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Sir Francis Forbes and the Earliest Australian Public Law Cases
Published online by Cambridge University Press: 28 October 2011
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There is, among many students of Australian law, a tendency to regard the establishment of constitutional government in Australia in positivistic terms: as a result of the passage of the New South Wales Act in 1823, or of the Australian Courts Act in 1828, or of the Australian Constitution Acts of 1842 and 1850, or even of the Commonwealth of Australia Constitution Act in 1900. This is understandable, for, as Sir Victor Windeyer once put it, there was in the foundation of European society on these islands no element whatever of a social contract. Rather, the move to populate the Australian territories was a consequence entirely of a prospectively looking determination made by the government in London. And, as Windeyer went on to note, the formal establishment of local government was effected by ceremonies that were by their very essence positivistic in nature. On 26 January 1788, there was first a formal ceremony in which the Union flag was raised and a salute fired. Then, on 7 February, the whole population of the colony was assembled and the royal letters patent were read, which formally instructed Captain Phillip to go about the duty of creating a penal establishment.
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References
1. 4 Geo IV, c 96.
2. 9 Geo IV, c 83.
3. 5 & 6 Viet, c 76, and 13 & 14 Viet, c 59.
4. 63 & 64 Viet, c 12.
5. Windeyer, Victor, “A Birthright and Inheritance: The Establishment of the Rule of Law in Australia,” University of Tasmania Law Review 1 (1962): 639.Google Scholar
6. Ibid., 637–38.
7. On this generally, see Holloway, Ian, “A Sacred Right—Judicial Review of Administrative Action as a Cultural Phenomenon,” Manitoba Law Journal 21 (1993): 24.Google Scholar
8. Comprising the Administrative Appeals Tribunal Act 1975, the Ombudsman Act 1976, the Administrative Decisions (Judicial Review) Act 1977, and the Freedom of Information Act 1982.
9. Kercher has been embarked on a Australian Research Council-funded project to publish on the Internet annotated copies of the extant records of the early workings of the Supreme Courts of New South Wales and Van Diemen's Land (now Tasmania). Up until now, the first published law reports in New South Wales were Legge's Reports, compiled in the 1890s, and in which the earliest reported case dates only from 1830. Apart from some scholarly consideration of a few celebrated cases, little is known of the foundation years of the Australian court system. Through the Kercher project, lawyers and legal scholars are now able to access many of the Court's early judgments that have effectively been lost to working history for a century and a half. This piece is one of the early beneficiaries of Kercher's work. Kercher described his project in an article entitled “Publication of Forgotten Case Law of the New South Wales Supreme Court,” Australian Law Journal 72 (1998): 876. The Kercher cases can be found at three web sites: Macquarie University's, http://www.law.mq.edu.au/scnsw, one maintained by Butterworths, http://www.butterworths.com.au/nswcases, and one maintained by the Australian Legal Information Institute (AustLII) http://www.austlii.edu.au/au/special/nswsc/pre1900.
10. John McLaren, “The Rule of Law in the Georgian Settler Colonies of the British Empire: Law and Politics in New South Wales and Upper Canada 1788–1837” (unpublished, 1998).
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12. Evatt, H. V., Rum Rebellion (Sydney: Angus & Robertson, 1938), 127.Google Scholar
13. On this, see generally, Castles, Alex, An Australian Legal History (Sydney: Law Book Co., 1982), 46–89Google Scholar; Kercher, Bruce, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: Federation Press, 1996), 1–22Google Scholar; Whitfield, L. A., Founders of the Law in Australia (Canberra: The Australian National University, 1969), 3–4.Google Scholar
14. Windeyer, “A Birthright and Inheritance,” 641–43.
15. Though Windeyer did note that we do owe them a certain debt for being meticulous record keepers. Ibid., 654.
16. Kercher, Bruce, An Unruly Child: A History of Law in Australia (Sydney: Allen & Unwin, 1995), 48.Google Scholar
17. Whitfield, Founders of the Law, 15.
18. Ibid., 16.
19. Kercher, An Unruly Child, 49.
20. See, e.g., Whitfield, Founders of the Law, 33–35.
21. Kercher, An Unruly Child, 48.
22. Whitfield, Founders of the Law, 29.
23. Castles, Alex, “The Judiciary and Political Questions: The First Australian Experience, 1824–1825,” Adelaide Law Review 5 (1973–1976): 300.Google Scholar
