Category Archives: Judge Willis

This Week in Port Phillip 1841: April 8-14 1841

BIG NEWS! THE OPENING OF THE SUPREME COURT 12 APRIL 1841

The opening of the Supreme Court in Melbourne WAS big news- not just for this blog (which is named for the First Resident Judge of the District of Port Phillip) but for Port Phillip itself. The creation of a permanent branch of the Supreme Court of New South Wales in Melbourne (as distinct from a regular circuit court) was both a way of marking the significance of the district, and also solving a personnel problem for Governor Gipps who was having to deal with conflict amongst the judges on the bench when they were all together. In a practical sense, it meant that substantial civil cases could be heard in Melbourne rather than the parties travelling up to Sydney, and that criminal cases no longer had to wait in jail until there was a sufficiently large number of prisoners to be escorted by ship to the Supreme Court in Sydney.  From a community and social point of view, it meant that barristers and other professionals would be attracted to the Port Phillip district, and that there was a focus for public and political discourse.

I hadn’t realized previously that Good Friday was on April 9 in 1841 and that therefore the court opened immediately after Easter. Devout Melbournians could have had a glimpse of their new judge in all his regalia on the preceding Sunday, because he and Edward Brewster had attended church at St James’ Church of England in their legal robes. The other ‘gentlemen of the long robe’ must have wished that they were wearing theirs too, but they were not.

The court opened at 10.00 a.m. on what we would know as Easter Monday in the small building that had been repurposed from its former incarnation as a Works building.

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William Liardet, ‘The Opening of the Supreme Court’. State Library of Victoria (www.slv.vic.gov.au)

The Clerk of the Court read the Queen’s Proclamation for the Suppression of Vice to open the court. He then read the Queen’s Commission appointing Willis as a judge, followed by Governor Gipps’ proclamation appointing a judge to the Port Phillip District, then finally Willis’ commission from Gipps that appointed him to the position.  After taking the oath, Willis then swore in James Raymond as Sheriff and James Croke as Crown Prosecutor. He then admitted five gentlemen to the bar: Croke, Brewster, Barry, Holme and Cunningham.

I’ve written about the opening of the Supreme Court previously, so I won’t repeat it here. But, I will give you a little taste of Judge Willis’ opening speech, which both captured the essence of his in-court persona and also foreshadowed his dismissal just over two-and-a-half years later:

I am well aware, however, of the peculiar position of a sole presiding judge, and more especially of his liability to the suspicion of local prejudices and partialities. I have always been of opinion with a learned writer “that the less local connexion a judge may have with the place in which he exercises his jurisdiction, the more he will be exempt from the unconscious and danger influence of any collateral motives; and that even being a stranger in a particular set of advocates, otherwise than by the general intercourse of the profession, has a favourable influence on the administration of justice. Particular partialities may exist, and are much more frequently imputed, among those with whom there is a regular and constant intercourse; and although no person worthy of a judicial appointment, will purposely and knowingly act in opposition to his duty, it is certain that habits are said to have arisen of some individual with greater attention and complacency than others, and thus to have induced a feeling of freedom, and even dictatorial familiarity in the one case, and of oppression and embarrassment detrimental to the interests of justice on the other.” (See letter from Sir. W. D. Evans, late Recorder of Bombay to Lord Redesdale, anno 1812).

Lord Brougham in his speech in the House of Commons in 1823, on the administration of the law in Ireland, thus addressed himself “that if a judge be bound at all times to maintain the dignity of his exalted office; if partiality be the very essence of judicial duty, and without which no judge can be worthy of the name- any mixture in party dissensions- any partnership in religious or political disputes- anything like entering into the detail of class difference and arrangements- anything approaching, however distantly, the tool of a particular faction would be a sort of stain from which above all others the Ermine ought most immediately be purged and cleaned.  For 1st; such interference touches a judge’s dignity; 2ndly, it renders his impartiality suspicious; and 3rdly, it goes to shake that respect which is due to every just and dignified magistrate, that respect, which if a magistrate forfeit by his misconduct, the sooner he vacates his office the better; the sooner the balance is wrested from him which he can no longer be expected to hold fairly- the sooner he drops the sword, which none will give him credit for wielding usefully- the better for the community and the law.  When once he has rendered it impossible for the public to view him with confidence and respect, he cannot too soon lay down an authority the mere insignia of which are entitled to veneration.”

I thus candidly avow my knowledge of the dangers to which a Resident Judge is exposed, and I do so, trusting that this knowledge will enable me to avoid them.  But should the Resident Judge of this district ever afford just cause of suspicion, or complaint, the act whence he derives his authority by enabling his Excellency the Governor from time to time to appoint one of the judges of New South Wales to reside within this district provides an effectual remedy for any of the evils incident in this office.

