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D J CREMEAN[*]
Legal history, and Australian legal history in particular, is hardly taught in any law school in Australia today. The omission is a serious one because it means we have, or will have, generations of lawyers who do not know much, if anything at all, about the historical origins of the law they practice. How the law has come to be as it is, and of the personalities involved in its development, will be matters which are unknown, or virtually unknown, to them, or at least to many of them.
Fortunately we have Dr Bennett’s various works on legal history in Australia to rescue the past from oblivion. His latest book in the series Lives of the Australian Chief Justices is on Sir William Stawell - Sir William Stawell: Second Chief Justice of Victoria 1857-1886.[1] Other books in the series written by him include Sir William a’Beckett (who was first Chief Justice of Victoria), Sir Francis Forbes and Sir James Downing (both Chief Justices of New South Wales), Sir James Cockle (Chief Justice of Queensland), Sir Charles Cooper (Chief Justice of South Australia), Sir John Pedder (Chief Justice of Tasmania), Sir Archibald Burt and Sir Henry Wrenfordsley (both Chief Justices of Western Australia). Many of these, no doubt, would not be household names in Australia today - but they are men all brought to life under Dr Bennett’s skilful authorship. An earlier work of his - A History of the Supreme Court of New South Wales (1974) - is the standard work on the history of the Supreme Court of New South Wales and on much of the early law of the colonial period including early admiralty jurisdiction. The late Professor Alex Castles, in his Preface to An Australian Legal History written by him and published in1982, said of this work of Dr Bennett that it provides ‘an important model for scholarly work in this field’.[2]
Sir William Stawell succeeded Sir William a’Beckett as Chief Justice of Victoria in February 1857 having served as the Colony’s first Attorney-General from July 1851. Stawell was born on 27 June 1815 in Ireland. He was admitted as a student at the King’s Inns Dublin, in Hilary Term, 1836 but proceeded to read instead at the English Bar. He was called to the Bar at Lincoln’s Inn in Michaelmas Term, 1839. His father, Jonas Stawell, had become a barrister in 1795. His grandfather, George Stawell, had been called to the Irish Bar at the King’s Inns in the mid 1700s.
We learn much of these matters of Sir William’s early life, overseas and in the Colony of Victoria, in Chapters 1, 2 and 3 of Dr Bennett’s book. Stawell arrived in the Colony on the Sarah which left Plymouth on 8 August 1842.[3] On board was one Mary Greene who was later to become Lady Stawell, his wife. They married two days after the death of Governor Hotham in 1855.[4] They lived their lives together on a large estate in Kew called “D’Estaville”. They had 10 children. Stawell was Chief Justice for nearly 30 years. He was succeeded by George Highinbotham who was Chief Justice for 7 years until 1893 having also served, like Stawell, as Attorney-General of the Colony. Stawell died overseas on 12 March 1889 at age 74 years and was buried in a cemetery in Naples.[5] Lady Stawell died, aged 90, on 29 January 1921.
In later chapters, especially 5, 6, 7 and 8, Dr Bennett outlines Stawell’s work as Attorney-General and later as Chief Justice. Chapter 4 commences with a quote from the Argus newspaper for 15 June 1855: ‘In those good old days of Governor La Trobe, Mr Stawell, the Attorney-General, was all in all. Nearly all the business, of all the departments of government, devolved upon this gentleman; and ably, though capriciously, he discharged it all.’[6] Stawell was, evidently, a most industrious Attorney-General and a person central to the functionings of the early Colony: the Age for 24 February 1855 reported that it ‘is notorious that prior to the arrival of Sir Charles Hotham, the government of the colony virtually vested in the hands of the astute and fertile Attorney-General.’[7] Stawell also though was very much a traditionalist. Upon his confirmation as Attorney-General he sent to England for a silk gown and a full-bottomed wig which he wore at a ceremonial prorogation of the legislature in February 1853.[8] The Argus commented on the occasion, mischievously, that it ‘wondered what impudent old fogy had stepped out of the dark ages.’[9] On another occasion, Stawell having already been knighted, an Order of the Bath was sought on his behalf but was refused. Upon his retirement, however, he was appointed KCMG.[10]
In his role as Attorney-General Stawell is perhaps most famous for prosecuting the defendants in the trials arising from the “Eureka Stockade”. Professor the Hon John Phillips (himself a former Chief Justice of Victoria) says in his Foreword to Dr Bennett’s book: ‘Stawell’s judgment, which rarely failed him, went awry in his decision to prosecute the rebellious diggers ... for high treason.’[11] He makes the observation: ‘As the Melbourne juries which successively acquitted them perceived, this was indeed the use of a sledge hammer to crack a walnut.’[12] Dr Bennett regards “Eureka” as the great flaw in Stawell’s professional career - one which nearly ended his political career.[13] As Attorney-General Stawell was also instrumental in achieving responsible government for Victoria in 1855. The Constitution Bill, which he drafted, was enacted substantially unchanged by the ensuing Act passed on 21 December 1853.[14] The Victorian Constitution Act 1855 (Imp) was proclaimed in Melbourne on 23 November 1855.
