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The Legal History of Wales (2nd Edition)

Author: Thomas Glyn Watkin

Publisher: University The privilege of my personal Welsh antecedents seems somehow of Wales Press to have qualified me to review this remarkable work. Professor Thomas Watkins is one of Wales’s most distinguished academics and lawyers. He is an ordained priest of the Church in Wales. He was legal assistant to the governing body of the Church in Wales from 1981 to 1988, with responsibility for drafting bilingual bills Reviewer: Professor and amendments to the church’s constitution. In 2007 he became Tony Lee Hon TEP First Welsh Legislative Counsel, the legal officer principally responsible for drafting the legislative program of the Welsh Assembly. My own brother knows him well, has read this book and discussed its purpose with the author. He says that the book is very much a product of the passion of the author for Welsh identity and unique future.

The 2nd edition of this work includes a detailed description of the effects of the devolution of legislative capacity in the late 20th century. But as least as interesting as its coverage of the earliest ‘Celtic twilight’, then Roman, then post-conquest periods.

For a thousand years after the departure of the Romans, the people of Wales, in whole or in part, lived according to their own laws, but those laws responded to the various influences of which they were subjected by reason of their geographical proximity to the economically far more important England. For three hundred years after the Union of England and Wales under the Tudors (1536), Wales had a distinct legal identity within which English law was dispensed by its own discrete law courts, the Great Sessions.

Pressure to assimilate the two legal systems produced a legal culture that combines a readiness to assimilate with a jealous determination to preserve the best of one’s own.

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The Welsh had no writing before Roman times. Its traditions were oral but nevertheless highly sophisticated. They were accumulated and passed down meticulously from generation to generation. Nevertheless during the Roman period all free Englishmen were Roman citizens and enjoyed the protection of the Roman law. After the Romans left, the English retained and indeed clung to Roman law. Welsh legal custom remained oral and was practised west of the Roman influence. Other legal traditions developed after the Romans left, including the laws of the church and of Alfred the Great. All these affected the practice of Welsh legal customs. The Welsh traditions were not reduced to writing until the 10th century, nearly a thousand years after the disappearance of the Romans.

Among those educated in the oral traditions of Wales were the druids. Caesar recognised the druids of Gaul as judges and advisers to the rulers. In Wales the role played by druids was undertaken by the court poet the bard teulu, who not only sang and recited for his patrons but also preserved the tribal and family genealogy in poetic or written form and was tutor to their children.

The Welsh owned very little. A Welsh man rarely owned more than a harp, some proceeds of battle and a cauldron. The latter was inherited by his youngest son. There was also a practice of throwing possessions into a pit as an offering to the deity. There is archaeological evidence of some of these practices. But otherwise we know very little of early Welsh customary law.

The second chapter, entitled ‘Wales in the Roman Empire’, emphasises the overwhelming achievement of Roman law throughout all parts amenable to Roman domination. Great importance was attached to the relationship of marriage and the position of the paterfamilias. Sons and daughters were incapable of owning property but the paterfamilias was liable for their wrongdoings. The great achievement of Roman law is its capacity to provide practical solutions to the problems and difficulties that confronted them.

Chapter 3, entitled ‘The Sub Roman Period’, describes the period known as the Dark Ages extending from the withdrawal of the Romans to the promulgation of the laws of Hywel Dda in the 10th century. The final collapse of the Roman Empire in the west occurred in 476 when Odoacer deposed Romulus Augustus. Various codes of law were subsequently promulgated many of them incorporating Roman law precedents. Law ceased to be customary and became codified. They took the form of edicts. The former citizens of the western empire were loath to relinquish their Roman status particularly where their new rulers were heretics and not Catholics. In south west England there emerged tie role of the territorial bishopric. Monastic schools were created in many Welsh communities, and the Roman element of their curricula included poetry, grammar, rhetoric and arithmetic. Larger churches, called clas churches, supported colleges of priests. The maintenance of Roman roadways was a significant feature of this period and larger churches were often situate near a Roman road which facilitated the itinerant character of their ministry. Christianity in Wales during this period was thoroughly Roman in creed, origin, organisation and practice. Parish churches were built on former Roman sites, demonstrating continuity of occupation.

Another feature of the continuing romanitas of this period was the attempt to confer distinguished Roman ancestry upon local leaders, both secular and religious. Governmental areas were likely to reflect the boundaries of earlier Roman governmental areas. Yet another remnant of Roman rule was

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the retention of the Latin language, which was common until at least the 5th century. The native British of that period were bilingual in Latin and Welsh and the Welsh referred to their country as Britannia, the Roman name.

At this time, land in Wales was treated as belonging to the family and was inalienable and not disposable by will. This may be seen as a device to increase family wealth over time as was much later on the life tenancy followed by a remainder. The dominion of Christianity in post Roman Britain enabled bishops to attend overseas councils in Tours in 461, Vannes in 465, Orleans in 511 and Paris in 555. Contacts with non Roman jurisdictions such as Gaul, including Spain, resulted in the use of liturgy that was in part at least Gallic. Roman liturgical usage based on that of the church at Rome only spread to Wales at a later date, reaching Bangor in 768 and St David’s by 928.

A further guiding factor in the development of an autochthonous Welsh culture was the Bible, which enjoined adherence in particular to the Old Testament as a requisite for kingship. This chapter concludes with the proposition that there is widespread evidence that the Romana-British remnant were loath to interact with the Anglo-Saxons, placing emphasis upon preserving their own culture and language, that is the Roman culture and the Latin language.

CHAPTER 4: ‘THE AGE OF NATIVE PRINCES’

This detailed chapter describes the gradual development of various kingdoms and principalities in Wales and the creation of laws for each and all of them. In 825 the direct male line of the ruling house of Gwynedd ceased upon the death of Hywel ap Rhodri. He was succeeded by his nephew Mervyn who died in 844 and was succeeded by his eldest son Rhodri Mawr. Upon his death, four of his sons ruled his kingdom in some form of joint sovereignty. That is primogeniture had not been established. One of the sons established influence in the northern kingdom of Gwynedd and another, Cadell, in the southern kingdom of Dyfed, particularly after the death in 904 of the then King Llywarch ap Hyfaidd, whose daughter the son of Cadell married. Cadell was later known as Hywell Dda and it is during his reign from 904 to 949 that the extant native laws of Wales were reduced to writing. Hywel recognised the English King Athelstan in 927 and did homage to Alfred the Great. He signed official documents as a sub-regulus of the English king and is credited with having visited the Pope in Rome in 929, thus connecting Wales with the wider sovereignty of Europe. Hywel invaded Gwynedd in 942 and embraced Powys and Ceredigion, thereby becoming ruler of a very substantial portion of the land of Wales. He summoned six men from every cantref to examine old laws, continue some and abolish others. This process of reducing laws to writing was occurring throughout Europe. The influence of the church was evident in laws relating to the importance of intention in punishment for wrongs, the encouragement of testamentary gifts to the church and the sanctity of the person of the king. Legal texts of the time were not seen as binding and developed a rule that it was possible for persons to enter into agreements that were outside the law, creating a custom particular to a transaction or occasion. The Welsh king’s role was to enforce the customs of his country: he was not in himself a source of law. Likewise the Norman king’s role was seen to enforce the common law of England.

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The chapter continues with a description of the content of the laws. Inheritance within members of royal and wealthy families was an important preoccupation. On the death of a king, the queen was allotted one third of his estate and a status greater than that of any court officers. The king’s successor was usually chosen and was often, but not necessarily, the eldest son. Sometimes the inheritance was shared—but the consequences of dividing up the territory of kingship, which caused the empire of Charlemagne to disintegrate, impelled consideration of more appropriate forms of kingly inheritance. There follows a description of family and larger aggregates of citizens and forms of land holding, the duties of tenants and the composition of the royal courts. Children born to a married woman were presumed to be the children of her husband, but Welsh law regard children born out of wedlock as the responsibility of their natural father and as equal to those of his children born within marriage. Unlike most legal systems Welsh custom did not differentiate between legitimate and illegitimate.

Free born Welshmen fell into two classes. One consisted of the nobility or gentry, men and women of gentle birth. They were allowed certain privileges e.g. as to hunting and the professions to which they might belong, such as advocate, judge, bard, priest or smith. A grant of higher status would also attach to residence within the cantref of a consecrated church. The other class was free in the sense that they were not slaves and were defined by their descent through the female line. Today they might be seen as illegitimate. They were tied to the land but could purchase higher status. Slavery was recognised but slaves could be freed. Foreigners on Welsh soil were given a recognised status.

As for inheritance to land, younger sons were given equal rights. The youngest son divided the land into portions for personal management. The longest period for which a landowner might alienate land was the period of his life. Church land was held within the king, giving him greater control over it than the church. Testamentary disposition was originally limited to gifts to pay debts; but gifts to the church were deemed lawful. As to how unoccupied property was acquired, water, air and land were open to all, so was available to be possessed. The possessor did not become owner until possession had been in the family for four generations. We are seeing the development of law as appurtenant to the reduction of property into use. Timber could be cut freely from the king’s forest to furnish repairs to a church or to fashion a spear or funeral bier; or from a free man’s forest to roof a house. But timber cut to build a house had to be paid for.

