Melbourne Advertiser/Report of R v Bonjon
SUPREME COURT – CRIMINAL SIDE
Thursday, September 16, 1841.
Before His Honor the Resident Judge.
BONJON, an aboriginal native, stood indicted for the wilful murder of Yammowing, also an aboriginal native, by shooting him with a loaded carbine in the head, at Geelong, in the colony of New South Wales, on the 2nd of September instant.
On the prisoner being called upon to plead to the information,
Judge Willis said, before I allow the prisoner to plead to the information, I must first ascertain whether he has sufficient capacity to plead to the jurisdiction of the court. The better plan will be to hear what Mr. Barry has to say to the question of jurisdiction; the plea itself must be put in personally, and the question is, has the prisoner sufficient understanding to put in such a plea?
Mr. Croke submitted the prisoner could plead to the information
Judge Willis - No, I cannot allow him to do so, because that would be an acknowledgement of the jurisdiction of the court.
Mr. Barry said he could do away with that argument, because the plea against the jurisdiction of the court was not tenable unless verified upon oath.
Judge Willis - I know that, the question is has the prisoner sufficient understanding to plead according to law.
Mr. Croke - This case is similar to the case of Esther Dyson.
Judge Willis - In the case of Esther Dyson, there was no doubt as to the jurisdiction - the prisoner was deaf and dumb and a person was sworn in to act as interpreter for the prisoner by signs, and by those the prisoner pleaded not guilty. A plea of not guilty is widely different from a plea to the jurisdiction of the court, and before I assume jurisdiction in this case I must be satisfied I have jurisdiction. There was also the case of the King v. Pritchard, which is precisely similar to the case I have alluded to. In a case that was tried before me in the other district, where an Aboriginal native was tried for the murder of a colonist, my friend, Mr. Foster, at my request kindly undertook the defence of the prisoner, and he put it to the jury whether the prisoner understood the nature of the proceedings against him; the jury were of the opinion he did not, and the prisoner was discharged.
Mr. Croke - The prisoner knew well enough how to hold up his hand when called upon to do so. I wish the matter to follow the same course as that pursued in the case of Esther Dyson.
Judge Willis - I will have the jury sworn, to try whether the prisoner is capable of pleading to the jurisdiction of the court, and have witnesses examined for that purpose; I shall follow the same course as that adopted by the Judges in England, and find out the matter piece-meal.
The jury were then sworn to try the issue, whether the prisoner has sufficient capacity to plead to the jurisdiction of the court.
Mr. Barry, for the prisoner, said, the present is rather a novel proceeding; you, gentlemen of the jury, have been sworn to try the issue, as to the capacity of the prisoner to plead to the jurisdiction on the doubts entertained by his honor; witnesses will be examined as to the prisoner's capacity to put in an intricate plea only known to persons of great experience in the legal profession. Was it likely that the prisoner, who had from the very first moment he inhaled the breath of life in a wilderness, could be capable of putting in such a plea - a plea which must be verified upon oath.
George Augustus Robinson, J.P., examined by Mr. Barry - I am Chief Protector of Aborigines; I am acquainted with the customs of the natives; I have seen the prisoner before, but I have no intimate knowledge of him; he has been under the care of Mr. Tuckfield, the Wesleyan Missionary.
Francis Tuckfield sworn, I am a Wesleyan missionary having connection with the Aborigines; I know the prisoner, he belongs to the Wadora tribe; I knew the deceased, Yammowing perfectly, he belonged to the Colijon tribe; both tribes are within the boundaries of the district of Port Phillip. I have had intercourse with the prisoner to some considerable extent. I believe, at present, he entertains some ideas of a Supreme Being - these ideas are not original and are but very imperfect and indistinct notions, not sufficient for him to understand the nature and obligations of an oath. To some extent he is conversant with the customs of Europeans, having been more amongst them since I have been here than any other native I know. There is no station reserved for the tribe the prisoner belongs to; they have occasionally visited our reserve which is within the boundary of the Colijon tribe. The prisoner has been instructed in the Christian religion to a very limited extent; I believe he has not been sufficiently instructed to understand the nature of an oath. The natives believe there is a place of rewards and punishments from the subject having been brought before them by us. I do not think the prisoner sufficiently understands the nature of the proceedings against him in Court this day.
Judge Willis explained to the witness the anture of a plea to the jurisdiction, and the necessity of its being put in upon oath.
Examination of the witness continued - I should think the prisoner has not sufficient capacity to put in such a plea, but he has capacity enough to plead "guilty" or "not guilty" to any crime he might be accused of.
