1: Arrival in Victoria………………………………………………….. 1
2: Marriage and Career in Troubled Times……………..15
3: Reporting the Battle at Eureka……………………………. 30
4: A Philosophical Watershed…………………………………. 52
5: Awaiting the New Constitution…………………………… 68
6: The First Constitutional Crisis…………………………….. 85
7: Challenging the New Constitution……………………. 106
8: Higinbotham, Duffy and the Irish Legacy………… 120
9: The Argus, Duffy and the 1856 Election…………… 134
11: The Member for Brighton…………………………………170
12: Attorney-General George Higinbotham…………..188
13: The Struggle for the Public Purse…………………… 207
14: The Aftermath of the Struggle………………………… 228
15: Last Years in Parliament…………………………………. 245
16: Supreme Court Judge………………………………………. 263
17: Chief Justice Higinbotham………………………………..274
ARRIVAL IN VICTORIA
On 10 March 1854, the clipper Briseis, bearing both passengers and miscellaneous cargo, arrived in the new British colony of Victoria. It sailed through the heads into Port Phillip and cast anchor among a hundred or so other sailing ships that were riding at anchor in Hobson’s Bay, Melbourne. After leaving Liverpool on 1 December 1853, the ship had encountered light winds for much of the passage, and the voyage had been protracted to one hundred days. Among the passengers who alighted from that ship
was a young Irishman in his late twenties named George Higinbotham.
He was of small to medium stature. His fashionable side-whiskers were neatly trimmed. He had a full head of brown hair, large soulful eyes and an erect bearing. In his trunk he had certain possessions that had been his daily companions on the voyage. They included the astronomy books that he had studied to familiarise himself with the constellations visible in the southern hemisphere, the diary of the voyage that he had been keeping, and the quadrant that he had been using (to the irritation of Captain Brown) to gauge the ship’s longitude, and thereby to satisfy his own anxiety about the ship’s progress. Also in the trunk were his wig and gown, for he had been called to the Bar at Lincoln’s Inn in London and planned now to seek admission to practise at the Victorian Bar.
It was early autumn, a time when Victoria’s short hot summer givesway to relatively settled and pleasant weather. To the Aboriginal people who had lived in the area for fifty thousand years, this was Eel Season – a season of plenty. The starchy roots of the water plants were now at their best for harvesting. The short-finned eels, having gorged themselves upon the small aquatic life of the river system of the south-eastern corner of Australia, were now in great abundance as they migrated back towards the open sea. From here, those that survived the traps of the Aboriginal people would start their 4,000-kilometre journey to the spawning grounds of the Coral Sea. Like nearly all of the Europeans who had so recently arrived, Higinbotham knew nothing of the ancient rhythms of this land, for he saw the country through European eyes.
In June 1851, the Port Phillip District of New South Wales had become the separate colony of Victoria, with its own legislature and a constitution based closely on that of the parent colony. Higinbotham was one of thousands of immigrants who were streaming into Victoria following the news of the gold discoveries at Forest Creek, Bendigo, Ballarat, Beechworth and the Ovens district. Over the two years 1852–54, the white population of Victoria increased by about 144,000 people to a total of about 312,000. The newfound wealth had suddenly transformed a remote colonial outpost relying on the pastoral industry into a rapidly expanding settlement with Melbourne as its commercial and industrial capital.
But it was not gold that attracted George Higinbotham to Victoria. To him this new British colony was of particular interest for another reason. He was a lover of British and American history, and to him Victoria was the arena for a historic experiment in creating a new model British colony. This colony had a unique opportunity to embrace the benefits of a constitution based upon the soundest and most advanced political principles, and to achieve this without the bloodshed that had attended the birth of the
democratic polity in America. This was an opportunity to redeem the self-respect of the British Empire by showing that it had forever dispensed with the foolish and tragic policies that had first alienated and subsequently lost the American colonies to Britain eighty years previously.
In 1852, while Higinbotham had been working as a parliamentary reporter for the liberal London newspaper the Morning Chronicle, the staff had received the exciting news that the Fifth Duke of Newcastle, one of the proprietors of the newspaper, had been appointed Secretary of State for War and the Colonies. In line with his liberal principles, in August 1853 the Duke had invited the Governor-General of the Australian colonies, Sir Charles Augustus FitzRoy, to establish new constitutions that would prepare the Australian colonies for responsible government. This was a bold initiative, for many in the British press debated the wisdom of allowing responsible government in colonies, especially those with a large
population of convicts. As Victoria had never been a significant repository for transported convicts, Higinbotham hoped to find that its respectable citizenry would seize this golden opportunity to create a modern political system based upon respect for the traditional British institutions – the monarchy, the law and the church – yet enlightened with the liberal and democratic ideals that London’s Morning Chronicle and other progressive voices advocated.
