ForbesForbes FlyerFlyer THE NEWSLETTER OF THE FRANCIS FORBES SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 7 • DECEMBER 2004 History reports itself The Lives of While the year may be rapidly drawing to a close, there Australian is still much activity happening on the publishing front. Chief Justices Following on from the successful third annual Forbes Society lecture, the Forbes Society in conjunction with the Council of Law Reporting for New South Wales will Dr John Bennett continues his remarkable project, publish Dowling's Select Cases, as edited by Tim Castle Lives of Australian Chief Justices with the publication and Bruce Kercher. Chief Justice Spigelman AC will of Sir Henry Wrenfordsley: Second Chief Justice of supply the foreword. Details as to the release of this Western Australia 1880-1883. publication will be available in the New Year. This issue of the Forbes Flyer contains an extract A further development in legal history is the Macquarie discussing Sir Henry Wrenfordsley's appointment Law Monographs: Studies in Law and History, to be as second Chief Justice of Western Australia. edited by Dr Andrew Buck of Macquarie University, and published by Australian Scholarly Publishing. The first In Professor Roy M. Mersky's words (in the Foreword title in the series will be The Poor Man by A.R. Buck and to the book): Nancy E. Wright, and will be available in March 2005. If the life of the law has not been logic, but Dr Buck has advised that the monographs will focus on rather experience, then judicial biography has topics such as legal biographies and the historical a great deal to tell us about the law, and in development of substantive law. Comparative legal particular about its historical development. historical studies, both inter-colonial and international, This is especially true during a nation's are also encouraged. Submissions to this series should formative stages, when such bedrock ideals as be directed to: the rule of law, the separation of powers, and Dr Andrew Richard Buck the independence of the judiciary could not be Director, Centre for Comparative Legal History taken for granted. In such an unsettled context Division of Law a judge's work can have a defining influence Macquarie University on the direction of legal history. ... In this NSW 2109 volume of the series [Lives of the Australian E-mail: [email protected] Chief Justices] Dr Bennett turns his attention to Sir Henry Wrenfordsley, the second Chief For those of you who are keen readers with a little spare Justice of Western Australia from 1880 to 1883 time during the summer break, John Bennett's latest and again (as Acting Chief Justice) in 1890 and release in his Lives of the Australian Chief Justices series 1891. ... Dr Bennett's other subjects to date published by Federation Press is Sir Henry Wrenfordsley: were ... serious, firm, talented, and dedicated Second Chief Justice of Western Australia 1880-1883. judges. ... Unfortunately, in the course of this Federation Press have supplied us part of the foreword biography of Sir Henry Wrenfordsley, to the book and an extract. Dr Bennett concludes that he cannot say The Forbes Society wishes its members a happy and safe anything analogous about him. Christmas and New Year. Members of the Forbes Society will be interested to note that J.M Bennett's biography of Sir Francis Forbes is also published in this series. Catherine Douglas Editor continue to page 2 THE NEWSLETTER OF THE FRANCIS FORBES SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 7 • DECEMBER 2004 continued from page 1 From Sir Henry Wrenfordsley: Second Chief Justice of Western Australia 1880–1883, by J.M. Bennett, Chapter 3 “Three Years in Western Australia”, pages 25–30 The unexpected death, on 21 persistent nuisance. Despite his limited one of Her Majesty's Judges. Instead, November 1879, after a very brief legal ability, had he conducted himself he and his family were pushed into illness, of Sir Archibald Burt, Chief in Western Australia with the same quarantine "without luggage, on a Justice of Western Australia, came as a professionalism Burt had brought to barren island", quite indiscriminately shock to that Colony. He had been the the court, Wrenfordsley might have with the other passengers.6 Worse first Chief Justice, and sole judge, since remained Chief Justice, perhaps for were the financial consequences. He 1861. The character of the Supreme 20 years, and been respected as a was kept out of the full salary that Court reflected his own standing as a great contributor to the Colony's would accrue only on his entering lawyer of distinction, committed to development. Although his judicial upon his office, and charged £40 for running the court and administering performance in Western Australia was the detention of his party. justice in a highly professional way.1 