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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Murrell and Bummaree (1836) 1 Legge 72; [1836] NSWSupC 35

Aboriginal land rights - Aboriginal law, recognition of - Aboriginal defendant - Aborigines, legal status - Aboriginal evidence - Forbes C.J., Sydney Herald's attitude towards - Sydney Herald, attitude to Forbes C.J. - Forbes C.J., departure and retirement of - emancipists, jurors - jury trial, emancipists on juries - Burton J., ambitions of - Dowling J., appointed Acting Chief Justice - Kinchela J., appointment of- terra nullius

Supreme Court of New South Wales

Forbes C.J., 5 February 1836

Source: Sydney Herald, 8 February 1836[1 ]

On Friday last, an Aboriginal Black named Jack Congo Murrell, was indicted in the Supreme Court for the wilful murder of another Aboriginal Black named Jabbingee, at Windsor, when his Counsel put in the following ingenious and puzzling plea.

In the Supreme Court,

The King v. Jack Congo Murrell.

``And now the said Jack Congo Murrell in his own proper person comes, and having heard the Information aforesaid read, and protesting that he is not guilty of the premises charged in the said Information or any part thereof, for 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 and until the occupation thereof by his late Majesty King George the third, was inhabited by tribes of native blacks, who were regulated and governed by usages and customs of their own from time immemorial, practised and recognised amongst them, and not by the laws of statutes of Great Britain, and that ever since the occupation of the said Territory as aforesaid, the said tribes have continued to be, and still are regulated and governed by such usages and customs as aforesaid, - and not by the laws and statutes of Great Britain.  And the said Jack Congo Murrell further saith that he is a native Black belonging to one of such tribes aforesaid, and that he is not now, nor at any time heretofore was a subject of the King of Great Britain and Ireland, nor was nor is subject to any of the laws or statutes of the Kingdom of Great Britain and Ireland.  And the said Jack Congo Murrell further saith that the said Jabbingee in the said information named, and with the wilful murder of whom the said Jack Congo Murrell is and by the said information charged, was at the time of such supposed murder a native Black belonging to one of such Tribes as aforesaid, and was not then nor at any time theretofore a subject of the King of Great Britain and Ireland; nor at any time was subject to any of the laws or statutes of the Kingdom of Great and Ireland, or under the protection of the same.

And the said Jack Congo Murrell avers that agreeably to and under and by such usages and customs, he the said Jack Congo Murrell if suspected of the murder of the said Jabbingee can and may be made to stand punishment for the same, and can and may be exposed to such and so many spears as the friends and relatives of the said Jabbingee, with the supposed murder of whom the said Jack Congo Murrell is and stands charged in and by the said Information may think proper to hurl and throw against the body of him the said Jack Congo Murrell, may be endangered and brought into jeopardy for the said supposed murder of the said Jabbingee.   And the said Jack Congo Murrell also avers that no proceedings may be had or taken against him the said jack Congo Murrell, in the said Supreme Court of New South Wales for the said supposed murder, nor any verdict or acquittal which may be had or follow thereupon will or can operate as a bar, or be pleaded as such to the proceedings which will or can be had against him the said Jack Congo Murrell, by the said relatives and friends of the said Jabbingee, with the supposed murder of whom the said Jack Congo Murrell stands charged in the said Information, agreeably to the before mentioned usages and customs, and this he is ready to verify.  Wherefore he prays judgment, and that by the Court here he may be dismissed and discharged from the said premises in the said information specified!

His Honor the Chief Justice said the Plea was a very ingenious one, and asked the Attorney General how he should proceed, when that Gentleman replied that he must take time to consider the Plea.


Forbes C.J., 6 February 1836

Source: Australian, 9 February 1836[ 2]


Saturday. - At the opening of the Court this morning, the Chief Justice gave it as his opinion that the plea put in by Mr. Sydney Stephen on the part of the Aborigine accused of the murder of one of their tribe was perfectly just; as for any acts of violence committed by the natives against each other, even if it amounted to death, they were subject to the custom of their own laws; the plea put in was not what is commonly called a plea in abatement, he was aware of no insufficiency therein, and it must have been got up at great trouble by the learned counsel.  The subject was one which called for the earnest attention of the legislature, yet he thought that in the present case the better way would be to try the general issue, and he pledged himself on the part of the court that the accused should have the advantage of any objection that might arise.