Cross-examined by Mr. Croke - I have been out here about three years. I have visited the prisoner's tribe and they have visited us occasionally, they have sufficient capacity to understand the ordinary transactions of life, as constituted by proper society here. The prisoner has been more in contact with Europeans than any other member of his tribe; he was with the Border Police a considerable time, and can speak the English language, but very imperfectly. Murder is considered a crime amongst the Aboriginals, but under all circumstances I do not think they would consider it as such, there are some exceptions. I do not think the prisoner sufficiently instructed to put in a plea to the jurisdiction of the court, neither do I think I could instruct him, but I think he knows enough to say guilty or not guilty.
This was the case for the prisoner.
Foster Fyans, examined by Mr. Croke - I know the prisoner, he was seven months with the Border Police, he received rations but was not paid, the duty he performed was tracking horses that had strayed and assisting the men - in which he was very useful; the prisoner speaks English very badly, but he is particularly sharp and intelligent in his own way.
Cross-examined by Mr. Barry - The prisoner was a volunteer in the service, he went and came as he thought proper; he could not have been punished as a deserter, he was not enlisted and there was no agreement entered into by him.
Judge Willis - Gentlemen of the jury, you have heard the evidence, and the issue you have to decide upon, is, whether the prisoner has sufficient capacity to plead to the jurisdiction of this court; you have heard that Mr. Tuckfield has sworn that the prisoner could not be taught to do so.
The jury were unanimous in their opinion that the prisoner had not sufficient capacity to plead to the jurisdiction of the court.
Judge Willis said the next issue to be tried, was, whether the prisoner had sufficient capacity to plead guilty or not, and he suggested that as the same evidence was to be gone through on this issue, to save the time of the court, the parties could consent to the jury deciding without re-calling the witnesses. This was acceded to, and the jury were again sworn to try the second issue.
The jury, after a short consultation, returned the following verdict :- The jury consider the prisoner has sufficient capacity to know whether he did or did not kill Yammowing; but, as as murder is not always considered a crime with the Aborigines, the jury are incapable of deciding whether the prisoner is guilty or not guilty of a crime.
Judge Willis - I think I may now detain the prisoner, because, if I have jurisdiction, he is not so totally wanting intellect as not to say guilty or not guilty; I will now try the question of jurisdiction, and hear what you have to urge, Mr. Barry.
Mr. Barry, may in please your Honor - On behalf of the prisoner Bonjon, who is arraigned at the bar, I beg to be allowed to put in a plea to the jurisdiction of this court; and though I admit (as will no doubt be objected by the learned gentleman who will have to reply to me) that a plea to the jurisdiction is a personal plea, that the truth of it must be verified by an affidavit, and the very circumstance of my being the accredited mouth-piece of this man is ipso facto an admission of the jurisdiction. The peculiar position in which he is placed, ignorant alike as he must naturally be of the proceedings of this Court, of the mode of trial to which it is proposed to submit him, and the privileges to which he is most undoubtedly entitled, I trust your Honor will permit me to state some reasons on his behalf, by the force of which I will respectfully contend that the case of this aboriginal native is coram non judice; and as I knoe the tenderness which your Honor has so repeatedly expressed, of your intention never to act where you entertain the slightest doubt of your jurisdiction or authority, I hope your Honor will see sufficient grounds for the man's discharge. That the subject is of the greatest moment, not only from its novelty (for I believe it to be without precedent, certainly in this hemisphere) but also from the principle which it is endeavoured to establish, I am fully sensible, and am also impressed with the assurance of its being highly interesting as well to those resident in this district as to the inhabitants of the neighbouring colonies. As a land mark or guide to direct future operations and serve to attract the watchful observation of those in the mother country, and therefore requiring the most diligent and scrutinizing investigation. There is another important reason for the attentive consideration of this subject, which is, that His Excellency Capt. Grey, who has recently been appointed to preside over the government of South Australia, has lately transmitted to the home government an elaborate statement of the views he entertains with regard to the aboriginal natives of that portion of this island, and the manner in which they should be treated. And although his is merely a scheme proposed, and not acted upon, and although I regret to say I have not been able to procure a copy of the colonial minister's reply, the document of His Excellency will be of infinite service in establishing my position, for His Excellency submits to the Colonial Secretary the very proposition, "that the aboriginal natives should be tried by British law as now dispensed with respect to the European subjects of Her Majesty resident in the colony, and visited with punishment for offences committed by the natives amongst themselves," from whence I deduce this obvious and necessary conclusion, either that the power to punish native offenders for such crimes does not exist, or that it is so debateable a matter, so much of a "vexata questio," as to call for some declaratory expression on the part of Her Majesty's government. I will, however, reduce this question to very narrow limits, as it is neither my intention nor my desire to encumber it with any extraneous matter; and that my learned friend may not have to complain of my diffusenessm I will take my stand on this simple proposition, "That there is nothing in the establishment of British sovereignty in this country which authorizes our submitting the aboriginal natives to punishment for acts of aggression committed "inter se." This is the point at issue, and being and abstract question must be argued on abstract principles, though, as it is more or less a government question, as for at least as my learned friend is concerned, I am fully prepared for the reply of a Prerogative lawyer. To enter properly into the consideration of this matter, I must first, with your Honor's permission, briefly advert to the different modes by which British colonies have been reduced within the dominion of the Crown. Mr. Justice Blackstone, in the 1st vol. of his Commentaries (page 107), says, "Plantations or Colonies are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest or ceded to us by treaties." - In further explanation of those two last methods, I will draw your Honor's attention to the case of Campbell against Hall, (Cowper, 204) a case deemed so important that it was argued four several times at the bar, by the ablest counsel in England, and drew from Lord Mansfield one of the most learned and elaborate of his jointly celebrated judgments. In this case his lordship laid down six propositions which I may safely term axioms; the two first of which are as follow:
1st- "a country conquered by the British arms becomes a dominion of the King in right of his crown, and therefore necessarily subject to the legislature, the Parliament of Great Britain."
