Australian Dictionary of Biography

John Madden (1844-1918), by Johnstone, O'Shannessy & Co

La Trobe Picture Collection, State Library of Victoria, IAN01/02/93/8

Sir John Madden (1844-1918), chief justice, was born on 16 May 1844 at Cloyne, County Cork, Ireland, eldest surviving of seven sons of Catholic parents John Madden, attorney from 1848, and his wife Margaret Eloise, née Macoboy. Madden senior was manager of Ark Life Insurance Co. in London for three years before the family migrated to Melbourne, arriving in January 1857. He was admitted as attorney in the Supreme Court of Victoria on 9 April. A great racing man, although he never placed a bet, he contributed hunting notes to the Australasian for many years before his death in 1902.

John junior attended preparatory school in London and the Marist College at Beauchamps, France; he mastered the French language and learned some Italian and German. In Melbourne the Madden brothers attended St Patrick's College. John later recorded fond memories of this school but confessed that, in his early years, he preferred outdoor activity to study. He matriculated at the University of Melbourne in 1861, graduating B.A. with third-class honours in 1864 and LL.B. with the Billings medal as one of the first four law graduates in 1865.

After serving articles with (Sir) Edward Holroyd, Madden was called to the Bar on 14 September. He failed his LL.D. examination in 1868 but persevered and was the first admitted to that degree, in 1869. He had early success at the Bar (helped by having a father and two brothers, David and (Sir) Frank, in practice as solicitors) and on 27 August 1872 at St Mary's Church of England, Caulfield, he married Gertrude Frances Stephen, a great-niece of Sir Alfred Stephen; they had six daughters and one son.

In 1871 Madden unsuccessfully contested West Bourke for the Legislative Assembly. A conservative and free trader, he won the seat in 1874 but was defeated next year, after accepting the office of minister of justice in the McCulloch administration. His reactionary stance in October in favour of the retention of property qualifications for Legislative Council electors, coupled with his condemnation of the bulk of mankind as too stupid to be entrusted with 'the rights of property', led to fierce onslaughts against him by the Catholic Advocate and the Age and helped to lose him his seat. He remained a member of the ministry, however, and after winning Sandridge (Port Melbourne) in a by-election in July 1876 held that seat until 1883. He was again minister of justice in the Service ministry (March to August 1880).

Madden disliked the concept of a labour bureau, believing that men should 'go about the country' seeking work themselves. He opposed loans to selectors in 1878 and lent uncritical support to the felons' apprehension bill, to enable the Kellys to be shot down like kangaroos. In 1880, however, convinced that a miscarriage of justice had taken place, he pressed in the assembly for the prerogative of mercy to be extended to J. F. Laurence, then under sentence of death. In August 1882 Madden and his brothers William and Walter were named by the Age as partners in a land and railway fraud. Vigorous denials in the House by Madden met the allegations, and it seemed that the newspaper had blundered.

Madden was enormously busy in the decade after 1883. In his early years he had specialized in Equity but he soon moved into general law. Many qualities were attributed to him as a barrister: learning, meticulous preparation, mastery of practice, grasp of facts and forthright common sense. These, along with his polished diction, persuasive voice, pleasing smile, good humour, courtesy and self-confidence, helped to make him 'a brilliant advocate and formidable legal gladiator'. (Sir) Frederic Eggleston, however, summed him up as a man 'able to conceal the shallowness of his mind very successfully'.

The doyen of the Bar for many years, along with James Purves, Madden in 1890 engaged in 150 of the 506 cases heard in the Supreme Court and undertook about the same number in the Full Court. Table Talk criticized barristers of his kind who made 'most of their money by accepting so many briefs that they cannot possibly stay in Court all the time a case lasts'. Madden's annual income at the height of his career has been estimated as between £7000 and £20,000, hence his refusal of two offers of a puisne judgeship. He vehemently opposed legislation for the amalgamation of the professions of solicitor and barrister, arguing that barristers, as potential judges, should remain aloof from the public (though he never observed this dictum himself) and that amalgamation would make law more costly. His assault on the implementation of the Legal Profession Practice Act (1891) rendered it largely abortive. Table Talk maintained that barristers like Madden and Purves fought the Act from fear that it would expose them to well-deserved charges of negligence.