Contractual agreements could be entered into in one of three ways. A formal oath might be sworn, calling upon God to witness the obligation. The promise could be enforced by the king or the church. Or a contract could be entered into by the clasping of hands, or by the taking of sureties who became responsible for the obligation.

Obligations could also arise from wrongdoing. Compensation was payable for unintentional killing but punishment was inflicted for intentional killing. Some killings were accepted as justifiable, where the victim had deserved to die for some reason. The purpose of imposing compensation was to buy off the vengeance of the family of the victim and prevent a blood feud from arising. Theft was regarded as very serious and the house wherein stolen property was found might be forfeited. Punishment and compensation might be imposed. Manifest theft of property worth more than four pence was punishable by death; of less than four pence by selling the culprit into slavery. These penalties were moderated in the 11th century. An elaborate system of compensation was constructed for offences to the

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person. A judge could be attacked for giving a judgment in his own interest. Judges were bound to act in accordance with written precedents.

As for the courts themselves in south Wales the local upper classes usually performed the judicial function. They represented the stability of the local society. In the north professional judges were used, who were learned in the law. They were referred to as wise men. They represented a land that had a wider than local culture, namely the general culture of Western Europe. Litigation was always directed at achieving either possession or property. The process was a party process inasmuch as judgment could only be given for what a party had claimed. As with Roman law Welsh law knew nothing of trial by ordeal, a Germanic process. The weight of a witness’s testimony depended on the status of the witness and the nature of the event under trial. Thus the laws of Hywel Dda evoke a golden age to which people could look back amidst the uncertainties of the Norman and Plantagenet regimes that were to follow.

CHAPTER 5: ‘THE NORMAN INVASION AND EDWARD I’

At the time of the Conquest England was well governed. It was divided into shires and hundreds each governed locally. The King’s court progressed: Gloucester at Christmas, Winchester at Easter and Westminster at Whitsun addressing itself to the needs of the nobility, the King’s peers and the prelates of the church. A feudal form of land holding was introduced. The King rewarded his chief followers with grants of land, in the main scattered across the country to prevent the development of localised power bases that might threaten his authority. At the top of the feudal pyramid land was granted in return for military service and the estate granted was intended to support the knight and his family. The land was heritable as long as the service could be rendered. As times of peace became more common the payment of a rent could be negotiated instead of actual service. Primogeniture ensured that the estates could not be broken up. Disputes might be rendered by battle as the defence of the realm was a major preoccupation of the feudal system.

At about the same time the Catholic Church was reorganising itself. Archbishops were required to go to Rome to receive the pallium from the Pope. Bishops were required to swear canonical obedience to their Archbishop. Church discipline was tightened and the practice of celibacy developed. The first Norman Archbishop of Canterbury was Lanfranc a professor of law of international standing, the first abbot of Duke William’s abbey at St Etienne. His successor, St Anselm also progressed via the universities of Italy and the Norman abbey of Bec.

As the Normans moved westward to Wales, Welsh customary law tended to be overtaken by feudalism. Areas under the jurisdiction of the Normans tended to be divided into Englishries, where the Norman customs prevailed and English legal forms were adopted and Welshries where the population continued to live under their customary laws, at least as far as private law rights and duties were concerned. The lands occupied by the Normans became known as the March, belonging to the lords by right of conquest. Differences between the two customs were often resolved by the adoption of compromises.

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The Welsh church gradually became more susceptible to Canterbury although it had never required celibacy. From the appointment of Urban as bishop of Llandaff in 1107, Welsh bishops were required to take an oath of canonical obedience to the Archbishop of Canterbury. Welsh bishops were sometimes of great renown as scholars and Geraldus Cambrensis, a Welsh aristocrat, was nearly appointed Archbishop of Canterbury in 1198.

Welshmen were involved in the 12th century revival of learning, visiting great centres such as Paris, Oxford and Lincoln and reviving the study of Roman law. Legal texts were published, such as Glanville’s on the common law. Welsh native laws stood their ground stating that where native laws contained in law texts were in conflict, trained canonists should resolve the impasse. Canon law courts began the process of inculcating the international standards of the church with regard to such matters as marriage, divorce, legitimacy and celibacy. The Domesday Book often recorded Welsh customs and sustained them. Constitutional lawyers of the 11th century were concerned with the status of kings and princes of Wales with that of the king in London. Thus the last native King of Deheubarth, Rhys ap Tewdwr submitted to William I in 1081 with a promise of £40 per year payment for his lands. When Henry II became King in 1154, the most powerful Welsh ruler was Owain Gwynedd who recognised Henry’s overlordship in 1154 and maintained a close relationship with him. Wales became drawn into the Plantagenet net. Inheritance laws were consolidated.

Henry introduced an alternative to battle, the Grand Assize consisting of a jury of twelve which considered who had the greater right to land. It could establish in times of peace whether a tenancy might be for life or for inheritance without risk of forfeit. But in the less peaceful areas of the Marches those who held military tenure might lose their tenancy if they failed to respond to a call for arms. The King strengthened his grip on the control of tenancies by the writ praecipe.

During the first four decades of the 13th century Llywellyn ap Iorwerth, a grandson of Owain Gwynedd and also known as Llywelyn Fawr, became the sole ruler of the Northern Kingdom and swore fealty and liege homage to King John, who in return allowed either English or Welsh law to be utilised to resolve disputes in Llywelyn’s lands, according to whether they were held of English or Welsh lords. But John later sought to characterise Llywelyn as a tenant-in-chief rather than as an under-king. Llywelyn sought to have his son Davydd, born of his marriage to Princess Joan, appointed despite the fact that under Welsh law an earlier illegitimate son Gruffydd had the better claim. This disputed claim lingered and on Llywelyn’s death Davydd succeeded him and did homage to Henry III, who, however, intervened on behalf of Gruffydd. Peace was restored in 1241, with the agreement that Gwynedd would escheat to the Crown if Davydd died without direct heirs. Gruffydd died in 1244 and Davydd in 1246 when Gruffydd’s nephew, Llywelyn ap Gruffydd, emerged as foremost and continued the practice of modernising the laws of Wales in line with influences from England, the church and the March. He innovated rights to wreck, treasure trove and bona vacantia in a manner that antagonised Welsh interests. There was an increase in judicial activity with the king appointing key royal servants and ecclesiastics as administrators.

At Woodstock, the English King claimed and obtained the homage and service of all the barons and nobles of Wales, thus giving himself jurisdiction over all disputes relating to the lands and succession of these persons. He appointed royal justices to hear and determine disputes between the four sons

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of Gruffydd ap Llywelyn relating to their inheritance of Gwynedd. This Llywelyn ap Gruffydd could not tolerate and a war ensued. The baronial revolution ended with the death of Simon de Montford in 1267 after which Ottobuono Fiesci, the later Pope Adrian V, settled the terms of an agreement between Henry III and Llewelyn by which Llewelyn was granted the title of Prince of Wales with the homage and fealty of all Welsh barons with the exception of Maredudd ap Rhys Grug, whose homage he could buy for 5000 marks. But the grant was termed a royal grant and did not recognise Llywelyn’s antecedent rights. Henry III died in 1272 and Edward I arrived in England two years later. Llywelyn refused to do homage to him. Within a year Edward had subdued Llewelyn who paid Edward. Later in his reign, Edward regarded Llywelyn as a mere tenant in chief: his princedom was to terminate upon his death. He died in an ambush in 1282 and then ended any attempt of the Welsh princes to achieve a feudal unity within Wales. A new phase had begun in the legal history of the Welsh nation.

CHAPTER 6: ‘THE LATER MIDDLE AGES’

Edward consolidated his direct control of the principality by the construction of huge castles particularly along the coast of north Wales. The castles attracted townships outside but sometimes inside the walls, whose citizens could be taken for granted to be loyal to the English crown. The Statute of Rhyddlan, 1284, ushered many of the common law’s standard features into the principality that Edward sought to consolidate. He finally abolished the right of illegitimate offspring to inherit, which had always been part of Welsh custom.

The greatest changes involved the introduction of English structures of government. North Wales was divided into shires, Gwynedd becoming the counties of Anglesey, Caernarfon and Merioneth. In the north east Flint was placed under the jurisdiction of Chester. In South Wales, Deheubarth was divided into the counties of Cardigan and Carmarthen. The principal officer of government in these counties was the Justiciar, in effect a vice-roy. English causes of action were introduced. Welsh courts were not divided into King’s Bench, Common Pleas and Exchequer. Unless royal justices were present in the shire all civil jurisdiction between royal courts had to be tried at Westminster in the Court of Common Pleas. Nevertheless there were considerable differences of procedure as between the counties and other jurisdiction within Wales, and the Marches had further differences of their own although the King tended to take a greater interest in the Marches than in the rest of Wales. The Welsh revered the laws of Hywel Dda and preferred many of his precedents. This led to a demand for scholars of Welsh law, which strengthened Welsh precedents even more; but the Welsh were not invited to attend parliamentary proceedings in Westminster.

