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Original Documents on Aborigines and Law, 1797-1840

Document 48

Original Document 48 

Arguments and notes for judgment in the case of Jack Congo Murrell. February 1836

[218]

February 1836

N.S.W. To wit Jack Congo Murral late of Windsor in the County aforesaid Aboriginal Native - In murder of a certain Aboriginal Native named Jabinguy in the Peace of God & of our Lord the King's ?? there being &c

Pleas: Protesting that he is not Guilty of the premises charged in the said Information or any part thereof In plea nevertheless saith that he ought not to be compelled to answer to the said information because he saith that the said Territory of New South Wales before & until the Occupancy thereof by his late Majesty King George the Third was inhabited by Tribes of Native Blacks who were regulated & governed by usages & customs of their own from time immemorial, practiced & recognised amongst them & not by the laws or statutes of the Kingdom of Great Britain & that ever since the occupation of the said Territory as aforesaid the said tribes laws continued to be & still are regulated & governed by such usages & customs as aforesaid & not by the laws of S. B & J C U & that he is a [219] Native black & denies that he is a subject of the King - or a subject of the laws &c - & that the deceased Jabinguy the same Not a subject &c & not under the protection of the said laws  stated his liability to be speared by the usage of his people for the crim [sic?] & that as proceedings in this Court or acquittal will operate as a bar to any proceedings of own people

An Affidavit of the Truth of the custom of "Standing punishment" by Mr Threlkeld - the missionary & states a case wherein a he knew a native to stand punishment as aforesaid.

Demurrer by Atty genl

Joinder by prisoner

Mr. Stephen in support of the Demurrer Prisoner an aboriginal native charged with Murder of another aboriginal committed at Windsor in this Territory.

No clear & nttd [sic?] authority - but the whole tenor of mch [sic?] cases as I can qu? is contrary to the Jurisdiction now claimed -

[220]

Blacks V Com Blackstone lays down Colonies subject to laws of S B

102

occupancy [sic]

1st law of England desert & uncultivated or by Conquest

2nd having prior laws cession upon treaty which exist till altered

if not contrary to Rex Dei

Blaksto does not seem to consider the N. American Colonies - as "desert or uncult" but by "conquest"

N.S.W although 'uncultivated' not 'desert' -  no conquest or Treaty

No driving out of the natives & therefore no Jurisdiction for  imposing laws

N.S.W. within neither class

The Subjects of Great Britain have come to reside amongst the Natives having laws & usages of their own -  & rather subject to the laws  customs of the Blacks in being, than the Natives to our laws

But the law of England are binding on the subjects of G. B. That is in respect of that allegiance they owe to their sovereign - of necessity -  in Nature & ??? & they are expressly or implicitly concerned in making the law but that does not apply to the present case --- the Blacks are not interested in supporting  the Govt & laws of G B  [1]

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the Destruction of the Gov would  be their interest They are crinimis [sic?] although not in a state of hostility - Subjection is emergent of Protection However, they are not protected by the laws - They are not admitted in the Courts here to me - even for the lands which perhaps they have inherited from time immemorial after the possessions of yesterday.

But the words of the indicst show that the prisoner not amesnable

in the peace of God & our Lord the King

Starks [sic?]Crim Law lays down that the words could be rejected as surplusage - referring to a case in 4 Coke Report 41 a Haydons Case

Exception In omission of these words

sid non allocatine [sic?] for the words are only surplusage

Rufs Ry Go Ca contra as to a murder ahoat [sic?]

294  In it amounts to an averment that he is a British subject.

Qn whether the averment is material or not

2 Salk 411 - Jamaica conquered from the ??? Govd by their own law

Held that in case of infidel [sic?] country their laws by conquest do not necessarily cease - But  only such as are against the law of God & Nature & that in such case where their laws are silent they are to be govd by the laws of the Conqueror according to Equity & Justice. Now here

Neither is this a Conquered Country nor are the laws of the Natives are not silent.

Calvin's case 7 Rept p 11 Rufus & the Divine Law as to murder plea of alien - whether Calvin born since ten [illegible - obscured]

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29th Feb 1836 an alien in England liable to its laws on account of the protection afforded.

Inconveniences of holding them subject to the laws of GB

viz  1. They have a right to proceed in our Courts for acts of aggressions against [2] one another  - as assaults &c we should be subject to follow this individual with the protection of the law - if acquitted

necessity wd compel us to receive their testimony - as they are not acquainted with our form of oath we should be obliged to receive their statements

Equal Justice  that one who kills a British subject should be amesnable to our laws - it is what their tribe would do to any of us - only in quality the inder [sic?]of doing it by a trial

Again, If a British subj killed one of them - he is answerable or account of his subjection instances the Jurisd of the Courts of New Zealand

But Here they can in case [law?] of then am?  state they own no allegiance to the King personal or local

The inconveniences amount to an impossibility

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The Atty Genl Prisoner charged with Murder committed in a Populous part of the territory of N.S.W in the neighbourhood of Windsor

Information [sic?]  states written [sic?] the prisoner

Plea to D

1st Objection I make is that it cannot be admitted to set up a law or usage contrary to the laws of England - Blakst. speaks only of Colonies by Conquest oc [sic?] Vattels law of Nations p 100  occupation of uncultivated lands

When England took possession of this Colony one of the Kings duties was to give protection to all the Natives equally as to the Blacks & whites

Do  those who came to visit it - & they who come within the trial Jurisd of this Court are amenable to it

Place Windsor

Can the Court say that Murders & Outrages can be permitted to be committed in such a situation (Inconvenience or the St? 1. Q)

Refers to Clarkes Colonial law Ciroc [sic?] or Colonies laws of an Infidel Conquered Country or Co  Ipso facto abrogated

(C.J notices the case of the East Indies)

Campbell v Hawkes 1 Cowp 204

The Court would not hold that the Natives of the Southern Island coming here are not subject to the laws of the Country

Words  in the Information the King's peace - I construe this to mean within the K's protection

that the K has power to keep the peace in the case King v William Sawyer between 2 subjects abroad the words are natural

[224]

The Court held that the word 'in the K's peace' were suffict to shew that the Decd was a British subjt.

