Establishment of the NSW Supreme Court and Press Freedom
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This retelling of The Rule of Law Education Centre book Checks and Balances is about the establishment of the NSW Supreme Court. This story highlights the important role that checks and balances such as an independent judiciary and free press had in the new colony. It tells the story of the tension between Governor Ralph Darling, who had been sent to the colony to rebuild it as a place of ‘terror’ for the convicts who had been sentenced there, and Chief Justice Forbes, whose duty it was to administer justice through the courts and ensure that the rule of law was upheld by all… even the Governor! With such great power being vested in two men with such opposing objectives, what could go wrong? The team at the Rule of Law Education Centre have created resources (all have printable PDF’s), to help teachers use this historical event to engage students in understanding civic concepts.
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Read the texts from a wide variety of source documents including an Extract from Australian Discovery & Colonisation (Volume II – 1800 to 1831) by Samuel Bennett, 1865, Extract from Sir Francis Forbes: The First Chief Justice of the Supreme Court of New South Wales by C. H. Currey, 1968 and the Australian newspaper in 1824 to understand the perspectives and decisions.
Case Based Method Source Documents
Establishment NSW Supreme Court and Press Freedom
“If you were Chief Justice Forbes in the early colony of NSW that was filled with convicts, would you allow a free press?”
The below primary source documents provide students with an insight into the information available to decision-makers at the time and are read prior to class. For more details about the Case Method, including other supplementary resources, click here.
Summary of Case Based Method
Firstly, access a case the summary of the case here. This case can form the basis of class discussion, for example, for three lessons.
Students are provided with below source documents / ‘Case Exhibits’ in advance. Students complete the reading before class and come prepared to discuss the case in depth during class.
Class time is then used as discussion – where students have an opportunity to think critically, problem-solve and constructively build upon or disagree with their classmate’s comments. In the first lesson on a new case, teachers set the scene for the class by orientating students to the historical context, key issues and personalities. This is done in the present tense, for example, “Imagine: You are Chief Justice Forbes…” and the story is to gradually unfold. Students then locate evidence by referring to the source document (known as an ‘Exhibit’) they read prior to class. This will contain pertinent information, quotes and statistics etc. Exhibits reflects the information available to decision-makers at the time, allowing students to consider what they would have done if they were key figures from the past – like Governor Darling.
Throughout, the teacher prompts discussion with questions, for example, “What was the management of the New South Wales’ British colony like before Governor Darling arrived? Do you think it was being managed effectively?”
As the class discusses, the teacher notes student input up on the board – e.g. potential solutions to the issues Governor Darling faced when he arrived at the New South Wales’ colony. Importantly, each case builds to a particular decision point – for example, “Should we have a separation of powers in Australia?” – without revealing what decision was actually made. This allows students to think critically and refine their opinions as the story unfolds.
At the very end, the teacher reveals the outcome – what actually occurred and why.
How to do Source Analysis
Origin:
What is the source? What kind of source is it?
Who created it? Who is the author?
When was it created?
When and where was it published?
Is it a primary or secondary source?
Audience
Who is the intended audience?
Was it meant for publication?
Purpose
Why does the document exist? Why did the author create this piece of work?
What was their motive/agenda?
What potential bias might exist?
Reliability
Is the source complete/incomplete?
In what way is it limited (does it lack detail or point of view)?
Is it biased? Is it propaganda?
Do other sources support or contradict it or not?
For what is the source reliable? For what is it unreliable?
Exhibit 1 – Crimes and Sentencing
Source A – Susannah Holmes
Extract from Norfolk Chronicle, dated November 22, 1783.
“Friday last was committed to the castle by Robert Harvey, Esq. Susannah Holmes, charged on the oath of Jabez Taylor, of Thurlton, butcher, with having in the night of the 13th inst. stolen from out of his house one pair of sheets, a linen gown, a shift, four yards of Irish cloth, four handkerchiefs, three neckcloths, two black silk cloaks, two silver teaspoons, the property of the said Mr. Taylor, which she has since confessed.”
Source B – Henry Kable
Extract from Norfolk Chronicle, dated March 1, 1783.
“On Tuesday last was committed to the Castle, by John Kerrick, Esq., Abraham Carman of Laxfield, and Henry Cabell, of Mendham, both in the county of Suffolk, charged with breaking into the dwelling-house of Mrs Abigail Hambling, of Aldborough, as mentioned in our paper of the 8th ult. And stealing thereout several feather-beds, and divers other articles. In Carman’s house was found a sheep, and several sheep-skins. Two of this gang fled immediately; but by the vigilance of the constables, Henry Cabell, son of the above, was apprehended on Thursday at Yoxford, and committed by the above Magistrate to the Castle, the other made his escape.”
