Ian Holloway

Sir Francis Forbes and the Earliest Australian Public Law Cases

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 Act¹ in 1823, or of the Australian Courts Act² in 1828, or of the Australian Constitution Acts³ of 1842 and 1850, or even of the Commonwealth of Australia Constitution Act in 1900.⁴ 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.⁵ 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.⁶ 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.	1
Implicit in these ceremonies was the fact that the legal dominion asserted over the first settlers was purely authoritarian—either by virtue of the penal law (concerning the convicts), or by the terms of the Articles of War (concerning the sailors and marines). Thereafter, most of the visible changes to legal arrangements in the Australian colonies, up to and including federation, were accomplished by act of the Parliament at Westminster. So it is not surprising that many of us should turn instinctively to the imperial statute book to identify the roots of our constitutional system of democratic government.	2
Similarly, there is an inclination among many to think that the broad notion of judicial review, and the more specific discipline of administrative law that has grown out of it, began either with Dicey (notwithstanding his view that administrative law was alien to the common law) or with the tumult between the bench and the academy that took place over his writings in the first three decades of the twentieth century.⁷ Some might go even further and argue that Australian administrative law did not really begin until the 1970s when the Commonwealth parliament passed the so-called "administrative law package" of statutes.⁸	3
The aim of this article is to take issue with such assumptions and to make use of the fruits of Bruce Kercher's labors to explore the foundations of Australian public law.⁹ The contention is that there is a now largely forgotten strand of Australian constitutionalism that emerged in the three years following the creation of the present-day Supreme Court of New South Wales in 1824. The cases show a colony in transition from nonconstitutional to constitutional government. They also illustrate a pattern of constitutionalism that reflected the different circumstances of the Australian protostate as compared with the United Kingdom. In addition, they express the essence of the common law constitutional tradition taking root there: a blend of pragmatism, skepticism, and high theory, the result of which is a gradual yet deliberate fettering of executive power. Moreover, the line of cases demonstrates that there was in early colonial New South Wales a flourishing body of public law, which fulfilled precisely the same systemic role—for good or bad, depending upon one's view of the desirability of judicial review—that administrative law fills today.	4
These early public law cases reveal something important about the way in which the rule of law came to be implanted in Australia. To foreshadow the conclusion, the truth is not that the substance of English law was received in 1788. We know that much of it simply was not. But what did happen—in 1824, not 1788—was the creation of a court with all of the authority of the English common law courts. This did not mean that the substantive law in New South Wales would be the same as in England, for it never has been, but that the legal dynamic would be the same. To put it another way, Australia did not receive English law, but it received—and this serves as the foundation stone of today's Australian constitutionalism—English legal culture. This article considers the introduction of this legal culture of constitutionalism by examining the judgments of the Supreme Court of New South Wales between 1824 and 1827, which concerned matters that today would fall within the rubric of public law. If nothing else, this is significant, for most of these cases have not been commented upon since they were first decided.	5

