A Close Reading of 'Cable v Sinclair' (1788)

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‘Cable v Sinclair’ has been discussed, with approval, by commentators on both the left and right of the political spectrum – Labor lawyer and civil libertarian, Jim Staples; the former head of the NSW Independent Commission Against Corruption, Ian Temby (himself a Kable descendant); the Rule of Law Institute; and the Institute of Public Affairs – High Court judges, Queens Counsel, the Deputy Chief Magistrate of NSW and academic lawyers, among others.

Despite the great interest it has attracted, significant aspects of the case remain unexplored. This newsletter examines the legal foundations of ‘Cable v Sinclair’, its legal and economic impact on the colony over the next three or four decades, the fight by leading emancipists in the early 1820s to preserve (some of) its legacy; and the influence which it may have had in 1981, when the New South Wales parliament passed the Felons (Civil Proceedings) Act, which restored prisoners’ rights to bring civil actions in the courts. [1]

Background

Conviction and Imprisonment

Along with his father and another man, 19-year-old Henry Kable was convicted at the Norfolk Assizes in March 1783, of breaking and entering, and sentenced to death. This was a serious crime – they had stripped the house of its contents, violently resisted arrest and then confessed to a large number of other robberies in the district. Kable’s father and the other offender were hanged.

Young Henry was promptly respited, and within several months, his sentence had been commuted to transportation for seven years. He was held in Norfolk Castle until the government decided where in the world it might send its convicts, and it was there that he met Susannah Holmes.

Holmes was convicted in March 1784 of stealing from a house at night, goods to the value of £2.13.6, which made it a capital offence. The fact that their value had not been artificially reduced to keep it below the threshold for a death sentence, suggests that she was not a first offender or that she had previously worked at the house (which meant that the crime involved a breach of trust). She too was reprieved before the judge left town, and her death sentence was later reduced to 14 years. The length of her commuted sentence suggests, again, that there was something rather serious about her crime.

Eighteenth century prisons were relatively open institutions, and in May 1785, Susannah and Henry conceived a child. A son, also named Henry, was born at Norfolk Castle in February 1786.

The First Fleet

In October of that year, orders were given for Holmes and two other women to be removed from the castle, in preparation for their transportation to the proposed new penal colony at Botany Bay. Application was made for her partner’s name to be added to the list of transports, without success.

The three women were sent cross-country to the Dunkirk, a prison hulk at Plymouth, there to await the arrival of the ships that would carry them to NSW. Susannah took her eight-month-old son with her, but when they arrived at Plymouth, the hulk supervisor refused to allow the child on board.

This refusal has been portrayed as an act of heartlessness, but the movement of prisoners between gaols, hulks and transports was closely regulated by law, and since the child was not mentioned in the orders, he lacked the authority to receive him. Holmes threatened to kill herself if young Henry did not accompany her.

John Simpson, the Norwich turnkey who had accompanied them from Norwich, took the child and made his way to London, where he convinced the Home Secretary, Lord Sydney, to make the necessary orders, and to grant the approval necessary for the father to accompany them. After a journey north-east to collect Kable, then a return cross-country to Plymouth, the family were reunited.

Simpson’s manifest humanity attracted a great deal of attention in the papers, and given the general reputation of gaolers, he was showered with praise and financial gifts. A subscription was also raised for the Kables: £20 was collected, which was invested in clothing, books and other articles, since there would be little use for money in the remote colony.

The Kables were sent on board the Friendship at Plymouth in March 1787. Their package was sent down to Portsmouth and loaded onto the Alexander, and while the Chief Mate of that ship attempted to find ‘Susannah Holmes otherwise Kable’, in the hurry of preparing for sea, he was unable to do so. At some point in the course of the voyage, the package was broken open, and everything except the books was stolen, probably by one of the crew. [2]

Cable v Sinclair

On the 1st of July 1788, several weeks before the Alexander was due to sail from Port Jackson on her way home, Henry and Susannah Kable commenced a legal action in the NSW Court of Civil Jurisdiction against Duncan Sinclair, master of the ship, seeking damages for their lost property.

