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Dowling, Sir James (1787–1844)

by C. H. Currey

This article was published in Australian Dictionary of Biography, Volume 1, (MUP), 1966

James Dowling, by Joseph Dennis

James Dowling, by Joseph Dennis

State Library of New South Wales, 249

Sir James Dowling (1787-1844), judge, was born on 25 November 1787 in London, a son of Vincent Dowling of Queen's County, Ireland, and later a bookseller and press associate in London. He went to St Paul's School, London, and then became a parliamentary reporter until he was called to the Bar in May 1815. He practised at the Middlesex Sessions and, with Archer Ryland, edited King's Bench Reports 1822-31, in nine volumes, and Magistrates' Cases 1822-27, in four volumes.

In June 1827 Dowling applied to the Colonial Office for an appointment 'from a desire of making myself useful to the public, and advancing the private interests and welfare of my numerous family'. He was offered the post of chief justice at Dominica, but in August, with help from James Stephen and Henry Brougham, obtained a puisne judgeship in New South Wales. He arrived at Sydney in the Hooghly with his wife and six children on 24 February 1828 and next day was sworn in.

Before leaving England, Dowling had learnt of the strained relations between the executive and the judiciary in New South Wales and that, in the exercise of their judicial functions, the judges, particularly Chief Justice (Sir) Francis Forbes, had incurred the enmity of Governor (Sir) Ralph Darling. Dowling's own first impressions of these gentlemen depressed him. 'The Governor', he wrote, 'appeared a cold, stiff, sickly military person. I absolutely froze in his presence. The Chief Justice appeared very unwell, seemed very unhappy, and had a round-head republican look. Mr Justice Stephen seemed to be marked down for another world. Mr McLeay consumed me with a prying reconnoitering curiosity … I devoutly wished myself back again in London to go on with the quiet, slavish drudgery of my bygone days'. However, his Celtic spirit soon revived, and six weeks later he recorded that he liked his colleagues very much.

Dowling's success in thus establishing himself was largely due to his competence in discharging his judicial duties, and to his tact, geniality and innate kindliness. He had hardly taken his seat upon the bench when he was informed by Darling of a direction by the Colonial Office that he was 'to take rank in the Supreme Court next to the Chief Justice'. John Stephen, the senor puisne judge, took exception to this implied demotion, and Dowling, advised by Forbes, took the second place until the question of precedence was determined by the Colonial Office. He was commended for his 'courtesy and restraint' by Downing Street whose direction had been given under a misapprehension as to Stephen's wishes.

When, in September 1835, it was known officially that the chief justice, Francis Forbes, had been given long leave, Dowling's natural expectation that he, as then the senior puisne judge, would be appointed acting chief justice, was shattered by a claim to such preferment, vigorously pressed in Sydney and in London, by Mr Justice (Sir) William Burton whose appointment had compelled Stephen's retirement. Burton argued that as he had been appointed a judge of the Supreme Court at the Cape of Good Hope before Dowling had been elevated to the corresponding bench in New South Wales, he was senior to him. Burton also invoked the rule prevailing in the Courts of Westminster Hall, where, if a judge of one court were translated to the bench of another court, he took rank according to the date of his patent and not according to the date of his removal. Sir Richard Bourke, who, while governor at the Cape, had come to hold Burton in high regard and had been instrumental, on becoming governor of New South Wales, in having him translated to Sydney, disclaimed competence to determine the point raised by the contestants, but, as the appointment was temporary, he decided to follow the conventional practice, and appoint Dowling acting chief justice, pending advice from London. At the same time, while deploring Burton's 'want of judgment' in pressing his claim, Bourke declared that 'had the vacancy about to be made by Chief Justice Forbes been permanent instead of temporary, I should not have hesitated one moment to name Mr Burton to fill it'.

'It appears to me', replied Glenelg, 'that the claim thus preferred by Mr Burton is not tenable; but that you judged rightly in giving the preference to that of Mr Dowling … I must distinctly record my dissent from the opinion that the succession to the Chief Justiceship, whether that succession be permanent or provisional, is attached as a matter of right to seniority on the Bench. His Majesty's Government are not only free, but are bound to pass over either or both of the puisne judges on such an occasion, if the interests of the public at large shall appear to them to demand such a measure'.

