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Original Documents on Aborigines and Law, 1797-1840

Document 45a

Original Document 45a

Hearing notes re jurisdiction Murrell. 1836

[198]    

Friday, 19th February 1836

Rex v Congo Murral

Aboriginal

  Argument on Demurrer

Before His Honor Chief Justice Forbes

                        Mr Justice Dowling

                        Mr Justice Burton

 

Mr Stephen for the Prisoner

Prisoner stood charged with Murder at Windsor a place certainly within the Jurisdn of the Court

            No certain Authority [???] Blackstone's (Law of Pln[1] & Colony but no law in [??] present case

1st vol. Occupancy

All English laws are then in force

Right of conquest & driving[?] out Natives

This Colony was not Desert or unoccupied

They are issuance[?] - the destruction of the British Government is their prosperity.

Protection is not afforded to them

Blacks: Protection includes & necessarily involves, Subjection, Infn - lets[?] out that the Individual murdered is in the peace of our Lord the King.

[?]

Coke Casi[?] Vol 4

Heydons[?] Case

Rex v Sawyer[?] Respect[?] & Ryan

C.J. How far can be alleged that a man in France was in the King's Peace.

[199] 2 Salkeld 411} Held that in a conquered country the Laws do not arbitrarily[?] cease?

Coke's Reports citing Calvin's Case

Inconveniences of holding these Blacks subjects of the King. In such a Case they may appeal from Courts.

            Bring actions for personal recomptn.

Again this Court must protect the Prisoner if tried from the usage of his own Tribe

We don't understand their Laws-

We cannot frame an Oath to bind them

Case of Black killing a White

The Tribes will not take the punishment of the Black & therefore it is reasonable that the Court should try the Black. -

Reverse[?] the Case of a British Subject killing a Black.

New South Wales

No Allegation[?]

Mr Attorney General

Charged with a Murder in the populous part of the Territory of this Colony further[?] the Jurisdiction of this Court.

Calvin's Case

Suppose a White kills a Black in the Bush & the Blacks take the White & subject him within[?] Custom of spearing & escapes alive

Can this be pleaded in bar to an Informn agst the White under the Laws of his Country for the Murder

Judgment deferred

 

11th. April 1836

Judgment delivered by Judge Burton.

Notes

[1]  Plantation

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