225

ROYAL HISTORICAL SOCIETY

OF QUEENSLAND

JOURNAL

Volume XIV, No.6 February 1991

JUDGES, POLITICIANS, AND HISTORY

by Hon. Mr Justice B.H. McPherson C.B.E. Clem Lack Memorial Oration

Presented on Thursday, 22 March, 1990

For a Judge to be invited to deliver the address on this occasion is a signal honour. For the Society it wiU come as no surprise to be confronted by a lawyer as speaker. Some notable historians have begun their careers as lawyers. F.W. Maitland is the most illustrious. Few have succeeded, or are likely to succeed, in emulating either the breadth of his scholarship or his literary style. Locally it is a matter for remark how many historians have had a legal training or background. One of the Society's founders was a lawyer.' Among contemporaries it is possible to think of at least four prominent history writers with legal qualifications or active involvement in the practice of the law.̂

It is not difficult to discover reasons for this. There is a sense in which the law may be seen as history in action. Indeed, in the opinion of some critics, it is because of its tenderness for the past that the law exhibits so few signs of action. What is perhaps more important to the connection between law and the study of history is the prominent place traditionally occupied by lavi^ers in the processes of government. That is so particularly in English-speaking societies where, as Lord Dacre has reminded us,̂ the rule of law is the central cuhural "myth" on which the right to govern is seen to depend. Recent events in Queensland tend, I think, to confirm that impression of local community values.

It is therefore perhaps not unnatural that lawyers should feel at home in dealing with the history of political and legal institutions

226

of State. Whether they are equipped for the task may be another matter. To the practising lawyer there are, however, some forceful analogies between historical research and the judicial process. Both involve examination of evidence and formation of conclusions about things that happened in the past. It may not be obvious to everyone, but it is the fact that the main function of a Judge who tries a case in court usually is the elucidation of past events. The inquiry, "Who kUled Jane Smith?" plainly differs enormously in its scope and its implications or importance from the question, "Who started World War II?"; but it differs in little else. Even the materials used in resolving such questions are not altogether different.

Such a claim may seem difficult to sustain. The materials on which conclusions of Judges and of historians are based are superficially quite dissimilar. Traditionally courts of law have insisted on evidence of a particular kind. They require the personal recollections of individuals who claim to have observed the event in question or the circumstances associated with it; they demand that those observations be recounted to the court by the observer in person. Witnesses to historical events in the broader sense are seldom alive to tell their story in this way, much less to submit to having it tested by process of cross-examination. In discovering what really happened historians are compelled to rely on contemporaneous written records from the past, and to do so sometimes without the benefit of knowing what the opposing side had to say about them.

Until recently few written records of that kind would have been admitted for consideration in a court of law. To a large extent that still remains true in the case of criminal proceedings. But in civil proceedings, in which Judges in Queensland these days very rarely sit with juries, the last 30 years or so have seen far-reaching changes.'* It is now the Judge that performs the function of deciding or, as we say, "finding" the facts. Partly because of this the frailties of human observation and recollection as a means to deciding what really happened are now much more freely acknowledged.' In the changed state of things that currently prevails in civil cases in court contemporaneous records are not only readily admitted but tend to be viewed by both Bench and Bar as offering a more reliable account of past events than the unsupported oral testimony of human observation or recoUection. As a result, documentary records are being used by Judges as they are by historians as the primary basis for conclusions about events of the past.

Given the use of contemporaneous records, judicial technique begins to resemble historical methods of investigation and interpretation of past events. In many respects the two processes have always been similar. Where the facts are contested a Judge must choose between competing explanations of whether, or when, or how, or why a particular event came about. Like historians, he justifies his choice

227

in published reasons, which ordinarily follow a conventional pattern. In form, it involves, first, finding the basic or primary facts, using if possible evidence that is uncontradicted or objectively verifiable. In doing so, due allowance is always made for the "interest" or motivation of the individual who claims to have seen, recollected or recorded the event. Then, drawing inferences from facts so "found", the Judge arrives at a decision that, as a matter of probability, the event did or did not happen as claimed.

