In his recent post at this site, Warren Emerson asked us to consider the role of memoirs in “law and literature.” He points out that autobiographies “in a powerful way force us to ask a central question of literary criticism” and legal analysis: “Do you believe the author?” And, if you don’t believe the court’s or memoirist’s justification, then is the untruth deliberate? Moreover, how can you make these determinations about places and time periods beyond your comfort zone? In exploring these issues, I recommend the fictitious memoir, True History of the Kelly Gang, by Peter Carey. This exciting and superbly written novel about Australia’s most famous outlaws raises many significant legal questions. Just as importantly, it urges its readers to ponder what modes of writing can best contribute to a “true history” — an autobiography, court documents, newspaper accounts, or a novel?

To some admirers, the leader of the real-life Kelly Gang, Ned Kelly, attained the heroic stature of a “social bandit” comparable to Robin Hood. Indeed, the actual Ned came to envision himself as a Robin Hood figure and a political revolutionary. He famously wrote a long apologia (the “Jerilderie Letter”) defending himself against criminal charges but also indicting the oppressive government and ruling class (of the colony of Victoria in the 1870’s) and promulgating an “order.” I advisedly invoke these legal terms because the actual Mr. Kelly used juristic language in an idiosyncratic and self-justifying manner. In the novel, the fictional Ned goes even further in brooding about law and justice and in creating his own imaginative version of a “legal system.”

Before delving into the law, though, let’s generally consider the advantages of reading this novel rather than merely primary sources or history books. As Carey himself notes, the historical record consists of “fragments” that may represent perhaps only 10% of “a man’s whole life.” Through the conceit of the protagonist “Ned” writing installments of his autobiography for his daughter (whom he’s never met), the novelist Carey can flesh out his hero. Ned’s voice in the novel remains as brave, loyal, defiant — and self-serving — as the real outlaw’s. But, the author (Carey) behind the pseudo-author/narrator (“Ned”) is, of course, a master storyteller. He employs the tricks of his trade not only to accentuate Ned’s wit and pathos, not only to make the legal aspects fascinating, but also indirectly to deflate Ned’s rhetoric. This added layer of “tricks” of course complicates and enriches any reading. While Anthony Quinn believes that Carey has all but canonized his hero, I read the novel as giving hints that Ned has massively deluded himself and, indeed, may harbor some awareness of this delusion. Most obviously, we suspect from the title page alone that the book won’t prove a “True History” after all. [Optionally, read my endnote #1.]

On legal topics, the novel wisely dramatizes how local, personal conditions and relationships sometimes matter more than what’s written in the statute books. This insight recurs in the book in multiple ways. I’m not, however, going to attempt a comprehensive list of the novel’s “facts” and “fictions.” Nicky Cowie has assembled just such a (generally non-legal) list of Carey’s inaccuracies. I’m not equipped, nor do I think it prudent, to render many detailed “verdicts” here. Rather, here are just a few examples from the fictional Ned’s legal landscape:

Ned continually portrays the politicians, courts, police, and rich landowners (“squatters”) arrayed in a conspiracy against the interests of the poor and the children of convicts: “They could bankrupt or hang you as they pleased.” It’s true that Victoria’s constitution bequeathed a great deal of power to the squatters, and that corruption and prejudice infected the local police and magistrates. Real-life Ned and his relatives certainly faced persecution even before his gang killed policemen (at Stringybark Creek) and stirred up enormous hatred. But, “several instances over the years… indicate there was a civilized aspect to the Kellys’ relationship with the police that has been frequently overlooked” (Castles 119). Five years before this quotation was published in the Castles book, Carey’s novel admirably elucidated (in a way that non-fiction cannot) how complicated these relations (involving Ned’s mother and siblings) might have been.

True History emphasizes the abuses suffered by working-class “selectors” (similar to homesteaders in the U.S.) after land legislation introduced in the 1860’s. It notes some of the tactics used by the rich (such as “peacocking” and “dummying”) to grab the best land. Yet, the novel also records the historical reality that both rich and poor tried to manipulate the system. For example, Ned’s mother illegally uses her real estate for bootlegging. Ned’s father can’t bear to risk his money on a selection, and he condemns the author of the statute as a “fool.”

Carey accurately depicts Ned destroying some mortgage deeds at a bank he robs, to obliterate the debts of the poor. The narrative fails to mention that, here, Ned was imitating the real-life exploits of the most famous bushranger to precede him, a man named Ben Hall, who burned storekeepers’ ledgers with a similar motive.

