Australian Dictionary of Biography

Alfred Lutwyche, c1859

State Library of Queensland, 21331

Alfred James Peter Lutwyche (1810-1880), judge, was born on 26 February 1810 in London, eldest son of John Lutwyche, leather merchant, and his wife Jemima, née Holt. Educated at Charterhouse and Queen's College, Oxford (B.A., 1832; M.A., 1835), he was admitted to the Middle Temple in September 1831. After two years with a conveyancer he practised as a special pleader and from 1833 supplemented his income by reporting parliamentary debates for the Morning Chronicle, in which Charles Dickens was a colleague. At Gray's Inn he read law with J. J. Wilkinson, who encouraged him to write An Inquiry into the Principles of Pleading the General Issue (London, 1838). In it Lutwyche criticized the complex pleading rules adopted in 1834 because they had encouraged the use of technicalities. He censured the judiciary for inconsistent application of the new rules and championed the simplicity of the general issue, whose scope had been so restricted that a quarter of common law cases were decided on pleadings instead of merits.

Called to the Bar on 8 May 1840, Lutwyche joined the Oxford circuit. He also attended the county sessions in Staffordshire and Worcestershire, wrote law reports for The Times in 1840-52 and published in two volumes, Reports of Cases … in the Court of Common Pleas, on appeal from the decisions of the Revising Barristers (London, 1847, 1854). Early in 1853 his health broke down and he agreed to become the Morning Chronicle's correspondent in Sydney. In June he sailed in the Meridian, which was wrecked on Amsterdam Island on 24 August. Of the 108 on board 3 lost their lives and the others most of their possessions. His account of their experiences and rescue by Captain Isaac Ludlow of the American whaler Monmouth appeared in the Morning Chronicle in December; in 1854 it was reprinted in London and a revised version published in Sydney. Ludlow took the survivors to Mauritius where the government found them passages to Sydney. Lutwyche arrived in the Emma Colvin on 30 December 1853. Admitted to the Bar, he obtained a practice and permitted E. K. Silvester to take the Morning Chronicle post. On 2 June 1855 at Christ Church St Laurence, he married a widow, Mary Ann Jane Morris.

Lutwyche was nominated to the Legislative Council by Governor Denison but on 1 May 1856 refused to 'take a seat in any House which was not an elective one'. On the 5th an anonymous writer in the Sydney Morning Herald alleged that he was the author of a Morning Chronicle report (written by Silvester) reflecting on Australian women. Though the Herald published his rebuttal, he sued John Fairfax for libel. A special jury found for Lutwyche but awarded him only £2 damages. Friendship with Robert Campbell had brought him to the notice of Charles Cowper, who on 25 August asked him to serve as solicitor-general and government leader in the Legislative Council. He declined because Cowper's attorney-general, James Martin, was not a barrister. However, Martin was admitted to the Bar on 11 September and next day Lutwyche accepted nomination to the Legislative Council and joined the ministry. Before the government fell on 2 October it sponsored the parliament's first statute, enabling the raising of certain loans, which he steered through the council stages in an hour.

In opposition while H. W. Parker was premier, Lutwyche consolidated his repute for vigorous, combative liberalism. A most vocal member, he had few regular supporters in the council and his partisan zeal antagonized the lawyers and pastoralists. Though not brilliant in debate, he had a sense of humour and his vigilance, shrewdness and forcefulness enabled him to hold his own. Elected a vice-president of the Electoral Reform League in February 1857, he submitted a petition for manhood suffrage and equal electorates to a mass meeting in Hyde Park on 20 July. The crowd responded to his flair for demagogy and more than 4000 signatures were collected before he presented the petition to the Legislative Council.

On 7 September Lutwyche joined Cowper's second administration as solicitor-general and leader of the council. He carried the ministry's main reforms despite intense opposition, and his speech of 8 September 1858 on the electoral law amendment bill was printed and distributed as a democratic manifesto. He neglected private practice but took silk on becoming attorney-general in November. His policy that prosecutions for criminal libel be conducted by the Crown law officers, not private counsel, aroused hostility early in 1859 when Alexander Berry launched his first action against J. D. Lang. In the council Lutwyche was accused of political bias; badgered and baited beyond endurance, he lost his temper and walked out but apologized at the next sitting. In the trial the chief justice upheld his handling of the prosecution but the jury acquitted Lang.

