The Kable case: summary
As far as nation-defining events go, a young couple with a squalling toddler standing about on at the edge of a sheltered cove looking for luggage gone missing wouldn't register on even the most likely history buff's radar. But consider what boxes this moment ticks off: not just the first civil law suit in Australian history, and not just the origin of convict rights and civil rights, but the assertion of what would become a defining value of Australian democracy. With the civil suit brought by First Fleet convicts Henry and Susannah Kable, we witness the foundation idea of social, civic, legal, and eventually political equality for all Australians being here laid down.
In Britain, and practically everywhere else in the world in 1788, convicted felons voided their legal rights. They could no longer own property, nor could they be witnesses in court. For a colony being founded as a penal settlement, where the overwhelming majority of the settling population were either themselves a convict, or partnered up with a convict, or a child of a convict, the implications of continuing this legal distinction between free and convicted members of society was stark. A caste society, with two different classes, totally separated legally, politically, and doubtless physically and socially as well. But something else happened in Australia. And the something else starts here, on the first of July 1788.
This wasn’t the original idea. Initial plans for establishing a penal colony had been predicated on the assumption that ordinary civil law would not apply. Instead military, or martial law would rule. It was common sense after all. Why be so topsy-turvy as to transport convicted criminals to another settlement where they enjoyed more rights than in England? But fortunately for Australia the man eventually tasked with laying down defining principles was Thomas Townsend, recently elevated to the House of Lords as Baron (eventually, Viscount) Sydney. He’d chosen the baronial name himself, and the choice tells. One of his forbears was Algernon Sidney, who’d been executed in the previous century for his robust opposition to what he considered ‘royal tyranny’. Townshend swapped the I for a Y and became Lord Sydney.
As Home Secretary, Sydney changed the plans for the settlement in New South Wales. Convicts would have absolute property rights, meaning they could own property and land from the jump. They would be able to protect these rights in regular courts of law. Convicts, ex-convicts, and their families, the majority of the population, would, in the first decades of Australian life, swiftly enter every economic niche of settler society. By Macquarie’s time, thirty years later, they owned more than half the wealth in the colony, and were being received at Government House.
Exactly how we square this, more than two hundred years later, with an acute awareness that these settlers were simultaneously dispossessors, remains an unsolved, ongoing question. It is not insignificant, though, that from the moments of first arrival, it was being made clear that this would be no gulag but a free society. And the story of that free society begins with a Governor’s response to a complaint brought by a convict couple, recently married, in a Cove named after the man who insisted that a nation begin with an almost revolutionary application of the Rule of Law.
Artist: Bernard Caleo
Music: Bruce Woolley
A story told in three acts: