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William Henry Mackie arrived in Fremantle 12 October 1829 per Caroline. He was Chairman of the Court of Quarter Sessions, a foundation member of the first Legislative Council, and then Advocate-General of the Colony.
... William Mackie ... had graduated from Trinity College, Cambridge and been admitted to the Inner Temple in 1822. He had practised in India and was appointed for the new settlement even before Stirling. Mackie was to become one of the most highly esteemed of the colony’s early ﬁgures. Within weeks of arrival he was chairman of the new Court of Quarter Sessions and adviser to the government in all matters of law. Two years later he became the ﬁrst Advocate-General and in 1834 Commissioner of the Civil Court, praised for his human qualities as well as his professional acumen. O'Brien & Statham-Drew: 14.
William Henry Mackie (19 November 1799 – 24 November 1860) was an early settler of the Swan River Colony holding a number of public positions including that of the first Judge of the colony. Mackie was born at Cochin, India and as a child returned to live in Derry before attending school in Twickenham, Middlesex. He later entered Trinity College, Cambridge and became a member of the Inner Temple in November 1822.
He arrived at Fremantle on the Caroline on 12 October 1829 with two servants, John Bludsell and Richard Holland. Mackie was a cousin of Captain Frederick Irwin who was the commandant of the troops in the colony and who had arrived on the Sulphur four months earlier.
Mackie and Irwin acquired two large land grants in the new colony, jointly taking up 3240 acres (13.1 km²) at Henley Park in the Upper Swan and another 7000 acres (28 km²) between Beverley and York.
Mackie's legal background saw him appointed as one of eight Justices of the Peace by Lieutenant-Governor Stirling in December 1829. In October 1831 Stirling appointed Mackie as one of the foundation members of the Western Australian Legislative Council in the position of Advocate-General. In June 1834 he resigned from the Council and became the Commissioner of the Civil Court, thus presiding over the civil and criminal courts of the colony.
South Australian Governor George Grey (later to become Governor of New Zealand) offered him the position of Advocate-General of South Australia in 1841, but Mackie declined. In August 1842 he was made a nominee member of the Legislative Council. As chairman of the magistrates, Mackie was instrumental in formulating much of the early legislature of the new State including provision for the introduction of penalties relating to the introduction of convicts in 1850.
He retired as a result of poor health in 1857 and died in 1860 at the age of 62 at Henley Park. He is buried at nearby All Saints Church, Henley Brook. Mackie never married.
William Henry Mackie (1799-1860), advocate-general and senior magistrate, was born on 17 November 1799 at Cochin, India, the son of William Frederick Mackie, a surgeon in the East India Co., and his wife Elennora, née Hamilton. Sent to relatives in Londonderry, he attended a school conducted by R. B. Macklin and later another at Twickenham, Middlesex. At 15 he entered Trinity College, Cambridge (B.A., 1821), and was admitted to the Inner Temple in November 1822. He was not, however, called to the English Bar.
He arrived in Western Australia in the Caroline in October 1829 as a private settler, though possibly with hopes or even a recommendation for a legal position. In deciding to migrate he was probably influenced by his cousin, Captain Frederick Irwin, with whom he was further connected by the marriage of his sister and Irwin's brother. The property Mackie and Irwin brought entitled them to a large land grant; they jointly took up 3240 acres at Henley Park on the Upper Swan, and another 7000 acres on the Avon between Beverley and York.
On 9 December 1829 Lieutenant-Governor (Sir) James Stirling appointed Mackie and seven other colonists justices of the peace, and formed a constabulary to preserve law and order. Although Stirling's instructions did not authorize criminal punishments, he thus provided for some continuity of the legal control to which migrants had been accustomed in England. These first measures, six months after the colony's foundation, had become necessary because of the increase of petty crime and drunkenness. Courts of Petty and Quarter Sessions were introduced, and Mackie was appointed their chairman as well as counsel to the local government. After their duties in the criminal courts, the next most important function of the magistrates was on the licensing bench of which Mackie became a member when it first met on 1 January 1830. In April that year the magistrates drafted jury rules and in July the first Quarter Sessions were held at Fremantle. Respect for the law was well established in the colony's first year.
