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Decisions of the Superior Courts of New South Wales, 1788-1899

Aboriginal Defendant [1827] NSWSupC 10

Aboriginal defendant, Bathurst, murder

Source: Sydney Gazette, 29 March 1827

We do not by any means concur in the view taken by one of our contemporaries, of the case of the black native who has been recently discharged from the confinement in which he was for some time held, on a charge of killing Taylor, the stockman, at Bathurst.[1]  The line of argument adopted in the article to which we allude, proceeds upon this principle, namely, that the black should have been hanged for the satisfaction of justice; and that, because he was not executed, the lex talionis[2 ] should be put in force, and the wretched natives destroyed like beasts of prey!  "If," says the writer, "the blacks of this Colony cannot be tried by our laws, it seems strange that we whites should be tried for hanging them."  Unto this we answer that, though, as is said in another part of the article, "God himself has expressly directed the killing of murderers," he who has taught us, that every man shall be judged according to the light that he possesses: and this reason alone, should, in our opinion, be of considerable weight when applied to the consideration of the case upon which we are remarking.  The circumstance of a man, to whom the blessings of civilization and the knowledge of divine truth have been imparted - having a full conviction that by maliciously depriving a fellow creature of his existence he is outraging the laws, both temporal and eternal, will bear but little comparison with the benighted aborigine who owns, who knows no law but his passions, and with whom "revenge is virtue."  The proper end of human punishment is not the satisfaction of justice, but the prevention of crime.  This is the sole consideration which authorises the infliction of punishment by human laws, and not the retribution of so much pain for so much guilt; and whether the execution of a wretched black, for an act of violence, in which, after all that has been urged on the subject, it has never been satisfactorily shewn that he was the aggressor, at the same time that the barbarities committed on the natives, by the prisoners in the interior, is a matter of every day experience, would not rather partake of the nature of revenge, than justice; we think is hardly questionable.  No, no, let us endeavour by acts of kindness to gain the confidence of the natives --- let us rather labour to impart to them a portion of that light which we ourselves possess, and which alone renders us accountable creatures --- let us by civilization bring them to a knowledge of the laws of God and man, before we inflict punishment for breaches of those laws, or subject them to the mockery of a trial whose purport they cannot comprehend, and on which, from the nature of their condition, they have no means of defence.  As well might the savage beast of the forest be brought before the tribunal of the land, to answer for the blood he had shed in his lair; and with equal propriety might be called upon for his defence.

If the punishment which the law of England awards to the crime of murder, be insisted on as equally applicable to the untutored savage, as the more favoured Briton, the principles of common equity require that, as in the liability to suffer they are alike, so also ought they in the capacity to defend themselves, and that this is not so, we think, will hardly be asserted.  We have seen an unfortunate native placed at the bar, and called on to plead to an indictment under Lord Ellenborough's Act, before the Chief Justice, and we have witnessed the extreme reluctance with which His HONOR proceeded with the trial of a wretched creature for whom no interpreter could be obtained, who had no means of making any defence to the charge on which he was about to be tried, and who, in fact, was as much conscious of the nature of the situation in which he was placed, as a horse, or a dog under the like circumstances; nor will the execution of a native under the sentence of a Judge Advocate, in former times, at all change the complexion of the case.  The native to whom we allude, who was tried before the Chief Justice, was found guilty upon evidence that he did not comprehend, and which he had no means of contradicting; he was detained in prison for some time, and afterwards set at liberty.[3]

Notes

[1] See also Australian, 14 November 1827; and see R. v. Tommy, 1827.

[2] Law of retaliation; an eye for an eye and a tooth for a tooth.

[3] This may be a reference to R. v. Devil, 1825.

Published by the Division of Law, Macquarie University