2nd- "That the conquered inhabitants once received under the King's protection, become subjects, and are to be universally considered in that light, not as enemies or aliens."
To these, there is, I believe, an answer, for the conqueror can enforce the establishment of a constitution in a territory acquired in either of the last two modes, by exterminating the refractory, at the point of the sword, or by expatriating them if they refuse to comply, or by treating them as aliens, and refusing to extend to them the benefits enjoyed by the more loyal or more facile members of the conquered community. However, I respectfully contend, there is nothing whatever to prove that British dominion was established in this colony, either by conquest or cession, but by "occupancy alone." I will therefore dismiss the consideration of these questions, and confine myself to the last, and though it is not a part of my duty to justify the acts of the crown, I will, with your Honor's leave, read what M. Vattel has written on this subject in his work on the Law of Nations:
There is another celebrated question, to which the discovery of the New World has principally given rise. It is asked whether a nation may lawfully take possession of a part of a vast country, in which there are found none but erratic nations, incapable by the smallness of their numbers to people 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, and which they are unable to settle and cultivate. Their removing their habitations through these immense rehions cannot be taken for a true and legal possession; and the people of Europe, too closely pent up, finding land of which these nations are in no particular want, and of which they make no actual and constant use, may lawfully possess it, and establish colonies there. We have already said that the earth belongs to the human race in general and was designed to furnish it with subsistence; if each nation had resolved from the beginning to appropriate to itself a vast country that the people might live only by hunting, fishing, and wild fruits, our globe would not be sufficient to maintain the tenth part of its present inhabitants. People have not then deviated from the views of nature in confining the Indians within narrower limits. However, we cannot help praising the moderation of the English Puritans who first settled in New England; who, notwithstanding their being furnished with a charter from their sovereign, purchased of the Indians the land they received to cultivate. This laudable example was followed by Mr William Penn, who planted the colony of quakers in Pennsylvania.
Families wandering in a country, as the nations of shepherds who pass over it accordingly as their wants require, possess it in common; it belongs to them exclusively of all other nations, and we cannot without injustice deprive them of the countries that are appropriated to their use. But let us here recollect what we have said more than once, the Indians of North America had no right to appropriate all that vast continent to themselves; and provided that people are not reduced to want land, others might, without injustice, settle in some parts of a region which they were not in a condition to inhabit naturally. If the Arabian shepherds resolved carefully to cultivate the land, a less space might be sufficient for them. In the mean time no other nation has a right to reduce their bounds, unless it be under an absolute want of land. For, in short, they possess their country, they make use of it after their manner, they reap from it advantage suitable to their manner of life, and in which they receive laws from no one. In a case of pressing necessity, I think, people may without injustice, settle on a part of that country, on teaching the arabs the means of rendering it, by the cultivation of the earth, sufficient for their wants, and those of the new inhabitants.
