FRANCIS DART FENTON—PART ONE
From Squatter on Māori Land to Chief Judge of the Native Land Court
The Remarkable Career of FRANCIS DART FENTON
Introduction:
This essay is about a man who was instrumental in, shall we say, modernizing land tenure in New Zealand from Māori communal ownership to the British system of customary title. This change had a dramatic effect on Māori and is still the cause of much Māori grievance today. To some therefore this may be a story about entitled colonialism but to others it will be a story of sad injustice.
I used to think that when Māori sold land to the Crown or to settlers it was sold at a fair price – a fair price being that price agreed between a willing buyer and a willing seller. I could not have been more wrong. The Treaty of Waitangi included a clause which gave the Crown the pre-emptive right to purchase Māori land. In other words Māori could only sell land to the Crown at the price the Crown offered. In the early days of our country the government wanted to increase the pakeha population to exceed that of Māori . Families were enticed with offers of free land. Other settlers who did not meet these criteria also arrived, thus creating a huge demand for land. But Māori were mostly reluctant to sell. The man who played a large part in changing this situation was Francis Dart Fenton who, although he dramatically changed the lives of thousands of New Zealanders, is difficult to find in our history books.
So, who was this man and what were the effects of these changes? These are two questions I will endeavour to answer in three parts. Part one will deal only with Fenton’s private life, part two will discuss the workings of the Native Land Court (as it was known in his time) under his leadership, and in part three I will endeavour to cover its effect on the Māori people.
1. Fenton’s background and private life.
Fenton was born in Huddersfield, Yorkshire, in the early 1820s, into a legal family. He studied law in London where he became qualified as a Solicitor. Learning about the Canterbury Association he decided to seek his fortune in New Zealand and set out with his cousin James Armitage on the Barbara Gordon in 1850. But when the ship called at Auckland, they decided to seek their fortune in that town. Initially they sought to buy land in the Waikato area. However, two things were against them: firstly, they found Māori reluctant to sell and secondly the Crown’s rights of pre-emption.
Following this rebuff, the cousins decided to squat on Māori land near Robert Maunsell’s mission station near the mouth of the Waikato River, where they ran sheep and cattle. Their situation here was fraught with danger since there were numerous disputes with Māori as Pakeha owned cattle destroyed Māori cultivations. His answer was to fence off the Māori land on which he wished to run his sheep and cattle.
Being Anglicans, Fenton and Armitage were welcomed into the small community. Fenton was also a musician and taught music at Maunsell’s two schools, one of which was for boys and the other for girls. In 1851 Governor Grey happened to visit the mission station and, on meeting Fenton and being impressed with his abilities, offered him a position as clerk in the Register of Deeds which he accepted. This was the beginning of a succession of magisterial and administrative roles with increasing responsibilities which included the drafting of legislation. In January 1857 he was admitted to practice as a barrister and solicitor in the Supreme Court.
Meanwhile, the farm was managed by Armitage until he was killed by a party of Ngati Maniapoto in September 1863 while organizing supplies for the British military forces during the invasion of Waikato. The cousin’s respect for the Treaty of Waitangi can be judged by this behavior.
In the process of performing his duties Fenton had become familiar with Māori custom. Around 1856, although being impressed by the way Māori settled grievances within each hapu with their runanga, he believed it was time to bring them within the colonial justice system if true amalgamation with Pakeha was to be achieved.
In 1859 he published Observations on the Aboriginal Inhabitants of New Zealand, a paper that ably summed up existing knowledge on the causes of Māori depopulation. He appended his Observations with A Scheme for the Partition and Enfranchisement of Lands held under Native Tenure. He described this as a ‘simple scheme for settling the Native title to land somewhat analogous to the system pursued by our Anglo-Saxon forefathers, a process of separating common titles and apportioning lands as in England’. In other words, he was proposing legislation similar to England’s barbarous Enclosure Acts as a means of freeing up Māori land for British settlers arriving in New Zealand. He was supported in this scheme for Māori advancement by Sir William Martin, the first chief justice in New Zealand.
These views prompted much debate and were strenuously opposed by Donald Mclean and officials of the Native Affairs Department. Governor Thomas Gore Browne seemed to favour Fenton’s ideas but expressed some concern about the departures from provisions of the Treaty.
Sorrenson, suggests that Fenton’s activities and proposals combined with his direct links to the ‘Free Trade in Māori Land’ movement in Auckland heightened Kingite fears of land loss and led to the appointment of Potatae te Wherowhero as Māori King in 1858.
In 1860 a committee of the House of Representatives was set up, ostensibly to inquire into the efficacy of Fenton's attempts 'to introduce institutions of Civil government among the Natives of the Waikato district' during his time as resident magistrate there from 1857 until March 1858 when he was recalled. The report of that committee exposed the differences in the advice Governor Gore - Browne had received from his responsible ministers and Fenton on the one hand, and McLean on the other. Fenton's views were vindicated and formed the basis of further government initiatives to introduce 'new institutions' in 1861 by which time William Fox had become Premier and Sir George Grey had returned for a second term as Governor.
Fenton’s skills as a law draftsman were called on by Governor Grey in particular for the drafting of the Native Lands Act 1862. Equally important, the Native Department was rendered powerless. McLean resigned, and the Native Department finally lost its role as the government's land purchasing office when the Native Land Court was brought into operation in 1865. Fenton had replaced McLean as the government's chief adviser on Māori affairs.