 

The speechifying and swearing-in over, the court began hearing cases.  In this inaugural sitting, there were three cases: two of stealing and one of embezzlement.  All were found guilty.

And so this year (2016), the Supreme Court in Victoria is celebrating its Dodransbicentenary (now there’s a term to conjure with!)  Strictly speaking, it was still the Supreme Court of New South Wales, but it was the start of the Supreme Court in what was to become Victoria.  It was  such a big occasion that I’ll just let it sit here, dominating the events of the week 8-14th April.  Happy Dodransbicentenary, Supreme Court!

John Walpole Willis’ exciting week ahead

Justice John Walpole Willis and his biographer-of-sorts (i.e. me!) are about to have an exciting few days.  Tonight (Friday 8th April) is the opening of the new exhibition at the Royal Historical Society of Victoria 175 Years of Judging for the People, which is on show between 11 April and 7 June 2016 (details here) .

Then tomorrow, Saturday 9th April is the RHSV Conference marking the publication of a new book Judging for the People: A Social History of the Supreme Court in Victoria 1841- 2016 at Victoria University in the city.  I’m giving a short paper on the Bonjon case and its relationship to the Mabo judgment 151 years later.

Finally, on Tuesday 12th April, the book Judging for the People is being officially launched by the Chief Justice of Victoria on the very day of 175 Anniversary of the opening of the Supreme Court of New South Wales in the district of Port Phillip.  I wrote the first chapter of the book which starts off with the Resident Judges, who were the forerunners of the Supreme Court here in Victoria.

So, JWW and I had better both frock up for a few days of commemorative excitement!

What would Willis do…..if he were Dyson Heydon?

Since my work on Justice John Walpole Willis, I find myself measuring current events in the judicial/political realm against the criterion of “What would Willis do?”  Justice  Dyson Heydon, the commissioner sitting on the Royal Commission into Trade Union Governance and Corruption  has spent the weekend contemplating whether the fair-minded observer would ‘apprehend’ bias in his initial acceptance to make the Sir Garfield Barwick oration at a Liberal [i.e. conservative] Party function. I wonder what Willis would do were he in the same situation.

Of course, the question is moot as the commissions of a colonial judge in the 19th century and a Royal Commissioner appointed in March 2014 are  completely different.  As a colonial judge appointed by Whitehall, Willis was expected to support the executive government, albeit balancing this against his own professional commitment to the ‘rule of law’. It was this assumption of loyalty to the government that underpinned the whole basis of a colonial judicial appointment.  Appointment as a colonial judge was ‘at pleasure’ (the pleasure of the Queen-in-Council and the British Government, that is) whereas appointment as a judge on the English bench was ‘during good behaviour’ with the judiciary intended to be largely independent of Parliament.

There are those who would argue (myself included) that this particular Royal Commission is, and has been, political from its very inception.  The choice of Royal Commissioner falls to the Prime Minister, and no Prime Minister would appoint a Commissioner that he felt would be inimical to the whole project.

Willis often cited Lord Mansfield as a model, most particularly Mansfield’s insistence on not bowing to popular opinion during the Wilkes trials.  “Fiat justitia ruat caelum” declared Willis, following Mansfield (“Let justice be done though the heavens fall”) and Willis frequently declared that he did not seek popularity or the approval of others.  These ‘others’ often tended to be governors and his brother judges. Despite his insistence that he eschewed popularity, many of his most controversial statements fed right into the popular local politics of the day.

In this regard, Heydon likewise looks to black-letter law rather than popular opinion.  Like Willis he, too, dissented from his brother judges.  In 2013 Professors Andrew Lynch and George Williams of UNSW analyzed Heydon’s performance on the High Court and found that he dissented on 40% of the matters on which he sat. Gabrielle Appleby has written a good article on The Conversation website on Heydon as a ‘black-letter’ judge, as does Tom Allard in The Age.  Richard Ackland in the Saturday Paper gives a rather more damning appraisal.

So what would Willis do? Pure speculation and ‘what-if’ery here, but I don’t think he’d stand down. He would see even the raising of the issue as a personal attack, and would turn it around onto his critics, the unions.  He would  almost certainly give a long and learned justification of whatever he decided to do, steeped in judicial and biblical allusions.

What will Heydon do? I have no idea, but I suspect that he won’t stand down either. I may be wrong.

Conversing about Judge Willis

Well, I wasn’t struck dumb with nerves, so now I can divulge that I was on the Conversation Hour this morning, with Jon Faine and Damien Carrick (from RN’s Law Report)  along with Richard Broome and Simon Smith.

Should you wish to hear it, you can listen at

http://www.abc.net.au/local/audio/2014/09/19/4091057.htm

My part starts at 12.22.  The first section features Damien Carrick discussing assisted suicide in Belgium, so if you might find this topic distressing, you may want to skip ahead.

