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
