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George Higinbotham (1826–1892)

from Argus

George Higinbotham, by Johnstone, O'Shannessy &​ Co

George Higinbotham, by Johnstone, O'Shannessy &​ Co

State Library of Victoria, 49218616

The public of Victoria will be deeply stirred to hear of the somewhat unexpected death of his Honour the Chief Justice (Mr. George Higinbotham), which occurred at his residence, South Yarra, on Saturday last. For over 30 years Mr. Higinbotham had been before the public of Victoria as a member of Parliament, a Minister of the Crown, as a judge of the Supreme Court, and, finally, as Chief Justice. He occupied a unique place in the public mind. For the past four years the Chief Justice had been aware that he was suffering from an affection of the heart (angina pectoris), and Mr. J. W. Dunbar Hooper, his medical adviser, repeatedly impressed upon him the necessity for conserving his strength. Three years since, during the vacation, the state of his health was such as to alarm his friends, and he was strongly urged to apply for leave of absence, but this he persistently refused to do. His devotion to his duty was such that he stated his intention to continue in its discharge as long as his powers lasted. At the same time he was most anxious that the work should not suffer through any incapacity on his part. If his medical attendant would certify, he said, that he was unfit on account of the state of his health to perform his duties, he would at once tender his resignation, but he would not ask for leave. He desired to die at his work, and would not quit it so long as strength remained. His indomitable will carried him through the work of each year, and his patience and courtesy never failed, though at times his sufferings were most severe. But as soon as the vacation came he suffered a collapse each year, and the efforts of his medical attendant were directed to restoring his strength sufficiently to enable him to re-commence when the brief interval of rest was over. His mental capacity was as great as ever, and save for the affection of the heart his bodily strength was unimpaired. It was thought that a six months' holiday would add years to his life, and the subject was again and again renewed until finally he requested that it should not be brought up again, as his determination was unalterable. About three months since other internal complications occurred, and he consented to see Dr. Maudsley in conjunction with Mr. Hooper, the consultation entirely confirming Mr. Hooper's view. The Chief Justice was enabled to continue his work. Just before the work of the courts was concluded he stated that he felt unusually well and thought he would require little attention during the vacation. But on Wednesday last he became too unwell to leave his bed, the collapse being evidently more serious than usual. He felt that his work was done, and expressed his intention of resigning before the courts reopened, but it was not thought that his end was so near, though he had been warned that it might come at any time, and had made every preparation for the event. His strength did not return, and he was unable to leave his bed. On Saturday afternoon, at about half-past 2, he rose from his pillow asking for more air, and then quietly sank back again, and it was found that he ceased to breathe.

The deceased judge leaves a widow and two sons and three daughters. The eldest daughter is the wife of Professor E. E. Morris. One son is at present studying at the Dublin University, where his father graduated. In compliance with the repeatedly expressed wish of the deceased the funeral will be conducted with the strictest privacy, only the immediate relatives being present.

Mr. Higinbotham was the sixth son of the late Mr. Henry T. Higinbotham, of Dublin, where he was born in 1827. One of his brothers was the late Mr. Thomas Higinbotham, engineer-in-chief of the Victorian Railways. He was educated at the Royal School, Dungannon, and afterwards proceeded to Trinity College, Dublin, where so many prominent citizens of Victoria received their education. Among his compeers at Trinity College was the Very Rev. Dean Macartney; and one of the re-collections by Mr. Higinbotham of his days at Trinity was that of the Latin sermon which Mr. Macartney had to deliver in order to qualify himself for his doctor's degrees. There were some five or six students present, and Mr. Higinbotham afterwards ventured the opinion that not one of them understood more than a sentence or two of the sermon. Mr. Higinbotham graduated B.A. in 1849, and M.A. in 1853. At the age of 21 he went to London, and entered at Lincoln's Inn as a student for the bar. While studying for his future profession he became a reporter for the Morning Chronicle, on which paper the late Mr B. C. Aspinall, with whom Mr Higinbotham was to be closely connected in later life, was one of his colleagues. In the year 1853 Mr Higinbotham was called to the English bar, and in the following year came to this colony, where he was admitted as a barrister on May 27. His chief rivals at the bar at the outset were Mr (now Sir) Arhibald Michie, Mr Ireland, Mr Fellows, Mr Dawson, and Mr J. Dennistoun Wood, and he had acquired a fair practice when, in 1857, he became for a time editor of The Argus in succession to the late Mr Edward Wilson. After holding this position for a period of two years Mr Higinbotham resumed practice at the bar and rapidly rose to be one of the leaders on the common law side.

At this period nearly all the leading men at the bar were members of the Assembly. Payment of members had not been instituted, and such men as especially Mr (now Sir) Archibald Michie, Mr J. Dennistoun Wood and Mr R. D. Ireland were among the most conspicuous speakers in Parliament. So in April, 1861, when the resignation of Mr Ebden caused a vacancy for the representation of Brighton, Mr Higinbotham was elected in his place. His most prominent political questions of the time were those of payment of members and of protection to native industries. In his speech to the electors Mr Higinbotham favoured the idea that where the circumstances made it desirable the constituents themselves should reimburse their members for their expenses in attending Parliament. On the protective issue he was amongst the first of the numerous class of freetraders by conviction who thought there could be no great harm in giving protective duties a trial. Looking to the whole field of the world's industry he believed it to be indisputable that all such restrictions of trade were injurious and calculated to retard the prosperity of the nation which imposed them, but whether the manufacturing industries of a community just springing into existence ought at the very outset to suffer the shock of the fullest competition with the highly-developed industries of older countries he was by no means certain. To give them a 10 years' start and then call upon them to stand on their own merits might, he conceived, be a perfectly wise as well as a kind mode of proceeding. Parliament was in session, and the new member took his seat immediately upon his election. The Heales Ministry was in power, and the cordiality with which Mr Higinbotham was welcomed to the Assembly indicated that he was regarded as a distinct acquisition to that Chamber. Though 31 years have passed Mr James Service still remembers with pride and pleasure that he was one of the sponsors of the new member for Brighton. It is recorded in Hansard that "he hon. and learned member was warmly congratulated by the occupants of the Treasury benches, including the Chief Secretary, the Attorney-General, and Messrs Grant and Brooke." And that the congratulations of Ministers were not prompted by a sense of favours to come is shown by the further entry that "he then took his seat below the gangway on the Opposition side of the House." He and Mr Service sat side by side for a considerable time.

