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THE NEWSLETTER OF THE SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 7 • DECEMBER 2004

History reports itself The Lives of

While the year may be rapidly drawing to a close, there Australian is still much activity happening on the publishing front. Chief Justices Following on from the successful third annual Forbes Society lecture, the Forbes Society in conjunction with the Council of Law Reporting for New South Wales will Dr John Bennett continues his remarkable project, publish Dowling's Select Cases, as edited by Tim Castle Lives of Australian Chief Justices with the publication and Bruce Kercher. Chief Justice Spigelman AC will of Sir Henry Wrenfordsley: Second Chief Justice of supply the foreword. Details as to the release of this Western Australia 1880-1883. publication will be available in the New Year. This issue of the Forbes Flyer contains an extract A further development in legal history is the Macquarie discussing Sir Henry Wrenfordsley's appointment Law Monographs: Studies in Law and History, to be as second Chief Justice of Western Australia. edited by Dr Andrew Buck of Macquarie University, and published by Australian Scholarly Publishing. The first In Professor Roy M. Mersky's words (in the Foreword title in the series will be The Poor Man by A.R. Buck and to the book): Nancy E. Wright, and will be available in March 2005. If the life of the law has not been logic, but Dr Buck has advised that the monographs will focus on rather experience, then judicial biography has topics such as legal biographies and the historical a great deal to tell us about the law, and in development of substantive law. Comparative legal particular about its historical development. historical studies, both inter-colonial and international, This is especially true during a nation's are also encouraged. Submissions to this series should formative stages, when such bedrock ideals as be directed to: the rule of law, the separation of powers, and Dr Andrew Richard Buck the independence of the judiciary could not be Director, Centre for Comparative Legal History taken for granted. In such an unsettled context Division of Law a judge's work can have a defining influence Macquarie University on the direction of legal history. ... In this NSW 2109 volume of the series [Lives of the Australian E-mail: [email protected] Chief Justices] Dr Bennett turns his attention to Sir Henry Wrenfordsley, the second Chief For those of you who are keen readers with a little spare Justice of Western Australia from 1880 to 1883 time during the summer break, John Bennett's latest and again (as Acting Chief Justice) in 1890 and release in his Lives of the Australian Chief Justices series 1891. ... Dr Bennett's other subjects to date published by Federation Press is Sir Henry Wrenfordsley: were ... serious, firm, talented, and dedicated Second Chief Justice of Western Australia 1880-1883. judges. ... Unfortunately, in the course of this Federation Press have supplied us part of the foreword biography of Sir Henry Wrenfordsley, to the book and an extract. Dr Bennett concludes that he cannot say The Forbes Society wishes its members a happy and safe anything analogous about him. Christmas and New Year. Members of the Forbes Society will be interested to note that J.M Bennett's biography of Sir Francis Forbes is also published in this series. Catherine Douglas Editor continue to page 2 THE NEWSLETTER OF THE FRANCIS FORBES SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 7 • DECEMBER 2004

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From Sir Henry Wrenfordsley: Second Chief Justice of Western Australia 1880–1883, by J.M. Bennett, Chapter 3 “Three Years in Western Australia”, pages 25–30

The unexpected death, on 21 persistent nuisance. Despite his limited one of Her Majesty's Judges. Instead, November 1879, after a very brief legal ability, had he conducted himself he and his family were pushed into illness, of Sir Archibald Burt, Chief in Western Australia with the same quarantine "without luggage, on a Justice of Western Australia, came as a professionalism Burt had brought to barren island", quite indiscriminately shock to that Colony. He had been the the court, Wrenfordsley might have with the other passengers.6 Worse first Chief Justice, and sole judge, since remained Chief Justice, perhaps for were the financial consequences. He 1861. The character of the Supreme 20 years, and been respected as a was kept out of the full salary that Court reflected his own standing as a great contributor to the Colony's would accrue only on his entering lawyer of distinction, committed to development. Although his judicial upon his office, and charged £40 for running the court and administering performance in Western Australia was the detention of his party. justice in a highly professional way.1 the best of his various colonial Ego and bank balance equally bruised, postings, his term of office was brief. While the Colonial Office received the he arrived in Perth in a choleric frame His downfall was due wholly to himself news, with regret, on 12 January 1880, of mind. A local observer perceived – his exaggerated estimation of his it was relieved that a vacancy was him to be "a small man, aged, clean own importance, coupled with a created into which the importunate shaven and voluble".7 Wrenfordsley compulsive meddling in executive Wrenfordsley might be placed and, was gratified, however, to be received politics, and a consistent inability to with any luck, at such a remote most graciously at Government House live within his means. outpost, be forgotten. Wrenfordsley by the newly installed Governor Sir accordingly received his telegram, In 1880, needing no further William Robinson. A fellow Anglo- asking how quickly he could proceed encouragement from the Colonial Irishman of a cultured disposition, to Western Australia.2 His acceptance Office, he sailed for Albany in the being "associated with musical, literary was taken for granted, and Governor Bangalore with his constant travelling and educational groups",8 Robinson Ord was advised in Perth that companions – his sister Louisa, his struck up an accord with the new "Wrenfordsley, Advocate General in cousin Elly Finch, and probably his Chief Justice that developed into Mauritius is appointed Chief Justice "nephew" Hatton Richards (of whom enduring friendship. Robinson was and will shortly arrive". A warrant for more presently).4 The Bangalore called a competent Governor with wide Wrenfordsley's appointment was at Galle in Ceylon, with serious experience in colonial administration, hurried to him at Alexandria.3 consequences. Some passengers particularly in the West Indies. While contracted measles there, and one died usually a good judge of men, his For the first time in his life he had the from the disease.5 It was more galling affinity with Wrenfordsley can be world at his feet. The office of Chief to Wrenfordsley to find, on arriving in explained only by the skill of the latter Justice he had craved so much was his. King George's Sound, that he would in ingratiating himself, throughout his And all he had done to deserve it was not receive the stately reception due to career, with many people of influence. to make political friends and be a

