DOCSLIB.ORG

Imagereal Capture

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

JOHN WALPOLE WILLIS: FIRST RESIDENT JUDGE IN VICTORIA (a) Introduction John Walpole Willis was the first resident Judge in the district of Port Phillip of the Supreme Court of New South Wales, on its extension to that district. A controversial, sometimes eccentric man, he opened the . first sittings of the court on Monday, 12 April 18411 and held office for just over two years. During that period, he polarised the small Melbourne community, alienated the entire legal and executive establishment, and brought disrepute on himself and his court. He created such controversy and opposition amongst infiuential sections of the community, that Governor Gipps, acting on numerous complaints, removed him from office in June 1843.2 I The traditional view of Willis supports this dismissal. Contemporaries and subsequent writers considered him an argumentative, volatile and cantankerous man, both on and off the bench, a man Ewlhose habitual sarcasm is unbecoming, whose facetiousness is indecorous, whose domineering is improper, whose fidgeting is a sign of censurable irn- patience and whose system of 'summing up' is partial to the last degree.3 This writer, however, considers this view to be grossly unbalanced, if not erroneous, and that Willis's judicial career, far from warranting sum- mary dismissal, deserves some recognition, if not acclaim. Willis posses- sed a brilliant, scholarly mind, sound legal knowledge and was imbibed with the highest ideals of a judge's role. He had a highly developed sense of justice and unquestionable professional integrity. He was impartial? hardworking, a stickler for punctuality and court procedure, and was lauded for 'fearless independenceY5and 'wisdom and integrity of judicial decisions . unwearied assiduity, unflinching firmness, and unbending independence in effecting substantial justice'.6 He thus enjoyed consider- 1 Port Phillip Gazette, 14 April 1841, 3. The Supreme Court of Victoria was not created as such until 1852. See Woinarski, The History of Legal Institutions in Vic- toria ( 1942) 3 11-53, for a detailed account of its foundation. 2 Willis was removed by an order of the Governor in Council, dated 17 June 1843: Gipps, Letter to Stanley, 27 December 1843, reprinted in Historical Records of Australia (1st series) xii, 797. The Records are hereinafter referred to as H.R.A. 3 Port Phillip Gazette, 21 June 1841; Court proceedings and Wdls's career were closely followed by the three bi-weekly newspapers published in Melbourne: the Port Phillip Gazette and Port Phillip Herald vehemently opposed him, whilst the Port Phillip Patriot supported him. 4 See address to Wilis on hs dismissal in Ju!y 1843: Port Phillip Gazette, 12 July 1843, 3. The Gazette also wrote: 'We like hun the better because he has never administered one kind of justice to the rich, and another kind to the poor': 28 June 1843, 3. 5 Port Phillip Patriot, 26 June 1843, 3. 8 Port Phillip Gazette, 12 July 1843, 3, quoting from an address by Willis: see n. 4, supra. 703 704 Melbourne University Law Review [VOLUME8 able popularity, mostly amongst the lower, socio-economic sections of the community. He was, in addition, chronically ill,7 a fact to be remembered when assessing his extraordinary judicial demeanour. (b) Early Career John Walpole Willis was born on 4 January 1793, the second son of Captain William Willis of the 13th Light Dragoons.* He attended Rugby, Charterhouse: and was called to the Bar in 1816. In 1824, by which time he was enjoying a rising reputation as an equity barrister,1° he married Lady Mary Lyon, the daughter of a Scottish nobleman, by whom he had one son. That marriage was subsequently dissolved by Act of Parliament in 1833, and in 1836 he married again to a Miss Anne Bund, daughter of Colonel M. T. H. Bund of Wick House, Worcester.ll Willis enjoyed rapid legal promotion. In 1827,12 then thirty years of age, he was nominated as a Judge to the Court of Chancery in Upper Canada. He took up office in Canada in 1827, but soon quarrelled with the Lieutenant Governor, Sir Peregrine Maitland,13 his advisors, and his own legal colleagues. The Governor,14 without consulting Willis, even- tually removed him from office when he declined to sit in banco in the absence of the Chief Justice.16 Willis repaired to London and appealed successfully to the Privy Council against his dismissal, thus vindicating his name and reputation.16 In March, 1831, he was appointed Vice-President of the Court of Civil and Criminal Justice of British Guiana.17 There, he devoted himself with great energy and success to his duties, but in February 1836, his health failed and he returned to England on furlough.ls On the point of departure back to Demerara, British