But there is nothing in this opinion of the learned writer from whom I have quoted, nor indeed in any part of his work, which positively declares that the institutions of a country, entered upon under such circumstances, are abrogated on the introgression of emigrants from a civilised nation. And in the 6th proposition in the case of Campbell v. Hall, before mentioned, Lord Mansfield expressly laid down "that the laws of a conquered country continue in force until they are altered by the conqueror. The absurd exception as to Pagans, mentioned in Calvin's case, shews the aniversality and antiquity of the maxim." I cannot omit here to draw the attention of the court to the opinion of another learned judge, as to the doctrine (thus mildly designated as absurd), laid down by my Lord Coke in Calvin's case. I feel proud to allude to it, for it is worthy of the dignity, the independence, and character of the bench. In Omichund v. Barker, (Willis 538), Lord Chief Justice Willis is reported to have said, "the meaning of Lord Coke apears more plainly by what he says in Calvin's case, that 'all infidels are in law perpetual enemies, for between them, as with the devils, whose subjects they are, and the christians, there is perpetual hostility, and can be no peace, for, as the apostle saith, 2nd Cor. 6 c. 15 v., Quae conventio christi cum Belial? Quae pars fideli cum infideli? Infideles sunt christi et christianorum inimili, and herewith agreeth the book in 12 Hen. 8, fol. 4, where it is holden that a Pagan cannot maintain any action at all.' But this notion though advanced by so great a man, is, I think, contrary not only to the scripture, but to common sense and common humanity. And I think whatever the devils themselves, whose subjects he says the heathens are, cannot have worse principles; and besides the irreligion of it, it is a most impolitic notion, and would at once destroy all that trade and commerce from which this nation reaps such great benefits." It is thus that doctrine is stigmatized by the Chief Justice, and while I am filled with admiration at the excellence of the sentiment, I thank God that we live in an enlightened age, when, by no such narrow or bigotted principles as those mentioned in Calvin's case, is the administration of the British law disgraced, or the purity of the sacred temple of justice defiled. As I have before submitted that this colony has been acquired by occupancy, I will further contend that the mere act of occupancy that gives to the crown a right to the soil, can confer no authority whatsoever over the aboriginal inhabitants as subjects, unless there be some treaty or compact, or public demonstration of some kind on the part of the natives, by which they testify their desire to come beneath the yoke of the law. This does not interfere with, for a moment, the right exercised by the sovereign to punish aggressions committed by the aboriginal natives of this country, on the persons and properties of the British settlers, or by the settlers upon them, a right founded on the incontrovertible principles of the law of nature, but which is also beside the present question; however until it is shewn to the court, that there has been such a declaration by the primitive possessors of the soil, I do hold that my plea is good. I am aware that the learned gentleman is not bound to plead a general statute, but is there, I beg of him to inform me, an act of the British Parliament in existence declaring them to be subjects of the crown? is there a treaty of compact to be found in the public archives of this colony, which testifies their submission to British authority? It will be well to examine here the legal definition of the term "subject", for my argument frequently depends a good deal on the right understanding of terms. In Wood's Inst. (p. 22), I find this explanation of the word: "Subjects are," he says, "the members of the Commonwealth under the king, their head." Can it be pretended that these savages recognise her Majesty Queen Victoria as their head? Does their commonwealth acknowledge the authority of a sovereign, whose very name I feel confident the majority never heard of? We know the duties of the governor and governed to be reciprocal, and that in society a mutual compact is entered into for the advantage of both. But, except the recent establishment of the Protectorate and of the Border Police, both incorporated, more I presume, for the protection of the British settler and his property, than for the benefit of the natives, in what respect can they be deemed to have attracted the attention of the Government, so that they should be considered as subjects of the Crown? If my learned friend can prove to the satisfaction of your Honor, that these natives are British subjects, my reply is, the whole of the English penal code as in use among the European inhabitants of this country must then be applicable to them, and I present him with this inconvenient dilemma, - that the whole of those laws must be applicable to them, or none. How will this system operate? will he direct the magistrates to issue a summons and fine a native stock man for riding on the footpath on the streets of Melbourne, or will he direct that any of the savages be prosecuted for indecent exposure of person? to act consistently, he must visit them for abduction, (the usual mode of obtaining their wives,) bigamy, larceny, and other statutable offences; and should he ramble to the native encampment within a short distance of this town, he might find, perhaps, many old ladies who would come within the arm of the law, as "communes vixatrices" and the Clerk of the Works might then have some employment in the construction of ducking stools, or stools of repentance. The learned gentleman may, in reply, object that these are offences against the regulations of refined society of which their humble capacities can entertain no conception. I ask then, what has been declared by the legislature of this colony, in statutes in which particular mention is made of