1 See generally, J.M. Bennett, Lives of the 3 Colonial Office to Ord, 23 January 1880, ibid., at 5 West Australian, 9 March 1880, 2. Australian Chief Justices – Sir Archibald Burt f. 192; confirmed by despatch of even date, ibid., 6 Wrenfordsley to Derby, 20 November 1883, (Sydney 2002). at ff 193, 193a, 194; Inquirer, 4 February 1880, 3. S.R.O.(W.A.), C.S.O. 3098/03: minute paper 851/84. 2 Minute paper, C.O. 18/191, f. 185. 4 See below, text following n. 101 and n. 127; and 7 Hillman, "Diary for 10 Years", quoted, Russell, 207. Ch. 6, text following n. 15. 8 (1976) 6 A.D.B. 50.

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Wrenfordsley was an excellent social Burt, of whom he knew nothing, and duty, however painful the discharge of companion who could engage in he declared that, when his own time that duty may prove", Wrenfordsley, as intelligent yet entertaining conversation came to depart, "I desire in the end "the mere instrument of the law ... in superior company. He looked the to leave behind me the respect and assumed the black cap", which added part, and his airs and graces – ever esteem of this community".10 Those greatly to his self-importance. He conspicuously displayed – made him were the very attributes he would consigned the prisoner to the gibbet, seem convincing. not earn for himself in Perth: and his holding out no hope of mercy: which departure would occur much sooner counted for nothing with Thompson That was the pose he struck in public than he could then have foreseen. who "appeared quite unconcerned".13 on his first appearance as Chief Justice in Perth. He cut a grandly patronizing For the occasion, many magistrates The Chief Justice persisted in using figure: an English judge, an emissary of were seated at the bench, and their the court to instil a sense of dramatic Her Majesty herself, come to dispense representative congratulated the new excitement into criminal trials, and, the benign blessings of British justice Chief Justice. Wrenfordsley replied as arbiter of life and death, to preach to a dark and lonely corner of Empire. that, in a colony like Western Australia, moral values to the community.14 He He regarded the court as a theatre and with so scattered a population, "there reinforced those values by imposing himself as the leading actor. He used is no office connected with the sentences at the highest scale. For every occasion to deliver exhortations Government which is of so much example, in R. v. O'Grady, in 1881, to the community as if he were importance as that of a magistrate". the Colonial Office noted that "the custodian of the social conscience. He was particularly well qualified to prisoner does not appear to have been Taking his seat as Chief Justice for the know, because "I come from a colony convicted on very strong evidence, and first time on 7 April 1880, he postured in which everything centred on the the sentence is a severe one".15 as if a great celebrity, even though magistracy, and in my office as Typically, in sentencing O'Grady to Acting Attorney-General G. W. Leake, Procureur General I was, ex officio, 20 years' penal servitude for the Q.C., seemed oblivious to the fact. the chief of the magisterial body".11 manslaughter of a Chinese cook on a Leake, offering a few welcoming vessel of which O'Grady was master, Another occasion to display his words, wondered at the isolation an the Chief Justice said, dismissively: theatrical qualities occurred soon English barrister must feel on being afterwards. William Thompson was This colony is entering upon a separated from "the ennobling tried for and found guilty of rape. new career and it must go forth intercourse with the English Bench and The Chief Justice pronounced an to the public that the law will Bar – the most highly cultivated and inevitable death sentence, preceded uphold the case of the weak as intellectual body of gentlemen in the by a sanctimonious discourse for the well as that of the strong; and world".9 The innuendo was plain that, edification of prisoner and court alike. you may take it with you, when from the outset, the colonial Bar I see you no more, that, in regarded the new Chief Justice as an In England, there is a great deal inculcating that lesson, I deeply outcast from that select English of crime, but much of that crime regret the duty you have cast company, as, of course, he was. comes from poverty. Poverty upon me. But I am powerless brings drink, and drink brings Undeterred, Wrenfordsley offered in the matter.16 crime. I have seen many a fine pompous platitudes. He came to fellow standing in the dock, in Only a strong recommendation to them, he said, "with a moderate England, suffering almost as you mercy by the jury had saved the share of experience in our profession", suffer, and yet he suffered simply prisoner from a life sentence. having also "held two important from the evils brought on by appointments, and ... served under Wrenfordsley constantly addressed drink. But there is no such excuse two distinguished Governors". His anyone who might be interested on in this colony.12 sole object in life, he added, was to the sensitivity he felt at being sole perform his duty and to sustain the Protesting that he had "nothing else judge, a perception that had not dignity of the Bench. He presumed to to do but to pass the sentence of the troubled the robust and prompt pay tribute to the late Chief Justice law" and that he must "fulfil [his] judgements of his predecessor