On 21 February Lutwyche was appointed Supreme Court judge at Moreton Bay. He opened his court in Brisbane on 9 March, obtained authority to hold circuit courts and proceeded to fulfil Sir Alfred Stephen's prophecy that he would 'make a good Judge'. In November when the separation of Queensland was imminent, he claimed a seat on the Sydney bench, arguing that continued residence in Brisbane was incompatible with his post as a New South Wales judge. In Sydney, Forster's ministry ruled that he could either become judge of the Supreme Court of Queensland or resign. He denounced this decision but did not contest it as he chose to stay in Brisbane.

Lutwyche was appalled by the executive blunders accompanying separation. The first concerned the franchise. The imperial New South Wales Constitution Enabling Act had provided that the constitution of Queensland's legislature should resemble that of New South Wales at the time of separation. Advised by the Sydney judges, Denison interpreted the Order in Council establishing Queensland to mean that the new Legislative Assembly should be elected under the terms of the Constitution Act of 1853, not the Electoral Act of 1858. Queenslanders had exercised manhood suffrage in July 1859, and reversion to the 1853 provisions disfranchised a third of them. When the Order in Council was proclaimed in Brisbane, Lutwyche advised the new governor, Sir George Bowen, that it could not override the imperial statute and that the British government should rectify the illegality. Bowen claimed that the Queensland legislature should decide if manhood suffrage was to be restored. The Colonial Office agreed and overlooked the legal point raised in Lutwyche's memorandum. In July 1860 he told Bowen still more forcefully that the Acts of an invalidly constituted legislature must be void but Bowen and his ministers ignored the advice.

Meanwhile Sir Alfred Stephen's allegation that Lutwyche's wife was 'unfit … for the circle into which her husband's rank must place her' had led the Colonial Office to decide that Lutwyche could not be given a dormant commission to administer the government in the governor's absence. Thus arose the custom, peculiar to Queensland, of appointing the president of the Legislative Council as administrator. Lutwyche refused Bowen's offer of a seat in the Legislative Council because he wanted to confine himself to his judicial duties. He was drawn from this neutrality when Sir Charles Nicholson assaulted his character and denounced his elevation to the bench as the 'political job' of an 'ultra-mobocratic' ministry. Nicholson convinced Bowen and many politicians that Lutwyche should not be made chief justice with such effect that Bowen asked the Colonial Office whether he could refuse to obey his Executive Council if it demanded Lutwyche's promotion.

Another flaw in the Order in Council was the reduction of Lutwyche's salary which the New South Wales Act (no 5, 1857) had fixed at £2000. In London Sir George Lewis advised that Lutwyche was entitled 'both in equity and law' to £2000 and that the imperial government would support his rights 'by all constitutional means' while his commission was in force. In response the Queensland parliament passed a Supreme Court bill cancelling the commission and substituting a new one carrying a salary of £1200. Bowen reserved the bill. Lutwyche petitioned the Queen to withhold assent and reasserted that the assembly had been elected unlawfully. While the constitutional issue was referred to the English law officers, the Colonial Office concluded that Lutwyche had been treated unjustly. The Duke of Newcastle returned the bill to Bowen, observing that Queenslanders had been represented in the New South Wales parliament and inherited its engagement to maintain their judge's salary.

Lutwyche had further antagonized the Herbert ministry by questions about his precedence and status, and learnt that he had no prospect of becoming chief justice. In February 1861 he published extracts from his correspondence with the government in the Moreton Bay Courier, which presented him as a 'poor man's judge' championing democratic rights against irresponsible politicians. Large public meetings sympathized with him and petitioned parliament in praise of his judicial quality.

On 22 May Herbert tried to discredit Lutwyche by disclosing that he had impugned the Constitution's legality. In deference to Newcastle the Supreme Court bill was recommitted and passed, granting the judge £2000. However, both Houses carried resolutions against him for 'political partizanship, calculated seriously to impair confidence in the administration of justice', and for impugning the Constitution 'only after the close of the first session, and when a Supreme Court bill, drawn by Mr. Lutwyche himself, securing certain personal advantages, had not been adopted'. The last charge was unfair: his doubts about the Constitution had been clearly stated in January 1860 and his draft bill, which was never presented to parliament made no reference to his commission, rank, salary and allowances. The Courier applauded his attempts to 'stand between the people and the Crown and do justice to both', and described the councillors as 'a pack of sycophantic nominees, who are destitute of Gentlemanly feelings, who lack common Christian charity, who have an utter disregard for truth, who have not the slightest acquaintance with the first principles of justice'. Without evidence Herbert and Nicholson alleged that the article was written by Lutwyche, but he seems to have only supplied some relevant documents. The council pronounced it a contempt of parliament. When the attorney-general prosecuted the publisher, T. P. Pugh, for seditious libel, Lutwyche told the jury that the charge must fail because the council was not part of the government. Pugh's acquittal was greeted with a great demonstration, bonfires and fireworks.