the aboriginal natives; by the 49th Sec. of 2nd Vict. 1, No. 18, a penalty of £5 is inflicted in case any person whatsoever shall sell or supply, or give any spirituous liquor, or mixed liquor, part of which is spirituous, in any quantity whatsoever, or any fermented liquor, or mixed liquor, part of which is fermented &c., to an aboriginal native of New South Wales, or New Holland. Why is the legislature silent as to the black? and who has ever seen a native punished for the crime of drunkenness? Again, last sessions a very laudable statute passed the Council, rendering the supplying the Aborigines with fire-arms penal: in this there is no mention of the opinion of the Council as to the criminality of the native having arms in his hands, for which he might be punished under the Bushranging Act, if a British subject; the act applies in its penal operation only to the European and indigenal population, and not to the aboriginal; and these being penal statutes must be construed strictly. Then, if not subjects, how are they to be proceeded against? by what authority can the Crown Prosecutor put an information on the file, and come in and pray the judgment of the court on an Aboriginal for an act of violence committed against another, that the jurisdiction is ousted[?] I do respectfully contend, and will refer your honor again to M. Vettel upon this point, book II, chap. VII., sec 97., page 264, (Mr. Barry read the passage) is not this conclusive that their assent to become subjects is necessary to establish the jurisdiction in this case. But I will adduce further to your honor the testimony of Mr. Locke on this subject, and in a particular, which I conceive bears forcibly on the question he says in the 8th and 9th secsions of the 2nd cap. of his work on Government having commented on an extract from Hooker's Eccl. Pol., as to the quality of men by nature, [here the learned gentleman read the passage] I do not go so far as to assert broadly that these men are aliens here, for that will involve the absurdity of their being aliens in their own country; but until it can be shewn that they have voluntarily submitted themselves to the thraldom of British power, the crown prosecutor stands in this court, in this instance, quoud, the aborigines of this territory "as a man of no authority," that there is not that necessary reciprocity existing between the aborigines and the crown, to invest the learned gentleman with any power or authority whatsoever by which he can render them amenable to the penal code of Great Britain for acts committed by them inter se, &c. I will only trouble the court with one more question on this head, and that from an American author, and one of no mean authority, and while my learned friend may express astonishment at my producing such a work in this court, I beg leave to remind him that the laws of the United States are based on the principles of the common law of England - that the statute law of England has in many instances been incorporated with that of the States, and that arguing as I now am on abstract principle, I can select none more competent than the authority of so learned a writer as chancellor Kent, whose ability would reflect the highest honor on any nation (His Honor allowed the passages.) I feel I can add no weight by any observations of my own, to the opinion of the gentleman, writing as he does in a country where the question of the rights of aborigines is so perpetually recurring, and I will conclude this portion of my argument by regretting that the task of addressing the Court is not entrusted to an advocate of greater legal ability than I possess, and by hoping that your honor will not allow to escape you many other cogent reasons which must present themselves to your mind, why as I have endeavoured to prove, this court has no jurisdiction here. But it will naturally be exclaimed on the other side, it is not enough to prove that this court has no jurisdiction, it is imperative on you to show some other competent jurisdiction, as a scholar of Oxford or Cambridge, when sued in the superior courts of Westminster, is bound to set out the peculiar jurisdiction of the University courts, and his privilege of being sued there; or an inhabitant of the Duchy of Lancaster, or of the Counties Palatine of Durham and Chester, must in his plea set out the separate jurisdiction of the Palatine and Duchy courts. I reply I can show a jurisdiction to which the prisoner is amenable, and that it is the proper jurisdiction. I affirm that the aborigines do take cognizance of acts of violence or acts of violence or aggression committed by one of a tribe (and that is most important) upon another, and am ready if called upon, to examine witnesses the most competent, from their intimacy with the tribes, and their knowledge of their habits, manners and customs, to form a correct opinion (I mean the Native Protectors), who, I am confident will convince the court, by their testimony, that the aborigines have among themselves modes of punishment for offences committed by one upon another of the same tribe, and that amongst them do exist fixed and determined regulations for the maintenance of their civil polity. This must be true and self evident to every person, who has allowed his thoughts to dwell upon the subject for a single instance, for without some such institution the bond of their association as societies would be dissolved and the end of uniting together as tribes would be defeated. Here if I do not trespass too much on the time of the court, I will with your honor's leave, read the opinion of Dr. Robertson, the learned and truly classical author of the History of America, whose writings are of deserved celebrity, and whose conclusions are deduced from the best sources, the testimony of those best acquainted with the nations of whom he treats Book IV., Sec. 4. However, the latter portion of this may appear to militate against me, at least the duty of avenging crimes devolving on the family and friends of the injured or slain, shows