The church became a major vehicle for the social advancement of the Welsh upper classes, who could attend church schools and become ecclesiastical administrators and even bishops. Procedures were also constructed for breaking the inalienability of land. The Black Death generated changes as a result of depopulation. Landlords became more demanding of their rights leading to a gradual anglicanisation of land between 1350 and 1450. In the Marches, however, instability bedevilled law and order for a century.

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Resentment at English high-handedness and what was coming to be viewed as the oppression of their seigniorial demands were among the factors that led to the rebellion of Owain Glyndwr who was joined by men who had obtained ecclesiastical preferment among them Lewis Byford, bishop of Bangor, John Trefor, Bishop of St Asaph a canonist who had served at the papal curia from 1389 to 1394 and Gruffydd Young archdeacon of Merioneth, who became Owain’s chancellor. Owain envisaged Wales as a separate province of the western church with its own Archbishop at St David’s, two universities, one in north Wales and another in south Wales. These aspirations were pressed but rejected at the Council of Constance in 1417 and serious disabilities were imposed on Welshmen by Henry IV, which continued and were re-enacted throughout the century. Welsh landholding took more and more the form of tenancy. During the Wars of the Roses, many Marcher lordships were escheated to the Crown or lost their title on the field of battle and their lands were granted as tenancies. Changes to gift and inheritance laws greatly benefited the Cistercian Order and Cistercians cleared land for leasing and selling timber and rights to mine minerals, particularly lead. Welshmen who distinguished themselves in battle for Henry V received important grants and were exempted from disabilities and climbed the English social ladder. They acquired land via marriage and the development of the use, supported by the newly developed Court of Chancery. Marcher profits declined substantially following the Black Death and gave rise to a century of poverty and lawlessness.

The Yorkist King Edward IV addressed the problem by establishing a Council of Wales and the Marches. In 1471 he promised the Welsh people a Prince who could speak no English and then made his infant son, Edward, Prince of Wales, a princedom that has continued to this day. Edward was murdered the tower and never became king. After the death of Richard III at Bosworth Henry Tudor became Henry VII and the ensuing Tudor dynasty was seen as Welsh. In 1471 Henry created his son Arthur Prince of Wales, but he died in 1502. Henry greatly extended administrative control of Wales. A Lord President of the Council of Wales and the Marches was appointed who became the chief and supreme governor of the principality and the Marches. Prerogative courts were established for a variety of jurisdictions with inquisitorial procedures based on based on the practice of ecclesiastical tribunals. The profile of the Welsh and their culture was visibly raised, Welsh lawyers specialised in canon law and distinctions between Welsh and English law were expounded in Inns of Court.

Henry VIII tried to make good the disadvantage of the system of Sessions by limiting the number of meetings. In 1526 Cardinal Wolsey re-established the Council of Wales with a membership of 340 persons and new felonies created for example to prevent the escape of thieves by night. In 1536 statute emphasised that only the King could pardon certain offences, appoint justices and issue legal and judicial instructions. The century marked the end of transitional period during which the Welsh had embraced and accommodated a new legal traditional whilst not losing some of its historical characteristics.

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CHAPTER 7: ‘THE TUDORS AND THE UNION WITH ENGLAND’

The union of England and Wales was effected by two statutes passed during the reign of Henry VIII in 1535–6 and 1542–3. The jurisdiction of the Pope was ended at this time and the dissolution of the monasteries followed. The government of Wales was in a state of disarray and union was seen as a solution by providing the same remedies and recourses for the Welsh as the English. The inhabitants of the Marches requested the introduction of primogeniture in 1534 and for the introduction of a Court of Chancery for Wales. The incorporation of Wales into England meant that for the first time the shires and boroughs of Wales were entitled to send representatives to the Parliament in Westminster.

The first members were elected in 1542 and so the second Act of Union could be said to have been agreed to by the Welsh nation. It also created the offices of sheriffs, coroners, escheators and high and petty constables for each of the thirteen shires of Wales. The Courts of Great Sessions were reformed to be staffed by royal justices, four in number, each one exercising jurisdiction in a circuit consisting of three counties, the justice of North Wales covering the shires of Anglesey, Caernarvon and Merioneth; the Justice of Chester covering Flintshire, Denbighshire and Montgomeryshire, the Justice of Brecon in Radnorshire, Brecknock and Glamorgan and the Justice of Carmarthen in Carmarthenshire, Pembrokeshire and Cardiganshire. The sessions were to be held twice a year in each county, each session lasting for six days. Their jurisdiction was broad. On the criminal side minor offences were punished by floggings and the pillory, more serious by the gallows. Although there were criticisms of the system the number of judges was doubled in 1576. Justices of the Peace were also created by the 1536 Act, eight in each county together with a custos rotulorum, who was to preside over the Justices of the Peace assisted by a legally qualified clerk. Boroughs and guilds constituted local administrative arrangements. The president of the Council of Wales and the Marches was ex officio the lord lieutenant of every county and mayors were deputy lords lieutenant. The council was a major institution in both government and the administration of justice, enjoying a substantial amount of judicial business averaging 1200 cases a year. It also exercised extensive appellate jurisdiction and could fill up the gaps in the common law in the manner of an equity jurisdiction.

One unpopular feature of the Union legislation was that it required English as the official language of government. In 1576 provision was made for one of two justices to be Welsh-speaking. In 1563 a Bill was passed to ensure that a Welsh as well as an English Bible was provided in every parish church. Land belonging to dissolved monasteries became available to be tenanted and even purchased from the Crown. Moreover freehold land became devisable by the Statute of Wills of 1540 following a peaceful demonstration known as the Pilgrimage of Grace. Another development in land law was the enclosure of open ground to bring it into cultivation. Greater wealth enabled the giving of charitable gifts leading to the passage of the Statute of Charitable Uses of 1601, still of influence in the modern law of charities. Education also prospered and schools founded. A shift from lawlessness to litigation enriched the legal profession. Customs officers were appointed to tackle piracy and smuggling. Nevertheless the courts at Westminster continued to attract Welsh litigants.

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During the Civil War the Welsh tended to support the King and the political character of the Council had as a consequence its abolition as a prerogative court in 1641 and the demise of its administrative and judicial jurisdictions in the following year. The union gave Wales status and opportunity without destroying its sense of its own character.

CHAPTER 8: ‘THE AGE OF THE GREAT SESSIONS’

The introduction of the Great Sessions gave Wales, with the exception of Monmouthshire, a legal identity that was for the first time uniform whilst remaining distinct from England. Its jurisdiction was broad and certainly from 1700 included jurisdiction in equity. Although much of Wales supported the monarchy after the death of Charles I, under the Commonwealth, Wales’s representation in Parliament was altered. Each county, other than Merionethshire, was given two members, with borough seats being awarded to Cardiff and Haverfordwest. The franchise was conferred on those having property to the value of £200. Justices of the Peace were expected to shoulder the burden of enforcing the Puritan expectations of the Commonwealth. Small groups of Welsh Commissioners were expected to eject clergy, end the holding of livings in plurality and requiring proof of knowledge of both biblical and romano-canon law. In the space of three years 278 clergy lost their benefices. Some of these were replaced by Protestants nearly all of whom could not speak Welsh and preached on circuit. The Welsh disliked the introduction of civil marriage, strict sabbatarianism, the abolition of holy days, Christmas included—together with the festivals and ceremonies that went with them, as well as prohibiting the secular pleasures of the ale house, the revels, the maypole, cockfighting and bear baiting. The punishment of drunkenness and swearing was also disliked. Educated Welshmen tended to refuse office, which meant the elevation of lower classes. But the Commonwealth did create 63 schools, though none was Welsh.

The Restoration of the Monarchy in 1660 was welcomed by most Welshmen and the Council of Wales and the Marches was reinstated. Distinguished Welshmen acceded to the Bench. Charles II sought to buttress the Church of England by suppressing dissent; but in 1672 he issued a Declaration of Indulgence that permitted public worship in contravention of the Conventicle Act provided the places of worship concerned were licensed but this improvement did not last. In 1679 five Roman Catholic recusants were executed. James II was however a Catholic sympathiser and Welsh lawyers who supported him were rewarded: Justice Jeffreys CJKB became the youngest Lord Chancellor of England, Sir John Trevor became Master of the Rolls and William Williams, former Speaker of the House of Commons, became Solicitor General. The King attempted by Declarations of Indulgence, to bypass the Parliament, against which the Archbishop of Canterbury, the Bishop of St Asaph and six other bishops protested which resulted in their arraignment on criminal charges. They were acquitted by Sir John Powell of Carmarthen who was then dismissed by James, who soon fled the realm in fear of his unpopularity. James invited his son in law, William of Orange, to assume the throne alongside his daughter Mary. The Glorious Revolution brought to the throne a King and Queen in effect chosen by Parliament, and the Convention Parliament laid the foundations of a new, constitutional monarchy, with many features of constitutionality including the independence of the judiciary. During the reign of William and Mary the appurtenance of Wales to the Crown foundered and by the time the Hanoverians came to

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the throne in 1714 it had well and truly ended. There followed the appointment of non-Welsh speaking bishops and clergy anglicising the Church and opening the way for Welsh non-conformity. The Court of King’s Bench and Common Pleas succeeded in acquiring the right to hear appeals from the Welsh Courts. But great faith was placed upon Justice of the Peace and many members of the gentry class saw sittings as JPs at the Quarter Sessions preferable to sitting as members of Parliament in Westminster. They were often graduates of Oxford and had been educated at Eton or Westminster Schools, and some younger members at local grammar schools, which offered the same syllabuses. The efficiency of the courts and the competence of its officers contributed to a decline in criminal activity throughout the Principality.

