I assume of the Government, in like manner with other Colonies, not to enter into or interfere with any cause of dispute or quarrel between the aboriginal natives.
In all transactions between the British Settlers & the natives, the laws of the mother country have been carried into execution. Aggressions by British subjects, upon the natives, as well as those committed by the latter upon the former, have been punished by the laws of England where the execution of those laws have been found practicable. This has been found expedient for the mutual protection of both sorts of people; but I am not aware that British laws have been applied to the aboriginal natives in transactions solely between themselves, whether of contract, tort, or crime. Indeed it appears to me that it is a wise principle to abstain in this Colony, as has been done in the North American British Colonies, with the institutions of the natives which, upon experience will be found to rest upon principles of natural justice.
There is one most important distinction between the savage & civilized state of man, namely that amongst savages there are no magistrates. The savages decide their differences upon a principle of retaliation. They give up no natural rights. This is not merely matter of theory but practice. In the civilized state, man gives up certain natural rights, in exchange for the advantage of social security, & other benefit arising from the institutions of civilized life. It may be a question admitting of doubt, whether any advantages could be gained, without previous preparation, by ingrafting the institutions of our country, upon the natural system which savages have adopted for their own government. It is known as matter of experience that the savages of this part of the globe, have a mode of dressing wrongs committed amongst themselves, which is perfectly agreeable to their own natures & dispositions, and is productive, amongst themselves, of as much good, as any novel or strange institution which might be imparted to them. In the absence of a magistracy which is an institution peculiar to an advanced state of refinement, the savage is governed by the laws of his tribe -- & with these he is content. In point of practice, how could the laws of England be applied to this state of society? By the law of England the party accused is entitled to his full defence. Then how could this beneficent principle be acted upon, where the parties are wholly unacquainted with our language, laws & customs? I am not prepared to say, that the mode of administering justice or repairing a wrong amongst a wild savage people, is not best left to themselves. If their institutions, however barbarous or abhorrent from our notions of religion and civilization, become matured into a system and produced all the effects upon their intercourse, that a less objectionable course of proceeding (in our judgment) could produce, then I know not upon what principle of municipal jurisdiction it would be right to interfere with them.
The most important object of all human associations is to procure protection & security from internal as well as external aggression. This principle will be found to influence the associations of some of the wildest savage tribes. They make laws for themselves, which are preserved inviolate, & are rigidly acted upon. However shocking some of their institutions may be to our notions of humanity & justice, yet I am at loss to know how, or upon what principle this court could take cognizance of offences committed by a barbarous people amongst themselves. They cannot be supposed to be acquainted with our laws, & nature prompts them to disdain the interposition of a race of people whom they find fixed in a country to which they did not originally belong.
There is reason & good sense in the principle that in all transactions between the natives & British subjects, the laws of the latter shall prevail, because they afford equal protection to all men whether actually or by fiction of law brought within their cognizance. But I know no principle of municipal or national law, which shall subject the inhabitants of a newly found country, to the operation of the laws of the finders, in matters of dispute, injury, or aggression between themselves. If part of our system is to be introduced amongst them, why not the whole? Where will you draw the line: the intervention of our courts of justice, even if practicable, must lead to other interferences, as incompatible as impolitic, in the affairs of harmless inoffensive savages. - With these general observations, I am of opinion that this man is not amenable to English law for the act he is supposed to have committed.
Stephen J was absent.
Dowling J: This point comes upon me entirely by surprise, & therefore I have had no opportunity of considering it in a manner satisfactory to my own mind. It appears to me however that the observations which have fallen from his Honor the Chief Justice, are most consentaneous with reason & principle. Until the aboriginal natives of this Country shall consent, either actually or by implication, to the interposition of our laws in the administration of justice for acts committed by themselves upon themselves, I know of no reason human, or divine, which ought to justify us in interfering with their institutions even if such an interference were practicable. It is an undoubted principle that a Colony of Englishmen settled in a new found country shall be governed by the laws of the parent state so far as those laws are applicable to the condition of the Colony.
This principle is carried a step farther, where the new found country is inhabited by aborigines. If the inhabitants hold intercourse with the new settlers then the laws of the settlers shall be appealed to in case of dispute injury or aggression, arising from the one side or the other. This rule is founded upon principles of equal justice, inasmuch as the law of England will not endure wrong or injury. The savage, or the foreigner is equally entitled to protection from British law, if by circumstances that law can be administered between Britons & the savage or foreigner. Amongst civilized nations this is the universal principle, that the lex loci, shall determine the disputes arising between the native & the foreigner. But all analogy fails when it is attempted to enforce the laws of a foreign country amongst a race of people, who owe no fealty to us, and over whom we have no natural claim of acknowledgment or supremacy.
We have a right to subject them to our laws if they injure us, but I know of no right possessed by us, of interfering where their disputes or acts, are confined to themselves, and affect them only. Most undoubtedly it is murder in an Englishman to kill an aboriginal native without excuse or reason. So the law of England would hold the native amenable for destroying an Englishman, where the injury was unprovoked. The same principle of protection applied to the preservation of property, although the notions of property may be very imperfect in the native. The Englishman has no right wantonly to deprive the savage of any property he possesses or assumes a dominion over. On the other hand the native would be responsible for aggressions on the property of the Englishman. It is however, unnecessary to follow this principle any farther.
These are general observations suggested on the occasion, without meaning them to have the effect of judicial determination. Cases have repeatedly arisen in this court where the first principle has been acted upon, both where an Englishman has murdered a native, and where a native has murdered an Englishman. Beyond this, the doctrine has not been carried; & therefore, as it seems to me, it would be most unjust and unconscionable to hold the prisoner amenable to the law of England for an offence committed against one of his own tribe.
The prisoner was therefore Discharged.
Supreme Court of New South Wales (Forbes CJ, Dowling and Burton JJ)
11 April 1836, Sydney
Aboriginal defendant, offence against another Aborigine -- Aboriginal law, recognition of terra nullius -- Aborigines, legal status.
Jack Congo Murrell, an Aborigine, was charged with the murder of another Aborigine, Bill Jabingi or Jabenguy, on the Windsor road, west of Sydney. His counsel, Sydney Stephen, argued that the Supreme Court had no jurisdiction to try one Aborigine for the murder of another. They were governed by their own usages and customs, he argued, and not by the laws of England. They were not British subjects, and were not protected by English law. New South Wales was not a deserted country at the time of European settlement, nor a conquered or ceded one. It had a population with customs and usages of their own, and the settlers were obliged to obey those customs, rather than the Aborigines the laws of England. The defendant was subject to punishment by his own tribe if he had killed Jabingi, which English law could not prevent. It was impractical to try Aborigines, and the court had no jurisdiction except over subjects of the Crown, which the defendant was not.
