Book
Reviews
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The Legal History of Wales
(2nd Edition)
Author: Thomas Glyn Watkin
Publisher: University
of Wales Press
Reviewer: Professor
Tony Lee Hon TEP
The privilege of my personal Welsh antecedents seems somehow
to have qualified me to review this remarkable work. Professor
Thomas Watkins is one of Wales’s most distinguished academics
and lawyers. He is an ordained priest of the Church in Wales. He
was legal assistant to the governing body of the Church in Wales
from 1981 to 1988, with responsibility for drafting bilingual bills
and amendments to the church’s constitution. In 2007 he became
First Welsh Legislative Counsel, the legal officer principally
responsible for drafting the legislative program of the Welsh
Assembly. My own brother knows him well, has read this book and
discussed its purpose with the author. He says that the book is very
much a product of the passion of the author for Welsh identity and
unique future.
The 2nd edition of this work includes a detailed description of
the effects of the devolution of legislative capacity in the late 20th
century. But as least as interesting as its coverage of the earliest
‘Celtic twilight’, then Roman, then post-conquest periods.
For a thousand years after the departure of the Romans, the people
of Wales, in whole or in part, lived according to their own laws,
but those laws responded to the various influences of which they
were subjected by reason of their geographical proximity to the
economically far more important England. For three hundred
years after the Union of England and Wales under the Tudors
(1536), Wales had a distinct legal identity within which English law
was dispensed by its own discrete law courts, the Great Sessions.
Pressure to assimilate the two legal systems produced a legal
culture that combines a readiness to assimilate with a jealous
determination to preserve the best of one’s own.
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The Welsh had no writing before Roman times. Its traditions were oral but nevertheless highly
sophisticated. They were accumulated and passed down meticulously from generation to generation.
Nevertheless during the Roman period all free Englishmen were Roman citizens and enjoyed the
protection of the Roman law. After the Romans left, the English retained and indeed clung to Roman
law. Welsh legal custom remained oral and was practised west of the Roman influence. Other legal
traditions developed after the Romans left, including the laws of the church and of Alfred the Great. All
these affected the practice of Welsh legal customs. The Welsh traditions were not reduced to writing
until the 10th century, nearly a thousand years after the disappearance of the Romans.
Among those educated in the oral traditions of Wales were the druids. Caesar recognised the druids
of Gaul as judges and advisers to the rulers. In Wales the role played by druids was undertaken by the
court poet the bard teulu, who not only sang and recited for his patrons but also preserved the tribal
and family genealogy in poetic or written form and was tutor to their children.
The Welsh owned very little. A Welsh man rarely owned more than a harp, some proceeds of battle
and a cauldron. The latter was inherited by his youngest son. There was also a practice of throwing
possessions into a pit as an offering to the deity. There is archaeological evidence of some of these
practices. But otherwise we know very little of early Welsh customary law.
The second chapter, entitled ‘Wales in the Roman Empire’, emphasises the overwhelming
achievement of Roman law throughout all parts amenable to Roman domination. Great importance
was attached to the relationship of marriage and the position of the paterfamilias. Sons and
daughters were incapable of owning property but the paterfamilias was liable for their wrongdoings.
The great achievement of Roman law is its capacity to provide practical solutions to the problems
and difficulties that confronted them.
Chapter 3, entitled ‘The Sub Roman Period’, describes the period known as the Dark Ages extending
from the withdrawal of the Romans to the promulgation of the laws of Hywel Dda in the 10th century.
The final collapse of the Roman Empire in the west occurred in 476 when Odoacer deposed Romulus
Augustus. Various codes of law were subsequently promulgated many of them incorporating Roman
law precedents. Law ceased to be customary and became codified. They took the form of edicts. The
former citizens of the western empire were loath to relinquish their Roman status particularly where
their new rulers were heretics and not Catholics. In south west England there emerged tie role of the
territorial bishopric. Monastic schools were created in many Welsh communities, and the Roman
element of their curricula included poetry, grammar, rhetoric and arithmetic. Larger churches, called
clas churches, supported colleges of priests. The maintenance of Roman roadways was a significant
feature of this period and larger churches were often situate near a Roman road which facilitated
the itinerant character of their ministry. Christianity in Wales during this period was thoroughly
Roman in creed, origin, organisation and practice. Parish churches were built on former Roman sites,
demonstrating continuity of occupation.
Another feature of the continuing romanitas of this period was the attempt to confer distinguished
Roman ancestry upon local leaders, both secular and religious. Governmental areas were likely to
reflect the boundaries of earlier Roman governmental areas. Yet another remnant of Roman rule was
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the retention of the Latin language, which was common until at least the 5th century. The native British
of that period were bilingual in Latin and Welsh and the Welsh referred to their country as Britannia,
the Roman name.
At this time, land in Wales was treated as belonging to the family and was inalienable and not
disposable by will. This may be seen as a device to increase family wealth over time as was much later
on the life tenancy followed by a remainder. The dominion of Christianity in post Roman Britain
enabled bishops to attend overseas councils in Tours in 461, Vannes in 465, Orleans in 511 and Paris in
555. Contacts with non Roman jurisdictions such as Gaul, including Spain, resulted in the use of liturgy
that was in part at least Gallic. Roman liturgical usage based on that of the church at Rome only spread
to Wales at a later date, reaching Bangor in 768 and St David’s by 928.
A further guiding factor in the development of an autochthonous Welsh culture was the Bible, which
enjoined adherence in particular to the Old Testament as a requisite for kingship. This chapter
concludes with the proposition that there is widespread evidence that the Romana-British remnant
were loath to interact with the Anglo-Saxons, placing emphasis upon preserving their own culture and
language, that is the Roman culture and the Latin language.
CHAPTER 4: ‘THE AGE OF NATIVE PRINCES’
This detailed chapter describes the gradual development of various kingdoms and principalities in
Wales and the creation of laws for each and all of them. In 825 the direct male line of the ruling house
of Gwynedd ceased upon the death of Hywel ap Rhodri. He was succeeded by his nephew Mervyn
who died in 844 and was succeeded by his eldest son Rhodri Mawr. Upon his death, four of his sons
ruled his kingdom in some form of joint sovereignty. That is primogeniture had not been established.
One of the sons established influence in the northern kingdom of Gwynedd and another, Cadell, in the
southern kingdom of Dyfed, particularly after the death in 904 of the then King Llywarch ap Hyfaidd,
whose daughter the son of Cadell married. Cadell was later known as Hywell Dda and it is during his
reign from 904 to 949 that the extant native laws of Wales were reduced to writing. Hywel recognised
the English King Athelstan in 927 and did homage to Alfred the Great. He signed official documents
as a sub-regulus of the English king and is credited with having visited the Pope in Rome in 929, thus
connecting Wales with the wider sovereignty of Europe. Hywel invaded Gwynedd in 942 and embraced
Powys and Ceredigion, thereby becoming ruler of a very substantial portion of the land of Wales. He
summoned six men from every cantref to examine old laws, continue some and abolish others. This
process of reducing laws to writing was occurring throughout Europe. The influence of the church was
evident in laws relating to the importance of intention in punishment for wrongs, the encouragement of
testamentary gifts to the church and the sanctity of the person of the king. Legal texts of the time were
not seen as binding and developed a rule that it was possible for persons to enter into agreements that
were outside the law, creating a custom particular to a transaction or occasion. The Welsh king’s role
was to enforce the customs of his country: he was not in himself a source of law. Likewise the Norman
king’s role was seen to enforce the common law of England.
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The chapter continues with a description of the content of the laws. Inheritance within members of
royal and wealthy families was an important preoccupation. On the death of a king, the queen was
allotted one third of his estate and a status greater than that of any court officers. The king’s successor
was usually chosen and was often, but not necessarily, the eldest son. Sometimes the inheritance was
shared—but the consequences of dividing up the territory of kingship, which caused the empire of
Charlemagne to disintegrate, impelled consideration of more appropriate forms of kingly inheritance.
There follows a description of family and larger aggregates of citizens and forms of land holding, the
duties of tenants and the composition of the royal courts. Children born to a married woman were
presumed to be the children of her husband, but Welsh law regard children born out of wedlock as the
responsibility of their natural father and as equal to those of his children born within marriage. Unlike
most legal systems Welsh custom did not differentiate between legitimate and illegitimate.
Free born Welshmen fell into two classes. One consisted of the nobility or gentry, men and women of
gentle birth. They were allowed certain privileges e.g. as to hunting and the professions to which they
might belong, such as advocate, judge, bard, priest or smith. A grant of higher status would also attach
to residence within the cantref of a consecrated church. The other class was free in the sense that they
were not slaves and were defined by their descent through the female line. Today they might be seen
as illegitimate. They were tied to the land but could purchase higher status. Slavery was recognised but
slaves could be freed. Foreigners on Welsh soil were given a recognised status.
As for inheritance to land, younger sons were given equal rights. The youngest son divided the land
into portions for personal management. The longest period for which a landowner might alienate land
was the period of his life. Church land was held within the king, giving him greater control over it than
the church. Testamentary disposition was originally limited to gifts to pay debts; but gifts to the church
were deemed lawful. As to how unoccupied property was acquired, water, air and land were open to
all, so was available to be possessed. The possessor did not become owner until possession had been in
the family for four generations. We are seeing the development of law as appurtenant to the reduction
of property into use. Timber could be cut freely from the king’s forest to furnish repairs to a church or
to fashion a spear or funeral bier; or from a free man’s forest to roof a house. But timber cut to build a
house had to be paid for.
