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No 42/132
The Hon
Col Sec

296
29 Jany. 42.

Sir,
On ye 28th ye Resdt Judge, I forwarded to you
for His X’s perusal & infmtn Mr. Justice
Willis’ notes in ye case of ye Queen v. Bolden.

I now feel it my duty to offer a few
observations on an opinion elicited during
ye course of ye trial in question which will
be found recorded in that paper & whh.
will probably have attracted His X’s attentn.

His X. will have observed that ye
evidence adduced by ye prisoner’s Counsel
to prove that ye Blks had, at ye time
they were fallen in with by Mr Bolden
& his party, actually committed depre=
=dations on his property was objected
to by ye Cr. Prosecutor, on ye plea that ye
mode of detection was improper.

In reply ye Court said that ye owner,
Lessee or person paying for a run, has a
right to use every lawful means for
recovering from any person white or Black,
any of his property attempted to be
illegally carried away; and further there
being no reservation in ye Grant, Lease or
Licence from Govt.: in favour of ye Abor:-
ye possessor had also a right by all
lawful means to turn off any person
whether white or black who should tres=
=pass on his run.

From ye high character of ye authority
from which this opinion has proceeded
I ought certainly unhesitatingly to
assume that ye legal principle laid
down is sound & incontrovertible; more=
=over that whether applicable to ye
state

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state of things in this new Colony or not
it will not fail to bear out any one,
who acts with sufficient caution in con=
=formity to it whatever may be ye
consequence.

I have nevertheless not hesitated
to express to His Honor my regret at its
doubtless necessary public promulgation,
and my fear that it may give rise to
evils which His Honor would be ye first
to deplore-

The blame however, as His
Honor will say, rests with ye framer &
not with ye enunciator of ye law.
I am quite willing to allow that ye
settler who firmly discourages ye visits
of ye Natives to ye immediate vicinity
of his home or out stations, acts wisely,
and both for his own & their interests.

At ye same time it has been generally
understood & most carefully inculcated
by ye Local Executive, that ye natural
right of occupation of ye Abor: inhabitants
of ye country however virtually extinguished
on sold land, was not disturbed by
ye mere acquisition by ye settler of a licence
to depasture stock on so called unsold
Crown lands: and that apart from
ye presumed illegality of attempting
complete expulsion there was a manifest
inhumanity in pursuing such a
course.

In many parts of ye country it
would in fact drive certain tribes
from every portion of ye wide District
to which their wanderings were ordinarily
limited, before any provisions could be
made