The death penalty

Page 2 – The first execution

First official execution in New Zealand

At noon on 7 March 1842, up to a thousand people gathered at the corner of Queen Street and Victoria Street West, in what is now the centre of the Auckland CBD. Seeing a crowd this size gathered today on this busy intersection would hardly attract attention, but these people were not about to cross a busy road as they went about their business. They were there to witness New Zealand’s first judicial execution. Led out before them onto the recently erected scaffold was 17-year-old Maketū Wharetōtara, the son of Ruhe, a Ngāpuhi rangatira from Kaikohe. Maketū had been convicted days earlier of the murder of five people at Motuarohia Island in the Bay of Islands.

The killing of five people is, at any time, a significant event. Maketū’s case could be seen as having wider constitutional and judicial implications in the early period following the signing of te Tiriti o Waitangi – the Treaty of Waitangi. Te Tiriti had not resulted in Māori universally ceding sovereignty to the British, as many chiefs had not signed it. Richard Hill, in his first volume of the History of Policing in New Zealand, viewed the case as representing the ‘acquiescence’ of Māori in the right of the ‘state to intervene in cases affecting order which involved members of both races’. ‘Despite pākehā forebodings’ at the time, Hill argued, Māori accepted the outcome as ‘fair’, although there was some opposition to the ‘cruelty’ of execution by hanging. Maketū’s execution continues to haunt his whanaunga nearly two centuries later.

Paul Moon sees the ‘execution of a minor chief in 1842 in Auckland for murder as normally being of little significance in the evolution of a nation’s statehood’. The history of colonial rule in the British Empire is littered with many examples of capital punishment being administered to the colonised. What made this case stand out was that it ‘signified the Crown’s willingness at this relatively early stage in Crown Colony Government in New Zealand, to extend its jurisdiction so that British law would apply to Māori communities’. The exercise of British sovereignty in New Zealand prior to 1842 was largely confined to the non-Māori population. The apparent acceptance by a number of tribal leaders of the extension of British (criminal) law to their communities, at least in the case of capital offences, could be viewed as a constitutional turning point.

Vincent O’Malley suggests that tribal politics played a greater role than simple acquiescence to British criminal law. Among those killed at Motuarohia was the granddaughter of Rewa, one of the most senior Ngāpuhi chiefs in the area. Surrender to the law was ‘a means of avoiding a greater calamity’ – Rewa seeking utu for the crime from Maketū’s kin.

Background to the killings

In 1839 John Roberton, a sailor and whaler, purchased Motuarohia, a small island in the Bay of Islands, from a ‘consortium of chiefs’ including Wharerahi and his younger brother Rewa, for £213, paid with a combination of cash and goods. The brothers were leading figures of the Ngāi Tawake hapū of Ngāpuhi, based at Waimate. Both signed He Whakaputanga o te Rangatiratanga o Nu Tirene (the Declaration of Independence of the United Tribes of New Zealand) in 1835 and te Tiriti o Waitangi on 6 February 1840. Rewa was seen by many as the successor to the powerful Ngāpuhi chief Hongi Hika, who died in 1828. According to Claudia Orange, ‘after Tītore’s death in June 1837 Rewa became the undisputed principal chief of Kororāreka.’

Roberton and his wife, Elizabeth, established a small farm on the island. Tragedy struck in 1840 when John drowned in a boating accident, leaving Elizabeth with two small children and £100 still owing on the farm. Elizabeth and her children were living in an as yet unfinished farmhouse on an ‘inhospitable island in a cannibal country’, she wrote to a family member. She might have been better off cutting her losses and selling up, but for the fact that the colonial government was investigating all land purchases made before 1840, effectively freezing any land transactions in the meantime. Government official William Swainson observed that ‘nearly the whole European population of the North Island were claimants of land alleged to have been purchased from the natives before the proclamation of the Queen's authority.’