The growth of non-conformity and the promotion of literacy among the laity was another important achievement of the late 18th century. The development of primogeniture favoured the eldest son but was entailed so as to prevent spendthrifts from wasting the family fortune. Landholders had necessarily to lease land. Pastoralism edged out arable farming but the need for more arable farming, for the production of food during the Napoleonic Wars, resulted in the passing of Enclosure Acts by the Parliament enclosing in total some 200,000 acres. Towns grew in size and became centres of trade, restrictions on which were gradually eased. Poor Law was more strictly enforced leading to the formation of Friendly Societies and banks enabling people to save against a rainy day.

Another consequence of poverty was the emigration of well-educated persons who played important roles in the expansion of the settlements in which they found themselves. A Welshman, Thomas Jefferson, was one of the signatories of the Declaration of Independence. Yale University was named after a Welshman. Intense jurisprudential activity however saw the end of a separate Welsh judiciary and the Great Sessions were finally abolished in 1839 in the wake of important law reforms to the machinery of the law.

CHAPTER 9: ‘THE 19TH AND 20TH CENTURIES’

With the abolition of the Great Sessions in 1830 the administration of justice in Wales became fully integrated with that of England. The chapter describes the extension of the franchise and changes to the nature of local government. One perceived injustice was the imposition of toll roads in rural areas which was opposed by the so called 'Rebecca' riots whose leaders were eventually transported to Australia. After this land in Wales tended to become owned by landlords living in England or Scotland who could make life difficult for tenants, but with the introduction of death duties some landlords sold their land which was acquired by Welsh upper classes and then leased often to property developers for long periods. It became seen as difficult to legislate particularly for Wales. But the sale of alcohol was restricted by sabbatarianism in Wales. The restrictions were gradually eroded but did not disappear altogether until the late as the 1990s.

The most major issue of controversy was the disestablishment of the Church in Wales. Although the House of Commons favoured the disestablishment the House of Lords did not and it was only after the passage of the Parliament Act of 1911, which enabled legislation to be passed without the participation of the House of Lords in certain cases. A disestablishment Bill passed twice through

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the Commons in 1912 but was twice rejected by the House of Lords. When it passed through the Commons for the third time in May 1914 it became law, although, on account of the complications of the First World War, actual disestablishment was delayed until 31 March 1920. The ecclesiastical law in Wales ceased to exist as law and the English ecclesiastical courts lost their function in Wales. The real purpose of the Act, however, was to appropriate the wealth of the Welsh church. Some £8m was distributed between municipalities and the University of Wales. Three leading English lawyers, John Sankey, later to be the Labour Lord Chancellor, Lord Justice Bankes and Lord Justice Atkins drafted a constitution for the church, which bond members as a private contract. But subsequent legislation allowed marriage to be celebrated in church. Although some disliked disestablishment it soon became seen as providing liberty for the church to pursue its policies without interference from Westminster. Careful management of its finances protected it from the worst effects of the great financial crisis, which destroyed and reduced to penury the finances of the Church of England despite the supposed competence of its professional fund managers.

Another development in Wales in the late 19th century was the foundation of the University of Wales in 1893. There follows descriptions of the insensitivity of the English Parliament to Welsh needs one of the most blatant being the drowning of the village of Cwm Tryweryn to provide a reservoir for Liverpool. All the Welsh members of Parliament voted against it. Law schools were created in Wales first in Aberystwyth and then in Cardiff, Swansea, Bangor and the Polytechnic of Wales. Welshmen who reached high judicial office included Lord Justice Bankes, Lord Atkin, Lord Morris of Borth-y-Gest, Lord Edmund Davies, Sir Arwyn Ungoed-Thomas, Sir Geoffrey Howe and Sir Samuel Evans. William Abraham MP was mocked in the House of Commons when he recited the Lord’s Prayer in Welsh. Contributions of many kinds eventually lead to the acceptance of the Welsh language as equivalent to English in many contexts. Separate Welsh administrative departments were also being created in the early 20th century. A Welsh Department of the Board of Education was created in 1907, Welsh Language Insurance Commissioners were established in 1912, a Welsh Board of Health in 1919. A ministry of Welsh Affairs was not however created until 1951. In 1971 the Welsh Office moved its base to Cardiff, which had been recognised by the Queen in 1955 as the capital of Wales. Devolution was in the air as it was throughout Europe. Reforms to the constitution of the Courts of Justice affected all courts in England and Wales.

CHAPTER 10: ‘DEVOLUTION AND LEGAL IDENTITY’

Prime Minister Margaret Thatcher made some concessions to Welsh self-government by the introduction of quasi-autonomous national government organisations, QUANGOS. But her economic policies disaffected Wales and at the 1997 election the Conservatives lost all their seats in Wales. The Blair government passed the Government of Wales Act 1998 and inaugurated the national Assembly of Wales in 1999. And so Wales entered the third Christian millennium with a measure of self- government of a kind that it had not enjoyed for centuries.

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The Assembly might enact primary legislation with respect to many areas including economic development, agriculture, education, health services, highways, local government, social services, transport, water and flood defence and the Welsh language, but without the power to initiate major policy changes by enacting primary legislation in the form of statutes. Nor was it empowered to raise revenue by taxation but only how to spend moneys allocated to it by the Parliament in Westminster. A complex provision for the members of the Assembly was created that ensured that no one party could dominate the Assembly. Elections held in 2003, 2007 and 2011 all failed to provide any party with an overall majority. Some criticism of these arrangements led to some minor reforms in 2006 that enabled the Labour Party to form a government but only in coalition with the Welsh Nationalist Party, Plaid Cymry. The Assembly might nominate to the Queen a member for appointment as first Minister. The First Minister then nominated the other members of the executive to the Queen as Welsh ministers and deputy ministers, not exceeding 12 in number. The First Minister also nominates to the Queen a legally qualified person as Counsel General, the Welsh Government’s principal legal adviser. The author of this work, Professor Thomas Watkins, was the first person to be so appointed. The Counsel can introduce legislation and speak to it, but may not vote unless a member. He retired in 2011. The powers of the Assembly have to conform to the requirements of European Community Law with respect to the passage of subordinate legislation. The 2006 Act also created a body called the Assembly Commission which in its turn might employ civil servants not answerable to Westminster.

Despite the breadth of its law making powers some legislation might not be enacted without the ratification of a referendum of the Welsh people. Moreover some measures might be enacted only if the Parliament in Westminster enacted it or the Assembly might apply to Parliament for enactment as an Order in Council. The author describes this dog’s breakfast as ‘a mire into which the existing settlement had plunged the legislative process.’

Wales now has its own legislature and its own government, albeit that the competence of both is limited and subject to the overriding sovereignty of the United Kingdom Parliament and government. So some laws of England and Wales’ apply only in England and some only in Wales, although most apply in both countries. Further legislation has strengthened the recognition of the Welsh language. Finally, Wales is casting its eyes on membership of the European Union as a possibility for the future.

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Final Judgment: The Last Law Lords and the Supreme Court

Author: Alan Paterson

Publisher: Hart Alan Paterson is an academic at a Scottish university who has Publishing taken a particular interest in the judiciary and its workings. In 1982, his doctoral dissertation, based largely on interviews with judicial members of the House of Lords, judges of lower courts and Reviewer: The practitioners, was published in book form as The Law Lords. Thirty years on, Final Judgment is, effectively, a follow-up: an examination Hon Chief Justice of the operations of the House of Lords in its final decades and Catherine Holmes those of its successor, the Supreme Court.

The book’s commencing chapter is unenticing, setting out methodology and definitions, but the work becomes increasingly interesting as it explains the processes by which decisions are reached in terms of the respective courts’ dialogues: with counsel, with colleagues, with other courts, with judicial assistants and with other branches of government.

Paterson was able when writing his doctoral thesis to interview 15 Law Lords, and his level of access to senior judges remains remarkable (Lord Hope of Craigshead has written the foreword; he suggests that Paterson has benefited from his demonstrated trustworthiness in use of the information entrusted to him in 1982). This time around, he has interviewed 27 Law Lords and Supreme Court justices and has supplemented the advantage of face to face encounters with access to the judicial notebooks of Lord Bingham and Lord Reid.

When one knows no more of the Law Lords than can be gleaned from their judgments, which are generally not very revealing of idiosyncrasy, the frank portraits painted by Paterson, with a touch of acid, are entertaining. Lord Diplock was described by Lord Wilberforce as ‘a man who got his way in almost everything’;

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Paterson, pulling no punches, calls him a bully. He goes on to say that Lords Brandon and Templeman has nothing to learn from Diplock as to aggressive behaviour, the only relief for counsel being that they could be distracted from attack by the need to snipe at each other. Lord Fraser does better, described by Paterson as courteous; with the sting that his courtesy extended to allowing oral argument for nine days over the meaning of two words.