Contractual agreements could be entered into in one of three ways. A formal oath might be sworn,
calling upon God to witness the obligation. The promise could be enforced by the king or the church.
Or a contract could be entered into by the clasping of hands, or by the taking of sureties who became
responsible for the obligation.
Obligations could also arise from wrongdoing. Compensation was payable for unintentional killing
but punishment was inflicted for intentional killing. Some killings were accepted as justifiable, where
the victim had deserved to die for some reason. The purpose of imposing compensation was to buy off
the vengeance of the family of the victim and prevent a blood feud from arising. Theft was regarded
as very serious and the house wherein stolen property was found might be forfeited. Punishment
and compensation might be imposed. Manifest theft of property worth more than four pence was
punishable by death; of less than four pence by selling the culprit into slavery. These penalties were
moderated in the 11th century. An elaborate system of compensation was constructed for offences to the
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person. A judge could be attacked for giving a judgment in his own interest. Judges were bound to act in
accordance with written precedents.
As for the courts themselves in south Wales the local upper classes usually performed the judicial
function. They represented the stability of the local society. In the north professional judges were used,
who were learned in the law. They were referred to as wise men. They represented a land that had a
wider than local culture, namely the general culture of Western Europe. Litigation was always directed
at achieving either possession or property. The process was a party process inasmuch as judgment
could only be given for what a party had claimed. As with Roman law Welsh law knew nothing of
trial by ordeal, a Germanic process. The weight of a witness’s testimony depended on the status of the
witness and the nature of the event under trial. Thus the laws of Hywel Dda evoke a golden age to which
people could look back amidst the uncertainties of the Norman and Plantagenet regimes that were to
follow.
CHAPTER 5: ‘THE NORMAN INVASION AND EDWARD I’
At the time of the Conquest England was well governed. It was divided into shires and hundreds each
governed locally. The King’s court progressed: Gloucester at Christmas, Winchester at Easter and
Westminster at Whitsun addressing itself to the needs of the nobility, the King’s peers and the prelates
of the church. A feudal form of land holding was introduced. The King rewarded his chief followers
with grants of land, in the main scattered across the country to prevent the development of localised
power bases that might threaten his authority. At the top of the feudal pyramid land was granted in
return for military service and the estate granted was intended to support the knight and his family.
The land was heritable as long as the service could be rendered. As times of peace became more
common the payment of a rent could be negotiated instead of actual service. Primogeniture ensured
that the estates could not be broken up. Disputes might be rendered by battle as the defence of the realm
was a major preoccupation of the feudal system.
At about the same time the Catholic Church was reorganising itself. Archbishops were required to go
to Rome to receive the pallium from the Pope. Bishops were required to swear canonical obedience
to their Archbishop. Church discipline was tightened and the practice of celibacy developed. The first
Norman Archbishop of Canterbury was Lanfranc a professor of law of international standing, the
first abbot of Duke William’s abbey at St Etienne. His successor, St Anselm also progressed via the
universities of Italy and the Norman abbey of Bec.
As the Normans moved westward to Wales, Welsh customary law tended to be overtaken by feudalism.
Areas under the jurisdiction of the Normans tended to be divided into Englishries, where the Norman
customs prevailed and English legal forms were adopted and Welshries where the population continued
to live under their customary laws, at least as far as private law rights and duties were concerned.
The lands occupied by the Normans became known as the March, belonging to the lords by right of
conquest. Differences between the two customs were often resolved by the adoption of compromises.
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The Welsh church gradually became more susceptible to Canterbury although it had never required
celibacy. From the appointment of Urban as bishop of Llandaff in 1107, Welsh bishops were required to
take an oath of canonical obedience to the Archbishop of Canterbury. Welsh bishops were sometimes
of great renown as scholars and Geraldus Cambrensis, a Welsh aristocrat, was nearly appointed
Archbishop of Canterbury in 1198.
Welshmen were involved in the 12th century revival of learning, visiting great centres such as Paris,
Oxford and Lincoln and reviving the study of Roman law. Legal texts were published, such as
Glanville’s on the common law. Welsh native laws stood their ground stating that where native laws
contained in law texts were in conflict, trained canonists should resolve the impasse. Canon law courts
began the process of inculcating the international standards of the church with regard to such matters
as marriage, divorce, legitimacy and celibacy. The Domesday Book often recorded Welsh customs and
sustained them. Constitutional lawyers of the 11th century were concerned with the status of kings and
princes of Wales with that of the king in London. Thus the last native King of Deheubarth, Rhys ap
Tewdwr submitted to William I in 1081 with a promise of £40 per year payment for his lands. When
Henry II became King in 1154, the most powerful Welsh ruler was Owain Gwynedd who recognised
Henry’s overlordship in 1154 and maintained a close relationship with him. Wales became drawn into
the Plantagenet net. Inheritance laws were consolidated.
Henry introduced an alternative to battle, the Grand Assize consisting of a jury of twelve which
considered who had the greater right to land. It could establish in times of peace whether a tenancy
might be for life or for inheritance without risk of forfeit. But in the less peaceful areas of the Marches
those who held military tenure might lose their tenancy if they failed to respond to a call for arms. The
King strengthened his grip on the control of tenancies by the writ praecipe.
During the first four decades of the 13th century Llywellyn ap Iorwerth, a grandson of Owain Gwynedd
and also known as Llywelyn Fawr, became the sole ruler of the Northern Kingdom and swore fealty
and liege homage to King John, who in return allowed either English or Welsh law to be utilised to
resolve disputes in Llywelyn’s lands, according to whether they were held of English or Welsh lords.
But John later sought to characterise Llywelyn as a tenant-in-chief rather than as an under-king.
Llywelyn sought to have his son Davydd, born of his marriage to Princess Joan, appointed despite the
fact that under Welsh law an earlier illegitimate son Gruffydd had the better claim. This disputed claim
lingered and on Llywelyn’s death Davydd succeeded him and did homage to Henry III, who, however,
intervened on behalf of Gruffydd. Peace was restored in 1241, with the agreement that Gwynedd would
escheat to the Crown if Davydd died without direct heirs. Gruffydd died in 1244 and Davydd in 1246
when Gruffydd’s nephew, Llywelyn ap Gruffydd, emerged as foremost and continued the practice
of modernising the laws of Wales in line with influences from England, the church and the March.
He innovated rights to wreck, treasure trove and bona vacantia in a manner that antagonised Welsh
interests. There was an increase in judicial activity with the king appointing key royal servants and
ecclesiastics as administrators.
At Woodstock, the English King claimed and obtained the homage and service of all the barons and
nobles of Wales, thus giving himself jurisdiction over all disputes relating to the lands and succession
of these persons. He appointed royal justices to hear and determine disputes between the four sons
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of Gruffydd ap Llywelyn relating to their inheritance of Gwynedd. This Llywelyn ap Gruffydd could
not tolerate and a war ensued. The baronial revolution ended with the death of Simon de Montford in
1267 after which Ottobuono Fiesci, the later Pope Adrian V, settled the terms of an agreement between
Henry III and Llewelyn by which Llewelyn was granted the title of Prince of Wales with the homage
and fealty of all Welsh barons with the exception of Maredudd ap Rhys Grug, whose homage he could
buy for 5000 marks. But the grant was termed a royal grant and did not recognise Llywelyn’s antecedent
rights. Henry III died in 1272 and Edward I arrived in England two years later. Llywelyn refused to
do homage to him. Within a year Edward had subdued Llewelyn who paid Edward. Later in his reign,
Edward regarded Llywelyn as a mere tenant in chief: his princedom was to terminate upon his death.
He died in an ambush in 1282 and then ended any attempt of the Welsh princes to achieve a feudal
unity within Wales. A new phase had begun in the legal history of the Welsh nation.
CHAPTER 6: ‘THE LATER MIDDLE AGES’
Edward consolidated his direct control of the principality by the construction of huge castles
particularly along the coast of north Wales. The castles attracted townships outside but sometimes
inside the walls, whose citizens could be taken for granted to be loyal to the English crown. The Statute
of Rhyddlan, 1284, ushered many of the common law’s standard features into the principality that
Edward sought to consolidate. He finally abolished the right of illegitimate offspring to inherit, which
had always been part of Welsh custom.
The greatest changes involved the introduction of English structures of government. North Wales was
divided into shires, Gwynedd becoming the counties of Anglesey, Caernarfon and Merioneth. In the
north east Flint was placed under the jurisdiction of Chester. In South Wales, Deheubarth was divided
into the counties of Cardigan and Carmarthen. The principal officer of government in these counties
was the Justiciar, in effect a vice-roy. English causes of action were introduced. Welsh courts were not
divided into King’s Bench, Common Pleas and Exchequer. Unless royal justices were present in the
shire all civil jurisdiction between royal courts had to be tried at Westminster in the Court of Common
Pleas. Nevertheless there were considerable differences of procedure as between the counties and other
jurisdiction within Wales, and the Marches had further differences of their own although the King
tended to take a greater interest in the Marches than in the rest of Wales. The Welsh revered the laws of
Hywel Dda and preferred many of his precedents. This led to a demand for scholars of Welsh law, which
strengthened Welsh precedents even more; but the Welsh were not invited to attend parliamentary
proceedings in Westminster.