The Rule of Law in a Penal Colony
It is trite to say that one of the most controversial jurisprudential questions in the postmodern age is what is meant by the expression "rule of law." Yet all must surely agree that, at base, it involves limitation and the systemization of the exercise of state power. In this sense, constitutionalism and the rule of law are synonyms. Constitutions—effective constitutions, that is—are more than documents. They represent political and legal traditions—traditions of limitation in the exercise of power. As John McLaren has noted, conservatives and radicals may at different times have each attempted to invoke the rule of law as a justification for quite different political positions. But implicit in both positions was the belief that the rule of law also involves a systemic reaction against arbitrariness.¹⁰ So it was that a Marxist like E. P. Thompson could describe the rule of law—in his words, the "imposing of effective inhibitions upon power and the defence of the citizen from power's all-intrusive claims"—as "an unqualified good."¹¹	6
Yet, when stated this way, it becomes apparent just how tenuous must be any claim that English law was received in New South Wales in 1788. English law, conventional doctrine says, arrived with the First Fleet. But insofar as the rule of law was an integral element of the English common law tradition in the late eighteenth century, as it clearly was after the Glorious Revolution, there was plainly a significant gap in the reception. For the fact is that for the first three decades of settlement, there was no overt acknowledgment on the part of the local executive that its powers were limited by anything other than overriding edict from London. And in the context of the time—in the midst of the Napoleonic wars, when her mind was occupied elsewhere—London did not seek to exercise overriding control of affairs in the young colony very often. As a consequence, governors were left with a very free rein. As H. V. Evatt once described it, "New South Wales was long regarded as the precise equivalent of a penitentiary, except that it was situated, not in England itself, but overseas."¹²	7
In fact, the first courts for New South Wales were established before the First Fleet sailed from England.¹³ The first criminal court was created by the statute 27 Geo III, c 2 (which came into force on 23 January 1787). The need for a court with jurisdiction over civil causes seems to have been overlooked by the parliamentary draftsmen, however, so on 2 April 1787, a warrant was issued under the Great Seal to establish a "Court to be called the Court of Civil Jurisdiction." This warrant has become known as the First Charter of Justice. This sort of ad hoc-ery typified the juridical arrangements in the new colony with respect to nonpenal matters. There were no lawyers—save for some disgraced ones, who had been transported there. Instead, the office of judge-advocate was filled by an officer—David Collins, a captain of the Royal Marines. Windeyer has written of Collins sympathetically,¹⁴ but the fact is that he was a marine officer who had no training in the common law. Instinctively, and quite understandably, he viewed his role in military terms—as being to uphold the authority of his superior officer.¹⁵	8
In 1796, Collins was succeeded by Richard Atkins, who held the office more or less continuously (with a brief interruption during the Rum Rebellion in 1808) until 1809. Atkins was an alcoholic retired army officer who had emigrated to New South Wales to avoid creditors.¹⁶ A contemporary described him as "a public cheater, living in the most boundless dissipation . . . in his public and private capacity drunkenness and indecency are almost inseparable from him."¹⁷ The first time that a professional judge sat in the colony was between 1798–1800, when Richard Dore was appointed judge-advocate. Dore's tenure, however, was distinguished only by the concern about his suspected corruption.¹⁸ His appointment was cut short by his premature death and, in 1800, Atkins resumed the post of judge-advocate.	9
In 1809, a new judge-advocate, Ellis Bent, arrived in the colony at the same time as Governor Lachlan Macquarie. Bent's self-avowed mission was to bring colonial law as closely as possible into line with English law. Among other things, he recommended that a "proper" court, presided over by an independent judge, and administered by its own officials, be created in the colony. Macquarie agreed with Bent's proposal, and in 1814 a Second Charter of Justice was issued. This did not affect the operation of the criminal court created by 27 Geo III, c 2, but it replaced the Court of Civil Jurisdiction with a new court, known as the Supreme Court. The first judge of the 1814 Supreme Court was Jeffery H. Bent, Ellis Bent's brother. Kercher has described J. H. Bent as a pompous man¹⁹ and, despite Macquarie's initial enthusiasm for the appointment, the two soon fell out. Bent was replaced as judge in 1817 (after Macquarie engineered the recall of both of the Bent brothers) by Barron Field—who was, by all accounts, as pompous as Bent.²⁰	10
This first Supreme Court was staffed by lawyers of a kind, but in terms of the operation of the rule of law in New South Wales, the real defect in the Court's makeup was its lack of confirmed power to issue remedies. It was this defect, as much as the temperament of its judges, that frustrated the Court of Civil Jurisdiction and the first Supreme Court to enforce any sort of constitutionalism during the first four decades of colonization. At various times Dore,²¹ J. H. Bent,²² and Field²³ each tried to have the gov ernor acknowledge that he was bound by law, but with little success. The prevailing executive attitude toward lawyers and the law was well illustrated by an exchange between Atkins and Governor Bligh. In response to a suggestion by Atkins that Bligh was bound to observe the civil law, Bligh retorted: "The law sir! Damn the law; my will is the law, and woe unto the man that dares to disobey it."²⁴	11
Bligh's response to Atkins may have been idiosyncratic in phrasing, but it typified the atmosphere of aggressive partisanship that underlay the political and legal culture in the colony. As Evatt described it, the colony "became saturated not only with convicts but with the spirit of convictism."²⁵ This partisanship often gave rise to dramatic hyperbole, of which Bligh's description of the law was an example. In a similar way, Kercher has noted that Atkins once described a defendant in a proceeding for slander as "hiding his diminished head like a Toad in a Hole feeding on his own Poison" and "stalk[ing] abroad like Sin and Death seeking whom he may devour."²⁶ But hyperbole aside, one cannot say that, even with all its defects, the colony was actually lawless in its early years. There was a civil court, after all—which the celebrated Kable case shows was capable of meting out justice as well as formal law.²⁷ Likewise, the historical record suggests that the Court of Criminal Jurisdiction attempted broadly to conform to accepted standards of English criminal justice.²⁸ And even accepting that cases like Kable may have been the exception rather than the rule, the fact is that in the first three months of 1810, nearly four hundred writs were taken out in the Court of Civil Jurisdiction.²⁹ All of this suggests that, however crippled the early civil courts appear when contrasted with the powers of the post-1824 Supreme Court, they must have been filling at least a certain public demand. So, insofar as a functioning system of adjudicative tribunals is one of the keys to avoiding breaches of the peace, one could argue that a form of legal system did exist in the early colony. But, in terms of the law acting to systemize the means of exercise of governmental authority—in terms of the law acting to regularize, or toconstitutionalize, authority, in other words—the conclusion must be, as Bligh's reply to Atkins makes clear, that there was an authoritative vacuum.	12
This is not surprising because the early political struggles in New South Wales were directed at determining where exactly the fulcrum of political power was to rest. By the time that Governor Phillip left the colony in 1792, the ill-remembered New South Wales Corps had established itself as a substantial political force. For nearly twenty years, its officers ranged themselves against attempts by governors to assert the authority of the Crown. Through a de facto monopoly on the trade of alcohol (most notoriously, rum), and through the practice of using the proceeds of corruption to purchase farmland, many of its members accumulated vast properties of prime real estate. Moreover, from the time of Phillip's departure until the arrival of Governor Hunter nearly three years later, the Corps effectively suspended the commissions of the magistrates and transferred most magisterial powers to itself.³⁰	13
Woven into this historical text of conflict was a subtext concerning the rights of the so-called "Emancipists"—the freed convicts and their offspring. Broadly speaking, the free settlers—the "Exclusives"—thought that the permanent loss of legal and social status that would have attended criminal conviction in Great Britain ought to be replicated in New South Wales. But as the number of freed convicts within the colony grew, the Emancipist lobby sought to press for the recognition of civil rights. The battle lines between the two groups were blurry, particularly as Emancipists came to amass private wealth and to occupy positions of economic importance within colonial society. As discussed in more detail below,³¹ the conflict between the Emancipists and the Exclusives left as its most enduring legacy the record of the fight over the civil jury trial.	14
In such a climate, it is hardly surprising that political debate should have taken on a sharpish tone. As Kercher has said, the political conflicts in the early years "involved the relationship between the military and the government, the limits on the governors' autocracy, the independence of the courts and, at the broadest level, a dispute over the nature of the colony."³² In this context, the law became an instrument not of power systemization, but of power definition. In thinking about the way in which "law" was used in early New South Wales, one is reminded of Anthony Trollope's characterization of the young bush Australian (albeit of a generation or two later) who "knew nothing of law or justice in the abstract," but who "greatly valued law when exercised against those he hated."³³ So although it possessed a series of functioning tribunals, the New South Wales of the period before 1823 bore many of the hallmarks of the lawless society.	15
It was the passage in 1823 of the New South Wales Act, and with it the creation of a reconstituted Supreme Court, that initiated the beginnings of constitutional government—in the sense of a regularization of executive authority—in the colony. The ultimate keystone to the operation of the rule of law is the acceptance by those in political power that there is an over-arching power—the law (meaning, in the common law systems, the law as interpreted and developed by the courts)—that serves to limit and control their activity. Without such an acceptance, a written constitution will amount to little more than hollow words on a scrap of paper. With it, formal constitutional entrenchment becomes much less pressing. But the sine qua non for what one might call "unentrenched constitutionalism" is twofold: a means for the government to be impleaded in the courts and a judicial gameness to incur the government's wrath as a losing party.	16
The former aspect was provided by the New South Wales Act, for it created the climate in which the seed could take root. It filled the jurisdictional gap that had inhibited the efforts of Atkins, J. H. Bent, and Field to enforce the rule of law against the governor. Unlike the First and Second Charters of Justice, the New South Wales Act had express provision that vested the new Supreme Court with all the "Jurisdiction and Authority" of the three English common law courts. The reconstituted court thereby acquired the power to issue the prerogative writs of mandamus, certiorari, prohibition, habeas corpus and quo warranto.³⁴ It was through its use of these writs that the apparatus of the law began, for the first time in an effective way, to impose legal control upon the institutions of power in the colony. The second aspect was provided by the personalities of the judges themselves.	17
The first judge of the new Supreme Court was Francis Forbes.³⁵ Much has been written about him, so a brief biography should suffice here. Forbes was born in Bermuda, and, although he had been educated in England, nearly all of his professional practice took place in the colonies. Between 1810 and 1817, he served as the attorney-general and king's advocate of Bermuda. In 1817, he was appointed chief justice of Newfoundland, where he served until 1822. In that year, he went to England where he played a role in the drafting of the New South Wales Act.³⁶ In 1823, he was appointed chief justice of New South Wales, an office in which he served until 1837. He was knighted shortly after his retirement, and he died in Sydney in 1841. Our understanding of Forbes's views and motivations is assisted greatly by the fact that he was a prolific correspondent. In particular, Forbes corresponded regularly with Sir Robert Wilmot-Horton, the under secretary for war and the colonies from 1821–1828, much of which is still extant. We are also assisted in analyzing Forbes's work as a lawyer by the fact that he was a bibliophile—his professional library consisted of over five hundred volumes, many of which are still extant.³⁷	18
Initially, Forbes was the only judge of the Supreme Court, but s 1 of the New South Wales Act provided that the Crown could appoint up to three people to the bench. In 1826, John Stephen, the solicitor-general, was appointed to a puisne judgeship.³⁸ A third judge, James Dowling (later Sir James Dowling CJ), was appointed in July 1827, but he only arrived in the colony in February, 1828.³⁹ In the period with which this article is concerned, the two members of the Court were Forbes and Stephen. And of the two, it was by far Forbes who was the dominant judicial character.	19
One of the interesting things about Forbes's judicial career was that it was cast exclusively in the frontier mold. Forbes went from Newfoundland, a barren outpost that existed only to provide a base for European fisher-men fishing the Grand Banks and where the prevailing official position was firmly against the introduction of the niceties of English constitutionalism,⁴⁰ to New South Wales, which existed only to provide a place to which social undesirables could be banished. His could hardly be called a career serving in palm courts!⁴¹ Perhaps it was this experience of being a judge on the edge of common law civilization that led him to adopt the approach that he did. But whatever the ultimate source, what emerges from a review of his judgments is a clear picture of a judicial pragmatist at work. Forbes was neither an ideologue nor an iconoclast. Rather, he was what one might call an essentialist. The picture that emerges from his judgments is of a man deeply concerned with the preservation of what today are sometimes referred to as "deep rights," but who was willing to allow ultimate results in individual cases to be shaped by particular circumstance. His was an instrumental view of the rule of law, rather than a doctrinal view. As Castles once put it, "Forbes aspired to a style of lawmaking role which he may well have regarded as necessary in a colonial situation where other lawmaking bodies may not have had the capacity nor the ability to come to terms with local conditions."⁴²	20