Like many before him, Higinbotham made do at first with a tent in Canvas Town on the south bank of the Yarra River, but soon moved to a boarding house in Fitzroy, on the eastern fringe of Melbourne. Another immigrant to Melbourne at about this time described it is as follows;
It was then a thriving village, in the by-streets of which,
primeval trees or their stumps might still be seen, and
where huge chasms sometimes interrupted communications
between adjoining streets. The public buildings were ultra
provincial. The government offices were a two-storey villa,
the law offices occupied a vacant corn store, the Public
Works department was housed in a wooden shanty … The
Legislative Council met in a small brick building known as
St Patrick’s Hall … the ill-lighted streets were also ill-paved,
and the flag-ways made in patches or left unmade at the
option of the owners of adjoining property. On windy nights
one stumbled through some of the chief streets of Melbourne
from fragments of solid flagging into unexpected pools of
slush and mud.
It is likely that Higinbotham had brought with him from London a letter of introduction to Archibald Michie, a senior barrister and part-owner of the Melbourne Morning Herald. While working in London,
Higinbotham had formed an association with a mutual friend, Sir William Molesworth, Baronet, the Member for Southwark in the House of Commons. Molesworth was thirteen years older than Higinbotham, and supported the philosophy of Utilitarianism. He and his circle believed that it was the duty of the state to advance the welfare of the people. They agreed with many of the reforms advocated by the Chartists, but they rejected the confrontational strategies that the Chartists used to promote their cause. They envisaged that change would come through leadership of institutions such as Parliament and the press by men of education. Molesworth took a particular interest in the matter of self-government for the colonies. He did not accept that the devolution of responsible government would threaten loyalty to the British Empire, but rather argued that it would strengthen ties. The issue was highly topical as legislation regarding the Australian colonies was currently before the House of Commons.
Higinbotham’s arrival in Melbourne was well timed, for the Melbourne Morning Herald had recently advertised for a parliamentary reporter. His four years of experience in reporting debates in the House of Commons for the Morning Chronicle stood him in good stead, and within eight days of his arrival he was writing for the Herald. Also writing for the Herald was Butler Cole Aspinall, an Englishman four years younger than Higinbotham and a former colleague from the Morning Chronicle who had arrived in
Melbourne in late 1853. Like Higinbotham, Aspinall was a junior barrister who found journalism a convenient way of supplementing his income while he awaited legal briefs. He shared many of Higinbotham’s liberal views and wrote in a style characterised by a harsh kind of humour and satirical
In addition to Higinbotham and Aspinall, the Herald’s business manager Frederick Sinnett wrote occasional articles. Sinnett was a humourist who left the Herald in late 1854 to become the first editor of the Victorian edition of the satirical magazine, Punch. The Herald followed the widespread custom in the British Empire at that time for newspaper journalists to write anonymously. This was a useful strategy to circumvent the sedition and libel laws that served as a stern warning to journalists and newspaper proprietors about the consequences of expressing anti-government opinion. Aspinall, Sinnett, Michie and Higinbotham had moved in similar circles in London and shared similar views about constitutional principles, but despite this, their different writing styles and interests reveal four discernably distinct ‘voices’ in the editorials and leading articles of the Herald of the time.
The editorial team of the Herald were fearful that the historic and all-important constitutional process was being perverted by the naked self-interest of the great landowners and squatters, the government officials
and the intriguers of the Colonial Office. They believed that, unless this tendency was redressed, it would lead to strife, and possibly to revolution. Alarmed that ‘fearful mistakes’ were being made, and that inadequate time had been allowed for public consultation, they worked tirelessly to rouse the population to address the dangers that they perceived.
Before Higinbotham’s arrival, Archibald Michie, as the most senior and long-serving member of the editorial team, had written the majority of editorials and leading articles. Though he wrote anonymously, the body of his writing before Higinbotham’s arrival allows us to identify his style, and to become familiar with his secular worldview and his favoured themes. We can then detect a contrast when Higinbotham writes editorials in a style that shows other characteristics and that reflects a distinctly Christian view of the world. Michie’s style was plain and unadorned, yet typically cogent, analytical and often highly polemical in tone, especially when he wrote about the issue of the drafting of the new Constitution. He felt so strongly about this matter that in August 1853 – one month before the Drafting Committee for the new Constitution was chosen – he resigned his seat in the Legislative Council and invested his life’s savings in purchasing the majority shareholding in the Melbourne Morning Herald. He had moved the office to new premises, installed more modern printing machinery, and advertised for ‘first class’ staff. His intention was to provide editorial comment to the readership about what he saw as the single most important issue of the day: the drafting of the new Victorian Constitution. He declared that his aim was ‘to imbue the minds of our readers with a sense of the importance of this question’. To the criticism that concentration on
political philosophy would discourage people from buying the newspaper, he countered, ‘If others neglect the all-important question of the new Constitution, we will not’.
