Sir James Cockle First Chief Justice of Queensland by J. M. Bennett, M.A., LL.M. *

From the opening of the New South Wales Supreme Court in Bar five years later. The intervening time he spent as an employee 1824 an attempt was made to ensure that justice should not fail of the Morning Chronicle. Illness forced the abandonment of his because of the remoteness of many colonists from the court centre practice as a barrister in England, so he decided in 1853 to migrate in SydneYl. Circuits of the judges came to be undertaken to a to New South Wales. On the last day of that year he was admitted number of country districts, reaching as far as Brisbane by May to the colonial Bar at Sydney". His forensic career was aided by 18502. Mr Justice Therry first held that court in the chapel of the political success. In September 1856 he entered the Legislative military barracks3, commencing a periodical visitation which was Council as representative of the government under the first Cowper to continue until 1856, and ending the costly and tedious procedure Ministry and he was made Solicitor-General. By 1858 he had taken of taking all substantial law business to Sydney. the Attorney-Generalship and with it a silk gown,2. In the By 1852 the Moreton Bay Judge's Act had enabled the New following year he became a Supreme Court Judge on the condition South Wales Governor to appoint a barrister in actual practice and that he sit at Brisbane. His use of political positions to advance of not less than five years' standing "to be and act as Judge of and himself in the law was frowned upon by the profession. Chief at the Circuit Court to be holden at Brisbane in the District of Justice Stephen, who let it be understood that he neither Moreton Bay" 4. With the title of Circuit Judge for the Circuit countenanced nor approved of the appointment, knew of no District of Brisbane he was to have and exercise all the powers objection to Lutwyche beyond his suspected indulgence in "recent vested in the judges of the Supreme Court. Three years later the and open immoralities - and those of a low character - and whose legislature acknowledged the "increase in the judicial business of wife's position therefore was such as to unfit her for the circle into the Supreme Court" and the "necessity for providing more which her husband's rank must place her",3. effectually for the administration of justice in the District of Lutwyche's early and turbulent years in Brisbane have already Moreton Bay". It accordingly passed a second statute which been researched14. Their exciting story is too long to repeat in increased the Supreme Court bench to four judges, while reciting detail here. In September 1861 Sir Charles Nicholson gave this that it was "not at present expedient to authorize the appointment precis of it: of a Resident Judge for Moreton Bay exclusively or to establish a The [Queensland] government have only one difficulty and separate court for that District"s. One member of the enlarged that consists of the legacy which C. Cowper left them in bench was to undertake circuits to the District at least three times Judge Lutwyche. You know something of the antecedents of in each year. this man and of his awkward social position. Not contented The northern settlers who thought these arrangements very with the excellent place he had secured he has ever since the inadequate canvassed Parliament promptly and effectively. The establishment of the government set himself up in fierce Moreton Bay Supreme Court Act of 1857 acknowledged that it antagonism to the Executive. He began by impugning the was expedient to establish a separate local court "having regard legality of all the acts of the legislature on the ground of the to the population and great extent of the District and its distance basis of election to the Assembly not being fixed on manhood from Sydney"6. From 1 April 1857 there was to be held at Brisbane suffrage. He connected himself with a violent radical a court of civil and criminal jurisdiction to be called the "Supreme newspaper,S - and is without question the author of one libel Court at Moreton Bay". It was to be convened before a Resident which he had himself to try only a few days ago16. The only Judge who was to have the same powers as the Supreme Court solution for all this difficulty will be his removal. As however Judges "collectively or individually" had. The jurisdiction of the he has the mob on his side, the getting rid of him will be a court and its judge was to extend to: difficult task. 17 All such portions of the Colony of New South Wales as lie In fairness to Lutwyche it should be said that the problem was to the northward of the southern boundaries of the Police not entirely his fault nor solely of his making. The infant Districts of Brisbane Ipswich Warwick Drayton and Surat Parliament had asked him to draft a Bill to rectify certain difficulties and of a line west in extension of the southern boundary of in appeals and circuits. When he had done so Parliament shelved the said Police District of Surat to the eastern boundary line ?is work and, in 1860, appointed a Select Committee of inquiry of the Colony of South Australia. Into the state of the judicial establishment18. That Committee Mr Justice Milford was appointed judge but he preferred not reported that court administration was inefficient - a defect of to be resident7. Remaining in Sydney he, for all practical purposes, the system not of the man, though the judge was not spared continued a circuit system. Forced at length to remove to Brisbane personal innuendo - and recommended that the bench be increased by doubts as to his judicial status in Sydney, he chafed at being to three, including a Chief Jus.tke to be brought out from England. denied his accustomed intellectual and social company8. Local The judge was incensed and, although the Committee's report residents, for their part, did not regret his return to the Supreme was dismissed as impracticable, his political and personal feelings Court of New South Wales in 1859. The Moreton Bay Courier had been provoked to fever pitch. He threw himself into stirring hoped that his successor would not "suffer from attacks of bile ~p support in t?e press, while Parliament countered by attempt­ as did our late Judge, whose biliary duct was out of order through Ing to reduce hIS salary19. Lutwyche resisted Premier Herbert's the inordinate longings he had for Sydney"9. In October of that requests to surrender his judicial commission - issued in New year, only two months before Queensland was created a separate South Wales - and petitioned the Queen. Letters and despatches Col<;>ny, Mr Justice Alfred James Peter Lutwyche was made betw.een the parties and the Colonial Office competed in acrimony Res1dent Judge. It seemed certain that he must become the first and In bulk. When tempers had calmed somewhat in the face of Chief Justice of Queensland, but fate, partly abetted by his peculiar imperial disapproval and public sympathy for Lutwyche the latter temperament, was to decide otherwise. secured a guarantee of his salary under the Supreme C~urt Act of Lutwyche was a man of ability 10. In 1835 he had taken the 186bo. It was, however, a Pyrrhic victory for the same statute M.A. degree at Queen's College, Oxford, and he was called to the was to cost him the Chief Justiceship of Queensland. The Act recited that it was expedient to amend the constitution * Chief Legal Officer of Law Reform Commission, N.S.W. of the Supreme Court and to cancel the existing commissions of the