Mr. Stephen declined acceding to this proposition as the subject was one of great importance, and in which he wished to have the opinion of the whole court.  It was postponed accordingly.


Forbes C.J., Dowling and Burton JJ, 19 February 1836

Source: Sydney Gazette, 23 February 1836[ 3]


The King v. Jack Tongo Murrell, charged with the murder of another aboriginal named Definger, was placed at the bar of the Court.  In this case a demurrer had been filed to the indictment by Mr. S. Stephen, who had been appointed by the Court to defend the prisoner.  Mr. Stephen now arose to address the Court in support of the demurrer, first putting in an affidavit in support of it, sworn to by the Rev. Mr. Threlkeld, a Missionary to the aborigines at Lake Bathurst.  The learned gentleman by his argument contended, that although Windsor, where the murder was committed, was within the territory of Great Britain, still it was not so occupied as to render the prisoner amendable for any offence committed there against any of his countrymen.  It was laid down in 1st Blackstone, 102, and in fact in every other work upon the subject, that land obtained like the present, were not desart [sic] or uncultivated, or peopled from the mother country, they having originally a population of the own more numerous than those who have since arrived from the mother country.  Neither could this territory be called a conquered country, as Great Britain never was at war with the natives; it was not a ceded country either; it, in fact, came within neither of these, but was a country which had a population having manners and customs of their own, and we had come to reside among them, therefore in point of strictness and analogy to our law, we were bound to obey their laws, not they to obey ours.  The reason why subjects of Great Britain were bound by the laws of their own country was, that they were protected by them; the natives were not protected by those laws, they were not admitted witnesses in Courts of Justice  they could not claim any civil rights  they could not obtain recovery of, or compensation for, those lands which had been torn from them, and which they had held probably for centuries.  It therefore followed they were not bound by laws which did not at the same time afford them protection.  If it was held that they were subjects of Great Britain, then they would have a right to come into the Courts, and sue for any property they might possess, for assaults and cases of that kind.  Again, providing the Court was to try this man, they would have to follow him with the shield of the law to prevent his being tried by his own tribe according to their laws.  How could oaths be framed that would be binding on these men?  It had been held in the cases of the men at Norfolk Island, who were civiliter mortuis, that ex necessitate rei, their evidence must be received, how much more in this case, they being free men.  He considered the decision of the Court would be in favour of the plea, and the prisoner would be discharged.

The Attorney General replied.  In this case the prisoner was charged with murder in a  populous part of the King's territory; it was laid in the information to have been committed within the jurisdiction of the Court.  The reply to this had been, that the prisoner was not amenable to the British laws, but his principle could not be admitted, the laws of Great Britain did not recognise any independent power to exist in a British territory, but what was recognised by law.  This country was merely held by occupation, not by conquest, now was it ceded; and where lands were so taken possession of, the King was bound to protect by his kingly power all parties living in it, or who came to visit it; was it to be supposed that breaches of the peace, and murders, were to be committed within the jurisdiction of the Court, and yet that the Court should have no controlling power?  The law would be bound to protect every person who came to this colony, and to it they would be amenable.  He, the Attorney General, stood there to protect the whites from the blacks, and the blacks from the whites; the colour made no difference to him.  If the man could not be tried, their Honors would be sitting there to say they had no jurisdiction over a case of murder committed within the jurisdiction of the Court.

Mr. Stephen shortly replied.  No man, without he was a subject of his Majesty, could be tried by the laws of Great Britain; this man was not so, but had been long residing here before the country was taken possession of.

The Solicitor General wished to reply, but the Court decided that he was irregular.  Judgment reserved until this morning.


Forbes C.J., Dowling and Burton JJ, in banco, 11 April 1836

Source: Supreme Court, Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, pp 210-216[ 4]


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

Inasmuch as the Court is[ 5] 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,[6 ] the reasons upon which I have founded my individual opinion.  But[ 7] I think it right[ 8] to state briefly the grounds of my opinion which are these:-


[211] 1st[ 9] 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[10 ] 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[11 ] form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own.[ 12]

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. §. 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 2

Lord 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[ 13], 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[ 14] so they be committed only upon one another![15 ] & that our laws are no sanctuary to them.