Guiana, he was appointed puisne judge of the Supreme Court of New South Wales. Willis thus arrived The exact nature and severity of his illness is uncertain. See infra pp. 707-8. * Pike (ed.), Australian Dictionary of Biography (1966) ii, 602. From which he was expelled, in 1809. Ibid. 602. No reason is given. loHe published the following during his early career, while waiting for briefs: A Digest of Rules and Practice as to Interrogatories for the Examination of Witnesses (1816); Pleadings in Equity Illustrative of Lord Redesdale's Treatise on the Pleadings in Suits in Chancery by English Bill (1820); Duties and Responsibilities of Trustees (1827): see ibid. 603. UForde, The Story of the Bar in Victoria 1839-1891 (1892) 54. Willis spent the last years of his life in Wick House, dying there in 1877. l2Willis, Letter to Gipps, 30 March 1839 in H.R.A. xx, 118. 13 Zbid. 119. 14 Zbid. 15 Willis voiced his opinion (probably correct) that because of the language of the Act creating it, the court could not sit in banco in the absence of the Chief Justice: ibid. 120-1. 16The Privy Council held that though the Governor had power, under Imperial Legislation to remove the judge, the order was improperly made, as he was not given an opportunity of being heard in his defence. Strangely, in 1845, the Pnvy Council repealed the decision of Governor Gipps removing Willis from office on the same grounds. See Willis v. Gipps (1845) 5 Moo. 379; 13 E.R. 536. l7 Willis, Letter to Gipps, 30 March 1839 in H.R.A. xx, 118. 18 Zbid. 123. SEPTEMBER19721 First Resident Judge in Victoria 705 in Sydney on 3 November 1837,19 there to begin a short but tempestuous judicial career in the colony. (c) Australia: Sydney (1838-41) (i) CONFLICT Willis was not long in the colony before he began to consolidate and compound his unfortunate reputation. Whilst in Sydney, he quarrelled with his brother judges,2O especially the Chief Justice, Sir James Dowling, and with members of the community at large; he criticized Dowling for accepting the service of aboriginal convicts, a practice he placed on a par with having slaves.21 Little wonder that Dowling wrote: Willis is a fidgety, restless, self-opinionated fellow and it requires a god deal of forbearance and caution on my part to go on with him. Some people have the opinion that he is cracked.= Willis also quarrelled with Dowling over the appointment of a Judge in Equity. Willis had been a Chancery barrister in England, and, as all his brother judges were common lawyers, it followed, 'by a natural, (private) sort of arrangement amongst the Judges'23 that he heard mainly equity cases alone in the colony.24 Thus Willis considered that he should receive the appointment, with the title of Chief Baron. However, the Home Government and his brother judges differed. Dowling, largely through animosity, claimed the position late in 1840,25 much to the general surprise of the community-and Willis's annoyance.26 Willis also indulged in some extraordinary 'extra-judicial' behaviour whilst in Sydney. In a speech at a public meeting to the Committee of the Diocesan S~ciety,~~on 19 July 1838, Willis 'charged Roman Catholics with the practice of idolatrous worship'.28 After much newspaper con- troversy, Willis requested Gipps to take out libel proceedings against the Right Reverend Dr Polding, Vicar General of the Roman Catholic 19 Willis, Letter to Thompson, 27 December 1837 in H.R.A. xix, 364. 20 Z.e., Sir James Dowling, Sir William Burton and Sir Alfred Stephen. n Gipps, Letter to Russell, 3 January 1841 in H.R.A. xxi, 161. 22 Dowling, 'The Judiciary' in Australian Historical Society, Journal Of Proceed- ings (1907) ii, 98. 23 Gipps, Letter to Russell, 3 January 1841 in H.R.A. xxi, 163. 24Thirteen cases in which Willis sat have been reported in Legge, A Selection of Supreme Court Cases in N.S.W. (1896). Willis's judgments appear learned, forth- right, and conservative, notable mainly for occasional classical quotations, e.g., Ex Parte Lyons in Legge, op. cit. 140, 149: 'I prefer the elucidation of the law by the Sages of Westminster to anything that can be obtained elsewhere, even from the pro- found philosophy of another Minos, or from the righteous rigour of a rescuscitated Rhadamanthus. But can we say of this or any other colony, "Gnossius hace Rhadamanthus habet durissima regna, Castigatque auditque dolos?" Vir. Aeneid, c.C.' 25 The statute, 4 Vict. c. 22 (1840), vested the equity jurisdiction of the Supreme Court in one judge: see Gipps, Letter to Russell, 1 January 1841, in H.R.A. xxi, 155. z6For details of the quarrel, see Gipps, Letter to Russell, 1 January 1841 in H.R.A. xxi, 155-6. See also Woinarski, op. cit. 29 1-2.
Recommended publications
  • Fusion – Fission – Fusion Pre-Judicature Equity Jurisdiction In

