1914 - McNab, R. Historical Records of New Zealand, Vol. II. - RECORDS RELATING TO THE BRIG "ELIZABETH," p 578-603

[Image of page 578]

RECORDS RELATING TO THE BRIG "ELIZABETH."

The story of Captain Stewart and the brig "Elizabeth" has often been told, and, amongst a long list of brutalities inflicted by sea captains upon the Natives of New Zealand, has always been given pride of place for brutality.

The "Elizabeth" was a brig of 236 tons, and was commanded by John Stewart, of Southtown in Suffolk, one of her owners. On 19th August, 1830, she sailed from Sydney, and put into Whangaroa before making for Kapiti Island, the Headquarters of Te Rauparaha and Te Hiko. On her arrival she was chartered by the former, and sailed on 29th October, with a party of his fighting men, to wage war against Tamaiharanui, the Akaroa chief who had slain Te Pehi Kupe, the father of Te Hiko, when associated with Te Rauparaha in a former Expedition.

The papers published herein deal with the events which followed the arrival of the "Elizabeth" at Akaroa, and they were found by the Editor amongst the New South Wales Papers of 1831 and 1832 in the Record Office in London.

MAGISTERIAL REPORT TO GOVERNOR DARLING.

Police Office Sydney
7th February, 1831.

Sir,--

We have the honour to report to you for the information of His Excellency the Governor that having been apprized that a transaction of a criminal character had taken place at New Zealand in which the Captain of the Elizabeth Brig, John Stewart, and some other persons in that vessel took a prominent part. We have taken the examinations of several witnesses (and more evidence in confirmation can be procured) which we have the honor to transmit herewith.

From a perusal of these Documents it will appear that a Native Chief of New Zealand has been received on board the Elizabeth Brig, and in a treacherous manner given up to certain other natives, his enemies, by whom he was put to death. That such conduct as is detailed in the evidence taken, would generally entail a capital punishment on the parties implicated, there

[Image of page 579]

can be no doubt; but as there is some doubt existing as to the extent of the Criminal Jurisdiction given by the Act of 9 George 4th, Cap: 83 as applicable to this case.

We have the honor to request that the opinion of the Crown Officers may be taken upon the question of how far the Magistrates are justified in proceeding with a view of putting the apparent criminals on their trails for murder. As the vessel is on the eve of departure we beg to suggest that an immediate answer may be given.

We have &c.
F. ROSSI J. P.
F. HELY J. P.
The Honble Colonial Secretary.

[Enclosure.]

DEPOSITIONS OF G. D. BROWNE.

GORDON DAVIES BROWNE, of Sydney, being duly sworn, on his oath saith.

I have been informed and believe that the Brig Elizabeth, Stewart, Master, was chartered by Mr. Thomas Street to proceed to New Zealand for flax with Mr. Cowell as interpreter.

They were for some time unsuccessful, but on arriving at Entry Island (Kafute) in Cook's Straits, they entered into the following agreement with one of the principal chiefs, called the Rauparaha, of that place, for a cargo. That they should convey the Rauparaha and a party of his warriors to Banks Peninsula on the east side of the Middle Island, for the purpose of capturing the chief called the Maitraranui, 1 of that District, bring them back to Entry Island, when they would receive a quantity of flax in payment.

The Rauparaha and his men embarked accordingly. On arriving at Bank's Peninsula they lay concealed in the hold of the vessel until the Matraranui (the chief they were in search of) and a number of his tribe had come on board unarmed, as is usual with them when visiting European vessels for the purpose of trade. They then rushed out upon these unsuspecting and defenceless visitors, and seized upon the Matraranui and several others, the rest escaping to the shore.

The Elizabeth carried them back to Entry Island, where the prisoners were taken on shore and shot. She then received her payment and has returned with it to this port.

Sworn this 5th February, 1831, before) F. ROSSI J. P. --- GORDON D. BROWNE.
P. Superintend of Police.

[Image of page 580]

Deponent further, on his oath saith:

I have been informed and believe that J. B. Montefiore Esq. and Arthur Kemmis Esq. were passengers on board the said Brig Elizabeth on her return from Entry Island.

Sworn the 6th February, 1831 before F. ROSSI J. P. --- GORDON D. BROWNE.
P. Superintend of Police.
FREDK. A. HELY J. P.

[Enclosure.]

DEPOSITIONS OF J. B. MONTEFIORE.

JOSEPH BARROW MONTEFIORE, Esq., being sworn, on his oath

I am a merchant, residing in Sydney. I came from New Zealand, and arrived here on the 14th January last, on board the Elizabeth, of which John Stewart is Master. I went on board the Elizabeth at Entry Island, in New Zealand on the 23rd or 25th December last; that was about three or four days after my arrival at Entry Island, where the Elizabeth then was. Capt. Stewart was on board and also the First Mate, Mr. Clementson. I had heard that there was a New Zealand Chief on board from Bank's Peninsula, named Mara Nui. I saw him on board the Elizabeth on deck. I saw him afterwards several times. I think he was in chains. He was kept down in the forecabin. About 10 or 14 days before the Elizabeth sailed he was liberated. I was down below when he was liberated, and, on my going on deck, Mara Nui was in a canoe which was then about half way off between the ship and the Island. The canoe returned from Entry Island with the same chief in her, when I got on board the same canoe and accompanied the Chief to the mainland, to Otauka, about ten miles distant from the ship. The boat was rowed by natives. Mr. Cowell (the Supercargo) and myself were the only Europeans in the boat. At Otauka I saw the Chief, Mara Nui, land. I can't say if he was then in chains but I think not. I went with him to the place of a native chief called the Rassaraha. 2 Rassaraha was in the canoe with us. There was a native boy, who, I understood, came from Banks Peninsula, also on board the Elizabeth. He was not a prisoner. He came to Sydney with us. On the following morning I went to Hacho's Settlement, and, in 5 or 6 hours after, I saw Mara Nui come there, I think in a canoe. They displayed him there.