In the ability and public spirit of its members the Legislative Assembly has, perhaps, never stood higher than it did in those days, but neither then nor since has it contained a more unique or commanding figure than was presented in the figure of Mr Higinbotham. All the qualities which afterwards made him so great a political force with the mass of the people – his fervent eloquence, his pre-eminently noble bearing, his scorn of all that savoured of meanness or of cowardice, his lofty conception of duty, and his own unswerving devotion to what he conceived to be right and true – were dis-played by Mr Higinbotham from the outset. Within two months of taking his seat Mr Higinbotham had an opportunity of displaying that independence of action which, however ill it suited the exigencies of party politics and the wishes of party leaders, continued to be a characteristic of his political conduct. When in June 1861, a motion of want of confidence in the Heales Government was tabled he declined to assist in defeating the Ministry. One reason he gave for his vote was that frequent changes of Ministry such as the country had experienced since the introduction of responsible government were to be discouraged as much as possible. He had noticed that in England it was repeatedly said that these changes exhibited a vacillation and want of political ability in our statesmen and that this was not a good thing. "It should not be forgotten," he said in a sentence which is full of significance in the light of his later career, "that it is still a disputed question whether Parliamentary government is good for the people or not." The Governor had been at issue with the Assembly, which had inserted in the annual Appropriation Bill a clause limiting the duration of the act to the end of August unless Parliament should be then sitting, the object being to compel the Ministry to call Parliament together at the earliest possible moment. The Governor subsequently sent a message to the Assembly inviting it to reconsider the bill, and to strike out the obnoxious clause. Mr (now Sir) Charles Gavan Duffy held that under the Standing Orders the Governor could not suggest amendments in an Appropriation Bill, though he could do so in all other bills, and against this view Mr Higinbotham held that the Constitution Act did give the Governor power to suggest the alteration. So it came about that at the subsequent general election Mr Higinbotham had the confidence of neither party, and that he was opposed at Brighton by Mr J. G. Burtt on behalf of the Ministry and by Mr W. A. Brodribb for the Opposition. Mr Brobribb was elected but Mr Higinbotham's absence from the Assembly proved to be a short one, for in March of the following year (1862) Mr Brodribb resigned and Mr Higinbotham was returned to his old seat. In the meantime the Heales Ministry had been defeated and replaced by the O'Shanassy-cum-Haines Administration. Mr Higinbotham was returned to the House in time to vote against the third reading of the Duffy Land Act. He, however, gave that Administration a general support, but when it was defeated in June, 1863, and Mr (now Sir James) McCulloch was called upon by Sir Henry Barkly to form a Government, he accepted office as Attorney-General in the new Ministry.

The first McCulloch Government might fairly be described as the "Ministry of all the talents," and no stronger Administration has been brought together before or since. Mr. McCulloch was Premier, Mr. (now Sir George) Verdon was Treasurer, Mr. J. G. Francis was Commissioner of Customs, and besides Mr. Higinbotham the other Ministers included Mr. Richard Heales, Mr. J. M. Grant, Mr. T. H. Fellows, and Mr. (now Sir Archibald) Michie. Like most other strong Governments, it was really a coalition – that is to say, the Ministry was formed on no definite principle, save that of the efficient administration of the government – and there was great diversity of opinion among the Ministers upon the many questions then before the country. Mr. Higinbotham devoted himself to the duties of his office with great assiduty, imposing on himself the same rigid devotion to duty which he expected but very rarely found in others. It was characteristic of him that he should look upon the handsome salary attaching to the office as a retainer which entitled the public to the whole of his services, and so long as he continued at the head of the Law department he refrained from taking private practice. Before this time it had been customary for the Attorney-General to attend to as much professional work outside of his department as he could command, but, curiously enough, since Mr. Higinbotham's time this has been the exception rather than the rule. The gentlemen holding the position of Attorney-General have invariably been men who were not in large practice at the bar.