Forbes C.J., Dowling and Burton JJ, in banco, 11 April 1836

Source: Sydney Gazette, 12 April 1836[ 16]


In giving judgment in this case the Chief Justice remarked that a demurrer had been filed, denying the jurisdiction of the Court, which must be overruled, as the Court had jurisdiction in the case.  On a former occasion of this kind,[ 17] His Majesty's Attorney General had put it to the Court whether he should bring such a case before the Court, and whether it was the description of crime which would be recognised by the laws of England; the Judges had then stated that it was for him to use his sound discretion in the case, but on that occasion no discussion took place as to the authority of the Court - no opinion was given as to their jurisdiction.  Judge Burton had put together an opinion in which the whole Bench coincided; he (Judge B.) would read it to them.

His Honor remarked - 1st. That although it might be granted that on the first taking possession of the Colony, the aborigines were entitled to be recognised as free and independent, yet they were not in such a position with regard to strength as to be considered free and independent tribes.  They had no sovereignty.

2nd.  The Government proclamation laid down the boundary of the Colony, within which the offence of which prisoner was charged had been committed; the boundaries were Cape York in 10° 37' South, Wilson's Promontory in 39° 12' South, including all the land to the eastward and islands adjacent.

3rd.  The British Government had entered and exercised rights over this country for a long period. - 9 Geo. 4 c. 83.

4th.  Offences committed in the Colony against a party were liable to punishment as a protection to the civil rights of that party.  If a similar offence had been committed at home, he would have been liable to the Court of King's Bench.

5th.  If the offence had been committed on a white, he would be answerable, was acknowledged on all hands, but the Court could see no distinction between that case and where the offence had been committed upon one of his own tribe.  Serious causes might arise if these people were allowed to murder one another with impunity, our laws would be no sanctuary to them.  For these reasons the Court had jurisdiction in the case.

Demurrer allowed.


Forbes C.J., Dowling and Burton JJ, in banco, 11 April 1836

Source: Sydney Herald, 18 April 1836


Monday. - Rex v. Jack Congo Murrell. - This was an information preferred by the Attorney-General against the prisoner, an Aboriginal Native of New South Wales, for the wilful murder of one of his own tribe, in the interior of the Colony.  A plea to the jurisdiction of the Court had been put in on a former day, in behalf of the prisoner, which set forth, among other matters that he, not being a subject of the King of England, was not amenable to our laws; and that - verdict of acquittal would not relieve him from the consequences of the act charged against him, according to the laws and customs of his own people in such cases.  The Chief Justice, who presided on the occasion, admitted the ingenuity, and, in some respects, the force of the plea; but suggested that the case might be tried upon the issue, reserving the objections raised for consideration in another place, and under a different form of proceeding.  This being objected to by the prisoner's counsel, who expressed a wish to take the opinion of the full Court upon the subject, the case stood over, and judgment was delivered this day by His Honor Mr. Justice Burton.  The learned Judge read a very elaborate review of all the bearings of the case - the principles which it involved - and the consequences which might ensue if it were to be held that the Aboriginal Natives might murder each other uncontrolled by the English law; and concluded by expressing an opinion (in which the other Judges entirely concurred) that the Act of Parliament having given the Supreme Court jurisdiction over all offences against British law, within certain prescribed limits, they could, within those limits, recognise no distinction between Natives and Europeans.

The plea was, consequently, set aside, and the prisoner will have to take his trial for murder.


Forbes C.J., Dowling and Burton JJ, in banco, 11 April 1836

Source: Australian, 12 April 1836


April 11. - Yesterday their Honors took their seats on the Bench, and the native Jack Congo Murrels [sic] was put to the Bar.  The Chief Justice stated that the, Court were unanimously of opinion that the plea put in to the information in this case, must be over-ruled, and requested Judge Burton to read the grounds upon which the Judges had formed their opinion.