    Fusion – Fission – Fusion Pre-Judicature Equity Jurisdiction In

    M Leeming, “Fusion-Fission-Fusion: Pre-Judicature Equity Jurisdiction in New South Wales 1824- 1972 in J Goldberg et al (eds), Equity and Law: Fusion and Fission (Cambridge UP 2019), 118-143. Fusion – Fission – Fusion Pre-Judicature Equity Jurisdiction in New South Wales 1824 - 1972 Mark Leeming* Introduction Here is a vivid account of the pre-Judicature Act system which prevailed in New South Wales at the end of the nineteenth century and its origins: To the litigant who sought damages before an Equity Judge, a grant of Probate before a Divorce Judge or an injunction before a Common Law Judge, there could be no remedy. He had come to the wrong Court, so it was said. He might well have enquired on what historical basis he could thus be denied justice. It cannot be questioned that the Court required specialization to function properly and that a case obviously falling within one jurisdiction ought not to be heard by a Judge sitting in another jurisdiction. Yet from this the fallacious extension was made that a Judge sitting in one jurisdiction could not in any circumstances hear a case which ought to have originated in another jurisdiction.1 The words are those of the distinguished Australian legal historian J.M. Bennett. There is no doubt that the jurisdictions at common law and in equity came to be treated in many respects as if they were separate courts, despite the failure of sustained efforts to create a separate equity court; despite it being clear that there was a single Supreme Court of New South Wales with full jurisdiction at common law and in equity; and despite efforts by its first Chief Justice, Sir Francis Forbes, in the opposite direction.
  • Sir Alfred Stephen and the Jury Question in Van Diemen's Land

    Sir Alfred Stephen and the Jury Question in Van Diemen's Land

    Sir Alfred Stephen and the Jury Question in Van Diemen's Land The Quest for Trial by Jury Just as a child grows and develops into an adult, it cannot but be in- fluenced by background, environment and social conditioning. So it was with the young Van Diemen's Land. Initially, there was the Eng- lish political, social and economic inheritance, which had a great ef- fect on the form of government adopted. Like an authoritarian parent stood the Imperial Parliament, but at the same time, offering some latitude for Van Diemen's Land to engage in some liberal develop- ment. Like a child, Van Diemen's Land offered little resistance. There was a Governor, a judiciary of sorts, and an administrative bu- reaucracy with control over Van Diemen's Land by way of legislation of the Imperial Parliament, such as that of 182 3, 182 8 and 1842. This control led to Van Diemen's Land becoming firmly under the grip of Mother England. The colony now consisted of free settlers, convicts and emancipists, and a few Aboriginals. The colonists must have coined the Nike catch phrase 'Just Do It (for yourself)!' for they sought to enhance their own success and to empower themselves. This was consistent with the attitude of imperialist conquerors throughout the old British Em- pire: to get what they could for themselves in the way of wealth, con- trol and power. There is no better example of this than Governor George Arthur, a career civil servant who amassed a fortune as a landowner and trader, not only in Van Diemen's Land but in other colonies where he saw service.
  • 1 Plunkett's Disappointment

