Sir Robert Molesworth (1806 – 1890)
MOLESWORTH, Sir ROBERT (1806-1890), judge, was born on 3 November 1806 in Dublin, only son of Hickman Blayney Molesworth, solicitor, and his wife Wilhelmina Dorothea, née Hone. The family claimed descent from Sir Walter de Molesworth who accompanied Edward I to the Holy Land and was sheriff of Bedfordshire and Buckinghamshire in 1298-1308. Robert was descended from the first Viscount Molesworth, created in 1716, and in 1821 he won a scholarship to Trinity College, Dublin (B.A., 1826; M.A., 1833). Called to the Irish Bar in 1828, he joined the Munster Circuit and practised in Ireland until 1852. In 1838 he had published An Essay on the Registration of Deeds and Conveyances in Ireland, and Receivers in Chancery in Ireland. On 6 January 1840 he married Henrietta, daughter of Rev. Joseph England-Johnson.
In 1852 the Molesworths migrated to Adelaide and next year to Melbourne, where he was at once admitted to the Victorian Bar. He soon had a large practice and on 27 October 1853 was appointed acting chief justice for a term when Sir William à Beckett was ill. From 4 January 1854 he served as solicitor-general while James Croke was absent, and on 15 April was appointed a nominee in the Legislative Council. In succession to Croke he was solicitor-general under W. C. Haines from 25 November 1855 to 17 June 1856 when he became the fourth appointment to the Supreme Court bench. In March the Administration of Justice Act (19 Vic. no 13) had authorized the sittings of a single judge in the Equity, Insolvency and Ecclesiastical jurisdictions, and he discharged those duties for nearly thirty years.
Though Molesworth sometimes sat in the Criminal Court most of his work was on the Equity side. An admirable judge, he was noted for his industry, courtesy, learning and expedition; very few of his decisions were successfully challenged. His most remarkable achievement was as chief judge of the Court of Mines. In dealing with this new province he established a code of precedent which gave much satisfaction to the legal profession and the mining industry and became a guide in other Australian colonies and overseas. Apart from a short visit to New Zealand he never left the colony, and took no leave except the Court vacations. He had a strong constitution and his only sick leave was five weeks in 1881. The profession complained of his habit of sitting through the luncheon hour and of his later occasional irascibility, but appreciated his dispatch and dry humour. On 1 July 1885 he was appointed acting chief justice and sat as such until 1 May 1886 when he retired. He was given an ovation at a farewell ceremony in the Court and knighted by patent on 9 July.
Molesworth’s judicial achievements were the more remarkable because of domestic unhappiness, which culminated in an extraordinary matrimonial suit in the Supreme
Court from 1861 to 1864. His wife petitioned for judicial separation on the ground of cruelty, and he counter-petitioned for similar relief on the ground of her alleged adultery in 1855 with R. D. Ireland and in 1861 and 1862 with some person unknown, resulting in the birth of an illegitimate child in England. On an interlocutory application for alimony pendente lite in 1862, Mrs Molesworth was represented by G. Higinbotham.
The trial, which attracted much attention, took place before Chief Justice Stawell and a jury in November 1864. The jury absolved Molesworth (who had personally given evidence) of cruelty, and Mrs Molesworth of adultery with Ireland, but found against her on the charge of adultery with a person unknown. In December her appeal to the Full Court failed; her petition was dismissed and the judge’s counter-petition succeeded. She died in 1879 aged 56. At his own request Molesworth never sat in a matrimonial case after the trial.
Molesworth had long been a prominent member of the Church of England Assembly. He lived quietly in Melbourne until he died on 18 October 1890 and was buried in the Kew cemetery. He was survived by a married daughter and two sons, Hickman who became a judge and Robert a pastoralist.
An account of Robert Molesworth’s arrival in Adelaide
there were swamps and mangroves to be negotiated on the way to the city of Adelaide. The mud and reed huts were gone and in their place were wayside stops for the weary traveller. Sizeable villages with breweries, flour mills and wool scours sprang up. A new bridge now crossed the Torrens River and for the newcomers it was probably not too difficult to believe the glowing reports of the opportunities for a new life in the new colony.
Robert and his family were the first of the Molesworths to settle in Australia. It was also here in Adelaide, on the 3rd May 1853, that this family suffered its first death in Australia. The baby, George Gerald, who had been born in Dublin, October 1851, and had survived the long voyage out to Australia, died of scarlet fever at the age of nineteen months and was buried in the Adelaide Cemetery.