The debating power and the unflagging industry of the Attorney-General made him a valuable member of the new Administration. It ably managed the affairs of the country and had a tranquil existence for about 18 months. But at the general election of 1864 "protection of native industry" was made a leading issue, and the new Assembly proved to be more decidedly protectionist than any member of the Government. Ministers resolved to bend to the storm. Hitherto the Customs tariff of Victoria had been confined to little more than a dozen articles, upon which imposts were made for revenue purposes. In January 1865, Mr Verdon made his Budget speech, and intimated that the Government intended to propose small duties upon a number of articles hitherto untaxed, and for that purpose it would tax articles such as might be made in the colony rather than those which could not be produced here. The announcement pleased neither party. The mercantile community was indignant that such a proposal should come from a body of professed freetraders, while the protectionists loudly declared that the Government must go a great deal further. The Attorney-General justified his support of the new duties by maintaining that they were to be imposed for revenue, and that they were only incidentally of a protective character. In July 1865 the Treasurer introduced his tariff bill by which the Government proposed to place taxes of from 10 to 20 per cent ad valorem upon the great bulk of the imports of the colony. The measure was bitterly opposed in the Assembly by men who believed that it was merely "the thin end of the wedge", and that it meant the inception of a most dangerous policy. There was a large majority in the Assembly in favour of the experiments, but there was a rock ahead. The Legislative Council was known to be hostile to the scheme, and Ministers felt certain that if the bill were sent there in the ordinary way it would be rejected without compunction. It was held by the majority in the Assembly that the country had pronounced in favour of protective duties, and that the Upper House must not be allowed to stand in the way, and so the determination was reached to "tack" the tariff bill to the bill providing for the appropriation of the supplies for the year. The opinion of Mr Higinbotham as Attorney-General naturally carried great weight. He said that no precedent existed by which they could be guided, but that as a matter of fact the House of Commons had on several occasions secured the adoption of financial measures to which the House of Lords was opposed by this very means of "tacking" them to Appropriation Bills. Accordingly, against the advice of the Speaker – Sir Francis Murphy – the two bills were joined and sent to the Council as one measure. The Council did not hesitate to reject it, and then began the contest or series of contests, between the two Houses which have formed so remarkable an episode in the political history of Victoria. The story of these struggles has been told before, and reference need only be made here to the very prominent part which was played in them by Mr Higinbotham. As chief law officer of the Crown, it became his duty to advise his colleagues in the important steps which followed the rejection of the Appropriation Bill by the Council. When the Government was deprived of the means of paying the public service and the public creditors, it was the Attorney-General who drew attention to a clause in the Audit Act which directed the Governor to sign the necessary warrants for the payment of any sums awarded by verdicts obtained in the Supreme Court against the Government by private individuals, so that the Government had merely to let judgment go by default to enable these creditors to be paid. It was upon his advice that the Government proposed to collect the new duties under the authority of the Assembly alone. The acquiescence of the Governor, Sir Charles Darling was secured, and the task of the Government was made a comparatively easy one. It was not till an appeal had been made to the country and the Government had been returned in February 1866 by an overwhelming majority, till the Council had again rejected the Tariff Bill, and till the McCulloch Ministry had resigned and it had been found impossible to supply it a place, that peace was restored. A conference was held between the two Houses, and the Council passed the Tariff Bill, which was sent up to it as a separate measure, and with slight modifications.

It was during the first great struggle between the two Houses that Mr Higinbotham came to be looked upon as the people's champion, and earned the admiration and affection with which he was ever afterwards regarded by the great mass of the community. His denunciations of the Legislative Council were models of Parliamentary oratory and invective, whilst his sonorous sentences and classical precision of language lent a charm to his utterances which won the admiration even of his opponents. There has been no closer approach to Hero worship in the history of the colony. Mr (now Sir Graham) Berry, while speaking at a great meeting in Collingwood disapproved of the straining of the Audit Act as being illegal and unjustifiable; but when he mentioned the name of Higinbotham the applause rang out, cheer after cheer till for once in his life Mr Berry lost his temper, and shouted that "he would not stand the tyranny of howling idiots."

But greater events were to follow. The contest over the Customs Bill had scarcely been laid to rest when the colony was plunged into a second struggle between the Houses of Legislature more bitter than the first. It was the famous episode of the "Darling grant." Sir Charles Darling having been recalled by the Imperial Government on the ground that he had displayed partisanship during the first outbreak, it was proposed to vote a gratuity of £20,000 to Lady Darling the money, of course, being intended for Sir Charles, who was prohibited by his official position from accepting it openly. Mr Higinbotham admitted that the grant was intended as a vote of censure upon the Legislative Council for its action in the previous struggle; and, in order to deprive the Upper House of any opportunity of expressing an opinion upon it as a question of public policy the item was included in the Appropriation Bill. Various circumstances had delayed the action of the Assembly and it was not until August, 1867, that the gauntlet was for the second time thrown down before the members of the Council. The strife was increased by the contemptuous and condemnatory language in which the Council was habitually spoken of by members of the Ministry, and particularly by the Attorney-General. The strategic conditions were materially altered as compared with those of the previous year, through the appointment of a new Governor in the person of Sir J. H. Manners-Sutton, afterwards Viscount Canterbury, who refused to endorse the judgment of the Supreme Court in favour of the Government creditors. It is needless to repeat the history of the struggle except to say that Mr Higinbotham was in the forefront of the battle, and did more, perhaps, than any other individual to encourage the majority in the Assembly in the course it was pursuing. A general election took place in the beginning of 1868, by which the McCulloch Ministry gained a large majority, but it resigned before the House met, owing to the Governor refusing to give a promise as to what he would do in the case of certain events happening. A Ministry was then formed by Sir Charles Sladen, but it lived only for two months, and in July, 1868, Sir James McCulloch returned to power for the third time. The Darling controversy was ended by the death of Sir Charles Darling and the granting of a life annuity of £1,000 per year to Lady Darling. Mr Higinbotham, however, declined to return to his old office as Attorney-General as he was completely at variance with Sir J. H. Manners Sutton as to the attitude which the Governor had taken up in the recent struggle, holding that the constitutional duty of the Governor was to act according to the advice of Her Majesty's Ministers in Victoria, on whom lay the responsibility when it arose. While the Governor differed from him in this important respect he conceived that it would be impracticable for him to continue to hold office. However, he accepted the post of vice-president of the Board of Land and Works without salary, and continued to take a fairly active part in the work of the Assembly

