The controversial career of John Walpole Willis is re-evaluated in the first comprehensive study of his legal career. Willis, the fifth judge to be appointed to the Supreme Court of New South Wales, served in three colonies, and in each place he wrestled with the role of the law in a rapidly-changing society. In Upper Canada, he confronted the colony’s transition from an oligarchy into a nascent democracy; in his next posting, in British Guyana, he was responsible for helping the colony implement, and absorb the consequences of, the abolition of slavery. New South Wales, his final posting, presented unique legal problems as it evolved from a penal colony into a free settlement, and the new settlement at Port Phillip began to grow.
To these troubled societies, Judge Willis brought an acute legal mind and a stormy personality – he was twice dismissed from his post by the local Governor. Earlier studies have tended to view him either as a wronged genius or a vain, deranged misfit. Max Bonnell, an experienced lawyer and Adjunct Professor of Law at Sydney University, has rediscovered Willis as a contradictory figure – Australia’s first activist judge, who was nonetheless a stickler for the letter of the law; the author of several remarkably humane and enlightened judgments, who was capable of endorsing appalling cruelty; and a man who insisted upon decorum and propriety, yet was undone by his own conspicuous failures of self-control.
“Willis’ story was ripe for the telling, its central protagonist is a character of colour and drama who attracted many a cause célèbre. As one journalist of the time recorded, “as there was no theatre in town, Judge Willis was reckoned to be ‘as good as a play’”. Max’s book is also peppered with amusing titbits from history, from the unlikely first train accident to Willis’ family connection to Queen Elizabeth II. While the facts alone paint a fascinating picture, this book is not just a recital of facts; it is accompanied by regular and incisive analysis, a credit to the author’s perceptiveness and ability.”
“Dramatis Personae”
List of Illustrations
Introduction: Grimaces on the bench
1. Great disrespect and insult
2. The satisfaction of a gentleman
3. An attachment to Lady Mary
4. It is intended to commit that Jurisdiction to Mr Willis
5. You have not got your Equity Court yet
6. I dare say his Object will appear
7. An inferior situation
8. Little Insects
9. Dissolved, annulled, vacated and made void
10. No unfriendly feelings
11. We cannot be bound
12. He devours a pig or goat daily
13. My shattered constitution
14. The expression of my mortification
15. Neither of my colleagues particularly love me
16. Destroying the web of sophistry
17. Very gross rudeness
18. The most malignant and diabolical dispositions
19. A mean, lickspittle business
20. The gentlemen of the profession
21. A friend to free discussions
22. A vast and hitherto neglected, oppressed and deeply injured multitude
23. High and responsible situations
24. Circumstances have occurred
25. Over a glass of grog
26. The necessary directions
27. I like a clamour
Notes
Appendix A: Secretaries of State for War and the Colonies, 1827-1846
Appendix B: Cases heard by Judge Willis in the Supreme Court of New South Wales*
Acknowledgments
Select Bibliography
Index
Scott Whitechurch, InPrint, Law Institute Journal Victoria, October 2017The case of Mr Sewell’s moustache may not be the most famous incident in Victoria’s legal history. But the attitude of Victoria’s first resident judge, Justice John Willis, on the appropriate appearance of a lawyer, seemed to be typical of the controversial career of this judge. He had four judicial appointments and was removed from of office in two of them.
The judge’s life is the subject of this superb biography. Of particular interest to Victorian readers will be the short time (1841-1843) Willis spent as resident judge in Victoria. He was appointed to Victoria from the NSW Supreme Court where he could not get on with the other judges and the governor.
His ability to cause controversy and engage in disputes with in influential members of the Victorian community (leading to his removal from office in 1843) overshadowed some of his very courageous decisions. The case of Bonjon stands out – this case involved the court’s jurisdiction over an Aborigine charged with murder and whether English law applied. The author states that Bonjon “ought to be recognised as a landmark in Australian jurisprudence. Its careful demolition of the terra nullius fallacy and its acknowledgement that the Indigenous people were entitled to govern themselves by their own laws and customs …” He was also known for his liberal attitude to press freedom at a time when it was restricted.
The book presents a balanced picture of this “uncommonly able and courageous” judge and will be of great interest to lawyers.