Queensland Ei eritage Page Three in-Council. Paradoxically the new judge, notwithstanding that he would be Chief Justice, was to have a salary of £1500 only, £500 less than the sum guaranteed to Lutwyche under the Supreme Court Act of 1861. Sir Roundell Palmer did not find it entirely simple to perfo.rm the task entrusted to him. There was no possibility of interest1?-g an English judge, even from the County Courts, in the ChIef Justiceship of such a young, distant, and apparently fractious colonY28. Members of the Equity Bar, for whom the next preference had been expressed, were no more forthcoming. Only one gentleman of desirable education, character and ability from their ranks had offered himself for selection. He was considered too young at the age of 33 to cope with Queensland's "peculiar circumstances". From the Common Law Bar the choice had to be made. There Palmer found a man whom he felt able to propose - "Mr. James Cockle, of the Midland Circuit, a barrister of sixteen years standing, and above forty years of age, and a Wrangler of Trinity College Cambridge, who had been most highly recommended to me by Chief Justice Erle and others"29. Cockle was then aged 4330. His father was "a learned lawyer" of Essex31, who had doubtless influenced him to follow in the same profession. The son accordingly put aside his great love of science, particularly of mathematics and astronomy, though he found it a source of intellectual recreation throughout his life. Since he had a scientific mind it is not surprising that he decided to enter the law as a special pleader. This he did in 1844, shortly before graduating as a Master of Arts. Called to the Bar at the Middle Temple in 1846, he did not begin forensic practice until the spring assizes of 1848 at Nottingham. He went on to practise at the Leicester and Northampton County and Borough Sessions and at the Birmingham SessionsJ2. He continued to blend science and law with such distinction that he was elected Fellow of the· Royal Astronomical Society in 1854 and Fellow of the Cambridge Philosophical Society two years later. On arrival at Brisbane in 1863 the new Chief Justice applied himself to restoring the locally faded image of the bench. Devotion Mr Justice Lutwyche (Oxley Memorial Library) to work, strict impartiality, and a reputation for orderly and convincing decisions, soon assured him of the respect of the legal Resident Judge to the end that all judges of the court should be profession and of the community. He quickly revealed the qualities appointed "by commission in Her Majesty's name under the great of a leader in converting the irascible Lutwyche from enemy to seal of the colonY"21. It proceeded to reconstitute the court as a colleague. His tactful, but firm, intervention brought peace, if not court of civil and criminal jurisdiction called "the Supreme Court reconciliation, between that judge and the Government. Lutwyche of Queensland". Up to three judges were provided for but, until had insisted upon agitating his grievances in the press as a matter further authorized, only the retiring Resident Judge was to be of right. In the course of the elections of 1863 he had been commissioned22. When a second judge was appointed, one of them imprudent enough to publish an Address to Electors in which he was to be designated "the Chief Justice of Queensland"23. roundly criticized the Government. In taking so political a course Lutwyche, sensing that the title was not being reserved for him, he left himsel£open to censure, and a Select Committee of "determined to impede by every means in his power, the appoint­ Parliament was promptly appointed to review his conducp3. It ment of any other person to that office"24. had the avowed intention of seeking his removal from office. But In turn the Government became adamant that a Chief Justice Lutwyche was not destined to go the way of Willis in New South must be imported from England. On 18 July 1862 the Governor, Wales, Montagu in Tasmania, and Boothby in South Australia34. Sir George Bowen, transmitted to the Duke of Newcastle an He was mollified },y Cockle's skilful approach and diplomacy. The Executive Council Minute to that effect, and a request to the Chief Justice wro~e: Solicitor-General, Sir Roundell Palmer, that he might select a I have seen a motion on the Council papers which causes me suitable appointee25 . Bowen elaborated upon the type of man his considerabl~ pain. I should be sorry to lose the benefit of advisers were seeking: your learning, experience, and ability, and of the constant and It is difficult to exaggerate the importance of the selection of cordial cooperation you have afforded me since my arrival in a fit person to be the first Chief Justice of Queensland. A the Colony. Still I cannot think the public expression of your noble career of usefulness will be open before him, if he political opinions either prudent or likely to escape severe should succeed in winning the confidence of this new people. observation. I am told ... that opinions so strongly And I can. assure your Grace that their confidence will be pronounced as yours might affect your impartiality as a judge. easily and·speedily won by any judge of good personal Surely there might properly come from you a communication character, of common sense, and strict impartiality, diligent which would afford assurance on a matter relating to the in the discharge of his public duties, and animated by an administration of justice.35 . honest and intelligent zeal for the public welfare. Such a man Lutwyche, in acknowledging that "kind note", undertook to might set his mark on this community for generations yet to refrain from further public comment during his tenure of judicial arise ... [and] might become the father (so to speak) of office36. The action against him was in turn abandoned. Under the future jurisprudence of this great ColonY.26 Cockle's supervision and example a long period of judicial stability Meanwhile an Act to authorize an additional judge of the court followed, relations between the Executive and the Bench growing was passed27, the appointment being committed to the Governor- in harmony. In court there was great accord. Cockle publicly

