October 2015 Māori Law Review

Still wrestling with laws and histories – a comment on Grant Morris, Prendergast: Legal Villain?

Prendergast: Legal Villain?

Grant Morris

Victoria University Press, Wellington, 2014 (260 pages, ISBN: 9780864739377)

Reviewed by Professor Mark Hickford, Pro-Vice Chancellor and Dean of Law, Faculty of Law, Victoria University of Wellington.

Discussion

Grant Morris’ biographical treatment of James Prendergast, mostly noted now for his time as Chief Justice for New Zealand from 1875 until 1899, is best regarded as an opening bid or starting point in getting at a nineteenth century figure in New Zealand’s colonial pasts. Morris’ biography rightly warns against simplifying nineteenth century historical figures as villains or as saints. The actuality is invariably more nuanced. If anything, the effort reveals not only the benefits of biography but also its limits at least as a means for accessing or excavating the sheer complexities and densities of historical context. The current warden of St Antony’s College at the University of Oxford, Margaret MacMillan, has recently cautioned in a history for general readers that ‘History and its people offer only a more modest insight and some modest encouragement: that we are all creatures to a certain extent of our own times, but that we can transcend or challenge what limits us’.[1] I would communicate even much more in the way of humility and caution: ‘the “historical” past’ is a ‘complicated world, without unity of feeling or clear outline: in it events have no over-all pattern or purpose, lead nowhere, point to no favoured condition of the world and support no practical conclusions’; ‘[i]t is a world composed wholly of contingencies’.[2]

Certainly, as I have observed much more fully elsewhere,[3] Grant Morris’ Prendergast: Legal Villain? is a very welcome addition to what is still a stubbornly thin corpus of legal historical works relating to colonial New Zealand, despite encouraging signs of productivity in the arena of law and history specifically concerning diverse aspects of Crown-iwi-hapū interactions. In reviewing Morris’ book Sir Geoffrey Palmer has justifiably remarked that the legal historical corpus is ‘dangerously thin’.[4] Notwithstanding the fairness of that observation, illustrations of a surging legal historical focus relative to New Zealand[5] include the works of Richard Boast, particularly his recent forays into recovering Native Land Court jurisprudence,[6] Damen Ward,[7] this reviewer,[8] and the later outputs of Paul McHugh.[9] These authors have been referred to as an emerging ‘New Zealand school’ in legal history.[10] Each pays attention to individuals, their often messy worlds and the intellectual foment with which they contended and in which they dwelt. Of those authors, two have been specifically trained in British imperial histories but have been fully engaged in legal or public policy practice since, whether as part of the public service or in the private sector, whereas the others have primarily trodden a path through their legal academic writings, whether at Victoria University of Wellington (Boast) or at the University of Cambridge (McHugh). Boast has participated in Waitangi Tribunal proceedings as a practitioner and an expert witness. Although both McHugh and Boast’s researches go back some decades, there is an undoubted recent surge in concentrated effort in recovering or excavating discomforting pasts, accounts that do not simply express casual comfort with a Mainichean binary of light and dark characterisation. What these efforts share is an appreciation of the rich archival background on offer (together with the willingness and appetite to sift through it) and a sensitivity to the methodologies shepherded by J.G.A. Pocock and Quentin Skinner. Nonetheless, the so-called ‘New Zealand school’ (if I may use that term) is more focused on practice than histories of jurisprudential, let alone political, thought.[11] Constitutional histories are few and far between.[12] Legal commentaries on constitutional development, let alone those in political science, are remarkably inadequate, shading into caricature or undue simplicity.[13]

The purpose of this comment is to reflect on Morris’ engagement with law and history or perhaps we should say ‘laws’ histories’,[14] noting that Morris has been explicit in his focus on a biographical treatment of James Prendergast, regarded as notorious for a single dictum in Wi Parata v Bishop of Wellington (1877) attributable to the judgment of both Prendergast and Christopher William Richmond (Morris at 199). Morris contends ‘Although it was perhaps legally dubious, the decision was a reflection of political thought and settler desires’ (Morris at 171). I am not sure that takes us very far at all in terms of explanatory power without much more analysis and elaboration, which is not really supplied throughout the book. The same sort of comment applies to the account of Prendergast as Attorney-General and in connection with Parihaka in 1881. After all, Morris’ stance is more biographical and, quite explicitly, does not tend to get into the heart of jurisprudential or intellectual thought (Morris at 59-60, 169-170). We have broad Belichesque references to ‘Better Britain’ (at 158) and ‘legal positivism’ (after Frederika Hackshaw, at 19) but little analysis beyond that.[15]