[Image of page 581]

He looked very grave, and the women were laughing at him. I went away in about 2 or 3 hours and never saw him again. I heard afterwards that he had been eaten. I think I heard it from the Natives. I heard that he was killed by sticking a knife in his throat. I think I heard this from Mr. Harvey, an European who is now on the mainland. I heard also that the wife of Mara Nui had been on board the Elizabeth, and I heard also that she had been eaten. Captn Stewart told me, when he came down to me, that he had got rid of him, or that he was gone--alluding to Mara Nui. I heard him say that Mara Nui was the man who had killed Sai, the father of Hacho. He told me that the Rassaraha, and other chiefs, had gone down with him from Entry Island to Bank's Peninsula. I never talked much with Captn Stewart about it. I understood from some of the Native Chiefs of Entry Island that they had gone down in the Elizabeth, and had a fight and taken Mara Nui prisoner. I did not understand that Captn Stewart had given them any assistance. Mr. Clementson, as I understood, was on board the Elizabeth at Bank's Peninsula. He said the chiefs were armed with muskets, and were down below. I heard that Mara Nui was brought on board in the Elizabeth's boat, but I don't recollect having heard that any fight took place on board the Elizabeth. There was a war between the natives of Bank's Peninsula and Entry Island, and had been for some time. I heard that an Agreement had been made with the principal Chiefs of Entry Island to take them down to Bank's Peninsula. I heard that between one and two hundred men of the Natives went with the Elizabeth to Bank's Peninsula. I heard the Elizabeth was to have a cargo of flax for that service. I was shown by Mr. Harvey the spot where he stated part of the body of Mara Nui had been burnt. This was at a place called Wyeauhi. I heard that the Elizabeth was 8 or 10 days at Bank's Peninsula before the people of Bank's knew that the Entry Island people were on board the Elizabeth. I think Mr. Clementson told me that they threw overboard a basket of arms and legs, which the Entry Island people brought on board the Elizabeth. I heard that the infant child of Mara Nui and his wife was strangled on board the Elizabeth by one of its parents.

Sworn in the Magistrates Private Room at Police Office, Sydney, 5th February, 1831, before
F. ROSSI J. P.
P. Superintend of Police.
F. A. HELY J. P.

J. BARROW MONTEFIORE.

[Image of page 582]

[Enclosure.]

DEPOSITIONS OF PERY.

MR. GORDON DAVIES BROWNE being sworn to interpret truly between the Court and Pery; saith--PERY.

I am a native of Hakaroa at Bank's, and came to Sydney in a ship, the captain of which saw me ashore, and promised to take me to Europe. A vessel had arrived at Bank's, and the Rassar had a chief of Kasiti (Entry Island), who was their enemy, concealed on board, and the natives of Bank's did not know it. I was at Bank's when the vessel arrived there, and was informed by the white people on board that they had plenty of muskets to purchase flax, and Mara Nui (our principal chief) was invited to come on board. He did go on board and the chief mate of the vessel put irons on his wrists and on his legs. He did not suspect any danger. Mara Nui's wife was also taken on board, with a female child of theirs. I saw them on board. I do not know how the child died, but I saw the dead body thrown into the sea by the Chief Mate and other persons. After Mara Nui was put in irons, the Natives of Entry went on shore at Bank's in the ship's boats and destroyed the village where Mara Nui was chief. They burnt all the place, and a great number of people were taken prisoners on board the ship. In the fight that took place I saw the white people of the ship take prisoners many of the Bank's people and hand them over to the natives of Entry. I am the son of Mara Nui's younger brother. I am a slave here, for I have been brought here by force. I did not see the fight that took place on shore, but I was told of it. The people of Entry brought on board a great quantity of human flesh in baskets but it was drest on shore, not in the ship. On the ship heaving up the anchor 10 guns were fired. The ship remained about 10 nights at Bank's. We were 5 nights in the passage to Kasiti. On arriving there the prisoners were delivered over to the Rassarhan, and taken ashore in canoes. I was the only one of our tribe who remained on board the ship. I heard that the price of the service was to be paid in flax, and the people of the ship were very angry at not getting the payment. The people of the ship expected the flax would have been a free gift, but they had to pay muskets and powder for it. I heard that the Mara Nui and his wife were taken ashore and killed. The Mara Nui had a cord around his neck and was killed with a knife and cooked. One of the sailors brought two of his fingers aboard the

[Image of page 583]

ship. I ran away from the ship. I came in here for fear, and went aboard another ship.

Taken before me this 5th February 1831

F. ROSSI J. P.
P. Superintendent of Police.
The mark of X PERY.

[Enclosure.]

DEPOSITIONS OF A. KEMMIS.

ARTHUR KEMMIS Esquire, being sworn, on his oath saith.

I am a Merchant and at present reside in Sydney, I went hence to New Zealand and arrived at Entry Island in November last. I found there the Elizabeth, Stewart, Master, and went on board her. I saw Captain Stewart and some Natives. I saw a Native Chief sitting on the deck, who, I afterwards understood, was Mara Nui a chief of Bank's Peninsula. I saw him during the 2 days I was on board the Elizabeth, three or four times. I understood he was a prisoner from Bank's Peninsula taken by the chiefs of Entry Island. I understood from the Natives whom I saw as soon as we had cast anchor. I understood from them, before I went on board the Elizabeth, that a number of them had gone down to Bank's Peninsula, in the Elizabeth, and had made a great fight and had taken Mara Nui, who was on board the Elizabeth, prisoner, and who was to be eaten as soon as the Elizabeth quitted Entry Island. I understood the language very imperfectly but that was the substance of what I gathered from them. I understood that they had made war on the Bank's people in revenge of the death of Pai, 3 and some white people of the Samuel 4 (a vessel of Mr. Street's), whom Mara Nui had put to death. I heard, I think from the Chief Mate, Clementson, that Mara Nui had been killed and eaten. I understood that Mara Nui had his wife on board, and that she had been at first made a slave, and afterwards had been killed on the main at a place called Ataka. I remember Clementson saying that he had seen a scene at Bank's which he never wished to see again. I understood from the general report of white people and Natives that about 190 of the Natives of Entry Island were taken on board of the Elizabeth, and taken down to Bank's Peninsula, and that Mara Nui either came on

[Image of page 584]

board the Elizabeth or was decoyed there, and afterwards the Natives of Entry Island landed and massacred a great number of the people of Banks. I heard once that Mara Nui was enticed on board by a cook who shipped on board the Elizabeth at New Zealand, and who is now, I believe, at Otaheiti. I never saw any chains upon Maru Nui when I saw him on board the Elizabeth.