His Honor Mr. Burton then read the judgment of the Court, the main purport of which was, that the Act of Parliament having given them jurisdiction over all offences against British Law committed within their limits, they could not within those limits know any distinction between Natives and Europeans,

(As the decision is interesting and involves some curious points, we shall endeavour to procure and publish it entire, in a future number.[ 18]  The result of the judgment is, that the Native will have to take his trial for the murder of another Native, according to our Law, which was a mere act of justice according to the Law he was born and lives under.)


Source: Sydney Herald, 5 May 1836



The determination to try this man for his life at the present sittings of the Supreme Court, has occasioned some surprise.  He is to be tried for the murder of another Native according to our law, though the Australian of the 12th instant states, it was a mere act of justice according to the laws he was born and lives under.  But be the precise nature of his alledged [sic] offence what it may, his course of life and conduct could not have been regulated by any consciousness of being answerable to our laws; can it, therefore, be just to subject him to be tried by them?

The chief attempt at argument to support this decision, is that the act was committed in a territory possessed by the English.  But how was the possession of this territory obtained by them?  The act, too, was committed on his own fellow-countryman.

Besides, how can he have a fair trial?  in what manner will his witnesses (most likely black Natives like himself) be obtained?  or if obtained, how understood? and without their presence and explanations what correct conclusion can be arrived at respecting circumstances, which it is presumed are peculiar to their people?  Again, what sort of trial by jury will it be?  will black Natives be allowed to sit on the jury, and if they are, would they be likely to avail themselves of the privilege?  or, would they not rather run away in affright; or, if here, how could they understand the proceedings? and if tried only by Englishmen how can he be said to be tried by a jury which means his country per patriam or his peers?  Again, how will he be made to understand his right of challenge, and if he be made to comprehend it, how will he exercise it?  The law of England renders it necessary that the Sheriff or returning officer be totally indifferent, and that where an alien is indicted, the jury should be de medietate, or half foreigners (except in treasons) besides other indispensable requisites, and therefore if other and higher grounds fail him, may he not challenge till this minor point be established of one-half foreigners.  In addition to such challenges, for cause, and which may be without stint, in criminal cases, at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors without any reason being assigned.

Another argument which has been put forward in support of this prosecution is the following, viz.- ``Although it was granted, that on first taking possession of the Colony, the Natives were recognized as free and independent, yet the various tribes were found not to occupy that position in the scale of nations as to strength or government which would entitle to sovereignty."  What can this mean, unlest it means that might may overcome right?  Nor can the argument be admitted on principle, being one of degree and not of kind.  It is a mere assumption of the question to say that they do not occupy that position in thh [sic] scale of nations as to strength and government which entitles them to sovereignty - it is not explained why this want of position as to strength and government should incapacitate them from making and putting into execution laws for the regulation of themselves; nor is it attempted to be shown what modivum of strength or government in a people or a tribe should entitle them to such a privilege.  It is presumed that the reason why this is not attempted to be shown is because it could not; and because every free and independent body of people, be they what they may, have a right to make laws for the government of themselves.  If the black Natives were recognized as free and independent on taking possession of the Colony, as is avowed by those who have determined on this prosecution, why are they not so now?  Have not the various tribes their manners and customs? and can their peculiar nature, whether good or bad, justify the trial by foreigners of an act committed by one of their fellow countrymen, and more especially as the life of the person tried will be perilled.

The ``want of position" which has been put so prominently forward, arises doubtless from the unintellectual character of this unlettered people; if such then be their ignorance, how can you expect them to obey the laws of a foreign people, laws which you have not been able to teach them, and yet for disobedience to which you are about to put one of those poor benighted creatures to death?  Blackstone says, ``law is a resolution of he Legislator," and ``it is requisite that this resolution be notified to the people who are to obey it;" adding whatever way is made use of it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who, (according to Dio Cassins) wrote his laws in a very small character, and hung them upon high pillars the more effectually to ensnare the people."  Now our laws must be almost invisible to the unenlightened Natives, and certainly far beyond their reach; and yet here is a poor wretch taken by surprise and made answerable to an authority of which he was not aware.  The operation of such a law upon him will have almost the cruelty and injustice of an ex-post facto law.

