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

Sir,

      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,

Sir,

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

To W Labouchere , Esq.,

Senr Secretary of State for the Colonies,

& c., &c., &c.

Notes

[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