by Alex C. Castles

This article was published in Australian Dictionary of Biography, Volume 3, (MUP), 1969

Benjamin Boothby (1803-1868), judge, was born on 5 February 1803 at Doncaster, Yorkshire, England, the eldest of four sons of Benjamin Boothby, iron-founder, and his wife Elizabeth, née Lightowler. In 1823 the family moved to Nottingham where he was engaged with his father in manufacturing pursuits. In May 1827 Benjamin married Maria Bradbury Robinson. In the 1830s he helped Thomas Wilde (later Lord Truro), younger brother of Sir John Wylde, in his electoral campaigns and won repute for his 'great skill in electioneering tactics'. Influenced by Wilde, Boothby decided to study law despite his age and large family. At Gray's Inn he read in his patron's chambers and was called to the Bar in 1841. He then joined the Northern Circuit, was appointed a revising barrister for the West Riding of Yorkshire in 1845 and became recorder of Pontefract in 1849. His career at the Bar had no special marks of distinction. In 1842 he produced A Synopsis of the Law Relating to Indictable Offences, which bore witness to his industrious interest in his new profession and ran to a second edition in 1854. In 1844 he had issued a pamphlet, Law Courts Not the Remedy for the Defects of the Law.

Boothby was appointed second judge of the Supreme Court of South Australia on the recommendation of the Duke of Newcastle. His appointment on 25 February 1853 was the last to the South Australian bench made by the Colonial Office. On his arrival in Adelaide with his wife and twelve children, the colonial government confirmed the appointment in Letters Patent issued on 29 August. Almost immediately the new judge had his first brush with the South Australian government when he claimed his full salary from the time of his initial appointment. The colonial government, however, allowed him only half his full salary of £1200 from 25 February to the date of the South Australian Letters Patent. Soon after his arrival he also took issue with departures from the English legal pattern in some procedures of the South Australian legal system, opposing in particular the abolition of the Grand Jury. The proposals for responsible government in South Australia, adopted in the Constitution Act of 1855-56, provided Boothby with his first major attack on colonial ways of ordering government. In private and public he condemned the proposal that judges should not be permitted to sit in parliament and in a memorandum to the governor deplored, amongst other proposals, the suggestion that all ministers should be members of parliament.

This unsuccessful intervention in politics was soon followed by the first of a series of events which were to draw to Boothby the growing enmity of powerful sections of the community. When Chief Justice Sir Charles Cooper left for an overseas visit in December 1856, Boothby insisted that he should be formally appointed chief justice in Cooper's absence. He was, however, appointed as acting chief justice only, without full salary. Two months after Cooper's departure, Boothby drew the ire of members of the legal profession and the condemnation of a public meeting of more than 1000 people by his conduct of a criminal case in which the judge had virtually usurped the function of the jury. As a result of the meeting a memorial was presented to parliament, asking for Boothby's removal, but parliament failed to take effective action to deal with the request.

In 1858 public concern at Boothby's attitude in court to lawyers and juries alike led to a new round of attacks on him. The immediate cause of the furore was Boothby's direction to a jury, in a civil proceeding, to bring in a finding for the defendant. When the jury failed to do this, the judge locked up the jury for twenty-two hours without food and drink. As a partial remedy, a third judge was appointed to the Supreme Court in 1859, a move which served to overcome some of the procedural difficulties caused by disagreements when only Boothby and Cooper constituted the Full Court. The new judge, Edward Gwynne, was said at the time to have been preparing to leave for Melbourne because of the treatment he had received from the second judge when acting as counsel in the Supreme Court.

These disputes were merely a prelude to major constitutional and other difficulties which were to beset South Australia while Boothby remained as a member of the Supreme Court. To his overbearing attitude in court, caused sometimes perhaps by recurrent attacks of rheumatic gout, the judge now added his own individualized interpretation of several rules of British constitutional law. As a consequence he ruled that some legislation passed by the South Australian parliament was unconstitutional. In 1861 both Houses separately passed addresses calling for his removal. The votes were taken in an atmosphere charged with political emotion, for one of the Statutes Boothby had impugned was the Real Property Act of 1857 which introduced the Torrens system of land registration to South Australia.

Late in 1861 Chief Justice Cooper retired, partly at least as a result of the rebuffs and criticism he had endured at the hands of his fellow judge. Boothby was passed over for the chief justiceship and (Sir) Richard Hanson was appointed in Cooper's place. In a tense scene in the judges' chambers Boothby refused to recognize the validity of the new appointment, claiming that only a British-trained barrister could be a judge of the Supreme Court.