The church became a major vehicle for the social advancement of the Welsh upper classes, who
could attend church schools and become ecclesiastical administrators and even bishops. Procedures
were also constructed for breaking the inalienability of land. The Black Death generated changes
as a result of depopulation. Landlords became more demanding of their rights leading to a gradual
anglicanisation of land between 1350 and 1450. In the Marches, however, instability bedevilled law
and order for a century.
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Resentment at English high-handedness and what was coming to be viewed as the oppression of their
seigniorial demands were among the factors that led to the rebellion of Owain Glyndwr who was joined
by men who had obtained ecclesiastical preferment among them Lewis Byford, bishop of Bangor,
John Trefor, Bishop of St Asaph a canonist who had served at the papal curia from 1389 to 1394 and
Gruffydd Young archdeacon of Merioneth, who became Owain’s chancellor. Owain envisaged Wales
as a separate province of the western church with its own Archbishop at St David’s, two universities,
one in north Wales and another in south Wales. These aspirations were pressed but rejected at the
Council of Constance in 1417 and serious disabilities were imposed on Welshmen by Henry IV, which
continued and were re-enacted throughout the century. Welsh landholding took more and more the
form of tenancy. During the Wars of the Roses, many Marcher lordships were escheated to the Crown
or lost their title on the field of battle and their lands were granted as tenancies. Changes to gift and
inheritance laws greatly benefited the Cistercian Order and Cistercians cleared land for leasing and
selling timber and rights to mine minerals, particularly lead. Welshmen who distinguished themselves
in battle for Henry V received important grants and were exempted from disabilities and climbed the
English social ladder. They acquired land via marriage and the development of the use, supported by
the newly developed Court of Chancery. Marcher profits declined substantially following the Black
Death and gave rise to a century of poverty and lawlessness.
The Yorkist King Edward IV addressed the problem by establishing a Council of Wales and the
Marches. In 1471 he promised the Welsh people a Prince who could speak no English and then made
his infant son, Edward, Prince of Wales, a princedom that has continued to this day. Edward was
murdered the tower and never became king. After the death of Richard III at Bosworth Henry Tudor
became Henry VII and the ensuing Tudor dynasty was seen as Welsh. In 1471 Henry created his son
Arthur Prince of Wales, but he died in 1502. Henry greatly extended administrative control of Wales.
A Lord President of the Council of Wales and the Marches was appointed who became the chief and
supreme governor of the principality and the Marches. Prerogative courts were established for a variety
of jurisdictions with inquisitorial procedures based on based on the practice of ecclesiastical tribunals.
The profile of the Welsh and their culture was visibly raised, Welsh lawyers specialised in canon law
and distinctions between Welsh and English law were expounded in Inns of Court.
Henry VIII tried to make good the disadvantage of the system of Sessions by limiting the number
of meetings. In 1526 Cardinal Wolsey re-established the Council of Wales with a membership
of 340 persons and new felonies created for example to prevent the escape of thieves by night. In
1536 statute emphasised that only the King could pardon certain offences, appoint justices and
issue legal and judicial instructions. The century marked the end of transitional period during
which the Welsh had embraced and accommodated a new legal traditional whilst not losing some
of its historical characteristics.
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CHAPTER 7: ‘THE TUDORS AND THE UNION WITH
ENGLAND’
The union of England and Wales was effected by two statutes passed during the reign of Henry VIII
in 1535–6 and 1542–3. The jurisdiction of the Pope was ended at this time and the dissolution of the
monasteries followed. The government of Wales was in a state of disarray and union was seen as a
solution by providing the same remedies and recourses for the Welsh as the English. The inhabitants of
the Marches requested the introduction of primogeniture in 1534 and for the introduction of a Court
of Chancery for Wales. The incorporation of Wales into England meant that for the first time the shires
and boroughs of Wales were entitled to send representatives to the Parliament in Westminster.
The first members were elected in 1542 and so the second Act of Union could be said to have been
agreed to by the Welsh nation. It also created the offices of sheriffs, coroners, escheators and high and
petty constables for each of the thirteen shires of Wales. The Courts of Great Sessions were reformed
to be staffed by royal justices, four in number, each one exercising jurisdiction in a circuit consisting of
three counties, the justice of North Wales covering the shires of Anglesey, Caernarvon and Merioneth;
the Justice of Chester covering Flintshire, Denbighshire and Montgomeryshire, the Justice of Brecon
in Radnorshire, Brecknock and Glamorgan and the Justice of Carmarthen in Carmarthenshire,
Pembrokeshire and Cardiganshire. The sessions were to be held twice a year in each county, each
session lasting for six days. Their jurisdiction was broad. On the criminal side minor offences were
punished by floggings and the pillory, more serious by the gallows. Although there were criticisms of
the system the number of judges was doubled in 1576. Justices of the Peace were also created by the
1536 Act, eight in each county together with a custos rotulorum, who was to preside over the Justices
of the Peace assisted by a legally qualified clerk. Boroughs and guilds constituted local administrative
arrangements. The president of the Council of Wales and the Marches was ex officio the lord lieutenant
of every county and mayors were deputy lords lieutenant. The council was a major institution in both
government and the administration of justice, enjoying a substantial amount of judicial business
averaging 1200 cases a year. It also exercised extensive appellate jurisdiction and could fill up the gaps
in the common law in the manner of an equity jurisdiction.
One unpopular feature of the Union legislation was that it required English as the official language of
government. In 1576 provision was made for one of two justices to be Welsh-speaking. In 1563 a Bill
was passed to ensure that a Welsh as well as an English Bible was provided in every parish church.
Land belonging to dissolved monasteries became available to be tenanted and even purchased from the
Crown. Moreover freehold land became devisable by the Statute of Wills of 1540 following a peaceful
demonstration known as the Pilgrimage of Grace. Another development in land law was the enclosure
of open ground to bring it into cultivation. Greater wealth enabled the giving of charitable gifts leading
to the passage of the Statute of Charitable Uses of 1601, still of influence in the modern law of charities.
Education also prospered and schools founded. A shift from lawlessness to litigation enriched the legal
profession. Customs officers were appointed to tackle piracy and smuggling. Nevertheless the courts at
Westminster continued to attract Welsh litigants.
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During the Civil War the Welsh tended to support the King and the political character of the Council
had as a consequence its abolition as a prerogative court in 1641 and the demise of its administrative
and judicial jurisdictions in the following year. The union gave Wales status and opportunity without
destroying its sense of its own character.
CHAPTER 8: ‘THE AGE OF THE GREAT SESSIONS’
The introduction of the Great Sessions gave Wales, with the exception of Monmouthshire, a legal
identity that was for the first time uniform whilst remaining distinct from England. Its jurisdiction was
broad and certainly from 1700 included jurisdiction in equity. Although much of Wales supported the
monarchy after the death of Charles I, under the Commonwealth, Wales’s representation in Parliament
was altered. Each county, other than Merionethshire, was given two members, with borough seats
being awarded to Cardiff and Haverfordwest. The franchise was conferred on those having property
to the value of £200. Justices of the Peace were expected to shoulder the burden of enforcing the
Puritan expectations of the Commonwealth. Small groups of Welsh Commissioners were expected to
eject clergy, end the holding of livings in plurality and requiring proof of knowledge of both biblical
and romano-canon law. In the space of three years 278 clergy lost their benefices. Some of these were
replaced by Protestants nearly all of whom could not speak Welsh and preached on circuit. The Welsh
disliked the introduction of civil marriage, strict sabbatarianism, the abolition of holy days, Christmas
included—together with the festivals and ceremonies that went with them, as well as prohibiting
the secular pleasures of the ale house, the revels, the maypole, cockfighting and bear baiting. The
punishment of drunkenness and swearing was also disliked. Educated Welshmen tended to refuse
office, which meant the elevation of lower classes. But the Commonwealth did create 63 schools,
though none was Welsh.
The Restoration of the Monarchy in 1660 was welcomed by most Welshmen and the Council of Wales
and the Marches was reinstated. Distinguished Welshmen acceded to the Bench. Charles II sought to
buttress the Church of England by suppressing dissent; but in 1672 he issued a Declaration of Indulgence
that permitted public worship in contravention of the Conventicle Act provided the places of worship
concerned were licensed but this improvement did not last. In 1679 five Roman Catholic recusants
were executed. James II was however a Catholic sympathiser and Welsh lawyers who supported him
were rewarded: Justice Jeffreys CJKB became the youngest Lord Chancellor of England, Sir John
Trevor became Master of the Rolls and William Williams, former Speaker of the House of Commons,
became Solicitor General. The King attempted by Declarations of Indulgence, to bypass the Parliament,
against which the Archbishop of Canterbury, the Bishop of St Asaph and six other bishops protested
which resulted in their arraignment on criminal charges. They were acquitted by Sir John Powell of
Carmarthen who was then dismissed by James, who soon fled the realm in fear of his unpopularity.
James invited his son in law, William of Orange, to assume the throne alongside his daughter Mary.