Sworn in the Magistrates Private Room Police Office, Sydney, 5th February, 1831, before
F. ROSSI J. P.
P. Superintendent of Police.
FREDK. A. HELY J. P.
ARTHUR KEMMIS.

[Enclosure.]

DEPOSITIONS OF W. BROWN.

WILLIAM BROWN, being sworn, on his oath saith.

I am a seaman on board the Elizabeth, Stewart, Master. I shipped in England 14 months ago. I have been employed on board the said ship ever since. I was at New Zealand. We first touched at Whangaroa and afterwards at Entry Island. When at the latter place we took on board a number of Natives, I should think about 100. They were armed with muskets and native arms. They came on board in their own canoes and brought their own provisions along with them to Bank's Peninsula. We kept them on board three or four days after our arrival there. They were kept down below, but a number of them appeared on deck. They went ashore in the ship's boats in the evening. They took their arms with them. They went away some few miles from where the ship lay. The next morning they returned on board the Elizabeth in canoes. There was a native woman on board; she was the wife of a chief named Mara Nui. Three or four days after our arrival and before the landing of the natives, the Captain and the Trading Master (Mr. Cowell) went on shore in the boat to shoot. There were four or five men of the ship in the boat unarmed, and on our return we met a canoe with a chief in it; he hailed us, and we pulled slowly till he came up with us; he was very glad to see us; Mr. Cowell spoke to him in the native language, and afterwards the chief came on board the ship--very gladly as it appeared to me. A little girl about 11 years of age, and three or four natives, were with him. The little girl and the chief came on board our boat, and the other boat rowed away. The Chief and the little girl went down into the cabin and they were kept there. The same evening the natives of Entry Island

[Image of page 585]

went ashore, as I have before related. When the Chief was aboard, 2 or 3 canoes came on board and were seized by the natives of Entry Island, and the men put below. The Entry Island natives took the canoes and went on shore with them and a skiff and a whale boat belonging to the ship. In a day or two after, we returned to Entry Island, and all the natives went ashore. I heard that Mara Nui and his wife strangled the little girl. All the men seized at Banks Peninsula and the Chief, Mara Nui, were taken ashore at Entry Island. They went ashore in the native canoes. On our return from Banks Peninsula I picked up two human hands and some other bones which were flung overboard. The natives of Entry Island brought on board at Banks Peninsula several baskets of flesh which they afterwards cooked, and we judged that it was human flesh. Mara Nui, when he came on board, was invited, I think, by the Chief Mate to go down below. The Captain was at this time in the boat. The Chief was the first to go out of the boat into the Elizabeth. The Chief Mara Nui, was in irons--leg irons--all the time he was on board. The Chief Mate supplied the irons. The wife of Mara Nui was put in irons after they strangled the child. The Chief, Mara Nui, and his wife were taken on shore at Entry Island. I heard that the ship was to be filled with flax for the service of taking the Entry Island people to Banks Peninsula. That was the general report on board the ship. As soon as the Entry Island people returned on board from Banks Peninsula the Captain desired 10 of the ships guns to be fired. There was no shot in the guns. We heard that the Entry Island people killed a good many people and burned a village while they were ashore. I went ashore with the Captain and Trading Master on the morning after the Entry Island people had landed and four or five of the ship's crew all armed with small arms and swords by order of the Captain. I saw the bodies of 6 or 7 people that had been killed the preceding night, and the village was still in flames. The bodies consisted of men, women, and children. About a dozen of the Entry Island natives were there when we landed. In about half an hour after that we returned on board the Elizabeth. Mr. Cowell, I believe, spoke to the Entry Island natives. One of the females of Banks Peninsula I saw come out of a house which had been set fire to, and she was covered with blood as if wounded. The natives at Entry Island pushed her down the hill and killed her by throwing spears at her. The First Mate, Mr. Clementson, was at this time on board the Elizabeth to take care of Mara Nui. Francis Richardson and George Brown were in the boats. We heard from the Europeans on the main that Mara Nui and his wife were killed. Hacho and

[Image of page 586]

Roberry were names of two of the chiefs of Entry Island that we took in the Elizabeth to Banks Peninsula. Roberry and another great chief landed with us in the ship's boat the morning after the general landing of the Entry Island people. The Chiefs Hacho and Roberry remained on shore. The ship's boat went again in the afternoon and Mr. Cowell or Mr. Richardson had the command. We then landed on the other side of the harbour and saw the natives of Entry cutting up the bodies of persons killed, belonging to the Banks Peninsula. We brought up nine natives of New Zealand to Sydney. One of these is a native of Banks Peninsula. He is now on board. Seven of the natives have run away since our arrival at Sydney.

Sworn the 7th February, 1831 before
F. ROSSI J. P.
P. Superintendent of Police.
FREDK. A. HELY J. P.
WILLIAM BROWN.

[Enclosure.]

DEPOSITIONS OF J. SWAN.

JOHN SWAN, being sworn, on his oath saith.

I am a carpenter on board the Brig Elizabeth, Stewart, Master. I shipped on board her at the London Docks, 22 February, 1830. I have been on board ever since. I was on board of her at New Zealand. I was at Entry Island about the month of September last in the Elizabeth. We staid there about three weeks. We took on board there some natives about 100 men. They had muskets and tomahawks. There were chiefs on board. We went afterwards with them to Banks, where, in two or three days after our arrival, the crew were called out, and the skiff and whaleboat were manned with part of the ship's crew, and the natives of Entry were landed on each side of the Harbour, with their arms. This was between 1 and 2 in the morning. On the day before that the Captain was on shore with his boat, and on his return he had a native chief of Banks named Mara Nui with him. Mara Nui came on board and either was invited, or of his own accord went down below in the cabin. The Captain, Richardson, and George Brown were in the boat when the Chief came on deck first. Mr. Clementson was on the deck. I saw him (the Chief) afterwards. He was kept in the fore cabin. He was in irons. His wife was with him, and a little girl, his daughter, that came on board with him. His wife came on board afterwards, on