The Attorney General argued that the court did have jurisdiction. English law did not not recognise any independent power to exist in a British territory; it cannot be admitted to set up a law or usage contrary to the laws of England. The alleged offence took place within the geographical limits of the Court's jurisdiction, and those who visited the colony were subject to its laws. The King had an obligation to protect natives.
Held:
1. Aborigines are amenable to the law of England for offences committed against one another.
2. They are free and independent peoples, entitled to the possession of those rights which are valuable to them, but they do not have sovereign states or laws of their own.
3. The land of New South Wales was unappropriated by anyone at the time the British King took actual possession of it.
4. The English nation obtained and exercised for many years the rights of Domain and Empire over the country thus possessed, as recognised by the Australian Courts Act 1828 (9 Geo 4 c 83).
5. The alleged offence took place in an area where English law prevailed, and fell within the jurisdiction of the Supreme Court of New South Wales.
6. Subjects and aliens living in the colony were entitled to the same protection.
7. There are no insurmountable hardships in trying Aborigines for crimes.
Forbes CJ:
In giving judgment in this case the Chief Justice remarked that a demurrer had been filed, denying the jurisdiction of the Court, which must be overruled, as the Court had jurisdiction in the case. On a former occasion of this kind, His Majesty's Attorney General had put it to the Court whether he should bring such a case before the Court, and whether it was the description of crime which would be recognised by the laws of England; the Judges had then stated that it was for him to use his sound discretion in the case, but on that occasion no discussion took place as to the authority of the Court -- no opinion was given as to their jurisdiction. Judge Burton had put together an opinion in which the whole Bench coincided; he (Judge B) would read it to them.
Dowling J concurred.
Burton J:
Inasmuch as the Court is unanimous in overruling the plea which has been filed for the prisoner denying the jurisdiction of this Court over him for the offence stated upon the Record to have been committed by him -- thereby deciding that the aboriginal natives of this Colony are amenable to the laws of the Colony for offences committed within it against the persons of each other and against the peace of our Lord the King, -- I do not consider it necessary to state at large, the reasons upon which I have founded my individual opinion. But I think it right to state briefly the grounds of my opinion which are these:-
1st although it be granted that the aboriginal natives of New Holland are entitled to be regarded by Civilized nations as a free and independent people, and are entitled to the possession of those rights which as such are valuable to them, yet the various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own.
2ndly, That a tract of country before unappropriated by any one has been taken into actual possession by the King of England under the sanction of Parliament comprehended within the following limits as contained in a proclamation of His Excellency the Governor 24th August 1835, Government Gazette 9th Sept. following -- viz, "extending from the Northern Cape or Extremity of the Coast called Cape York in latitude 10o 37' S. to the Southern Extremity of the said Territory of New South Wales or Wilson's Promontory in the latitude of 39o 12' S. and embracing all the country inland to the Westward as far as 129o East longitude reckoned from the meridian of Greenwich including all the Islands adjacent in the Pacific Ocean within the latitude aforesaid and including also Norfolk Island."-
3rdly, That the English nation has obtained and exercised for many years the rights of Domain and Empire over the country thus possessed and particularly it is designated by an Act of the Imperial Parliament, 9 Geo 4. c. 83. as His Majesty's Settlement and Colony of New South Wales; and Courts of Judicature have been established and the laws of England are declared to be those which shall be administered within it and a local legislature is given to it.
4thly, An offence is stated upon the Record to have been committed by the prisoner within this Colony, a place where by the Common Law and by the Stat. 9 Geo. 4. c 83. the law of England is the law of the land, which if committed by him at Westminster in England, would render him amenable to the Jurisdiction of His Majesty's Court of Kings Bench; -- and by 9 Geo 4. c 83 it is enacted that this Court "shall have cognizance of all pleas civil, criminal, or mixed, in all cases whatsoever as fully and amply to all intents and purposes in New South Wales and all and every the Islands and territories which nor are, or hereafter may be subject to or dependent upon the Government thereof as His Majesty's Courts of Kings Bench, Common Pleas, and Exchequer at Westminster or either of them lawfully have or hath in England," and that this Court shall be at all times a Court of Oyer and Terminer and gaol delivery in and for New South Wales and the Dependencies thereof" and that "the Judges shall have and exercise such and the like Jurisdiction and authority in New South Wales and the dependencies thereof as the Judges of the Courts of Kings Bench, Common Pleas, and Exchequer in England or any of them lawfully have & exercise, and as shall be necessary for carrying in effect the several Jurisdictions, powers and authorities committed to it."
5thly, This Court has repeatedly tried and even executed aboriginal natives of this Colony, for offences committed by them upon subjects of the King, ever since the opening of the Court in May 1824; and there is no distinction in law in respect to the protection due to his person between a subject living in this Colony under the Kings Peace and an alien living therein under the Kings Peace.
The authorities for these positions are Vattel's Treatise on the law of
nations B1. ch. 18 sec 203. 204. 205. Ib.
Bl. C7. §. 81. ch 18. sec
209. ch 19. sec 213. B2. ch 7 sec 94. Ib. ch 8. sec 100 & 101. 103 104.
108:-
Blackstone's Commentaries 1 Vol. page 254 sec 4. Christian Edition and page 370.
Hawk. P.C. B.l. ch. 2. sec 5.-
Fosters Crown Law Disc. 1. p.188-
Stat. 28 Edw. 3. c 13. sec 2
Lord Coke in Calvin's Case 4 Coke 10 & 11 and the cases of Shirly 3 & 4 W. & M. and Stepheno Farrara de Gamo and Emanuel Lewis Tinoca 36 Eliz. therein mentioned.-
Respecting those difficulties and inconveniences and hardships which have been referred to as likely to arise from this decision, I will briefly say that I think they have been much over-rated. Some which have been stated, as for example the probability of multiplied business to Magistrates and others concerned in the administration of Justice, I look upon as little likely to occur, but if occurring certain to produce the best results as to the Natives themselves: difficulties, it is the business of the local legislature to remove and hardships I doubt not that His Majesty, or those vested with the exercise of His Royal Prerogative of Mercy, will be ready in every case which may justly call it forth, to extend it to people so circumstanced as they.
But I am of opinion that the greatest possible inconvenience and scandal to this community would be consequent if it were to be holden by this Court that it has no Jurisdiction in such a case as the present to be holden in fact that crimes of murder and others of almost equal enormity may be committed by those people in our Streets without restraint so they be committed only upon one another! & that our laws are no sanctuary to them.
Supreme Court of New South Wales (Willis J)
16 September 1841, Melbourne
Aboriginal defendant, offence against another Aborigine -- Native title -- Aboriginal law, recognition of -- Aborigines, legal status -- Batman purchase of land at Melbourne -- Treaties -- Treaty of Waitangi.