Dealing with the dialogue between court and counsel, Paterson does not shrink from criticism of the Supreme Court, suggesting that counsel’s role in the decision-making process has been eroded by departure from the convention that a case will not be decided in any point not raised by, or at least with, counsel. In that context, he describes what he clearly regards as a bungle: the decision of the Assange case (Assange v Swedish Prosecution Authority [2012] 2WLR 1275) on the basis of a point which, arguably, counsel had not had the opportunity to address.

The ‘Dialogues with Colleagues’ chapter is probably the most intriguing, because it is the most revealing of how judgments are actually produced (although there is something to be said for the approach popularly attributed to Bismark: better not to know how to sausages are made). Of particular fascination are the dynamics between the judges. The Supreme Court justices plainly do not approach the US Supreme Court in their willingness to criticise each other, but some jibes are identified, usually in the form of indirect criticism of others’ judgments.

Those who attended Lord Dyson’s oration in the Banco Court last year on civil justice reforms in the United Kingdom may be intrigued by the revelation that while a member of the Supreme Court (he has since taken the position of Master of the Rolls), he had a genius for assembling a majority. He is what Paterson refers to as a ‘task leader’, although plainly not always in a benign way. In a fetching turn of phrase, Paterson explains how a colleague’s decamping to the opposing side in a judgment ‘stirred up by Lord Dyson (to whom counter-punching seems to have come naturally) by giving him something to argue against’.

Paterson raises aspects of the decision-making process, which one would not ordinarily consider. He discusses, for example, the effect of the court’s layout on the level of consultation because of the tendency of the judges to talk more to those closest to them. Where the Law Lords’ rooms in the House of Lords were on a single corridor, when the Supreme Court was set up it was not possible to keep all the judges on the same floor. Room allocation was by seniority and, according to Paterson, there is a tendency of the junior justices on the lower floor to interact among themselves, while the senior judges similarly keep themselves to themselves.

Paterson observes that a curiosity of appellate decision-making is the limited amount of time spent in ‘collective deliberation’ because of pressures of time and the decline in the length of hearings, which reduces the opportunity for dialogue while the hearing is proceeding. Thus, while there is a tendency, he considers, in the court towards more deliberation, the shortening of oral hearings from an average of three to four days 40 years ago, to two days currently, has made it less possible.

The chapter dealing with dialogues with other courts alleviated my profound ignorance on the subject of Scottish appeals. I had never appreciated the significance of Scottish Law Lords or this

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role as specialists in appeals from that part of the United Kingdom. It is clearly a sensitive area, given the anxiety of Scottish nationalists to preserve the integrity of Scottish private law. The failure of the independence referendum means that the tensions will continue.

As a member of an intermediate appellate court, I found particular interest in the discussion of the Supreme Court’s ‘dialogue’ with the Court of Appeal. I thrilled to Lord Justice Carnwath’s lament that applying six House of Lords speeches given in one case was like putting together IKEA furniture, but with six sets of instructions. His exasperation is manifest:

Was it necessary for the opinions of the House to have come to us in the form of six substantive speeches, which we have had to subject to laborious comparative analysis to arrive at a conclusion? Could not a single majority speech have provided clear and straight forward guidance, which we could then have applied directly to the case before us? (Doherty v Birmingham City Council (2006) EWCA Civ 1739 at Para 63).

Anyone who has struggled with the decision in HML v R ((2008) 235 CLR 334) could not fail to have a fellow feeling. I have often thought myself that before embarking on any decision where the existing common law is in a state of flux, the High Court should engage in a team-building exercise—a spot of abseiling perhaps.

All in all, the book is a far more entertaining read then one might suppose: a happy combination of academic analysis and inside information, which prevents the former from becoming too dry. It is illuminating, not only as an examination of the functioning of the former House of Lords and now the Supreme Court, but more generally as a study of how appellate courts work.

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The Law of Liability Insurance (3rd Edition)

Authors: D K Derrington QC and R S Ashton

Publisher: LexisNexis With over a century of collective experience between the authors, Butterworths this work reflects their depth of knowledge and understanding in insurance law. The Honourable Desmond Derrington QC, who served as a Supreme Court judge for 18 years, is considered to be an expert within the insurance field, and was the consultant editor of Reviewers: The CCH Insurance Law Reporter. Ron Ashton was, and is, one of the foremost experts in insurance law. His reputation and expertise Hon Justice Philip were firmly established while he was a partner at Minter Ellison Morrison and Ms (formerly Morris Fletcher & Cross), and has been enhanced during Alicia McPherson his (continuing) time at the Queensland Bar. The authors, whose Australian-ness cannot be doubted, have produced a new version of what was determinedly Australian work, reflecting Australian caselaw and insurance principles, but always acknowledging the English origins of this area of the law. The historical perspective has not been ignored, with a reminder of how, in the 19th century, liability insurance was contrary to public policy and marine insurance was the predominant form of insurance. However this was overtaken with the development of more general liability insurance, particularly ‘when snails were alleged to have a propensity to find their way into stone bottles of ginger beer, for which the manufacturer would be liable to any ultimate customer who might become shocked on this discovery.’1

From the single volume of the previous editions2 this work has blossomed—exploded might be a better term—in size to two volumes of some 3437 pages. At that length, it is longer than The Complete Works of William Shakespeare3 and Tolstoy’s War and Peace combined. Its size might even cause one to say that it ‘hath … points more than all the lawyers in Bohemia can learnedly handle, though they come to him by the gross’.4

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As with other double volume works—Chitty on Contracts or the White Practice spring to mind—there are risks of visual intimidation by sheer size, if not the physical effort involved in carrying it to the desk, and then disappearing into the text. The saviour for the intimidated in those cases is the ease of use, the comprehensibility of the text and the rich content of cited authority. So it is with this work.

One reason for the expansion in volume is that the authors have included considerable American case authority—what they call, in the sort of flourish that those who know the authors will recognise with fondness ‘a crop too rich to be ignored, even though it be necessary to sort the grain from the weeds’. The use of American authorities complements and enhances the already impressive list of case authority from England, Australia, and, in acceptance of work that would not normally survive the authors’ competitive love of rugby and cricket, New Zealand.

The length of the work is prefaced in the Foreword of the authors, where they encourage the reader to become familiar with the general Table of Contents, and then make use of the extensive index,5 which contains an invaluable list of words and phrases. However, it is also noted that the Index is often an approximate only due to the ‘misbehaviour of computers’.6 To an experienced practitioner this will not cause an issue, however to a lay person, student or practitioner wishing to diversify themselves, this may become problematic. Although, if a reader follows the advice of the authors and ‘consult[s] the whole of the surrounding text’,7 then this should not be a major concern. The authors suggest that one should do so as ‘a proposition of law will not stand alone and must be understood in the context of the whole topic’,8 and there are many such topics. The topics are comprehensive, covering the areas of liability insurance for motor vehicles, product liability, directors’ and officers’ liability, employers’ liability, professional indemnity, householders’ liability, home contents, occupiers’ liability, and aviation.

A basic understanding of the area is required to navigate through the two volume masterpiece, as it does not offer a simple overview, rather an in depth analysis. However, whilst The Law of Liability Insurance is undoubtedly well written and easy to read, it is unashamedly aimed at the practitioner. The cases are mostly footnoted, and there is sparse direct quoting, which allows for ease in comprehension. However, from a legal perspective, as a result of this the work only directs the reader to the correct case, and general principle. The practising lawyer or insurer is required to further research the case to find the exact legal principle, terminology and correct application.

For many reasons The Law of Liability Insurance is a must in any serious practitioner’s library, whether they be a lawyer or insurer. There is no doubt that it is a specialist text, but that should not hide the fact that it is also a comprehensive general resource on the principles of insurance law. In that sense the title can mislead the impatient reader—it is not merely concerned with liability insurance, but also contains a detailed analysis of basic insurance principles in the early chapters. Those dealing with the Contract of Insurance, Construction, Utmost Good Faith and Disclosure deal with the nature of insurance and insurance contracts, albeit in order to lay the groundwork for the discussion of liability policies. This makes it a work that is, to a degree, accessible to the student as well as the practitioner. To the same effect are the chapters on Cover and on Expectations, which are retained from the 1990 and 2005 editions.

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In short, The Law of Liability Insurance is a comprehensive work, covering all areas of liability insurance. However, with some chapters themselves spreading over 300 pages, the reader must make effective use of the Table of Contents and Index, as well as have a basic understanding of liability insurance, in order to make the best use of the text. There can be no doubt, however, that the effort will be repaid.

1 Desmond K Derrington QC and Ronald S Ashton, The Law of Liability Insurance (LexisNexis Butterworths, 3rd ed, 2013) 4–5. 2 1990 and 2005. 3 Barnes & Noble Collectable Edition. 4 Shakespeare; Winters Tale, 4.4.234. 5 Derrington, above n 1, Foreword. 6 Ibid. 7 Ibid. 8 Ibid.

