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

R. v. Lowe [1827] NSWKR 4; [1827] NSWSupC 32

murder, Aborigines, killing of, military defendant in crime

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 18 May 1827

Source: Australian, 23 May 1827

Nathaniel Lowe, a Lieutenant in his Majesty's 40th regt. stood indicted for the wilful murder of a negro black of the Colony, named Jackey Jackey, alias Commandant, alias Jeffery, at Wallis's Plains, in the month of August last.[1 ]

A second count stated the deceased to be a negro, whose name was unknown.

The prisoner being called on in the usual manner to plead to the indictment, Doctor Wardell rose and addressed the Court.

``May it please your Honors -

"Before the prisoner pleads to the indictment, I feel myself called upon in his behalf to object to the jurisdiction of this Court.  I do so now because I consider if he were to plead it would conclude him, and he would not be able to avail himself of the objection, which I think arises in this case, from the want of jurisdiction in this Court.  Upon the record it appears that Mr. Lowe is charged with having unlawfully killed a native black called Jackey Jackey.  Now, I imagine, that this Court can take full cognizance of the fact, that the native called Jackey Jackey is an aboriginal native. What that aboriginal native is, it is necessary that I should enquire, in order, by enquiry, to shew that this Court has not jurisdiction to try a British subject for an alleged offence, committed against that aboriginal native.  Assuming, in the first place, he is an aboriginal native, and that he was deprived of life by the defendant, as stated in the indictment, I ask what this aboriginal native is with regard to the British Sovereign, and in contemplation of the law of England.  Is he an alien enemy?  he is not, because his tribe is not in hostilities with the British Sovereign.  Is he an alien friend? he is not, because his tribe may be, and in fact is in a state of public hostility with individual subjects of the British Sovereign, and because no friendly alliance has ever been entered into. He is not a subject of the British King, because his tribe has not been reduced under his Majesty's subjection, and because there has been no treaty, either expressed or understood, between his country and that of the British King, and because in fact there could be no treaty between him as a member of NO commonwealth and the British King.  In the next place, as a subject of England, he would be liable to be tried according to the forms of the English law, but that he is not amenable to the English laws, nor to this Court, is clear, from two plain reasons.  First, he does not understand the forms of our Courts - he has not sense to comprehend the meaning of those forms by which he would be tried; and in the next place, if he did possess that knowledge he could not have that trial, which, by the Laws of England, he would be entitled to - The New South Wales Act provides, that in all cases, trial by a jury of seven military and naval officers, shall be "the trial by jury" of this Court, in all cases - that is in all cases contemplated by the British Legislature on passing this Act.  It is self evident that the Legislature never contemplated the aboriginal natives, or the trial of them, and therefore they are entitled to that mode of trial provided for foreigners by the common law of England, that is, they are entitled to be tried by a jury composed half of British subjects, and half of natives,[2 ] because the New South Wales Act cannot take away this right by implication, therefore the aboriginal natives cannot be tried by this Court for any offence by them committed.  How then are they to be tried, if any offence be committed by them?[3 ]  how are they to be punished?  Is the divine law, the law of nations and [?] because this Court has not jurisdiction to try [?]  If it be murder by the law of England to slay an aboriginal native, it would surely be murder to hang him by the judgment of this Court, for the reasons I have stated, because they have no understanding of that mode of trial to which they would be subjected, and to the forms to which they must submit.  In law, a native put upon his trial for or on account of a capital or other offence, would be considered as a lunatic, a madman, how then is retributive justice to overtake one who offends against the laws of God and nature, unless it is admitted that a punishment may be substituted for the punishment of a Court of Judicature.  I will assume that the aboriginal native mentioned in the information has committed a murder.  Now by the divine law it is decreed, `whosoever sheddeth man's blood, by man shall his blood be shed.'  Can that divine law be fulfilled, unless there be an instrument of Heaven to carry it into effect.  By this court the native who committed the murder could not be tried for want of a proper mode of trial.  Suppose the defendant has proved that instrument and punished him according to the divine law, and in a manner comprehended by the native and his tribe, can he be held to have committed any moral offence, much less an offence falling within the jurisdiction of this Court?  For want of power in a Court to take cognizance of an offence committed by an aboriginal native, this mode of punishment appears to be the only one by which at once the divine law can be fulfilled and the three great ends of punishment laid down by writers on the law of nations accomplished.[4 ]  The first of these ends being the reformation of the offenders, when the crime is of a nature to admit of reformation; the next is what is called caution to the party injured - protection from a similar offence; and the third being the general security by the force of the example.  But none of these provisions can be accomplished, if the native escape the visitation of punishment, or be beyond the reach of all law.  It is a general proposition, according to Grotius, that `the infliction of all exemplary punishments ought to be lodged in the government of every state' but he holds, as do all writers to the law of nations, that there are exceptions to this general rule, and as instances of these exceptions, pirates and freeholders are mentioned as not being subject to any `determinate Court of Judicature' and any man may draw his sword against them, and it surely is as reasonable that a similar power may be considered as lodged in an individual area with respect to offending aboriginal natives, out of the jurisdiction of every determinate Court of Judicature; otherwise they would be amendable to the avenging hand of Justice, in no shape whatever, and those who did resent their aggressions would be liable to be punished for constituting themselves a substitute for a Court of Judicature. It cannot surely be contended that hte [sic] natives of this Colony are subject to punishment at the hands of man in no shape whatever.  Puffendorf, among other writers, states a case, the identical case indeed I may assume now before the Court. He states if there be persons living in a state of nature and they commit an offence against another, who comes amongst them, that that other can, by the law of nature, take upon himself to punish them.  His reasoning is this - `It may sometimes happen that any private subject may assume the same right of defence which he would have had in a state of nature, for instance, if he happened to come into any place which belongs to no commonwealth, but continues in its primitive liberty of nature.  But then in this case it is to be considered, whether the person be assaulted by his fellow subject, or by a stranger.  For if we suppose, by the first, he is allowed the use of his own force to resist only the present danger.  But the further punishment of the injury must be left to their common Sovereign, except it appears that the person who makes the assault intends to return no more into his own country, and hath left nothing behind him that can make satisfaction for the injury.  But if a man be assaulted in any such place by a foreigner, he hath liberty, if he can prevail against him to bring him to the last extremities.' - According to this doctrine then the right of punishing crime is vested in the individual insured, or in his avenger.  And surely nothing is more rational in regard to beings living in a state of nature, than to deal with and punish them in a manner they can comprehend, and as they would punish another who had transgressed against them, and had fallen into their hands - surely nothing is more rational than for persons going into a strange country, even if it be a country in a state of nature, to remain submissive to, and contented with the laws and usages, such as they are of that country, into which they come. No injury can thus accrue to the natives, and no injury to civilised man.  If the natives understand not the forms of civilised nations, the members of these could not on the other hand be chargeable with inhumanity, in submitting themselves to, and enforcing those forms of punishment which the barbarous nation prescribe.  If then nothing more have been done by the defendant than to take the life of a man confessedly living in a state of nature, and who had shed the blood of a fellow creature, by the doctrine of Puffendorf and other writers of the same kind, he has not rendered himself amendable by that act to punishment, and consequently has not committed an offence failing wishing the cognizance of this Court.  I have taken for granted that the crime of murder was committed by the native, and that having fallen into the avenging hand of the defendant, the latter becomes the instrument of divine vengeance, substitute for a court of Judicature, to prevent the offender's escape, and has acted so towards society as best to fulfil the several ends of punishment.  He has in him held up an example to his tribe, that they shall not commit murder with impunity. Punishment and example being the objects aimed at, it matters not whether the offending native was deprived of his life in the heat of a conflict or deliberately. Unless this principle be admitted, and this course of reasoning assented to, and the validity of it be allowed, we must come to this conclusion, that aggression may be made by one set of people, and no power exists of inflicting punishment on them, as no Court of Justice has a power over them superior to the power of an individual.  It is of consequence, I contend, in which way retribution comes, whether in the moment of conflict, or by making a solemn example to the tribe, to shew them the punishment which they must expect to be inflicted on all as guilty as the sufferer. If I had followed some great writers - great lawyers indeed, I need not have looked upon the aboriginal native as one who had taken away the life of another.  Lord Bacon, in speaking of tribes of savages, less uncivilised than the aborigines of this country; in speaking of the American Indians says, that `they were to be looked upon as people proscribed by the law of nature, inasmuch as they had a barbarous custom of sacrificing men, and feeding upon man's flesh'.[5 ]  Puffendorf does not join in the idea of the general proposition, but allows that a right of war against them exists in those who people have been thus inhumanly treated.  Barbeyrac, as the commentator of Puffendorf, considers the custom so savage and so destructive to society, that all means are justifiable which are adopted for its abolition.[6 ]  According then to these notions, if the savage for whose murder the defendant is arraigned, had been guilty of no crime, but merely indulged in this propensity of feeding on human flesh, he would be held as a being proscribed by the law of nature, and to slay him would be no offence.  This, however, is only an argument subservient to the main argument, and I submit to your Honors that this Court has no jurisdiction to try one, who has committed an offence according to the law of nations, and the law of nature, but who, according to the tenor of the information, has inflicted summary punishment on an offender who could not otherwise be punished, or being punished could not be punished with so much effect...  There cannot be that fair and equal measure of punishment expected to be meted out in both sides, if mutual offences be committed, and punishment by the laws of God and man is held to be mutual among all mankind.

