Something New

We feature each week Nicholas Reid's reviews and comments on new and recent books.

“PRENDERGAST: LEGAL VILLAIN?” by Grant Morris (Victoria University Press, $40)

When this blog was young, in July 2011, I wrote a very brief and inadequate notice of David V. Williams’s A Simple Nullity? – The Wi Parata Case in New Zealand law and history [look it up on the index at right]. Williams was concerned to give an exact account of the legal case in 1877 in which James Prendergast, New Zealand’s third Chief Justice, was said to have pronounced the Treaty of Waitangi “a simple nullity” – that is, something having no standing in New Zealand law. Since the establishment of the Waitangi Tribunal in the 1980s, and the new esteem in which the Treaty of Waitangi is now held, it has been the fashion to see Prendergast in a negative light, as an insensitive Pakeha official who did not respect Maori land claims. At least part of David Williams’s intent was to test how valid Prendergast’s words were at the time he was said to have spoken them. He also suggested that Prendergast did not really deserve the obloquy with which he had been loaded because, in Williams’ account, the words which now offend were probably written by his fellow judge William Richmond.

I am aware of how contested Prendergast’s reputation is. Recently I had the pleasure of reading [for review in Landfall] the essays of M.P.K.Sorrenson, gathered together under the title Ko Te Whenua Te Utu (Land is the Price). Models of clear expository academic prose, Sorrenson’s essays reflect on questions of Maori history, land and politics. Clearly Sorrenson has a low opinion of Prendergast. In his essay “Towards a Radical Interpretation of New Zealand History”, he suggests that Prendergast made his “simple nullity” call out of ignorance because he misread the Treaty of Waitangi in terms of international law rather than in terms of colonial law. (It’s a complicated argument – read Sorrenson to get the full flavour of it.)

Now, to modify such views, there comes a second book about Prendergast with a question mark in its title. Grant Morris’s Prendergast: Legal Villain? is, from its title on, an exercise in reconsidering a battered reputation. Unlike Williams’s A Simple Nullity? it does not focus on one case at law, but awards Prendergast a full biography. A modification of Grant Morris’s doctoral thesis, Prendergast: Legal Villain? takes Prendergast from his English childhood to his death in New Zealand, at the age of 94, in 1921. More than anything, Morris, a lecturer in law at Vic, wishes to contextualise Prendergast – to show how his values and judgments sprang from his environment and intellectual formation, and were in no sense unusual for that environment.

Born in 1826, James Prendergast was part of the English intellectual elite. His father (who had risen from a humble background) was a QC. Young James went to Cambridge, excelled at Mathematics and Classics and did a year of school teaching in Somerset before deciding to join his father in the legal profession. (It is interesting to be reminded by Morris that one went to the Inns of Court to study to be a barrister without needing a law degree.) He married Mary Jane Hall in 1852, but she plays very little part in this biography, and though the couple were happily married until Mary’s death in 1899, they had no children. At the very least, this was unusual for a Victorian couple. (Husband and wife did, however, look after the children of James’ less successful brothers, who were damaged by alcoholism and who both ended up in psychiatric institutions).

James Prendergast tried his luck in the goldfields of Victoria (Australia) in the 1850s, but met no success and ended up clerking, before going back, disillusioned, to Britain to be called to the bar. All the time he was greatly influenced by his eminent father, who had become a judge and before whom he sometimes appeared when he was a “special pleader”. But the English legal profession was notoriously overcrowded, so James Prendergast and his wife set off for New Zealand in 1862.

Here, then, we have a man nurtured and trained in a strictly English view of the law. Grant Morris is judicious in noting the very English nature of the legal system that was being set up in New Zealand when Prendergast arrived:

“A variety of aspects of the English legal system were brought to New Zealand by settlers, including the structure of the legal system, the English constitutional framework, substantive law, English legal procedure, dress, formalities, training methods and prejudices. Also transported to the colony was an intense focus on property rights and land ownership… Practising law on the other side of the world from 1862 onwards weakened the influence slightly, but in the statutes and legal decision created by James Prendergast from 1865 to 1899, the English influence is clearly evident. To a large extent, men such as Prendergast who constructed the New Zealand colonial legal system sought to recreate the environment they left behind in the ‘mother country’. ” (pp.15-16)

Reinforcing this worldview was the tight (and small) nature of the legal profession in New Zealand at that time. Prendergast practised as a barrister in Dunedin from 1862 to 1867. In 1865 he prosecuted murderer William Jarvey, the first man to be hanged in Otago. It is extraordinary how small the country’s legal elite was at that time. In Dunedin, Prendergast worked with Julius Vogel; and at one stage the future politician William Downie Stewart was his articled clerk. Morris says: “The Dunedin Bar, with some exceptions, saw themselves as a homogenous club which both worked and played closely together.” (p.38) Efficient in his chosen career, Prendergast was appointed Crown Solicitor in Otago. Grant Morris says that Prendergast’s experience as a successful barrister in gold rush Otago equipped him well for his legal career but “it did not prepare him for the Maori-Pakeha conflict in the North Island” (p.43). This is significant in the light of the judgment for which he is best known.