Elizabeth Roberton’s woes continued when some local Māori claimed that as John had been the actual purchaser, custom dictated that the land be returned to its former owners. During 1841, ‘hints, accusations, and threats’ to this effect were directed against Elizabeth. Significantly, Wharerahi and Rewa did not agitate for the return of the land. On 11 November 1841, Elizabeth attended a hearing in Russell (Kororāreka) held by the Land Commissioner to investigate her claim to the land. Wharerahi and Rewa attended the hearing and declared that they had had no expectation of the island reverting to their ownership in the event of John Roberton’s death. The Commissioner ruled in Elizabeth’s favour.

Her land title secure, Elizabeth returned to Motuarohia to salvage something from the struggling farm. Following the death of her husband, she had employed Thomas Bull, who was in his thirties, to manage the farm. Maketū was taken on as a farmhand. The household was expanded to include three-year-old Isabella Brind, a granddaughter of Rewa. William Brind, a whaler who had lived in the Bay of Islands since 1820, had from 1828 lived with Rewa's daughter, Moewaka. Their daughter was baptised Eliza Isabella Brind by the missionary Octavius Hadfield in October 1839. By then Moewaka may have died, which would explain why Isabella was placed in the care of Elizabeth Roberton. Paul Moon thinks it likely that Isabella was placed with Elizabeth’s family ‘to earn favour with the Māori community closest to her farm.’

Bull and Maketū seem to have quickly fallen out. Bull provoked Maketū on several occasions, at one point threatening not to feed him unless he ‘worked better for Mrs. Roberton’. Bull repeatedly verbally abused Maketū and threatened to dismiss him, behaviour which belittled the younger man’s mana. In the face of such demeaning treatment, Maketū ‘became sullen’, which Bull mistook for ‘laziness, thus exacerbating the ill-will between them.’

The final straw for Maketū came when he was kicked by Bull during a pay dispute. On 20 November 1841, Maketū allegedly took matters into his own hands, striking Bull twice with an axe as he slept. According to Alexander Marjoribanks’ in his 1846 book Travels in New Zealand, ‘Mrs. Roberton having accidentally happened to come upon him [Maketu] when in the act of doing so, he judged it advisable to despatch her also with the same instrument, and then the two female children.’ The older Roberton boy attempted to flee but was caught and thrown over a cliff.

Maketū is apprehended

Maketū sought refuge in his father’s village. The authorities in Russell detained three European men for the killings until word spread that Maketū had confessed. The killing of Rewa’s granddaughter saw hundreds of Māori from the surrounding area gather to address the matter. The vastly outnumbered settler community was fearful that widespread conflict could erupt. Marianne Williams and her husband, Church Missionary Society (CMS) missionary Henry Williams, received a note on 23 November from an alarmed settler, James Busby informing them of the murders. Busby wrote that ‘three hundred natives were assembled …. and refused to give the murderer up’. He described the situation as ‘more alarming than anything he had known’ in his time in New Zealand’. Another CMS missionary, John King, was also of the opinion that ‘the natives [were] ripe for an outbreak.’ Marianne Williams described how ‘we shuddered as we talked over it’.

At this time British sovereignty in New Zealand was largely limited to the minority, non-Māori population. Many settlers felt that Governor William Hobson’s administration did not have their best interests at heart. This was highlighted by their reaction to Thomas Beckham, the police magistrate in the Bay of Islands, who refused to arrest Maketū. Given the numerical advantage enjoyed by Māori, Beckham was reluctant to take any action that might provoke Maketū’s kin. While he thought he was being prudent, many settlers felt differently. One described Beckham as having ‘neither courage to act decisively himself, or to avail himself of the assistance offered by the settlers’ to apprehend Maketu. Richard Hill believed that Beckham failed to read the situation correctly in not recognising that ‘both Maketu’s and Rewa’s people were prepared to accept pākehā norms of legality in interracial matters.’

