Sunday, 11 August 2013

I’m afraid not Darling: Forbes versus Darling

Appointed in 1823[1] and first Chief Justice of the Supreme Court of NSW until 1837, Francis Forbes had significant powers.[2] He was not only head of the judiciary but also a member of the Legislative Council and, ex officio, of the later Executive Council.[3] The 1823 Act stated that the governor could not submit any bill to the Legislative Council until the chief justice had certificated that the proposed measure was not repugnant to the laws of England. [4] This placed an important constraint upon what governors could and could not do and brought Forbes into conflict especially with Ralph Darling. However, Forbes’ relationship with his first governor, Sir Thomas Brisbane was good. The new Legislative Council first met on 25 August and as Brisbane thought it wise not to attend its sittings Forbes was virtually its president. He established the criteria by which the governor was guided in nominating unofficial members and temporarily became the parliamentary draughtsman when Saxe Bannister, the Attorney-General proved incompetent. [5] On 14 October, Forbes construed section 19 of the 1823 Act that trial by common jury of twelve inhabitants, who had come to the colony as free men or had been born in it, was instituted for the first time in Australia, though it was limited to Courts of Quarter Sessions. On the same day the Australian, the colony’s first independent newspaper, was published by Robert Wardell and W.C. Wentworth who had qualified as barristers in England, were admitted as such, though they practised as attorneys in NSW as there was no division in the profession.[6] In November, the charter of the Australian Agricultural Company was issued; on its local committee the Macarthurs were very strongly represented. Invited by Sir Robert Wilmot Horton, permanent secretary at the Colonial Office to comment on the wisdom of the company’s million-acre grant, Forbes reported adversely on the formation of large estates and favoured ‘unlocking the land’ for settlers. He was also critical of members of the local committee who sold their stock to the company at high prices.


Sir Ralph Darling

Forbes had already earned the opposition of the Macarthurs over his advice to Brisbane in a quarrel between Henry Grattan Douglass and other justices of the peace at Parramatta.[7] At the Colonial Office Forbes had read the reports relevant to Brisbane’s removal of the names of Samuel Marsden and Hannibal Macarthur and three others of the Parramatta bench from the Commission of the Peace and had agreed with James Stephen that the magistrates’ proceedings were indefensible. However, Marsden had retaliated against Brisbane’s action by sending defamatory letters to Sir Robert Peel and Wilberforce accusing Douglass of punishing convicts illegally. These letters were passed on to Bathurst who ordered an inquiry to be conducted in the colony by the governor, chief justice and Archdeacon Thomas Scott.[8] Their finding exonerated Douglass and reflected scathingly upon Marsden. The grand jury of Parramatta, of which Hannibal Macarthur was foreman, then indicted Douglass and two other justices for imposing what the jury considered an illegal sentence: daily flogging of a convicted thief until he disclosed the whereabouts of stolen goods. The men so indicted sought government intervention. On Forbes’s advice, Brisbane remitted the matter to the Legislative Council, which in turn searched all the available bench proceedings and found many precedents for the sentence imposed by the indicted justices, including some imposed by Marsden and Macarthur. Forbes then proposed an Act of Indemnity that was duly passed in October 1825. Meanwhile Bathurst had severely censured Hannibal Macarthur and ‘from that time’, wrote Forbes, ‘I have been a marked man and no efforts have been spared to get me out of the colony.’ The campaign against Brisbane was also vigorously continued and in 1825 he was relieved of his command and replaced by Ralph Darling. [9]

Tensions between the Governor and the judiciary reached a peak in the late 1820s. This was partly because of the more formal introduction of English law and the establishment of a conventional superior court system on the civil side. It also reflected the Darling’s and Forbes’ different personalities and political ideologies. Darling was a former general with some skill in that role but Forbes found him ‘quite unacquainted with civil business’ and possessed of ‘less knowledge of the laws of his country than any gentleman filling his high official station whom it was ever [his] fortune to meet’. Although ready to improve the efficiency of the administrative and fiscal affairs of the colony, he had a conservative’s suspicion and mistrust of political and social change and was quick to judge others unfavourably, especially if they disagreed with him, and unreceptive to criticism. At the same time, as a military man he was impatient with lack of action and the niceties of process. Darling also lacked sound legal advice from the law officers of the Crown that might have curbed his enthusiasm for executive initiatives of dubious legality. Francis Forbes by contrast was a liberal in political and legal terms. He was born not in England but in Bermuda.[10] Forbes had been educated and trained as barrister in London, and before going to Sydney had been Chief Justice of Newfoundland.[11] In that latter role he had developed a reputation as a liberal; for Governor Sir Charles Hamilton too liberal, because of the judge’s belief that law should to some extent reflect and respond to local conditions and needs and in the need to reign in inferior courts. Forbes served less than five years on the bench in Newfoundland, but his influence on the future development of the colony was profound. His judgments checked the abuse of power by officials, established Newfoundlanders’ rights to own property in the island, and showed the need for a constitutional form of government. Forbes recognised the need to bring English law and the rule of law much more fully into the operation of justice and governance in NSW. At the same time, as a sophisticated observer of British imperialism, Forbes was aware of the need to balance concerns with centralisation with appreciation of the realities of the particular colony, its history and population. In his judicial role he was perhaps too detached from an executive that needed sound legal advice.