Prendergast was Attorney-General from 1865 to 1875 and oversaw the drafting of much legislation. His “legal opinions demonstrate his breadth of knowledge and his reliance on English law and traditions” but  “his hard-line approach to Maori affairs is clearly demonstrated during this era.” (p.44) In his first two years as Attorney-General, he sat in the old upper house of parliament, the Legislative Council. There, surprisingly, he argued in favour of Maori representation in parliament, seeing Maori as British subjects. He also supported the abolition of the provinces. However, he did help to pass a bill indemnifying British soldiers against any legal action that might arise from their suppressing (Maori) “rebels” in the 1860s wars – in other words, suspending the common law when it came to suits for damages.

Grant Morris argues that Prendergast’s codification of New Zealand’s criminal law was his chief contribution to the law. But all the time, his racial views and his “actions, language and legal judgments clearly support the assertion that he believed Maori to be greatly inferior to Europeans.” (p.59) He would not recognise the legitimacy of Maori customary law relating to marriage; and he once ruled that Maori witnesses were not be given the same degree of credibility as Pakeha witnesses. He did quash the findings of hasty courts-martial that had ruled against those who were said to have participated in the murder of the missionary Volkner. Prendergast said that the rule of law had to be asserted. But Prendergast himself supported the vigorous prosecution of others who had been part of the murder, including Kereopa, who was hanged years after the event. Hence, says Morris, Prendergast is depicted as “a two-dimensional villain” (p.61) in Peter Wells’ Journey to a Hanging and in Maurice Shadbolt’s novel Season of the Jew. [Look up my take on Journey to a Hanging via the index at right]. Morris does note that Prendergast was certainly implicated in very harsh measures against Maori at the time of the guerrilla campaigns of Titokowaru and Te Kooti.  Showing his firm opposition to the perceived foes of the British Empire, Prendergast was also one of those who, in 1868, prosecuted the “Fenian” West Coast Irish who were accused of sedition and riot, although sentences they received were lenient.

Inevitably the longest chapter in this biography concerns Prendergast’s years as Chief Justice (1875-1899). Morris notes that there were only four Chief Justices of New Zealand between 1841 and 1926, and of these Prendergast was certainly the most conservative. We are aware that the author is a lecturer in law when he tells us how Prendergast’s judgments stood up in comparison with those of other Chief Justices. Of Prendergast’s judgments which went to Appeal, one in three was overturned – but then this was the same average as for Prendergast’s “liberal” successor as Chief Justice, Robert Stout; so there is no suggestion that Prendergast’s judgments were notably defective. Contemporaries gave Prendergast “praise for his reliability, diligence and leadership, and criticism for his lack of brilliance and bluntness of approach.” (p.96) Of course Prendergast was a hanging judge (as all nineteenth century judges trying murder cases were). He gave no reprieve for Minnie Dean, the only woman in New Zealand history to be hanged. Prendergast relied very heavily on English precedents in making decisions. But he was an “establishment” figure. His ignorance of Maori custom was profound. Morris lists Prendergast’s weaknesses as the vagueness of many of his decisions and his tendency to interpret legislation literally and conservatively.

Says Morris:

“While Prendergast was by all accounts an impartial judge, it must be noted that many of his decisions were in favour of established and powerful institutions such as the Crown, local government and high-ranking professionals. Fairly or unfairly he was not known as a judge for the underdog.” (p.113)

In 1881, in an appeal case, he quashed Thomas Hall’s conviction for murder. Gossip surmised that this was because Thomas Hall was the nephew of the sometime premier Sir John Hall.

Showing how much personalities in the legal profession influenced judgments, Chapter 7 deals with the “Barton Affair” of 1876-78. George E. Barton was a fiery advocate whom Prendergast had known in his days in the goldfields of Victoria. Barton accused judges of partiality in a commercial case he was defending. Later, a client of Barton’s was acquitted by another judge; but Prendergast and the senior bench found against this same client when he had gone about asserting his rights. Again the matter came to court. This time Barton had an open courtroom confrontation with Chief Justice Prendergast, who not only fined Barton for contempt of court, but had him imprisoned. The case became a cause celebre, especially as it had political overtones. Barton was elected member for Wellington while in prison, and Barton supported the “liberal” policies of George Grey as opposed to the “conservative” ones of Harry Atkinson, which Prendergast supported. The case split the legal profession, especially in Wellington. In further legal confrontations involving Prendergast, it basically ruined Barton’s career. Morris says “Few other cases in New Zealand legal history so vividly reveal the tension between bench and bar.” (p.151) He judges that Barton really was guilty of gross contempt of court; but he also says that we have to take this background (of a feud splitting the legal profession) into account when considering the case “Wi Parata v Bishop of Wellington”, about which Prendergast’s current reputation revolves. For in this case, it was Barton represented Wi Parata.