Ngāpuhi reaction: the significance of Isabella Brind

The death of Rewa’s granddaughter required some form of utu to be paid to the wronged party. Ranginui Walker described utu as ‘the guiding, and perhaps most important, principle throughout Māori dispute resolution…. at its most basic level utu simply meant equivalence or repayment. Such repayment would restore the balance which had been upset by the offending. The degree of utu required was determined by the circumstances and severity of each offence’.

Around 20 chiefs met in the Bay of Islands on 16 December 1841 to resolve the matter. The New Zealand Herald and Auckland Gazette published a translation of a resolution agreed to at this hui:

First – This Assembly declare that they did not know the murderous intention of Maketu towards the Europeans; his resolution was his alone; and the Chiefs of Ngapuhi declare that they have no thought of rising to massacre the Europeans living in New Zealand, and their hearts are sorry because the Europeans have thought that this is the desire of the natives.

The Assembly declare that they will strongly protest against this murderer, Maketu, being brought back to the Bay of Islands.

Governor Hobson was informed by the signatories that ‘Maketu is with you, leave him there; do not bring him back here to us, lest there be a disturbance – leave him there (Auckland).’ They asked the governor to ‘let your regard be great for us, the children of the Queen Victoria.’ Hobson would have been reassured by the statement that the chiefs gathered had ‘no mischievous dispositions towards the Europeans.’

Many written accounts refer to Maketū being ‘handed over’ to the authorities, but it is unclear when this occurred or how it was achieved. We know that Thomas Beckham was reluctant to act, and Richard Hill suggests that ‘Henry Williams and some ex-Kororāreka Association merchants with a greater awareness of the internal politics of the situation, secured custody of Maketu from his people.’ Governor Hobson admonished Beckham for his lack of action, noting that it was ‘most undignified that the Colonists should have to act in their own persons, whilst there were a large naval force, and some military and Police at your command.’

Significantly, the influential chief Hōne Heke did not sign the resolution. For Heke, this was a Māori issue that should be dealt with by Māori and not by an English jury. Maketū’s father, Ruhe, agreed to surrender his son to the colonial authorities to prevent war with Rewa, but he clearly struggled with this decision. He later revealed his pain in a lament he sang to Heke: ‘Kaore te aroha mōhukihuki ana, te pānga mai ki ahau, me he ahi e tahu; Alas, this all devouring grief, that burns within me like a flame.’ Ruhe died by suicide in 1865.

Isaac Shaw escorted Maketū to the capital, Auckland, to await trial. Shaw had arrived in the Bay of Islands as an employee of the ‘convict service’ of New South Wales, sent here to recapture escaped convicts. He operated under the jurisdiction of Police Magistrate Beckham. Maketū was detained in a ‘rat-infested’ prison in Queen Street.

The trial

On 1 March 1842, Maketū stood trial in the newly opened Supreme Court in Auckland. Attorney-General William Swainson had welcomed the opening of the court as evidence that a ‘power had been established over both races to which, henceforward, all would be compelled to bow.’ Presiding over the trial was Chief Justice William Martin. An all-male, all-Pākehā jury would determine Maketū’s fate. It was to be a brief affair.

Not the first

Maketū was not the first Māori to find himself in a British courtroom facing a charge of murder. In April 1840, some 300 well-armed Māori led by Te Haratua, a ‘staunch ally’ of Hōne Heke, descended upon a church serving as a makeshift courthouse at Kororāreka, where a Ngāpuhi man named Kihi was being tried for the murder of a European shepherd, Patrick Rooney. Kihi had been handed to the authorities by other Ngāpuhi. The group ‘performed an angry haka’ as it burst into the church. Convinced that they had ‘hostile intentions’, magistrate Willoughby Shortland sent for troops. Edward Marsh Williams, the eldest son of Henry and Marianne Williams, reassured Shortland. Te Haratua was indignant that Kihi had murdered an employee of ‘his (Te Haratua’s) own pakehas’. He was there to ‘deliver a more summary form of justice.’ Williams persuaded Te Haratua and his warriors to leave and allow the case to proceed. Te Haratua was apparently promised that the ‘desired outcome would be achieved’. Several chiefs reportedly expressed a strong preference for shooting rather than hanging the offender. In the event Kihi met neither of these fates, dying of natural causes before his case went much further.