The need to identify the underlying motivation or "interest" of a witness or reporter of an event is a respect in which the functions of courts and historians are similar. Both are concerned with the quality of the evidence available to support their conclusions. By that I do not only mean whether acts and deeds of long ago were correctly reported; but whether, in explaining their actions, motives and intentions, the central figures of the past did so objectively. In forensic terms, the point at issue here is the credibility or reliability of the witness. Particularly when a witness testifies about a matter in which he was an interested participant. Judges are inclined to discount to some extent what he says about the event. The everyday impression in court is that individuals tend unconsciously to interpret, and therefore to observe, to recall and to record, events in the manner most favourable to their own interest. The time is now long past when the law precluded an interested person from giving evidence at all. What a witness says continues, however, to be considered in the light of his "interest", which means the sub-conscious influences apt to shape what he observed and what he later says about it. In directing juries, it is common to instruct them to be cautious about accepting a witness simply because he appears honest. An honest witness is often convincing, but he may be wrong. What matters in a witness is not simply honesty, but whether his account of what happened appears reliable and accurate, and so acceptable as being probably correct. In returning their verdicts, historians, who are the jurors of our past, may be expected to approach questions of disputed fact in much the same way.

THE TREATMENT OF LUTWYCHE So far I have been comparing judicial techniques to those of

historians. Let me now say something about Judges as subjects of written history. In that character they present a particular problem to the historian not encountered in the case of other individuals prominent in public Ufe. It is that, except through the medium of their published judgments. Judges ordinarily refrain from making pubUc statements on subjects of contemporary controversy. Maintaining a "dignified silence" in the face of public criticism of their decisions and conduct is designed to reduce friction with other branches of

228 government; but it also removes from the historical record one of the foremost safeguards of its reliability. In assessing the accuracy of what was said in the past, the historian ordinarily hopes to find a statement by one side balanced by one on the other. His task is to choose between them, or preferably to encourage his readers to make the choice. That is a reflection of the adversarial system that prevaUs in both ParUament and the courts. The judicial convention of sUence means that a Judge whose decisions or conduct are openly condenmed is restrained from resorting to the public arena in order to counter such criticism. Instead, as a speaker observed at a Brisbane public meeting in 1861, a Judge "has to suffer all the contumely heaped upon him and to bear the attacks of his opponents without defending himself".*

The object of this sympathetic reflection was Mr Justice Lutwyche. Not only was he our first Judge, he was also the first to suffer the local verdict of history. There is a tradition latent in Queensland history that Mr Justice Lutwyche was one of the colony's early misfortunes. CA. Bernays is, I think, partly responsible for it; but its principal source lies in the proceedings of the first Queensland Parliament and the words and actions of members of the executive government of those times. Viewed from their standpoint Lutwyche was a mischievous and troublesome official. He first suggested, and later decided, that the new Parliament of Queensland was invalidly constituted.^ This was scarcely welcome news to those whose continuing authority in government and legislature depended on the Judge's opinion being wrong. They therefore set out not to address the problem at its source but to discredit the Judge personaUy.

The problem had its origins in the franchise adopted for holding the first election of members to the Legislative Assembly. The story has been told more than once, and its detail need not be repeated. Lutwyche considered that the constitution of Queensland, as contained in the Imperial Order in Council issued at Separation, required the election to be held on the basis of manhood suffrage introduced in New South Wales by statute in 1858. His opponents in government and in Parliament thought that the more limited franchise of the 1855 Constitution ought to be followed. Their view prevailed, and in the first Parliament, which met on 22 May, 1860, the members of the Legislative Assembly were elected on the narrower franchise. They quickly passed a Supreme Court Bill reducing the Judge's salary from £^,000 p.a. to, £]l,200 p.a. Why they imagined that the Judge should be stoical about it is difficult to say. When, as was required by law, the Governor reserved the BUI for Royal Assent, the Secretary of State for the Colonies recommended its resubmission to Parliament without the reduction in salary.»

On 6 July, 1861 the resubmitted BUI reached the Legislative CouncU, which grudgingly restored the Judge's salary. The Legislative CouncU

229

found the experience so humiliating that they retaliated with a resolution condemiung Lutwyche for "formaUy nnpugrung the legaUty of the constitution and Acts of the ParUament of Queensland, but only after the first session and when a Supreme Court biU, drawn by Mr Lutwyche himself, securing certain personal advantages, had not been adopted".' In the Brisbane Courier Theophilus Pugh, believed to be in league with the Judge, retorted with an editorial accusing the Legislative CouncU of crass ignorance, provoking in turn a criminal charge of seditious libel against him. He was found not guilty by the jury at a trial presided over by Lutwyche J, then the only Judge in Queensland.'"

In his Queensland Politics during (1859-1919) Sixty Years^^ Bernays sets out the text of the Legislative Council resolution and refers to the trial of R. v. Pugh that foUowed.'̂ He concludes by saying that even on the reduced salary of| £1,200 p.a. there was no chance of His Honour's "having to clothe himself with a fig-leaf and sit on the Bench shivering with cold and feeling the pangs of hunger and thirst".'^ He dismisses the "rights and wrongs" of the Judge's claim by saying that these can be found in the Votes and Proceedings of ParUament for 1861. He accuses Lutwyche, "whatever the justice of his claim", of suffering from the "incurable disease of cacoethes scribendi.''' Despite long acquaintance with politics and politicians, his sympathies plainly did not lie with the Judge.