The Cause of Action

The court papers don’t specify the cause of action, but it is likely that David Collins, the Judge Advocate and principal judge of the Court of Civil Jurisdiction, saw it as the tort (or civil wrong) of conversion. Blackstone’s Commentaries, the primary source on British law in the late 18th century, defined this action as lying ‘against any man, who had in his possession the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded’. [3]

There was no suggestion that Sinclair was personally responsible for the theft, but as the master of a ship and the employer of seamen, he was vicariously liable for the disappearance of these goods – in effect, he was responsible for having managed his ship in such a way that these articles were capable of being stolen.

The Plaintiffs

The Kables (now married) launched their action by way of a petition to the Judge Advocate, but there can be no question that they had been advised by Collins beforehand, or that Collins had discussed the matter with the Governor, Arthur Phillip.

Prior consultation was necessary because the law books available to Collins – Blackstone’s Commentaries and Burn’s The Justice of the Peace [4] – clearly stated that as convicted felons, the Kables were legally incapable of launching a civil action or giving evidence in court. Blackstone said that the convicted felon:

'. . . is no longer of any credit or reputation; he cannot be a witness in any court; neither is he capable of performing the functions of another man: for, by an anticipation of his punishment, he is already dead in law.' [5]

In one respect, Cable v Sinclair was not breaking new ground. Felon convicts had been giving evidence in the NSW Magistrates Court since 21 February (less than a month after landing and eight days after the establishment of that court) when Daniel Gordon testified in the prosecution of Joseph Levi, another convict, for insolence to an overseer and threatening his life. A week later, John Haydon, a prisoner who had originally been convicted of a capital offence, gave evidence in the Court of Criminal Jurisdiction against two convicts for stealing, one of whom was sentenced to death as a result. [6]

The Common Law held that convicted felons had forfeited their civil rights, and among other things this meant that they were incapable of bringing legal actions or being a witness in court. It is likely that Phillip and Collins decided not to apply this aspect of British law following a court martial held on one of the ships during the outward voyage, when several marines, on trial for making their way down into the women’s quarters, had to be acquitted because the court could not accept the convicts’ evidence. It must have been apparent to them that a penal colony could not work if three-quarters of the residents were incapable of testifying in court. [7]

Phillip was not an egalitarian, but it is likely that he was also motivated by a belief in equality before the law. This was evident, for example, when he allowed himself to be cross-examined by a convict whilst giving evidence in the Court of Criminal Jurisdiction in July 1789. [8]

But the clearest example of a belief that even convicted criminals were entitled to ‘the rights of humanity’ was provided by the Lieutenant-Governor of Norfolk Island, Philip Gidley King, one of Phillip’s protégés who had been his aide-de-camp on the outward voyage.

In December 1792, after discovering that an assigned convict had been violently beaten by his master, King published an order declaring that unruly convicts were to be brought before the courts and not summarily punished by their masters. He wrote in his journal that he hoped this order would convince ‘unthinking people’:

'. . . that those Objects who are sent here to Expiate a Crime, are Still entitled to the rights of humanity; Such I believe to be His Majestys most Gracious Intentions, and that of the Legislature, and it will ever be my Duty as much to protect them, from Wrongs. . .' [9]

Colonial adaptation of the law on felony attaint did not stop at allowing the convicts to give evidence. On the 23rd of February, Catherine Prior (who had also been subject to a death sentence) filed a criminal complaint against Samuel Barsby, a fellow convict, for abusing and threatening her.[10] While it is not true, as has often been claimed, that criminal prosecutions in England at this time were solely the responsibility of the victim, much of the weight (and cost) did rest upon their shoulders. [11] From February 1788, it would have been widely understood in the colony that convict victims were de facto prosecutors.

Cable v Sinclair went further and sought redress for a private wrong: in this case, the Crown played no role in initiating the proceedings. The plaintiffs were evidently convicts. Collins was uncomfortable about this. The petition describes the Kables as ‘New Settlers of this place’, with these words then crossed out, and the court transcript refers to Henry, euphemistically, as a ‘labourer’.

