Eleven Mile Creek

Judge Barry (No, Not That One!) On Ned Kelly in the Australian Dictionary of Biography (Brian Stevenson)

 

 

 

Herewith is the original version of Judge Jack Barry's Australian dictionary of biography entry on Ned Kelly.

 

Judge Barry, no kin to Redmond Barry, was a judge of the Victorian Supreme Court from 1947 until 1969. His father, a house painter, was from Beechworth and the judge was born in Albury, on the fringes of Kelly Country, in 1903. Tellings and retellings of the Kelly story were a feature of his earliest years. An opponent of capital punishment from his early days as a lawyer, he developed a reputation as one of Victoria's leading criminal defence lawyers. Widely read, and with a passion for clarity and accuracy, he remained a man of the Left throughout his career. Despite this, according to Peter Ryan, author, columnist, former director of Melbourne University Press and a friend of Barry's,  'his reverence for the truth trumped mere politics every time.'

 

Ryan, who reviewed Ian MacFarlane's The Kelly Gang unmasked in the Quadrant of March 2013, once asked him about the integrity of Ned's trial and sentence. Barry considered the matter and, as Ryan relates:

 

'In due course he handed me his detailed opinion on the Kelly trial. It concluded that all the rules and procedures in force at the period had been fully observed, and that no other result could have been expected.'

 

Despite this conclusion, there is evidence in Barry's original ADB entry of his attempt to identify and understand characteristics of the social environment that created Ned Kelly. The final version of Barry's entry is readily available online at the dictionary's website, but it bears obvious signs of very heavy editorial emendation. The original article, for example only mentions the Jerilderie Letter and the armour in passing, and does not mention the Cameron letter at all.  

 

Barry submitted the first draft to the ADB in February 1967. Although he was allocated 1250 words for the entry, he went way over the length requested. As a contributor to the ADB myself since 1986 I can testify to the difficulty of adhering to the word limits, though as a member since 2009 of the ADB's Queensland working party that selects biographical subjects and allocates wordage I have some sympathy for the editors also. I should add that I have been reasonably satisfied by the condensations and amendments made to my own work, though I recall the late Edgar Penzig saying to me of one of his entries 'That's not what I wrote, cobber.' (Edgar wrote the entries for Frank Gardiner, Ben Hall and John Gilbert.)

 

Barry died in 1969 so was not around to witness the 1974 publication of his entry. Mark Finnane, in the National Library of Australia news for June 2007 described the entry as 'thorough in preparation and dispassionate in tone' and as a 'social-psychological analysis that acknowledged the possibility of maternal influences on Kelly's disposition, while stressing also the social contexts of the gang's exploits.' The concluding paragraphs, which in Finnane's words 'pungently addressed the polarity of the Kelly legend' were edited out, including these words which 'contextualized the Kelly outbreak as a phenomenon that was grounded in a particular colonial history':

 

 '... memories still fresh of the convict system, and in particular of transportation from Ireland, Irish hatred of the English, resentment and distrust of officialdom, the unjust land laws, the socialists' dislike of the English master-class, the bleak prospects of small selectors and the hardships of bush life, the privations of the discontented urban poor; and the infuriating pretensions of the upper elements of a class-ridden society.'

 

Barry's original article, however, was not lost to history, just rendered a little hard to find. It was reproduced in the Age on 28 July 1970, on page 5 of the Features Section. I do not think it is available online, so I transcribed it, paragraph headings included. See what you think! Oh, and do not be too put out by Henry Gyles Turner's unflattering description of Ned: before he retired to become a historian, Turner was a banker!

 

Here is the original entry!

 

Mother's boy as folk hero

Sir John Barry

Age 28 July 1970 p 5 of Features Section

EDWARD KELLY (1855-1880), bushranger and executed felon.

Ned Kelly was the dominant character in the activities of the Kelly gang, consisting of himself, his younger brother Dan (1861-1880), Joe Byrne (1857-1880) and Steve Hart (1860-1880).

 

Ned Kelly was the eldest son of John (Red) Kelly (b. Tipperary, Ireland, 1820) who was sentenced in 1841 to seven years transportation for stealing two pigs. In 1848 he went to Port Phillip and on November 18. 1850, he married Ellen Quinn, aged 18.

 

 

Edward was born at Beveridge, Victoria, in June, 1855, and attended school at Avenel until the death of his father on December 27, 1866. Left in poor circumstances, the widow and her children moved to a hut at Eleven Mile Creek, about halfway between Greta and Glenrowan, in north-eastern Victoria.

