Monday, 21 August 2017

Sir Redmond Barry : A Fantastic Victorian


Its not surprising that Sir Redmond Barry is not liked by people who idolise a police murderer – after all he sentenced Ned Kelly to death.  But criminals and their families and supporters almost never applaud or have anything decent or fair to say about the Judges who put them away, and its no different for the Kelly story. On the Iron Outlaw website -  unsurprisingly given that its run by a dedicated blind Kelly fanatic - Barry was listed as a “Villain” and a short so called ‘biography’ is nothing but a hatchet job on the man. Quotes disparaging him are taken out of context and all the many great and enduring achievements of his interesting life are completely ignored. The truth is that Barry was one of the great founding fathers of Melbourne and his memory will endure. Amongst Kelly fanatics though, he will only be remembered as the man who sentenced  Ned Kelly to death, and that will partly be the result of people like the Iron Outlaw guy misinforming anyone who looks at his website or reads his book. What a pity he hasn’t the integrity to honestly tell the whole story and allow readers to make up their own minds.

So here, to begin the discussion about Redmond Barry is an abridged version of  his achievements from Wikipaedia:

Sir Redmond Barry, KCMG, QC (7 June 1813 – 23 November 1880), was a colonial judge in Victoria, Australia,  of Anglo-Irish origins. Redmond Barry arrived in New South Wales in April 1837 and was admitted to the New South Wales Bar. After two years in Sydney, Barry moved to Melbourne, a city with which he was ever afterwards closely identified, arriving at the new Port Phillip Settlement on 13 November 1839. After practising his profession for some years, he became commissioner of the Court of Requests, and after the creation in 1851 of the colony of Victoria, out of the Port Phillip district of New South Wales, he became the first Solicitor-General of Victoria, with a seat in both the Legislative and Executive Councils. In 1852 he was appointed a judge of the Supreme Court of Victoria. Later he also served as acting Chief Justice and Administrator of the government.

Barry was noted for his service to the community, and he convinced the state government to spend money on public works, particularly on education. He was instrumental in the foundation of the Royal Melbourne Hospital (1848), the University of Melbourne (1853), and the State Library of Victoria (1854). He served as the first chancellor of the university until his death and was also president of the trustees of the State Library. He was the first President of the Ballarat School of Mines (1870), which later became the Ballarat University and now Federation University Australia.

Barry was the judge in the Eureka Stockade treason trials in the Supreme Court in 1855. The thirteen miners were all acquitted.

He chaired the committee for the Victorian Intercolonial Exhibition in Melbourne, he represented Victoria at the London International Exhibition of 1862 and at the Philadelphia Exhibition of 1876. He was made a knight bachelor in 1860, and was created a Knight Commander of the Order of St Michael and St George (KCMG) in 1877.

There a couple of other Kelly myths about Barry, beside the one that he was a ‘villain’. One is that after he sentenced Ellen Kelly for her role in the Fitzpattrick affair, he said he would have sentenced Ned Kelly to 15 years in prison for his role in it, if he were there too. The first known mention of this purported remark  is by  GW Hall in "Outlaws of the Wombat Ranges" and then later by J.J. Kenneally and  Max Brown, in his 1948 biography ‘Australian Son’. (Stuart Dawson describes the way this myth grows in the first comment at the end of this Post) The IO fanatic repeats this lie on his website and in his very recent book, and yet many years ago Ian Jones reported there was no record anywhere of this having ever been said. Ian Jones also said it would have been totally out of character for a Judge of Barrys stature and competence to have made such a remark, and he dismisses it as a fable.

The other myth about Barry and Ned Kelly is the claim that Kelly forecast Barrys death. What actually happened was that immediately after Barry had finished pronouncing the sentence  with the words “May God have mercy on your soul” Kelly replied saying “I will go a little further than that and say I will see you there where I go”

I can’t see how that is a prediction of imminent doom, as Kelly fanciers claim. Rather I see it as Kelly mocking the judge and saying, effectively ‘if you think you’re better than me, you’re not and when you die, you’ll be in the same place as me’ Ned Kelly as we know, had an extraordinary way with words and a very quick tongue.

