This article was published in Australian Dictionary of Biography, Volume 6, (MUP), 1976
Sir William Foster Stawell (1815-1889), chief justice, was born on 27 June 1815 at Old Court, Mallow Parish, County Cork, Ireland, second son of ten children of Jonas Stawell (pronounced `Stowell'), barrister and classical scholar, and his wife Anna, second daughter of William Foster, D.D., bishop of Cork, Kilmore and Clogher. Both the Stawell and Foster families were Anglo-Irish and traced their descent from Henry III. Stawell was educated at Trinity College, Dublin; with honours in classics (B.A., 1837), he read law at King's Inns, Dublin, and Lincoln's Inn, London, and was called to the Bar in England and Ireland in 1839. After travel in Europe with his friends (Sir) Redmond Barry and James Moore, he practised in Dublin and on the Munster Circuit until 1842 when he saw 'forty hats on the Circuit and not enough work for twenty' and decided to migrate.
In July Stawell boarded the Sarah, chartered by his distant relation Lieutenant Pomeroy Greene, R.N., father of R. M. Greene, and bound for Port Phillip. Wiry, with a powerful physique, Stawell was well over six feet (183 cm); his 'fine figure and delightful manner' attracted Greene's daughter Mary Frances Elizabeth, his future wife. She described him then as 'ruddy and of fair countenance with wonderfully expressive eyes of bright chestnut colour'. He spent much of the voyage reading law and Shakespeare. They reached Port Phillip on 1 December and his two stud bulls were swum ashore. He engaged briefly in squatting with his cousin J. L. F. V. Foster; they acquired property, including Rathescar, which Stawell held until 1853, but within a few months he had moved to Little Lonsdale Street West, Melbourne.
Stawell was admitted to the Port Phillip District Bar early in 1843 and soon built up a considerable practice. He was a painstaking advocate with a sound knowledge of the law and great capacity for work. With a compelling, earnest manner, he was a tactful cross-examiner, and his knowledge of human nature enabled him to handle jurors skilfully. He was briefed in most of the important criminal cases, including many murder trials, and he was in constant demand for civil actions. On 17 April 1844 with Barry he acted for Foster in an action for assault and battery: one of the first of civil cases, involving prominent Melbourne citizens, in which he appeared. In March 1848 he and E. E. Williams were briefed for Henry Moor in his libel suit against the Argus. This case, its sequel and the libel suit of St John v. Fawkner on 8 November further established his eminence and he, Barry and Williams were regarded as the leading barristers of the small local Bar.
A great advocate for separation from New South Wales, Stawell threw himself into all the movements for the progress of the district. He helped in the formation of the Anti-Transportation League in 1850 and in February next year was appointed to the committee of the Victorian branch of the Australasian League. He was also active in most sports and pastimes. The first amateur whip to sport a four-in-hand drag at Flemington Racecourse, he was a familiar figure in the hunting field, whilst his skill in riding 'buckjumpers' was common town talk. He rode in amateur steeplechases and on Master of the Rolls won a Grand National at Pomeroy Greene's Woodlands. He enhanced his reputation for courage by saving a drowning man from the Yarra and by stopping a runaway horse and cart laden with women and children at Flemington Racecourse. An agnostic, he also took part in some of the more dissolute amusements of the era, but in 1848 a sermon preached by Bishop Perry converted him, and next year he became a devout Anglican. He was no longer the 'blythe barrister', and his transformed behaviour produced differing reactions among his friends and associates.
By the time of separation in 1851 Stawell's all-round ability and capacity had so impressed Lieutenant-Governor Charles La Trobe that he appointed him a nominee Crown member in the first Legislative Council and attorney-general at a salary of £500. He gave up his private practice at great financial sacrifice, but with much personal satisfaction he devoted himself to his huge pioneering task. He did not again appear in court except for the Crown.