A major area of conflict between Darling and Forbes was freedom of the press and the Governor’s increasing petulance towards radicalism in the colony, inspired in particular by William Charles Wentworth, lawyer and newspaper man, the leading advocate of the emancipist cause. Not satisfied with the conservative reforms to the constitution and justice system of NSW in the late 1810s and early 1820s, he was vigorous and vocal in his campaign for both trial by jury and representative legislative organs. Only these changes, he argued, would give colonists, including emancipists, a voice in both the administration of justice and their own governance. It was a combination of Wentworth and his journalistic colleagues, Wardell and Edward Smith Hall[12] advocating these views while labelling Darling as a tyrant that baited Governor Darling.[13] The Attorney General, Saxe Bannister unsuccessfully and ineptly sought to prosecute the newspapermen for seditious libel, an offence open to repressive use, even in England.


Sir Francis Forbes

Darling then sought to muzzle them by other means. His instructions for controlling the press had been framed by James Stephen in the light of suggestions from Lieutenant-Governor Sir George Arthur in VDL. Arthur’s proposal of a licence revocable at the governor’s will had already been submitted to Brisbane who on Forbes’ advice declined to sanction it. [14] Darling was anxious to remain at peace with the press, although Arthur, on receiving similar instructions, promptly had bills prepared providing for licenses and imposing a stamp duty and sent them to Sydney for parallel action. Darling delayed until, angered by the criticisms of the Monitor and the Australian submitted these bills to Forbes for his certificate as prescribed in the 1823 Act. Forbes refused his certificate to the six clauses relating to a licence in the first bill because he believed them inconsistent with English law, a view later upheld by the law officers of the Crown. Giving what can only be described as a broad interpretation to existing constitutional doctrine and a political construction to the rule of law, the Chief Justice denied certification to the licensing law as repugnant to the freedom of the press. [15] He went so far as to describe this freedom as a constitutional privilege. Bruce Kercher suggested: ‘that [it] was as much a statement of political aspiration as law, given the repressive nature of English press laws’.[16] However, he did certify the other clauses and they became law as the Newspaper Regulating Act.

The second bill, as he received it, did not include the amount of stamp duty to be imposed, but he found no objection in law to a newspaper tax and gave his certificate, expecting that, when the crucial amount was determined, the bill would be returned to him for further certification. This was not done. A duty of 4d was inserted, the bill was passed, the governor assented and it was promulgated. Forbes maintained that these actions contravened sections 27 and 29 of the 1823 Act, c.96 and that the 4d tax was too high. He therefore intimated that, if the Act were challenged before the Supreme Court, he would declare it invalid.[17] Darling then proclaimed that ‘a certain Bill purporting to be an Act’, was suspended; later the authorities at Westminster upheld Forbes’ opinion and the Act was disallowed. In 1828, when bills to license auctioneers and places of public entertainment were submitted to Forbes, they were found by him to be open to the objection in law that had been fatal to the first six clauses of the Newspaper Regulating Act, but this time amendments were made and the requisite certificates were given. Forbes was not prepared to allow the colony to continue with a form of government that allowed repressive action and in which the governor was not subject to any local authority other than his own. He did so by invoking a liberal view of constitutional rights and of the rule of law that reflected the reformist sentiments he held, and caused him to support trial by jury and to muse about a legislative assembly in the colony.

Irritation at Government House was made worse when the Forbes notified Darling that certain regulations issued on 30 July 1827 for the assignment of convicts and the granting of tickets-of-leave were ultra vires. In Forbes’ opinion masters had a legal right of property in the service of convicts assigned to them and, although he approved the principle of tickets-of-leave as inducements to reformation, he considered that they could not be given legally to assigned servants or granted at all except under an authority conferred by parliament.[18] Again his opinions were upheld by the Crown law officers, much to the annoyance of Darling, who, on advice from the Home Office and his own legal officers, had revoked the assignment of certain servants of the editors of the Monitor and the Australian, with the avowed intention of restricting his critics’ output. In his frustration Darling suspected that the chief justice was colluding with Wardell, the editor of the Australian and saw Forbes unjustifiably as the main cause of his problems.[19] The fault rested with Darling and his legal officers, none of whom was a match for Wardell or Wentworth. The governor’s bitterness was intensified by a series of defeats in prosecutions for criminal libel instituted by the attorney-general. Although Wardell had offended grievously, Forbes thought his acquittals were probably due to the knowledge of at least some of the jury that the prosecutions had been ordered and they themselves nominated by the governor. In his dispatches Darling attributed these setbacks to the chief justice’s bias in favour of Wardell, an aspersion that Forbes convincingly rebutted.[20]

