This article was published in Australian Dictionary of Biography, Volume 1, (MUP), 1966
Sir William Westbrooke Burton (1794-1888), judge, was born on 31 January 1794, the fifth son of Edmond Burton, solicitor and town clerk of Daventry, Northamptonshire, England, and his wife Elizabeth, née Mather. He was educated at Daventry Grammar School and entered the navy as a midshipman in 1807. He served in the Conqueror under Fellowes, later rear admiral, who was a very strict disciplinarian, a circumstance which Burton considered to have greatly influenced him throughout his career. He also served in the Barham, Tonnant and Ortando, visiting Lisbon, Cadiz, the Canaries, the Mediterranean, the East and West Indies and China. He saw active service at New Orleans, and at Toulon where he was wounded. Called to the English Bar at the Inner Temple in November 1824, he served as recorder of Daventry in 1826-27 including the presidency of the local Court of Quarter Sessions. He also practised as a conveyancer and special pleader. In 1827 he accepted a seat on the bench of the newly constituted Supreme Court at the Cape of Good Hope as second puisne judge at a salary of £1500, the chief justice being Sir John Wylde who had been deputy judge advocate in New South Wales.
On 15 April 1827 Burton married Margaret, daughter of Leny Smith of Homerton. He went to Holland where he studied the Dutch language and Roman Dutch law for six months before sailing for the Cape. He took his seat after the oath was administered on 1 January 1828 and drafted rules regulating the form of procedure of the Supreme Court in civil cases and helped to make rules for criminal cases. He drafted the Insolvency Ordinance and published a text book on insolvency law.
On 1 March 1832 he was appointed to the bench of the Supreme Court of New South Wales. Governor (Sir) Richard Bourke, who had met him at Cape Town, welcomed the appointment. Burton arrived at Sydney in the Leda with his wife and his nephew, Henry Burton Bradley. He was sworn in on 22 December 1832, under 9 Geo. IV, c. 83 as he had arrived direct from Cape Town without a commission from the King. He accompanied Bourke to the Hunter River on 15 April 1833, the party including Edward Deas Thomson, with whom he was later to be closely associated. In the Supreme Court one of the earliest important cases in which he sat was Macdonald v. Levy (1833, Legge 39), in which the question arose whether an English Act limiting interest rates was to apply in New South Wales. He dissented from (Sir) Francis Forbes and (Sir) James Dowling in contending that the Act did apply, declaring that if English settlers 'have not the law of England for their guidance, they have none'. The majority thought that in the peculiar economic conditions of the colony the English rates were too low to be practicable.
In 1834 he visited Norfolk Island and presided at the trial of the leaders of an insurrection on the island, as a result of which thirteen were executed. The trial troubled him, for he wrote later: 'The wretched men were returned to their cells and the Judge to his sad meditation'. He arranged a reprieve until the case had been considered by the Executive Council and the men had religious consolation. On 18 November 1835 at the close of the criminal sessions of the Supreme Court he addressed the Petit Jury and expressed views that gave rise to much controversy. He detailed the numbers of capital convictions in 1833-35 and expressed the opinion that 'the grand cause of such a state of things was an overwhelming defect of religious principle'. He said that the number of religious teachers was inadequate and that masters of convicts were not sufficiently attentive to the morals of the men. He considered that both bond and free occupying waste lands had acquired a degree of wealth 'which must lead every reasonable man to the conclusion they do not get it honestly'. He deplored the large numbers of convicts congregated in Sydney and the custom of licensing unsuitable persons to conduct public houses.
Forbes and Dowling disagreed with these opinions and Bourke added his own criticism in his dispatches. John Dunmore Lang and Samuel Marsden supported Burton and his address was relied upon in a petition to the British government for reforms in 1837 and in the report of the select committee on transportation in 1837, as a result of which New South Wales ceased to receive convicts. On 2 May 1836 Bourke asked for the opinion of the judges whether the verdicts of juries of civil inhabitants had or had not answered the ends of justice. Forbes and Dowling, Solicitor-General John Plunkett and Attorney-General John Kinchela answered in the affirmative. Burton contended that the results of all jury trials since their introduction would not afford a criterion of judgment to answer the questions. In trials before himself only a few had resulted unsatisfactorily, to him, but where this had occurred it was usually by way of acquittal; he felt that there was an improper prejudice in favour of the parties accused. The judges were further asked at the end of 1838 to give opinions on proposed changes in the New South Wales Constitution. Burton gave a long opinion which included the view that a fourth judge would be necessary if jurisdiction were to be extended from Moreton Bay to Port Phillip. He further recommended a separation of the registry of deeds from the Supreme Court, and this was accepted by legislation in 1842.