As to this pleas

Foster 16 Kin Coss Case

a plea to Jurisdiction & Demurer

at Common law 'a man is triable when the fact was committed'

[3] How does that consist with with Case of the no British Subj in Refs & re C. J

Stephen in reply - Calvin's Case

Iree [sic?]Calvin  ??? ????? but 'litigation' which give Jurisdiction 'fides'

local allegiance by coming within the realm

here the individual has not come into the King of England's territory - but they are 'ante nati' in their own country

Every subject is presumed to be 'sworn To the King' how can that be presumed here

Cur Adv vult [?] [4]

[237]

The question which is raised upon the present Record is whether an aboriginal native of this Colony is amenable to the Jurisdiction of the Supreme Court for an offence committed within the Colony upon another aboriginal native which as stated upon the Record amounts by the Law of England to the Crime of Murder The prisoner or  by his Counsel made to state (that &c ... following the words of the plea)

and following the language of the plea which has been put upon the record it has been argued that the aboriginal inhabitants of this Colony  at the time of the first occupation by the English consisted of independent tribes having laws & customs of their own by which they were governed & that the English Inhabitants have settled themselves in the vacant lands of this Country with their permission and from those premises it was argued that the newcomers are rather amenable to the laws of the Country they have come to, than the natives to theirs - 2ndly it has been argued that none of those Circumstances attended the settlement of the English in this Country which would cause their laws to be binding upon its previous inhabitants, namely conquest or cession followed by an alteration of the laws by Sovereign authority

discovered and planted by English subjects but was inhabited by independent tribes having laws & customs of their own and that they have never surrendered their personal liberty altho acquiescing in the occupation of their lands

It was further argued that the aboriginal inhabitants of this colony cannot be regarded in the light of subjects or as owing any allegiance to the King of England on the assumed ground that the King of England does not [sic?] & cannot afford

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protection to them even after an acquittal that they are not admitted to sue in the Courts if the Colony & that as subjection & Protection are reciprocal duties between a Sovereign & people that where the latter cannot be afforded the power fails

and Further that holding the aboriginal nations amenable to the finding of the Court would be productive of great inconvenience as all their injuries amongst themselves being liable to would come to  might be submitted to the tribunal of the Country & it would be impossible to administer Justice between them on account of their ignorance of the obligation of an oath which our law recognises and it was therefore  concluded that the prisoner is not amenable Mr Stephen de [sic?] of the Court Correctness of the chief

I cannot however accede either to the part of the premises made on the part of the prisoner or the conclusions drawn from them

first because although it be granted that the aboriginal inhabitants of  New Holland few in number scattered over its vast territories which they neither cultivated or occupied in the sense of individual possession but finding their precarious subsistence in the pursuit of game, or in the waters which wash its shores - and existing merely in a state  simply  under a form of society that of individual tribes and families only just removed from the most simple state of nature - were entitled to be regarded by civilized nations as a free and independent people - & to the possession of all those rights which as such were

[ 239 ]

valuable to them - Yet I deny that they are fall under the considerations due to a Sovereign Nation their Government buy such a system of that these tribes are entitled to be considered as so many Sovereign & Independent States and that their loose & vague  practices  notions are entitled to be respected as accepted as `in the nature of laws by a Christian Community

Inasmuch as that depends not only upon their independence of any foreign control but upon their having also attained to such a situation in point of numbers & civilisation as a nation & to such a settled form of Government & such settled laws that civilized nations may & are bound to know & respect them & this doctrine I think The known history of the Colony their people contradicts their having attained to that state but their laws are only for  the several tribes have never owned any common superiority or any common bond of union, but have ever lived in a state of enmity with one another - their practices are only such as are consistent with a state of the grossest darkness & irrational superstition and although in some cases being a show of justice - are founded entirely upon principles particularly in their mode of vindication for personal wrongs upon the wildest most indiscriminatory notions of revenge

It cannot be said of such  that these practices are 'the actual [?] laws of the Country" & that they remain until conquest or cession and a change of laws by the King.  They are to be regarded only in the light of the lewd practices [240] entitled not to so much respect as the Brehon laws of the Wild Irish which the later still & cavond [sic?]to adhere to even in the  ????? of Queen Elizabeth contrary to the laws of England under which Ireland was the & had been long governed

& which were thus described in 7 Payne Rex 121 d 5 Edw 1 & 2 1 Blackst 101 in / "Proco quod ??? legus quibus utenter Hybernici Deo estabiles existantr, ex omni jure diponasit, adso quod legus causin non Qebeaut: - nobis et consilio mortis satis vivctuim extedicus, eisudum atend as concedure legus Anglicanas"

respecting these practices of these people I am furnished with a written statement made by the Revd Mr Threlkeld - the Missionary & the person whose affidavit in support of the plea filed, partly in explanation of the case there spoken to by him, & partly as to other customs, which coming from one  in his situation acquainted with their language & customs & a labourer for their good I consider entitled to be regarded as authority on the point.

