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Forbes, Sir Francis (1784–1841)

by C. H. Currey

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

Francis Forbes (1784-1841), by unknown artist

Francis Forbes (1784-1841), by unknown artist

State Library of New South Wales, GPO 1 - 09909 [detail]

Sir Francis Forbes (1784-1841), chief justice, was the eldest son of Dr Francis Forbes and his wife Mary, née Tucker. His grandfather, Dr George Forbes, came of ancient Scottish lineage, but after Culloden had settled in the Bermudas and with his sons had economic interests in America. Francis was said to have gone to school and travelled there, and so 'acquired political opinions of the freest tendency'. Although later credited with 'American sympathies' and 'Yankee principles', he was a King's or Queen's man to the end.

In 1803 Forbes went to London to study law. He read with Edward Sugden, later Lord St Leonards and Lord Chancellor, and was called to the Bar of Lincoln's Inn on 29 April 1812. Before this he had returned to Bermuda, where his appointment as attorney-general was confirmed by royal warrant on 22 March 1811. In 1813 he was also appointed King's advocate in the Vice-Admiralty Court. In London that year he married Amelia Sophia, daughter of Dr David Grant of Harley Street, but formerly of Kingston, Jamaica. Their first home was at St George, Bermuda. Here he was commended by successive governors for zeal and skill in his professional duties and for readiness to tender legal advice whenever called upon by his superior officers.

In August 1816 Forbes was appointed chief justice of the Supreme Court of Newfoundland and next July was sworn in at St John's. Newfoundland was then emerging from long subordination to the interests of the Admiralty and the owners of ships that annually fished in its waters. There was no local self-government and control of the island was vested in the commanding officer of the naval station at St John's; he was designated governor and commander-in-chief but usually dubbed admiral-governor, and pieced out his slender legislative authority by issuing proclamations on all manner of subjects. Forbes's legal authority was based on 32 Geo. III, c. 42 as amended in 1809, under which the Supreme Court had been established in 1792 with civil and criminal jurisdiction. His immediate predecessors were said to be 'a disgrace to any colonial judiciary', and the inferior courts guided by the light of nature rather than by the rule of law.

To this situation Forbes addressed himself ably, courageously and good-temperedly. In free exercise of the corrective jurisdiction of his court he incurred the displeasure of the admiral-governors, in particular Sir Charles Hamilton, by declaring many of their proclamations null and void and by curtailing the powers with which they had clothed subordinate officers. His judgments bear convincing witness to his professional competence and sense of justice, but a sickness 'founded on a delicate constitution unfitted to support a sedentary life in so severe a climate' compelled him to apply for four months leave. When Hamilton refused, Forbes immediately reapplied and intimated that if leave were withheld he would resign. It was granted forthwith. Farewelled with eulogistic expressions of esteem by leading residents of St John's, Forbes sailed for England with his wife and three sons in May 1822. Before his leave expired, Hamilton urged the Colonial Office to hasten his return because of the number of criminal cases awaiting trial. Bathurst directed Forbes to comply but also offered to recommend him for the position of chief judge of the Supreme Court in New South Wales. Forbes accepted this alternative though his appointment was delayed. Temporarily engaged without remuneration at the Colonial Office on matters pertaining to Newfoundland and the Australian colonies, he began an enduring association with James Stephen, and made favourable impressions on John Thomas Bigge and Dr William Redfern. John Macarthur junior reported that Forbes had great talent and an estimable character, but predicted that his theoretical views on public liberty would incline him 'to question local regulations which, although of manifest utility, are not strictly sanctioned by law'.

In New South Wales Judge-Advocate (Sir) John Wylde of the Criminal Court and Judge Barron Field of the Supreme Court of Civil Judicature were notified that their appointments would terminate with the enactment of 4 Geo. IV, c. 96. This supremely important statute was passed on 19 July 1823. It was intituled an Act to provide for the better administration of justice in New South Wales and Van Diemen's Land and for the more effectual government thereof. It also authorized the Charter of Justice, under which the Supreme Court of New South Wales was invested with the same status and jurisdiction as the King's Bench. On 13 October the formal appointment of Forbes as chief justice of the new court gave him unique powers, for he was not only head of the judiciary but also a member of the Legislative Council and, ex officio, of the later Executive Council. Furthermore, section 29 of the Act forbade the governor to submit any bill to the Legislative Council unless the chief justice had been sent a copy and had transmitted to the governor his certificate to the effect that the proposed measure was not repugnant to the laws of England. In these legislative functions Forbes was to find himself confronted with controversial public issues. He was invested with a check rein which a governor could find irksome.