While living at Adelaide some negotiations took place between Robert and the Government of the day with respect to him taking a judgeship in South Australia, but they came to nothing. Not liking the strange and harsh conditions of South Australia he moved to Victoria, where gold had just been discovered and the future looked bright for this state and its rapidly growing city of Melbourne. He was admitted to the Victorian Bar in 1853. He soon had a thriving business and on 27th October 1853 he was appointed acting Chief Justice for a term when Sir William a’Beckett was ill. From the 4th January 1854 he served as Solicitor General while James Croke was absent and on 15th April was appointed a nominee in the Legislative Assembly.
Fourteen Irishmen answered the roll in the first Victorian Legislative Assembly, elected in 1855. Francis Murphy was chosen as first Speaker, William Stawell become the first Attorney-General, Robert Molesworth, Solicitor-General, and Andrew Clarke, Surveyor-General in the first ministry. The Argus’ quoted on 31st March 1855: “We have an Irish Colonial Secretary, an Irish Attorney-General, an Irish Solicitor-General, an Irish Surveyor-General, an Irish Chief Commissioner of Police, an Irish President of the Road Board, and an Irish Commissioner of Water-supply.” Not that the leading conservative paper disapproved of them at all, for not one of them ‘kicked with the same foot’ as there was a even mix of both Protestant and Catholic.
These quick appointments were drawing Robert toward his life’s destiny, for he had come into Victoria at a time of great unrest on the goldfields, where diggers were defying the licensing laws of the day and were demanding their rights. With the decline in the income of the diggers from mid 1853 on, and the arrival of the Chinese in 1854, the diggers of Ballarat, Victoria, formed organisations to mitigate their grievances.
On the night of 6th October 1854, James Scobie was found murdered on the goldfield of Ballarat. The proprietor of the Eureka Hotel, James Bently, his wife and John Farrell were tried for the murder and found not guilty by the magistrates. The diggers, sensing in this acquittal the corruption and bribery in high places that plagued their class, gathered outside the hotel and burnt it to the ground. From that day the diggers began to hold a series of meetings. At Bakery Hill on 11th November a mass meeting of 10,000 diggers joined in a reform league and pledged themselves to work for their rights.
Their main grievances were fourfold:-
- The incidence of and methods used to collect the licence fee.
- Their lack of political rights.
- The difficulty of becoming either owners or lessees of land.
- Chinese competition.
The response from the government in Melbourne was to dispatch more troops to the goldfields and to organise more licence hunts. On 29th November the diggers held a mass meeting that ended on a note of enthusiasm and passion. The more fanatical among the diggers then began to arm and to erect a stockade at Eureka in Ballarat, behind which they drilled. That night, when the flag of the Southern Cross was raised over the stockade, they solemnly took an oath of loyalty. On the morning of Sunday 3rd December, when all but one hundred and fifty diggers had become discouraged and left the stockade, the commander of the troops called on the remainder to surrender. When they refused, he ordered the troops to charge. After twenty minutes the whole affair was over. Twenty five of the diggers were killed and thirty wounded, while three privates and one officer from the troops were killed and eleven privates wounded. When the soldiers had once tasted blood, they became violent; the mounted troops drew their swords and began to attack the injured diggers till they were stopped by their commanding officers.
The whole of the colony of Victoria rose in support of the diggers and pressure was put on the government for reform. The government hastened to redress the grievances of the diggers; a miners right of one pound per year replaced the hated licence; an export duty on gold of two and sixpence per ounce was imposed to raise money for the administration of the fields; the administration of the goldfields was changed with the substitution of wardens for commissioners; the goldfields were made part of electoral districts, and the possession of a miners right became a qualification for voting for the Legislative Assembly in Victoria.
Even though the diggers had won their grievances and had changed the goldfields forever, they had taken up arms against the Queen’s authority and had to be tried and dealt with as the law directed. So the ring leaders had to go before a trial, and it is very significant of the extent to which public feeling was opposed to the Governor’s course that some of the most eminent counsel of the Victorian Bar volunteered their free services for the defence. Richard Davies Ireland, Butler Cole Aspinall, Archibald Michie, James McPherson Grant and H.S.Chapman, all of whom were afterwards Ministers of the Crown in Victoria, stepped into the breach in turn to cross swords with the prosecution, conducted by William Foster Stawell, the Attorney-General, and Robert Molesworth, the Solicitor-General. It was an unhappy business, but the result was inevitable.
