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James Prendergast (judge)
Encyclopedia
Sir James Prendergast GCMG
(10 December 1826 – 27 February 1921) was the third Chief Justice of New Zealand
. Prendergast was the first Chief Justice to be appointed on the advice of a responsible New Zealand government, but is chiefly noted for his far-reaching decision in Wi Parata v The Bishop of Wellington
in which he described the Treaty of Waitangi
as "a simple nullity".
and his wife, Caroline Dawe.
He was educated at St Paul's School, London. He entered Caius College, Cambridge in 1845, but soon migrated to Queens' College
, graduating BA in 1849. In 1849, he married Mary Jane Hall at Cambridge. They had no children. He enrolled at the Middle Temple
in London in 1849, but spent some of the following year teaching at Routledge's School, Bishop's Hull, Somersetshire.
In 1852, he joined the rush to the Eureka diggings in Victoria, Australia. He had some luck as a goldminer but contracted dysentery and moved back to town where he became a magistrate's clerk, first at Elephant Bridge, then Carisbrook and, in 1854, Maryborough. In 1856, another Londoner, the young Julius Vogel
, set up shop next to Prendergast's office on the Dunolly field, near Maryborough. Vogel and Prendergast began what was to be a long and mutually beneficial association.
Prendergast decided to emigrate to New Zealand and with his wife arrived in Dunedin
on 20 November 1862. He was admitted to the Bar in Otago
that year. His arrival in Dunedin coincided with the Otago goldrush
. Thirty-three lawyers were enrolled in Dunedin in 1862, and twenty more over the next three years. Prendergast's first client was Julius Vogel, then editor of the Otago Daily Times
.
In Dunedin, Prendergast prospered – he became a senior partner in the firm of Prendergast, Kenyon and Maddock. In 1863, he was appointed acting solicitor for the Otago Province
, and in 1865 became Crown Solicitor in Otago.
's government. In 1867 he resigned from the Legislative Council, his role as Crown solicitor in Otago and his law practice and moved north to Wellington
.
As Attorney-General Prendergast's task was to consolidate the criminal law. In the process he drafted 94 Acts. He also helped to create order in the legal profession – in 1870, the New Zealand Law Society
was formed with Prendergast as its first president.
on 1 April 1875 on the advice of Sir Julius Vogel
s government. As such, he was the first New Zealand appointed Chief Justice.
in 1877, a case involving Maori land in Porirua
that was given to the Anglican Church for the purpose of building a school. The school was never built and Parata asked the land given to the Church be returned to the Ngati Toa
iwi.
In his judgement, Prendergast took the view that "native" or "aboriginal" customary title, not pursuant to a Crown grant, could not be recognised or enforced by the courts, because the Treaty of Waitangi
was a "simple nullity". He called Maori "primitive barbarians", and said they were "incapable of performing the duties, and therefore of assuming the rights, of a civilised community". Prendergast's reasoning was both overturned and enhanced 1938 when Te Heuheu Tukino v Aotea District Maori Land Board was decided, where the Court ruled that the Treaty was seen as valid in terms of the transfer of sovereignty, but as it was not part of New Zealand statute law it was not binding on the Crown.
. One controversial occasion was in 1881, when the Governor of New Zealand
Sir Arthur Gordon
was on a visit to Fiji
, he sanctioned the invasion of the Maori pacifist Te Whiti o Rongomai
's village at Parihaka
—something the Governor had indicated he was opposed to.
, the Wellington Trust, Loan and Investment Company Limited, and the Colonial Mutual Life Assurance Society Limited. He was genuinely interested in farming matters and became the first president of the Manawatu and West Coast Agricultural and Pastoral Association. Prendergast died in Wellington on 27 February 1921.
Order of St Michael and St George
The Most Distinguished Order of Saint Michael and Saint George is an order of chivalry founded on 28 April 1818 by George, Prince Regent, later George IV of the United Kingdom, while he was acting as Prince Regent for his father, George III....
(10 December 1826 – 27 February 1921) was the third Chief Justice of New Zealand
Chief Justice of New Zealand
The Chief Justice of New Zealand is the head of the New Zealand judiciary, and presides over the Supreme Court of New Zealand. Before the establishment of the latter court in 2004 the Chief Justice was the presiding judge in the High Court of New Zealand and was also ex officio a member of the...
. Prendergast was the first Chief Justice to be appointed on the advice of a responsible New Zealand government, but is chiefly noted for his far-reaching decision in Wi Parata v The Bishop of Wellington
Wi Parata v the Bishop of Wellington
Wi Parata v the Bishop of Wellington was a New Zealand court case of 1877 which ruled that the Treaty of Waitangi was a "simple nullity" having been signed by "primitive barbarians"....
in which he described the Treaty of Waitangi
Treaty of Waitangi
The Treaty of Waitangi is a treaty first signed on 6 February 1840 by representatives of the British Crown and various Māori chiefs from the North Island of New Zealand....
as "a simple nullity".