The Defendant

The defendant, Duncan Sinclair, has been taken for granted in studies of the case. He was the master of a merchant ship hired by the Navy Board to transport convicts and stores, which was fortunate for the Kables. If their package had been loaded onto one of the two First Fleet vessels owned by the Royal Navy, the commander could have pleaded Crown immunity, and they would have been unable to proceed. [12] They might still have prosecuted the individual who actually stole their clothing (if they could find him), but they could not have held his commanding officer responsible by way of vicarious liability. [13]

The Hearing

The case began on the 1st of July, with Henry being guided through a statement which established the basic elements of the tort – (a) a parcel consisting of clothes and other articles had been shipped on board the Alexander before they left England, for the use of himself, his wife and their child; (b) he had made several applications for its delivery, without effect; and (c) this had been to the great detriment of himself and his family. Henry sought restitution of the value of the missing articles, which was about £15 (roughly A$6,000 today) once the value of the books was excluded. A warrant was issued by Collins requiring Sinclair to appear.

Prior to the court’s resumption on 5 July, a deposition was taken from the Chief Mate of the Alexander who had been responsible for loading and unloading the ship’s passengers and cargo. He confirmed that a parcel, addressed to ‘Susannah Holmes otherwise Cable’, had come on board. He described his (unsuccessful) attempts to find her, the placement of the package in the ship’s gun room and the subsequent (unsuccessful) efforts at the Cape and in Sydney Cove, to recover it. The ship’s steward confirmed this evidence and John Hunter, the second captain of HMS Sirius, testified as to the search which Phillip had ordered at the Cape.

(It is worth reflecting on what had happened in the course of the voyage and what it says about the management of the First Fleet. One of around 750 prisoners distributed across six convict transports had inquired about the whereabouts of his property, the message had been conveyed to the commodore of the fleet, who had ordered the second most senior officer of the flagship to try to locate the package when they touched at the Cape.)

Sinclair appeared in court on the 5th, Kable’s complaint was read, and he joined issue. No transcript of his defence has survived, but it is known that he acknowledged the parcel had been delivered on board.

It is not known whether he took issue with the fact that the plaintiffs were convicted felons. But we do know, from a journal note written by one of the judges, that Sinclair argued that the Kables had not sailed out on his ship and that he had not been paid freightage for carrying their parcel. Collins dismissed this argument, pointing out that the ship was in government employ, and paid for the sole purpose of conveying convicts and their property to NSW.

The court delivered a verdict for the Kables, with damages to the value of £15. Sinclair paid by way of a ‘note of hand’ (similar to a cheque), which Henry sent home to his widowed mother. [14]

Consequences

‘Botany Bay’ was a penal settlement not a prison. From the outset, the convicts enjoyed a great deal of freedom, living where and with whom they pleased (within the limits of the settlement), moving freely around the camp, associating freely with marines and other free settlers, and entering into social, sexual and commercial relationships with them.

By November 1788, the Kables were living in their own small cottage with a garden in which they were growing cabbages, turnips and peas. Henry was working as overseer of the convict women and young Harry was going to a dame school (presumably some kind of childcare for working mothers provided at the school, since he was not yet three years of age). And they were the proud owners of a note of hand to the value of £15. The process of capital accumulation had begun.

By 1806, they had four farms, with 30 acres of gardens and orchards. Henry was a merchant and part-owner of a sloop engaged in sealing expeditions in Bass Strait. None of this would have been possible if the Kables had not been permitted to enforce their rights in a court of law.

Cable v Sinclair as Precedent

The precedent established in Cable v Sinclair was widely followed in the decades which followed. There were many such cases, which are deserving of much closer study than they have received, but the following are just a few examples by way of illustration.

Metcalfe v Gray (Magistrates Court, 1790)

On the arrival of the Second Fleet in late June 1790, a convict named John Metcalfe brought an action against William Gray, the surgeon of the Neptune, for withholding a pair of buckles which had been taken from him for safekeeping before the ship sailed. One of the crew testified that he had seen them taken out of a package brought on board by Metcalfe’s father. Gray arrived in the court wearing the buckles, an arrogant assertion that they were his property. He left court without them. [15]

Lord v Sparrow (Court of Civil Jurisdiction, 1796)

Simeon Lord still had seven months of his sentence to serve when he brought this action against another emerging Sydney trader, John Sparrow, who had 19 months to serve. There are very few complete transcripts in the surviving civil court archives: in most cases, we have only the names of the parties, the amount of money in dispute, and in some cases, the writ and the outcome. In this case, we know that the dispute was over the sum of £47.17.8 (around A$20,000 today), that Lord had obtained a writ against Sparrow and that the defendant was remanded in custody.