Maketū’s Crown-appointed lawyer, C.B. Brewer, was given the brief only an hour before the trial began, and was unable to speak to Maketū in the interim. The lay missionary George Clarke and his son, George Clarke Jnr, both proficient in te reo, served as interpreters. George Snr had been appointed Chief Protector of Aborigines in May 1840, heading a small department of sub-protectors, including his son. Their role was to look after Māori interests and to assure Māori that their customs would not be infringed, 'except in cases that are opposed to the principles of humanity'.

Māori language newspaper

Te Karere o Nui Tireni (The New Zealand Messenger) was published from January 1842 to January 1846. The first Maori-language newspaper, it ceased publication after 50 issues during the Northern War. It was edited for the government by Hori Karaka (George Clarke), the Protector of Aborigines and translator in Maketū’s trial, Thomas Spencer Forsaith, a Hokianga settler and shopkeeper who was later appointed Sub-Protector of Aborigines, and Dr Edward Shortland, also a Sub-Protector.

Despite his not-guilty plea, many saw Maketū’s conviction as inevitable. He had allegedly admitted the crimes to members of his whānau and a Russell shop-owner, Thomas Spicer. Witnesses confirmed seeing Maketū on Motuarohia on the day of the murders. Brewer countered by pointing out that all the eyewitnesses to the killings were dead. Victoria University’s Lost Cases project provides a comprehensive range of newspaper accounts of the trial, many of which highlight how the case hinged on Maketū’s initial confessions. Spicer had launched his own impromptu investigation of the murders. He told the court that while Maketū had initially denied committing the crimes, he eventually admitted his guilt after being pressed repeatedly over the course of a day. Spicer claimed to have interrogated Maketū in te reo, even though he admitted to having no fluency in the language. According to the Māori-language newspaper Te Karere o Nui Tireni (The New Zealand Messenger), Spicer asserted that while he didn’t ‘remember what I said to the prisoner, whether or not he admits it – I caught him.’ 

Given his unfamiliarity with the British judicial process, it is arguable whether Maketū fully appreciated the significance of any confession he had made earlier. Brewer expressed these concerns in his closing remarks, asking the jury whether ‘the prisoner sufficiently understand the consequences of making them? Could he be aware that upon them he would be convicted, and that on conviction so heavy a penalty as death would follow?’

Letter of confession?

The only written evidence of a confession exists in an unsigned letter that allegedly presents Maketū’s thoughts on the morning of his execution. This letter, written in English, which Maketū did not speak, states that ‘it is my own doing and for my deeds I am going to the place that is burning with everlasting fire’, before speaking of salvation. It is not clear who wrote this letter, or whether it accurately reflected Maketū’s thoughts.

The remaining evidence was largely circumstantial. A number of Māori called to give evidence said Maketū possessed objects from the Roberton house, including a ‘sack of rice with blood on it’ and an umbrella. None of these witnesses had seen Maketū leave the island on the day of the murders or had first-hand evidence he was involved.

Brewer asked the jury, ‘what other evidence is there against him besides his own confessions? He answered his own question – ‘none’. But a not-guilty verdict seemed highly unlikely. After briefly retiring to consider matters, the jury returned a guilty verdict. Chief Justice Martin, in imposing the harshest sentence of death by hanging, concluded that ‘This is also the law of England, [which] still reigns over the people of this land, no matter whether some are Pākehā and some are Māori.’