Mr. Wentworth. - In following the lucid reasoning of my learned friend, I will quote a dictum of Vattel, which goes to provide that a nation, after it becomes properly so called, is as such bound by the laws of nations as before it settled into that shape.  It becomes, therefore, necessary to go back and ascertain what are the rights of individuals before any regular or settled form of government becomes established among them.  In that identical state the natives of this country are placed at present, and it is clear that while they combine in this state, the right of any individual to punish the aggressions of another, is indubitable, that right, in fact, in the exercise of it, is essential to the common safety, because if the right of punishment does not exist in the individual, it exists no where; that this is the case, I believe, all writers of the law of nations concur.  By the New South Wales Act the jurisdiction of this Court in New South Wales is rendered co-extensive with the jurisdiction of the Court of King's Bench in England.  It is a preliminary question then what is New South Wales?  I think I shall prove that New South Wales in this act means such parts of the territory as are occupied by British subjects, and that this is the meaning of the act, I think the act demonstrates in another part.  I will not suppose this Court can be ignorant of the early annals of this country, because it must be within the judicial cognizance of this Court, as much as the battle of Hastings in the Court of Westminster - that we landed on these shores without opposition, that we took it, and remained in it without opposition, and that no conquest was ever made of it by his Britannic Majesty.  I find this act as well as in the instructions of his Majesty to the Governors of this Country, that no conquest has ever been made, because if any conquest had ever been made, it is clear that it was competent to his Majesty, by virtue of his prerogative, to delegate to his Governors various powers, which he withheld from them.  The King would have had the power to authorise his Governors here to make laws, and levy taxes, and not have been under the necessity to have had recourse to this legislature for any provisions - provisions of this Act of Parliament. I take it, therefore, that this Act of Parliament contains an implied legislative declaration, that no conquest has been made of this country.  If this be the case then, what is our situation in this country with respect to the aborigines.  To ascertain this we must refer to the law of nations.  Vattel, in speaking of countries like this, says, "that when many independent families (and the natives of this colony are such) are established in a country, they occupy the soil and demesne of the country, but have no empire among them, since they do not form a political society.  No person can take possession of that empire, because it would be to subject them, in spite of themselves, and no person is under condition to subject free born men, unless they submit voluntarily.  The land belongs to them exclusively, and one cannot, without injustice, deprive them of their land".  He goes on to shew that an establishment like that which has been formed here, may legally and properly be made, but not so as to exclude the native tenants of the soil.  According to this principle, and in consonance with a legislative declaration, what was the situation of this community in taking possession of the country.  It seems to me almost doubtful, from this jurist, whether taking possession of a country under these circumstances we have a right to establish empire among ourselves, and that our civil polity is for this reason repugnant to the law of nations; but at all events, our right can go no further than ourselves.  We could not, according to any principles, have assumed any right of sovereignty over them; they are the free occupants of the demesne or soil, it belongs to them by law of nations, anterior to any laws which follow from human institutions, and that right is not at all attempted to be infringed by this Act of Parliament.  Now, I think, on this point, taking them to be in that situation, I contend they are - I think a fatal objection occurs to the jurisdiction of this Court.  By what right, I would ask, can any one of them be arraigned in this Court.  Does this Act of Parliament mean that these men should be subject to the jurisdiction of this Court; if it does, how is it that so many of them, who have been known, and proved to have committed murders, have been turned out of the gaols? why they have been turned out rightfully, because they are not subject to our jurisdiction; they cannot be legally be tried for acts of this sort, nor can they be legally tried for any acts of aggression they may commit, be their character whatever they may.  How is it that many a native black dashes out the brains of his child; that many of them murder their wives.  How is it, I ask, that these things are daily witnessed, almost at the Magistrates doors, and no cognizance is taken of these atrocities.  It is because they are independent families, and come within the class of persons named in Vattel, possessing the free demesne of the country, without any Sovereign or laws among themselves, besides the native customs which are peculiar to their own race. Now, I take it then, that these people, by the law of nature, are not subject to the jurisdiction of this Court for that reason.  I take it, on the reasoning of my learned Friend, that they are men, no more subject to punishment by our code, than a set of idiots or lunatics.  I ask the Court, if this savage, stated to have been killed, even supposing the Court to have jurisdictions unacquainted with our language, was put to the bar to take his trial for an offence he might have committed, whether it would not be a solemn judicial farce, the mere mockery of a trial, whether, if found guilty, he could be sentenced and executed.  I say he could no more be executed on common principle, no more, I repeat, than an idiot, who in law possesses no knowledge of right from wrong, and in consequence is not responsible to human punishment. On these grounds it occurs to me a complete objection arises to the jurisdiction of this Court, because when men become incorporated into civil societies, and civil governments, they only give up the right of punishment to the Magistrate, on condition that he will afford them protection; they are co-extensive rights, and it appears to me to follow, as a necessary consequence from the inability of this Court to punish the aboriginal blacks; that it has no jurisdiction to punish any British subject, who may have committed an offence against them, be it of what nature or degree soever.  With regard to the jurisdiction of this Court, another argument, I think, may be raised, to which my learned Friend has adverted.  Suppose these blacks were in England, the jurisdiction of this Court is taken to be co-extensive in this colony with that of the Courts in England, for offences committed within its limits.  Suppose this native stated to have been murdered, was arraigned before a Court in England, he would have a right, according to the law of England, to demand a jury, a half of whom should be his own countrymen.  If such a jury could not be found, I take it he could not be tried.  Supposing he could (an impossible case) what would be the result?  Here are a set of natives one degree just above the beasts of the field - possessing no understanding beyond a confused notion of right and wrong, and that is all.  Men, who are certainly in such a state of barbarism and ignorance, that they could not be legally sworn in any Court of Justice.  What then would be the result of a man so situated, who claimed a right which the common law of England would give him?  Most likely no such jury in law was entitled to, could be by any means obtained, but if such could be found, how could they be impanelled and sworn in.  A native, therefore by insisting on his common law right in England, would not be amendable to punishment.  Even supposing him to be viewed as an alien, he would be an irresponsible person and might commit any act within the jurisdiction of that Court, without incurring the slightest punishment for his offences.  An Englishman, in this case, would therefore be bound to take the punishment into his own hands, seeing that no redress could be had in any other way.  But my learned friend has very properly stated his difficulty to find out what character to give these people.  He has contended they are neither alien friends, nor alien enemies, nor subjects.  That they are not subjects, I think the argument on this head has gone a long way to prove - that they are not alien enemies is also clear, from the arguments of my learned Friend - that no declaration of war has ever been made against them - that they are not alien amis is equally clear, from this circumstance, that there is no right of empire among them, no Chieftain in a condition, from their vagabond state, to make a treaty with the head of any civilised government.  If there be no public compact of this sort, there can only exist a tacit compact among individuals, which goes no further than to say, we will be at peace with you if you keep peaceable with us, and that compact would be sufficient to authorize the gentlemen at the bar to punish any of these natives - who violated this compact, in any way he might think fit.  It appears to me that the act charged in this information is an act over which this Court has no jurisdiction.  I therefore humbly submit this trial cannot be proceeded with.