The Glorious Revolution brought to the throne a King and Queen in effect chosen by Parliament, and
the Convention Parliament laid the foundations of a new, constitutional monarchy, with many features
of constitutionality including the independence of the judiciary. During the reign of William and
Mary the appurtenance of Wales to the Crown foundered and by the time the Hanoverians came to
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the throne in 1714 it had well and truly ended. There followed the appointment of non-Welsh speaking
bishops and clergy anglicising the Church and opening the way for Welsh non-conformity. The Court
of King’s Bench and Common Pleas succeeded in acquiring the right to hear appeals from the Welsh
Courts. But great faith was placed upon Justice of the Peace and many members of the gentry class saw
sittings as JPs at the Quarter Sessions preferable to sitting as members of Parliament in Westminster.
They were often graduates of Oxford and had been educated at Eton or Westminster Schools, and some
younger members at local grammar schools, which offered the same syllabuses. The efficiency of the
courts and the competence of its officers contributed to a decline in criminal activity throughout the
Principality.
The growth of non-conformity and the promotion of literacy among the laity was another important
achievement of the late 18th century. The development of primogeniture favoured the eldest son
but was entailed so as to prevent spendthrifts from wasting the family fortune. Landholders had
necessarily to lease land. Pastoralism edged out arable farming but the need for more arable farming,
for the production of food during the Napoleonic Wars, resulted in the passing of Enclosure Acts
by the Parliament enclosing in total some 200,000 acres. Towns grew in size and became centres of
trade, restrictions on which were gradually eased. Poor Law was more strictly enforced leading to the
formation of Friendly Societies and banks enabling people to save against a rainy day.
Another consequence of poverty was the emigration of well-educated persons who played important
roles in the expansion of the settlements in which they found themselves. A Welshman, Thomas
Jefferson, was one of the signatories of the Declaration of Independence. Yale University was named
after a Welshman. Intense jurisprudential activity however saw the end of a separate Welsh judiciary
and the Great Sessions were finally abolished in 1839 in the wake of important law reforms to the
machinery of the law.
CHAPTER 9: ‘THE 19TH AND 20TH CENTURIES’
With the abolition of the Great Sessions in 1830 the administration of justice in Wales became fully
integrated with that of England. The chapter describes the extension of the franchise and changes
to the nature of local government. One perceived injustice was the imposition of toll roads in rural
areas which was opposed by the so called 'Rebecca' riots whose leaders were eventually transported to
Australia. After this land in Wales tended to become owned by landlords living in England or Scotland
who could make life difficult for tenants, but with the introduction of death duties some landlords sold
their land which was acquired by Welsh upper classes and then leased often to property developers for
long periods. It became seen as difficult to legislate particularly for Wales. But the sale of alcohol was
restricted by sabbatarianism in Wales. The restrictions were gradually eroded but did not disappear
altogether until the late as the 1990s.
The most major issue of controversy was the disestablishment of the Church in Wales. Although
the House of Commons favoured the disestablishment the House of Lords did not and it was only
after the passage of the Parliament Act of 1911, which enabled legislation to be passed without the
participation of the House of Lords in certain cases. A disestablishment Bill passed twice through
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the Commons in 1912 but was twice rejected by the House of Lords. When it passed through the
Commons for the third time in May 1914 it became law, although, on account of the complications
of the First World War, actual disestablishment was delayed until 31 March 1920. The ecclesiastical
law in Wales ceased to exist as law and the English ecclesiastical courts lost their function in Wales.
The real purpose of the Act, however, was to appropriate the wealth of the Welsh church. Some £8m
was distributed between municipalities and the University of Wales. Three leading English lawyers,
John Sankey, later to be the Labour Lord Chancellor, Lord Justice Bankes and Lord Justice Atkins
drafted a constitution for the church, which bond members as a private contract. But subsequent
legislation allowed marriage to be celebrated in church. Although some disliked disestablishment
it soon became seen as providing liberty for the church to pursue its policies without interference
from Westminster. Careful management of its finances protected it from the worst effects of the
great financial crisis, which destroyed and reduced to penury the finances of the Church of England
despite the supposed competence of its professional fund managers.
Another development in Wales in the late 19th century was the foundation of the University of Wales in
1893. There follows descriptions of the insensitivity of the English Parliament to Welsh needs one of the
most blatant being the drowning of the village of Cwm Tryweryn to provide a reservoir for Liverpool.
All the Welsh members of Parliament voted against it. Law schools were created in Wales first in
Aberystwyth and then in Cardiff, Swansea, Bangor and the Polytechnic of Wales. Welshmen who
reached high judicial office included Lord Justice Bankes, Lord Atkin, Lord Morris of Borth-y-Gest,
Lord Edmund Davies, Sir Arwyn Ungoed-Thomas, Sir Geoffrey Howe and Sir Samuel Evans. William
Abraham MP was mocked in the House of Commons when he recited the Lord’s Prayer in Welsh.
Contributions of many kinds eventually lead to the acceptance of the Welsh language as equivalent to
English in many contexts. Separate Welsh administrative departments were also being created in the
early 20th century. A Welsh Department of the Board of Education was created in 1907, Welsh Language
Insurance Commissioners were established in 1912, a Welsh Board of Health in 1919. A ministry of
Welsh Affairs was not however created until 1951. In 1971 the Welsh Office moved its base to Cardiff,
which had been recognised by the Queen in 1955 as the capital of Wales. Devolution was in the air as
it was throughout Europe. Reforms to the constitution of the Courts of Justice affected all courts in
England and Wales.
CHAPTER 10: ‘DEVOLUTION AND LEGAL IDENTITY’
Prime Minister Margaret Thatcher made some concessions to Welsh self-government by the
introduction of quasi-autonomous national government organisations, QUANGOS. But her economic
policies disaffected Wales and at the 1997 election the Conservatives lost all their seats in Wales. The
Blair government passed the Government of Wales Act 1998 and inaugurated the national Assembly
of Wales in 1999. And so Wales entered the third Christian millennium with a measure of selfgovernment of a kind that it had not enjoyed for centuries.
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The Assembly might enact primary legislation with respect to many areas including economic
development, agriculture, education, health services, highways, local government, social services,
transport, water and flood defence and the Welsh language, but without the power to initiate major
policy changes by enacting primary legislation in the form of statutes. Nor was it empowered to raise
revenue by taxation but only how to spend moneys allocated to it by the Parliament in Westminster. A
complex provision for the members of the Assembly was created that ensured that no one party could
dominate the Assembly. Elections held in 2003, 2007 and 2011 all failed to provide any party with an
overall majority. Some criticism of these arrangements led to some minor reforms in 2006 that enabled
the Labour Party to form a government but only in coalition with the Welsh Nationalist Party, Plaid
Cymry. The Assembly might nominate to the Queen a member for appointment as first Minister. The
First Minister then nominated the other members of the executive to the Queen as Welsh ministers and
deputy ministers, not exceeding 12 in number. The First Minister also nominates to the Queen a legally
qualified person as Counsel General, the Welsh Government’s principal legal adviser. The author
of this work, Professor Thomas Watkins, was the first person to be so appointed. The Counsel can
introduce legislation and speak to it, but may not vote unless a member. He retired in 2011. The powers
of the Assembly have to conform to the requirements of European Community Law with respect to the
passage of subordinate legislation. The 2006 Act also created a body called the Assembly Commission
which in its turn might employ civil servants not answerable to Westminster.
Despite the breadth of its law making powers some legislation might not be enacted without the
ratification of a referendum of the Welsh people. Moreover some measures might be enacted only if the
Parliament in Westminster enacted it or the Assembly might apply to Parliament for enactment as an
Order in Council. The author describes this dog’s breakfast as ‘a mire into which the existing settlement
had plunged the legislative process.’
Wales now has its own legislature and its own government, albeit that the competence of both is limited
and subject to the overriding sovereignty of the United Kingdom Parliament and government. So some
laws of England and Wales’ apply only in England and some only in Wales, although most apply in
both countries. Further legislation has strengthened the recognition of the Welsh language. Finally,
Wales is casting its eyes on membership of the European Union as a possibility for the future.
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Final Judgment: The
Last Law Lords and the
Supreme Court
Author: Alan Paterson
Publisher: Hart
Publishing
Reviewer: The
Hon Chief Justice
Catherine Holmes
Alan Paterson is an academic at a Scottish university who has
taken a particular interest in the judiciary and its workings. In
1982, his doctoral dissertation, based largely on interviews with
judicial members of the House of Lords, judges of lower courts and
practitioners, was published in book form as The Law Lords. Thirty
years on, Final Judgment is, effectively, a follow-up: an examination
of the operations of the House of Lords in its final decades and
those of its successor, the Supreme Court.
The book’s commencing chapter is unenticing, setting out
methodology and definitions, but the work becomes increasingly
interesting as it explains the processes by which decisions are
reached in terms of the respective courts’ dialogues: with counsel,
with colleagues, with other courts, with judicial assistants and with
other branches of government.
Paterson was able when writing his doctoral thesis to interview
15 Law Lords, and his level of access to senior judges remains
remarkable (Lord Hope of Craigshead has written the foreword;
he suggests that Paterson has benefited from his demonstrated
trustworthiness in use of the information entrusted to him in
1982). This time around, he has interviewed 27 Law Lords and
Supreme Court justices and has supplemented the advantage of
face to face encounters with access to the judicial notebooks of
Lord Bingham and Lord Reid.