Bernays was a chronicler of Parliamentary events rather than a historian; but his brief account has continued to influence public impressions of Lutwyche down to this day. That is regrettable because in my opinion the Judge's conduct did not merit the condemnation it has continued to attract. Bernays was wrong in making light of the salary reduction because, as he must have known, the integrity of Judges' salaries is an essential ingredient of judicial independence. Without it. Lord Dacre's central cultural "myth" of the rule of law could not survive. Moreover, in condemning the Judge, as they did otherwise than in the course of a substantive motion to remove him from office, the members of the Legislative Council acted in breach of their own rule of procedure. As Clerk of ParUament Bernays ought to have been aware of that, as well as knowing the reason for the rule, which, again, is to reduce friction between these two organs of govermnent. The President of the CouncU, a nominee of the Governor, should have ruled the motion out of order; but he too disliked Lutwyche, whom he identified with those demanding manhood suffrage in Queensland.'^ Finally, it should be noted that there is reason to suspect that Governor Bowen himself was a concealed influence behind the scenes. It was the Governor's duty to stand outside local politics. Yet even if he did not actively promote adoption of the resolution passed in the Legislative Council on 6 July, 1860,

230

its terms are strikingly similar to something he had written only eight months before. In a private despatch dated 4 October, I860'* to the Colonial Office the Governor specifically complained that Lutwyche had not said the Legislature was "Ulegally constituted" until "his formal declaration after the close of the first session of Parliament". This corresponds very closely to the wording of a critical portion of the Legislative Council resolution. Later on, Bowen in his despatches to London repeatedly made use of the Council's condemnation of the Judge.

In his despatch of 4 October, 1860 the Governor was at pains to stress that Lutwyche was alone in his opiruon that the relevant provision of the Imperial Order in Council concerning the franchise was invalid. In the end, however, the Law Officers to the Crown, who were the Attorney-General and the Solicitor-General of England, supported the Judge's opinion. Their advice dated 23 February, 1861" is not to be found among the voluminous papers on the subject pubUshed by direction of ParUament in Queensland Votes and Proceedings. A copy of it is published with this paper.'̂

The fact is that very shortly after Separation in 1859 Lutwyche had written to the Governor stating his view that in law the provision of the Order in Council relied on to sustain the limited franchise was "null and void". The letter is dated 9 January, 1860. An extract was forwarded by Bowen to London on 23 February, 1860. However, when belatedly published in Queensland Votes and Proceedings, the date it bore was printed as 9 January, 1861." This printer's error, if that is what it was, is regrettable because it means that, contrary to the facts, the published date of the letter appears to support the Legislative Council's claim that Lutwyche had refrained from raising the issue until after the close of the first session of Parliament in 1860. In the end, however, the precise complaint against him seems to have been that in his letter of 9 January, 1860, Lutwyche failed to add that a Parliament elected on an invalid franchise would be invaUdly constituted. It scarcely requires a trained lawyer to supply that step in the reasoning. But, in any event, it is not the function of a Judge but of the Attorney-General to provide the Government with legal advice, and Attorney-General Pring gave his colleagues in the Executive no advice of that kind. The simple truth is that what Lutwyche said in his letter of 9 January, 1860 was ignored not because of what it did not add; but because those in government who knew his opinion on the franchise did not like it and believed it to be wrong in law. It would have made no difference to their attitude had the Judge added something about its consequences for the validity of Parliament. That would have been seen as further evidence of his mischief-making propensities. Having rejected his major premise, the Government would not have been influenced by his opinion of its consequences. Their "interest" lay in maintaining the status quo that

231

they themselves had created, which was the source of their continuing authority in Queensland.

Bernays therefore rendered a disservice to Queensland history when in Queensland Politics he trivialised this conflict between the judiciary and the executive and legislative branches of government. He did so because he did not take the trouble to make a proper study of events recorded in the material available to him. He was right in thinking it "a fairly long story" but quite wrong in supposing that it could be "dismissed in quite a few words". His doing so has, I believe, tended to discourage closer examination of the historical record by those who came later. In forensic terms, his conclusion is flawed by his failure to examine the evidence before him.

THE CHARACTER OF GRIFFITH No such charge can be laid against the late Professor R.B. Joyce.