Read as follows

I do not therefore think that the aboriginal natives of this Colony were or are entitled to be considered as Independent States governed by laws which civilized men can recognise saliltion [sic?] & of their own & which are entitled to be considered as laws until  respect & consequently that the reasoning founded upon that assumption fails.

[241]

The second argument which proceeds is founded on an assumption that they owe no allegiance to the Crown of England, will be ??? as subjects because they are not subjects & because the King of England does not & cannot afford them protection even after an acquittal - & that they are not admitted to sue in the Courts of the Colony - I am bound to say wholly without foundation

1st because they must be either subjects or aliens - if subjects which they or any of them may & are entitled to become by submitting at their own choice.  They are clearly entitled in part to all the protection privileges & advantages which is necessary to Executive Council laws of England have bestowed upon & subjects of the King & are subject to the same restrictions  For there is no distinction in law between them & others & the objection on that ground fails - If aliens then they are subject as long as they reside in the Colony to the laws, & must conform to them - they owe a temporary allegiance like all other aliens - & are entitled to equal protection whilst they remain - & may sue in the Courts of law for any rights which they may have been deprived or injuries which they have sustained.

I cannot permit the contrary position which his been maintained to pass without expressing my strong sense of its want of foundation on authority

Not only are the Courts of law open to them for their redress if injured, but the whole power of the Country & of the Executive Government may & I doubt not [242] would be executed as is due to them to afford protection when sought for. Whether from the companies [sic?] Of each other or  there were little to boast of in the British laws if the law of England could be & our [sic?] Executive Government & a local legislature & Courts of practice had been established in this Country to afford [allow?] no sanctuary to them   

[5] I cannot reply without animadversion to the notion , which has found its way upon the record & into the argument of the case, that even if tried before the courts & acquitted cannot be protected by the King from his own not under the protection of the king

The King cannot protect them from the barbarous usages of their own tribes - ??? That they can & will ??? The King can & will afford them protection by His Governor - in His Courts - & by every officer of Justice within the country & many modes readily be present to his mind in which it can be satisfactorily afforded & I can not allow It to be doubted for a moment that it will be [243]

[6] Note * there is to come in here a part of the argument which occurs much later viz beginning with "with respect to the Law of England on this subject &c" & ended at

[244]

* & that barbarities the most revolting & cruelties the most shocking may be transacted by them in the midst of a ** country Perfectly Christian Country governed by Christian laws founded upon Christian principles even in populous streets & in the eyes of Christian people without restrain - provided they be only committed upon one another it were a state of ???and in  It were a scandal ??? ??? England to all Christian & ???  ??? ???? Extend

Rome

Shield of law

With respect to the argument raised upon the alleged inconvenience of holding the aboriginal natives of this Colony amenable to the jurisdiction of the Courts on account of the reciprocal rights which they would have to resort to the Courts for redress of their own wrongs - & on account of the difficulty of receiving their testimony I do not think this part of the argument entitled to any weight The first part of it amounts only to this, that if all the Natives upon every occasion of dilemma [sic?] or injury resort to a Magistrate -  or to a Court of Justice, the official duties of those to whom the resort will be greatly increased - as to which I can only say that I wish all our duties were the ??? increased if necessary in such a way -

[245]

It would be a great step gained towards their civilization & even amalgamation into the if they could be bound thus to lay aside their own barbarous modes of obtaining redress, & to make the Laws the arbiters  that before  very long, such applications by & they should be encouraged to of so Rather than informed that the law ????? the ???? as is affords no refuge to them - It were a mild & merciful conquest thus to subdue them by gentle means - for their own good into the state of subjects

But it is to be feared that too little  ????? ???? if were would be a long period be made

Would ever be under by to us for this purpose to such authority to convey any considerable increase of official labor to the magistracy Whether Superior or Subordinate

As to the second part of this argument arising from inconvenience namely that respecting the testimony of persons in the prisoner's class of life is only of life It must be confessed that their present ignorance of the true God incapacitates them from giving evidence in an English Court their ignorance is the inconvenience but that may be removed - until removed they cannot be sworn to give evidence & so the objection is but the inconvenience will only be felt in cases were their evidence is required which will form no objection to their liability to the laws which does not include all cases when they are concerned.

Whether amenable to our laws or not, They [246] are & maybe frequently witnesses to transactions between our own people which it would be desirable to have their testimony in a Court of Justice & an inconvenience is felt in consequence of being thus denied of it But it may be observed this only shews how desirable it to that this objection inconvenience shd be removed by some system of religious instruction Until so removed , it is till in the power of the legislature if it be thought convenient to make such modification of the law of evidence respecting their testimony as may remove the inconvenience in all transactions at least between themselves, without infringing invading beyond the actual ???? of the case those principles of the law of England which are established for the safeguard of Justice. 

But whether so  removed or not it ??? at the ???argumentation of inconvenience plenium caler in lege it is not so all powerful as to exclude

It affords however no reason for rejecting a rule of law that some practical difficulty may be anticipated in its operation the inconvenience is ??? shown to be in the applicative

it would be illogical to ??? that conclude that all the aboriginal natives are excluded from the Jurisdiction of the law because some of them cannot be admitted to give evidence.

Having thus examined the arguments upon which the prisoners exemption from the Jurisdiction of this Court is claimed - I will proceed to state the grounds upon which I am of opinion that he is amenable to it - which are shortly these That an offence is stated upon the Record [sic?] to have been committed by him within this colony a place where, at common law & by the Stat 9 Geo 4. C. 83 the laws of England is the law of the land, & that this express Jurisdiction is expressly given to this Court in the present case by the 3d section of  that [247] Statute & That the Judges of this Court having taken upon themselves the execution of their offices under the authority of the Statute cannot themselves dispute.