sufficiently clearly that acts of violence are not allowed to pass unnoticed; though the jurisdiction be limited to particular subdivisions of the tribe or even delegated to private individuals it will be sufficient. In no community is the destruction of human life viewed with indifference. No nation, however rude or savage, is so debased as not to be sensible of the criminality attached to the act of depriving a human being of his existence. The most inhuman savages testify their detestation of the commission of such an act, and their acknowledgement of it as a crime, by the poignancy of their grief, and in many instances by the atrocity of their revenge. "Non constat," that this prisoner has not already been submitted to the ordeal instituted by his tribe and acquitted; or if not, "non constat" bt if he be discharged by your Honor or by a verdict, he may have on his return to it to undergo a trial? "Then," says the learned gentleman, "let him plead 'autrefois acquit.'" What, by a jurisdiction they do not recognize? or are you to impute to this unlettered savage such a degree of legal acumen? And nothing to defeat my argument is to be drawn from the fact of the mode of punishment, which obtains among them, being different from that which is exercised under British law. The maxim of "Whoso sheddeth man's blood, by man shall his blood be shed," though promulgated by Divine revelation, has not at all times, and in all nations, been acted upon: even under the Mosaic dispensation, in Exodus xxi. 30, your Honor will find that under certain circumstances pecuniary compensation is permitted and enjoined to be given for the life of a man. That the same was common among the ancient Greeks, we learn from Homer, who in the ninth book of the Illiad, v. 633, in the speech of Ajax to Achilles, mentions the words "apoinan pretium quo injuria pensatur." Tacitus "De Moribus Germanorum," cap. xii. alludes to compensation of a similar nature being common among the Germans, and being paid in horses and cattle, "a part to the king or state, a part to the relatives of the deceased;" while among our Saxon ancestors in Britain it was well established under the name of "Werezild," or, as termed by their progenitors, "Moezbota"; and in the time of King Edward a scale was drawn up by the order of that monarch, by which the rate of compensation for the killing of the several members of the state, from the king to the churl, was regularly graduated. A similar mode of making atonement was common in Ireland under the name of "Eric." But we know that amongst the aborigines of New South Wales retaliation is common and frequent in occurrence, and I am prepared to prove that the sentence of retributive justice is carried unerringly into effect, sometimes after long intervals of time and not rarely by visiting the sins of the father upon the children. This is not only true with respect to acts of aggression committed by a member of one tribe upon another, for between the tribes there is in point of fact a perpetual hostility. No formal declaration of peace is, I believe, ever made, and, so to speak, among them the temple of Janus is never shut; but it is also true with respect to acts of violence committed by one of a tribe on another member of the same; and this is sufficient to establish a jurisdiction and to enable me to call upon the Crown Prosecutor to treat these people as "self-governing communities." - It will, no doubt, be objected in reply, that it is inconsistent and irrational to suppose that there can be permitted in this country such a species of imperium in imperio, or that two separate jurisdictions can be co-existent in the state. I am prepared to meet that objection, and to answer boldly that they can; and, in support of this, I beg to call to your honor's notice, the special verdict in the celebrated case of Mostyn v Fabigas, (reported in Cowper, page 161.) This was an action of trespass and false imprisonment, brought by a native Minorquin against Governor Mostyn; and by the finding of the jury, it appeared, that the Minorquins are in general governed by the Spanish laws, but when it serves their purpose, plead English laws. Can there be better evidence of the co-existence of two separate jurisdictions than this? The natives of that British settlement had the option of two jurisdictions: if they preferred the Spanish law, either from its being considered more favourable to their interests, more thoroughly understood by their judges, or likely to be more leniently dispensed, it was competent for them to apply to have their causes tried by that; if they had reason to believe the English law likely to secure for them a more agreeable form of redress, or a more complete adjudication of their rights, they could call for the sentence of a British court. Your honor is also aware that the Brehon law (called by Mr. Justice Blackstone the unwritten law of the Irish, but which Mr. Moore, in his history, proves to have been written,) was in force in Ireland down to the reign of Queen Elizabeth, notwithstanding the Irish chieftains took a solemn oath of allegiance to King Henry the Second at the treaty of Lismore, A.D. 1182, and while the English law was in force within the pale. The Norman French law is to this day administered in Canada; the Dutch law at the Cape of Good Hope? and your honor dispensed the Danish civil law for several years in British Guiana. I, then, do maintain, that there can exist, and have heretofore existed, within the bosom of the same state, a jurisprudence differing from that of the crown, and that two co-existent jurisdictions can legally have operation to decide questions involving the rights of different communities, occupying the same common soil. I will, then, assure my learned friend, that it is not, as he desires, by the exercise of a penal code of which they can entertain no conception, that he will succeed in civilising the aboriginal natives of this country; he will not, though he were to erect on every hill throughout the district