Benjamin Boothby (5 February 1803 – 21 June 1868) was a South Australian colonial judge, who was removed from office for misbehaviour, one of four Australian supreme court judges removed in the 19th century. 01312 Macquarie Law Journal 21. Boothby was born in

Doncaster Doncaster (, ) is a city in South Yorkshire, England. Named after the River Don, it is the administrative centre of the larger City of Doncaster. It is the second largest settlement in South Yorkshire after Sheffield. Doncaster is situated in ...

Yorkshire Yorkshire ( ; abbreviated Yorks), formally known as the County of York, is a Historic counties of England, historic county in northern England and by far the largest in the United Kingdom. Because of its large area in comparison with other Eng ...

. He assisted Sir Thomas Wilde in his electoral campaigns and read in his chambers. He was called to the Bar at

Gray's Inn The Honourable Society of Gray's Inn, commonly known as Gray's Inn, is one of the four Inns of Court (professional associations for barristers and judges) in London. To be called to the bar in order to practise as a barrister in England and Wale ...

in 1825. In 1853, Boothby was appointed a Judge of the

Supreme Court of South Australia The Supreme Court of South Australia is the superior court of the Australian state of South Australia. The Supreme Court is the highest South Australian court in the Australian court hierarchy. It has unlimited jurisdiction within the state in ...

. This was the last appointment of a South Australian judge by the

Colonial Office The Colonial Office was a government department of the Kingdom of Great Britain and later of the United Kingdom, first created to deal with the colonial affairs of British North America but required also to oversee the increasing number of col ...

. Boothby, in a series of judgments, adopted a pedantic approach to Imperial Law, holding a number of South Australian statutes invalid, including the Real Property Act 1857, which introduced the

Torrens system Torrens title is a land registration and land transfer system, in which a state creates and maintains a register of land holdings, which serves as the conclusive evidence (termed " indefeasibility") of title of the person recorded on the regist ...

of land registration in South Australia. Boothby also asserted that the

Parliament of South Australia The Parliament of South Australia is the bicameral legislature of the Australian state of South Australia. It consists of the 47-seat House of Assembly ( lower house) and the 22-seat Legislative Council (upper house). General elections are ...

had not been validly constituted since the enactment of the Constitution Act 1855–56. In 1865, partly in response to the approach taken by Boothby, the Imperial Parliament passed the

Colonial Laws Validity Act The Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63) is an Act of the Parliament of the United Kingdom. Its long title is "An Act to remove Doubts as to the Validity of Colonial Laws". The purpose of the Act was to remove any apparent inco ...

, confirming the authority of the colonial Parliament to pass legislation different from that passed by the Imperial Parliament. However, Boothby continued to create difficulties, refusing to acknowledge the authority of the

Attorney-General In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general. In some jurisdictions, attorneys general also have exec ...

and challenging the legality of the appointments of the other two Judges of the Supreme Court on the supposed basis that only British-trained (in England, or Ireland; rather than in Australia)

barrister A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching law and ...

s could be appointed. Proceedings were commenced to remove Boothby from office on the ground of misbehaviour. The charges were found proved and the Judge was "amoved" on 29 July 1867. Boothby took formal steps to appeal this decision to the

Privy Council A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...

, but died before the appeal was heard.

Family

Justice Benjamin Boothby (5 February 1803 – 21 June 1868) married Maria Bradbury Robinson (c. 1807 – 18 June 1889) in May 1827, lived at "The Glen",

Glen Osmond Glen Osmond is a suburb of Adelaide, South Australia in the City of Burnside which is in the foothills of the Adelaide Hills. It is well known for the road intersection on the western side of the suburb, where the South Eastern Freeway (National ...