He took leave in 1839, and a subscription of £1200 was raised for him to found a scholarship for sons of clergymen; this was the origin of the Burton scholarship at The King's School. While on leave he contributed an article to the Colonial Magazine criticizing the picture presented to parliament by the select committee on transportation on the ground that it did not portray the whole of society in New South Wales. He suggested that the condition of the colony should be investigated by a select committee of the Legislative Council. He published The State of Religion and Education in New South Wales (London, 1840), and referred in his introduction to the committee's findings, for he regarded his volume as an appendage to that report. He concluded that the transportation system had failed chiefly through the continuing deficiency in religious education, for which he advocated remedial measures. The book also contained much of a sectarian nature: he had previously shown bias against Roman Catholics by taking action to prevent witnesses of that faith from making the sign of the Cross when being sworn. The book evoked a reply from Bishop William Ullathorne, who alleged that in it a party of discontented men 'poured together, as into a common receptacle all their statistic griefs, their arithmetic tears and pecuniary distresses'. Ullathorne declared that the Church of England had never been established in New South South Wales and concluded with a bitter personal attack upon Burton in his judicial capacity, suggesting that he should never preside where a Catholic was a party or a witness.
In London Burton was presented to the Queen. He returned to Sydney in March 1841. The economic depression underlined the need for relief to insolvent persons, and Burton drafted an insolvent bill and published The Insolvent Law of New South Wales (Sydney, 1842). He incorporated in the bill certain elements of Roman Dutch law which had been introduced into the similar Act at the Cape. Burton took a keen interest in the cause of the Aborigines, providing two important judicial decisions. The first arose from the trial of an Aborigine named Murrell on a charge of murder. The defence was that the defendant was a member of a tribe which had inhabited the territory before its occupation by Great Britain and was therefore not subject to English law. Burton ruled, however, that Aborigines were amenable to English law. The second case related to a trial of whites for the murder of Aborigines on the Liverpool Plains. Burton extended the same principle, applying the protection of English law to Aborigines notwithstanding that those charged were British subjects.
Burton left Sydney in 1844 to become puisne judge at Madras, and while there he was knighted. In India he expressed interest in the emigration of young Indians to Sydney. Correspondence by Burton with Dr James Mitchell and Deas Thomson in this period mentions the death of Burton's wife in September 1846, his loss of interest 'in the rank, station and pecuniary advantages of his office' and his subsequent marriage to Maria Alphonsine, daughter of John Beatty West, M.P. for Dublin, and a granddaughter of his uncle, Judge Burton of Dublin. There were no children of either marriage. In 1857 he returned to Sydney with his second wife.
Almost immediately, on 11 August 1857, he was sworn in as a member of the Legislative Council, and some days later he told the House that 'he had come here amongst them for the remainder of his days; he had chosen it as his place of rest'. He took a lively interest in the early proposals for Australian federation, and was included in the select committee of the council appointed to investigate the subject. Burton felt that there should be a body to legislate for the whole in such a way that commerce and the best interests of all the colonies might be promoted. The New South Wales council adopted the proposals, but Victoria, Tasmania and South Australia did not, thus making it impossible for the British government to adopt them.
In December 1857 Burton introduced a report of a select committee on the constitution of the Supreme Court. He recommended a separate equity court judge who should also have jurisdiction in ecclesiastical matters and supervision of intestate estates. This motion was accepted by the House. He closely followed the pattern of English legal practice in this as in other matters such as the division of the legal profession into barristers and solicitors.
Burton was appointed president of the Legislative Council on 9 February 1858 and had some remarks to pass on abortive legislation, preceding the introduction of the Torrens system of land registration. He felt that the administration of any such system could be entrusted only to the Supreme Court. When the Robertson land legislation came before the council in May 1861, Burton learnt on his way to the council that it was intended to swamp the chamber with new members to pass this legislation. On arriving at the House, Robertson informed him of the intention to appoint twenty-one new members. In a letter Burton pointed out the alternatives of recommittal, or a dissolution, or a conference of the two Houses, and concluded by tendering his resignation. In the House, from the upper step in front of the Chair, he declared that he had been treated with discourtesy by not being consulted on Robertson's unorthodox proposal; he resigned as president and member, and withdrew. He was followed by a majority of the members, thus making it impossible to form a quorum, and the legislation was not carried until the next session. Burton justified his action strenuously in newspaper correspondence, but his 'place of rest' had been disturbed. He left Sydney that year and went to London, where he died on 6 August 1888. It has been said that in this period he wrote a book on religion addressed to the natives of India, but blindness supervened and it is not known whether the book was completed.
Burton was a competent judge and played a useful part in the development of the technical law of the colony, but with rather more emphasis on following English example than on developing new ideas; indeed, in some respects he failed to keep pace with the progress of law reform in England itself.
K. G. Allars, 'Burton, Sir William Westbrooke (1794–1888)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/burton-sir-william-westbrooke-1857/text2159, published first in hardcopy 1966, accessed online 24 October 2016.
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 1, (MUP), 1966