BE SUBSTANTIALLY GREAT IN THY SELF: Getting to Know C.E.W. Bean; Barrister, Judge’s Associate, Moral Philosopher by Geoff Lindsay S.C. “That general determination – to stand by one’s mate, and to see that he gets a fair deal whatever the cost to one’s self – means more to Australia than can yet be reckoned. It was the basis of our economy in two world wars and is probably its main basis in peace time. Whatever the results (and they are sometimes uncomfortable), may it long be the country’s code”. C E W Bean, On The Wool Track (Sydney, 1963 revised ed.), p 132. [Emphasis added]. “Dr Bean’s achievements as historian, scholar, author and journalist are so well known that they need not be retold today…. He took as his motto for life the words of Sir Thomas Browne: “Be substantially thyself and let the world be deceived in thee as they are in the lights of heaven’. His wholeness lay in being at all times himself…. He believed that what men needed most were enlarged opportunities for work and service and that their failures and their wongheadedness sprang, not from the devil in them, but from lack of opportunity to do and to know better. From this belief came his lifelong interest in education. What a great headmaster was lost when he turned first to the law and then to journalism…”. Angus McLachlan, a printed Address (Eulogy) distributed with the Order of Service for CEW Bean’s funeral held at St Andrew’s Cathedral, Sydney, on 2 September 1968, following his death at Concord Repatriation Hospital on 30 August 1968. “In not a few important matters our history has run counter to narratives hitherto generally accepted; it therefore has to carry within its covers not merely our bare conclusions of fact, but also the evident proof of them, a result to be attained only by writing in detail. … To write in detail means to multiply the risk of error. …” CEW Bean, “The Writing of the Australian Official History of the Great War – Sources, Methods and Some Conclusions” (1938) 24 Royal Australian Historical Society Journal 85 at 93 and 108. “Probably every student of historical sources knows how, as he notes some point – a motive or an action, on or off the main stage – there comes to him in a flash the notion that this point eluminates some whole phase of his subject. He seems to see now why a certain conference was not held, or why some leaders urged delay. I constantly conceived these bright ideas, and found that they were nearly always wrong. After some keen reading in the direction indicated I would usually come, with a minor shock of disappointment, upon some unquestionable fact inconsistent with that bright interpretation. There was then nothing to do but to read more deeply and widely until in most cases one reached the conviction that, of the facts laid bare, there was only one reasonable explanation. I learned, too, that when one felt a momentary doubt as to the accuracy of a statement, it was never safe to ignore that doubt; again and again it was found to be justified… .” CEW Bean, “The Technique of a Contemporary War Historian” (1942) 2 Historical Studies 65 at 72. 2 AUTHOR’S NOTE The primary research for this paper was undertaken in two periods. Work was initially undertaken in 2007. It was laid aside for three years under pressure of other work. It was resumed in late 2010, continuing into 2011. With the demands of a new law term, it must be laid aside again. The legacy of C.E.W. Bean is too big a topic, and the primary records to be consulted are too vast not to be shared, generally and across disciplines, or to be debated from competing perspectives. The purpose of this paper is to make a small, but hopefully not insignificant, contribution to “Bean research”, and Australian legal history, from the perspective of a member of the NSW Bar. As to Bean research: It invites Australians to ask questions of the Gallipoli Legend going beyond military history and mateship forged in the Australian bush and sanctified by experience of war. Recognising the importance of Bean’s legacy as a War Correspondent, it invites us to recognise the influence on him, and the nation, of what he called, “The Arnold Tradition in Australia”. It asks the question whether, through Bean, Australia’s preoccupation with “mateship” owes something to the influence of Dr Thomas Arnold’s Rugby School. It draws attention to the possibilities: first, that an Arnold connection was a factor in Bean’s early and consistent support for, and admiration of, WM Hughes; and, secondly, that school connections between Bean and those with whom he dealt were a significant factor in their dealings. Based on Bean’s life experience, as well as his disclaimer of the title, it asks rhetorically: What was (is) it to be a “religious man”? Finally, it highlights the richness of the Bean Papers held by the Australian War Memorial as a resource for social historians (not only historians of war) and invites attention to some of Charles’ forgotten writings; chiefly, his post-war “letters” to Australians, In Your Hands, Australians (1918 and 1919) and War Aims of a Plain Australian (1943 and 1945). 