[Image of page 587]

the same afternoon that he came on board. The natives of Entry who had landed came again on board the following night, and they brought baskets with them, but I do not know of my own knowledge that any human flesh was in them. I saw a human hand after our arrival at Entry. It was brought up out of the hold. Mr. Cowell (the trading master) was on board the boat which brought Mara Nui on board. After the landing of the Entry Island natives I saw the smoke of a fire in the village ashore, and that morning before breakfast I saw the captain return on board, and after that (after breakfast) a boat from the ship go ashore with two of the Entry Island chiefs, Mr. Cowell and Wm. Brown. The boat's crew had arms in their hands. After Mara Nui was brought on board, two canoes of Banks came on board with six or seven persons, who were seized by the natives of Entry and taken down into the hold. The canoes were kept, and went ashore with the general landing of the Entry Island people. The skiff and whale boat accompanied. When the natives of Entry returned on board, they brought with them about twenty prisoners who were put down in the hold. I went on shore with the boat after breakfast. On the morning at the general landing, two chiefs, one of them called Rapaura. Richardson, William Brown, George Wall, and Mr. Cowell were in the boat. We were armed with swords and pistols, and we all landed on one side of the harbour. The Chiefs joined some of the natives of Entry Island. There were lying on the ground fifteen or sixteen dead bodies of men, women and children. I saw some of the Entry Island natives, and the two chiefs, cut up some of the bodies and make a fire, In about two hours the Chiefs came to the boat, and we returned on board the Elizabeth. We remained at Banks altogether about five or six days. The vessel then returned to Entry Island with the natives and their prisoners. The prisoners all landed there except the little girl, the daughter of Mara Nui, who, I heard, was strangled on board by her parents. The irons that were put on Mara Nui were put on by the Chief Mate, I was desired by the Captain to go down with two others to assist him. He made no resistance, but spoke, and seemed, much agitated. On our return all the prisoners were kept down in the hold. The Entry Island natives were down in the hold. The prisoners were landed there. Mara Nui's wife was first landed, and two or three days after, Raparau, the Chief of Entry Island, took Mara Nui away. Francis Richardson brought him up from the fore cabin. Captain Stewart was on board, but I can't say if he was on deck or not. Raparau took way the Chief, Mara Nui, in a canoe manned with natives, and I heard that he was afterwards killed. I heard that the

[Image of page 588]

ship was to have a cargo of flax for the service. We were to have a preference in the trade to any other vessels that might come in. We received there about 16 or 18 tons of flax. We were about six weeks taking it in. It had to be made. At Banks the assistance given by the ship was towing the skiff full of men (natives) on shore. On the return of the Entry Island natives on board after the fight, the guns were fired, with powder only.

Sworn the 7th February, 1831 before
F. ROSSI J. P.
P. Superintendent of Police.
FREDK. A. HELY J. P.
JOHN SWAN

OPINION OF W. H. MOORE.

George Street, Sydney,
7th February, 1831

SIR, --

I have read over the depositions respecting the transactions said to have taken place at New Zealand between the Master and Officers of the vessel Elizabeth, and the natives of that place, and I think they do not disclose a sufficient body of facts to warrant a commitment of any of the parties by the Magistrates. I have also very great doubt (notwithstanding the atrocity of conduct of the parties concerned) whether any offence has been committed which is cognizable by the Common Law of England. If there had been, the clause alluded to in the Act of 9 Geo 4th. cap. 83 would certainly reach it.

I have, etc.
W. H MOORE.
The Hnble Colonial Secretary.

9 GEO. IV. CAP. 83, SEC. 4.

This section reads as follows:--

"And be it further enacted, That the said Supreme Court in New South Wales and Van Diemen's Land respectively shall, and may enquire of, hear, and determine all Treasons, Piracies, Felonies, Robberies, Murders, Conspiracies, and other Offences, of what Nature or Kind soever, committed or that shall be committed... in the Islands of New Zealand... by the Master or crew of any British Ship or Vessel, or any of them... and that all Persons convicted of any of the Offences so to be enquired of, heard, and determined in the said

[Image of page 589]

Courts respectively, shall be subject and liable to and shall suffer all such and the same Pains, Penalties, and Forfeitures as by any Law or Laws now in force Persons convicted of the same respectively, would be subject and liable to in case the same had been committed and were respectively enquired of, tried, heard, determined, and adjudicated in England: any Law, Statute, or Usage to the contrary notwithstanding.

COLONIAL SECRETARY, SYDNEY, TO CROWN SOLICITOR.

Colonial Secretary's Office,
12th February, 1831.

SIR,--

In acknowledging the receipt of your letter of the 7th instant stating that you entertained great doubt whether any offence has been committed which is cognizable by the Criminal Law of England by the Master and part of the the crew of the brig Elizabeth in their late transactions at New Zealand, I have the honour by direction of His Excellency the Governor to return to you the enclosed Depositions in the case and to request that you will immediately file Criminal informations against the Master, Mate, Cowell, Richardson, and G. Brown, it being considered highly expedient that the parties concerned in this atrocious case should not go unpunished.

I have &c.

To W. H. Moore Esq. Alex. McLeay.

Crown Solicitor.

CROWN SOLICITOR, SYDNEY, TO SUPERINTENDENT OF POLICE.

George Street,
12th February, 1831.

SIR,--

The Depositions in the New Zealand business do not give me the names of the parties. I have prepared everything according to my instructions from the Colonial Office, but I cannot proceed without the proper Christian names. I have sent to Messrs. Lamb and Buchanan and everywhere I can think, but cannot obtain them, and I fear it is now too late to do anything further this evening.

If the vessel should not sail till Monday pray let me know early in the morning in order that I may obtain a Judge's Warrant to apprehend the parties.

Yours &c.

W. H. MOORE.
F. ROSSI ESQ.

[Image of page 590]

CROWN SOLICITOR, SYDNEY, TO SUPERINTENDENT OF POLICE.

George Street, Sydney
17th February, 1831.

SIR, --

Having filed an Information in the Supreme Court against the Master of the brig Elizabeth, and others concerned in the late transactions at New Zealand, I now enclose you the depositions already taken in order that you may take such depositions of other persons as will enable me to lay the case before the Supreme Court at the ensuing Sessions (now the Civil Court has adjourned) I am about to prepare for.

I am &c.
W. H. MOORE.
F. ROSSI Esq.
P. Superintendent of Police.

The Depositions were returned to me 23rd February, 1831.
W. H. M.

COLONIAL SECRETARY TO CROWN SOLICITOR, SYDNEY.