No one can have anything but admiration for the lifetime of labour he bestowed on Samuel Walker Griffith^° particularly when one knows it was published in much reduced form. To discover from the preface to the book that the author considered himself "a most enthusiastic Griffithophile" comes, however, as something of a surprise. A glance at the book's index under "character indicators" in relation to this former Premier, State and Australian Chief Justice, and Founding Father of our Constitution reveals the following among other entries:

aloofness, ambition, compulsive, cynicism, emotionalism, hypochondria, insecurity, irascibiUty, "moral twist", self-centredness, vanity.

"Fit to govern? No, not to live", Macduff can almost be heard to say.̂ ' It is difficult to admire a man with character defects like these, even if juxtaposed by virtues listed in the same index, such as charisma, domesticity, drinking, fond parent, and "relations women", the last, when examined, being by today's standards, a coUocation of admirably respectable encounters with the opposite sex.

An author's index is, however, not the proper starting point for a fair assessment of his book. Nor is it a function of a historian to ensure, in what he finds and disseminates, that central figures of the past retain their greatness and are not made to look small. If there are Griffithophiles more ardent than Professor Joyce, they inhabit the legal profession in Queensland. Continuing as they do to revere Griffith's best judgments in law, and vicariously savouring the satisfaction of his having defeated those patronising southerners in competing for the premier judicial post in Australia, Queensland lawyers can scarcely deny the influence of "interest" in their own assessments of their favourite.

232

My own complaint against Professor Joyce's biography is therefore open to obvious suspicion of pcirtiality. There is no point in conceaUng the sense of shock induced in the mind of a Queensland lawyer on discovering, as early as footnote 1 of chapter 1, that it is the intention of the biographer to argue that "Griffith had some compulsive characteristics, which even approached the neurotic behaviour of an arrogant vindictive type." The indictment is, however, not left as it were suspended in the author's imagination. It is followed by citation of two treatises on psychiatry and accompanied by explicit references to incidents identified in the book. When, with troubled mind and trembling hand, one turns to the supporting evidence, it is found in the form of four separate incidents. These are what is relied on to justify the biographer's estimate of his subject's prime character weakness.

First, k is said that, according to his brother's account of it, Griffith as a young man became involved in an aUercation with another youth who claimed priority to our hero's partner at a dance; at which Samuel, his "eyes flashing with fire" denounced his rival in the following terms: "You Ue, you pig".̂ ^ Secondly, that, in another argument with a youthful acquaintance, Griffith received (my emphasis) from him a written apology for some real or imagined insult.̂ ^ Thirdly, that, whUe leader of the Opposition, Griffith's attempts to embarrass the party in power by a series of lawsuits and commissions of inquiry alleging corruption in government terminated in abject failure, and the vindication of that paragon of pubUc integrity Thomas Mcllwraith;^" and, fourthly, that Griffith derived much personal satisfaction from "his meticulous administration" in pubUc office.''

So, to the terrors of death, are added fears of sympathetic biography.

In condensing this evidence for Griffith's neurosis, I believe I do his biographer no injustice. The material relied on is there for all to judge for themselves. The case in support of a neurotic Griffith is not, I think, improved by following out the index entries under "irascibility"; nor by speculating whether in Griffith's first murder case his unfortunate client became "only a cipher in a legal game".'*, because, on the night after sentence of death had been imposed, his counsel dined, drank, and attended a theatre performance. It is at least an equal possibility that this was the post-forensic treatment prescribed for young counsel by his opponent and senior colleague Lilley as an antidote for too much brooding on the events of that day. Perhaps, in a clergyman's son like Griffith, prayerful contemplation would have seemed better; but, as Alexander Pope observed, even jurymen must dine.

233

The fact is that it is surely very fooUsh to attempt a scientific psycho­analysis of a patient one has never seen, the more so if he was born 145 years ago and lived in an age when different standards of social behaviour prevailed. Whatever the value of the La Trobe University psycho-biography courses which Professor Joyce found so stimulating,'' a measure of forensic experience would have warned that a psychiatrist who has never interviewed his patient carries little weight with a common jury of his fellow men and women. The author's case against Griffith fails on this point because the circumstances on which he relies do not support the inference he seeks to draw. Would he not have been better advised to leave the evidence to speak for itself to a jury of intelligent readers?

In one important respect we should, however, be grateful to Professor Joyce. He carefully and candidly identified and presented the evidence on which he reUed for the character assessment he offered in note 1 of chapter 1. The record is there to see, leaving it to a Uterate jury to decide whether, as the lawyers say, the case comes up to proof.