The first two prisoners were tried before Chief Justice a’Beckett in the middle of February, 1855. Aspinall and Michie turned the proceedings into such hopeless ridicule, and so discredited the police witnesses, that both men were promptly acquitted. The Judge was greatly irritated by the production of a comedy in his court, in lieu of the grim tragedy set down, and he manifested his displeasure by sending to gaol for a week a couple of spectators who gave vent to their delight in his presence But he was powerless to suppress the roar of applause with which the verdict was received outside. The Attorney-General ordered the trial of the remaining prisoners to be postponed for a month, in the hope of securing a jury more amenable to arguments. Advantage was taken of the respite to endeavour by fresh petitions and articles in the press, to induce the Government to accept these indications, and to abandon further proceedings. But the Governor was inflexible: he had pledged himself to seek justice, and each one should be put on his trial. So on the 19th March the business recommenced, before Judge Barry.
The month’s reflection had only intensified the popular opinion, and ten days were wasted in each prisoner having to plead to his indictment, to listen to evidence to which he deigned no reply, and to be formally acquitted. The uproarious cheers with which some of the accused were shouldered down the Melbourne streets had perhaps no great significance, but the mass of the people were undoubtedly glad of the result, and were ashamed that so sorry a spectacle should have been strung on long after the result was obvious .In June 1856 Robert was chosen for the position of puisne judge of the Supreme Court of Victoria, being one of the five judges appointed, and sat on the Bench for thirty years, during which time he presided in the Equity Court as Chief Judge of the. Court of Mines. Robert was recognised as one of the greatest equity lawyers of his time and there was never an appeal against decisions of the Court of Mines except to the, Privy Council, and he controlled the mining laws at a time when there was much litigation in connection with disputes over mining leases, and with little precedent to help him when the only mining laws to guide him were coal mining laws in England. .A very unique incident happened on his retiring from the Bar in 1886. The Court wascrowded with banisters in full wig and gown, who at the close of business for the daycheered this distinguished judge till it echoed through the halls of the new Melbourne Law Courts. It was on his retirement that Justice Robert Molesworth received the honour of Knighthood .It was said that Robert had a great sense of humour while at the same time having, complete control of his court. A story worth recalling is from Forde’s book ‘Story ofthe Bar in Victoria’.
“When Sir Robert Molesworth presided over what an elderly lady once describedas the Iniquity Court,with O’Grady Rose for his associate and McDonald as thecrier, anything might happen but injustice. Molesworth and Rose had rich Dublinaccents and an inexhaustible treasury of humour. Rose was the best story teller inthe country and McDonald was a little man who wore in court a black swallow tailcoat and a white bow. He had formerly been Archbishop Goold’s personal attendant and had often camped under a tree in the bush with the pioneer prelate.”McDonald used to watch the judge intently, his face reflecting the proceedings like a mirror. At one moment he would appear grave and meditative, then his features would light up in anticipation of a quip, anon, indignation would beetle his brow, and again a big tear would trickle down his cheek. His wife kept an exclusive dining room in the building, where counsel and judges found the fillet steak to be unrivalled”.
Robert had a quiet way of exposing humbugs. J.L.Purves, Madden’s great rival at the Bar, possessed many rhetorical tricks. One was to imply that the judge and he were on familiar terms. But as his practice was chiefly in criminal and common law courts, he did not often appear before Molesworth. On one unfortunate occasion he began, “Your Honour, I have not had the privilege of frequent contact with you and I now feel like a helpless orphan on a foreign shore.” “Put that down Mr Rose,” dryly remarked Molesworth, “Mr Purves feels like a helpless orphan on a foreign shore.” The advocate grimly joined in the laugh, but he did not try any more ‘jury stuff’ on the Equity judge. On another occasion at a criminal sitting a member of the jury asked to be excused from duty on the grounds that he was suffering from rheumatism. “Have you a doctor’s certificate?” asked the judge. “No, your Honor,” said the Juror. “I don’t believe in doctors; I doctor myself.” “Then I’ll take your own certificate.” said Justice Molesworth.