The Reconstituted Supreme Court and the Prerogative Writs
What set Forbes apart from his predecessors in New South Wales was his attitude toward the second of the elements of what I have described as un-entrenched constitutionalism, namely a judicial gameness to incur the wrath of the government. From the beginning, Forbes took it as being without question that he had the authority to assert a supervisory jurisdiction over the executive. Any other view would have been anathema to the tradition of common law constitutionalism of which Forbes was an extremely jealous custodian. For example, in R v. Wentworth, Campbell and Dunn, one of the civil jury cases,⁴³ his Honor summed up his view, when he noted that "every court has of necessity a power to compel its officers to execute its process. This is a power necessarily incident to the creation of courts."⁴⁴	21
This was a view that Forbes had also expressed during his tenure in the Supreme Court of Newfoundland, and it was one that he reiterated several times during his early tenure in New South Wales. In the Newfoundland case of Clift v. Holdsworth,⁴⁵ he drew an express link between judicial review and constitutional principles. "It is," he said, "part of the constitutional law of the land that there must reside somewhere a supreme judicial authority to watch over the proceedings of all inferior tribunals, and to keep the scales of justice even and uniform."⁴⁶ This sentiment was echoed in the New South Wales case of Ex parte Matthews, in which Forbes held that a privative clause could not insulate a decision of the Court of Requests from judicial review. He said that it was "erroneously supposed that a verdict of the Court of Requests in this Colony is final, still, it should be understood, that such is only the case where no illegality can be alleged in the course of the proceeding; as otherwise, writs of certiorari lie from all inferior courts."⁴⁷ In a similar vein, in R v. Dwyer, Kinnear, Madden and Blewit, for example, he held (in a very modern-reading judgment) that the terms of a delegation—a delegated power to grant a pardon in the king's name—had to be complied with strictly. Otherwise, any purported exercise would be void as being without jurisdiction.⁴⁸	22
Possibly even more telling of Forbes's view of the constitutional centrality of the judicial role, as well as his willingness to accept the political consequences of an assertion of judicial authority, was his approach to the Walker v. Scott litigation.⁴⁹Walker v. Scott concerned the authority of the Reverend Thomas Scott, the Archdeacon of New South Wales, to conduct a "Spiritual Court." Walker was the headmaster of the Female Orphans School at Parramatta. In November 1825, Scott had visited the school and had found that Walker, his wife, and the school teacher were all absent, "leaving" (in Scott's words) "the children without any other control or superintendence than that of a menial servant."⁵⁰ When Scott summoned Walker to appear before him, Walker sought to resist and applied for a writ of prohibition from the Supreme Court. The case was heard by Forbes and Stephen J sitting together, but the judgment is almost certainly Forbes's.	23
Scott's case was based upon his claim to be the "King's Visitor" to the school. In support of this, he offered what at first glance would seem to have been powerful evidence: a prior acknowledgment of Scott's authority by Walker himself, together with affidavit evidence of instructions from the Crown to the governor to recognize Scott as Visitor. Nevertheless, the court held, the necessary formalities to create an inferior tribunal with lawful jurisdiction had not been followed: We hold upon broad first principles, that the power to exercise any judicial office, of any kind or character whatsoever, must emanate from the Crown and that the Crown only grants such offices by letters patent [;] that no such letters patent, nor any proofs of their existence, have been laid before us [;] that we cannot consistently, with the principles of law or the rules of evidence, admit as proofs mere extrinsic facts, to supply the place of those formal instruments, by which alone the Crown can delegate its prerogatives, or alienate its rights [;] that these principles are peculiarly applicable to the creation of an office in its nature judicial ...⁵¹	24
As to the power of the court to issue prerogative relief in the circumstances, their Honors simply said: It is unnecessary to say anything upon the right of the plaintiff to apply to the court, nor of the power of the court itself to inquire into the justness of the application. The act of parliament [viz., the New South Wales Act] invests this court with all the authorities of the King's superior courts at Westminster; and by analogy to the practice of those courts, we are bound to grant prohibition ex debito justiciae in every case where sufficient grounds are laid for demanding it.⁵²	25
Taken out of their historical milieu, statements like these hardly seem exceptional. The presumption of judicial reviewability of executive action is so deeply entrenched in Australian public law today as to make any move to limit it an emotive political issue. But viewed in context, the holdings are nothing short of remarkable.⁵³ Forbes was very much the outsider in New South Welsh society. It sounds odd to describe it this way, but his was a background even more rustic than those of most of his peers. He was also merely serving in office at the Crown's pleasure, something of which we can easily lose sight today. Many of the people in New South Wales whom Forbes's judgments were bound to irritate—Scott included—were far better connected in London than he. That, in such a setting, Forbes was willing to make broad and unambiguous pronouncements about the scope in which the prerogative writs were available to be used suggests either courage or foolhardiness. More important, it reveals a genuine spirit of institutional independence that marked a profound change in the nature of the relationship between the courts and the executive government in New South Wales.	26
This is so because Forbes's judgments were actually obeyed. No longer did the executive claim untrammeled authority, as it had done during the periods of the First and Second Charters of Justice. This fact can only provide evidence of a nascent political culture in the colony, which must have begun to acknowledge, even if grudgingly, the concept of a separation of powers and the supremacy of judicially declared law. There was at this stage, of course, not yet any readily identifiable legislative branch in the government of New South Wales. Nor were the limits of what constituted "the executive" firmly determined. But Forbes's judgments, and the reaction to them, reflect clearly the notion, now so integral to liberal political thought, that a system of checks and balances was the essence of constitutional government.	27
There are two other cases of the period that, in a slightly different way, reveal a spirit of independence in the Court. In each, the voice was Stephen's stubbornness rather than Forbes's measured tones, but in them the Court displayed a steadfast resolve not to be bullied by the executive—which is a precondition for any effective operation of constitutionalism. The first of the cases was In re Byrne.⁵⁴ Byrne was one of fifteen men who had been arrested for cattle stealing. After their arrest, they had been kept in detention for six weeks, without any action having been taken to remand them for trial. Dr. Wardell—a prominent figure in Australian legal history, for he was not only one of the few trained barristers in the colony at the time, but also the proprietor of the Australian, a newspaper with a decidedly antigovernment disposition⁵⁵—applied to the Court by writ of habeas corpus to have them discharged. The Court, consisting by that stage of Forbes CJ and Stephen J, agreed with Dr. Wardell and ordered their discharge. In the course of the proceeding, Stephen J, who was not known for his circumspectness,⁵⁶ was reported as having said that "he knew of no law whereby, because men happened to be in the unfortunate situation of prisoners of the crown, that they were not to have the same measure of justice meted out to them as other individuals."	28
Following the discharge, Governor Darling wrote to Stephen J, asking whether the reports of his comments were accurate. Stephen replied that while he did not think that the report was particularly accurate, it was inappropriate that a judge should be questioned in this way. Somehow—and Darling believed that Stephen was the source of the leak—copies of this exchange made their way to Wardell's newspaper, which attacked the governor for having attempted to interfere with the independence of the judiciary, which it described as a "constitutional principle."	29
The second of the cases was In re Foster.⁵⁷ Foster was a transported criminal near the end of his sentence. But just four days before his sentence expired, he was convicted by two magistrates of an offense and sentenced to have his original sentence extended for a period of three years. Not surprisingly, this did not appeal to Foster, and he instructed counsel to apply for a writ of habeas corpus. Forbes CJ and Stephen J concluded that the conviction by the magistrates was void (being an order in excess of their jurisdiction), but the point worth noting is that again, Stephen J was reported as having made comments in obiter that the rights of prisoners were "as sacred in the Eye of Law as those of free men."	30
Once more, Darling wrote to Stephen to see whether this was an accurate report of the proceedings. And once more, Stephen replied contemptuously: he said that he thought the governor was attempting to interfere "between the Supreme Court and the other tribunals of justice ... to teach the Justices of the Peace that they are to look to the Government as the Director of their proceedings, and to lessen that deference which the Law requires from the inferior to the Supreme Courts."	31
In a subsequent communication, he reiterated this by saying that in his view, the governor's attempt to require him to explain his judgments was "irregular": "Such an interposition of the head of Government between the Supreme Court and the other Tribunals of Justice is, I think, calculated to weaken the confidence, which should prevail between the several Courts of the Colony, to teach the Justices of the Peace that they are to look to the Government as the director of their proceedings, and to lessen the deference which the law requires from the inferior to the Supreme Courts."	32