24. As quoted in Kercher, An Unruly Child, 48.
25. Evatt, Rum Rebellion, 20.
26. Kercher, An Unruly Child, 48.
27. Kable v. Sinclair (5 July 1788) was the first civil case conducted in Australia. It involved a claim in detinue by two convicts, Henry and Susannah Kable (or Cable), against the captain of one of the ships in the First Fleet, for goods shipped in England but not delivered in New South Wales. For more on this singular case, see Windeyer, “A Birthright and Inheritance,” 657–64; Castles, An Australian Legal History, 96–97; Kercher, Debt, Seduction and Other Disasters, xviii-xix; Neal, D. J., The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press, 1991), 1–25.Google Scholar
28. Castles, An Australian Legal History, 79; Kercher, An Unruly Child, 57.
29. Whitfield, Founders of the Law, 21.
30. Kercher, Debt, Seduction and Other Disasters, 23–24.
31. See below, note 97 and following text.
32. Kercher, An Unruly Child, 48.
33. Anthony Trollope, Harry Heathcote of Gangoil (1873).
34. On this generally, see Bennett, J. M., A History of the Supreme Court of New South Wales (Sydney: Law Book Co., 1974), 178–82Google Scholar; Castles, An Australian Legal History, 185–88.
35. For more on Forbes, see, generally, Currey, C. H., Sir Francis Forbes (Sydney: Angus & Robertson, 1968)Google Scholar; Bennett, J. M., Sir Francis Forbes (Leichhardt N.S.W.: Federation Press, 2001).Google Scholar
36. Kercher notes that Forbes played a significant role in drafting the bill. See correspondence, Forbes to Wilmot Horton, 26 December 1824, 5 May 1823, and 26 May 1824, Catton Papers (Australian Joint Copying Project), Reel M791, referred to at n. 10, in R v. Magistrates of Sydney (14 October 1824); see below, note 95.
37. Many of Forbes's books are in the collection of the Law Courts Library in Sydney. Others came into the possession of Sir Victor Windeyer and remain in the Windeyer family. Yet others went to the Sydney Library Society, from which they have made their way into private hands. That Forbes took his duty as a judge seriously is evident from the fact that he subscribed to papers from all over the world as a source of law reports. He is said to have read chancery reports for pleasure. J. M. Bennett to author, 11 May 2000.
38. Currey, Sir Francis Forbes, 96.
39. See Dowling, A., ed., Reminiscences of a Colonial Judge: James Sheen Dowling (Leichhardt N.S.W.: Federation Press, 1996), 1–9.Google Scholar
40. See English, C., “Newfoundland's Early Laws and Legal Institutions: From Fishing Admirals to the Supreme Court of Judicature in 1791–92,” Manitoba Law Journal 23 (1995): 55.Google Scholar
41. An expression once used by a more recent English colonial judge to describe his experiences. See Overtson, R., Palm Court (London: Hamish Hamilton, 1979).Google Scholar
42. Castles, An Australian Legal History, 314.
44. Ibid.
45. (1819), 1 NLR 167.
46. Ibid., 168. See also Conard v. Driscoll (1820), 1 NLR 201.
47. http://www.law.mq.edu.au/scnsw/cases1827-28/html/ex_parte_mathews_1827.htm (1827). (Emphasis in original.)
49. Walker v. Scott (No 1) (December 1825) http://www.law.mq.edu.au/scnsw/html/walker._v_scott__no_l__1825; Walker v. Scott (No 2) (January 1826) http://www.law.mq.edu.au/scnsw/html/walker_v_scott_no_2_1826; see also, R v. Broadbear and Broadbear, below note 69.
50. Quoted in Currey, Sir Francis Forbes, 181.
51. Walker v. Scott (No 2) (January 1826).
52. Ibid. As Kercher notes, Forbes CJ later described this as a “very foolish case.” He also criticized Archdeacon Scott for a lack of good faith: “This is not plain dealing and in a case of a public nature, was certainly very improper.” Forbes to Wilmot Horton, 6 February 1826, Catton Papers (Australian Joint Copying Project), Reel M791. Scott was in the end appointed Visitor by Instructions to Governor Darling. Historical Records of Australia, ser. 1, 12:125.