Colonial Secretary's Office,
8th April, 1831.

SIR,--

Drawing your attention to my letter of the 12th February last. I am directed by His Excellency the Governor to request that you will let me know for his information the present state of the enquiry respecting the conduct of the Master and Crew of the brig Elizabeth at New Zealand.

I have &c
ALEXR MCLEAY.
H. W. MOORE Esq.,
Crown Solicitor.

CROWN SOLICITOR, SYDNEY, TO COLONIAL SECRETARY.

Attorney General's Chambers,
12th April, 1831.

SIR, --

In answer to your letter of 8th instant respecting the conduct of the Master and Crew of the brig Elizabeth at New Zealand, I have the honor to state to you for the information of His Excellency the Governor that in pursuance of the instruction's I received from him through your office, I filed an information in the office of the Supreme Court and moved the Court for a Bench Warrant thereon against all the parties named in your letter of 12th February last, which was placed in the hands of the Chief Constable who apprehended the Master of the vessel, Captain Stewart, whom I afterwards admitted to bail to appear before the Supreme Court when called upon for

[Image of page 591]

trial. The other parties I understood from the Chief Constable when I last spoke to him had not been apprehended in consequence of their keeping out of the way. I am given to understand by Mr. Keith, who has been retained by Mr. Gordon Davies Browne on the part of the prosecution, that exertions have been made by some individuals in Sydney to get the last mentioned parties with the most material witnesses to the transaction, out of the Colony, and that Gentleman informs me he is now preparing a statement to lay before the Governor on that head.

I enclose copies of two letters I wrote to the Principal Superintendent of Police on this matter but the Depositions were subsequently returned to me without any fresh evidence having been taken.

I have &c
W. H. MOORE.
The Honble The Colonial Secretary.
(Copies of letters of 12th and 17th Feb. encl.)

COLONIAL SECRETARY, SYDNEY, TO SUPERINTENDENT OF POLICE.

Colonial Secretary's Office,
13th April, 1831.

SIR,--

In transmitting to you the accompanying extract of a letter from Mr. Moore, I am directed by the Governor to request that you will call upon the Chief Constable to account for his not having executed the Warrant put into his hands for the apprehending the parties concerned in the affair of the brig Elizabeth at New Zealand, and that you will express to him His Excellency's desire that he will immediately use all possible diligence to apprehend those parties or to learn how, and by whose means, they, and the witnesses, have been sent out of the Colony, if such is the case.

I have &c
ALEX MCLEAY.
The Principal Superintendent of Police.

COLONIAL SECRETARY, SYDNEY, TO CROWN SOLICITOR.

Colonial Secretary's Office,
13th April, 1831.

SIR,--

In acknowledging the receipt of your letter of yesterday's date, I am directed by the Governor to request that you

[Image of page 592]

will let me know for His Excellency's information what measure you took for securing the evidence of the witnesses in the case of the brig Elizabeth at New Zealand.

I have &c
ALEX MCLEAY
W. H. Moore, Esq.,
Crown Solicitor.

GOVERNOR DARLING TO THE SECRETARY OF STATE.

New South Wales
Government House
13th April, 1831.

My LORD, --

* * * *

I have to make known to your Lordship the circumstance of an event which is distinguished as an act of premeditated atrocity on the part of the Master and Crew of a British Vessel, the object of which was to obtain a common article of merchandize.

It appears that a Captain Stewart, of the brig Elizabeth, a Trader between this and New Zealand, being desirous of procuring a Cargo of Flax, proceeded for the purpose to Entry Island, which lies in Cooks Straits and there entered into an agreement with a chief name Rauparaha to supply him, on the condition of his conveying Rauparaha and his Tribe to Banks Peninsula, which is on the eastern Coast of the Middle Island, (The Islands of New Zealand consisting of three) in order to their having an opportunity of avenging some act formerly committed by the People of that District.

Captain Stewart received the Chief and his People on board the Elizabeth, who, it is stated, were numerous, exceeding 100, and proceeded with them according to his Agreement.

The following was related to me this morning, by a son of one of the principal Chiefs, who said his father had desired he would come to Sydney and tell the Governor all that happened, that the White People might be punished.

This man who appeared extremely intelligent, stated that the Natives were kept on board the Elizabeth in perfect secrecy, so much so, that it was not known that they had arrived, until some days after, when they landed. It appears that Captain Stewart went on shore, in the meantime, and used every possible artifice by professions of kindness and the offer of arms and ammunition, to induce the Chief of the District, Mara Nui, 5 to go

[Image of page 593]

on board of his Brig. He at length succeeded and Mara Nui took his daughter with him, a girl, as described, of 11 or 12 years old.

They were taken into the Cabin and Mara Nui was immediately put in Irons by the Mate named Clementson. Unacquainted with his fate, Mara Nui's wife proceeded on board and several Canoes went off, the people as they arrived being secured by Rauparaha, whose Tribe, as I have stated, remained in concealment on board the Elizabeth.

After securing the Chief, to which it appears some importance was attached (by the exertions used by Captain Stewart to induce him to visit his Vessel) Rauparaha and his people landed the same night, and appear to have indulged their natural ferocity to the utmost, by putting everyone to death, without distinction of sex or age, and burning their village to the ground.

It seems they were re-embarked, with the remains of their victims, which were not reserved as mere trophies but also made use of to gratify their inhuman appetites. Mara Nui and his Wife, seeing the fate which awaited them, strangled their child; and, as they appear to have foreboded, they, with the other Prisoners, on the return of the Elizabeth to Entry Island, were landed and put to death in cold blood.

The Native, whom I have mentioned as having related these facts, was accompanied by a fine lad of about fifteen, the nephew of Mara Nui. He was made prisoner at Banks Peninsula, and said that three of Mara Nui's brothers had been killed on that occasion, or afterwards put to death at Entry Island.

The sanguinary proceedings of these Savages could only be equalled by the atrocious conduct of Captain Stewart and his Crew. Rauparaha may, according to his notions, have supposed that he had sufficient cause for acting as he did. Captain Stewart became instrumental to the massacre, (which could not have taken place but for his agency) in order to obtain a supply of flax.