It is, however, as Chief Justice that Stawell will mostly be remembered. His judgments are still quoted from time to time, in various areas of the law. He has had a lasting impression on the law - mainly in Victoria, but elsewhere as well. As mentioned, he was Chief Justice in Victoria for nearly 30 years. As Bennett notes, this is the longest term of any Victorian Chief Justice so far.[15] Stawell was absent briefly from Victoria in 1871 and on leave in England for much of 1873 and 1874 and he administered the colony in 1875.[16] Bennett says his ‘influence on the law, as an outstanding president of the court, cannot be overstated.’[17] In those happy, pragmatic days when litigants expected courts to provide answers, not discourses in jurisprudence, Stawell set the highest standards of accuracy, incisiveness and promptness.[18] Most of the judgments of the Full Court, over which he presided, were delivered by him usually ex tempore.[19] His command of the length and breadth of the law was striking, as was his capacity to get to the essence of any matter.[20] His approach was a no nonsense one. In Bank of Australasia v Walters,[21] for example, after hearing complicated argument from counsel, he said: ‘The facts are simple, the inferences from them obvious, and the law clear.’ Stawell was always courteous to counsel in court but one gets the clear impression[22] that he was never one for great humour. Few humorous exchanges with counsel are noted. Bennett quotes from the Town and Country Journal for 2 October 1886 that Stawell’s “unimpeachable calm rectitude” was said to be “proverbial”.[23] Perhaps this is, however, a polite way of saying that he gave a somewhat sombre tone to court proceedings.
Dr Bennett’s biography of Sir William Stawell is a most readable account of one of our early legal identities. He gives us some wonderful insights into a man who had a profound influence on early Victoria. At the same time, and out of doing so, we are treated to a most interesting journey in Victorian nineteenth century history. The book is a most worthwhile read for anyone wanting to know more about the history of Victorian legal institutions.
One area which is not explored by Dr Bennett is whether Sir William was perhaps distantly related to Lord Stowell, the famous judge of the High Court of Admiralty. For, we are told by Dr Bennett, that Stawell’s name ‘was that of an ancient family which traced its English origins to the Norman Conquest’ and that it had usages which included ‘de Stowill, de Stouill, Stoell, Stowoll and Stowell.’[24] But Lord Stowell was formerly Sir William Scott (and was created Baron Stowell in 1821) and it would seem from his background that he has nothing else in common with our Sir William.[25]
Dr Bennett’s book makes a significant contribution to learning and to legal history with a focus on Victoria. It should be read by anyone interested in the development of the law in Victoria at a crucial time in Victoria’s history. He is to be congratulated on such a fine publication.
[*] Associate Professor, School of Law, Deakin University.
[1] J M BENNETT, SIR WILLIAM STAWELL: SECOND CHIEF JUSTICE OF VICTORIA 1857-1886 (2005).
[2] A C CASTLES, AN AUSTRALIAN LEGAL HISTORY IV (1982).
[3] Bennett, supra note 1, at 8.
[4] Id. at 76.
[5] Id. at190.
[6] Id. at 40.
[7] Id. at 202 n 1.
[8] Id. at 43.
[9] Id.
[10] Id. at 101.
[11] Id. at v.
[12] Id.
[13] Id. at 73.
[14] Id. at 52.
[15] Id. at 126.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] (1865)2 WW & a’B (L) 89 at 91.
[22] Bennett, supra note 1, at 126.
[23] Id. at 127.
[24] Id. at 1.
[25] See W E SURTESS, A SKETCH OF THE LIVES OF LORDS STOWELL AND ELDON 1-4, 135 (1846).
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