It is not necessary therefore to resort to those general principles which are laid down   in the in our law books & ??? in our own law books, & also by writers on the laws of Nations upon which the same result must be arrived at - But inasmuch as great part of the argument for the prisoner has been founded on the injustice of holding him amenable who denies himself to be a subject of the King of England amenable to his laws in this Colony that it is upon general principals independently of the Stat 9 Geo 4 c 83 the prisoner is & ought to be amenable to the laws of the Country here the offence was committed, whether he be a Subject of a Stranger trespasses

I admit our own law writer Blackstone has not included

I concede that writers [sic?] of the mode of are of in which this Colony was established

[start of crossed out section in original ] I admit that Our own law writer Blackstone does not include in his statement of the mode in which Plantations & Colonies are established the precise case of relation to this colony for in the case where the lands are claimed by right of occupancy only, by finding them desert & uncultivated & peopling them from the mother Country" - it is evident from what follows that by the word desert he mean 'deserted' or 'uninhabited' so that  [end of crossed out section in original]

Our own law writer Blackstone had his attention solely directed to such Plantations & Colonies as Existed at the time he wrote, & affords no authority relative to the point now under [248] dispute nor suffer others to dispute the power of the legislature to make the law give the Jurisdiction or to determine neither can they determine this question otherwise than according to the law of England.

[start of crossed out section in original ]

Examination - But Vattel in his Treatys on the laws of Nations ??? of intrusion of our Country upon vacant lands on ???? has treated the subject logically & clearly & consistently I think with the law of right reason & Justice

Referring in Common law ch 10? Sec 203 to that general principle that the State belongs to all men in general being destined by their common health to for their     common habitation - & that the cultivation of it is an obligation imposed by nation or mankind - he argues as followed B. 1. Ch 7 s 11

Read

then ch 11 sec 209

[end of crossed out section in original]

Has treated the subject extensively & I think consistently with principles of right reason & Justice.

Founding his opinion on the general principles that the Earth belongs to all men in general being destined by their Common Creator to be their common habitation - he argues that the cultivation of it is an natural obligation imposed by nature  on mankind & that none has a right to appropriate more to himself than he uses - & that they who refusing to cultivate the earth choose to lead an idle & wandering life instead & thus usurp more extensive territories than they would have occasion for were they to ???? honest labor, have no reason to complain if other natives more laborious & too closely confined come to possess a part & thus tho' the conquest of the civilised empires of Peru & Alex?? Were a notorious usurpation, the establishment of many [249] colonies on the continent of North America may on their confining themselves within first bounds be extremely lawful.  The people of these vast countries rather own - can ???? inhabited them"

Vattel Bl ch 7 sec ? 1 & ch 1 d s 203 & again in Bl ch 18 see 209 Read

& treating of the origin of property & dominion in ch 1* see 203 & 204 he very justly traces it to the act of a people "fixing themselves on some part of it & appropriating   it to themselves questions of law for the purposes of cultivation" & argues that when this takes place they & the people thus settling themselves in may  the Country so appropriated becomes the settlement of the nation  & it has a proper & exclusive right to it. Which comprehend two things The 'domain' in virtue of which the nation alone way use it for the supply of its necessity & derives from it such advantages as it thinks propoerty [sic?] & 2 The empire a right of Sovereign command by which the nation ordains & regulates every thing that passes within it - Now applying these principle to the case before us it will immediately be seen that the aboriginal natives of this Colony, had not at the time of first settlement of the English so appropriated the territory as to be in a condition of the ground of a right to the soul to obtain to exclude others of the common family of mankind from so doing, & that consequently they had not acquired the rights of domain & empire.  It will however on per diem law be seen that what has been transacted in this Country by the English Nation has amounted to such an appropriation, & that the rights of domain & empire have been acquired thereby. 

& as to the point under consideration the authority of Vattel

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a certain tract of country before unappropriated by anyone has been taken into actual possession by the King of England under the Sanction of the Parliament comprehended within the following limits as contd in the ???? ??? the Govn 26th August 1835 Govt Gazette 9th September viz & by act of Parliament the Country so occupied is declared to be H M territ [sic?] & Colony of New South Wales &c Courts of Judicature have been established & the laws of England are declare to be those which shall be administered in it - and a local legislature is given to it - and in sufficient force civil and military to maintain the population.

[start of section written sideways in original] and parts of the territory have been granted to individuals & parts sold by their leave - and treated in every respect as property exclusively belonging to the nation.

"Extending from the Northern Cape a extremity of the coast called Cape York in the latitude of 10" 37 South to the Southern extremity of the said territory of New South Wales or Watson's Promontory in the latitude of 39" 12 & embracing all the Country inland to the Westward as far as the 129 East Longitude ???lemed from the meridian of Greenwich including all he Island adjacent in the pacific ocean within the latitude aforesaid & including also Norfolk Island."[end of section written sideways in original]

It cannot be doubted therefore that the English nation has obtained the rights of domain Sovereignty over the Country thus possessed whether in so doing any injustice has been done to the aboriginal natives - whether their rights and means of subsistence have been or may & might still to be, sufficiently provided for and regulated, are subjects of National concern, which it is not the business of the Court to discuss and I cannot permit myself doubt that

they will be cared for -- But the consequences the Nation has in fact appropriated established to its use the lands of which they made no use - itself in this Country and as [251] consequence it has by the law of Nations become subject to the law of England cf the laws, & no other crushing of all other laws for which Vattels law 1 vol ch 18 sec 205 (as well as Blackstone 1 Vol p ) is a clear authority.