This pronouncement, Forbes's impaired health and Bourke's care to give Dowling 'no grounds for believing that, in the event of a permanent appointment, [he] would have preferred him', called for prompt action at the highest level. When Forbes, still in England, resigned in April 1837, Dowling's brother, Vincent, at once interviewed Brougham to ensure James's succession. In this he was successful, but a month later he learned with dismay that Glenelg proposed to appoint Chief Justice (Sir) John Pedder, of Van Diemen's Land, to the vacant seat and make Dowling the chief justice at Hobart Town. This called for more representations, influential perhaps because a widely circulated newspaper, of which Vincent was editor, had supported Glenelg's party. In the result, Dowling became the second chief justice of the Supreme Court of New South Wales. He was knighted in 1838. 'The nickname', he noted, 'has made many people wondrous civil to me'.

Throughout his judicial career, according to Sir Alfred Stephen, Dowling 'was remarkable not only for the most strict uprightness and impartiality, but for a painstaking and anxious industry rarely equalled. Accessible at all times, a patient listener, careful to ascertain every fact and ready to hear every argument which might be brought to bear on the case before him, he never failed to make himself its master in every detail'.

In his first four years the frequent absences of John Stephen through illness threw upon Dowling a major share of the work of the court. Moreover, in those years the press campaigned against Governor Darling and his senior officers, and libel actions crowded the cause list. 'It has been my painful lot', wrote Dowling, 'to try a great number of cases, pregnant with political excitement and party feeling'. But neither litigants, such as Edward Smith Hall, nor counsel, such as Dr Robert Wardell and William Charles Wentworth, had just cause for complaint. In 1829 he delivered the gaol at Maitland, the first sitting in the Hunter River valley of the Supreme Court, in effect on circuit, but then deemed 'adjourned' from Sydney. Justice was dispensed in the Union Inn which 'served for the purpose of public worship, the administration of justice and the refreshment of wearied travellers'. With the same willingness to serve, where and as circumstances dictated, he went to Norfolk Island in 1833.

When sitting in Banco, Dowling had the advantage for eight years of the presence of Forbes, yet when he concurred with him he usually gave a separate judgment, and when he differed from him, as in R. v. Farrell (1831), he learnedly expounded his reasons for his conclusion, as he did when, e.g. in Macdonald v. Levy (1833) and R. v. Maloney (1836), he agreed with the chief justice but not with Mr Justice Burton. He shared his chief's conception of the inviolability of the Judgment Seat, and, in terms as impeccable in substance and expression as, in like case, would have been used by Forbes himself, he repulsed a request made on one occasion by Darling that he thought trenched upon the independence of the Supreme Court.

With one of his learned brethren, Mr Justice John Willis, Dowling could not live in amity despite his genuine efforts to do so. 'I am a peaceable person', he wrote, 'but even a lamb will flinch from the knife'. To him Willis was 'a fidgetty, restless, self-opinionated fellow' whom some people thought 'cracked'.

In 1840 the governor was authorized by statute to nominate the chief justice or, should the latter decline such nomination, one of the puisne judges to exercise the equitable jurisdiction of the Supreme Court. Governor Sir George Gipps would have nominated Willis to this position had not Dowling decided to exercise his statutory right and occupy the position himself. To put an end to the discord, Gipps transferred Willis to Melbourne.

The judge's letters to his son, James Sheen, later a district court judge, shed an informing light on the contemporary scene and on the considerate disposition of his worldly wise, liberal-minded, affectionate father. Ten children, four of whom died in infancy, were born to Dowling and his first wife, Maria Sheen, whom he married in 1814. After her death twenty years later, he married, in September 1835, Harriet Ritchie, the widowed daughter of John Blaxland. Adequate provision for his family and their advancement was the never ending concern of the fond parent. In 1828 he received a grant of seven acres (2.8 ha) on Woolloomooloo Hill, then the eastern fringe of the town of Sydney, on condition that he erected a house thereon of the value of £1000. On this grant he built Brougham Lodge, naming it after his patron. In the same year, he received a grant of 2560 acres (1036 ha) in the County of Durham. His salary was then £1500 as a puisne judge; it rose to £2000 when he became chief justice.