Darling was to get into a further notable scrape with the Chief Justice and his colleagues over his distaste for dissent before he was recalled in 1831. The issue was whether the undoubted executive power exercised by previous governors to assign and release convicts was now subject to the demands of the rule of law and examination by the Supreme Court. Darling in attacking one of his newspaper critics, Edward Hall, tried another tack.[21] By gubernatorial order he sought to deprive Hall of one of his assigned convicts, Peter Tyler. The Supreme Court had already determined that the revocation power did not give the governor unfettered discretion, because a decision had to be connected to a proper purpose, for example to grant a genuine indulgence to the convict or protect him from an abusive master. The Court, led by Forbes, concluded that Darling had abused his discretion in this instance, a decision that held even though the court’s interpretation was initially rejected in the Colonial Office.[22] Once again Forbes showed himself to be an opponent of arbitrary government, elevating the rule of law in the process.

The Hall case is also interesting in that, although the Supreme Court fought shy of issuing criminal information against the Sydney magistrates who had convicted Hall of harbouring a runaway convict, the judges criticised the magistrates for their decision. Dowling warned them against contempt of the superior institution. Furthermore, Hall ultimately secured damages against the magistrates in a civil action before the Supreme Court. This episode illustrates another point of tension within the administration of governance and justice in the colony, the identification of the magistracy with the conservative elite. In NSW conservative exclusionists were able to exercise significant power through their control of local government and justice. In the Hall case and other decisions of the Forbes court, judicial review of executive and administrative action took firm root in Australia.

Chief Justice Forbes stands out as genuinely committed to impartiality in the judicial role and as a sincere advocate of the rule of law, at times in a liberal sense. Forbes was one of those people of independent mind who, despite the personal attacks by opponents, such as John Macarthur, eschewed strong ties with particular interests in the colony and was by background, inclination and experience a shrewd observer of British imperialism and colonial development. He could relate the tradition of which he was unmistakably a part to both the present and future needs of the colonies in which he served. However, Forbes was not infallible and he may be criticised for taking an excessively disinterested position in relation to the need of Darling for sound and considered legal advice. Moreover, as Bruce Kercher had observed, he could be exasperatingly illiberal in certain contexts, for example legislation relating to bush rangers, and indecisive in others, as he seems to have been in relation to Aboriginal rights. He was, however, guided by a strong belief that ‘the judicial office...bowed to no other power but the supremacy of law’. [23] He stood out among other colonial judges of this period as being singularly adept in balancing a respect for English legal tradition with a recognition that the law needed to accommodate colonial constitutional change.

[1] Bathurst to Brisbane, 4 August 1823, HRA, Series I, Vol. 11, p. 102

[2] Bennett, J.M., Sir Francis Forbes: First Chief Justice on New South Wales 1824-1837, (Federation Press), 2001, pp. 16-37. See also, Currey, C.H., ‘Forbes, Sir Francis (1784-1841)’, ADB, Vol. 1, pp. 392-399 and Holloway, Ian, ‘Sir Francis Forbes and the Earliest Australian Public Law Cases’, Law and History Review, Vol. 22, (2004), pp. 209-242.

[3] Warrant appointing a Council in NSW, 19 January 1824, HRA, Series I, Vol. 11, pp. 195-196.

[4] See, New South Wales Act (1823) 4 Geo IV, c 96, s 29: ‘And be it further enacted that no law or ordinance shall by the said governor or acting governor be laid before the said council for their advice or approbation or be passed into a law unless a copy thereof shall have been first laid before the chief justice of the supreme court of New South Wales and unless such chief justice shall have transmitted to the said governor or acting governor a certificate under the hand of such chief justice that such proposed law is not repugnant to the laws of England but is consistent with such laws so far as the circumstances of the said colony will admit.’

[5] Currey, C.H., ‘Bannister, Saxe (1790-1877)’, ADB, Vol. 1, pp. 55-56.

[6] See, Currey, C.H., ‘Wardell, Robert (1793-1834)’, ADB, Vol. 2, pp. 570-572 and Persse, Michael, ‘Wentworth, William Charles (1790-1872)’, ADB, Vol. 2, pp. 582-589.

