Neds brother Jim

A central part of the Kelly story is that Ned was unfairly  hounded, harassed and persecuted by the Police,  something which he eventually reacted against, becoming what is often termed a ‘Police-made criminal’. On this Blog a year ago I reviewed the criminal record of Ned Kelly in detail, looking for the evidence of this persecution. I listed and looked at all the incidents that he was involved in that resulted in criminal charges being brought against him, to see if they had the appearance of  being trumped up charges and harassment by the Police , but they didn’t. What I found was evidence for the Police and the Judiciary acting more or less appropriately, even leniently on occasion, giving him the benefit of the doubt on several occasions and discharging him without a conviction, allowing remission of sentences, and even making offers to try to assist him in the earliest episodes. There were also moments where Police behaved deplorably, for example brutally bashing him and even trying to shoot him, events that were inexcusable even in those harsh times, but these events occurred well along the path of Neds anti-social lifestyle and were not entirely without provocation, which of course is the Kelly claim.

The only ‘evidence’ – if you could call it ‘evidence’ – that Ned Kelly was persecuted and hounded by the Police are his own claims in the Jerilderie letter – but isn’t that what ALL criminals claim, that the reason they’re in trouble is because the Police were picking on them? The  truth seems to be that the idea that Ned Kelly became what he did because of Police persecution, this most central plank of Kelly mythology, is actually yet another of Ned Kellys lies – that’s what the ‘real’ evidence shows. Nobody challenged this assertion when I made it a year ago.

Now I am going to make a series of Posts in which the rest of the Kelly clan and their associates have THEIR criminal records examined. Again what I want to explore is the Kelly story claim that the criminality of the Kellys and their extended family and associates was the RESULT rather than the CAUSE of Police interest in them. The Kelly story teaches that when it came to the Kellys, instead of  doing their legitmate tasks of  maintaining Law and Order and trying to solve crime and maintain the peace, Police went out of their way to victimize them. 

I will begin with Neds  brothers, James – known as Jim . In 1871 when aged 12 Jim and his  younger brother Dan were arrested by Constable Flood and charged with ‘illegally using a horse’ owned by Mr Mark Krafft, a local Hawker.

This is how J.J. Kenneally tells the story  :

“In his anxiety to carry out Supt Nicolsons instructions  to root the Kellys out of the district Constable Flood in 1871 arrested Jim Kelly and his little brother Dan. Jim was about 13 years old and Dan was only ten. Jim was employed by a local farmer with whose consent  he rode one of the farmers horses for the purpose of going home to see his mother.  He met Dan on the way and took him on the horse behind the saddle. Before going much further they were intercepted by Constable Earnest Flood who arrested the two children on the charge of illegally using a horse.”

It was Saturday 9^th September 1881. Flood took the boys to Wangaratta, and they remained in custody till the Monday morning when they appeared in Court and were discharged.

Kenneally goes on to paint a portrait of Flood as a serial persecutor of the Kellys, this case being an early example. He then quotes Floods answer  at the Royal Commission in 1881 saying that “They ( the Kelly brothers)  were discharged on account of their youth and their intimacy with the owner of the horses, one of the brothers having been a servant of the person who owned the horses’

Max Brown mentions this episode in passing, accepting Kenneallys  portrayal of it as unwarranted harassment:  “Constable Flood set out to pot the women and children starting with the 12 year old Jim who was working for  hawker, and his brother Dan still going to school in Greta. The boys were caught ‘illegally using’ the hawkers horse and locked up for two days’

Unusually, this incident isn’t mentioned in Ian Jones “A Short Life” but  it gets a brief mention in Fitzsimons work, in an anti-police context, and also in McMenomys, where he characterizes the episode as a ‘joke’ and Flood as ‘embarrassed’ when the boys are discharged. 

Now read the Court Report from the Ovens and Murray Advertiser of September 14^th 1871, the following Thursday : 

Illegally Using. — James and Daniel Kelly two boys, the one 12 years and the other 10 years, brothers of Young Kelly, were charged with illegally using a horse.—

Mark Kraft, a hawker, and travelling with a wagon and three horses, stated; on the 8th. of this month I camped at about 6. o'clock" at night at the Eleven Mile Creek, between Benalla and Greta. On the morning of the 9^th (Saturday morning) I had the whole of the three horses. I put the horses in Mrs Kelly's paddock on the evening of the 8th— a fenced paddock ; it is small, about 300 yards wide and about 20 yards from Mrs Kelly's house! I camped near the place, about 20 yards from the paddock where I put the three horses. One horse was a bay, one a grey,- and one a chesnut; the grey is a mare. I have seen the horses in the police yard. On last Saturday morning l told my boy to go for a bag of chaff and for an axe that I had lost. I told him to do this the night before. I saw the horses in the paddock- at night. I next saw two of the horses in the possession of the police (the bay horse and the grey mare). I saw the chestnut horse with mv own boy. In consequence of what my boy told me, I gave information to the police. I did not give the two boys in custody permission to ride the two horses now in the police yard. . I have lent the oldest boy a horse to look for his own horses. He was formerly in my employ for five months ;.he left me about 10 weeks ago I am in the  habit of camping at Kelly's.

