Volume 2

Report from the Select Committee on Aborigines (British Settlements) with the minutes of evidence, appendix and index.

  • Great Britain. Parliament. House of Commons. Select Committee on Aboriginal Tribes.
Date:
1966
Catalogue details

Licence: Public Domain Mark

Credit: Report from the Select Committee on Aborigines (British Settlements) with the minutes of evidence, appendix and index. Source: Wellcome Collection.

    283/316 (page 183)
    mend the adoption of such a measure; and if this ‘proposed measure be found an insufficient check, I would then recommend that an ordmance be passed for the suppression and punishment of vagrancy; but I beg leave to pause and to take the question into further consideration previously to giving a deliberate opimion on the principle on which such an ordinance, if necessary, should be founded. 26 January 1829. (signed) G. Kekewich. Nore by Mr. Justice Burton upon the 13th Section. In concurring with my brother judges in the foregoing answers to the questions proposed by his Excellency, and in the provisions of the ordinance above recommended, excepting as to so much of the 13th clause as justifies the killing a person attempted to be arrested, who flies and cannot otherwise be apprehended or prevented from escaping, in cases where the crime committed or suspected to be committed 1s stealing without force ; I beg to submit to his Excellency my reasons for not concurring in the full extent of that clause, which are, 1. Because in this colony, the persons most likely to commii, or be suspected of com- mitting the offence of stealing cattle, sheep or goats (the most numerous class of thefts in the colony), are wandering Bushmen and Hottentots inhabiting the frontier districts, who, whether they have actually committed any offence or not, always fly on the approach of the colonists. . 2. Because the colonists are upon occasions of pursuit always mounted and armed with guns. 3. Because the use of their guns almost always proves fatal. ok Because in my opinion, they require rather to be restrained than encouraged in the use of them. 5. Because the punishment of death will frequently be inflicted without trial upon persons who after legal trial would not be so punished. 6. Because persons will frequently be deprived of their lives, who although suspected are entirely innocent of the offence for which they are attempted to be arrested. (signed) W. W. Burton. Nore by the other Judges upon the 13th Section. WE have not been able to discover any sufficient reason why any difference should be made between the law of Great Britain and of this colony as to the rule which justifies the killing of persons charged with the commission of hemous crimes who attempt to escape from legal arrest by flying, and whose escape cannot otherwise be prevented. The propriety and expediency of the rule has never been questioned in Great Bnitain, although there, from the density of the well-disposed population and the numbers, vigilance and activity of the police, any escape from an attempt to arrest can in all possibility be only temporary and productive of no bad consequences. In this colony the thinness of the population, the total want of police (in the country districts), and the nature of the country, are such that if an offender escape from an attempt to arrest him, there is no certainty that months or years do not elapse before he can again be apprehended ; in the meantime the person so escaping must necessarily, for his own support, betake himself to the commission of depredations, and being desperate, is likely to commit them with circumstances of greater atrocity than before. . Whatever may be said of the bloodthirstiness of the boors while on commandoes, the evi- dence given on the trials at the late circuit courts prove the fact to be, that all the indivi- duals who have recently been shot while attempting to escape apprehension were either persons known to be themselves notorious and desperate offenders, or at least belonging to gangs of notorious and desperate offenders ; while the first intimation which the neighbour- hood receives of the escape of persons either from prison or from custody on the road to prison, or from an attempt to arrest them, has been the commission of some new and atrocious crime. Persons who are innocent do not fly from an attempt made to arrest them by legal authority. It is themfore the guilty only that run any risk. The law only justifies the killing where the crime of which the person attempted to be arrested is accused, is of the degree of felony. In such circumstances the law justly consider that it is more expedient for the public welfare, that such offenders manifesting their guilt by their flight, should be put to death on the spot than that by their escape an opportunity should be atforded to them, and by the hope of impunity an encouragement held out to others, to commit similar offences in time to come. On these grounds we are compelled to dissent from the suggestions which it has appeared to Mr. Justice Burton proper to make, and we consider it our duty to recommend that in this particular the law of the colony be the same with the law of Great Britain. (signed) ~°*John Wylde. W. Menzies. G. Kekewich, AA4 INDEX. No. 10. Judges’ Opinions, 1829. We take these facts from the report of Mr, Justice Men- zies. (signed) J. Wylde and G. Kekeuich.