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Decisions of the Superior Courts of New South Wales, 1788-1899

Harris v. Kemp [1799] NSWKR 6; [1799] NSWSupC 6

assault - false imprisonment - legal status of 'free man' in the colony - legal status of convicts - Hawkesbury - citizenship

Court of Civil Jurisdiction

Atkins J.A.., 10 June 1799

Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 2/8150 [1]

[46] Issue joined on an action for assault, false imprisonment, etc. etc.

Plaintiff had a written address to the court stating the causes of action and will appear by the evidence hereafter adduced.

The Rev. Samuel Marsden, on the part of the plaintiff, sworn. Question by the plaintiff. On the 11th of February you were at the Hawkesbury and investigated the charges that Mr Kemp had laid against me and for which he had confined me in the watch house?

Answer. I was there at that time. I enquired into it as much as I could, wishing to accommodate the business between them, but could not do it

Question. Did not Mr Kemp relate his story first and assign his reason for having confined me?

Answer. Yes he did.

[47] Question. Please do relate what charge Mr Kemp had proffered against me.

Answer Some of Mr Kemp's pigs I understood had been trespassing on Harris' ground. Harris ordered his men to set the dogs upon them to drive them off. Mr Kemp in the event sent for Harris and asked his reasons for setting his dogs on the pigs, when he told him it was his man had set on nine dogs and he had said he wished to give the man 25 lashes. When he observed he had better not do that as the man had acted by his order, Mr Kemp then said he had a good mind to give him (Harris) 25 lashes. Harris said he could not do that as he was a free man. Mr Harris was afterwards confined by Mr Kemp. I was at the Hawkesbury at the time and passing the store some person told me Harris was in confinement. I desired Harris to be brought up by Rickerby to Mr Kemp's to hear the case. Harris was sent up accordingly. Mr Kemp then related how he had been insulted by Harris and confined him and confirmed what had been said about the dogs being set on the pigs. A further altercation took place about Harris being a free man. Mr Kemp said he would not suffer him to say he was a free man. Harris insisted he was free and a citizen of the world. If he was not free of this country he was free of Aldgate. I endeavoured to settle the business but it could not be done and Harris was discharged, declaring he would enter a prosecution against Mr Kemp for having been confined.

Question by the court. Was Harris brought up in irons?

            Answer. No

The plaintiff: Question. Do you, sir, recollect my asking Mr Kemp if I had ever been omitted shewing him the respect due to the Commanding Officer?

Answer. To the best of my recollection you did.

            Question. Did not Mr Kemp say I had ever done so, but in this instance by saying I was as free a man as Mr Kemp?

Answer. Yes.

            Question. Did I not say I considered myself not only as free as Mr Kemp but as free as the Governor and it was his Excellency's pleasure that I should be so?      Answer. Yes I believe you did.

            Question. Did not Mr Kemp say he was not amenable to any court of justice nor would he attend.?

            Answer. I do not recollect that he did

            Question. Did not Mr Kemp say whilst he was Commanding Officer he would absolutely do as he pleased and his Excellency the Governor must be answerable for his conduct?

            Answer. I think Mr Kemp said something to that effect.

            Question. Do you not recollect my replying that if Mr Kemp was absolute he had better get his gun and shoot me?

            Answer. I do not recollect that.

Question by the defendant. Were you present when I received the provocation which induced me to confine the plaintiff?

            Answer. I was not.

            Question. Will you have the goodness to relate to the court his general character and if you have not reason to think him a troublesome litigious man?

            Answer. I don't know any thing against the man myself, not from general report. He has never been troublesome to me as a magistrate.

            Question. I believe, sir, it was at my particular instance that the plaintiff was brought before you?

            Answer. He might.

            Question. Who did you order to bring him up?

            Answer. I cannot recollect who, but I desired to tell Rickerby to bring him up.

            Question. Did you not concede he behaved in a very repeating vociferous manner to me telling me he was a citizen of the world and as free as I was?

            Answer. He said so repeatedly.

            Question. Did you not think he spoke in a varying contemptuous manner, despising any authority I might have at the Hawkesbury?

            [48] Answer. He spoke as if he thought you had exceeded your authority ...

            Question. How long had he been in confinement?

            Answer. I don't know.

Mr Rickerby, constable, sworn. Question by the plaintiff. Did you not come on the 11th of December to me whilst I was in custody in the watch house in order to carry me before Mr Marsden?

            Answer. Yes.

            Question. Did I not express a deal of fear and say "sure Mr Kemp is not going to flog me at this time of night"?

            Answer. Yes.

            Question. When you said Mr Marsden was to investigate the business did I not say I was glad of it, for now Mr Kemp could be answerable for his improper conduct towards me?

            Answer. Yes.

            Question. Did you not hear me ask Mr Kemp if I had ever omitted shewing him the respect due to the Commanding Officer, and was not Mr Kemp's conversation that I [near] had only in this case by saying that I was as free as he was?

            Answer. Yes.

            Question. Did you hear Mr Kemp charge me with any kind of insolence or improper language when Mr Kemp was about to support the charges against me and on which he had confined me?

            Answer. Yes I believe he did.

            Question. Was not the decision of the magistrate that he saw no cause for confining Harris for which reason he discharged him, adding that he considered it a disagreeable piece of business and would recommend Mr Kemp and Harris to settle it?

            Answer. I only remember that the Rev. Mr Marsden said it was a disagreeable piece of business and wished the parties to settle it. Harris was soon after discharged.

