Laws of Conviction

Australia’s legal system was born just months after the First Fleet arrived when two convicts sued a ship’s captain and won, writes Dr Bella d’Abrera.

When the First Fleet set sail from Portsmouth in May 1787, a complete copy of Sir William Blackstone’s multi-volume Commentaries on the Laws of England (1765-1769) had been safely stowed on board one of 11 ships. Blackstone explained the common law and its evolution so clearly that even a lay person with no legal training would be able to comprehend it.

Arguably the most important treatise in the British legal canon, these volumes were key in crafting a new egalitarian vision only a few months after the First Fleet landed.

This vision became a reality when two convicts were able to sue a ship’s captain in what was to be Australia’s first civil case, Kable v Sinclair, in July 1788.

IT IS ASTOUNDING TO THINK THAT JUST TWO WEEKS AFTER HAVING ARRIVED IN SYDNEY COVE, THE LAW OF ENGLAND BECAME THE LAW OF THE NEW TERRITORY.

The fact that the Home Office had included Blackstone’s Commentaries in its list of items vital to the survival of the colony reinforced the idea it had resolved to transform the penal settlement into a flourishing British colony, where the principles of common law would apply. It also revealed the government’s complete assuredness in the legal system that it was exporting, supremely confident that such a system would be capable of maintaining law and order in a remote settlement 12,000 miles away from Westminster, comprising largely of convicts.

THE RULE OF LAW IN EARLY AUSTRALIA

The British Government’s intention to establish a new colony was apparent as soon as the First Fleet landed at Botany Bay. The flag raising ceremony on 26 January 1788 gave the British Crown the right to control New South Wales and followed the traditional form for claiming new territory. In another ceremony a few days later, on 7 February, the commission which had been entrusted to Governor Arthur Phillip, along with an Act of Parliament which established a new colony, was read out to an assembled group of men and women, both free and convict.

Also read aloud at this particular ceremony was the First Charter of Justice which had been given by Letters Patent signed by King George III on 2 April 1787, just over a month before the Fleet had departed England. The land which Britain claimed that day extended from Cape York to the southern tip of Van Diemen’s land, which was approximately half the continent and considerably more than was required for a penal colony.

The First Charter of Justice provided the authority for the establishment of the first New South Wales Courts of Criminal and Civil Jurisdiction. The rudimentary court, which initially operated from a tent, comprised a Deputy Judge-Advocate and two other ‘fit and proper persons’. The Deputy Judge-Advocate, who in this case was an Englishman by the name of David Collins, had been given the authority to hear all civil pleas, such as disputes over contracts, debts, land, wills and estates.

It is astounding to think that just two weeks after having arrived in Sydney Cove, the law of England became the law of the new territory. It was apparent that the government had envisaged that the new colony would be established by proper legal authority. Most importantly however, it meant that the British institution of the rule of law would be translated to New South Wales.

THE IMPORTANCE OF THE RULE OF LAW HAS LEFT A DEEP IMPRESSION ON THE BRITISH PEOPLE. IT WAS THIS IMPRESSION THAT TRAVELLED TO BOTANY BAY WITH THE FIRST FLEET.

The rule of law is a broad set of principles vital to the order and stability of society. One of the aspects maintaining that order and stability is the principle that everyone is subject to the law, including government. It is considered to be one of the most effective guards against the wielding of arbitrary power.

The idea of the rule of law can be traced back to Aristotle, whose doubts about Plato’s theory that a special group of philosopher kings should control government, led him to propose the notion of government based on the rule of law. For Aristotle, the rule of law was something in which reason trumped ‘appetite’, and which acted as a necessary check on abuse of power by rulers.

Aristotle’s idea of equality before the law and its claim to fairness and impartiality was later enshrined in the Magna Carta of 1215, when King John I, perhaps the worst king in British history, was forced by his Barons to agree who he could and couldn’t tax. This enshrined the idea that even a monarch was subject to the law.

