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Original Documents on Aborigines and Law, 1797-1840

Document 105

Original Document 105

Letter from Mr Justice Burton to the Sec. of State relative to the aborigines.

[789] London, 17 th Augt . 1839


      In answer to your[1]  letter of this date requesting me to state for the information of the Marquis of Normanby whether any objection has ever been made to admit the evidence of the aborigines[2]  in the courts of New South Wales and if so, in what manner, I concur that defect in the administration of justice could be most properly remedied.   I have the honor to state that objections have certainly been made & sustained by the Supreme Court of NSW courts to the admission of such evidence[3]  but only on the two following grounds:

First where[4]  it has been impossible[5]  to communicate with a proposed witness[6]  on account of his ignorance of the English language and[7]  when no interpreter could be found to interpret between him & the Court, and:

Secondly where a proposed witness has been found[8]  to be ignorant of a Supreme Being[9]  and a future state.

The defect arising from these causes it is obvious can only be removed by religious instruction.

Whether[10]  it is expedient to introduce into the Australian Colonies any modification of the English law of Evidence now existing there[11].   His Lordship's inquiry I consider[12]  that in certain cases where the matter at issue is of [13]  minor consideration [14]  the statement of the Aborigines might be received as evidence, and I had the honor [15]  of preparing a Bill for their protection in New South Wales in which that principle [??] extend to all cases under that measure.   But I could not was recognised & acted upon.   It was transmitted by me to His Excellency the Govr . Sir Geo. Gipps together with a letter explanatory of its intention in the month of June 1838. [16]  but was not [17]  as I hoped it would be laid by His Excelly before the Legislative Council in consequence, as I [18]  presumed, of a recommendation of [19]  the Committee of the House of Commons that no measure of that kind should be of Colonial?   origin.

[20]  My rough Draft of the Bill referred to, & a copy of my letter to Sir Geo. Gipps, has been already transmitted by me to you.

[21]  [22]  I concur that it is a measure which would give satisfaction to the Friends of the Aborigines [23]  both in England & the Colony [24]  if [25]  it were adopted [26]  . Respecting cases of a [27]  degree of importance higher than [28]  are contemplated in that Bill [29]  ,   I [30]  [31]  am of opinion that no alteration in the law should be made [32]  .

I have the honor to remain,


Your obed [ ien ]t h[um] ble ser[van]t,

To W Labouchere , Esq.,

Senr Secretary of State for the Colonies,

& c., &c., &c.


[1] Deleted word: communi

[2] Deleted word: section

[3]Deleted words: in two cases under the following

[4] Deleted word: an

[5] Deleted words: impossibility has arisen

[6] Deleted word: from

[7] Deleted word: if

[8] Deleted words: not to acknowledge

[9] Deleted words: & be ignorant; Deleted words: & not to have been instructed

[10] Deleted words: any modification of the law of Evidence which exists in

[11]Deleted words: & which is in fact the law of England upon the subject, is a question of greater importance [and?] difficulty.

[12] Deleted word: however

[13] Deleted word: less

[14] Deleted words: in the case that

[15] Deleted words: in June 1838

[16]Deleted words: but the Draft of that B

[17] Deleted words: acted upon

[18] Deleted word: understood

[19] Deleted words: Lord Glenelg that as soon as

[20]Deleted words: The Draft of the

[21] Deleted words: Respecting cases of higher importance than are ??? ???

[22] Deleted words: I am of opinion

[23]Deleted words: committee, xxxxxxxxxxxxxxxxxxxxxx

[24] Deleted words: xxx xxxx xxx xxxxxx submitted it to

[25] Deleted word: they

[26] Deleted words: made acquainted with it

[27] Deleted word: higher

[28] Deleted word: there

[29] Deleted words: referred to

[30] Deleted words: am of opinion

[31] Deleted word: consider

[32]Deleted: xxx xxxxxxxxxxx xxxxxxxxxx to xxxxxxxxxxx

Published by the Centre for Comparative Law History and Governance of Macquarie University, and State Records NSW