It will have been seen that hostility to Downing street and hostility to the Legislative Council had already established themselves as cardinal points in Mr Higinbotham's political creed. He contended that under the Constitution Act Victoria was given the right of self-government, and that that right was inconsistent with the presence of a Governor who took his instructions from the Imperial authorities. Her Majesty's Ministers in Victoria should stand in regard to the Governor in exactly the same relation as that in which Her Majesty's Ministers in Great Britain stood to the Queen herself, and the Governor was not entitled to go beyond or behind those Ministers for advice. Holding this view he warmly resented the instructions forwarded to the Governor from time to time by the Secretary of State for the Colonies and declared that Victorians could never be considered a free people so long as such interference was tolerated. He insisted that the Victorian Government should correspond with the Government in London on a footing of entire independence, claiming for the colony the right to make treaties of its own with foreign powers and to be exempt from any liability from British wars. He more than once referred to the throne as "a foreign and irresponsible power," and he pointed to "the man Rogers" (referring to Mr Rogers, then principal Under-Secretary of State for the Colonies and subsequently Lord Blachford) as ruling the destinies of the colony. On more than one occasion he initiated discussions on the subject in the Assembly, and supported his views in long speeches and during the session of 1869 he was successful in carrying a motion to the effect that the official communication of advice, suggestions, or instructions by the Secretary of State for the Colonies to Her Majesty's representative in Victoria on any subject whatever connected with the administration of local government, except in the giving or withholding of the royal assent to or reservation of bills passed by the two Houses of the Victorian Parliament, was "a practice not sanctioned by law, derogatory to the independence of the Queen's representative, and a violation both of the principle of responsible government and of the constitutional rights of the people of this colony."

As to the Legislative Council, Mr Higinbotham never disguised that his desire was to sweep it out of existence as being a mischievous and unnecessary element in the constitution. He regarded the presence of a second chamber as being merely a hindrance to the free expression of the will of the people, so that when in 1868 the Council itself proposed that the property qualification of its members should be reduced from £5,000 to £2,500, and that of the electors from £100 to £50 – a compromise which was cheerfully accepted by the McCulloch Government Mr. Higinbotham steadily opposed the change. According to his view, a reformed Council would be much more dangerous than an unreformed one. The extension of its franchise would give the Council renewed vigour for mischief. By making it more representative it would become stronger, yet not be really representative of the whole body of the people. Clearly out of touch with the more moderate opinions of those around him were his views as to payment of members. As we have seen, he was inclined to leave the constituencies to pay the expenses of their members if they desired to do so, but when in 1865 Mr. George Harker tabled a motion for the "compensation" of members, Mr. Higinbotham indicated a desire to go much farther. The nation as a whole should, he thought, have full control over its representatives, and they should be gentlemen receiving a fixed salary for definite services rendered. He would give them a yearly sum not much inferior to the income of a judge or a Minister of the Crown, for their duties were not less important. On later occasions he explained that in putting forward this idea, he had in view a single chamber of not more than 40 or 50 members, elected probably by the whole colony as one constituency, and in order to check the excess of party rivalry he would pay the Ministers no larger salary than was paid to members. When the present system of payment was inaugurated Mr. Higinbotham inclined to the view of the majority, but he refused to touch the stipend for which he had voted. More singular still, he refused to gain favour with his constituents by promising to apportion the money among local charities.

Mr. Higinbotham sat in opposition to the Macpherson Government. In the session of 1870 a paragraph was contained in the Governor's speech to the effect that Ministers would submit for the consideration of Parliament a measure providing for the greater efficiency of public schools, and the more general and regular attendance thereat, upon which Mr. Higinbotham moved an amendment that no measure relating to the subject of education would be entitled to favourable consideration which failed to provide for the establishment at the cost of the state of a general system of purely secular instruction. The amendment was lost by 30 votes to 24, and two years later Mr. Higinbotham was not in the House to assist in carrying the Education Act in which his views were embodied. Later in the session a motion was carried that the Macpherson Government should re-consider its estimates, with a view to the reduction of both expenditure and revenue. The Ministry proposed to obey the instruction, but a straight-out motion of want of confidence was subsequently moved and carried. Mr. Higinbotham voted with the minority, believing that a vote of censure was moved against the Government for doing exactly what the House had asked it to do. In April Mr. Higinbotham announced to the House the formation of a Government by Mr. McCulloch.

A general election took place in 1871, and Mr. Higinbotham offered himself for re-election for Brighton. Great as was his ability and the esteem in which he was personally held, Mr. Higinbotham had estranged from himself the political sympathies of many of his former supporters by the extreme radical opinions he expressed, especially in regard to the relations of the colonies with Great Britain, Nevertheless, it was expected as a matter of course that he would be returned practically unopposed for Brighton, with which he was connected by property and residence, and where his private virtues were best known. It was only at a late period in the campaign that a second candidate stepped into the breach and announced that he would contest the seat. This was Mr. Thomas Bent, who, up to the time of the election, occupied the position of electoral registrar for the district. Many people were unable to account for Mr. Bent's appearance on the scene, and the story is a peculiar one. It arises entirely from a little matter of personal pique. Not long before the election Mr. Bent had had occasion, in his official capacity, to interview Mr. Macpherson, who was the Chief Secretary. Mr. Macpherson failed to treat his visitor with the attention to which the latter thought himself entitled, and Mr. Bent went away feeling that he had been insulted, and resolved to make his way into Parliament and show Mr. Macpherson that he was not a person to be sat upon. Hence his appearance in the political arena as the opponent of Mr. Higinbotham. The two men were in almost every respect the antitheses of each other, and the contrast came out with almost ludicrous effect in their speeches to the electors. It was accordingly one of the surprises of the campaign when upon the day of election it was announced that Mr. Higinbotham had been defeated by 14 votes.

