[Editor: This is a chapter from The Complete Inner History of the Kelly Gang and Their Pursuers (5th edition, 1946) by J. J. Kenneally.]
After returning from the Euroa bank robbery, the first thing was to pay out some of the proceeds of the Euroa trip. The farmer who found the four young men in his crop, and who was willing to sacrifice his crop rather than expose the Kellys to the risk of being discovered, was not forgotten. He received a very practical mark of the outlaws’ appreciation of his friendship. They moved about freely in the hills, and frequently visited their home. While in the ranges they indulged in rifle and revolver practice to such an extent that all of the four mates were first-class marksmen with any kind of firearm.
They saw, however, that twenty of their friends had been arrested and unlawfully kept in gaol without even a shadow of a prima facie case against them. But under war conditions ordinary laws were usually scrapped. The Kellys declared that the authorities were outlaws, and the latter returned the compliment.
Some of the men arrested as sympathisers were not known to the Kellys, but evidently they had been watching the police. These men had been deprived of the rights of an ordinary cat. It is said that a cat may look at a king, but evidently that privilege was not to be enjoyed by free men in a so-called free country. The friends of the Kellys may not look at the police.
When the twenty-odd men were arrested and imprisoned in Beechworth Gaol, the methods pursued by the police fell in for more and more public condemnation. Even those who had no time for the Kellys expressed themselves as being thoroughly disgusted with the methods of the police. Of these sympathisers some were not on friendly terms with others who were arrested, and the police canvassed the prisoners every day for news of the whereabouts of the Kellys. After being in prison for six weeks the police visited one of the most active and open of the sympathisers, and requested him to tell them (the police) where the Kellys were then hiding.
The prisoner replied: “I’ve been in this cell for the past six weeks, and I can give you my positive assurance that the Kellys are not here, and have not been here during the past six weeks.”
The police were convinced. They knew by the prisoner’s manner and earnestness that he has telling the truth; they therefore ceased to make further inquiries from the prisoners, and shortly afterwards the sympathisers were liberated.
The sympathisers were not a happy family. On one occasion “Wild” Wright and John McIlroy had a fight. Wright was leading on points, although his opponent was putting up a great fight, and when the former was about to deliver a deadly uppercut his hand was seized by one of the other sympathisers, who, while holding the “Wild” man’s hand, struck him a very heavy blow on the jaw and laid him out, and the result was declared a draw.
It was the rule of the prison authorities to let the prisoners out in the big yard to wash and exercise. There was only one washing basin provided for all the sympathisers. The prisoners were let out in turn. Frank Harty was first out, then followed Ben Gould, with “Wild” Wright close on the latter’s heels. Harty had just started to wash, while Ben Gould was getting ready. “Wild” Wright was a young man, 6ft. 1in. in height and weighing 13 ½ stone without any spare flesh, and possessed a thorough knowledge of the “noble art.” Wright made it a practice to walk up to the washing basin, and, laying one hand on Harty’s shoulder and the other on Ben Gould’s, pushed them aside, saying, “Men first, dogs come last.” This offensive treatment rankled, and both Harty and Gould decided to resent this insult in a practical fashion. They interviewed some of the leaders of the sympathisers with the request that they should not interfere when the two outraged prisoners turned on “Wild” Wright.
It was all arranged, and next day as Harty came out, followed by Ben Gould, they both got ready, stripping ostensibly to wash, but in reality to fight. “Wild” Wright, as before, pushed them aside with the usual remark, “Men first, dogs last.” The other two flew at him. The suddenness of the attacked surprised Wright, who first made a hit at one and found the other attacking him from behind. He would then turn to the one behind him, then the other would deal Wright a blow from the rear. At last Wright got a heavy blow home on Harty and laid him out for a few seconds. He then caught Ben Gould by the right shoulder with his left hand, and dealt the latter a heavy blow on the ribs, knocking him yards away. In yielding to the force of “Wild” Wright’s terrific blow Ben Gould left his shirt in the “wild” fellows hand. Ben sustained a fracture of three ribs and was therefore out of action. Wright then turned to Harty, who, nothing dismayed, was making a vigorous rear attack. The situation looked ugly for Harty, but the others then interfered and called time, just as the warders rushed on the scene. “Wild” Wright was afterwards placed in a separate division from the rest of the sympathisers.