Early life
Prendergast was born in London, United Kingdom, on 10 December 1826. He was the youngest son of Michael Prendergast QCQueen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
and his wife, Caroline Dawe.
He was educated at St Paul's School, London. He entered Caius College, Cambridge in 1845, but soon migrated to Queens' College
Queens' College, Cambridge
Queens' College is a constituent college of the University of Cambridge, England.The college was founded in 1448 by Margaret of Anjou , and refounded in 1465 by Elizabeth Woodville...
, graduating BA in 1849. In 1849, he married Mary Jane Hall at Cambridge. They had no children. He enrolled at the Middle Temple
Middle Temple
The Honourable Society of the Middle Temple, commonly known as Middle Temple, is one of the four Inns of Court exclusively entitled to call their members to the English Bar as barristers; the others being the Inner Temple, Gray's Inn and Lincoln's Inn...
in London in 1849, but spent some of the following year teaching at Routledge's School, Bishop's Hull, Somersetshire.
In 1852, he joined the rush to the Eureka diggings in Victoria, Australia. He had some luck as a goldminer but contracted dysentery and moved back to town where he became a magistrate's clerk, first at Elephant Bridge, then Carisbrook and, in 1854, Maryborough. In 1856, another Londoner, the young Julius Vogel
Julius Vogel
Sir Julius Vogel, KCMG was the eighth Premier of New Zealand. His administration is best remembered for the issuing of bonds to fund railway construction and other public works...
, set up shop next to Prendergast's office on the Dunolly field, near Maryborough. Vogel and Prendergast began what was to be a long and mutually beneficial association.
Prendergast decided to emigrate to New Zealand and with his wife arrived in Dunedin
Dunedin
Dunedin is the second-largest city in the South Island of New Zealand, and the principal city of the Otago Region. It is considered to be one of the four main urban centres of New Zealand for historic, cultural, and geographic reasons. Dunedin was the largest city by territorial land area until...
on 20 November 1862. He was admitted to the Bar in Otago
Otago
Otago is a region of New Zealand in the south of the South Island. The region covers an area of approximately making it the country's second largest region. The population of Otago is...
that year. His arrival in Dunedin coincided with the Otago goldrush
Central Otago Gold Rush
The Central Otago Gold Rush was a gold rush that occurred during the 1860s in Central Otago, New Zealand...
. Thirty-three lawyers were enrolled in Dunedin in 1862, and twenty more over the next three years. Prendergast's first client was Julius Vogel, then editor of the Otago Daily Times
Otago Daily Times
The Otago Daily Times is a newspaper published by Allied Press Ltd in Dunedin, New Zealand.-History:Originally styled The Otago Daily Times, the ODT was first published on November 15, 1861. It is New Zealand's oldest surviving daily newspaper - Christchurch's The Press, six months older, was a...
.
In Dunedin, Prendergast prospered – he became a senior partner in the firm of Prendergast, Kenyon and Maddock. In 1863, he was appointed acting solicitor for the Otago Province
Otago Province
The Otago Province was a province of New Zealand until the abolition of provincial government in 1876.-Area:The capital of the province was Dunedin...
, and in 1865 became Crown Solicitor in Otago.
National roles
From 1865 onwards Prendergast rose through series of national roles, from Member of Parliament, to Attorney-General and then Chief Justice of New Zealand and leading to his being knighted in November 1881.Member of Parliament
In 1865, Prendergast was appointed as a Member of Parliament to the Legislative Council, the then upper house of parliament.Attorney-General
On 20 October 1865, he became a non-political Attorney-General of New Zealand for Edward StaffordEdward Stafford (politician)
Sir Edward Stafford, KCMG served as the third Premier of New Zealand on three occasions in the mid 19th century. His total time in office is the longest of any leader without a political party. He is described as pragmatic, logical, and clear-sighted.-Early life and career:Edward William Stafford...
's government. In 1867 he resigned from the Legislative Council, his role as Crown solicitor in Otago and his law practice and moved north to Wellington
Wellington
Wellington is the capital city and third most populous urban area of New Zealand, although it is likely to have surpassed Christchurch due to the exodus following the Canterbury Earthquake. It is at the southwestern tip of the North Island, between Cook Strait and the Rimutaka Range...
.
As Attorney-General Prendergast's task was to consolidate the criminal law. In the process he drafted 94 Acts. He also helped to create order in the legal profession – in 1870, the New Zealand Law Society
New Zealand Law Society
The New Zealand Law Society is the parent body for barristers and solicitors in New Zealand. It was established in 1869, and regulates all lawyers practising in New Zealand...
was formed with Prendergast as its first president.
