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Brig Elizabeth And Captain Stewart.

In the light of contemporary record, certain palliations put forward in extenuation of Captain Stewart, of the brig Elizabeth, are not substantiated. An attempt has been made to prove he was a victim to circumstances, and that zeal in his employer's interest suffered him to outrun discretion. So far from being a victim to circumstances, the letter written by his indiscreet friend, Captain John Briggs, of the Dragon, now published for the first time, proves conclusively the enterprise was entered on with due deliberation, and after all its eventualities had been carefully considered. In his zeal on behalf of his friend, Briggs implicates himself in a manner in which the historical narratives of the transaction never sought to do. It was known Te Rauparaha made overtures to Briggs, who was then on the coast, and that, after some hesitation, he declined being a party to the charter. History has been more merciful to Briggs than Briggs has been to himself. His declination is attributed to a sense, on mature reflection, of the enormities of the proceeding. No such consideration weighed with him. In a jaunty epistle, that proves the callous nature of the man, he tells that he offered to convey "the Robulloh," the name Te Rauparaha was known, by, the Vandemonian, and two of his best men, to Bank's Island, and to give them an opportunity of securing that monster, but the Robulloh did not think fit to trust himself with less than twenty of his people, and that would have given him more power in the vessel than he (Briggs) chose to part with. Under these circumstances, it will be seen, Briggs has no right to the humanitarianism New Zealand historians accord him.

As to zeal in his employer's interest, that theory was backed by the plea that, on reaching New Zealand, Stewart found the articles brought for barter utterly useless, and, being in danger of returning to Sydney with a clean ship, the offer by the natives to load a cargo of flax was temptation, under the circumstances, sudden and irresistible. Neither of these arguments are sustained by the Records. Sydney Customs entry of her ill-omened trip to New Zealand, August 24, 1830, reads thus:—"Elizabeth, 236 tons, (Stewart, master), for New Zealand, with 4 cases and 18 muskets, 2 kegs flints and balls, 2 bales slops, 2 kegs gunpowder, 1 bundle hardware, 5 baskets tobacco, and general whaling stores." Strange to say, this is the only vessel cleared for New Zealand during 1830-31 that did not carry grog in one shape or another. In other respects, its outgoing cargo was that of the period. The following is one week's shipping trade—Sydney to New Zealand—adduced in corroboration thereof: —

Darling (schooner), 37 tons (Stewart, master), for New Zealand, with 4 bales woollens, 1 box leather, 9 cases muskets, 8 cases ironmongery, 1 ease hardware, 1 box oil, 32 casks powder, 1 box colonial pipes, 1 puncheon rum, 5 baskets tobacco, and stores.

Elizabeth (brig), 130 tons (Brown, master), for New Zealand, with 3 cases muskets, 5 casks gunpowder, 1 puncheon rum, 5 baskets tobacco, and stores.

Currency Lass (schooner), 90 tons (Buckle, master), for New Zealand, with 1 keg tobacco, 1 case gin, 6 cases muskets, 16 casks gunpowder, 1 case cutlery, 1 package bullets, 1 case hardware, 1 bale blankets, 2 cases colonial pipes, and stores.

Dart (cutter), 21 tons (Spooner, master), for New Zealand, with 3 kegs tobacco, 1hhd rum, 2 casks beef, 10 bags biscuit, 30 bags flour, 1 chest tea, 3 bags sugar, 2 casks powder, 2cwt lead, 1 case muskets, 1 bundle pistols and cutlasses, 1000 flints, 1 hamper cheese, 1 box tobacco pipes.

Juno (brig), 212 tons (Paterson, master), for New Zealand, with 7 baskets, 3 kegs, 1 skin tobacco, 1 puncheon rum, 8 mats sugar, 8 boxes tea, 3 bags rice, 1 bundle spades, 1 ton salt, 1 ton lead, 11 cases muskets, 15 casks powder, 2cwt shot, 4 packages ironmongery, 2 bales slops, 1 case tobacco pipes.

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These show there could have been no foundation for the opinion Stewart took an ill-assorted cargo. What otherwise negatives that theory is, that, although the consideration bargained for—namely, a cargo of flax—was not rendered, the brig returned, bringing a cargo of 30 tons, and we may infer that represented the produce of her barter.

The inward entry is recorded in Sydney Customs, January 18, 1831: — Friday last, the brig Elizabeth (Captain Stewart) reached the Cove. She brings 30 tons flax, and the following passengers:—A. Kemiss, Esq., and J. B. Montefoir, Esq.—Lamb, Buchanan, and Co., agents; Cooper and Levy, consignees.

February 27, 1830, New Zealand flax is quoted by Hobart Town Courier at £32 5s to £33 per ton; and on April 14, 1831, Sydney Gazette reports a contract by Government for dockyard supplies at £43. We therefore conclude the Elizabeth's in-brought cargo was worth £1000.

In 1831 thirty-three trips were made from Sydney to New Zealand in the flax trade; the total import being 1062 tons, so that 30 tons by the Elizabeth was fairly well as an average cargo.

Stewart and Briggs appear to have left New Zealand about the same time. Briggs sailed for Hobart, while Stewart, as stated, returned to Sydney. Briggs seems to have been a bombast, who delighted in making himself the hero of a-harrowing tale. Arriving in Hobart, he lost no time in communicating particulars to a journal, the Tasmanian, which, on January 28, 1831, a day or so before Stewart reached Sydney, published the following fanciful and, in other respects, sickening narrative of the the event, commencing, it will be observed, with a narrative, purporting to be a statement of affairs, leading up to the Stewart escapade: —