When the addresses of the South Australian parliament were dispatched to London the British government refused to act, pointing out that the second judge had rightly decided that some local laws were invalid, and affirming that a colonial judge was entitled to test their legality. Meantime Boothby had raised fundamental constitutional issues which involved the assertion that the South Australian parliament had not been validly constituted since the enactment of the Constitution Act of 1855-56. As a result a Validating Act (26 & 27 Vic. c.84) had to be passed by the British parliament in 1863 to regularize the situation and ensure that all South Australian Statutes passed since 1857 could not be invalidated.

In 1863-66 relative calm descended upon the administration of justice. Boothby continued to adopt a narrow, pedantic construction of the principles of imperial constitutional law which attempted to limit the powers of the South Australian parliament in a fashion unknown in the other Australian colonies. In these years, however, the South Australian parliament no longer sought the removal of the judge. Instead steps were taken to obtain British legislative intervention again to order the situation. In 1865 the British parliament passed the Colonial Laws Validity Act, which applied to South Australia as well as most other British colonies. This enactment legislatively removed the main sources of legal authority which Boothby had used to impugn South Australian law.

Acting in the face of the new Act, Boothby entered into a phase of judicial irresponsibility which led to his 'amotion'. In May 1866 he refused to acknowledge the authority of the attorney-general and quashed all informations for serious criminal offences which were brought before him in that officer's name. Procedural rules made it impossible for the Full Court to intervene and the cases lapsed. Immediate steps were taken to bar Boothby from hearing any further criminal cases and a special session of parliament was convened. An address for his removal was carried without a division in the House of Assembly and by a large majority in the Legislative Council. Because of procedural defects the British government refused to act immediately on the addresses and the Boothby question was referred to the Judicial Committee of the Privy Council, with the prospect of lengthy and expensive proceedings in London before the matter could be resolved.

Undeterred by the course of events, Boothby proceeded to challenge the legality of the appointments of both Hanson and Gwynne despite a clause in the 1865 British Act which seemingly guaranteed that their appointments were valid. He also attacked legislation of the South Australian parliament which was clearly validated by the British legislation. On 24 June 1867 Hanson and Gwynne jointly requested the government to take remedial action to prevent a serious breakdown in the administration of justice. Relying upon a British Statute of 1782 (Burke's Act, 22 Geo. III, c. 75) which applied to overseas possessions, the governor, Sir Dominick Daly, instituted proceedings to dismiss Boothby on the ground of misbehaviour. In accordance with the Act the Boothby case was referred to an inquiry before the governor and Executive Council which was conducted by Samuel Way, Boothby was given a full opportunity to present his case but although he attended the inquiry a few times he failed to present a defence to the charges. They were found proved on 29 July and Boothby was 'amoved' forthwith. He died on 21 June 1868, soon after he had taken formal steps to appeal against this decision to the Privy Council. His estate was sworn for probate at under £5000.

Despite the enmity he engendered Boothby was not without friends who were prominent in South Australia. His self-righteous pomposity, disdain for things colonial and inability to compromise played an important part in causing his downfall. At the same time there were undercurrents in the political workings of South Australia between 1857 and 1867 which may have led him sometimes to adopt unjustifiable legal standards in an effort to achieve the ends of justice as he conceived it. Before the enactment of the Colonial Laws Validity Act the judge's pronouncements on the constitutionality of local legislation were at times supportable although he clearly had a tendency to carry theoretical strictures on colonial powers to extremes which had not been acceptable generally for many years. Whatever his personal moral justification may have been, his continued adherence to legal principles abolished by the Act of 1865 were untenable and justified his amotion.

Boothby was not without imagination as he demonstrated in South Australia when he put forward suggestions for the development of intercolonial relations and trade. In 1854 he forwarded a plan to London for an integrated railway system joining the main centres of population with a uniform gauge which would link up with a series of dockside terminals to expedite overseas trade. This scheme, like a plan for an intercolonial penny post, received less attention than it deserved. On the personal side Boothby seems to have reigned over a close-knit family group and the need to provide for his large family was a contributing factor in his efforts to have himself installed as chief justice. He was often over-maligned and one important reason was that wittingly or otherwise his judicial pronouncements on the legality of the South Australian Acts brought him into direct conflict with strongly entrenched political and economic interests in the colonial community.