For nearly two years Mr. Higinbotham devoted himself mainly to his work at the bar. In May, 1873, Lieut.-Colonel Champ resigned his seat for East Bourke Boroughs, and Mr. Higinbotham was returned to the Legislative Assembly as a representative of that constituency. The principal measure before the Assembly was that known as the " Norwegian Scheme," which was a bill introduced by the Francis Government to enable the Council and the Assembly to sit together as a legislative body to consider any measure twice rejected by the Council. Mr. Higinbotham considered this a novel and un-English proposal, but was inclined to vote for it in the hope that the experiment would demonstrate the impossibility of making the two Houses work together satisfactorily. But he called upon the Government to especially exclude from the operation of the measure all money bills and bills containing provisions relating to money. When such a bill was passed, after having been once rejected by the Council, he would send it back to hon. members in another place, and would say to them, "You forced the Government to appeal to the people on this question, the decision of the people has been taken, it is embodied by the representatives of the people in this measure; accept it if you will, reject it if you dare, but alter it you shall not." Then came the retirement of Mr. Francis through ill-health, and the reconstruction of the Ministry, with Mr. Kerferd and Mr. Service at the head of it. In April, 1874, the House was sent to the country on the reform question, and Mr. Higinbotham was re-elected for East Bourke Boroughs. His speech at Brunswick, dealing mainly with the question of the Upper House, was full of all the fire and rhetorical power and the literary beauties which secured to his utterances the interest which they always commanded throughout the country. The Government declined to exclude money bills from the operation of their scheme, and Mr. Higinbotham voted against the third reading of the bill.

In the sessions which followed Mr. Higinbotham found himself completely out of touch with the chief parties in the Assembly, and his displeasure at the progress of political affairs increased as time went on. In the session of 1875-6 he told the Assembly that it had sunk deeply down in the estimation of its constituents, "There are some in this country," he said, "who are beginning to question the very foundations of our constitution, who are beginning to ask 'What is the use of responsible government, and what good can come out of this House?" He described party government as "a cursed system by which the party here (on the Opposition side of the House) strives to murder the representation of the party on that side (the Government side), and leaps over the dead bodies of murdered reputations on these (the Treasury) benches." Later on he declared that for 20 years all the members of that Assembly had been struggling for office, that they were largely influenced by personal jealousies and emulations, and that they were incapable of dealing in calm judgment with any important question affecting the welfare of the people. "We have nothing else to do now," he said, "but to criminate one another. We have become like common scolds in this house." In January, 1876, the famous "stonewall" was erected by the Berry party, with whom Mr. Higinbotham had been sitting. But he now declined to follow that party in what he considered to be an unconstitutional attempt on the part of a minority to coerce the majority of a deliberative Assembly. It was inconsistent, he held, with the principles which lay at the foundation of all deliberative action and of political society itself. Unable thus to work harmoniously on either side in the struggle which was taking place, he resolved to quit political life, with which he seemed to have so little sympathy. In February he announced his decision to the electors, and the seat was filled by the election of a pronounced "Berryite."

As Chief Justice of the colony it would have become Mr Higinbotham's duty in the ordinary course of events to act as administrator of the Government during any temporary absence of the Governor. But from the outset it was seen that his peculiar views as to the constitutional functions of the Governor might lead to difficulty, and when Sir Henry Loch was about to visit England on leave in 1889 the Chief Justice was not appointed to administer the Government. A correspondence had previously taken place between Sir Henry Loch, the Secretary of State for the Colonies (Lord Knutsford), and the Chief Justice, which was of a very long but interesting character. The Chief Justice was asked, through Sir Henry Loch, to state unofficially, for the information of Lord Knutsford, his opinion on the subject of the instructions from time to time given to the Governors of Victoria and other Australian colonies. The Chief Justice, in his reply, stated that he willingly complied with the request, although at the same time he did not address Lord Knutsford as Secretary of State, but merely as "an English politician interested in colonial affairs." He wrote, too, as a private individual whose views were not then generally accepted by, or even known to, any considerable section or class of the population. "I cannot affirm," he said, "that they are at this moment intelligently approved of, or intelligently dissented from, by a dozen persons out of the whole population of Victoria." He then proceeded to state at length his objections to what he regarded as the interference of the Colonial Office in local affairs. He contended that by continuing the issue of instructions to governors on practically the same lines as had been adopted when New South Wales was a Crown colony, the Home authorities had consistently and persistently refused to take note of the vital change made in the public laws of the Australian colonies by the Constitution Act of 1854-5. In particular he stated that they pretended to confer powers and authorities which had been already conferred with others by the constitution statutes. They declined to recognise the dual character of the Governor, and applying a misleading title to the advisers of the Governor in one of his two characters they affected to ignore altogether the existence of responsible government. He asserted further that the instructions generally had been maintained in their present form solely with the intention of enforcing the claim of the Colonial Office to control the Governor. In a later communication the Chief Justice intimated that if appointed Administrator of the Government in this colony he would, as an officer of the Imperial Government, communicate with the Secretary of State upon subjects of Imperial interest, but that he would not communicate with the Secretary of State, nor permit the Secretary of State to communicate with him on local subjects – that he would not, for instance, report a change of Ministries, or a dissolution or prorogation or meeting of Parliament. The result of these communications was shown by the appointment of Sir William Robinson as Acting Governor during the interregnum. In July of the present year a new set of instructions was issued to the Governor under the Queen's sign manual, to take the place of those to which such strenuous opposition was offered by the Chief Justice, but the modifications were not nearly extensive enough to meet his views. A few weeks ago His Excellency the Governor announced his intention of taking a few weeks' holiday for the purpose of visiting the other colonies, and it was announced from the first that Mr. Justice Williams would probably be asked to act as Administrator of the Government during His Excellency's absence. This rumour attracted the attention of the Chief Justice, who feelingly intimated to Mr. Justice Williams that so far as he was concerned he would make no assertion of his own claims to the appointment.