Bonjon, a Wadora man, was charged with the shooting murder of Yammowing, of the Colijon people, at Geelong. The proceedings before Willis J began with evidence as to the capacity of the defendant to plead the jurisdiction of the Court, and to plead guilty or not guilty. The jury found that he lacked capacity to plead the jurisdiction, but the judge found that Bonjon was "not so totally wanting intellect as not to say guilty or not guilty". The Court then heard argument on the question of whether it had jurisdiction to hear a charge of murder by one Aborigine of another.
Arguing against the Court's jurisdiction, Mr Redmond Barry, for Bonjon, said that there is nothing in the establishment of British sovereignty in this country which authorises the Court to submit the Aboriginal natives to punishment for acts of aggression committed inter se. New South Wales was occupied by the British, he argued, rather than conquered or ceded. Occupation gave the Crown a right to the soil, but not to any authority over the Indigenous inhabitants as subjects, unless there be some treaty, compact or other demonstration of their desire to come under English law. This does not interfere with the right of the sovereign to punish Aborigines who attack the persons or property of British settlers, or the reverse. No statute states that Aborigines are British subjects, and there is no treaty or compact showing their submission to British authority; their assent was necessary. Nor is there any reciprocity between them and the Crown to render them amenable to the criminal law. It is impossible to apply the whole of that law to them. Aborigines have their own modes of punishment, under their own regulations. Their regulations, like those of all societies, extend to murder. The Aborigines live in self-governing communities. English law, then, was not the only law in the colony, and it could not be imposed on them by terror.
Mr Croke, the Crown Prosecutor, replied that it is lawful for a civilised country to occupy the territory of uncivilised persons, so long as they leave them sufficient land to enable them to acquire subsistence. As a consequence of such settlement, the common law of England was transferred to the Port Phillip District of New South Wales. All persons within that area owe a local allegiance to the Queen, and are bound by English law even for conflicts inter se. They are protected by the law, and bound to obey it. Sufficient land having been left for them, they have no original rights to the territory of Port Phillip, but merely an easement over the soil. Bonjon is as much amenable to English law as a British subject.
Held:
1. A single judge of the Supreme Court of New South Wales at Port Phillip is not bound by the decision in R v Murrell (1836) 1 Legge 72.
2. Aborigines are both subject to and protected by English law in relation to conflicts between them and the British in New South Wales.
3. The Supreme Court of New South Wales has no jurisdiction over crimes committed by Aborigines against one another. They are not amenable to English law, except in cases of conflict with the British. No express enactment or treaty makes them subject to English law.
4. New South Wales was not acquired by conquest, or treaty. Nor was it unoccupied at the time the colony commenced.
5. Aborigines are distinct though dependent allies, not British subjects. They have not consented to British occupation or sovereignty. They are entitled to exercise their own usages and laws.
6. Justice Willis reserved the right to alter his conclusions on these issues.
Willis J:
I will now continued His Honor state my views on the subject, at the same time I may say, that I do not consider myself bound by the opinion of either Mr. Chief Justice Forbes, Mr. Justice Burton, or Mr. Chief Justice Dowling in the present case. I have to thank Mr. Barry for the very able manner in which he has argued the case for the prisoner; the whole of his argument shows a considerable deal of talent, industry and research; he having kindly undertaking the defence of the prisoner at my suggestion. I have also to thank the Crown Prosecutor for the able manner in which he supported the rights of the Crown. The case appears to me to be this, Bonjon, an aboriginal within the District of Port Phillip, was committed to gaol on the twenty-fifth of August 1841, by N. A. Fenwick, Esquire, the Police Magistrate of Geelong, and E B Addis, and Foster Fyans, Esquires, Justices of the Peace for the Territory of New South Wales, for the alleged murder (on or about the 14th of last July), of Yammowing, also an aboriginal within this district.
An information has been filed by Mr. Croke, the Crown Prosecutor for the district, against the prisoner for this offence, and the question now is, whether the Supreme Court in a case like this has any jurisdiction? Are in fact the aborigines (except with reference to aggressions on their part against the colonists, and with regard to that protection from the aggressions of the colonists which the aborigines are indisputably entitled to), subject to the law of England as it prevails in this Colony? With regard to such aggressions as I have mentioned they are entitled to be considered and treated, in my opinion, as if they were British subjects.
The recent case of the two aboriginals, Merridio and Negaril recently tried before Mr. Justice Burton, at Sydney, and executed for the murder of William Tuck; and the case of Charles Kilmaister, and six other colonists, also tried before Mr. Justice Burton, at Sydney, in December 1838, and executed, for the murder of two aboriginal children and an adult aboriginal named Charley, show how the English law has been applied in criminal cases between the colonists and the aborigines. I am aware, however, that Mr. Montgomery Martin, in his history of this colony (chap. 6) thus mentions the case of an aboriginal black Tommy who was hanged for murder at Sydney, in 1827. "The circumstances, he says, connected with this execution were very singular, and deserve publicity. From the statement previously made to me, I believed the man to be innocent, and I therefore attended his trial to aid in the defence of a man who knew not a word of our language, and owed no obedience to our laws." Mr. Martin, though an author, is not legal authority. The point however for decision in the case now before me, is a very different one.
I repeat that it is not with reference to any aggressions between the black and white population, but simply whether the English law can be legally applied; or rather, sworn as I am to administer the law of England as it prevails in this colony, can I legally exercise any jurisdiction, with reference to any crimes committed by the aborigines against each other? This, and this alone is the question; and it is a question, affecting as it does a vast and hitherto neglected, oppressed, and deeply injured multitude of the human race, more worthy of the judicature of a Roman Senate than of an obscure and single colonial Judge; but it is my consolation, that should I err in judgment, that error may speedily be corrected, and complete justice provided, not indeed by a Roman Senate, but by the surpassing wisdom and humanity of the Imperial Parliament.
The undue assumption of legal jurisdiction darkens the annals of our country with the crime of Regicide; it hurried to the grave an unfortunate Missionary in the colony whence I came, but there sprang from his ashes a society which having extinguished slavery, now directs its views to the protection of the aborigines within the British settlements. I believe it to be the duty of a judge fearlessly and honestly, yet with all due care and circumspection, to extend to its utmost verge his judicial authority when occasion shall require; but I believe it equally to be his duty to abstain from its exercise when any reasonable doubt can be entertained of his jurisdiction. The fair and lovely face of justice, if urged beyond her legal boundary, assumes the loathsome and distorted features of tyranny and guilt.
"Est modus in rebus, sunt certi denique fines,
Quos ultra citraque nequit consistere rectum."