When one knows no more of the Law Lords than can be gleaned
from their judgments, which are generally not very revealing
of idiosyncrasy, the frank portraits painted by Paterson, with a
touch of acid, are entertaining. Lord Diplock was described by
Lord Wilberforce as ‘a man who got his way in almost everything’;
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Paterson, pulling no punches, calls him a bully. He goes on to say that Lords Brandon and Templeman
has nothing to learn from Diplock as to aggressive behaviour, the only relief for counsel being that they
could be distracted from attack by the need to snipe at each other. Lord Fraser does better, described
by Paterson as courteous; with the sting that his courtesy extended to allowing oral argument for nine
days over the meaning of two words.
Dealing with the dialogue between court and counsel, Paterson does not shrink from criticism of the
Supreme Court, suggesting that counsel’s role in the decision-making process has been eroded by
departure from the convention that a case will not be decided in any point not raised by, or at least with,
counsel. In that context, he describes what he clearly regards as a bungle: the decision of the Assange
case (Assange v Swedish Prosecution Authority [2012] 2WLR 1275) on the basis of a point which,
arguably, counsel had not had the opportunity to address.
The ‘Dialogues with Colleagues’ chapter is probably the most intriguing, because it is the most
revealing of how judgments are actually produced (although there is something to be said for the
approach popularly attributed to Bismark: better not to know how to sausages are made). Of particular
fascination are the dynamics between the judges. The Supreme Court justices plainly do not approach
the US Supreme Court in their willingness to criticise each other, but some jibes are identified, usually
in the form of indirect criticism of others’ judgments.
Those who attended Lord Dyson’s oration in the Banco Court last year on civil justice reforms in the
United Kingdom may be intrigued by the revelation that while a member of the Supreme Court (he has
since taken the position of Master of the Rolls), he had a genius for assembling a majority. He is what
Paterson refers to as a ‘task leader’, although plainly not always in a benign way. In a fetching turn of
phrase, Paterson explains how a colleague’s decamping to the opposing side in a judgment ‘stirred up
by Lord Dyson (to whom counter-punching seems to have come naturally) by giving him something to
argue against’.
Paterson raises aspects of the decision-making process, which one would not ordinarily consider.
He discusses, for example, the effect of the court’s layout on the level of consultation because of the
tendency of the judges to talk more to those closest to them. Where the Law Lords’ rooms in the House
of Lords were on a single corridor, when the Supreme Court was set up it was not possible to keep all
the judges on the same floor. Room allocation was by seniority and, according to Paterson, there is a
tendency of the junior justices on the lower floor to interact among themselves, while the senior judges
similarly keep themselves to themselves.
Paterson observes that a curiosity of appellate decision-making is the limited amount of time spent in
‘collective deliberation’ because of pressures of time and the decline in the length of hearings, which
reduces the opportunity for dialogue while the hearing is proceeding. Thus, while there is a tendency,
he considers, in the court towards more deliberation, the shortening of oral hearings from an average of
three to four days 40 years ago, to two days currently, has made it less possible.
The chapter dealing with dialogues with other courts alleviated my profound ignorance on the
subject of Scottish appeals. I had never appreciated the significance of Scottish Law Lords or this
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role as specialists in appeals from that part of the United Kingdom. It is clearly a sensitive area, given
the anxiety of Scottish nationalists to preserve the integrity of Scottish private law. The failure of the
independence referendum means that the tensions will continue.
As a member of an intermediate appellate court, I found particular interest in the discussion of the
Supreme Court’s ‘dialogue’ with the Court of Appeal. I thrilled to Lord Justice Carnwath’s lament that
applying six House of Lords speeches given in one case was like putting together IKEA furniture, but
with six sets of instructions. His exasperation is manifest:
Was it necessary for the opinions of the House to have come to us in the form of six substantive
speeches, which we have had to subject to laborious comparative analysis to arrive at a
conclusion? Could not a single majority speech have provided clear and straight forward
guidance, which we could then have applied directly to the case before us? (Doherty v
Birmingham City Council (2006) EWCA Civ 1739 at Para 63).
Anyone who has struggled with the decision in HML v R ((2008) 235 CLR 334) could not fail to have
a fellow feeling. I have often thought myself that before embarking on any decision where the existing
common law is in a state of flux, the High Court should engage in a team-building exercise—a spot of
abseiling perhaps.
All in all, the book is a far more entertaining read then one might suppose: a happy combination of
academic analysis and inside information, which prevents the former from becoming too dry. It is
illuminating, not only as an examination of the functioning of the former House of Lords and now the
Supreme Court, but more generally as a study of how appellate courts work.
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The Law of Liability
Insurance (3rd Edition)
Authors: D K Derrington QC and R S Ashton
Publisher: LexisNexis
Butterworths
Reviewers: The
Hon Justice Philip
Morrison and Ms
Alicia McPherson
With over a century of collective experience between the authors,
this work reflects their depth of knowledge and understanding in
insurance law. The Honourable Desmond Derrington QC, who
served as a Supreme Court judge for 18 years, is considered to be an
expert within the insurance field, and was the consultant editor of
CCH Insurance Law Reporter. Ron Ashton was, and is, one of the
foremost experts in insurance law. His reputation and expertise
were firmly established while he was a partner at Minter Ellison
(formerly Morris Fletcher & Cross), and has been enhanced during
his (continuing) time at the Queensland Bar.
The authors, whose Australian-ness cannot be doubted, have
produced a new version of what was determinedly Australian
work, reflecting Australian caselaw and insurance principles, but
always acknowledging the English origins of this area of the law.
The historical perspective has not been ignored, with a reminder
of how, in the 19th century, liability insurance was contrary to
public policy and marine insurance was the predominant form
of insurance. However this was overtaken with the development
of more general liability insurance, particularly ‘when snails were
alleged to have a propensity to find their way into stone bottles
of ginger beer, for which the manufacturer would be liable to any
ultimate customer who might become shocked on this discovery.’1
From the single volume of the previous editions2 this work has
blossomed—exploded might be a better term—in size to two
volumes of some 3437 pages. At that length, it is longer than The
Complete Works of William Shakespeare3 and Tolstoy’s War and
Peace combined. Its size might even cause one to say that it ‘hath …
points more than all the lawyers in Bohemia can learnedly handle,
though they come to him by the gross’.4
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As with other double volume works—Chitty on Contracts or the White Practice spring to mind—there
are risks of visual intimidation by sheer size, if not the physical effort involved in carrying it to the desk,
and then disappearing into the text. The saviour for the intimidated in those cases is the ease of use, the
comprehensibility of the text and the rich content of cited authority. So it is with this work.
One reason for the expansion in volume is that the authors have included considerable American
case authority—what they call, in the sort of flourish that those who know the authors will recognise
with fondness ‘a crop too rich to be ignored, even though it be necessary to sort the grain from the
weeds’. The use of American authorities complements and enhances the already impressive list of case
authority from England, Australia, and, in acceptance of work that would not normally survive the
authors’ competitive love of rugby and cricket, New Zealand.
The length of the work is prefaced in the Foreword of the authors, where they encourage the
reader to become familiar with the general Table of Contents, and then make use of the extensive
index,5 which contains an invaluable list of words and phrases. However, it is also noted that the
Index is often an approximate only due to the ‘misbehaviour of computers’.6 To an experienced
practitioner this will not cause an issue, however to a lay person, student or practitioner wishing
to diversify themselves, this may become problematic. Although, if a reader follows the advice of
the authors and ‘consult[s] the whole of the surrounding text’,7 then this should not be a major
concern. The authors suggest that one should do so as ‘a proposition of law will not stand alone and
must be understood in the context of the whole topic’,8 and there are many such topics. The topics
are comprehensive, covering the areas of liability insurance for motor vehicles, product liability,
directors’ and officers’ liability, employers’ liability, professional indemnity, householders’ liability,
home contents, occupiers’ liability, and aviation.
A basic understanding of the area is required to navigate through the two volume masterpiece, as it
does not offer a simple overview, rather an in depth analysis. However, whilst The Law of Liability
Insurance is undoubtedly well written and easy to read, it is unashamedly aimed at the practitioner. The
cases are mostly footnoted, and there is sparse direct quoting, which allows for ease in comprehension.
However, from a legal perspective, as a result of this the work only directs the reader to the correct case,
and general principle. The practising lawyer or insurer is required to further research the case to find
the exact legal principle, terminology and correct application.
For many reasons The Law of Liability Insurance is a must in any serious practitioner’s library,
whether they be a lawyer or insurer. There is no doubt that it is a specialist text, but that should
not hide the fact that it is also a comprehensive general resource on the principles of insurance law.
In that sense the title can mislead the impatient reader—it is not merely concerned with liability
insurance, but also contains a detailed analysis of basic insurance principles in the early chapters.
Those dealing with the Contract of Insurance, Construction, Utmost Good Faith and Disclosure
deal with the nature of insurance and insurance contracts, albeit in order to lay the groundwork for
the discussion of liability policies. This makes it a work that is, to a degree, accessible to the student
as well as the practitioner. To the same effect are the chapters on Cover and on Expectations, which
are retained from the 1990 and 2005 editions.
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In short, The Law of Liability Insurance is a comprehensive work, covering all areas of liability
insurance. However, with some chapters themselves spreading over 300 pages, the reader must make
effective use of the Table of Contents and Index, as well as have a basic understanding of liability
insurance, in order to make the best use of the text. There can be no doubt, however, that the effort will
be repaid.
1 Desmond K Derrington QC and Ronald S Ashton, The Law of Liability Insurance (LexisNexis Butterworths, 3rd ed,
2013) 4–5.
2 1990 and 2005.