Michie was critical of the drafting process. He campaigned against the Drafting Committee’s recommendations that candidates for membership of the Upper House of the new legislature must own property to the value of £10,000 and that the voters of the Upper House would also have to own property worth £100. He foresaw that this would create a privileged elite who would obstruct the will of the people as expressed by their representatives in the Lower House. The rival newspaper, the Argus, agreed that the property qualification for a seat in the Upper House was ‘absurdly high’. Michie objected, moreover, to the sweeping financial powers that were reserved to the Governor. These gave the Governor responsibility
for a Civil List to cover his own salary and expenses, as well as those of his household, his Executive Council, the Legislative Council, the judges, the Auditor of Public Accounts, and all the responsible officers of the Government. The Governor would also be responsible for all pensions and compensation payments for loss of office that might be granted to any of these individuals. Michie argued that this arrangement contravened the British tradition whereby ‘the grand check afforded by the constitutional power over the purse-strings, and supposed to rest upon the Legislatureis completely lost’. He pointed out that this would make the Governor more powerful than the sovereign in England, for he and the responsible officers whose salaries and pensions he controlled would become ‘quite independent of the legislature’. What concerned him most of all was the recommendation that the new Constitution could only be amended in the future by the vote of a two-thirds majority of both Houses of the legislature.
Higinbotham expected to find that the citizens of Melbourne would be engaged in a vibrant debate about the merits of these constitutional principles. From boyhood he had heard from the Wilson side of his
family the stirring stories of his maternal grandfather, Joseph Wilson (reputedly an aide-de-camp to George Washington), who had fought for the principle of self-government. Higinbotham’s study of modern history at Trinity College expanded his appreciation of those weighty debates about constitutional principles that had accompanied the drafting of the American Constitution, yet to date in the Colony there had been little debate about broad constitutional principles in the process of drafting the new Victorian Constitution.
When Higinbotham commenced work as a parliamentary reporter at the Melbourne Morning Herald, he was just in time to hear the debates on the last phase of the passage of the draft Constitution Bill through
the Victorian Legislature before its consideration by the British Parliament in London. The desultoriness and apathy that had accompanied much of the drafting of the Constitution Bill in the Legislative Council of
Victoria suddenly turned to spirited debate, for the recommendations of the Drafting Committee were to be considered by the whole legislature, and the most controversial matters had been left until last. At the outset, the Colonial Secretary, John Foster, had assured the Council Members that ‘responsible government’ was fundamental to the new Constitution, but the recommendations of the Drafting Committee failed to clarify the mechanism by which it could be seen to operate. Hugh Childers, the former Auditor-General, who had recently become the Collector of Customs, sought to allay growing popular disquiet over the powers of the proposed Upper House by giving the following undertaking to the Council:
The lower house would have control over the money bills,
while the upper house would have hardly a voice in the
matter. The House which was elected would have the control
over the entire funds of the Colony.
In the same week, debate on the key issue of responsible government had also been stifled by the declaration of the Attorney-General, William Stawell, to the Council, that ‘the main principles of the Bill were two, call it three, viz, two chambers, both elected; and responsible government’. Now Stawell sought to forestall renewed dissent by admonishing the Members of the Legislative Council that it was ‘unbecoming for any member of the house to be guided by popular opinion’. He argued that the population
of the goldfields had refused the offer of a seat in the Legislative Council because they were too busy ‘money-a-making’ to be interested. He did not mention that they had repeatedly petitioned and lobbied for the right to participate, but had been rebuffed. Governor La Trobe had offered them a representative nominated by Government, but they had rejected this, not because of apathy but because they regarded a non-elected representative as ‘a mock species of representation’. John Foster went further, claiming that the public approved the draft Constitution. The great constitutional struggles of 1865, 1867 and 1878 in Victoria between the Legislative Council and the Legislative Assembly might never have occurred if the assurances of Foster, Childers and Stawell regarding responsible government had reflected reality, for the key issues at stake in these bitter battles to come were those of responsible government and the relative powers of the two Houses with respect to money bills. The contradictions and lack of parliamentary decorum may have struck the young parliamentary reporter, fresh from four years of observing the proceedings in Westminster. But he was more troubled by the failure to consult and the flouting of sound
constitutional philosophy that underlay the process of designing the new Constitution.
On 25 March 1854 (eleven days after Higinbotham’s arrival), the
Constitution Bill passed its third reading. Thanks to the perseverance of
Michie and others in the press, and to John Pascoe Fawkner, the Member
for Talbot, and John O’Shanassy, the Member for Melbourne, in the
Legislative Council, there were some significant changes. The attempt to
give the Governor exclusive right to choose the ministry was defeated.
Both the Melbourne Morning Herald and the Argus recorded that there was
much debate about this recommendation. The Irish Protestants William
Stawell, Robert Molesworth (Solicitor-General) and Andrew Clark
(Surveyor-General) argued strongly for the Governor alone to choose
the ministry, while the Congregationalist John Pascoe Fawkner, and the
Catholic John O’Shanassy, who, despite their differences, constituted the
main opposition in the Legislative Council, joined forces to oppose this
proposal. They insisted that the Governor should act with the advice of his
Executive Council, comprising the Ministers in the elected Government.
Both newspapers record that, when the House divided, the Government’s
proposal was defeated by one vote. Neither newspaper’s account makes any
mention of a subsequent proposal for a clause excepting ‘officers due to
retire on political grounds’ who were to be appointed by the Governor
alone, yet in the final form of the Constitution Bill that was reserved for
approval in London a new clause appeared that restored the Governor’s
exclusive right regarding ‘officers due to retire on political grounds’.The
following year, this additional clause was to be the cause of a political crisis.
