No. 113
31st December 1864
I have the honor to acknowledge the receipt of your Despatch No 55, 29th October 1864 wishing some further explanation of the reasons which induced me to set an Indian Convict named at liberty.
Those reasons are chiefly deducible from the letters of theChiefManuscript image Chief Justice and Mr Sebright Green which accompanied my Despatch No 60 of the 23rd August 1864.
The Indian tribes hold it to be a sacred duty to avenge the death of a relative by killing a member of the offending tribe. A near relative of How-a-Matcha had been murdered. The Chief of his tribe applied to Mr Sebright Green who came to Victoria to represent the case to my Predecessor, and obtain redress according to our laws. Sir J. Douglas (quoting MrGreen'sManuscript image Green's words) "told him in reply that he could not interfere and must leave the Indians to settle the matter themselves and he told the old Chief (of 's tribe) the same."
It is not surprising that under this implied sanction a savage adopted the custom of his own bloody code.
With this fact in evidence, the Jury having properly found guilty of murder, at the same time recommendedhimManuscript image him to mercy, and the Judge joined in that recommendation.
I could not without greatly offending the Indian sense of justice, and violating my own judgment (and that of my Council) under these circumstances authorize the execution of this man.
It may be thought that some lesser penalty ought to have been inflicted, and that this man ought not to have been set at liberty unpunished. In adopting this latter course IwasManuscript image was influenced by the following considerations.
1st had undergone a lengthened imprisonment previous to trial—in itself a great disgrace in the eyes of Indians.
2nd In a very ill-regulated Gaol such as that at Victoria he would have been demoralized and degraded.
3rd I was assured by missionaries, Protestant and Catholic, that a Free Pardon would be accepted as a great boon by the culprit'stribeManuscript image tribe and insure their future loyalty and good behaviour, and lastly, it afforded me an opportunity of reconciling two hostile, and contiguous tribes in which I am happy to say I have entirely succeeded.
I have the honor to be,
Your most obedient Servant
A.E. Kennedy
Minutes by CO staff
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Mr Elliot
I much fear that Sir Jas Douglas' policy was to let the Indians act pretty much as they liked, provided they did not kill a white man; and to keep the Home Govt entirely in the dark.
On this further explanation of the Governor's I have only to repeat the opinion I expressed on 9624.
ABd 1-3
Governor Kennedy reported his havingManuscript image pardoned an Indian for murder under circumstances of apparently doubtful expediency. Mr Cardwell therefore asked for an explanation, although with a special intimation of his confidence in the Governor's judgment and experience. In the mean time we have heard from Governor Kennedy of his having executed two other Indians for murder, thus showing that he would not shrink from that duty when necessary. Such are the circumstances under which the present explanation arrives: it will be for Mr Cardwell's jdugment, but I am disposed to think that the Governor might be told that it is satisfactory?
TFE 3 March
I think so.
CF 4
EC 6
Other documents included in the file
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Draft reply, Cardwell to Kennedy, No. 17, 14 March 1865, approving of Kennedy’s explanations.