But Barry was an old man, 67 and a diabetic. Three weeks later he died with a complication of an abscess that developed on his neck. But he outlived Kelly, and contributed massively to the cultural richness of Melbourne not only then but even now, through the Library , the Hospital and the University and other institutions that he promoted and supported.

Now, Kelly fanciers thought it was terrific when Aidan Phelan wrote a piece about Ned Kelly that  said this about him : The first thing we need to look at is the debate about whether Ned Kelly was a hero or a villain and why people dig their heels in on a particular side. It’s very easy to forget that Ned Kelly was a living, breathing human being. He had loves, hates, family, friends, skills and talents just like all of us.”


Now, I agree with that, even though its stating the obvious, but I ask, would the Kelly sympathisers extend the same understanding to Sir Redmond Barry?

24 comments:

  1. The Judge Barry “fifteen years” story is a great example of mythmaking in action. The tale first appears in GW Hall’s ‘Outlaws of the Wombat Ranges”, where Hall writes at the end of Chapter 5, “Mrs. Kelly, W. Williamson, and Skillion were committed for trial to Beechworth, where they were convicted of a murderous assault on the police, and were sentenced by Sir Redmond Barry to imprisonment for terms of three, six and six years respectively, on the evidence of Constable Fitzpatrick. Furthermore, a reward of £100 was offered for the apprehension of Ned Kelly, to whom it was intimated that had he stood beside his mother in the dock, he would have received a sentence of 21 years, an item of news that certainly did not tend to increase the probability of his openly visiting the busy haunts of men.”

    Note that Hall does not explicitly say that Barry made that remark to Mrs Kelly, or give any sense of what words might have been used. The context of the remark, for which no historical evidence has ever been found, is that someone – perhaps Barry - intimated to Kelly that if had he also been in court at the time of his mum’s trial, he would have got 21 years for the attempted murder of a police constable.

    Next is Kenneally, in his “Inner history of the Kelly Gang”, near the start of Chapter 3. He claims that Judge Barry said to Mrs Kelly, "If your son Ned was here I would make an example of him for the whole of Australia – I would give him 15 years”. The claim has now become specific, and directed at Mrs Kelly in court. Yet it cannot be found in any newspaper or other source of the day, despite the widespread attention that trial received. The number of years has changed, as has the story that goes with it

    Then Max Brown “Australian Son” (1948: 56), who says that “In addressing the jury, Judge Barry … said, ‘You all know this man Kelly. If he were here, I’d give him fifteen years.” Pure fabrication, clearly based on Kenneally, with an unsourced story presented as a direct historical quote. No wonder Kelly history is a debacle; it represents 100 years of creative writing continually reinterpreted by unhistorical guesswork.

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    1. Thanks for correcting me Stuart - I thought I had read somewhere that Max made it all up but obviously he was following Kenneally who was following Hall! I have to confess I wrote this Post in a bit of a hurry as I like something to go up every week, but I am really busy at work at the moment and supposed to be writing reports not doing Kelly stuff. I actually wrote this one twice because I lost the entire first draught when I forgot to save it!

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    2. Dee,
      In your opening paragraph you have the owner of Iron Icon website as a dedicated blind Kelly fanatic, that would be me, but we know who you mean, that nice fellow from Iron Outlaw perhaps!

      Last week on the previous thread 'Ned wasn't a bad kid', on 14 Aug 2017, Nat Curtis asked what happened to the great Ned doco Lawmakers or Lawless that 'Genepool Productions was making? I have not heard anything, but on 15 Aug, I was asked to show representatives from DELWP around the sites at StringyBark Creek.

      You can read my thoughts on 'SBC News Updates' where in Genepool productions is mentioned.
      http://www.denheldid.com/twohuts/newsupdates.htm

      You can try click on my name with live URL linked.

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    3. Oh Bill I do apologise! You're most definitely NOT a blind Kelly fanatic but one of the few people who have been on the Kelly scene for ever but retains an open mind, and remains a lateral and innovative thinker.

      That new map you've released of SBC is the best one Ive ever seen, showing all the places of interest, and where the Kelly trees have been sited over the years. However I don't see the CSI spot marked on it.