Extract from Norfolk Chronicle, dated March 22, 1783.
“Henry CABELL, jun., for burglariously entering the dwelling house of Abigail HAMBLING, of Alburgh, received sentence of death, but afterwards reprieved.”
Exhibit 1: Source Analysis Questions
Describe the crimes Susannah Holmes and Henry Kable committed and the sentences they received.
What are the values and limitations of Sources A and B for a historian examining the types of crimes that could result in the death penalty in 18th century England?
To what extent do the sentences received by Susannah Holmes and Henry Kable reflect the severity of punishments in 18th century England? Integrate evidence from Sources A and B in your response.
Source C
Letter To The King’s Most Excellent Majesty from G. Nares of 13 May, 1784.
“We hereby humbly Certify to Your Majesty, that the several persons herein after named, were, at the times and places herein after mentioned, severally convicted and attained of the several Capital Crimes following, before Us, then being Your majesty’s Justices of Gaol Delivery for the Norfolk Circuit: But some favourable circumstances appearing on their behalf respectively at their Trials, We reprieved them, and humbly recommend them to Your Majesty, as proper objects of Your Majesty’s Royal Mercy upon the several conditions following; If Your Majesty shall so think fit…
Norfolk…Susannah Holmes…Spinster
Convicted and attained at the same time and place (nineteenth day of March last at Thetford) For a Burglary: On condition of her being transported as soon as conveniently may be to some of Your Majesty’s Colonies or Plantations in America for the term of Fourteen years.“
Source C Analysis Questions
Evaluate the usefulness of Source C for a historian studying the balance between law and mercy in convict sentencing during this period.
What does Source C reveal about the changes made to Susannah Holmes’ and Henry Kable’s sentences?
What does Source C reveal about the process of reprieve?
Students should read Exhibit 2 (Sources D and E) prior to Lesson Two.
Exhibit 2 – The Humane gaoler
Source D
Extract from Norfolk Chronicle letter, dated November 11, 1786.
“One of these unfortunate females [chosen to go to Botany Bay] was the mother of an infant about five months old, a very fine babe whom she had suckled from birth. The father of the child was likewise a felon under a similar sentence, and had been in prison more than three years.
He had repeatedly expressed a wish to be married to this woman, and though seldom permitted to see the child, he discovered a remarkable fondness for it, and that the mothers only comfort were derived from its smiles, was evident from her peculiar manners of nursing it. When the order came down for her removal, the man was very much distressed, and very importunate to attend the women, an application was made to the Minister to permit him to go, but so many similar applications having been made, this could not be complied with. The miserable woman was therefore obliged to go without the man, who offered to be her husband, that he might be her companion and protector during a long and melancholy voyage, and in a distant and unknown land. The child however was still her property, as the laws of England, which are distinguished by the spirit of humanity which framed them, forbid so cruel an act as that of separating an infant from its mother’s breast…
When Mr Simpson arrived at Plymouth with his party, he found that they were to be put onboard a hulk, which lies there till the ship which goes to the South Seas is ready to take them. He therefore took a boat and went to the vessel to deliver up his prisoners… And when they were admitted, the captain finding that one of them had an infant, peremptorily refused to take it onboard, saying, that he had no orders to take children.
… Simpson was therefore obliged to take the child, and the frantic mother was led to her cell, execrations the cruelty of the man under whose care she was now placed, and vowing to put an end to her life, as soon as she could obtain the means. Shocked to the unparalleled brutality of the captain, and his humanity not less affected by the agonies of the poor woman, and the situation of the helpless babe, he resolved still, if possible, to get it restored to her. No way was left but an immediate personal application to Lord Sydney…He therefore immediately went back to Plymouth and set off in the first coach for London, carrying the child all the way on his knee…
When he came to London he placed the child with a careful woman, and instantly posted to Lord Sydney’s; neither his Lordship or his Secretary were to be spoken to…Fortunately, not long after, he saw Lord Sydney descend the stairs; he instantly ran to him…Mr Simpson immediately related the reason for his intrusion, and described, as he felt, the exquisite misery he had lately been witness to, and expressed his fears, lest in the instant he was pleading for her, the unhappy woman, in the wildness of her despair, should have deprived herself of existence. Lord Sydney was greatly affected, and paid much attention to the particular circumstances of his narration, and instantly promised that the child should be restored, commending, at the same time, Mr Simpson’s spirit and humanity.