Suppose a black nation were to invade England and they were to put to death one of us for an act done to one of our fellow-countrymen, which would not have been capital with us, should we not think it barbarous?  What then shall we call this act of ours - we who are an enlightened people, upon a poor benighted black whose country we have invaded?  Is it not a violation of the law of nations?  For it is not demanding satisfaction of a foreign people for a wrong done to one of our own nation but usurping the power of judging in an affair of their own - judging, too, on a law which will take away life.

To say that forbearance from interference in such cases would be affording sanctuary, which has been advanced by the supporters of this measure, it is absurd - how can that be sanctuary which would give up a man to be dealt with by the laws or customs of his own people, instead of giving him refuge from them?

It is anxiously hoped that still further consideration may be given to this case in sufficient time to prevent what may be termed a legal murder, being committed upon a poor helpless and unenlightened creature, whose chief crime seems to have been ignorance. - From a Correspondent.


Dowling A.C.J., 13 May 1836

Source: Sydney Herald, 16 May 1836[ 19]


Friday, May 13 - Before His Honor Chief Justice Dowling and a Civil Jury.

Jack Congo Murrell, and Bummaree, were severally indicted for the murders of other two Aboriginal Natives, at Windsor, on the 21st December last.

When arraigned and called on to plead, the prisoners, through their interpreter (the Rev. Mr. Threlkeld), stated that they had assaulted the deceased men in consequence of injuries they had received from them, which was entered by the Court as a plea of ``Not Guilty;" and when asked by what Jury they would be tried, they required a Jury of Blackfellows.  His Honor stated that they could not have such a Jury; and after some explanation by the interpreter, they chose a Civil Jury.

When the Jury was sworn, it was announced that Mr. Sydney Stephen, who had been assigned to the prisoners, was ill in bed and could not attend, in consequence of which, His Honor requested Mr. Windeyer to act as their Counsel at a short notice, and that Gentleman stated he would do his best for them.

Jack Congo Murrell was then put on his trial for the murder of Pat Carey, at Windsor, on the 21st December last.

Mr. Therry opened the case, and in the course of his address remarked, that although the Crown Officers would wish that the prisoners should have the benefit of Counsel, yet when it was considered that the Judge was Counsel for the prisoner, he thought that in this case the prisoner's friends and advisers would be perfectly satisfied.

His Honor said that Mr. Therry's assertion that the Judge was Counsel for the prisoner, was a most erroneous supposition, which he believed was too generally conceived; the Judge's utmost duty was to see justice properly administered; he held the scale of justice in his hands, and no more.

The case for the prosecution being closed, Mr. Windeyer said the prisoner had nothing to say and had no witnesses to call, as the only witnesses they could have called were Blacks like themselves, who could not be sworn, as they did not believe in a future state.

His Honor said that the point had never been decided, because it had never been mooted; he would not say whether they could be admitted as evidence or not until the question came before him.  If the prisoners had any witnesses they might try the question.

Mr. Windeyer then proposed to call a native named McGill, who was in Court, to speak as to the customs of the Blacks; but His Honor said he could not admit evidence of the customs, which had been solemnly argued and decided by the Court as having no influence on the case.  If Mr. Windeyer had any witnesses as to fact he might bring them forward.

Mr. Windeyer said he had not; but contended there was no case for the Jury.

Mr. Therry replied; and His Honor said he should certainly let the case go to the Jury on the evidence.

His Honor then summed up.  This was a most important case, being the first of the sort ever brought before the Supreme Court of New South Wales, and which would be a precedent for future proceedings in like cases; until recently it had been the general opinion of the Public and of one or two of the Judges, that the Aboriginal Blacks were not amenable to British law, excepting when the aggression was made on a white man; but the case had lately come under the consideration of the Judges, who had decided that by the Act of Parliament, in strict terms, the Court had jurisdiction of them, and they were amenable to British law; and His Honor stated, that the Jury were legally in charge of the prisoner.  If the prisoner, however, was amenable to British law, he was equally entitled to the protection of the law, and to all the advantages that the law gave to other subjects; and although it had been stated in evidence that the Blacks were generally considered as beasts of the forest, he, in presence of the Almighty God declared, that he looked on them as human beings, having souls to be saved, and under the same divine protection as Europeans.  With respect to their admission as witnesses, the law which required them to answer for offences, allowed them to defend themselves in the best way they could; and if witnesses of their own nation could not be put on their oaths, yet evidence might be obtained from them in the best manner possible.  His Honor then read his notes of the evidence, and the Jury retired a few minutes, and returned a verdict of Not Guilty.