 

Judge Willis Casebooks on the web

The Judge Willis Casebooks website is up and running!

The address is http://historyvictoria.org.au/willis/index.html   You can access it through RHSV’s website, but believe me- it’s much quicker to go directly!

RHSV website

One of the treasures of the RHSV is the Judge Willis Casebooks.  There are twenty-six in total, mostly from Willis’ time in Sydney.  They were one of the earliest acquisitions of the Society,  coming through James Palmer Savage in 1909, with one donated later in 1931 by Savage’s daughter when she found it in the family home.  The website presents the casebooks relating to Port Phillip trials, with a particular focus on the criminal trials rather than civil trials.

The casebooks are Willis’ own notes that he took either during or after the trials over which he presided.  As such, they are rather opaque because they are jottings of what Willis perceived to be particularly significant during the trial.  They are, if you like, a little window into his framing of what he heard.   Most cases start with his summary of the evidence given by each witness.  He notes the questions raised in cross-examination, and a brief summary of the responses. He briefly notes the arguments raised by counsel in summing-up, and any laws and cases they make reference to.  At the end of each entry, he notes the verdict.

To see the notebooks themselves, click on the ‘Transcripts’ section of the site.  There you have a choice- the typed transcripts with a commentary, or scans of the original document. If you click on the scans, you’ll see a PDF image of the book, in all its scrappy, underlined and scribbled out glory.  These are personal working documents, not intended for publication (and in fact, I can’t begin to imagine what Willis would say if he knew…..)

RHSVwebsite2

The real strength of this website is that His Honour Paul Mullaly has written a commentary to go with each transcript.  He contextualizes the case and  explains the points of law that Willis has identified.  For the non-lawyers amongst us, this is invaluable.  He has followed up the case in the Public Records Office holdings, and read the newspaper reports that followed the trial.  In this way, he has fleshed out what would otherwise be raw material into a fuller, coherent artefact.

Box 55 is a grab-bag of documents that had originally been placed with the casebooks.  Among other things, it contains his preparation for addresses to the jury, petitions from some of the people who appeared before him and character references.  Justice Mullaly has cross-referenced these loose documents against the case book entries, and again provided a commentary here too.

Under the Support Materials tab, you’ll find some background material on Willis and Port Phillip that I prepared for the site.

The website was launched last night by the The Honorable Chief Justice, Marilyn Warren.  His Honor Paul Mullaly then spoke about his long labour of love in researching and preparing the material on the website, and [here comes some shameless self-promotion!]  I spoke about the transnational career of John Walpole Willis.

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I finished off my presentation by saying :

In these casebooks, we see a hard-working, conscientious judge with his sleeves rolled up.  If you’re looking for evidence of Willis’ career of “follies and consequent disasters”, you won’t find it here…Instead, you’ll find a court at work.  In the sloping hand that filled the pages of these casebooks, and especially through Justice Mullaly’s commentary, you’ll find a judge who had a sharp mind, kept up to date with current developments across the empire, and knew his law.  There are no similar documents from the Canadian or British Guianan phases of his career.  These casebooks shed a unique light, and serve as a reminder that, despite all the controversy attached to John Walpole Willis’ transnational career, he was ultimately a Judge, in a courtroom, with a duty to perform justice.

http://historyvictoria.org.au/willis/index.html

John Walpole Willis in cyberspace

RHSVweb

Tomorrow night, my judge will be launched  into cyberspace!  Too late to ‘join us’, though.

I’ll give you the link after it’s made available.

Judge Willis on the front page of today’s Age? Not quite….

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It’s the 20th January and so it is the 172th anniversary of the hanging of Maulboyheenner and Tunnerminnerwait.  Each year this anniversary receives more prominence, and I see from today’s article that Melbourne City Council plans to erect a memorial, probably outside the Old Melbourne Gaol.  Details of location, cost, size and nature have not yet been decided. You can read the research paper by Monash University academic Clare Land supporting the proposal here.

I thought that Judge Willis was about to get his 15 seconds of 21st century fame in this article, but he’s not mentioned at all.  So, you’ll just have to read my earlier posts about Judge Willis’ part in these hangings, which were the first official hangings that occurred the Port Phillip district.  You can read them here and here.

Again, I’d strongly encourage you to read Leonie Steven’s article ‘The Phenomenal Coolness of Tunnerminnerwait’ published in the Victorian Historical Journal, Vol 81, Number 1, June 2010.  If you’re a member of the State Library of Victoria, then you’ll be able to get access to it (likewise with the other state libraries in Australia.  It’s really worth joining your state library: you get so much access to databases and journals from home).  Alternatively, there’s an online version here.   It’s a beautifully written article that has the humility to admit that sometimes motives for action are ultimately unknowable and that it is important to go back to the primary sources again and again.  Good advice.