The Chief Justice ---- The objections which have been taken to the jurisdiction of this Court, in the present case, rested on two grounds.[7 ]  As to those which rest upon the abstract principles of the law of nations; the Act of Parliament has put an end to them.  How far it is proper to pass an act, taking in these territories, and naming them the territory of New South Wales, and establishing therein our own rules and ordinances, is a question not for us to entertain.  It is sufficient for us to say that the territory is recognised as the Colony of New South Wales.  This is a judicial fact which comes within our knowledge; and beyond that we cannot go.  It is admitted that the law of nations is only the law of the land; so far as they owe their whole force to adoption. As to the law of nations, we take them no further than they are incorporated in our own code.  The Court looks at the Act of Parliament only.  If the Act of Parliament has recognised a sovereignty over this country, and recognised the application of English law here, we must look to the British law as established here de facto; and the Court is of that opinion.[8 ]  The next thing to consider is whether the place, where the offence for which the prisoner stands charged is said to have been committed, is within the jurisdiction of the Court.  It is stated to be at Wallis's Plains, in the district of Newcastle, in the Territory of New South Wales.  It is on the Information that the individual charged is a person bearing his Majesty's Commission, and is an officer in the 40th regiment.  He then is personally within the jurisdiction of this Court.  The offence charged against him is that of having taken away the life of a native; now, this native must be considered, whatever be his denomination, a British subject.  If not to be an alien friend, or an alien ami, in any case he is entitled to lex loci, and it is only under peculiar circumstances he can be excluded from that right.  The question then resolves itself into this, whether this case comes under the New South Wales Act.  Now, this Act of Parliament gives this Court jurisdiction to try all offences as in England;[9 ] and prima facie, this comes properly before this Court.  The Court then has jurisdiction.  As to the form of mode of trial, that we can only try according to the law.[10 ]  The present Act is too explicit as to the mode of trial; it points out a trial by jury of a certain number of officers.  I have also less difficulty in coming to a conclusion on this point, as the questions which have been raised appear on the face of the record itself.  I therefore do not lay it down with that force, as to say I am not open to conviction, if any other arguments may be raised in a subsequent stage of the proceedings, if rendered necessary.  With the present impressions on my mind, I do not see any grounds to prove the want of jurisdiction of this Court, so as to call on me to stop the case.[11 ]

