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Original Documents on Aborigines and Law, 1797-1840

Document 47

Original Document 47

[210]  Judgment of Mr. Justice Burton in the Case of Jack Congo Morral on a charge of Murder

[1] 

Inasmuch as the Court is[ 2] unanimous in overuling the plea which has been filed for the prisoner denying the jurisdiction of this Court over him for the offence stated upon the Record to have been committed by him - thereby deciding that the aboriginal natives of this Colony are amesnable to the laws of the Colony for offences committed within it against the persons of each other and against the peace of our Lord the King, - I do not consider it necessary to state at large,[3 ] the reasons upon which I have founded my individual opinion.  But[ 4] I think it right[5] to state briefly the grounds of my opinion which are these:-

[211] 1st[ 6] although it be granted that the aboriginal natives of New Holland are entitled to be regarded by Civilized nations as a free and independent people, and are entitled to the possession of those rights which as such are valuable to them, yet the[7] various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization, and to such a[8] form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own.[ 9]

2ndly, That a tract of country before unappropriated by any one has been taken into actual possession by the King of England under the sanction of Parliament comprehended within the following limits as contained in a proclamation of His Excellency the Governor 24th August 1835, Government Gazette 9th Sept. following - viz, ``extending from the Northern Cape or Extremity of the [212] Coast called Cape York in latitude 10o 37' S. to the Southern Extremity of the said Territory of New South Wales or Wilson's Promontory in the latitude of 39o 12' S. and embracing all the country inland to the Westward as far as 129o East longitude reckoned from the meridian of Greenwich including all the Islands adjacent in the Pacific Ocean within the latitude aforesaid and including also Norfolk Island."-3rdly, That the English nation has obtained and exercised for many years the rights of Domain and Empire over the country thus possessed and particularly it is designated by an Act of the Imperial Parliament, 9 Geo 4. c. 83. as His Majesty's Settlement and Colony of New South Wales; and Courts of Judicature have been established and the laws of England are declared to be those which shall be administered within it and a local legislature is given to it.4thly, An offence is stated upon the Record to have been committed by the prisoner within this Colony, [213] a place where by the Common Law and by the Stat. 9 Geo. 4. c 83. the law of England is the law of the land, which if committed by him at Westminster in England, would render him amenable to the Jurisdiction of His Majesty's Court of Kings Bench;- and by 9 Geo 4. c 83 it is enacted that this Court "shall have cognizance of all pleas civil, criminal, or mixed, in all cases whatsoever as fully and amply to all intents and purposes in New South Wales and all and every the Islands and territories which nor are, or hereafter may be subject to or dependent upon the Government thereof as His Majesty's Courts of Kings Bench, Common Pleas, and Exchequer at Westminster or either of them lawfully have or hath in England," and that this Court shall be at all times a Court of Oyer and Terminer and gaol delivery in and for New South Wales and the Dependencies thereof" and that `` the Judges shall have and exercise such and the like Jurisdiction and authority in New South Wales and the dependencies thereof as the Judges of the Courts of Kings Bench, Common Pleas, and [214] Exchequer in England or any of them lawfully have & exercise, and as shall be necessary for carrying in effect the several Jurisdictions, powers and authorities committed to it."5thly, This Court has repeatedly tried and even executed aboriginal natives of this Colony, for offences committed by them upon subjects of the King, ever since the opening of the Court in May 1824; and there is no distinction in law in respect to the protection due to his person between a subject living in this Colony under the Kings Peace and an alien living therein under the Kings Peace.The authorities for these positions are Vattel's Treatise on the law of nations B1. ch. 18 sec 203. 204. 205.  Ib. Bl. C7. ยง. 81. ch 18. sec 209. ch 19. sec 213.  B2. ch 7 sec 94. Ib. ch 8. sec 100 & 101. 103 104. 108:-Blackstone's Commentaries 1 Vol. page 254 sec 4. Christian Edition and page 370.Hawk. P.C. B.l. ch. 2. sec 5.-Fosters Crown Law Disc. 1. p.188-Stat. 28 Edw. 3. c 13. sec 2Lord Coke in Calvin's Case 4 Coke 10 & 11 and the cases of Shirly 3 & 4 W. & M. and Stepheno Farrara de Gamo and Emanuel Lewis Tinoca 36 Eliz. therein mentioned.-

[215] Respecting those difficulties and inconveniences and hardships which have been referred to as likely to arise from this decision, I will briefly say that I think they have been much over-rated.  Some which have been stated, as for example the probability of multiplied business to Magistrates and others concerned in the administration of Justice, I look upon as little likely to occur, but if occurring certain to produce the best results as to the[ 10], Natives themselves: difficulties, it is the business of the local legislature to remove and hardships I doubt not that His Majesty, or those vested with the exercise of His Royal Prerogative of Mercy, will be ready in every case which may justly call it forth, to extend it to people so circumstanced as they.-  But I am of opinion that the greatest possible inconvenience and scandal to this community would be consequent if it were to be holden by this Court that it has no Jurisdiction in such a case as the present - to be holden in fact that crimes of murder [216] and others of almost equal enormity may be committed by those people in our Streets without restraint[ 11] so they be committed only upon one another![12 ] & that our laws are no sanctuary to them.

Notes

[1] This is probably the most important judgment delivered in Australian colonial history. For this version as well as those published in the newspapers and comments, see R. v. Murrell and Bummaree, 1836.

The following words were inserted in the text, but crossed out:

[2 ] now

[3 ] as I should otherwise have found it my duty to do had I remained alone in that view,

[4 ] as I know that considerable doubts, from whatever cause arising, have been formerly entertained upon this subject, although I have entertained none,

[5 ] due to the public

[6 ] Because

[7 ] y

[8 ] settled 

[9 ] and as such entitled to retain them even after conquest itself until changed by the conqueror.

[10 ] m 

[11 ] remark 

[12 ] to hold indece

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