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Decisions of the Superior Courts of New South Wales, 1788-1899

Speech to Jury (1) [1841] NSWSupC 9

jury, address to - Willis J., speech to jury - Willis J., opinions of - religion, influence of - Willis J., amoval of - Willis J., criticisms of

Supreme Court of New South Wales

Willis J., 1 February 1841

Source: Sydney Herald, 2 February 1841[1]


            YESTERDAY Mr. Justice Willis delivered the following Address to the Jury before summing up in the first case tried this session:-

            GENTLEMEN OF THE JURY. - We are again met to discharge one relativeduties as Judge and Jury, in the administration of Criminal Justice. - duties which I have heretofore endeavoured to define, and which time only convinces me that I correctly, constitutionally, and seasonably described. I consider the practice I have hitherto pursued, of addressing some general observations to you when we first assemble, neither "extra-judicial" nor unwarranted by sufficient judicial example. I believe it to be alike respectful and beneficial. Here, indeed, we have as yet no such Grand Jury as in Englan[d]; but the Jury which we have is so selected, that magistrates and gentlemen, of the first influence in the Colony, are among its members, "to whom, according to a modern and very popular legal writer, a few hints from a judge, either as to the manner in which they should "exercise their duties, or use their influence, are valuable, and duly appreciated by them and by the public." I am not to be deterred therefore, from this, or any other course, which, in the conscientious discharge of my duty, I deem it right to pursue, by any remarks which this practice may have occasioned.

            Mr. Bentham, the father of legal reform, proposes in his "Petition for Justice." "That to obviate the danger and suspicion of partiality through Privateconnexion, no Judge, immediate Principal, should remain in the same Judicatory for any longer term than three years or thereabouts."

            By a singular coincidence I am now about to go to another place, after a residence of very little more than three years among you. I have not, however, anyprivate connexion in this Colony from whose virtues I can shine in reflected lustre; nor from whose conduct any association could cast a shade upon the dignity of Justice. Here, I have no near relative nor connexion whatever, - I am not directly nor indirectly, for myself, or for any other, concerned in the land, in the commerce, or in any part of the Public Companies of the Colony; nor have I any relative orconnexion who is in any wise interested, or concerned in them. I have in fact, no localconnexion, no interest of any kind whatever, save that which arises from a due sense of the sacred trust, of duly and impartially administering that Justice, which my Sovereign has confided to me, and which I have sworn faithfully to discharge. I come not, therefore, within the scope of Mr. Bentham's apprehensions. The danger and suspicions of partiality through "private connexion" must cease when such connexiondoes not in any manner exist. Fearlessly, yet humbly also, do I say with Samuel (the last of Israel's Judges, when returning from his sacred office,) "Behold here I am, witness against me before the Lord and before his anointed, whose ox have I taken? or whose ass have I taken? or whom have I defrauded? whom have I oppressed? or of whose hand have I received any bribe, to blind mine eyes therewith? and I will restore it to you." I must not, in all justice to this community, depart hence, without availing myself of this, perhaps, the last opportunity I may have, of publicly demonstrating its vast superiority in virtue (by God's good Providence) to the most polished nations of the Heathen World; and of proving to you that whatever may be the vices and crimes which prevail amongst you; - whatever may be the nature of the case before us, or the enormity which will be laid before you during the present session; that they are inconsiderable to those which existed previously to the Christian advent - Thus for example - Here you are not destitute, as the heathens were, of natural affection - no man in this Colony would avoid the burden of a family by the exposure of his Infant Children; - the unnatural monster, -- (for so he would now be called,) who in a single instance should attempt to revive this exploded system of economy would not escape the brand of public infamy, or the rigour of the Law. You of this Colony are not, as the heathen were, full of murders. The robber, it is true, to facilitate the acquisition of his booty, or to secure himself from immediate apprehension and punishment, sometimes imbrues his hand in blood; but scenes of blood and murder make no part, as of old, of the public diversions of the people. Miserable slaves upon occasions of public rejoicing and festivity, are not exposed to the fury of wild beasts for a show of amusement and recreation to the populace, nor engaged in mortal combat with each other on a public stage. Such bloody sports, were they exhibited, would not draw crowds of spectators to our Theatre, of every rank, sex, and age. Your women of condition would have no relish for the sight: - they would not be able to behold it with so much composure as to admire the skill and agility of the Champions, and interest themselves in the issue of the combat: - they would shriek and faint:- they would not exclaim, like the Roman Ladies, in a rapture of delight, when the favorite gladiator struck his antagonist the fatal blow; nor with cool indifference give the signal to dispatch the prostrate suppliant:

            ------------------------ "Consurgit ad ietus

                        Et quoties victor ferrum jugulo inserit, illa

            Delicias ait esse suas, pectusque jacentis

                        Erigo Modesta jubet, converso pollice rumpi."

