Jeremiah Nagle’s conviction and jailing of some of his workers for refusing to work is interesting for the standard of the law then operating in the young colony. Some years later, the episode was commented on by one of the workers convicted by Nagle, 26 year old William Swanson. William Swanson lived on in New Zealand until his death in 1903, and is the man after whom the suburb of Swanson in the city of Waitakere is named.

From the ‘New Zealander’ newspaper 21^st February 1846, pages 2-3.

 Liberty of the Subject

Much interest has been excited by the circumstances of fourteen persons being brought to Auckland at the end of January, from the Great Barrier Island, being committed by the local Justice of the Peace there, for breach of contract with their master, to three months imprisonment, and hard labour, at the jail of Auckland.

These men were convicted and sentenced under the “Summary Proceedings Ordinance”, which seems to have been framed, as if communication; between the interior as well as distant parts of the colony, and the superior courts of law and justice, in Auckland, were as easy and as rapid, as in England.

Without entering at all into the merits of the case, which occasions these remarks, - we consider that the 18^th and 19^th clauses of this ordinance, ought to be immediately amended, for they are not compatible with the due administration of justice in a new colony, the population of which, is so scattered and in many instances, far distant from, the seat of Government, where the higher courts are holden. It is contrary to the principals of the English constitution, that those being, under its laws, should not have strict and full justice meted to them, or that they should be deprived of redress by the verbal technicalities of faulty enactments.

In the present instance, the men convicted could not by any possibility, comply with the law, as laid down by the ordinance. The 19^th clause enjoins that notice of appeal shall be given within three days, after the conviction. The men were taken before the magistrate on the 21^st January, were convicted and sentenced, and on the 28^th instant arrived in Auckland.

Subjoined, we lay before our readers a copy of the Judgement of the Supreme Court, on motion of the prisoners for a writ of certiorari against the Justice of the Peace, Capt. Nagle; and also, their subsequent memorial to Governor Grey. We shall only observe, that as the Magistrate at the Barrier, was sending the prisoners to Auckland, we think he ought, on conviction of these men, to have explained to them, the 19^th clause, so that they might have availed themselves of the benefit of it.

In the Matter of Macdougall and others.

His Honour the Chief Justice gave Judgement in the following case, on Feb. 13^th, 1846.

                This is an application for a writ of centiorari, to be addressed to Jeremiah Nagle, Esq. Justice of the Peace, to require him to return into this Court certain examinations taken before him, and a conviction grounded thereon; under which conviction the persons on behalf the motion is made, are now imprisoned at Auckland. It appears that these persons were engaged to serve Robert Menzies in certain works now carrying on in the Great Barrier Island. Each workman was bound by a separate agreement signed by himself and by Menzies, or his agent. On the 21^st January last they were brought before a magistrate, upon the complaint of Menzies, for refusing to complete their agreement, and were convicted. They were committed accordingly, but did not arrive in Auckland until the 28^th of the same month, at which time the days limited for commencing an appeal from the Magistrate’s decision had expired.

The grounds of this motion are the following:

1^st It is contended the agreement between Menzies and these men were at an end before the conviction, Menzies himself, having (as is alleged), actually discharged the men. It is sworn that on the 19^th of January Menzies told the men “that they were no longer to look to him as their master, as he had no more to do with them, or the works”. – Another deponent James Lawrence, swears, that he heard Menzies call all the men together (the prisoners and the deponent being amongst the number), and say. “Now men, I hope you will not hold me responsible for any thing as you have done hitherto, for Mr. Abercrombie has stated I am not able to fulfil my contract, therefore I have nothing further to do with the vessel, nor with any of you men. I am not able to go through with my contract, therefore you can work or do as you like. Now to say the contract was at an end the moment these words were uttered, would be to adopt a construction, very favourable to workmen in like circumstances and a construction too not supported by the law. These men, (some, if not all) had come from Sydney to this colony, to work for a certain number of calendar months, at certain wages. The contract had in part been performed on both sides. It was no longer then in the power of either party to put an end to that contract, without the consent of the other. For the Rule is, that in rescinding or making a contract, both parties must concur (Franklin v Miller, 4 Ad, and Ell., 606). The utmost these words could amount to, was this, - that Menzies was willing to discharge the men, if they, on their part, would discharge him. But it was open to them to say “No, you have brought us here, we are ready to go on, and do our part. We shall hold you to your bargain.” Now nothing appears as to this. As to what the men said, or what they did, upon this announcement, nothing is shewn. Whether they elected to stand by the contract, or to abandon it; cannot be gathered from these affidavits.   