The Doctrine of Natural Justice as an Aspect of the Colonial Constitution
It ought not to be thought, though, that the early work of the Court stopped at a mere assertion of functional independence and the right to issue supervisory writs against the executive. On the contrary, the Forbes Court demonstrated a sense of obligation to establish substantive constitutional principle through its judgments—to lay down behavioral guidelines for those in authority. For Forbes, the substance of the law was far more important than the form. And more important than substance were underlying values. Formality was only important to him insofar as it provided a safeguard against the subversion of the spirit of the English common law.	33
This is evident in a review of the cases in which Forbes had to comment on the doctrine of natural justice. As has been suggested, in the period from the ascendancy of the New South Wales Corps up to 1823, corruption among the magistrates was perhaps the chief concern with the administration of justice. This being the case, among the most systemically important of Forbes's early judgments were the ones concerning the notion of procedural fairness and the standards of official conduct that would be expected of the magistrates. In the early period, there were at least three cases in which failures to observe natural justice figured importantly in the reasons for questioning the propriety of magisterial proceedings.	34
The first case of the trio was R v. Rossi, Principal Superintendent of Police.⁵⁸ For reasons discussed below, the case involved some institutional delicacy. Rossi, who occupied a magisterial office, was accused of having attempted to induce a prosecutor to drop a case against an accused thief. The alleged thief was a young woman, and the suggestion was that Rossi had, for improper motives, tried to act as an informal mediator between her and the complainant. In the end, Forbes found for Rossi, but in the course of his judgment, he made comments that foreshadowed by almost a century the famous remark of Lord Hewart CJ that justice must not only be done, it must be seen to be done.⁵⁹ In one report of his reasons for judgment in the case, Forbes CJ is supposed to have said: "I would say, taking all the circumstances of the case together, that most conscientiously I believe, the error of the Magistrate did not proceed from a corrupt motive, but from a mistaken feeling, though it certainly was of a reprehensible character. The motives and conduct of a Magistrate, should not only be correct, but above suspicion."	35
In another, he was reported as having said rather more poetically that "a Magistrate should never step aside from the simple line of Magisterial duty; he should not afford the world a shadow of suspicion; he should be free from taint, and pure as an angel, if possible."	36
Similarly, in the privative clause case of Ex parte Matthews, which has already been discussed,⁶⁰ Forbes held fatally flawed a judgment of an inferior tribunal that had been based upon a combination of unsworn evidence for one party and a refusal to hear evidence from the other. Forbes is reported as having said that "audi alteram partem is a maxim in the British Jurisprudence which [the commissioner of the court of requests] is not at liberty to set aside." In the same vein, in the Newspaper Acts Opinion, he said: "By the laws of England, founded in the law of nature, every man enjoys the right of being heard before he can be condemned either in his person or property."⁶¹	37
It would be misleadingly simplistic to make firm conclusions about change in legal culture from just three holdings, but it is interesting to consider the 1827 case of Adams v. Dawson in their light. Adams v. Dawson concerned a committal made by a magistrate where the order to commit had been drawn up prior to the hearing before the magistrate and where the order had been issued "without a tittle of evidence being read over [to the defendant], or an opportunity of rebutting it, if any were taken, being afforded him." Faced with this, the magistrate admitted that he had exceeded his jurisdiction, and the only question put to the jury was the measure of damages.⁶² Such an admission by a New South Wales magistrate would have been unthinkable, even four years beforehand. It cannot be stretching too far to conclude that this case shows that, by 1827, the power structure of the colony was on the path to becoming legalized.	38