, later a

Passionist The Passionists, officially named Congregation of the Passion of Jesus Christ (), abbreviated CP, is a Catholic clerical religious congregation of Pontifical Right for men, founded by Paul of the Cross in 1720 with a special emphasis on and de ...

monastery. Their fifteen children included: *Anna Robinson Boothby (c. 1828 – 13 November 1903) married Basil Robertson Lethem (c. 1822 – 17 March 1885), lived in Brisbane. * William Robinson Boothby CMG (26 September 1829 – 12 July 1903), Electoral Commissioner from 1856 to 1903. He married Frances Elizabeth Lawrence ( – 29 August 1922) on 23 June 1863; their children were: :*Laurie Boothby (1 April 1864 – 4 March 1891) died at "Peynell", Mount Lofty. :*Frances Leila Boothby (19 December 1867 – 12 July 1935) married cousin Hugo Boothby on 15 June 1899, lived at 155

Strangways Terrace Strangways Terrace is a street in North Adelaide, South Australia. It is the southwestern boundary between the built environment and the Adelaide parklands including the Adelaide Golf Links. Strangways Terrace is named after Thomas Bewes Stran ...

North Adelaide North Adelaide is a predominantly residential precinct and suburb of the City of Adelaide in South Australia, situated north of the River Torrens and within the Adelaide Park Lands. History Surveyor-General Colonel William Light of the colo ...

. :*Brinsley Charles Boothby (18 September 1865 – 1941) solicitor in partnership with brother F. Brooke Boothby, lived on Malvern Road, Toorak, married Edith Blanche Jerrard on 12 December 1899. :*Ellen Constance "Connie" Boothby (11 April 1870 – ) married George K. B. Norman ( – ) of

Manningtree Manningtree is a town and civil parish in the Tendring district of Essex, England, which lies on the River Stour. It is part of the Suffolk Coast and Heaths Area of Natural Beauty. Smallest town claim Manningtree has traditionally claimed to b ...

, Essex on 14 April 1909 :* Brooke Boothby (11 February 1878 – 1941) married May Begg ( – ) of Beaconsfied WA on 8 July 1903. He was solicitor in partnership with Brinsley Charles Boothby as Boothby and Boothby, 408 Collins Street, Melbourne. *Benjamin Boothby CE (18 February 1831 – 13 August 1883), a civil engineer, married Mary Ann Warland (c. 1841 – 15 May 1925) on 1 December 1859; they had six sons and at least one daughter: :*Osbert Boothby (15 September 1860 – ) married Margaret Agnes Walter of Brisbane on 16 January 1894. :*Hugo Boothby (1863 – 24 July 1954) married cousin Frances Leila Boothby on 15 June 1899. He was an officer with the Supreme Court. :*Theodric "Theo" Boothby (1864 – 17 June 1932) married Elizabeth "Bessie" Uppington ( – ) on 18 April 1911, lived in England :*Leofric Boothby (1869–1937) married Mary Amelia Phillips in 1902 :*Ralph Boothby (c. 1871 – 16 July 1945) married Annie Florence Nottage (c. 1871 – 28 May 1950) on 23 September 1896 :*Gilbert Boothby ( – c. December 1946) was Shire Clerk,

Toowoomba, Queensland Toowoomba ( , nicknamed 'The Garden City' and 'T-Bar') is a city in the Toowoomba Region of the Darling Downs, Queensland, Australia. It is west of Queensland's capital city Brisbane by road. The urban population of Toowoomba as of the 2021 C ...

:*Mary Elizabeth Boothby (3 December 1883 – ) married Wilfred Ernest Ashenden ( – ) on 23 March 1926 * Gilbert Boothby (c. 1832 – 23 September 1892) businessman with Turnbull, Boothby & Little, agent for Norwich Union Fire Insurance Society and consular agent for Italy. *George Boothby (c. 1835 – 1 July 1893) died at "The Glen", Glen Osmond. He was Adelaide manager of the Commercial Union Assurance Company and auditor and life member of the Zoological Society. * Josiah Boothby CMG (8 April 1837 – 12 June 1916) married Susannah Hinds Lawrence (4 July 1838 – 17 November 1921) on 10 October 1861; they had one son and four daughters. :*Ethel Susie Boothby (30 June 1862 – ) :*Reginald Klingender Boothby (20 September 1864 – 16 October 1904), customs agent, married Bessie Thomson on 1 December 1887, lived 48 Barnard street, North Adelaide. :*Mabel Frances Boothby (5 July 1866 – 14 October 1944), co-founder and longtime secretary of the SA chapter of

Alliance Française An alliance is a relationship among people, groups, or states that have joined together for mutual benefit or to achieve some common purpose, whether or not explicit agreement has been worked out among them. Members of an alliance are called ...

