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Line 2. R; Hodge. Line 3. Uiiited 'Bangdom, 'yanting irnmt. Being daily in. The greatest evemVof tbe year.

Jiad done? Bruariloff witbbis army. It is. Tins I. Line 4. The mih. Their con. This situation had arisen.

I had the native hei'e and I would not let that slippery witness have a chance of getting away. I resolved he should not get away, and I kept him at Perth ;-till I sent him in June last to look for the bones.

It is admitted by the prisoner in his own words which he intended for publication, but which were never pub- lished, that he had killed a native.

I do not care whether Murphy and the others spoke the truth or not ; nothing can do away with the evidence in this journal.

The words are " my friend- screwed him- self away and ran towards the Creek, he was going to throw his douark so I fired and shot him.

Granted that he was about te throw his douark, the prisoner being on horseback might have turned his horse and got out of the way, but he fired his revolver and shot him.

His own life was not in danger and if it was he had placed himself in the danger. J Was the slayer so pressed?

Was he not himself the pursuer? Being the pursuer he was following for revenge, The native was slain not from necessity or for defence but in levenge.

The defence is that a felony was committed, and the prisoner pursued and captured the thief, to he dealt with according to desert law, and be flog- ged ; that he was justified in trying to capture the thiof, and also in slaying him.

A paliceman would be justified by his warrant, but a private person does It at his peril. The prisoner was engaged in driving towards his camp seven natives ; be knocks down two of them with his re- volver executing nesert law.

We do i. A free man in a free desert is ordered to walk in and be flogged. Did the prisoner arrest the man whom he went to arrest? No I he shot him like a dog, and let him lie there.

My learned friend says that I am like Shylock and claim my bond, my pound of flesh. So I do but that bond is the law of the land.

You are told that the law is to apply to whites but not to blacks ; that the latter are to be punished only according to the law of the desert.

My learned friend asks how are the whites to penetrate through the desert if a man may not take rhe law into his own hands? I say, the time hae arrived when the law of retaliation must be put down with a strong hand.

You must show, gentlemen, that equal justice is dealt between blacks and whites. You are in that box to put a stop to the internecine war which rages and has raged for forty years between the races.

You punish and hang the black man. Two of them were lately hung for an offence not greater than the present one.

Having said this much, now I will tell you what your responsibility is. You have taken an oath to the God of Mercies that you will give a verdict according to the evidence.

As you hope to be dealt with at the last day so you must deal with the prisoner. Your responsibility is to find whether there was a crime commit- ted?

If there was a crime, was it mur dei? If so you must find the prisoner guilty. If yon can say that there was an affray, and the prisoner took another man's life in that affray, then you may bring in a veidict of manslaughter against the prisoner.

In God's name find bim guilty of manslaughter if you can ; but ii be took this life in revenge for the loss ot a saddle, then he is guilty of murder.

H is Honor summed up as follows : Gentlemen of the Jury, you have been for a considerable time engaged in giving your attention to this case, and it is much te be regretted that you should have been occupied for so long a period, because, if extraneous matter had not been intro- duced, this would have been a very shoit case indeed.

I think gentle- men of the jury, you may discard from your minds all that you have heard from the prisoner's counsel in respect of a con- spiracy.

But, coming to that conclusion, it has nothing- whatever to do with your consideration of it, the case it- self. The fact is, Murphy having enter- tained an animosity against the accused raised certain rumours, and those rumours came io be circulated in this part of the country and reached the ears of the police.

Is there any man living in this, a Chris- tian country who would not be proud that an investigation of this kind should have resulted, whether tiue or false those rumours?

Is it not due to the Crown, is it not due to the prisoner, and is it not due to the country at large that there should have been an inquiry? We all know that human nature is such, that many crimes indeed would go unexposed if it were not for these animosities, and we also all know that human nature is so debased-in fact, we bad a very good proof of this from a statement made by the prisoner's counsel-that people some- times will come forward and swear falsely, not only in self-defence, but are even pre- pared to come forward to swear lives away.