    1 Plunkett's Disappointment

    [2006] ANZLH E-Journal PLUNKETT’S DISAPPOINTMENT: THE REVELANCE OF CATHOLICISM TO A JUDICIAL APPOINTMENT TO THE NEW SOUTH WALES BENCH IN THE 1840s Tony Earls* Prior to the introduction of responsible government in 1856, New South Wales had three Chief Justices, successively; Forbes, Dowling and Stephen. The Crown appointed Forbes on the advice of the Colonial Office in London. With the appointments of Dowling and Stephen, the Colonial Office looked to the advice of the Governor of New South Wales to make an appointment from within the local legal profession. Although William Burton challenged Dowling’s claim to succeed Forbes on a question of seniority, it was the events that led up to the appointment of Stephen, involving two highly credentialed and ambitious candidates, that first tested substantial questions as to rights of precedence and other factors relevant to the appointment. It need hardly be said that the appointment was, and is, a prestigious and important one. However, in order to consider the implications of an appointment, it is useful to attempt to explain why. For the individual, it is the pinnacle of any legal career, affording status and power in their own time and posterity thereafter. In the first half of the nineteenth century this was particularly true when it came to questions of social and governmental rank.1 Amongst other things, a Chief Justice might expect a knighthood following appointment as Chief Justice. As a force in society, the primary influence of a Chief Justice relates not only to the judgement of major cases, but to the administration of the courts, the keystone of the legal system.
  • Journal of the C. J. La Trobe Society Inc. Vol 17, No 1, March 2018 ISSN 1447‑4026 La Trobeana Journal of the C J La Trobe Society Inc Vol 17, No 1, March 2018

    Journal of the C. J. La Trobe Society Inc. Vol 17, No 1, March 2018 ISSN 1447‑4026 La Trobeana Journal of the C J La Trobe Society Inc Vol 17, No 1, March 2018

    SPECIAL EDITION Journal of the C. J. La Trobe Society Inc. Vol 17, No 1, March 2018 ISSN 1447‑4026 La Trobeana Journal of the C J La Trobe Society Inc Vol 17, No 1, March 2018 ISSN 1447‑4026 The C J La Trobe Society Inc was formed in 2001 to promote understanding and appreciation of the life, work and times of Charles Joseph La Trobe, Victoria’s first Lieutenant‑Governor. www.latrobesociety.org.au La Trobeana is published three times a year: in March, July and November. The journal publishes peer‑reviewed articles, as well as other written contributions, that explore themes in the life and times of Charles Joseph La Trobe, aspects of the colonial period of Victoria’s history, and the wider La Trobe family. La Trobeana is kindly sponsored by Mr Peter Lovell LOVELL CHEN ARCHITECTS & HERITAGE CONSULTANTS Editorial Committee Helen Armstrong and Dianne Reilly (Honorary Editors) John Botham, Loreen Chambers, Susan Priestley, Fay Woodhouse Designer Michael Owen [email protected] For copies of guidelines for contributors contact: The Honorary Secretary: Dr Dianne Reilly AM The C J La Trobe Society P O Box 65 Port Melbourne Vic 3207 Phone: 9646 2112 Email: [email protected] FRONT COVER Thomas Woolner, 1825‑1892, sculptor Charles Joseph La Trobe, 1853 Bronze portrait medallion showing the left profile of Charles Joseph La Trobe, diam. 24cm. Signature and date incised in bronze l.r.: T. Woolner Sc. 1853: / M La Trobe, Charles Joseph, 1801‑1875. Accessioned 1894 Pictures Collection, State Library of Victoria, H5489 2 • Journal of the C J La Trobe Society Contents La Trobe and the Aboriginal People II 4 A Word from the President Reports and Notices Articles 65 Forthcoming events 5 Fred Cahir 67 Contributions welcome Charles Joseph La Trobe and his administration of the Wadawurrung, Note 1839‑1853 This edition of La Trobeana includes images and names of deceased people; it may also include 17 Maggie Black words offensive to Indigenous Australians.
  • Chasing the Chimera: the Rule of Law in the British Empire and the Comparative Turn in Legal History

    Chasing the Chimera: the Rule of Law in the British Empire and the Comparative Turn in Legal History