9 West Australian, 9 April 1880, 2. 13 Ibid.; for a comparable case, R. v. Li Ki Hong, 15 Minute paper, C.O. 18/196, f. 40. id., 4 April 1891, 5, 6. 10 Ibid. 16 C.O. 18/198, at f. 493. 14 For example, R. v. Kelly & Bailey, id., 11 Ibid. 9 April 1880, 3; R. v. Ah Ket, id., 9 January 1883, 2; 12 Id., 9 April 1880, 3. R. v. Jumbo, id., 9 January 1883, 3.

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Sir Archibald Burt. In Von Bibra v. been described as a hard one. But the thrift, and he thought the working Director of Public Works, in 1882, the court had its duty to perform: men of Perth wanted method in their Attorney-General applied on the industry".21 He was the last person to I wish the commercial community Director's behalf for the entry of a be delivering homilies of that kind. to understand, that if a man owes non-suit on the ground that a jury money, he has no right to resist It was accordingly impossible for verdict against the Director had been the payment of that money, and bankruptcy matters in the Supreme contrary to the weight of evidence in doing so, to put his debtor [sic] Court of Western Australia to proceed and that the jury had not been to the expense and to incur the with any objectivity before a sole judge impartial, being predisposed to find inconvenience of a law suit, and who was insolvent. An alarming against a government instrumentality. then, if there is a judgement example was In re Kirkup's Bankruptcy, Wrenfordsley, irritated at the challenge against him, immediately in 1882. Wrenfordsley rebuked the to his own directions to the jury at afterwards to answer it by filing a trustee for making remarks to creditors trial, demurred – "my duty is to keep petition in bankruptcy ... The law that appeared to reflect on the court. my mind as free as possible from all of bankruptcy in this colony is not "If he does that again", Wrenfordsley popular impressions", he insisted. The what it ought to be, and it will roared from the bench, "I will commit following exchange then occurred: not be my fault if it is not him for contempt of Court; I will The Attorney-General: .... a single amended.19 indeed. I will not allow any quarrels Judge in a colony like this has a with the Court as to its decisions". He The commercial community of Perth far more responsible and arduous was quite satisfied that the bankrupt were not yet to know that Thomas task to perform than a single had been ill-used by the trustee – Bailey & Co., of , had obtained Judge in England, being, as he is, "this poor man ought to have had his judgement against Wrenfordsley in the the sole repository of justice ... discharge long ago. The Act was never City of London County Court for a debt intended to be used as a weapon of His Honor: And you would cast of £15, before he left for Mauritius. oppression or persecution".22 upon him a duty of this delicate They pursued him there and in Perth character – that because a case is and had received from him many Septimus Burt, for the trustee, against the Government, he must devious letters promising payment, rejoined, "Your Honour seems to think apply certain legal principles for which promises were never honoured. that the Act was passed for the benefit the protection of the Government By 1881 they pressed their claim upon of bankrupts rather than creditors". 17 as against the general public. the Earl of Kimberley, Secretary of He went on to say that Kirkup had In a lengthy judgement, Wrenfordsley State for the Colonies, who, while wasted his property in riotous living, vindicated his original charge to the dismayed by Wrenfordsley's conduct, squandering his means in drink, and jury, declaring that the application was closed the file with the note "was entitled to little or no sympathy not equivalent to one for a new trial, "it is not desirable that the Colonial from any right-minded man, that no error had been demonstrated, Office should make itself the collector acquainted with all the circumstances". 20 and that "I must be careful ... not to of debts of private persons". Wrenfordsley, on the brink of losing his composure, declared that "I have interfere with the due course of justice, Bailey & Co. were not the only not said one half of what is on my or the right which is accorded by the creditors whom Wrenfordsley sought 18 mind", reiterated his sympathy for Crown to the subject". He discharged to defraud by placing himself beyond "this unfortunate man (the bankrupt)", the application for a non-suit. their reach. His chronic insolvency and took refuge in adjourning the forms a continuous thread throughout Playing to the gallery, as Wrenfordsley court.23 Community confidence could following chapters. Yet here was a delighted to do, was relatively not be placed in a Chief Justice who persistently impecunious Chief Justice, harmless. But the quality that made conducted himself so irresponsibly. him a bad judge was his duplicity in who laughed his own creditors to money matters. Thus, he affected to scorn, while admonishing the citizens lecture the public about standards of of Perth about commercial morality. 17 West Australian Supplement, 24 October 1882. commercial morality, using the The worst feature was that he could 18 opening of the July sittings in 1880 to not perceive the turpitude of his own West Australian, 24 November 1882, 3. complain of the want of a grand jury double standards. In an 1883 address 19 Id., 9 July 1880, 3. to whom such questions might be to the Working Men's Institute 20 Minute paper, C.O. 18/196, f. 478 at f. 479a. addressed. He had been concerned to of Perth, having echoes of his 21 West Australian, 18 May 1883, 3. addresses to similar audiences at notice that a recent judgement, which 22 Id., 16 June 1882, 3. had led to a debtor's bankruptcy, had Peterborough, he declared that 23 Ibid. "the working men of Perth wanted