One of the greatest public undertakings with which the name of Mr. Higinbotham will be associated in the history of the colony is that of the consolidation of the statute law. He commenced the work when Attorney-General in 1864-5. At his initiation and chiefly by his labours the then chaos of colonial acts was reduced to order. Prior to 1864 the statutes of the colony were contained in two volumes, known as Adamson's editions, and additional volumes of acts which had been published subsequently. Since the establishment of the Victorian Legislature over 509 acts had been passed or adopted from English legislation, of which it will be necessary to retain between 370 and 400, and Mr. Higinbotham succeeded in reducing this mass of law into between fifty and sixty acts, dealing with as many subjects. In the chapter on codifica-tion, in his work on jurisprudence, Dr. Hearn says:-" I write from abundant personal knowledge when I testify to the extra-ordinary amount of labour and care that, in the midst of many pressing occupations, Mr. Justice Higinbotham then personally gave to the work of consolidation and to the benefit his labours have conferred both upon the public and upon students of law," In 1890, 20 years after the first consolidation, Mr. Justice Higinbotham was specially commissioned by Parliament to bring the consolidation of the statute law up to date. By this time the number of Separate acts had increased to nearly 1,200, and Mr. Justice Higinbotham had the assistance in his laborious task of Mr. Donald Mackinnon and Mr. F. H.. Mackay, who did valuable work as draftsmen. The statutes were reduced into 107 bills, and were accepted by both Houses of Parliament and passed through all their stages without discusssion or amendment. The question of rewarding Mr. Justice Higinbotham for the work he had done in this respect was mooted, but he declined to receive any pecuniary return, and the thanks of the community were tendered to him in a manner much more gratifying to his feelings. Resolutions were passed by both Houses expressing their high sense and appreciation of the services rendered to the people by the Chief Justice in carrying out the great work of consolidating the statute law, and on one memorable day in December, 1890, his Honour attended both Houses to receive the thanks of Parliament. In his reply, thanking the Houses for the votes, the Chief Justice urged that the work of consolidation should be continued systematically, and that some attempt should be made at the consolidation of the whole body of the law of which the statutes which he had assisted to consolidate formed a very small part. A large portion of our law was unnecessarily cumbrous in form, inexact in expression, wanting in uniformity in the use of terms, and containing provisions not always easy to be reconciled with one another. "The laws which are intended to govern the action of a free people," he said, "should not be open to cavil or to overthrow and defeat, as indeed they often are upon grounds like these."

The late Chief Justice on his retirement from politics devoted himself exclusively to his practice at the bar, at which he had already made a name. In the early days of his professional career he was the link between the older generation of eminent jurists and the men who lead the Victorian bar to-day. When he commenced practice the leaders of the bar as advocates were Mr. Richard Ireland, Q.C., Mr. Dawson, Mr. B. C. Aspinall, and Mr. (now Sir Archibald) Michie; while the pleadings were principally entrusted to Mr. Fellows, afterwards raised to the bench; Mr. Harris, who died in Tasmania; Dr. Mackay, and Mr. Higinbotham. On the annihilation of the old brigade, either by elevation to the bench or death, Mr. Higinbotham found himself somewhat suddenly in the position of leader of the bar, in so far that up to that period he had confined himself largely to pleading. The decadence of Mr. Ireland, the death of Mr. Dawson and Mr. Aspinall, and the semi-retirement of Sir Archibald Michie left Mr. Higinbotham, Mr. Fellows, Mr. C. A. Smyth, and Mr. G. P. Smith as the surviving members of the older generation of advocates. It was after Mr. Fellows's elevation to the bench that Mr. Higinbotham became the recognised leader of the bar, and for a long time he was opposed in practice by men none of whom took any prominent lead. The fact of Mr. Smyth being to some extent weighted by his official duties, the death of Mr. G. P. Smith, and Mr. (now Sir Henry) Wrixon's resolution to devote himself chiefly to politics left Mr. Higinbotham, with Mr. Purves, Dr. Madden, and Mr. Molesworth (now a judge) as his confreres, amongst the advocates, Mr. Williams and Mr. Hodges, both now on the bench, being the chief pleaders. The more notable period in Mr. Higinbotham's career as an advocate lay between the elevation of Mr. Justice Fellows and his own acceptance of the judicial office. During that period he was engaged on almost every leading case.