Page Four Queensland Heritage ucclaimed Lutwyche as "my excellent colleague"37, while th: two even though his persistence might involve a conflict between judges, when constituting the Full Court, conc'!rred most amlCably the powers that be and him.49 _ a fortunate thing for litigants, as that tnbunal then had no It spoke for his equanimity that conflicts of that kind, thou~h they other members38. plagued other colonies, did not occur in Queensland dunng hIS Cockle's reputation as a judge was quickly established in the term of office. colony and at home in England. Chief Justice Erle, who k~pt Such a degree of detachment from politics was a rare quality in himself informed of his protege's progress, was soon able to wnte a colonial judge at that time. It followed that Cockle took a very of him: . strict and narrow view of statutes and would never assume powers I am confident that he has done 'what to justice appertams which he thought Parliament had not conferred, nor intended to according to law' with zeal and ability, setting a good example confer, upon the Courtso. So in Walsh v. Stephens, an important of the dignity and motives which become the offic~. . ... He pronouncement on corporate personality, he made it clear that "the set out in troubled waters - from the clash of leglslatlve and legislature does not seem to have shown much anxiety about the judicial powers - which were soon calmed by his discretion. preservation of limited liability, and I am not aware of any case I have had much knowledge of judicial men, and I am sure deciding that, in the interpretation of the articles, the judge is. to the Queen has never had a servant who more th?roughly lean to that meaning which will perpetuate it"sl. In the leadlllg earned every farthing of the wages he hoped to recelve.39 case of Bright v. The Attorney-General he declined to entertain a It was characteristic of Cockle, and of his scientific approach to question concerning entitlement to a deed of grant under the Crown the law, that he should strive for exactitude, accuracy and infallible Lands Alienation Act of 1868, for he considered sole jurisdiction justice in his decisions. Statistically speaking he succeeded. well, to have been reposed in the Governor-in-Council, not in the only two of his judgements being found at fault on appeal III the Supreme Courts2. At the same time, if he found jurisdiction vested whole of his fifteen years on the Bench4o. But according to Charles exclusively in that Court, he would not allow it to be exercised Lilley, his successor as Chief Justice, Cockle's pursuit of precision elsewhere, even though it caused the Court some inconvenience. sometimes gave the paradoxical appearance of weakness and In R. v. Registrar-General; Ex parte Roxburgh he said: hesitancY41. The reported decisions confirm that assessment. In Far be it for the Judges to desire to extend unduly the powers Win?; Wah v. Australasian Steam Navigation Company the Chief of the Courts of Law. If it were the intention of the Justice said: Legislature of the Colony to transfer the decision of questions Although it almost requires a microscope to discover what of realty to the Registrar-General, I do not know that the evidence there was to go to a jury, yet the Court are unable Court would make any great objection. It would relieve us to say absolutely that there was no evidence; and although, I of one of the most anxious and difficult classes of cases which confess, I have grave doubts myself whether there is any or come before us, for no class of questions gives me greater not, yet I cannot take the responsibility of saying there was trouble than those which are brought before me under the none.42 Real Property Act ... If, therefore, it becomes the wish of A similar instance appears in R. v. King, where the Insolvency Act the Legislature, and satisfactory to the public, that the whole 1874 was subjected to close analysis. The Chief Justice, using an disposal of the realty of the country should be left to the almost amusingly circular, and seemingly tentative, argument to Legislature and the Registrar-General, we should cheerfully justify his construction, observed that: resign the consideration of all such questions to them. The Assuming for a moment - which I do not assume, and, in Court, cannot however, find anything of that kind in the fact, I think the assumption ought not to be hastily indulged Act.s3 in - that this clause is based upon misconception of the In his attitude to precedent Cockle was less scientific. He did Common Law, I think it would be extremely dangerous for not frequently rely upon nor analyse prior authorities, though us to travel into the regions of conjecture, as we should were when he occasionally did so he brought much expertise to the we to pronounce on the effect of that misconception. 43 task. He preferred to settle cases on his own course of reasoning But, if such techniques gave the impression of uncertainty, the which proved to be an advantage in a Colony where many novel judge's character and conduct were entirely the opposite. Although roints arose for decisions4. Such a case was Patterson v. Australian suitors sometimes found his reasoning processes overburdened Steam Navigation Company which he disposed of on "broad with methodologY44, they were left in no doubt by his pragmatic principle", without"any reference to technicality"55. He expressed and concise conclusions as to the Court's decision4s. The his independent approach in R. v. Archibald where he held that community felt no anxiety about the due administration of justice, "we should, of course, give every consideration to cases decided for Cockle was fairly described as "an example to the world of a by eminent judges, but we are also bound to exercise judgement of righteous judge"46. our own"S6. Although respectful of English authority he was Reported cases also give much insight into his judicial attitudes. neither obsequious nor uncritical in his use of it. Speaking about He would not under any circumstances reflect upon legislative the state of the law concerning slavery he observed: policy nor the political course of governments. The role of the court, in his view, was that of interpreter and administrator of I confess that when it comes to the question of deciding upon the law. Any judicial reflections on the working of the law should the rights of a man to his liberty, we are called upon to be implicit in the application of unsatisfactory statutes or policies47. narrowly scrutinize the- 'old'.doctrines ... The state of the It was not, he thought, the function of a judge to make from the law might have escaped notice at home; but it ought not to bench explicit recommendations for reforming the law. So, he con­ escape notice here.s7 cluded, "however bad the law may be, the Court best does its duty With a scientist's zest for experiment he was at ease with and by rigidly enforcing it, and thus enabling its abuses to be perceived, readily adaptable to legal reforms. He would not allow precedent and leaving it to the Legislature to correct