HIGINBOTHAM, George (1826-1892)

HIGINBOTHAM, George (1826-1892)
chief justice of Victoria
was born in Dublin on 19 April 1826. His father, Henry Higinbotham, was a merchant at Dublin who married Sarah, daughter of Joseph Wilson, a man of Scotch ancestry who had gone to America and became an American citizen after the War of Independence. He returned to Dublin as American consul. George Higinbotham was the youngest of eight children and was educated at the Royal School, Dungannon. Having gained a Queen's scholarship of £50 a year he entered Trinity College, Dublin, in 1844. He qualified for the degree of B.A. in 1847, after a good but not unusually distinguished course, and proceeded to London where soon afterwards he became a parliamentary reporter on the Morning Chronicle. He entered himself as a student at Lincoln's Inn on 20 April 1848, and on 6 June 1853 was called to the bar. On 1 December he left Liverpool for Australia on the Briseis and arrived at Melbourne on 10 March 1854.
Though the gold-fever was at its height Higinbotham did not go to the diggings, but began practising as a barrister and contributing to the press. On 30 September 1854 he was married to Margaret Foreman, and in August 1856 was appointed editor of the Argus in succession to Edward Wilson (q.v.) who wished to retire. Higinbotham held the position for nearly three years, when he resigned, finding that he could not reconcile his own opinions with the more conservative views of the proprietors. He had many qualifications for this work, but as one of his staff suggested he was too much of a solitary thinker and too little a man of affairs to be an ideal editor. He took up his practice as a barrister again, found his reputation growing, and in May 1861 was asked to stand for the Brighton seat in the legislative assembly. His policy included universal suffrage, assisted immigration, so long as it did not have the effect of lowering the wages of the working classes, and the continuance of the grant in aid of religion. He was elected without opposition, but a few weeks later parliament was dissolved and at the new election he refused to pledge himself to vote either for or against the government. Both government and opposition candidates stood and Higinbotham was placed second in the triangular contest. In the following, March there was a by-election and he gained the seat again as an independent candidate. In the house, though more often supporting the government than not, he still kept an independent course and his evident honesty was earning the respect of both parties. In June 1863 the O'Shanassy (q.v.) government was defeated, and the James McCulloch (q.v.) ministry was formed with Higinbotham as its attorney-general. This government was the most able Victoria had had and lasted five years. Higinbotham became a power in the cabinet, his ability could not be questioned, and his oratory increasing both in persuasiveness and fire had much effect in the house. In January 1865 the visit of the confederate cruiser the Shenandoah placed the government in a difficult position, and it has sometimes been assumed that the advice of Higinbotham as attorney-general must have been faulty in view of the subsequent arbitration proceedings going in favour of the United States. The voting, however, of the arbitrators was three to two, and one of the three appears to have given his decision with some hesitation. About this time began the long struggle between the legislative assembly and the legislative council concerning the powers of the upper chamber over money bills, which did not terminate until April 1866 when a conference of representatives of the two houses was held. Sir Charles Darling the governor had, however, in a dispatch forwarded in the previous December, used a phrase which suggested that he was allying himself with one of the parties to the dispute and was recalled. Higinbotham in his speech made in May 1866 on Darling's treatment declared that the real reason of his recall was that he had "assented to acts of his ministers which Mr Cardwell (secretary of state for the colonies) declares to be illegal". In another part of his speech he totally denied the right of the secretary of state to pronounce, in terms of authority, by virtue of his office, on the legality or illegality of the advice which the advisers of a responsible government tender to the governor. Higinbotham never abandoned this position, and his general attitude to the colonial office on this and similar questions was the real difficulty in later years when the question of appointing him lieutenant-governor came up. It was not a question of his loyalty to the crown, his real contention was that the secretary of state for the colonies should not be allowed to concern himself with the internal affairs of any self-governing colony.
In September 1866 a royal commission on education was appointed of which Higinbotham was made chairman. The work of the commission was done with great thoroughness and economy, and their recommendations were unanimous. Unfortunately one religious body had refused to be represented on the commission, and the feeling that arose caused the work that had been done to be nullified for the time being. In July 1868 McCulloch became premier again, but Higinbotham would accept only a subordinate position in the cabinet. He became vice-president of the board of land and works without salary. In February 1869 he resigned that position and never held office again. Later on in the year, in response to a request that representatives of the colony should be sent to a conference on colonial affairs in London, Higinbotham moved and succeeded in carrying five resolutions declining to send representatives, and repeating his views that the internal affairs of a colony are its own concern and that the colonial office should only look after matters that effect the whole empire. A year later at the election held in March 1871 Higinbotham was defeated by 14 votes. It was a contest between a realist and an idealist. His opponent, Thomas Bent (q.v.), was a man who understood the art of looking after his own constituency. Higinbotham cared nothing for its special needs and thought only of the good of the whole colony. He welcomed his release from the bickerings of politics and for two years built up his position as a barrister.
