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The Dictionary of Australasian Biography/Boothby, His Honour Benjamin

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Boothby, His Honour Benjamin, sometime Judge of the Supreme Court of South Australia, son of the late Benjamin Boothby, was born at Doncaster in Yorkshire on Feb. 5th, 1803. He was called to the bar at Gray's Inn in 1825, and became Revising Barrister for the West Riding of Yorkshire, and Recorder of Pontefract. In Feb. 1853 he was appointed Second Judge of the Supreme Court of South Australia, and was sworn in on Oct. 17th, 1853. Soon after his arrival he manifested a dislike to colonial enactments, which he did not attempt to conceal. The words " "ultra vires" and "repugnant" constantly figured in his judicial pronouncements, and he protested from the bench against the validity of the appointments of his colleagues, Chief Justice Hanson and Mr. Justice Gwynne. Twice the Parliament passed addresses for Mr. Justice Boothby'a removal from the bench, but in vain. He had warm defenders in Parliament, and one ministry resigned on account of differences of opinion in the Cabinet with regard to the action to be taken. Some of his decisions against the validity of the South Australian statutes were confirmed on appeal to the Privy Council, and this greatly encouraged him in his warfare against things colonial. Several validating Acts were passed by the Imperial Parliament to give force to the South Australian laws or remove doubts concerning them. Still the judge was not more practicable. Suitors suffered seriously from delays and obstructions in the Supreme Court, and at last business in that tribunal was brought into such a condition that it was necessary for the Executive to take decided action. Several years before Mr. Justice Boothby arrived in the colony grand juries had been abolished, Parliament regarding them as useless. Soon, if not immediately, after his arrival the judge expressed his strong disapproval of this innovation; but still he tried prisoners without grand juries for about thirteen years, and then, at a particularly heavy criminal sittings, declared that the accused persons on the calendar could not legally be tried without a grand jury. They were all kept in gaol or had their bail renewed, as the case might be, till the next criminal sittings, when another judge tried them. This was the occasion of the second unsuccessful Parliamentary Address to the Queen for Mr. Justice Boothby's removal. He was not allowed to preside at a criminal sitting again; when his turn came round he was prevented, by a special commission to the Chief Justice directing him to try prisoners. In 1867 the patience of the Judicial Bench, the bar, and the colonists was exhausted. Charges were made against Mr. Justice Boothby of obstructing the administration of justice, and of unseemly conduct on the bench, as exhibited in his demeanour towards his colleagues and towards counsel. These charges were dealt with by the Executive Council under the authority of an Act of George III., the Governor presiding, and the judge was "amoved." The Crown Solicitor, Mr. Wearing, who was afterwards drowned in the wreck of the Gothenburg, in Torres Straits, was appointed to succeed him. Out of all this trouble, observes Mr. J. P. Stow (whose account has been quoted) some benefit accrued to the colony: the amoved judge accurately ruled that, owing to some omission in bringing the new constitution into force, the Legislative itself was invalid, and the defect was remedied by the Imperial Parliament. The repugnancy nuisance was effectually disposed of. Nothing can now be ruled repugnant unless it is so to an Imperial Act specifically applying to the colonies. The last Imperial Validating Statute was of a most comprehensive character. With the above exception no Colonial Act can be ruled invalid after receiving the Queen's assent, or after proclamation that she has not exercised her power of disallowance. The greatest inconvenience and alarm was caused in the year 1865 by the decision of the majority of the judges—namely, Justices Boothby and Gwynne—that the South Australian Legislature had no power to establish Courts of Judicature. This invalidated all the local courts of the colony, they having jurisdiction in civil cases up to £100, and the Insolvency Court. The Imperial Validating Act, however, settled this difficulty, greatly to the relief of suitors in particular, and the public generally. The powers of the Local Court of Appeal were enlarged by an Act of the South Australian Parliament, passed in 1861. This anomalous tribunal, consisting of the Executive, of whom nearly all are laymen, owes its continued existence to the recollection the colonists have of the "repugnancy" and "ultra vires" troubles. Judge Boothby died on June 21st, 1868, whilst on the point of leaving for England to initiate an appeal to the Privy Council.