    Chasing the Chimera: The Rule of Law in the British Empire and the Comparative Turn in Legal History John McLaren This article compares the imposition, application and evolution of the Rule of Law in colonial territories and their populations within the British Empire as evidence of a ‘Comparative Turn’ in exploring metro- politan and colonial legal cultures and their interrelationships. The purpose of the study is not primarily to either justify or criticise that concept, but to suggest that its complexity, contingency and controversy provides fertile soil for research relating to law and justice, and their ideologies across the British Empire. Elsewhere there might be the sultan’s caprice, the lit de justice, judicial torture, the slow-grinding mills of the canon law’s bureaucracy, and the auto-da-fé of the Inquisition. In England, by contrast, king and magis- trates were beneath the law, which was the even-handed guardian of every Englishman’s life, liberties, and property. Blindfolded Justice weighed all equitably in her scales. The courts were open, and worked by known and due process. Eupeptic fanfares such as those on the unique blessings of being a free-born Englishman under the Anglo-Saxon-derived common law were omnipresent background music. Anyone, from Lord Chancellors to rioters, could be heard piping them (though for very different purposes).1 There is inherent value and potential in comparing the legal cultures of former British colonial territories to demonstrate the processes of the translation of legal culture and ideology, not only from the metropolis to the colonies, but between the colonies themselves, and the institutional and personal networks and trajectories that facilitated these movements.
  • LORD CARRINGTON Papers, 1860-1928 Reels M917-32

    LORD CARRINGTON Papers, 1860-1928 Reels M917-32

    AUSTRALIAN JOINT COPYING PROJECT LORD CARRINGTON Papers, 1860-1928 Reels M917-32 Brigadier A.A. Llewellyn Palmer The Manor House Great Somerford Chippenham, Wiltshire National Library of Australia State Library of New South Wales Filmed: 1972 CONTENTS Page 3 Biographical note 4 Selected speeches, letters and recollections 6 Australian correspondence, 1885-1918 8 Australian papers, 1877-91 9 Newspaper cuttings and printed works, 1882-1915 11 General correspondence, 1885-1928 14 Portraits 14 Miscellaneous papers, 1860-1914 17 Diaries of Lady Carrington, 1881-1913 19 Diaries of Lord Carrington, 1888-93 2 BIOGRAPHICAL NOTE Charles Robert Carrington (1843-1928), 3rd Baron Carrington (succeeded 1868), 1st Earl Carrington (created 1895), 1st Marquess of Lincolnshire (created 1912), was born in London. He was educated at Eton and Trinity College, Cambridge. As a schoolboy, he was introduced to the Prince of Wales and they were to be close friends for over fifty years. Carrington was the Liberal member for High Wycombe in Buckinghamshire in 1865-68. He became a captain in the Royal House Guards in 1869 and in 1875-76 was aide-de-camp to the Prince of Wales on his tour of India. In 1881 he was appointed lieutenant-colonel of the Royal Buckinghamshire Infantry. In 1878 he married Cecilia (Lily) Harbord, the daughter of Baron Suffield. In 1885, at the urging of the Prince of Wales, Carrington was appointed governor of New South Wales. With his wife and three daughters, he arrived in Sydney in December 1885 and they remained in the colony for almost five years. The Carringtons were a popular couple and generous hosts, especially during the celebrations of Queen Victoria’s jubilee in 1887 and the New South Wales centenary celebrations in 1888.
  • SIR WILLIAM DENISON Papers, 1846-64 Reels M606-607, M671

    SIR WILLIAM DENISON Papers, 1846-64 Reels M606-607, M671

    AUSTRALIAN JOINT COPYING PROJECT SIR WILLIAM DENISON Papers, 1846-64 Reels M606-607, M671 Col. W.M.W. Denison Newark Nottinghamshire National Library of Australia State Library of New South Wales Filmed: 1960 BIOGRAPHICAL NOTE William Thomas Denison (1804-1871) was born in London and attended Eton and the Royal Military College. He graduated in 1826 as a lieutenant in the Royal Engineers. He served in Canada and later worked on harbour defences in southern England. In 1838 he married Caroline Hornby and they had six sons and four daughters. He was promoted to the rank of captain in 1841. In 1846, following the dismissal of Sir John Eardley-Wilmot, he was appointed Lieutenant-Governor of Van Diemen’s Land. He was knighted in the same year and awarded a KCB in 1856. He arrived in the colony in January 1847 and held the office for eight years. A strong supporter of the continuance of convict transportation, he clashed with the nominated Legislative Council and two of the judges. The publication of some of his despatches, criticising the colonists generally, added to his unpopularity. His powers were reduced following the creation of an elected Legislative Council in 1850 and, with the cessation of transportation, his later years in Tasmania were more harmonious. In January 1855 Denison was appointed Governor of New South Wales and was given the additional title of ‘Governor-General of Australia’. Prompted by the Crimean War, he immediately reorganised the defences of Sydney Harbour. He presided over the introduction of responsible government in the colony in 1856 and had to deal with considerable political instability, with three ministries formed in the first year.
  • Stephen, Robert Campbell