But that is no reason why inquiries and investigations should not take place. I think you will recognize the fact that, when rumours are afloat that human life has been sacrificed, it is the duty of the Crown, it is the duty of the police and of other authorities entrusted with ih i keep- ing of the peace to instiiute due inquiry ; and I think you will further recognize the fact that if there appears to be any foundation for such rumours and accusa- tions it is but just to the accused himself and to the law?

Granting the innocence of the person eo accused I think he should rejoice that an opportunity is afforded him to clear himself from those whispered rumours which are in circulation respect- ing him.

Admitting the fact, then, that this investigation has resulted from the animosity borne by a witness against the prisoner, let us endeavor to deal with the case throwing out of our consideration the mode and manner in which the in- quiry originated.

I take it, gentlemen of the jury, that it is unnecessary for me to say anything further with regard to the course puisued in regard of this prosecu- tion ; the Attorney General has put this in a proper light, and it must appear to you that nothing has been done on the part of the Crown, but that which you and all persons intrrested in the laws of their country would require to be done.

It is a proceeding which I recognize as being under the law and satisfactory on behalf of the colony at large. With re- ference to the observations made by one of the counsel for the defence to the effect that there should be one law for one man and another law for another, I take it that the learned gentleman did not mean it in a general sense, but that the impression he inteuded to convey was that in all cases of investigation of this kind you will make allowance for any peculiar circumstances connected with each individual case.

There may, of course, be circumstances which renders a person more responsible when dealing with one class of individuals than wiih another class, in consequence of peculiar habits, or of the district where an offence may have been committed.

But I cannot think that counsel intended to insinuate that there should be one law for the black man and another law for the white, or that it would be right for the white man to flog the black, and wrong for the black to flog the white.

The laws are made by the State for black and white alike ; and though, under certain circumstances, it may be competent for you to lay hold of a mail to bring him before a tiibunal of jubtice, the moment you al tempt to take it upon yourselves to punish the man you are acting unjustly and unlawfully.

And "now, gentlemen of ths jury, having, I hope, disabused your minds of the fact that any unusual course has been adopted by the Crown in this prosecution, let us approach the case as it stands Tins, then, is a charge of murder.

The homicide is not disputed. That an aboriginal male native was shot by the prisoner, as charged in the information, is admitted withoutdemur; but it is contended that the killing was justifiable, inasmuch as felony had been committed.

When a felon attempts to effect hid escape. But the necessity so to act must be apparent ; and the party slaying another under such necessity must himself be wholly without fault in bringing that necessity upon him- self.

Such, gentlemen of the jury, is the law governing investigations of this nature. The qnestion whether the native was slain, I say, is admitted, and that he was slain by the prisoner is also admitted ; there- fore, the ouly questions for your considera- tion are these ;- Was there good reason for supposing that the prisoner's life was in danger when be shot the aborigine?

WHS theie a necessity to kill? There might have been necessity to kill when so formidable a weapon was in the hands of the person assailed and when he turned round upon his assailant ; but was that necessity brought npon the prisoner at the bar without any fault of bis own?

If you find that there was no necessity for using the revolver, and that the native was recklessly and inconsiderately slain you will return a verdict of murder.

On the other hand if you consider that the neces- sity so to act was plaiu and manifest, you will have further to consider whether the prisoner was without blame in bringing that necessity upon himself; and should you find that be was not without fault but that, on the contrary, such necessity was induced by his own wrong action, it is my duty to tell you that such a necessity will not justify the killing.

Under these circumstances, however, it will be com- petent for you to return a verdict of manslaughter. With the view of assisting you in the consideration of this matter 1 will read to you the law on the subject, and will then endeavor to apply it to the few facts applicable to this case.

First of all 1 will read to you the distinction which the law draws between justifiable and excusable homicide.