As public opinion was getting more and more pronounced at the illegal and unlawful treatment that law-abiding citizens had been subjected to by the police, on April 22, 1879, all the remaining sympathisers were released from Beechworth Gaol without money, and without any compensation, or means of returning home except to walk and beg their way. Some of these men had to go 25, 30, and even 50 miles. Their prison experience made them extremely bitter against the police and very determined to help the Kellys more than ever.
They were held in gaol and treated as convicted criminals from January 2 to April 22, 1879, without any evidence being submitted against them.
BEECHWORTH COURT PROCEEDINGS, JANUARY 18, 1879. KELLY SYMPATHISERS.
Twenty Kelly sympathisers were presented at Beechworth Court on the following charge:—
“That they did cause to be given to Edward Kelly (adjudged and declared to be an outlaw) and his accomplices information tending to facilitate the commission by them of further crimes, contrary to the provisions of the Felons Apprehension Act 1878.”
Mr. Bowman (for the Crown) said he did not ask for a committal, but merely for a remand, and the Crown had a right to this up to two terms (remands).
Mr. Albert Read (for some of the accused): “The whole affair,” he said, “was making a laughing-stock of justice.”
Mr. Bowman said he would withdraw the charges against Henry Perkins, Daniel Delaney, Wm. Woods, Robert Miller, Walter Stewart, and John Stewart, and these six men were accordingly discharged.
Mr. Zincke (for the other accused) was asked to agree to the remand of the accused, but notwithstanding that he emphatically refused they were remanded for eight days.
KELLY SYMPATHISERS BEFORE THE BEECHWORTH COURT.
Report in “Ovens and Murray Advertiser,” February 11, 1879:—
On Isaiah (“Wild”) Wright being put into the box:
Mr. A. Wyatt, P.M., said: “Wright, you and I have met before.”
“Wild” Wright: “There is no fear of the Kellys killing me if I were out. You will not get the Kellys until Parliament meets, and Mrs. Kelly is let go, and Fitzpatrick lagged in her place. I could not have done much, as for four months before I was taken (arrested) the police had their eyes on me.”
Mr. A Wyatt: “I WOULD GIVE YOU FAIR PLAY IF I COULD.”
Wyatt was relieving Foster, who was on leave. Foster did whatever the police suggested, and Wyatt considered himself bound to do the same.
All the accused were again remanded for seven days.
Editorial in “O. and M. Advertiser,” 18/2/1879. — “The case of the men (Kelly sympathisers) now in Beechworth Gaol, however, is different . . . that they had been friends and even companions of the outlaws prior to the late outbreak, and that there is a strong probability that they would, if possible, aid the Kellys did opportunity offer. Others of them, however, are perfectly innocent of any such intention, and, as Mr. Zincke said in this particular, it is but fair that the wheat should be separated from the chaff, and these men set at liberty, unless it can be proved that there is aught against them. The proceedings last Saturday (15/2/79) were farcical in the extreme, and whilst we say by all means use every endeavour to capture the Kellys . . . still, in common fair play, let the men now confined on suspicion have a change of clearing themselves of an imputation, which, if not removed, must blast their lives and their reputation for ever.”
The following week the sympathisers were again before the court. Four of them were formally discharged.
Supt. Furnell stated that one of the men, Joseph Ryan, had broken his leg. He intended to ask for his discharge, and requested Mr. Foster to visit him in gaol for that purpose.
Mr. Foster visited the gaol, and, on being discharged, Joseph Ryan was removed to the Beechworth Hospital.
Towards the end of March the Kelly sympathisers were again before the court, and Supt. Furnell applied for a further remand of seven days.
Mr. Bowman (on behalf of Mr. Zincke) said: “It was monstrous the way in which these arrest had been made, as according to what was being done they might have him (Mr. Bowman) arrested on the mere dictum of a police constable. Mr. Zincke had told him (Mr. Bowman) that when the accused Hart was let go he was almost apologised to; was told he had been arrested because his name was Hart, and had £1 given him. Not one reason had been assigned why these men were kept in confinement. It was easy enough to talk about Kelly sympathisers. No one hated Kelly crimes more than he did, and he protested against such a perversion of justice.”
Kelly sympathisers were again remanded for seven days, notwithstanding Mr. Bowman’s powerful appeal on their behalf.
APRIL 22, 1879.
Kelly sympathisers were again presented before Mr. Foster, P.M. Supt. Furnell said he had been instructed to apply for a further remand of seven days on the ground that his witnesses were not available.