The importance of the rule of law has left a deep impression on the British people. And it was this impression that travelled to Botany Bay with the First Fleet at the end of the eighteenth century.

THE KABLE CASE

Just six months after the arrival of the First Fleet, one event in particular demonstrated the importance of the concept of the rule of law to the British—when the new court heard its first civil case under English Law in Australia, Kable v Sinclair. The case involved two convicts, Susannah Holmes and Henry Kable, both of whom had been caught breaking and entering into a variety of Norfolk residences during the 1780s. Susannah had stolen a selection of linen, cloth and spoons, while Henry had pocketed a variety of items from a country house. Both had been sentenced to death and imprisoned in Norwich Castle Jail, where they met and had a child together.

While Susannah and Henry had been awaiting their respective death penalties in Norwich, the Home Office, comprised of just 13 employees, had been compiling a list of convicts to be transported to New South Wales. As it happened, a shortage of female convicts resulted in a decision to take a selection of women from various prisons and hulks. Susannah was amongst those to be sent to Botany Bay.

However, when mother and child were delivered to the Dunkirk by Mr Simpson, the Norfolk Castle Jailer, the ship’s captain refused to take the baby, citing lack of authority. Seeing the injustice unfold before him, Mr Simpson put the child on his lap and travelled to London, where he presented himself, with the baby, at the house of Lord Sydney, the minister responsible for the penal colony. Simpson was able to convince Lord Sydney that Henry, Susannah and the child should be transported together.

The case attracted a great deal of public attention, much of it driven by Lady Cadogan, wife of politician Charles Cadogan, who enthusiastically took up the cause and organised a collection of £15 (about $3000 today) in public donations to buy a parcel of goods for the family to take with them to the penal colony.

However, while Henry, Susannah and the child all arrived safely in New South Wales, the parcel did not, purportedly having been stolen somewhere between Portsmouth and Sydney Cove. The Kable’s, who had been married in a wedding ceremony shortly after disembarking, were advised by David Collins that they were perfectly within their rights to sue the captain of the ship, Duncan Sinclair, for loss of clothes and other items.

Henry and Susannah Kable issued a writ, in which they claimed that although the parcel had been loaded on at Portsmouth, it was missing at the other end. The case was also heard by David Collins, whose role required him to be judge-advocate, public prosecutor and judge simultaneously. Although he had no legal training, Collins managed to issue writs, summons and processes while presiding over criminal and civil courts. He, for one, must have been eternally grateful for the inclusion of Blackstone’s Commentaries in the First Fleet. Collins found for the convicts and awarded them £15 in damages against the ship’s captain. Indeed, as David Neal describes in The Rule of Law in the Penal Colony: ‘Thus the first sitting of a civil court in Australia and the first civil case to be heard, occurred at the behest of two convicts under sentence.’

This story is remarkable in so many ways. Allowing the convicts to sue went against the English principle of law, which meant that as convicted felons, they were not entitled to the protection of the courts, having lost their civil rights in England. But David Collins overlooked this problem and established a precedent just six months into the life of the new colony—giving convicts the right to recourse under civil law. This demonstrated a kind of egalitarianism that did not exist in Britain.

ARISTOTLE’S IDEA OF EQUALITY BEFORE THE LAW AND ITS CLAIM TO FAIRNESS AND IMPARTIALITY WAS LATER ENSHRINED IN THE MAGNA CARTA OF 1215.

It is also extraordinary because the decision to allow two convicts to sue puts pay to the notion that the new colony was a gulag. It demonstrated that the precious British institution of the rule of law, especially the principle of equality before the law, was taken seriously by the British and applied immediately. This was not just a theoretical concept, but one which was put into practice in New South Wales. There, in that new harsh environment, two convicts, one of whom was a woman, and both of whom had been destined for the hangman’s noose, were able to take on the powerful figure of a ship’s captain. And even more astoundingly, they won.