The chapters on his early years in Britain and Australia are of interest. We have the fullest treatment to date on Prendergast the person in his roles as a legal practitioner, as Attorney-General, Chief Justice and ‘acting Governor’. The contretemps with George E. Barton is well handled in chapter 7. Morris extracts colour from that episode as well as the affair concerning Worley Bassett Edwards. As Morris says, it is regrettable that Prendergast’s professional career has been condensed to a single dictum in a particular judgment dating from 1877, namely the statement to the effect that, ‘[s]o far indeed as that instrument [the Treaty of Waitangi in 1840] purported to cede sovereignty – a matter with which we are not here directly concerned – it must be regarded as a simple nullity’.[16] This reviewer has commented on the reception of Wi Parata in other places, as has David Williams.[17]

Morris’ effort seeks to evade the snare of a mono-dimensional caricature in dealing with Prendergast. He aims to rescue his biographical subject from being typecast as a ‘legal villain’ but without doing so in a way that apologises or exculpates Prendergast for any failures or errors of judgement – to make errors is the lot of the frail creatures we humans are. We also have David Williams’ sometimes provocative discussion of the Wi Parata litigation and how to situate it doctrinally and the two books ought to be read together. It is fair to say that Williams is much more assured than Morris in dealing with the procedural limits operating on Prendergast and Richmond in Wi Parata when addressing how to impeach a Crown grant (to illustrate, an appreciation of the relevant nineteenth century case law concerning writs of scire facias[18] is a vital component). It is also the case that Morris is in error to ascribe the marginalia on the Crown Law Office copy of the report of Wi Parata to Richmond’s hand (Morris at 155). Williams is clear that it was Richmond's handwriting (notated with 'CWR' for Christopher William Richmond) in the Wellington High Court library copy. I located a copy of the report in the Crown Law Office library and forwarded this to Williams in the first instance for his interest as he was preparing his book manuscript. It contained some marginalia directing readers to an annotated version to be found in the Supreme Court (now the High Court).[19]

Biography, unless skilfully pursued in relation to politically and professionally active figures, can omit critical colour from the relationships and intellectual life of an individual. Examples of well executed historical biographies of scholarly weight include John Bew’s work Castlereagh: A Life, H.C.G. Matthew and Richard Shannon’s volumes on William Ewart Gladstone.[20] Based on his James Ford lectures at the University of Oxford, we also have Roy Foster’s adroit weaving of personal relations with assorted intellectual-political orientations in relation to the interpersonal, intellectual and insurrectionary activities of a generational cohort in Ireland until 1923.[21] It is not evident to this reviewer that Morris matches this sort of work. To do so would require extensive interaction not only with the ‘Justice Department’ series records in Archives New Zealand or the printed primary sources in the Appendices to the Journal of the House of Representatives (as per the endnotes) but also the range of relevant official manuscript records, including those in the Department of Internal Affairs series or in the legislation (‘LE’) file series. If this was to be done, we could at least get a sense of how others might have interacted dialogically or otherwise with Prendergast’s opinion work as first Law Officer, for instance. Likewise, the Colonial Office records in Britain could have been mined (given a number of Prendergast’s opinions were forwarded to the relevant secretary of state), as they often supply fascinating insights into how inter-professional rivalries or disagreements in colonial settings might have been regarded or analysed. It appears from the endnotes that the Department of Internal Affairs’ archives were not extensively consulted. There is an extensive collection of Tauranga confiscation records including the correspondence of Chief Judge Fenton and Prendergast’s viewpoint as Attorney-General on the status of the Native Land Court in Tauranga, for example.[22] There are, of course, certain constraints, which signify that Prendergast might not have been the easiest biographical subject. For one thing, his personal papers, although useful for analysis as to his relations with familial ties, do not (it seems) convey as much richness regarding his jurisprudential thought or legal professional activities on a consistent basis. In this fashion, his papers are less rewarding than those of Henry Samuel Chapman, appointed as a puisne judge for the southern district of colonial New Zealand in 1843.