Reads extract, be- ginning " Justifiable homocide is of three kinds. What is the evidence that we have with regard to the killing? The evidence relied upon by the prosecution is the entry in the prisoner's own journal, penned by himself ;-" My friend screwed himself away from me, aud ran towards the creek and would not stop.

When I got up to him he tried to throw his dowark at me, and I fired at him and shot him. He escaped from arrest which had been previously made, and for what purpose?

If it is in evidence that the aborigine had committed a felony it would have been competent for the prisoner to arrest him. But, first of all, you must be satisfied that this particular native had committed a felony, and having satisfied yum selves on that point you will next have to consider whether he was in legal custody when he escaped, and was the prisoner justified in further pursuing him.

If you be satisfied that the native who was shot had committed theft, and that he was legally apprehended, then comes the ques- tion for what purpose was he arrested?

Tüe only legal excuse for the apprehension of a person is to take him before a magis It is for you to consider whether the evidence adduced is reliable as to the prisoner having apprehended the native for the purpose, as alleged, of flogging him, or whether it was for the purpose of conveying him before a magistrate.

But it is my du tv, gentlemen, to tell you that this would not be a lawful excuse for the arrest. The only lawful purpose for which the apprehension could have been made would be with the view of taking the person apprehended before a magistrate.

It is, therrfore, for you to consider the evidence on this point, and to make up your minds whether the native was arrested for that purpose, or for the illegal purpose of flogging him, or of making him show where the remainder of the saddle was, Again ; with reference to the necessity for tbe prisoner using his revol- ver, and slaying the aborigine, it will be your duty iu considering that point, to bear in in mind that the prisoner was on horseback, while the native was on foot.

Although, gentlemen of the jury, you may come to the conclusion that the prisoner acted with great want of discretion, still, if you arrive at the opinion that he really did think that his life was in danger in consequence of the position which the native assumed towards him at the time he was being pursued for recapture, it will he competent for you to find the prisoner guilty of the minor offence, manslaughter, and acquit him of the graver charge, murder ; that is, it you think the necessity existed, but that he was not without fault in bringing upon himself that necessity of acting as he did.

But was he or was he not wholly without fault? Did he act as a disci eet person and a christian should.

The prisoner probably had reason to suppose that the native had been concerned in the larceny of the saddle, and although the larceny of a saddle in the city of Peath may not be a matter of great importance, it may be of all-impor- tance in the district where this occurrence took place.

The prisoner, then, having on his mind that his saddle had been stolen adopts the course which he pursued, and it is for you to say whether or not it was a lawful course.

The evidence and the discrepancies in the testimony of the various witnesses I tell you again to discard from your consideration altogether except when it bears upon these general points,-with the view of ascertaining whether the prisoner had reasonable grounds for believing tha this life was in danger, and then for the further considera- tion of the other point, whether when he took the native's life, that necessity which be so supposed to exist, and which, per- haps, did exist, had not been brought upon him by bis own illegal act in pursuing the native.

With reference to the advan-. But I hope there is no one in that box who would wish that the law of our land should not be universal in its application, to the poorest and the richest, to the blackest and the whitest alike.

All who come here with their cases must have them considered without reference to their complexion or their social position. With these observations, gentlemen of the jury, I am quite satisfied that you will give proper consideration to this case and the evidence which is applicable to it ; you will, therefore, please to retire and con- sider your verdict.

The jury retired at ten minutes to one o'clock, and returned into Court at twenty minutes to two, with a verdict of man- slaughter. Burges, that I should inform you that I have now a very painful duty to perform, but act- ing as I do under the law, and to admin- ister the law, I am uot able to shirk that duty.

It is my duty, in the first place, to state that I altogether agree with the verdict found by the jury ; nay, I think that they have taken a mild view of your case.

It is unnecessary. I am sure, Mr. Burges, to remind you of the very grave offenco that you have committed against the laws, both of God and man.