Pragmatism and the Common Law Tradition
In a public address given in Hobart in 1962, Sir Victor Windeyer suggested that it was wrong to look to Imperial statute law as the source of Australia's received law. In his view, the "good root of title of our inheritance of the law of England" was the common law itself.⁶³ The Australian Courts Act of 1828 merely fixed the date for reception (in the eastern states), but the reception doctrine itself, he noted, was a doctrine of common law, as encapsulated by Blackstone. Sir Victor was reminding his listeners that, because of the nature of the common law system itself, the Australian common law was able to claim as its own the organic aspects of English legal developments of the five or six centuries that preceded settlement. In this respect, the point is well taken. Yet, as already noted, it is patently inaccurate to say that English law, or the English legal system, was received in New South Wales in 1788—at least to the extent that the notion of the rule of law was a constituent element of the English legal system in the late eighteenth century. But, it is equally incorrect to say that the reception doctrine operated according to Blackstone's dictum even after a court had been set up and vested with full jurisdiction to administer the law.	39
Blackstone had allowed for a patchwork of reception. Colonists, he said, carried with them "only so much of the English law as is applicable to their new situation and the condition of an infant colony."⁶⁴ In the case of New South Wales, however, the substance of English law was not only received in bits and pieces, but doctrines, and statutes even, had things read in and read out of them, so as to tailor them to the colonial setting in a way that exceeded any reasonable reading of Blackstone. In large measure, this was Forbes's influence. As Kercher has said, for Forbes "the reception of English law did not so much mean the reception of strict rules as of a general common law technique and advocacy of British freedom."⁶⁵	40
In his judgments, Forbes was fond of quoting Blackstone to the effect that reception ought not to be a mechanical process, but rather should be tailored to the colony's needs and social conditions. But in his private correspondence, he made plain that he differed from Blackstone in significant respects in his views on the basis of legal reception. According to accepted Blackstonian doctrine, the reception date was fixed at settlement. Forbes, in contrast, had a more textured view of the process by which law was "received" in a new society. Rather than perceiving it as a sudden act of single transplantation, Forbes thought that reception ought to be seen as a fluid, continuing process. Laws and legal principle would be received as necessary even after settlement, to take account of a colony's evolution from British outpost to English civilization. In the case of a colony for which no legislature had been provided, for example, Forbes adopted the utilitarian view that British statutes passed after settlement must necessarily continue to apply.⁶⁶	41
Forbes could hold this view because he was a judicial pragmatist. To take the case of New South Wales, if the date of reception of statute law had been fixed at settlement, there would have been more than thirty-five years during which the British Parliament passed, amended, and repealed legislation that the authorities in the colony could do nothing about.⁶⁷ In theory, statutes long repealed at "home" would still have been applicable in New South Wales, which could have led to results that seemed not only absurd, but unjust.⁶⁸ For Forbes, a mechanical view of reception would have been so antithetical to common sense as to necessarily be offensive to legal principle.	42
This illustrates something more significant about Forbes's approach to the reception issue—his concern was not to ensure the mere substantive accord of English and New South Welsh law. Even though he was in favor of continuing to receive English statute law after settlement, he was no Benjamin Boothby in his view of the unity of the common law. Rather, Forbes's goal was to ensure a broad parity between Englishmen in England and free Englishmen in New South Wales in terms of legal process and of the common law rights that the legal process was concerned to protect. He once set down his views on this point in a letter to Wilmot-Horton: "The policy of sending convicts to New South Wales stands recorded upon the rolls of Parliament; it was, and it is, to improve the colony, and make it more useful to the British nation; in what place shall we find that it was in barter for British right; or that any man was less amenable to English law, or less entitled to the privileges of an English man, because the soil on which he trod was cultivated by convicts? As a lawyer, I know of none such...."⁶⁹	43
Forbes's judgment in R v. Broadbear and Broadbear⁷⁰ shows his practical approach to reception. The case arose in the aftermath of the litigation between Archdeacon Scott and Reverend Walker of the Female Orphans' School in Parramatta.⁷¹ Walker eventually resigned from his post, and two of his employees (who happened to be emancipated convicts), a husband and wife named Richard and Mary Broadbear, indicated that they would leave, too. Their abrupt departure caused some inconvenience to the school, and to Scott, so he commenced action against them for breaching their contract of employment by not giving the requisite period of notice before termination. The Broadbears' trial was conducted in an irregular fashion. Sitting with the three magistrates who normally sat at Parramatta were three additional magistrates. Following their conviction, the Broad-bears sought judicial review of the trial in the Supreme Court.	44
In directing that the conviction be quashed, Forbes noted that the reception of statutes was not an all or nothing exercise. Parts of statutes might also be received. And the Court had considerable license to read down statutory provisions to adjust their operation to local conditions. Just as the common law could be received selectively, according to the dictates of local circumstance, so could statute law: "What Statutes, or parts of the Statutes of England, are to be received as part of the law of this Colony cannot be exactly defined." In that case, he accepted as relevant a statute passed in 1823,⁷² some thirty-five years after the supposed date of reception.	45
He publicly explained his views in more detail in R v. Wentworth, Campbell and Dunn.⁷³ "The general applicability or non-applicability of Acts of Parliament is a very wide question," he said: The common law is admitted to belong to the colonies; but does it altogether apply to the state of all or any of our colonies? It is clear that there are some parts of that law which do apply to the colonies, and other parts which do not. Now if there be some parts of the common law applicable to the condition of our colonies. And some parts not—and yet that law be in force there, upon what principle can it be contended that the statute law of the realm is not [to] be used in the same way?	46
He elaborated on the jurisprudential foundations of such a view: "The legislative power of the country happens now to belong to King, Lords, and Commons conjointly; but there was a period in our history when it was vested solely in the King. Much of what is termed the common law proceeded from the edicts of the sovereign alone; but it, at all events, is to be presumed to have proceeded from the legislative authority of the day—in whomsoever that authority may have been centred."	47
If, therefore, it was jurisprudentially sound to receive common law selectively, then it could be no more objectionable according to legal theory to do the same for statute law. Now one could object that in pointing to the ultimate unity of the legal system—a form of the maxim that the Queen is the font of justice and all jurisdiction is derived from her⁷⁴—Forbes was overlooking the great constitutional changes that had taken place in the seventeenth century. But as an exercise in the common law method of justifying pragmatic result by reference to antiquity, the judgment is really quite masterful.	48
Forbes's judgment in Willink v. Moore illustrates the extent of his willingness to view the applicability of the law and the legal process in essentially pragmatic terms.⁷⁵ The facts of this case—an action to recover a debt—were such that Forbes's judgment excited some interest in the popular press in England.⁷⁶ The case arose out of a debt of £200 owed by Moore to Willink, which Moore formally acknowledged in a note given in 1812, when both lived in England. In 1815, however, Moore left England, apparently unbeknownst to Willink, and without having satisfied his debt. Moore moved to New South Wales, where he eventually was appointed prothonotary of the Supreme Court.⁷⁷ In 1821, Willink found out where Moore was living and claimed repayment. Satisfaction was not forthcoming, so in 1824 Willink commenced action in the Supreme Court of New South Wales.	49
