Page 1: Biography
Fenton, Francis Dart
Magistrate, judge, public administrator, musician
This biography, written by William Renwick, was first published in the Dictionary of New Zealand Biography in 1990.
Francis Dart Fenton was born at Huddersfield, Yorkshire, England, probably some time between 1820 and 1825, the son of Francis Tarrant Fenton and his wife, Frances Ashby. The Fentons were an old Yorkshire legal family: Francis Tarrant Fenton was a solicitor practising in London. Francis Dart Fenton attended Sheffield Collegiate School, entered the law office of an uncle in Huddersfield, and was admitted to practice as a solicitor.
He became aware of New Zealand through the Canterbury Association, and for the good of his health set out for Canterbury in the Barbara Gordon in 1850. When the ship put in to Auckland, however, he and his cousin, James Armitage, decided to try their luck there. For the rest of his life Fenton lived in Auckland or its environs.
At first he squatted on a piece of Māori land on the banks of the Waikato River, and ran sheep and cattle. He was not far from Maraetai, at the mouth of the river, where the CMS missionary Robert Maunsell had his mission station. Fenton, as an Anglican and a gentleman, was welcomed into Maunsell's circle where his musical ability, his conversation, and his genial personality made him a favourite visitor. For a while he taught music at the mission school. Governor George Grey met him at Maunsell's in 1851, and offered him a position as clerk in the Registry of Deeds, which he accepted.
During the next 30 years he held a succession of judicial and administrative positions in the public service. He was resident magistrate at Kaipara (1854–56); native secretary (temporary) in 1856; resident magistrate at Waipā and then Waikato (1857–58); civil commissioner for Waikato in 1861; assistant law officer at Auckland (1858–62); Crown law officer (1862–65); and, from 1865 until he retired in 1882, chief judge of the Native Land Court. On 9 December 1858 Fenton married Martha Connell at Auckland. They had four daughters and two sons.
By 1856 Fenton had concluded that relationships between Māori and Pākehā were at a watershed. He was impressed by the spontaneous efforts of hapū in Waikato to set up their own rūnanga to settle grievances and punish wrongdoers. He was aware, too, that initial willingness of Māori to trust the Pākehā and to emulate them was being replaced by doubt and suspicion, which was fuelling their resistance to the sale of tribal land. Fenton believed it essential for the government to take over the leadership of Māori efforts at self-government, and to do so on the basis of some definite principles. The government could no longer rely on presents, pensions and timely visits to obtain the friendly acquiescence of influential chiefs. Nor, in Fenton's opinion, were the older chiefs able to lead their people through the present unsettling times. If the Māori were to be amalgamated with the Pākehā; if they were to be brought under the institutions of law and civil government, including legally recognisable ownership of land held under customary title; then new men, new institutions, and a greater expenditure of public money were needed.
Fenton's views prompted the debate, which took place during the next decade, on Māori affairs. But his memoranda and reports were more than advocacy: they were a criticism of the advice of Donald McLean, the senior official of the Native Department. For behind the argument on policy were two struggles for ascendancy. There was the constitutional issue of whether Governor Thomas Gore Browne should persist in reserving native affairs from the full application of the principles of responsible government, or whether he should curtail what his ministers regarded as undue influence by officials of the Native Department, who were not accountable to Parliament. There was also, within the Native Department itself, a struggle for ascendancy between Fenton and McLean.
Both contests were brought into public view during the hearings of the Waikato Committee of the House of Representatives in 1860. The committee was ostensibly set up 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 the committee exposed the differences in the advice Governor 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 after William Fox became premier and Grey returned as governor. Equally important, the Native Department was rendered powerless. McLean resigned, and the other members of his office were appointed to positions away from Auckland. The Native Department 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. It was clear from evidence given before the Waikato Committee by William Martin, the chief justice; Bishop G. A. Selwyn; C. W. Richmond, minister for native affairs; the Reverend Thomas Buddle of the Wesleyan mission; and by Robert Maunsell, John Morgan and Benjamin Ashwell, the three Anglican missionaries stationed in Waikato, that his views received authoritative support. Fenton's skills as a law draftsman were called on by Governor Grey, in particular for the drafting of the Native Lands Act 1862.
In January 1865 Frederick Weld asked Fenton to become the first chief judge of the Native Land Court. Fenton 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 judgement and action, which he used to the full. The earlier conflict between the governor's ministerial advisers and his officials in the Native Department was replaced by a conflict between the executive power of the government and the judicial authority of Chief Judge Fenton. Fenton was responsible for drafting and administering the Native Lands Act 1865, which amended the 1862 act, and for administering the New Zealand Settlements Act 1863.
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. For nearly half of Fenton's term as chief judge, McLean was his minister. McLean is reputed to have been behind the Disqualification Act 1870, which invalidated Fenton's appointment to the Legislative Council the previous year.
Fenton made important contributions to the development of Auckland where, apart from brief periods of residence elsewhere, he spent most of his life. He was a parishioner of St Paul's Church, Symonds Street, for nearly 50 years and a member of the diocesan synod in the late 1860s and the 1870s. He drafted the Public Domains Act 1860, and was appointed to the Public Domains Board in 1865. He was for many years chairman of the Auckland Domain board and served on the Auckland Grammar School board of governors from 1868 to 1872 and from 1879 to 1886. But he is remembered best for his contributions to Auckland's musical life. He was himself an accomplished player of violin and cello. He revived the Auckland Choral Society when he took over as vice president and chairman in 1866, and during the next 30 years it went from strength to strength under his direction.
After his retirement Fenton lived from 1885 to 1895 in the Kaipara district. He was one of the pioneers of viticulture in the district, and planted Pinot Meunier, Red Hermitage and Isabella grapes. However, he eventually returned to Auckland and died there on 23 April 1898.
Fenton was a complex man. The CMS missionary J. W. Stack, a life-long friend, found him a most charming companion. Those associated with him in the Auckland Choral Society enjoyed his genial good humour. But when he was on duty he was, as William Gisborne, who worked with him at close quarters for nearly 30 years, wrote, 'a hard man to get on with unless he had his own way; he was cold, rather cynical, self-confident, uncompromising, and obstinate in his dislikes.'
Fenton published Observations on the state of the aboriginal inhabitants of New Zealand (1859), the result of the first census of the Māori people, which he had undertaken in 1858. He brought together a number of the decisions of the Native Land Court and the Compensation Court in Important judgements delivered in the Compensation Court and Native Land Court, 1866–1879 (1879). In 1885 he amplified and published a lecture he had given that year, Suggestions for a history of the origin and migrations of the Māori people, an incisive review of the evidence and its interpretations as then known.
The nature of Fenton's achievement remains open to debate. Pākehā historians have found his insights into Māori society in the 1850s illuminating. Now, however, that attention is focused on the Native Lands Act 1865 and the role of the Native Land Court in the individualisation of titles to Māori land, his decisions and interpretations as the court's first chief judge are under scrutiny.