3 Barnes & Noble Collectable Edition.
4 Shakespeare; Winters Tale, 4.4.234.
5 Derrington, above n 1, Foreword.
6Ibid.
7Ibid.
8Ibid.
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A Funny Course for
a Woman
Author: Rosemary Balmford
Publisher: Australian
Scholarly Publishing
Reviewer: The Hon
Justice Ann M Lyons
Rosemary Balmford was appointed as the first woman on the
Supreme Court of Victoria in 1996. What is remarkable about
Rosemary’s appointment is that her journey to that position was
rather unique. I was intrigued to learn that she had never practised
at the Bar, but rather had been admitted as a solicitor in 1956 and
then worked in a variety of positions as a solicitor or lecturer before
her appointment first to the Administrative Appeals Tribunal in
1983, and then to the County Court in 1993 before her subsequent
elevation to the Supreme Court. It was indeed a rather unusual
progression to the court, and that journey has been outlined in her
autobiography entitled A Funny Course for a Woman.
The author has a prodigious memory and gives a detailed account
of her years growing up as a child in Burwood, Melbourne, during
and after the Second World War. Indeed, a particular focus of
the book is the period of her life before her appointment to the
court, with particular emphasis on her years as a student and as a
young solicitor. I loved the account of her war years in Melbourne
and how she and the city were affected and of her years at the
Melbourne University Law School where she had the privilege of
studying under Zelman Cowen.
Amazingly, Blamford had no difficulty obtaining articles in a law
firm in Melbourne in 1953 and ultimately was made partner of
that firm in 1960, which must have been remarkable at the time.
She ultimately retired from the firm when her son was young.
She subsequently worked in a number of positions including
as a solicitor at the University of Melbourne, as the executive
director of the Leo Cussen Institute and as a member of the Equal
Opportunity Board of Victoria.
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Her account of the early years of the Administrative Appeals Tribunal is also intriguing as she discusses
the expansion of the role of that tribunal, noting that the jurisdiction ‘expanded almost daily’. Sadly,
her decade at the AAT is covered in a rather brief chapter and I would have liked a more detailed
examination of that very historic period of her life. Similarly, the chapter on her appointment to the
Supreme Court is also covered rather quickly and in a very factual way. I would have really liked some
more in-depth reflections on her years at the Bench.
No doubt having lived a very full life there was a lot of material to cover, particularly her involvement
with Royal Australasian Ornithologists Union, having written a number of books on the subject and
her role with the Nursing Mothers Association of Australia.
All in all, this book is a very interesting account of a very full life.
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My Journey from
Maclean Bridge
Author: John McKnoulty AM
Publisher: John
McKnoulty
Reviewer: The Hon
Margaret White AO
The ease of self-publishing and interest in family history has seen
a proliferation of personal memoirs, but they barely attract a much
wider readership than family and friends. John McKnoulty’s
varied and fulfilling life, particularly in the law and in sports
administration at a high level, ensures a much wider audience for
this memoir.
It is engagingly written and full of anecdotes and observations
about the many politicians, legal practitioners, sportsmen,
priests and religious whom he encountered on his long journey
from the dairy farm at Maclean Bridge, where he grew up, to the
board rooms of Brisbane. The character assessments he makes
are generous, the stories amusing or kindly, and the criticisms
constructive, so that the reader may infer that were there is a
name without more—where more might have been expected—
restraint has been exercised. This is certainly not to suggest
that John McKnoulty’s approach is saccharine or bland; it is too
full of interest for that. Instead, his memoir tends to reflect the
measure of the man who emerges—intelligent, decent, energetic
and with a wonderful knack of getting on with all manner of men
(and women, but his public life was largely in the realm of men)
and seeing and appreciating all their strengths. He has been a
tremendous contributor to our civil society.
Younger lawyers will get a splendid account of how successful
firms grew their businesses more than half a century ago,
while more senior members of the profession will indulge in a
pleasurable dose of nostalgia—being reminded of how things were
done, and of past identities in the law.
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John McKnoulty’s great passion was cricket, while acknowledging, modestly, that he never rose above
fourth-grade post school at Downlands, where he played in the 1st Eleven. He employed that passion
in the administration of the sport, holding many offices over an extraordinary more than 50 years
including as president of the Queensland Cricket Association Limited, from 1994–2002, and as trustee
of the Brisbane Cricket Ground Trust from 1983–88. In those roles, he was in the centre of tussles
between the bodies who called the ‘Gabba home; the redevelopment of the ‘Gabba, which gave him
a close working relationship with Clem Jones; the introduction of night greyhound racing; and the
controversial World Series Cricket, which changed international cricket irrevocably.
It was his involvement with cricket administration and liquor licensing which has given him a different
perspective on some of the public sector reforms flowing from the Fitzgerald Report, which caused
user representation appointments to statutory bodies to cease for fear of conflict of interest and his
observations are worth noting.
Since the 1950s, McKnoulty has been a member of the Wanderers Cricket Club, playing all over
Queensland for pleasure and to encourage schoolboy cricket. He has been a stalwart of the Gold Oldies
touring team for many years, playing with such starts as Sam Trimble and Ray Lindwall. He counted
some cricket greats among his closest friends, especially the late Peter Burge (the eulogy he delivered
at his funeral service in October 2001 is included in the book), Greg Chappell and umpire Lou Rowan,
who has contributed the forward.
John McKnoulty has written in themes rather than giving a discursive chronological account of his
life. This has both advantages and disadvantages. To counter the disadvantage of trying to recall what
else he was doing at a particular time, a chronology or, rather, a succinct profile, is included at the end
of the book, while the introductory overview paints the overall picture. The advantage is that a reader,
possibly not greatly interested in Mr McKnoulty’s parish at Annerley, where he was closely involved,
with his wife, in promoting and developing the school (Our Lady’s College) and the parish outreach,
can safely pass over it and not risk missing an entertaining anecdote about cricket or hoteliers, for
example. (He was a member of the Liquor Licensing Commission from 1982, and chair from 1988–92
after he left McCullough Robertson. He also chaired Bread Industry Committee and Authority and
the Queensland Fish Board). But that reader should know that his religion and close connection to the
Catholic Church in Brisbane was, and is, an important part of his life. He brought the same practical,
sensible energy to resolving the parish’s financial issues as he did to all other spheres of his life. His
contribution was recognised with the award to his (and his wife) in 2004 of the Papal Gold Medal for
meritorious service by John Paul II.
John McKnoulty writes of his childhood on the farm with affection and dry humour. His father, along
with three brothers, had served on the Front in the First World War where he was twice gassed. While
this affected his health, he ran a 100 cow dairy innovatively—the first in the district to introduce
milking machines. Some of the six children in the family (including John) rounded up the cows each
morning before school, barefoot, and with the addition of a hessian bag coat in winter.
During the Second World War the McKnoulty home was something of a centre for the army camped
nearby. Eventually, the family came to run the local army canteen. The account of this golden
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childhood is simply a delight. Shortly after John McKnoulty started at St Laurence’s College at South
Brisbane, the farm was sold.
Subsequently he attended Downlands College at Toowoomba from mid-Junior, which he describes
as ‘three magic years’. There, his Christian and social values were nurtured and developed. He played
tennis at 1st Grade level—on one occasion with the Australian Davis Cup team (David and Adrian
Quist). However, the family had no financial capacity to fund further study after leaving school, or even
for him to undertake articles of clerkship, which would have been his choice. He resolved on securing
employment as a law clerk and telephoned Miss Beryl Donkin, the secretary of the Queensland Law
Society, well-known to generations of Queensland solicitors, for assistance. In a reversal of so many
stories of this period, McCullough Robertson was looking for an office girl. Miss Donkin telephoned
one of the partners, Mr Andrew Muir, and nothwithstanding his wrong gender, John McKnoulty was
interviewed and invited to start work the next day. The entire complement of the firm was then six
people.
After several years as a clerk, Mr Muir suggested that McKnoulty should take up articles. He explained
that he could neither afford the premium, nor any reduction in salary. The premium was dispensed
with and the salary remained unchanged. John McKnoulty became a partner of a much larger firm in
1958. He was very much the client rainmaker. The firm’s base then was largely pastoral, and McKnoulty
expanded this by developing an expertise in estate and tax planning for rural families. The firm
continues to have an outstanding reputation in this field. How McKnoulty happened to stumble into
this area of law is as entertaining a story as it is instructive.
Plainly, John McKnoulty was good at attracting clients, and accordingly, the partners were happy to
indulge his involvement in sports administration. As a consequence McCullough Robertson pioneered
corporate entertainment at sporting events in Queensland.
After about 40 years it was time for John McKnoulty to move on from the firm. He had been a member
of the Liquor Licencing Commission in his later years at the firm, and in 1988 was appointed chairman.
He had a significant involvement in the quite socially dramatic changes in Queensland’s drinking laws,
some of which he now sees as too liberal. That chapter is replete with insights into the hotel industry
and the political figures of the time.
The book is well supplied with photographs. Lawyers will relish one from the 1970s showing the
partners of McCullough Robertson all soberly suited and neatly tonsured save for a very young David
Searles (now his Honour Judge Searles of the District Court) with curly locks almost to his shoulders.
What tolerant men the senior partners were!
This memoir is warmly recommended, especially to lawyers and cricket aficionados, who will be
delighted to be reminded of the past and diverted by the insider stories of so many events which had
made headlines in the Brisbane newspaper.