This event was first brought under my notice early in the month of February last, and I lost not a moment in giving orders that it should be immediately proceeded in; the Elizabeth, the Captain, and the Crew, being here at the time. The depositions which were taken before the Magistrates (Copies of which are enclosed for your Lordship's information) were referred to Mr. Moore, the Crown Solicitor, on the 7th of February, the day they were received. But it will be seen by the accompanying copy of Mr. Moore's Letter, that he entertained doubts whether there were sufficient grounds for putting the parties on

[Image of page 594]

their Trial. I, nevertheless, desired that he should proceed, as will be seen by the accompanying correspondence, considering it a case in which the Character of the Nation was implicated and that every possible exertion should be used to bring the offenders to justice. It has, however, lain over to the present time, and there is reason to apprehend, that the parties, with the exception of Captain Stewart, who is admitted to Bail, have all left the Colony, which may render any proceedings in his case ineffectual.

A Mr. Gordon Browne, who resided for some time in New Zealand and who intends to return thither, first brought this matter under notice. I delayed taking any further steps until the result of the legal proceedings should be known. A recent occurrence, however, has induced Mr. Browne again to draw my attention to the subject, which, coupled with the appeal, made to me by the New Zealand Chief through his Son, as I have already stated, appears to me to render it necessary that the Government should not, by any supineness on the part of its Officers which it may have the power of counteracting, allow it to be supposed that these proceedings are countenanced or viewed with indifference....

I have &c
R. A. DARLING.

CROWN SOLICITOR, SYDNEY, TO COLONIAL SECRETARY.

Attorney General's Chambers
14th April, 1831.

Sir,--

I have the honour to acknowledge the receipt of your letter of yesterday and beg to state for the information of His Excellency, that I had no means in my power of taking any measures for securing the evidence of witness in the case of the brig Elizabeth at New Zealand.

I forwarded the Depositions that were taken to the Principal Superintendent of Police for the purpose of obtaining further evidence, but that Gentelman returned them to me, on the ground of his want of jurisdiction, which he in the first instance doubted and therefore forwarded the Depositions to the Government instead of sending them to the Attorney General's office, which is the usual mode, and considering that my letter to you of 7th February last substantiated what he was previously in doubt about he was fearful of proceeding any further.

I have &c
W. H. MOORE.
The Honble The Colonial Secretary.

[Image of page 595]

THE TREASURY, LONDON, TO THE SECRETARY OF STATE.

Treasury Chambers
3rd October, 1831.

MY LORD,--

I am commanded by the Lords Commissioners of His Majesty's Treasury to acknowledge the receipt of your Lordship's Letter of the 27th Ultimo transmitting the Copy of a Despatch from Lt General Darling, Governor of New South Wales, respecting the misconduct of Captn Stewart and the Crew of the Brig Elizabeth at New Zealand, by whose means atrocities of a most sanguinary nature have been committed by the Natives of one Island against those of another.... My Lords cannot refrain from expressing their strong sense of the importance of all possible means being employed for bringing to justice Captn Stewart of the Elizabeth and any other Persons who may have been principally concerned in the atrocious Crimes of which they are accused. My Lords are surprised that Govt Darling should have been unable to obtain sufficient evidence of all the facts of the Case when the Crew of the Elizabeth were at Sydney for putting the principal portion on their trial, and my Lords cannot but remark on the Governor's Statement that the matter "has lain over to the present time," from which expression it would appear that every exertion to bring the accused to justice had not been employed. My Lords have, however, no doubt that the Governor has been directed by Viscount Goderich to leave no exertion untried for the purpose of obtaining Evidence, and bringing the Chief offenders to justice, and my Lords will refer Governor Darling's letter to the King's Proctor for any suggestions he may have to offer with a view to the same object, and as it appears by the said letter that other Documents relating to these atrocities have been received at the Secretary of State's Office My Lords will direct the King's Proctor to attend at his Lordship's office for the purpose of inspecting such Papers as Lord Goderich may be pleased to permit him to examine.

I am My Lord Your Obedient Servant
J. STEWART.

KING'S PROCTOR TO THE LORDS OF THE TREASURY.

To the Right Honourable
The Lords Commissioners
of His Majesty's Treasury.

May it please your Lordships

I was duly honored with Mr. Stewart's letter of the 14th October last transmitting by Your Lordships Commands a

[Image of page 596]

letter from Lord Howick dated the 27th of the preceding month of September enclosing the copy of a Despatch from the Governor of New South Wales stating that atrocities of a most sanguinary nature had been committed at New Zealand by certain Natives of one Island against those of another at the instigation of the Crew of a British Merchant Vessel and suggesting certain measures for the protection of the lives and properties of the British subjects residing in New Zealand as well as the very valuable Trade of those Islands. Mr. Stewart also transmits a copy of Your Lordship's Minute thereon of the 30th of the said month of October for my information and guidance. Upon perusal of the Minute it appeared that Your Lordships had been pleased to refer Governor Darling's Letter and Enclosures to me for any suggestions I might have to offer with a view to bringing to Justice Captain Stewart of the Elizabeth and any other person who may have been principally concerned in the atrocious crimes of which they are accused and that it was Your Lordship's pleasure that I should attend at Lord Howick's Office for the purpose of inspecting such other papers relating to these atrocities as Lord Goderich might permit me to examine. And I do most humbly report that having attended at his Lordship's office accordingly I was permitted to peruse the whole of the Papers relating to this subject, the substance of which together with that of the several Documents referred by Your Lordships were stated in a case which I submitted to the consideration of His Majesty's Advocate General and subsequently at his suggestion and with the concurrence of Mr. Stewart to His Majesty's Attorney & Solicitor General. And I have now the honour to transmit for Your Lordship's Information A copy of such case and of the opinion of His Majesty's Advocate and Attorney and Solicitor General thereon.

All of which I do most humbly submit to Your Lordships Wisdom.

NICHOLL.
Doctors Commons
5 December, 1831.

[Enclosure. ]

Copy of the Opinion of the King's Advocate and of the Attorney and Solicitor-General on a Case relating to the conduct of Captain Steward of the Merchant Brig Elizabeth engaged in trading between New South Wales and New Zealand.