Mr. Bowman submitted that it was not the slightest use for Mr. Furnell to use such an argument as that, and he hoped that His Worship would act according to the dictation of his conscience.
Mr. Foster said: “I have felt it to be my duty to act independently, and to do that which, to my conscience, seems just and legal, and I do not feel justified in granting a further remand. I therefore discharge the accused.”
All the sympathisers were then formally discharged.
It appears from the above statement that Mr. W. H. Foster, P.M., had not acted independently, and had not done that which seemed just and legal, from January 4 to April 22, during which period he deprived 20 law-abiding citizens of their liberty, and destroyed the confidence of at least 80 per cent. of the population in the Judiciary.
Some idea of the effect on the public mind of the foolish and illegal action of the authorities in keeping Kelly sympathisers in gaol for three months may be gathered from the following incident, which took place near Lake Rowan:—
The eight-year-old son of a well-to-do Lake Rowan farmer was sent on an errand to Benalla, a distance of 16 miles. The boy was mounted on a very fine pony, and when 12 miles from his destination he met an elderly gentleman, who, accompanied by his wife, was driving a buggy towards Yarrawonga. The following dialogue took place:—
Elderly Gentleman: How far are you going, sonny?
Boy: To Benalla, sir.
E.G.: That is a long way for a little boy like you to ride.
Boy: I have a first-class pony, and it will not take me long to get there.
E.G.: Are you afraid of the bushrangers?
Boy: The Kellys. They won’t hurt me.
E.G.: If Ned Kelly meets you he will take that fine pony from you.
Boy: If Ned Kelly wants my pony I’ll give it to him and walk to Benalla (12 miles).
The name of Jerilderie originated in quite a novel way. Mr. Gerald Wilson and his wife settled on the present site of the town, and the latter always referred to her loving husband as Jeril Dearie. She called her husband by no other name, so that the carriers and others gave their home the name of Jerildearies. When asked how far they were going to-day the invariable reply was, when going in that direction, “We’ll go as far as Jerildearies.” When the town sprang up it was called Jerilderie, a slight contraction of Jerildearie.
The New South Wales police had indulged a good deal of banter when referring to the inability of the Victorian police to capture the Kellys. If the Kellys were in New South Wales they said, they would soon have them in the prison cell. This was the usual boast of the average policeman over the border. The Kellys thought it a good thing just to show these gentlemen what they could not do with the Kellys. Plans were accordingly made for a visit to Jerilderie.
The Murray River was guarded by the united efforts of the border police of the two colonies, and the Kellys did not disturb them. They allowed the police to rest in peace. They heard of a crossing at Burramine, where they could swim their horses across, but they had no idea where to find a suitable landing place on the opposite bank. They sent their trusty providore, Tom Lloyd, to Burramine to discover the spot and report. He went, and not wishing to attract attention by making inquiries, he urged his black cob into the river and swam across, but the strength of the current carried him down the river and he could not land. He nearly got drowned. After a great struggle he succeeded in getting back to the Victorian side. He was defeated in his attempt to cross.
He then went up to Mr. P. Burke’s Hotel, which was close at hand. He was wet through and told the publican that his name was Kain, and that he had sold a team of bullocks to a bullocky over the river, and wanted to go across to collect the cheque. The publican saw the prospect of a few pounds being spent in his hotel out of the bullocky’s cheque, and being of a business turn of mind he said he would pull Mr. Kain across, and the latter could swim the horse behind the boat. Mr. Kain was very grateful. They both went down to the boat, which was secured to the root of a big gum-tree by a chain and padlock. The publican pulled to a recognised landing place, and Mr. Kain had no difficulty in getting his horse up the opposite bank.
Mr. Bourke said that if Mr. Kain would not be long away he would wait for him and pull him back again. Mr. Kain replied that he would not be absent for more than an hour. “Then I’ll wait till you come back,” said Mr. Bourke. Mr. Kain rode about a mile into New South Wales, then he dismounted and rested for some time. When the hour was nearly up he mounted his horse and returned to the river and found his good friend the publican waiting for him. Mr. Kain was pulled back again. He tied his horse up and assisted the publican to secure his boat to the root of the gum-tree.
They had a few drinks, and Mr. Kain returned to Greta, and reported to Ned Kelly how to cross the Murray without disturbing the rest or hurting the feelings of the border police of the two colonies.