Hecho (Te Hike), the New Zealand chief, is a remarkable, fine, young man, about 25 years of age. He is six feet four or five inches in height, and perfectly well proportioned. He is the son of a chief who is spoken of as "The Payie" (Te-Pahi), who was taken to England some years ago, where, having received great attention, upon his return he declared himsel be enemy of all those of his country who should attack any English vessel or injure any Englishmen, of course, beyond the mere practice of thieving, which, as we know, is the vocation of these islanders. Some years ago, a chieftain of the south-eastern coast had killed and eaten Captain Downie (elsewhere named Dawson) and the crew of the brig Samuel, a vessel which had been trading there, bartering muskets, powder, and balls for flax and other produce; but, being either over confident or unguarded, his vessel was captured, and himself and his crew eaten. The same people it was who succeeded in taking a midshipman and a boat's crew of H.M.S. Warspite, commanded by the late Sir John Brisbane, who were killed and afterwards eaten, as a mere matter of course. To avenge these atrocities committed upon Payie's friends and allies, the English, that chief and the Robul-loh went, in 1822, with a strong body of their people, and, taking the former by surprise, killed and ate all they could find, destroying all before them of the unfortunate clan, who, in their turn, furnished food for their cannibal appetite. Glutted, with blood, but still hankering for more, they landed upon Bank's Island with the same horrible intent. But here they met with a check. The chieftain, who was called the "Marinewie" (Tama-i-hara-nui, or, shortly, Haranui), was prepared for their reception; a battle ensued, in which the invaders were defeated, with the loss of the "Payie," who, being taken by the "Marinewie," was by that chief killed and eaten, as was also an Englishman named Smith, who had joined the allies in their predatory excursion. The Robul-loh escaped, and, on his return to his native place, united with "The Hecho," the son of "The Payie," who had succeeded to his eaten father's throne, in his determination to avenge the former disaster. Thus matters stood until about the middle of last year, when Captain Briggs, in the Dragon, arrived at the territory of these allied chieftains. Their first attempt was an endeavour to induce him page 181to accompany them in an expedition, which they had been for some time preparing, against the "Marinewie," promising him that, if he would join them herein., they would furnish the ship with a full cargo of flax. They were by no means unskilful diplomatists. They urged that "The Payie" had been in England, and was the friend and avenger of the English—that the "Marinewie," who had killed and eaten him, had also killed and eaten more white men than any other New Zealander whatever,—and they promised subsidies in return for the essential services they well knew they should receive from the commander of such a vessel as Captain Briggs, of the Dragon. They did not, however, succeed. Briggs refused to be associated in such a horrid enterprise. Not so, however, the commander of another British vessel, which happened just then to arrive upon a trading voyage. She was a fine brig of 263 tons, whose name and that of the commander we forbear, for the present, to insert. The two chiefs agreed with this person that his ship should convey them and their people to the country of Marinewie, where the war was to be carried on to utter extermination. On October 29, last year, the expedition sailed; there was a fine fleet of war canoes, and the two chiefs, with about 100 picked warriors, on board the English brig. Captain Briggs remained at the anchorage procuring, by the usual means of barter, a cargo for his vessel. On November 17 the expedition returned, having been entirely successful. Marinewie had been taken by surprise, his whole people destroyed, except such as fled into the interior, beyond the reach of pursnit, and himself, his wife, and daughter—a beautiful girl of fifteen—taken prisoners. The captain of the English vessel stated that, on their arrival at Bank's Harbour, Hecho and The Robulloh caused all their people to conceal themselves down below. That Marinewie sent immediately on board to negotiate for the trading, which he, of course, supposed was the cause of the Englishman's arrival. He demanded two double-barrelled guns, by way of tribute to himself, for permission to open the trade. This was granted. Their trade commenced, and Marinewie, not suspecting the fate which awaited him, confiding fully on the Englishman's honour, went himself on board to visit him. After he had been seated in the cabin a short time, Hecho and Robulloh jumped upon him from their place of concealment., as did their people upon all those who had attended him on board, and, seizing him by the hair, explained to him his situation. The scene which followed is too dreadful to describe. Under the cover of the night, The Robulloh and Hecho and their men landed from the ship, and, having succeeded in capturing the wife and daughter of Marinewie, they sent them on board; and a, work of death ensued, utterly unspeakable and indescribable, for the horrible cruelties which were perpetrated. The whole population of the place who did not escape were killed, except about fifty, reserved to be taken back to be sacrificed at the bloody feasts of triumph which awaited their return. At daylight in the morning, the victors were seen actively engaged in cutting up and preparing for the steam kettle the dead bodies of the slaughtered victims of the night. The crew of the vessel described the horrors, which they witnessed, as, beyond anything—dreadful. The whole of the day was occupied in salting and packing in baskets heads and bodies to be conveyed back. Amongst the victims was a fine young woman near her accouchement, who was cut open, her unborn infant extracted, her head and part of her body salted, and the remainder, in the presence of the captain, officers, and the whole crew of a British vessel, given to their pigs. On November 11, the brig having arrived with the cargo of human flesh, living and dead, at about 11 a.m. preparations were made for the triumphal landing. And here a peculiar feature in the character of the New Zealanders was exhibited. Ferocious as appears to be the male character, that of the female appears in strong contrast there to. . Not a single female was on the beach to receive either husband or lover (for such there are even in the most savage state, and the New Zealanders seem to be eminently susceptible of the tender passion), not a child to welcome its parent, not a father to welcome his son. All was silence, and, except as respected the cannibal warriors and the dead mutilated remains of their slaughtered victims, solitude. The prisoners were landed, and ranged, page 182seated on the beach; their conquerors having brought on shore in baskets the salted, bodies of the victims of their ferocity. Each basket is of sufficient size to hold a human body, cut up into pieces; of these there were, according to Captain Briggs's calculation, about one hundred. The war dance then commenced. It is the most frightful idea of rejoicing any human mind can convey to itself. The warriors entirely naked, their long black hair, although matted, with gore, yet flowing partially in the wind; in the left hand, a human head; in the right, a bayonetted musket, held by the middle of the barrel. Thus, with a song, the terrible expression of which can only be imagined by being heard, did they dance round their wretched victims, every now and again approaching them with gestures, threatening death under its most horrible form of lingering torture! But they did not inflict it. None of them were killed. All were apportioned among the conquering warriors as slaves, one old man and a little boy excepted, who were sentenced to be sacrificed to their demon of vengeance! The feast was then prepared, at which these two victims were to be killed and eaten. It consisted of about one hundred baskets of potatoes, and a sort of green vegetable of delicious flavour, and equal quantities of whale blubber and human flesh. Everything being arranged, the old man was brought; forth horribly accoutred for death, having affixed' round his neck the head of his son, whose body formed part of the infernal feast there exhibited. Here, for the first time, to the disgrace of the female character, a few women appeared. Some few, wives or mothers, whose husbands or whose sons had been in their turn killed and eaten, approached the poor old man, and, plucking the hair of his head and of his beard, pricking him with the teeth of some fish or other animal, inflicted upon him every possible bodily torture, while the invention of their demoniacal countrymen were doing their best to agonise his mind! Captain Briggs, who witnessed all this, determined to save the poor old man's life, and that of the boy, who was also to be sacrificed, if such could be done, by either force or price. The boy was brought forth to die. A man had the axe extended over his head, and was about to cleave it in twain, when Captain Briggs, at a hazard which may be easily understood, seized him, and, by threats and entreaties, the risk of which at such a time he cannot now contemplate without shuddering, obtained the life of the boy altogether, and that of the old man for the time! The next day he was taken to another place, where his doom was sealed with every circumstance of horror and atrocity. The boy still lives. Captain Briggs paid the ransom of his life in muskets and gunpowder. He conveyed him in safety to his ship, and he is now here in Hobart gratefully acknowledging his obligation to the worthy man who saved him from death. In the meantime, the bloody banquet went on; Hecho, "The Robulloh," and the rest devouring the contents of the baskets we have described with the greatest delight. The manner in which the bodies had been salted at nearly the hottest time of the year had been too imperfect to prevent the process of decomposition from proceeding to so considerable ana extent that the worms crawled from the putrid flesh as it was devoured! It was a horrible sight! Captain Briggs had the curiosity to open one of the baskets which was near him. It contained the head and body of a beautiful young female. One of the officers of the skip, who was with him, had resolution enough to dissect the breast away with his pocket knife, he wrapped it up in his handkerchief, took it on board the Dragon, put it into spirits, and presented it to a gentleman in Hobart Town, in whose possession it now is. While this dreadful scene was going on, Marinewie was confined in irons in the forecabin of the English brig, of which we have spoken. On the passage from Bank's Harbour to Cook Strait, this chieftain and his wife, well knowing the dreadful tortures which awaited them from their ferocious enemies, took an effectual method of preventing their daughter from undergoing the sufferings to which they knew she was condemned. They strangled her. The captain then placed both Marmewie and his wife in irons, to prevent them also destroying themselves. They were landed on November 12 by The Robulloh, and conveyed from the coast some short distance into the interior. Captain Briggs was not able to ascertain their fate, but page 183we understand that it was intended that, after they had been despatched with all the torture usual in such cases, the heart of the Marinewie should be sent to be eaten by Hecho's mother, the widow of Te Pahi, who had been eaten by Marinewie; that The Robulloh should eat his brains, Hecho his eyes, Hecho's sister his tongue, and that the rest of his body should be sent as presents to the chiefs in the interior.