    Stephen, Robert Campbell

    Stephen, Robert Campbell ASC 1886 HONOURED BY THE KING; COLONEL ROBERT CAMPBELL STEPHEN. Who has been created a Companion of the Bath. Colonel Stephen is the eldest son of the late Hon. S. A. Stephen, of Sydney. He was educated at All Saints' College, Bathurst, and then entered Trinity College, Cambridge. After leaving the University he joined the militia, and obtained a commission In the King's Liverpool Regiment. Subsequently, he received a commission in, and was adjutant of, the 14th Hussars, and also of the Imperial Warwickshire Yeomanry. He commanded the 14th Hussars in India up to the commencement of the war, when he was made colonel, and retained the command for about a year. While stationed at Meerut he was brigadier-general, and from there went to Mesopotamia' in command of the 6th Cavalry Brigade. He returned from there on March 16 last year, suffering from a bad attack of dysentery, and is now in London waiting to be passed by the Medical Board as fit for further active service. Colonel Stephen is a brother of Mr. Colin Stephen, of Messrs. Stephen, Jaques, and Stephen, solicitors. BRIGADIER-GENERAL STEPHEN RETURNS TO SYDNEY. After a distinguished career with the British Army, Brigadier-General Robert Campbell Stephen, who is related to the Messrs. Stephen, of the Sydney Arm of solicitors, Stephen, Jaques, and Stephen, returned by the Cathay yesterday to Australia? He want to England when a boy, and entered Trinity College, Cambridge. There he entered the 14th Hussars, in which he rose rapidly. In 1896 he was promoted to the rank of captain, and in the same year became adjutant.
  • 2300-Forbes Flyer DEC03-5

    2300-Forbes Flyer DEC03-5

    ForbesForbes FlyerFlyer THE NEWSLETTER OF THE FRANCIS FORBES SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 3 DECEMBER 2003 History reports itself Making History It is a curious aspect of contemporary culture that the Australian Investigating the South public venerate their sporting heroes and pop idols with such Australian Independent Bar* enthusiasm but spare little thought the men and women who make a significant contribution to government or public service. Of the 150 or so barristers in That is not to say that other nations do not celebrate sporting South Australia, John Emerson or cultural achievements, but in Europe, Canada and America hopes to interview around 100 there is also a certain ethos reserved for great political and legal of them to gain the broadest figures that arguably adds much to the national life. possible perspective for the book The oddity of it is that lack of interest is no explanation. he is writing on the history of the Biographies of the significant politicians or judges of the United South Australian Independent Bar. States of America and Great Britain frequently grace Australian A chance meeting with Justice bookshelves, and names like Oliver Wendell Holmes Jr and Lord John Emerson Tom Gray in 2001 led to discussion Denning have resonance all over the globe. Such is the interest about the history of the Chief in these figures that they have developed their own legend Justices of South Australia, which John was subsequently beyond the community of lawyers. As I write I can be confident commissioned to write (through the John Bray Law that historians somewhere are industriously re-visiting earlier Chapter of the Alumni Association of the University of works and revising, re-interpreting and re-writing the lives and Adelaide).
  • Creditor Advantage, a Capitalist Land Market, and Upper Canada's Missing Court