Forbes and his family reached Sydney on 5 March 1824. Until the house in Macquarie Place, previously occupied by Barron Field, was ready for their use, they stayed with Governor Sir Thomas Brisbane, and thus began a close friendship. On 17 May the new Charter of Justice was promulgated and the Supreme Court formally opened. Its officers were appointed and practitioners admitted. On 10 September Dr Robert Wardell and William Charles Wentworth, who had qualified as barristers in England, were admitted as such, though they also practised as attorneys for there was then no division in the profession. The first attorney-general was Saxe Bannister, and the first solicitor-general, John Stephen. He had been recommended for the office by his nephew at the Colonial Office, James Stephen junior.

The new Legislative Council first met on 25 August and as Brisbane thought it wise not to attend its sittings, Forbes was virtually its president. He formulated the criteria by which the governor was guided in nominating unofficial members, and temporarily became the parliamentary draughtsman when Bannister proved incompetent. On 14 October Forbes so construed section 19 of the Act that trial by common jury of twelve inhabitants, who had come to the colony as free men or had been born in it, was instituted for the first time in Australia, though it was limited to Courts of Quarter Sessions. On the same day the Australian, the colony's first independent newspaper, was published by Wardell and Wentworth. In November Forbes went with Brisbane to Moreton Bay and was invited to name the site selected for a settlement on the Brisbane River; he named it Edinglassie, after an ancestral estate near Aberdeen, but his choice was soon forgotten. In 1824 New South Wales was also first erected into an archdeaconry under Thomas Scott. In November the charter of the Australian Agricultural Co. was issued; on its local committee the Macarthurs were very strongly represented. Invited by (Sir) Robert Wilmot Horton to comment on the wisdom of the company's million-acre (404,690 ha) grant, Forbes reported adversely on the formation of large estates and favoured 'unlocking the land' for settlers. He also criticized members of the local committee who sold their stock to the company at high prices. If Horton gave any inkling of the tenor of this report to his friend John Macarthur junior, the level of Forbes's stock at Camden must have fallen appreciably.

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

The campaign against Brisbane was also vigorously continued and in 1825 he was relieved of his command. Before sailing, he wrote to Forbes: 'I have never yet considered myself under the same degree of obligation to any human being; neither have I ever entertained the same esteem and regard for any person as I feel towards yourself'. Forbes had already won other tributes. According to one practitioner, Roger Therry, he was 'the model of an excellent judge', imperturbably calm in temper, acute in discrimination and thoroughly acquainted with legal principles. Other practitioners praised his rules of court and Therry found them simpler than the costly procedures in the courts at Westminster. But Forbes's health was impaired by heavy duties in his varied offices, and in August 1825 a special Act of the council provided him with an assistant judge.

In the first year after (Sir) Ralph Darling arrived, Forbes was in cordial relations with the new governor. Brisbane's administration had been free and easy, and Forbes appreciated Darling's zeal, although his belief in individualism led him, qua councillor, to disfavour the governor's drastic policy of 'thorough' in reorganizing the public service. He also disapproved his ruling through a family cabal. Forbes found Darling 'quite unacquainted with civil business' and possessed of 'less knowledge of the laws of his country than any gentleman filling his high official station whom it was ever [his] fortune to meet'. Clouds began to gather when Forbes, advising Darling at the latter's request, adjudged illegal his action in commuting the sentence imposed on Sudds and Thompson, and when newspapers, for political reasons, criticized the governor's handling of their case, Forbes's opinion was upheld and Thompson's release was ordered. Sudds had been released by death.