Mr. Therry said he did not suppose the Attorney-General would proceed against the other Black, as the cases were similar, and both depended on the same evidence.  The prisoners were discharged.



[1 ] See also Sydney Gazette, 6 February 1836; Australian, 9 February 1836. Background documents for this case are online among the papers collected by Burton J.: see documents 41, 42, 43, 44, 45, 45a, 46, 47, 48.

See also R. v. Ballard, 1829; R. v. Long Jack, 1838.

This case began when Bowen Bungaree, an Aborigine, requested Rev. Threlkeld to ask the Attorney General to prosecute Murrell and Bummaree: Threlkeld to Attorney General, February 1836, Miscellaneous Correspondence relating to Aborigines, State Records of New South Wales, 5/1161, pp 182-184.  This Miscellaneous Correspondence file has most of the important documents in the case, including the notes of the initial inquests on the deaths of the two men, the charges brought against the prisoners, Threlkeld's statement on Aboriginal customs including payback, the arguments of counsel, the judgment of Burton J. and his much more extensive notes for judgment.  At pp 272-273, there is a list of all Aborigines tried before the Supreme Court since 1827, and at p. 274 a letter about the killing of another Aborigine by a European.On the assignment of counsel to these prisoners, see the law reports of the Sydney Herald, 4 February 1836.

There was a similar case in 1834 which did not go to trial. The Australian, 3 February 1834 reported that two Aborigines, Quart Pot and Numbo, were in gaol for murder and had not been brought to trial quickly. The newspaper thought it ``unreasonable, oppressive and impolitic" to impose our law on matters among themselves.  It argued that we should let Aborigines use their own punishments whether for murder or anything else, as they were not protected by our laws. See also Australian, 17 February 1834 on other Aborigines surrounding the gaol while they were there.  The Australian, 28 February 1834 said that they were to be discharged by the Attorney General and returned to their own district. 

A month earlier than the commencement of the prosecution of Murrell and Bummaree, a free white man, Stephen Brennan, had been arrested on a charge of murder of an Aborigine at the McLeay River, but nothing seems to have come of the charge: Sydney Gazette, 5 January 1836.  For a description of the capture and imprisonment, without charge, of another Aborigine, see Australian, 6 May 1836.

[2 ] This important, but generally overlooked, passage shows that the initial view of Forbes C.J. was the same as he had expressed in R v. Ballard, 1829.  As is evident below, two months later he completely reversed his opinion when the matter was decided by all three judges.

[3 ] See also Australian, 23 February 1836.[ 4] For an edited law report of this judgment, see (1998) 3 Australian Indigenous Law Reporter 412 (and introduction at 410).  This is one of the few cases of the Forbes period to be reported in the nineteenth century: see 1 Legge 72-73, relying on the Sydney Gazette of 23 February and 12 April 1836.  The account given here is a fuller version than that in the Sydney Gazette and in Legge's report, and includes important extra details.  The Legge version of Burton's judgment omits that Burton found that Aborigines were ``entitled to the possession of those rights which as such are valuable to them," and also leaves out that he found that the natives had not attained such numbers and civilisation as to be recognised as sovereign states governed by their own laws. The second point of the judgment was also misreported in the Gazette and thus Legge: it omitted the preamble about the land being unappropriated by anyone at the time it was taken into actual possession of the king.  That is, Legge failed to report the important points that Burton made some recognition of Aboriginal rights, and that this is apparently the first Australian case based squarely on the notion of terra nullius.