[Briggs does not seem to have considered these graphic details sufficiently harrowing, and, accordingly, we find him returning to the charge in a subsequent issue of the Tasmanian. There, as if afraid of losing amy personal interest in the exploit, he indited in his own name the epistle referred to, which the Tasmanian prefaced and published as follows: ]

We have received the following letter from Captain Briggs, which, of course, we make public, as he wishes. We assure him, however, that, although much of our information relative to the abomination, consequent upon European commerce with New Zealand, was confirmed by him, and of course, we were then convinced as to its accuracy, we derived it from other sources, upon which we placed entire reliance. We understand the commander of the brig Elizaibeth, which recently arrived from Sydney, has been subjected to some legal inquiry, as having been concerned in certain operations of war at Cannibal Islands. But it is rumoured that certain difficulties arose as to jurisdiction. There must be a mistake in this, because, by the 4th clause of the last act, the masters and crews of all British ships in particular, and British subjects in general are subjected to the jurisdiction of the Supreme Courts of both colonies as entirely as if they were resident in either of them respectively. If the master of the ship has acted as he is said to have done, he cannot complain of whatever consequences may follow. If he has not, he has been much injured by false accusation. It it a remarkable feature in this case that, we understand, a lad of some sixteen or eighteen years of age, who acted as supercargo for the charterers or freighter, issued a written manifesto of the most "legitimate Imperial character," in which the master is commanded to proceed with expedition and receive on board certain "Prisoners of State," and to co-operate in certain "Political Purposes" therein mentioned. This will be a delightful document to be produced to the Supreme Court! Briggs's letter reads: —

Sir,—I observe in your journal of January 28 last a statement purporting to be founded on some remarks furnished by me and others upon New Zealand; and, although the greater part of your statement is true, and came under my own observation, yet, in some particulars, you have misunderstood me. You give me more credit than I deserve. I did not refuse to assist The Robulloh and Hecko in subduing the Marinewie (Tama-i-hara-nui). I offered to convey The Robulloh and two of his best men to Bank's Island, and to give them an opportunity of securing that monster (the recapitulaion of whose atrocities would fill a dozen of your numbers); but Robulloh did not think fit to trust himself with less than twenty of his people, and, as this would have given him more power in my vessel than I chose to part with, our conference thereupon ended. You state also that part of a female was given to the pigs in the presence of a captain and crew of a British vessel. The fact was as follows:—One of the New Zealanders, after the massacre of Wangaroa, brought on board with him (raw) the heart, liver, etc., of a woman, whom he had cut up and cooked, tied to one of the strings of the inside of his mat. After he got on the deck, the string broke, and its contents fell to the deck, which the pigs, being at hand, immediately devoured. You state that the bodies were salted. In this you are misinformed. The New Zealanders know nothing of the use of salt. They cure the flesh by means of steam ovens, which they construct as follows: They dig a hole in the earth two feet deep, in which they make a quantity of round stones red hot with dry wood, after which they take out all the stones, except a few at the bottom, over which they lay several alternate layers of leaves and flesh until there is as much above ground as below; page 184they then throw about two or three quarts of water over all, and confine the steam with old mats and earth so completely that in twenty minutes the flesh is cooked; it is in this way that they cook and cure all their provisions, and not with salt. The child strangled by The Marinewie and his wife, was nine years old, and not fifteen, as you state. When I asked why he committed so barbarous an act, he replied, "One die, all die." The war canoes did not proceed with the brig to Bank's Island; the fleet of war canoes were hauled up on shore until her return. The death of The Payie is not properly represented in your statement. It was not The Payie's intention to destroy Marinewie or his people, but to create a good understanding with them, for which purpose he left his armed force at some distance, and went with two others, contrary to the advice of Robulloh and Hcho (his son), within the enclosure of Marinewie's settlement to trade with them. The first and second day he returned in safety, but on the third day, when at dinner, they rose to kill him. One of the three, a strong, active, young man, succeeded in making his escape over a high fence. Smith, the white man, who was left with trade by Captain Wiseman, endeavoured to save The Payie's life, but his humane treatment was rewarded with death! Thus treacherously it was that the first and most faithful friend of the whites fell a sacrifice to the bloody-minded Marinewie. My advice to Captain Stewart was, not to take more New Zealanders on board than he could safely control; and of getting Marinewie into his hands, to send all the rest on shore with presents and assurance that it was only the chief that he wished to make accountable for the death of the white people. But he disregarded my advice, and allowed 120 armed men to go with him to Bank's Island. They wanted, as a matter of course, to do as they pleased with him and his ship. When he returned, I begged of him not to deliver up The Marinewie, but to get all the flax he could, and sail off with him and his wife to Sydney, but this advice he also rejected, stating that The Marinewie had been too long on board. This memorandum will, I hope, guide you in correcting your first statement, and lessen the odium it is calculated to cast upon Captain Stewart.—John Briggs.

[What is mentioned in the foregoing, as the death of The Payie (Te Pehi or Te Pahi) occurred on the occasion of Te Ranparaha's second visit to the south —about the year 1827. The historical, being the Maori version, is as follows: — Landing at Waipara, he (Te Rauparaha) drew up his canoes, and marched overland to Kaiapoi, where his arrival caused the greatest consternation. He tried to quiten the alarm by assurances that his visit was a friendly one, and that he had only come to purchase greenstone. To convince the people of the truthfulness of his statement, he sent several of his officers of highest rank into the pa, and amongst them his esteemed relative Te Pahi. For many days the inhabitants of Kaiapoi treated their guests with profuse hospitality, and dealt liberally with them in their bargains for greenstone. All at once, their worst suspicions were roused by Haki-tara, who had been staying by invitation at Te Rauparaha's camp. He returned early one morning with the news that he had overheard during the night the discussion, in a council of war, for the seizure of the place, and that they might be quite sure treachery was meditated. These reports received confirmation by the altered demeanour of their guests, who grew insolent and exacting in their demands for greenstone. The Kaiapoi natives, after a short consultation, determined, in self-defence, to strike the first blow, and, at a concerted signal, fell on the northern chiefs, and put them to death. Overwhelmed with grief, Te Rauparaha embarked in his canoes for Kapiti, and next visited Akaroa in 1830, in the brig Elizabeth.]