Darling's instructions for controlling the press had been framed by James Stephen in the light of suggestions from Lieutenant-Governor (Sir) George Arthur in Van Diemen's Land. Arthur's proposal of a licence revocable at the governor's will had already been submitted to Brisbane who on Forbes's advice declined to sanction it. Darling was anxious to remain at peace with the press, although Arthur, on receiving similar instructions, promptly had bills prepared providing for licences and imposing a stamp duty, and sent them to Sydney for parallel action. Darling delayed until, infuriated beyond endurance by the Monitor and the Australian, he submitted these bills to the chief justice for his certificate as prescribed by section 29 of 4 Geo. IV, c. 96. Forbes refused his certificate to the six clauses relating to a licence in the first bill because he believed them inconsistent with English law, a view later upheld by the law officers of the Crown, but he did certify the other clauses and they became law as the Newspaper Regulating Act. The second bill, as he received it, did not include the amount of stamp duty to be imposed, but he found no objection in law to a newspaper tax and gave his certificate, expecting that, when the crucial amount was determined, the bill would be returned to him for certification in that particular. This was not done. A duty of 4d. was inserted, the bill was passed, the governor assented and it was promulgated. Forbes was of opinion that these actions contravened sections 27 and 29 of 4 Geo. IV, c. 96 and that the tax of 4d. was too high. He therefore intimated that, if the Act were challenged before the Supreme Court, he would declare it invalid. Darling then proclaimed that 'a certain Bill purporting to be an Act', was suspended; later the authorities at Westminster upheld Forbes's opinion and the Act was disallowed. In 1828, when bills to license auctioneers and places of public entertainment were submitted to Forbes, they were found by him to be open to the objection in law that had been fatal to the first six clauses of the Newspaper Regulating Act, but this time the necessary amendments were made and the requisite certificates were given.

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

Despite Darling's reflections, Forbes accepted Horton's invitation to report on the working of 4 Geo. IV, c. 96, which was due to expire in July 1827. It was replaced by 9 Geo. IV, c. 83, which like its predecessor was largely the work of James Stephen and Forbes. Before the new Act came into force Peel's six Acts, modernizing and humanizing much English statute law, were enacted in 1826 and 1827, but they did not apply in New South Wales where the determining date for the application of English laws had been held by Forbes to be 19 July 1823. On hearing of Peel's Acts, Forbes advised the governor to extend them at once to the colony by an Act of the council, but his advice was not followed.

In the first criminal sessions of the Supreme Court in 1828, a number of charges against the accused were found to relate to alleged acts punishable under statutes that had been repealed by Peel's Act, 7 & 8 Geo. IV, c. 27. Some twenty-five prisoners were thus liable to capital sentences for offences committed after the old statutes were abolished. Forbes reported these cases to the Executive Council, declared that he had 'doubts', and suggested that the matter should stand until he could consult his brother judges. Their unanimous opinion, sent to the governor on 1 April, was that the convictions could not be upheld by any construction of law and were wholly void, and that the governor had neither the authority to cause the sentences to be carried into effect nor the competence to commute the capital sentences. Reluctant to release the detained men, Darling turned to the attorney-general for advice and to the judges for a report on each case. The law was inexorable, but the governor did not discharge the men until August. Later when 9 Geo. IV, c. 83 came into force, Forbes differed from his brother judges in his interpretation of section 24, but his tests for the applicability of English statutes—suitability and enforceability—were later endorsed by the High Court.

In the Executive Council, first assembled by Darling in December 1825, Forbes was given little opportunity to share in determining government policy. In his conception of the appropriate government for the colony, this council should have been the keystone of the arch, but Darling thought that the chief justice's powers left the governor 'little more than the semblance of supreme authority'. His recommendation that Forbes be excluded from both councils led to the formulation of the rule that judges were ineligible to sit in the Executive Council. Darling's persistence in filling senior legal offices without consulting Forbes worsened their relations. The chief justice would tolerate no invasion of what he deemed his own province and was upheld in his protest by the Colonial Office. Twice he had to deal with disputes between his brethren on the question of precedence, and he retained their respect and goodwill. The criminal calendar was then always replete and, as the criminal law was said to be 'written in blood', its enforcement, according to Mrs Forbes, affected her husband's health and spirits. In its civil jurisdiction the court was no less busy with numerous actions, a number of them for libel. The lightest jurisdiction was that of Vice-Admiralty, but there were also inferior courts, of whose operations the chief justice kept himself well informed, and whose jurisdiction he strengthened by rules of his making and by laws which he drafted and piloted through the legislature. To his great disappointment he was not supported in securing the establishment of circuit courts which he thought urgently necessary. Although he paid high tribute to the work of juries of commissioned officers, he supported the extension of the common jury system. English law, enforceable in the colony, enabled him to give an affirmative answer when the eligibility of emancipists for jury service was questioned. He later suggested that, when 9 Geo. IV, c. 83 expired, the statute replacing it should provide for some limits on forfeited rights restored subsequent to the enactment of that Act.