There is even further detail in Burton's Notes for Judgment, which is in Miscellaneous Correspondence Relating to Aborigines, State Records of New South Wales, 5/1161.  The notes include the following passage giving Burton's view of the claim that Aborigines had their own laws: he thought that 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" (p. 239). Their so-called laws were merely ``lewd practices" (p. 240).  The notes were not delivered in court (only the judgment published here was), yet they give telling evidence as to his reasoning.  Burton's notes are particularly unconvincing on native title questions, as his conclusion that there was no recognisable native interest in land was inconsistent with Vattel.  He made more corrections to his manuscript on that point than on any other. 

Chief Justice Forbes was under immense pressure at the time this judgment was delivered, which may partly explain his drastic change of position since R. v. Ballard, 1829 and even since his initial view of the legal position of Murrell, expressed on 6 February 1836.  He had been ill for some time, and was unable to sit from 26 March until 11 April 1836: Australian, 29 March 1836, 1 and 12 April 1836, though he did write his Opinion on Juries, 1836 at this time.  

He was also under strong attack from the conservative Sydney Herald.  The attack had been in place for some time (see notes to Burton's Speech to Jury, 1835), but the Herald appeared to accelerate it as his departure from the colony approached.  On 31 March 1836, the Sydney Herald reviewed his career on issues as old as the newspaper tax (see Newspaper Acts Opinion, 1827).  As Forbes was about to leave the colony and was ill, it was impossible for him to respond. Forbes had the very good wishes of substantial parts of the community: see the advertisement in the Monitor, republished in the Sydney Herald, 11 April 1836.  The Herald followed that with a satirical address supposedly by convicts and emancipists and a fanciful reply by Forbes.  Its main complaint about him was his liberality: in its eyes, he unduly favoured emancipists.  The Herald's attack continued in its editorial of 14 April.  The Sydney Herald was very candid in an editorial on 28 April 1836: ``We hope he has taken his departure from these shores forever as the Chief Justice and Legislator combined in one person."  This constitutional point was only one of the reasons it was so hostile to him: the editorial claimed that he was cheered by road-gangs, gaol-gangs, and ironed-gangs of thieves ``that their irons may be struck off through the instrumentality of their champion".  The editorial went on to mention a ``host of transported Jews".  See also Sydney Herald, 9 May 1836 (editorial).  (The Australian, which generally supported Forbes, responded to some of these attacks: 3 May 1836, and see 10 May 1836.)  One of the Herald's main complaints about Forbes was his role in the enactment of what it called the Convict Jury Law, under which emancipists could sit as jurors: see for example, Sydney Herald, 30 May 1836 (editorial), and see Opinion on Juries, 1836.  

The same attacks were made by James Mudie in his Felonry of New South Wales (1837), which alleged that Forbes was sympathetic to convicts, a republican and a populist: see Forbes' reply in his letter to Bourke, 1 May 1837, J.M. Bennett (ed.), Some Papers of Sir Francis Forbes: First Chief Justice in Australia, Parliament of New South Wales, Sydney, 1998, p. 258.  The Herald's attacks continued well after he left the colony: for examples, see its editorials on Bourke and Forbes on 5 and 16 January 1837.

The bar delivered a warm address to Forbes C.J. on his departure: Sydney Herald, 14 April 1836; Australian, 12 April 1836 (followed by Forbes' reply in which he said he hoped to return to office).  See also Sydney Gazette, 14 and 16 April 1836; Australian, 15 April 1836 (address by attorneys); Sydney Gazette, 16 April 1836; Australian, 15 April 1836 (subscription for a portrait of Forbes, by trustees of the Sydney College).  There was also a general subscription for a service of plate: Australian, 22 April 1836.  For Forbes' response to these good wishes, see his letter to Bourke, apparently dated 11 April 1836, in Bennett (ed.), Some Papers of Sir Francis Forbes, p. 242.

The Australian, 12 April 1836, gave the best account of Forbes' last appearance on the bench: after the judges delivered their decision in this case and in R. v. Maloney, 1836, Burton J. expressed his regret at his departure and his admiration of Forbes' character.  Justice Dowling ``was so overcome by his feelings, that we were unable to catch his observations."  The Australian concluded with a statement of its own admiration of Forbes. For further evidence of the support Forbes C.J. had in the community, see Wentworth's address to the public meeting held to mark his departure, and the account of the warm reception he had there: Sydney Herald, 18 April 1836; and see Australian, 19 April 1836.  An item by ``X.Y.Z." in the Sydney Herald, 2 May 1836, attacked the nature of the crowd at the meeting, claiming that it consisted of ``a mere handfull of the very rabble of Sydney".  See also letter to Australian, 12 April 1836.