When 48 Madden accepted the chief justiceship, at £3500 a year, and was sworn in on 10 January 1893. This occasioned much astonishment, (Sir) Hartley Williams having been tipped to succeed George Higinbotham; Williams wrote a furious letter to the Argus slating the appointment. Perhaps Madden's political outlook and experience contributed to his success, as well as his general presence: 'that dapper man with good manners and charm', Dame Mabel Brookes recalled. The Bulletin later suggested that the appointment was a gift from Premier William Shiels to his friend.

Madden's obituarists did not see him as a great judge. The Argus wrote that 'his application of legal rules to the issues found was not always as clear and precise as the acuteness of his mind would have led one to expect'. His old enemy the Age said that 'his decisions did not always carry conviction in the minds of his brother jurists'. Certainly many of his decisions were reversed by the Full Court. His colleague Holroyd was openly disturbed by the uncritical manner in which the new chief justice paved the way for the reconstruction of the Commercial Bank in 1893. Nor was Madden without critics that year when his decision freed F. Millidge and Sir Matthew Davies, two fraudulent 'land-boomers'. Madden's judgment in Wollaston's case (1902), concerning income tax, was described by Andrew Inglis Clark as 'full of false history, bad political science, bad political economy, bad logic and bad law'. Some of his judgments were laced with humour and others with pontification; his concern for women was frequently apparent. The loquacity of Madden 'the garrulous' was underlined in a judgment lasting eight hours, reputedly the longest on record in the Supreme Court.

Madden was appointed lieutenant-governor in 1899, having acted as governor with great aplomb at various times from 1893. His most publicized action in this capacity was his signing of the proclamation which declared the week beginning 1 May 1893 a 'banking holiday'. He adhered strictly to constitutional usage, refusing to grant Sir George Turner a dissolution in December 1899.

Madden preserved links with the University of Melbourne. In 1864 he had been acting-registrar for five weeks; in the early 1870s he helped to administer matriculation examinations and in 1873 he applied unsuccessfully for a lectureship. In 1875-82 he was warden of the senate. He was a member of the council from 1879, though he was removed for non-attendance for a period in 1885. In 1889 the council elected Madden unpaid vice-chancellor, despite the justified qualms of Henry Bournes Higgins that he would not devote the requisite time to the job. He resisted most proposals to modernize university government, though he favoured the scheme for a paid full-time vice-chancellor. In this context, a well-publicized confrontation took place in 1890-91 with the youthful Professor Edward Jenks. Madden succeeded Sir Anthony Brownless as chancellor in 1897. He was noted for his eloquent speeches, his skill in chairing committees, and his unwillingness to interfere with departments. A traditionalist, he did, however, in 1911 urge the retention of Latin in the law course.

Knighted in 1893, Madden was appointed K.C.M.G. in 1899 and G.C.M.G. in 1906. Lady Casey spoke of his 'wide Irish face' and his 'moustache stiffly waxed in points'; sometimes he wore pince-nez. A keen sportsman, though illness forced him to abandon strenuous effort after 1903, he had been a fox-hunter, boxer and rower. He had also correctly and profitably dreamed the winner of the 1887 Melbourne Cup. He was fond of functions where he could exercise his pleasing wit, and enjoyed being patron of the Victorian Lacrosse Association and president of the Victorian Amateur Athletic Association, the Olympic Sporting Federation and the Savage Club (1911-18). He was a loyalist and Imperialist and deemed it proper, while chief justice, actively to support recruitment for the South African War and conscription during World War I. His Catholicism was not much evident and 'he never took any interest in the doings of his compatriots'.

In 1887-1913 Madden lived at Cloyne, a splendid St Kilda mansion where lavish entertainment abounded. He was an indulgent father. Leisure periods saw the family at their country property Yamala, Frankston, where Madden produced hay and dairy goods, and enjoyed his farming, gardening, carpentry and house-painting. He spent the last five years of his life at Cliveden Mansions, East Melbourne. He died, suddenly, on 10 March 1918 at South Yarra, survived by his wife and children and leaving an estate valued for probate at £29,082; he was buried in the Catholic section of Melbourne general cemetery. Lady Madden, president of the Bush Nursing Association and the Austral Salon, died in 1925.