The year 1828 was the most trouble fraught in Forbes's professional life. It opened with the case of Raine v. Macarthur; it arose from a dispute between John Raine and his neighbour, in which the ageing Macarthur had gratuitously and vehemently intervened. Concluding that both sides were culpable, the court rejected Raine's application and ordered Macarthur and his co-defendants to pay costs of some £300. In angry letters Macarthur urged his sons in London to appeal to the Privy Council and to seek advice on having Forbes impeached. The sons were content to lodge the papers at the Colonial Office, where they received short shrift, but Macarthur continued to fulminate against 'the dangerous, detestable, unprincipled, immoral, base and artful man' who presided in the Supreme Court. At the same time Marsden published his Statement, which sought to controvert the findings of Brisbane's earlier inquiry, and to establish the Indemnity Act as a 'masterpiece of insidiousness'. To the Colonial Office Darling reported that he thought the pamphlet fully vindicated Marsden as well as proving that Forbes had 'prostituted his public situation to answer party purposes'. Forbes knew that he was Marsden's chief target and that many copies of the pamphlet had been sent to parliamentarians and other influential people in England, so he carefully traversed the Statement. His answer, remitted to Downing Street through Darling, was Forbes at his best: impersonal, lucid, concise, logical, compelling and apparently final.

The next thrust came from Darling, who had set out to destroy Captain Robert Robison, a son-in-law of John Stephen. Having received 'private information' that Forbes had helped Robison to revive charges sent home against him, the governor asked the chief justice if such were the case. Forbes replied that the report was completely false. Darling acknowledged this reply as 'perfectly satisfactory', but repeated the accusation to the Colonial Office and again earned a sharp rebuke. It did nothing to check Darling's ill feeling and, since he could not dismiss the judges as he had other senior officers who displeased him, he begged for Forbes's removal. This led to a long review by James Stephen of the causes of bad relations between the governor and the bench, and the ensuing dispatch, signed by Sir George Murray, concluded, 'If dissensions similar in spirit continue to agitate the Colony, I shall feel myself called upon to advise His Majesty to recall the Judges [Forbes and Stephen] and to relieve you [Darling] from your command'. This threat was, in Forbes's case, entirely unwarranted. He was included in it because of 'the tone of asperity and coldness' in his official letters, for making no attempt 'to conciliate by courtesy and kindness', and for 'the mutual jealousy which had been permitted to take possession of their minds'. No examples were cited to support any of these criticisms. Forbes acknowledged the dispatch with characteristic dignity and self-containment and at once extended the hand of friendly co-operation to Darling.

The last years of Darling's term were marked by a recrudescence of the Sudds-Thompson affair, his 'impeachment' by Wentworth and by litigation arising from his attempts to silence press criticism. Exasperated by the inability of his legal advisers to deal with the defiant editor of the Monitor, Edward Hall, Darling turned to the judges, seeking from the Supreme Court an injunction against Hall ordering seizure of the type and press of the Monitor pending compliance with statutory requirements. Their reply, obviously written by Forbes, advised Darling to 'submit the matter to the colonial legislature and have the present law amended so as to meet the emergency'.

Although Forbes rode out the storms that beset him in the Darling régime, the enmity of the governor and representations to his disadvantage in Downing Street adversely affected him financially. In 1826 Darling had recommended that his salary be increased by £1000 and next year his own application had been minuted by Horton: 'Salary increased to £2,500 and arrears allowed from 23 August 1823'. But Horton moved on and Forbes's salary remained at £2000 until his resignation. His appeal for the provision of pensions for judges also failed, although in 1829 he was allowed £471 for the months he had spent at the Colonial Office before his appointment to New South Wales. Forbes had other galling treatment over his official residence. The Charter of Justice authorized his occupation of it without payment of rent or other charges, but in 1828 Darling proposed that, subject to his receiving compensation, he be deprived of the house as it was suitable for public offices. The Colonial Office approved the eviction without compensation. With support from Governor (Sir) Richard Bourke, Forbes protested, but he was ordered to pay an annual rent of £200 from July 1832 and to vacate the premises as soon as possible. Unlike other senior officials he had not been granted a building block within the urban area, so he was permitted, after strenuous advocacy, to hold in fee simple approximately an acre (0.4 ha) near the corner of the present College and Oxford Streets, which he had been allowed by Brisbane to use as a garden; he did not build there and in 1842 it was sold for £4600. In 1826, however, he had been granted 120 acres (49 ha) at Emu Plains where he built a rural retreat and named it Edinglassie, and 2560 acres (1036 ha) which he later located in the Upper Hunter valley; he increased this estate by purchase, used it as a cattle run and called it Skellater.