Mr. Justice Stephen coincided in the opinion given by his Honor the Chief Justice.  There were no facts upon which to found a belief that the Court had not jurisdiction in the case before it.  The information charges the prisoner, who is to be put on his trial, with killing a negro of the colony - a native who is under the protection of his Majesty.  Nor was there any fact from which the Court were to infer but that he was a subject of his Majesty.  He, his Honor, felt very happy, on the present occasion, that no necessity existed for entering upon a discussion into what was, and what was not the law of nations themselves.  There were such contradictions with writers with respect to the situation of people living in a state of nature, that it was difficult to arrive at any fixed opinion.  His Honor was decidedly of opinion that the natives of this colony were within the protection of the laws; and that there appeared no sufficient grounds to arrest the trial.

The plea of Not Guilty was then received.

The Acting Attorney General stated the case for the prosecution; and proceeded to call witnesses.

Thomas Farnham sworn, I have been a constable in the employ of the police at Newcastle.  In August last I was a stationary constable at Mr. M'Intyre's in that neighbourhood, about seventy miles from Wallis's Plains. In the month of August last a native black was apprehended by Dr Little and placed in my charge, with directions to convey him to Wallis's Plains.  I did not know him; they called him Jackey Jackey.  I proceeded with him to the old Military Barracks at Wallis's Plains, and gave him up in charge of the military who were stationed at the barracks.  I arrived there in the evening.  It was shortly before the Quarter Sessions at Newcastle.  He was placed in the old Barracks and left there that night, with his handcuffs on; he was chained to a post in the side of the fireplace.  It is a hut boarded and flagged.  I left him there and went away to report what I had done to Mr Echford, the chief constable.  I stopped at the house of one Smith's, at Wallis's Plains, about a quarter of an hour the same evening.  About six o'clock the next morning I went to the barracks and saw the black still chained there.  Two soldiers were doing duty at the barracks at the same time.  About seven o'clock two soldiers took him to government house, where Mr Lowe was then living.  I followed them to government house and heard Mr Lowe order four soldiers to take him to the rear of the government house and shoot him.  They took the man about a quarter of a mile off in the bush.  The soldiers had their muskets with them; they placed him by the side of a tree, three of them fired at him.  I was standing close by; he fell and the fourth soldier who had not yet discharged his piece, went within a few yards of where the black lay and put a ball through his body.  Mr Lowe, the four soldiers, and myself, were the only persons present that I saw; there might be others in the bush looking on.  The mounted police were at government-house at this time.  I went up to the native, he was wounded in the jaw and in his head; he was quite dead.  We all came away and left him there.

