Wednesday, 30 November 2016


On Tuesday 12 December, the prisoners were quickly removed from Ballarat to Melbourne under heavy escort, to await trial in the Supreme Court. [1] They held at the Melbourne Gaol, where the cramped conditions and harsh treatment were, if anything worse than conditions had been in Ballarat. The prisoners were so appalled at their treatment they eventually submitted a letter to the Sheriff appealing for clemency.
We therefore humbly submit that, as the State only looks at present to our being well secured we ought to be treated with every liberality consistent with our safe custody, and that any unnecessary harshness or arrogant display of power, is nothing more or less than wanton cruelty. Some of us for instance, could while away several hours each day in writing, an occupation which, while it would fill up the dreary vacuum of a prison life, would lend elasticity to the mind, as would the moderate use of snuff and tobacco, cheer it and soothe that mental irritation consequent upon seclusion. But that system of discipline which would paralyse the mind and debilitate the body – that would destroy intellectual as well as physical energy and vigor, cannot certainly be of human origin[2]

The Crown needed to demonstrate object, design and intention. As well as levying war against the Crown, the definition of High Treason included acts preparatory to rebellion including drilling armed forces, stockpiling arms and ammunition and so on. The Attorney-General, William Stawell faced several difficulties in making the case for High Treason. [3] The rebels were organised in great numbers and in a warlike manner. The Stockade was an armed camp and drilling suggested a degree of military organisation. Whether this constituted an overt act of levying war against the state is debatable though it could be seen as preparatory. Lalor always argued however that the function of the diggers’ camp was defensive not offensive. Also the state needed to show that the diggers had a more general purpose by seeking subvert the authority of the Crown and force a change in established policy or law. The Crown suggested that there was a planned, prior conspiracy and that this was shown by three things. The meeting on Bakery Hill on 28 November and the swearing in of volunteers under the Southern Cross the following day suggested conspiracy. Drilling, the collection of arms, ammunition, provisions, and stores without payment, and the construction of the Stockade demonstrated planning. Since Stawell maintained that it was the rebels who fired first without challenge or parley, the resistance and attack on the troops and police, on 3 December was evidence of levying war. Even so, this proved difficult to sustain. Finally, treason was not necessarily proven if it could be shown that they intended to correct some local or private grievance: the rebels could argue that they were seeking to end the unfair administration of the goldfield.
On Monday 15 and Tuesday 16 January 1855, the prisoners were brought before Sir William a’Beckett, in the Supreme Court of Victoria, to answer the charges laid against them and to select their defence counsel. [4] The trials finally began on Thursday 22 February 1855 when Attorney-General William Stawell, who prosecuted at all the trials, commented:
…so long as we are interested in the maintenance of law and order, so long must we feel the greatest and deepest importance in the result of a trial of this kind. [5]
The daily proceedings of the trials were reported in both Melbourne newspapers, the local papers of Ballarat and Geelong and also in NSW. They were often the subject of scathing editorial and public comment, particularly in the Age in Melbourne that made no apologies for its criticism of the government. The prisoners were placed at the bar and answered to their names. [6] As they had already received a full written copy of the charges against them, a summary was read. Each of the prisoners was then required to enter a plea. Timothy Hayes was first to plead, but his defence lawyers delayed this due to a minor discrepancy on the indictment. He eventually pleaded not guilty later that morning, after the twelve other prisoners had responded similarly to the charges. The prisoners appeared in the order they were listed in the indictment. Timothy Hayes and then Raffaelo Carboni were to be tried first, but this was delayed by their counsel due to the absence of key witnesses. John Manning’s case was also delayed as his lawyer was reportedly too ill to attend. This meant John Joseph, the African-American from Boston, was the first to be tried. [7]
The charge against Joseph stated:
He had made war against our Lady the Queen in order to subvert authority, he had tried to injure her and force her to change her measures and counsels, he had attempted to deprive her of authority in this colony and, finally he had killed and wounded her soldiers and other loyal subjects. [8]
The first test of the legal process came with the selection of the jury. The Crown challenged the inclusion of Irish jurors, publicans and other questionable persons. Joseph brought the court to a standstill when he called out that he objected to the inclusion of gentlemen and merchants on the jury. It took some time for the laughter in the courtroom to subside and jury selection to continue. No Irishmen found their way into the ranks of the jury, although two ‘gentlemen’ and a publican were selected. Opening for the Crown, Stawell emphasised the monstrous nature of the offences and their wider implications for the newly formed colony. He also clarified the definition of treason for the jury, as it was the first case of treason to be heard in the colony. Stawell then provided an overview of the events leading up to the attack on the Stockade making particular reference to the drilling of diggers and the oath taken by them to fight for their rights and liberties under the flag of the Southern Cross.