RYAN'S LEGAL ABILITY Errors in presenting or transcribing the historical record are more

difficult to contend with. Like the testimony of those honest witnesses to which I referred, their mistakes are less easy to detect. In T.J. Ryan^^ the late Dr D.J. Murphy rightly took Sir Robert Menzies to task for claiming to recall a case in the High Court of AustraUa, in which Ryan (to whom Sir Robert was junior counsel) was said to have fared so badly that he abandoned it to Menzies, who then proceeded to win it." Dr Murphy points out that, although one would expect such a case to be reported in the Commonwealth Law Reports, no record of it is to be found in the years in question.

My own less complete researches support Dr Murphy's stricture. There is, however, a report of a case that appears to satisfy all but two of the identifying criteria laid down by Menzies in his account. The case in question is A. McArthur Limited v. State of Queensland^'^ The two exceptions are, however, basic to the identification and to the accuracy of Sir Robert's recoUection of events. One is that he did not appear in it as counsel. The other is that Ryan's side did not win but lost the case. In the light of those two differences, it may seem astonishing that anyone should suggest that McArthur is the case Sir Robert was referring to. He, above all others, had least need to exaggerate either the size of his practice or the importance of his successes at the Bar; but, as memory dims with time, it is not unknown for a narrator to substitute himself for the real hero of the tale he tells. This quaint tendency is nowhere more in evidence than among members, present and past, of the practising Bar, where the

234

collegiate life of the profession encourages oral tradition, with its attendant dangers of distortion over time.

That, I suspect, is what may have happened in the matter to which Menzies refers. At the Bar he was a pupU of Sir Owen Dixon, who did appear as a junior to Ryan in McArthur v. Queensland. Menzies would certainly have heard Dixon's account of the proceedings and it may be that he later subconsciously substituted himself at the centre of events. If so, it demonstrates the risks of using unaided human recollection as a source of history, as well as the unconscious part that may be played by the political "interest" of the narrator. Whatever the truth of the matter. Sir Robert leaves the witness box of history with his credibility on this point seriously dented. Ryan's claim to fame is not diminished by evidence of that quality.

It is therefore to be regretted that, having so decisively won that round, Dr Murphy himself lapsed into error. The battleground here is the base of Ryan's statue in Queen's Park, which presents him to the world not only as "statesman" but also "scholar" and "jurist". Dr Murphy thoroughly endorses this opinion of T.J. Ryan by ranking him with Griffith "as the leading constitutional lawyer whom Queensland has produced"^' FoUowing the earUer diagnosis of Bernays, Dr Murphy pronounces his subject "big and broad-minded"' ' , and, by necessary implication, entirely free from neuroses like those that mar the character of Professor Joyce's attention.

Menzies was only one of a number of Ryan's contemporaries in the legal profession who did not view his abilities in quite so favourable a light as did his biographer. Lurking somewhere at the root of this difference is the suspicion of a professional jealousy of the upstart barrister from Rockhampton, whose achievements included many things that lawyers aspire to, like appearing (on the instructions of his own Cabinet) in the leading litigation of the day and doing so with resounding success as junior counsel before the Privy CouncU. In consequence, Ryan's victories in constitutional cases have tended to be ascribed to the genius of T.W. McCawley, then State Crown Solicitor, who is credited by some members of the profession with having formulated the arguments that Ryan used to such telling effect outside Queensland." For their own part, supporters of Ryan incUne to blame his seeming lack of success in the courts of his home State on what is perceived as the reactionary political outlook of the Supreme Court of the time and in particular of its Chief Justice Sir Pope Cooper. Sir Harry Gibbs has given reasons for suggesting why it is now so difficult to choose between opposing views of Ryan's ability as a lawyer'" There is no point in repeating here what I said on the subject in The Supreme Court of Queensland 1859-1960.'' Since then Mr Justice Thomas has also pubUshed a paper on Cooper

235

C.J." Only a definitive biography of McCawley might help to resolve some of these questions, provided it achieved an objective assessment of McCawley's qualities and analysis of his legal opinions as Crown Solicitor.

In the battle over Ryan's standing as a lawyer, the side that can produce an independent contemporary assessment of his abUities obviously enjoys a substantial advantage over his opponents. That is precisely what Dr Murphy claims to discover. In T.J. Ryan he records:"

In a special Daily Standard supplement of 9 August, 1921, Webb related that at the close of the Mooraberrie case in the Privy Council, Lords Dunedin and Shaw came down from the Board table to the barristers' Bench to congratulate Ryan on his arguments, and that in 1919 Ryan was elected an honorary bencher of Gray's Inn, 'a compliment paid only to lawyers of undoubted distinction.'