When the case was brought on for hearing, Moore pleaded as his sole defense the Statute of Limitations. Willink's reply was that the Statute of Limitations had been intended by Parliament to be a domestic statute only and could therefore not bar an action brought in the courts in New South Wales. Forbes agreed with Willink on this point, but he also held that the proper law to govern the case was the lex loci contractus. Since under the proper law of the contract—the domestic law of England—the right to sue for breach had expired, then the action was barred in New South Wales, too. This would not be correct in law now, and there is some doubt that this position was good law at the time.⁷⁸ But what makes the judgment of especial interest today is the extent to which Forbes was willing openly to show his concern about the possible practical ramifications of a judgment for Willink. "[T]his colony," he said, "is peopling every day by emigrants from England, and if this Court is liable to be called upon to re-open, from an indefinite period of time, transactions which have long since been foreclosed by the laws of the Country where they took place, and from whence all the evidence must be drawn, it is not very easy to foresee any termination to its labours."	50
In a Practice Note issued in late December 1824,⁷⁹ Forbes signaled to the Australian profession that procedural informality was to be the guiding principle in the courts in New South Wales. This echoed something that he had done in Newfoundland. There he had once said that "it should not be forgotten that justice is the first object of all Courts; forms are only the means by which that object is attained. To disregard the proceedings of Courts in this island merely for informality, would be to unsettle half the titles in it, and to sacrifice the ends of justice to its forms."⁸⁰	51
The New South Wales Practice Note directed that simplified, locally developed court forms, rather than English-style pleadings, would be used to initiate proceedings. In a letter to Wilmot-Horton, he explained that there were two reasons why he favored a simplified civil procedure in the particular context of litigation in New South Wales. First, showing a concern that the legal process be cast in terms that would engender public respect, he noted that Barron Field had attempted to introduce English civil procedure, which had been badly received. Forbes wrote that people in the colony "might be excused for believing" that the rules of full English procedure "were not so operative in facilitating the ends of justice as in filling the pockets of the practitioners."⁸¹ Moreover, Forbes thought, an introduction of the forms of action as they were known in England would provide greater opportunities for impropriety among the lawyers: "the forms of law may be seditiously resorted to as a covering for chicanery and fraud."⁸²	52
Not surprisingly, Forbes was generally resistant to any attempt at pleading technicalities in defense to any legal claim. In R v. Broadbear and Broadbear,⁸³ he indicated that he was unconvinced by an argument made on behalf of the Broadbears that merely because a statute called for committal to a House of Correction, of which there was none in New South Wales at the time, the statute could therefore be said not to have been received. So, too, in R v. Dargan and Wildred,⁸⁴ he was unprepared to find a defect in the wording of a magisterial commission to be fatal, where the defect had not had the substantive effect of misleading any party. Likewise, in Re King,⁸⁵ a case dealing with an apprehended deserter from the Royal Navy, Forbes was unmoved by an argument that the order of the magistrate committing the sailor to detention was void for being unsigned and unsealed.	53
Forbes's pragmatic concern for the institutions of the law extended on occasion even to turning a blind eye to pre-1823 irregularities. In R v. Rossi,⁸⁶ the case involving the police superintendent who had been accused of improperly attempting to thwart a prosecution, Forbes in the end found for the superintendent. But in a letter to Horton, he later suggested that the result might not have been a function so much of his belief in Rossi's innocence as a fear of opening a Pandora's Box were he to find against him. He said that he had "strained hard to prevent any cases being inquired into, prior to the passing of the New South Wales act, and the establishment of regular tribunals of justice in the Colony. I knew that not one, but one thousand cases of unauthorised jurisdiction and irregular sentences, would be found on the records of the different benches of Magistrates, in the course of two or three years."⁸⁷	54
Another aspect of Forbes's nondogmatic view of the law was his willingness to accept local custom as a modifier of the common law. There were several Newfoundland cases in which local custom was accepted as governing,⁸⁸ but from time to time this happened in New South Wales, too. In R v. Cooper,⁸⁹ for example, Forbes expressed his approval of an informal jury verdict urging that a person accepting property from an agent of the Crown, even though, through no fault of his own, the necessary legal formalities had not been complied with, and who had in the meantime expended a considerable sum on erecting a building on it, should have title transferred to him. Legally, Forbes said in his charge to the jury, "[n]o grant could be valid that wanted any of the solemnities thus enjoined." "The hardship of the case" could not alter the law. "At the same time, Gentlemen," he continued, "it will not be going out of my way and certainly not out of yours to make this hardship part of your verdict."	55
As Kercher has said, this judgment offers an example of an "informal" legal right trumping the formal law.⁹⁰ The hardship of which Forbes spoke stretched far beyond the situation of Mr. Cooper. According to one estimate, more than half the privately held land in the colony at the time was held in a similarly informal way.⁹¹ Forbes's charge to the jury showed not only an awareness of this, but also a willingness to allow the legal system to accommodate practical necessity. This was also evident in his approach to R v. Fitzpatrick and Colville.⁹² There, Forbes disallowed evidence to be taken from an Aborigine in a murder case, on the basis that he could not be sworn. But he approved of Governor Brisbane taking private evidence from the Aboriginal witness in order to determine whether the accused person ought to be granted mercy. In a letter to Wilmot-Horton, Forbes wrote: I have already discovered several defects in our act—among the more important is the want of means to get at the testimony of the native black people. They have no sense of an after state of rewards or punishments, but they are governed like ourselves by that instinctive love of justice, and natural law which always leads to the expression of truth where there is no superior inducement to falsehood. Lord Coke says an infidel is not to be taken as a witness—the light of latter times has dissipated this very barbarous notion—but still the exact application of our present rules of evidence will utterly exclude the testimony of all the aboriginal people of this extensive country for our Courts.⁹³ In discussing the specific outcome in Fitzpatrick and Colville, he continued: I respited the sentence and recommended the Governor to have the black before him and inquire into those circumstances which we could not legally bring before the Court—the governor had up the native, and he gave in presence of the Attorney General, the fullest, clearest, and most conclusive account of the whole affair—Now was it not barbarous to exclude such testimony by a mere rule of Court, which was engendered in days of superstition, and framed by men who never heard of the consequences to which it would tend. Why is not competency confined to interest, and credibility left in all cases to the jury? Truth is a natural institute of mankind—it is founded in moral feeling—and providence has so guarded it, that perhaps it is next to impossible so to cover falsehood as to prevent its discovery, if sufficient care and means be used to expose it.⁹⁴	56
But Forbes's pragmatism was far from being open-ended. Where fundamental common law rights were at issue, he was more open to arguments that strict procedure had to be followed. As has been suggested, Forbes's primary concern was the cultivation of the English legal tradition on Australian soil, which in Forbes's conception implicitly involved a tradition of judicial safeguarding of individual freedom. In R v. Tindall,⁹⁵ for instance, he expressed disapproval of a magistrate's order detaining, in default of paying a fine, a bootlegger. The warrant of committal had not specified a fixed duration for the detention, as law required. In his judgment, Forbes said that "[a]ll laws relating to the liberty of the subject were in strictissimi juris, and he had therefore no hesitation in saying that the warrant was incorrect...."	57