Yet several other important changes that the Legislative Council passed
were implemented in their entirety. The proposed clause stipulating that a
two-thirds majority in both Houses of the legislature would be required
to change the Constitution was narrowly defeated. The proposed £10,000
property threshold for membership of the Legislative Council was reduced
to £5,000. (This was still fifty times the figure of £100 that the British
Parliament had set for the elective Members of the existing Legislative
Council.) Michie commented that the Colony had undergone a ‘narrow
escape’ from inevitable revolution. There were many features of the draft
Constitution that still concerned him, but if a 50 per cent majority could
be achieved, he reasoned that reform was a future possibility.
Having spent some years in reporting parliamentary debates,
Higinbotham was eager to move into editorial writing. Only eight days
after his arrival, his first leading article was published.It expounded the
difference between education and instruction. This was a characteristic
preoccupation of his, and one that he often dwelt upon during his later
parliamentary speeches in support of public education (which he termed
‘public instruction’). As a devout Christian, Higinbotham believed that
the term ‘education’ properly implies the development of an individual’s
spiritual, intellectual, moral, physical and religious nature. By contrast, he
argued that education without a religious infusion is merely ‘instruction’.
A week later, he wrote another leading article advocating the abolition
of public viewing of the executions of criminals. Higinbotham’s son-in-law
Edward Morris, who wrote a biography of his father-in-law in 1895,
reported that as a young journalist he had strongly urged the abolition of
the death penalty. The article employed revolting descriptions of an actual
hanging along with forceful arguments denying the supposed salutary
effect that witnessing such an execution was believed to have on members
of the public. The article’s combination of cogent argument with emotional
language and powerful imagery were typical features of Higinbotham’s
literary style and of his parliamentary speeches a decade later.
MARRIAGE AND CAREER IN TROUBLED TIMES
A Visit To The Goldfields
In August, the Herald’s Ballarat correspondent sent an alarming report.
Two armed intruders had overpowered the sleeping inmates of the Herald
office at the Gravel Pit Hill, while a third removed a safe containing over
₤1,000 in valuables. Later that same day, a second theft had occurred. As
the Herald’s finances were in a precarious position, the news of this large
loss came as a blow. On 20 September (ten days before Higinbotham’s
wedding), the Herald advertised vacancies for two parliamentary reporters.
It may have been intended that Aspinall would accompany Higinbotham
on a trip to the goldfields if both positions at the Herald could be filled,
but it is unknown whether or not he did so. Within days of his marriage,
Higinbotham travelled to the Victorian goldfields. His wife, Margaret,
may have accompanied him, and this may account for the belief of some
descendants that the couple first met on the goldfields. It is likely that the
purpose of the trip was to investigate the thefts, and to review security at
the Herald’s offices on the other major goldfields. This excursion was to
have a great influence on Higinbotham’s life thereafter, for it brought him
face-to-face with conditions on the goldfields, and set in motion a train of
events that influenced the course of his later political outlook.
The Herald’s ‘own correspondent’ at Ballarat was George Collins
Levey, a miner who used the latest quartz-crushing machinery and was
also a gold-buyer. It is likely that Higinbotham interviewed Levey. After
returning from the goldfields, Higinbotham wrote an editorial about the
unrest on the goldfields. He related it to the lawlessness that was prevalent
on the goldfields. By way of an example, he wrote ‘our own correspondent’s
losses by burglary are fresh in our recollection’. The reference to ‘our
own correspondent’ indicates that the writer was someone other than the
newspaper’s ‘own correspondent’. In the course of his investigations he may
also have interviewed Frank Hasleham, another freelance correspondent who wrote for the Geelong Advertiser as well as the Melbourne Morning Herald. Hasleham was a theatre critic, and had a reputation for his knowledge of the works of Shakespeare. Though he also wrote anonymously, his identity was revealed a few weeks later, because of a terrible ordeal that he suffered during and following the conflict at Eureka.
During his visit to Ballarat, Higinbotham (and perhaps his wife
Margaret) may have witnessed some of the ugly disturbances that formed
the prelude to the battle at Eureka seven weeks later. On 16 October,
around the time that Higinbotham is likely to have been at Ballarat,
the local bank was robbed of £15,000. The next day a meeting of about
10,000 miners converged near the Eureka Hotel demanding justice for a
murdered young miner named James Scobie, who had died from a blow
to the head. The proprietor of the Eureka Hotel, James Bentley, his wife,
Catherine Bentley, and two companions were charged in connection with
Scobie’s murder. Despite strong prima facie evidence implicating Bentley,
the magistrate, John Dewes, dismissed the charges.