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A Funny Course for a Woman

Author: Rosemary Balmford

Publisher: Australian Rosemary Balmford was appointed as the first woman on the Scholarly Publishing Supreme Court of Victoria in 1996. What is remarkable about Rosemary’s appointment is that her journey to that position was rather unique. I was intrigued to learn that she had never practised at the Bar, but rather had been admitted as a solicitor in 1956 and then worked in a variety of positions as a solicitor or lecturer before Reviewer: The Hon her appointment first to the Administrative Appeals Tribunal in Justice Ann M Lyons 1983, and then to the County Court in 1993 before her subsequent elevation to the Supreme Court. It was indeed a rather unusual progression to the court, and that journey has been outlined in her autobiography entitled A Funny Course for a Woman.

The author has a prodigious memory and gives a detailed account of her years growing up as a child in Burwood, Melbourne, during and after the Second World War. Indeed, a particular focus of the book is the period of her life before her appointment to the court, with particular emphasis on her years as a student and as a young solicitor. I loved the account of her war years in Melbourne and how she and the city were affected and of her years at the Melbourne University Law School where she had the privilege of studying under Zelman Cowen.

Amazingly, Blamford had no difficulty obtaining articles in a law firm in Melbourne in 1953 and ultimately was made partner of that firm in 1960, which must have been remarkable at the time. She ultimately retired from the firm when her son was young. She subsequently worked in a number of positions including as a solicitor at the University of Melbourne, as the executive director of the Leo Cussen Institute and as a member of the Equal Opportunity Board of Victoria.

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Her account of the early years of the Administrative Appeals Tribunal is also intriguing as she discusses the expansion of the role of that tribunal, noting that the jurisdiction ‘expanded almost daily’. Sadly, her decade at the AAT is covered in a rather brief chapter and I would have liked a more detailed examination of that very historic period of her life. Similarly, the chapter on her appointment to the Supreme Court is also covered rather quickly and in a very factual way. I would have really liked some more in-depth reflections on her years at the Bench.

No doubt having lived a very full life there was a lot of material to cover, particularly her involvement with Royal Australasian Ornithologists Union, having written a number of books on the subject and her role with the Nursing Mothers Association of Australia.

All in all, this book is a very interesting account of a very full life.

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My Journey from Maclean Bridge

Author: John McKnoulty AM

Publisher: John The ease of self-publishing and interest in family history has seen McKnoulty a proliferation of personal memoirs, but they barely attract a much wider readership than family and friends. John McKnoulty’s varied and fulfilling life, particularly in the law and in sports administration at a high level, ensures a much wider audience for this memoir. Reviewer: The Hon Margaret White AO It is engagingly written and full of anecdotes and observations about the many politicians, legal practitioners, sportsmen, priests and religious whom he encountered on his long journey from the dairy farm at Maclean Bridge, where he grew up, to the board rooms of Brisbane. The character assessments he makes are generous, the stories amusing or kindly, and the criticisms constructive, so that the reader may infer that were there is a name without more—where more might have been expected— restraint has been exercised. This is certainly not to suggest that John McKnoulty’s approach is saccharine or bland; it is too full of interest for that. Instead, his memoir tends to reflect the measure of the man who emerges—intelligent, decent, energetic and with a wonderful knack of getting on with all manner of men (and women, but his public life was largely in the realm of men) and seeing and appreciating all their strengths. He has been a tremendous contributor to our civil society.

Younger lawyers will get a splendid account of how successful firms grew their businesses more than half a century ago, while more senior members of the profession will indulge in a pleasurable dose of nostalgia—being reminded of how things were done, and of past identities in the law.

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John McKnoulty’s great passion was cricket, while acknowledging, modestly, that he never rose above fourth-grade post school at Downlands, where he played in the 1st Eleven. He employed that passion in the administration of the sport, holding many offices over an extraordinary more than 50 years including as president of the Queensland Cricket Association Limited, from 1994–2002, and as trustee of the Brisbane Cricket Ground Trust from 1983–88. In those roles, he was in the centre of tussles between the bodies who called the ‘Gabba home; the redevelopment of the ‘Gabba, which gave him a close working relationship with Clem Jones; the introduction of night greyhound racing; and the controversial World Series Cricket, which changed international cricket irrevocably.

It was his involvement with cricket administration and liquor licensing which has given him a different perspective on some of the public sector reforms flowing from the Fitzgerald Report, which caused user representation appointments to statutory bodies to cease for fear of conflict of interest and his observations are worth noting.

Since the 1950s, McKnoulty has been a member of the Wanderers Cricket Club, playing all over Queensland for pleasure and to encourage schoolboy cricket. He has been a stalwart of the Gold Oldies touring team for many years, playing with such starts as Sam Trimble and Ray Lindwall. He counted some cricket greats among his closest friends, especially the late Peter Burge (the eulogy he delivered at his funeral service in October 2001 is included in the book), Greg Chappell and umpire Lou Rowan, who has contributed the forward.

John McKnoulty has written in themes rather than giving a discursive chronological account of his life. This has both advantages and disadvantages. To counter the disadvantage of trying to recall what else he was doing at a particular time, a chronology or, rather, a succinct profile, is included at the end of the book, while the introductory overview paints the overall picture. The advantage is that a reader, possibly not greatly interested in Mr McKnoulty’s parish at Annerley, where he was closely involved, with his wife, in promoting and developing the school (Our Lady’s College) and the parish outreach, can safely pass over it and not risk missing an entertaining anecdote about cricket or hoteliers, for example. (He was a member of the Liquor Licensing Commission from 1982, and chair from 1988–92 after he left McCullough Robertson. He also chaired Bread Industry Committee and Authority and the Queensland Fish Board). But that reader should know that his religion and close connection to the Catholic Church in Brisbane was, and is, an important part of his life. He brought the same practical, sensible energy to resolving the parish’s financial issues as he did to all other spheres of his life. His contribution was recognised with the award to his (and his wife) in 2004 of the Papal Gold Medal for meritorious service by John Paul II.

John McKnoulty writes of his childhood on the farm with affection and dry humour. His father, along with three brothers, had served on the Front in the First World War where he was twice gassed. While this affected his health, he ran a 100 cow dairy innovatively—the first in the district to introduce milking machines. Some of the six children in the family (including John) rounded up the cows each morning before school, barefoot, and with the addition of a hessian bag coat in winter.

During the Second World War the McKnoulty home was something of a centre for the army camped nearby. Eventually, the family came to run the local army canteen. The account of this golden

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childhood is simply a delight. Shortly after John McKnoulty started at St Laurence’s College at South Brisbane, the farm was sold.

Subsequently he attended Downlands College at Toowoomba from mid-Junior, which he describes as ‘three magic years’. There, his Christian and social values were nurtured and developed. He played tennis at 1st Grade level—on one occasion with the Australian Davis Cup team (David and Adrian Quist). However, the family had no financial capacity to fund further study after leaving school, or even for him to undertake articles of clerkship, which would have been his choice. He resolved on securing employment as a law clerk and telephoned Miss Beryl Donkin, the secretary of the Queensland Law Society, well-known to generations of Queensland solicitors, for assistance. In a reversal of so many stories of this period, McCullough Robertson was looking for an office girl. Miss Donkin telephoned one of the partners, Mr Andrew Muir, and nothwithstanding his wrong gender, John McKnoulty was interviewed and invited to start work the next day. The entire complement of the firm was then six people.

After several years as a clerk, Mr Muir suggested that McKnoulty should take up articles. He explained that he could neither afford the premium, nor any reduction in salary. The premium was dispensed with and the salary remained unchanged. John McKnoulty became a partner of a much larger firm in 1958. He was very much the client rainmaker. The firm’s base then was largely pastoral, and McKnoulty expanded this by developing an expertise in estate and tax planning for rural families. The firm continues to have an outstanding reputation in this field. How McKnoulty happened to stumble into this area of law is as entertaining a story as it is instructive.

Plainly, John McKnoulty was good at attracting clients, and accordingly, the partners were happy to indulge his involvement in sports administration. As a consequence McCullough Robertson pioneered corporate entertainment at sporting events in Queensland.

After about 40 years it was time for John McKnoulty to move on from the firm. He had been a member of the Liquor Licencing Commission in his later years at the firm, and in 1988 was appointed chairman. He had a significant involvement in the quite socially dramatic changes in Queensland’s drinking laws, some of which he now sees as too liberal. That chapter is replete with insights into the hotel industry and the political figures of the time.

The book is well supplied with photographs. Lawyers will relish one from the 1970s showing the partners of McCullough Robertson all soberly suited and neatly tonsured save for a very young David Searles (now his Honour Judge Searles of the District Court) with curly locks almost to his shoulders. What tolerant men the senior partners were!

This memoir is warmly recommended, especially to lawyers and cricket aficionados, who will be delighted to be reminded of the past and diverted by the insider stories of so many events which had made headlines in the Brisbane newspaper.