Morris has done a service then in producing a publication out of his doctoral thesis at the University of Waikato in 2001. Nevertheless, more work needs to be undertaken to excavate the intellectual histories of New Zealand colonial legal and political thought.

Notes

[1]               Margaret MacMillan, History’s People: Personalities and the Past (Text Publishing, Melbourne, 2015) at 347-348.

[2]               Mark Hickford, ‘Looking Back in Anxiety: Reflecting on Colonial New Zealand’s Historical-Political Constitution and Laws’ Histories in the Mid-Nineteenth Century’ (2014) 48 New Zealand Journal of History 1 at 1-2, citing Michael Oakeshott, Rationalism in Politics and Other Essays (Liberty Fund, Indianapolis, 1991) at 182.

[3]               Refer to Mark Hickford, review, Prendergast: Legal Villain? Grant Morris (Victoria University Press, Wellington, 2014) (2015) 26 NZULR (forthcoming).

[4]               Geoffrey Palmer, review, https://www.lawsociety.org.nz/lawtalk/lawtalk-archives/lawtalk-856/prendergast-legal-villain, last accessed 28 September 2015.

[5]               Older works in colonial history – for instance, A.H. McLintock, Crown Colony Government in New Zealand, (R.E. Owen, Wellington, 1958) or NA Foden The Constitutional Development of New Zealand in the First Decade (L.T. Watkins, Wellington, 1938) (who admittedly only took the discussion to 1849); and J Hight and HD Bamford The Constitutional History and Law of New Zealand (Whitcombe and Tombs, Christchurch, 1914) – are still resorted to, testifying to the comparative dearth of quality products or a lack of awareness of publications produced on New Zealand legal histories throughout the past decade, often primarily in publishing markets in the United Kingdom and North America.

[6]               Richard Boast, The Native Land Court: A Historical Study, Cases and Commentary 1862-1887 (Brookers, Wellington, 2013); Richard Boast, The Native Land Court Volume 2, 1888-1909 (Brookers, Wellington, 2015).

[7]               Damen Ward, ‘Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court, c1840–60’ (2006) 34 Journal of Imperial and Commonwealth History 483; Damen Ward, ‘Territory, Jurisdiction, and Colonial Governance: “A Bill to Repeal the British Constitution”, 1856–60’, (2012) 33 Journal of Legal History (JLH) 313; Damen Ward, ‘Imperial Policy, Colonial Government and Indigenous Testimony in South Australia and New Zealand in the 1840s’, in Shaunnagh Dorsett and Ian Hunter (eds), Law and Politics in British Colonial Thought: Transpositions of Empire (Palgrave, New York, 2010), 229–247.

[8]               Mark Hickford, ‘Framing and Reframing the Agōn: Contesting Narratives and Counter-Narratives on Māori Property Rights and Political Constitutionalism, 1840–1861’, in Saliha Belmessous (ed), Native Claims: Indigenous Law against Empire, 1500–1920 (Oxford University Press, New York, 2011), 152–181; Mark Hickford, Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire (Oxford University Press, Oxford, 2011); Mark Hickford, ‘Law and Politics in the Constitutional Delineation of Indigenous Property Rights in 1840s New Zealand’, in Shaunnagh Dorsett and Ian Hunter (eds), Law and Politics in British Colonial Thought: Transpositions of Empire (Palgrave, New York, 2010), 249–268; Mark Hickford, ‘“Vague Native Rights to Land”: British Imperial Policy on Native Title and Custom in New Zealand, 1837–1853’ (2010) 38 Journal of Imperial and Commonwealth History 175; Mark Hickford, ‘Strands from the Afterlife of Confiscation: Property rights, constitutional histories and the political incorporation of Māori, 1920s’, in Richard Hill and Richard Boast (eds), Raupatu: The Confiscation of Māori Land (Victoria University Press, Wellington, 2009), 169–204.

[9]               P.G. McHugh, Aboriginal Societies and the Common Law (Oxford University Press, Oxford, 2004).

[10]             Ian Hunter, ‘Natural Law, Historiography, and Aboriginal Sovereignty’ (2007) 11 Legal History 137 at 139; also P.G. McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford University Press, Oxford, 2011) at 238.