2^nd It is sworn both by the men and by James Lawrence that the magistrate, being requested in the course of the examination, to call and examine on behalf of these prisoners, certain witnesses, who were (as is also sworn), ‘then but a short distance off from the place where the examination was taking place’ – refused to do so, saying he was satisfied with Menzies deposition. It appears that a witness was examined on behalf of Menzies. This allegation, is one, which I think, called for an answer, but no counter affidavit has been filed, either to deny or to explain it. Now when these objections are considered, (and the latter one at any rate is of great weight), it is plain that they are proper grounds for an appeal, rather than for a certiorari. It is indeed enacted in the Summary proceedings Ordinance, (Session 2, No 4, s. 17), that “no conviction shall be removed into any superior Court by certiorari or otherwise,” an enactment which is very generally introduced into modern Acts of Parliament, relating to summary proceedings. It is clear however, that clauses of this kind are intended only to prevent convictions being set aside (as they too often were formerly,) on account of merely verbal and formal defects, in cases, where the conviction itself, was within the lawful scope of the Justice’s authority, but that the writ will still issue whenever it shall be made to appear, that the Justice of the Peace has exceeded the bounds of his jurisdiction, (The King, v The Justices of Somersetshire, 5B, and Cr. 816. The King, v Fowles, 1 Ad. And Ell., 836). I notice this point, only with reference to some remarks made in the course of the argument on the effect of this enactment. No decision is called for on the point itself, the objections here insisted on are of a different character: and the Magistrate’s jurisdiction in this case is not denied. In short, the allegations on which this motion is grounded amount to this, that these men have not had a fair trial, the magistrate having, as is stated in the affidavits, refused to call and examine witnesses on their behalf. It is not alleged that the evidence given by Menzies and the other witness, taken by itself, was not sufficient, but that opposite testimony was not received. The return then to the certiorari, would not answer the purpose, (if a certiorari could lawfully issue); the proper remedy would be by appeal, which would bring with it a new trial, and an opportunity of taking further evidence. It is clear that in such a case as the present, certiorari does not lie, where an appeal is given, and the objections are not in the jurisdiction, but to the merits. And this brings us back to the difficulties which constitute the hardship of the case: - namely, that the time of giving notice of appeal, was passed before these men reached Auckland. It is not said that these men could have been conveyed hither earlier than they were, but it appears that they being themselves unlearned men, had no means of obtaining legal advice, until the time for giving notice of appeal was gone. I see nothing to warrant me in saying that a new inquiry would have ended more favourably than the former; yet there is a hardship I having lost the opportunity of having that inquiry made. In this respect, however, I have no power, I am bound by the rule as I find it. On the other hand, there appears no ground for a certiorari. The case has been very forcibly argued; but upon the best considerations of what has been urged, I do not see how the writ can lawfully issue.

Rule refused.      

To His Excellency, George Grey, Esquire, Lieutenant –Governor of New Zealand, &c.

The Memorial of us the undersigned respectfully Sheweth

That we before the 19^th of January last, by agreement in writing, but not by deed or instrument under seal, agreed to serve Robert Menzies for twelve months in certain works on the Great Barrier Island, or until a ‘Vessel’ now in the course of construction in the said Island should be completed.

                That on the said 19^th day of January the said Robert Menzies came to us, and called us together, and stated, that we were not any longer to consider him as our Master, that he had no more to do with us or the works, saying, “now men, I hope that you will not hold me responsible for any thing as you have done hitherto, for Mr. Abercrombie has stated that I am not able to fulfil my contract, therefore I have no more to do with the Vessel, or with any of you men, I am not able to go through with the contract, therefore you can work or do as you like” – and that he subsequently in the evening of the same day stated that he had discharged us.

                That we accordingly left off work, considering ourselves discharged, and the agreement at an end.

                That on the 21^st day of the same month we were summoned to appear before Jeremiah Nagle, Esq, a Magistrate resident in the said Great Barrier Island, to answer a charge preferred by the said Robert Menzies against us, for refusing to work for him.

                That when before the said Jeremiah Nagle, Esq, the said Robert Menzies and a witness on his behalf were sworn and examined, but the said Jeremiah Nagle, Esq, refused to hear any witness on our behalf, although four witnesses were close at hand, and ready to give evidence.

                That we were accordingly convicted by the said Jeremiah Nagle, Esq, for refusing to work, and sentenced by him to be imprisoned, and kept to hard labour for three calendar Months, the conviction falsely describing us as “indentured servants.”

                That we were in pursuance of such conviction brought from the Great Barrier Island, (where there was no Lawyer to act for, or advise us, or any person competent to inform us of the law, or give notice of appeal on our behalf,) and on the 28^th January arrived in Auckland, when upon consulting a Lawyer, we discovered that by Ordinance, Sess.2 No, 5, we were deprived of the remedy of a writ of certiorari to remove the proceeding before Jeremiah Nagle, Esq, into the Supreme Court, and also that we were deprived of all power of appeal under section 19, of the said Ordinance, which limits the time for giving notice of appeal, to three days after conviction, more than that period having elapsed before our arrival in Auckland, and likewise that we were deprived of our remedy by Action the conviction having been drawn up agreeably to the form prescribed by the said Ordinance.