Earlier, in an essay on Ryan in Queensland Political Portraits, Dr Murphy had given this account of the same event'* Speaking of W.J. Webb, he said:

In 1921 he wrote that at the close of the Mooraberrie case Lord Dunedin and Lord Shaw came down from the board table to the barristers' bench to congratulate Ryan on the clarity of his argument. It was during this visit to London that Ryan was elected an honorary bencher of Gray's Inn, which, Webb notes, was 'a compliment paid only to lawyers of undoubted distinction.'

The text from which Dr Murphy purported to be quoting does not accord with either of these versions. As reported in the Daily Standard Supplement of 9 August:, 1921, what Webb wrote about Ryan was:

His personality obviously impressed the members of the Privy Council, particularly Lord Haldane. At the close of the argument in the Mooraberrie case Lords Dunedin and Shaw walked from the board table to the barristers bench and shook hands with him.

Later in the same passage Webb refers to Ryan's election as honorary bencher of Gray's Inn, adding the observation about the "compUment" that is quoted above.

Several comments are apposite. First, to be accorded the privileges of "honorary bencher" of one of the Inns of Court is not quite as rare as Webb suggested. My own recent experience in England bears out this impression. Secondly, it is plain that Webb's written account of the conclusion of the Mooraberrie case has undergone emendation in the course of its journey into Dr Murphy's biography of Ryan. Webb nowhere says that Lords Dunedin or Shaw "congratulated Ryan" either at aU or "on the clarity of his argument." He says only that they shook hands with him. It is possible they did so because they were acquainted with him from his earlier appearances in the Privy Council. They could not have "come down" from the Board

236

table to do it, because the Board table in the Judicial Comnuttee room of the Privy Council (which is in legal theory a committee and not a court) is at the same level as the Bar table. Webb, who had been there, made no such mistake. In fact counsel addressing the Board stands on a podium that places him slightly above the level of the Judges whom he is addressing. Even Webb's report of the incident is a little puzzling because it is a feature of appearances before that august body that at the conclusion of counsels' submissions the usher cries out "Counsel will withdraw from the Chamber", leaving the Judges in sole possession. That makes me think it more likely that the incident related by Webb took place in one of the adjoining anterooms, where counsel congregate before and after the hearing, than in the Chamber itself.

A detail like the last is unimportant. What matters is that Dr Murphy interpreted, and indeed restated, the written evidence in a way that made it more favourable to his thesis of T.J. Ryan as a leadmg constitutional lawyer. With a historian of Dr Murphy's standing, h cannot be doubted that as with Menzies the error was subconscious; but it serves as a reminder that the wish may father the thought. We are all at risk of permitting personal predilections or "interest" to intrude into the historical record.

PASSING OVER E.A. DOUGLAS Let me conclude by confessing at least one error of my own. In

the course of my history of the Supreme Court, I refer to the painful affair of the Ithaca Election Petition late in 1938, and its consequences for Mr Justice E.A. Douglas'^ The version I gave is based at least partly upon oral tradition within the legal profession, which, accordmg to what I have said here, involves some, usually considerable, risk of inaccuracy. According to that tradition as I apprehended it, it was in 1947 that E.A. Douglas J. was passed over for the position of Senior Puisne Judge because of his decision in the Ithaca Election case."° Shortly after that account of the matter was written and had gone to press, I was shown a copy of a private letter"' written by E.A. Douglas J. that makes it clear that he was denied the position in June 1940, which was so much closer to the date of the hearing of the Ithaca election petition in 1938. The appointment was first offered to Philp J., who declined it out of deference to his colleague's seniority and friendship. It was then offered to N.W. Macrossan J., who accepted without knowing that the true state of affairs had not been accurately represented to him. It is plain from the contents of the letter that E.A. Douglas J. believed, and perhaps for good reason, that his decision

in the Ithaca case, had counted against him in 1940. Whether the performance was repeated in 1947 becomes correspondingly less hkely than my published account of it suggests.

237

This error of sequence should not be seen as detracting from the general thesis in the account I have given elsewhere, which is that E.A. Douglas J. was martyred by the politicians of the day for his judicial integrity. His case illustrates the difficulties posed for historians by the convention of silence on public affairs that prevails among Judges. The cacoethes scribendi of which Bernays has accused Lutwyche now enables the record to be set straight; but at the time it was used in a selective way by his political contemporaries to undermine confidence in the judiciary. Does "dignified silence" foster, or does it erode, the central cultural myth of the rule of law?