Implied Freedoms and the Early New South Wales Constitution
Forbes's political philosophy can also be seen in what today would be described as his "human rights" judgments. As suggested above, in most of his judgments, Forbes showed a determined keenness to protect and enhance common law rights in New South Wales. But there are a few of his cases that have an especially modern resonance for Australian law.	58
The first is his response to the jury litigation. Castles has described R v. Magistrates of Sydney,⁹⁶ the case that established the right to empanel civil juries at Quarter Sessions, as the "first major constitutional case in Australian history."⁹⁷ In fact, R v. Magistrates of Sydney was just one of a series of four cases concerning the introduction of civil juries in New South Wales, with R v. Sheriff of New South Wales,⁹⁸R v. Wentworth, Campbell and Dunn,⁹⁹and R v. Cooper.¹⁰⁰ As students of Australian colonial history know, the struggle for the right to trial by jury was one of most fiercely waged battles in the first half-century of settlement. Castles has written that the dispute satisfied what he described as "the basic requirements of great constitutional cases": the litigation was instigated to further a broader political campaign (by the Emancipists), and it was accompanied by sharp reporting in a partisan press.¹⁰¹ In his words, the jury litigation was "the focal point of bitter and often vituperative comment, which reflected the highly charged political atmosphere in which the decisions were handed down."¹⁰²	59
In fact, calls for the introduction of jury trials in New South Wales had been made as early as 1791,¹⁰³ but after the appointment of the Bigge Commission to investigate into the government of the colony in 1819, the Emancipists' calls reached a pitch. "Trial by jury," a petition to the Prince Regent¹⁰⁴ claimed, "is a Blessing conferred by our Mother Country on all Our Sister Colonies, that is the Hindus in India, the Hottentot in Africa and the Negro Slave in the West Indies, alike partake of its protection and advantage."¹⁰⁵ The London agent of the Emancipists advised the imperial government that the jury issue was "the first, most important subject introduced into the Petition."¹⁰⁶ Nevertheless, Bigge recommended that the introduction of the jury system be delayed, which the House of Commons supported (albeit by a narrow margin).	60
As passed, therefore, the New South Wales Act was hardly promising for the Emancipists. It contained an express provision that juries of seven military officers were to try criminal matters,¹⁰⁷ and the only provision for civil juries was found in s 6, which allowed a civil jury to be empanelled in a case where the parties agreed that one was desirable. Otherwise, s 8 of the act seemed to indicate Parliament's wish that the imperial executive should decide when the time was ripe for the introduction of a general right to trial by jury. It conferred upon the king in council the right "at any time or times hereafter, to cause the trial by jury to be further introduced and applied in such parts of New South Wales and Van Diemen's Land ... under and subject to such rules, modifications and limitations in respect thereof as His majesty ... shall seem meet."	61
The key to the litigation in R v. Magistrates of Sydney was s 19 of the act. It required the holding of Courts of Quarter Sessions at times nominated by the governor. In England, Quarter Sessions were comprised of a panel of magistrates or justices of the peace, who tried indictable offenses and who had a limited appellate jurisdiction over decisions of magistrates sitting alone. Quarter Sessions sat (originally four times a year, hence the name) with petit juries, and cases were presented to the Sessions by grand juries so, not surprisingly given the sensitivity of the jury issue in the colony, the question was whether the same should be done in New South Wales.	62
The driving force behind R v. Magistrates of Sydney were the magistrates themselves, who favored the use of juries to try free settlers. The magistrates were led by D'Arcy Wentworth, one of the wealthiest men in the colony and the father of W. C. Wentworth, the first Australian-born lawyer. Shortly after the Quarter Sessions were established, he and another magistrate wrote to Governor Brisbane, under the guise of seeking directions as to how the new courts were to operate. They noted that s 19 provided expressly that convicts could be tried summarily by the Quarter Sessions.¹⁰⁸ But in the case of free persons, it merely provided that the magistrates were to have "Power and Authority to take congizance of all Matters and Things congizable in Courts of General or Quarter Sessions in England, so far as the Circumstances and Condition of the said Colony shall require and admit."	63
After receipt of the letter, Brisbane asked the attorney-general, Saxe Bannister, for advice on the issue. Bannister's view coincided with that of the Emancipists. But the solicitor-general, John Stephen (as noted, from 1826 a judge of the Supreme Court) had a different opinion. To resolve the conflict between the two law officers, Brisbane arranged for Bannister to apply to the Supreme Court for a writ of mandamus, to direct the magistrates to empanel a jury.	64
When the matter came before him, Forbes sided with Bannister and the Emancipists. He agreed that s 19 required the empanelling of jurors to try free persons, and the writ was issued. The process by which he reached this conclusion is interesting, especially when compared with other of his judgments on questions of statutory interpretation. It is also telling of Forbes's view of the role that common law rights should play in shaping the social and political values of the colony.	65
Forbes began his judgment by noting that New South Wales was a settled colony, and that English law was therefore applicable. It flowed from this that the Crown enjoyed the same prerogatives in New South Wales as in England, subject to any parliamentary derogations thereof. After considering cases from his own previous station, Newfoundland, as well as from the West Indies and prerevolutionary South Carolina, he concluded that the prerogative still extended to the appointment of judges and the convening of courts in the colonies, provided they proceeded "according to the law and practice in England."	66
Forbes then considered whether the provisions of the New South Wales Act had affected this prerogative. In his opinion, they had not. In light of the clause in s 19 that vested the Quarter Sessions with "Power and Authority to take cognizance of all Matters and Things congizable in Courts of General or Quarter Sessions in England," Forbes thought that the magistrates in Sessions "must proceed conformably to the practice of the Sessions in England." As to the remainder of the Act, specifically the provisions of s 8, Forbes thought that it was directed at the Supreme Court. The law governing the constitution of the Quarter Sessions was provided for by s 19 alone.	67
Forbes took pains to deny that he was engaged in what today would be called judicial activism. "I desire," he said, "to be understood as not determining this question upon considerations of policy." But it is telling that the ultimate justification he offered for his view was Magna Carta: "It would not merely be against the express language of Magna Charta to try free British subjects without the common right of a jury, but against the whole Law and Constitution of England."	68
Interestingly, very shortly afterwards, the Supreme Court of Van Diemen's Land was faced with the very same question. But there, Pedder CJ reached the opposite conclusion from Forbes. In Pedder's judgment, the correct interpretation of s 19 of the New South Wales Act (which, notwithstanding its commonly used short title, applied to Van Diemen's Land as well) did not require the empanelling of juries in Quarter Sessions. In his view, if the act was read as a whole, s 8 anticipated that an Imperial Order in Council was required before juries could be used at Quarter Sessions convened under s 19. Nevertheless, Forbes's has gone down in history as the "right" judgment, and Pedder's reputation never really recovered from the scathing reviews that his opinion received in the Emancipist press. As Castles has explained: "Constitutional litigation carried on in the midst of acrimonious public debate stands to be judged very often by its political import. Forbes' judgment was undoubtedly 'more agreeable to Englishmen', or at least those who were fighting for constitutional reform in Australia in the nineteenth century."¹⁰⁹	69
Yet, there is a great deal to criticize about Forbes's approach to the jury issue. Most obviously, it is strongly arguable that the clause of s 19, which referred to "Power and Authority to take cognizance of all Matters and Things cognizable in Courts of General or Quarter Sessions in England," merely conferred jurisdiction and did not go to procedure. Moreover, the clause in question concludes with the familiar reference to the "Circumstances and Conditions" of the colony as being a limit on the extent to which the Sessions in New South Wales had to mimic those in England. As has been discussed, in other cases Forbes was not slow to make use of Blackstone's common law equivalent of this formulation to justify local departures from English practice. In this case, one would have thought that the express recommendation of the Bigge Commission to delay the introduction of trial by jury, together with s 8, would have provided evidence of the imperial government's view that "circumstances and conditions" in New South Wales did not at that stage admit of jury trials.	70
Furthermore, Forbes's approach in this case is not at all in accord with his own general approach to questions of statutory interpretation. A good illustration of the extent to which Forbes was prepared to engage in what we would today refer to as "purposive" interpretation of legislation can be seen in Raine and Ramsay v. Piper.¹¹⁰ The case involved a claim by two Sydney tobacco merchants to recover certain amounts of imported tobacco that had been seized by Piper, the collector of revenues, on the basis that necessary import duties had not been paid.	71
The duty had been levied pursuant to the statute 3 Geo IV, c 96, which gave the governor of New South Wales the authority to impose duties upon the importation of tobacco. In reaching his conclusion, Forbes took judicial notice of the policy behind the Navigation Acts and noted that in light of the clear statement of governmental policy, the ordinary grammatical construction of the relevant statutory provision would lead to an absurd result. In light of this, he was prepared to read down the provision so as to arrive at the conclusion he surmised Parliament would have intended. Surely, this approach would also have been the correct one to adopt in the interpretation of s 19 in the jury case.¹¹¹	72
Another of Forbes's important human rights cases provides an even more dramatic example of his willingness openly to factor political concerns into his reasoning process. This can be seen in the events surrounding his 1827 Newspaper Acts Opinion.¹¹² As chief justice, Forbes was required by s 29 of the New South Wales Act to certify that ordinances made by the governor in council were not repugnant to the laws of England.	73
The status of the press had long been a matter of some controversy in New South Wales. Governors Brisbane and Darling had both been of the view that newspaper reports were often libelous, and in July 1812, Lord Bathurst, the colonial secretary, had suggested in a dispatch to Brisbane that it might be appropriate to impose some controls in a form similar to the licensing legislation that existed in England.¹¹³ Eventually deciding that he could stand no more, Governor Darling introduced Licencing and Stamp Duties Bills into the Legislative Council, which, in April 1827, were transmitted to Forbes for his certification.¹¹⁴ Darling's bills were based on ones that had previously been introduced in Van Diemen's Land and certified by Pedder.¹¹⁵	74
Forbes refused to certify the Licencing Bill on the basis that it was repugnant to the basic common law freedom of the press. In language that, with only slight updating, one could imagine having come from the High Court of Australia in the early 1990s, he said: "By the laws of England, the right of printing and publishing belongs of common right to all His majesty's subjects, and may be freely exercized like any other lawful trade or occupation. So far as it becomes an instrument of communicating intelligence and expressing opinion, it is considered a constitutional right, and is now too well established to admit of question that it is one of the privileges of a British subject."	75
In Forbes's view, the licensing requirement amounted to a prior restraint on this freedom, which was fatal. In a long letter to Horton, he amplified his reasoning. Interestingly, in the course of so doing, Forbes made reference to a form of what we now understand as the proportionality doctrine: [A]n unrestrained press is not politic or perhaps safe in a land where one half of the people are convicts, who have been free men; yet I must not leave out of the account that the other half of the people are free, and that, as an abstract right, they are consequently entitled, as of birth-right, to the laws and institutes of the parent state. It is a mixed question, and requires to be carefully examined; if you take away the freedom of public opinion upon matters of government, you take away a legal right; necessity you will say justifies it; then the limit of that justification is the necessity which compels it; it should go no further; a question then naturally arises whether all the means of restraint, which the law of England has provided, have been tried in this colony without success. The answer is at hand, they have not....¹¹⁶	76
Alongside his resort to high constitutional principle, though, was a plain indication of a more base sense of political awareness and a felt necessity to pitch his judicial work to the court of public opinion. In his letter to Horton, Forbes continued: [An] English judge cannot be too careful of his reputation for independence; if he lose that, he loses his necessary influence over the public opinion, and, on state occasions, he becomes useless to the state.... I am no advocate for courting popular applause "that echo of folly and shadow of renown" as Lord Mansfield once called it; but the good opinion of the public, over which one presides, is worth having; and the judgment of the people, altho' sometimes misguided, is always grounded on right feeling; their suffrages are sometimes just....	77
Relations between Forbes (and Stephen J) and Darling were gradually worsening, and Forbes's refusal to certify¹¹⁷ led to a virtual breakdown in communication, which was only restored after both the chief justice and the governor were threatened by London with sacking.¹¹⁸ His perceived siding with the Emancipist press also contributed to his loss of almost all favor among the exclusivist community. At one point, John McArthur, one of the exclusivist leaders, sought (to no avail) to have Forbes impeached.¹¹⁹But Forbes was to survive in office for another nine years.	78

