Australian Dictionary of Biography

Henry Bournes Higgins, 190?

National Library of Australia, 23458326

Henry Bournes Higgins (1851-1929), politician and judge, was born on 30 June 1851 at Newtownards, Down, Ireland, second son of Rev. John Higgins and his wife Anne, née Bournes. John Higgins, brought up in the Church of Ireland and destined for a safe career in a bank, displeased his father by entering the Wesleyan ministry. He and Anne Higgins were devoted parents to their six sons and two daughters, who grew up in an atmosphere of evangelical piety and genteel frugality. Henry, deemed to be a 'delicate' child and inhibited by a bad stammer, was particularly dependent on his proud and ambitious mother. At 10 he was sent to St Stephen's Green (the Wesleyan Connexional School), Dublin, an austere institution which nevertheless provided the rudiments of a classical education. Ill health led to his withdrawal at 14, but he was able briefly to resume his studies at a local school at Newry. After lowly jobs in a drapery warehouse in Belfast and a merchant tailor's shop at Clonmel, Henry gained more congenial employment as a clerk in a furniture warehouse in Dublin. In 1869 the death from consumption of his elder brother James confirmed John and Anne Higgins in their resolve to migrate. A doctor recommended Victoria for its healthy climate.

The family arrived in Melbourne on 12 February 1870. Henry gained his common schools teacher's certificate and also matriculated. Working his way through the University of Melbourne (LL.B., 1874; M.A., 1876), he taught at various schools and undertook private tutoring, his pupils including sons of Andrew Chirnside and David Syme. Higgins had an outstanding record at university in languages, logic, history, political economy and in Shakespeare, being several times exhibitioner. But he committed himself to law, reasoning that it would force him to cure his stammer in order to speak in court, though when he went to the Victorian Bar in 1876 he chose equity because it would not require him to address juries.

His years at university introduced him to the great intellectual issues of the day and acclimatized him to colonial society. He was much influenced by the teaching of William Hearn in political economy and history; in particular, chapter 16 of Grote's History of Greece, in which the author analysed the decline of 'Grecian Mythes' as religious truth, shook his spiritual world 'like an earthquake'. Disturbed by the Christian concept of hell, Higgins committed his anguished doubts to a diary in cipher, and shed the simple Wesleyanism of his father. Though he came close to agnosticism, he seems to have retained some sort of religious faith; years later Garnet Portus said that he had never met anyone 'so aloof from religion in any sense of creed, whose life lay so deep in the things of the spirit'. Higgins was a foundation member of the debating society which Charles Pearson inspired. His closest friends were Alfred Deakin, Alexander Sutherland and Richard Hodgson: Catherine Deakin was to recall them as 'a brilliant quartet'.

Higgins began to prosper at the equity Bar. In 1883 he bought land on Glenferrie Road, Malvern, on which he built the mansion Doona. In 1887 when he succeeded (Sir) Thomas à Beckett as leader of the equity Bar, he was expecting to earn about £5000 a year. He did not take silk until 1903. Higgins's success was central to the family's fortunes, and enabled his younger brothers also to enter the professions, John becoming an accountant, George a civil engineer (and later associate professor at the university) and Samuel a doctor. His sister Anna was among the first women to enter the university; Ina studied at the Burnley Horticultural College and practised as a landscape gardener.

On 19 December 1885 Higgins married Mary Alice, daughter of Dr George Morrison and sister of George Ernest 'Chinese' Morrison. Mary Alice was a tall, imposing young woman described by Higgins's niece Nettie Palmer as possessing 'a prominent sense of duty combined with a sense of humour nourished by a household of brothers'. After the wedding they went on a world tour. In 1887 Mary Alice gave birth to their only child Mervyn Bournes. He was educated at Melbourne Church of England Grammar School, Ormond College, University of Melbourne, and Balliol College, Oxford, where he achieved more success as a rower than as a scholar. When in 1903 Higgins acquired Heronswood at Dromana, which had been built by his old teacher Hearn and later owned by his friend Sutherland, it was largely with Mervyn's enjoyment in mind.

Once his success at the Bar was established, Higgins turned to public affairs. Perhaps his first appearance on a public platform was in 1883 when John and William Redmond visited the colonies to rally support for Irish Home Rule. The Redmonds met a hostile and sectarian reception but the fear of Higgins and his colleague (Sir) Frank Gavan Duffy that they were jeopardizing their careers by appearing on the Redmonds' platform (solicitors, according to Higgins, were 'usually bitter reactionaries') proved groundless. In 1887 Higgins was prominent in a protest against the Irish coercion bill, and throughout his political career he was dedicated to the Irish cause, culminating in 1905 in his moving a resolution in the Commonwealth parliament which urged Britain to grant Home Rule.

