Trials and demands

Although the Riot Enquiry, which reported on 17 November, expressed general satisfaction with affairs in Ballarat, it recommended the dismissal of Police Magistrate Dewes, whose close links with James Bentley were exposed and Police Sergeant-Major Milne, whose activities included bribery and corruption, on which Hotham acted quickly on 20 November. [1] It also noted that the most important cause of alienation was the gold license. Hotham had already concluded that a full-scale investigation was needed after his visit to the goldfields in August and on 16 November had established a Royal Commission to Inquire into the Condition of the Goldfields of Victoria, something more wide-ranging than the Riot Enquiry. [2] Chaired initially by William Haines[3] and supported by fellow Legislative Councillors John Pascoe Fawkner, John O’Shanassy, William Westgarth and James Strachan [4] and by William Wright, the Chief Commissioner, its report proved to be a ‘document of crucial importance’. [5] Commissioner Rede was in Melbourne during the second and third weeks of November attending the trial of Fletcher, McIntyre and Westerby and took the opportunity to meet with both Wright and Hotham. He was increasingly convinced that problems in Ballarat were the result of a small group of ‘foreigners’ who wanted to overthrow colonial government and who were manipulating the other diggers. Hotham took a less serious view of the Ballarat incidents recalling most of the troops sent to restore order after the riot on 17 October though he agreed with Rede on limiting the influence of known troublemakers.

On Saturday 18 November, the trial of James Bentley, Catherine Bentley, John (or Thomas) Farrell and William Hance in Melbourne’s Supreme Court began. Judge Redmond Barry presided over the case; Richard Ireland acted as Counsel for the Bentleys, while A. Michie and Mr Whipman represented Thomas Farrell and William Hance respectively. Crown Prosecutor, Attorney-General W. F. Stawell, presented evidence that had been previously used in the inquests and magisterial hearings, but on this occasion called two new witnesses, who would alter the fate of the accused. [6] Michael Welsh, who lived at the Eureka Hotel, testified that on the night of Scobie’s murder he saw the victim arguing with William Hance through the broken window of the hotel. This evidence was supported by the testimony given by Mooney that revealed Bentley’s and Farrell’s attempts to conceal what had occurred in the early hours of that morning. The jury took only fifteen minutes to convict Bentley, Hance and Farrell of the manslaughter of James Scobie but Catherine Bentley, now heavily pregnant was acquitted. On 20 November, they were sentenced to three years hard labour on the roads. [7]

The same day, Redmond Barry began the trial of McIntyre, Fletcher and Westerby who were represented by Richard Ireland. During the trial, Ireland stated that had the authorities been more vigilant in dealing with the death of James Scobie, the diggers would not have felt compelled to seek their own form of justice. Stawell, taking great offence on the government’s behalf, retorted that the motive behind Ireland’s inflammatory statement was monetary, a claim the defence counsel vehemently denied, stating he was defending the three diggers pro bono. Despite evidence from Assistant-Commissioner Amos and others that McIntyre had tried to save property from the hotel and Fletcher was only a spectator, several witnesses against McIntyre had submitted depositions of his active involvement in the destruction of the hotel. [8] The jury retired in the afternoon to discuss its verdicts but returned two hours later claiming it could not reach a unanimous verdict seeking permission to take account of the ineptitude of the police on the day and the provocation experienced by the diggers. Redmond Barry emphatically refused the request. At around 9 pm after deliberating for five hours, the jury returned its verdict to the court. McIntyre, Fletcher and Westerby were found guilty with a recommendation for clemency. The jury expressed its opinion that ‘it would never have been their painful duty to give such a verdict had the Government officials at Ballarat done theirs’, a declaration well received in the community. The crowd in the courtroom asserted its jubilation with loud cheers, even though Judge Barry refused to accept the jury’s rider, itself an unorthodox decision. The following day, Redmond Barry handed down less harsh sentences than were anticipated: McIntyre three months, Fletcher four months and Westerby six month in Melbourne Gaol. Barry’s leniency may have been intended to avoid providing further grievances among the diggers and prevent further acts of civil disobedience. The Argus concluded:

In this trial, as in that of Bentley, the law has been upheld; but, in both cases, the Government has been disgraced. The verdict of the jury, in the case of the riot was as adverse to the Government as it was to the prisoners. [9]

On Monday 27 November, the Ballarat Reform League’s representatives John Humffray, Thomas Kennedy and George Black went to Melbourne to meet Hotham, but without success. [10] The deputation put the diggers’ grievances before Hotham, the Colonial Secretary and Attorney-General were also present, not as a petition, but as demands. Evans commented:

I never heard of anything more ridiculously absurd. No man in his senses can believe for a moment that the Governor will recognize the word demand in a petition. It is easy to guess the result of it. [11]

George Black ‘demanded’ the release of McIntyre, Fletcher and Westerby ‘in the name of the Ballarat diggers’. Hotham unsurprisingly took exception to the use of the word. Black pointed out that it had been requested by the Reform League Committee and reiterated that all the diggers felt that they were guilty of arson but were justified in their actions as the magistrates had failed to dispense justice. Hotham argued that he had set up the Board of Enquiry that uncovered corruption on which he had already acted and that he had also appointed a Royal Commission though Black objected that its members had been appointed without reference to the diggers. Although emphasis has been placed on the diggers’ ‘demand’, the minutes of the meeting suggests that it was more wide-ranging dealing with the broader constitutional and political issues raised by the diggers. Humffray emphasised the constitutional nature of the protest but intimated to Hotham that the ‘popular voice’ needed to be heard. Hotham appeared willing to make some concessions offering to admit one elected digger representative to the Legislative Council immediately but Black felt that this was insufficient. The delegates were reminded of the benefit to the diggers in the new legislation that was then en route to England and the meeting ended. The delegates, who found Hotham fair but certainly not conciliatory, left the meeting with only a vague hope that a formally prepared petition might bring success and returned to Ballarat to consult with their members. Hotham and the moderate reformers had lost their last opportunity for reconciliation.

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[1] Riot at Ballarat, Report and Evidence of the Board of Enquiry into the Death of James Scobie and Burning of the Eureka Hotel, printed 21 November 1854, Votes & Proceedings, A.27/1854-55. See also, ‘Legislative Council’, Argus 22 November 1854, p. 4.

[2] ‘Legislative Council’, Argus, 17 November 1854, p. 4. Anderson, Hugh, (ed.), Report from the Commission appointed to inquire into the Condition of the Goldfields, first published 1855, (Red Rooster Press), 1978, pp. 116-120.

[3] Malone, Betty, ‘William Clark Haines (1810-1866)’, ADB, Vol. 4, pp. 315-317.

[4] Brown, P. L., ‘James Ford Strachan (1810-1875)’, ADB, Vol. 2, p. 492.

[5] H. V. Evatt’s introduction to Carboni, Raffaelo, The Eureka Stockade, first published 1855, (Sunnybrook Press), 1942, p. xxvi.

[6] The brief for the prosecution documents the ways in which it planned to conduct its case against those accused of Scobie’s murder, PROV 5527/P Unit 1, Item 5.

[7] ‘The Trial of Bentley’, Argus, 20 November 1854, p. 4.

[8] PROV 5527/P Unit 1, Item 8.

[9] Argus, 21 November 1854.

[10] Minutes of the meeting between Hotham and the diggers’ representatives: PROV 1095/P Unit 3, Bundle 1 no. 16. Ibid, Molony, John, Eureka, pp. 106-110, gives a riveting account of the meeting. See also, ‘Ballaarat’, Argus, 29 November 1854, p. 4.

[11] SLV, MS 13518, Charles Evans, Diary, 26 November 1854, p. 116.