Legal Advice: +61 8 7325 0080

 Diaspora Legal

Equity, Prosperity and Dispute Resolution Across Borders

Justice Benjamin Boothby

Justice Reform in South Australia - The History You Don't Know

Oct 28, 2016

South Australian Register (Adelaide, SA : 1839 - 1900), Monday 22 June 1868, page 2


The melancholy event which we have to announce in this morning's obituary will be first thought of as the close of a stormy period in the history of South Australia.

Little more than a year ago the Boothby question was agitating the colony from end to end ; now it has been settled for ever by the cold hand of death. Boothbyites and Anti-Boothbyites may to-day renounce their differences, and forswear their animosities over the corpse of their champion and bugbear. The denouement has been as pain-ful as the struggle itself was desperate. The popular will triumphed as it always will triumph when the people are their own law-givers ; but it cherished no ill-will toward its vanquished antagonist. It could honestly have wished him a new lease of life, and a happier one than the judicial turmoil he had quitted. But the event has proved otherwise, and though we could not prevent it, we may nevertheless record our sincere regret. The most bitter opponent of the deceased can hardly deny that his character contained the elements of great moral power. They may bitterly have got misdirected, but there can be no question of their existence. Apart from his profession, Mr. Boothby exhibited proofs of originality and acuteness. Though a hair-splitter in some things, he could be a bold innovating reformer in others. His mental constitution was sich a complicated intermixture of diverse qualities that it was difficult to appreciate him when living and equally difficult to criticise him when dead. In the first burst of excitement which the news may create it may seem ungracious to attempt criticism. We shall therefore at present simply give the narrative of his life. The obituary notice states that he was in his sixty-fifth year, consequently he must have been born at the opening of the present century. His pro-fessional career did not begin till he had reached nearly middle age. In 1841 he was called to the bar at Gray's Inn, and attached himself to the Northern Circuit, on which he remained during his practice in England. The only English appointments he received were a revising barristeiship (West Riding) in 1845, and the Recordship of Pontefract some time later. He appears to have retained both till the close of 1852, making his English experience of eleven years' duration. During this period he acquired some distinction as a jurist and a law reformer. The year after he was called to the bar he published a treatise on Criminal Law, of which a second edition was demanded in 1854. To the movement which followed for the reorganization of the Local and Circuit Courts, he gave substantial assistance by a pamphlet which he issued in 1844. Some of its suggestions have since been em-bodied in Imperial legislation. His connection with South Australia began in February, 1S53, when he was appointed Second Judge of the Supreme Court by warrant under the Queen's Sign Manual. Our first Constitution was then in its infancy, but a very few years sufficed for us to outgrow it. Then came full-blown responsible government, manhood suffrage, and all the other political rocks on which an able conscientious man was to make ship-wreck of himself. While the semi-patriarchal system was in vogue, Mr. Boothby found a congenial home in the colony. He did not even disdain the arts of popularity, nor were his efforts unsuccessful Had they been confined to the mere amenities of society, such as pre-siding at a temperance meeting, or patronising a dissenting chapel, they might even have been forgotten in the troubles which ensued. But two permanent relics of the halcyon age have been left to us. Years, and it maybe centuries hence, Mr. Boothby's name will be associated with the first inter-colonial railway. The idea of connecting the principal towns of Australia by a rapid and regular means of communication first ema-nated from the mind which afterwards wasted its strength in the mare's nest of repugnancy. This scheme was not a mere suggestion. Its author elaborated its details, and indicated the route that should be adopted. Starting from Sydney the line was to be carried south-eastward in the direction of the present Goulbourn Railway toward the Valley of the Murray. At a suitable point on the river—Swan Hill was originally thought of, but afterwards abandoned in favour of Marden's Point—it was to fork, one branch continuing on toward Adelaide, and the other turning southward to Mel-bourne. At each of the metropolitan termini docks were to be constructed, capable of accommodating the largest class of ocean steamers. Mr. Boothby forwarded his plan to the Duke of Newcastle in 1854, and it was submitted to each of the Governments inte-rested in it. But, like many other federative schemes and agencies, it proved premature. A kindred proposal was subsequently made for the establishment of an intercolonial penny cost. Again the blight of all origi-nality fell upon it ; it had been born before its time.