The fact that Higgins entered politics just as Victoria's prosperity evaporated had a marked influence on the development of his outlook. In 1892 he stood unsuccessfully for Geelong. He ran again in September 1894 and was elected as a general supporter of (Sir) George Turner whose government was committed to balancing the budget, while making some gestures toward social reform. Like his mentors Hearn and Pearson, Higgins had grown up in the tradition of free-trade liberalism, but recognized that to oppose protection in Victoria was, particularly for a liberal, political folly. Although not a single taxer he had been influenced by Henry George and was an ardent supporter of the tax on the unimproved value of land, which Turner made a desultory attempt to introduce; and Higgins voted for the income tax as a financial necessity rather than as intrinsically just. In the 1890s his analysis of 'the social problem' led him to assert the need for a more positive state role in the economy. Consequently he supported the Factories and Shops Act, passed in 1896, providing for the trial introduction of a general minimum wage in some of the trades worst hit by the depression. The Act paved the way for the wages board system and stimulated Higgins's interest in industrial relations. In 1897-99 he was chairman of a royal commission on legal procedure.

In 1897, after an energetic campaign, Higgins was elected on the Age ticket as one of Victoria's ten delegates to the Australasian Federal Convention of 1897-99 which framed the Commonwealth Constitution. The great majority of delegates tended to assume that only a Federation along American lines was feasible. But to Higgins Federation was 'a mere word' and 'a mere question of a mode of government'. Although he was hardly a unificationist, he believed that Federation was 'unification for certain purposes', and once these purposes had been defined he saw no justification for the Senate being a States' House; he was one of the few delegates who opposed the equal representation of the States in the Upper House. His concern lest a written constitution became 'a dead, lifeless thing which no arts of persuasion can reach' led him to urge the need for flexibility, with a practicable means of amendment. Although some of his convention colleagues were quick to dismiss Higgins as a constitutional eccentric, his role in the proceedings was recognized as significant and often constructive. At the Melbourne session he finally carried, with Charles Kingston's help, the conciliation and arbitration amendment; while both would have preferred a much wider power for 'the prevention and settlement of industrial disputes', they realized that only a provision covering interstate disputes would win acceptance. His other major contribution reflected his concern for personal rights. When Patrick Glynn succeeded in introducing 'Almighty God' into the preamble, Higgins carried an amendment, which became section 116, preventing the Commonwealth from making any law prohibiting the establishment of, or free exercise of any religion, or the imposition of any religious observance or test.

During the convention it was by no means clear that Higgins would emerge as an opponent of the Constitution; indeed, even during the last Melbourne session he was still urging moderation on some of his colleagues. Only when the convention rose did he confess his opposition to Deakin, who persuaded him to reflect further. This delay may have been significant, because the lack of focus for opposition in Victoria helped to persuade the waverers, among whom were the Age and Premier Turner, that victory for the Federalists was certain. When Higgins did speak out he found only scattered and ill-organized allies, the most notable of which was the Trades Hall Council. In Victoria Higgins conducted a lively if fatalistic campaign, but his help was much sought after in New South Wales where opponents of the Federal enabling bill were anxious to refute the charge of provincialism. Even in final defeat Higgins feared that Australia had been saddled with a rigid and repressive Constitution. He was one of only two convention delegates to oppose the bill.

Higgins's lonely dissent over Federation made him a controversial figure in Victoria, a reputation which he soon compounded by being one of the small minority to oppose the dispatch of a contingent to the South African War in 1899. He was shocked that people could 'go into war with a light heart, and without inquiring closely into the justice of it', and objected that Imperial sentiment was being exploited to excuse the colony from making its own assessment. Higgins further isolated himself from many of his liberal friends by defecting from Turner and assisting in the defeat of his government. It was widely expected that he would be attorney-general in the ministry formed by Allan McLean in 1899, but the new premier shrank from an appointment which would have alienated many of his supporters. Two months later Higgins launched a motion of no confidence against the McLean government, but suffered parliamentary humiliation when he was deserted at the last moment by the Liberals. Thus when Higgins faced his Geelong electors in 1900 he no longer seemed the cautious progressive they had re-elected in 1897, but was easily depicted as a perverse and wayward radical. At a memorable campaign meeting he was asked why he had opposed the South African contingent, and promptly responded, 'Because I regarded the war as unnecessary and unjust'. Members of the audience immediately produced Union Jacks and the ensuing patriotic demonstration broke up the meeting. Higgins's other heresies—his anti-Federalism, secularism, support for Home Rule, even his lack of enthusiasm for protection—were all quoted against him, and he suffered a decisive though not overwhelming defeat.