      It certainly seems odd that DELWP have decided not to name the place where the ambush took place. That, surely is the entire point of having the police memorials there. Imagine going to see where The First Fleet landed in Botany Bay - and the act place is well known - and being told its sort of in this general area somewhere! Maybe we need to write a few more submissions to DELWP?

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    4. Bill, Agree with all you have to say on your news updates page.

      Silly that Genepool and DELWP like the general area of where Sgt. Kennedy was murdered but not the authentic, proven site of the Lonigan and Scanlon murders.

      I still think there is an indirect benefit in keeping your correct SBC site hidden until properly archaeologically examined. Why can't DELWP fund this? Wise spending of taxpayer dollars!

      Best wishes to Carla too!

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    5. I think the DELWP "officers" are frightened of Fitzy in case he starts a never-ending FB hate crusade against the Dept.

      The SBC site has been turned into a misleading funfair with a toilet and carpark.

      Time to do much, MUCH better DELWP !

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    6. Very pleased to see Bill that your expert knowledge of the SBC site has been officially recognised by the DELWP. To me the proposed changes to the area are something of a mixed bag. I am pleased that less emphasis will be given to the gang and more to commemorating the deaths of 3 police officer who were simply doing their jobs. Also happy that the picnic tables will be removed; this place should be visited with reverence, not with a barbecued chook or ham sangers! I suppose the biggest controversy is going to be the proposed removal of the track to Ian Jones' incorrect location of the police camp. I suspect that certain malcontents such as Fitzy and the CSI mob will be livid. However, I am somewhat perplexed at the choice of the possible track Kennedy took when fleeing the gang being given emphasis. As you rightly point out Bill, the area you have identified as the possible location of where the sergeant was killed is only a general one. But to me the greatest disappointment is the fact that the DELWP appear reluctant to accept your investigations and conclusions into the correct site of the police camp. Maybe they feel that by removing all identification of, and tracks to, Ian Jones' incorrect site will be controversial enough without adding further fuel to the fire. But if all of what you have reported on does go ahead, once again we have a debt of gratitude to you mate.

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  2. One of Barry's earliest appointments was Standing Counsel for the Aborigines. Five days after being appointed he appeared on behalf of 'Bob and Jack', men Van Diemen's Land. Its in "1842 The Public Executions at Melbourne by guess who? I've got a copy.

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  3. I had a good laugh when I saw Dawson said that saving Richard Shelton was the only good thing Kelly ever did. Could scriptwriter Phelan name another one? I'm stuck too.

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    1. Give credit where credits due - so, I think building his mother a house was a good thing. So thats two!

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    2. Building his mother a dirt floor shack? Generous

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  4. Cornwall Chronicle21 August 2017 at 19:52

    The Cornwall Chronicle (Launceston), Saturday 28 December 1878, page 2. “Watching the movements of the police in the Wombat ranges, Kelly allowed them to separate, and then the four armed desperadoes pounced upon McIntyre and his comrade when they were cooking, and in cold blood shot one of them. By intimidating McIntyre they induced him to mislead Kennedy and his comrade when they returned. One was instantly shot, and the four ruffians then began firing at poor Kennedy, and notwithstanding the boasted dexterity of the ringleader, Kennedy appears for a time to have kept the four murderers at bay.” Barry was right - no other reasonable conclusion than wilful murder was possible.

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  5. That's a brilliant book. Its hard to believe Melbourne's beginnings included these vile spectacles. But I'd like to know if the hangman's noose had been replaced by the smooth metal eye,as recommended by the British PM in 1880, in time for Ned. You can read about this in "The Kelly Gang Unmasked" page 153. Hanging people then was a bit technical it seems.

    In the earlier book it is recorded how a convict survived the drop and was carried up again to the scaffold where the second attempt succeeded.

    Ghastly!

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  6. The Hon. Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria, quoted extensively from that 1984 book, as you can see here:

    http://www.austlii.edu.au/au/journals/VicJSchol/2011/14.pdf

    Academics are not always totally honest either:

    https://quadrant.org.au/magazine/2014/10/mistaken-identity-aboriginal-resistance/

    which gives just one measly mention to "1842 The Public Executions at Melbourne" which proceeded their research by more than thirty years!