Encouraged by this, he made a further appeal to his Lordship’s humanity on behalf of the father of the child, which proved equally successful; for his Lordship ordered, that he should likewise be sent to Plymouth to accompany the child and its mother…”
Source D Analysis Questions
How useful is Source D for understanding the treatment of convicts and their families during transportation?
Describe the perspective presented in Source D.
Account for the agenda of Source D. In what ways does it evoke sympathy for the Kable family?
What does Source D reveal about how Lord Sydney responded to the Kables’ situation? What were the outcomes of his intervention?
Source E
Extract from ‘A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’, The fifth E.W. Turner Memorial Lecture delivered in Hobart Town Hall on October 6, 1961, by The Honourable Sir Victor Windeyer.
“… The story of Simpson, ‘the humane gaoler’, had got into the press in England soon after it occurred…The plight of the little family being thus known before their departure from England, some charitable persons collected the sum of twenty pounds, and with it bought clothes and other things for their use. These were made into a parcel and put in charge of Duncan Sinclair, master of the transport Alexander. Johnson, the Chaplain, undertook to see that they were delivered. But when the parcel was sought for after the Fleet had arrived in Australia, it was found to have been pillaged. After some months had gone and their goods had not been recovered, Henry Cable and Susannah his wife, as she now was, decided, possibly at Johnson’s suggestion, to invoke the aid of the law of England. They became plaintiffs in the first civil action in Australia.
… The plaintiffs, being convicts under sentence for a felony, were really not competent to bring a civil action. That was at the time an established rule of English law. No doubt, that is why they are not described as convicts, but as ‘new settlers of this place’. The words have been struck out. Someone must have thought they ought not to stand. But no other description was substituted, and in the record of the proceedings Cable is described as ‘Henry Cable, Labourer.’
… The Court, consisting of Collins, the Judge-Advocate, Johnson, the Chaplain, and White, the Surgeon, assembled on the 1st July, the same day as the date on the complaint. … Cable appeared with his complaint and made an affidavit as to the value of the missing parcel, which he fixed at fifteen pounds or thereabouts. The Court thereupon issued its warrant, signed and sealed by the Judge-Advocate, requiring the Provost-Marshal to bring the defendant before the Court before the Court at 4 o'clock on the afternoon of Saturday, 5th July. The complaint was read to him 'and he joined issue on the business'. The witnesses, whose depositions appear in the record, were the First Mate and the steward of the Alexander and John Hunter, Captain of the Sirius. It appeared that the parcel had been received on board the Alexander addressed to Susannah Holmes, that it weighed about twenty-five pounds and was placed in the gun-room, that between Tene- riffe and Rio de Janeiro it was, with other parcels, put down the scuttle to the after-hold, to which various persons had access from time to time. It was asked for at the Cape of Good Hope by Hunter, who had been instructed by Phillip to inquire for it. He was told by the defendant that 'the after-hold was in such a lumbered state it was almost impossible to look in it, and he, Hunter, had told Captain Sinclair that as long as the parcel was safe it was very well and to deliver it at Botany Bay.' The defendant did not give evidence and 'the Court found a verdict for the Plaintiff to the value stated by him in the complaint'. The plaintiffs were young. They were uneducated. Their station in life was a humble one, and they were serving a sentence for a crime. They might have expected humiliation, rather than help. The defendant on the other hand was a person of importance, the master of a vessel about to leave Port Jackson. The proceedings of the Court were a vindication of the rule of law.”
Source E Analysis Questions
What does Source E reveal about public attitudes in England towards the plight of the Kable family?
How does Source E highlight the contrast between English law and the practical realities of the new colony regarding convicts’ legal status?
What insights does Source E provide into legal proceedings and practices in early colonial New South Wales?
What does Source E reveal about the social and legal status of Henry and Susannah Kable, and of convicts in general?
Explain how the Kables’ case set an important legal precedent for equality under the law.
Students should read Exhibit 3 (Sources F and G) prior to Lesson Three.
Exhibit 3 – ‘Dead to the law’ & The Writ Court Document
Source F
Extract from The Rule of Law in a Penal Colony by David Neal, 1991.
“Legally, the Kables’ case is extraordinary [as]…the words ‘New Settlers of this place’ have been crossed out and nothing has been substituted. To have them described as convicts would have been fatal to their case as felons were regarded as if they had already been executed in English law and therefore unable to sue. The fact that Henry and Susannah were convicts and the legal consequences of that fact must have been obvious to some of those concerned… Whatever the reason, the omission allowed the case to proceed, and the governor gave the orders for the Royal letters patent which constituted the new court to be read, convening the court for the first time.
