Two Courts, Two Philosophies

Two Judicial Approaches to Marriage in 1895

Feb 28, 2025

In 1895, a Melbourne newspaper satirised the contrasting judicial approaches to marriage disputes in the city. The poem, published in The North Melbourne Courier and West Melbourne Advertiser, referenced my great-grandparents, Walter and Martha Todman, whose case had become a talking point in Melbourne's courtrooms, particularly highlighting the stark differences between two courts' handling of marital cases.

The article containing the poem compared the approaches of two Melbourne courts—one in South Melbourne and the other in North Melbourne—when dealing with marital cases. Walter and Martha were not mentioned directly, but the preamble referenced a common courtroom phrase at the time: “put them both in a bag and shake ’em up.” This phrase, appearing in multiple reports of their case, suggested that the solution to marital discord was simply to force the couple to reconcile.

The poem, published in the Permiskus Pars column on Friday, 20 December 1895, reflected the starkly different attitudes of two magistrates.

Ronuj, ‘Permiskus Pars’, North Melbourne Courier and West Melbourne Advertiser, page 3. Accessed 20 November 2016 http://nla.gov.au/nla.news-article103238468

The article refers to the magistrates as 'Solons'—a term derived from the Athenian statesman and meaning 'a wise and skilful lawgiver'—though their contrasting judicial philosophies suggested very different interpretations of wisdom.

"At Prahran, where Dr. Fetherston is the presiding Solon, it is ruled in court that a woman, when she marries, must accept her bargain for better or worse. The best thing to do when married people disagree is to ‘put them both in a bag and shake 'em up’—essentially forcing them back into each other’s arms."

The poem continues, contrasting the judicial philosophies of two magistrates:

"When mammy wants papa to shout,
And bangs the blessed things about,
Unless he does, he'd best go out
And get a blue prescription from
The Doctor ruling at Prahran,
Who, pitying the average man,
Will always do the best he can
To stiffen Poll, if she whacks Tom
In the mouth,
Down South.

But Polly'll get full leave to flirt,
And pass her boss like so much dirt
When out of doors—and if he's hurt,
Get maintenance apart—if she
Consults the veteran Dr. Lloyd,
Who never gets so much annoyed
As when he cannot well avoid
Subduing his famed chivalry,
In his wrath,
Up North.”

Two Magistrates, Two Philosophies

The poem highlighted the distinct judicial philosophies of the two magistrates presiding over Melbourne’s courts.

Dr. Fetherston (South Melbourne Court, "Down South")
Dr. Fetherston believed that marriage was a lifelong commitment, from which neither party could easily escape. The sentiment "woman when she marries must accept her bargain for better or worse” reflected his strict stance that couples should be encouraged, or even forced, to stay together.
Dr. Lloyd (North Melbourne Court, "Up North")
Dr. Lloyd, on the other hand, was widely regarded as a champion for women. Known as "the Friend of Women," he frequently ruled in favour of wives and unmarried mothers in disputes with men. Table Talk in 1895 described his courtroom as a refuge where women in distress sought justice:

“It is a well-known fact that wives seeking alimony from their husbands, and women requiring orders of the court for maintenance for their illegitimate children, go to North Melbourne to reside for a time in order to be able to bring their grievances before Dr. Lloyd. And Dr. Lloyd is proud of his reputation in this way.”ⁱ

His reputation was so well established that claimants would openly declare their intention to take cases to North Melbourne after being denied maintenance elsewhere. As Melbourne Punch observed:

“A reputation for consistency is rapidly bringing game to Dr. Lloyd and the North Melbourne Bench... If you can't get a maintenance order in any other court, give Dr. Lloyd and Co. a trial. Satisfaction guaranteed.”ⁱⁱ

This reputation was evident in the courtroom behaviour of disappointed claimants. As one newspaper reported, a woman who lost her case in South Melbourne afterwards declared her intention of taking the matter to the North Melbourne Court, as she would get justice there!

Courtroom Language and Social Attitudes

A modern Day photograph of the “Prahran Court House and Police Station” in South Yarra, photographed by Sandra Williamson 2 January 2016

The poem and accompanying commentary reflected not only judicial differences but also broader societal attitudes toward marriage and gender roles.