Cross-examined by Dr. Wardell: Witness was present at the murder; he left the spot immediately after he saw the man dead, and set off for Newcastle the same day.  On reaching there he reported what he had seen relative to the native to Mr Muir, the chief constable.  He had some despatches to convey to several persons; cannot recollect to whom he carried them.  First went to Martin's; brought some despatches from Mr Little and some from Eckford.  I'm quite certain that he told Mr Muir of what he had seen it might be an hour or two after he got to Newcastle.  Does not recollect whether he took the dispatches to Mr Muir or the Commandant.  Some letters he put in the post office.  Does not know whether he told Mr Muir that evening or not.  Always spoke the truth when sworn.  Mr. Close asked about this business.  Witness denied knowing anything about it then.  Does not know whether he was sworn or not.  He denied knowing anything about the black fellow.  Mr. Close took what he said in writing.[12 ]  He can write his own name; but he does not always do it.  Sometimes makes his mark.  Was afraid to disclose then what he knew about the murder.  Cannot say he was afraid of being hurt by any person for telling what he knew.  He never told Mr. Muir that he had loaded a musket, and let fly at the black himself.  He has been punished for several robberies which were laid to his charge.

By the Court, - Witness called on the house of Mr Martin on his way in Newcastle.  Did not tell him what had taken place; he had no motive for withholding any information from Mr. Close the magistrate. It was at the instance of Mr Close that he made the statement he did.  He was called upon to state what he knew about the business.  He was first asked by Mr Close if he knew anything about the affair, and he said no.  He believes he was sworn, has not spoken the truth on oath both times.  Speaks the truth now.

Wm. Salisbury. -  I lived at Wallis's Plains in August last. I recollect a black fellow being brought in custody there by a man called Tom.  [The witness was told to look round to identify the person.] The last witness was the man.  I was sitting in my hut and saw two soldiers pass by with the black in their charge.  They took him towards government house, as soon as they came there saw him turn off in a different direction with some soldiers.  Cannot say how many; there were a number of them.  Mr Lowe was of the party. They took the black to a hollow behind government house, where they tied the man to a tree, was not near enough to see if any muskets were levelled at him.  I was about fifty yards off.  I heard the report of three muskets; and almost immediately after heard the report of a single musket.  Mr Lowe was there.  To the best of my knowledge Lee was one of the soldiers who fired, but can not tell the names of the others.  I went in after this and finished my breakfast.  A short time after a labourer named Newton came to the hut and ordered out two men to assist in burying the native.  Does not know the name of this black; but understood he came with Tom, the constable, from Patrick's Plains.  I assisted in burying him.  He was wounded in the cheek and through the head; he had been bleeding a good deal.

Cross-examined by Mr. Wentworth. -  I was fifty yards off when I saw the firing take place.  I do not know the day of the week or month that this occurred.  The constable called Tom might have been present at the time; but I did not see him.  If he had been there I think I could not help seeing him.  I was once tried before the magistrate of Wallis's Plains for stealing a musket; upon this charge I was sentenced to be transported from there to a penal settlement.  I was sent up to Sydney and put in the gaol, preparatory to being sent away some where.  Wallis's Plains until late years was a penal settlement.  I was transported to Wallis's Plains by the late Supreme Court for robbery.  I arrived in the colony originally a prisoner.  I was convicted in England of robbery, and transported here in consequence.  I was never punished but once at Wallis's Plains, which was for a robbery; and that is the reason why I was in confinement in the gaol.  I never mentioned anything about the affair of the black fellow until I was put into Sydney gaol.

Wm. Constantine. -  I am employed as a messenger at Wallis's Plains.  I remember about the middle of last year a black fellow, who was called Jackey Jackey being brought to the Plains by a constable.  I saw Mr Lowe and Sergeant Moore standing together, and talking with the black man, near the government-house.  I did not hear the conversation.  I had to go 200 yards for water; when I returned with the water the black man, the sergeant, nor Mr Lowe were there.  After I had put the water down I was going to my hut, when Sergeant Moore called after me; he desired me to get a pick, axe and shovel; he asked me where Jones was; he told me to get someone with me to assist in digging a grave.  I saw one Thomas Newton, who volunteered to go with me and dig the grave. He went to where the man was shot; about 200 yards from the government-house.  The black man was lying between two saplings; he was dead and was bruised on his face and head.  He had a red shirt on.  He was put into the grave by Newton and one McKoy.  Some time after this a man of the names of Jones, who was in the hut with me, told me there was to be an enquiry and begged me to say nothing about it.  I told him I would not unless I was put upon my oath.  Some time after this Jones and another man disinterred the body of the black fellow, and put it into a bag, with which they walked away.  This was done in the night time; the body was taken towards a creek.  I do not know who it was that asked them to take up the body.  They asked me to help them while I was there; but I felt myself sick from the decomposed state of the body and stood at a distance from the grave.

Cross-examined. - I was present when the black was buried and taken up; the body had lain in the grave between three and four months, it was rapidly advancing to decay.  I agreed with Jones to deny this, unless I was put on my oath.  I did deny it once to Dr Bowman; and I wish I had continued to do so.  I was of no trade before I came to the colony.  I was transported here; and have been punished several times while I have been here.

The case for the prosecution being closed by the Acting Attorney General.

Dr. Wardell. - I submitted that there was no evidence in the case to go to a Jury.  All the witnesses who had been examined, acknowledge themselves to be accomplices; their testimony was unsupported by any other evidence whatever.

The Court. -  That is a principle of law which the Court does not think falls within the present case.