Lord had probably been granted unofficial leave by the Governor to manage his business affairs (although there is no record of it), but in British law, he was legally incompetent to bring such an action. The same day, Lord proceeded against a time-expired convict, Joseph Hatton, over the sum of £15.5.9. He was successful and Hatton assigned his crop to Lord to comply with the judgement. [16]

Davis v Turnbull (Magistrates Court, 1798)

Charles Davis brought a complaint against the second mate of the Barwell, claiming that a trunk delivered to him by his brother had been broken open in the course of the voyage and the contents removed by persons unknown. He should have proceeded against the captain, holding him accountable vicariously as the Kables had done, since there was no evidence that the second mate had ever had charge of the trunk. [17]

Jeffries v Hall et al (Magistrates Court, 1813)

Four convicts who had arrived on the Archduke Charles lodged detainers in court against the master of that ship, John Paul Jeffries, seeking to recover wages for work and labour done on the outward voyage. This action was brought by the master, arguing that these men had been adequately compensated, and that their case should be dismissed because it was delaying the ship’s departure. Jeffries succeeded, but it is noteworthy that four convicts, newly arrived in the colony, were able to commence such an action. [18]

Kenny v Houlson (Magistrates Court, 1813)

Rose Kenny had also arrived on the Archduke Charles, and in May 1813, submitted a petition to the Judge Advocate, seeking maintenance for a child conceived by the ship’s carpenter, with whom she had cohabited on the outward voyage. The court accepted an undertaking by Houlson that he would pay the sum of £30 in support of the child. [19]

Emancipists and Exclusives

The legal conventions established by Cable v Sinclair increasingly came under challenge from around 1810, as professional lawyers and judges took up residence in the colony. This began with the Bent brothers, who served as Judge and Judge Advocate and prevented emancipist lawyers from appearing in their courts. Sydney legal academic, Bruce Kercher, has argued that the law was becoming more English at this time as NSW society matured. [20]

By 1817, it seems that civil actions brought by prisoners who were still under direct government control were being heard by the magistrates, while convicts with absolute or conditional pardons, and tickets of leave, were permitted to sue in the Court of Civil Jurisdiction.[21]

In April of that year, the newly arrived Deputy Judge Advocate, John Wylde, and Barron Field, Judge of the Court of Civil Jurisdiction, wrote to the permanent secretary at the Colonial Office, asking for clarification of a number of legal issues, one of which was the competency of convicts to sue and be sued.

They tried to explain the workings of the colonial economy, but it is not likely that the Crown Law Officers in London would have understood what they were talking about, even if they had done a half decent job of it. On the 13th of May 1818, the Attorney-General and Solicitor-General submitted their opinion:

'We think that prisoners convicted of felony, even tho' in the employ of Government, cannot sue in the courts of the Colony; for, tho' the words of the Charter are general ‘any person or persons,’ yet we think they must be taken to mean any person or persons capable of suing, and felons convict are not so capable; but tho' they cannot be Plaintiff in a suit, they may be sued as Defendants, since they cannot take advantage of their own disability.' [22]

Given the large number of emancipist traders and landholders in the colony, this was unworkable, and judges and magistrates in NSW found creative ways of adapting British law to colonial reality. In August 1818, some months before the Law Officers’ opinion arrived in NSW, Justice Field came up with a work-around, insisting that defendants who sought to challenge the competency of a plaintiff because of his or her status as a felon convict, were required to provide clear evidence from the relevant British court that they were subject to felony attaint. He took the view that the cost and effort involved in complying with such a condition would convince the vast majority of defendants not to try. [23]

Field was a complex figure, siding with the ‘exclusives’ on some issues and the ‘emancipists’ on others. When Edward Eager, an Irish lawyer sentenced to death and transported for life, sued him in defamation, Field quickly pleaded felony attaint, and sought a 12-month adjournment so that a certified copy of the plaintiff’s conviction and sentence could be obtained from Ireland. [24]