The address of the British House of Commons to the late King, passed unanimously, July, 1834, (and set forth in the Report of the Select Committee of the House of Commons on the Aborigines where British settlements are made, and to which I shall have frequent occasion to refer), states that his "faithful Commons in Parliament assembled are deeply impressed with the duty of acting upon the principles of justice and humanity in the intercourse and relation of this country (the United Kingdom) with the native inhabitants of its Colonial settlements -- of affording them protection in the enjoyment of their civil rights, and of imparting to them that degree of civilization, and that religion with which Providence has blessed this nation; and it humbly prays, that his Majesty will take such measures and give such directions to the Governors and Officers of his Majesty's settlements and plantations, as shall secure to the natives the due observance, and the protection of their rights -- promote the spread of civilization among them, and lead them to the peaceful and voluntary reception of the Christian religion." "This address, (says the Report) as the Chancellor of the Exchequer observed; so far from being the expression of any new principle, only embodies and recognises principles on which the British Government has for a considerable time been disposed to act." The Report further states, "It might be presumed that the native inhabitants of any land, have an incontrovertible right to their own soil; it is a plain and sacred right which seems not to have been understood. Europeans have entered their borders uninvited, and when there, have not only acted as if they were the undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country. If they have been found upon their own property (and this is said with reference to the Australian Aborigines) they have been hunted as thieves and robbers -- they have been driven back into the interior as if they were dogs or kangaroos."
To elucidate so far as I am able the point for decision, I will first briefly trace the history of this colony and of the settlement of this district, at the same time remarking on the character which has been given of the Aborigines; and in the second place, state so much of the acknowledged law of nations and the manner it has been acted upon with regard to Aborigines, as seems to me to bear on the subject, adding a few notices of the manner in which uncivilized tribes have been treated with in other British Colonies, and the steps taken in Colonies where English law was in force. I will premise that the policy, or impolicy of an existing system can avail nothing in the present instance. I am here as a Judge to declare the right, and not to have recourse to the expedient. I can never permit the end to justify any undue means for its accomplishment. This may be policy and wisdom in a statesman, but it is little less than treason in a Judge. He must not
"Wrest the law to his authority,
Or do a great right, through a little wrong."
But to proceed with the history of the colony: whatever may be the claims of others to the discovery of the vast island of New Holland, there can be no doubt that our English navigator, Captain Cook, sailing from Plymouth in August 1768, on his well known scientific voyage, after having observed at Mattavai in Otaheite, the transit of Venus over the Sun, in June 1769, in due form, and with great advantage, and discovered the Society islands; sailed to New Zealand, and thence to New Holland; the eastern coast of which, unexamined before, he explored with attentive diligence for the space of 1800 miles; affixing to this part of the country the name of New South Wales, he took possession of it in the name of his sovereign. Early in the year 1785, owing to the previous revolution and then recent declaration of the independence of the British Colonies, (now United States of America) the attention of the British Government was naturally directed to the state of the convicts formerly transported to those possessions.
In the House of Commons Mr. Burke asked what was to be done with the unhappy persons sentenced to transportation? This gave rise to the Colonial scheme, adopted during the administration of Mr. Pitt to clear the prisons, with an eye to the eventual benefits derivable from new possessions. The King ordered a considerable embarkation for Botany Bay, in New South Wales. The number of convicts amounted to 584 men, and 242 women; guarded by 212 marines. Capt. Arthur Phillip, a naval officer, was invested with the chief command of the squadron, and destined to be the first governor of the eventual colony.
"Finibus expulsi patriis nova regna petentes."
They sailed from England in the early part of the year 1787, and arrived in Botany Bay in January 1788. On the shore appeared a body of savages, armed with spears, which, however, they threw down as soon as they found the strangers had no hostile intention; they had not the least particle of clothing, yet they did not seem surprised at the sight of well clad persons, or impressed with a sense of shame. Finding the bay to be inconvenient, Port Jackson was fixed upon, as a more desirable spot; and at one of the coves of this harbour, named from Lord Sydney, an orderly disembarkation took place. While the majority of the men were clearing the ground of the trees and underwood with which it was encumbered, a hasty encampment afforded temporary shelter; and at a meeting of the whole colony, formal possession was taken of that part of New Holland which extends from York Cape to the South-eastern Cape, and from the coast to the 135° of east longitude; a country, to which was given the denomination of New South Wales, much more extensive than all the British dominions in Europe.
The Governor, in various excursions, endeavoured to conciliate the natives, but they long continued to be shy and jealous; they appeared to belong to the numerous race dispersed over the South Sea Islands; they had made little progress in the arts, their canoes were wretchedly formed, their huts were very slight and incommodious; and, they could not secure themselves against the frequent visitations of famine. The progress of the colony, to a regular establishment, was slow: supplies of delinquents were occasionally sent; but such articles of subsistence as the colonists could not obtain from the land which they inhabited, did not always arrive from other countries so soon as they were required, and the scarcity sometime bordered on famine. And here I cannot but agree with what is said by Lord Bacon - "I like a plantation in a pure soil, that is, where people are not displanted to the end to plant in others; for else it is rather an extirpation, than a plantation." "It is a shameful thing," he adds, "to take the scum of the people, and wretched condemned men, to be the people with whom you plant."
Yet such was the plantation of New South Wales. With regard to the character of the Aborigines of the colony, it was said by those who first visited New Holland, "that the people who inhabit the various parts of it, appear to be of one race. They are evidently ruder than most of the Americans, and have made still less progress in improvement and the arts of life. There is not the least appearance of cultivation in any part of this vast region; the inhabitants are extremely few, so that the country appears to be almost desolate. Their tribes are still more inconsiderable than those of America. They depend for subsistence almost entirely on fishing; they do not settle in one place, but roam about in quest of food. Both sexes go stark naked. Their habitations, utensils, &c., are more simple and rude than those of the Americans." Subsequent observation has shown the incorrectness of much of this statement, which, doubtless, may formerly have had weight with the British Government. The Lord Bishop of Australia, previously the Archdeacon, Dr. Broughton, (in his evidence before the Committee of the House of Commons,) although he says, "that the Aborigines are in a state of extreme degradation and ignorance," yet adds, "that he does not ascribe their present barbarism to any unconquerable dullness of intellect, but merely to their love of erratic liberty; and thinks their intellect, when it is exercised, is very acute upon subjects that they choose to apply it to." His Lordship states, "that the consequence of our settlement at Sydney, was to drive away the Aborigines from possessions which they had previously occupied." "They still haunt," he says, "and continue in their natural places; they return to it, and linger about it; but they have no settled place, properly so called - it is all occupied by the Europeans." His Lordship also stated his opinion as to their numbers, which certainly does not seem to be very inconsiderable. Mr. Saxe Bannister, formerly Attorney-General of this colony, in his evidence before the same Committee (on the 31st August, 1835,) after complaining, that, in his time in New South Wales, an interpreter (between the Aborigines and colonists) could not be found to come into any court of justice, says, "we ought forthwith to begin, at least, to reduce the laws and usages of the Aboriginal tribes to language, print them, and direct our courts of justice to respect those laws in proper cases."