In 1864 ‘Marvellous Melbourne’ was about to become the social centre of Australia. The city had several theatres and fine buildings were springing up at an incredible rate. This was all due to the gold that was coming in from the goldfields and the effect can still be seen today. The fine architecture of the old buildings in Collins Street and the gold leaf ceilings in the Houses of Parliament in Spring Street are but two examples. On Thursday 24th November 1864, ‘Rip Van Winkle’ and ‘Lend Me Five Shillings’ were playing at the Theatre Royal. At the Haymarket Theatre there was a variety of entertainment with ‘Sweethearts and Wives’, the Lenton Troupe and ‘A Kiss in the Dark’. On that morning, people rushed to get their morning paper, not for the entertainment section or to see when the steamship ‘Madras’ was leaving with mail f England but to read the first instalment in ‘The Argus’ of the divorce between Robe and Henrietta Molesworth. This was a sad time for the Molesworths as the newspape of the day made a big thing of it, spreading it out over several weeks like son continuing drama story.
We will not linger on this sad time but to show what pressure was placed on a family, here is part of the first column in ‘The Argus’ that morning.
“The scandal which for the last nine years has been festering, like a loathsome so; under the surface of Melbourne society, has at length ripened and burst. Ti domestic life of the Molesworths is fairly before the world. It is a chapter which, 1 us hope, stands alone in the history of our social system. The credit of the colon was never so deeply touched as by this filthy tale of an ill marriage. A heal responsibility attaches to the man who, on any provocation whatever, could s insult our public sense of decorum. The injury is to every honest man and ever decent woman in Victoria. About this there can be no second opinion in the community. The scandal is one which never ought to have seen the light, at least i this colony. The wrongs of Judge Molesworth bear no proportion to the outrag which he inflicted upon our society in their revelation. Mr Molesworth may hay been as deeply injured as Mrs Molesworth was unchaste, but there was no excus for thus occupying all the ears and eyes of the community for four days with thi brutal and disgusting story.
“The case is one of unredeemed brutality and profligacy from beginning to end and the fact, that the principal characters who figure on the stage are a judge a the Supreme Court and his wife, and an ex-Attorney General, will furnish no smal occasion for triumph to those whose habit it is to speak sneeringly of colonia manners and morals. The revelation of high life in St Kilda about the year 1855, L indeed more extraordinary than anything which an enemy of Victoria could have invented for her detriment. It requires the evidence of the petitioner and tin respondent, together with the confessions of Mr Ireland, to make us believe tha such a state of things could be possible in the heart of an English community. Thu Divorce Court is a record of many scandals, but we doubt if either at home or is the colonies, there ever was a story to match this of the Molesworths in grossness and profligacy. There is something in the case, also, that is quite un-English, and with an odour about it such as only one nationality in the world could fiurnish. The scenes between husband and wife—the row in the inn at Castlemaine—he subsequent reconciliation—the episode of the carpet bag—the fighting—the kissing—the letters—the uncouth bursts of jealousy, and the ludicrous and gross suspicions—where can we read anything to match this very Irish history? For once, all the art of the counsel on each side has failed to heighten the true colour of either case. The real profligacy is, that such a story as this should be dragged into the light, merely because the husband and wife could not agree as to the amount of the wife’s allowance”.
For those who wish to read more of this case, a copy of these papers can be viewed in the State Library of Victoria.
The family’s home in those days was in Auburn, a small suburb within the City of Hawthorn, some five miles from the heart of Melbourne. This two-storey house with verander all round in the homestead tradition of Australia was named `Edlington’ after the 1st Viscount’s home in England. It was situated on the corner of Burwood and Auburn Roads, a most valued piece of real estate at the turn of the century, and known on old maps as Molesworth’s Corner. Today there is an Edlington Street, near the corner, to mark the place where this house once stood.
Death of Sir Robert Molesworth
From a 1890 Melbourne Newspaper:-
“Another of the eminent public men who have been intimately associated with the history of Victoria, almost from its first days of independent colonial existence has passed away, in the person of Sir Robert Molesworth, who died at his residence Edlington’ Auburn Road, Hawthorn, on Saturday. The deceased, who arrived in the colony in 1853, had for some years past been in failing health, his advanced age being the cause of a gradual break-up of the system. He was not, however, confined to his bed, and was able to take carriage exercise daily up till Thursday evening last.
“On the afternoon of that day, accompanied by his son, Judge Hickman Molesworth, Sir Robert drove out to take his usual airing, and appeared to be in his customary state of health. On Friday afternoon, however, he complained of feeling unwell, and took to his bed. Dr McCrea was called in, and as the patient seemed to be sinking the services of Dr Robertson were also obtained, but medical