3 As to Australian legal history: The paper seeks to open up for review the first two decades of the 20th century (which have been largely ignored by legal historians in favour of the early 19th century); to remind Australians of how much our legal system has changed since Federation; and, in particular, to draw attention to the fading glory of the Crown in Australian legal theory, and abandonment of trial by jury as a mainstay of Australia’s democratic engagement with the law. The brief legal career of CEW Bean facilitates an investigation of these themes because it provides a snapshot of a society in transition. A particular reason for burdening the paper with detailed references is to invite correction or corroboration and to assist the research of others. Extensive extracts of some materials are set out in the paper, or appendices, because the materials themselves are not readily accessible. The appendices provide verification of facts asserted, opinions expressed and research methodology. A big temptation in Bean research is to rely upon something written by the man himself without independent verification. He was habitually meticulous and honest in his purposes. However, some facts appear to have slipped through the net, and one suspects that his purposes coloured his observations. Ironically, the fact that he would have been likely to concede each of these points as highly likely may have encouraged us all to rely too heavily upon his version of events. Any revised forms of the paper after first publication will be expressly designated by date. Geoff Lindsay th 8 Floor, Wentworth Chambers, Sydney, NSW, 2000 Telephone: (02) 9232 6003 Fax: (02) 9233 7416 Email: [email protected] 19 April 2011 4 BE SUBSTANTIALLY GREAT IN THY SELF: Getting to know C.E.W. Bean; Barrister, Judge’s Associate, Moral Philosopher _________________________________________________________________ INDEX I. THE STORY IN OUTLINE: A THESIS ABOUT AUSTRALIAN HERITAGE § The Centrality of “The Arnold Tradition” in Bean’s Thought § Bean’s Experience of Law as a Profession § Examples of Bean Looking Away from the Law o The Balmain Ferry Case: You would never know he was there o No Interest in the “Wild Men of Sydney” § Bean’s True Vocation: Writer, Moral Philosopher II. CONTEXT FOR THE THESIS: CEW BEAN’S CAREER IN OUTLINE III. RECEIVED WISDOM ABOUT BEAN’S LEGAL CAREER § Autobiographical Writings § A Letter to Lionel Wigmore, Journalist (1922) § Account for Effie, Charles’ Bride (1924) § A Letter to HM Tasker, Editor of “The Bathurstian” (1930) § Commentary IV. BEAN’S “ARNOLD TRADITION IN AUSTRALIA” AS HIS ENDURING THEME, BEFORE AND AFTER GALLIPOLI V. BIOGRAPHICAL DETAILS: Father and Son, a Matching Pair § Edwin, the Father § Edwin’s Family: Lucy, Madeline and Three Sons § Closeness of the Family o Charles’ Book Dedications o Edwin’s Books VI. WHAT’S IN A NAME? VII. CEW BEAN’S WORLD VIEW: A Purpose-driven pursuit of Truth, informed by Christian Ethics § What is it to be a (Non) Religious Man? § Truth as a Guiding Star § Politics in the Broad: Living on the Edge § Politics, Religion and Philosophy § Strong Moral Views: A Debt owed to Education § The Origins of a Legal Education VIII. BEAN’S LEGAL CAREER IN CONTEXT § Winds of Change in NSW § Non-Stereotypical Legal Biography: Fellow Travellers in the Law § The Value of Bean’s Legal Biography § The NSW Legal System: Then and Now 5 § Hurdles to Establishment of a Barrister’s Practice, 1905 IX. THE COURSE OF BEAN’S LEGAL CAREER § Admission to Practice in NSW: Signing the Roll of Barristers (1905) § Wigram Chambers and Professional Relationships at the Bar § “Busyness” at the Bar: The Availability of Work § Charles Bean, Marking Time at the Bar, 1905 § Appointment(s) as a Judge’s Associate, 1905-1907 X. A “RETURN” TO THE BAR IN 1907: SETTING UP CHAMBERS AS A PRECAUTION § The Sydney Telephone Directory § SANDS’ Directory § NSW Law Almanacs § Gaps in the Formal Record XI. THE LURE OF A CAREER AS A WRITER: Escape from the Law (and Journalism) XII. PERSONALIA OF CEW BEAN’S LEGAL CAREER § Bean’s Literary Technique: A “People Perspective” § First Contacts in and about the Law o A.A Roche / F.D MacKinnon o Charles Butler o W.H Friend o Miss Mason o A.B Weigall o Mrs Selwyn o C.E Manning o H.W Bernard o Thoby Stephen § Bean’s Judges o William Owen o F.E Rogers o G.H Fitzhardinge XIII.