In 1820, the emancipists’ concerns were overtaken by a decision of the (English) Court of King’s Bench, which found that convicts who had been pardoned by the NSW Governor had not been restored to their civil rights until their names were included in a General Pardon under the Great Seal of England. Large numbers of emancipated colonists had not had their colonial pardons ratified in this way, and their homes, properties and businesses were at risk. [25]

In January 1821, a public meeting was organised in Sydney by the leading emancipists – the surgeon (and magistrate), William Redfern; the deputy surveyor-general, James Meehan; the lawyer, Edward Eager; and prominent merchants Simeon Lord and Samuel Terry, among others – with resolutions submitted to Governor Macquarie the following day. They stated that under his benevolent policies:

'. . . the Emancipated Colonists of the Territory have been encouraged and protected, have created and acquired, and are now possessed of the larger moiety of the property of the Colony, and are become the middle class of society therein.

'That, from the first establishment of this Colony in 1788, up to a late period (April 1820) it has been held and acted upon, that persons arriving in this Colony under sentence of transportation, and afterwards obtaining their pardon, either by service of the term, absolute or conditional pardon, might and could acquire and possess landed and other property, and enjoy all the civil rights of free citizens.' [26]

According to Justice Field, a third of plaintiffs in the Supreme Court at this time were ‘convicts’ (by which he meant, men and women who were time-expired or emancipated), but he took the view that any issues could be managed by sending a list of names to England for inclusion in a General Pardon, and continuing to require discontented defendants to provide documentary evidence of the plaintiffs’ legal status. [27]

The emancipists were not convinced, and after a great deal of petitioning, letter-writing and lobbying, the uncertain status of these men and women was clarified through legislative amendment, in the New South Wales Act of 1823 and the Transportation Act of 1824.

Note that convicts in the position of Henry and Susannah Kable, who had not yet secured an absolute or conditional pardon, did not benefit from these reforms, and this was probably the case with convicts granted tickets of leave, who had previously enjoyed a great deal of commercial freedom.

Further research is required on the impact of these changes on convicts still serving their time, but it must have resulted in a much sharper distinction than had previously existed between men and women who could properly be regarded as prisoners and those who had been pardoned or whose time had expired.

Restoration of NSW Prisoners’ Civil Rights

It was not until the 1970s that the right of prisoners to launch civil proceedings was revisited. In 1971 and 1974, an armed robber named Darcy Dugan, a professional criminal who had spent much of his life in gaol, launched defamation proceedings from prison against Mirror Newspapers over stories they had published about him.

These cases came before the NSW Supreme Court in 1976 and the High Court of Australia in 1978, where it was confirmed that:

'. . . the plaintiff, having been ordered to serve a sentence of life imprisonment, was, during the whole of such sentence (that is to say for the rest of his life) incapable, unless pardoned, of suing in this or any other Court. . .' [28]

Not one of the judges, including the sole dissenting High Court justice, Lionel Murphy, mentioned Cable v Sinclair. Dugan v Mirror Newspapers coincided with riots at Bathurst Gaol in country NSW (in October 1970 and February 1974), which contributed to a surge in activism by prison reformers and civil libertarians.

In March 1976, the Liberal Premier of NSW established a royal commission into the prison system, which reopened this question, and in March 1981, following intense lobbying by progressive lawyers, a Labor government introduced the Felons (Civil Proceedings) Bill, which became law in June of that year. Section of that Act reads:

Subject to this Act, a person shall not, by reason of his having been convicted of, or found to have committed, a felony, be incapable of instituting and maintaining any civil proceedings in any court.[29]

Neither the Attorney General who introduced to the Bill, nor any of the MPs who spoke in the debate, understood that they were re-enacting a legal principle which had originally been established in July 1788.

There is some evidence, however, that Cable v Sinclair might have played a role. In 1981, June Whittaker, an education lecturer and long-term consultant to the popular tourist attraction, Old Sydney Town (and another of the Kables’ descendants), published the first of three works of fiction about Henry and Susannah.

