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“ Yet such was the plantation of New South Wales. With regard to the character of the Aborigines of the colony, it was said by those who first visited New Holland, "that the people who inhabit the various parts of it, appear to be of one race. They are evidently ruder than most of the Americans, and have made still less progress in improvement and the arts of life. There is not the least appearance of cultivation in any part of this vast region; the inhabitants are extremely few, so that the country appears to be almost desolate. Their tribes are still more inconsiderable than those of America. ”

“ I will therefore dismiss the consideration of these questions, and confine myself to the last, and though it is not a part of my duty to justify the acts of the crown, I will, with your Honor's leave, read what M. Vattel has written on this subject in his work on the Law of Nations: [1]
There is another celebrated question, to which the discovery of the New World has principally given rise. It is asked whether a nation may lawfully take possession of a part of a vast country, in which there are found none but erratic nations, incapable by the smallness of their numbers to people the whole. ”

“ It is not thus the desirable object of civilization should be carried on by an intelligent nation in an enlightened age, and while I call on him to do his duty, which I am fully confident he will not shrink from, in protecting British life and property from aggression by the Aboriginal natives, he may rest assured that milder methods than he proposes this day must be had recourse to in order to prevent such acts as this prisoner is charged with, and their minds must be influenced in some more rational manner than by instituting a reign of terror. ”

“ This colony then stands on a different footing from some others for it was neither an unoccupied place, nor was it obtained by right of conquest and driving out the natives, nor by treaties. Indeed, as M. Vattel very justly says, "whoever agrees that robbery is a crime, and that we are not allowed to take forcible possession of our neighbour's property, will acknowledge without any other proof, that no nation has a right to expel another people from the country they inhabit in order to settle in it herself." ”

“ Their removing their habitations through these immense rehions cannot be taken for a true and legal possession; and the people of Europe, too closely pent up, finding land of which these nations are in no particular want, and of which they make no actual and constant use, may lawfully possess it, and establish colonies there. We have already said that the earth belongs to the human race in general and was designed to furnish it with subsistence ”

“ As I have before submitted that this colony has been acquired by occupancy, I will further contend that the mere act of occupancy that gives to the crown a right to the soil, can confer no authority whatsoever over the aboriginal inhabitants as subjects, unless there be some treaty or compact, or public demonstration of some kind on the part of the natives, by which they testify their desire to come beneath the yoke of the law. ”

“ This is an original precept of the law of nature, receiving, if possible, additional sanction from the established laws of society; but why do I say that persons, who are not natural born subjects, are made amenable to the laws of a sovereign state? Obviously for this reason, because receiving protection in the country in which they inhabit, they are bound to demean themselves as the other natural born subjects in the territory in which they live, as a return for the protection which its laws throw around them. ”

“ He may by the strong arm of the law hang, if he can, one half of the Aboriginal population, but though he may cause the remainder to evince a semblance of allegiance I tell him it will only be the reluctant, fearful, and insincere subservience of timid and ignorant serfs and not the manly generous loyalty of such subjects as it does honor to a British Sovereign to reign over. ”

“ Impartial history will yet record with what vigilance you watched over those, who under the pretence of fictitious sales and artful representations, endeavoured, on terms injurious to the rights and interests of the colony, to make a monopoly of those green and boundless plains, which at no distant period are destined to be covered with our multitudinous flocks and herds. ”

“ Mr. Martin, though an author, is not legal authority. The point however for decision in the case now before me, is a very different one. I repeat that it is not with reference to any aggressions between the black and white population, but simply whether the English law can be legally applied; or rather, sworn as I am to administer the law of England as it prevails in this colony, can I legally exercise any jurisdiction, with reference to any crimes committed by the aborigines against each other? ”

“ Before I conclude my argument upon this case, I beg to impress upon your honor's mind that this is a territory acquired neither by cession nor conquest, but by occupancy only, the laws under which every subject here was born, are his birth-right, notwithstanding he has transferred himself to a distant land, and that the district of Port Phillip is as much an integral portion of Her Majesty's dominions, as Wales or Berwick upon Tweed, is an integral portion of England ”

“ The prisoner has been more in contact with Europeans than any other member of his tribe; he was with the Border Police a considerable time, and can speak the English language, but very imperfectly. Murder is considered a crime amongst the Aboriginals, but under all circumstances I do not think they would consider it as such, there are some exceptions. I do not think the prisoner sufficiently instructed to put in a plea to the jurisdiction of the court, neither do I think I could instruct him, but I think he knows enough to say guilty or not guilty. ”

“ It is an established principle by the writers on national law, that where there is an excess of population in one country (that country being a highly civilized one) , the superabundant population of that country may lawfully settle in the territory of an uncivilized state, provided a sufficient territory be left to the barbarous inhabitants of that state to enable them to acquire subsistence, either by following the pursuits of husbandry, or by the chase; and to illustrate that proposition I will cite a passage from Vattel on the Law of Nations. ”