Counsel for the prisoner then called witnesses -

Mr. M'Leod - I know a man named Salisbury, who has given evidence in this case; he bears one of the worst characters I ever heard of any man.  I would not believe him on his oath.  When a man was charged with stealing a gun-stock, he swore he made it for the accused; though it afterwards appeared that he himself had stolen it.  I have heard the man declare today in Court that he never was punished at Wallis's Plains.  I know he has been in the gaol gang there, besides other punishments.

Mr. Francis Williams - I am clerk to the magistrate at Newcastle.  I know the witness Salisbury to have been repeatedly punished, and placed in the gaol gang at the settlement for thefts.  I recollect when Newcastle was a penal settlement, Salisbury was then one of the worst characters in it.

Mr. Joseph Jones - I am brickmaker, living at Parramatta, I know Thomas Farnham who has been examined this day, I consider him a loose bad character, and I would not believe him on his oath.

Luke Addy - I have known Thomas Farnham for seven years past.  I believe he is now free by servitude.  I always considered him an idle bad character; his oath is not to be depended on.

Wm. Turvey - I am a constable at Newcastle.  I would not believe Thomas Farnham on his oath.  I know him to be a notoriously bad character.

Thomas Kelly -  I would not believe Thomas Farnham on his oath.  I employed him a little time ago to purchase some tobacco for me.  The money I gave him for this purpose he spent; and on being applied to for the tobacco, denied receiving the money from me.

Wm. Jones -  I was examined at the police office lately relative to a black man.  I know a man named Constantine; he is now in Court.  I never assisted him to take up the body of any dead black; he never asked me to do so.  I formerly lived in the same hut with Constantine at Newcastle.  I never had any conversation with Constantine on the subject of a black being killed there.

James Newton deposed to the same effect.

A deposition made by Thomas Farnham, the first witness called by the prosecution, before Mr. Close at Wallis's Plains, was put in and read to the Court.  The substance of the deposition was directly opposite to the evidence given by him before the Court.

Counsel for the prisoner here closed the defence.

The Chief Justice summed up - This was an information filed by the Acting Attorney-General against Nathaniel Lowe, of his Majesty's 40th regiment, for an alleged murder, stated to have been committed on the person of a native called Jackey Jackey, at Wallis's Plains, in the month of August last - there are two counts in the information, but they resolve themselves into one general charge - the first count states the deceased to be known by the various names of Jackey Jackey, alias Commandant, alias Jeffery - the second count described the deceased to be a person whose name is unknown - this is, Gentlemen, a case of some peculiarity of circumstances which must not pass over - it is one depending entirely on evidence - and the question will be, how far the case has been established?  I will assume a general proposition - in all cases that the natives of this country (while they treat this soil) are entitled to the protection of our laws, unless from circumstances it be shown they have thrown themselves out of that protection.[13 ]  It is sufficiently laid down in the information, that the individual named as a negro is entitled to the protection of the law, which will not allow another to lay violent hands on one of them, much less to destroy him.  There is another particularity I would just mention - the person who stands charged on this Information is of military profession - Gentlemen, you are all military men - and I am sure I need not have to impress on your minds the obligation you are under to your country in the discharge of the important duties you are vested with as jurors - you will not permit your minds, unguardedly, to stray from the evidence which has been adduced before you, nor be influenced in any way from any previous impressions you may have entertained respecting the case, to the prejudice of the prisoner[14 ] - but, Gentlemen, I will now draw your attention to the evidence itself.  This is a case entirely in your province to determine; for it rests entirely on the credibility of the witnesses.  It is not upon the score of competency - for then it would have been our duty to stop the case without putting it to you.  Some legal points have been raised, as to their competency, but I think them set aside, by referring to what the witnesses have stated - they were merely lookers-on, and took no further interest in the matter - their testimony is, however, liable to this objection, they have told different stories at different times - the principal witness is one Thomas Farnham - this man tells a very plain tale, and appears to make out a plain case - but there are various doubts raised as to the credibility of this witness - that this man has a very bad character, I take there can be no question.  A number of persons (four or five) have deposed that they would not believe him on his oath, from the general bad character he bore - but his evidence is open to a much greater objection - he has himself stated that he was called on by Mr. Close (a Magistrate), to say on oath, what he knew about this firing, and he then denied - this statement, then, is completely contradictory with what he has said today.  It would, I think, hardly be possible to make out a clearer case of perjury in a witness - he even admits the fact of perjuring himself; therefore his testimony, if it were single testimony in this case; would be sufficient to call on the Court to stop it.[15 ]  But then, his testimony is corroborated by a witness named Salisbury - in the main he corroborated the statement made by Farnham - nor could I find a single circumstance that this witness mentions which has not also been mentioned by Salisbury - now this witness is also liable to the same objection.  Mr. McLeod speaks to this man's general bad character; but the particulars which follow, his being convicted of perjury, are conclusive - this is a strong circumstance, and I will put it to you, Gentlemen, whether a witness so situated is worthy of your belief?  It is also a strong circumstance that this man tells you he never mentioned the subject to any one, but a man of the name of Natty, until he was in prison. Looking therefore at the evidence of Salisbury and Farnham, and the one does not say a single thing more than the other, I put it to you if it does not look like evidence capable of having been made up.  I express to you no opinion on the case; it is entirely one for your sole consideration.  Then, there is another witness called by the prosecutor, and that is Constantine - this evidence does not state so many particulars as the other two, but he speaks to a new fact.  Now, he admits himself that he denied knowing any thing about the matter in question - this is an extraordinary circumstance - and he then goes on to state a particular fact - the disinterment of the body of the dead black.  He says one Jones was present and assisted him in digging up the body - but this man and another of the name of Newton are called in the defence, and they deny what Constantine has said, relative to this particular; there is, however, one exception to be made to the evidence of these two men, inasmuch if Constantine's story be true, they were present, aiding and assisting in disinterring the body - you see then, Gentlemen, the three witnesses for the prosecution labour under a considerable weight of objection - at the same time something extraordinary appears in this case.  Respectable evidence might have been called to negative particular parts of the transaction which is stated to be truth.  There was Martin - he was in no way implicated.  There were Serjeant Moore, Mr Muir and others similar situated with regard to this case.  Why were not these persons produced to contradict the various statements that have been put forth?  Why they have not been called can only be with us a matter of conjecture, and therefore not fairly to be considered to the prisoner's prejudice.  We must take the evidence before us, and see how far that evidence has made out the case, and how far that evidence is entitled to belief.  If the prisoner has committed the offence imputed to him, then it is for me to tell you, gentlemen, he has broken the laws of this country.  If the evidences examined against him are to be believed, then he is guilty of the offence; but if on the other hand you do not believe them, then the case is not proved, and you will give the prisoner the benefit of the doubt you entertain of the credibility of the witnesses.