Without surrendering his old commission, on 14 August Lutwyche accepted a commission under the Supreme Court Act, 1861. However, he again petitioned the Queen about the local legislature's lack of authority, noting yet another ultra vires provision in the 1859 Order in Council. These doubts were resolved in October by the arrival of an imperial validating statute (24 & 25 Vic. c. 44), for the law officers in London had agreed that the legislature was illegally constituted.

Till August 1861 Lutwyche had been striving to maintain his independence from a legislature anxious to assert supremacy. For the next two years his quarrel, marred on both sides by obstinacy and animosity, was chiefly with the government. At each stage he gave full details to the press. In March 1862 he won a dispute over his travelling allowances on circuit by settling for £300 a year. In July he petitioned the Queen to disallow an Act which provided for a second judge but did not name him chief justice. He threatened refusal to execute all legislation of the session because two members of the assembly had taken their seats unlawfully. This prompted Bowen to inquire whether he could remove Lutwyche under Burke's Act (22 Geo. III, c. 75); the British law officers advised that he could.

The arrival in February 1863 of James Cockle, who was sworn in as 'additional Judge and Chief Justice', relieved the government's anxiety only temporarily. On 25 May, during a general election, Lutwyche issued an address to his fellow-constituents in East Moreton, denouncing Herbert's administration as 'despotism cloaked in the guise of responsible government'. He attacked the ministry for encouraging 'large capitalists and companies' while restricting 'the enterprise of the man with moderate means', trying to 'gag the Press', creating 'new and unnecessary offices' and squandering public funds. He proclaimed his old faith in democratic institutions and demanded 'restoration of the franchise which was filched from us by the Order in Council of 1859'. In the Legislative Council a motion was listed on the notice paper for a select committee to examine his conduct since August 1861, with a view to addressing the Queen for his removal. Bowen, Herbert and Cockle feared that this proposal would produce a party fight over Lutwyche. On 10 August Cockle wrote to Lutwyche reporting rumours that public expression of his political opinions might affect his impartiality on the bench. Lutwyche replied with a defence of his judicial and personal freedom but agreed to restrain himself while a judge. Publication of these letters ended the controversy.

Lutwyche's attempts at self-aggrandizement had distracted the government from the essential justice of the causes he espoused. Puzzled 'that the child of Responsible Government in New South Wales should attempt to override Responsible Government in Queensland', Bowen privately acknowledged that Lutwyche was 'always punctilious in his behaviour towards me, and I have found him ready and able to do his work, and to render me any legal assistance which I might require'. After Pugh's trial, his judicial conduct was rarely questioned for, as Stephen observed, he had much 'aptitude and capacity'. In 1866-67 he collaborated with Cockle and Charles Lilley on a commission which revised and consolidated 130 British and colonial statutes and much common law in 30 draft bills enacted in 1867. However, manhood suffrage was not restored until 1 January 1873. Lutwyche made firm friendships with Cockle and later judges who praised his perception and learning. He was acting chief justice in 1878-79 but, when Cockle resigned, did not seek promotion for he was crippled by gout. He remained a judge until his death on 12 June 1880.

In April 1859 Lutwyche had bought 94 acres (38 ha) near Kedron Brook. In 1860 he doubled his property and began building Kedron Lodge, designed by Christopher Potter in the style of an English manor house. An excellent host and 'most discriminating of gastronomes', he was a keen poultry fancier and patron of the turf, but apart from winning the Brisbane Cup with Dandy in 1870 had few successes with his horses. He wrote many nonpolitical articles for the press, the last in praise of the table-qualities of local fishes. He took pride in his early association with Dickens and in being claimed by pressmen as one of themselves.

Lutwyche and his wife were dedicated Anglicans. He often conducted services at settlements near Brisbane when clergy were scarce. In 1864 he bought the site for a church in the village near his property, and was instrumental in building St Andrew's Church and providing a parsonage and hall. He served as churchwarden until 1880 and gave the congregation an annual luncheon at his home. He encouraged his wife in raising funds for religious and charitable causes and, before visiting England in the 1870s, left a pillbox of half-sovereigns with the instruction: 'One to be taken by the wardens every Sunday until my return'. He drafted the constitution and canons of the Brisbane diocese, and a conference in September 1867 adopted his motions to establish a synod, founded by voluntary compact. He was a member of synod and the diocesan council from their inception. His wife had a granite Celtic cross erected over his grave at St Andrew's Church, and a suburb and parish bear his name.

A portrait is in the Supreme Court building, Brisbane.