The Queen v. Jemmy
7 Sept. 1860
Argus (Newsp.) (Vic.) (Vic. Sup. Ct. F.C.)
This was a special case, reserved by Mr. Justice Bloodworth at the
late Criminal Sitting of the Circuit Court at Castlemalos.
The prisoner was placed on his trial for the murder of an aboriginal
woman, his lobra and, subject to the point of law now argued, was found
guilty of, manslaughter, and sentenced to one year's imprisonment. The
point reserved by the learned judge was whether in the absence of evidence
that either of these natives had become civilized, or had changed their habits
or roles of life so as to be supposed voluntarily to have subjected themselves
to British Laws, the prisoner was liable to the jurisdiction of the court.
Mr. Wright appeared for the Crown; Mr. Adamson for the prisoner.
Mr. Adamson - This case is distinguishable from that of
Reg. v. Peter, decided in this court last term, inasmuch as here both
the slayer and the deceased were natives. It may be conceded that if the
[sovereignty] de facto could impose laws upon a territory held by
conquest or occupation, those [laws] would be binding, and would supersede
the law previously in force. But it is competent for such a sovereign to
sanction the pre-existing laws, and to confine them in their operation to the
race which before was subject to them. And this may be done [tacitly].
Such was the case of Ireland with regard to the [Brehon] law. Then there
are the American cases and authorities having references to the native
Indians. [We cited] Worcester v. The State of Georgia, 6 Peters
U.S. Rep. 515; The Cherokee Nation & The State of Georgia, 5
Peters. 1, S. Kent's Commentaries 400, to show that in cases of [?] or
qualified subjection, the subject or dependant race may reclaim their
immunity from the jurisdiction of the courts of the dominant race. Was that
so in this case? The onus lay upon the Crown to have shown that it
was not so. But the case negatived the offer of any evidence on this point.
Dr. Sewall, as amicus curiae, having procured a
similar point to be reserved, stated that he should argue from the analogy of
such cases as arose form the analogy of such cases as the Normans who
subsided under the Anglo-Saxon Law.
Mr. Wright, for the crown, was not called on.
The Chief Justice -- This case must be held to be
governed by Reg. v. Peters. It makes no difference whether the
victim were an Englishwoman or a native. The jurisdiction of the court is
[supreme] in fact, throughout the colony, and such regard to all persons in
it. It in not intended to decide that in no case might there be a concession
to a subject-race or immunity from the laws of the conquerors living among
Sir [Redmond Barry]. This is virtually a plea to the
jurisdiction. It is not suggested what [other] jurisdiction could be named, so
as to "give a better writ."
The conviction was affirmed.