Chief Justice of New Zealand
Prendergast was appointed Chief Justice of New ZealandChief Justice of New Zealand
The Chief Justice of New Zealand is the head of the New Zealand judiciary, and presides over the Supreme Court of New Zealand. Before the establishment of the latter court in 2004 the Chief Justice was the presiding judge in the High Court of New Zealand and was also ex officio a member of the...
on 1 April 1875 on the advice of Sir Julius Vogel
Julius Vogel
Sir Julius Vogel, KCMG was the eighth Premier of New Zealand. His administration is best remembered for the issuing of bonds to fund railway construction and other public works...
s government. As such, he was the first New Zealand appointed Chief Justice.
Wi Parata v Bishop of Wellington
Prendergast's most notable judgement was Wi Parata v the Bishop of WellingtonWi Parata v the Bishop of Wellington
Wi Parata v the Bishop of Wellington was a New Zealand court case of 1877 which ruled that the Treaty of Waitangi was a "simple nullity" having been signed by "primitive barbarians"....
in 1877, a case involving Maori land in Porirua
Porirua
Porirua is a city in the Wellington Region of New Zealand, immediately north of the city of Wellington, with their central business districts 20 km apart. A large proportion of the population commutes to Wellington, so it may be considered a satellite city. It almost completely surrounds...
that was given to the Anglican Church for the purpose of building a school. The school was never built and Parata asked the land given to the Church be returned to the Ngati Toa
Ngati Toa
Ngāti Toa , an iwi , traces its descent from the eponymous ancestor Toarangatira. The Ngāti Toa region extends from Miria-te-kakara at Rangitikei to Wellington, and across Cook Strait to Wairau and Nelson....
iwi.
In his judgement, Prendergast took the view that "native" or "aboriginal" customary title, not pursuant to a Crown grant, could not be recognised or enforced by the courts, because the Treaty of Waitangi
Treaty of Waitangi
The Treaty of Waitangi is a treaty first signed on 6 February 1840 by representatives of the British Crown and various Māori chiefs from the North Island of New Zealand....
was a "simple nullity". He called Maori "primitive barbarians", and said they were "incapable of performing the duties, and therefore of assuming the rights, of a civilised community". Prendergast's reasoning was both overturned and enhanced 1938 when Te Heuheu Tukino v Aotea District Maori Land Board was decided, where the Court ruled that the Treaty was seen as valid in terms of the transfer of sovereignty, but as it was not part of New Zealand statute law it was not binding on the Crown.
Attack on Parihaka
A number of times, in his capacity as Chief Justice, he acted as Administrator of the GovernmentAdministrator of the Government
An Administrator in the constitutional practice of some countries in the Commonwealth is a person who fulfils a role similar to that of a Governor or a Governor-General...
. One controversial occasion was in 1881, when the Governor of New Zealand
Governor-General of New Zealand
The Governor-General of New Zealand is the representative of the monarch of New Zealand . The Governor-General acts as the Queen's vice-regal representative in New Zealand and is often viewed as the de facto head of state....
Sir Arthur Gordon
Arthur Gordon
Arthur St. Clair Gordon was a manufacturer and Ontario provincial politician. Gordon, a Liberal, was first elected to the Legislative Assembly of Ontario in the 1934 provincial election that brought Liberal Mitchell Hepburn to power. He represented the riding of Kent West from 1934 until 1945.He...
was on a visit to Fiji
Fiji
Fiji , officially the Republic of Fiji , is an island nation in Melanesia in the South Pacific Ocean about northeast of New Zealand's North Island...
, he sanctioned the invasion of the Maori pacifist Te Whiti o Rongomai
Te Whiti o Rongomai
Te Whiti o Rongomai III was a Māori spiritual leader and founder of the village of Parihaka, in New Zealand's Taranaki region.-Biography:...
's village at Parihaka
Parihaka
Parihaka is a small community in Taranaki Region, New Zealand, located between Mount Taranaki and the Tasman Sea. In the 1870s and 1880s the settlement, then reputed to be the largest Māori village in New Zealand, became the centre of a major campaign of non-violent resistance to European...
—something the Governor had indicated he was opposed to.
Retirement
Prendergast resigned as Chief Justice in 25 May 1899, after his wife died on 5 March. In his retirement, he became a director of the Bank of New ZealandBank of New Zealand
Bank of New Zealand is one of New Zealand’s largest banks and has been operating continuously in the country since the first office was opened in Auckland in October 1861 followed shortly after by the first branch in Dunedin in December 1861...
, the Wellington Trust, Loan and Investment Company Limited, and the Colonial Mutual Life Assurance Society Limited. He was genuinely interested in farming matters and became the first president of the Manawatu and West Coast Agricultural and Pastoral Association. Prendergast died in Wellington on 27 February 1921.