 

In 1869 Edward Kelly was arrested on a charge of assaulting a Chinese. He was held for 10 days on remand, but the charge was dismissed. In the next year he was arrested and held in custody for seven weeks on a charge that he was an accomplice of a bushranger, Henry Power, but again the charge was dismissed.

 

In 1870, Kelly, then 15, was convicted of summary offences and imprisoned for six months. Soon after release he was sentenced to three years' imprisonment for receiving a mare and knowing it to have been stolen.

 

 

Horse thefts

 

Discharged from prison in 1874, Kelly worked for two years at timber-getting but, in 1876, joined his stepfather George King (who had married Ellen Kelly in 1874) in stealing horses for sale across the Murray River.

 

The Kelly family regarded themselves as victims of police persecution, but it is highly probable that, as they grew up, the boys were privy to the organized thefts of horses and cattle for which the district was notorious.

 

The incident that precipitated the crimes of the Kelly gang occurred in 1878. Dan Kelly, then 16, was sentenced to three months' imprisonment in 1877 for damaging property and, after he was released in 1878, a warrant was issued for his arrest for horse-stealing.

 

On April 15, 1878, a police trooper named Fitzpatrick went to Mrs Kelly's place, allegedly to arrest Dan Kelly. Fitzpatrick, a worthless and thoroughly unreliable fellow, claimed Ned Kelly had shot him.

 

Dan went into hiding, and Mrs Kelly and her son-in-law, William Skillion, and a neighbor, William Williamson, were arrested and charged with aiding and abetting the attempted murder of Fitzpatrick.

 

In October, 1878, Mrs Kelly, Skillion and Williamson were tried at Beechworth and convicted. Mr Justice Redmond Barry sentenced her to imprisonment for three years and the two male accused to imprisonment for six years. 

 

Rewards of 100 pounds were offered for the apprehension of Ned and Dan Kelly, who went into hiding in the Wombat Ranges, about 20 miles from Mansfield. They were joined by Joe Byrne, 21, from Beechworth, and Steve Hart, 18, a daring horseman from Wangaratta.

 

In October, 1878, a police patrol consisting of Sergeant Kennedy and Constables Lonigan, Scanlon and McIntyre set out to capture Ned and Dan Kelly and, on October 25, camped at Stringybark Creek. They were seen by Ned.

 

On October 26 Kennedy and Scanlon went out on patrol, leaving Lonigan and McIntyre at the camp. The Kelly brothers, accompanied by Hart and Byrne, surprised the camp and, when Lonigan drew his revolver, Ned shot him dead. McIntyre surrendered.

 

When Kennedy and Scanlon returned they did not surrender when called on and, in an exchange of shots, Ned killed Scanlon and mortally wounded Kennedy. Ned later shot Kennedy in the heart. He claimed he did so as an act of mercy. McIntyre escaped and took the news of the killings to Mansfield.

 

Crude methods

 

On November 15, 1878, the Government of Victoria issued a proclamation of outlawry and offered rewards of 500 pounds each for the outlaws, alive or dead. Police were mobilized, but their methods of pursuit and of obtaining information were crude and inept.

 

On December 9, 1879, the Kelly gang took possession of a sheep station at Faithfull's Creek, about four miles out of Euroa, locking up 22 persons in a storeroom. While Byrne kept guard over the captives the other three went to Euroa where they held up the National Bank, taking 2000 pounds in notes and gold.

 

This crime resulted in a doubling of the reward, but less than two months later, on Saturday, February 8, 1879, the gang struck again, this time at the Bank of New South Wales, Jerilderie. They rounded up 60 persons and held them in the Royal Hotel, next door to the bank.

 

Ned gave a written statement of over 8000 words to a bank teller as his explanation and justification of his conduct. The reward for the outlaws was increased to 2000 pounds a head.

 

Special train

 

Aaron Sherritt, a friend of Joe Byrne's, became an agent for the police, and, on Saturday, June 27, 1880, Sherritt was shot dead by Byrne (who was accompanied by Dan Kelly) in his own doorway near Beechworth, while the four constables assigned to guard Sherritt hid in a bedroom. Byrne and Dan Kelly then joined Ned and Steve Hart at Glenrowan. There they took possession of a hotel conducted by Mrs Ann Jones, where they detained about 60 people.