The Jury retired for about five minutes, during which time the utmost impatience was manifested by the auditors in Court to hear the result.  The Jury having returned, and silence being restored, the Foreman delivered a verdict - NOT GUILTY.

Loud and general applause accompanied this announcement of the verdict.  The numerous friends of Lieutenant Lowe crowded round to congratulate him on the happy termination of the trial.  A second burst of applause was given as he triumphantly left the Court. [16 ]

Notes

[1 ] This trial was also reported by the Sydney Gazette, 21 May 1827.  Dr Wardell and W.C. Wentworth acted for the prisoner, and W.H. Moore, the Acting Attorney General, for the crown.  The Gazette gave Jerry as one of the aliases of the victim, not Jeffery. For some of the background papers to this case, see Miscellaneous Correspondence document numbers 10, 14, 14a, 15, 15a, 15b and 18.

On 4 September 1826, eleven landholders at the Hunter River petitioned the governor for military protection against hostile Aborigines.  Attorney General Bannister advised a declaration of martial law, which Governor Darling refused.  Darling thought that the underlying cause of the trouble was the conduct of the stockmen, not the Aborigines.  See Darling to Hay, 11 September 1826, Historical Records of Australia, Series 1, Vol. 12, pp 574-578.  He did, however, send troops: see Darling to Bathurst, 6 October 1826, pp 608-623.  (This despatch included background documents from the period of this case.)

Darling first reported the shooting of Jackey Jackey to Earl Bathurst on 6 October 1826 (Historical Records of Australia, Series 1, Vol. 12, 623-628.)  The governor ordered an inquiry, and in the meantime told Bathurst that "There can be no doubt of the criminality of the Natives, who have been concerned in recent outrages; but, though prompt measures in dealing with such people may be the most efficacious, still it is impossible to subscribe to the massacre of prisoners in cold blood as a measure of justifiable policy" (p. 623).

The depositions from the inquiry are at pp 625-628.  The soldiers who gave evidence all said that three natives were shot in attempting to escape.  Lowe himself said that the shootings were in accordance with his orders to shoot those whom the soldiers knew to have committed atrocity, where there was no alternative way of stopping them from escaping.  The three had been tied by ropes but managed to get free.  One of the soldiers said that one of the shot Aborigines was later "hung up by the Men of the Farm as a terror to the other Blacks."  See also Historical Records of Australia, Series 1, Vol. 13, p. 177, for Bathurst's initial reply.

Some of the original correspondence is in the New South Wales Archives Office, 5/1161 (Miscellaneous Correspondence Relating to Aborigines).  A letter from McLeay, the Colonial Secretary, to Captain Allman, Commandant at Newcastle, 28 August 1826 (p. 64) shows that there were three Aborigines shot by the Mounted Police under the command of Lieutenant Lowe.  The inquiry, however, only concerned the killing of one man: McLeay to Scott, 9 October 1826, p. 72.  (The same reference contains a lengthy report of conflicts between Europeans and Aborigines in the Hunter district, written in 1826: pp 42-49.  The following pages provide the background to this case against Lowe.  One of the first hints of trouble was a reference to an Aborigine having been killed in "peculiar circumstances": p. 60.)

Darling reported this case about the killing of Jackey Jackey to Hay on 23 March 1827, stating that the initial inquiries were unsatisfactory. The first inquiry was poorly conducted by the local magistrates.  The Chairman of Quarter Sessions was then sent to the district, but was shipwrecked on the way.  Darling said that the matter was then placed in the hands of the Acting Attorney General (W.H. Moore), who was sent to Wallis Plains.  Darling continued: Moore "is endeavouring to find one or two individuals, whose testimony he understands would be important; but I strongly suspect that they will be kept out of the way, the inhabitants of every class being at least indifferent to the fate of the Natives, and unwilling that any one, that has been actuated by the same feelings, should be made answerable for his conduct."  In the meantime, Lowe was detained in Sydney, and the Executive Council repeatedly discussed the case.  The inquiry was suggested by Forbes C.J.  "There has been no desire on the part of Government to screen the party, though circumstances, which could not be controlled, have prevented the enquiry from being prosecuted with the success which was desired.  The matter being in the hands of the Civil Power, I have of course abstained from interfering with the Party as Military men".  In this despatch, Darling was responding to criticisms of him by the Monitor.  Source: Historical Records of Australia, Series 1, Vol. 13, pp 179-180; and see p. 317. 