As she later explained, she called on a friend, Labor lawyer, civil libertarian and prison reformer, Jim Staples, to launch the book. In her words:

'The launch of The Raking of the Embers sparked a totally unforeseen event. I asked my friend and colleague James ‘Jim’ Staples, a judge of the NSW Industrial Commission to launch it. When he read the copy I gave him, I was not prepared for his excited reaction. Was the part about Cable bringing on the first civil law suit in the Colony fact or fiction, he wanted to know. He grew even more excited when I assured him it was all fact and he would find the record of it as the first Case in the archives of the Court of Civil Jurisdiction for 1788-1809. . .'

Staples then used the example of Henry and Susannah Kable to reassure those who were worried about granting civil rights to prisoners, that they were merely reinstating a time-honoured Australian tradition. [30]

Reflections on the Case

Some commentators have suggested that in permitting the Kables (and other litigants) to sue, Phillip had declined to adopt the Common Law on felony attaint as part of the law of NSW. Others have questioned whether he had this authority.

It is evident from legal opinions and court judgements from 1818 onwards, that the authorities in England did not accept this interpretation of what happened in Cable v Sinclair. The Common Law of England prevailed. They were not concerned that this was utterly unworkable in a penal colony like NSW, where the convicts enjoyed a great deal of freedom from first arrival.

The fact that NSW judges of the 1820s and 1830s, who were schooled in the Common Law, ignored these rulings (in allowing convicted felons to give evidence) and created work-arounds (in allowing them to bring civil actions), confirms that Phillip was right, at least for the kind of society he had established.
______________________________

This is a (slightly) amended version of the newsletter first issued on 27 August 2026, taking into account questions from several readers.

[1] The Kable family spell their ancestors’ name with a K, but in the court papers, it is spelt with a C – in this paper, the people will be identified as Kable, and the court case will be named Cable v Sinclair.

[2] The most comprehensive account of this narrative is Paul Kable & June Whittaker, ‘Damned Rascals: A Chronicle of Henry & Susannah Kable, 1764-1846’, Sutton, NSW: Paul Kable, 2007.

[3] William Blackstone, Commentaries on the Laws of England, Oxford: Clarendon Press, 1768, Book III, pp.151-152.

[4] While there is no record of what law books Collins took with him on the First Fleet, Philip Gidley King, the Lieutenant Governor of Norfolk Island, stated in May 1792 that the Justices of the Peace on the island were guided by Burns’s Justice and Blackstone’s Commentaries, which were the only law books available to them – King to Dundas, 8 May 1792, UK National Archives (hereafter TNA) CO201/9/90-101a. These were the primary sources available to all Justices of the Peace at the time, and there is little doubt that Collins had these two works at least.

[5] William Blackstone, Commentaries on the Laws of England, London: Strahan, Cadell & Prince, 1787, Book IV, pp.380-381.

[6] R v Levi, 21 February 1788, Proceedings of the Bench of Magistrates, 19 February 1788 to January 1792, Museums of History NSW, NSW State Archives, SZ756; R v Sheman & Freeman, 29 February 1788, Proceedings of the NSW Court of Criminal Judicature, February 1788 to October 1794, NSW State Archives, 5/1147A.

[7] John White, Journal of a Voyage to New South Wales [1790], Sydney: Angus & Robertson, 1962, p.68.

[8] R v Callaghan, 31 July 1789, Court of Criminal Jurisdiction, 1788 to 1794, op. cit.

[9] ‘Journal of the Lieutenant Governor of Norfolk Island, 1791-1796’, National Library of Australia, MS70, pp.53-54

[10] R v Barsby, 23 February 1788, Proceedings of the Bench of Magistrates, 19 February to January 2792, op. cit.

[11] Bruce P. Smith, ‘The Emergence of Public Prosecution in London, 1790-1850’, Yale Journal of Law & the Humanities, (2006) Vol.18. No.29, pp.29-62.

[12] The definitive case on Crown immunity is usually considered to be Tobin v The Queen (1863) 16 C.B. (N.S.) 310.

[13] Some have assumed that Sinclair was being held personally liable for the loss of these articles, but that seems highly unlikely. There is no suggestion in the surviving documents that he was personally responsible, a key part of his defence was that he had no contractual responsibility to the Kables, and as a respected ship’s captain engaged in the naval transportation service over some years, it is unlikely he would have compromised his reputation by stealing £15 worth of clothing.

