Original Documents on Aborigines and Law
1797-1840
Published by the Centre for Comparative Law History and Governance of Macquarie University, and State Records NSW
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Document 45a
[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.
Note
[1] Plantation