As a father and citizen Forbes had a deep interest in schooling. In 1825 when Dr Laurence Halloran proposed the establishment of 'a public free Grammar School', Forbes became chairman of a strong committee to carry out the scheme. Trouble soon overtook Halloran and the project lapsed until revived by Dr William Bland with help from Forbes. In January 1830 he laid the foundation stone of the Sydney College, strongly supported the appointment of William Timothy Cape as headmaster when the school was opened in 1835, and remained chairman of what became known as the board of trustees.

As a legislator, Forbes lent his 'powerful aid' to the enactment of some significant bills. One was the continuance of the Bushranging Act. Although it violated the spirit of English law by authorizing arrest on suspicion without a warrant and detention in custody of a person unable to prove he was not a convict, the need for such a drastic measure was generally admitted and it was continued. However, Judge (Sir) William Burton, in the exercise of his power under section 22 of 9 Geo. IV, c. 83, informed the governor that, in his opinion, the Act was repugnant to English law and it was therefore remitted to the Legislative Council. There Forbes traversed Burton's argument to such effect that the councillors reaffirmed their former vote and the measure later received royal assent.

Another enactment, the so-called Forbes's Act of 1834, has been described as 'the legislative basis of the pastoral expansion of Australia'. It arose from the economic slump in the 1827-29 drought. Heavy borrowing raised the question whether the statute of 13 Anne, c. 15, whereby the legal rate of interest was fixed at £5 per cent, applied in New South Wales. In the leading case of Macdonald v. Levy, Judge Burton held that it did, while Forbes and (Sir) James Dowling were of the contrary opinion. However, Forbes thought Burton had established a sufficient case to call for interference by the legislature and raised the question there. It was referred to a special committee of which Forbes was elected chairman. After taking evidence from representatives of financial, commercial and pastoral interests, the committee reported. The council then declared that the English usury law did not apply in the colony and authorized the court to allow a maximum of 8 per cent in cases that came before it in which the rate had not been agreed upon. This bill was also found repugnant by Burton and remitted, but the Legislative Council preferred the reasoning of the chief justice and adhered to its decision, which was upheld by the Crown.

As chairman of many select committees of the Legislative Council Forbes prepared and signed their reports. One of the last, on emigration, helped to determine the British government's policy, for it approved Westminster's pledge that 'the Crown lands of the Colony shall be held sacred to the promotion of emigration'. It was also inevitable that the colonial government should call upon the chief justice for advisory opinions. Thus Bourke turned to him in 1835 when the deeds to all the lands granted by Governor Arthur Phillip and his successors were found to be defective because they had been passed in the name of the governor instead of the reigning monarch. Forbes appreciated the gravity of this matter but doubted whether the local legislature could remedy it, for no bill divesting the Crown of any right could be entertained without previous royal consent. In Van Diemen's Land the defect had been corrected by calling in all grants and reissuing them in unimpeachable form. Forbes believed that such a procedure in New South Wales would be protracted and disturbing, but the secretary of state authorized Bourke to inform the Legislative Council that it was His Majesty's pleasure to allow a local validating Act. 6 Wm IV, no. 16 was accordingly enacted on 9 June 1836. Forbes also had to bring the rule of law to the attention of the British government. In August 1833 Stanley informed Bourke that the government had decided to subject convicts to punishments of different degrees in severity by sending the most hardened to penal stations and others to chain-gangs on the roads or to labour as assigned servants. Forbes objected that any such addition to the original punishment inflicted by the court was illegal, and the surrender of the Colonial Office was unconditional.

In February 1834 Forbes was compelled by serious ill health to apply to the Colonial Office for twelve months sick leave. It was granted on half-pay, but he did not sail until April 1836. One cause of this delay was Burton's claim to the temporary chief justiceship. Bourke sought Forbes's advice and was told that Burton's claim could not be supported. The relations between Dowling and Burton became so strained that Forbes was reluctant to leave until the matter was settled. The Colonial Office dismissed Burton's pretensions in words almost identical with those of Forbes but, before this answer reached the governor, nature intervened and Forbes had to give in. Meanwhile he had been in close conclave with Bourke about desirable changes in 9 Geo. IV, c. 83, which was due to expire in December 1836, though it was continued year by year until 1842. At Bourke's request, Forbes drafted a bill with long explanatory memoranda, which were used by those who prepared 5 & 6 Vic. c. 76. Thus Forbes helped to shape all three of the first basic constitutional instruments in New South Wales.

