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.
[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.
[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.’
[14] ‘The State
Trials’, Argus, 28 February 1855,
p. 4, is highly critical of the decision to empanel new juries.
[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.
[19] ‘The State
Trials’, Argus, 22 March 1855, p.
5. ‘The State Trials, The Queen v.Vennik’, Argus, 23 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.
[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.
[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.