    Creditor Advantage, a Capitalist Land Market, and Upper Canada's Missing Court

    Osgoode Hall Law Journal Volume 28 Issue 4 Volume 28, Number 4 (Winter 1990) Article 6 10-1-1990 While Equity Slumbered: Creditor Advantage, A Capitalist Land Market, and Upper Canada's Missing Court John C. Weaver Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/ohlj Part of the Legal History Commons Article This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Weaver, John C.. "While Equity Slumbered: Creditor Advantage, A Capitalist Land Market, and Upper Canada's Missing Court." Osgoode Hall Law Journal 28.4 (1990) : 871-914. https://digitalcommons.osgoode.yorku.ca/ohlj/vol28/iss4/6 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. While Equity Slumbered: Creditor Advantage, A Capitalist Land Market, and Upper Canada's Missing Court Abstract Until 1837, Upper Canada had no Court of Chancery. This omission forced stop-gap measures which in the area of mortgages produced a muddle. The confusion introduced into the land market led to protracted controversies among politicians and jurists during the 1820s and 1830s. The many complex principles and motives raised by the lack of an equitable jurisdiction generated much legislative controversy and experimentation. John Beverley Robinson often was central to vital discussions where he revealed both his intelligence and social biases favouring gentlemen of capital. Extremely complicated issues have deflected attention from the central issue: whether the colony needed equity, whether it needed to follow English law.
  • 1 JUDGE WILLIS, BONJON and the RECOGNITION of ABORIGINAL LAW. Janine Rizzetti Introduction the Case of R V Bonjon Could Have

    1 JUDGE WILLIS, BONJON and the RECOGNITION of ABORIGINAL LAW. Janine Rizzetti Introduction the Case of R V Bonjon Could Have

    JUDGE WILLIS, BONJON AND THE RECOGNITION OF ABORIGINAL LAW. Janine Rizzetti Introduction The case of R v Bonjon could have been one of the foundational cases in Indigenous legal autonomy. It touched on all the big early 19th century legal questions regarding Indigenous Australians: the legal status of British settlement, whether Aborigines could be said to have their own law, and whether British law applied in crimes committed between Aboriginal people themselves. It could, too, have been the most significant case in the career of Mr Justice John Walpole Willis. But it was to be neither a foundational case, nor a career highlight. Instead, if R v Bonjon is known at all, it exists as an aberration, quickly over-ruled at the time, and often referred to in passing or even consigned to a footnote in later discussions of the amenability of Indigenous Australians to British law. The case was heard in September 1841 before Willis in his capacity as the first resident Supreme Court judge for the district of Port Phillip, known as Victoria since 1851. Willis, who is best known for his irascibility and subsequent dismissal from office was perceived, both at the time and later, to be no particular friend to Aboriginal people. Yet in Bonjon Willis expressed an argument that was to have resonances in the Mabo decision and Paul Keating’s Redfern Address- both in 1992. In a departure from the judgment given by others in The Crown v Murrell five years earlier, Willis argued that the Supreme Court had no jurisdiction over crimes committed by Aborigines against one another.
  • Sir Alfred Stephen.Pdf

    Sir Alfred Stephen.Pdf

    2447 BOOK REVIEW Sir Alfred Stephen: Third Chief Justice of New South Wales 1844-1873 By J.M. Bennett (Lives of the Australian Chief Justices series). Australian Bar Review The Hon. Michael Kirby AC CMG AUSTRALIAN BAR REVIEW BOOK REVIEWS J.M. Bennett, Sir Alfred Stephen: Third Chief Justice of New South Wales 1844-1873 (Lives of the Australian Chief Justices series) The Federation Press, 2009, ISBN 978 186287 754 2 (Hbk) In his opening acknowledgements, the author of this new biography, Dr. John Bennett AM, puts his finger on one of the problems that haunts legal history. „It is too legal for historians and too historical for lawyers‟. This feature may help to explain the decline in the teaching of legal history at Australian law schools1. If there are occasional glimmers of light, as in this book and in the recent publication of the Kercher Reports (Federation Press, Sydney, 2009), edited by Bruce Kercher and Brent Salter for the Francis Forbes Society of Australian Legal History, it is no small thanks to the efforts of Dr. Bennett and a small team of dedicated Australian lawyers, one of whom is the editor of this Journal. This is the thirteenth volume in Dr. Bennett‟s Lives of the Australian Chief Justices. The many references throughout this volume to Sir Samuel Way, Chief Justice of South Australia, at the time when Sir Alfred Stephen served as the third chief justice of New South Wales, suggests that there are interesting volumes still to come. All believers amongst us must pray for Dr. Bennett‟s long life.