The phrase “a blue prescription from the Doctor ruling at Prahran” likely referred to the blue-colored prescription pads used by doctors at the time, metaphorically representing the harsh 'medicine' dispensed by the Prahran court.
The line “Will always do the best he can / To stiffen Poll, if she whacks Tom / In the mouth” suggests that “stiffen” in this context meant to punish, implying that the South Melbourne Court would discipline women who lashed out at their husbands.

Post-Natal Depression?

One intriguing element of the poem’s preamble is its reference to treating not only “the ills of the body, but also those of the spirit.” Today, this phrase might be interpreted as referring to post-natal depression or mental health struggles within marriage. Given the tumultuous nature of Walter and Martha’s relationship, I can’t help but wonder—did my great-grandmother suffer from post-natal depression? If so, how would the rigid legal and social structures of the time have shaped her experience?

Echoes Across Generations

The satirical poem about Melbourne's dueling courts offers a rare window into the legal and social landscape my great-grandparents navigated. While newspapers of the day treated marital disputes as fodder for public amusement, behind the witty verses lay real families struggling with complex issues that courts were ill-equipped to address.

The contrasting approaches of Dr. Fetherston and Dr. Lloyd reveal a society in transition—caught between traditional views of marriage as an unbreakable contract and emerging recognition of women's rights and autonomy. That my great-grandparents' case became emblematic of these wider social tensions suggests their personal struggles resonated beyond their private lives.

Whether Martha suffered from mental health challenges we would now recognize as post-natal depression remains unknown. What is clear, however, is that the judicial system of 1895 Melbourne offered limited paths for couples in crisis, either forced reconciliation or separation with financial consequences. Neither approach addressed the underlying human needs for support, understanding, and compassion.

Through period publications, I’ve gained insight into Walter and Martha’s legal troubles and a deeper appreciation for how social attitudes and judicial philosophies shaped their lives—echoes of which still resonate in family law today.

Useful Links for Background

WikiTree profiles for James Lincoln Temple Willoughby aka Walter Todman (1866 - 1929) & Martha Sarah Simpson nee Ellis aka Simpson (1870 - 1950)

Originally posted on Blogger as “Immortalised in a Poem” on 24 November 2016
Author’s Note: This article is a revised and expanded version of that piece.

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Author 2025, Sandra Williamson

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Sources:

Newspapers

The poem was published in "PERMISKUS PARS” Column on December 20, 1895 in the North Melbourne Courier and West Melbourne Advertiser (Vic. : 1895 - 1913), p. 3., The original can be seen here https://nla.gov.au/nla.news-article103238468 [Retrieved February 27, 2025]

Other relevant newspaper articles include the following:

‘Magisterial Humour’, Table Talk, 17 May 1895, p. 13. Retrieved 27 Nov. 2015, from http://nla.gov.au/nla.news-article145921427
Synopsis of article: Discusses Dr. Lloyd’s reputation as "the Friend of Women" and his judicial tendencies.
DOMESTIC TROUBLES. EXTRAORDINARY REMARKS BY A JUSTICE OF THE PEACE. (1895, December 10). The Argus (Melbourne, Vic. : 1848 - 1957), p. 5. Retrieved February 27, 2025, from https://nla.gov.au/nla.news-article8883765

Research Note : Walter Todman appeared before the Prahran Police Court, accused of leaving his wife, Martha Todman, without financial support. Martha testified that Walter, a waiter, usually handed over his earnings but had refused to do so for over a week. She claimed his temper and offensive language made living with him unbearable.
Dr. Featherston, J.P., dismissed her concerns, insisting she had married him “for better or worse.” When Martha admitted to striking Walter with baby clothes, the magistrate suggested the situation was her own fault, remarking that “few men can stand a slap in the face.” He further stated that the couple should be "put in a bag and shaken up together," calling Walter “a bit of a mule.”
Despite his remarks, the court ordered Walter to pay 20 shillings per week in support and provide a £25 surety to ensure compliance.

DOMESTIC TROUBLES. (1895, December 11). Mount Alexander Mail (Vic. : 1854 - 1917), p. 2. Retrieved February 27, 2025, from https://nla.gov.au/nla.news-article198250800

Research Note: Duplicate article of DOMESTIC TROUBLES. EXTRAORDINARY REMARKS BY A JUSTICE OF THE PEACE.

FOR BETTER OR WORSE. AN IDEAL J.P. (1895, December 13). Warragul Guardian (Warragul, Vic. : 1895 - 1900), p. 2 S. Retrieved February 27, 2025, from https://nla.gov.au/nla.news-article67446720