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Original Documents on Aborigines and Law, 1797-1840

Document 45

Original Document 45

Brief for argument on demurrer re Murrell. 1836


[194] In the Supreme Court [1]

Criminal Sessions                                                           The King

February 1836.                                                                   against

                                                                                    Jack Congo Murral

                                                                                    Aborigine

Information filed states that Jack Congo Murral late of Windsor in the Colony of New South Wales, Aboriginal Native not having the fear of God &c. on the 21st of Decr 1835 with force and arms on the King's highway between Richmond and Windsor, in the Colony aforesaid in & upon a certain Aboriginal native named Jabinguy in the peace of God & of our said Lord the King then &c.- feloniously &c.- and that sd [2] Murral with a certain tomahawk &c. And so the Atty saith that said Murral said Jabinguy did kill and murder & murder agt   the Statute &c.& agt the peace &c.-.

Plea - said Murral in his proper person having heard the Infn read, protesting that he is not guilty for Plea saith that he ought not to answer because that sd Territory of New South Wales before & until the occn[3] by his late Majesty King George 3rd was Inhabited by Tribes of Native Blacks who were regulated by usages & customs recognized &c. amongst them & not by the laws and statutes of Great Britain .

That sd Murral is a Native Black belonging to one [195] of such tribes & is nor at any time here before was a subject &c. nor subject to the Laws or Statutes of Gt Britain.

That Jabinguy was a Native Black belonging to one of such Tribes &c. & not a subject.

Averment that under & by such usages & customs sd Murral can & may be made to stand punishment for & be exposed to spears &c.

Avers that no proceeding for sd supposed murder or verdict of acquittal will or can operate as a bar or be pleaded against such usages & Customs and this he is ready to verify & prays to be dismissed.

Demurred. General Demurrer to the Plea

Joinder in Demurred

 

Argument fixed for Friday 19th February 1836

Case & Observations

This is entirely a question affecting the Jurisdiction of the Court or rather one under which the Supreme Court has to determine whether it has the power to punish offences committed within the King's Possessions by Aboriginal natives against Aboriginals or not.

It is clearly laid down as part of the Law of Nations that a nation may by its subjects colonize any uninhabited Country & [196] Vattel states that a nation may colonize a Country the inhabitants of which are so few as not to be able to cultivate & occupy the whole extent of territory-

It being clear therefore that New South Wales must be taken as a Colony by occupancy under this rule & in so far as regards English Subjects the Law of England is ipso facto in force so far as is applicable to the condition of the colony.

In Hall v Campbell 1st Cowper p 209 Lord Mansfield in his judgement states as a proposition

That the law and legislative Government of every dominion equally effects all persons & all property within the limits thereof.

[Side note: Vattels L Natns

[Blackst Comy[?] p.100

[Calvins Case

[7 Reports 34]

Offences committed by slaves upon each other are tried by a Court of Justice & sentence of Death has been passed & [?] in general of our West India Islands. See Clark on Colonial Law [?]

[197]

In the Supreme Court

Criminal Session

February 1836

Rex

v

Murral/Aboriginal

Briefs for Argument on Demurrer and

to Plea

 

Mr Attorney General

 

Crown Solicitor

 

Notes

[1]We would like to thank volunteer Ron Hulme for his transcription of this very difficult and most important document.

[2] said

[3] occupation?

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