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  7. Unfortunately the most prominent aspect of Barry's life and career is his sentencing of Ned to death. This has made him yet another villain in the eyes of many Kelly supporters. They are blind when it comes to the great public achievements of the man. And they also seem to forget that it was a jury, not Barry, which found Kelly guilty after just a half hour's deliberation.

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    1. I agree Brian, that Kelly supporters wrongly view Barry as the villain in the trial. It was the jury that was in fact the villain,however, the jury was hand picked to do the job. In fact the miscarriage of justice goes further than that. Why was Ned not tried in Beechworth? Why was he taken to Melbourne to be tried and hanged? In fact, in trying Ned in Melbourne the government committed a breach of law. Ned Kelly under the law of the day should have been tried in Beechworth and hanged there. To hold the committal in Beechworth and not the trial is incongruous. It may well have been illegal.Worth investigating this further I think.

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  8. How can you hand pick a jury? Even in those days potential jurors could be challenged and ruled out by either sides.

    By 1730 [in the UK] either party in a criminal or civil case could request the use of
    special juries, provided they paid for the additional cost. By requesting this
    form of jury, the parties would benefit not only by obtaining a better class of
    juror, but more importantly, by being able to choose the jurors. However, the
    use of a special jury was not an automatic right.

    Australia inherited this jurisprudence.

    https://www.parliament.vic.gov.au/images/stories/committees/lawrefrom/jury_service/report_volume_3.pdf

    This is ancient history, Anonymous, and you want to change it. Give us a break!

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    1. My thoughts exactly Jim. I can find nothing to suggest that the jury was 'hand picked' but if 'Anonymous' has a source for that claim I would like to see it. Also, if as Anonymous further claims, that having the trial at the Central Criminal Court Melbourne was unlawful, why was it not vigorously challenged by Ned's legal team?

      The Crown made application for the trial venue to be moved from Beechworth to the Central Criminal Court on 22 September 1880. Ned's lawyer, Mr Gaunson was present during the hearing of that application and objected to the suggested change of venue. However, as Justice Barry pointed out, Gaunson had not lodged a counter affidavit and allowed the Crown's application for the change of venue. (Herald 22/9/1880). Sounds like Gaunson was in over his head and not a particularly good lawyer. Perhaps Ned was now regretting the spendthrift ways in which the bank robbery proceeds had disappeared? No evidence of 'saving for a rainy day' here.

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  9. Ned was spat on at Beechworth station when he arrived for the committal proceedings. Not a great sign that the Beechworth community was 100% behind him.

    I think the magistrate in Melbourne sent Ned for committal at Beechworth on the basis he would then be tried in Melbourne where he had been indicted. I can't check that because I've lent "that" book to a pal who has taken it to the snow!

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  10. Where did you read that Ned was spat on at the Beechworth railway station? I don't recall that offhand. I do recall a little girl, the daughter of a magistrate, saying that Ned had spat at her and her sister at the station. Whether that is an exaggeration or the product of an over active imagination on her part or it actually happened, I have no idea.

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    1. Can't say that I have heard of a 'spitting' incident either Sharon. The only report of anger toward Ned about that time was when he was waiting at the Newmarket Station for the special train to take him up to Beechworth for the committal. Apparently Ned had a bit of a shot at some young boys who were riding near the station with race horses. Ned told them that they ought to give the horses to him for proper training. The boys seem to have taken umbrage and simply ignored Ned apparently not knowing who he was.(The Age 1 August 1880)

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    2. Hi Sharon,

      I haven't actually read this before... where was this said?

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    3. Brian, in McIntyre's narrative he said of the Newmarket situation -

      "During our waiting Kelly tried to attract the attention of some jockeys who were exercising some horses, and riding past the station, he called out to them, "Bring those horses over here and Ned Kelly will show you how to ride them." The boys not knowing who it was "barracked" him and passed on."
      The Cambridge Dictionary says "to barrack" means "to shout loudly in order to interrupt someone that you disagree with."
      So I guess they ignored and jeered him but probably later realizing who it was they kicked themselves soundly!

      The spitting info was from page 173 of "Ned Kelly's Last Days" by Alex Castles.

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  11. You are right Sharon. It was Ned that spat at the crowd, not the other way round.

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