"When a nation he says takes possession of a country that never yet belonged to another  i.e in the sense before mention of a fixed settlement and appropriation, it is considered as possessing then empire and sovereignty as the same time with the domain.  For since it is free and unoccupied, it can have no intention in settling in a Country, to leave the others the right of command of any of these which constitute Sovereignty.  The whole place over which a nation extends its Government is the seat of its jurisdiction & called its territory."

[start of section crossed out in original]

Now if the principle contended for by the prisoner's counsel be a true principle - the aboriginal native still stand in right of command & Sovereignty notwithstanding that they never had the right of Domain & empire had passed from them which is ???? & to the authority of Vattel is contrary [end of section crossed out in the original]

The same ????  The Sovereignty of the Country thus belonging to the English Nation - it is next to be considered in what light are the Aboriginal natives to be regarded & the law by the laws of nations they can belong only to classes to one of two classes -   Subjects or Strangers - If subjects then unless exclusive privileges are granted to them which may be done by the Sovereign country - but has not been witness & others [sic?] they must be governed by the General laws in common with

[252]

all other subjects - If strangers then also they are subject to the laws of the Country so long as they remain within it.

The inhabitants as distinguished from citizens ??? Vattel are strangers who are permitted to settle & stay in the Country.  Bound by their residence to the Society, they are subject to the laws of the State while they reside there; they are subject obliged to defend it because it grants them protection though they do not participate in all the rights of citizens.  They enjoy only the advantages which the laws or custom gives them.  The perpetual inhabitants are those who have received the rights of perpetual residence.  These are certain of citizens of an inferior order, & are united & subject to the Society without participating in all its advantages.  Their children follow in condt[sic?] of their fathers : & as the state has given to others the right of perpetual residence their rights posses to the posterity "Vattel B 1 ch 19 sec 213 again "The Sovereign may by virtue  of his rights of domain & empire forbid the entrance into his territory certain generally or in ??? Cases" Vattel B 1 ch 7 s 14 - and since he may do so he has doubtless a power to make the understanding on which he will admit them Vattel B 2 ch 8 sec 100.  "But even in Countries where every stranger freely enters the  Sovereign is supposed to allow him access only upon this tacit condc [sic] that he be subject to the laws: I mean the general laws made to maintain good order, & which have no relation to the title of citizen or of subject or the state. The perfect [sic?] safety the rights of the nation & of the prince necessarily require this condition; [253] and the stranger tacitly submits to it as soon as he makes the Country as he cannot presume on having access upon any other footing.  The empire has the right of command in the whole country, & the laws are not confined to regulating the conducts of the citizens among themselves: but they determine what right to be observed by all orders of people throughout the whole extent of the state.   Vattel see 101 in virtue of this submission the strangers who commit a fault ought to be punished according to the laws of the Country.  The end [sic?] of pains & penalties is ???? the laws respects, & to maintain order & safety Vattel sec 101 -

"For the same reason the disputes which may arise between the strangers, or between a stranger & a citizen, ought to be terminated by the Judge of the place & according to the law of the place - /sec 103/

 again sec 104 "The Sovereign ought not to grant an entrance into his state to make stranger fall into a snare: as soon as he receives them, he engages to protect them as his own subjects, & to make them enjoy as much as depends on him an entire security.  Thus we see that every Sovereign who has given an asylum to strangers, considers himself no less offended by an injury that may be done to him, than he would be by an act of violence committed on his subject."

Against re locus The state cannot arrogate to itself any power over the person of a stranger, who does not become a subject by entering into the territory.  The stranger cannot pretend to enjoy the liberty of living in the Country without respecting the laws: if he violates them, he is punishable as the disturber of the public peace, & being guilty with respect to  Sovn: but he is not obliged to submit like the subjects to all the commands of the Sovereign, but is such things are required from him as he is not willing to perform, he may quit the Country.  Free at all times to leave it, the people have no right to detain him but for veres parties re acans."

[254]

conclusive as I consider this course of reasoning to be upon the points which have been adverted to that the Sovereignty of this colony namely the liability of the aboriginal natives to the laws of this Colony & their right to full protection so long as they remain within it according to the principles of International law binding civilized nations & which it is giving to these people the greatest advantage so to consider then The Question affecting the prisoners must never the less be determined by the law of England ?? ?? inasmuch as the Parliament has by an act

An offence is stated upon the record to have been committed by the prisoner inasmuch as within this Colony a place where at Comm law & by the Stat 9 Geo 4 c 83 the law of England is the law of the land & Jurisdiction is expressly given to this Court in such a case by the 3rd section of that Stat.

It is there enacted that this Court "shall have cognizance of all pleas, civil criminal or mixed & jurisdiction in all cases whatsoever as fully & amply to all intents and purposes in New South Wales & all & every the islands & territories which now are or hereafter may be subject to or dependant upon the Govt thereof as His Majesty's Courts of Kings Bench Common Please & Exchequer at Westminster or either of them lawfully have or hold in England:" and that this Court shall be at all time a Court of Order & Terminer & Gaol Delivery in & for New South Wales & the dependencies thereof:" and that "the Judges shall have & exercise such & the like Jurisdiction & authority in New South Wales & the dependencies thereof as the Judges of the Courts of KB CB & Exch in England or any of them lawfully have & exercise & as shall be necessary in carrying into [255]effect the [???] Jurisdiction powers & authority [sic?] comnilow [sic?]to it."