In October 1831 Stirling received a commission from the Crown under which he established Legislative and Executive Councils, of which Mackie became a foundation member. Mackie was also appointed advocate-general. In February 1832 the first ordinance passed by the Legislative Council provided for a civil court under a commissioner with jurisdiction nearly equivalent to that of the superior civil courts in England. Until then Stirling had decided civil disputes himself, usually with advice from Mackie or another magistrate. George Moore became first commissioner of the Civil Court, but in June 1834 he exchanged posts with the advocate-general, so that Mackie thereafter presided in both the civil and the criminal jurisdictions.
In Perth the courts sat in the rush-thatched church which served also as a schoolroom until replaced in 1837 by a new court-house that served the same three purposes for another few years; as Perth's oldest building, it was still in use in 1966. Although the law administered in the young colony was based on English law as it stood in 1829, Mackie appreciated the need for adapting it to local conditions and for simplification. With his support many legal reforms were made. Small debts and libel caused much litigation until 1836 when the Civil Court Ordinance and Rules were amended to limit the right of court practice to qualified persons. The justices of the peace were given jurisdiction in claims for small debts in 1836, and their duties were later increased by numerous statutes. The Small Debts Courts were especially useful in outlying settlements, and in Perth a similar Court of Requests was set up in 1842. Because labour was scarce in the colony's first two decades, the relationship between master and servant caused much concern. As early as March 1830 the magistrates met under Mackie's Chairmanship to frame recommendations for the settlement of such disputes. An Act of 1842 provided further remedies, but the introduction of convicts in 1850 required more legislation, with heavy sentences for offences against property. Imprisonment in the stocks was stopped in 1851, the Grand Jury was abolished in 1855, and debtors were no longer imprisoned. In 1855 the first provision was made for the admission by examination of locally trained lawyers as practitioners in the Civil Court. Mackie interpreted the jurisdiction of the Civil Court very widely, although his successors, Alfred McFarland and Archibald Burt, were to doubt the court's competency in matters of equity and insolvency.
In his judgments Mackie quoted few authorities, for he worked with a meagre official library. His decision in 1836 to extradite a fugitive Tasmanian ex-official was probably wrong, and in 1853 he disagreed with a jury's decision in a case involving resumption of city land. Nevertheless he was universally respected for his conscientious administration based on common sense and tolerance. A friendly patriarch, he was ideally suited to the conditions of the time. The position of advocate-general of South Australia was offered him by Governor (Sir) George Grey in 1841, but declined. In August 1842 Mackie became an unofficial nominee in the Legislative Council, although not without some criticism, which proved unjustified, that the nomination was designed to strengthen the government. When through illness he retired from his official positions in 1857, the Legislative and Executive Councils petitioned the Queen to honour him with 'some signal mark of royal favour'. The councillors spoke of his zeal, unimpeachable integrity and high intelligence. He enjoyed a generous pension until his death at Henley Park on 24 November 1860.
Mackie was also highly regarded in private life. At Whitehall, his town house in William Street near the river jetty, he had a much admired garden, and the Henley Park estate flourished largely through the work of his employee, Richard Edwards. He was on the committee of the Vineyard Society, which in the 1840s began the development of the botanical gardens in Perth now known as the Stirling Gardens. Well read, Mackie was secretary of the Western Australian Book Society in the 1830s. He played a leading part in the Western Australian Missionary Society which made an abortive attempt to found an Aboriginal mission at Upper Swan in 1836. He was a benefactor of All Saints' Church of England, which was built on land donated from the Henley Park estate, and in whose graveyard he was buried. Opened in 1839, the church was the oldest in the State still in use in 1966. A bachelor, he was survived by a cousin, John Coningham Mackie, who arrived soon after him in Western Australia to take up farming at York.
The Colony is highly privileged in its legal institutions, which afford all the advantages of English law, without the heavy expense attending it here at home. The only criminal court in the settlement is the Quarter Sessions, the judges of which are unpaid magistrates, with the exception of their chairman, who also presides over the Civil Court, with the title of Commissioner; and which office, like that of judge in England, is held during good behaviour. In the Criminal Court the trial is always by jury, which is likewise the case in the Civil Court, whenever either of the parties chooses to incur the expense. The pleadings are oral, and all persons are permitted to practise as advocates. The fees are very moderate. The present commissioner is Mr. Mackie, before alluded to, whose first appointment was that of Advocate-General, or Counsel to the Government; which situation he held, together with that of Chairman of the Quarter Sessions, while Mr. Moore presided in the Civil Court; to which, on its formation, he had been nominated by the Local Government. On these appointments, however, being laid before his Majesty's Government, it was decided that the same functionary should preside in both courts; and Mr. Mackie, as the senior law-officer, was made the sole Colonial Judge; the office of Advocate-General being offered to Mr. Moore, and accepted by that gentleman. The legal knowledge, professional talent, and equable temper, which Mr. Moore evinced during the two years and upwards he presided in the Civil Court, gave the utmost satisfaction to the colonists, as well as to the Governor.