Hence, it is evident, according to Mr. Bannister's testimony, that the Aborigines of this colony have laws and usages of their own. Mr. Bannister also handed a paper to Mr. T. F. Buxton, chairman of the Committee, dated the 19th August, 1835, in which (under the head of "Measures affecting the Swan River and other New Australian Colonies,") he says, "Make treaties with the natives before proceeding farther." The Rev. John Dunmore Lang, the head, I believe, of the Presbyterian Church in this colony, in a letter to Mr. T. F. Buxton, of the 10th June, 1834, appended to Minutes of Evidence before the Committee I have mentioned, writes as follows:- "They (the Aborigines of New South Wales) are divided into an infinity of tribes, speaking an infinity of barbarous tongues; subsisting on whatever the rivers or the forests produce spontaneously -- without clothing -- without houses -- equally ignorant of manufactures and of agriculture -- but generally in a state of warfare with each other. They are neither devoid of intelligence, however, nor destitute of capacity; and in their native wilds, and especially in seasons when game is easily procurable, they are by no means strangers to a certain species of enjoyment. Their songs are artless, but agreeably melodious, and sometimes even poetical; their dances are an accurate imitation of the motions of the inferior animals that inhabit their native forests; and their mock fights are a still more accurate representation of real warfare than an European review." I find that in a letter from a Mr. John Batman, inclosed by Governor Arthur, from Van Diemen's Land of 4th July, 1835, to the Right. Honorable T Spring Rice, (now Lord Monteagle,) then Her Majesty's Colonial Secretary of State; that Mr. Batman states "the chiefs (that is, the chiefs of the aboriginal tribes at Port Phillip,) "to manifest their friendly feelings towards me, insisted upon my receiving from them two native cloaks, and several baskets, made by the women, and also some of their implements of defence. The women generally are clothed with cloaks of a description somewhat similar, and they certainly appear to me to be of a superior race to any natives which I have ever seen."
Thus, according to these statements respecting the aborigines, it appears that they are by no means devoid of capacity -- that they have laws and usages of their own -- that treaties should be made with them -- and that they have been driven away, from Sydney at least, by the settlement of the colonists, but still linger about their native haunts. That they do so linger in this district -- that those who are termed by Mr. Batman, in aid of his views, and those of other speculative adventurers, "a superior race," still linger about this town of Melbourne, once in their actual occupation, is seen by their frequent assemblies in the immediate vicinity, and the multitude of them so congregated at this very moment. The scenes of drunkenness of individuals belonging to this unfortunate race daily witnessed by all in the streets of Melbourne will account for that decay, -- for their seeming to wear out (as the Lord Bishop justly says) and diminish in numbers wherever Europeans meet with them. Rochefort tells us that an Aboriginal of a different country, an old Charib, many years since thus addressed a West Indian planter, "Our people are become almost as bad as yours, we are so much altered since you came among us, that we hardly know ourselves, and we think it is owing to so melancholy a change, that hurricanes are more frequent than they were formerly. It is the evil spirit that has done all this -- who has taken our best lands from us, and given us up to the dominion of Christians." It appears by the Parliamentary Report I have so frequently referred to, that "From the prevelance of infanticide, from intemperance, and European diseases; the number of the Aborigines is evidently and rapidly diminishing in all the older settlements of the colony, and that in the neighbourhood of Sydney especially, they present merely the shadow of what once were numerous tribes -- yet even now it is supposed that their number within the limits of the colony of New South Wales cannot be less than 10,000; an indication of what must once have been the population, and what the destruction."
But why I would ask if the Aborigines be deemed to all intents and purposes to be British subjects and amenable to British laws -- as it is now contended that they are; Why have not the Magistracy? aye! and why not the Executive directed the Magistracy if negligent in their duty, to put forth the protecting arm of legal authority to save these wretched beings from these crimes -- the crimes of infanticide and drunkenness -- to save them from themselves, and from the effects of the innoculation of European vice? The settlement of this district of Port Phillip, took place under the circumstances detailed in a very able despatch of Governor Sir Richard Bourke on the 10th of October 1835, to the Right Hon. Lord Glenelg, then Secretary of State, which with other documents relative to an illegal attempt of the Mr. Batman who has been mentioned, and his co-adventurers, to treat with the chiefs of the native tribes for the purchase of no less than 600,000 acres of land in the immediate vicinity of this town, in consideration of a few blankets, knives, and tomahawks, four suits of clothes, fifty pounds of flour, and an annual tribute of some blankets, knives, tomahawks, scissors, looking glasses, slop clothing, and two tons of flour." Yes, such was proposed as the liberal consideration for 600,000 acres of land, an attempted bargain surpassed only by some more recent proceedings of a somewhat similar description in New Zealand.
The whole of these documents are printed and may be seen in the appendix to the Report of the Parliamentary Committee on the disposal of waste lands in the British Colonies dated the 1st of August, 1836. This scheme was happily frustrated. It is to be regretted, however, that previously to the settlement of Port Phillip by the Government no treaty was made with the Aborigines -- no terms defined for their internal government, civilization, and protection. Sir Richard Bourke indeed well deserved the glowing eulogy for what he has done, though I cannot but lament that with regard to the Aborigines he did not do more, in the address to him from the inhabitants of the colony of New South Wales, when on his return to Europe, (published in the Government Gazette of New South Wales, of 13th December, 1837;) it alludes to Port Phillip in the following terms, "We beg leave, sir, to acknowledge, that to your promptitude and decision, we are mainly indebted for having secured to New South Wales the noble domain, millions of fertile acres, which encompass the waters of Port Phillip. Impartial history will yet record with what vigilance you watched over those, who under the pretence of fictitious sales and artful representations, endeavoured, on terms injurious to the rights and interests of the colony, to make a monopoly of those green and boundless plains, which at no distant period are destined to be covered with our multitudinous flocks and herds." The immigrant now journeys to the spot thus freed from the trammels of these tainted transactions, like 'neas on his approach to Carthage
"Miratur portas, strepitumque et strata viarum,
Instant ardentes homines; pars ducere muros,
Molirique arcem, et manibus subvolvere saxa:
Pars aptare locum tecto, et concludere sulco,
Hîc Portus alii effodiunt; hîc alta theatris
Fundamenta locant alii, immanesque columnas
Rupibus excidunt, scenis decora alta futuris."
But though the city may spring up and flourish; though the smoke is seen to curl from many a domestic hearth; where is the sacred spire pointing to Heaven, and telling the distant traveller, that he is approaching the abode of Christians, as well as of civilized men? -- of Christians mindful of their duty to the helpless race whose possessions they have usurped. According to the commission whereby this colony is governed, the Sovereignty of the Crown is asserted over the whole of the territory comprised within the limits it defines -- limits always including a large portion of the Northern Island of New Zealand; that part in fact between which and New South Wales any intercourse existed -- limits which by a Commission of so late a date as the 15th of June, 1840, were further extended so as to comprise that group of islands in the Pacific commonly called New Zealand. There does not appear to be any specific recognition in this Commission of the claims of the aborigines, either as the sovereigns or proprietors of the soil; although it is in the recollection of many living men that every part of this territory was the undisputed property of the aborigines.