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Old Law, New Law: A Second Australian Legal Miscellany

Author: The Hon Keith Mason AC QC

Publisher: The There is not much, associated with legal learning, that the Hon Federation Press Keith Mason cannot do. He established his credentials as a barrister and as a judge. He is a serious legal author, as is manifest by his collaboration with John Cater in Restitution Law in Australia and Mason and Carter’s Restitution Law in Australia. His work, Constancy and Change, established his credentials as legal Reviewer: Roger philosopher as well. By all accounts he is also a high quality law Derrington QC lecturer in his roles as a visiting professor at the University of New South Wales and as a Senior Fellow at Melbourne Law School.

By way of humourous relief, he turned his hand to the less serious side of the law by producing the first Australian Legal Miscellany in Lawyers Then and Now: An Australian Legal Miscellany. It was an outstanding success and received suitably favourable reviews from knowledgeable critics. Naturally, the ‘colourful’—if that is the right word—Australian legal fraternity has generated more material

This vastly entertaining book will fascinate Lawyers Then and Now in the last couple of hundred years than can be contained in one Old Law, lawyers with its true tales from Australian law. Keith Mason uses wit and humour, and New Law considerablegathering, erudition, to paint an entertaining, and so it is unsurprising that he has produced this A Second Australian Legal Miscellany engrossing picture of the people of the law, its historysecond and the cases which havevolume. occurred. While his first was excellent, this second is at least Keith Mason Readers will discover:

• who was Australia’s youngest judge Keith Mason has been a solicitor, as good, and not only because its focus is more broadly Australian • instances of extreme rudeness in court and barrister, law reformer, solicitor- between judges general, president of a court of appeal, law teacher and mediator. • humourthan of all sorts its predecessor. It is somewhat shorter than the first, but it is He has published on topics • which judges served the longest and shortest including judicial method, legal termsno in office poorer for that. taxonomy, the law of restitution, • the barriers facing women who wanted to and the interface of law, morality practise law and when they were scaled and religion. Currently he is a • which judge was tried and acquitted of visiting professorial fellow at the murder and which law officer was convicted University of New South Wales of murderThe and sentenced taxonomy to hang. of any legal miscellany is necessarily an art. Legally and the chancellor of the Anglican diocese of Armidale. This work, The book also has chapters on law’s interface Mason Lawyers Then and Now, combines with religion,categorised art, sport, gambling and strands of the law are intensely interwoven, and it is literature. Mason finds amusement and truth the interests of an amateur legal in the quirkiness of the law and the humanity historian with insights drawn from of its people. a fortunate life in the law. no small task to separate them from the elaborate pattern of the “Then and now” in the title points to the recurring constancies and changes in Australianlaw legal cultureand with concentrationreassemble on them according to their more commonplace, aspects of legal culture that are accepted in one COVER DESIGN Wide Open Media FRONT COVER DESIGN inspired by Karl Maier [email protected] generation and condemned in another. ISBN 978-1-86287-890-7 human character. However, Mr Mason displayed his mastery of The final chapter “Fallible All” recapitulates the theme that lawyers are far from perfect even as (most ofthis them) struggle in to performhis at firsttheir best. miscellany, and so it is again. His gathering into

9 781862 878907 groups of cases on ‘Food and Drink’, ‘A Little Chapter about Sex’ and ‘Death and Taxes’ are particularly good examples. Although

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the last chapter, ‘Torts: Injuries to Body or Reputation’, does not require any taxonomical effort by the author, the perspective which it offers is thought provoking. So, too, the section on foolish litigants who resort to the law of defamation is instructive of the developing Australian attitude towards permitted criticism of others.

Modern thinking demands that any work on any relevant topic acknowledges the evils inflicted on women over history. It is unlikely that any book of this kind would omit it. So it is, as it should be, that this is the first topic in it. It discusses not only the position of women in the profession, but also the status of women under the law and, in particular, their position vis-à-vis their husbands. This is largely historical and is fascinating for that reason. The curiosities of the historical dis-entitlement of married women to testify against their husbands, or to hold property, or to sue separately from their husbands, seems grossly unacceptable in this modern age.

On the related topic of marriage, the author identifies unusual legal developments in Australia, both in terms of entering into marriage and, more importantly, exiting it. The latter includes instances of both legal and not-so-legal methods of achieving the same result. Difficulty as to the dissolution of marriage in the early settlement was compounded because the Colonial Office in England thought it imprudent to allow the colonial courts full power to dissolve marriages, and this necessitated the passing of legislation to permit the dissolution of marriages which had been contracted through the deceit of one party. Further, the restriction of marriage within the accepted degrees of affinity was particularly harsh in the limited Australian circumstance, and this led to some anomalous situations until they were remedied by suitable legislation.

It also seems that less legitimate forms of marriage dissolution, including bigamy, were popular at the time. The difficulty of identification and the impossibility of bringing witnesses from England often meant that the authorities could not prove the identity of a relevant person or the previous marriage. These differences between the law and how and whether it could be enforced in the remote antipodean colonies are all splendidly described in these chapters.

The chapter on ‘Death and Taxes’ is particularly amusing, though it may be so only to those who have an interest in the legal value of both. However, they have contributed well to the prosperity of lawyers, and this historical collection of unusual vignettes on them in the one chapter is quite apt. As the author wittily but tellingly remarks in his opening to this part:

For Benjamin Franklin, nothing was certain but death and taxes. Corporations with their perpetual succession and easy portability overseas or to the bottom of the harbour have made them popular for avoiding each adversity. Humans are not so fortunate.

This chapter recounts unusual cases of killing, of poorly drafted wills (including those of some judges), of unusually written wills such as those written on walls, of family provision claims, and of badly written taxation legislation.

Chapters 7, 8 and 9, being ‘Trials and Tribulations’, ‘Cut, Thrust and Contempt’ and ‘Appeal Courts’ respectively, form a collation of topics which are interesting to a litigating practitioner. As the chapter titles indicate, they concern the day-to-day business of the courts but, as the author was more recently

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a judge rather than a barrister, they are understandably described from the point of view of the Bench rather than the Bar. Of particular interest is the piece concerning the sudden departure of a judge on the Queensland Court of Appeal who was overcome by the tedium of the matter before him. In the author’s words:

McMurdo P was sitting with Pincus JA and Muir JA while an unrepresented litigant droned on. Driven to breaking point, but without consulting his colleagues, Pincus JA abruptly quit the Court. The President quietly invited Muir JA, on her left, to follow suit and, as he was leaving, informed the litigant that the hearing would proceed as a single judge matter.

The chapter entitled ‘Trials and Tribulations’ discusses, in part, the difficulties of early circuit courts, including both the harsh conditions of the locus fori and the dangers, sometimes fatal, of travelling to and from them.

Once court proceedings are underway, the dynamic is usually between counsel and the judge and, in that dynamic, the judge generally holds all the aces. In ‘Cut Thrust and Contempt’, various withering comments from the Bench directed at counsel are assayed, but, it is rightly noted, when such comments appear in written form, they usually wound the reputation of the assailant. The reader is also regaled with some witty, perhaps courageous, retorts from the other side of the Bar table and from litigants themselves.

The chapter on ‘Appeal Courts’ identifies some of the curiosities of the appellate system which, not being a creature of the common law, sometimes entangles itself, as when, out of necessity, judges are required to sit on appeal from their own decisions. Of particular interest is a part dealing with agreeable judges. This is not a reference to their benign judicial persona but to their propensity to agree with the judgments of their fellow appellate judges. Barton J was one of these: he so frequently agreed with his Chief Justice that he was frequently accused of having no mind of his own. Also mentioned is the dissentient, a rare bird in Queensland. Persistent dissentients and judicial rejoinders in the same or subsequent cases happily remind counsel that judicial asperity is not always directed at them.

The judicial method, particularly as it applies to judgment writing, receives treatment in chapters 10 and 11. Long and short judgments are considered (at some length) as are the judgments of those judges who attempt to alleviate the work of law reporters with their more mercurial or literary reasons. Given his judicial experience, the author is acutely aware of the judicial approach to difficult legal argument and, in particular, of how courts deal with or avoid inconvenient finer points of law or logical roadblocks. These methods, and the judicial attitude to legal fictions, are discussed in the chapter entitled ‘Getting Technical’.

A more serious note is struck when he considers the perennial issue of conflict between the courts and the executive and the application of the rule of law. Here, he notes this country’s fortunate legal history, founded as it is on the rule of law, and he instances occasions when the executive has criticised the courts and accused them of failing to dance to the tune of the government of the day. Happily, our history reveals that these ill-informed criticisms or outright abuse of courts by politicians who are neither educated in law nor in Westminster parliamentary democracy have rarely dissuaded the courts from their task. Attention is also drawn to the threat to the rule of law from within, that is, from those

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judges who through recalcitrance, judicial activism or misguided independence refuse to apply the law as it is their duty to do. Thankfully, such instances are few. Certain events in Queensland during the past 18 months are likely to make the corresponding section of the third miscellany.

Not all the chapters are mentioned in this review, but the random selection discussed is sufficient to demonstrate the quality of the work. There is much to enjoy in it. It is amusing, thoughtful, instructive and subtle. It is also very well written with Mr Mason’s usual precise and pellucid style. The pleasure of reading it is increased by its array of hidden gems in its text, footnotes and even in its index with its humorous categorisation and well placed jokes.