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Conclusion: Sir Henry Wrenfordsley: Second Chief Justice of Western Australia 1880- 1883, by J.M. Bennett (2004, ISBN 1862875286, HB, 160pp, rrp $49.50), was published by The Federation Press. Lives of Australian Chief Justices is a series of historical biographies, written by the eminent Dr J.M. Bennett. A selection of biographies is published each year, commencing from 2001.

Titles in Lives of Australian Chief Justices Series:

• Sir William a'Beckett: First Chief Justice of Victoria 1852-1857, by J.M. Bennett (2001, ISBN 1862874093, HB, 232pp, rrp $49.50) • Sir Francis Forbes: First Chief Justice of New South Wales 1823-1837, by J.M. Bennett (2001, ISBN 1862874085, HB, 192pp, rrp $49.50) • Sir James Dowling: Second Chief Justice of New South Wales 1837- 1844, by J.M. Bennett (2001, ISBN 1862873917, HB, 232pp, rrp $49.50) • Sir Archibald Burt: First Chief Justice of Western Australia 1861-1879, by J.M. Bennett (2002, ISBN 1862874387, HB, 158pp, rrp $49.50) • Sir James Cockle: First Chief Justice of Queensland 1863-1879, by J.M. Bennett (2003, ISBN 1862874859, HB, 160pp, rrp $49.50) • Sir Charles Cooper: First Chief Justice of South Australia 1856-1861, by J.M Bennett (2002, ISBN 1862874425, HB, 152pp, rrp $49.50) • Sir John Pedder: First Chief Justice of 1824-1854, by J.M. Bennett, (2003, ISBN 1862874824, HB, 160pp, rrp $49.50) • Sir William Stawell: Second Chief Justice of Victoria, 1857-1886, by J.M. Bennett (2005, ISBN 1862875200, HB, rrp $49.50)

More information about each book can be found on The Federation Press website: www.federationpress.com.au, including the Direct Price which is a slight discount for upfront payment on purchase. They may be purchased individually or as a set.

As a special offer available only from The Federation Press, Forbes Society members can receive 25% off any of these titles, as long as payment accompanies the order. Postage and packing is $9.00 regardless For enquiries about membership of of how many books are ordered. the Forbes Society, or to obtain an application form, visit the Forbes To order, phone (02) 9552 2200, e-mail [email protected] or Society’s web page at send your order with payment to PO Box 45, Annandale 2038. www.forbessociety.org.au Please quote ref: MP821 to obtain the special offer. The offer expires on 28 February 2005. Alternatively, you may contact:

The Secretary, The Francis Forbes Society for Australian Legal History C/- New South Wales Bar Association Lower Ground Floor, Selborne Chambers 174 Phillip Street Sydney NSW 2000 Ph: (02) 9232 4055 Fax: (02) 9221 1149 e-mail: [email protected]

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