As both senior member of the executive and government leader in the Legislative Council, Stawell did much of the work in setting up an administration, the public service, and the governmental machinery of the colony. His report, with Barry, in September recommended a Supreme Court consisting of a chief justice and not more than two puisne judges with a civil and criminal jurisdiction; as a result legislation in January 1852 set up the court, and subsequently the County Court; the Court of General Sessions and the Insolvency Court were also established. With Foster he also took on the heavy duty of preparing the Constitution bill of 1854 which in its final form was largely his own work. In apathetic times he was immensely interested in politics, regarded himself as a liberal and saw the reform bill of 1832 as a great victory over reaction; but he was no radical or democrat. He and Foster aimed to reproduce the leading components of the British Constitution, crown, lords and commons. Although he favoured a colonial peerage, Stawell deemed a House of Lords unsuitable for the colony; but he and Foster substituted a house elected by property owners, university graduates, lawyers, doctors, clergymen and naval and army officers. The Lower House was also to have a restricted franchise. They thus guarded conservative interests and carried the bill through the Legislative Council; with some amendments it was enacted by the British parliament in 1855. The names of the two Victorian houses, Legislative Council and Legislative Assembly, were Stawell's own choice.
As attorney-general his duties were intensified by prosecutions for murder and bushranging occurring after the gold rush. As a zealous prosecutor Stawell was described by Melbourne Punch as 'hating crooked ways' but 'ill-inclined to brook control or guidance'. He was generally recognized as the ablest and strongest of the governor's advisers; La Trobe and Sir Charles Hotham both came to rely on his advice and to be dominated by him. His strong influence on land policy favoured the squatters; to raise revenue he supported a system of miners' licensing instead of an export duty on gold, and perpetuation of the licence fee contributed to the conflict which led to the tragedy of Eureka in 1854. Referring to the miners as 'wandering vagabonds' and 'vagrants', he resolved to suppress what he regarded as their lawless and treasonable activities; in the subsequent trials he prosecuted them determinedly, even when it became apparent that juries would not convict and that public opinion supported each successive acquittal. Stawell thus gained much temporary unpopularity but he cared nothing for the opinion of the crowd. Within the executive he accepted many duties, including the planning of some inner suburbs, the setting up of 'Canvas Town' between Melbourne and St Kilda for the reception of migrants and the establishment at Yan Yean of the city's water-supply. So diverse were his activities and so great the deference of the council that more than once his absence on circuit led to suspension of its business.
On 2 January 1856 Stawell was married at Woodlands to Mary Greene. They lived for a short time in William Street before moving to St Kilda. He was invited to stand for the Legislative Assembly and, to obtain the necessary qualification, he bought a large property on the Yarra at Kew. The bluestone mansion, D'Estaville, the home of the Stawell family for many years, was completed there in 1859. When free from public duty he enjoyed the life of a country gentleman, establishing vegetable gardens, an orchard with fruit trees from all over the world, a vineyard, stables and a dairy with Irish dairymaids. In 1877 one of the first tennis courts in Victoria was built on the estate. On the inauguration of the new Constitution in 1856, Stawell began his election campaign at Astley's Theatre with a fiery meeting during which the stage collapsed; he carried on astride a window ledge and his speech, known as Stawell's 'leg out of the window oration' ended in triumph, and he won one of the five seats of the City of Melbourne in the assembly: he continued as attorney-general.
Chief Justice Sir William à Beckett resigned in February 1857 and Stawell replaced him after a series of political manoeuvres and considerable hesitation. Much of the political animosity of the goldfield period had now disappeared, and he received a testimonial from the citizens of Melbourne and a knighthood from the Queen on 13 July. A rift followed with Barry who had expected the office, but there is little doubt the choice of Stawell was a happy one. He was the better lawyer, with a more judicial and impartial mind; unlike Barry, he avoided florid oratory, was not sanctimonious and his private life was impeccable.
In the next twenty-nine years Stawell played an important part in establishing the Supreme Court as an honoured and respected tribunal, administering law with distinction and justice with impartiality. His integrity, industry and ability and his strong sense of justice coupled with patience and courtesy soon won him the goodwill of the Victorian Bar; his austerity was tempered with a sense of humour. Much of his time was occupied with important criminal trials in which his kindliness was often obscured by the stern sense of duty he felt as a judge in a community he considered somewhat primitive and lawless. Whilst Stawell was tenacious in exposing evil-doers he was equally insistent that the Crown should prove its case. His views on punishment tended to the simplistic; in murder trials when he deemed it appropriate he did not flinch from recommending that the death penalty be carried out. He often invoked solitary confinement against young offenders to avoid contamination by older criminals. Like Barry, however, he believed that when law and order were more firmly established lesser punishments would be appropriate.
