Story: Prendergast, James

Page 1 - Biography

Prendergast, James

1826–1921

Lawyer, judge

This biography was written by J.G.H Hannan and Judith Bassett and was first published in the Dictionary of New Zealand BiographyVolume 1, 1990

James Prendergast, New Zealand's third chief justice and the first appointed by a New Zealand ministry, was born in London, England, probably on 10 December 1826 and was baptised there on 3 October 1827. He was the youngest son of Michael Prendergast, QC, and his wife, Caroline Dawe. Michael Prendergast was the recorder of Norwich, judge of the Sheriff's Court for the City of London and a commissioner of the Central Criminal Court. All three of his sons followed him into the legal profession. James was educated at St Paul's School, London, and graduated BA from Queens' College, Cambridge, in 1849. In 1848 or 1849 he married Mary Jane Hall at Cambridge. They had no children.

Prendergast's choice of law as a profession was tentative. 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 returned to London, entered the chambers of Thomas Chitty, enrolled at the Inner Temple and was called to the Bar. He found work as a special pleader but the legal profession in England was overcrowded. Young lawyers were constantly advised to make another career or go abroad. Prendergast decided to emigrate to New Zealand and with his wife arrived in Dunedin on the Chile on 20 November 1862. He was admitted to the Otago Bar in that year. His arrival in Dunedin coincided with the goldrush. Scottish and Victorian capital flowed in to finance the boom and professional careers flourished along with merchants' fortunes. Thirty-three lawyers were enrolled in Dunedin in 1862, and twenty more over the next three years. Prendergast's first client was Vogel, now editor of the Otago Daily Times.

Prendergast prospered in Dunedin. He became a senior partner in the firm of Prendergast, Kenyon and Maddock. In 1863 he was appointed acting provincial solicitor for the province of Otago and in 1865 became Crown solicitor in Otago. He was regarded as 'a safe verdict-getter', better before a judge than a jury, and 'practically invincible' on appeal. He was said to be an indifferent speaker but that was no handicap to a lawyer who had decided to make his career in the administration of the law. In 1865 Prendergast was called to the Legislative Council and on 20 October 1865 became 'non-political' attorney general in Edward Stafford's government. He resigned from the Legislative Council, and as Crown solicitor in Otago, in early 1867. He also relinquished his Otago practice. Thereafter his life was centred on Wellington.

As attorney general Prendergast's chief task was to consolidate the criminal law. In the process he drafted 94 acts, and he was a member of the commission which altered common law procedure to fit the New Zealand context. He also helped to create order in the legal profession. The 1860s were turbulent times; sham lawyers preyed on new settlers while genuine lawyers were capable of shocking misconduct. The Law Practitioners Act Amendment Act 1866 prevented anyone convicted in any part of the British Empire of forgery, perjury or subornation from practising or enrolling as a barrister or solicitor in New Zealand. In 1870 the New Zealand Law Society was formed with Prendergast as its first president.

Vogel's government appointed Prendergast chief justice of the Supreme Court of New Zealand on 1 April 1875; he held the post for 24 years. As the Wellington district of the Supreme Court included Hokitika, Wanganui, Napier and Gisborne, Prendergast had to make frequent, arduous journeys. In 1881, as administrator during the absence of the governor, Prendergast sanctioned the raid on Parihaka by the Armed Constabulary. In November 1881 he was knighted.

Prendergast's judgements often contained little law, being either decisions on the facts or extempore interpretations of statutes. They were generally temperate and competent in tone although, like his statutes, they made difficult reading. Prendergast's approach to the law seems to have been pragmatic, sometimes brutally so. As attorney general he once asserted (on doubtful grounds) the legality of a 'dead or alive' reward for a Maori chief, concluding that, 'The justification of the proceedings was based on the universal and supreme law of necessity and preservation of the State.'

One of Prendergast's important achievements was the clarification of the land transfer system during its first years of operation. Although this was a significant initiative, he had greatest influence in relation to Maori land law. His most notable judgement was Wi Parata v. Bishop of Wellington, a Maori land case. He took the view that 'native' or 'aboriginal' customary title, not pursuant to a Crown grant, could not be recognised or enforced by the courts. He also claimed that the Treaty of Waitangi was a 'simple nullity' because the Maori were 'primitive barbarians' who were 'incapable of performing the duties, and therefore of assuming the rights, of a civilised community'.

It has been suggested that Wi Parata v. Bishop of Wellington was the start of a line of authority in which the New Zealand courts, contrary to established common law and international law principles, refused to recognise and enforce 'native title'. Prendergast is said to have disregarded or misunderstood the effect of New Zealand and United States decisions which did recognise these rights. However, there are earlier New Zealand Court of Appeal decisions which express a similar view on 'native title' as it related to Crown grants. This said, it is plain that Prendergast's Maori land cases were used as authorities in later New Zealand legal cases which have declined to give any recognition to 'native title' to lands and fisheries. His judgements have been instrumental in the alienation of much Maori land, but it is not necessarily true that Prendergast interpreted the law incorrectly or wrought it greatly out of shape. He was, rather, a man of his times in his inability to conceive of the Maori people as deserving the recognition accorded to 'civilised' nations.

Prendergast resigned his judicial commission on 25 May 1899. His wife had died on 5 March. In his early 70s he began a new phase in his life. Since 1871 he had owned the Tiritea estate, near Bunnythorpe. He now increased the number and range of his investments. He became a director of the Bank of New Zealand, 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. T. M. Wilford remembered Prendergast's unquenchable optimism: 'His one favourite topic was the future – the future prosperity – of this great country'. Prendergast died in Wellington on 27 February 1921.