Tama-i-hara-nui, or, as he is misnamed in the foregoing, "Marinewie," was the upoko, arriki, or heir to the ancestral honours of Ngai-te-rangi-a-moa, the noblest family of the Ngaitahu, the second great migrating tribe from the North Island, and whose artifice, if not their conquests, gave them a footing in the extreme south—Otakou and Murihiku included. Several other noble lines in descent met in his person, and that, of course, gave him further distinction. As hereditary spiritual head of the tribe, be was regarded with peculiar reverence. page 185The common people did not dare to look upon his face, and his equals felt his presence an oppressive restriction. Even an accidental breach of etiquette while holding intercourse with him involved serious loss of property, if not life itself. His visits were always dreaded, and his movements, when he entered a pa, watched with great anxiety. There was little in his personal appearance to denote his aristocratic lineage. His figure was short and thickset, his complexion dark, and his features forbidding. He is described as cowardly, cruel, and capricious, dreaded alike by friend and foes. Captain Briggs's description of "Tama-i-hara-nui" as a monster, whose crimesi would fill a dozen numbers of the Tasmanian newspaper, probably describes the man correctly. He early discerned the advantages of trade with the European, and he himself entered largely into the traffic. To facilitate operations, he resided at Akaroa. One fact in the narrative of his life, outside the event apropos, is that, in one of his engagements known in Native Land Court practice as Kai-whare-atua, was the first occasion in which firearms made their appearance in southern inter-tribal warfare. South Canterbury is the locality indicated. Tama-i-hara-nui's record at this time is one of treachery and rapine, which even in the annals of Maori warfare stands prominently forward. With plausible pretext, he betrayed a whole hapu, who had taken refuge in Otakou from the vengeance of their enemies; he massacred in cold blood a band of inoffensive men, whom he employed to carry the presents made to him by their tribe. These atrocities culminated in a party of Te Rauparaha's warriors being massacred at Kaiapoi—Tama-i-hara-nui, their chief man, being held responsible for the deed. Te Pahi, one of Te Rauparaha's most trusted counsellors, was of the number massacred. How far, even according to Maori ethics, this deed was justifiable, is disputed. Te Rauparaha's visit on that occasion was professedly pacific; still it was open to suspicion, and it was on that suspicion the Kaiapoians acted. Thereafter Te Rauparaha hurried back to Kapiti, his island fortress, and after brooding over the affair at Kaiapoi devised the plan for its revenge, which involved Stewart and, as we now see, his friend Captain Briggs.

These facts go to show that, in accordance with Maori custom, the war waged against Tama-i-hara-nui and his tribe was provoked. More than that, there is some justification for the opinion that, on the score of natural justice or retribution, reprisal of some kind or other was demanded. It may therefore be urged on behalf of Stewart that he aided in a right cause. How far he was justified taking part therein is another question. He simply entered into a charter-party for transport purposes, and charter-parties of this nature are of common occurrence under civilised auspices, and at the time it was entered into there was no law prohibiting such. The law on that point did not make its appearance for at least a year afterwards. With what transpired on the voyage back to Kapiti it was, no doubt, a horrid orgie; but it must be borne in mind the vessel was, to a great extent, in the power of Te Rauparaha and his followers, and it is doubtful if Stewart could have prevented the cannibalism, even although he might desire to do so. It does not, therefore, seem as if his conduct was quite as reprehensible as is generally assumed to be.

Probably the more sober version of the affair, given by J. B. Montefoir— mentioned in the foregoing as having joined the Elizabeth at Kapiti, and sailed as a passenger with Stewart to Sydney—will be accepted as the most reliable version of the case. Montefoir's statement was made in Committee of the House of Lords on New Zealand affairs 1838:—

"I chartered a vessel to make a tour of the island, and to visit every place I possibly could for the purpose of becoming acquainted with the island— its productions, its general character, as well as with the habits, manners, and general disposition of the natives;—and I had some intention of forming extensive mercantile establishments throughout the island; but, from an page 186unfortunate circumstance, after reaching Entry Island, or Capiti (so called by the natives in Cook Strait), I was deterred from so carrying my object into execution."

"What was it occurred to change your intention?"—"After visiting one or two places I reached Entry Island in my own vessel, and there I boarded a brig called the Elizabeth (Captain Stewart), who related the following circumstance to me: That he had been down to Bank's Island with a great many of the chiefs and 200 men of the island (Entry Island) to revenge the death of an old chief, who had been twenty-two years ago killed by the opposite party. The Elizabeth, a British brig, conveyed to Bank's Island about 300 men, and when, she anchored off the island it was made to appear there were no men on board the vessel—they were all below, with the hatches down. In the middle of the night the captain started the whole of the men, and took 50 or 60 prisoners. I have made a more detailed statement of the facts, which, with your lordship's permission, I will relate from my journal. They are as follows: —It must be in the recollection of many that a New Zealand chief was, a few years ago, in this country, by the name of Pai or Tupai, who was introduced to our late Sovereign, George IV. Some short time after his return to his native country he waged war against the people of Bank's Island, or the Southern Island, and was killed by the chief of that place, named Mara-Nui (Tama-i-hara-nui). This same man is supposed to have also killed several white men, and, four years ago, cut off and ate, with his comrades, the boat's crew of his Majesty's ship Warspite. Since that period Ecou (Te Hike or Hike), old Pai's (Te Pahi) son, had been most anxious to revenge his father's death, as well as the slaughter of the white men, and has been for a number of years bartering his flax for muskets, powder, etc., to prepare himself in the event of accomplishing his intention. On the Elizabeth anchoring off the island Entry (a small island, as will be seen in the chart) the Ropera (Te Rauparaha)—that is, the great general or fighting man here—and Ecou, the son of Pai, came on board, and told the captain and supercargo they had no flax made up; which was a fact. They said they had enough muskets and powder, as on the island they could muster 2000 muskets, but if he would go down with his ship and convey 300 men to Bank's Island to fight, and again return to Entry Island with such prisoners as they made, they would give him 50 tons of flax (value, £1200). The captain and supercargo consented. How far he was correct in so doing, or how lar he was correct in hiring his vessel as a transport, and being instrumental in the cause of so much bloodshed, it is not for me to say. However, he actually entered into a regular charter-party, and he proceeded thither with about 200 or 300 picked men, all armed with muskets, war clubs, and tomahawks. The Elizabeth is regularly armed, carrying eight guns, besides two swivels on her taffrail, and well found in every description of small arms. On arriving at Bank's Island all the New Zealanders conveyed thither were stowed away in the hold. Some of the chiefs coming on board seeing her guns, were rather suspicious, and the first question they asked was whether the Ropera and Ecou were on board? They suspected they were, and took to their canoes. Immediately after this they (the men stowed below) all came on deck, and took some canoes full of slaves lying alongside the vessel, made them prisoners, proceeded to the shore, and commenced battle, and Ecou himself took the great Mara-Nui, that killed his father, brought him prisoner on board the brig, and they killed several on shore. The description the captain gave of their fighting was most interesting; they killed about 50, and took about as many prisoners. Only one man on Ecou's side was killed; several wounded. The vessel returned to Entry Island with the prisoners and the chief Mara-Nui; and Captain Stewart informed me, two or three days after he had been to sea he found several baskets of legs and arms in his hold. He made them throw them all overboard; they were to be taken to Entry Island to be roasted and eaten—it is a custom among them. This great Mara-Nui is now on board in irons at Entry Island.—Having gone so far in my own vessel I page 187was deterred from proceeding in consequence of expecting that the whites would be slaughtered. He is kept up by the captain as a hostage until the charter-party is finally arranged. Ecou and Ropera had despatched about 200 slaves to make flax, and in six weeks from the date of his arrival she is to be filled, as per agreement. The brig which I had chartered then proceeded round the island, but I would not go myself. I was obliged to take refuge in this very ship where this great chief was in irons. I expostulated with the captain on his conduct; he said he saw the folly of his conduct, but, having gone so far, he must keep him. I begged him to take him up to Sydney. In four or five weeks afterwards, no flax coming forth, the natives not having fulfilled their charter, I was anxious to get up to Sydney. I told him I was quite certain he would not get his flax. He set sail, but gave up the chief Mara-Nui into the hands of his enemies. He was given up, and I went on shore, and saw the whole process of his intended sacrifice. I did not see the man killed, but I know he was killed during the night; and the morning following the widow of the great chief who had been killed had his entrails as a necklace about her neck, and his heart was cut into several pieces to be sent to different tribes—allies of the Ropera. On our arrival at Sydney I related the circumstances, and they tried the captain for murder, but there was no evidence against him. He has since met his death, having been washed off his ship coming round Cape Horn—at least, so I have understood."