Though his career in Victorian politics ended in notoriety, many in the labour movement now looked to him for leadership in preference to William Trenwith, who had supported the Constitution. In the first Federal elections Higgins stood for North Melbourne, a predominantly working-class constituency. He pledged himself to the Labor platform, though declining to join the party which nevertheless gave him tacit support. Although a Deakinite, on issues such as conciliation and arbitration, defence and White Australia Higgins was in broad agreement with the Labor party. In 1904, in what he called 'the most good-humoured crisis I have ever known', he was one of the radicals who helped bring down Deakin's government, when it shrank from bringing State railway workers within the ambit of the arbitration legislation. Labor suddenly found itself in office, and Prime Minister Chris Watson invited Higgins to be attorney-general. Feeling, as he put it to Deakin, that 'the poor fellows need encouragement', Higgins accepted, but maintained a low profile during the government's few months of office. He was angered, however, by the tactics used to eject the government: 'we came into office without cadging', he said, 'and we shall go out without cringing'.

Perhaps alone among the parliamentary 'friends of labour', Higgins defended Labor's caucus system and the party pledge, arguing that 'if they had not compelled their selected candidates to sign it, they would have had a number of false friends'. He also warned the party 'never to allow itself to be incorporated with any other party' at a time when radical protectionists, led by (Sir) William Lyne and (Sir) Isaac Isaacs, were attempting to negotiate an alliance. When asked why he did not join the Labor Party himself, Higgins was evasive, but implied that he did not attach to 'ultimate theories', by which he presumably meant socialism, the importance which Labor did. Yet Labor was hardly a socialist party, and Higgins himself was a persistent critic of the 'bourgeois principle', his political convictions reflecting an analysis of social class with at least a flavour of Marx; but perhaps his very sensitivity to class divisions helps explain his reluctance to enter the mainstream of the labour movement. Certainly, the high valuation he placed on individual conscience would have made it difficult for him to accept the constraints of caucus.

By 1906 the Labor Party in Victoria was unwilling to continue granting electoral immunity to the radical protectionists. In North Melbourne the party was deeply divided over whether Higgins should be opposed, and an agonizing decision was only avoided by the news of his appointment in October as a justice of the High Court of Australia. Higgins was appointed one day after Attorney-General Isaacs, who thus gained seniority. The new judges, whose appointments were generally well received, joined a bench composed of three other founding fathers, Sir Samuel Griffith, Sir Edmund Barton and Richard O'Connor; it was also understood that Higgins would, after a year's interval, replace O'Connor as president of the Commonwealth Court of Conciliation and Arbitration, in which capacity Higgins was to achieve his greatest fame. In his first case late in 1907 he had to decide whether manufacturer Hugh McKay was paying the 'fair and reasonable' wages to his employees required by the New Protection legislation. Wages boards and State arbitration courts had already made pronouncements about what constituted a fair minimum wage, but in his celebrated Harvester judgment Higgins seized the initiative in spelling out the rights of the worker 'as a human being in a civilized community', entitled to marry and raise a family. Having calculated a family budget for a household of 'about five persons', he settled on seven shillings a day as the minimum wage for an unskilled labourer. Although the New Protection legislation was later declared unconstitutional by the High Court—Higgins and Isaacs dissenting—Higgins continued to apply the Harvester wage as a sacrosanct minimum. In 1909 he earned the wrath of the Broken Hill Proprietary Co. Ltd when he refused to reduce the minimum in the face of the company's threat to close its mine. As the Harvester minimum was considerably higher than that allowed by most State tribunals, trade unions sought to bring their disputes within the jurisdiction of the Commonwealth court. Even the militant Tom Mann, a critic of the arbitration system, conceded that Higgins was 'sympathetic and fair-minded'. On the other hand, to Higgins's distress, employer organizations vilified the court and its president.

