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THE PROCEEDINGS AGAINST JUDGE
BOOTHBY.
It appears that the charges which have
been laid against Mr. Justice Boothby are
five in number, as detailed below. These
charges were first sent to the Judge on June
the 6th by the Chief Secretary, who said—
"I am directed by His Excellency the
Governor-in-Chief to inform you that the
following very grave charges against you in
the administration of your office as one of
the Judges of the Supreme Court have been
preferred by the late Attorney-General, Mr.
James Penn Boucaut." Then follow the
charges, at the conclusion of which the
Chief Secretary says :—"I am also to in-
form you that His Excellency, deeply im-
pressed with the seriousueas of these charges,
has determined to have them investigated
by the Governor and Council of the province,
under the authority of the Imperial Act of 22
Geo. III., c. 75, and that such investigation
shall take place at an early date, of which
you will receive due notice. I am further to
inform you that His Excellency has issued a
Commission to His Honor the Chief Justice
to preside at the next Civil Sittings of the
Supreme Court, to be held on the 11th inst."
The next letter is dated June 14, and is as
follows :—
"Executive Council Office, Adelaide,
June 14, 1867.
"Sir—I am directed by His Excellency
the Governor-in-Chief to inform you that he
has brought under the consideration of the
Executive Council the charges made against
you for misbehaviour in the administration
of your office of a Judge of the Supreme
Court of South Australia, by the late
Attorney-General, Mr. James Penn Boucaut,
and of which you were apprised by letter
from the Hon. the Chief Secretary on the
6th inst., such charges being as follow :—
"1. Conduct and language contumacious
and disrespectful to the Court of Appeals,
and obstructive to the said Court in the
psrformance of its duties.
"2. Perverse refusal to recognise the
authority of Parliament, and to administer
the laws of the province.
"3. Expressions on the Bench disparaging
and insulting the Legislature, the Govern-
ment, aud the institutions of the province,
and language and behaviour on the Bench
calculated to bring the administration of
justice into contempt.
"4. Language on the Bench offensive and
irritating to the other Judges, and public
denial of their authority.
' 5. Allowing private and personal feeling
to interfere with the fair and impartial ad-
ministration of justice.
"His Excellency and Council have also had
under their consideration a further charge
against your Honor, of having assumed a
position inconsistent with the equal adminis-
tration of justice, and which in certain
events would put a stop to the exercise of
the functions of the Supreme Court—such
charge being contained in a letter from their
Honors the Chief Justice and Mr. Justice
Gwynne to His Excellency the Governor,
dated 24th April last, of which a copy is
subjoined :—
" ' Supreme Court, April 24, 1867.
"Sir—We have the honour to address
your Excellency on the subject of the course
adopted by Mr. Justice Boothby at the
recent sittings of the Court. It will not be
necessary to recapitulate the various methods
in which he has endeavoured to assert his
claim to be the sole rightful Judge, as your
Excellency will probably have been made
aware of these from the Hon. the Attorney
General. It is sufficient to say that not
merely are his remarks personally offensive
and insulting to ourselves, intended to lower
us in the public opinion, and calculated to
produce that effect, but the position he has
assumed is inconsistent with the equal admi-
nistration of justice, since it would lead him
in every case, irrespective of the merits of the
question, to decide in favour of the defen-
dant ; and it would in the event of any cir-
cumstances preventing the attendance of
either of ourselves put a stop to the exercise
of the functions of the Court.
" 'We felt this so strongly that having to
meet His Honor to confer upon one subject
submitted to us by the Hon. the Attorney-
General, we adjourned the Court in order
that we might take the same opportunity of
endeavouring to come to some understanding
that should enable the business of the Court
to be carried on without a repetition of the
proceedings of which we complained. Un-
happily, however, that interview failed to
produce any result, as Mr. Justice Boothby
refused even to discuss the proposal to make
other arrangements with a view to the more
satisfactory administration of justice on the
Equity side of the Court, and expressed his
determination in every case that he might
deem of sufficient importance to repeat his
warnings and protests.
" ' We feel that we have no right on the
ground of personal annoyance, or of difficul-
ties in the administration of justice caused
by an obstruction which unitedly we can
overrule, to close the Court against suitors,
which would practically be the result of our
declining to sit with Mr. Boothby ; and,
therefore, we have no alternative but to
bring the matter under the notice of your
Excellency with a view to the adoption of
such remedial measures as it may be in the
power of your Excellency's Government to
apply.
" 'We have the honour to be, Sir,
" 'Your Excellency's obedient servants,
'' 'R. D. Hanson, C.J.
" ' E. Castres Gwynne, J.
'' 'His Excellency Sir D. Daly, Knight,
&c., &c., &c.'
"His Excellency and the Counoil con-
sidering the gravity of the above charges—
any of them if established being sufficient to
render your Honor liable to amotion from
your office for misbehaviour, under the
Imperial Statute 22 Geo. III., caput 75—
have determined to hold an investigation of
such charges, with a view, should it be found
necessary, of exercising the powers vested in
the Governor and Council under such Statute.
