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

In re Canney [1831] NSWSupC 22

habeas corpus - adultery - married women's legal disabilities - Female Factory

Supreme Court of New South Wales

In banco, 1 March 1831

Source: Sydney Gazette, 3 March 1831


Mr. Williams moved for a writ of Habeas Corpus directed to the keeper of the Sydney gaol, to bring up the body of a female named Catherine Canney, a prisoner in his custody, under the following circumstances: - It appeared from the statement of the learned gentleman, as well as from the affidavits filed in support of his motion, that the applicant is a native of the Colony, and married to a prisoner for life, in the service of Dr. Brooks, a magistrate at Newcastle.  Owing to a family dispute, the applicant left her husband, some months ago, and hired herself to the owners of the Lord Liverpool cutter, then a regular trader between Sydney and Newcastle, in whose service she remained, employed as a female steward, and in mending and washing the cabin furniture, until the cutter was partially wrecked, about three months since.  Since that period she has also been employed on board while the cutter was undergoing repairs, until about five weeks since, when she was brought before Dr. Brooks, charged by her husband with cohabiting with the steward of the Lord Liverpool, and sentenced for three months to the female factory at Parramatta, as a house-of-correction.

Mr. Williams contended, first, that the warrant did not set forth such an offence as would justify the detention of the applicant; and, secondly, that, she being a free woman, the magistrates could not legally sentence her to be confined in the factory, that being a place exclusively appropriated for female prisoners under sentence of transportation.

The Court granted the writ, but directed that a certiorari to bring up the proceedings should accompany it.  The habeas was made returnable on Saturday next.


Forbes C.J., 2 March 1831

Source: Sydney Gazette, 8 March 1831


Elizabeth Canney, whose case we noticed on Thursday last, was this day brought up from the Sydney gaol, by virtue of a writ of Habeas Corpus obtained on Tuesday last, on the motion of Mr. Williams.  Our readers will remember that the applicant was sentenced, by a Magistrate at Newcastle to be confined for three months in the third class in the Female Factory, at Parramatta, for living in a state of prostitution; - she being a free woman, born in the colony.

The only return to the writ was the warrant of commitment.

The Chief Justice held that the applicant was entitled to her discharge, on the ground that the Magistrates had no power to sentence a free woman to be imprisoned in the Factor, that being, exclusively, a place of convict discipline.

No other bussiness [sic] of any public interest as transacted.


**In our report of this case, on a former day, we were in error in stating, that the applicant was accused of cohabiting with the steward of the Lord Liverpool.  It was not so: the evidence of the steward was refused to be received on the part of the applicant, by the committing magistrate who was James Reid, Esq. J. P. and not Dr. Brookes.

Published by the Division of Law, Macquarie University