Forbes boarded the Brothers on 16 April 1836, following a public meeting at the race course to mark his departure: Sydney Gazette, 16 and 19 April 1836.  The Brothers did not leave immediately, but stayed ``in the stream" for a few days: Sydney Gazette, 19 April 1836; and see Australian, 19 April 1836.

Forbes returned to England in an attempt to restore his health, but though he later returned to Sydney, he did not return to the bench.  He retired from office on 1 July 1837, and died in New South Wales in November 1841, aged only 58.  For these and other details on his life after retirement, see Forbes Papers, Mitchell Library, A f 10 (Forbes Family); and Bennett (ed.), Some Papers of Sir Francis Forbes, pp 264-268.  For his retirement letter (dated 12 June 1837), see A 1275 (reel CY 1055) pp 551- 559.  He retired because of ill health, describing his illness as a nervous disability lately ``accompanied with a paralytic affection of my left arm".  He said his illness had been brought on by the arduous duties of his offices as Chief Justice in Newfoundland and in New South Wales.  (This letter is also printed in Bennett (ed.), Some Papers of Sir Francis Forbes, p. 257, and see pp 262 and 263 on his affliction, the latter referring to his sciatica.)

On his widow's endeavours to obtain a pension, see Forbes Papers, Mitchell Library, A 1267-21 (reel CY 1550), pp 3149-3152; A 1267-8 (reel CY 696), pp 1884-1885.  The judges (Forbes C.J., Dowling and Burton JJ) had applied in 1836 for retirement allowances for colonial judges: A 1267-14 (reel CY 811), pp 1556-1561.  On Francis Forbes' financial position, see also Lady Forbes to Macarthur, 4 November 1852, A 2923 (reel CY 955), pp 124-125.

With the supposedly temporary departure of Forbes, Dowling was appointed Acting Chief Justice, and Kinchela as Acting Puisne Judge, with Plunkett as acting Attorney General: see R. v. Wales, 1836.  Justice Burton was keen to be made Chief Justice, but was thwarted when the temporary appointment of Dowling J. as Acting Chief Justice was eventually made permanent.  For the response of Burton J. to this, see his letter to his brother Robert date 27 December 1837, in his correspondence.  Burton thought that he had an enemy in the Colonial Office.  In Forbes' view, Dowling had the better claim to the office: Forbes to Bourke, 1 May 1837, Bennett (ed.), Some Papers of Sir Francis Forbes, p. 258.  For Glenelg's decision to appoint Dowling as Acting Chief Justice, see Glenelg to Bourke, 29 March 1836, Historical Records of Australia, Series 1, Vol. 18, pp 364f, and for Bourke's despatches announcing Forbes' departure for England, see pp 368, 376-378.  On Burton's ambitions, see also Bourke to Glenelg, 3 October 1835, Historical Records of Australia, Series 1, Vol. 18, pp 110-112, and see pp 113f, 199.

On the retirement of Forbes and the subsequent changes to the Supreme Court, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, chaps 51-54.  On his earlier application for leave in 1834, see Historical Records of Australia, Series 1, Vol. 17, p 370, 458.[

5 ] Inserted but crossed out: now

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

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

[8 ] due to the public

[9 ] Because[

10 ] y

[11 ] settled

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

[13 ] m

[14 ] remark

[15 ] to hold indece

[16 ] This report is the basis of the judgments reported at 1 Legge 72.  We have decided to reproduce all newspaper accounts of this judgment.

[17 ] Presumably R v. Ballard, 1829.

[18 ] It is most unfortunate that the Australian did not do this, leaving only the truncated version in the Sydney Herald to be published.

[19 ] See also the almost identical report in the Australian, 17 May 1836. The judge's notebook account of the trial is at Dowling, Proceedings of the Supreme Court, Vol. 122(2), pp 125-142, State Records of New South Wales, 2/3306.

Published by the Division of Law, Macquarie University