actions with H. M.'s subjects, not being Indians, their intercourse and customs with each other in the quarters allotted to them not being affected by it) and all new regulations are to receive H. M.'s Governor's approbation before carried into execution." More convincing proofs than these cases in Jamaica and St. Vincent of the recognition of the self government, as dependent allies, of a rude people within the British dominions in a colony where English law prevails cannot I think be found, or one that more clearly refutes the argument of the learned Crown Prosecutor, that all persons in a British colony are subject to the British law. Why then I would ask if this principle has been acknowledged in this colony with regard to the Aborigines of New Zealand — in Jamaica with respect to the Maroons — in St. Vincent with reference to the Charibs, and fully recognised and acted upon as national law in America. Why is it not to be acted upon here? Our East Indian possessions, whatever they may have been originally, are certainly now claimed by us by conquest; yet there, even, after conquest, the unchristian practice of Suttees and the barbarous rites of Jughernaut were permitted to prevail: the British Legislature, however, has, by the Stat. 3 & 4, Wm. IV., cap. 85, expressly given "the Governor-General in Council power to repeal or alter any laws or regulations then or thereafter to be in force in those territories, and to make laws for all persons, British or Native, foreigners or others, and for all courts of justice, whether established by H. M.'s charter or otherwise." There is no express law, that I am aware of, that makes the Aborigines subject to our colonial code: the stat. 9, Geo. IV., cap. 83, sec. 24, declares that the laws of England shall be applied in the administration of justice so far as circumstances will admit; but this, I think, is very different from declaring that the Aborigines shall, as among themselves, be amenable to British law. The only acts of legislation with regard to the Aborigines, that I remember, are the local ordinances to prevent their being supplied with sprits, and to prevent them bearing firearms; but it has never been attempted to deprive them of their weapons. These laws are perfectly consistent, I think, with the character of the Aborigines, as dependent allies, and necessary for the protection and due regulation of intercourse between the Aborigines and colonists. After the conquest of Ireland by Henry II., the laws of England were received and sworn to by the Irish nation, assembled at the Council of Lismore. But the Irish still adhering to their old Brehon law, after repeated injunctions, which they disregarded, that they should be governed by the law of England, the Brehon law was formally abolished by an Act of Irish Parliament in the 40th year of Edward III. Had any legislative enactment abolished the laws and customs of the aborigines, or declared that they should be governed by the law of the colony then this point could never have arisen. This is not a question of foreigners in a country where the sovereign has the entire sway. In such a case there can be no doubt that the foreigners are amenable to the laws of the place they come to. But even with regard to foreigners it is said by M. Vattel, to be the safest course not to permit those foreigners to reside together in the same part of the country, there to keep up the form of a separate nation. In this instance however the colonists and not the aborigines are the foreigners; the former are exotics, the latter indigenous, the latter the native sovereigns of the soil, the former uninvited intruders. It seems then that although infanticide prevails, and scenes of drunkenness are daily witnessed among the unfortunate aborigines in our streets, that no attempt has hitherto been made, to my knowledge at least, to repress these crimes by the interposition of our English or colonial law. To grasp the subject with sufficient strength, I have been induced to narrate at some length, the circumstances under which this colony was acquired and this district settled; to state the law of nations as applied not only in what was British America, but in New Zealand as forming a part of this colony, and to allude to the treaties made with the Maroons in Jamaica, and the Charibs in St. Vincent, (the one a colony obtained by conquest in its strictest sense, and the other acquired by the full and unconditional cession of a Foreign State,) in both of which colonies the law of England, so far as it can advantageously be applied, is recognised and prevails. Nor have I omitted to glance at the permissive countenance of the laws and customs of the natives of Hindostan, in that portion of it which has been conquered and subjected to British rule; though such customs included the cruel practice of Suttees, and the disgusting heathen and barbarous rites of Jughernaut. I repeat that I am not aware of any express enactment or treaty subjecting the Aborigines of this colony to the English colonial law, and I have shown that the Aborigines cannot be considered as Foreigners in a Kingdom which is their own. From these premises rapidly indeed collected, I am at present strongly led to infer that the Aborigines must be considered and dealt with, until some further provision be made, as distinct, though dependent tribes governed among themselves by their own rude laws and customs. If this be so, I strongly doubt the propriety of my assuming the exercise of jurisdiction in the case before me. But it is too momentous a question to be thus hastily decided, it demands and it must receive much more anxious consideration, unless the counsel on each side go on with this case, on the express understanding that neither the prisoner nor the Court consider the question waived by any subsequent proceeding, and the reservation of all such benefit to the prisoner as he would have received in case I had now given a definite decision. I must for the present adjourn this matter for future judgment, reserving to myself as I do to the fullest extent the right so alter or abandon my present impression, should I be hereafter convinced that it is in any wise erroneous. But though I pause, I trust by doing so, I shall not subject the British name to the reproach cast on the Spaniards by the Peruvian Rolla. "I pause, indeed, in unfeigned amity, that affliction may not mourn my progress." I desire to see the state of the Aborigines of Australia improved, I desire to see them freed from the yoke of error; to see the duties of humanity amply and practically fulfilled; to see all due protection extended to this unhappy race — the protection of their rights by laws adapted to their capacity and suited to their wants — the protection of all equal and all powerful justice.
It was then agreed that the prisoner should plead to the information and take his trial, subject however to the express reservation of the right of jurisdiction, which His Honor would take further time to consider.
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Friday, September 17, 1841.
His Honor said that before coming into Court that morning he had learned from Mr. Robinson the Chief Protector, a most singular coincidence with what had been urged by Mr. Barry the previous day for the prisoner Bonjon. At the camp of the aborigines in the immediate vicinity of Melbourne, two men were tried for murder by the native tribes, on the 14th instant, and it was certainly remarkable that Bonjon's trial for the same offence was expected to take place on the next day in the Supreme Court. The criminals stood a certain distance from the relatives of the deceased, who threw a certain number of spears at them. Mr. Robinson, Mr. Tuckfield and Mr. Thomas were present.
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N. A. Fenwick, Esq., was then sworn in as Police Magistrate for Geelong.
A long conversation took place respecting the manner the depositions had been taken against Bon-jon by the Bench at Geelong, as to whether they had been taken in his presence, and if he had the same opportunity of cross-examining a witness as if he had been a white subject. Dr. Clerke, a witness in the case, stated he did not consider the prisoner had understood the nature of the evidence against him, neither did he think the case was properly interpreted for him. Mr. Tuckfield was of the same opinion.
The Crown Prosecutor declined under the circumstances to proceed with the trial at present. The prisoner was then remanded until next sessions, and the court adjourned sine die.