In 1914, feeling the stress of work, Higgins took leave of absence from his duties and travelled with Mary Alice to England; there he followed the drama of the outbreak of war with intense interest. He saw no alternative to fighting Germany, and was at first heartened by the unanimity of feeling not only in England, but in Ireland too. He was soon to become disillusioned with the rise of jingoism, and increasingly concerned with the rights of minorities. Their son Mervyn enlisted while they were in Europe; 'brave to the point of fearlessness', he survived Gallipoli, but was killed at Magdhaba, Egypt, in 1916. Mother and father were desolate. 'My grief has condemned me to hard labour for the rest of my life', Higgins wrote.

The war also destroyed the social optimism which had conditioned the growth of wage regulation. Inflation, the conscription referenda and the apostasy of Labor Prime Minister Billy Hughes combined to cause discontent in the trade unions, while employers blamed much of the unrest in the unions on what they deemed the false expectations created by arbitration itself. The Arbitration Court had already been frustrated by decisions of the High Court which created, according to Higgins, 'a Serbonian bog of technicalities'; now it also had to contend with the unpredictable policy of Hughes, who at times urged the court to discipline labour, while at other times he made hasty and irregular settlements with striking unions. From the bench Higgins publicly berated Hughes, who he believed was undermining the arbitration system: in 1920 he gave notice of his resignation as president in protest against the government's legislation providing for special tribunals. Much of the trade union movement, particularly the Australian Workers' Union and the craft unions, rallied to his support, so that when he left the court he was still, for many, 'a friend of labour'. In 1922 he published his apologia, A New Province for Law and Order, which earned him a D.Litt. from the University of Melbourne. The province survived, and Higgins is entitled to be regarded as its greatest explorer.

He remained on the High Court bench until his death in 1929. Through his arbitration years he had joined the other justices in hearing constitutional cases. Although Higgins and Isaacs were both individualists, they united in resisting the narrow federalism of Griffith, Barton and O'Connor. As the personnel of the court changed, Higgins found himself in the majority, and the 1920 Engineers' case marked the new, broader interpretation of Commonwealth power. This shift disguised the fact that Higgins had been consistent in his sympathetic interpretation of legislation, whether Commonwealth or State; he considered the court should be reluctant to pronounce either invalid. Throughout his judicial career he pursued his own distinctive path as a jurist, making his own judgments and hardly ever 'concurring' with his brothers.

Higgins maintained a broad range of cultural interests. He served on the Council of the University of Melbourne in 1887-1923, supporting the admission of female graduates to all privileges and advocating a university extension system. He was privately generous in financial support of students and in 1904 donated £1000 for a poetry scholarship. Poetry was his particular love, and Browning his favourite poet. As early as 1885 he lectured to the Melbourne University Union on 'The Muses in Australia', and he was quick to recognize the contribution of the Bulletin to Australian literature. Deakin acknowledged him as 'one of the parents; if not the chief parent' of the Commonwealth Literary Fund. His strong ties with his niece Nettie Palmer helped to sustain these Australian cultural interests. Nevertheless his interest in Ireland and Irish culture did not decline. After consulting the Irish poet 'A.E.' (George Russell) he made a £20,000 bequest to the Royal Irish Academy which was surprising to friends and family alike.

Always conscious of his childhood 'delicacy' Higgins was in adult years devoted to health and fitness. As a young man he took up a selection in Gippsland to savour something of the pioneering experience. In his early days at Doona he used to ride to St Kilda for a swim before breakfast; he was well known as a rigorous walker, and was a member of the Wallaby Club. He enjoyed conversation and debate, and the shy Irish youth became an 'eminently clubbable' man of affairs. Although critics sometimes thought him self-righteous, his friends generally did not. He delighted in the company of children, many of whom remembered him with affection. In his mature years he presented a deceptively stern image, with his balding pate, serious moustache and direct gaze. Very erect in carriage and rather formal in manner, he was a capable public speaker and lecturer, whose speech still bore the trace of a stammer, and who consequently eschewed oratorical flourishes.

On 13 January 1929 at Heronswood, Higgins went for his regular morning walk to Arthur's Seat, after which he relaxed on the porch with his books. Early in the evening he collapsed and died. The conservative Argus described him as a 'jurist and statesman', while the Trades Hall flew the Australian flag at half mast. He was buried in Dromana cemetery, with Anglican rites, under the Celtic cross which he had built to commemorate his son. He was survived by Mary Alice, and his estate was valued for probate in Victoria at £69,187.