Whether the sovereignty thus asserted within the limits defined by the Commission of His Excellency the Governor legally excludes the aborigines, according to the law of nations, as acknowledged and acted upon by the British Government, from the rightful sovereignty and occupancy of a reasonable portion of the soil, and destroys their existence as self governing communities, so entirely as to place them, with regard to the prevalence of our law among themselves, in the unqualified condition of British subjects; or whether it has merely reduced them to the state of dependent allies, still retaining their own laws and usages, subject only to such restraints and qualified control as the safety of the colonists and the protection of the aborigines required, (subject to that right of pre-emption of their lands, which is undoubted) is the point upon which the present question mainly rests. Much will depend on the manner in which this colony is considered to have been acquired, and this brings me in the second place to advert to the law of nations as acknowledged by the British Government, with regard to Colonial possessions. Colonies, says Mr. Clark, in his summary of the Colonial Law, and stated at the bar by Mr. Barry, are acquired by conquest; by cession under treaty; or by occupancy.
By occupancy where an uninhabited country is discovered by British subjects, and is upon such discovery adopted or recognised by the British Crown as part of its possessions. In case a colony be acquired by occupancy, (he adds) the law of England then in being, is immediately and ipso facto in force in the new settlement. He further states, New South Wales and Van Diemen's Land, were acquired by discovery or simple occupation. New South Wales was not however unoccupied, as we have seen, at the time it was taken possession of by the colonists, for "a body of the aborigines appeared on the shore, armed with spears, which they threw down as soon as they found the strangers had no hostile intention." This being the case, it does not appear there was any conquest, and it is admitted there has hitherto been no cession under treaty. Protectors indeed have recently been appointed and certain lands set apart by order of Government within this district, for the location of the aborigines; but no more.
This colony then stands on a different footing from some others for it was neither an unoccupied place, nor was it obtained by right of conquest and driving out the natives, nor by treaties. Indeed, as M. Vattel very justly says, "whoever agrees that robbery is a crime, and that we are not allowed to take forcible possession of our neighbour's property, will acknowledge without any other proof, that no nation has a right to expel another people from the country they inhabit in order to settle in it herself." But in a preceding page the same author declares, in the passage quoted by the learned Crown Prosecutor, "that those who pursue an erratic life, and live by hunting rather than cultivate their lands, usurp more extensive territories than with a reasonable share of labour they would have occasion for, and have, therefore, no reason to complain if other nations, more industrious, and too closely confined come to take possession of a part of those lands.
Thus, though the conquest of the civilised empires of Peru and Mexico was a notorious usurpation the establishment of many colonies on the continent of North America, might, on their confining themselves within just bounds, be extremely lawful. The people of those extensive tracts rather ranged through, than inhabited them." And, again, he says, as was quoted by the counsel on both sides at the bar, "It is asked if a nation may lawfully take possession of a part of a vast country in which there are none but erratic nations whose scanty population is incapable of occupying the whole? We have already observed, in establishing the obligation to cultivate the earth, that those nations cannot exclusively appropriate to themselves more land than they have occasion for, or more than they are able to settle and cultivate.
Their removing their habitations through these immense regions cannot be accounted true and legal possession; and the people of Europe, too closely pent up at home, finding land of which savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies. The earth, as we have already said, belongs to mankind in general, and was designed to furnish them with subsistence: if each nation had from the beginning resolved to appropriate to itself a vast country, that the people might live only by hunting and fishing and wild fruits, our globe would not be sufficient to maintain a tenth part of its present inhabitants.
We do not, therefore, deviate from the views of nature in confining the Indians within narrower limits." M. Vattel proceeds, but this has not been quoted at the bar:- "However, we cannot help praising the moderation of the English Puritans who settled in New England; who, notwithstanding their being furnished with a charter from their Sovereign, purchased of the Indians the land of which they intended to take possession. This laudable example was followed by William Penn and the colony of Quakers, which he conducted to Pennsylvania." It was, then, upon the above principle, I think, and not by mere occupancy of a desert spot, by conquest, or by cession, that this colony was acquired, though the good example of the English Puritans and of Wm. Penn has hitherto been neglected. The former, in 1640, being desirous of planting churches "after a Godly sort," and to traffic with the Indians along the Delaware Bay, made a purchase of soil for 30l. sterling from the Indians, "and based their claims on their actual purchase from the Indian sovereigns, of whom they alleged they acquired their titles."
With regard to Penn, Fishbourne, in his narrative, says, "the first and principal care of the proprietor (Penn) was to promote peace with all, accordingly he established a friendly correspondence by way of treaty with the Indians, at least twice a year, and strictly enjoined the inhabitants and surveyors not to settle any land to which the Indians had claim, until he had first, at his own cost, satisfied and paid them for the same." Here, then, we find the Indians treated as Sovereigns of the soil by the Puritans, and treaties entered into with them by the chartered governor, Penn. Penn's right as representing his Sovereign, was discovery coupled with possession; and yet, having the sovereignty by virtue of the royal charter, the Indians were not reduced to subjects, but treaties were made with them whereby they became dependent states, and placed themselves under his protection. "A state," says M. Vattell, "that has put herself under the protection of another has not on that account forfeited her character of sovereignty;" and this was the case with the Indian tribes. A state, I think, may be considered under the above circumstances as placing itself under the protection of the more powerful colonists, although no specific treaty has been made; and the passages from Kent's Commentaries that I shall cite hereafter, will, in my opinion, warrant this inference. But, it may be said, that if a nation that is protected, or has placed itself under a certain state of subjection, does not resist the encroachments of the superior power -- if it makes no opposition to them -- if it preserves a profound silence when it may and ought to speak -- its patient acquiescence becomes, in length of time, a tacit consent that legitimates the right of the usurper.
It must be observed, however, that silence, in order to show consent, ought to be voluntary. If the inferior nation proves, or if it be evident from its position and circumstances, that violence and fear, or ignorance, prevented its giving testimonies of opposition, nothing can be concluded from its silence which then gives no right to the usurper. Therefore, if this colony were acquired by occupying such lands as were uncultivated and unoccupied by the natives, and within the limits of the sovereignty asserted under the commission, the aborigines would have remained unconquered and free, but dependent tribes, dependent on the colonists as their superiors for protection; their rights as a distinct people cannot, from their peculiar situation, be considered to have been tacitly surrendered. But the frequent conflicts that have occurred between the colonists and the Aborigines within the limits of the colony of New South Wales, make it, I think, sufficiently manifest that the Aboriginal tribes are neither a conquered people, nor have tacitly acquiesced in the supremacy of the settlers.