such abuses"48. At the or conservatism to obstruct the operation of a new law. So, in same time he was alive to the wider considerations of public construing the Real Property Act 1861, he rejected arguments policy which his office imposed upon him and he made it very presented to him that the system of the Act should be governed clear that he would never go along with government policy if it by the idiom and practice of the old mode of conveyancing: encroached upon judicial independence. In Ex parte Davenport he Although, of course, where such words as "dower, foreclosure, observed that: or redemption" occur in the Act, we must take notice of the No doubt there may be, and are, as alleged by the learned old doctrines regarding those words, or at all events so far counsel, some important public interests involved on their as they apply to the subject matter of the Act, still, I don't view of the case; but I think far more important public think we are at liberty in any case, to conjure old phantoms interests are involved in the judge keeping steadily to the merely for the purpose of aiding in the interpretation of parts performance of his duty, and not swerving one hair's breadth, of the statute.S8

Queensland Heritage Page Five Sir James Cockle. (Oxley Memorial Lihrary)

Page Six Queensland Heritage His approach to procedure was similar in many ways to his portion of the Act than to uphold its minutest observance66. view of precedent. It obviously appealed more to him that rules During Cockle's presidency of the bench he made several of practice be followed diligently. He was, however, willing to important pronouncements in cases affecting Australian be flexible and to bend his preference for precision in cases where Aborigines67 or South Sea Islanders. R. v. The Crishna68 was the the court should show mercyS9, or if there were a likelihood of first case referred to him, sitting as Judge in Vice-AdmiraltY69, injustice being caused otherwise60. But there was a point beyond under the Pacific Islanders Protection Act of 187270. That statute, which he would not go. No decision of his would ever render the commonly called the "Kidnapping Act", was formally for the administration of the law "rather a matter of chance than of strict "prevention and punishment of criminal outrages upon natives of rule"61. the islands in the Pacific Ocean". In particular it provided that It cannot be supposed that the modern reader of Cockle's judge­ no British vessel should carry native labourers from such islands ments finds in them much law of continuing interest. Most of unless the master had been duly licensed71. In default a severe his analytical or interpretative pronouncements were on matters penalty was imposed. It appeared in this case that the master of which passed into obsolescence long ago. But his judicial style can The Crishna was intercepted carrying, at their request, Malay and still be admired as a model. His Court Note Books, partly preserved Polynesian labourers, former crew members of the schooner Active in the Queensland State Archives62, reveal the clear and detailed which had foundered near the coast of New Guinea. He held no grasp of evidence and procedural points which was habitual with licence and an information was laid under the Act. The Chief him and could not be shaken even by the strains of travel and Justice adopted his usual policy of considering the effects of the climate in circuit cases. His ultimate judgement always displayed statute without regard to extraneous circumstances. In his view the fruits of careful thought and practicality. A celebrated example the informants had only to prove an unlawful carrying; intention was R. v. Heal63 where John Daniel Heal was called upon by quo was irrelevant72. Apart from extraordinary cases the Court could warranto to show his authority for exercising the office of alder­ not deviate from that position for: man of Brisbane Municipality. The Municipal Institutions Act of the Imperial Act is, and probably was intended to be, stringent. 1864 (28 Vic. No. 21) had required the returning officer at I cannot undertake to lay down beforehand limitations by llllU1icipal elections to prepare ballot papers, and to "deliver to the which justice or humanity might restrict its application. The p±esiding officer of each polling place so many of such ballot papers scorched prisoner who breaks from a burning prison, the signed by himself on the back thereof by a stamp or otherwise as master who, unlicensed, carries native labourers of the islands, shall be fully equal to the number of enrolled electors entitled and having rescued them from drowning, or imminent peril or at liberty to vote at such polling place". In the present case necessity, are exceptional cases. The present is one which I evidence was adduced that certain ballot papers from the Valley think comes within the letter and spirit of the Act.73 Ward were not signed by the returning officer, and that the duly Moreover, there was evidence from some of the islanders them­ appointed presiding officer had absented himself for an hour, selves suggesting that they had originally been kidnapped. That leaving an unauthorized person in charge of the poll. Heal was evidence was objected to, but the Chief Justice held it admissible: declared elected, but certain votes cast for him at that polling A Court which has to find its way to the truth through place were contested. The Chief Justice emphasized that there was obstacles foreseen ... by the Imperial Act74, could scarcely no suggestion of fraud or abuse of the statutory requirements; the altogether reject statements essential to the perspicuity of the matter was one of inadvertence only. Yet principles were at stake narratives of the ignorant and and uncivilized or half-civilized which might affect even parliamentary elections, so the case could coloured men who gave evidence ... Having watched the not be treated lightly. After drawing attention to the apparent demeanour of the coloured witnesses incessantly, ...I was intention of the legislature to guard against abuses, as in providing satisfied that their narratives were artless, their answers given for the locking of the ballot box and the security of the keys, the without regard to the party whom they might serve or injure, Chief Justice concluded: and that I might safely act on their evidence, accompanied by What relative weight the Legislature may have attached to the surrounding facts,7s these provisions, it is needless to say; but if we conceive that The offence was accordingly found to be proved and the ship the Legislature clearly relied upon the signature as a together with the unencumbered portion of its cargo were precaution, I think all we have to do is, without criticism, to condemned in satisfaction of the statutory penalty. carry out its intentions. The matter is the more important An earlier case of kidnapping, R. v. Coath76, came before the