When James Stirling established the West Australian settlement he had permission from 'the Secretary of State for the Colonies to set up “a court of arbitration for the decision of such questions of civil right as may arise between the early settlers”.' In his Proclamation of June 18, 1829 Stirling stated said British law would apply (naturally) and within months he recognised the need for some appropriate structures. He noted that people of the ‘loosest description’ were starting to arrive; petty theft and hard drinking were a source of concern.
Stirling’s response was a decision to appoint magistrates and a body of constables in the colony, plus courts to deal with matters of civil law and criminal law. On December 29, 1829 he selected eight men to be Justices of the Peace at Perth, Fremantle and Upper Swan.
The trouble was that neither of the men appointed for Fremantle – George Leake and James Henry – had any discernible training for such work, estimable gentlemen though they were. Law books were badly needed (and obtained), plus a regulated system and some consistency in practice. The colony was fortunate in that two men with solid legal training were available. William Mackie, Irish in origin and a forgotten but important figure in WA (and Fremantle) history, was one of them. He was appointed Chairman of the Court of Quarter Sessions, which was intended to meet in January, April, July and October of each year and deal with serious cases. The other real lawyer was Alfred Stone, who moved to Upper Swan and tended to be more interested in private practice during his early days in the colony.
In addition, Courts of Petty Sessions – which are not well documented – operated in Fremantle, Perth and Guildford on a more frequent basis. Cases of petty larceny and squabbles between masters and servants occupied much of the time of the purely local JPs.
Mackie and the two Fremantle JPs had the glory of presiding over sittings of the Court of Quarter Sessions, which for reasons hard to fathom were held at Fremantle for the first eight years of the colony. The court was first situated in the office of the Deputy Harbour Master at Arthur’s Head. In 1835 it seems to have been moved to another building just south of the Round House. Mackie travelled down river when the court was in session and would obviously have had to seek alternative lodgings during prolonged hearings. Perhaps the most dramatic of them in the early days were the proceedings against three settlers after the notorious Clark-Johnson duel of 1832.
Mackie called on all the JPS to attend a special meeting at Fremantle in early 1830 to formalise a system for selecting juries. One outcome was a decision to pay jurors seven shillings a day. Stirling gave his approval to the proposed arrangements and the first Quarter Session sitting was held at Fremantle in July 1830. Back in 1950 the historian Enid Russell emphasised that the new system was a legal milestone in Australia, as WA was the first colony to create a true jury system. South Australia followed suit seven years later, followed by New South Wales.
Besides running the Court of Quarter Sessions William Mackie also operated on a formal basis as Advocate General of the colony, a post which made him the Government’s adviser in matters of law. He was eventually paid the then princely sum of 290 pounds per annum for his work. Mackie’s professional activities in the port town came to an end in 1837. From that year onwards old Fremantle was supplanted as the major colonial judiciary base when a new and purpose built Court House (now the Francis Burt Law Centre) became operational in Perth.
Conole, Peter 2015, 'Courtly things', FHS Newsletter, Winter: 9-10.
Honniball, J. H. M. 1967, 'Mackie, William Henry', Australian Dictionary of Biography.
Irwin, Frederick Chidley 1835, The State and Position of Western Australia, London.
Moore, George Fletcher 1884, Diary of Ten Years Eventful Life of an Early Settler in Western Australia and also A Descriptive Vocabulary of the Language of the Aborigines, Walbrook, London.
O'Brien, Jacqueline & Pamela Statham-Drew 2013, Court and Camera: The Life and Times of A.H. Stone, Fremantle Press: 14.
Russell, E. M. 1951, ‘Early lawyers of Western Australia’, Early Days, vol. 4, part 3: 32-53.
Stannage, Tom 1979, The People of Perth: A Social History of Western Australia's Capital City, PCC.
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