The rights of the Aborigines of this district if the testimony which has been adduced as to the civilization and capacity be true, cannot, I should imagine, differ from those of other Aboriginal tribes within the limits of the same government. We find in the Government Gazette of New South Wales, of July 8, 1840, a Proclamation by Captain Hobson, the Lieutenant-Governor of New Zealand, reciting that a treaty had been made and entered into by him and certain chiefs of the northern island, (the greater part of which it will be remembered has always been within the limits defined in the commission under which this colony is governed), declaring that by virtue of such treaty, the full sovereignty of the northern island of New Zealand vests in Her Majesty Queen Victoria for ever, a clear and distinct recognition of these chiefs as a separate and independent people.
Now, if this cession were according to general and established principles of national law, what is there, I would ask, to prevent His Honor the Superintendent of this district entering into a similar treaty with the chiefs of the aborigines of this district, and thus acknowledging them to be as distinct a people as the New Zealanders? I fully agree with His Excellency the Governor, Sir Geo. Gipps, that Mr. Busby's declaration of independence of the New Zealanders, "was a silly as well as unauthorised act," wherefore no argument in favor of the treaty entered into with them by Governor Hobson, can be built on that ground; in fact I am quite at a loss to discover how the aborigines of New Zealand can be considered in a different light to those of Australia Felix.
But I now come to what, perhaps, is higher and more conclusive authority for considering the aborigines as a distinct though dependent people, and entitled to be regarded as self-governing communities. On the 9th of July, 1840, His Excellency Governor Sir George Gipps, in his speech in the legislative council of this colony, (a speech which would have done honour to any senate,) on the Bill respecting claims to grants of land in New Zealand, made, among other, the following quotations in support of his argument, quotations which I know to be correct. The first passages read by His Excellency were extracts from Storey's Commentaries on the Constitution of the United States, c. 1, sec. 6, 7, and 8; but the 7th section is sufficient for my present purpose -- it is as follows: "It may be asked what was the effect of this principle of discovery with regard to the natives themselves. In the view of the Europeans, it created a peculiar relation between themselves and the aboriginal inhabitants.
The latter were admitted to possess a present right of occupancy, or use of the soil, which was subordinate to the ultimate dominion of the discoverer. They were admitted to be rightful occupants of the soil with a legal and just claim to retain possession of it; and to use it according to their own discretion. In a certain sense they were permitted to exercise rights of sovereignty over it. They might sell or transfer it to the sovereign who discovered it, but they were denied the authority to dispose of it to any other person; and until such a sale or transfer they were generally permitted to occupy it as sovereigns de facto." His Excellency then read several extracts from Kent's commentaries on the American law, and among others the following passage, a passage also quoted by counsel on behalf of the prisoner in his arguments in this case. "The Indian tribes placed themselves under the protection of the whites, and they were cherished as dependent allies."
This does not appear to have been in consequence of any express treaty; "but subject to such restraints and qualified control in their national capacity, as was considered by the whites to be indispensable to their own safety, and requisite to discharge the duty of protection." And again, "They (the New England Puritans) always negotiated with the Indian nations as distinct and independent persons; and neither the right of preemption, which was uniformly claimed and exercised, nor the state of the dependence and pupilage under which the Indian tribes within their territorial limits were necessarily placed, were carried so far as to destroy the existence of the Indians as self-governed communities." His Excellency also read a passage from Robertson's History of America, with regard to the internal regulations of the Indians, of which the following is an extract: (this passage has also been urged at the bar to show that the Court ought not to entertain jurisdiction. "The first step towards establishing a public jurisdiction has not been taken in those rude societies.
The right of revenge is left in private hands. If violence is committed or blood is shed the community does not assume the power either of inflicting or moderating the punishment. It belongs to the family and friends of the person injured or slain, to avenge the wrong, or to accept the reparation offered by the aggressor." A lawyer at once perceives the similarity of this rude custom to the appeals of murder which within my recollection formed part of the English code. I believe the passages so aptly quoted by His Excellency the Governor to be equally applicable to the aborigines throughout the colony as to those of New Zealand. The American colonies were acquired precisely in the same manner as this has been, by discovery and occupancy of such lands as were not in the actual occupation of the natives. Some of those colonies also were receptacles for convicted offenders. If it be urged, notwithstanding what I have stated, that this is a conquered colony, I say and so most certainly was Jamaica, a colony in which, as in this, the English law prevails, and yet we find that in the year 1738, a treaty was concluded under the sanction of the crown, not with the aborigines indeed, but with an equally rude and untutored race, the Maroons of Trelawney Town, on the 1st March in that year; by the eighth article it is stipulated "that if any white man shall do any manner of injury to Capt. Cudjoe, his successors, or any of his people, they shall apply to any commanding officer, or magistrate in the neighbourhood for justice; and in case Captain Cudjoe, or any of his people shall do any injury to any white person, he shall submit himself, or deliver up such offenders to justice." -- And by the 12th article, "That Capt. Cudjoe during his life time, and the Captains succeeding him, shall have full power to inflict any punishment they think proper on their men, death only excepted, in which case if the Captain thinks they deserve death, he shall be obliged to bring them before any Justice of the Peace, who shall order proceedings on their trial equal to those of other free negroes."
A pretty strong acknowledgement of a rude and dependent community being permitted to govern itself by its own laws in a British colony. The island of St. Vincent, of which says Edwards, the Charibs were the rightful possessors, was by the 9th article of the peace of Paris, 10th Feb. 1763, ceded by the French in full and perpetual sovereignty to Great Britain, "the Charibs not once being mentioned in the whole transaction as if no such people existed." The Charibs indeed uniformly and absolutely denied any right in any of the Sovereigns of Europe to their allegiance. They were a rude and savage race certainly nor greatly superior, from Mr. Edwards' account of them, to the aborigines as described by Mr. Batman in Australia Felix. Notwithstanding the cession of the Island to the British Crown in full sovereignty, Government deemed it expedient to enter into a treaty of peace and friendship with them, concluded on the 17th of February, 1773, by the 3rd article of which they stipulate, "to submit themselves to the laws and obedience of His Majestys Government, and the Governor shall have power to enact further regulations for the public advantage as shall be convenient, (this article only respects their transactions with H. M.'s subjects, not being Indians, their intercourse and customs with each other in the quarters allotted to them not being affected by it) and all new regulations are to receive H. M.'s Governor's approbation before carried into execution."