because, probably, the most important question of the day is Full Court in 1871 for consideration under common law principles. the mode of ascertaining the opinions of the citizens with The prisoner was charged with the abduction of South Sea regard to whom they consider the best men to represent their Islanders as they approached his vessel ostensibly to trade. They interests. For my own part, it is not withotft feelings of were forcibly transported to Maryborough and there liberated. On regret that I have come to the conclusion that this election a learned argument in defence by Lilley, Q.c., the very fact of their cannot stand. I feel strongly the results which may ensue, not being freed was enough to show that no offence known to English only in disturbing the peace of the corporation, but in taking law had been committedn. Kidnapping at common law he up the time and interfering with the avocations of the citizens, submitted, only arose where persons were ~aken from the prote~tion and the loss which the community sustains from so much of English law, or the Sovereign was deprived of a subject. Sir wasted time; but, nevertheless it appears to me that the plain James Cockle did not consider ,,his court bound to yield to the words of the Act are too strong to admit of a different principles of slavery because English Courts had in past years conclusion.64 recognized its existence in British dominions. His rationale was . Mr Justice Lutwyche concurred, but spoke with some personal humanitarian and practical, not based on any "narrow or technical mterest: principle": I am old enough to recollect the first election under the ~e must c<;>nsider whether one subject of Her Majesty is at Reform Act, and certainly a great many strange things were ltberty to flt .out a .vessel to sail amongst these apparently rumoured - and some came to light - in reference to the sav~ge and gUldeless lslanders, and seize them and appropriate working of the Act. And, therefore, when I see fresh things thelr property as appears to have been done in this case. It is intr?duced to my notice I am induced to suppose that the the more necessary that we should fix our attention on this Leglslature must have had some strong reasons for putting because it should be noticed that with the improved manner~ them in.65 and .greater knowledge of succeeding ages, the maxims of . He went on to conclude that it was the duty of the judges to preVlOUS ages are deviated from. .. . If once amongst these glve effect to the plain words of the Act without excessive [island] nations an opinion should get abroad that our law criticism of them. Mr Justice Lilley also favoured a literal reliance proceeded upon principles so inhuman that their rights could on the statute, thinking it much more dangerous to withhold any be violated with impunity by any man who may choose to

Queensland Heritage Page Seven sally forth to outrage them, I say that the safety of commerce that of Mr Justice Lutwyche. While the latter castigated the court itself and the blessings it maintains - the safety of our officers for laziness and neglect of duty the former had no complaint fellow-subjects and fellow-colonists - would be endangered; to make of them, for he considered their supervision to be outside and I think that in saying this I am only drawing an inference his domain93. Where Lutwyche made positive suggestions for that the Common Law itself would drawJ8 reform, such as advocating the appointment of additional Crown Mr Justice Lutwyche concurred in confirming the prisoner's Law Officers94, the Chief Justice, who volunteered little of conviction. substance, seemed diffident and non-committal. As in some of his Cockle was respected not only for his ability as a lawyer, but judgements his demeanour suggested weakness whereas in fact it also for his demeanour in court. As some of the foregoing cases was a sign of strength. Nothing would induce him to resign his have shown he was, so far as propriety allowed, considerate and detachment or to trespass into commentary on legislative policy. helpful to the litigants and witnesses who appeared before him. He He adhered to his view that it was for the government, not the managed to relieve proceedings of severe formality without losing judges, to initiate reforms in the law, even in the area of court his detachment so that "implicit confidence was felt in his intense administration. desire to administer justice with absolute impartiality"79. He also On the recommendation of Governor Bowen the Chief Justice tr~ated members of the legal profession with exemplary courtesy, was knighted in 1869. Bowen had made a similar recommendation bemg tolerant of the inexperience of new recruits whether they before Cockle's arrival on the grounds that the office needed came from an Inn of Court or were locally trained. According to strengthening by the stature and dignity of such an honour, and Sir Samuel Griffith, that kindliness "would never be forgotten by also: those who enjoyed it"8o. seeing that Imperial honours of this kind are now one of the Throughout his Chief Justiceship much of Cockle's time was few remaining conspicuous links between the Crown and the taken up w~th court administration. In the early years he usually Australian Colonies, and Queensland is the only Colony in conferred wIth Lutwyche every morning to settle practice problems this group where no such honours have as yet been conferred, and unusual points of law81. Drafting new rules of court was a there is a growing desire in this community that a mark of constant burden which Cockle undertook with some reservations. the favour of the Sovereign should be shown to Her Majesty's "It takes a great deal of trouble", he said, "and requires a great loyal subjects here in the person of, at least, their Chief deal of care, even after [the rules] are in print, to look over them Justice.95 and contemplate their effect"82 . Yet that task was simple in No action was then taken in the Colonial Office, perhaps because comparison to the consolidation of the statute law. For Cockle of the illness and retirement of the Duke of Newcastle. On his that work began in a consolidation of the criminal law in 1865 83 own retirement at the end of 1867 Bowen sought no personal and found its result in the Acts Shortening Act of 186784 and favour beyond the bestowal of knighthoods upon the Chief Justice other measures. and the President of the Legislative Council96. This time his The idea of a general consolidation of Queensland's Acts was representations were successful and rendered the more cogent by ~~a~ of Charles .Lill~y, when Attorney-General, and accordingly the ability and sense of duty which Cockle had brought to his thIs body of legIslation must stand as one of Lilley's memorials"85. office. He succeeded in persuading the judges to serve with him as commissioners to undertake the task which he described as "not to produce a code of the law, but