"It is stated in the publication of the 'New Zealand Association' that a hook was fastened under his chin, and he was kept in that state for two or three days on board the brig; is that correct?"—"No; it is not correct."

The version hitherto accepted as correct was the following, reported by Mr James Busby, who afterwards became British Resident at the Bay of Islands. He visited Southern New Zealand in 1824 in connection with the wreck of the Elizabeth Henrietta on Ruapuke Island: —"An English brig, the … of London, … master, had been chartered by a mercantile house in Sydney to proceed to New Zealand for the purpose of procuring a cargo of New Zealand flax. Finding that the commodities he had carried with him were not suitable for the trade, and that he would have to return to Sydney without a cargo if he could contrive no other means of procuring one, the master of the brig entered into a contract with the young chief of the Kapiti tribe, in the Northern Island, at Cook Strait, to assist him in revenging the death of his father, who had been recently killed by the chief of the Marinouis (Tama-i-hara-nui), another tribe residing on the Middle Island, about 300 miles distant, on condition of his receiving a full cargo of flax. He accordingly received his chief, with 200 of his followers, all armed with muskets, on board his vessel, and sailed for the enemy's harbour, where he came to an anchor, having the chief and all his party concealed from sight in the hold. The chief of the Marinouis, accompanied by his wife and two girls—his daughter, about eight; and his niece, about thirteen years of age— came alongside the vessel, and being invited on board were immediately made prisoners, and secured in the fore-cabin. It is generally asserted, and is sufficiently probable, that a number of his followers were butchered on the ship's decks by their enemies, who came from the hold to attack them unawares; but the second mate of the brig, from whom; the particulars of this narrative were obtained, denies that there was any bloodshed whatever on board the vessel. He also states that the ship's company were desirous of sailing with the chief and his family without allowing the New Zealanders to land, as they proposed to do, in order to attack the village by night; but the master stated his; apprehensions—that if his crew should oppose the designs of their passengers the latter would turn their arms upon themselves. The New Zealanders accordingly landed in the ship's boats during the night, killed about 200 of the villagers, carried off about 50 captives, and reduced the village to ashes. On finding his situation, the captive chief succeeded in page 188suffocating his child in the night; and it was believed that he also intended to deprive the other females and himself of life, but the noise occasioned by the attempt brought the ship's company into the place where they were confined, and he was deprived of a small cord, which, it appeared, the child had been destroyed with. On returning with the vessel to Kapiti, or Entry Island, the females were preserved for slaves; but the chief, having been fixed to a cross, his throat was cut by the widow of the late chief of Kapiti, whom he had slain; and while she drank up a portion of the blood as it flowed, her son, the young chief, tore out the eyes of his victim, and swallowed them, in order to prevent them becoming stars, as according to the superstition of the islanders, would otherwise have been the case. The monster who was accessory to this tragedy was, however, disappointed of his reward. The young chief of Kapiti, having attained his object, refused to fulfil the conditions, and his vessel returned to Sydney without the cargo which was to have been the reward of such atrocity. On reaching Sydney his proceedings were reported to the magistrate by some of his crew, who, after examination, required him to find bail to the amount of £3000, and it was generally believed that there was no existing law that would reach his case. As a comment on this narrative, it is only necessary to advert to the revengeful character of the New Zealanders, and to observe that, with regard to Europeans, their revenge has hitherto been indiscriminate."

It was undoubtedly Montefoir who informed Sydney authorities against Stewart, and it was most probable, at his instigation, the proceedings were instituted. He states in his evidence, quoted above, that he had made a previous statement of the case more detailed, and asks leave to relate it in Parliamentary Committee from that narrative.

Proceedings must have been promptly instituted on his return to Sydney. He (Stewart) arrived January 31. The Elizabeth is again entered-out from Sydney on February 28 (Pondwick, master). First mention of a prosecution is made in the Sydney Gazette, April 2. The purport of the proceedings were seemingly little understood. The announcement reads thus: "We have observed sundry remarks on a murder, or some other act of atrocity, said to have been committed at New Zealand on one of the natives by the commander of a colonial trading vessel. With regard to the act itself we shall only say that if it be proved and the law found to apply to it, we are confident justice will be fairly meted out. We may also add that the New Zealanders themselves will not fail to take ample satisfaction. With them revenge is not only an unconquerable passion, but a religious obligation; their law is "an eye for an eye, a tooth for a tooth, blood for blood." And there is abundant reason to fear from past experience of their conduct that if this act has been really perpetrated, and they do not fall in with the identical culprit, they will glut their vengeance in the blood of any other Englishman who may fall into their power. But we should not have noticed this affair at all, satisfied as we are, that it is in the proper train of investigation, but for certain odious imputations which have been cast upon our merchants concerning it. The traders in New Zealand produce have been charged with a guilty combination to screen the alleged offender from justice, to hush the matter up, for the sake of preserving the character of their own body. The accusation is as destitute of truth as it is preposterous. The merchants of Sydney are not such, thorough-paced villains as to unite their influence for the protection of a murderer; to a man we believe them incapable of such monstrous iniquity, and we are at a loss to conceive how anyone acquainted with their general character should have believed, or pretended to believe, otherwise. But besides the criminality of such a combination, look at its mad impolicy. The merchants well know that nothing is so important to the success of their New Zealand speculations as the keeping up of a good understanding with the natives. To exasperate those hardy and highly resentful savages would not only be to destroy all their hopes with page 189regard to the flax trade, but to expose their vessels and crews to almost certain destruction. It is manifestly their interest to win the confidence and affection of the natives, and, instead of concealing, to bring to prompt justice anyons who should be guilty of violence to their tribes. If they did not see this they would be fools; if, seeing it, they were to practice the foul conspiracy imputed to them, they would be both fools and villains; but as we believe them to be neither the one nor the other we have felt it an act of common justice to repel the shocking calumny."—New South Wales Gazette, April 2, 1831.

