Crimes of the colony brought to trial
Samuel Barsby missed the establishment of the first English courts in Australia. He was ''insensible'' with drink. But he had a bird's eye view of them three days later when he was the first to grace the colony's virginal dock.
As with so many Sydneysiders who came afterwards, it was a potent concoction of women, alcohol and haughty officialdom what made him do it.
The women of the First Fleet had arrived in Sydney Cove on February 6, 1788, sparking uproarious celebrations. With admirable foresight, the judge advocate, David Collins, read the Act and Letters Patent establishing the courts the following day.
The day after, Barsby, still drunk and carrying a broken cooper's tool, thumped a fellow convict, threatened a drum major who tried to stop him and whacked a drummer who tried to come to the officer's assistance.
''Did the prisoner appear to be in liquor?'' the court asked when it sat for the first time on February 11.
''He did,'' a witness replied.
For his part, Barsby explained he ''was in such a state of insensibility'' that he did not recall ever seeing any of the witnesses before. But he recalled how he had managed to get so very insensible.
''He met some seamen who wanted to find the women's camp,'' the minutes of proceedings recorded. ''On his telling them where it was, they gave him more than three parts of a bottle of rum. He drank the greatest part of it.'' And the rest is history.
Professor Bruce Kercher and researcher Brent Salter, from Macquarie University, have for the first time compiled the goings-on in NSW's earliest courts into a fat and entertaining tome called The Kercher Reports: Decisions of the NSW Superior Courts, 1788 to 1827.
An amalgam of notes and correspondence kept by those present and those reporting the results to London, the book is a major contribution not just to legal history but to Australian history, according to Chief Justice Jim Spigelman, the state's most senior judge and one of its keenest legal historians. In a foreword, he says it demonstrates what the politician H.V. Evatt said in his book on the Rum Rebellion: that the courts were the ''true forum'' of the early colony.
''They had no competitors as a means of expressing individual or public grievances. There was no legislature, no municipal government, no avowed political association or party, no theatre, and no independent press,'' Evatt wrote.
A Sydneysider wandering into a courtroom in 1788 would have found a very different place from the forum where we deal with today's disputes and civil sins.
The judge advocate in charge was not legally trained, his fellow officers were soldiers or ''fit and proper persons'' appointed by the governor. In the court of appeal, the governor himself - another legal amateur - presided solo over disputed decisions of the court of civil jurisdiction.
And there were no appeals from the court of criminal jurisdiction - only the governor's mercy.
But, save for the occasional case involving wife sale or a jury of matrons, the subject matter would have sounded eerily familiar: drunken brawlers with fuzzy memories, petty thieves, inventive excuses and, increasingly, Aboriginal defendants.
In the first capital punishment case, on February 27, the colony had its first law and order debate. Lashes given out to thieves on February 11 had ''encouraged rather than deterred others'', Collins wrote, and convict James Barrett bore the brunt. After executing a raid on the public store, a crime deemed ''big with evil to our little community'', he was sentenced to hang.
Two days later, the court sentenced James Freeman to death for stealing flour. But realising that the colony needed a permanent hangman, the governor pardoned him on the condition he become the public executioner. His first gig was to hang Barrett, a responsibility he had to be forced to undertake.
The first woman sentenced to death, for stealing some clothes and linen, was Ann Davis - also known as Judith Jones - in November 1789. She claimed she was pregnant to escape the noose, but a ''jury of 12 matrons'' was called to ''try if the prisoner is quick with child'' and decided she was not.
In the first rape case a soldier, Henry Wright, was sentenced to death but then pardoned and sent to Norfolk Island for assaulting an eight-year-old girl called Elizabeth Chapman at Lane Cove - or, as the minutes put it ''for not having the fear of God before his eyes but being moved and seduced by the instigation of the devil''. The girl had to show she knew her catechism and recite the Lord's Prayer before she gave evidence at the trial.
The first Aborigine convicted was Daniel Mow-Watty, who was hung in 1816 for the rape of a 15-year-old girl in Parramatta.
Four years later a convict, John Kirby, became probably the first European sentenced to death for killing an Aborigine after he stabbed a co-operative chief called Burragong, or King Jack, who had captured him after he escaped and attempted to bring him in. (Several men were acquitted in a similar trial in 1799.)
As late as 1827 white defendants were arguing, although unsuccessfully, that they could not be tried for killing Aborigines because the victim was not a subject of the Crown. (The barrister who made that argument, Dr Robert Wardell, later established a newspaper before being shot by bushrangers near his estate in Petersham.)
Not until 1829 did the courts impose English law upon cases where one indigenous person had killed another. The first civil claim was also a harbinger of what was to come.
Five months after Barsby christened the courtroom, two other convicts, Henry and Susannah Cable, successfully sued Duncan Sinclair, the master of the First Fleet ship Alexander, for losing their baggage somewhere off the Cape of Good Hope. They got £15 for it.
Commentators have said the case demonstrates the rule of law existed in some form from the colony's earliest days, although Kercher and Salter point out that - as with so many of the early cases - it was not necessarily English law, which wouldn't have allowed a convict to sue.
''They are making up law on the spot. They probably didn't have the power but they did it anyway,'' says Kercher. ''It kind of says, 'We are going to take law really seriously here, even if it's not the English law.' The debates and arguments and stories were all told in the courts … bushrangers, convicts, Aborigines and the rights of women, all those things. We legal historians like to say that the early history of NSW is its legal history.''
Which is certainly true of the most famous case in the book: the aborted 1808 trial of John Macarthur, which led to the coup against Governor William Bligh and the collapse of the rule of law.
As for Barsby? He got 150 lashes with a cat-o'-nine-tails and promised good behaviour in future. For what it's worth, he was never seen in the colony's law reports again.