In all, it is an important contribution to Australian legal literature. Through its aggregation of anecdotes concerning Australian legal life, a characterisation of its practitioners emerges, at once, colourful, witty, brave and intelligent.

Old Law, New Law is another triumph for Mr Mason. Like its predecessor, it is entitled to stand next to Mr Megarry’s five works in this genre. One might hope that the increasing years and the expanding volume of the practice of law in this country may provide sufficient material for a third edition in the not-too-distant future.

It would be remiss to omit to mention that the publisher is The Federation Press. It stands above any other legal publisher in Australia in a niche at the apex of intellectual legal publishing. Whilst other legal publishers produce many excellent and essential works for the busy practitioner, The Federation Press focuses on intellectual legal publications which carry the law forward, and the legal profession is all the better for that. A steady stream of quality legal works now emanate from it and, although they may not all be day-to-day reference works for the practicing lawyer, they are almost all excellent examples of legal writing which substantially enhance the bank of legal knowledge in this nation.

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Sir Charles Lilley: Premier and Chief Justice of Queensland

Author: Dr J M Bennett AM

Publisher: The In colonial Queensland, two legal figures stood out from their Federation Press contemporaries—Sir Charles Lilley (1827-1897) and Sir Samuel Griffith (1845-1920).

We know a great deal about Griffith. His public life, as barrister, statesman and judge, was well-documented. So too was his private Reviewer: John life, through this diaries and letters. As a key figure in the drafting McKenna QC of the Australian Constitution and as the first Chief Justice of the High Court of Australia, Griffith has been the subject of recurring biographical interest. Whilst noting his flaws, both legal and political historians have generally been kind to him.

Lilley is a more elusive and difficult figure.

He arrived in Brisbane in August 1856, at the age of 29, alone and without money, connections or qualifications. As Lilley later put it, ‘I came among you, poor and unbefriended … without a single J.M. Bennett Sir Charles Lilley soul to assist me, and I fought my way up among you’. Premier and Chief Justice of Queensland Within about two years of arriving in Brisbane, Lilley had completed the remainder of his articles of clerkship with an influential local solicitor (Robert Little) and had become the first practitioner to sign the new Roll of Attorneys, Solicitors and Proctors of the Supreme Court of Moreton Bay (14 August 1858). In this short period, he also became active in local politics, the editor of the local newspaper (Moreton Bay Courier), and married to the daughter of a prominent local builder (Joshua Jeays). It seems likely that Mr Jeays also built for the young couple a stone cottage on Wickham Terrace (Jesmond), in which the Lilleys ultimately raised a family of five daughters and eight sons–seven of whom became T H E F E D E R A T I O N P R E S S lawyers.

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Within his first 12 years in Brisbane, Lilley’s professional and political achievements were even more astonishing. He had been elected to Queensland’s first Legislative Assembly as the member for Fortitude Valley (1860) and commenced practice at the Bar (1861), then was successively appointed Attorney-General (1865), the colony’s first Queen’s Counsel (1865) and ultimately Premier of Queensland (1868-1870).

By 1870, Lilley was still only 43 years of age. After losing government as a result of a no-confidence motion on the floor of the Legislative Assembly, Lilley shifted his main focus to the law. In 1872, he was appointed judge of the Supreme Court—with an appointment as Queensland’s second Chief Justice soon to follow (1879–93).

It was in this last capacity that Lilley attracted the attention of Dr John Bennett. Since the 1960s, Dr Bennett has been meticulously filling in pieces of the complex puzzle which is Australia’s colonial legal history. Dr Bennett’s home jurisdiction has been the beneficiary of an important set of his works, exploring the history of the New South Bar (1969), the Supreme Court (1974) and its solicitors (1984). For many years, however, Dr Bennett’s more ambitious plan has been to produce a set of works devoted to the lives of each of the Chief Justices of the Australian colonies. There are now 14 volumes in this set—including two volumes dealing with the first two Chief Justices of Queensland.

Judicial biography is a challenging genre, as so many lawyers who were great celebrities in their own time do not necessarily ignite the interest of the modern reader. Fortunately, the colonial Chief Justices were a quite remarkable group. To the extent that any one theme can be extracted from a study of such a diverse group, it is the steadying role which most played within colonial society by reason of their moderate, educated, charitable and civilising influence. In Lilley’s case, he was a man of strikingly modern and progressive views. At a time when Queensland politics was dominated by conservative rural interests, Lilley was prepared to give public support for progressive causes such as free primary school education, votes for women, trade unionism, the establishment of a university in Queensland, federation of the Australian colonies and even republicanism. During his short term as Premier, Lilley did not have the luxury of control over the Parliament. Indeed, it was only by a somewhat adventurous use of executive power that he was able to become, as the obelisk on his grave records, the ‘founder of free education in the Colony’. However, by advocating a range of reforms with great skill and vigour, Lilley’s efforts did much to introduce ideas which would later take root.

In the rough and tumble of colonial politics, Lilley’s conservative opponents did not hesitate to respond with attacks upon his character—in Parliament, on the hustings and in the press. These were not nuanced or subtle attacks. In effect, Lilley was alleged to be ‘a drunkard and one who comported himself shamelessly as a man guilty of gross immorality and sexual lust’. For a time, Lilley was well equipped to defend himself. In November 1871, for example, Lilley had the courage to bring defamation proceedings in the Supreme Court against two regional newspapers —with jury verdicts vindicating his reputation by awarding damages in the relatively large amounts of £300 and £475 respectively. After his appointment to the court, however, the position was very different.

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It is this period of Lilley’s career, as Chief Justice of Queensland, that creates the greatest challenge for a biographer. In the absence of any private diaries and letters, or any dispassionate assessment by his contemporaries, it is difficult to fully understand some aspects of Lilley’s conduct which, to modern eyes, seem quite unwise. During this period, for example, one of the Chief Justice’s sons (Edwyn Lilley) was developing a successful career at the Bar in Brisbane. By modern standards, there would be no question of a son or daughter appearing as counsel in contested hearings before their own parent. In Lilley’s court, however, it was common for Edwyn Lilley to appear as counsel before the Chief Justice—with many of these hearings occurring in the privacy of the judge’s own chambers. This practice may have been legally permissible at the time, but not surprisingly it seems to have generated some disquiet. It also seems to have led some litigants to seek a forensic advantage by briefing Edwyn Lilley in matters that could be arranged to be heard by the Chief Justice. Lilley, however, appears to have been unconcerned by appearances. Outside court, a similar lack of concern seems to have led the Chief Justice to participate in political debate as if he were any private citizen. As Dr Bennett explains, ‘Sir Charles Lilley considered that he had an absolute right to comment publicly, while Chief Justice, on matters of public concern, no matter how contentious. He candidly admitted that speaking out in such a way exposed him to criticism—as it did—but he brushed that risk aside’.

This lack of concern about appearances, or sensitivity to criticism, may well have done Lilley’s reputation no serious harm, but for his unfortunate involvement as the trial judge in Queensland Investment and Land Mortgage Company Limited v Grimley (1892). This case had a number of features which should have signalled danger to the Chief Justice. It was a case of enormous public importance. The claim was very substantial (£60,000). The claim was being brought by a financier not only against its borrower, but also against its former directors for negligence in failing to obtain appropriate securities for the loan. These directors were prominent and influential Queensland figures, two of whom were former political rivals of Sir Charles Lilley—Sir Thomas McIlwraith and Sir Arthur Palmer. If this were not enough, the counsel chosen by the plaintiff to conduct its case against these defendants was Edwyn Lilley.

When hearing the trial of this exceedingly complicated and lengthy case, it seems clear that the Chief Justice was not in good health. Nevertheless, in the course of the hearing, he made a number of important and contentious discretionary decisions—which seemed to consistently favour the plaintiff (and the submissions advanced by his son) over the defendants (including McIlwraith and Palmer). Most significantly, the Chief Justice determined not to act upon the answers given by the jury, which were favourable to the defendants—but substituted his own judgment on the facts, which substantially favoured the plaintiff.

Lilley’s conduct of this trial was the ruin of his reputation—particularly after this judgment was so comprehensively reversed by the Full Court (1892). This controversy also revived earlier rumours and innuendo about Lilley’s character and conduct—with further colourful material being added to the existing corpus by a private investigator engaged by McIlwraith. In these circumstances, it seems certain that, had Lilley not himself decided to resign from the court, others would have taken steps to have him removed. Sir Charles Lilley’s resignation took effect in early 1893—when another Premier of Queensland, Sir Samuel Griffith, took his place as the next Chief Justice of Queensland.

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In Dr Bennett’s new biography of Sir Charles Lilley, he has been careful not to be distracted by the ‘many personal and vicious attacks upon [Lilley] by his political opponents’. He has marshalled the objective evidence which is available about Lilley’s personal and professional life, and applied his deep knowledge of this period of Australian history to make considered and judicious assessments. In the result, a great deal of misinformation about this important figure has been exposed, and Lilley rightly emerges as ‘one of the leading statesmen of colonial Australia’ and ‘as one of the most accomplished lawyers of his generation’.

QUEENSLAND LEGAL YEARBOOK 2014