Saturday, 12 November 2016

Preparing for trial

Anxiety was especially expressed about whether the uprising was caused by ‘foreigners’. It is never specified how or why these foreigners stirred up unrest, but it widely believed that they had been involved. Hotham was happy to subscribe to this; deflecting blame is always a useful strategy when under pressure. This may explain why Hotham made great effort to point out the number of Irish and other ‘foreign’ nationals in his despatches. Commissioner Robert Rede had expressed his concerns in late November 1854:
…if I can believe the information I have received they are in a most insidious manner urging on the mob without shewing themselves and I can only suppose it is with the view of Americanising this Colony. [1]
Despite the assertion of James Tarleton, the American Consul that no Americans were involved, three of the prisoners were his fellow countrymen. [2] Although John Joseph an African-American was charged with High Treason, Captain James McGill and Charles Ferguson, both participants in the Eureka Stockade, were freed within two days of their arrest. [3] Ferguson maintained that he had been forcibly seized by the rebels and that his participation had been involuntary. [4] This led to the suggestion that Hotham connived to give them immunity but decided that a ‘man of colour’ among those charged with High Treason would strengthen the Crown’s case that foreigners not the British were behind the rebellion. [5]
Between Thursday 7 and Saturday 9 December, Police Magistrate E. P. S. Sturt began to sift through the evidence on the 114 prisoners detained at Ballarat to see whether there was sufficient to support the charge of treason. [6] The depositions taken, largely from troopers and police involved in the attack and from some eyewitnesses, attempted to identify each prisoner’s level of involvement as they were brought into custody. These signed statements and other documents were then forwarded to the courts and formed the basis of the prosecutor’s brief. [7] Although over 100 men had been arrested, the cases against all but 13 were dismissed for lack of evidence. Those charged with High Treason were James Beattie, James Campbell, Raffaelo Carboni, Thomas Dignum, Timothy Hayes, John Joseph, John Manning, William Molloy, John Phelan, Henry Reid, Jacob Sorenson, Michael Tuohy and Jan Vennick (John Fenwick). The choice of which diggers were charged appeared to be arbitrary. Carboni and Hayes were not within the Stockade during the attack and of the thirteen eventually committed for trial, Carboni said had never seen seven before.
In addition to the diggers, Henry Seekamp, the editor of the Ballarat Times was arrested on 4 December 1854 and charged with seditious libel. [8] Although he had written critically of the government on several occasions, it was the article written on 2 December that proved crucial.
Instead therefore of the diggers looking for remedies where none can be found let them strike deep at the root of rottenness and reform the Chief Government…The voice of the people must be raised for a free and British constitution and their wishes enforced by the strongest means…To allay the present tumult the rights of the diggers then their demands must be satisfied to the fullest extent. They are neither preposterous nor unEnglish. They are just and right. If they are not satisfied the gathering clouds of popular indignation will burst like a whirlwind over guilty and unsuspecting heads and sweep the length and breadth of the land.[9]
On 23 January 1855, before Chief-Justice, Sir William a’Beckett he was found guilty of publishing seditious articles prior to the attack and was jailed to await sentence. [10] Nonetheless, there was a strong recommendation for mercy because it had not been proved that he had been the writer or that the articles had been published with his knowledge or consent. [11] When he appeared for sentence, Seekamp expressed regret that the articles had been written. His counsel read affidavits from John Dunmore Lang and John Manning, stating that they had written the seditious articles without Seekamp’s knowledge or consent when he was absent in Melbourne. The Chief-Justice said he wanted to give Seekamp the opportunity to state all the facts on affidavit and would reserve the judgment of the court until late March. He made clear that despite the Manning and Lang affidavits, the Court needed clear evidence of two things. Had Seekamp done all in his power to prevent the appearance of the articles in question and also had he taken steps to counteract their effect after they appeared. Seekamp was then released on bail. [12] However, when he failed to repudiate the articles, the Chief-Justice said he had ‘clothed himself with sedition so long as it paid, so long as he found it warm and comfortable; but when he found the garment intolerably hot, he dropped it’. On 26 March, a’Beckett, his patience exhausted by the legal delays, told him that no sane mind could doubt the ‘grossly seditious character’ of the libels and that it was a reasonable legal doctrine that the editor of a newspaper should be responsible for its contents.[13] Seekamp was then sentenced to six months in jail but was released on 28 June 1855, precisely three months early. [14] This case proved to be the only success in the government’s campaign against the diggers.

[1] Rede to Wright, 30 November 1854, PROV, VPRS 1189/P Unit 92, J54/14459.
[2] Tarleton to Hotham, 4 December 1854, PROV, VPRS 4066/P Unit 1, December 1854 no. 17.
[3] Ibid, Molony, John, Eureka, p. 178.
[4] Ferguson, Charles, Experiences of a Forty-niner in Australia and New Zealand, (Williams Publishing Company), 1888, reprinted, (Kessinger Publishing), 2004, pp. 275-301.
[5] See, ‘The Governor and the Foreigners, To the Editor of the Argus’, Argus, 22 January 1855, p. 5, and ‘Amnesty to Americans’, Argus, 23 January 1855, p. 4, was highly critical of what it termed as ‘favouritism towards American citizens…displayed by Sir Charles Hotham’.
[6] ‘Ballaarat’, Argus, 9 December 1864, p. 5, reported activities in Sturt’s court on 6 December; ‘Ballaarat’, Argus, 12 December 1854, p. 5, for 7 December. Ibid, Molony, John, Eureka, pp. 176-192, and Serle, pp. 172-176, consider the trials and the process leading up to them. Fricke, G. L., ‘The Eureka Trials’, Australian Law Journal, Vol. 71 (1), (1997), pp. 59-69, and Lynch, Philip, ‘Juries as communities of resistance: Eureka and the power of the rabble’, Alternative Law Journal, Vol. 27 (2), (2002), pp. 83-86.
[7] Ibid, Carboni, Raffaelo, The Eureka Stockade, pp. 118-119, gives an account of this process.
[8] Brief for the prosecution: PROV, VPRS 30/P Unit 40, Case no.23, Criminal Sessions M includes extracts from his so-called ‘seditious writings’.
[9] Ballarat Times, 2 December 1854.
[10] Coppel, E. G., ‘Sir William a’Beckett (1806-1869)’, ADB, Vol. 3, pp. 10-11. Bennett, J. M., Sir William a’Beckett, (Federation Press), 2001, pp. 60-72, considers the Eureka trials.
[11] ‘Supreme Court, Criminal Sessions, Tuesday 23 January 1855, p.4, ‘Domestic Intelligence’, Argus , 26 January 1855, p. 5.
[12] ‘The Ballaarat Riots’, Argus, 6 February 1855, p. 5.
[13] ‘The State Trials’, Argus, 24 March 1855, p. 6.
[14] Kirkpatrick, Rod, ‘Eureka and the editor: A reappraisal 150 years on’, Australian Journalism Review, Vol. 26, (2), (2004), pp. 31-42.

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