ForbesForbes FlyerFlyer THE NEWSLETTER OF THE FRANCIS FORBES SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 5 JULY 2004 History reports itself The way that a profession sees itself The Jurist was conceived as a pre- Incidentally, while on the topic of is very often reflected in its industry federation publication. Purves, who largely forgotten legal works of the publications. It is interesting, then, originally had so much to do with nineteenth century, this edition of that the Australian legal profession putting the magazine together, was the Flyer highlights Tim Castle's and has such a limited history of a well-known and active Victorian Professor Bruce Kercher's work on the publications of that kind. University barrister, and ardent federalist. He had pending publication of the "Select law journals and academic papers a penchant for the vigorous promotion Cases" manuscripts of New South aside, it is only recently that the of a cause, which made him a famed Wales' second Chief Justice of the Australian legal profession has had cross examiner and KC in a time when Supreme Court, Sir James Dowling. access to truly national industry these things were a good deal more Their article does not only make for magazines with a focus on the business theatrical. The polemics that marked interesting reading, but it also gives of being a practising lawyer. The last the early editions of the jurist were a taste of things to come when they few years have seen the distribution brought about by an intense interest present the next annual Forbes Society of Lawyers Weekly and, more recently, in the nationalisation of the country, lecture on the topic "Bringing the Australian Legal Business, which fill which was desired by the editors Supreme Court to Order, 1828-1844." this seeming gap in the market. because of the benefits that they saw in The lecture will take place on Thursday the nationalisation of the legal market. These recent introductions are not 14 October 2004 at 5.30pm in the New completely without precedent. One After the Jurist disappeared there is South Wales Bar Association Common such 'industry' rag was published for very little which resembles it until the Room, and will be chaired by Andrew lawyers in 1870. It was titled The 1980s, when state law societies began Tink, the New South Wales Shadow Australian Jurist and Notes of Cases to mass-produce magazines for their Attorney General. and its initial editors were James Purves members. However, it is the As always, and until next time, we and W.M. McKinley, both of Melbourne commercial publications that we are welcome your comments, letters and town in Victoria. The magazine aimed seeing now that most closely resemble suggestions. for a national audience of lawyers and their 1870s counterpart in that they focussed on political and practice issues are distributed Australia-wide. My (with a few juicy case notes thrown in proposed explanation is that once Catherine Douglas for good measure). The Jurist's run again there is a genuine interest in the lasted from 1870 to 1873. It was benefits of a national legal market and Editor abandoned by Purves and McKinley national profession (which has risen, after two years, and then edited by one might say, because economics and English barrister Peter Stevenson Davis technology have combined to see some of Lincoln's Inn, at which point it lost of the larger firms spread across state much of its local Australian flavour. boundaries, resulting in a few national and federated corporate law firms now What is of fascination in reading on the scene). It is peculiar to think, through early editions of the Jurist that it has taken over 120 years for our is the striking similarity between the profession to progress to a point where sorts of issues explored by it and the we've caught up with the 1870s (or at new breed of industry magazines least Purves' dream at the time). But enjoying some popularity at the as Purves himself wrote in the April moment. I suppose it is in the nature 1871 edition of the Jurist "the of lawyers and historians to look for proverbial apathy of lawyers to all a causative explanation wherever one subjects affecting them as a class, can be found, so here's my theory. should on this occasion be cast aside" and perhaps it finally has. THE NEWSLETTER OF THE FRANCIS FORBES SOCIETY FOR AUSTRALIAN LEGAL HISTORY ISSUE 5 JULY 2004 Recognising the Contribution of Sir James Dowling: Chief Justice of New South Wales 1837-1844 By Tim Castle and Bruce Kercher Sir James Dowling, second Chief Justice practiced for approximately twelve years received a specific briefing from the of New South Wales, has been a largely until his appointment, at age 39, as the Colonial Office to avoid disharmony forgotten figure of Australian history. third puisne judge to the Supreme Court between the Court and the Governor. One hundred and sixty years