to bring up the law in the way it has been done in Victoria, in South Australia and in other colonies - to bring up under one great head th~ various Acts relating to the particular branches of the law"86. He claimed that Cockle had offered his assistance with "great pleasure", but Pring, a former Attorney-General, was dubious because "it took the Chief Justice a long time to draft the small portion of the law I consolidated"87. On this occasion there was no delay: the work was largely finished in twelve months. Lilley reported to the House that, although it had been an arduous assignment, "almost the whole of the labour has been performed by His Honour the Chief Justice, with clerical assistance"88. On 10 June 1869 a Select Committee of the Legislative Assembly was appointed to inquire into and report upon "the Organization, Constitution, and Cost of the Supreme Court and other offices connected with the administration of justice in the Superior Courts"89. The Chief Justice, as the Committee's first witness, gave defensive and cautious evidence. When pressed, for example, to state whether he approved of executive appointments to the court's ministerial offices without the consent of the judges he replied: "That is a delicate question for me to answer and might imply a censure on those who make the appointmen'ts"9o. When asked whether there were sufficient officers to administer the court satisfactorily he was evasive: "That would rather be for those who are familiar with the details of office routine to say. So far as I am aware of, every order that the judges make is carried out"91. But, on questions suggesting direct intrusion by the executive upon judicial independence he was more forthright: Do you find that the power exercised by the Attorney-General over the officers of the court, interferes with your decisions or the working of the court? No. I think the judges would hardly allow it .to interfere; for they would, of course, punish any act amountmg to a contempt.92 Altogether the Chief Justice's evidence was in marked contrast to Sir James Cockle (By Courtesy of the author)

Page Eight Queensland Heritage Supreme Court, Brisbane. (Oxley Memorial Library)

Out of court the Chief Justice led a fairly withdrawn life, For the whole of his judicial career Cockle pursued his scientific centered around his home "Oakwal" and his large family. In 1874 interests most actively. In 1863, the year of his arrival in Brisbane. he wrote to Sir Alfred Stephen, then recently retired as Chief he was elected President of what was then called the Philosophical Justice of New South Wales: Society (later the Royal Society) of Queensland. He held the office for nearly all of his stay in the colony but from 1868 onwards Will you kindly present Lady Cockle's warmest remembrances he attended only eight meetings over the course of ten years. In to Lady Stephen. If the former is a bad correspondent it may 1875 the annual meeting resolved that the little interest latterly be an extenuating circumstance that her hands are full of shown by the President was inimical to the Sociey's well-being. Yet work, i.e. we have eight children (the eldest in England), and he was re-elected, the association of his name probably being of those here six, including twins, are under 13 years of age thought too influential to lose. As one commentator has suggested, I believe.97 "it seems unlikely he would have continued in office unless persuaded it was in the best interests of the Society, but in However, Sir James by no means ignored the community, being retrospect one wonders to what extent the lack of an active president active in educational and charitable work, notably as Chairman of contributed to its decline"loo. In recognition of his standing Cockle the Trustees of Brisbane Grammar School from 1874 to 1877, and was elected Fellow of the Royal Society in 1865, and an honorary President of the Brisbane Hospital for some time96. He gave the or corresponding member of various learned societies. He wrote lie to his reputation as a recluse by the enthusiastic part he played many papers, and published over eighty of them, expounding his in London clubs after his retirement and return to England. He own scientific research. was a convivial member of the Garrick and Savile Clubs and Treasurer of the Savage Club for several years. Likewise he took His studious tastes extended to metaphysics and theology but his an energetic part in the Masonic Order, becoming Worshipful great attainments were as a mathematician: Master of an English Lodge in 1889. Griffith correctly assessed that Cockle's aloofness in Brisbane was deliberate and "probably, He wrote on the Indian Astronomical Literature, on the Indian in the special circumstances of the colony an advantage, in that it Cycles and Lunar Calendar, on the date of the Vedas and prevented any imputation, always difficult to avoid in a small Jyotish Sastra, and on thc:Ages of Garga and Parasara. He community, of undue friendship between judges and suitors"99. also published four elaborate memoirs on the Motion of Fluids,

Queensland Heritage Page Nine and some notes on Light under the Action of Magnetism, but REFERENCES in general he confined himself to problems in pure 1. See generally]. M. Bennett. - "The Extension of Courts mathematics. His analytical-researches were concerned for the to Country Districts"; in Royal Australian Historical Society most part with two subjects, Common Algebra and the Conference 1964, Addresses and Papers. p. 13. Theory of Differential Equations. In Algebra he worked 2. The Brisbane Courier, 14 Nov 1931. p. 21; Sir Littleton mainly among the higher equations, and for many years his Groom. - "Brisbane's First Circuit Court". labours in this department were inspired and directed by the 3. ]. D. O'Hagan. - "Fragments of Legal History in Queens­ hope of being able to "solve the quintic", or, in other words, land from 1853 onwards"; in Historical Society of to express a root of the general equation of the fifth degree Queensland Journal, vol. 5, no. 2 (1954). p.907. by a finite combination of radicals and rational functions ... 16 Vic. No. 41. (but without success). Not confining himself to the beaten 4. track, he pushed his way into unexplored regions, and 5. 19 Vic. No. 31. succeeded in bringing to light important relations and analogies 6. 20 Vic. No. 25. The Act was an important forerunner of between algebraic and differential equations ... Out of (one) separation; see generally B. A. Knox. - "Moreton Bay germ has grown the theory of Differential Resolvents. To Separation"; in Historical Studies, vol. 14, no. 56 (1971). Cockle also belongs the honour of being the first to discover pp. 561-78. and develop the properties of those functions called Criticoids 7. For a useful note on Samuel Frederick Milford see The or Differential Invariants ... His work was eminently Brisbane Courier, 26 Dec 1931. p. 7; Groom. - "The initiatory. He started theories, but left others to elaborate Supreme Court of Moreton Bay". and perfect them.lo, 8. W. R. Johnston. - "A Study of the Relationship between the Law, the State and the Community in Colonial Queens­ The qualifying pension period for judges under the Supreme land" (M.A. Thesis, Univ. of Queensland, 1965. pp.16-17). Court Act of 1874 was fifteen yeatsJ02. Cockle completed that term 9. 