Darling reported the case to Bathurst on 4 June 1827 (pp 399-413), enclosing copies of Moore's reports and letters, and the depositions at the magisterial inquiry.  Moore complained that he "was not a little mortified to find that I, who was an entire stranger in the neighbourhood, was obliged to give up all hopes of having any assistance rendered to me by a person, who, from his local knowledge of the place, was so capable of giving it, and which, however unpleasant it might be, I conceived it was his duty to do without hesitation" (pp 400-401).  He was referring to a magistrate in the Wallis Plains district, Mr Close.  Close thought that he was under investigation, rather than Lowe.  One witness, Robertson, declined to answer a question whether he had discussed the case with Lowe.  The cover up was broad: "there was a general fear in the neighbourhood of any one acknowledging what he knew".  There was an unwillingness to talk, from the lower class of persons to the higher.  This leaves the strong impression that Lowe got away with murder.

[2 ] The Sydney Gazette, 21 May 1827, gave this jury the name of de midictate linguae.

[3 ] The Sydney Gazette, 21 May 1827, reported Wardell as saying here: "Was the Divine law, and the law of nations, to be violated with impunity by an aboriginal native, in a state of nature, because he could not be tried?"

[4 ] The Sydney Gazette, 21 May 1827, said that Wardell attributed this to Puffendorf.

[5 ] This apparently gratuitous reference to cannibalism may have been influenced by R. v. Jamieson, 1827, which was tried only two days earlier.

[6 ] The Sydney Gazette, 21 May 1827, recorded Wardell's argument here as follows: "Puffendorf did not go quite so far; for, he says, that if they only eat those who die, he does not see the offence; but Lord Bacon is followed up by the commentator, Mr. Barbeyac, who contends that even had the natives committed no offence, but possessed that propensity to eating human flesh, they would justly be proscribed, that an exterminating war carried on against them would be justifiable and destroying one of them would be no more than destroying that which was offensive to heaven.  Puffendorf also, speaking of civilized nations said, that where a party was a[g]grieved, he ought to appeal to the public Magistrate; but when this was done, and no redress was afforded, where was the offence in the individual taking the law into his own hands.  The main strength of the argument which he urged was, that the Court had no jurisdiction to try one who committed no offence, according to the law of nature, but who had put himself amongst a tribe of savages, had submitted to their laws and usages, and only did that whilst among them, which they might have done to him.  For these reasons, therefore, he submitted, that there was a want of jurisdiction in the Court;  because the prisoner had merely done that which was recognized to be lawful according to the notions of the tribe; and also, whether the act was lawful or not, it was still without the jurisdiction of the Court, because there was not that fair measure of punishment on both sides, which was contemplat[e]d by the British law.  This member of a savage tribe having taken the life of a British subject, according to the laws of nature, his life was justly forfeited."

[7 ] The Sydney Gazette, 21 May 1827, said here: "An objection has been taken to the jurisdiction of the Court on two grounds, namely, the abstract principles of the laws of nations, as applied to the subject before us, and also as to the Act of Parliament not giving jurisdiction."

[8 ] The Sydney Gazette, 21 May 1827, said here: "The lex loci must therefore be our guide."

[9 ] The Sydney Gazette, 21 May 1827 recorded this as: "This Court, like the Court of King's Bench, in England, has a territorial jurisdiction."

[10 ] The Sydney Gazette, 21 May 1827 recorded this as: "As to the objection that the Court can only try certain cases according to the common law, I apprehend the Act has do[n]e away with that by prescribing a particular mode of trial in the Colony."

[11 ] Given his background as Chief Justice of Newfoundland, it is not surprising that Forbes C.J. decided this way.  In 1819, while Chief Justice there, he chaired a meeting which aimed to achieve reconciliation with the native people who periodically visited Newfoundland: Le Guyt to Leigh, 3 June 1819, Provincial Archives of Newfoundland, GN 2/1/30 Vol. 30, 1819, p. 162.

[12 ] The Sydney Gazette, 21 May 1827, said here: "A deposition given before Mr. Close, in which the witness denied any knowledge whatever of the transaction, was put in and read."

[13 ] The Sydney Gazette, 21 May 1827 recorded this as: "He would at once assume it as a general proposition, that the natives of this country were within the protection of the British laws, unless it were shewn, by some circumstance in proof, that they were thrown out of the protection of those laws, which otherwise prohibited any person from laying violent hands on, much less destroying them."

[14 ] The Sydney Gazette, 21 May 1827 gave a different account of this: "Another peculiarity in the case was, that the person charged was a Military Officer, bearing His Majesty's Commission, as likewise were the Jury, with the exception of one gentleman, who was an Officer in the Navy.  He did not point to that circumstance in order to remind the Jury of the obligation which they were under as to their oaths, but to entreat of them to divest from their minds all feeling and prejudice, and to consider the case of Lieut. Lowe, of His Majesty's 40th Regt. differing only from any ordinary case of the same nature, so far as he was proved innocent."

[15 ] According to the Sydney Gazette, 21 May 1827, Forbes C.J. said here that Farnham had offered no explanation for the apprehension he said he felt, which would have been some justification for his inconsistent testimony.

[16 ] The Duke of Wellington requested a copy of the trial notes: Chief Justice's Letterbook, 1828-1835, Archives Office of New South Wales, 4/6651, p. 158.

Published by the Division of Law, Macquarie University