What does, I hope, emerge from all this is that writing history involves some, almost inescapable, risk of factual error. Human recollection is a frail fabric on which to base accounts of events in the past; but in many cases it is all we have. The reliability of the historical record is likely to be materially enhanced if the event was recorded in writing and published contemporaneously with its happening. The opportunity then exists for others to protest against or contradict it, and to pubUsh their own versions of the event. That is as close as the historian can expect to come to the conditions that govern assessment of evidence under the adversarial procedure of a court of law. Because of their self-imposed obUgation of sUence Judges are in this respect inevitably at some disadvantage in competing for history's favourable verdicts. It may, however, be not a bad starting-point to assume that, like other individuals in the past, they possessed a rational justification for their decisions and actions, which in matters heard in court may be discovered by studying their published reasons for what they said and decided. To confine attentioft to what was said about them in or out of Parliament by members of the other two branches of government, executive or legislative, is to ascribe to those pronouncements a quality that, judged by prevailing attitudes in society, those individuals probably did not enjoy in the community or times in which they lived.

In the preface to The Supreme Court of Queensland 1859-1860, I made the bold claim that, in contests with the judiciary in the past, contemporaneous versions of events given by those on the political side of government were perhaps in danger of being received too readily as correct. To make that charge is to invite closer scrutiny of one's own meagre efforts. No doubt my presumption will be visited in kind. Court history nevertheless is a topic in which a judicial author may be qualified to recognise and contribute some things that others might overlook. The "interest" of a Judge in such a subject can scarcely be concealed. It is there for all to see.

238

ENDNOTES

1. Dr F.W.S. Cumbrae Stewart. 2. Dr J.M. Bennett; Dr W. Ross Johnston; Mr J.CH. Gill; the late Professor

R.B. Joyce. 3. "Was German Nazism Unique", Public Lecture delivered by Lord Dacre

at Mayne Hall, University of Queensland on Tuesday, 17th March, 1987 at 8.00 p.m.

4. See Evidence and Discovery Acts, 1867 to 1962, S.42B. 5. See Loretta Re: Oral v. Written Evidence: The Myth of the Impressive Witness

(1983) 57 A.L.J 679. 6. Courier May 11, 1861, reporting a meeting held in support of Lutwyche

J. at the School of Arts, North Brisbane. 7. Dr G. Shaw: "The Loss of Universal Manhood Suffrage in Queensland"

(1980) A.J.P.H. 372; B.H. McPherson: "The Invalidity of Queensland's First Parliament 1860-1861" (1988) 13 R.H.S.Q. Jnl. 153.

8. CO. Desp. No. 5, Feb. 26, 1861. 9. 1861 Votes and Proceedings 205, 206.

10. R. V. Pugh (1861) 1 Q.S.C.R. 63; Courier Aug. 24, 1861. 11. Brisbane, A.J. Gumming, Govt. Printer. 12. Ibid, at 25-27. 13. Ibid, at 27. 14. Scil., verbal diarrhoea. 15. See Enclosure No. 3 of 7 Sept. 1861, from Col. Maurice O'Connell, in

Despatch No. 54 of 12 Sept. 1861, from Governor Bowen to Secretary of State for the Colonies.

16. No. 82 of 1860. 17. No. 5 (Qld.): Richard Bethall A-G; William Atherton S-G. 18. Sec Appendix hereto. 19. 1861 Votes and Proceedings at 359. 20. St. Lucia, Qld. U.Q.P. 1984. 21. Macbeth Act 4, scene 3. 22. Samuel Walker Griffith, at 22 (chap. 1, n. 99). 23. Ibid, n. 100. 24. Ibid, at 69 (chap. 3, n. 67). 25. Ibid, at 88 (chap. 4, n. 1). 26. Ibit, at 25. 27. Ibid: Preface, at x, xi. 28. St. Lucia, Qld. U.Q.P. 1975. 29. Ibid, at 521. 30. (1920) 29 C.L.R. 530. 31. T.J Ryan, at 412. 32. Queensland Political Portraits, at 263, St. Lucia, Qld. U.Q.P. 1978. 33. Hon. E.J.D. Stanley: A Mingled Yarn, at 31 (unpubd. ms. copy in Sup. Ct.

Library). 34. Sir Harry Gibbs: Some Aspects of the History of the Queensland Bar: (1979)

53 A.L.J 53, 67. 35. At 287-291. Sydney, Butterworth & Co. 1989. 36. (1990) 14 R.H.S.Q. Jnl 61. 37. Op. cit., at 521

39^ The Supreme Court of Queensland 1859-1860, at 335, 339-341, 361, 380-381. 40. Ibid, at 355-336, 380-381. 41. Now published in (1990) 6 Aust. Bar Review 183.

239

Appendix A No. 55

(Queensland.)