This is  a law of the Sovereign authority which the Judges of this Court have taken upon themselves the execution of their offices under the authority of the Stat cannot themselves dispute nor suffer in this place to dispute the power to make neither can they determine this question otherwise than it would be determined in England if the facts taken upon the record had occurred there - and if this Court should hold that it has not Jurisdiction in a case where the Courts in England would have it then the words as amply & fully to all intents and purposes

If the Court of KB in England would have jurisdiction in such a case I have already shewn it would have jurisdiction it follows that this Court has also, otherwise it would not have jurisdiction in all pleas &c as amply & fully to all intents & purposes as that Court but there would be a plea cognizable again this Jurisdiction is not only given but no evasion from it is open to this Court - The words of the Stat are imperative - The Court shall have & the Judges shall exercise such & the like Jurisdiction &c - So that the Court cannot hold a case to be out of its Jurisdiction which is within the Jurisdiction of the Courts at Westminster 0/0

With respect to the law of England on this subject It is that an alien is subject to the law of the Country whilst he resides in it & may even be guilty of high treason in respect of that local allegiance which he owes in return for the protection afforded him

Blackstone says (1 Vol p 370) Local allegiance is such as is due from an alien, a stranger born, for so long time as he continues within the Kings dominion

[256]

0/0 (to come in at page 18) [see 0/0 above]

But it appears to me notwithstanding the opinion expressed by the Judges of this court on the 13th June 1829 upon the case of an Aboriginal native named Dirty Dick which was brought under the notice of the Judges (But not judicially) by the then Attorney General of the Colony - with a request that they would express their opinion.  For  his guidance - & the Judges did express an extrajudicial opinion of the case stated by the Attorney General that the Aboriginal natives of the Colony were not liable to the laws for offence committed upon one another" - That this Court has in effect denied that they are so Court by holding them liable in many cases for offences committed within the Colony upon the White Inhabitants; since they could not have been so held liable upon any known & recognised principle of law which is equally applicable to the case of offences committed against each other : the only legal principle upon which their cases could have proceeded being, that for offences committed within the Pailay [sic?] they are amesnable to the Jurisdiction of the Court - they are as follows

Copy -

[257]

* *

and as Lord Cope states this law concerning the condition of alien friends in Calvin's Case 10 & 11 in nistar [sic?] term.  Viz

The third kind of allegiance is [???] by the law & that is when an alien that is in amity cometh into England because as long as he is within England he is within the King's protection; therefore so long as he is here, he oweth to the K a local obedience or ligeance in that the one as it hath been said draweth the other

and again, Concerning the local obedience it is observable, that as there is a local protection on the K's part so there is a local ligeance of the subject's part  and for this he quotes also the case of one Sharley in 3 & 4 W & Ma who being in amity with the K came into England & committed treason & was indicted in it & also of Stephens

[258]

Ferrara de Gama & Emanual Lewis Timoco two Portuguese ??? who in 36 Eliz came into England under the Queen's safe conduct & joined in the am [sic?] within the realm against the Queen.

[259]

and protection ; and it ceases the instant the Stranger transfers himself from this Kingdom to another."

& the authority of Bank B 1 ch 2 Ki 5 is to the same effect.

Foster lays down Biscourd 1 p 188 That even if an alien be an ambassador he is liable to answer in the ordinary course of Justice for Murder & other offences of great enormity which are against the light of nature & the fundamental laws of all society [sic?] or other persons offending in like manner are and in a note appended is contained as case tried before that Judge himself at the gaol delivery for the city of Bristol in Augt 1758 where Peter Molines a French prisoner of war was indicted for private stealing in a shop, and being convicted of larceny under direct of the Judge - was burnt [sic?] in the hand, & cast o the prison appointed for French prisoners." And in the year 1654 during the protectorate of Cromwell  Dr Pantateon [sic?]  sa [sic?] the brother of the Portuguese ambassador  & who was joined in the same commission with him -  was tried convicted & executed for an atrocious murder  1 Bl p 254 in 4 Christians Ed

It is true that this proceeding has been condemned Vattel Mr Hume & Vattel consider the law of Nations by writers on the laws of nations on the ground that the delinquent was in the light of an ambassador & that this fact ought to be held sacred - but Lord Hale approved of it & the authority of Foster is to the same point - But whatever may be the case with respect to such aliens as stand in the Char? Of ambassador the law was never doubted as to an alien not bearing that character which is subly [sic?] proved by the Statute 28th [sic?] Edwd 3 c 13 sec 2 enacting that such person shall be entitled to a Jury de mediatictate lingual (which later however or account of the by special provisions of he Stat 9 Geo 4 c 83 inapplicable in this Colony)

[260]

Lord Coke's definition of the crime of murder & notes thereon shew the same 3 Just c 7

"murder is when a man of sound memory [sic?] & of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in ???? natural under the King's peace with malice aforethought either expected by the party or implied by law, so as the party wounded or hurt &c die of the wound, or hurt &c within a year &  day after the same."

And commenting upon the words any reasonable creature he says ' as man woman, child, subject born, or alien, persons outlawed, or otherwise attainted of Treason felony or premenice [sic?], Christian Jew Heathen Turk or other infidel, being under the king's peace -

respecting the latter term the King's Peace the King's Peace and the Peace if the land are synonymous as appears from that ancient law of Western last [???] 3 Could 1 c 1 - quoted by Lord Coke 4 Just 183 "the King wisheth and commands to that the peace of the Holy Church & of the law be well kept & maintained in all points" & "The King's Majesty say Machil vol 1 p 348 is by his office & dignity royal then principle conservator of the peace within all his dominions; & may give authority to any other to see it kept & to punish such as break it"

again 1 Bl 268 "all offences are either against the King's peace or his Crown and Dignity, and are so laid in every indictment for though in their consequences they generally seem (except in the case of treason & a very few others ) to be rather offences against the Kingdom than [261] the King yet, as the public, which is an invisible body, has delegated all its powers & rights, with regard to the execution of the laws, to one visible magistracy all attracts to that power, & breaches of their rights are immediately offences against him to whom they are so delegated by the public."