“ If violence is committed or blood is shed the community does not assume the power either of inflicting or moderating the punishment. It belongs to the family and friends of the person injured or slain, to avenge the wrong, or to accept the reparation offered by the aggressor." A lawyer at once perceives the similarity of this rude custom to the appeals of murder which within my recollection formed part of the English code. I believe the passages so aptly quoted by His Excellency the Governor to be equally applicable to the aborigines throughout the colony as to those of New Zealand. ”

“ I shall add to the arguments which I have already laid down, one derived from the laws of nature herself. It is written on the mind of every man, even the savage, "That whosoever sheddeth man's blood, by man shall his blood be shed." ”

“ But in a preceding page the same author declares, in the passage quoted by the learned Crown Prosecutor, "that those who pursue an erratic life, and live by hunting rather than cultivate their lands, usurp more extensive territories than with a reasonable share of labour they would have occasion for, and have, therefore, no reason to complain if other nations, more industrious, and too closely confined come to take possession of a part of those lands. ”

“ People have not then deviated from the views of nature in confining the Indians within narrower limits. However, we cannot help praising the moderation of the English Puritans who first settled in New England; who, notwithstanding their being furnished with a charter from their sovereign, purchased of the Indians the land they received to cultivate. This laudable example was followed by Mr William Penn, who planted the colony of quakers in Pennsylvania. [2]
Families wandering in a country, as the nations of shepherds who pass over it accordingly as their wants require, possess it in common ”

“ The District of Port Phillip comprises a certain space of territory, comprehended as it were within an imaginary circle, and severed from the rest of New Holland. Any person, be that person a native of England, Ireland, Scotland, aye, or aboriginal native, while sojourning within that province or district, at all events if not a natural, owes a local allegiance to the Queen of England, receiving protection at her Majesty's hands whilst within the district, and consequently reciprocally bound by the laws that prevail within that district ”

“ The Report further states, "It might be presumed that the native inhabitants of any land, have an incontrovertible right to their own soil; it is a plain and sacred right which seems not to have been understood. Europeans have entered their borders uninvited, and when there, have not only acted as if they were the undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country. ”

“ But let us here recollect what we have said more than once, the Indians of North America had no right to appropriate all that vast continent to themselves; and provided that people are not reduced to want land, others might, without injustice, settle in some parts of a region which they were not in a condition to inhabit naturally. ”

“ Barry, are acquired by conquest; by cession under treaty; or by occupancy. By occupancy where an uninhabited country is discovered by British subjects, and is upon such discovery adopted or recognised by the British Crown as part of its possessions. In case a colony be acquired by occupancy, (he adds) the law of England then in being, is immediately and ipso facto in force in the new settlement. He further states, New South Wales and Van Diemen's Land, were acquired by discovery or simple occupation. ”

“ During his residence in America he had many opportunities of deriving the best possible information from the most authentic sources on the subject of the Aboriginal natives of America, and he says "The great errors of these legislators of the Indiana was their not understanding that in order to succeed in civilizing a people it is necessary to fix it, which cannot be done without inducing it to cultivate the soil. The Indians ought in the first place to be accustomed to agriculture." ”

“ I ask then, what has been declared by the legislature of this colony, in statutes in which particular mention is made of the aboriginal natives; by the 49th Sec. of 2nd Vict. 1, No. 18, a penalty of £5 is inflicted in case any person whatsoever shall sell or supply, or give any spirituous liquor, or mixed liquor, part of which is spirituous, in any quantity whatsoever, or any fermented liquor, or mixed liquor, part of which is fermented &c., to an aboriginal native of New South Wales, or New Holland. Why is the legislature silent as to the black? ”

“ But though the city may spring up and flourish; though the smoke is seen to curl from many a domestic hearth; where is the sacred spire pointing to Heaven, and telling the distant traveller, that he is approaching the abode of Christians, as well as of civilized men? ”

“ The women generally are clothed with cloaks of a description somewhat similar, and they certainly appear to me to be of a superior race to any natives which I have ever seen." Thus, according to these statements respecting the aborigines, it appears that they are by no means devoid of capacity ? that they have laws and usages of their own ? that treaties should be made with them ? and that they have been driven away, from Sydney at least, by the settlement of the colonists, but still linger about their native haunts. That they do so linger in this district ? ”

“ Rochefort tells us that an Aboriginal of a different country, an old Charib, many years since thus addressed a West Indian planter, "Our people are become almost as bad as yours, we are so much altered since you came among us, that we hardly know ourselves, and we think it is owing to so melancholy a change, that hurricanes are more frequent than they were formerly. ”

“ Barry at once, and therefore with the permission of the court, I shall lay down this proposition as the ground of my argument, namely, that it is not an encroachment or abridgement of the natural rights of the inhabitants of an uncivilized country, that civilized persons should plant a colony in their territory, that is the territory of the uncivilized, provided the colonists so settling do so under sanction of the government of the mother country. ”