9 Mar 1859. on 23 February 1878. He had just turned 59 and was constitution­ ally robust, not having once been absent from judicial duties for 10. The Brisbane Courier, 24 Oct 1931. p. 21; Groom.-"Mr. illness or other reason 103. He applied for, and was given, one year's Justice Lutwyche". leave, without committing himself to continuance in office. He 11. "Barristers and Advocates Sworn Admitted and Inrolled to stepped down from the bench on 25 June 1878 and his resignation Practise in His Majesty's Supreme Court of New South was accepted a year later. He possibly felt that his services had Wales", 1824-76 [N.S.W. State Archives]. been, to some extent, taken for granted. Nearly ten years before, 12. The precise date of his becoming a Queen's Counsel has Lutwyche had publicly agitated the anomalous inferiority of the not been discovered, but John Fletcher Hargrave ranked Chief Justice's salary, asserting that his rank required him to have after him in seniority. Commission of Hargrave in Hargrave a larger remuneration than the puisne judge - certainly not lesslO4. Papers [Mitchell Library MSS 976]. Yet the government took no action until 1874105. Moreover, the 13. Macarthur Papers [Mitchell Library A2924] , vol. 28. fol. court was expanding and the administrative burden was growing 283. By contrast, the Rev. Mr Wilson considered Lutwyche with it. Lilley and Edmund Sheppard had been elevated to the to have influenced a moral revival in Brisbane, The Moreton bench in 1874, due largely to the prompting of the government by Bay Courier, 11 May 1861. The judge became a lay reader in the Church of England and a noted synodsman, Groom. the legal profession,06. Practitioners were also taking the j 11dges to task on matters of administration107. Cockle probably reasoned - "Mr. Justice Lutwyche", lac cit. that, having finished his cause of establishing the court he should 14. Johnston, lac cit., especially at pp. 93-114. take his well-earned ease. ' 15. The Moreton Bay Courier. 16. R. v. Pugh (1862) 1 Supreme Court Reports (Queensland) In the press the principal reaction when he resigned was to [hereafter cited Q.S.c.R.] , 63. speculate as to his successor. There was some support for 17. Macarthur Papers IMitchell Library A2924] , vol. 28. fol. 633 Lutwyche, then acting Chief Justice108 , and the name of Samuel at 635. Griffith was put forward,09. But the Governor had already taken 18. Votes and Proceedings of Parliament (Queensland) rhere­ action to appoint Lilley to the vacancy I 10. The Brisbane Courier after cited V & P], 1860. p. 477. rightly concluded that: 19. By the Supreme Court Administration of Justice Bill, 1860. the appointment of Mr. Lilley is likely to be a decidedly 20. 25 Vic. No. 13 - section VII and Schedule. That popular step, much more so than the alternative that was open guarantee was perceived by the Duke of Newcastle with to the Cabinet of allowing Mr. Justice Lutwyche to enjoy for "great satisfaction" though he thought the circumstances the probably brief remnant of a long and honourable service "a calamity to the Colony", Legislative Council Journals (Queensland), 1860-62, Vol. IV, No.5. p. 1. the dignified position of Chief Justice. I 11 21. 25 Vic. No. 13 - section II. Cockle lived out his retirement in England for sixteen years amid 22. Ibid., section I II. mounting impatience in Queensland at the extent of his pension 23. Ibid., section IV. entitlement I 12. Apart from that, he was at his death on 27 January 24. Bowen to Newcastle, 16 Aug 1862 [Q.S.A. GOV123, 1895 but little remembered in the Colony"3. Yet his influence as Despatch 47]. "an Australian judge" 114 could not die, for he had left a lasting 25. Premier ~erbert, then in London, personally pursued the impression on the law in Queensland. He had formed, "by precept ?1att~r ;:l1th Palmer who "readily accepted the trust confided and example, what were to be the future traditions of the court In hIm , Herbert to Macalister 24 Nov 1862 [Q S.A. and earn [ed] for the bench that respect which ... was in th~ LWOIA4]. , . first instance acquired, and can only be maintained by the personal 26. Bowen to Newcastle, 18 Jul 1862 [Q.S.A. GOV123, qualities of the Judges""5. The greatest of Cockle's qualities was Despatch 37]. 27. 26 Vic. No.9. his ability to get on with other men in a society often torn by 28. Herbert to Macalister, 24 Nov 1862, lac. cit. politics, party and personality. More than that, he had the gift of 29. soothing conflicts and winning co-operation. As he had once Palmer to Newcastle, 25 Nov 1862, copy in Newcastle to Bowett~Q.S.A. GOV13, Despatch 42]. For a comment replied to a light-hearted suggestion that he stand for parliament, by Cockle on his practice before Erle, C. J., see Porter v. his policy speech would have been: "Gentlemen, I am in favour Municipality of Brisbane (1863) 1 Q.S.c.R., 103 at 106 of making things agreeable all round"116. Cf. Telegraph (Brisbane), 30 January, 1895, 4. .

Page Ten Queensland Heritage 30. For details of his early life and family see Australian 55. (1868) 2 Q.S.c.R., 9 at 10. Dictionary of Biography, vol. 3, p. 435. 56. (1869) 2 Q.S.c.R., 47 at 51. 31. Observation of Sir Samuel Griffith, 12 Feb 1895, }. J. 57. R. V. Coath (1871) 2 Q.S.c.R., 178 at 183-4. MacGinley Cutting Book No. 3 [Oxley Memorial Library] 58. Trust & Agency Company V. Markwell (No.2) (1874) 4 p.213. Q.S.c.R., 50 at 52. 32. Australian Town and Country Journal, 2 Dec 1876. p. 893. 59. e.g. Miskin V. Hutchison (No.1) (1878) 5 Q.S.c.R., 82. 33. Johnston, loco cit. p. 111. 60. e.g. Kirk v. The Commissioner for Railways (1876) 4 34. See the articles on John Walpole Willis; in Australian Q.S.c.R., 160 at 161. Dictionary of Biography, vol. 2, p. 602; Algernon Sidney 61. R. v. Tommy and George (1877) 1 Queensland Law Montagu, ibid., p. 246 and Benjamin Boothby, ibid., vol. 3, Reports (ed. Beor), part 2, 14 at 17. p. 194. 62. Q.S.A. SCT/AC 10-12. 35. Cockle to Lutwyche, 10 Aug 1863, enclosure to Despatch 63. ( 1875) 4 Q.S.c.R., 104. 48 [Q.S.A. GOV123]; also published in The Courier, 64. Ibid., at 108. 18 Aug 1863. p. 5. 65. 1bid., at 109. 36. Lutwyche to Cockle, 10 Aug 1863, enclosure to Despatch 66. Ibid., at 111. 48 [Q.S.A. GOV/23]. 67. e.g. R. V. Jimmy (1875) 4 Q.S.c.R., 130. 37. Porter v. Municipality of Brisbane, loco cit., note 29; c/. 68. (1873) 3 Q.S.c.R., 131. See also A. G. Davies. - "The his observation before a Select Committee on the Pacific Islands"; in Historical Society of Queensland administration of justice in 1869, "My learned colleague. Tournal, vol. 3, no. 3 (1944). 