ago, of New South Wales. Despite his initial impressions, it is clear Dowling died in office at the age of 57, that Dowling quickly established an having been a judge of the Supreme It was Dowling's skills as a court reporter, excellent rapport with both Forbes and Court for sixteen years, including seven rather than as an advocate, that brought Stephen, and he largely maintained a years as Chief Justice. This year, the him to the attention of a number of good working relationship with the Francis Forbes Society will be highlighting powerful and influential figures in Britain, judges subsequently appointed on their Dowling's significant contribution to the including, in particular, Henry Brougham, respective retirements. development of the rule of law in New who subsequently became Lord Chancellor. South Wales, by publishing Dowling's By the early nineteenth century, the The legal system which greeted Dowling manuscript reports, called the Select importance of selective and accurate was also a novelty. The Supreme Court Cases, and through the Society's annual law reporting, as a feature of the had been established in 1824, under the lecture to be given on the topic 'Bringing development of the common law, Third Charter of Justice, 4 Geo. IV c.96. the Supreme Court to Order, 1828-1844'. was becoming increasingly recognised. The Supreme Court was invested with However, publication of law reports was a the powers and jurisdiction of all of the The key to understanding James Dowling somewhat haphazard affair, as evidenced Westminster Courts, and there were some is to appreciate that he was an extremely by the large number of nominate reports interesting variations in the modes of methodical, and organised lawyer, who prior to the establishment of the English trial available. Criminal matters were had a deep respect for the law and the Council of Law Reporting in 1865 which conducted by a judge with a military jury institutions of justice. His successor, Sir thereafter published the authorised of 7 officers appointed by the governor. Alfred Stephen, eulogised him as being reports. During his time at the Bar in Civil matters were largely conducted remarkable 'not only for the most strict England, Dowling was the joint publisher before a judge and two justices of the uprightness and impartiality, but for a of a nine volume set of King's Bench peace, called 'assessors'. From 1829, a jury painstaking and anxious industry rarely Reports, a single volume of Dowling and of twelve was available at the request of equaled'. Dowling apparently had 'great Ryland's 'Cases Argued and Ruled at Nisi either party in civil cases, this right was popularity' as a judge, and has been Prius in the Court of Kings Bench and on extended to many criminal trials in 1832, described as being genial with a good the Home Circuit' (now found in 171 ER), and military juries remained until 1839. sense of humour. He typically worked and a four volume set of Magistrates The question of trial by jury was an six days a week, he eschewed colonial Cases 1822-27. extremely contentious political issue in politics and public life - unlike his New South Wales, as it provided a focus predecessor Sir Francis Forbes - and Stepping off the boat in Sydney in 1828 for competing arguments between the was the quintessential lawyer's lawyer. in his full judicial regalia, Dowling was 'exclusives' and the 'emancipists' as to the Dowling arrived in the colony with his taken aback by the world which he nature of citizenship and distribution of first wife, Maria, and six children, and encountered. He was less than impressed power in the colony, rather than there lived on Woolloomooloo Hill (hence to find that Forbes CJ had dispensed with being any general dissatisfaction with South Dowling Street). Following the wearing his wig - he thought it gave him the quality of the verdicts of the military death of his first wife in 1834, he married 'a round head, a republican look', which juries. The course of this debate, and the Harriett Ritchie, a daughter of the Chief Justice Spigelman has noted was evolution of trial by jury in New South prominent colonial figure, John Blaxland. a particularly derisive remark for the Wales, was comprehensively examined period. Dowling thought that Forbes by Ian Barker QC in the inaugural Francis Dowling achieved his success through looked unwell, unhappy and at least ten Forbes Lecture in 2002, which the Society merit and hard work, rather than by any years older than his age of forty-three. has now published. excessive patronage or family wealth. His Of the other puisne judge, John Stephen, father, although qualified as a barrister Dowling thought he looked infirm, in Although rights of appeal to the Privy and experienced in parliamentary bad health and 'marked down for Council existed in certain civil cases, and reporting, earned a subsistence income another world'.