There were gross irregularities in the conduct of the subsequent trial. Peter Lalor, who later came to prominence as the leader at the Eureka Stockade, observed the accused, Bentley, whispering to a juryman. During an adjournment, Bentley was also seen to enter the magistrate’s room, and to remain there for about ten minutes.The diggers were incensed by what many of them saw as collusion between the magistrate and the publican, and a blatant denial of justice. A public meeting was called with the purpose of composing a petition to the Governor. Indignation at the reports of the dismissal of charges against Bentley grew, and before long thousands had gathered. The meeting started peacefully but it soon degenerated into a wild and violent riot in which the discharged murder suspect, Bentley, became the target of an angry mob, who looted and burned his hotel and forced him to flee for his life.
Following the trip, an article detailing Higinbotham’s eyewitness
accounts of the scandalous state of the administration of the law on the
goldfields appeared in the Melbourne Morning Herald. It differed from
the typical reports of goldfields correspondents in that it covered events on
three separate goldfields: Ballarat, Bendigo and Castlemaine. Higinbotham
wrote in a grave and portentous tone, for he had witnessed some disturbing
events. Speaking as a lawyer, he pronounced that certain proceedings that
he had witnessed in the goldfields’ courts were illegal. He reported that, at
Castlemaine, the law against ‘sly-grog’ selling was usually only enforced
if the seller ‘offended a commissioner, or failed sufficiently to propitiate a
policeman’. He continued on to Bendigo where he spent time watching and
reporting upon the ‘unjust, anomalous and injudicious proceedings’ that
took place in the Bendigo Courthouse. He concluded:
We have hitherto been proud to think that amidst all the
turmoil and excitement of the discoveries here – in spite of
the injudicious laws yet more injudiciously administered,
the natural temperance and good sense of the people have
freed us from the reproach of this wild and savage system
of retribution. It is sad evidence of national folly and sin –
not confined to the ten thousand participants in the crime
on which we are immediately commenting – that … the
goldfields should still be in a state rendering us liable to the
perpetration of such an outrage …
With melancholy prescience he saw that a tragedy was unfolding. What
he had seen of the maladministration of the goldfields during his visit had
been so troubling to him that he had characterised it as ‘sin’. Before any
blood had been spilled, he had laid the blame for the state of affairs that led
to the subsequent armed conflict on ‘injudicious laws yet more injudiciously
administered’. He called for an inquiry into the administration of the
goldfields. In later years, George and Margaret Higinbotham may have
preferred to avoid discussion of this trip, for to acknowledge it would have
awakened painful memories. Though Higinbotham’s warnings proved to
be correct, they might have seemed to him in later years to be capable of
being misinterpreted as excusing the illegality associated with the burning
of the Eureka Hotel, and by extension with the conduct of the diggers seven
weeks later in the last days before the battle at the Eureka goldfield.
The influence of Thomas Higinbotham
Higinbotham’s apparent retreat into conservatism at this stage of his
life may have been further reinforced by the arrival in Melbourne of his
older brother Thomas, in late 1857. The two brothers had very different
childhoods. In the Higinbotham family there were eight siblings, of whom
George was the youngest. Thomas, born in 1819, was the fourth child.
During his early childhood, his parents, Henry and Sarah, had lived a
genteel life in Dublin, where Henry operated a successful business as a
general trader. Henry had embarked upon a particularly ambitious business
venture that required share capital, but in 1826, a few months before the
birth of George, the venture had failed disastrously. In an effort to save
the situation, Henry embarked upon financial measures of questionable
propriety, but to no avail. The failure brought serious financial losses to
its shareholders, and debt and disgrace upon Henry Higinbotham and his
Over the next three years, the lease on the family home was sold,
Henry’s business was sold, the lease on the Higinbotham property in
County Cavan was sold. Henry’s name was removed from the official
listing of nobility and gentry of Dublin and from the list of merchants and
traders. At some point it seems likely that husband and wife separated, for
they gave different addresses, but both stayed in the environs of Dublin for
some years.Following the financial debacle, Sarah’s family, the Wilsons,
played a significant role in supporting the family financially, and they may
have provided significant psychological support as well. Morris, in his
biography, reports that George Higinbotham’s early schooling (unlike that
of his brother Thomas) took place ‘at home’. During these years, Sarah and
her young son may have been drawn into the orbit of the Wilsons, for even
after the sale of the lease on their home, they did not live far apart, and the
two families had children close in age. Sarah’s brother, Thomas Wilson,
was a prominent member and benefactor of the Strand Street Unitarian
Congregation. Sarah may have reverted to attending Unitarian services
with her brother and his family, possibly taking George with her.
As he matured, George Higinbotham would have learned that this
Unitarian Church congregation valued freedom of religious expression
highly, and advocated the use of reason in interpreting the scriptures.