Maketū’s sentence was to be carried out six days later, on 7 March. Workers set about constructing the gallows. On the morning of his hanging, Maketū apparently asked to be baptised. An Anglican minister, Reverend John Churton, baptised the condemned teenager as Wiremu Kīngi (William King). At midday, Maketū – ‘dressed in a blue blanket’ – was brought from his cell. According to an account that appeared in the New Zealand Gazette and Wellington Spectator, Maketū ‘exhibited the peculiarly dignified demeanour and appearance for which the native chiefs are so peculiarly distinguished’. The scaffold was surrounded by a large military guard, supposedly to prevent any last-minute attempt to stop the execution. However, few Māori were present in a crowd estimated at around 1000. Shortly after noon, the prison bell tolled and Maketū was ‘cast off’. The New Zealand Gazette and Wellington Spectator declared he died ‘almost instantly’. This was not always the case with a hanging.

Richard Hill wrote that many Māori were reportedly impressed that despite Maketū’s confession, ‘all the formalities of proof were complied with.’ This reinforced, Hill concluded, ‘the willingness of important tribes to cooperate with the pākehā in disputes and offences of interracial connotation’. Contemporary accounts agreed with Swainson that the trial had ‘created on the native mind a deep impression.’

Maketū’s whanau was initially denied his body, but in early 1843 his remains were returned for burial in the family urupā in the Bay of Islands.

Tikanga Māori: ‘the right Māori ways’ and British law

At the time of the signing of the Treaty of Waitangi, Māori lived according to a complex system of customary laws that are sometimes referred to as tikanga Maori. The anthropologist Joan Metge described tikanga as the ‘way(s) of doing and thinking held by Māori to be just and correct, the right Māori ways’. Legal scholar Ani Mikaere defines tikanga as the ‘first law’ of this land, which draws upon ‘rituals, precedents and customs that have been handed down through the generations’. Tikanga embodies a set of beliefs and practices associated with procedures to be followed in conducting the affairs of a group or an individual. Tikanga includes ‘approaches or ways of doing things which would be considered to be morally appropriate, courteous or advisable’. While not written down or codified in the way British law was, these practices were clearly understood and included measures to deal firmly with disequilibrium within a community. Tikanga Māori defines individuals through their relationships with others. It acknowledges the responsibility owed by the individual to the collective.

Emmet Maclaurin, in his dissertation, The Application of the British Criminal Law Towards Māori During the Early Colonial Period, considered how disputes relating to tikanga arose and how they were resolved, sometimes through ‘collective victimhood and responsibility’. Resolution often involved utu. Hirini Moko Mead describes the role of utu as restoring the relationship between a wronged party and an offender. For Mead, a breach of tikanga gives rise to a take – an issue, justification or cause. This take requires an appropriate cultural response to compensate the wronged party and achieve a state of ea, or harmony.

In acknowledging the responsibility owed by the individual to the collective, Vincent O’Malley concluded that Maketū’s extended family was able to avoid embroiling themselves in a potentially bloody conflict only by allowing Maketu to pay the ultimate penalty for the offence of killing Isabella Brind. Some of the northern chiefs were subpoenaed to give evidence at the trial. Had they wished to, they could have spoken in defence of Maketū or pleaded his case in some way. None attended the trial, which suggests that, having resolved to hand Maketū over to the Crown authorities, they wanted nothing further to do with the matter.

A 2001 Law Commission/Te Aka Matua o Te Ture study paper Māori custom and values in New Zealand laws, argued that in practical terms, ‘imposing British law onto Māori hardly made sense given that the Māori did not speak English, did not understand the norms and values underlying British law, and to translate English laws into Māori would have been very difficult. Even if it was done the laws would be singularly inappropriate to the conditions in which nearly all Māori were living.’

