Daily Archives: September 14, 2016

This Week in Port Phillip 1841: 1-8 September 1841


The newspapers in Port Phillip often reported on Judge Willis’ performance on the Supreme Court bench, largely because there was little other ‘hard’ news to fill the columns with. Nonetheless, he did give them plenty to write about, especially when getting stuck into the barristers and attorneys who appeared before him. He took his responsibility for keeping the bar in line very seriously – and indeed, that was part of his judicial duty- but often made theatrical threats and gestures that make it easy to see him as a figure of fun.  His attacks on the court personnel make good newspaper copy, but it is telling that many of the people who were the recipients of his tongue-lashings signed petitions against him once there were moves to remove him.

One of Willis’ more theatrical outbursts was against Archibald Cuninghame – also spelled Cunninghame and Cunningham.  He had practiced at the Scottish bar for seven years when he emigrated to Sydney with his brother and two sisters in 1839, an example of the sibling migration patterns that I have spoken about earlier. While he did not necessarily see New South Wales as his permanent home, he did see the financial opportunities it offered, writing to his mother “I see a prospect not of making, a rapid fortune, but yet, of very good returns for my Capital”.  After overlanding down from Sydney, he quickly took out a licence to depasture stock and bought up 139 acres around Northcote (in Melbourne) at the 1840 government land auctions.  His two sisters travelled down to Melbourne in the Bright Planet (the ship that Peter Mews used as the springboard for his excellent book of the same name), while his brother took up the management of the station Wanregarwan, up on the Goulburn River. Archibald joined Redmond Barry, Edward Brewster, James Croke and Robert Pohlman as the first barristers admitted to the Port Phillip bar in April 1841.

At the end of August 1841, an advertisement appeared in several editions of the Port Phillip newspapers.


Contact with horses was part of the gentlemanly image – and indeed, Judge Willis himself was an enthusiastic horse-rider while in British Guiana and certainly had his own horses in New South Wales.  However, that was riding them, not hawking them for stud services, and Willis took exception to the difference.

THE LAW AND THE ASS- On Friday last, previous to the commencement of the trials at the Supreme Court, his Honor, Judge Willis, produced a copy of the Herald Newspaper in which appeared an advertisement of an entire house, Hound’s Foot “to stand this season,” signed by Mr Cuninghame. His Honor expressed a hope (to the Crown Prosecutor) that this horse was not the property of Mr Cuninghame, the Barrister, who was an Officer of the Court. Mr Croke being unable to satisfy the interrogatory, his Honor proceeded to say that, if such was the case, it was exceedingly derogatory to the respectability of the bar, that it would look rather curious to see written upon the door of the “Horse and Jockey” “Law business transacted here”, and that he considered one as bad as the other.  Judge Willis proceeded to make some further remarks on the subject, but before concluding, requested to know from the gentlemen of the bar, how it would look to see an advertisement in the public papers headed “Montezuma, this splendid ass, will stand for the season at the stables of His Honor, Judge Willis, Heidelberg” would this add dignity to the bench. (PPH 31 August 1841)

Judge Willis certainly did live at Heidelberg, but I’m not aware whether he had an ass called Montezuma. But nor did Archibald Cuninghame have a stallion called Hounds Foot- it was his brother John up on the Goulburn.

THE JUDGE AND MR CUNINGHAME – As reported in our last number, his Honor Judge Willis remarked to Mr Croke that he hoped the celebrated imported horse “Hounds Foot” had not been advertised “for the season” by Mr Cuninghame the barrister, as such a circumstance would not add respectability to the bar.  The impression produced by His Honor’s remarks was that Mr Cunninghame the barrister had so advertised “Hounds Foot”. To shew that even Judges may err in their opinion of matters of this kind as well as in others, we may state that Mr Cuninghame has a brother residing on the Goulburn river; and as the advertisement, which attracted his Honor’s attention particularly states that the horse “will stand this season at the station of the proprietor, Mr Cuninghame, on the Goulburn river” (where Mr Cuninghame’s brother actually resides), we infer that the barrister of that name, who resides in town and follows his profession, is not the Mr Cuninghame “of the Goulburn river.” But Editors, like Judges, may err- who is wrong? (PPH 3 Sept 1841)

Humour by a powerful person is a dangerous thing.  Sometimes when I look at some of Willis’ more outrageous antics from the bench, I wonder if he was performing for the audience, in the same way that our politicians do before the despatch box.

