Book Review: Sir Francis Forbes, The First Chief Justice of the Supreme Court of New South Wales
| Author | John V. Barry |
| Date | 01 September 1968 |
| Published date | 01 September 1968 |
| DOI | 10.1177/000486586800100308 |
Book Reviews
Sir
Francis Forbes,
The
First
Olief
Justice
of
the
Supreme
Court
of New
South
Wales,
C. H. Currey, Angus &Robertson, Sydney,
1968, 586 pp., $10.00.
IN lapidary inscriptions a
man
is
not
upon
oath,said
Dr. Johnson, and, he could
have
added,
neither
is
the
writer
of a
publisher's blurb. The
statement
on
the
dust-jacket of
this
excellently produced
volume is, however, nothing
but
the
truth.
It is astonishing, as is
there
claimed,
that
Sir Francis Forbes's
character
and
achievements
have
not
received
more
attention
from Australian historians.
It
is
the fact, too,
that
Dr.
Currey
has rectified
this omission in
"a
comprehensive
and
scholarly biography
that
is a
major
con-
tribution
to
Australian
history,
and
is also
the
absorbing
story
of a
man
whose
qualities
would
have
made
him
remarkable
in
any
country
and
at
any
time."
Francis
Forbes
lived 57 years; he
was
bom
in 1784
and
died in
retirement
in
Sydney in 1841.
In
his
career
as a
judge
he served
for
five
years
as Chief
Justice
of Newfoundland, and for
thirteen
years
as Chief
Justice
of
the
Supreme
Court
of
New
South
Wales. Appointed in October
1823, he
arrived
at
Sydney
with
his family
in
March
1824. During his
tenure
of
office
there
were
three
Governors: Bris-
bane, Darling
and
Bourke.
Sir
Thomas
Brisbane
and
Sir
Richard Bourke recog-
nised his excellent qualities
and
held him
in
the
highest esteem.
With
the
auto-
cratic
Sir
Ralph Darling it
was
otherwise;
he resented
bitterly
Forbes's
courteous
but
unyielding
resistance
to
his
attempts
to
by-pass
the
law
and
make
the
judiciary
subservient
to
the
Executive.
It
was
Forbes's
task, as Mr.
Justice
Else-
Mitchell observes in
a:
perceptive Intro-
duction,
to
guide
the
"still largely primitive
society of New
South
Wales
towards
the
principles of
the
Rule of
Law
which
had
for
so long
been
treated
with
scant
regard
if
not
trampled
under-foot." His position
in
the
colony"s constitutional
structure
was
anomalous
and
incessantly laborious. Not
only
was
he Chief Justice,
with
the
onerous responsibility of certifying
that
legislative measures,
many
highly con-
troversial.
which
were
submitted
to
the
colony's Legislative Council
were
not
repugnant
to
the
laws of England,
but
he
was also ex officio a
member
eX
the
Executive Council.
Honest, sensitive
and
humane
in a
corrupt, callous
and
brutal
society, it was
inevitable
that
he should
incur
the
enmity
and
calumny of powerful
and
rapacious
colonial interests.
The
full
story
of his
contributions
to
law
and
stability in New
South Wales is fascinating
and
instructive,
but
criminologists will find his
attitude
to
the
criminal
law
and
its
draconic punish-
ments
of
particular
interest.
The
English
criminal law,
"written
in blood", as
Sir
Samuel Romilly said,
was
in force in
New
South Wales,
and
Mrs. Forbes recorded
that
the
"cruel
laws"
her
husband
had
to enforce "affected his
health
and
spirits".
In
many
cases
he viewed
with
abhor-
rence
the
sentences
it
was
his
duty
to
pronounce,
and
he
saw
to
it
that
no
prisoner tried
before
him
was
convicted
unless
the
law
was
clear
and
the
facts
undoubted.
In 1829, twenty-five prisoners sentenced
to
death
in
Sydney
upon charges which
in England
had
ceased to be
capital
escaped
the
gallows because Forbes.
with
the
concurrence of his
brother
judges,
declared
the
convictions
were
void. He
insisted
that
law
and
not
Executive caprice
should control
the
punishment of convicts;
that
no
punishment
could legally be
exacted beyond
what
was
expressed in
the
judgment of
the
court
or
implied as a
necessary legal consequence, and
that
unless it
was
stipulated
in
the
sentence,
the
use
of irons as a punishment
was
illegal. He ruled, too,
there
was no
power
in
the
Executive
to
send aprisoner
to
the
dreaded penal
settlement
of Norfolk
Island unless
the
sentence of
the
court
authorised it.
He
was
in England in 1837
and
was
the
first
witness
examined
by
the
Select
Committee
on
Transportation
presided
over
by
Sir
William Molesworth. He told
the
Committee:
"The
experience furnished
by
the
penal
settlements
has proved
that
transportation
is
capable
of being
carried
to an
extreme
of suffering
such
as to
render
death
desirable
and
to
induce
many
prisoners
to
seek
it
under
its
most
appalling aspects. . . .
It
is my opinion
that
transportation
may
be more
terrible
than
death."
Worn
out
by arduous
and
exacting
labours
and
suffering from nervous debility
and
a
paralytic
condition of his
left
arm,
he
retired
in 1837. He
had
been knighted
in
that
year,
but
there
was
no
adequate
pecuniary recognition of his
years
of
devoted service. Mrs. Forbes
spent
the
long
years
of
her
widowhood in
straitened
circumstances
until
her
death
in 1886,
at
the
age of nin·ety-one.
Francis
Forbes
was
a
great
judge,
186
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