FORBES, Sir Francis (1784-1841)

first chief justice of New South Wales

was born at Bermuda in 1784, the son of Francis Forbes, M.D. He entered as a student at Lincoln's Inn under Mr Sugden, afterwards Lord St Leonards, and was called to the bar in 1812. He was appointed attorney and advocate-general at Bermuda in 1813 and returned to England in 1815. In the following year he was appointed chief justice at Newfoundland and remained there until 1822. He became chief justice of New South Wales in 1823 and arrived at Sydney on 5 March 1824. A supreme court was constituted and henceforth crimes were tried by the chief justice and a jury of seven officers; and civil issues by the chief justice and two magistrates acting as assessors, unless both parties desired a jury, in which case the jury was to consist of twelve civilians. Under the new act the chief justice became a member of both the executive and legislative councils, and, before any act passed in the colony became law, he had to certify that it was not opposed to the law of England. Forbes realized the difficulties that might arise before he left England and only consented to this reluctantly. The governor, Sir Thomas Brisbane (q.v.), was most favourably impressed by Forbes, and took occasion in his dispatches of 1 July and 12 August 1824 to mention that "since the arrival of the chief justice the state of the Colony has assumed a new tone". Forbes had no difficulties with Brisbane, but it was not long before he came in conflict with the new governor, Sir Ralph Darling (q.v.). It was proposed to pass acts for the purpose of restraining the liberty of the press, and Forbes refused to certify to them as he considered they were repugnant to the laws of England. He pointed out how necessary it was to go carefully, as in the then conditions of the colony the people looked upon the supreme court as their protection against absolute power. "I had been appointed by Parliament," said Forbes, "to see that the laws of the Empire were not encroached upon . . . I refused to certify the Governor's Bills because I thought them repugnant to law . . . What legal right could the Governor claim to press me further?". After much discussion the whole matter went to the colonial office whose legal advisers were of opinion that in refusing to grant his certificate to the act for licensing newspapers, Forbes was right, and that in regard to the newspaper stamp act he was wrong. but as there was no reason to doubt that the judge had formed his conclusion honestly, he had executed his duty in acting upon that opinion. Forbes's work had been and continued to be heavy, his controversy with Darling was harassing, and his health became undermined. In February 1834, writing to Governor Bourke (q.v.), he mentioned that during the previous 12 months he had not been able to get through the business of an entire term without serious illness. On 30 June 1834 he was granted 12 months leave of absence, but did not actually leave until April 1836. Before his departure a public meeting was held and he was presented with an address which spoke of him in the highest terms. Governor Bourke in his dispatch dated 12 April 1836, in recommending him for a knighthood said, "I believe it would be difficult 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 than chief justice Forbes". Another contemporary, R. Therry (q.v.), speaks of Forbes's "imperturbable calmness of temper, acute discrimination and thorough acquaintance with legal principles. The rules and regulations he framed were well adapted for conducting the business of the Supreme Court. In many of them he anticipated the legislation of modern times by simplifying pleadings, and dispensing with the costly course of procedure then prevalent in the Courts of Westminster . . . his main intellectual endowment was his masterly analysis of evidence". Forbes was knighted soon after his arrival in England, but early in June 1837, finding his health no better, resigned his position. A pension of £700 a year was given to him, and he returned to Sydney, where he lived in retirement until his death on 8 November 1841. He married in 1813, Amelia Sophia, daughter of David Grant, who survived him. Two sons are mentioned in the Historical Records of Australia.

David Forbes. Memoir of Sir Francis Forbes; Historical Records of Australia, ser. I, vols. XI to XXI; R. Therry, Reminiscences of Thirty Years Residence in New South Wales and Victoria; C. H. Currey, Journal and Proceedings Royal Australian Historical Society, vol. XIX, pp. 73-89; Sydney Morning Herald, 10 November 1841.