            You, of this Colony, are not in the degree that the heathens were, "unmerciful" - you are milder in the use of power of every sort, and the abuse of authority is now restrained by law, in cases in which the laws of ancient times allowed it. Capital punishment is not inflicted for slight offences, nor is it suddenly inflicted without a formal accusation, trial, conviction, and warrant of execution. The lives of children and servants are no longer at the disposal of the father of the family; nor is domestic authority maintained as formerly by severities, which the mild spirit of your laws inflicts not on the worst malefactors. In the virtues of temperance and chastity, the practice among you indeed is very far below the standard of Christian purity, but yet the worst excesses of modern voluptuaries seem continence and sanctity when set in comparison with those unnatural debaucheries of the heathen world, which were so habitual in their manners, that they stained the lives of their gravest philosophers, and made even a part of the religious rites of the politest nations.

            This improvement is the effect of Christianity, it can be traced to its establishment, but to no earlier period. But the work is begun, and is progressing, and the mild spirit of Christianity, in its course to that ascendancy which in God's good time it will inevitably reach, must carry with it the surest antidote to crime. - You then, Gentlemen, whose duty it is to enquire into and to declare the guilt of the parties accused of such crimes as may have been committed among you, ever must remember, that "iniquity would not abound" if the attention of man could be steadily fixed on his eternal interests. Most anxiously, and at all times then, should you endeavour, as you hope for God's blessing here and hereafter, to check the course of sin and crime by the propagation of the Christian Religion, and especially by impressing its sacred truths on the minds of the rising generation. Mr. Justice Coleridge thus concluded his charge to the Grand Jury of the County of Somerset at the opening of the last Summer Assizes. - "Prevention of crime (said he) is much more important than the punishment of it. The same table to which I have just alluded, (a comparative table of the number of persons committed for trial during the last six years,) furnishes me with the degree of Education received by each of the Prisoners, by which I find out of 843 Prisoners, 118 could read and write well: of those who could neither read nor write at all there were 381; and the number put down for those who could read and write imperfectly is 375, which leaves a small surplus unacconuted for. Reading and writing imperfectly are nothing at all - a person who can only read and write imperfectly, as the term is applied in these cases, is almost in the same condition as one who can neither read nor write at all. What, then, can speak more strongly on the question of education as a means to the prevention of crime, than the fact that 756 out of 813 persons are uneducated beings? and it is not too much to say, that if those persons had been educated, a great number of them would not have appeared in this calendar. They are not committed for the higher classes of offences, or such as educated persons would commit. The conclusion, therefore, to be come to is; that education is of the last importance." "I mean, of course," said his Lordship, "not merely that it should be based upon religious instruction; but that religious instruction should be the beginning, the middle, and the end; not the mere teaching of the Bible, or saying of the Catechism, but the knowledge of what the Bible contains, and the understanding of what is taught in the Catechism; this religious instruction must be the very beginning, and life and soul of the whole." Such was the language of that learned Judge. For myself, Gentlemen, I have already trespassed so long upon your patience, that I shall only add my fervent wish that "your sons may grow up as the young plants, and that your daughters may be as the polished corners of the temple;" and "that peace and happiness, truth and justice, religion and piety, may be established among you for all generations."

Source: Sydney Herald, 16 October 1841



            "The private abuse I scorn and despise." - Mr. Justice WALPOLE WILLIS.

            "This dastard - I will not call him a man - he is unworthy the name." - Mr. Justice WALPOLE WILLIS.

            "This assassin without a name dared attack a Judge in the discharge of his public duty." - Mr. Justice WALPOLE WILLIS.

            "I pay my debts; I do not in the colony owe £10." - Mr. Justice WALPOLE WILLIS.

            "As to the contemptible observations, they recoil on the creature who had the temerity to use them." - Mr. Justice WALPOLE WILLIS.

            "Tipstaff!  Apprehend them all! Bring all in who are making that noise!" - Mr. Justice WALPOLE WILLIS.

            "I will put down the licentiousness of the press: I have the moral courage to do so, and in the discharge of my public duty I will do so." - Mr. Justice WALPOLE WILLIS.

            "Beware the third time! Because if you publish any more letters like that signed `Herald,' you will find that I have the moral courage to put it down; I do not say one day that which I will not do another." - Mr. Justice WALPOLE WILLIS.