With the passing of the New Constitution Act in 1856, the second and dark side of Mr. Boothby's colonial career presented itself. His advice had been disregarded in the framing of the Constitution, and it had not been long in existence before he declared war against it and everything connected with it. Unfortunately, when this temptation was placed in his way, the restraining influence of his senior colleague, Sir Charles Cooper, was for a time withdrawn. In December, 1856, Mr. Boothby was appointed Acting Chief Justice, and continued to be sole Judge until the return of Sir Charles Cooper to the colony in May, 1858. It was during this period of absolute power that he set colonial legislation at defiance, and provoked an ill-starred col-lision with the public on one hand and Parliament on the other. The conservative turn of mind he had brought with him, when soured by disappointment, rendered the new democratic associations galling to him. There were many joints in the arms of the new Government at which a practised hand like his could deal staggering blows. But our judicial critic erred in the spirit of his criticism. He not only exposed defects, but he insisted on stopping the whole machinery of law until they should be remedied. The legal acumen and forensic condition which, in a happier state of relations between the Bench and the Legislature, might have been productive of good, proved a misfortune to the colony, and ruin to their possessor. Where there should have been mutual forbearance, a deadly antagonism arose. Such was the origin of the Boothby question, and its sequel is an event of yesterday. Upon the proceedings of Mr. Boothby in his judicial capacity it is not expedient or necessary that we should dwell at length. The public are well acquainted with the details of the long-sustained and bitter strife which he waged against the Parliament of the colony. His attach-ment to the institutions and to the social and legal systems of England caused him to offer the most unflinching hostility to any deviation from them. The abolition of Grand Juries was condemned in unmeasured terms ; the exclusion of Judges from the privilege of occupying seats in the Legis-lature was a personal grievance; the Real Property Act was stigmatized as an unwar-rantable and intolerable departure from the laws in the mother-country affecting titles to land ; the Constitution Act was pronounced void, and the Legislatures elected under it invalid and utterly without authority; the Local Court of Appeals he ever refused to recognize, and its mandates he treated with contempt ; the rights of his colleagues, Chief Justice Hanson and Justice Gwynne to sit as Judges he denied ; and the office of Attorney-General he declared to be a nullity without any legal warrant. On the retirement of Sir Charles Cooper from the Bench Mr. Boothby evidently anticipated that the office would be conferred upon himself. His disappointment at being overlooked was conspicuously shown in his behaviour towards Mr. Hanson on his eleva-tion to the Chief Justiceship ; notably in the persistency with which he questioned the validity of his Commission. As early as 1857 Mr. Boothby's peculiar action on the Bench led to an indignation meeting of citizens, and to the introduction of a Bill by Mr. Gwynne for restoring trial by Jury in the province. In 1858 the sense of general dissatisfaction found expression in the passing of a measure to repeal clauses in the Supreme Court Procedure Act, giving a power to Judges compulsorily to refer cases to arbi-tration ; also to special legislation, authorizing the appointment of a third Judge ; and to a motion by Mr. Strangways for a Select Committee 'to investigate matters con-nected with the administration of the law and justice within the province. In 1861 a still more tangible evidence of popular disapprobation was afforded, in the adoption of addresses by both Houses praying the Queen to remove the Second Judge, and in the passing of an Act to Consolidate the Court of Appeals, a tribunal which, from its anomalous character, was admittedly only to be tolerated under exceptional circum-stances. The addresses did not produce the desired effect, and His Honor still persevered in his former course. The Validating Act, intended to settle the donbts which had been so prolific of mischief, was virtually ignored ; and at last, in May, 1866, matters were brought to a crisis by the quashing of various indictments on the ground of there being no Attorney-General and no Grand Juries. A special session of Parliament was without delay held, and Her Majesty once more re-quested by respectful address to remove the Judge. The appeal was not successful, but at length the business of the Bench being brought to a deadlock, the Executive inter-fered. Charges were submitted against His Honor, which he was summoned to answer. He attended, but it was only to protest against the proceedings as being without precedent, and the tribunal as being utterly without jurisdiction. A mass of evidence, oral and documentary, was produced ; and finally, on the 29th July, 1867, Mr. Boothby was formally amoved from his office as Judge. It is only within the last few days that the public have been informed that steps are being taken to appeal to Her Majesty in Privy Council against the decision. However much opinions may differ with regard to the public career of Mr. Boothby, or however diversified may be the views taken of the extreme measures by which it was brought to a close, there is but one feeling in reference to the deceased's private character. He was courteous, urbane, gentlemanly in demeanour, and endowed with many of the best qualities which adorn social life. His circle of friends was large, and some of those who were brought into unpleasant collision with him in his public capacity still in private preserved amicable relations with him. Since his amoval he has lived in comparative seclusion, and his health has gradually declined. During the past five or six months he has been suffering from dropsy and disease of the heart ; Dr. Wheeler being in regular atten-dance upon him. It has been perfectly obvious for a length of time to all who have seen him that he had not long to live. He was also perfectly conscious of the fact himself. His death took place at 1 o'clock on Sunday, June 21, and his remains are to be interred on Tuesday next, at the North Adelaide Cemetery. He has left a wife and a numerous family, several of his sons holding high positions in the colony; three of them—Mr. W. R. Boothby (Sheriff), Mr. Josiah Boothby (Under Secretary), and Mr. Benjamin Boothby (Superintending-Surveyor for the North-Eastern District, under the Central Road Board)—appear in the Colonial Office List.


Add Pingback

Please add a comment

You must be logged in to leave a reply. Login »