A case of peculiar character, involving the question of the liability of British subjects for offences committed against the natives of New Zealand, will come on for trial before the Supreme Court at the ensuing criminal sittings. Independently of its deep interest to the parties more immediately concerned in the result, the case is one of great public importance, as it will tend to set at rest a question which (that we are aware of) has never yet been mooted in a court of justice. A clause in the New South Wales Act of Parliament, we admit, gives the Supreme Court of this colony jurisdiction over offences committed at New Zealand by British subjects, but we do not find that that clause goes further than to give the court here jurisdiction over such offences as would be triable in England—indeed, this position was held in the case of the King against McDowell, tried before the Supreme Court in the early part of 1827. The prisoner in that case was indicted under Lord Ellenborough's Act for stabbing a seaman on board the brig Rosanna, at New Zealand, and convicted. When brought up for sentence an arrest of judgment was moved by Dr Wardell upon the ground that, although the statute under which the prisoner was tried had been ruled to be in force in this colony as part of the law of England, still it did not apply to New Zealand; that the Supreme Court here had power only to try such offences committed at New Zealand and the other places set forth in the Act of Parliament as would be triable in England; not to create an offence, and put the prisoner in a worse situation than he would be in England, where he could not be tried under Lord Ellenborough's Act. The court held this objection to be fatal, and judgment was arrested. We admit that the case here cited is not analagous to that which is about to come before the court; but it establishes this principle—namely, that the Supreme Court of New South Wales has jurisdiction only over such offences committed at New Zealand by British subjects as would be triable in England. Then comes the question, 'Could a British subject be tried at common law in England for slaying a native of New Zealand, at New Zealand?' The case of the King against Lowe for the alleged murder of an aboriginal native of this colony is certainly not in point, for the reason stated by the Chief Justice on the trial—namely, that New South Wales, by Act of Parliament, is a recognised British colony, the sovereignty of his Majesty over the country is, in fact, established, and the natives are entitled to the benefit of the lex loci. The question, then, involved in the case about to be brought before the court resolves itself into the simple fact of whether the locus in quo is one over which the court has any other jurisdiction than that which enables it to try an offence committed by a British subject against a British subject. It is clear, but for the clause in the New South Wales Act, the Supreme Court of this colony would have no jurisdiction whatever over any offences committed at New Zealand; and we apprehend that the Act does not invest the court here with greater powers than those possessed by the courts in the Mother Country. With respect to the aborigines of this colony, the case assumes quite a different aspect. They are, and have been made, amenable to our laws, but it will not be contended, that the Supreme Court here possesses any jurisdiction over offences committed by the natives of New Zealand. If a British subject be slain by a New Zealander, is there any law by which our Government would page 190be justified in seizing the offender, conveying him to this colony, trying, and executing him? None whatever. Upon what principle, then, can a British subject be made amenable for an offence committed against a New Zealander who, in no point of view, can be considered in the light of an alien friend; because if he be not in a state of hostility with the British Sovereign he has, at least, entered into no compact? Assuming (for of the facts we have no knowledge) in this particular case that some of the natives of New Zealand in the first instance committed an outrage on the parties now charged with offending against them, would they not come within the principle laid down by writers on international law, that, when persons living in a state of nature commit an offence against another coming amongst them, that other may punish them according to the laws of nature? We do not pretend to hold with Lord Bacon that, as anthropophagi, an exterminating war might justly be carried on amongst them; but if it be held that offences may be committed by aliens which there is no power in the court to punish, and if, on the other hand, British subjects are amenable for offences against them, there is not that fair measure of punishment which is contemplated by the law. In civil society men give up their right of punishment by the laws of nature on condition of protection, and if our courts have no power to punish aliens for aggressions against British subjects, they have none to punish the latter for aggressions against them. We wish it, however, to be distinctly understood that we argue this question solely upon abstract principles. In a moral point of view we know of no distinction between crime, whether committed against a savage or a member of civilised society. If the natives of New Zealand are not protected by our laws from wanton outrage, justice and humanity call for the most prompt and decisive measures to punish aggressors who are doubly criminal in proportion to their superior knowledge of Divine and human ordinances.—Sydney Gazette, May 14, 1831.

Our remarks on the liability of British, subjects for offences committed against the natives of New Zealand have been noticed by 'A Friend to Discussion' in a very sensible letter which appears in another column. Our correspondent, however, seems not clearly to understand the reason why we cited the case of the King against McDowell, or the grounds upon which the court arrested judgment. We cited that case because, in our opinion, it established the principle that, the Supreme Court of this colony has jurisdiction only over such offences committed at New Zealand as would be cognisable in the courts in England; and then proceeded to inquire if a British subject could be proceeded against in England for an offence committed against a New Zealander at New Zealand? But our correspondent is also in error with respect to the ground upon which the court arrested the judgment in that case. The late New South Wales Act (4 George IV, ch. 96, 3), under which the case was tried, gave the Supreme Court power to 'inquire of, hear, and determine all treason, piracies, felonies, robberies, murders, conspiracies, and other offences of what nature or kind soever.' But the prisoner was indicted for the offence of cutting and maiming under a particular statute, which statute was held by the court not to apply to the locus in quo. Had he been indicted for an aggravated assault the conviction must have been sustained. Since the publication of our remarks, however, we have been referred to an Act of Parliament, the 57th George III, ch. 53 (cited also by our correspondent), which, although not very precise in its wording, we think may be fairly considered to meet the case under consideration. It is intituled 'An Act For the More Effectual Punishment of Murders Committed in Places not Within His Majesty's Dominions,' and after reciting that, whereas grievous murders and manslaughters have been committed at the settlement in the Bay of Honduras in South America, the same being a settlement for certain purposes, in the possession and under the protection of his Majesty, but not within the territory and dominion page 191of his Majesty, by persons residing and being within the said settlement; and the like offences have also been committed in the South Pacific Ocean, as well on the high seas as on land, in the islands of New Zealand and Otaheiti, and in other islands, countries, and places not within his Majesty's dominions by the masters and crews of British ships, and other persons who have for the most part deserted from or left their ships, and have continued to live and reside amongst the inhabitants of those islands, whereby great violence has been done, and a general scandal and prejudice raised against the character of British and other european traders; and whereas such crime and offences do escape unpunished by reason of the difficulty of bringing to trial the persons guilty thereof, for remedy whereof enacts that: 'All murder and manslaughters committed on land at the said settlement in the Bay of Honduras by any person residing or being within the said settlement, and all murders and manslaughters committed in the said islands of New Zealand and Otaheite, or within any other islands, countries, or places not within his Majesty's dominions, nor subject to any European State or Power, nor within the territory of the United States of America by the master or crew of any British ship or vessel, or any of them, or by any person sailing therein or belonging thereto, or that shall have sailed in or belonged to, and have quitted any British ship or vessel to live in any of the said islands, countries, or places, or either of them, or that shall be there living, shall be tried, adjudged, and punished in any of his Majesty's islands, plantations, colonies, dominions, forts, or factories under the King's commission or commissioners, which shall have been or shall hereafter be issued in pursuance of the powers of the statute (46 George III, ch. 34) in the same (manner as if such offence had been committed on the high seas.' The policy, to say nothing of the humanity, of such an enactment must be at once admitted. It were indeed a scandal and disgrace not only to British traders, but to the British nation, if no means existed of punishing the authors of wanton outrage against a comparatively defenceless people. The wording of the act, as we have already observed, is not very clear. It should have mentioned the natives of the islands therein enumerated in express terms; but we agree with our correspondent that no doubt can exist of the intention of the Legislature in framing it. With respect to the 'commission' under which the act provides that the offences therein named shall be tried, we are of opinion that the jurisdiction expressly given to the Supreme Court supersedes the necessity for that form of proceeding in this colony. As we stated in our last, our observations on this subject were merely speculative; we were not aware of the existence of the Act of 57th Geo. III; but as our oversight has been the means of placing so important a question in its proper light before the public, we do not regret the duscussion to which we have given rise.—Sydney Gazette, May 17, 1831.