[7] HRA, Series I, Vol. 10, pp. 750 et seq. When Governor Sir Thomas Brisbane arrived in November 1821, Douglass became a regular visitor at his residence. This association brought him into conflict with his senior colleagues on the Parramatta bench. The first clash came in August 1822 over a convict girl, Ann Rumsby, whom he had taken into his home; Dr James Hall, surgeon superintendent of the Maria Ann in which she had been transported, alleged that Douglass was behaving improperly with her. Samuel Marsden, Hannibal Macarthur and three other magistrates held a meeting, to which Douglass was summoned but failed to appear. The magistrates then had Ann arrested, and for perjury she was sentenced to imprisonment at Port Macquarie. Brisbane intervened, gave her a free pardon, threatened to remove the Parramatta magistrates who had not only refused to sit with Douglass on the bench but also called a secret general meeting of justices to support their action, and complained to London of a conspiracy against Douglass. Douglass, however, soon showed that he could fend for himself. In April 1823, he brought an action for libel against Hall, claiming damages of £5,000, and was awarded £2 and costs. Next month with William Lawson he fined Marsden for allowing one of his convict servants to be at large and, when he refused to pay, had his piano seized and sold. Marsden promptly sued him for damages of £250, but the court awarded him only the amount of the fine. Marsden then complained to the bishop of London that Douglass was preventing inmates of the Female Factory from taking their infants to church for baptism, and connived with Hannibal Macarthur in a letter to Robert Peel at the Home Office, charging Douglass with drunkenness, torture of prisoners and other disreputable official conduct. These letters, forwarded to the Colonial Office, brought orders for an inquiry which exonerated Douglass but provided a loophole for Macarthur as foreman of the Grand Jury to publish further complaints against Douglass in the Sydney Gazette. Brisbane’s reports extolled his virtues with increasing warmth after each attack and in February 1824 he nominated him as commissioner of the Court of Requests and sent him to London to consult the Colonial Office on the functions of the new court. See, Noad, K.B., ‘Douglass, Henry Grattan (1790-1865)’, ADB, Vol. 1, pp. 314-316.

[8] Bathurst to Governor of NSW, 2 September 1824, HRA, Series I, Vol. 11, pp. 351-353, 462-465, 717-807.

[9] ‘Sir Ralph Darling (1772-1858), ADB, Vol. 1, 1966, pp. 282-286, and ibid, Fletcher, B.H., Ralph Darling: A Governor Maligned, provide biographical material.

[10] On Forbes, see Castles, Alex C., An Australian Legal History, (Law Book Co.), 1982, pp 182-184.

[11] On his period in Newfoundland see, O’Flaherty, Patrick, ‘Sir Francis Forbes’, Canadian Dictionary of Biography, Vol. 7, (University of Toronto and the Université Laval), 1988, pp. 301-304.

[12] See, Kenny, M.J.B., ‘Hall, Edward Smith (1786-1860)’, ADB, Vol. 1, pp. 500-502 and Ferguson, J.A., ‘Edward Smith Hall and the “Monitor”’, Journal of the Royal Australian Historical Society, Vol. 17, (3), (1931), pp. 163-200.

[13] On this see Darling’s comments in a letter to Under Secretary Horton 15 December 1826, HRA, Series I, Vol. 12, pp. 761-762.

[14] Darling to Under Secretary Hay 4 December 1826, HRA, Series I, Vol. 12, pp. 725-729.

[15] HRA, Series I, Vol. 13, pp. 285-287 covers the disallowed clauses; see also pp. 289-297 for Forbes’ reasons.

[16] Kercher, Bruce, An Unruly Child: A History of Law in Australia, (Allen & Unwin), 1995, pp. 85-86; see also, Edgeworth, Brendan, ‘Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831), Australian Journal of Law and Society, Vol. 6, (1990-91), pp. 67-70.

[17] Darling to Bathurst 29 May 1827, HRA, Series I, Vol. 13, pp. 374-379; Darling to Bathurst 30 May 1827, pp. 380-387.

[18] Forbes to Darling 1 August 1827, HRA, Series I, Vol. 13, p. 489.

[19] On the Wardell libel case, see, HRA, Series I, Vol. 13, pp. 477-484

[20] See, for example, Darling to Goderich, 10 September 1827, HRA, Series I, Vol. 13, pp. 509-510: ‘...Mr Forbes’s endeavours to assume a power of controlling generally the measures and acts of the Government....’ and Darling to Hay, 15 December 1827, HRA, Series I, Vol. 13, pp. 648-649: ‘...he has endeavoured to raise an Opposition to the Government.’

[21] There had been a succession of disputes between Hall and Darling dating back to 1826: see, HRA, Series I, Vol. 14, pp. vi-xiii.

[22] HRA, Series I, Vol. 16, pp. 292-294.

[23] Kercher, Bruce, ‘The Recognition of Aboriginal Status and Laws in the Supreme Court of New South Wales under Forbes CJ, 1824-1836’, in Buck, A.R.. McLaren, John and Wright, Nancy, (eds.), Land and Freedom: Law, Property Rights and the British Diaspora, (Ashgate), 2001, pp. 83-102.

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