[11]             Having said that, one should observe that Samuel Carpenter notes how Hickford, Lords of the Land, is, methodologically at least, an exercise in intellectual history and analyses of political as well as juristic thought in practice (Samuel Carpenter, review of Mark Hickford, Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire, (2013) 47 New Zealand Journal of History 83, 84).

[12]             See Damen Ward, ‘Territory, Jurisdiction, and Colonial Governance’ and Hickford, Lords of the Land.

[13]             See the comments in Mark Hickford, ‘The Historical, Political Constitution — Some Reflections on Political Constitutionalism in New Zealand’s History and its Possible Normative Value’ [2013] New Zealand Law Review 585 at 586-587, 593-594, 597-598, 621-622; Mark Hickford, ‘Considering the Historical-Political Constitution and the Imperial Inheritance in Mid-Nineteenth Century New Zealand: Balance, Diversity and Alternative Constitutions’, (2014) 12 New Zealand Journal of Public and International Law (NZJPIL) 145 at 148 (and note 16); Mark Hickford, ‘Looking Back in Anxiety: Reflecting on Colonial New Zealand’s Historical-Political Constitution and Laws’ Histories in the Mid-Nineteenth Century’ (2014) 48 New Zealand Journal of History 1 at 3-4.

[14]             For a general discussion, refer to Hickford, ‘Looking Back in Anxiety: Reflecting on Colonial New Zealand’s Historical-Political Constitution and Laws’ Histories in the Mid-Nineteenth Century’ (2014) 48 New Zealand Journal of History 1.

[15]             As I point out more fully in Mark Hickford, review, Prendergast: Legal Villain? Grant Morris (Victoria University Press, Wellington, 2014) (2015) 26 NZULR (forthcoming).

[16]             Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC) at 78 (emphasis added).

[17]             Mark Hickford, ‘John Salmond and Native Title in New Zealand: Developing a Crown Theory on the Treaty of Waitangi, 1910-1920’ (2008) 38 VUWLR 853 at 874-882, for instance. David Williams, A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland University Press, Auckland, 2011).

[18]             The writ of scire facias was a judicial writ founded on some record that required the person against whom the writ was brought to show why the party bringing the writ should not have the advantage of the record in judgment. On the operation of writs of scire facias, refer to Mark Hickford ‘“Settling Some Very Important Principles of Colonial Law”: Three “Forgotten” Cases of the 1840s’ (2004) 35 VUWLR 1 at 18 (and note 79).

[19]             David Williams, A Simple Nullity? The Wi Parata Case in New Zealand Law and History (Auckland University Press, Auckland, 2011) at 149.

[20]             John Bew, Castlereagh (Quercus, London, 2011); H.C.G. Matthew, Gladstone (Oxford University Press, Oxford, 1999); Richard Shannon, Gladstone: God and Politics (Continuum, London, 2007); Richard Shannon, Gladstone: Peel’s Inheritor 1809-1865 (Penguin, London, 1982); Richard Shannon, Gladstone: Heroic Minister 1865-1898 (Allen Lane, London, 1999).

[21]             R.F. Foster, Vivid Faces: the Revolutionary Generation in Ireland 1890-1923 (Allen Lane, London, 2014)

[22]             See Rolleston to Fenton, 22 February 1866, NLC66/297, Archives New Zealand, and enclosures.

Author: Mark Hickford

Professor Mark Hickford joined the Faculty of Law at Victoria University of Wellington in mid-May 2015 as Pro-Vice Chancellor and Dean of Law. Mark has held a range of senior management and leadership roles in the public and private sectors, including being in the Prime Minister’s Policy Advisory Group in the Department of the Prime Minister and Cabinet since 2010 (based in the Executive Wing of Parliament Buildings). Prior to that, he spent eight years as a Crown Counsel at the Crown Law Office, specialising in public law, the Treaty of Waitangi, Crown-Māori relations and natural resources law. He has been a senior consultant on part-time secondment to the Law Commission from the Crown Law Office (during which time he worked on the privacy law reform project and assisted the Legislation Design Committee) and was Chief Legal Advisor at the Ministry of Primary Industries on secondment from the Department of the Prime Minister and Cabinet from August 2013 until April 2014.