& accordingly all offences committed within his realm are & must be laid to be committed against the king 2 Hawk ch 25 ??? [???]1901

and the words of the commission of the Peace are

settled by Sir Ch Wery L Chief of K B in the reign of Qu Eliz are know yet that in  hereafter you jointly &* severally & every one of you to keep our peace in out County of W & to keep & cause to be kept all ordinances & statutes for the good of the peace & for the preservation of the same & for the quiet rule and govt of our people & to punish all persons that offend against the form of  these ordinances &c in the aforesaid County and to inquire of all felonies &c and of all & singular other crimes & offences of which the Justices of out peace may or might lawfully to inquire by whomsoever & after what manner sown [sic?] in the said County done or perpetrated.

From this it is evident that not only all those who are subjects but all who live within any country of the realm are under the King's peace or protection, & that any offence committed against any local person is committed against the King's Peace - all offences are local & triable at common law there the facts was committed as was laid down in Kinlock's case Foster 16 - cognizable by the Courts in the exercise of their ordinary jurisdiction.  But when an offence is committed out of the realm it is not triable at Common Law - which is the [262] cause that several statutes have been at different times passed to reach the case of offences committed and amongst them the Stat 33 H P c 23 for the punishment of [???] treasons & murders in whatever county within the King's Dominion or without each offence was committed, & under which Sawyer was tried whose case is reported in Seps & Ry Go ca 294 -

In that case inasmuch as the Statute could not be binding upon any parties out of the realm not being subjects of the realm, the allegations of Harriet Gaskett upon whom the offence was alleged to have been committed was the peace of God & our Lord the King & that the offence was Committed by Wm Sawyer against the peace of our Lord the King were material, for it was alleged upon the record to have been committed "in parts beyond the sea without England" & which unless the parties were British subjects was not an offence against the laws of England - First unless a person who is not a British subject is not whilst out of the realm unless under the King's actual protection, the King's Peace, & so to commit any offence against him is not an offence against the law of England, & a person who is not a British subject does not while out of the realm unless under the King's Flag, owe allegiance to the King & obedience to the laws on which principle only they are binding on persons out of the realm.  Without [263] some allegation on the record ???? to shew that both are British subjects the Jurisdiction would have been bad - in this case  therefore the words in the King's Peace as applied to H. G. Became material & after verdict [sic?] fully  imputed that she was the King's subject because the offence being alleged to have been committed on her out of the realm - she could not otherwise have been in the King's Peace - and so the averment against the peace as applied to Sawyer fully imported that he was the King's Subject because the offence being alleged to have been committed out of the realm it was only by virtue of his natural allegiance that he could commit it against the King's Peace.  It was in fact proved on the trial as was requisite that both were subjects of the King.

This explanation will reconcile what appears in Haydon's case 4 Coke rept 41a to be inconsistent with this decision viz (& Hawk B 2 ch 25 sec 73) "It hath been adjudged not to be necessary in an Judicature of death to allege that the person killed was in the peace of God & of our Lord the K &c though such words are commonly put with the Judicature for they are not of substance & perhaps the truth might be that the party was at the time actually breaking the peace" putting aside this reason another may be assigned more satisfactory - viz that love is meant upon an Indictment of Death laid in a County of the Realm i.e Southhampton & which at the law must be found to have taken place in the County & so the statement written in the County necessarily imports that the party [264] was under the King's Peace as all persons are within the Realm .  In such an indictment the words may well be considered as immaterial.  But where it appears eppes [sic?] the as in Sawyer's case it does that the act was committed out of the realm there some allegation must be used to shew that it was one of which the law of England can take cognizance- & for this purpose the words are material.

This case therefore which was cited as the words as in being that the peace of the King applies only to the case of a British subject does not support that argument.  [6a]

[7]

[267]

The Black Case

Rough Notes for Judgement

[268]

Question of Jurisdiction

How - to be determined

By the law of England or

By the law of Nations

Argues 1st as if the natives of this Colony were an independent nation having laws of its own & as if the English people had sat down amongst them with their permission - & that these were rather liable to the laws of the Country they have come to, that the natives to our laws -

2ndly not liable on the ground of want of mutuality - viz Protection - Subjection

3rdly on the ground of the inconvenience likely to arise

Answer Premises fail - not a civilised nation - having laws of their own - loose tribes of persons at enmity with one another - laws absurd & contrary to the Divine Law

To be determined by the law of England

viz Stat 9 Geo 4 c d 3 sec 3 & 24

Now verify to resort to General principles where there is a position enactmt of the subjt.  But Genl principles would produce the same result

1 Bl Countries Subj &c

Dv alimit

Foster 187 188

en Hawk 2.321. 344

So also the law of Nations

Vattel

Cases in Court against Blacks

upon what principle

[269]

[8]

the establishment [?] of a nation

within a country Vattel B. 1 c 18

Rules with respect to foreigners - Vattel B 1 c 14 s 219

Vattel B 2 c 8 sec 101 & c &

Principle of Intrusion by one Country upon vacant a waste lands of another founded by Vattel on 1st That the Earth was given to man in common & 2ndly that none has a right to appropriate more to himself than he uses.