It is, at last, to this case that Morris turns in Chapter 8, which is inevitably called “The Treaty is a Simple Nullity”. Wiremu Parata, a Maori MP and Ngati Toa chief, took the Anglican Bishop of Wellington (Octavius Hadfield) to court. Some Nagati Toa land, which had been held under native title, had been given to the previous bishop (Selwyn) in 1850, under a Crown grant, for educational purposes. But no school had been established on the land, nor any other services beneficial to the Ngati Toa people as had been promised. Wiremu Parata was fully aware that this would be a test case for other trust properties that had not been used as intended. Says Morris “The case demonstrated that the issue of land ownership had the potential to unravel the delicate fabric of Pakeha society.” (p.155).

David Williams’ book A Simple Nullity? made it clear that TWO judges made the final decision in this case, Prendergast and William Richmond, who had been a hard-line Minister of Native Affairs. However, Morris challenges Williams’ view that the judgment reflects Richmond’s views on Maori land ownership more than Prendergast’s, as the views of the two judges were basically the same. The eventual detailed decision was written by both Richmond and Prendergast. The gist was that Crown title overrode any customary Maori title. Of the two judges, Morris says:

“They used the Wi Parata decision as an effective vehicle for enshrining Eurocentric, imperialist views into law. To justify the opinion that New Zealand was acquired by occupation and discovery, Prendergast and Richmond had somehow to dispose of the Treaty [of Waitangi]… In the court’s view, New Zealand was peopled only by ‘primitive barbarians’ and ‘savages’ who had no sovereignty to cede, nor any existing body of customary law that could be legally recognised. The primitive race was to be quickly subdued as New Zealand was transformed into a ‘Better Britain’.” (p.158)

In reviewing this decision, Grant Morris does not pass judgment on whether, in formulating their judgment, the two judges were acting sincerely or were merely cobbling together only those precedents that buttressed their pre-existing views. However, Morris does note that their comment about the treaty being “a simple nullity” referred only to how the treaty related to the disposition of land. The judges were not contesting all the articles of the treaty.

Much of this chapter is a sort of interrogation of, or dialogue with, David V.Williams’ book. Perhaps to the annoyance of those who now enthrone the Treaty of Waitangi as an unassailable document, Morris remarks:

 “Williams and I have noted that in many ways the Treaty of Waitangi was, and still is, a nullity. This is primarily due to the fact that it cannot be enforced in courts until specifically incorporated into domestic legislation.” (pp.161-162).

Furthermore:

“If one agrees with modern ‘orthodox’ thought that the Treaty was one of cession, then Prendergast’s view that it was a ‘simple nullity’ is not correct, but in terms of its legal power, the Treaty remains limited. The Treaty does not, in the positivistic sense, have intrinsic legality. The legal recognition of the principles of the Treaty is a far different matter from the legal recognition of the Treaty itself.”(p.163)

            Morris remarks that, despite its subsequent vilification, the decision of Richmond and Prendergast, although at first queried by the Privy Council in London, was used as precedent in cases for the best part of one hundred years, before the new orthodoxy regarding the Treaty of Waitangi arose. As he says, Prendergast was nearer to the norm of Pakeha thought from the late nineteenth to the mid-twentieth centuries than more pro-Maori judicial voices (such as Chief Justice Martin) were. In a sense, then, it is ahistorical to castigate Prendergast for making such a judgment.

Because they deal with those matters that have most kept Prendergast’s name alive, the chapters on the Barton case and the Wi Parata decision are probably the chapters that will most often be consulted by future researchers who read this book. The last two chapters are on how Prendergast, being Chief Justice, also had an official role as “acting governor” in the absences of governors; and on his retirement. Prendergast was seven times “Administrator of the Colony of New Zealand”, usually between the departure of one governor and the arrival of the next. However, there was one very controversial matter concerning Prendergast’s conduct in this role. This was his involvement in the invasion of Parihaka in 1881. It seems he rushed through a proclamation threatening Te Whiti with invasion in order to support wishes of the government ministers John Bryce and John Hall; and in the convenient absence of the governor, who would have disapproved of this action. To me, this seems a far more questionable act on Prendergast’s part than the “simple nullity” statement. In this case, Morris agrees that Prendergast has to bear responsibility for his part in these actions – but once again he notes that they echoed common (Pakeha) views at the time.

I do not believe that this book will change current received opinion on Prendergast. In many respects it simply reinforces the view that Prendergast refused to acknowledge any Maori perspective on the law or land ownership, and that he was indeed a reactionary Anglocentric figure whose views have now been superseded. What it does do, however, is to contextualise Prendergast. It shows that the views he upheld were really the Pakeha norm of his age, and were deeply embedded in both his formation and in the profession of which he was a leader. The implicit message is that it is pointless to rebuke him for holding such views, or for not holding views which did not become the norm until long after his time.

There are parts of Prendergast: Legal Villain? which do indeed read like a modified thesis, as when we encounter such deadly phrases as  “this section has dealt with….” Or when (pp.81-84) Morris comes close to simply “listing” the legislation which Prendergast oversaw as Attorney-General. Let me not whinge, however. This is a clearly written and well-documented insight into a defunct mentality, allowing us to see in the round a man who is more often caricatured.