a gallows as lofty as that on which Haman expiated his guilt, reduce these people to the condition of willing, consenting, and convinced dependants on the British crown. He may by the strong arm of the law hang, if he can, one half of the Aboriginal population, but though he may cause the remainder to evince a semblance of allegiance I tell him it will only be the reluctant, fearful, and insincere subservience of timid and ignorant serfs and not the manly generous loyalty of such subjects as it does honor to a British Sovereign to reign over. It is not thus the desirable object of civilization should be carried on by an intelligent nation in an enlightened age, and while I call on him to do his duty, which I am fully confident he will not shrink from, in protecting British life and property from aggression by the Aboriginal natives, he may rest assured that milder methods than he proposes this day must be had recourse to in order to prevent such acts as this prisoner is charged with, and their minds must be influenced in some more rational manner than by instituting a reign of terror. I cannot refrain from quoting a passage on this point (though I fear I have already wearied the court) from an excellent work, the perusal of which afforded me great pleasure, written by M. De Tocqueville, a French gentleman, whose authority is respectable; he is a lawyer, and travelled through America for the purpose of making himself perfectly acquainted with the American constitution, and displays considerable knowledge of the English and American institutions as well as of those of his own country. During his residence in America he had many opportunities of deriving the best possible information from the most authentic sources on the subject of the Aboriginal natives of America, and he says "The great errors of these legislators of the Indiana was their not understanding that in order to succeed in civilizing a people it is necessary to fix it, which cannot be done without inducing it to cultivate the soil. The Indians ought in the first place to be accustomed to agriculture." I have now presented to your honor some of my reasons in support of the position which I have endeavoured to establish, and while I feel bound to acknowledge the indulgence your honor has afforded me I must regret that the task has not devolved upon a gentleman of superior attainments and more capable of impressing them on your honor's attention. I trust that your honor will however be assured that having been assigned as counsel for this prisoner, I laboured to supply by industry what I lacked in ability, and if what I have advanced is likely to weigh at all with your honor but not sufficiently to induce you to grant an immediate discharge of this man, I beg leave to suggest that your honor be pleased to postpone your judgment, and request that some other gentleman of the bar may be associated with me who may succeed in advancing many other forcible arguments which must have escaped me.
Mr. Croke replied as follows - May it please your Honor, a task of no ordinary magnitude is imposed upon me in replying to the eloquent and argumentative address of my learned friend. I shall not waste the time of the Court by going into an historical detail of the colonies planted either by the Greeks, the Romans, the Phoenicians, Venetians, Spaniards, Portuguese or Dutch - but shall meet the arguments laid down by Mr. Barry at once, and therefore with the permission of the court, I shall lay down this proposition as the ground of my argument, namely, that it is not an encroachment or abridgement of the natural rights of the inhabitants of an uncivilized country, that civilized persons should plant a colony in their territory, that is the territory of the uncivilized, provided the colonists so settling do so under sanction of the government of the mother country. It is an established principle by the writers on national law, that where there is an excess of population in one country (that country being a highly civilized one), the superabundant population of that country may lawfully settle in the territory of an uncivilized state, provided a sufficient territory be left to the barbarous inhabitants of that state to enable them to acquire subsistence, either by following the pursuits of husbandry, or by the chase; and to illustrate that proposition I will cite a passage from Vattel on the Law of Nations. [Here the learned gentleman cited, from p. 57 to 166.] These passages, which I have cited for the purpose of establishing this portion of my argument, bear me out in maintaining that there has been no usurpation as respects the inhabitants of this country, because plenty of territory was left for the subsistence and support of the aborigines; therefore taking for granted that the crown had a right to establish a colony in the district of Port Phillip, it followed as a necessary consequence, that the common law of the mother country was transferred to the district of Port Phillip, as a necessary consequence of the establishment of a colony here, and in order to maintain the proposition I have stated, I shall take the liberty of calling your honor's attention to the third page of Clark, on Colonial Law, and also to 1st Blackstone, page 105. Then according to the principles which I have laid down, resting upon the authorities referred to, I do not think that any man will be hardy enough to deny that Her Majesty the Queen of England has dominion within the district of Port Phillip in as full and ample a manner as she exercises in either Yorkshire or Essex, and that consequently she has the power of punishing crime perpetrated whether by natives or by Englishmen residing within that district. If I be right in the doctrine which I am laying down, it follows as a necessary consequence, that the district of Port Phillip, having been formed into a distinct settlement on the Island of New Holland (leaving to the aborigines sufficient of territory for cultivation or the chase), that the Queen as I stated