New Zealand Law Society - Dunedin's 'hanging judges'

Dunedin's 'hanging judges'

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The ‘Hanging of Justice Mander’ in the Dunedin Law Courts on 6 June 2018 – or rather the unveiling of Murray Webb’s framed caricature of him – marks the revival of an Otago legal tradition which originated nearly half a century ago. Two local barristers had commissioned Otago Daily Times cartoonist Sid Scales to draw a caricature of celebrated barrister Alf Jeavons for Jeavons’ 60th birthday celebrations on 2 November 1969. The finished product was presented and hung with due ceremony in the Otago District Law Society (ODLS) robing room and, as Kelvin Marks has noted in the ODLS history Occupied Lawfully (2006), this occasion “set the course for many other presentations” of framed caricatures of legal personalities associated with “modest alcohol and social intercourse which sometimes went beyond midnight.”

The Dunedin Law Courts
The Dunedin Law Courts. Photo: Matt

By the 1970s this event had morphed into a quasi-protest ceremony to mark (or rather, ‘hang’, in a symbolic sense of course) visiting judges sitting in the Dunedin High Court. The Chief Justice had announced in 1970 that Dunedin’s resident High Court Judge would be replaced by circuit judges from Wellington, Christchurch and Auckland, and the ODLS lobbied vigorously against the unpopular decision, arguing that the loss of a resident judge was “a loss of status for the city and province, and for the profession” (as the Report of the Royal Commission on the Courts, better known as the Busby Report, noted in 1978). Dunedin, after all, popularly regarded itself as the birthplace of the New Zealand legal profession – a reputation that is still nurtured on a regular basis during ceremonial legal occasions including courthouse re-openings, admission ceremonies and graduation functions.

Over the following decades, the ODLS commissioned Scales, and then Murray Webb, to produce caricatures of a number of visiting judges, court officials and ODLS representatives for ‘hanging’ (Marks’ essays provides fuller details of Scales’ ‘hanging’ work, including his caricature of the Court of Appeal in 1985). This tradition had lapsed by 2008, and has only been revived again this year.

The dreaded black cap

While this Dunedin tradition of ‘hanging judges’ is a relatively new one, the phrase evokes an older and grislier history – that of the judges who sentenced guilty defendants to death via hanging. The term ‘hanging judge’ has its origins in 17th Century English legal history, and the term is popularly attributed to Welsh Judge George Jeffreys, 1st Baron of Wem (1645-1689), who developed a particularly fearsome reputation for bias and the severity of his sentencing decisions. Over the period 1688 to 1820, Parliament passed what historian Douglas Hay, in his famous essay Property, Authority and the Criminal Law, has described as a ‘flood of legislation’, increasing the number of capital statues from 50 to over 200 under the ‘Bloody Code’. London acquired a reputation as a city of the gallows over the 18th Century, and judges at its notorious Old Bailey (the Central Criminal Court of England and Wales) became known as the ‘hanging judges’. Their solemn pronouncement of the death sentence, which involved donning a black cap, was, as Hay suggests, the “climatic emotional point of the criminal law – the moment of terror around which the system revolved”. Hangings were a large and unruly spectacle carried out on a public street beside the court.

Hanging too was always the prescribed method of capital punishment in New Zealand from 1840. The Crown first carried out the sentence in Auckland in 1842 when a 17-year-old Māori youth named Maektu Wharetotara (son of Ngāpuhi chief Ruhe) was convicted and executed in public for the murder of five people. Historian Ben Schrader’s awarding-winning book The Big Smoke: New Zealand Cities 1840-1920 (2016) contains a vivid account of this gruesome event. Subsequently, another seven public executions, as Schrader notes, were then carried out in Auckland and Wellington until the Executions of Criminals Act 1858 decreed that death sentences were to be carried out within enclosed places such as prisons. Over the next 155 years a further 77 people were hanged in New Zealand. Auckland was the site of New Zealand’s last execution in 1957 when Walter James Bolton was hanged for poisoning his wife.

Newspapers carefully reported upon these trials, and the judge’s pronouncement of the death sentence played a pivotal role in their trial narrative. Mr Justice Chapman’s demeanor and speech, in the 1849 Supreme Court murder trial of Maroro (of Ngati Kahungunu descent) is entirely consistent with how judges were depicted at such trials:

“His Honor then put on the black cap and in a low impressive voice pronounced sentence. Addressing the prisoner, he said – ‘It now becomes my painful duty to pass the last sentence upon you: the Jury have come to the painful conclusion of your guilt in which I also agree; and all who have witnessed the investigation must have come to the conclusion that the chain of testimony is so strong as to leave no doubt of your guilt. The sentence of the Court is that you, Maroro, be taken to the place from which you were brought, that you be afterwards taken to the place of execution, and that you there be hanged by the neck until you be dead, and that your body be afterwards buried within the precincts of the prison’.”

‘Hanging judges’ might nowadays have become a peculiarly Dunedin legal tradition, but Dunedin was only the site of four of New Zealand’s 85 executions – a fact which might indicate (prima facie at least) that ‘hanging judges’ were more prolific elsewhere in the country. These four Dunedin-based executions were all as a result of murder convictions. Captain William Harvey was the first prisoner convicted in Otago in 1865, followed a year later by John Jones, Ah Lee in 1880 and Charles Clements in 1898. Three of these executions were carried out on the grounds of the old Dunedin Gaol, which is now the site of the Dunedin Law Courts (built 1902). For an entertaining, albeit gruesome, account of their trials, executions and the mystery of their final burial places, check out Bruce Munro’s 2017 Otago Daily Times piece, "Long Read: Where History Lies."

From the start of the 20th century, as Greg Newbold has noted in Crime, Law and Justice in New Zealand (2016), clemency was more commonly granted in death penalty cases than not, and the sentence replaced by life imprisonment. And from this period no further executions were actually carried out in Dunedin. But regardless, as local Dunedin practitioner and Anderson Lloyd partner Frazer Barton explains, another tradition associated with the ODLS robing room developed. The robing room looked down into the courtyard of the Dunedin Prison (now known as the Old Dunedin Gaol), which was the place where hangings were, in theory, to be conducted. Barton recalls that as junior practitioners preparing for court in the robing room, they would look down into the neighbouring prison courtyard, and this was a sobering reminder of their duty to do their best for their clients.

In the 21st Century the tradition of ‘hanging judges’ in Dunedin has a far more celebratory and benign purpose – a world away from the grisly workload of England’s 18th Century hanging judges. While the ‘Hanging of Justice Mander’ did not reach the heights of the revelry of past ODLS ceremonies, drinks and nibbles were served to local practitioners who braved the cold winter’s night. After exclaiming ‘oh dear’, when the caricature was unveiled, Justice Mander gave a gracious speech. He referred to Dunedin’s role in upholding the “finest traditions” and to the pleasure of being welcomed by the Dunedin profession. The ‘Hanging of Justice Davidson’ was due to take place on 30 July.

Dr Jane Adams is a Postdoctoral Fellow with the University of Otago Legal Issues Centre. Her research work includes the historical study of court buildings and legal traditions.

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