In reply to the mother of the accused the plaintiff stated he did not think the boys intended stealing the horses.

In reply to the police, the plaintiff stated that he gave the boys in charge for illegally using the horses.

Charles King, sworn, deposed that he was in the employ, of Mr Krafft, and travelled with him. We camped lit the Eleven Mile Creek on Friday night. We put the three horses in Mrs Kelly's paddock.  The fence is not a good one, but the horses' could not get out. The two horses in the police yard were put into the paddock. I took the chestnut horse and left the other two in the paddock. I went to look for an axe and a bag of chaff. I was away for an hour and a half. When I returned the two horses were gone from the paddock. I went to look for them, and saw the boys riding the two horses near' the brush fence. I called to them, but they galloped away. I was about 10 yards from them. I  said, Jamie, fetch the horses back. They took no heed, and rode over the ranges. I told Mr Krafft what I had seen, and went to the police station at Greta, and Constable Flood returned with me. The constable and I went to look for the hoys. We discovered them about three-quarters of a mile from Mrs Kelly's. When we saw them they galloped away, and the constable after, them.

Constable Flood deposed : I am in charge of Greta police station. I saw the last witness on Saturday morning, and he reported an offence. I went to Kelly's place, and after wards went into the bush. When about a mile from Kelly's, I saw the two boys on horseback at fall gallop. ... The eldest boy made three attempts to get over a brush fence. They were galloping away, from Mrs Kelly's. The youngest boy was riding a bay horse. . I followed the eldest boy, who was riding the grey mare I was in search of. I asked him his name. He first refused to tell me; he  afterwards told me his name. I asked him whose horse was that he was riding. He said he did not know. -I asked him if he did not

know it belonged to a hawker who had camped there the night before, and he said he did not. He said "You can have the horse; I was only taking a ride." I then took them to Mr Krafft, who gave them into custody.

Discharged. 

When you read this account, you realize how very wrong the Kenneally version is : Jim NO LONGER worked for the farmer, Jim was NOT given permission to ride the horse, they took TWO horses, and they were NOT going to visit their Mother as the horses were taken from the paddock beside her cottage.  Floods involvement came by way of a specific complaint lodged by Krafft  who was clearly not amused by this prank. He is later listed as being a Kelly sympathsier ( Corfield) so his actions must have sprung from intense frustration, rather than from some sort of anti-Kelly agenda. Neither is there evidence in any of this of an act of ant-kelly Police persecution but rather of Flood responding to a valid complaint from a member of the Public, and taking the appropriate steps. The Magistrate exercised good judgement in the way he dealt with these two boys, but it must have concerned him that at such a young age they were so defiant and  already accomplished horse thieves and liars.

Kenneallys claim Flood was responding to Nicholsons famous order to root out the Kellys is also completely wrong, as this statement wasn’t made until 1877, six years later, by which time there had been many more incidents and contacts of various kinds between various members of the wider Kelly clan and the Police.

In my opinion this story provides a  fascinating window onto the creation of Kelly myth. In 1929 when Kenneally wrote his version of events the newspaper  report would have been virtually inaccessible to the general public, and clearly was NOT the place from where he obtained his information.  The story Kenneally told was what had been handed down to him, in other words the oral tradition. This has then been accepted as the truth by later writers and incorporated as fact into the story.

Now, with  easy access to the news report made only a few days after the event, and exposure of the truth of what actually happened we can see how the  telling and retelling of the story over the intervening 50 years has changed it from a silly mischievous prank that inconvenienced several people and wasted Police time and resources, into an act of absurd Police persecution of two innocent boys. The Kelly myth is a comprehensive misrepresentation of the truth. 

The reality in relation to Jim Kellys first brush with the Law is that it has none of the appearance of being an example of unwarranted Police persecution of two innocent Kelly family members, which is how the Kelly legends portray it. In fact when you read the original source material, this incident appears to be a perfectly legitimate and sensibly handled response to some foolish behavior by a couple of wayward kids. Jims first interaction with the Law was NOT an example of intrusive Police harassment. Another Kelly myth is debunked.

And as this news report details, kids like that and incidents like that are still happening today:

A 12 year old girl has been detected driving at 122kmh on Illawarra Main Road in the State’s north.(Tasmania, 2015) On Saturday night at 10.37pm, police allegedly detected a speeding vehicle travelling at 122km/h on Illawarra Road. The vehicle was intercepted on Youl Road, Perth, and police were shocked to discover the driver was a 12 year old girl. A 21 year old man and a 16 year old girl were passengers in the vehicle. The girl was charged and bailed for false name and driving offences. Sgt Phil Summers, of Westbury Police station, said police were stunned.