Paul Moon views the outcome as an endorsement ‘by a number of tribal leaders, supporting the extension of British (criminal) law to their communities’, at least for capital offences. However, making laws that were supposed to govern settlers also apply to Maori ‘stretched the elasticity of Colonial Office policy to an extreme degree.’ Hobson and his administration, ‘if not questioned by his superiors in London, would certainly have faced the ire of the colony’s settlers had he failed to apprehend Maketū.’ Hobson undoubtedly drew confidence from the December resolution that made clear a backlash from Ngāpuhi was unlikely. The fledgling colonial government was quick to declare that the authority of the Crown and its officials had been upheld.

For many in the settler community, the case represented, at last, an acknowledgement of the pre-eminence of British law and order. Henry Williams, however, was less convinced that this was the watershed moment others claimed it to be. Regardless of what the settler community might have felt had been ceded to the Crown through the Treaty of Waitangi, the numerical advantage enjoyed by Māori meant that they lived according to their own tikanga. Williams had played a part in the diplomacy that had kept the peace locally following the killings. Writing shortly after Maketū’s trial and execution, he noted that he did ‘not know a chief who has not expressed his distrust in the Europeans generally; and it has required all my energies and influence, in common with other Missionaries, amongst the natives, to set their minds at rest upon these subjects’. Williams was in no doubt that Maketū had been handed over not because there was widespread support for the British judicial process, but because he had killed Rewa’s granddaughter.

Some Māori were shocked at the way in which Maketū eventually met his fate. The British legal process for a capital crime must have seemed drawn-out and cold-blooded. ‘This is the law of England’, as declared by Chief Justice Martin, must have seemed a very strange thing to the young Maketū and his whānau. Tikanga Māori would have seen Maketū dealt with promptly. As the son of a chief, he could have expected a swift blow to the back of the head from a mere.

Maketū’s trial had been postponed for a day to enable a European to be tried for murder. The differing outcomes of the two trials may not have reassured Māori of the impartiality of the British judicial process. The Pākehā accused was found guilty of the lesser crime of manslaughter and escaped the gallows. The legal distinction between murder and manslaughter would not necessarily have been understood by Maketū or his whānau, who may have suspected inconsistent treatment of Māori and Pākehā.

One rule for all?

The outcome of the trial of Richard Cook for the murder of Ngāti Toarangatira woman Rangihoua Kuika and her infant son at Guards Bay in the Marlborough Sounds in April 1843 raised questions for some, especially Māori, as to the consistency of British law. Cook’s wife claimed that her husband had confessed to the killings, but he was acquitted of the murders in the Wellington Supreme Court after the judge ruled that, under the law, a wife’s testimony was inadmissible. The failure to convict and punish a European for the murder of Māori, in the face of what seemed overwhelming evidence of guilt, may have had far-reaching consequences. Lowther Broad, in his 1892 Jubilee history of Nelson, described Cook’s acquittal as ‘one of the indirect causes of the Wairau Massacre’ of June 1843. According to Broad, ‘the Natives believed him guilty – they were not satisfied with the trial, and they conceived a distrust of British Justice. If it had been a Maori who was accused, he would, they said, have been surely convicted.’

Maketū’s public execution was a source of great shame – whakamā – and humiliation that was felt intensely, as was demonstrated by his father’s lament and subsequent suicide. In early 2021, Hinerangi Himiona and Hone Mihaka, descendants of Ruhe, spoke of living with the ‘intergenerational weight of what happened to Maketū,’ and how the execution of their tupuna still ‘haunted’ Maketū’s whanaunga. Hone Mihaka’s family whakaaro is that Thomas Bull raped and murdered Elizabeth before killing the children. Maketū discovered the crime and killed Bull. By capturing his tupuna and killing him in public, the Crown ‘was saying something ominous’ and sending a clear message to Māori.

More than six years would pass before the next execution in New Zealand. On 17 June, at Devonport, Joseph Burns became the first European to be hanged in New Zealand under British law. He had been convicted of murdering a naval lieutenant, his wife and daughter.

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'The first execution', URL:, (Ministry for Culture and Heritage), updated 3-Apr-2023