Evidence was then heard from eleven witnesses. They testified to Joseph being drilled on the days leading up to the battle. Six witnesses said that Joseph had been seen ‘distinctly’ in the Stockade during the battle, armed with a double-barrelled gun and two witnesses claimed they saw him discharge his gun at the soldiers. One witness claimed he had seen Joseph firing this gun in the direction of Captain Wise, who later died of his wounds. Finally, he was arrested in a tent from which many shots had been fired; many persons having been found dead and wounded in it and several stand of recently discharged arms were found lying on the floor. The defence counsel, Butler Cole Aspinall and Henry Chapman, did not call any witness and based their case solely on the non-existence of any treasonable intentions. The Attorney-General concluded by arguing that the evidence presented was sufficient to convict the prisoner on all counts and urged the jury to ‘hang a nigger for the governor’. However, after deliberating for half an hour, the jury returned a verdict of not guilty. [9] The courtroom erupted, the cheering at the verdict so affronted the Chief-Justice, he singled out two members of the public (George Gordon and John Keogh) and jailed them for a week for contempt of court. [10] Joseph was placed on a chair and lifted above the crowd of possibly up to 50,000 people, over a quarter of Melbourne’s population in 1855 that then carried him through the streets of the city.
Four days later, on 26 February, John Manning, probable author of some of the seditious articles in the Ballarat Times, was also tried. [11] The evidence against him was largely circumstantial and there was little attempt to show he had taken part in the events in the Stockade. The jury promptly acquitted him. Hotham and Stawell were outraged and decided to delay the other trials to allow pro-digger public opinion to decline and then empanel new jurors.[12]  Stawell’s justification for this was:

He said, two prisoners had been already tried on a charge of high treason this session, and both acquitted. In neither case had any evidence been called for the defence, but the prisoners’ counsel had rested entirely on the case brought forward by the Crown. He did not wish to question the verdict of a jury-a verdict of twelve men solemnly sworn to decide according to the evidence; and therefore, although he held a strong opinion of his own, from the evidence adduced, and the verdict found, he would not now express it. The offence, however, for which the prisoners were arraigned was of so serious a character, and of such vital importance to the community at large, that he felt it was not safe to proceed to trial with the present panel. He would therefore ask His Honor to remand the prisoner until next Criminal Sessions. [13]

This manoeuvre was widely criticised, but did not have much effect. [14] On 12 March, a poorly attended public meeting of 150 people was held near St. Paul’s Church, Melbourne to protest about the postponement. [15] Nevertheless, in Bendigo, a resolution was passed by diggers on 13 March strongly condemning the government’s handling of the state trials and the ‘unbecoming desire for vengeance’ that this conduct demonstrated. [16] Judge Redmond Barry tried the remainder of the cases. [17] A week later, the trial of Timothy Hayes, rightly regarded in Ballarat as a ringleader in the whole movement, began but again the jury returned a not guilty verdict. [18] It is surprising is that Hotham and Stawell persisted with the trials after these rebuffs apart from their belief that even a single conviction would give a semblance of justification. Judicial process now turned to farce. Two further ‘foreigners’, Italian Raffaelo Carboni and Dutchman Jan Vannick, were acquitted on 21 and 22 March. [19] The following day, Irishmen James Beattie and Michael Tuohy were found not guilty and three days later Austrian born Thomas Dignum was suddenly set free without a trial. [20] On 27 March, the remaining prisoners, Henry Read, James Campbell, Jacob Sorenson, John Phelan and William Molloy were tried together and also all acquitted. [21] With each ‘not guilty’ verdict, the courtroom erupted into celebration, much to the annoyance of the Attorney-General and presiding judges.

