Thursday, 20 November 2014

Prendergast: Legal Villain?

Last week we held the launch of Prendergast: Legal Villain? at the Supreme Court in Wellington. Here is an excerpt from author Grant Morris's launch speech.

Grant Morris, Fergus Barrowman and Sir John McGrath

James Prendergast was arguably New Zealand's dominant legal professional during the period 1865 to 1899. He first served 10 years as Attorney-General and then 24 years as Chief Justice. This was a formative period in New Zealand's history during which the settler state was consolidated. Prendergast played a key role in this process. One of my specialty areas is the history of the New Zealand legal profession. In choosing to write a legal biography I was very aware that the few existing biographies in this area were all of ‘progressive’ lawyers and judges, especially in relation to Maori issues.  Prendergast is considered the 'villain' of New Zealand’s legal history. This is primarily due to the Wi Parata decision of 1877, in which Prendergast and William Richmond ruled that the Treaty was ‘a simply nullity’. The Wi Parata decision also undermined the presence of native title in our legal system.    

The biography is a comprehensive treatment of Prendergast’s personal and professional life. It tells of his privileged up-bringing and legal training in London, his adventures in gold-rush Victoria, his rapid rise to power in 1860s Dunedin and Wellington and his long reign at the top of the New Zealand legal profession. Prendergast’s roles as Attorney-General and Chief Justice are analysed in detail. In particular, the book looks at his contribution to New Zealand’s case law and statute law.  It also has a strong focus on his pivotal role during the New Zealand Wars and the invasion of Parihaka. 

The study of Prendergast’s life provides a window into the development of several important locations including London, Victoria, Dunedin and, in particular, Wellington – including this courtroom in which Prendergast presided for most of his judicial career. It also sheds light on other influential figures such as William Richmond, George E Barton, Robert Stout and Governor Arthur Gordon. Personal papers provided me with insights into Prendergast’s family life including the important influence of his father, Michael Prendergast QC and his wife, Mary, and also the tragic lives of his two older brothers.

One of the most exciting events in Prendergast's life was his time on the Victorian goldfields in the mid-1850s. Prendergast was an unfortunate gold-miner, he lasted only a few months on the fields, nearly died of dysentery, and had to be rescued by his older brother. He decided to stay in Victoria and become an administrator, but feuded with his Protestant Irish superiors and after a few years gave up and headed back to London. The trip seemed a complete failure but the lessons he learned formed the basis of his later success in New Zealand. 

I am hopeful that this biography will inspire more of its kind. There are many major figures in our legal history lacking a comprehensive biography, for example, William Martin, Michael Myers, Richard Wild, Joshua Williams, William Richmond, Alfred Hanlon and Frederick Whitaker. In fact, only Prendergast, John Salmond, Ethel Benjamin, the Chapman Family and Robert Stout enjoy full-length, scholarly, biographies. New Zealand’s legal profession has a rich history and it is time to explore this history in more depth.

Prendergast’s current infamy, combined with his long and eventful career, made him a fascinating and challenging choice to study. I also wanted to explore the historiographical debate around looking at history in its own context versus judging history by the standards of the present. My argument is that the former approach is more useful in understanding history.

“I come to bury Caesar, not to praise him. In writing the biography of Prendergast I wanted to avoid creating an ‘apology’. In particular, I wanted to approach the subject with an open mind and let the historical evidence determine my conclusions. That said, I have taught enough jurisprudence to acknowledge the difficulty in making objective judgments, especially in such an area as biography.  I also wanted to challenge some of the revisionist New Zealand history written since the 1970s. This is the historiography that I grew up with and which helped inspire me to become an historian. But I have always been uncomfortable with its tendency to provide superficial treatment of key conservative colonial figures.

Prendergast is the most infamous judge in New Zealand’s history exclusively due to his legal actions relating to Maori. Without the contextual understanding provided in this book, Prendergast becomes a ‘cardboard cut-out’ villain. This is an inadequate approach to history.  In 2004, Giselle Byrnes summarised this approach in relation to Waitangi Tribunal historiography:

"…the European historical characters who appear in these narratives are typecast largely as one-dimensional individuals….this includes the inversion of colonist personas, where they are transformed from heroes to villains; the vague and rather thin descriptions of Crown officials; the negation of difference within the European settler community, and the assumption that all settlers thought and therefore acted in the same manner; the polarisation of Maori and European world views and habits of thought as mutually exclusive; and finally,  the passing of moral judgments and the creation of ‘good’ and ‘bad’ characters."

Both Giselle Byrnes and I previously worked in the Treaty sector and understand the statutory focus of the Waitangi Tribunal but the criticism is nevertheless an important one. In his book on the Wi Parata case, my colleague, David Williams notes that Prendergast’s ‘simple nullity’ statement “will be mentioned many more times yet during the course of future debates. It is too convenient a stick with which to beat the judges of the past for its constant repetition to cease suddenly as a result of the publication of one book.” There are now two books for critics to contend with.

Prendergast's name is only mentioned today in order to condemn him. He is judged by half a quote from a decision he made in partnership with another judge. The biography is not an apology for Prendergast but rather an attempt to place him in the context of his time and explore the other aspects of his career beyond the Wi Parata decision (though the book does have a whole chapter on Wi Parata). By today's standards, Prendergast showed a clear disregard for traditional Maori society.  His actions negatively affected Maori. That does not change the fact that Prendergast was an influential leader of the legal profession and one of New Zealand's founding fathers. He was not one of New Zealand's most brilliant judges, but he was capable and highly respected by his colonial peers, including by three men who have given their names to the streets that surround this building - Stout, Whitmore and Ballance. History, and especially biography, should not be about simply labelling a figure 'good' or 'bad' but rather attempting to understand the complexities of human nature. Hence the question mark in the title of the book. I’m not sure you will necessarily come to like Prendergast after reading it but you will definitely learn more about him.

There is no more apt nor fitting tribute to Prendergast than that of his old associate and rival, Robert Stout. Prendergast and Stout’s careers had intersected and overlapped since those early days in gold-rush Dunedin. On Prendergast’s death, Stout accurately predicted his legacy. At times, Stout had disagreed with the actions and decisions of Prendergast, so the ambiguity of his eulogy is fitting:

"I believe he will not be forgotten by our law students and our future race.  He is enshrined in the history of our judiciary and his name will be recalled as our students study our case law and our legal history."

Thank you so much for coming to this launch tonight. It means a lot to have you all here. This may sound like a typical academic, but I can’t think of a better way in which to spend my 40th birthday.

Prendergast: Legal Villain? is available now from our online bookstore and all good bookstores. 
$40, p/b.

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