The following is the letter referred to in the foregoing: —Having seen some observations in your paper of last Saturday on the jurisdiction of the Supreme Court of New South Wales over offences committed by British subjects against the natives of New Zealand, I am induced to forward to you the following remarks upon the subject: By the last Act relating to New South Wales 'the Supreme Court shall and may inquire, hear and determine, all treasons, piracies, felonies, robberies, murders, conspiracies and other offences of what nature or kind soever, committed in New Zealand.' The particular offences thus specified would have been sufficient, therefore, to include the case of the King v. McDowell (alluded to by you) had it occurred subsequently to the passing of that Act; because the offence in question was a felony, though it was not within the meaning of the 57th Geo. III, which relates only to murders and manslaughters. But I apprehend that the words 'other offences of what nature or kind soever' are not sufficiently explicit to give the Court a jurisdiction over any other offences than those previously mentioned; inasmuch as the laws of england, not being applicable to that island, no breach of any of its laws is an offence. The power of Parliament page 192over all British subjects can reach them in any quarter of the globe, and it may declare what shall be an offence, and how particular offences committed by them shall be tried. The New South Wales Act gives to the Superme Court jurisdiction over murders and manslaughters committed in New Zealand, which before were punishable only by a Special Commission, under 57th Geo. III, ch. 53, and extends the provisions of that Act to 'all treasons,' etc.; but the last-mentioned Act clearly refers to murders and manslaughters generally, and, by the wording of it, seems to contemplate these offences committed against the natives; for it recites 'that these offences had been committed in New Zealand by the masters and crews, and other persons who have, for the most part, deserted from or left their ships, and have continued to reside amongst the inhabitants of those islands, whereby great violence has been done, and in general, scandal and prejudice raised against the name and character of British and European traders.' The offenders are spoken of as 'the masters and crews,' 'they who have continued to reside amongst the inhabitants.' Then against whom is the offence supposed to be committed? The inhabitants? What, too, should occasion the great violence, the scandal and prejudice against the British traders, but the injury done to 'the inhabitants'? This clause of the New South Wales Act had this last-mentioned Act in view, for the enactment makes use of the same words. I do not see, Mr editor, that a British subject is placed in any disadvantageous position by his being made amenable to laws which cannot equally affect the New Zealander. Supposing that 'some of the natives, in the first instance, committed an outrage on the parties charged with offending against them,' the killing might appear to have been on the sudden, and without malice, and thus assume the character of manslaughter, over which the Judges have, most properly, a very wide power of discrimination, for the purpose of awarding a suitable punishment, or it might, under the circumstances (and those circumstances would, in such a case, be peculiar), be deemed to be justifiable homicide. As to the other offences enumerated in the New South Wales Act, which consist of larceny, greater prudence and precaution may prevent a theft by the natives; or if it failed to do so, retaliation, by stealing from another, to make up for the property stolen, is too manifestly unjust, too much opposed to the laws of nature, to be allowed to the British subject. Certain it is that a British subject does not possess equal advantages—that he has not a similar protection by the laws of his country, but this is one of the risks of the trade. He enters into it with all its disadvantages because he expects a larger profit. He quits the protection afforded him on his own soil, he goes into the dominions of some foreign State, and the laws which allow him thus to leave his country may fairly require him so to conduct himself as not to injure its interests.—A Friend to Discussion.

The case of Captain Stewart, of the Elizabeth, was put off on Saturday last to Monday, the Acting Attorney-general stating to the Court that he was not ready to go to trial on the original information and intended to proceed upon another for a misdemeanour, at an early date. An application was then made to the Court to withdraw the recognizances under which Captain Stewart was held to bail, but was refused, the Crown Officer expressing his intention to bring on the charge of misdemeanour on Monday This was before the Chief Justice. On Monday, when Mr Justice Stephen took his seat upon the Bench, Mr Moore intimated to the Court that he had no information to present that day; and with respect to the case of Captain Stewart, which was appointed to come on, that he abandoned, the charge of misdemeanour, and intended to proceed upon the information already filed as soon as the necessary witnesses to support it should be forthcoming. Counsel on the other side, after some strong observations on the hardship to which his client was subjected from putting off the case in this manner from day to day, and still holding him to bail in the sum of £2000 fox an indefinite period, again moved to withdraw page 193the recognizances; but after a long argument, the learned Judge refused to accede to the motion, and the Court adjourned till the following morning (Tuesday), when it was further adjourned, without entering on any business, to Monday next.—Sydney Gazette, May 26, 1831.

Dr Wardell moved that the recognizances entered into by the defendant to appear and take his trial upon a certain information filed by the Attorney-general should be discharged, the Crown Prosecutor having failed to bring on the case on, the day appointed. The learned gentleman supported his motion by an affidavit of Mr Stewart, setting forth, among other matters, that the prosecution had been pending since the month of February last, at which time he was held to bail himself in the sum of £500, and two sureties of £500 each, to take his trial on a charge of murder; that, in the latter end of last month a day was appointed to go to trial, when he surrendered himself, but was then informed by the Crown Officer, that he had abandoned the first information and intended to file one for a misdemeanour, but was not then ready to proceed; that an application was made to discharge the recognizances, when it was suggested by the Court, and as the deponent understood, assented to by Mr Moore, that he would either proceed to trial on the charge of misdemeanour on the then following Monday, or consent to the recognizances being discharged; that the deponent accordingly surrendered on Monday, and was then informed that the Crown Officer would not proceed for misdemeanour, but on the original information for murder, and that he was not then prepared to bring forward the case for the want of some necessary witnesses. Upon these facts, counsel contended that the Crown Officer should be put to his election either to proceed to trial, or to discharge the recognizances, by which Mr Stewart might be for ever precluded from following his occupation as the master of a ship, besides being at present subjected to an almost ruinous expense in supporting a host of witnesses in Sydney. The Acting Attorney-general contended that no sufficient ground for granting the application had been made out; at the same time he was willing to lay the depositions already taken before their Honors, and to leave the Court to exercise its discretion in the case. The Court said they would look into the depositions, and give judgment on Saturday.—Sydney Gazette, June 4, 1831.

[It will be noted that the bail to which Stewart was admitted is variously stated at £3000, £2000, and £500, with two sureties in £500 each.]