before is as much the Sovereign and exercises all the prerogatives which the law of England warrants her to exercise. The District of Port Phillip comprises a certain space of territory, comprehended as it were within an imaginary circle, and severed from the rest of New Holland. Any person, be that person a native of England, Ireland, Scotland, aye, or aboriginal native, while sojourning within that province or district, at all events if not a natural, owes a local allegiance to the Queen of England, receiving protection at her Majesty's hands whilst within the district, and consequently reciprocally bound by the laws that prevail within that district; therefore the natives inter se are as much amenable to the laws of the district for the protection they receive, as if they lived in any part of England. Suppose Bonjon and Yammowing were transferred to the county of York, and that there they fought, and one killed the other, can my learned friend deny that the slayer would be amenable to the law of England? Suppose two Frenchmen to arrive in England, and that they fought, and one killed the other, surely it will not be contended that the person so killing the other is dispunishable by the laws of England, forsooth, because he cannot be tried by the Code Napoleon. I shall add to the arguments which I have already laid down, one derived from the laws of nature herself. It is written on the mind of every man, even the savage, "That whosoever sheddeth man's blood, by man shall his blood be shed." This is an original precept of the law of nature, receiving, if possible, additional sanction from the established laws of society; but why do I say that persons, who are not natural born subjects, are made amenable to the laws of a sovereign state? Obviously for this reason, because receiving protection in the country in which they inhabit, they are bound to demean themselves as the other natural born subjects in the territory in which they live, as a return for the protection which its laws throw around them. I hope I have satisfied your Honor that the Queen exercises power and dominion within this territory, having their foundation resting, not only on natural and national law, but upon the express authority, the statute law of England, (here Mr. Croke cited the 24th Sec. of the 9th Geo. 4th, chap. 83, commonly called the New South Wales Act.) Before I conclude my argument upon this case, I beg to impress upon your honor's mind that this is a territory acquired neither by cession nor conquest, but by occupancy only, the laws under which every subject here was born, are his birth-right, notwithstanding he has transferred himself to a distant land, and that the district of Port Phillip is as much an integral portion of Her Majesty's dominions, as Wales or Berwick upon Tweed, is an integral portion of England; and all persons therefore, whether natural born subjects or not, living within the limits of the territory of Port Phillip, are amenable to the laws which prevail therein. I most humbly contend that the aborigines of this country having sufficient of soil left them for their own use, have no original rights to the territory of Port Phillip, and that they have merely an easement over the soil, and cannot disturb the possessions of the colonists settled therein. Under these circumstances I submit that the prisoner Bonjon, having committed an offence within the territory of Port Phillip is as much amenable to the laws as a British subject.
Mr. Barry rose to reply when he was interrupted by the learned Judge, who said there was no occasion for him to do so. 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 theives 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 dulness 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 infantcide, 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 Æneas 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,
H?c Portus alii effodiunt; h?c 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 actions 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 sprits, 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.
Friday, September 17, 1841.
His Honor said that before coming into Court that morning he had learned from Mr. Robinson the Chief Protector, a most singular coincidence with what had been urged by Mr. Barry the previous day for the prisoner Bonjon. At the camp of the aborigines in the immediate vicinity of Melbourne, two men were tried for murder by the native tribes, on the 14th instant, and it was certainly remarkable that Bonjon's trial for the same offence was expected to take place on the next day in the Supreme Court. The criminals stood a certain distance from the relatives of the deceased, who threw a certain number of spears at them. Mr. Robinson, Mr. Tuckfield and Mr. Thomas were present.
N. A. Fenwick, Esq., was then sworn in as Police Magistrate for Geelong.
A long conversation took place respecting the manner the depositions had been taken against Bon-jon by the Bench at Geelong, as to whether they had been taken in his presence, and if he had the same opportunity of cross-examining a witness as if he had been a white subject. Dr. Clerke, a witness in the case, stated he did not consider the prisoner had understood the nature of the evidence against him, neither did he think the case was properly interpreted for him. Mr. Tuckfield was of the same opinion.
The Crown Prosecutor declined under the circumstances to proceed with the trial at present. The prisoner was then remanded until next sessions, and the court adjourned sine die.
- Kercher, Bruce (September 1998). "R v Ballard, R v Murrell and R v Bonjon". Australian Indigenous Law Reporter (Indigenous Law Centre, University of New South Wales) 3 (3): 410. ISSN 1323-7756. Retrieved 2009-04-05.
- [one particular English translation of the original French]
- [this passage comes from book I, chapter XVIII, section 209]
- [this passage comes from book II, chapter VII, section 97]
- [the respondent is in fact known as Fabrigas or Fabregas]