“You’ll have to take a small handsaw with you,” said Mr. Kain, “in order to saw the root and get the chain free.” Their horses were shod, and every detail of the expedition carefully attended to. A few days later the Kellys left Greta at dusk, and reached Burramine before daylight on Saturday morning, 8/2/79. They pulled across the Murray in two trips and swam their horses behind them. The swim refreshed the horses after their long ride.
They pushed on towards Jerilderie in the early morning and camped during the heat of the day, and reached Davidson’s Hotel, two miles from Jerilderie, in good time for tea. Ned and Steve Hart rested off the track, while Dan and Joe went up to the hotel and had tea. They talked to the waitress and inquired if the Kellys were over there. They conveyed the impression that they (Dan and Joe) were afraid of bushrangers. “No, you need not be afraid of the Kellys, they won’t hurt anyone,” replied the waitress. With this assurance Dan and Joe settled down to a good meal. After tea they had a drink, and the waitress, who also served the drinks, sang one of the Kellys’ songs and wished the Kellys, wherever they were, good luck:
We rob their banks,
We thin their ranks,
And ask no thanks
For what we do.
“How many police have you here in Jerilderie?” Dan inquired. “Only two, and they’re enough — Senior-Constable Devine and Constable Richards.”
Dan and Joe paid for their drinks and pushed on. Ned and Steve now rode up to the hotel, and they, as strangers, also made reference to their fear of the Kellys, but they were reassured by the waitress that the Kellys would not hurt them. They paid for their tea and pushed on to join Dan and Joe, who were waiting for them a little way along the road. The four horsemen reached the police station just as the coach was leaving Jerilderie for Deniliquin. As the coach was passing, one of the passengers was heard to say, “They might be the Kellys.”
The police had just gone to bed. They had been very active during the afternoon and secured a drunk, whom they had placed in the lock-up.
Ned Kelly placed Dan, Joe and Steve in their positions around the police station. He then rode back towards Davidson’s Hotel for about 250 yards. Ned turned his horse round and galloped on the metalled road up to the police station, yelling out. He pulled his horse up suddenly, and cried out excitedly, “Mr. Devine, there is a row at Davidson’s Hotel; come down quick; there will be a murder there.”
Ned talked excitedly. Richards jumped out of bed, and, pulling on his trousers, hurried around the house to the front, where Senior-Constable Devine had already appeared at the front door. The two policemen were now at the front together. Ned Kelly dismounted on the off side of his horse to show that he was not used to horses, while the police eagerly sought more enlightenment about the row at Davidson’s.
Ned parleyed for a minute or two to see if there were any more police to come out. Then, when satisfied that there were only the two constables, he presented his revolver and announced the presence of “The Kellys.” The other three had already closed in. The police surrendered and were handcuffed and taken inside. Ned Kelly inquired if there were any women inside. Devine replied that his wife and children were inside. Ned asked whether Mrs. Devine was in a delicate state of health, as he did not wish to give her a fright. Senior-Constable Devine replied in the negative.
Ned first secured the police firearms and ammunition, and placed the two policemen in the lock-up and brought the drunk out to sleep with them (the outlaws) in the dining-room.
These two constables were suspended from duty by Ned Kelly. Ned told Mrs. Devine that she had nothing to fear as long as she did not make a row or give an alarm. Mrs. Devine was required to show Ned over the house, so as to convince him that there were no more police in the place. Mrs. Devine was now told that she could go to bed to her children as usual.
Two of the Kellys slept while the other two kept guard. Early next morning, Sunday, Ned Kelly and Joe Byrne donned police uniform, ready for duty — the maintenance of order. They attended to their own and the police horses in the stables. Dan Kelly assisted Mrs. Devine to clean and dust the courthouse, which was on the opposite side of the street, and which would be used that Sunday by the priest who was due to celebrate Mass.
J. J. Kenneally, The Complete Inner History of the Kelly Gang and Their Pursuers, Melbourne: J. Roy Stevens, 5th edition, 1946 [first published 1929], pages 124-136
the noble art = boxing, often referred to as “the noble art of boxing”
O. and M. Advertiser = the Ovens and Murray Advertiser newspaper
P.M. = Police Magistrate
prima facie = Latin for “at first face”, referring to something that it is obvious “at first sight”, or to facts that bear out an argument “on the face of it” (in legal terms, it denotes evidence that would be sufficient to prove a particular proposition or accusation, unless rebutted)
Wm. = an abbreviation of the name “William”
[Editor: Added a closing quotation mark after “discharge the accused.”.]