Conclusion—The Roots of Australian Constitutionalism?
In Democracy in America, Alexis de Tocqueville wrote of the United States in the early part of the nineteenth century that "scarcely any political question arises ... which is not resolved sooner or later into a judicial question."¹²⁰ A similar observation could have been made about New South Wales in the same period. But there was a significant difference in the way in which the law intersected with politics before 1824 and after it. Before 1824, during the periods of the First and Second Charters of Justice, the law in New South Wales was agnostic to constitutional principle, except perhaps in the crude sense of deeming it important to uphold the authority of the penal law. But apart from regulating the behavior of the penal element of the colony (and attempting to prevent breaches of the peace), the legal system was up for grabs. As has been discussed, the focus of the pre-1824 tussle over the courts was who would control them. For in the political atmosphere of the time, control of the apparatus of the law was seen to be an essential and attainable element in overall political control of the colony.	79
But after 1824, a really very profound change could be seen in the position of the legal apparatus vis à vis political conflict. Rather than being the subject of the conflict, as they had been in the first three decades of settlement, the courts came to be the forum in which the conflict was played out. As Kercher has put it, "[t]he great political contests of the Forbes years, between emancipated convicts and the exclusives ... was largely conducted in the language of law."¹²¹ Gone was the vulgar invective of Bligh and Atkins. In its place in political debate came the restraint of legal and constitutional formulation. The way in which cases like Adams v. Dawson¹²² were conducted illustrate this. So, too, the jury cases and the Walker v. Scott litigation and the Newspaper Acts Opinion all show the court in a very different systemic light from its predecessors under the First and Second Charters of Justice.	80
In part, this change stemmed from the fact that through the New South Wales Act, the imperial government intended to set up a "proper" legal system in the colony. But given the nature of New South Welsh political culture, these legislative changes would not alone have been enough. The critical element in the transformation of New South Wales from an a-constitutional to a proto-constitutional state was the appointment of Francis Forbes as chief justice. Without someone of Forbes's character and temperament, it is doubtful that the change would have taken place so smoothly or so quickly. The appointment of a person of his character to the chief justiceship after the passage of the New South Wales Act was serendipitous. For it was Forbes who worked to pacify the position of the judicature in the colony, thereby allowing the law to maintain an almost elitist air of institutional detachment from the parry and thrust of political partisanship.	81
The key to his institutional success was Forbes's own political philosophy. He had much in common both with the Whiggism that preceded his time and the high liberalism that followed it. Unlike the Whigs, his prime concern was not to transfer power to a legislature. And unlike the late nineteenth-century liberals, he did not seek actively to exclude government from all private affairs. But like both, he viewed the cultivation of individual liberty as the cornerstone of English social value. In Forbes's view, the liberty of the subject was a constitutional principle. It was in that vein that in R v. Magistrates of Sydney, the civil jury case, he said that to try free settlers without a jury "would not merely be against the express language of Magna Carta ... but against the whole law and constitution of England."	82
It was axiomatic to Forbes, therefore, that liberty and law had to exist in a relationship of mutual support and mutual dependence. Forbes's philosophy had liberal characteristics, but it was not libertarian in nature. Rather, his reflected beliefs were essentially Burkeian in character. Liberty was the social goal, but it was the liberty of the subject. Liberty was to be set within a legal and constitutional framework. Burke's views on liberty in the abstract (set in the context of the French Revolution) ring familiar to one who reads Forbes's judgments. "I should suspend my congratulations on the new liberty of France," wrote Burke, "until I was informed how it had been combined with government; with public force; with the discipline and obedience of armies; with the collection of an effective and well-distributed revenue; with morality and religion; with the solidity of property; with peace and order; with civil and social manners. All these ... are good things, too; and, without them, liberty is not a benefit while it lasts, and is not likely to continue long."¹²³	83
Yet in a way that was quite un-Burkeian, Forbes was a revolutionary. It is inaccurate to describe him as a legal reformer. The institutional corruption of pre-1824 New South Wales was so endemic that a mere project of reform would not have been enough to break the mold. What Forbes did, albeit through pacific methods, was to mount a legal and constitutional revolution. Even though transportation to New South Wales was to continue in one form or another until 1849, by 1824 the colony was at the point of transition from purpose-established penal encampment to free-standing civil society. Forbes was the institutional missionary of this transition. Armed with his New South Wales Act, he literally cast aside the old way of doing things and replaced it with another way.	84
The tone of Forbes's judgments leaves little doubt that he was acutely conscious of his role as constitutional revolutionary. His great achievement was to resist the forces that had given rise to the systemic corruption of the pre-1824 legal system in a way that his predecessors had not been able to. But had his revolutionary instinct not been tempered with pragmatism, his revolution might well have failed. This is particularly so, given the degree of entrenchment of the attitudes that he was attempting to overcome. Forbes showed political genius in being able to draw a balance that was broadly accepted by the opposing political constituencies: a balance between the felt needs of the government for authoritarian respect and the yearning of the ever-growing free population for the natural rights of Englishmen. Without this "street sense," one wonders whether in the decades that followed his retirement, the colony would have evolved toward representative government as peacefully as it did.	85
This is an intriguing query. Some people, including Bruce Kercher, have argued that Forbes's legacy was not an enduring one. They point to the fact that much of his procedural simplification did not outlast him by more than a few years. They also point to some of the external manifestations of the legal system, including the introduction of divided professions and the wearing of full English-style legal dress.¹²⁴ In some senses, the mourners of Forbes's passing are quite correct. The legal system in New South Wales did undergo a quite dramatic ossification in the decade and a half following Forbes's retirement. Moreover, the sheer excitement and novelty that attended the work of Forbes's court came after his death to be replaced with an almost deadening sense of contextual detachment. But one wonders whether these things, in themselves, might not be evidence of Forbes's enduring legacy. If we say that Forbes's great achievement was successfully overseeing the introduction of the rule of law in post-1824 New South Wales, then does not the fact that the excitement subsided bear witness to his success? Does not the fact that after his retirement the colony was able to evolve more-or-less peacefully toward representative government and a fully functioning system of judicature (however uninspiring its participants may have been in comparison to Forbes) suggest that the Forbes constitutional mission was a successful one?	86
But where does this leave us today? What are we to make of these early cases that Bruce Kercher's labors have made available to us? To return to the very beginning, does this newly discovered legal history have any contemporary relevance for Australian law?	87
In fact, the Forbes records do have a significant contemporary relevance. In a narrow sense, they add to the body of judicial precedent that may be drawn upon as the Australian common law grows. Of course, much of the substantive law of the Forbes era, particularly his judgments in private law, one supposes, is quite out of date. But insofar as the authority of antiquity is thought to be a useful thing in the judicial reasoning process, being able to point to an older line of domestic authority cannot be a bad thing. There is no reason, for instance, why Forbes CJ in R v. Rossi¹²⁵ ought not to be cited for the proposition that public perception about the administration of justice is as important as the substance of the administration itself, in place of Lord Hewart CJ in R v. Sussex Justices. Or in terms of the doctrine of natural justice, Forbes in the Newspaper Acts Opinion¹²⁶ or Ex parte Mat-thews¹²⁷ sounds just as good as the Common Bench in Cooper v. Wandsworth Board of Works.¹²⁸	88
More deeply, however, a study of the Forbes era can usefully remind us that a significant part of Australia's constitutional makeup—the tradition of judicial review—has its roots in the Georgian rather than the Victorian period, and that it predates federation by two or more generations. In other words, the Australian constitutional law tradition is not based solely on Diceyism, but also has a grounding in an earlier era. The notion of the rule of law of which Forbes was a proponent was less theoretically complete than Dicey's, to be sure, but it was nevertheless a robust and vigorous one, and the cultural changes that it spawned provided the basis from which the substantive constitutional changes of the later nineteenth century grew. Australians may today have largely forgotten Forbes the man, and they may be largely unaware of the extent of his involvement in the instigation of change, but his legacy is all around the Australian legal system. So as Australians stand in the position of reassessing their present-day constitutional arrangements and the significance of the colonial fact, perhaps they could do worse than to reflect on the terms of what in fact amounts to an indigenous Australian legal tradition—the uniquely Australian version of the evolved common law constitution.	89
Ian Holloway is professor and dean of law at the University of Western Ontario <ihollowa@uwo.ca>. He would like to thank his research assistant Tracey Cronin for her valuable assistance in completing this article. He also wants to express his gratitude to Bruce Kercher of Macquarie University for inspiring him to want to take on this subject. Notes ^1. 4 Geo IV, c 96. ^2. 9 Geo IV, c 83. ^3. 5 & 6 Vict, c 76, and 13 & 14 Vict, c 59. ^4. 63 & 64 Vict, c 12. ^5. Victor Windeyer, "A Birthright and Inheritance: The Establishment of the Rule of Law in Australia," University of Tasmania Law Review 1 (1962): 639. ^6. Ibid., 637–38. ^7. On this generally, see Ian Holloway, "A Sacred Right—Judicial Review of Administrative Action as a Cultural Phenomenon," Manitoba Law Journal 21 (1993): 24. ^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). ^11. E. P. Thompson, Whigs and Hunters—The Origin of the Black Act (London: Penguin Press, 1975), 266. ^12. H. V. Evatt, Rum Rebellion (Sydney: Angus & Robertson, 1938), 127. ^13. On this, see generally, Alex Castles, An Australian Legal History (Sydney: Law Book Co., 1982), 46–89; Bruce Kercher, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: Federation Press, 1996), 1–22; L. A. Whitfield, Founders of the Law in Australia (Canberra: The Australian National University, 1969), 3–4.

Sir Francis Forbes and the Earliest Australian Public Law Cases

Ian Holloway

The Rule of Law in a Penal Colony

The Reconstituted Supreme Court and the Prerogative Writs

The Doctrine of Natural Justice as an Aspect of the Colonial Constitution

Pragmatism and the Common Law Tradition

Implied Freedoms and the Early New South Wales Constitution

Conclusion—The Roots of Australian Constitutionalism?

Notes