By John McKechnie AO, KC
This tale is set in the New South Wales colony in 1835. As Australians all know, the first fleet carrying the first settlers of the second peoples had founded the colony on 26 January 1788, less than 50 years before. To put that into perspective in our own time, it would reach back in history no further than The Dismissal, the seminal political event of the mid-1970s.
Although the colony was largely founded by convicts, by the time of this tale, strong efforts were being made to overcome the past and establish a modern thriving community. There was an independent newspaper, The Australian, ready to criticise the government and others.
Lawyers were already making their presence known as solicitors doing what solicitors do – form partnerships, give advice, transact property. Other lawyers practised solely as barristers with an exclusive audience in the superior courts of the colony.
To promote civilisation, many settlers took their lead from the customs and conventions of Mother England. Perhaps this was where they felt most comfortable. After all, colonial judges were used to a profession divided into barristers and solicitors in the home country, so it was natural they should import a similar regime.
But there were others who saw the new colony as an opportunity to rid itself of outmoded notions of convention and class, sloughing off old ways of thinking.
The two were bound to collide sometime.
On one side was the Supreme Court, headed by Francis Forbes as Chief Justice. As in the court of Kings Bench, the colonial judges dressed in robes of silk and wigs of the finest horsehair. The judges, by order of court, divided the legal profession, granting barristers exclusive right of appearance in superior courts, solicitors being regarded as the junior profession.
On the other side were two solicitors. One was George Robert (Bob) Nichols, a solicitor of such advocacy that he was given the unusual privilege of permission to appear in all courts in the colony, albeit unrobed. In addition to his legal practice, he was, by 1835, part owner and editor of The Australian.
The second was Francis Pasmore Stephen, a member of the Stephen legal dynasty. He was also a journalist with The Australian.
On 10 February, and again on 13 February 1835, The Australian published articles written by Stephen. Here is a flavour.
“The first Term of the Supreme Court after the Division of the Bar, which we scruple not to call an illegal and unjust act, enforced in a most ungracious and ungentlemanlike manner, will commence on Monday next. Their Honours it is understood, propose to appear in all the dignity of silk and scarlet, and have intimated a desire that the whole ten barristers should attend in the full paraphernalia of wigs and gowns, silver buckles and black satin small cloths.
Let the judges smile over the private ruin they have effected and the skill they have shown in secretly procuring confirmation of a ‘dead letter’”.
There was more in the same vein.
The judges were scandalised, and because they were both solicitors and therefore officers of the court, the Attorney General was directed to bring contempt proceedings against the author and editor. Bob Nicols did not appear. The court later accepted his explanation that he knew nothing about the articles – even though he was the editor!
Francis Stephen was represented by the legendary William Charles Wentworth who, in his youth, with Gregory Blaxland and William Lawson, led the first successful traverse of the Blue Mountains in 1813.
It was unsurprising that Stephen should turn to Wentworth. After all, Wentworth had founded The Australian. Wentworth argued that the articles in question were not an attack upon the judges as judges, but merely in their private capacities. The judges are in effect sitting in judgment on a libel against themselves and not levelled at the court itself. The court may sue for libel, but this course cannot be pursued without infringing on the well-known principle of law that no one should be a judge in his own cause.
A valiant and persuasive effort that fell on deaf ears.
After pointing out its painful but most important duty and saying that if it was just a personal attack nothing would have come of the articles, the judges in their full majesty spoke of their solemn duty to guard against the mischiefs which must arise in the community from any attempt to disparage the lawful authority of the King’s Supreme Court.
Francis Stephen was fined 50 pounds and ordered to provide sureties and be of good behaviour for two years. Alas, he died at the young age of 37 before two years had passed. A newspaper article of 28 February 1837 declared it would be difficult to point out any member of the community whose decease has left so wide a vacuum.
Bob Nicols lived an active political and legal life, cut short by his death at age 48.
The tradition of robes and wigs lingers in some courts. The legal profession in New South Wales remains divided. However, many now follow the example of Bob Nicols and are solicitor advocates.
Francis Forbes continued in office as Chief Justice and member of the Executive, eventually being knighted. He died in 1841 at the age of 57. Twenty years later, the town of Forbes was named in his honour in recognition of his contribution to New South Wales.
Adapted from R v Stephen and Nicols (1880) 1 NSWR 244; Articles from Trove, Obituaries Australia, Australian Dictionary of Biography.