I am satisfied that the time you have had for reflection has brought you to a due sense of the impropriety of your con- duct. We are here in this colony for the purpose of colonization, which means that we are to endeavor, not only to work for our own benefit, but also to co-ope- rate with all Her Majesty's subjects in working for the well-being and bonefit of those unfortunate aborigines, the first in- habitants of the colony.

When I say unfortunate, I mean that they aje so, in- asmuch as they have uot had the advan- tages of a Christian dispensation ; and it is our duty to lead them, not by fire- arms, but by more persusive means, to a knowledge of our God.

It has been al- leged, Mr. Burges, that you have been hardly dealt with ; but I am quite satis- fied that, on reflection, your own good sense will lead you to see that your treat- ment has not been other than auy other person, under a similar accusation, would have received.

If the law were not ad- ministered equally and justly to black and white, what would be the position of the settlers of this colony?

Leaving out of the question the interests of the abo- rigines themselves, would it be safe for any person to traverse the vast district which you travelled when this unfortu- nate occurrence took placa, after what has taken place?

Would any person hazard such a journey when it is known that an act of this kind has been committed, and when the natives of this district are con- sequently in a state of agitation?

Does it not appear to you, Mr. Burges, that, by your act, all that has been accomplished by exploration, has been set at nought?

Does it not occur to you, that colinization and settlement will be deterred by your action? Then, and not till then, will people be able to travel with any degree of safety through the regions where a knowledge of this act has been spread.

Unless this can be done, I fear that-very serious con- sequences will result ; and I should not be at all surprised, unless the natives along the track which you travelled, are acquainted of this investigation and of its result ; I say I should not be at all surprised if the next party that endea- vor to traverse the sameNroad, with sheep or otherwise, will be mercilessly and recklessly murdered by these savages.

They have not lived under a Christian dispensation, and we cannot expect any- thing else at their hands ; but from you, Mr.

Burges, we had reason to expect otherwise. No doubt it was a grievous and sad loss, situated as you were, to lose a saddle ; but when you found that you could not recover it without taking life away,-you on horseback, too, and the.

It is quite clear, Mr. Burges, that that unfortunate man died at your hand, recklessly, and the jury, in my opinion, have taken a mild view of your case.

It would have been impossible, un- der the circumstances, that any twelve men, having any regard to the sanctity of their oaths and their own repu- tations to have found a different ver- dict : and I cannot, in apportioning your punishment, dismiss from -my mind the consideration that you have had superior advantages and have neglected them.

The judgment of the Court is that you be kept in penal servitude for five years. McCleery, foreman of the Jury in the case of L. Burges, drew His Honor's attention to the article in our last Friday issue, and bursting with anger and indigna- tion, requested that the Jury should be called in to contradict the statements made, in reference to their want of unanimity.

His Honor, very naturally, entered into their feeling, and informed them tnat if they erred they did so in good company.

McCleery then got his brother jurors to sign a letter, which was to be sent for publication to the 'Inquirer. McCleery, who replied that he did not require it to be published-and in that resolve, he used a wise discretion.

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Zones Zone operations are made directly in the full article text panel located to the left. Tables Tables. Metadata Heading Subheadings Authors Abstract The prisoner was charged with having feloniously, wilfully, and with malice aforethought killed and murdered an aboriginal native, name unknown, at or Cancel.

Loading article contents, please wait On this Page 2 Scroll to next page. Line 0. Line 1. Line 2.

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Dick Fitzgerald,. Yes ;. Line 4. Burges next morning miss saddle. Burges and the. Locke another.

Burges gave me charge to look. Burges point his revolver. Burges fired the revolver. Burges do then? Burges travel with a revolver.

Burges shot at. Did you bring. Burges shot the native,. Line 5. Piesse and. Burges come. Burges pointed a. Parker :. Survival rates are affected by how well you respond to treatment, along with other risk factors.

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