His Majesty's Advocate and Mr. Attorney and Solicitor General are requested to consider the Facts and Circumstances of the Case as appearing in the papers stated and with reference

[Image of page 597]

to the strong sense expressed by the Lords of the Treasury of the importance of all possible means being employed for bringing to Justice Captain Stewart of the Elizabeth and any other persons who may have been principally concerned in the atrocious crimes of which they are accused. They are further requested to suggest any measures which may occur to them as proper to be adopted for effecting the object which their Lordships have in view.

Opinion of His Majesty's Advocate and Mr. Attorney and Solicitor-General.

We think it clear that by the Law of England Captain Stewart and Clementson as the Mate are guilty as accomplices before the Fact, to the Murder of Mara Nui and his wife if not to that of the Tribe which was massacred and we think the Fact fully proved by the Witnesses. It is also clear that the 3rd and 4th Sections of the 9th of Geo 4 Cap. 83 give the Court at Van Diemens Land Jurisdiction to try these offences. We therefore lament that measures for securing and bringing them to Trial were not taken at New South Wales. We advise that they should be apprehended as soon as they can be met with and brought to their Trial when the attendance of the Witnesses against them can be procured......

Signed
HUBERT JENNER
T. DENMAN
WM. HORNE
Doctor Commons
2 Dec. 1831

TREASURY MINUTE DATED 23RD DEC, 1831.

23477 Read Report from the King's Proctor dated 5 Dec. 1831 enclosing the Copy of a Case which he had submitted for the opinion of the King's Advocate and the Attorney and the Solicitor General on the atrocities committed at New Zealand by the connivance of Captain Stewart of the Brig Elizabeth.

Transmit this Report together with the opinion of the Law Officers of the Crown and all the other papers on the subject to the Solicitor desiring him, after having fully considered the difficulties which may be opposed to bringing the accused persons to trial in this Country; to report what measures in his opinion it would be advisable for My Lords to take in order that the two persons whom the Law Officers consider to be guilty of the atrocious crimes described in these papers should be brought

[Image of page 598]

before the proper Tribunal which My Lords deem it highly important to effect.

SECRETARY OF STATE, LONDON, TO GOVERNOR.

Downing Street
31st Jan. 1832

SIR,--

I have received General Darling's Despatch of the 13th of April last, with its various enclosures, respecting the proceedings of the Master of the Brig Elizabeth with several others of His Majesty's subjects, at the Islands of New Zealand.

It is impossible to read, without shame and indignation, the details which these documents disclose. The unfortunate natives of New Zealand, unless some decisive measure of prevention be adopted, will, I fear, be shortly added to the number of those barbarous tribes, who, in different parts of the Globe, have fallen a sacrifice to their intercourse with civilised men, who bear and disgrace the name of Christians. When, for mercenary purposes, the native of Europe, minister to the passions by which the savages are inflamed against each other, and introduce them to the knowledge of depraved acts and licentious gratifications of the most debased inhabitants of our great cities, the inevitable consequence is, a rapid decline of population preceded by every variety of suffering. Considering what is the character of a large part of the population of New South Wales and Van Diemens Land; what opportunities of settling themselves in New Zealand are afforded them by the extensive intercourse which has recently been established, adverting also to the conduct which has been pursued in these Islands by the Masters and crews of British vessels... I cannot contemplate the too probable results without the deepest anxiety. There can be no more sacred duty than that of using every possible method to rescue the natives of the extensive islands from the further evils which impend over them, and to deliver our own country from the disgrace and crime of having either occasioned or tolerated such enormities.

With these views I need scarcely say that the energy with which General Darling appears to have acted, both for the punishment and prevention of these atrocities, merits my warmest acknowledges.....

It is with much regret that I find that the efforts of General Darling to bring to justice the Master and crew of the brig Elizabeth, were likely to prove unsuccessful. The opinion given by Mr. Moore, the Crown Solicitor, is not very intelligible. I conjecture his meaning to have been that the New Zealand

[Image of page 599]

Tribes, having been engaged in what must be regarded as legitimate warfare, according to the usages of their own country, could not, with justice or propriety, be charged with murder, and, therefore, that the Master and crew could not be charged as accessories to murder, because the guilt of the principal is essential to the guilt of the accessory. Supposing this reason to be just, still the Master and his crew might have been prosecuted under the Foreign Enlistment Act. But, if I rightly understand 3 the case, they were in fact prosecuted for murder. Yet in his letter of the 12th of April Mr Moore states that "he admitted Captain Stewart to bail, to appear before the Supreme Court when called upon for trial." The statement is quite inexplicable. I can neither understand how the prosecutor himself should assume to act as a magistrate by admitting a prisoner to bail, nor why a prisoner charged with such an offence should have been admitted to bail by any authority whatever. I regret to state that the whole proceeding for the conviction of the offenders appears to me to have been conducted in an inefficient and discreditable manner and you will have the goodness to institute the necessary enquiries to ascertain upon whom the censure justly falls, if, as there is too much reason to apprehend, the prosecution shall prove unsuccessful.

I am &c
GODERICH

CHAS. BOURCHER TO THE TREASURY.

Lincolns Inn
5 April, 1832

In obedience to My Lords Commands signified by your letter of the 31st ulto directing me to transmit a detailed account of the measures which I have pursued with a view to determine the proper course of proceeding for bringing to trial the Master and Mate of the Ship Elizabeth on a charge of being concerned in atrocious crimes committed in New Zealand as detailed in the papers transmitted to me in your letter of the 24 Dec. last. I beg leave to acquaint you for My Lords information that upon the receipt of your first letter I wrote to the Secretary of the Customs stating that it appeared that the Elizabeth was in the London Docks on the 22nd Feby. 1830, and sailed soon afterwards for Sydney, and requesting that he would it possible afford me any clue by which I might discover where the ship, the Master, the Mate or any of the Crew were as the papers in my hands afforded me no information whatever on these points.

[Image of page 600]

In reply I received a letter from Mr. Walford the Solicitor to the Customs stating that the Elizabeth had not returned to England, that he had been unable to procure the names of her crew, but that he would endeavour to obtain information for me, that he had written to Yarmouth to which port the ship belonged and as soon as any intelligence was received it should be transmitted to me I have since seen Mr. Walford but he has hitherto been unable to supply any further information on the subject except that Mr. Stewart has not for some time been master of the Elizabeth.

I am &c
CHAS BOURCHER.

SOLICITOR MAULE TO TREASURY.

Lincolns Inn
23rd April, 1832.