Proved by in d 1 B 1 ch 7 the cultivation of the earth a natural obligation

2 by the origin of property & dominion being the appropriation of part of the land - whence he shews that unappropriated lands may be settled upon by others    

sec 203 - 204

& sec 209 the particular case of N.S.W

tofor [therefore?] so taking possession gives to the nation empire or Sovereignty at the same time with the Domain sec 205 & 219 ch 18

Note as incident to Sovereignty the Right of making laws

and that persons having no fixed Domicile

(viz "a habitation fixed in any place with an intention of remaining there Vattel s 218 B1 ch 19)

are Vagabonds ss 219

They or either subjects of 'strangers'

If subjects they owe a permanent allegiance to the Sovereign.  If Strangers they owe a local allegiance & obedience to the laws as long as they remain in the Country Black 1 vol 37 a

Proved by Vattel B 2 ch 8 see

99.100.101.102.103-104.105.110.

(turn)

See 1 Blackent 107 - How far the laws of England extend to Conquered or ???? Countries

Instance Breton [sic?] Law Ireland 1 Bl 100 -     

[270]

With respect to the Law of England on this subject

It is that an alien is subject to the law of the Country whilst he resides in it - and may even be guilty of High Treason in respect of the local allegiance which he owes in return for the protection afforded him

proved by Blackect [Blackst?] B 1 c 10  page 375

Foster 188 s   (case of Peter Molines) & c

& Even an ambassador who is exempt from allegiance - yet if he commit any offence against the law of reason & nature he loses his privilege

Black?? B 1 ch 7 p 254 Foster Go Law 188

Case of Dr Patalie Sa - brother of the Portuguese ambassador who was tried & executed for an atrocious murder during the protectorate (1654)

1 Black??? 254 n 4

But that aliens have ever been held subject to the laws note the provision for a Jury au medictate lunguo (2d Edwd 3 c 13 s 2)

If therefore such a plea were filed by an alien in the Court of K B in England there would be no doubt it would be held bad -

Refer to 9 Geo 4 c d 3 sec 3 - whereby the Jurisdiction inter alia of the Court of KB   is given to the S.C "viz Cognizance of all Pleas - & jurisdiction in all cases & as amply to all intents & purposes  as &c

But if the case of offences of Blacks be not within the Jurisdiction of the Court - then the S.C has not such cognizance & Jurisdiction as amply &c

Question not whether the Legislature might have done otherwise - but the legislation has settled the point

Cases in this Court of Blacks tried

In offences against Whites

Dirty Dick's Case 13th June 1829 - Judges Expd an opinion that the Aboriginal natives of this Colony were not liable to the laws for offences committed upon one another But noted

Notes

[1] In margin: "& interested in the maintenance of them They give up the law of nature in the law of Society".

[2] In margin: "taking their causes".

[3] In margin: "shows that a party committing a murder within the jurisdiction of this Court can plead his liability to the laws of another country".

[4] Page 225 to page 233 of the document relates to R. v. Maloney, 1836. This section of the document has been transcribed and attached to Note 5 of the Maloney decision. Page 234 - 236 is a separate document written by Threlkeld and is transcribed as follows:

[234]

 "to come in at page 4

Memorandum

The Aborigines of this part of the Colony are accustomed to bring to punishment those who are accused of Murder, whether from an act of violence, or from magical influence, but death is not always the result of their meetings for this purpose.  The case alluded to in the affidavit, was that of a young man named Mores, who killed a Black of the name of Crosby, who it appears, was drunk when he was murdered, but owing to the Quarrelsome disposition of Crosby when in that state, only a few spears were thrown, & Mores came away unhurt.  The old women & the old men consult together with the opposite party & settle the mode of satisfaction.  I am informed that near Port Stevens, if a young fat fellow is accused & the terms are blow for blow on the skull, the accused presenting his head for the first infliction, should he be killed on the spot, the party enquires of the Mother what shall be done with the body, to which [235] she must say do as you please, under penalty of death, when the party then roast the dead body & devour it.  Such is my information from a Black.  They of not punish for killing the Colored children, I believe a woman at our place has killed three or four, & no punishment has been inflicted.  The infirm are left sometimes to perish, at other times carefully attended to.  I have prevented a woman being buried alive, I have seen a Son burning the remains of his Mother, & doubt much her death previous to being committed to the flames.  Supposed Magicians are often brought to punishment under the idea that the deceased has been destroyed by the influence of Mur-ro-ken, a mysterious bone, see the Australian Grammar page 68.  Punishments, as they are termed by Europeans, are often made the mere pretext for plunder, in such cases always choosing the site of their courts of Justice contiguous to a cord field or nigh at hand to an unprotected settler.  At this moment a tribe is in pursuit of another tribe in [ 236] the vicinity of the upper districts of Hunters River armed with from 14 to 18 stand of arms borrowed from different individuals, & when hunger prefers them, or Lust presumpt them I dread for the property of distant residents & the safety of females in the Bush. The blacks are in the habit of making pretentions to punish individuals, merely to decoy other Blacks & their females to see the result, when they overpower the weaker part & carry off their women.  Then although they do punish crime in a certain sense, yet it would be mercy perhaps to them, were they placed under the protection as well as power of the British laws, & much more safe for the Country Resident & his family who under frequent circumstances, cannot prevent a murder in his own premises or a battle on the farm whether the weapons be the Spear or the Musket.

L. E. Threlkeld

Sydney March 2nd 1836".

[5] All the following crossed out until bottom of page 242.

[6] The following extract is a copy of the top of page 244: "& that barbarities the most revolting & cruelties the most shocking may be transacted by them in the midst of ".

[6a] The following is written across the page: "Black's case Argument notes for Judgt 1836 No 4".

[7] Pages 265 - 266 are Burton's notes on India. These notes appear to be unrelated to the rest of the document.

[8] Sideways in margin: "the Black case".

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