The acquittals showed that it was impossible for the government to make a case for Treason. By prosecuting the rebels for High Treason rather than the more certain charge of sedition, an understandable position as it wished to make examples of some of the diggers, the Crown had weakened its stance from the outset.[22] Its case had been further compromised by its failure to call either Robert Rede or Captain Thomas to give evidence and its reliance on witnesses whose evidence was often shown to be questionable under cross-examination. There was frequent perjury and evidence that the Crown presented was often incoherent and inconsistent. For instance, Police trooper Henry Goodenough, who was extensively used by the government as their most effective prosecution witness, had acted as an agent provocateur, had infiltrated the Stockade as a digger and attended all the meetings, and apparently had urged the diggers to take a more aggressive approach in reaching their objectives. His reports on the diggers’ activities were exaggerated and frequently challenged by the defence. The way in which Stawell had manipulated the jury system evident in the unjustified postponement after Manning’s trial showed that the state was prepared to pervert justice to achieve its own ends. Lord John Russell summed up the situation when he maintained that it was inexpedient to charge the diggers with High Treason, a charge unlikely to convince a jury. [23] The state trials were as much political as legal in character and their failure was seen as further evidence of the authorities’ incompetence in dealing with the diggers.

Unlike in the Canadas where claims for compensation after the rebellions in 1837 and 1838 dragged on for a decade, those in Victoria were dealt with relatively quickly. The application by Patrick Curtain was typical. [24]  Curtain was in the Eureka Stockade during the attack leading the pike-men and was a claimant for injuries inflicted by the military or police, and for the destruction of his store. [25] A list of items from his store was listed of the claim, total £1,267 7s 2d of which £800 was due to creditors.[26] He declared in an affidavit dated 26 December 1854 that he took no part in the riot, directly or indirectly, any more than ‘protecting my own property’, in marked contradiction to other evidence. [27] Nonetheless, he was awarded £1,000 compensation in March 1856.[28] In total, the Select Committee of the Legislative Council dealing with compensation recommended paying £4,239 to sixteen of the nineteen claimants. Two years later, compensation was also paid to those who claimed to have incurred losses during the attack on Bentley’s Hotel on 17 October 1854 and the subsequent riot. [29] The final claim caused by Eureka Stockade was made by John Foster Vesey Fitzgerald, Hotham’s Colonial Secretary who had resigned in the immediate aftermath of the attack on the Stockade. Hotham had promised recompense for the loss of his £2,000 salary and £1,000 pension but this never occurred. Hotham’s promise was twice rejected by the Legislative Council and once by the Legislative Assembly. [30] In 1867, he visited the colony to give evidence to a Select Committee that in vain recommended his compensation. [31]