It also promoted liberality in political ideas. The French and American
Revolutions were upheld as beacons of progress. Since the time of Cromwell,
when the congregation had met in private homes, it had welcomed leading
liberal thinkers in religion and politics from England, Scotland, France
Among the leading figures associated with this church were Francis Hutcheson and Thomas Paine, whose writing influenced the American Declaration of Independence; Archibald Hamilton Rowan, a Scottish aristocrat who led a march through Dublin to commemorate the first anniversary of the French Revolution; Dr William Drennan, who conceived the plan for a secret society of radical reformers that became the
Irish Volunteers; Robert Emmet, who led the 1803 Uprising in Ireland;
George Brown, who steered the anti-slavery legislation through the
Pennsylvania State legislature, and John Toland and Joseph Priestley, who
advocated the emancipation of the Jews. George Higinbotham would later
espouse many of these liberal values. As an intelligent boy, conscious that
within this congregation, his mother’s family were prominent and respected
people, he may have taken these reformers as role models for himself.
When George attended the Royal School in Dungannon for his
secondary education, it seems that the Verner side of the family exerted a
strong countervailing influence. Loyalty to the sovereign and the Anglican
Church, as well as pride in Britain’s military victories were upheld as
cardinal virtues. Rebellion was regarded with horror. But George, unlike
his brother Thomas, had been exposed to liberal ideas at a formative
time. Years later, after much thought and study, he developed his own
philosophy, drawing upon the contrasting worlds of Orange conservatism
and Unitarian liberalism. From time to time he experienced the pull of one
world more strongly than the other.
Thomas, being six years older than George, had a more privileged early
childhood. He was already attending school when the family’s fortunes
collapsed, and he may not have spent so much time during his formative
years in the company of his mother and the Wilson family. Unlike George,
Thomas’s vocational training was in engineering. His views as an adult
were more typical of the conservative Irish Protestant of his day. Thomas
developed great expertise in railway technology at the height of railway
expansion in Britain. He served in senior executive positions on several
major British railway projects. On arrival in Melbourne, he was appointed
Chief Engineer of Roads and Bridges in the Colony. Thomas was unmarried
and lived with George and Margaret in their house at Emerald Hill. By
1861 he was Engineer-in-Chief of the Victorian Railways.
In late 1860, Thomas and George combined their savings and
purchased a large beachfront block at Brighton. Here Thomas designed and
built a new house and established a garden. George Higinbotham’s son-in-
law, Edward Morris, who was a frequent visitor to the house, recorded:
The house was built in villa fashion, with a single floor and
a broad verandah running round three sides. A lawn with
openings through tea-tree scrub separated the house from
the beach, and a beautiful avenue of trees connected it with
the road, by the side of which there was a large and
The historian Susan Priestley records that on the other side of the road,
St Kilda Street, there was a ten-acre paddock where several sheds and a
dairy were located. Here the Higinbothams kept cows, horses and ponies.
She notes that there was an orchard in which ‘prolific varieties of Kentish
apples’ were grown, perhaps reflecting Margaret’s upbringing in the Kentish
countryside.Thomas, George, Margaret and the infant Edith Sarah, who
was born in 1859, moved into the house. The remainder of George and
Margaret’s children were born in this house: Alice Mary in 1863, George
Robert in 1865, Edward in 1869, Maud in 1870, and Ethel, who died in
infancy, in 1872.
This was to remain George and Margaret’s home until 1887 (seven
years after the death of Thomas), when they moved to the inner-city suburb
of South Yarra. Morris records that during the twenty-three years that the
brothers spent together, ‘the colony was distracted by the fiercest party
feeling on political questions, and the sympathies of the brothers were
enlisted on opposite sides’. Yet he denies that this ever caused ‘the slightest
ruffle’ in their friendship.
THE AFTERMATH OF THE STRUGGLE
The Five Resolutions Of 1869.
In the wake of the constitutional struggle in Victoria, the question of the
relationship between the Australian colonies and the British Empire was
extensively debated in the British House of Lords. Early in November 1869,
nine months after he had resigned from the ministry of James McCulloch,
Higinbotham gave a marathon speech in the Legislative Assembly over
five nights, in support of five resolutions dealing with the Victorian
Constitution. He did so in response to the news that a group of Victorian
émigrés, some of whom were known to hold conservative views, were
planning a conference in London to discuss the topic of the relationship
between Britain and her Australian colonies. The organisers had invited the
Victorian Government to send a representative to the conference. George
Verdon, the former Treasurer who was serving as Victoria’s Agent-General
in London, cautioned against doing so. Higinbotham suspected that the
motivation for the conference was to censure the Victorian Government for
its stance in the recent struggle. Accordingly he argued against dignifying
the conference with official attendance from the Victorian Government.
Higinbotham told the Legislative Assembly that on reading a report
of the recent debate in the House of Lords, his eyes had been opened to
the extent of anti-democratic and anti-colonial sentiment that some of
the Lords harboured. He had been dismayed to discover that most of the
speakers had agreed with Lord Salisbury’s contention that it was wrong for a
colonial Governor to be ‘a mere mute person … who is to do … whatever the
Ministers who happen to be seated in his council chamber may bid him’. The
exception had been the Lord Chancellor, Sir Hugh Cairns, who had argued:
If it was to be laid down as a rule that the Secretary of State
at home was to hold in leading-strings the Ministry of the
Colony, then the pretence of free colonial institutions was
simply a delusion and a mockery.