the best of his various colonial Ego and bank balance equally bruised, postings, his term of office was brief. While the Colonial Office received the he arrived in Perth in a choleric frame His downfall was due wholly to himself news, with regret, on 12 January 1880, of mind. A local observer perceived – his exaggerated estimation of his it was relieved that a vacancy was him to be "a small man, aged, clean own importance, coupled with a created into which the importunate shaven and voluble".7 Wrenfordsley compulsive meddling in executive Wrenfordsley might be placed and, was gratified, however, to be received politics, and a consistent inability to with any luck, at such a remote most graciously at Government House live within his means. outpost, be forgotten. Wrenfordsley by the newly installed Governor Sir accordingly received his telegram, In 1880, needing no further William Robinson. A fellow Anglo- asking how quickly he could proceed encouragement from the Colonial Irishman of a cultured disposition, to Western Australia.2 His acceptance Office, he sailed for Albany in the being "associated with musical, literary was taken for granted, and Governor Bangalore with his constant travelling and educational groups",8 Robinson Ord was advised in Perth that companions – his sister Louisa, his struck up an accord with the new "Wrenfordsley, Advocate General in cousin Elly Finch, and probably his Chief Justice that developed into Mauritius is appointed Chief Justice "nephew" Hatton Richards (of whom enduring friendship. Robinson was and will shortly arrive". A warrant for more presently).4 The Bangalore called a competent Governor with wide Wrenfordsley's appointment was at Galle in Ceylon, with serious experience in colonial administration, hurried to him at Alexandria.3 consequences. Some passengers particularly in the West Indies. While contracted measles there, and one died usually a good judge of men, his For the first time in his life he had the from the disease.5 It was more galling affinity with Wrenfordsley can be world at his feet. The office of Chief to Wrenfordsley to find, on arriving in explained only by the skill of the latter Justice he had craved so much was his. King George's Sound, that he would in ingratiating himself, throughout his And all he had done to deserve it was not receive the stately reception due to career, with many people of influence. to make political friends and be a 1 See generally, J.M. Bennett, Lives of the 3 Colonial Office to Ord, 23 January 1880, ibid., at 5 West Australian, 9 March 1880, 2. Australian Chief Justices – Sir Archibald Burt f. 192; confirmed by despatch of even date, ibid., 6 Wrenfordsley to Derby, 20 November 1883, (Sydney 2002). at ff 193, 193a, 194; Inquirer, 4 February 1880, 3. S.R.O.(W.A.), C.S.O. 3098/03: minute paper 851/84. 2 Minute paper, C.O. 18/191, f. 185. 4 See below, text following n. 101 and n. 127; and 7 Hillman, "Diary for 10 Years", quoted, Russell, 207. Ch. 6, text following n. 15. 8 (1976) 6 A.D.B. 50. continue to page 3 2 THE NEWSLETTER OF THE FRANCIS FORBES SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 7 • DECEMBER 2004 continued from page 2 Wrenfordsley was an excellent social Burt, of whom he knew nothing, and duty, however painful the discharge of companion who could engage in he declared that, when his own time that duty may prove", Wrenfordsley, as intelligent yet entertaining conversation came to depart, "I desire in the end "the mere instrument of the law ... in superior company. He looked the to leave behind me the respect and assumed the black cap", which added part, and his airs and graces – ever esteem of this community".10 Those greatly to his self-importance. He conspicuously displayed – made him were the very attributes he would consigned the prisoner to the gibbet, seem convincing. not earn for himself in Perth: and his holding out no hope of mercy: which departure would occur much sooner counted for nothing with Thompson That was the pose he struck in public than he could then have foreseen. who "appeared quite unconcerned".13 on his first appearance as Chief Justice in Perth. He cut a grandly patronizing For the occasion, many magistrates The Chief Justice persisted in using figure: an English judge, an emissary of were seated at the bench, and their the court to instil a sense of dramatic Her Majesty herself, come to dispense representative congratulated the new excitement into criminal trials, and, the benign blessings of British justice Chief Justice. Wrenfordsley replied as arbiter of life and death, to preach to a dark and lonely corner of Empire. that, in a colony like Western Australia, moral values to the community.14 He He regarded the court as a theatre and with so scattered a population, "there reinforced those values by imposing himself as the leading actor.