The Old Whaling Days
Solicitor maule to treasury
Solicitor maule to treasury.
23rd April, 1832
With reference to your letter of the 24 Decr 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 page 410 Island against those of another at the instigation of the 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 deficiency, if there 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 page 411 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 known 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 Southdown 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. page 412 Harvey is also mentioned as speaking to a material part of this atrocious 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.
Your most obedient
Wm. G. Maule
P.S.—I return the papers.