53. For other cases on the supervisory jurisdiction, see: R v. M'Ara http://www.law.mq.edu.au/scnsw/html/r_v_m_ara_1825.htm (1825); The Criminal Procedure Case http://www.law.mq.edu.au/scnsw/html/criminal_procedure_case_1825.htm (1825); R v. Tindal http://www.law.mq.edu.au/scnsw/html/r_v_tindal_1826.htm (1826); and R v. Broadbear and Broadbear http://www.law.mq.edu.au/scnsw/html/r_v_broadbear_and_broadbear_1826.htm (1826).
55. Wardell was later murdered by two escaped convicts. Forbes presided over the trial and pronounced the sentence of death. See R v. Jenkins and Tattersdale http://www.law.mq.edu.au/scnsw/Cases1834/html/r_v_jenkins_and_tattersdale_1.htm (1834). See also Currey, Sir Francis Forbes, 467–70.
56. Referring to contemporary descriptions of the man, Whitfield described him this way:
Stephen's ability as a lawyer was not in question. But he did not have a judicial temperament. Moreover, he was intemperate in the use of alcohol. “I have seen him in a state bordering on Intoxication, when submitting to Governor Darling his official report of the cases of Prisoners condemned to death”, wrote the Governor's secretary, Colonel Dumaresq. “Mr Stephen's habits are the common Theme of comment and reprobation in the Colony, and have given rise within my knowledge to scenes of a very painful and embarrassing nature.” Founders of the Law, 41.
57. http://www.law.mq.edu.au/scnsw/cases1827-28/html/in_re_foster_1827.htm (1827). The correspondence between Darling and Stephen appears in note 2 to this report.
58. http://www.law.mq.edu.au/scnsw/html/r_v_rossi_principal_superinte.htm. Forbes's comments on the case, quoted below, are in this report.
59. “[J]ustice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v. Sussex Justices, ex p McCarthy [1924] 1 KB 256, 259.
60. See above, note 47 and accompanying text.
61. See below, note 112.
62. Adams v. Dawson, http://www.law.mq.edu.au/scnsw/cases1827-28/html/adams_v_dawson_1827.htm (1827).
63. Windeyer, “A Birthright and Inheritence,” 636.
64. Commentaries, 1: 107.
65. Kercher, in a speech to the Seiden Society, published at http://www.law.mq.edu.au/HTML/staff/kercher/selden.htm (April 1998).
66. See Forbes to Horton, 15 December 1826, Historical Records of Australia, ser. 4, 1:678. See also Kercher, n. 7 to R v. Broadbear and Broadbear, http://www.law.mq.edu.au/scnsw/html/r_v_broadbear_and_broadbear1826.htm (1826).
67. Castles, An Australian Legal History, 394. On this point, see also his judgment in Young v. Blaikie (1822), 1 NLR 277.
68. This was, of course, the very same issue that emerged in a different context in the 1980s. See Kirmani v. Captain Cook Cruises Pty Ltd (No 1) (1985), 159 CLR 351.
69. Historical Records of Australia, ser. 4, 1:688 ff. Quoted by Kercher, n. 2 to the Newspaper Acts Opinion http://www.law.mq.edu.au/scnsw/cases1827-28/html/newspaper_acts_opinion__1827.htm (1827).
71. See above, note 49 and accompanying text.
72. 3 Geo IV, c 23.
74. See, e.g., “Constitutional Law and Human Rights,” in Halsbury's Laws of England, 4th ed. (London: Butterworths, 1996), 8.2: par. 14.
76. The case was reported in the London Morning Chronicle on 26 September 1825, one of a series of articles in that paper containing views hostile to the government in New South Wales. It was suspected in some quarters in Australia that the Morning Chronicle's correspondent was none other than Barron Field, Forbes's immediate predecessor as judge. Whatever the case, the report of Willink v. Moore was not especially flattering to Forbes. After suggesting that the result ought to raise alarm among English merchants who did business in the colony, it continued in a sarcastic vein: “We know very little of Mr Forbes, the gentleman who presides as sole Judge, at this place, or where he has acquired his great legal knowledge, excepting that it may have been at Newfoundland, where he is said to have presided as Judge for a considerable length of time. We must, however, say, that he is extremely popular in New South Wales.” Ibid.
77. In commenting on this point, the Morning Chronicle was able to cast aspersions not only on Forbes's integrity, but also on the integrity of the New South Welsh press: “It is to be remarked that none of the Colonial Newspapers made any report of the trial; but it is, at the same time, to be observed, that the defendant had held a situation in the Courts of Law at that place.” Ibid.