Philip Selth OAM, Bar News, NSW Bar Association, Spring 2017John Walpole Willis (1793-1877) has had a bad press. He was a judge on courts in three countries – Upper Canada, British Guiana, and of the colonies of New South Wales and Port Phillip – and managed to get himself dismissed from two and unwanted in all three. Few judges anywhere have divided opinion so strongly.
The Sydney paper The Australian in
March 1838 declared Willis ‘a very wrong
headed man’; his colleague Chief Justice
Dowling wrote that some people thought
Willis ‘cracked’. Manning Clark wrote
that ‘the slightest suspicion of a challenge
to his authority or an outrage to his vanity was followed by a rush of blood to the head and a display of hysterical rage’. Dr John Bennett has described Willis as ‘high-handed, egotistical and “over-speaking”‘, with a short temper and ‘warped … personal judgment’.
This is the popular image of Judge Willis, which has been taught to generations of history and law students. However, it is not a balanced picture of this judge. Fortunately for Willis, there is, albeit belatedly, a court of appeal. On this bench sat Max Bonnell, a senior Sydney solicitor who specialises in commercial litigation and international arbitration. His judgment on the case will be cited for many years to come. …
The great strength in Bonnell’s I like a Clamour is the way in which he shows us that Willis’s strengths and talents were every bit as significant as his weaknesses and failings. They defy easy classification.
He was an incorruptible, highly-principled bigot; an independent, courageous, rebellious spirit who craved acceptance by the establishment; a judge who counselled forbearance and forgiveness but bristled at the slightest hint of an insult. He was unquestionably, a fine intellectual lawyer; undoubtedly, he was blinkered by vanity and self-importance.
In an age when there was a tacit expectation that a colonial judge would support his administration, Willis embarked on a quixotic mission to entrench the principle of judicial independence. His reward was to be dismissed twice, and denied the pension that might have been bestowed upon a more compliant man.
Regrettably, there are few biographies of Australian judges, and not all are of a high standard. If only there were more like Max Bonnell’s I like a Clamour. >
David Ash, Francis Forbes Society Newsletter, 34, Autumn 2017Judgment is a good word. We speak of people with too little judgment, but rarely of people with too much; we like that people are non-judgmental and do not like it when they are; as we know that we must come to judgment, so we practise by passing it on others.
Judges are special creatures. Most of us judge something before coming to an assessment. A skilful and honest judge must take the other road, assessing circumstances before reaching judgment. John Walpole Willis had each of these four qualities; he had skill, he had an honesty, he had the ability to assess, and he certainly had the means to reach a conclusion. Yet he lacked utterly that magical ingredient, the virtue the Romans knew as pietas, not a formal piety but a propriety of form and of substance.
Queensland Law Reporter – 24 February 2017 – [2017] 07 QLRThis is a rather remarkable book about a rather remarkable judge. Walpole Willis was a judge in the colony of New South Wales in the first half of the 19th century. By all accounts he was a person of an irascible nature but with an acute legal mind. He appears to have had considerable legal ability, albeit, at times, applied to the extreme. That was especially evident in his penchant for declaring the invalidity of the actions of his brother judges. He was a person of great humanity which was unfashionable for the times, but also known to be capable of great cruelty. Some described him as a wronged genius, others as a vain, deranged misfit.
Willis had an unusual legal career as a judge. He was appointed to three colonial courts, the last being in New South Wales. He was twice dismissed from office by the local Governor. In this work Max Bonnell has sought to unravel the mystery around this unusual and often contradictory judge. As Mr Bonnell identifies, Judge Willis’ judicial career spanned many difficult geographical locations where the system of justice was often just embryonic and social and political climate was in a state of constant flux. Nevertheless, it was not surprising that a judge who reportedly engaged in haranguing counsel, other judges, politicians and the press from the Bench, soon came into conflict with almost everybody wherever he was posted.
This an extremely well written book. It is well researched and carefully curated. The historical content is detailed but not cumbersome. Moreover, it is an important reminder of the human qualities of judges; that they possess the fragilities that we all do, to a greater or lesser degree, and they are often called upon to perform their duties in difficult political and social situations. This work is another excellent contribution to the chronicling of Australian Legal History, of which the Federation Press leads and champions.