Higinbotham felt compelled to confront the House of Lords with an expression of the indignation of the colonists of Victoria. Perhaps inspired by the historical example of Martin Luther, whose ninety-five theses nailed to the door of the Wittenberg Cathedral in 1517 sparked the Protestant Reformation, Higinbotham drafted five resolutions for debate in the Legislative Assembly. The resolutions encapsulated his political philosophy and challenged the members to declare themselves as supporters or opponents. The first of Higinbotham’s five resolutions committed the Legislative Assembly to declining the invitation to send a delegate to the London conference because it was the initiative of ‘a self-constituted
and irresponsible body of absentee colonists’.The Chief Secretary MacPherson unsuccessfully proposed an amendment but the
motion was carried.
The next four recommendations concerned political principles. The
second resolution declared the right of the Victorian population to self-government, affirmed that Victorians wished to remain ‘an integral portion
of the British Empire’, and acknowledged the obligation of Victorians to
provide for their own defence, ‘by means furnished at the sole cost and
retained within the exclusive control of the people of Victoria’. Again
MacPherson unsuccessfully proposed an amendment, but the motion was
The third resolution protested against ‘any interference by legislation of
the Imperial Parliament with the internal affairs of Victoria’. No amendment
was proposed and the motion was carried. The fourth resolution objected
to ‘advice, suggestions or instructions’ from the Secretary of State for the
Colonies to the Governor. It condemned such instructions as ‘a violation
both of the principles of responsible government and of the constitutional
rights of the people of this Colony’. The Government opposed the motion,
but it was passed by 39 to 19 votes. The last resolution committed the
Legislative Assembly to support the Government ‘in any measures that
may be necessary’ for the purpose of securing the recognition of the right
of the Victorian Government and the Queen ‘to make laws in and for
Victoria in all cases whatsoever’, and to prevent the ‘unlawful interference’
of the Imperial Government in Victoria’s domestic affairs. This motion was
carried without comment.
In the course of his speech on the resolutions, Higinbotham told the
We all know, though we don’t like to say it, that responsible
government does not exist. We don’t govern ourselves, and
we know it. We are all ashamed of it, though we don’t care
to say it. The same sense of a want of respect extends to our
constituents, and I believe that in time it will tend to degrade
the national character by extending this sense of shame and
want of respect for our constitution.
To Higinbotham, ‘the Englishman’s sense’ of the term ‘responsible
government’ covered both the scope and the manner of government. He
reminded the Legislative Assembly that the wording of the Constitution
Act made clear that, subject to Royal Assent, the two Houses had been
given the power to make laws ‘in all cases whatsoever’. To him, the
fundamental principle was that ‘the head of the Executive shall be
independent of all influences except the advice of his advisors who shall
be responsible to Parliament’. He reasoned that Victoria did not enjoy
the kind of government envisaged in its Constitution because the Colonial
Office continually issued instructions to the Governors, and because the
Colonial Office ‘has always in practice steadily, persistently and designedly
disregarded the existence of responsible government’. He argued that self-government logically implied responsible government, for ‘if you make the
governor dependent on anyone except his responsible advisors for advice,
what becomes of the power of self-government to the people?’
The successful passage of all five resolutions proved that Higinbotham’s
views about responsible government could not be dismissed in London or
in the Legislative Council as those of a single, eccentric member or even of a
minority of members. The resolutions amounted to a landmark declaration
that the Legislative Assembly of Victoria claimed the right of the elected
colonial Government to govern independently of the interference of the
Colonial Office or the British Government.
CHIEF JUSTICE HIGINBOTHAM
Higinbotham And The Maritime Strike
The prosperous 1880s in Victoria were followed by the great depression of
the 1890s. Though the economy was still buoyant in 1890, the ranks of the
unemployed in Melbourne swelled by early winter with an influx of out-of-work
agricultural labourers, and the resources of charities were stretched.
Meetings of the unemployed sent deputations to Government Ministers
but were routinely rebuffed, and the police were instructed to break up
gatherings using the ‘Move On Clause’. Delegations of the unemployed
visited the Governor, the Mayor and the Anglican and Catholic Bishops
imploring them to use their influence with the Government Ministers to
provide relief, but the Government showed little inclination to help. On
30 July 1890, a delegation visited Chief Justice Higinbotham, who assured
them of his sympathy. They noted that he treated them with ‘that genuine
cordiality that places peer and peasant on an equality’. He expressed the
view that it was the duty of the Government to start relief works ‘of a varied
character in order that the robust and their weaker brethren should share in
the privilege of keeping body and soul together’.
In Sydney in mid-August, the Mercantile Marine Officers’
Association declared its intention to strike for better pay and conditions.
The Melbourne members sought to affiliate with the Trades Hall Council,
but the Ship Owners’ Association dismissed all those who refused to give
up this affiliation. To strengthen its bargaining power, the Marine Officers’
Association sought and received the support of a Maritime Labour Council,
which included seamen and wharf labourers. Australia-wide industrial
action on the waterfront followed the lockout of the Marine Officers.