, was a noted painter and author of "Autobiography of a Kookaburra". :*(Edith) Minnie Boothby (5 November 1869 – 30 October 1948) lived at 158 Barnard Street, North Adelaide :*Alice Nina Boothby (14 July 1871 – 4 December 1944) *Elizabeth L. Boothby (c. 1838 – September 1908) inherited "The Glen" and sold it to the Passionist Fathers January 1896, renamed St. Paul's Retreat. *

Thomas Wilde Boothby Thomas Wilde Boothby (9 December 1839 – 19 June 1885), This reference, alone, spells his middle (preferred) name "Wylde". generally known by his full name, or as "T. Wilde Boothby", was a politician in the British colony of South Australia. H ...

(9 December 1839 – 19 June 1885), pastoralist and parliamentarian, married Mary Agnes Hodding (1843 – 16 July 1907) on 10 March 1864. Their children included: :* Guy Newell Boothby (13 October 1867 – 26 February 1907) private secretary to mayor, successful author in England. He also he wrote ''libretti'' for two comic operas ''Sylvia'' (1890, Adelaide) and ''The Jonquil'' (1891). :*Benjamin "Ben" Boothby (28 January 1870 – ), companion on Guy's journeys, was also a writer of popular fiction and completed several of his brother's unfinished stories. and illustrated others. He was in business as land agent of

Bloomsbury Bloomsbury is a district in the West End of London. It is considered a fashionable residential area, and is the location of numerous cultural, intellectual, and educational institutions. Bloomsbury is home of the British Museum, the largest mus ...

, London. :*youngest son Robert Cecil Boothby (7 July 1872 – ) married Constance Ellen Miall ( – ) on 2 June 1906. He was stockbroker of

Sydenham Sydenham may refer to: Places Australia * Sydenham, New South Wales, a suburb of Sydney ** Sydenham railway station, Sydney * Sydenham, Victoria, a suburb of Melbourne ** Sydenham railway line, the name of the Sunbury railway line, Melbourne ...

, Kent. Mother and two sons left Australia in January 1874 *James Henry Boothby (c. 1841 – 7 December 1920) married (Harriet) Emma Wilson (c. 1856 – 8 December 1885), daughter of Rev. Yelverton Wilson, on 10 December 1874, settled at "Nalang",

Tatiara, South Australia Wolseley (formerly Tatiara) is a small South Australian town near the Victorian border. It is five kilometres south of the Dukes Highway and 13 kilometres east of Bordertown. It was first proclaimed a town in 1884. The 2016 Australian censu ...

, retired to "Nalang",

Malvern, Victoria Malvern () is a suburb of Melbourne, Victoria (Australia), Victoria, Australia, 8 km south-east of Melbourne's Melbourne city centre, Central Business District, located within the City of Stonnington Local government areas of Victoria, loca ...

. He was stock inspector with Dalgety & Co., and wrote a series of historical articles for ''The Register''. :*Elsie May (17 February 1878 – 5 September 1891) :*J(ames) Noel Boothby ( – June 1919) married Marion "May" Parker ( – 1 August 1929) on 14 October 1914, lived at "Currajong",

St. Kilda, Victoria St Kilda is an inner seaside suburb in Melbourne, Victoria, Australia, 6 km (4 miles) south-east of Melbourne's Central Business District, located within the City of Port Phillip local government area. St Kilda recorded a population of 19, ...

. *Maria Robinson Boothby (c. 1843 – 25 July 1903) married Alfred William Howitt DSc of Omeo, Victoria on 18 August 1864, lived in Sale, Victoria. Howitt was author of ''The Native Tribes of South-East Australia''. *Charles John Boothby (c. 1844 – 10 November 1854) *Jemima Robinson Boothby (c. 1845 – 5 January 1918) married Rev. Richard George Burke (c. 1845 – 24 May 1923) on 7 August 1879 *Alfred Frederick Boothby (c. 1850 – 22 February 1876) died at "The Glen", Glen Osmond

Family

References

Further reading