LAW OFFICERS to COLONIAL OFFICE

Lincoln's Inn, February 23, 1861. My Lord Duke

We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 20th February instant, in which he stated that he was directed by your Grace to request that we would favour you with our opinion upon the following question:

By the 7th section of the New South Wales Government Act (18 & 19 Vict. C.54) it was provided that it should be lawful for Her Majesty, by Letters Patent or by Order in Council, to erect certain parts of New South Wales into a separate Colony.

and to make provision for the government of any such Colony, and for the establishment of a Legislature therein in manner as nearly resembling the form of Government and Legislature which shall be at such time established in New South Wales as the circumstances of such Colony will allow.

Sir Frederick Rogers was also pleased to state that the constitution of New South Wales was prescribed by a Colonial Act, to which Her Majesty was empowered to assent by the above-mentioned Imperial Statute, and which forms a schedule to that Statute. And that the Legislature established by this Colonial Act consisted of a Council, to be composed (ultimately) of nominees, for Ufe, and an Assembly, to be elected by persons possessing small property qualification (section 11 of the Act) or paying 40% a year for board and lodging or 10% a year for lodging. And that this Colonial Act was assented to by Her Majesty and came into operation, 1856. And also that in 1858 a Colonial Act was passed which gave a vote to every adult male (natural born or naturalised) who had resided in any electoral district of the Colony for six months, with an additional vote for property situate beyond that district.

Sir Frederic Rogers was also pleased to state that in 1859 Her Majesty exercised her power of separating the Colony of Queensland from that of New South Wales, and that on the 6th day of June in that year, acting under the 7th section of the Act of 18 & 19 Vict.,

240

issued an Order in Council which declared in its 8th section that the Constitution of the new Colony should be such as was estabUshed by the Colonial Act of 1856, taking no notice of the subsequent alterations in 1858. And he was also pleased to state that it has been contended that this constitution thus created did not "resemble as nearly as circumstances allowed the form of Government and Legislature which was at that time established in New South Wales," that the Legislature is therefore Ulegally constituted and its proceedings invalid.

Sir Frederick Rogers was also pleased to state that our opinion is requested — (1) Whether the Legislature of Queensland is under the above circumstances legally constituted, and is competent to perform the functions which are assigned to it by the Order in Council of June 1859; and (2) if there is any doubt as to its competency, whether any better course is open to Her Majesty's Government than to procure the passing of an Act of Parliament removing such doubts and giving retrospective validity to all that it has done.

Sir Frederic Rogers was also pleased to annex extracts from a petition addressed to Her Majesty by the judge of the Supreme Court, from a report made by the Colonial Attorney General on that petition, and from a Despatch addressed by the Governor to the Secretary of State, and from which, he stated, we should see that in the opinion of the Governor the circumstances of Queensland would not have rendered expedient in that Colony the extension of the suffrage which had been effected in New South Wales. And that, in fact, the absence of great towns and the preponderance of the pastoral or squatting interest gives a somewhat different and, apparently, more aristocratical character to the Colony.

In obedience to your Grace's commands we have taken these papers into our consideration, and have the honour to

241

Report

That the power reserved to Her Majesty (by the 7th section of 18 & 19 Vict, c.54) of making provision for the government of any new separate Colony is a qualified conditional power, which is not duly exercised unless the quaUfication and conditions are observed.

The condition is that the form of Government and Legislature to be established in the new Colony shall resemble, as nearly as the circumstances of the new Colony will allow, the form of Government and Legislature estabUshed in New South Wales at the time of the separation of such Colony.

These words, "the form of Government and Legislature," must, in our opinion, be taken to include the laws by which the House of Assembly (a branch of the Legislature) is elected and constituted.

We think, therefore, that there is an obligation on the Crown, urUess it can be shown that the circumstances of Queensland will not admit of its being done, to establish in Queensland the same law of electoral franchise as existed in New South Wales at the time of the separation.

That such a law is not, in the opinion of the advisers of the Crown, expedient for Queensland is not sufficient. If it be practicable, it must be done.

At the time of the separation all the adult males who were living in what is now the Colony of Queensland possessed the electoral franchise in New South Wales, and if a sinular right were not permitted to exist in Queensland such as have no property franchise would be disfranchised by the effect of the separation.

We are of opinion that the former Order in Council was not a due execution of the statutory power contained in the 7th section, and that it was, therefore, invalid, and consequently that a new Order in Council should be passed revoking the 8th section of the former Order and introducing a new section in lieu thereof, or an Act of Parliament obtained giving validity to the former Order, if it be desired not to follow in Queensland the electoral law of New South Wales.

We have

(Signed) RICHARD BETHELL.

WILLIAM ATHERTON. His Grace the Duke of Newcastle