No. 1, Miscellaneous
2nd January 1865
1. I have the honor to acknowledge the receipt of your Despatch No 59 dated 1st November 1864 enclosing the copy of a letter addressed to you by the Governor of the Hudson's Bay Company accompanied by numerous enclosures on the subject of steps recentlytakenManuscript image taken by me to protect the public from encroachments upon the Park at Beacon Hill, Victoria.
2. I regret very much that you should have been troubled with this matter, which arises out of the Crown Lands dispute still unsettled between the local Government and Hudson's Bay Company, and which commenced and was carried on with great virulence long before I assumed the Government.
3. Mr Roderick Finlayson'sactionManuscript image action in this matter does not appear calculated to solve the difficulty or allay the bitterness with which this complicated question has been discussed.
4. Mr Finlayson is one of those Gentlemen nominated by the Crown to a seat in the Legislative Council to aid and assist me in the Government of this Colony, and I apprehend it would have been more in accordance with courtesy and custom had he consulted me or asked forexplanationManuscript image explanation on this subject (which would have been readily given) before he transmitted an incomplete correspondence on a matter which he must have known to be very incorrectly stated.
5. Mr Medana, the complainant on this occasion, is an Italian, formerly I am informed a ped[d]ler in California. He is now what is here termed a "speculator" and derives income from property which he rents from Mr Dallas lately Chief Factor of the Hudson'sBayManuscript image Bay Company at Victoria, or from the Company itself. He resides on and is I believe possessor of the property formerly owned by Mr D'Ewes lately Postmaster here.
6. The receipt of your Despatch was the first intimation I had of any individual save Mr Medana being aggrieved by my final decision on this subject.
7. I will state this case as shortly as may be to render it intelligible, premising that it is only a part of a much larger,andManuscript image and more important one, and is I presume put forward to obtain a decision regarding the larger question on a very small issue.
8. Some time in the month of July 1864 it was brought to my notice that unauthorized openings were being made into the public Park on the west side at the points marked (on the map herewith) 1, 2, 3, 4—that trees had been cut down at a point admittedly Crown property to effect an opening and junction between the ParkandManuscript image and a public house newly erected on the verge of the Park, and within a few yards of the "track" of the Race Course.
9. Having consulted the Surveyor General, the Attorney General and my Executive Council, they were all of opinion that these projected entrances to the Park were unauthorized and illegal, and advised that fences should be placed on the Park boundary to resist on the part of the Crown any claim for right of way which mightbeManuscript image be hereafter made on the ground of custom or usage.
10. This being done, a few persons headed by Mr Medana held what they are pleased to term a "public meeting" and passed certain strongly expressed Resolutions which are transmitted by Mr Finlayson.
11. I received a Deputation presenting these Resolutions, explained the facts of the case, and the object in erecting the fences, and directed gates to beplacedManuscript image placed at any and every point required for the convenience of those residing in the vicinity.
12. The Deputation (including Mr Waddell the Secretary to the Meeting) retired satisfied with the explanation offered and my expressed desire to meet their wishes in every way consistent with my duty to the Crown and to the Public.
13. Not so with Mr Medana who carried on the correspondence as submitted to you, and subsequently applied to the Board of Commissioners (vide No 8 of his correspondence).
14. IfManuscript image
14. If the fencing had been illegal as asserted Mr Medana or Mr Finlayson had a simple remedy by application to the Courts of Law which they did not hazard to do.
15. The rights of the Crown and the public having been thus asserted the temporary fences were removed and Mr Medana's ground of complaint removed with them, till the Crown or private individuals again object to this cutting up of the public Park and test Mr Medana's right of way in a Court of Law.
16. ItManuscript image
16. It is quite true as Mr Medana states that he or some one I presume under his directions pulled down and carried away a portion of the fencing during the night and under cover of darkness, but Mr Medana omits to convey the opinion of Mr Waddell (the Secretary to the Public Meeting) on the proceeding—an omission which I now supply in the copy of a letter addressed to me by Mr Waddell on that occasion.
17. I also transmit my reply to the Presentment of theGrandManuscript image Grand Jury (No 2 in Mr Medana's correspondence) which that Gentleman has also omitted.