            "I will not permit false and calumnious attacks - attacks as false as can be - to be made on my character." - Mr. Justice WALPOLE WILLIS.

            "I will have no stabbing in the dark." - Mr. Justice WALPOLE WILLIS.

            "If they [the Sydney Judges] allow license there, and thereby bring that part of the Colony into disgrace, shall I do so here? Never!" - Mr. Justice WALPOLE WILLIS.

            "If Judge BURTON, in a religious controversy, will allow such remarks to be made towards himself, I will not, in the administration of justice, permit them here," -Mr. Justice WALPOLE WILLIS.

            "I will not have my character assailed by vile anomymous writers." - Mr. Justice WALPOLE WILLIS.

            "I hope I shall have no more cause for complaint - it will be not only complaint - but something more severe." - Mr. Justice WALPOLE WILLIS.

            "To Sir George Gipps, Knight, Governor of the Territory of New South Wales and its Dependencies.

            "The memorial of the inhabitants of the District of Port Phillip,

            "SHEWETH -

            "1.        That from recent occurrences, which it is considered unnecessary to specify, the administration of justice in the hands of the Honorable John Walpole Willis has fallen, the memorialists lament to record, into a state of disrepute incompatible with the respect due to its majesty.

            "2.        Your memorialists therefore pray, that in accordance with the wise provisions made by your Excellency in the act establishing the Supreme Court of Port Phillip, for the removal, if expedient, of the Resident Judge, your Excellency would be pleased to relieve the Honorable John Walpole Willis of the duties of his present office, and to substitute such other Judge in his place as your Excellency may deem fit." - The Colonists of Port Phillip.

            THE string of libels upon the dignity of the judicial office, which we have just been quoting, and the petition for the removal of the honourable libeller, with which they are appropriately wound up, call for our most indignant animadversion.

            The facts out of which this judicial extravaganza was got up, for the diversion of Her Majesty's Australian lieges, may be stated in few words. Mr. ARDEN, the Editor of the Port Phillip Gazette, had inserted a letter from a Correspondent, signing himself "Scrutator," censuring certain unbecoming habits displayed by Mr.WALPOLE WILLIS in his capacity of Judge, and concluding with a sarcastic allusion to the worthy Judge's domestic parsimony. Instead of allowing, as any sensible Judge would have done, the attack to work its own way, either as slander whose falsehood would be its own refutation, or as an admonition to his own future amendment, this silly functionary permitted it to work up the worst passions of his nature, and to provoke him to that ridiculous exposure of his own bad temper, which the above extracts so pungently display. He sent for the Editor to Court; the Editor refusing to come, he commanded the Police Magistrate, who happened to be in "the presence," to issue a warrant for his apprehension; this was accordingly done, when the Editor made his appearance before "His Honor," who forthwith commenced one of the most violent and silly pieces of vituperation with which a British bench was ever disgraced since the days of JEFFREYS. Refusing to allow the Editor to open his lips, the Judge swore articles of the peace against him, and called upon the Magistrates to bind him over in penalties amounting to £800; to which call the Magistrates unanimously refused to respond, and dismissed the case. Not relishing this Magisterial insubordination, "His Honor," two days after, renewed his demand in the Court of Quarter Sessions, where, in consequence of his having filed and affidavit more stringently worded than the first, his complaint was tolerated by a bare majority, the casting vote being given in his favour by the Police Magistrate; and the Editor was consequently bound over to keep the peace.

            Had Mr. WILLIS taken these proceedings without excitement, we should have pronounced them erroneous in judgment, founded upon a gratuitous supposition that a Judge is less amenable than other functionaries to the tribunal of public opinion through the agency of the Press. Even this error would have been sufficiently reprehensible, for it is manifest, that in the whole circle of the paid servants of the public, there is none whom it is of so much importance that the Press should watch with vigilance and criticise with fearless candour, as those who are entrusted with the administration of justice.

            But Mr. WILLIS'S is not so much an error of judgment, as a vicious indulgence of bad temper. He exhibits the spectacle, not of a grave dignitary acting under intellectual misapprehension, but of a fastidious simpleton, foaming and spluttering in the feeblest vindictiveness of the feeblest of minds. He puts it out of our power to reason with him; for we might as well attempt to reason with an infuriated fish-woman, or with a spiteful ourang-outang, as with a man writing and grinning under such distortions of rage as those exhibited by Judge WILLIS on the occasion before us.