Certainly Willis was very strict about any involvement in ‘trade’ amongst those solicitors and barristers who came before him seeking admittance to the court.  Probably the major fact that led to Willis’ dismissal was the campaign he waged against public officers and members being involved in land speculation and bill-trading. Neither of these activities were illegal, and in a new frontier colony, most people with capital deployed it in either land or financing in this way. Willis’ criticisms of high-ranking people in Melbourne for their involvement in such activities was, I believe, a direct cause for his dismissal.

But Willis’ riff on the Ass Montezuma suggests that he’s enjoying himself here at Cuninghame’s expense. I think of footage of powerful people making a joke, and the forced laughter of their minions around them. Historian Greg Dening wrote about William Bligh’s “bad language” in that people didn’t know how to take it. I would argue that Willis had “bad language” too, and the Hounds Foot incident, while farcical, highlights the difficulty of humour from the bench.

Certainly, the Port Phillip Gazette in its editorial columns, was becoming increasingly critical of Willis.  Its editor, the young George Arden, was clashing with Willis and within weeks publish a letter signed ‘Scrutator’ which would lead to an open conflict with the Judge.  But here’s the Gazette editorial on 4 September:

Mr Justice Willis has certainly the merit of being singular, if not sensible, in his opinions on matters connected with his own department, and he occasionally expresses his conceits in a manner and language that is equally awful to the officers of the Court and amusing to the public…If, however, it will serve the purpose of Mr Willis equally well, and he will condescend to permit us, with all just and proper humility, to tender our opinion on the subject, we will observe that it would be no matter of surprise to the public to hear that there was an ASS connected with the Bench, or that the amiable quadruped resided at Heidelberg, but the attempt of Mr Willis, trivial and vexatious as it was, considering the scanty foundations he had for his extraordinary comments, is viewed on every side with marked and universal disapprobation. (PPG 4 September 1841)

Mr Cuninghame recovered from his unmerited dressing-down and continued to serve in Willis’ court. As an equity lawyer (like Judge Willis himself), he was involved in discussions about the introduction of usury laws, and he was involved in many of the philanthropic and civic organisations of Melbourne.  He went to London in 1846 to represent the Port Phillip colonists in their campaign for Separation, and died there unmarried in 1856.

In fact, the whole little contretemps probably more harm to Willis’ reputation than it did to Cuninghame.

More information on Archibald Cuninghame: Marion Amies and Martin Sullivan ‘Manuscript: 3 Letters from Christian Cuninghame to Agnes Cochrane-Patrick Describing Life in the Port Phillip District’ LaTrobe Journal No. 30, December 1982 http://www3.slv.vic.gov.au/latrobejournal/issue/latrobe-30/t1-g-t4.html


“Strong winds on the 3rd 4th and 5th; weather cloudy and uncertain; rain several days but inconsiderable in quantity.” Highest temperature 66F (18.8); lowest 38 (3.3)


Franklin ship ‘Terror’ found

I’m sitting here looking at the video of the discovery of Sir John Franklin’s ship, Terror that was found in – how appropriate- Terror Bay. Amazing- even the glass in the windows! Two years ago the Erebus was found, in much poorer condition than this most recent discovery and I wrote about it at the time here.  Academic Russell Potter, who released his book Finding Franklin: The Untold Story of a 165-Year Search on July 26, has written about the discovery on his blog and the Guardian has a very full report.

It’s all very exciting!