From the time the late Mr. Higinbotham gave up literary pursuits and took to the active practice of the law he was a foremost man in the eyes of the profession, his chief characteristics being extreme conscientiousness, while he was certainly one of the most minute thinkers and workers who ever graced the Victorian bar. To such an extreme was this principle carried that his briefs were invariably expanded and epitomised in the form of a genealogical tree, the arguments being committed with immense care to paper, in marked contradistinction to the practice of most of the men whom he then met at the bar. His forensic work bore, also, the unmistakable stamp of thorough preparation. He was always regarded as one of the best advocates in Australia in what is known to the profession as a good case, viz., a suit in which he was thoroughly convinced that he was fighting for the right. This trait in Mr. Higinbotham's judicial character was, indeed, so widely known that for a long time attorneys refrained from briefing him in leading cases where there was room to doubt the justice as opposed to the legality of the position. An illustration of his lofty view of the responsibilities of an advocate was afforded during the progress of a case of great magnitude in which he was engaged. After the case had been on for some weeks Mr. Higinbotham suddenly discovered that certain steps had been taken on behalf of his clients of a more than doubtful nature. He at once demanded an explanation, and none satisfactory being offered he at once resigned his brief, and the case was conducted to its close by another counsel. On only one occasion did he appear in the criminal courts, and then purely out of sympathy for an old fellow-worker on the press – this being in the well-remembered Supple case, where the plea of insanity was ably and eloquently advanced. Mr. Higinbotham, however, was in no way either qualified by disposition or style for that particular branch of the profession. Amongst his fellow members of the bar the only feeling towards him was that of esteem, and during his long practice no instance ever occurred of his mixing up private predilections with his professional obligations. It was for long an open secret at the bar that he was averse to accepting a judgeship, mainly because of the attitude assumed towards him in the course of his practice by particular members of the then bench, and his professional brethren were very much astonished to find afterwards that those obstacles could be removed, and that Mr. Higinbotham in the zenith of his fame as a counsel should accept a judgeship. In succession to the late Mr. Justice Fellows, he was appointed to the bench in July, 1880, by his old friend Mr. Service, then Premier, and the selection was universally commended. In 1886, on the retirement of Sir William Stawell, Mr Higinbotham, who was then senior puisne judge, was promoted to be Chief Justice.

His conduct on the bench was an emphasised reflex of his career as an advocate. No more careful, more punctilious, or more scrupulously accurate man ever held the judicial office. To such an extent, indeed, was this trait in his judicial character dominant that many of the delays in legal process which were at one time a matter of complaint were attributed to it. With this extreme caution, however, was associated an attitude of the utmost courtesy to those with whom he came in contact, save in exceptional cases where he considered the dignity of the judicial office in any degree infringed. As an illustration, it may be mentioned that he on several instances rebuked witnesses for appearing in court in an unsuitable garb, while others who assumed a careless or indolent position in the witness-box found themselves suddenly the victims of grave judicial censure, one witness thus once severely admonished for a lounging attitude in the box being a leading medical man in Collins street. On another occasion a member of the police force, giving evidence in mufti, was asked by his Honour why he did not appear in uniform. He replied that he was only permitted to wear uniform on duty, when he was informed by the Chief Justice that the duty he was then engaged in was the highest any man could undertake, and it was made a point of insistence that police-men should wear uniform in giving evidence. The late Chief Justice carried the custom of note-taking on the Bench almost to excess. On one occasion, when in consultation with leading members of the bar on the subject of the delays in the courts, the then leader of the bar ventured to submit that his Honour's practice of complete note-taking was in some measure responsible for it; but the Chief Justice, with characteristic firmness, declined to admit this as being in any way an excess of caution, or in any measure responsible for the delay. His attitude towards other members of the bar was ever a model of judicial etiquette, and when the quicker minds of some of his more impulsive brethren threatened to disturb the judicial calm, his studious politeness on all occasions had the effect of restoring the balance. As a judge, his demeanour towards the bar – although on many occasions sorely tried – was invariably that of extreme consideration. Perhaps the strangest characteristic of the late Chief Justice was that one who in politics was a quondam democrat and a leveller of public thought and sentiment should, when elevated to the bench and surrounded by the insignia of office, become one of the severest champions of the forms and ceremonials of the law ever seen on the Victorian bench.

Among other public matters with which the Chief Justice was connected subsequent to his elevation to the Bench was that of the Centennial International Exhibition of 1888. His Honour was appointed president of the Exhibition Commission, but resigned the position after the lapse of a few weeks, owing to a difference of opinion between himself and his brother commissioners as to the functions of this president. His retirement from the undertaking was very much regretted. A more debatable step, was taken by the Chief Justice in connection with the great shipping strike of 1890. At a time when the trades had already declared their intention of leaving Melbourne in darkness by stopping the gasworks, and a period of mob rule was feared, the Chief Justice's strong sympathy for the cause of labour led him to address the following letter to the Trades-hall Council:
"The Chief Justice presents his compliments to the president of the Trades-hall Council, and requests that he will be so good as to place the amount of the enclosed cheque of £50 to the credit of the strike fund. While the united trades are awaiting compliance with their reasonable request for a conference with the employers, the Chief Justice will continue for the present to forward a weekly contribution of £10 to the same object."

The cheque for £10 continued to be forwarded regularly to the Trades-hall Council for a period of some 15 weeks, when the strike came to an end without a conference.