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Old Law, New Law: A
Second Australian Legal
Miscellany
Author: The Hon Keith Mason AC QC
Publisher: The
Federation Press
Reviewer: Roger
Derrington QC
Lawyers Then and Now
Old Law,
New Law
A Second Australian Legal Miscellany
Keith Mason
There is not much, associated with legal learning, that the Hon
Keith Mason cannot do. He established his credentials as a
barrister and as a judge. He is a serious legal author, as is manifest
by his collaboration with John Cater in Restitution Law in
Australia and Mason and Carter’s Restitution Law in Australia. His
work, Constancy and Change, established his credentials as legal
philosopher as well. By all accounts he is also a high quality law
lecturer in his roles as a visiting professor at the University of New
South Wales and as a Senior Fellow at Melbourne Law School.
By way of humourous relief, he turned his hand to the less serious
side of the law by producing the first Australian Legal Miscellany in
Lawyers Then and Now: An Australian Legal Miscellany. It was an
outstanding success and received suitably favourable reviews from
knowledgeable critics. Naturally, the ‘colourful’—if that is the right
word—Australian legal fraternity has generated more material
in the last couple of hundred years than can be contained in one
gathering, and so it is unsurprising that he has produced this
second volume. While his first was excellent, this second is at least
as good, and not only because its focus is more broadly Australian
than its predecessor. It is somewhat shorter than the first, but it is
no poorer for that.
This vastly entertaining book will fascinate
lawyers with its true tales from Australian
law. Keith Mason uses wit and humour, and
considerable erudition, to paint an entertaining,
engrossing picture of the people of the law, its
history and the cases which have occurred.
Readers will discover:
• who was Australia’s youngest judge
• instances of extreme rudeness in court and
between judges
• humour of all sorts
• which judges served the longest and shortest
terms in office
• the barriers facing women who wanted to
practise law and when they were scaled
The taxonomy of any legal miscellany is necessarily an art. Legally
categorised strands of the law are intensely interwoven, and it is
no small task to separate them from the elaborate pattern of the
law and reassemble them according to their more commonplace,
human character. However, Mr Mason displayed his mastery of
this in his first miscellany, and so it is again. His gathering into
groups of cases on ‘Food and Drink’, ‘A Little Chapter about Sex’
and ‘Death and Taxes’ are particularly good examples. Although
• which judge was tried and acquitted of
murder and which law officer was convicted
of murder and sentenced to hang.
The book also has chapters on law’s interface
with religion, art, sport, gambling and
literature. Mason finds amusement and truth
in the quirkiness of the law and the humanity
of its people.
Mason
arl.com
Page 426
“Then and now” in the title points to the
recurring constancies and changes in
Australian legal culture with concentration on
aspects of legal culture that are accepted in one
generation and condemned in another.
ISBN 978-1-86287-890-7
The final chapter “Fallible All” recapitulates the
theme that lawyers are far from perfect even as
(most of them) struggle to perform at their best.
9 781862 878907
QUEENSLAND LEGAL YEARBOOK 2014
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Page 427
the last chapter, ‘Torts: Injuries to Body or Reputation’, does not require any taxonomical effort by the
author, the perspective which it offers is thought provoking. So, too, the section on foolish litigants who
resort to the law of defamation is instructive of the developing Australian attitude towards permitted
criticism of others.
Modern thinking demands that any work on any relevant topic acknowledges the evils inflicted on
women over history. It is unlikely that any book of this kind would omit it. So it is, as it should be, that
this is the first topic in it. It discusses not only the position of women in the profession, but also the
status of women under the law and, in particular, their position vis-à-vis their husbands. This is largely
historical and is fascinating for that reason. The curiosities of the historical dis-entitlement of married
women to testify against their husbands, or to hold property, or to sue separately from their husbands,
seems grossly unacceptable in this modern age.
On the related topic of marriage, the author identifies unusual legal developments in Australia, both in
terms of entering into marriage and, more importantly, exiting it. The latter includes instances of both
legal and not-so-legal methods of achieving the same result. Difficulty as to the dissolution of marriage
in the early settlement was compounded because the Colonial Office in England thought it imprudent
to allow the colonial courts full power to dissolve marriages, and this necessitated the passing of
legislation to permit the dissolution of marriages which had been contracted through the deceit of one
party. Further, the restriction of marriage within the accepted degrees of affinity was particularly harsh
in the limited Australian circumstance, and this led to some anomalous situations until they were
remedied by suitable legislation.
It also seems that less legitimate forms of marriage dissolution, including bigamy, were popular at the
time. The difficulty of identification and the impossibility of bringing witnesses from England often
meant that the authorities could not prove the identity of a relevant person or the previous marriage.
These differences between the law and how and whether it could be enforced in the remote antipodean
colonies are all splendidly described in these chapters.
The chapter on ‘Death and Taxes’ is particularly amusing, though it may be so only to those who have
an interest in the legal value of both. However, they have contributed well to the prosperity of lawyers,
and this historical collection of unusual vignettes on them in the one chapter is quite apt. As the author
wittily but tellingly remarks in his opening to this part:
For Benjamin Franklin, nothing was certain but death and taxes. Corporations with their
perpetual succession and easy portability overseas or to the bottom of the harbour have made
them popular for avoiding each adversity. Humans are not so fortunate.
This chapter recounts unusual cases of killing, of poorly drafted wills (including those of some judges),
of unusually written wills such as those written on walls, of family provision claims, and of badly
written taxation legislation.
Chapters 7, 8 and 9, being ‘Trials and Tribulations’, ‘Cut, Thrust and Contempt’ and ‘Appeal Courts’
respectively, form a collation of topics which are interesting to a litigating practitioner. As the chapter
titles indicate, they concern the day-to-day business of the courts but, as the author was more recently
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a judge rather than a barrister, they are understandably described from the point of view of the Bench
rather than the Bar. Of particular interest is the piece concerning the sudden departure of a judge on
the Queensland Court of Appeal who was overcome by the tedium of the matter before him. In the
author’s words:
McMurdo P was sitting with Pincus JA and Muir JA while an unrepresented litigant droned
on. Driven to breaking point, but without consulting his colleagues, Pincus JA abruptly quit the
Court. The President quietly invited Muir JA, on her left, to follow suit and, as he was leaving,
informed the litigant that the hearing would proceed as a single judge matter.
The chapter entitled ‘Trials and Tribulations’ discusses, in part, the difficulties of early circuit courts,
including both the harsh conditions of the locus fori and the dangers, sometimes fatal, of travelling to
and from them.
Once court proceedings are underway, the dynamic is usually between counsel and the judge and,
in that dynamic, the judge generally holds all the aces. In ‘Cut Thrust and Contempt’, various
withering comments from the Bench directed at counsel are assayed, but, it is rightly noted, when
such comments appear in written form, they usually wound the reputation of the assailant. The
reader is also regaled with some witty, perhaps courageous, retorts from the other side of the Bar
table and from litigants themselves.
The chapter on ‘Appeal Courts’ identifies some of the curiosities of the appellate system which, not
being a creature of the common law, sometimes entangles itself, as when, out of necessity, judges are
required to sit on appeal from their own decisions. Of particular interest is a part dealing with agreeable
judges. This is not a reference to their benign judicial persona but to their propensity to agree with
the judgments of their fellow appellate judges. Barton J was one of these: he so frequently agreed with
his Chief Justice that he was frequently accused of having no mind of his own. Also mentioned is the
dissentient, a rare bird in Queensland. Persistent dissentients and judicial rejoinders in the same or
subsequent cases happily remind counsel that judicial asperity is not always directed at them.
The judicial method, particularly as it applies to judgment writing, receives treatment in chapters
10 and 11. Long and short judgments are considered (at some length) as are the judgments of those
judges who attempt to alleviate the work of law reporters with their more mercurial or literary reasons.
Given his judicial experience, the author is acutely aware of the judicial approach to difficult legal
argument and, in particular, of how courts deal with or avoid inconvenient finer points of law or logical
roadblocks. These methods, and the judicial attitude to legal fictions, are discussed in the chapter
entitled ‘Getting Technical’.
A more serious note is struck when he considers the perennial issue of conflict between the courts
and the executive and the application of the rule of law. Here, he notes this country’s fortunate legal
history, founded as it is on the rule of law, and he instances occasions when the executive has criticised
the courts and accused them of failing to dance to the tune of the government of the day. Happily, our
history reveals that these ill-informed criticisms or outright abuse of courts by politicians who are
neither educated in law nor in Westminster parliamentary democracy have rarely dissuaded the courts
from their task. Attention is also drawn to the threat to the rule of law from within, that is, from those
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judges who through recalcitrance, judicial activism or misguided independence refuse to apply the law
as it is their duty to do. Thankfully, such instances are few. Certain events in Queensland during the
past 18 months are likely to make the corresponding section of the third miscellany.
Not all the chapters are mentioned in this review, but the random selection discussed is sufficient to
demonstrate the quality of the work. There is much to enjoy in it. It is amusing, thoughtful, instructive
and subtle. It is also very well written with Mr Mason’s usual precise and pellucid style. The pleasure
of reading it is increased by its array of hidden gems in its text, footnotes and even in its index with its
humorous categorisation and well placed jokes.
In all, it is an important contribution to Australian legal literature. Through its aggregation of
anecdotes concerning Australian legal life, a characterisation of its practitioners emerges, at once,
colourful, witty, brave and intelligent.