78. See the comments of Menzies J in McKain v. R W Miller & Co (SA) Pty Ltd (1964), 110 CLR 162, 166–67, in which he suggests that the notion that statutes of limitations went to procedure and not to substance (i.e., were part of the lex fori rather than the lex loci contractas) dated to the passage of the Statute of Limitations 1624. It is also interesting to contrast Forbes's judgment in Willink v. Moore with his decision in the Newfoundland case of R v. Rough (1819), 1 NLR 172, 176. There he said that he had “always considered the statutes for the limitation of actions between subject and subject to apply here.”
80. Heath v. Kean (1820), 1 NLR 193, 194.
81. Letters: Catton Papers (Australian Joint Copying Project), Reel M791. Quoted in Kercher, n. 3 to http://www.law.mq.edu.au/scnsw/html/practice_note_1824.html.
82. Ibid.
83. See above, note 70.
86. See above, note 58 and accompanying text.
87. 15 May 1827 (Mitchell Library), Reel CY 760. Quoted in Kercher, n. 1 to http://www.law.mq.edu.au/scnsw/html/r_v_rossi_principal_superinte.htm.
88. See, e.g., Coleman v. Kennedy (1817), 1 NLR 8; Broom v. Williams (1817), 1 NLR 15; Ryan v. Simms (1817), 1 NLR 34; and Heath v. Kean (1820), 1 NLR 193. In Hayes v. Nave (1821), 1 NLR 259, however, he said that a “bad custom” would not be applied.
90. Kercher, n. 7 to http://www.law.mq.edu.au/scnsw/html/r_v_cooper_1825.htm (1825).
91. Ibid.
93. 14 August 1824, Catton Papers (Australian Joint Copying Project), Reel M791. Quoted ibid.
94. Ibid.
97. Castles, An Australian Legal History, 185–86. On this case, see also Currey, Sir Francis Forbes, 113–16; Bennett, A History of the Supreme Court, 81–82; Neal, The Rule of Law, chap. 7; Neal, D. J., “The Campaign for Trial by Jury in New South Wales, 1788–1840.” Journal of Legal History 8 (1987): 107CrossRefGoogle Scholar; Bennett, J. M., “The Establishment of Jury Trial in New South Wales,” Sydney Law Review 3 (1959–1961): 463.Google Scholar
100. Above, note 88. This case, incidentally, was the very first heard before a civil jury in the colony.
101. Castles, “The Judiciary and Political Questions,” 296.
102. Ibid., 294.
103. Ibid., 299.
104. Later King George IV.
105. Quoted above, Castles, “The Judiciary and Political Questions,” 299.
106. Ibid.
107. New South Wales Act, s 4.
108. The provision is as follows: “[T]he said courts shall have Power and Authority in a summary Way to take cognizance of all Crimes and Misdemeanors not punishable with Death, which shall have been or shall be committed by any Felons or other Offenders who have been or shall be transported to New South Wales or its Dependencies, and whose Sentences shall not have expired or been remitted….”
109. Castles, “The Judiciary and Political Questions,” 311.
111. There were instances in Newfoundland, too, where he took judicial notice of governmental policy. In Andrews v. Andrews (1819), 1 NLR 180, for example, he took notice of legislation that would affect that matters in issue and stood the case over to await the bill's passage.
112. Quoted in Kercher, n. 1 to http://www.law.mq.edu.au/scnsw/cases1827-28/html/newspaper_acts_opinion_1827.htm.
113. Currey, Sir Francis Forbes, 202.
114. Ibid., 213.
115. Ibid., 217.
117. With respect to the Stamp Bill, Forbes certified a draft copy, in which the amount of duty was left blank. When the rate of duty was eventually determined, he refused to certify the final bill. Kercher, above, note 111, n. 10.
118. Ibid.
119. Ibid.
120. Tocqueville, Alexis de, Democracy in America (New York: Alfred A. Knoff, 1987), 1:280Google Scholar.
121. Speech to the Seiden Society, above, note 65.
122. See above, note 62.
123. Burke, Edmund, Reflections on the Revolution in France (1790; London: Penguin Classics, 1969), 89–91.Google Scholar
124. See, e.g., Kercher, An Unruly Child, 67–102.
125. See above, note 58.
126. See above, note 112.
127. See above, note 47.
128. (1863) 14CB(NS), 180.