[1] Evans commented that: ‘reports appeared in the papers that Sir Charles Hotham was determined to hang the poor unfortunate fellows in his power who were found guilty. If such a horrible scheme is carried into effect there will be such a universal rising up for vengeance that Sir Charles Hotham & his satellites with all their military force will not stand against –The people of Melbourne & Geelong, the diggers and the Press are all united in one cry for a general amnesty, & it will be well for the government if they reflect before they turn a deaf ear to the public voice’. SLV, MS 13518, Charles Evans, Diary, 14 January 1855, p. 169.
[2] The letter, dated 6 February, was printed in the Age, 14 February 1855, and in ibid, Carboni, Raffaelo, The Eureka Stockade, pp. 140-143.
[3] Bennett, J. M., Sir William Stawell, (Federation Press), 2004, pp. 62-74, considers Stawell’s role in the Eureka trials.
[4] Proceedings of the Supreme Court in the matter of Queen v. Hayes and others, PROV, 1189/P Unit 95, L55/958, ‘The State Trials’, Argus, 16 January 1855, p. 4, ‘Supreme Court, Criminal Sessions’, Argus, 16 January 1855, p. 5, ‘Supreme Court, Criminal Sessions’, Argus, 17 January 1855, p. 5.
[5] ‘The State Trials’, Argus, 23 February 1855, p. 4, ‘The State Trials’, Argus, 24 February 1855, p. 4.
[6]  ‘The State Trials’, Argus, 24 February 1855, p. 4.
[7] Potts, E., Daniel, and Potts, Annette, ‘The Negro and the Australian Gold Rushes, 1852-1857’, The Pacific Historical Review, Vol. 37, (1968), pp. 381-399, gives valuable context for Joseph.  See also, Atkinson, Jeffrey and Roberts, David Andrew, ‘‘Men of Colour’: John Joseph and the Eureka treason trials’, Journal of Australian Colonial History, vol. 10, (1), (2008), pp. 75-98.
[8] ‘The State Trials, The Queen v. Joseph’, Argus, 24 February 1855, p. 5.
[9] Despatch No 38, Hotham to Grey, 28 February 1855, PROV, 1085/P Unit 9.
[10] ‘The State Trials’, Argus, 27 February 1855, p. 5, dealt with the petition of John Keogh who was sentenced to seven days in prison for contempt of court; it failed.
[11] ‘The State Trials’, Argus, 27 February 1855, p. 5, prints a transcript of the trial and acquittal.
[12] Hotham to Grey, 28 February 1855: ‘After these verdicts had been returned it was considered expedient to postpone the trial of the other prisoners until the next session, in order that in cases of such importance to the Country, the opinion of a Jury taken from another panel, might be obtained as to the guilt, or innocence, of the accused.’
[13] ‘The State Trials’, Argus, 28 February 1855, p. 5.
[14] ‘The State Trials’, Argus, 28 February 1855, p. 4, is highly critical of the decision to empanel new juries.
[15] ‘The Ballaarat Prisoners, Open Air Meeting’, Argus, 13 March 1855, p. 5.
[16] PROV, 4066/P Unit 2, March 13 1854.
[17] Phillips, John H., ‘A Black-Letter Lawyer’, La Trobe Journal, Vol. 73, (2004), pp. 23-28, and Ryan, Peter, ‘Sir Redmond Barry, (1813-1880)’, ADB, Vol. 3, pp. 108-111, provide contrasting succinct studies of Barry.  Galbally, Ann, Redmond Barry, An Anglo-Irish Australian, (Melbourne University Press), 1995 and Ryan, Peter, Redmond Barry, A Colonial Life, (Melbourne University Press), 1980, are unenthusiastic about Barry’s judicial qualities.
[18] ‘The State Trials, The Queen v. Raffaelo’, Argus, 20 March 1855, p. 5.
[19] ‘The State Trials’, Argus, 22 March 1855, p. 5. ‘The State Trials, The Queen v.Vennik’, Argus, 23 March 1855, p. 6.
[20] ‘The State Trials, The Queen v. Dignum’, Argus, 27 March 1855, p. 5.
[21] ‘The State Trials’, Argus, 28 March 1855, p. 6.
[22] The Crown would have had little difficulty proving sedition. It was a much broader crime than treason but less serious. It did not require participation in acts of rebellion; threatening the government by parading under arms or drilling under another flag was sufficient.
[23] Russell to Hotham, 2 June 1855.
[24] Claims for Compensation, Ballaarat, pp. 5-8, tabled 25 January 1856, in Anderson, Hugh, (ed.) Eureka: Victorian Parliamentary Papers, Votes and Proceedings 1854-1867, (Melbourne University Press), 1969.
[25] Ibid, Claims for Compensation, Ballaarat, p. 5.
[26] Ibid, Claims for Compensation, Ballaarat, p. 7.
[27] Ibid, Claims for Compensation, Ballaarat, p. 8.
[28] First Report from the Select Committee of the Legislative Council on the Ballaarat Outbreak, pp. iv, vi, ordered to be printed on 12 March 1856, in Anderson, Hugh, (ed.), Eureka: Victorian Parliamentary Papers, Votes and Proceedings 1854-1867, see above.
[29] Report from the Select Committee of the Legislative Council upon Ballaarat Riots—Bentley’s Hotel, ordered to be printed on 1 June 1858, in ibid, Anderson, Hugh, (ed.), Eureka: Victorian Parliamentary Papers, Votes and Proceedings 1854-1867.
[30] See, for instance the debate on the retiring allowance for Foster in the Legislative Council on 28 March 1855, ‘Legislative Council’, Argus, 29 March 1855, p. 5.  ‘The Gold-Fields Report’, Argus, 30 March 1855, p. 4, provides a critique of the document.
[31] Report from the Select Committee of the Legislative Council upon Mr J. F. V. Fitzgerald’ Case, ordered to be printed on 11 July 1867, in ibid, Eureka: Victorian Parliamentary Papers, Votes and Proceedings 1854-1867.