The Chief Justice delivered the opinion of the Court to the following effect: —In this matter, in which it has been pressed upon the Court, that under the circumstances of the case, we axe called upon to release the party in whose behalf the application has been made, from the recognizances into which he has entered, to appear and take his trial upon a certain information filed by the Attorney-general, the Court has considered the arguments addressed to it, and feels that it is not in a situation to afford the relief sought for. By the rules of Court, the months immediately preceding the Terms have been set apart for holding the Criminal Sessions; but for convenience, and from other circumstances, the practice has been so far varied that the sittings of the Court do not commence until the 15th. In consequence of this alteration, therefore, the present Criminal Session does not terminate before the 15th of this month, on which day, and not before, the Court will be in a situation to entertain the motion, and to afford such relief as the circumstances of the case may appear to call for. We find an information upon the files of the Court, which, we must assume, the Attorney-general has exercised a due discretion in preferring; the applicant has entered into recognizances to appear before the Court on the first day of the Criminal Sessions, and there to abide, from day to day, until discharged by the Court, or delivered in due course of law. Our sessions of gaol delivery will not terminate until the 15th instant, and until that day we are not in a condition to afford any relief to the party now applying to be discharged from his recognizances.—MS. in New South Wales Record Office, endorsed June 7, 1831.

page 194

The Act under which Stewart was indicted, was 9 George IV, cap. 83, section 4, which reads as follows: —"And foe it further enacted that, the said Supreme Courts of New South Wales and Van Dieman's Land respectively, shall and may inquire of, hear and determine all treasons, piracies, felonies, robberies, murders, conspiracies, and other offences of what nature and kind soever, committed or that shall be committed, upon the sea, or in any haven, river, creek, or place where the Admiral hath power, authority, or jurisdiction, or committed or that shall be committed, in the islands of New Zealand, Otaheite, or any other island, country or place, situate in the Pacific or Indian Oceans, and not subject to His Majesty or to any other European State or Power, by the master or crew of any British ship or vessel, or any of them, or by any British subject sailing in, or belonging to, or that shall have sailed in, or belonged to, and have quitted any British ship or vessel, to live in any part of the said islands, countries or places, or that shall be there living; and that all persons convicted of any of the offences so to be inquired of, heard and determined, in the said 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 inquired of, tried, heard, and determined, and adjudged in England; any law, statute, or usage to the contrary notwithstanding." The defence set up was, that no offence was disclosed, under the Act. Thereupon the case, at the magisterial hearing, was moved into the Supreme Court, for argument. The judicial authorities appear to have recognized the difficulty from the outset, and, as will be gathered, from the foregoing, they seem to have oscillated between the preferment of a charge of murder, and the more simple charge of misdemeanour. On June 20, 1831, the case against Stewart was again called. Dr Wardell, as counsel for Stewart, moved that the recognizances to appear, and take his trial upon a certain information filed against him by the Attorney-general be discharged, the prosecutor having failed to bring on the case, up to the end of the last session of gaol delivery. The learned counsel supported his motion by similar argument, urged by him on a former occasion, when the Court ruled that the application should stand over, to the end of the Criminal Session.

The Acting Attorney-general not being present, the Court directed a rule to show cause, why the recognizances should not be discharged, to be served upon him, returnable on Monday.

The rule was enlarged until the following Saturday, being June 30, on which date the Attorney-general appeared in Court, and admitted his inability to sustain the charge, whereupon the recognizances were discharged and Stewart set at liberty.

[It was a crime, never previously contemplated by the Legislature. We cannot therefore be surprised, no provision existed for its repression. That coupled with the protracted endeavours made, to bring Stewart under operations of the law, in one form or another, does away with the imputation that the proceedings were only half-hearted, and the miscarriage of justice connived at by the authorities.]

Within a year thereafter—namely, on June 7, 1832—the law was amended, so as to include crimes of the nature of which Stewart had been guilty. It proceeded upon the preamble that, whereas divers crimes have been committed by his Majesty's subjects, in the islands of New Zealand and other islands situate in the Southern of Pacific Ocean, not being within his Majesty's Dominions, but inhabited by Tribes of uncivilised and barbarous people. And whereas, divers persons, being subjects of his Majesty, have, from time to time, fomented and encouraged warfare between such Tribes, as have assisted in the carrying on of such warfare, and it is necessary that provision be made, for the prevention of such crimes, and for the punishment of such offenders as aforesaid. page 195Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same: That it shall and may be lawful, for the Governor of New South Wales, with the advice and consent of the Legislative Council of that Colony, to make, ordain, and establish, all such Laws and Ordinances, as to them may seem meet, for the prevention and punishment of crimes and offences committed by his Majesty's subjects within the said islands of New Zealand, or, any other islands, within the Southern or Pacific Ocean, not being within his Majesty's Dominions, and by any such Laws or Ordinances, from time to time, to make effectual provision for the seizure, detention, trial, and punishment, of any such offenders, either within the said Colony of New South Wales, or within the islands in which any such offences may have been committed; or within any adjacent islands; and by such Laws or Ordinances, to make provision for the prevention and punishment of any act, or acts, done by any of his Majesty's subjects, for the fomenting or encouragement of warfare, between such Tribes as aforesaid or for the assistance of any such Tribe or Tribes, in any warfare, in which they may be engaiged, Avith each other; and for the several purposes aforesaid, the said Governor of New South Wales, with such advice and consent as aforesaid, shall be and is, hereby authorised from time to time, by any such Laws, and Ordinances as aforesaid, to establish such Rules and Regulations, as the exigencies of the case may require, and as may be effectual for the prevention and punishment, of such crime and offences, as aforesaid; which Rules and Regulations shall conform to and correspond with, the Rules of the Law of england, in similar cases, so far as the difference of local circumstances may admit, and no further. Provided nevertheless, and be it further enacted; That all such Laws and Ordinances shall be transmitted by the Governor of New South Wales, for his Majesty's approbation, and shall be subject and liable to be disallowed or confirmed, by his Majesty in such and the same manner and, upon and subject to the same conditions and restrictions, as any Law or Ordinance which may at any time be made, and enacted by such Governor, with such advice and consent as aforesaid, under and in pursuance of the Statute, passed in the 9th year of the Reign, of his late Majesty, King George IV, intituled, "An Act to provide for the Administration of Justice in New South Wales and Van Diemen's Land and for the more effectual Government thereof, and for other purposes relating thereto: And providing also that, nothing herein contained, shall extend, or be construed, to repeal the said recited. Act, or any part thereof."

Writing on 27th May, 1824, Sydney Gazette says:—"We congratulate the friends of the Heathen World upon the intervention of the New Charter of Justice, in which provision is so adequately and beneficially made to protect our sable brethren, the South Sea islanders, from further European or British barbarity. The proclamation on this head will no doubt have the desired effect. We scruple not to say, there are numbers in the Colony who in years past enjoyed no higher pleasure than that of hunting the poor unoffending New Zealander, for his precious life. It is the instruction of his Excellency the Governor that every whaler, putting into these ports, should be furnished with copies of the proclamation.

[Missionaryism appears to have had a good deal to do with distorting the facts of the case. It was, says a treatise on the subject, "fit and meet retributive justice should step in and execute the vengeance for which the law had been vainly importuned. Accordingly, we are gravely informed that, after his discharge, Stewart sailed in his "sin-polluted craft" for South America, and in rounding Cape Horn he was struck dead, and his body, "reeking in rum," hove over the ship's side. As a matter of fact, both he and the craft remained for years after his discharge on the coast of New South Wales; and as for the rum-reeking trip, if it ever took place, Sydney records say nothing about it.]