            We citizens of Sydney have not to learn Mr. WILLIS'S unenviable peculiarities. We are familiar of old with his grimaces on the bench; his fantastic tricks of wriggling upon his seat as if its cushion were stuffed with needles; starting upon his feet; twisting his gown as if he would tear it to a thousand shreds; twitching his wig as if he were going to fling it among the barristers; and altogether conducting himself like an unhappy victim of St. Vitus's dance. We cannot forget his unmannerly interruptions of Counsel - his silly interjections - his contemptible attempts at mistimed wit - his preposterous endeavours to show off his superiority over all other persons in the court, and all other persons in the world. These follies, these mountebank antics, are the theme of constant jest whenever - MrWALPOLE WILLIS is the topic of discourse. But while they made the merry laugh, they made the judicious grieve. The bench is not the place for harlequinades; a judge is not the person to exactMerryandrew. The business of courts of justice is too grave for the frequent repetition of even guarded smiloes; much less does it admit of the daily and hourly grimaces in which Mr. WALPOLE WILLIS was so fond of indulging.

            The people of Melbourne do well to petition of this eccentric gentleman's removal. It is evidence the has lost all confidence, all respect, on the part of the public. But we earnestly protest against his return to Sydney. For mercy's sake, keep him away from head-quarters! We quarrel not with his parsimony; nay, we are rather disposed to applaud his discreet resolution to live within his means, and keep out of debt. Neither have we aught to object to his competency in point of professional learning: we rather think he is a well-read and experienced lawyer, especially in the equity jurisdiction. Still less do we doubt his judicial purity; we have no reason to think otherwise than that he would sooner thrust his hand into the flames, than listen either to the bribery of money or the bribery of favour and affection. But we rest our objection to him on the single fact, that he is a thoroughly bad tempered man; without sufficient self-command to keep his temper under control; without discretion to regulate his language; without decorum to adapt his manners to the usages of polished gentlemen, or to the dignity of British Judges, Lord ELLENBOROUGH, some years ago. when President of the Board of Control, tolerated a fractious Judge in India, because there were two other Judges, of sober demeanour, to keep him in check; His lordship concluding, that a wild elephant between two tame ones might be kept pretty quiet. From what we have seen, however, of Mr. WALPOLE WILLIS, we can scarcely indulge the hope, that were he to return to Sydney, either the solemnity of SirJAMES DOWLING, or the pious gravity of Mr. Justice BURTON, or the gentlemanly grace of Mr. Justice STEPHEN, would suffice to subdue the mercurial volatility of this learned and Honourable Oddity.

Source: Sydney Herald,  28 October 1841




To the Editors of the Sydney Herald.

            GENTLEMEN, -- I have not met with anything for a long time that has excited my disgust, to such an unpleasant degree, as the report I have just now read in to day's Herald, of Mr. Willis' judicial charge at Melbourne.

            The whole of it, considering the circumstances that have lately taken place there, is in abominably bad taste; but I more particularly allude to that portion which apotheosises Sir George Gipps.

            What would be thought in England of a Judge who should venture, from his seat on the Bench, to laud the Minister of the day in such extravagant terms? In the excess of his friendship, it may be said, this Colonial dignitary lost sight of all other considerations; perhaps so - and at the same time he, of course, quite overlooked the fact that His Excellency would be required to decide upon the propriety of retaining him in office in a district where he had ceased to be respected. One cannot of course have any doubt on the subject, for where was the necessity for all this blandishment; "Coran Judice tali." Mr. Willis knows that he has little to fear; every one in fact knows that the Governor and he have been the very best of friends ever since the memorable conveyance (I use ancient Pistol's term, the mildest I can think of) of the pamphlet from the table of the Australian Library to the interior of His Excellency's strong box. On this transaction, though it cemented this Damon-and-Pythias like friendship, I will not now dwell, but merely ask you, and through you the public, whether Judge Willis in this precious charge of his has not incontestibly proved his claim to the epithet which was in consequence of his share in that business bestowed upon him.

                                                                                                            Yours, &c.,                                                                                                                       MASTIX.

Sydney, October 28, 1841.


[1]              Eventually, on 17 June 1843, Willis J. was amoved from office by the Governor of New South Wales. This was overturned on appeal to the Privy Council:Willis v Gipps (1846) 5 Moo PC 379; 13 ER 536. He had also been amoved from judicial office in Upper Canada: Upper Canada Papers. Relating to the Removal of. Mr Justice Willis 1829, Printed Papers, Vol. 13, in the office of the Judicial Committee of the Privy Council.

Published by the Division of Law, Macquarie University