Early in August, 1883, Mr. Higinbotham delivered a lecture on religious subjects, which was the proximate cause of much turmoil. He had been asked by the Rev. (now Dr.) Charles Strong, who was then the minister of the Scots Church, to lecture to the congregation, and he chose as a fit theme for the occasion the subject of "Science and Religion." It need hardly be said that the late judge's utterances on such a topic were not calculated to smooth over the ecclesiastical differences which at that time were manifest in the Presbyterian denomination. As a matter of fact, a considerable portion of his address consisted of a polemic against the churches, whose isolation and division he described in powerful language, urging, at the same time, that the warring denominations should be united on the basis of simple faith, which would appeal more strongly to the intellect of the educated classes. He argued that the churches, competing against each other and closing their creeds as far as possible against scientific teachings, were losing their influence over the whole community, and that they could only check this tendency to indifference by relaxing and modifying their doctrines. Mr. Higinbotham, however, did not pretend to expect any change on the part of the ecclesiastical authorities. It was for the "laymen," he said, "to cast out from their own minds and from the Christian churches the spectres of old and now discredited fallacies." If this were done, he declared that God would be "revealed anew to the intellect and also to the responsive human heart as the Father, the Friend, the Guide, and the Support of our race, and of every member of it, in the simple but profound philosophy, and also in the sublimest life of Jesus of Nazareth." To this lecture an answer was afterwards given by Dr. Moorhouse, who is now the Bishop of Manchester. But its delivery had a remarkable effect on the Presbyterian Church. The Melbourne Presbytery had already been troubled by accusations of heresy directed against the Rev. Charles Strong. Almost as soon as Mr. Higinbotham's lecture was reported complaint was made because Mr. Strong had allowed it to be delivered in his church, and had permitted it to pass without any further remark than that he disagreed in many points with the speaker. The Presbytery was soon at work. In September a committee reported that the lecture belittled or contradicted such doctrines as the Divinity of Christ, the creation, the fall of man, and other dogmas of the Westminster Confession. Notice was duly given that a charge would be laid against Mr. Strong on these points as particeps criminis. At this time Mr. Strong resigned his church, with which he had been connected for eight years, and announced his intention of returning to Scotland. But his resignation hardly affected the case. The question at once arose as to whether the church in the colony could give him a clean bill of theological health. This matter was finally referred to the General Assembly. Mr. Strong had staunch friends in the church courts, and various negotiations were attempted; but, as he refused to answer questions, the majority simply declared that he was no longer a member of the church, and refused him the usual certificate. Such was the most important event that followed upon Mr. Higinbotham's eloquent appeal for enlightenment in the churches.

References to the death of the Chief Justice were made in a number of the metropolitan places of worship yesterday. The Bishop of Melbourne, who preached at St. Paul's Cathedral, spoke as follows at the morning service:-"Before concluding, I desire to pay my tribute of respect to the memory of that eminent man, Chief Justice Higinbotham, of whose sudden departure hence I have lately been informed. There is no greater blessing for a young community like this than that its laws should be administered by able and upright judges, men of truth, hating covetousness. When we call to mind the names of Sir William A'Beckett, Sir W. F. Stawell, Sir Robert Molesworth, and the Chief Justice, whose death the country now deplores – men who so administered our laws as to render them a terror to evil-doers, and a tower of strength to peaceable and orderly citizens – we may well say, 'Hitherto hath the Lord helped us.' It is also our duty and our interest, as at all times so especially at the present time, to beseech Almighty God that there may never be lacking a due supply of fit persons to serve Him in these high offices of state."

At Christ Church, South Yarra, the Rev. Horacce Tucker, M.A., in his morning sermon yesterday, said:-"The men of mark and power who have preceded us in this country have shown how much can be effected by a single generation in one lifetime. Another of that band of pioneers who have set their stamp indelibly on this community has suddenly, as with the old year, gone from us – a " still strong man " of high principle, resolute bearing, brilliant intellect, and great persuasive eloquence; simple, truthful, and honest to a fault, if that be possible; fearlessly independent and unconventional in thought, speech, and notion; devoted – almost passionately – to the cause of justice and freedom; one who, though breaking latterly with characteristic impetuosity from traditional modes of expression, lived the life the very highest faith suggests the warmest of friends, the most honourable of foes, the most affectionate and tender of husbands, father, brothers – such was he whose sudden summons from dignified labour to another bar deepens the sense of loss and regret inevitably associated with the close of an old year, especially of such a one as that which has passed already, and bidding us work while it is day, not knowing when for us the night cometh when no man can work. Sorrow for those so suddenly bereaved added intensely to the feeling with which we watched the old year of loss and change pass away and the cloud-wrapped young year come in."

The Rev. A. Marshall, of Scots Church, in the course of his Sermon at the forenoon service, remarked as follows:– "The year of gloom has closed, and in its cruel closing moments has robbed the community of one of her most gifted sons and our halls of justice of their head and ornament.''

The Rev. Dr. Bevan, at the Collins-street Congregational Church, last night, feelingly alluded to the unexpected and lamented death of Chief Justice Higinbotham, to whose high character and influence he paid a warm, but brief eulogy, reserving a more extended notice of the Chief Justice's life and character to next Sunday night, when Dr. Bevan will make it the subject of a Special address to young men.

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'Higinbotham, George (1826–1892)', Obituaries Australia, National Centre of Biography, Australian National University,, accessed 20 July 2024.

© Copyright Obituaries Australia, 2010-2024

George Higinbotham, by Johnstone, O'Shannessy &​ Co

George Higinbotham, by Johnstone, O'Shannessy &​ Co

State Library of Victoria, 49218616

Life Summary [details]


19 April, 1826
Dublin, Dublin, Ireland


31 December, 1892 (aged 66)
South Yarra, Melbourne, Victoria, Australia

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