[14] Cable v Sinclair, 1, 2 & 5 July 1788, NSW Court of Civil Jurisdiction, Case Papers and Minutes of Proceedings, 1 July 1788 to 11 August 1808, State Archives of NSW, 2/8147. The Judge Advocate does not mention the case in his extensive journal, but the other two judges – the surgeon-general, John White, and the clergyman, Richard Johnson, did – John White, Journal of a Voyage to New South Wales, op. cit., p.148, and Johnson to Nepean, 12 July 1788, Historical Records of NSW 1:2, p.181.

The evidence that the note of hand was sent home is from a letter from Henry to his mother, at Norfolk Chronicle, 18 July 1789, pp.2-3.

[15] Examination of George Churchill, ‘Examinations and Depositions of the several Sailors brought forwards by Mr Evans respecting the Conduct of the Contractors Master and Mate of the Ship Neptune’, Treasury Solicitor’s Papers, TNA TS11/381, p.15.

[16] Proceedings of Court of Civil Jurisdiction, Case Papers and Minutes of Proceedings, 27 August 1786, 1 July 1788 to 11 August 1808, op. cit.

[17] Davis v Turnbull, 23 June 1798, Proceedings of the Bench of Magistrates, 8 December 1798 to 5 March 1800, State Archives of NSW, SZ767.

[18] Jeffries v Hall, Kelly, Carney & Morris, 2 May 1813, Proceedings of the Bench of Magistrates, 10 April 1813 to 31 December 1814, State Archives of NSW SZ774.

[19] Kenny v Houlson, Proceedings of the Bench of Magistrates, 22 May 1813, Proceedings of the Bench of Magistrates, 10 April 1813 to 31 December 1814, op. cit,; Bench of Magistrates, Sydney, Miscellaneous Summons Issued and Petitions Received, 1808-1814, State Archives of NSW, 5/1153, pp.450-451.

[20] Bruce Kercher, ‘A Convict Conservative: George Crossley and the English Legal Tradition’, in Rob McQueen and W. Wesley Pue (eds.), Misplaced Traditions: British Lawyers, Colonial Peoples, Law in Context, Special Issue, (1999) Vol. 16, No.1, pp. 17-30 at p.28.

[21] Field to Bathurst, 15 January 1823, Historical Records of Australia (hereafter HRA), Series 4, Vol.1, pp.423-424.

[22] Shepherd and Gifford to Bathurst, 13 May 1818, HRA, Series 1, Vol. 1, pp.320-321.

[23] Note by Field J. attached to Doe dem. Jenkins v Pearce and Wife, NSW Supreme Court, 27 August 1818, Sydney Gazette, 29 August 1818, p.2.

[24] Eager v Field, Governor’s Court, 29 August 1820, [1820] NSW Kercher Reports 3, in Brice Kercher & Brent Salter (eds.), The Kercher Reports: Decisions of the New South Wales Superior Courts, 1788 to 1827, Sydney: The Francis Forbes Society for Australian Legal History, 2009, pp.636-645.

[25] Bullock v Dodds, (1819) 2 Barn and Ald., 258, 106 E.R. 361.

[26] Sydney Gazette, 27 January 1821, pp.3-4.

[27] Field J. in Eager qui tam v Manigault, NSW Supreme Court, May 1821, Sydney Gazette, 26 May 1821, p.2, based on data collected by Commissioner Bigge for his commission of inquiry.

[28] Yeldham J. in Dugan v Mirror Newspapers [1976] 1 NSWLR, 403. The High Court decision can be found at Dugan v Mirror Newspapers Ltd [1978] HCA 54.

[29] NSW Felons (Civil Proceedings) Act, 1981, s.3.

[30] June Whittaker, ‘Genesis of Kable Reunions’, address to the Kable Family Reunion, 10-11 February 2018, MS copy. In speaking about these events in 2018, Whittaker wrongly recalled that Staples used the case to argue against a law which would have prevented Darcy Dugan from being able to sue. There was no need for such legislation, since the High Court of Australia had issued a definitive judgement three years before. And given that there was a Labor government in NSW in 1981, and the Attorney General was from the left of the party, there is no possibility that they would have proposed more restrictive provisions.

Henry and Susannah Kable’s marks at the foot of their petition

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