143 at 170. Mr. Justice Lutwyche, whose experience in the colonies i" 69. In 1869 Cockle remarked that: "The Governor is, I believe, better than mine, would probably give you better the Vice-Admiral; but whether he could be called Chief of information", V & P,1869, Vol. 1. p. 577. the Admiralty Court, I am not prepared to say ... The 38. R. v. Wilkie (1869) 2 Q.S.c.R., 33; but note that section business of the Vice-Admiralty Court during my term of II of 26 Vic. No. 9 prescribed that, in the event of judicial offiee has been so trifling, I could not say much from opinions differing, the Chief Justice's view should prevail experience", V & P, 1869, Vol. 1. p. 575. and be the judgement of the court. That was in force only 70. 35 & 36 Viet. C. 19. while the bench was composed of two judges but, even with 71. Ibid., sections 3 and 9. an enlarged tribunal, there remained regular uniformity of 72. ( 1873) 3 Q.S.c.R., at 136. opinion. Any differences were usually inconsequential, e.g. Miskin v. Hutchison (No.2) 1878 5 Q.S.c.R., 85 per 73. Ibid., at 138-9. Cockle, C. }.: "Although our views are not precisely 74. Sec. 14 which related to the depositions of witnesses identical, yet we think it better to give a prompt judgement ignorant of the nature of an oath. than to delay for the purpose of reconciling differences 75. (1873) 3 Q.S.c.R., at 137. C/. R. V. Tommy & George, which after all are but trifling in themselves and do not lac. cit. affect the result at which we have arrived", at 91. 76. ( 1871) 2 Q.S.c.R., 178. See also Davies, loco cit. pp 169-70. 39. The Rev. Robert Harley, Obituary Notice of Sir James 77. 2 Q.S.c.R., at 179. Cockle in Proceedings of the Royal Society, 1896, vol. 59, 78. Ibid., at 182 and 184. xxxi. 79. Harley, loco cit. xxxiii; opinion of Sir Samuel Griffith. 40. Harley, loco cit. xxxii. J. Colwell red.]. - The Story 0/ 80. Unidentified press cutting dated 12 Feb 1895 in ]. ]. Australia. 1925, Vol. 6. p. 65. It is possible that the two MacGinley Cutting Book No. 3 [Oxley Memorial Library I instances may have been the Privy Council's reversal of p.213. the Full Court in Davenport V. The Queen (1877) 5 81. But during court vacations they saw "very little" of one Q.S.c.R., 55 and Smith V. The Queen (1878) 5 Q.S.c.R., another, evidence 0f Lutwyche, ].;V & P, 1869, Vol. 1. 72. p.582. 41. Harley, loco cit. 82. Ibid., p. 579; evidence of Cockle, C. ]. 42. (1868-9) 2 Q.S.C.R.,36 at 38. 83. Referred to by Griffith, unidentified press cutting in J. J. 43. (1876) 4 Q.S.c.R., 144 at 146. MacGinley Cutting Book No. 3 [Oxley Memorial Library] 44. e.g. Brandon V. Bouell (1872) 3 Q.S.c.R., 12; Paul V. p.213. Buttenshaw (1877) 1 Queensland Law Reports (ed. Beor), 84. 31 Vic. No.6. part 2, 4 at 5. 85. A. A. Morrison. - "Charles Lilley"; in Journal of the Royal 45. e.g. Wood V. Corser (1877) 5 Q.S.c.R., 6. An exception Australian Historical Society, vol. 45. (1959).1 at 14. perhaps lay in his charges to juries, Harley, loco cit. xxxiii. 86. Queensland Parliamentary Debates, 1866, Vol. III. p. 106. 46. Harley, loco cit. xxxii. The work of consolidation previously undertaken in other 47. R. V. Heal, Swinborne Relator (1875) 4 Q.S.c.R., 104 at Australian Colonies is discussed in J. M. Bennett­ 107. "Historical Trends in Australian Law Reform", University 48. R. v. Coath (1871) 2 Q.S.c.R., 178 at 181 and cf. R. V. of Western Australian Law Review, vol. IX (1970). 211 Heal, loco cit. at 108. at 216. 49. In re Caveat No. 780 (1873) 3 Q.S.c.R., 121 at 123. 87 Queensland Parliamentary Debates, 1866, Vol. III. p. 108. ~" [bid., 1867, Vol. V. p. 543. Lilley later remarked of Cockle 50. Noagues v. Hope (1874) 4 Q.S.c.R., 57 at 60; Hobbs V. The Municipality of Brisbane (1876) 4 Q.S.c.R., 214 at "He rendered great service to the Colony by a consolidation 217. of large portions of the statute law, especially of the 51. (1873) 3 Q.S.c.R., 98 at 107. criminal law, the mercantile law, constitutional law, and of the procedure of the courts", Harley, loco cit. xxxii. 52. (1873) 4 Q.S.C.R., 28 at 32. 89. V & P, 1869, Vol. 1. p. 569. 53. (1868) 1 Q.S.c.R., 201 at 204. 90. Ibid., p. 577. Cf. the evidence of Lutwyche, J; his reply 54. e.g. Porter v. Municipality of Brisbane, loco cit., 103 at 106, to a similar question was "certainly not", and he went on "We will be spared the painful notoriety of having been to say that it was "highly unsatisfactory that the judges the first Court probably to mandamus one of its own should not have exclusive power of appointing ministerial judges"; cf, In re Caveat No. 774, Ex parte Hodgson ( 1873) officers", at 581. 3 Q.S.c.R., 142 at 155. 91. Ibid., p. 579.

Queensland Heritage Page Eleven 92. Ibid. present state of business in the Supreme Court and to 93. Ibid., pp. 582 and 577. impress on them the necessity of providing for the removal of the present temporary obstruction of business and for an 94. Ibid., p. 587. increase of the judicial strength of the Court by an addition 95. Bowen to Newcastle, 18 Jul 1862 [Q.S.A. GOV123, to the number of judges", Minutes of a meeting of "Mem­ Despatch 37]. bers of the Bar and Solicitors and Attorneys", 14 Feb 1874 96. Bowen to Buckingham & Chandos, 31 Dec 1867 [Q.S.A. [Q.S.A. CRS/334]. GOV125, Despatch 67]. 107. e.g. Minutes of a meeting of the profession, 5 Aug 1876 97. 23 Dec 1874, "Public Men of Australia" [Mitchell Library [Q.S.A. CRS/334]. A68] p. 202. 108. The Brisbane Courier, 24 June 1879; letter by "Junius". 98. Australian Town and Country Journal, 2 Dec 1876. p. 893. 109. Ibid.; letter by "The Right Man in the Right Place". 99. Harley, loco cit. xxxiii. 110. Kennedy to Hicks Beach, 14 Jul 1879 [Q.S.A. GOV/n, 100. E. N. Marks. - "A History of the Queensland Philosophical Despatch 69]. Society"; in Proceedings of the Royal Society of Queens­ 111. 21 June 1879. p. 4. land, vol. LXXI. (1959). 17 at 21. 112. O'Hagan, lac. cit. p. 919. 101. Harley, lac. cit. xxxiv-v. 113. Opinion of Sir Samuel Griffith, unidentified press cutting 102. 38 Vic. No.3, sec. 5. in J. J. MacGinley Cutting Book No. 3 [Oxley Memorial 103. The Brisbane Courier, 31 Jan 1878. p. 2. Library] p. 213. 104. V & P, 1869, Vol. I. p. 587. 114. Cockle to Stephen, 23 Dec 1874, "Public Men of Australia" 105. Supreme Court Act 1874, 38 Vic. No.3, sec. 4. His salary [Mitchell Library A68] p. 202. was thereby increased to £2,500. In 1865 Parliament had 115. Sir Samuel Griffith quoted in Harley, op. cit., xxxiii. rejected without debate a motion "to consider introducing" Cf. Telegraph (Brisbane) 30 January, 1895, 4 : "No com­ such a Bill, Queensland Parliamentary Debates, first series, munity could desire to build up their series of chief justices vol. 2, 537. upon a more upright and steadier foundation stone than the 106. A deputation had been appointed from the profession to late Sir James Cockle". approach the government and "represent to them the 116. Harley, Ibid.

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