Old Law, New Law is another triumph for Mr Mason. Like its predecessor, it is entitled to stand next
to Mr Megarry’s five works in this genre. One might hope that the increasing years and the expanding
volume of the practice of law in this country may provide sufficient material for a third edition in the
not-too-distant future.
It would be remiss to omit to mention that the publisher is The Federation Press. It stands above any
other legal publisher in Australia in a niche at the apex of intellectual legal publishing. Whilst other
legal publishers produce many excellent and essential works for the busy practitioner, The Federation
Press focuses on intellectual legal publications which carry the law forward, and the legal profession
is all the better for that. A steady stream of quality legal works now emanate from it and, although
they may not all be day-to-day reference works for the practicing lawyer, they are almost all excellent
examples of legal writing which substantially enhance the bank of legal knowledge in this nation.
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Sir Charles Lilley: Premier
and Chief Justice of
Queensland
Author: Dr J M Bennett AM
Publisher: The
Federation Press
Reviewer: John
McKenna QC
In colonial Queensland, two legal figures stood out from their
contemporaries—Sir Charles Lilley (1827-1897) and Sir Samuel
Griffith (1845-1920).
We know a great deal about Griffith. His public life, as barrister,
statesman and judge, was well-documented. So too was his private
life, through this diaries and letters. As a key figure in the drafting
of the Australian Constitution and as the first Chief Justice of the
High Court of Australia, Griffith has been the subject of recurring
biographical interest. Whilst noting his flaws, both legal and
political historians have generally been kind to him.
Lilley is a more elusive and difficult figure.
J.M. Bennett
Sir Charles Lilley
Premier and Chief Justice
of Queensland
T H E
F E D E R AT I O N
P R E S S
QUEENSLAND LEGAL YEARBOOK 2014
He arrived in Brisbane in August 1856, at the age of 29, alone and
without money, connections or qualifications. As Lilley later put
it, ‘I came among you, poor and unbefriended … without a single
soul to assist me, and I fought my way up among you’.
Within about two years of arriving in Brisbane, Lilley had
completed the remainder of his articles of clerkship with an
influential local solicitor (Robert Little) and had become the
first practitioner to sign the new Roll of Attorneys, Solicitors and
Proctors of the Supreme Court of Moreton Bay (14 August 1858). In
this short period, he also became active in local politics, the editor
of the local newspaper (Moreton Bay Courier), and married to the
daughter of a prominent local builder (Joshua Jeays). It seems likely
that Mr Jeays also built for the young couple a stone cottage on
Wickham Terrace (Jesmond), in which the Lilleys ultimately raised
a family of five daughters and eight sons–seven of whom became
lawyers.
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Within his first 12 years in Brisbane, Lilley’s professional and political achievements were even
more astonishing. He had been elected to Queensland’s first Legislative Assembly as the member for
Fortitude Valley (1860) and commenced practice at the Bar (1861), then was successively appointed
Attorney-General (1865), the colony’s first Queen’s Counsel (1865) and ultimately Premier of
Queensland (1868-1870).
By 1870, Lilley was still only 43 years of age. After losing government as a result of a no-confidence
motion on the floor of the Legislative Assembly, Lilley shifted his main focus to the law. In 1872, he was
appointed judge of the Supreme Court—with an appointment as Queensland’s second Chief Justice
soon to follow (1879–93).
It was in this last capacity that Lilley attracted the attention of Dr John Bennett. Since the 1960s, Dr
Bennett has been meticulously filling in pieces of the complex puzzle which is Australia’s colonial
legal history. Dr Bennett’s home jurisdiction has been the beneficiary of an important set of his works,
exploring the history of the New South Bar (1969), the Supreme Court (1974) and its solicitors (1984).
For many years, however, Dr Bennett’s more ambitious plan has been to produce a set of works devoted
to the lives of each of the Chief Justices of the Australian colonies. There are now 14 volumes in this
set—including two volumes dealing with the first two Chief Justices of Queensland.
Judicial biography is a challenging genre, as so many lawyers who were great celebrities in their own
time do not necessarily ignite the interest of the modern reader. Fortunately, the colonial Chief Justices
were a quite remarkable group. To the extent that any one theme can be extracted from a study of such
a diverse group, it is the steadying role which most played within colonial society by reason of their
moderate, educated, charitable and civilising influence. In Lilley’s case, he was a man of strikingly
modern and progressive views. At a time when Queensland politics was dominated by conservative
rural interests, Lilley was prepared to give public support for progressive causes such as free primary
school education, votes for women, trade unionism, the establishment of a university in Queensland,
federation of the Australian colonies and even republicanism. During his short term as Premier, Lilley
did not have the luxury of control over the Parliament. Indeed, it was only by a somewhat adventurous
use of executive power that he was able to become, as the obelisk on his grave records, the ‘founder of
free education in the Colony’. However, by advocating a range of reforms with great skill and vigour,
Lilley’s efforts did much to introduce ideas which would later take root.
In the rough and tumble of colonial politics, Lilley’s conservative opponents did not hesitate to respond
with attacks upon his character—in Parliament, on the hustings and in the press. These were not
nuanced or subtle attacks. In effect, Lilley was alleged to be ‘a drunkard and one who comported
himself shamelessly as a man guilty of gross immorality and sexual lust’. For a time, Lilley was well
equipped to defend himself. In November 1871, for example, Lilley had the courage to bring defamation
proceedings in the Supreme Court against two regional newspapers —with jury verdicts vindicating his
reputation by awarding damages in the relatively large amounts of £300 and £475 respectively. After his
appointment to the court, however, the position was very different.
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It is this period of Lilley’s career, as Chief Justice of Queensland, that creates the greatest challenge for
a biographer. In the absence of any private diaries and letters, or any dispassionate assessment by his
contemporaries, it is difficult to fully understand some aspects of Lilley’s conduct which, to modern
eyes, seem quite unwise. During this period, for example, one of the Chief Justice’s sons (Edwyn Lilley)
was developing a successful career at the Bar in Brisbane. By modern standards, there would be no
question of a son or daughter appearing as counsel in contested hearings before their own parent.
In Lilley’s court, however, it was common for Edwyn Lilley to appear as counsel before the Chief
Justice—with many of these hearings occurring in the privacy of the judge’s own chambers. This
practice may have been legally permissible at the time, but not surprisingly it seems to have generated
some disquiet. It also seems to have led some litigants to seek a forensic advantage by briefing Edwyn
Lilley in matters that could be arranged to be heard by the Chief Justice. Lilley, however, appears to
have been unconcerned by appearances. Outside court, a similar lack of concern seems to have led the
Chief Justice to participate in political debate as if he were any private citizen. As Dr Bennett explains,
‘Sir Charles Lilley considered that he had an absolute right to comment publicly, while Chief Justice, on
matters of public concern, no matter how contentious. He candidly admitted that speaking out in such
a way exposed him to criticism—as it did—but he brushed that risk aside’.
This lack of concern about appearances, or sensitivity to criticism, may well have done Lilley’s
reputation no serious harm, but for his unfortunate involvement as the trial judge in Queensland
Investment and Land Mortgage Company Limited v Grimley (1892). This case had a number of features
which should have signalled danger to the Chief Justice. It was a case of enormous public importance.
The claim was very substantial (£60,000). The claim was being brought by a financier not only against
its borrower, but also against its former directors for negligence in failing to obtain appropriate
securities for the loan. These directors were prominent and influential Queensland figures, two of
whom were former political rivals of Sir Charles Lilley—Sir Thomas McIlwraith and Sir Arthur Palmer.
If this were not enough, the counsel chosen by the plaintiff to conduct its case against these defendants
was Edwyn Lilley.
When hearing the trial of this exceedingly complicated and lengthy case, it seems clear that the
Chief Justice was not in good health. Nevertheless, in the course of the hearing, he made a number of
important and contentious discretionary decisions—which seemed to consistently favour the plaintiff
(and the submissions advanced by his son) over the defendants (including McIlwraith and Palmer).
Most significantly, the Chief Justice determined not to act upon the answers given by the jury, which
were favourable to the defendants—but substituted his own judgment on the facts, which substantially
favoured the plaintiff.
Lilley’s conduct of this trial was the ruin of his reputation—particularly after this judgment was so
comprehensively reversed by the Full Court (1892). This controversy also revived earlier rumours
and innuendo about Lilley’s character and conduct—with further colourful material being added to
the existing corpus by a private investigator engaged by McIlwraith. In these circumstances, it seems
certain that, had Lilley not himself decided to resign from the court, others would have taken steps to
have him removed. Sir Charles Lilley’s resignation took effect in early 1893—when another Premier of
Queensland, Sir Samuel Griffith, took his place as the next Chief Justice of Queensland.
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In Dr Bennett’s new biography of Sir Charles Lilley, he has been careful not to be distracted by the
‘many personal and vicious attacks upon [Lilley] by his political opponents’. He has marshalled the
objective evidence which is available about Lilley’s personal and professional life, and applied his deep
knowledge of this period of Australian history to make considered and judicious assessments. In the
result, a great deal of misinformation about this important figure has been exposed, and Lilley rightly
emerges as ‘one of the leading statesmen of colonial Australia’ and ‘as one of the most accomplished
lawyers of his generation’.
QUEENSLAND LEGAL YEARBOOK 2014