"I am further directed to inform your
Honor that His Excellency and the Execu-
tive Council will proceed with the investiga-
tion of such charges at Government House,
Adelaide, on Monday, 24th June instant, at
11 o'clock in the forenoon, and to request
your Honor's attendance at such investiga-
tion ; and respectfully to intimate to your
Honor that in the event of your Honor
neglecting to attend at such time and place,
the investigation will be proceeded with in
your absence as in case of default.
"It is the intention of His Excellency and
the Council to receive such oral and docu-
mentary evidence as may be tendered during
the investigation, either in support of the
charges or on your Honor's behalf, and they
will also be ready to hear counsel either in
support of or in answer to the charges.
"I am also directed to transmit to your
Honor the enclosed list of some cases which
the Governor and Council are informed will
be relied upon in support of the charges, such
list showing the dates and names of the cases,
and the charges which they will be princi-
pally relied upon to support, but wluch cases
may be referred to in support of any of such
charges.
"I am further directed to state that the
Governor and Council are also informed that
it may be necessary in the course of the
enquiry to refer to other decisions of your
Honor, of the other Judges, and of the Court
of Appeals, than those mentioned in the en-
closed list, as well as to dicta of your
Honor in such other cases, in order to explain
the position taken by your Honor in the
cases enumerated.
"I have, &c.,
"Your most obedient servant,
"Samuel Deering,
"Clerk of Executive Council.
"His Honor Benjamin Boothby, Esq., Judge
of the Supreme Court, South Australia."
LIBT OF OA3ES HEFEBEED TO..
Date. Name of Case. Np. of Charge.
1857— Feb. 20 and 21— The Queen v. .Pop
ham ... ? ... 3
lS5S-Oct 6 and 6-Platts v. Stocks ... 3
IK61-Junel3— The Queen v. Preston ... 2
I8til-June 17, 27, OcL 8— McEllUterv.
Fenn ? 3,4
1862— Aug. 2— Hill and Field ? 4
18t-4- June 7— Re Ware ex par'e Bayne... 5
1Si54— Slay to Sept.— The Queen y. Hughes
aud Another (fare facias) ... 5
1885-Aug. 4-The Queen y. Uow... ... 3 ?
18K5-Aug. 4 and 7-tfarrold v. Carruthers 1, 3
18(55- Aug. 4 aud 7— Thompson v. Sirup*
gon ? ? 4, 5
lS65-Oct. 4, 12, and £0-6albraith v.
Elder ? ? 5
18'6-Mar. 2-Murray v. Ridpath ? 1.2
18t»-Mar. 24- Walsh v. Uopdall ? 1
18(56— May- Proceedings during the whole
of Criminal Sittings ? 2, 3
1866-May 28 -The Queen v. Hibbart ... 3
18U6'-May— Proceedings in Court of Ap
peal, re Copeland v. Wentzel ... 1
1866— 8ept.gtj, Oct. 2— Macdonald v. Gal
braith ... ., ? 3. 5
1866— Dec. ll-Nationa} Bank v, Mullen.. 1, 3
lS66-Dec.18-.Re Peter Smyth ... „. 2,4
1886— Dec. 19- Schutt v. Schumacher ... 1
lSfiS-T-Dec. 21— Mori is v. Varley ... ... 1
lBfff^Mar. 1-Kodgers v. Kodgers ? 2, 4
1867— Mar. 5 and April 15— Cherry v.
Huggins ? 2, 3, 4
1867-Mar. 5- Wiieht v. Lindsay ? 2, 4
isffr—Mar. fi-Rc Beach, deceased ... 3, 4
18U7— Mar. 8-n.iuer anu uuiera ,v. w _
braith ? ? 2,4,5
1567-Mar. S-So;ath Australian Company
v. Homer .,. ... ... ». f, 4, 5
1?67-Mar. 8-Elder and Others v. Homer 2, 4, 5
1867-Mar. 8— He E. Solomon .„ ?- i
1S67— Mar. 8 and 23-PoIack v. Schu
macher ? 8,4
1867— Mar. 8 and 23-'Williams and Others
v. Levi and Others ? 2,4,6
11=67*— Mar. 23 and April 15 and 16Edk
land v. Coulthard ? 2, 4, 5
1&8T— April 12— Engelbrecht V.Sutherland
and Another ? 2, 4, 5
1S37— April 15-Youl and Another v. Dar
went and Others ? 2,3,4,5
1867-April 15 - Attorney-General y.
Hughes and Others ? ... 2,4,6
1867-ADril 15— Stone v. Stone ? 4, 5
1867-May 27- Proceedings on First Day
of Term ? -- 3
1867— May 31 — Re Attorney-Generals
Commission ? 3
1867- Juue 3 to 7, inclusive— Attorney-
General v; Hughes and Others ... 3,4,5
$