More convincing proofs than these cases in Jamaica and St. Vincent of the recognition of the self government, as dependent allies, of a rude people within the British dominions in a colony where English law prevails cannot I think be found, or one that more clearly refutes the argument of the learned Crown Prosecutor, that all persons in a British colony are subject to the British law. Why then I would ask if this principle has been acknowledged in this colony with regard to the Aborigines of New Zealand -- in Jamaica with respect to the Maroons -- in St. Vincent with reference to the Charibs, and fully recognised and acted upon as national law in America.
Why is it not to be acted upon here? Our East Indian possessions, whatever they may have been originally, are certainly now claimed by us by conquest; yet there, even, after conquest, the unchristian practice of Suttees and the barbarous rites of Jughernaut were permitted to prevail: the British Legislature, however, has, by the Stat. 3 & 4, WM. IV., cap. 85, expressly given "the Governor-General in Council power to repeal or alter any laws or regulations then or thereafter to be in force in those territories, and to make laws for all persons, British or Native, foreigners or others, and for all courts of justice, whether established by H. M.'s charter or otherwise." There is no express law, that I am aware of, that makes the Aborigines subject to our colonial code: the stat. 9, Geo. IV., cap. 83, sec. 24, declares that the laws of England shall be applied in the administration of justice so far as circumstances will admit; but this, I think, is very different from declaring that the Aborigines shall, as among themselves, be amenable to British law. The only acts of legislation with regard to the Aborigines, that I remember, are the local ordinances to prevent their being supplied with spirits, and to prevent them bearing firearms; but it has never been attempted to deprive them of their weapons. These laws are perfectly consistent, I think, with the character of the Aborigines, as dependent allies, and necessary for the protection and due regulation of intercourse between the Aborigines and colonists.
After the conquest of Ireland by Henry II., the laws of England were received and sworn to by the Irish nation, assembled at the Council of Lismore. But the Irish still adhering to their old Brehon law, after repeated injunctions, which they disregarded, that they should be governed by the law of England, the Brehon law was formally abolished by an Act of Irish Parliament in the 40th year of Edward III. Had any legislative enactment abolished the laws and customs of the aborigines, or declared that they should be governed by the law of the colony then this point could never have arisen.
This is not a question of foreigners in a country where the sovereign has the entire sway. In such a case there can be no doubt that the foreigners are amenable to the laws of the place they come to. But even with regard to foreigners it is said by M. Vattel, to be the safest course not to permit those foreigners to reside together in the same part of the country, there to keep up the form of a separate nation. In this instance however the colonists and not the aborigines are the foreigners; the former are exotics, the latter indigenous, the latter the native sovereigns of the soil, the former uninvited intruders. It seems then that although infanticide prevails, and scenes of drunkenness are daily witnessed among the unfortunate aborigines in our streets, that no attempt has hitherto been made, to my knowledge at least, to repress these crimes by the interposition of our English or colonial law.
To grasp the subject with sufficient strength, I have been induced to narrate at some length, the circumstances under which this colony was acquired and this district settled; to state the law of nations as applied not only in what was British America, but in New Zealand as forming a part of this colony, and to allude to the treaties made with the Maroons in Jamaica, and the Charibs in St. Vincent, (the one a colony obtained by conquest in its strictest sense, and the other acquired by the full and unconditional cession of a Foreign State,) in both of which colonies the law of England, so far as it can advantageously be applied, is recognised and prevails. Nor have I omitted to glance at the permissive countenance of the laws and customs of the natives of Hindostan, in that portion of it which has been conquered and subjected to British rule; though such customs included the cruel practice of Suttees, and the disgusting heathen and barbarous rites of Jughernaut. I repeat that I am not aware of any express enactment or treaty subjecting the Aborigines of this colony to the English colonial law, and I have shown that the Aborigines cannot be considered as Foreigners in a Kingdom which is their own. From these premises rapidly indeed collected, I am at present strongly led to infer that the Aborigines must be considered and dealt with, until some further provision be made, as distinct, though dependent tribes governed among themselves by their own rude laws and customs. If this be so, I strongly doubt the propriety of my assuming the exercise of jurisdiction in the case before me.
But it is too momentous a question to be thus hastily decided, it demands and it must receive much more anxious consideration, unless the counsel on each side go on with this case, on the express understanding that neither the prisoner nor the Court consider the question waived by any subsequent proceeding, and the reservation of all such benefit to the prisoner as he would have received in case I had now given a definite decision. I must for the present adjourn this matter for future judgment, reserving to myself as I do to the fullest extent the right so alter or abandon my present impression, should I be hereafter convinced that it is in any wise erroneous. But though I pause, I trust by doing so, I shall not subject the British name to the reproach cast on the Spaniards by the Peruvian Rolla. "I pause, indeed, in unfeigned amity, that affliction may not mourn my progress." I desire to see the state of the Aborigines of Australia improved, I desire to see them freed from the yoke of error; to see the duties of humanity amply and practically fulfilled; to see all due protection extended to this unhappy race -- the protection of their rights by laws adapted to their capacity and suited to their wants -- the protection of all equal and all powerful justice.
It was then agreed that the prisoner should plead to the information and take his trial, subject however to the express reservation of the right of jurisdiction, which His Honor would take further time to consider.
* See also B Kercher, "Recognition of Indigenous Legal Autonomy in Nineteenth Century New South Wales" (1997) 4(13) ILB 7.
Endnotes
[1] Bruce Kercher is a Professor of Law at Macquarie University.
[2] Australian, 23 May 1827, reported at www.law.mq.edu.au/~bruce.
[3] Dowling, Proceedings of the Supreme Court, Vol. 22, Archives Office of New South Wales, 2/3205, p. 98.
[4] See also Sydney Gazette, 23 April 1829 on earlier proceedings.
[5] Sydney Gazette, 14 May 1836; Sydney Herald, 16 May 1836; Australian, 17 May 1836; Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 122(2), Archives Office of New South Wales, 2/3306 pp. 125-42.
[6] Notes on newspaper accounts taken from David Philips, "Mr. Justice Willis and the Bonjon Case, Melbourne Sept. 1841", unpublished paper, Melbourne University, July 1998.
[7] Port Phillip Patriot, 20 September 1841, p. 5.
[8] Ibid.
[9] Philips, p. 6.
[10] Correspondence in British Parliamentary Papers, Vol 8, pp. 143-6. See also S Davies, "Aborigines, Murder and the Criminal Law in Early Port Phillip, 1841-1851" (1987) 22 Historical Studies 313; B Bridges, "The Extension of English Law to the Aborigines for Offences Committed Inter Se, 1829-1842" (1973) 59 Journal of the Royal Australian Historical Society 264; H Reynolds, Aboriginal Sovereignty: Three Nations, One Australia?, Allen and Unwin, Sydney, pp. 70-1.
[11] See Wik Peoples v State of Queensland (1996) 187 CLR 1 at 181; 2(1) AILR 35, note 667 (per Gummow J), and R v Wedge [1976] 1 NSWLR 581, at 586 (per Rath J).
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