His income, however, was never equal to his requirements. 'Without parsimonious economy', he assured James Stephen in 1828, 'I cannot keep out of debt'. 'Even with my frugal habits', he confided to Brougham in 1836, 'I have been obliged to mortgage the little property I have scraped together to enable me to maintain and educate my children'. The other judges on their own behalf joined in his lament, and in a petition for an increase in their salaries, statutory provision for security of tenure, and a scheme of pensions that would enable them to retire before they were carried off the bench. The cost of living had risen considerably during Dowling's term, but his appeals fell on deaf ears in Downing Street, as did those of Forbes, Burton and Willis. Meanwhile, he was grossly overworked. 'Papa', wrote Lady Dowling in 1840, has 'for six days been at Court until seven and eight o'clock in the evening. Yesterday he was there from 10 a.m. until three this morning'.

To his duties as a judge, Dowling added those of a Legislative Councillor when he succeeded Forbes as chief justice, but, unlike his predecessor, he stood on the side lines and was of opinion that it would be better if he were not on the floor of the council chamber at all. 'The legislative and judicial functions', he wrote, in 1840, 'are incompatible and I should be kept as distinct as possible, especially in so small a community as ours'. Curiously enough, although so strongly averse to the chief justice being a debating member of the Legislative Council, Dowling was as strongly of the opinion that he would escape 'infection' if, when the legislature was reconstituted under the Act of 1842, 5 & 6 Vic. c. 76, he were appointed speaker. 'In a body constituted as that will be', he wrote, 'some person should be at its head, accustomed to preserve order in debate; and to whom, from his station and the weight attached to the judicial character, its members, on both sides of the House, would be likely to look, not less for direction on points of form, than for independence and impartiality in his decisions'. Although not prepared to put himself forward for election to the office, he intimated that if he were proposed and endorsed by the government he would accept the position. However, as his heavy duties in court would preclude the discharge of the functions of the additional office without relief, he stressed, as an indispensable corollary of any such acceptance of the chair if proffered, the appointment of an additional judge, already greatly needed, and a consequent reallocation of the business of the Supreme Court in its several jurisdictions.

Governor Gipps refused the support of the government, first because he doubted the propriety of uniting the offices of chief justice and speaker, and second because, in a council two-thirds of whom were elected members, any attempt to put a nominee of the Crown into the chair would probably be defeated. While disclaiming any personal ambition in the matter, Dowling was so convinced that the election of a speaker from the floor of the House was unwise, and that the undesirable dissension resulting therefrom would be avoided by the union of the chief justiceship and the speakership in the one person, that, notwithstanding the governor's objections to such a joinder, he asked that his communications be submitted to the secretary of state. They were, but Stanley agreed with Gipps.

For Dowling himself, the sand was already running out. Towards the end of 1840 he was so seriously ill that his medical adviser prohibited his return to duty for three months. In May 1841 he applied for eighteen months leave to go abroad in the hope that he would regain strength dissipated by 'above thirteen years of incessant judicial labour, never once relaxed'. With callous indifference to meritorious service, Earl Stanley withheld his sanction until Gipps could make 'a perfectly satisfactory arrangement for filling up a temporary vacancy on the Bench without subjecting the public to any additional charge'. On 27 June 1844 the chief justice collapsed on the bench. His doctors now certified that a long sea voyage and a change of climate were essential to his survival, and Dowling applied for leave directly to the governor. When the Executive Council recommended that his application be approved, and the Legislative Council added a request that it should be on full salary, Gipps granted his request. But, before the ship in which he had booked his passage was ready to sail, Dowling had another relapse and died on 27 September 1844. 'I loved him', said his colleague Alfred Stephen, 'as a brother'.

Two hundred and thirty-seven notebooks in the Mitchell Library preserve Dowling's judgments at common law, in equity and vice-admiralty. When to these are added his official letters and opinions, in five volumes; his three volumes of reports to the governor on capital cases tried by him; and his six volumes of special cases, all set out in his almost copperplate handwriting and, in many instances, carefully indexed, we can but marvel at the painstaking industry which has provided such a valuable record of the law applied in the Supreme Court of New South Wales from 1828 to 1844.

Select Bibliography

  • Historical Records of Australia, series 1, vols 13-24, series 4, vol 1
  • J. A. Dowling, ‘The Judiciary’, Journal and Proceedings (Australian Historical Society), vol 2, part 5, 1907, pp 97-116
  • J. S. Dowling, The Reminiscences of Judge Dowling (State Library of New South Wales).

Citation details

C. H. Currey, 'Dowling, Sir James (1787–1844)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/dowling-sir-james-1989/text2421, published first in hardcopy 1966, accessed online 26 September 2017.

This article was first published in hardcopy in Australian Dictionary of Biography, Volume 1, (MUP), 1966

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