            Question. Do you remember Mr Kemp saying he did not know the English law respecting the word "citizen" but he knew what they were in France ?

            Answer. Something to that purpose.

            Question. Did not Mr Kemp say whilst he was Commanding Officer he would do as he pleased and his Excellency must be answerable for his conduct?

            Answer. I believe he did.

Question by the defendant. At whose insistence did you bring the plaintiff before me?

            Answer. By yours.

            Question. Has it not been customary at the Hawkesbury to confine any man, free or bound?

            Answer. Yes.

            Question. You have known the plaintiff some time, have you not considered him a troublesome litigious character on many occasions?

            Answer. Sometimes I have.

            Question. How long was the plaintiff in confinement?

            Answer. About an hour and half.

Here closed the evidence on the part of the plaintiff.

Neil McKellar esq., Lieutenant New South Wales Corps, sworn on the part of defendant. Question by the defendant. Will you please relate to the court your general opinion of Harris' character and conduct during the time you had the command at the Hawkesbury and did you consider him a very litigious troublesome character?

            Answer. He is a person of a very contentious litigious turn of trend, according to my opinion of him.

            [49] Question. Will you please to relate any instance of his troublesome disposition?

            Answer. I cannot particularly call to mind, but he was frequently engaged in contraventions of various kinds which came before me as Commanding Officer to decide upon.

            Question. Had you ever occasion to put him under confinement?

            Answer. He behaved so very insolently to me on one occasion that if there had been a constable at hand I should have confined him. He was allowed two government men and one of them came to complain that he had imposed a task upon him too much for him to accomplish. He further added that his master would not allow any utensils to cook victuals in. I went for Harris and he acknowledged he would not allow the utensils, that the man was a rascal and he would not allow him to come near the place but when he was doing his government duty. I reasoned with him for some time and endeavoured to convince him of the propriety of supplying a government man with those articles. I even stated a particular instance to induce him by fair means to acquiesce in what I wished. The instance I alluded to was that when I first got a farm and was allowed government men, whilst Colonel Grose commanded, I was obliged not only to find them a house but every other convenience. It had no other effort than to draw from him a great deal of above which would have induced me to have confined him had there been a constable at hand.

Defendant addressed the court from a written paper of which the following is a copy.


Before I enter into a circumstantial detail of the reasons of my having confined the plaintiff, it is necessary for me to impress upon your minds the situation I hold at the Hawkesbury. That I went there to preserve decency, order and decorum and that I am immediately acting for the Governor and consequently his representative. I have likewise to inform you that the man who has brought this action (although I admit he is a free man now though formerly a convict for life) is victualled with his family upon the public store and therefore he is certainly amenable to any person immediately acting under the Governor's authority. If the officer at the Hawkesbury had not a discretionary power to confine any man for being impertinent or behaving in a disrespectful manner before him, there would be no kind of order and regularity at that settlement and if he is to be brought before a Court of Civil Jurisdiction for supporting his dignity as Commanding Officer, I trust hereafter no gentleman would be bold enough to act there in a civil capacity although at the express desire of the Governor if he is not supported. I shall now acquaint you the very great cause I received for ordering him into confinement.

In the month I was informed by my servant that the plaintiff and his government man had been wantonly setting their dogs upon a sow of mine which had accidentally strayed upon the plaintiff's grounds and that the dog had torn her ear so much that the cutting it off was found to be necessary. I immediately upon this information sent for the plaintiff who has always been refractory and turbulent character to every Commanding Officer at the Hawkesbury and pain him to understand that I should not suffer him or his government man to set his dogs upon any stock of mine with impunity, but that I was willing at any time to pay any damages that my stock might occasion to any one. I also told him that I had an inclination to punish his government man for so doing, but I thought he was equally culpable, being accessory to the transaction. Upon which the plaintiff flew into a more violent passion and told me he conceived himself as a free man as I was and a citizen of the world, an impression I conceived as a dangerous tendency [50] to allow to be propagated without me acquainting him if he made use of any more language to that effect or gave me any more of his very insolent language I should confine him. He then defied and dared me to confine him in a most vociferous manner and repeated a great deal more provoking language despising any authority whatever I might have at the Hawkesbury. I therefore thought it a duty incumbent upon me to order him into confinement as his unparalleled impudence was such if I had not taken an exemplary notice of it, I had to expect insolence from every man of the plaintiff's description. Gentlemen, I have fully explained to you the haughty and imperious manner I was treated by the plaintiff and I am confident nothing but a spirit of litigation has induced him to trouble you and for him to have the pleasure to boast publicly of having summoned an officer to appear before this court. The evidence that he has called forward knows nothing of the transaction except from my having related the story to them, which of course is not to be attended to.

The plaintiff addressed the court in a short speech chiefly resting on the circumstance of Mr Balmain's having interested himself on the part of the defendant to make up the matter in dispute.

Verdict for the plaintiff. Twenty shillings damages.


[1] John Harris was a former convict who took action against an officer of the New South Wales Corps, Anthony Fenn Kemp. A dispute over Kemp's pig being on Harris' land led to Harris being imprisoned for uttering an insult. Harris asserted that his emancipation meant that he could no longer be treated like a convict. This case thus concerns the issue of how free people should be treated in a convict colony. See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W. (Federation Press, 1996) at 36; ; and see the similar case of Boston v. Laycock, 1795.

Published by the Division of Law, Macquarie University