18. Since Mr Finlayson has thought it fitting to endorse the commentary of a very low newspaper by which Mr Medana supports his case, it may be satisfactory to you to see the accompanying extracts from another local paper which much more nearly represents public opinion and which I enclose.
19. The roads and highways in the District are vested by law in the Road Commissioners, andtheManuscript image the letter from that body enclosed by Mr Medana dated September 1st 1864 and signed "John Tod," I think is a sufficient answer to all Mr Medana's complaints.
20. Mr Medana's imputations that I influenced the Road Commissioners is wholly untrue. I had no communication with them of any kind whatever and only learned their opinion by the publication of their letter in the newspaper.
21. I enclose a map to render the subject intelligible, a glanceatManuscript image at which will account for the strong feeling on the part of the public that the local Agents of the Hudson's Bay Company have not dealt fairly with them.
22. The triangular piece marked red it is alleged (and I believe partially admitted) was abstracted by the local Agents of the Hudson's Bay Company from the Public Park, subdivided and sold, and out of this the present question arises. This proceeding is regarded by the public (and I think not without reason) as a great grievanceandManuscript image and breach of faith—if not an illegal act.
23. I trust it is needless for me to assure you that in the course I have adopted I have been actuated solely by what I conceived and still consider to be my duty to the Crown and the public, and that I have protected those rights without discourtesy or substantial inconvenience to anybody.
24. I cannot conclude this Despatch without expressing my belief that a course of actionhasManuscript image has been adopted here by local Agents of the Hudson's Bay Company in reference to public lands in this Colony which would not meet the approval of Sir E. Head or the Company he represents if fairly put before them.
25. The discussion of the Crown Lands question has been carried on with all the bitterness of a family quarrel, and I cannot be surprised that my attempt at impartiality has met with little success in Mr Finlayson's estimation, whom I cannot but consider as the real,andManuscript image and Mr Medana the nominal complainant only on the present occasion.
26. I transmit a copy of queries addressed to the Acting Surveyor General with his replies thereto, accompanied by an explanatory map to illustrate this subject.
27. I must in conclusion draw your attention to the fact that the Presentment of the Grand Jury (marked No 2 in Mr Medana's correspondence) on which much stress is laid, does not in any way impugn the legality oftheManuscript image the proceeding complained of, suggesting only that the public rights should be protected by means consistent with the private convenience of the complainants.
I have the honor to be,
Your most obedient Servant,
A.E. Kennedy

The Rt Honble
Edward Cardwell
&c &c &c
Minutes by CO staff
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Mr Elliot
To me it appears that the Governor has returned a satisfactory answer, and something more, to the Complaint of the H.B.Co. But, before any communication is addressed to the Company Mr Cardwell, may perhaps wish, as this is a land subject, to have the opinion of the Land & Emn Commrs.
ABd 1-3
Mr Fortescue
This appears plainly a case, as Mr Blackwood suggests for a report from the E. Comrs?
TFE 1/3
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To L & E. Commrs at once.
CF 2
Documents enclosed with the main document (not transcribed)
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Memorandum, Kennedy to B.W. Pearse, Acting Surveyor General, forwarding a number of queries relating to the disposition of land in the park, and his replies thereto, signed by both men, 30 December 1864.
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J. Waddell to Kennedy, 29 August 1864, denouncing the actions of the person who removed a portion of the fence and avowing a continued acceptance of the governor's actions in the matter.
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Henry Wakeford, Acting Colonial Secretary, to Chief Justice, 10 August 1864, advising that the governor would act to prevent the establishment of the unauthorized entrances but would "immediately order gates to be placed at any point necessary for the convenience of individuals on their making personal application and pending the final adjustment of this question."
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Newspaper clippings, The Daily Chronicle, 1 and 4 August 1864, detailing the dispute over unauthorized entrances to Beacon Hill Park and discussing other questions relating to the subject.
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Two copies of a map showing Beacon Hill Park and the surrounding lots, as per despatch.
Other documents included in the file
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Elliot to Emigration Commissioners, 8 March 1865, forwarding correspondence relating to the enclosure of Beacon Hill Park for their observations and suggestions.