Stawell also administered the general body of laws, much of which he had designed, prepared and carried into legislative effect. Most of the equitable jurisdiction was undertaken by Judge Molesworth, but Stawell's contribution as a common lawyer was notable. He undertook an enormous volume of work and his dispatch was excellent. His decisions were invariably delivered extempore or within a matter of hours; they exhibited the sound grasp of common law principles of an instinctive lawyer with a pragmatic rather than philosophic mind. His reported judgments on many diverse topics are admirably succinct but did not exhibit deep learning. At times he erred; in April 1869 when Glass and Quarterman were imprisoned for contempt by the Legislative Assembly, he ordered their release on the basis that the assembly did not enjoy the full privileges of the House of Commons. The decision, though popular with the general public, caused grave consternation in parliament and on petition by Speaker Sir Francis Murphy, the judgment was set aside by the Privy Council. Notable civil trials over which Stawell presided included the petition for judicial separation filed in 1864 against Judge Molesworth by his wife Henrietta on the ground of cruelty, and Molesworth's cross petition on the ground of his wife's alleged adultery with R. D. Ireland and also with a man unknown.
In March 1873, desirous of having his sons educated in England, Stawell took the leave to which he was entitled. He was warmly received in Ireland and Trinity College conferred on him honorary M.A. and LL.D. degrees. Late in 1874 he was recalled by Sir George Bowen to become acting governor the following year. As governor he advised his ministers fully in writing on each measure and thereafter did not interfere. In August 1875 when the Kerferd-Service government was defeated he refused to dissolve the assembly, judging that it was his first duty to exhaust the parties in parliament, and Sir James McCulloch became premier.
Stawell took a deep interest in the material welfare of the colony. He was president of the Philosophical Institute of Victoria (Royal Society) in 1858-59. As chairman of the Exploration Committee of the Royal Society he superintended the arrangements for the ill-fated Burke and Wills expedition. Burke bequeathed his watch and his papers to Stawell who headed the mourners at the explorers' funeral. He was a trustee of the Public Library, president of the Victorian Deaf and Dumb Institution, a president of the Melbourne Hospital and the Benevolent Asylum and was connected with many charitable objectives. From its foundation he was a member of the Council of the University of Melbourne, and on the death of Barry in November 1880 was for a brief period its chancellor. He was a member of the royal commissions on penal and prison discipline (1870) and the Aborigines (1877). He also helped to form the constitution of the Anglican Church in Victoria; he favoured self-government of the Church by a democratic assembly and always took an active part in the deliberations of synod, over which he exercised considerable influence.
In August 1885 despite his still 'elastic step and active mind' Stawell had to take leave for reasons of health; after resuming office in July 1886 he resigned as chief justice on 24 September. He was created K.C.M.G. on 25 October and appointed lieutenant-governor. In February 1889 he sailed with his wife for England but died suddenly at Naples on 12 March and was buried in the English cemetery there. His estate was sworn for probate at £48,496.
Less conservative than many of his immediate contemporaries, Stawell outstripped nearly all of them in stature and ability. His efficiency as an administrator, his infinite capacity for hard work, and his conscientious nature were admired even by his political enemies. He never learnt the political necessity for occasional retreat and his sense of duty and unwillingness to take advice occasionally led him to serious error. There was perhaps a grain of truth in the comment of the Argus that 'he could ruin a country, if committed to a bad cause'. However his fine intellect and intense practicality coupled with complete integrity and other outstanding qualities enabled him to make a remarkable contribution to Victoria's early history. It is impossible not to repeat the observation so often made that it was the great good fortune of the colony to have, in its formative years, a man of Stawell's stature presiding over its highest judicial tribunal.
Stawell was survived by his wife and a distinguished family of six sons and four daughters. Lady Stawell (d. 2 February 1921) also played a prominent part in the life of Melbourne; her autobiography, My Recollections, published privately in London in 1911, is a valuable and interesting work. Two sons became lawyers, two were doctors and two engineers. His second son William was for a time his associate and later became a partner in the Melbourne legal firm of Stawell and Nankivell (now Mallesons). His fifth son Richard was knighted for his services to medicine, whilst his youngest daughter Melian became a noted classical scholar.
A portrait by Edward à Beckett, photographs, and other records are in the library of the Supreme Court of Victoria. Stawell, a town in western Victoria, is named after him.
Charles Francis, 'Stawell, Sir William Foster (1815–1889)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/stawell-sir-william-foster-4635/text7637, published first in hardcopy 1976, accessed online 2 May 2016.
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 6, (MUP), 1976