That feeling the extreme hardship of our position, and that without any crime or fault on our parts, but solely from our ignorance of a Local Ordinance and the Act of the said Jeremiah Nagle, Esq., and the said Robert Menzies, we were deprived of our liberty, we, with a view that our case might be known, and if possible be remedied, applied for a writ of certiorari to His Honor the Chief Justice, who admitting the hardship of our case felt compelled to refuse our application.

That we have been since our arrival in Auckland, and now are, compelled to work as malefactors in company with fettered felons upon the public roads, and are without any relief, or redress, unless your Excellency shall be pleased to grant the same.

That such a state of things could not by possibility occur in England and that as Britons we feel, and are advised, that we have not done any act to forfeit our liberty.

That we have in this our memorial omitted many act of hardship and oppression, inasmuch as the same are not enumerated in the affidavits submitted to His Honor the Chief Justice, to the contents of which affidavits the same not being in any way answered either by the said Jeremiah Nagle, Esq., or by the said Robert Menzies, we respectfully refer your excellency, and also to His Honor the Chief Justice.

Trusting that the above statement has only to be submitted to your Excellency, to obtain for us that relief, which is denied to us, by what we conceive to be an unsatisfactory state of the Law in New Zealand, a Law calculated to injure not us alone but the public in general.

We subscribe ourselves with the greatest respect,

                Your Excellency’s

                                Earnest supplicants for relief.

Thomas Mahony,

Hyatt Smith,

James Bruce,

Edward Higgins,

Daniel Reordon,

James Pashley,

Robert McDougall,

William McDougall,

John Perry,

William Munro,

James Wemyss,

Bernard Cally,

Thomas Quail,

William Swainson. [should be spelt Swanson-dja]

Pen and Ink Portraits.

No. 6. —Mr. William Swanson, ' M. H.R.          [This link will take you to a website about the suburb of Swanson, named after this man.]

" There is a history in all' men's lives,

  Figuring tbe nature of the time deceas'd;

  The which observed, a man may prophesy,

  With a near aim, of the main chance of things

As yet not come to life."

Mr. William Swanson is a self-made man. He may well exclaim in the words of the ancient sage, "I have been my own friend;" or, in his native Caledonian, "'Be a friend to yoursel' and ithers will."  He owes nothing to advantages of birth and early education, but everything to his own natural pluck energy, and Scotch canniness. He has been his own schoolmaster, and "the architect of his own fortunes.

  "A man that Fortune's buffets and rewards

   Has ta'en with equal thanks."

It was in the busy town of Leith, with its great docks, thriving maritime commerce, and old-fashioned Puritan society, that young Willy first acquired those thrifty and enterprising habits and that natural shrewdness which have been his chief aids through life. The other day, when I applied to him for a few facts connected with his early career, he at once divined my object, and with great earnestness and evident anxiety besought me to abandon it, and to deprive your readers of this sketch of one of their public characters. I respected his modesty, but the duty of the biographer knows no respect for persons. " The world knows little of its greatest men." The historian and the biographer are like those who dive down into unexplored depths and bring up the hidden pearls, albeit mixed with worthless shells ; like the labourer who discovers and utilises the forgotten and neglected treasures of abandoned mines ; or the drill sergeant who follows and measures the steps of the soldier. I urged all this and much more on Mr. Swanson ; I brought all my persuasive powers to bear, but he was immovable ; I have, therefore, had to gather my materials from other sources. Mr. Swanson began his industrial career as a shipwright's apprentice at 5s. a week,

 " Labour like this our want supplies,

  And they must stoop who mean to rise."

The foreman of the shipyard was a man of deep piety, and after the labours of the day he devoted much of his spare time to the religious instruction of the boys. He taught them the Scriptures, to pray and sing hymns. To what extent this early training has influenced the life of the subject of this biography it is not for me to say. My business is not with creeds,

 

 

    William Swanson- Waitakere Libraries Photographic Collection.

 

  "For modes of faith let graceless zealots fight,

   He can't be wrong whose life is in the right."