Warmly farewelled as 'our friend' by a host of associates and acquaintances, Forbes sailed with his wife in the Brothers. Had wisdom prevailed, he would have visited Downing Street and then settled down at Cambridge, where his two sons were students, to combat the nervous debility that was paralysing him. Instead he put himself at the disposal of the Colonial Office and was soon immersed in official papers. Between repeated bouts of influenza he reported at length on numerous suggestions about the Act to replace 9 Geo. IV, c. 83. His own preference for the colony was a larger Legislative Council half elected, half nominated. His constant emphasis on the need to enlarge the powers of the local legislature in providing for the administration of justice was supported by Governor Sir George Gipps, and in 1839 this autonomy was granted under 2 & 3 Vic. c. 70. In addition to these labours and many hours of consultation at the Colonial Office, Forbes wrote essays on transportation for James Stephen and the commissioners reporting on the criminal law in England. He appeared three times before the Molesworth committee on transportation where he admitted that New South Wales had derived advantages from convict labour but claimed that the colony, from an ethical viewpoint, would benefit more if no 'exiles' were sent there. He therefore favoured the gradual discontinuance of transportation during about five years. Within three years, however, transportation to New South Wales was discontinued, but free immigration had greatly increased.

Before Forbes left Sydney Bourke had recommended him for a knighthood. 'It would be difficult', he wrote, 'in the whole range of colonial courts, to point out a person on the Bench who, from integrity and ability, legal knowledge and devotion to His Majesty's service, is better entitled to the honour of a knighthood, than Chief Justice Forbes'. 'If I had any success in removing abuses and opening the way to a better course of government in the Colony', he wrote to Roger Therry five years later, 'to the assistance I received from Forbes I am mainly indebted'. The knighthood was conferred in April 1837. A few weeks later Forbes had to inform the Colonial Office that his nervous condition had worsened and that his physical powers were no longer equal to the discharge of his office. He therefore craved leave to retire on a pension, and meanwhile to be granted a short extension of leave. His requests were granted and he retired on 1 July 1837 with a pension of £700. He died on 8 November 1841 at Leitrim Lodge, Newtown, Sydney, survived by his mother, his wife and two sons.

Select Bibliography

  • Historical Records of Australia, series 1, vols 11-26, series 4, vol 1
  • Select Cases from the Records of the Supreme Court of Newfoundland (St John's, 1829)
  • J. H. Plunkett, The Australian Magistrate (Syd, 1835)
  • James Macarthur, New South Wales: Its Present State and Future Prospects (Syd, 1837)
  • R. Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria, (Lond, 1863)
  • D. Forbes, Memoir of Sir Francis Forbes (Syd, 1875)
  • J. G. Legge (ed), A Selection of Supreme Court Cases in New South Wales, from 1825 to 1862, vol 1 (Syd, 1896)
  • A. H. MacLintock, The Establishment of Constitutional Government in Newfoundland, 1783-1832 (Lond, 1941)
  • H. C. Wilkinson, Bermuda in the Old Empire … 1684-1784 (Lond, 1950)
  • H. C. Wilkinson, ‘Sir Francis Forbes of Bermuda and New South Wales’, Bermuda Historical Society Journal, Jan-Mar 1949
  • T. Tucker, ‘Smith's Island’, Bermudian, Jan 1962
  • J. T. Bigge, Report … on the Judicial Establishments of NSW and of VDL, Parliamentary Papers (House of Commons, Great Britain), 1823 (33)
  • Votes and Proceedings (Legislative Council, New South Wales), 1825-36
  • Select Committee on Transportation, Reports, Parliamentary Papers (House of Commons, Great Britain), 1837 (518), 1837-38 (669)
  • Executive Council minutes, 1825-29 (State Library of New South Wales)
  • CO 194/62, 65
  • CO 201/145, 146, 166, 167, 178, 179, 181, 188, 195, 197, 248, 266, 267
  • CO 324/86
  • newspaper index under Francis Forbes (State Library of New South Wales)
  • manuscript catalogue under Francis Forbes (State Library of New South Wales)
  • Bourke papers, vols 9-11 (State Library of New South Wales).

Citation details

C. H. Currey, 'Forbes, Sir Francis (1784–1841)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/forbes-sir-francis-2052/text2545, published in hardcopy 1966, accessed online 24 October 2014.

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

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