Throughout his criminal career, Carey’s protagonist shows himself as a slow-to-anger protector of the underclass. While in fact over 30,000 people signed a petition to spare Kelly’s life after his apprehension, Castles reports a far more sinister version:

Anti-Kelly sentiment was at least partly due to Ned’s widespread reputation for bullying and his penchant for threatening physical harm at the slightest provocation…. For many locals, antipathy towards Ned ran far deeper. It was particularly so for landholders both rich and poor who had suffered from the depredations of the highly organized wholesale horse and cattle stealing that had plagued the area in recent years. By his own admission, Ned Kelly was one of the chief operators in this illicit trade.… [T]he smaller landholders suffered catastrophic losses.… [T]he thefts left many near destitute, unable to replace the [draft horses] that were the mainstay of their farming operations. (114-15)

In the novel, Ned starkly admits the “cupboard love” of the poor: they continue to support him only so long as he brings them a net gain of material comfort. Nevertheless, he’s also quick to credit the rumor that poor farmers would rise up and revolt at his command. Was he perhaps duped by the very journalists he despised? Many newspapers vastly over-reported the number of his supposed “sympathizers,” in order to whip up support for a draconian law leveled against anyone appearing to assist the Gang (Castles 115-16).

Carey captures the desperation, and freedom, of men condemned to “outlawry” under that draconian law. The colonial legislature hurriedly passed the Felons Apprehension Act to wipe out the Kelly Gang. (Read a detailed analysis here.) The ancient English writ upon which the new law was based literally pronounced its subject to have the legal status of a wild animal — caput gerat lupinum (“Let his be a wolf’s head”). He was stripped of all legal rights and could be lawfully killed on sight by anyone. One finds here disturbing parallels to twenty-first century anti-terrorism laws (see Nick Bleszynski’s book). Astoundingly, though, once outlawed, a person could no longer be tried, for a second time, in the normal way. Nor could he be held legally accountable for anything he does after he’s declared an outlaw. These constitute the bizarrely logical consequences of having no legal personhood! [See my endnote #2.]

Once outlawed, the historical Ned Kelly certainly knew he faced mortal danger (his celebrated armor notwithstanding), and he acted accordingly. He daringly robbed banks, attacked towns, and tried to derail a train filled with policemen, among many other exploits. He also created a new legal regime of sorts, by issuing an executive “order” in the final paragraph of his Jerilderie Letter:

I give fair warning to all those who has reason to fear me to sell out and give £10 out of every hundred towards the widow and orphan fund and do not attempt to reside in Victoria but as short a time as possible after reading this notice, neglect this and abide by the consequences, which shall be worse than the rust in the wheat in Victoria or the druth of a dry season to the grasshoppers in New South Wales[.] I do not wish to give the order full force without giving timely warning. but I am a widows son outlawed and my orders must be obeyed.

Carey beautifully stages how Ned might have felt living like a hunted “wild animal,” literally outside of the law: He becomes enraged, forlorn, then increasingly megalomaniacal, and he more confidently assumes the mantle of a revolutionary and a potential martyr. But, as I alluded to above, he also intensifies his effort to manipulate and create the law. Again and again, the fictional Ned (even more than the real one) enacts his new mantra: “We would write our own damned history from here on.” For one thing, Carey extracts from the above-quoted Jerilderie passage but substitutes even more dramatic language. Furthermore, Carey’s hero defends himself in front of the countrymen he is holding captive at Faithfull’s Creek, in a mock trial of sorts (“before a jury of our peers”). He concludes that they acquit him of multiple counts of murder on grounds of self-defense, with some jury nullification thrown in.

Historically, the Victorian prosecutors had to carefully scrutinize the evidence to find hangable offenses with which to try Ned to a unanimous verdict. In the novel, however, the bandit seems mistaken about the scope of available defenses. True, the Ned character knows a fair amount of law: He plausibly threatens to sue for slander; he quotes his lawyer (e.g., “time is of the essence”); he recognizes exactly when he becomes a participant in highway robbery in the eyes of the law. Yet he seems to believe that he could be exonerated for three different shootings (Bill Frost, Fitzpatrick, Strahan) in defense of third parties. He’s apparently oblivious to the felony murder rule, in force at that time and place.

Is he oblivious? Or is he “writ[ing] his own damned history” for an alternative court? Is he deluding himself, or us?

Above all, Ned appropriates legal concepts. Thus, when his victims try to verbally outwit him (nowhere near a courtroom or notary), he accuses them of “perjury.” He uses self-help to recover a horse to which he believes he has a “right.” When in danger of arrest, he has his alleged victim’s testimony transcribed “as evidence.” And so forth. As much as anyone writing an autobiography, the narrator becomes the hero of his own tale, and in this tale, he struggles to triumph over or through the law. The novelist’s technique here enhances our understanding of Ned’s psychology, our own gullibility, and the reach of legal imagination and power. [See my endnote #3.]