Saturday, 12 November 2016

In denial

One of the things that struck me particularly about last night’s Newsnight Special, was the extent to which Democrats remained in a state of denial not only about the election of Donald Trump but also about the reasons why he won.  There was a palpable sense in which they simply could not believe that their neo-liberal experiment had been rejected by a substantial proportion of the population; a remaining belief that they were the ‘establishment’ and that they had a God-given right to rule and that the people had been duped by a demagogue with promises that he would be unable to carry out.   It was the same with Brexit where few were prepared to saw the ‘Leave’ would win, something many ‘Leavers’ also thought.  The polls in both Britain and the USA got it badly wrong and political elites across Europe—with national elections in 2017—are looking with increased scepticism at polls that suggest they will win and the populist resurgence will fail.  The issues which the political establishment have failed to address are broadly the same across the western world—the benefits of global economic prosperity have not be spread across society with those that have gaining more and those without losing further; the impact of uncontrolled immigration; a burgeoning sense that government is unresponsive, unaccountable (yes we have elections but the result is simply more of the same) and corrupt; and, the overarching sense that the democratic experiment is under threat from globalism and global institutions whose power is increasingly pervasive and linked to national institutions and elites.

Old and New or Old and Old?
This sense of denial is evident in the ways in which Brexit has to date been managed.  There had been virtually no preparation in case of a Leave victory; the assumption was that Remain would win (just) and that this would give the EU such a shock that it would give the UK the reforms it wanted.  The government and civil service had done little; the Leave campaign had made lots of statements about what would happen after Brexit but had not formulated them as anything more than rhetorical flourishes.  The 24 June and 10 November—the day after the vote—found the political elites in a position they never imagined. Most British politicians say, at least publically, that they accept the ‘will of the people’ adding the all important ‘but’.  ‘But’ is the establishment’s response to the referendum.  Yes we know ‘Brexit means Brexit’ but what does Brexit mean in practice.  Apart from a few diehard ‘remoaners’, we are going to leave the EU but on what terms?  The legal decision means that triggering Article 50 means that Parliament will have a statutory input but are we talking a rubber-stamping the legislation or is it something up for debate and amending?  And the negotiations should they be left to the government…it’s right when it says that you can’t give a running commentary as it would compromise your negotiating position…or should Parliament have the final say or the people through a second referendum?  The problem with the government’s position—and the EU Commission is right here—is that it wants to be shorn of the institutional dimensions of the EU whilst retaining as closely as possible the current economic benefits of membership; a case of one foot in and one foot out, a hokey-cokey solution.  Now that really is denial.