There is an old hackneyed truism that "boys will be boys," but the apprentices of Leith, albeit Scotch boys, possessed a keen sense of humour.  They had been taught to sing one of the paraphrases commencing, —

  "The hour of my departure's come,

  I hear the voice that calls me home,"

and when the workmen's bell gave the signal to cease from the labours of the day at six o'clock each weekday evening this was the chorus that smote upon the offended ears of that pious foreman. The punishment for that trilling with sacred things was the deprivation of the delinquents of a shilling a week, which they might earn for “old " work.  Perhaps it is owing to this early discouragement of vocal effort that Mr. Swanson has not distinguished himself as a singer. About 1844 he went from Greenock to Cork in the ship " Herald," and thence accompanied a party of emigrants to Sydney, which then held out attractions to energetic and industrious mechanics. He worked at his trade for a short time in Sydney, and saved a little money. From Sydney he came to is New Zealand in [March] 1845, in the schooner " Terror," Captain Dunning, and was engaged by Abercrombie to assist in building a 400-ton vessel at the Great Barrier. The materials for the work fell short, and disagreements arose between Abercrombie and his men, which resulted in an appeal to the law. There was a fossilised specimen of a Dogberry at the Great Barrier, named Nagle, who based his decisions on an ancient log-book, and a venerable edition of "Encyclopaedia Britannica." Of course he decided against the workmen, and sentenced them to three months' imprisonment,  though it was shown they had been released from their engagements. But there was no gaol, and no police nearer than Auckland. Nagle in his own person represented the whole majesty and paraphernalia of the law. The prisoners roamed at will over the island, luxuriated in oysters and Maori kaikai, and beguiled the rosy hours in the intellectual exhilaration of ''all fours." Had they known where Auckland was they would have taken a boat and gone there.  At one time they were short of food and sent a deputation to Nagle. The spokesman said "Surely if you keep us in gaol you must supply us with prison fare." But Nagle remarked that it was part of their punishment that they must provide their own food!  After some time a schooner came, and Nagle formed himself into a posse of police and escorted them on board. It reminds me of the story told of the sheriff, in the old days of Botany Bay. He had one morning to superintend the execution of half-a-dozen criminals. To save time they were all noosed and placed together on one gallows. The Jack Ketch was a novice at the work, and when the signal was given the " drop " stuck fast, whereupon the sheriff remarked in his habitual brisk affable way, " Jump off, my lads, look alive, jump off!" But "revenons a nos moutons." When the men came to Auckland they engaged Merriman and Bartley and appealed to the Supreme Court for a new trial. It was the "causa celebre" of the time.  The Judge overruled the application on the ground that it should have been made within three days! At that time vessels called at the Barrier from Aucldand three times a year. There was no Governor to appeal to nearer than Wellington, and that place could not be communicated with oftener than once in three months. The gaol was where the Theatre Royal now stands. It was a flimsy structure of wood. There had been a scarcity of nails, when it was built, and. the flooring was fastened down with only one nail at each end. .The "prisoners" used to raise a board or two, go out and enjoy themselves about the little village which was the embryo Auckland, and return when they pleased. In those primeval days people took life easily.

  Mr. Swanson's next occupation was to join Charley McCready in repairing boats for Bill Pierce, Bob Kidd, Curly Jack, Isaac Egington, Jerry Waite, and other local celebrities of those times. Swanson and Waite went into partnership, collected oyster shells and made lime for  the Albert Barrack wall, Graham's store, and a number of buildings in Auckland. Afterwards he set up business with Jimmy Johnston as a cabinetmaker, and did a brisk trade. But news came of the gold discoveries of California, and many of Auckland's most adventurous spirits were attracted to the new Eldorado. Swanson was part owner of a 15-ton schooner, a well-built craft and a fast sailer. He and four other kindred spirits resolved to seek the favours of the fickle goddess. They tried to convey their craft on board the ship " Commodore, " but the attempt was unsuccessful, so they dared to launch out on the boundless ocean in their 15 ton schooner, furnished with a scant supply, a tracing of an old chart, and a compass.

  "Well! then, our course is chosen, spread the sail,

   Heave off the lead, and mark the soundings well ;

   Look to the helm, good master — many a shoal

   Marks the stern coast, and rocks where sits the siren,

   Who, like ambition, lures men to their ruin."

The men on board were Ebenezer Jamieson, Sam Paterson, Lieut. Welsh, William Bell, (brother-in-law of Allan O'Neill), the navigator, and our hero. It would occupy too much space to tell of all the dangers they encountered.    Etc etc

Source: The Observer 30^th October, 1880, p52.

 

Descendants of Duncan MENZIES

Generation No. 1

1.  DUNCAn MENZIES  He married JESSIE GILCHRIST. 

 DUNCAN MENZIES: was a Shepherd

Child of DUNCAN MENZIES and JESSIE GILCHRIST is:

                   i.    ROBERT  MENZIES, b. Abt. 1818, Scotland.; d. July 13, 1892, Shortland, Thames, New Zealand..

Notes for ROBERT MENZIES:

Died 13th July 1892, aged 74 years,  at Old Man's Home, at Thames, Coromandel Peninsula, New Zealand.

Died of Senectus

Undertaker Thomas Hammon, Pollen Street, Thames.

Buried 17th July, 1892, Thames.

Death Certificate sent by Suzanne Hamilton, Murrays Bay, North Shore , Auckland 26th June, 2007.

Religion Presbyterian.