 

The outlaws foresaw that a special train would be sent from Melbourne on the Sunday night, and would arrive at Glenrowan in the early hours of Monday, June 29 and, with the intention of wrecking it, they compelled two railway workers to tear up a portion of the railway lines. The scheme came to nothing because the schoolmaster, Thomas Curnow, whom Ned Kelly had allowed to go home from the hotel with his wife and child and sister, gave warning to the train crew.

 

The outlaws were equipped with armour made from plough mouldboards.

 

Under Superintendent Hare, the police surrounded the hotel and shooting began. Hare was shot in the arm and Ned was wounded in the foot, hand and arm. Dan Kelly, Byrne and Hart took refuge in the hotel and Ned went into the bush. Police firing continued and Byrne was shot in the thigh as he stood at the hotel bar and bled to death.

 

About 5 am Ned, clad in armour, came out of the bush, looking huge and grotesque in the early morning mist. He was brought down by bullet wounds in the legs.

 

Most of the persons held captive in the hotel had succeeded in getting out of the building, and the last of them emerged about 10 am. An old man named Cherry was in a detached kitchen, fatally wounded by a police bullet; a boy, John Jones, son of the hotel-keeper, was similarly shot in the abdomen and died later in hospital. 

 

With Ned captured, a policeman set the building on fire.

 

Father Matthew Gibney went into the burning building to administer the last rites and, on emerging, reported three bodies were inside. One, Byrne's, was brought out by police. The other two were those of Dan Kelly and Steve Hart, who had apparently committed suicide by poison and were found to have been burned beyond recognition.

 

On October 28 and 29, 1880, at Melbourne, Kelly was tried for the murder of Constable Thomas Lonigan at Stringybark Creek. He was found guilty and Mr Justice Barry sentenced him to death.

 

Despite strong agitation for a reprieve, Kelly was hanged at the Melbourne gaol on November 11, 1880, at the age of 25. He met his end without fear. His last words were, 'Ah well, I suppose it has come to this', and (according to another version) 'Such is life.'

 

Dare-devil

 

Henry Gyles Turner regarded Ned Kelly as 'a shabby skulker' but he observed, 'It was a humiliating reflection ... that the whole machinery of Government, the apparent zeal of a well-disciplined and costly police service, the stimulus of enormous rewards and an expenditure of fully 100 000 pounds were, for two whole years, insufficient to check the predatory career of these four reckless dare-devil boys.'

 

Undoubtedly, the gang were murderers and robbers and as such should have excited public detestation. Yet it did not turn out that way, and the hold the Kelly legend has had upon Australian imagination is too clearly established to be disregarded.

 

However mistaken, the popular estimate of Kelly's killings of the police at Stringybark Creek accords with the statement, 'I could not help shooting them, or else let them shoot me, which they would have done if their bullets had been directed as they intended', while the elements of farce surrounding the bank robberies at Euroa and Jerilderie distract attention from the gravity of the crimes.

 

In the judgment of a responsible writer 'Ned Kelly is the best known Australian, our only folk hero ... Popular instinct has found in Kelly a man of manliness much to be esteemed - to reiterate: courage, resolution, independence, sympathy with the underdog.' (Clive Turnbull, Ned Kelly, being his own story of his life and crimes, Melbourne, 1942, introduction.)

 

Still fresh

 

The Kelly legend brought into being the phrase, 'as game as Ned Kelly', used to describe the ultimate in bravery. It has inspired imaginative tales, (in which, commonly, the facts are highly coloured or distorted to favour Kelly) and folk-ballads. And it has taken new life in Sidney Nolan's first and second series of Kelly gang paintings.

 

Before his capture and in the years soon after Kelly's death, there were many factors in the Australian social organization that fostered the legend - memories still fresh of the convict system and, in particular, of transportation from Ireland; Irish hatred of the English, resentment, and distrust of officialdom; the unjust land laws; the socialists' dislike of the English master class; the bleak prospects of small selectors and the hardships of bush life; the privations of the discontented urban poor; and the infuriating pretensions of the upper elements of a class-ridden society.

 

Its vigorous survival was ensured, too, by tale and son and recitation around the camp-fire and in bush shanties. But even in an affluent society with radio and television as its entertainment, the legend persists and is still vital.

 

Seemingly, it has a compelling quality that appeals to something deeply rooted in the character of the average Australian.

 

As is common in Irish families, Kelly was strongly attached to his mother.  There is no factual basis for the story that he was involved in a romantic relationship with a young woman.