Thus, the first sitting of a civil court in Australia and the first civil case to be heard, occurring at the behest of two convicts under sentence. Moreover, it named an important figure in the colony, a ship’s captain, as defendant, subjected him to the power of the court’s jurisdiction and officers, and made an order against him. It vindicated the property rights of two convicts and publicly demonstrated the ability even of convicts to invoke the legal process in the new colony. Nor was it to be the last time that convicts used the legal system to assert their rights in the colony, despite English law which regarded felons and former felons as civilly dead (i.e., unable to sue, unable to witness, to hold property, make contracts, etc.) or, as Blackstone graphically puts it, ‘no longer fit to live upon the earth,… to be exterminated as monster and a bane to society…by an anticipation of his punishment, he is already dead in law.’ For the situation to have been otherwise in a colony overwhelming composed of convicts and former convicts would have created enormous difficulties in the conduct of the colony’s commercial and legal affairs…
The Kables’ case immediately introduced a change into the inherent end legal framework. Through expediency, or oversight, convicts and New South Wales would enjoy the right to hold property and to sue in the colony’s courts to protect that property. They would not have been able to do so in England.”
Source F Analysis Questions
What does Source F reveal about how English law regarded convicts?
To what extent did the British legal system in adapt to the conditions of the new colony? Integrate evidence from Source F and other relevant sources in your response.
To what extent is having equal access to the protections provided by the law significant? Integrate evidence from Source F in your response.
What was the immediate impact of the Kables’ case? Integrate evidence from Source F in your response.
Source G – The Writ
Transcript Cable v. Sinclair: The charge is brought to court, 1 July 1788. Addressed to David Collins Esq. Sydney Cove, signed by Henry and Susannah Cable.
“To David Collins Esq., Judge-Advocate in and for the Territory of New South Wales.
Whereas Henry Cable and his wife, new settlers of this place, had before they left England a certain parcel shipped on board the Alexander Transport Duncan Sinclair Master, consisting of cloaths and several other articles suitable for their present situation, which were collected and bought at the expense of many charitable disposed persons for the use of the said Henry Cable, his wife and child.
Several applications has been made for the express purpose of obtaining the said parcel from the Master of Alexander now lying at this port, and that without effect (save and except) a small part of the said parcel containing a few books – the residue and remainder, which is of a more considerable value still remains on board the said ship Alexander, the Master of which, seems to be very neglectful in not causing the same to be delivered, to its respective owners as aforesaid.
Henry Cable and Susannah Cable his wife most humbly prays you will be pleas’d for with to cause the said Duncan Sinclair, Master of the Alexander aforesaid to appear before you to show cause why the remaining parcel is not duly and truly delivered in that ample and beneficial a manner as is customary in the delivering of goods – and also humbly prays you will on default of the parcel not being forthcoming take and use such lawful and legal means for the recover or value thereof, as your Honour shall think most expedient.
Signed by the hands of the said
Henry Cable and Susannah Cable his wife this is the First Day of July in the year of our Lord 1788.
his
Henry X Cable
mark
her
Susannah X Cable
mark.”
Source G Analysis Questions
Explain why the omission of “new settlers of this place” was significant in the outcome of the Kables’ case. In your response integrate evidence from Sources F and G.
Describe the key elements of Cable v. Sinclair, the first civil case in Australia. In your response, integrate evidence from Source G and other sources.
How significant was the Kables’ case in establishing the rule of law in New South Wales? In your response, include evidence from Source E, G and other sources.
Assess the value and limitations of Source G for a historian studying the Kables’ case and early colonial legal proceedings.
Related Resources
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Francis Forbes (1784–1841) was the first Chief Justice of NSW, playing a key role in shaping the colony’s legal system. He upheld the rule of law, checked the Governor’s power, and supported press freedom. Known for independence and integrity, Forbes helped protect citizens’ rights and advance democratic principles in early Australia.
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The following case about the establishment of the Supreme Court in New South Wales highlights the
importance of having checks and balances in place (such as an independent judiciary and free press) to restrain the power of the Governor and to ensure that the rule of law is universally upheld. In
doing so, this case illustrates how a separation of powers continues to protect our individual rights
and freedoms, even today. -
This activity sheet is to be used together with the Checks and Balances book or video to help understand the context and perspectives of the new Chief Judge and Governor.
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Timeline Worksheet. Using the details from the Checks and Balances Book or their own research, students can complete this timeline of events.
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