SIR,--

With reference to your letter of the 24 Deer last enclosing Copy of Case and opinion of His Majesty's Advocate and Attorney and Solicitor General, on a Letter from Lord Howick and other papers relating to atrocities committed at New Zealand by some of the Natives of one Island against those of another at the instigation of he Master and Crew of the British Merchant Ship Elizabeth, together with the other papers on the subject, and desiring me after having fully considered the difficulties which may be opposed to bringing the accused persons to trial in this Country to report what measures in my opinion it would be advisable for My Lords to take in order that the two persons whom the Law Officers consider to be guilty of the atrocious crimes described in these papers should be brought before the proper Tribunal which My Lords deem it highly important to effect. I beg leave to acquaint you that the parties accused are amenable to the Jurisdiction of the Supreme Courts of New South Wales and Van Diemens Land under the provisions of the Act 9 Geo. 4, C. 83, S. 4 and to the criminal jurisdiction of this Country under a Commission of Oyer and Terminer to be issued pursuant to the enactment of. 9 Geo. 4, C. 31, S. 7.

The difficulties which presented themselves to proceeding against the accused at New South Wales when both they and the witnesses were all present within the Jurisdiction seem to have been the insufficiency in the opinion of those who advised the Government there of the Evidence and possibly there may be some deficiency in the depositions as they now stand in the precise proof which the Law would require of the Murder of the Chief Mara Nui, and his Wife, but it seems probable that this

[Image of page 601]

deficiency if mere be any such, might be cured upon a further examination of the Witnesses. The Law Officers of the Crown in this Country are of opinion that the fact is fully proved and advise that the parties should be apprehended as soon as they can be met with and brought to trial when the attendance of the witnesses against them can be procured.

The difficulties which present themselves to any proceedings in this Country at present are the absence both of the accused and witnesses. And with reference to this point and to the advice of the Law Officers above stated I beg leave humbly to call My Lords attention to Mr. Bourchier's report of the 3rd Inst, in answer to your letter of the 31st ulto. shewing the steps which had been taken by him in order to ascertain whether the Brig Elizabeth by which some of the witnesses and the accused might be expected, had returned to this country or any tidings were know of them. I would add to that report that having learnt the names and description of the Owners of the Brig and finding John Stewart (one of the accused as I conceive) to be one I have written to make enquiries after him at Southtown in Suffolk the place of which he is described. I have not thought it advisable to address myself to other owners fearing this might operate as notice to the accused as well as witnesses at their return, and having learned from the Customs that the person who paid the Crew when the Brig left Yarmouth has been applied to but has refused to give the names of the crew.

It is difficult to suggest any measures for bringing these two persons to trial further than the utmost diligence in the lookout for the return of the Brig and her Crew and for the delivery of the witnesses and accused if it shall be found that they form no part of that crew. The Carpenter and a Seaman are material witnesses the others who are material appear to have been Merchants residing at Sydney when their depositions were taken. Another witness, described as a Negro Boy of the name of Perry a Native of Hakaroa Banks Peninsula, can hardly be expected to be now forthcoming and if he were would probably turn out to be an incompetent witness from his want of any religious obligation. It may be that the testimony of the Carpenter and Seaman upon a full examination of them may be thought sufficient, if not other must be sought either from the witnesses at Sydney or other sources and I find from the depositions the names of Francis Richardson, and George Brown, mentioned as part of the crew and of Mr. Cowley as the supercargo and interpreter.

These however may probably be tainted more or less with the character of accomplices. The name of Mr. Harvey is also mentioned as speaking to a material part of this atrocious

[Image of page 602]

scene and he is described as at that time being on the Main Land.

Upon the whole it appears to me that until some tidings can be gained of the Brig and her crew no effectual measures can be suggested for accomplishing the object stated in your letter of the 24 Decr last so far as regards proceedings in this Country. With respect to proceedings at Sydney I humbly submit that the Governor should be apprised that Captain Stewart is no longer Master of the Brig and should be directed in case he or the mate Clementson should appear at Sydney or in that quarter to take such measures as the evidence at Sydney may enable him to do for apprehending and proceeding against them.

I am Sir
Your most obedient humble servant
WM. G. MAULE
The Honble J. Stewart
P. S. --I return the papers.

THE TREASURY, LONDON, TO SECRETARY OF STATE.

Treasury Chambers
10th May, 1832

MY LORD,--

With reference to your Lordship's Letter of the 27th September last on the subject of certain atrocities of a most sanguinary nature which had been committed at New Zealand by the Natives of one Island against Those of another at the Instigation of the Crew of a British Merchant Vessell; I am commanded by the Lords Commissioners of His Majesty's Treasury to transmit to you for the Information of the Secretary, Lord Goderich, a Copy of the Report of the King's Procter of the 5th December last together with Copy of the Opinion of the King's Advocate and of the Attorney and Solicitor General transmitted therewith, also a Copy of the Minute of this Board of the 23rd Deer last on the King's Proctor's Report and Copies of the Solicitors Letters of the 5th and 23rd April 1832, All on the subject of the abovementioned crimes, and I am also to acquaint your Lordship that it appears to My Lords that great difficulties present themselves in bringing Stewart and Clementson, the Principal Offenders to justice in this country, and that there is greater Probability of the Offenders and Witnesses being collected at Sydney than in England, more particularly as

[Image of page 603]

Stewart appears to have been held to Bail, and notwithstanding that the Crown Solicitor exprested a Doubt that there was sufficient Evidence to sustain a Prosecution, when all the crew of the Elizabeth were present, yet My Lords trust that when the Governor and the Law Authorities at Sydney are made acquainted with the opinion of the Law Officers of the Crown in England, They will use every effort to obtain Evidence and will not hesitate to bring the Parties to Trial; and, even if they should fail, from want of Evidence, in obtaining a Conviction, yet the Effort of the Colonial Government to bring the Offenders to justice may have a salutary effect on the Proceedings of the Traders with the New Zealand Islands.

At the same Time Their Lordships will not abandon the propect of prosecuting these two men in England if They should be found, and, will for that purpose instruct Their Solicitor to watch for Their Return, and for that of the Principal Witnesses, to this Country.

I am My Lord
Your Lordship's Obedient Servant
J. STEWART
Viscount Howick &c, &c., &c.