More “Firsts” for Susannah and Henry
In the two previous posts, here, and here, we followed the remarkable journey of two young felons from Norwich to Botany Bay as part of the first fleet sent to establish a penal colony in Australia. The little family had survived against all the odds and were together at last in the new land. However, they had not quite finished with either adventure or setting precedents for their new home.
The first civil law case in the new colony was commenced by Henry and Susannah Kabel on 1st July 1788, when they petitioned the judge-advocate to have Duncan Sinclair, master of the “Alexander”, appear before the court to show cause why their goods ‘which were collected and bought at the expense of many charitably disposed persons for the use of the said Henry Cable, his wife and child’ and shipped on the ship Alexander were not ‘duly and truly delivered’.
Setting a Precedent
According to English law, convicted felons had no rights and Henry and Susannah should not have been able to contract a legal marriage nor bring any kind of case in law against anyone, let alone a powerful figure like a ship’s captain.
It seems Governor Phillips and the judge-advocate, a Mr. Collins, decided that particular aspect of the law should not apply in the new penal colony. This was simply commonsense. Serving your sentence to completion didn’t stop you remaining a felon for the rest of your life, so any settlement composed mostly of former felons would be a lawless place indeed if the law as it stood in Britain were retained. It’s likely Governor Phillips relied on this text:
… if an uninhabited country was discovered and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, are immediately then in force. But this must be understood with very many and very great restrictions. Such colonies carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony; … 
Since both Henry and Susannah were likely unable to write (they signed the papers with a cross), someone else must have written out all the legal papers and depositions for them and advised them on how to proceed. We don’t know for sure who this was, but it seems likely that it was Rev. Richard Johnson, the chaplain of the fleet, who had been asked by Mrs. Jackson – the lady in London who organised the collection for them – to befriend them on board their ship. It did not hinder their case that he was also one of judges!
The plea to the court stated:
Several applications has been made for the express purpose of obtaining the said parcel from the Master of the 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 neglectfull [sic] in not causing the same to be delivered, to its respective owners as aforesaid. 
The case was heard in full on 5th July and the Kabels won! Sinclair had to pay them £15 for the value of the lost goods.
The Rev. Richard Johnson wrote thus to Mrs. Jackson on July 12th, 1788:
I cannot think of letting the Fleet return to England without dropping you a single line to inform you of my health and welfare.
….Respecting the Norwich gaoler and two convicts Cabel and Holmes, which with a child, were removed from the Norwich gaol to Plymouth in order to be embarked on board one of the transports. These two persons I married soon after our arrival here.
…As for the various articles (that disappeared), these have not been found. This circumstance has been brought before the Civil Court here when a verdict was found in their favour (the first civil court case in the history of Australia).
I am sorry this charitable intention and action had been brought to this disagreeable issue, the more so because the public seemed to be interested in their welfare. The child is still living, of a weakly constitution, but a fine boy.
Your most Obedient and Humble Servant,
Making a New Life
The Kables coped well in the new land. Henry’s court victory may have brought him to the governor’s notice, although Kable later claimed also to have had influential letters of recommendation. There is even a claim made in Australia that Henry carried Governor Phillip through the surf on the day he first came ashore to the new land he was to govern. Whatever the truth, soon after these events, Governor Arthur Phillip appointed Henry Kabel an overseer. Three years later he was made a constable and nightwatchman, and a further three years service saw him elevated to chief constable. Sadly, he was dismissed from that post in 1802 for misbehaviour and conflict of interest, after being convicted for breaches of the port regulations and illegally buying and importing pigs from a visiting ship.
Nevertheless, Kabel’s business ventures did well and he became a shipowner, whaler, merchant and even a pub owner, running a tavern in George Street, Sydney, known as “The Ramping Horse” , which may have represented a link to Rampant Horse Street in Norwich. At his peak, he owned a fleet of 25 ships trading widely in the Pacific and to what is now Malaysia and China, bringing food to Australia and carrying its goods out. He also owned a significant amount of land and livestock at Windsor, near Sydney.
Susannah bore him 11 children, of whom no less than 10 survived to adulthood. Henry junior, the baby who had been carried to and fro some 700 miles across England by that sympathetic warder, later succeeded his father in the shipping business, becoming a ship’s captain himself.
Susannah Kable died on 8th November 1825, aged 63, but Henry, who was described as a farmer at Pitt Town in the 1828 census, survived her for twenty-one years and died on 16th March 1846 at the age of 84. Both are buried in the churchyard of St. Matthews’s Church, Windsor, NSW.
Their story has become part of Australia’s founding history and they are seen almost as ‘local royalty’ by many Australians today: not a bad outcome for two young criminals from East Anglia.
- Under English Common Law at the time, anyone convicted of a felony was deemed to have forfeited all civil rights. In effect, they were “dead” in the eyes of the civil law, so they could neither sue nor hold property nor exercise any other civil rights until pardoned. ↩
- Blackstone’s Commentaries on the Laws of England, I, 107 . It is known Phillips had a copy of this work with him. ↩
- Several commentators have assumed these books were “worthless” to Holmes and Kable, because they were illiterate. Then why take them halfway around the world? It is, I believe, a mistake to assume complete illiteracy at this time from anyone signing a document with “their mark”. Many labourers and the like sent their children to Sunday School, where they would be taught to read, at least sufficiently to the Bible. The additional skill of writing was not thought necessary. ↩
- Court of Civil Jurisdiction Proceedings, 1788–1814, State Records of New South Wales, 2/8147. ↩
- 67 ↩