In May 1873 he was invited to contest the East Bourke Boroughs seat and won by a good majority, and at the general election in April 1874 won the seat again. But early in 1876, disgusted with the waste of time caused by stone-walling, he resigned his seat. He was feeling too that party-government was a failure and he could not join in the constant struggle for office. He was now a leader of the bar on the common law side. In 1880 he was made a supreme court judge, in 1886 became chief justice and shortly afterwards he declined a knighthood. He accepted the post of president of the executive commission of the centennial international exhibition at Melbourne in 1888, but resigned after doing much preliminary work. His position in the community was a high one, and no man was held in more respect. In 1890, however, at the time of the great maritime strike, Higinbotham caused a sensation by sending £50 to the strike leaders with a promise of a further £10 a week while, as he phrased it, "the United Trades are awaiting compliance with their reasonable request for a conference with the employers". In the same year he completed the consolidation of the statute law of Victoria. He had begun the task in 1888, and in December 1890 was accorded the thanks of both houses of parliament. Beyond asking that he might be given a copy of the completed volumes he would accept no payment or reward. But he felt the strain of the extra work very much. During the last two years of his life he tried to conserve his strength but was obviously becoming very fragile. He died on 31 December 1892 and was survived by his wife, two sons and three daughters. He had a dislike of anything like pomp and ceremony and directed that his funeral should be private. He was buried at Brighton near Melbourne. His known modesty and objection to anything like ostentation was probably the reason why no public memorial to his memory was erected after his death. Some 40 years later Donald Mackinnon, who as a young barrister had been associated with Higinbotham in the consolidation of the statutes, left a bequest to provide funds for a memorial. A statue by Paul Montford (q.v.), erected close to the treasury building, Melbourne, was unveiled on 12 November 1937.
Higinbotham was below medium height but erect and strongly built. He had great sweetness of expression and perfect courtesy. As a politician he could not compromise, to him the course proposed was either right or wrong, and this rigidity made him difficult to work with. He would like to have had a parliament elected from the colony as one constituency with every member paid the same whether a member of the cabinet or not. In this way he hoped to prevent scrambling for office or working for money to be spent for the benefit of the member's district. His fight for self-government by the colonies was necessary because the colonial office took a long while to realize that it was no longer dealing with crown colonies. Even in Higinbotham's lifetime modifications were made in the instructions sent to the governors. But to Higinbotham's mind these modifications were not sufficient. When the possibility of his becoming acting-governor had to be considered he was asked what position he would take regarding the colonial office. He replied that he would communicate with the secretary of state upon subjects of Imperial interest, but he would not for instance report a change of ministry or a dissolution of parliament. It was seen that these views might lead to difficulties and he was never appointed.
Higinbotham had a great reputation as an orator. He had an excellent, clear voice and a somewhat slow delivery, which enabled him not only to finish his sentences perfectly, but to make full use of the dramatic pause. Yet though unhurried he spoke with such earnestness, with such telling phrases, such persuasiveness and restrained fire, that he could carry all before him. He was a good judge, dignified and painstaking. His conscientiousness sometimes slowed up the court, but if he had been aware of this it would have troubled him little, the important thing was that justice should be done. It has been suggested that he may not have been "a great technical lawyer. He could not lose sight of the object in the instrument". He had, however, a profound knowledge of case law, and, having twice consolidated the Victorian statutes, could have had no lack of knowledge of them too. He became a peoples' leader. Long before his attitude to the maritime strike was known this was recognized. Once an opponent at a large meeting in an industrial suburb was getting along successfully when he mentioned Higinbotham's name, and the cheering was continued so long that the orator found it difficult to get a start again. His consideration for everyone with whom he came in contact, whether he were a brother judge or the youngest messenger, became known. His quiet and usually anonymous charity, his devotion to duty, his complete honesty, could not remain hidden. His nobility of character has become a legend.
E. E. Morris, Memoir of George Higinbotham; H. G. Turner, History of the Colony of Victoria, vol. II; The Age, Melbourne, 2 January 1893; The Argus, Melbourne, 2 January, 1893 and 13 November 1937.

Dictionary of Australian Biography by PERCIVAL SERLE. . 1949.

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