With the Native Lands Act 1862 the Government abolished the Crown’s right of pre-emption paving the way for direct purchase by European settlers from individual Māori . The revised act of 1865 put this policy on a more practical footing by adopting Fenton’s proposals that the Native Land Court individualise Māori land by a ‘process of legalized tenure’ in which a court would issue a certificate of title which could be transferred to ‘the purchasing pakeha’ who would then receive a Crown grant.
As Henry Sewell, New Zealand’s first Premier, put it ‘The object of the Native Lands Act 1865 was twofold: to bring the great bulk of the lands of the Northern Island which belonged to the natives . . . within the reach of colonisation. The other great object was the detribalisation of the natives – to destroy, if it were possible, the principle of communism which ran through the whole of their institutions, upon which their social system was based, and which stood as a barrier in the way of all attempts to amalgamate the Māori race into our own social and political system.’
The preamble to the Act stated that its purpose was to ascertain the owners of Māori land, to provide a mechanism for the issuing of titles, and to provide regulation for descent where the Māori owner died intestate. Any native could apply to the court to initiate the process and the court, after hearing evidence from the applicant and any other claimants, would issue a certificate of title to those found entitled. Though Māori were required to have their land surveyed before the court awarded title, the surveys were often arranged and paid for by European purchasers, with those costs deducted from final payments when titles were awarded and alienation was completed.
By November 1864 there had been several changes of government. Premier Frederick Weld immediately asked Fenton to become chief judge of the Native Land Court. Although initially reluctant because it would interfere with his private practice work, he accepted because he ‘wanted to show that the land of New Zealand could be judicially dealt with’ and because the Native Land Court could be ‘founded upon my own principles’. He accepted on condition that he held the appointment on good behaviour, not under the authority of the government. This condition secured for him rights of independent judgment and action, which he used to the full. Clearly Fenton wanted to operate the Native Land Court in his way and without any ministerial oversight and to this the government agreed. Fenton was responsible for drafting and administering the Native Lands Act 1865, which amended the 1862 act, and which he later described as ‘my Act,’ and for administering the New Zealand Settlements Act of 1863 (which enabled the confiscation of the best Waikato lands for settlement by Europeans).
Fenton's personal conflict with McLean resumed when McLean was elected to the House of Representatives in 1866 and became Native Minister in 1869, a position which, with the exception of a few weeks in 1872, he held until the year before his death in 1877.
The 1865 Act was replaced in 1867 and again in 1873. Fenton took no part in drafting these new Acts, in fact he strongly disagreed with some of the provisions of the 1873 Act because it departed from his ideas of creating an elite, land owning Māori gentry like those who gained from English enclosures. The earlier act required that no more than 10 owners be listed on the title although if the area exceeded 5,000 acres title could be in the name of the hapu, but this option was only twice used by the court. The 1873 Act gave the Court the power to include all those with an interest in the land and in a varying number of shares depending on their seniority within the claimants, a much fairer system. This was a win for Fenton’s old adversary Donald McLean who was largely responsible for the drafting of the latter Act.
In 1869 Fenton had been called to the Legislative Council, and he introduced a bill to further amend the Native Lands Act, which was passed, but he failed to pass his Native Reserves Bill. Also, in 1869 he introduced the Bill to incorporate the barristers and solicitors of New Zealand under the style of ‘The New Zealand Law Society’. But with the passing of the Disqualification Act of 1870 which disqualified a salaried official from sitting in the Legislative Council (for which McLean is reputed for being responsible) he was disqualified from sitting in the Council on 30 December 1870.
Fenton continued to preside over the Native Lands Act for another nine years, reluctantly following the 1873 Act, but as he wished to interpret it, and in a way to encourage alienation and sale to settlers. He retired in 1881 having held the post of Chief Judge for a total of 17 years. In 1871 he had been appointed a District Court Judge, based in Auckland, a position from which he resigned in 1879.
Now permanently in Auckland Fenton became more involved in local affairs. He made important contributions to the development of the town where, apart from brief periods of residence elsewhere, he had spent most of his life. He had drafted the Public Domains Act 1860, and was appointed to the Public Domains Board in 1865 and was for many years chairman of the Auckland Domain board. He also served on the board of the Auckland College and Grammar School from 1868 to 1872, and, from 1879 to 1886, was a member of the Improvement Commission which made recommendations to the Council on works matters. He was also on the committee of the Auckland Benevolent Society.
PART TWO—NEXT ISSUE...
Sources:
TE ARA, The Dictionary of New Zealand
Ko Te Whenua Te Utu, LAND is the Price, M. P. K. Sorrenson
Te Kooti Tango Whenua, David V Williams.
Papers Past
Parliamentary Papers
Illustrations:
Judge Francis Dart Fenton Alexander Turnbull Library, F-5057-1/2-
Sir Donald McLean Alexander Turnbull Library, F-103970-1/2-
Rev. Mr. Maunsell’s School and Mission Establishment, Waikato Heads National Archives 54/1007
Native Land Court Day, Ahipara Alexander Turnbull Library F-26780-1/2-
Courthouse Cambridge, Collections.tepapa.govt.nz/object/320445
Don HAYWARD
Te Reo NOEMA/NOVEMBER 2021 Vol. 28 Issue #3 pg12