Other unions, including shearers and coal-miners, joined the struggle. In
late August 1890, gas stokers refused to handle coal that had been mined
and delivered by non-union labour, and walked off the job. This left
Melbourne without gas for industry and street lighting. By September,
50,000 Australian workers were out of work as industry was impacted.
The strike extended to New Zealand where another 8,000 were also out
The Genesis Of Higinbotham’s Ideas
George Higinbotham grew to adulthood against the backdrop of the
widespread agitation for Repeal of the Act of Union, the twin scourges
of famine and forced emigration, and the 1848 Uprising. These events
awakened his interest in many political questions, including the rights
of majorities and minorities, the rule of law, loyalty to the sovereign, the
relationship between church and state, and the function of Parliament as
an institution representing the views of the people. He responded to the
distress and turbulence of his times by developing his own political ideals,
and using his skills in writing and in oratory to promote them.
His distinctive political ideals marked him out as an atypical member of
the Irish Protestant Ascendancy – a class that occupied many of the positions
of power and influence in early colonial Victoria. His family background,
with its dichotomy between the religious and political allegiances of the
maternal and paternal sides of his family, meant that although he was
brought up as a member of that class, he was exposed from a young age to
a wider tradition of European and American liberal thought than were the
majority of his peers. This was reinforced to some degree by his academic
studies in history. Higinbotham straddled two worlds: his grandfather
Joseph Wilson’s American world of sacrifice for the achievement of colonial
self-government and democracy, and the world of Irish Protestant loyalty to
the British Empire that came down to him from his father’s side of the family.He developed his own political philosophy that drew upon both of these traditions. In Sir William Molesworth’s ideas of democratic constitutional arrangements within a British Imperial framework, he believed that he had found a solution appropriate to the new Colony of Victoria.
Within his first year in Victoria, Higinbotham’s natural predisposition
to oppose rebellion against authority came under challenge from his close
association with the agitation on the goldfields, which culminated in the
battle at Eureka. The link between an unjust political system and rebellion
was fully apparent. The realisation of the link increased his anxiety that the
new Constitution should provide a workable and just democratic political
system. The following year, when the new Constitution arrived from
London, it proved to be a bitter disappointment to him as well as to the
population of the goldfields and other colonists.
For Higinbotham, the development of a sound Constitution incorporating liberal principles and responsible government within the context of loyalty to the British Empire was essential to the future of the young Colony, and he laboured to achieve it. Had Molesworth remained as Secretary of State for the Colonies, Higinbotham’s advocacy of constitutional reform might have borne fruit, but Molesworth’s premature death after only three months in office ended this possibility. Later, as a parliamentarian, Higinbotham found that the task of reforming the anti-democratic provisions of the 1855 Constitution faced enormous opposition both from vested interests within Victoria and from the Colonial Office in London. To his great disappointment, he failed to achieve the major reforms that he and many Victorians believed were necessary.
Looking back from the 1970s, Victoria’s most eminent historian of the
colonial period, Geoffrey Serle, agreed with Higinbotham that the 1855
Constitution was a fundamental problem throughout the post gold-rush
period. In his view:
A grotesque constitution nullified the democratic potential,
reduced the parliamentary process almost to futility, and
added immensely to class bitterness.
Some historians of the colonial period, especially legal historians, have
asserted that the Victorian Constitution as drafted in 1854 stirred little
popular interest and provoked no significant opposition. Some argue that
the Constitution was liberal and progressive for its times. Some have hailed
it as a ‘popular’, even crediting it with producing Victoria’s ‘happy state’.
Such interpretations perpetuate a rosy view of what was a very flawed drafting process and an ill-omened outcome. The Constitution Bill that emanated from the Legislative Council of Victoria was one of the leading causes of grievance that culminated in the military conflict at Eureka. The Constitution Act that resulted in 1855 was at the heart of three damaging political deadlocks in Victoria in its first twenty-three years of implementation.
From 1852 to 1854, the goldfields populations thoroughly explored
every legitimate means of seeking redress of their grievances, and one of
their constant complaints was that they were practically unrepresented
in the legislature. It is also apparent that the agitation on the goldfields
was not confined to the diggers, but was a broad-based movement that
included mining entrepreneurs, bank managers, storekeepers, theatrical
people, press correspondents, doctors, teachers, ministers of religion
and prominent lay people. Many were well educated and avid readers of
newspapers, yet the majority of them were disenfranchised by the 1855
Constitution. Their aspiration for what they believed to be their rights
explains much of the popular support for Higinbotham in the struggles
that he led for responsible government in 1855, 1865 and 1867.
Of all those who fought for the principle of responsible government
in Victoria, none fought so tenaciously as did Higinbotham, nor with such
a clear vision of its importance for the Colony’s future. In Higinbotham’s
speeches and writings, we can trace a link to richer European and American
traditions of liberal political thought than were known to the principal
drafters of the 1855 Constitution. Victoria’s current democratic political
system was not bequeathed to the population as a gift from Britain. It was
achieved via a long struggle. Higinbotham’s life story is intimately bound
to the story of that struggle for a modern liberal Constitution for Victoria.