Acquittal

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]

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[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.

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.

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.

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[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.

Globalisation and nativism

Talking to an eminent pollster this afternoon I was struck by the number of occasions she said ‘But that’s not what was supposed to happen.’  But then she’d said the same thing after the Brexit victory in late June and she could well be in the same position if President Le Pen takes over in France.  I was also struck by the number of occasions in the weeks leading up both to Brexit and Donald Trump’s victory that commentators said that people’s common-sense dictated that they would vote for the status quo and that they would not vote for ‘walking off a cliff’.  What both victories show is that globalisation has not spread its benefits across society and that many people, especially the white working-classes, not only feel that they have been left behind by global trends but that their feelings reflected the harsh realities of economic change—deindustrialisation because things can be manufactured more cheaply abroad but government had provided no alternative economic opportunities for those who lost out.  Brexit should have warned the Democrats of the consequences of failing to listen to working-class anger…but no, the political establishment continued down their road to political emasculation undaunted.

 

 

 

 

What has happened in the last decade has been a shift in people’s attitudes to globalisation though it was already a growing force before the financial ‘crash’ of 2008.  Globalisation in the West resulted in the rich getting richer, the poor getting poorer and the middle- and working-classes feeling forgotten by an establishment whose sole aim appeared to be ‘let’s make money whatever the social cost’.  This may have been a tenable, if morally bankrupt, position while those beyond the charmed establishment circle were content with the crumbs from their masters’ tables…the financial crash changed all that.  People became viscerally angry with bankers who appeared to wield power without responsibility knowing that the state would be compelled to bail them out if things went wrong and arrogantly most appeared not to care complaining that they no longer had their six-figure bonuses slashed and expecting society to understand.  And, of course, the establishment did what was expected of them…they used tax-payers’ money to bail them out. No bankers went to jail because of their reckless roulette behaviour.  Did bankers’ behaviour change?  Well, there were a few mea culpas but then things adapted to the new circumstances and bonuses were back, interest on savings was slashed and bank profits began their upward trajectory again.  The establishment might have thought…problem solved but bailing out the banks was one thing but bailing out other industries and protecting jobs, that’s something very difficult…nationalising banks might be a good thing, but nationalising steel production that’s another thing.  So the bankers, seen as part of the establishment, were protected but steel workers were not…yes the government made all the right noises but the end result was always the same…stagnant wages, unemployment, community disintegration, deindustrialisation and cheaper foreign imports and losing out to the economic rebalancing that comes with globalisation.

At the same time that many in the working-classes felt under pressure, levels of immigration increased with growing numbers, often fleeing conflict, crossing international borders in search of economic security.  For proponents of globalisation this was a good thing…if you allow unfettered immigration then wages will fall—a simple result of supply and demand--and profits rise.  The problem was not immigration itself but its rapidity and scale…too many immigrants too quickly placed pressure on infrastructures already stretched by austerity policies across the West.  Again it was the white working-classes that disproportionately bore the brunt of this process…it was their services that were under pressure whether in education, health or housing; it was their jobs that were threatened by being undercut by cheap immigrant labour; it was their communities whose cultural character changed in a matter of a decade.  And the establishment, well, did very little…it did not provide the finance necessary for local authorities to build more cheap housing, new schools and hospitals.  Is it surprising that the level of ‘hate crime’ and racially aggravated offences increased?  In the UK, whether you could deport people or not was a matter no longer decided in London but in Brussels while in the USA support for ‘Trump’s wall’ was symptomatic of the depth of the establishment’s failure to understand people’s anger and that this anger was being directed against migrants.

Nativism and populism—usually together—tend to occur where sections in society feel that their status is in some way threatened or compromised by the uncaring attitude of the liberal political establishment.  Its character may vary but it is based on the dualism between them and us.  Brexit in many respects represented ‘institutional nativism’ where them is the increasingly pervasive interventionism of the European Union and us is the reclaiming of British sovereignty…the nativist question is where ought power in Britain lie?  The establishment had, since the referendum in 1975, maintained its support for the European Union as an economic institution though increasingly not as a political one…Britain always saw itself as ‘exceptionalist’ in relation to the EU with its non-adoption of the euro, its rebates and red lines where the hope was that the EU would reform itself at satisfy the establishment’s wish to remain a member.  Yet, for the past twenty years, the people increasingly and inexorably moved away from that political position…was promised an input through referendums that never occurred and which, had David Cameron not decided to slay the Eurosceptic dragon in his own party, would probably still be the case…there were always good reasons from the political elites not to ask the people, they might get the wrong answer (which of course they did).  As with Trumpian nativism, migration became a central issue on Brexit building a wall—whether symbolic or actual in the USA is unclear—as a means of controlling immigration though what ‘controlling’ means is unclear.  In the United States, unlike in Britain, nativism is linked to isolationism, the policy of the 1920s and 1930s…the view that we need to make America ‘great again’ at home, addressing the anger of the white working-classes among Trump’s key supporters if necessary, and unlike the UK that sees its future in global free trade, through protectionism and by building economic, political and military strength at home.

 

Brexit and Trump’s decisive victory are both revolts against neo-liberal establishments and elites that were not merely deaf to the concerns of the working-classes but never entered into any form of dialogue with them.  They appear to have assumed that they knew what the proper directions were for the UK and USA and, I suspect it never even entered their mind until it was too late, that many people thought it was the wrong direction.  The neo-liberal elites in Europe are under sustained attack.  Marine Le Pen wants France to leave the EU and will contest the presidential elections next year and so does Bepe Grillo leader of the populist Five Star Movement in Italy.  Italy will hold a constitutional referendum in December that may unseat Prime Minister Matteo Renzi.  There are also strong anti-EU parties in the Netherlands and increasingly in Germany that won a surge of support in September’s local government elections.   The liberal consensus that has been a central feature of political discourse since 1945 is now in tatters. 

 

 

 

 

 

 

Reacting to judgements

Conservative MP Dominic Grieve said the criticisms over the High Court judges' decision were ‘horrifying’ and reminded him of ‘Robert Mugabe’s Zimbabwe’.Three High Court judges found that the government could not start the formal process - the triggering of Article 50 - of leaving the EU by using the royal prerogative alone, and would need the backing of Parliament.  There have been many occasions in the past when judges have made ‘political’ decisions that have been unpopular with one group in society or another and they have faced the opprobrium of the public and not only were they regarded, to use the headline in yesterday’s Daily Mail, as ‘enemies of the people’ but especially in the thirteenth, fourteenth and fifteenth centuries paid with their lives.  This was before the ‘independence of the judiciary’ was established in the early eighteenth century.  Let us be clear, the appellate judiciary in the High and Supreme Courts are asked to make decisions on points of law and, while they may well have their own views on Brexit—it would be surprising if they did not—that was not the issue on which they were asked to adjudicate.  They were simply asked whether the government had the right to trigger Article 50 without there being a vote in Parliament. To my mind rightly, they decided that the government could not use its executive powers because it would mean effectively overturning an act of Parliament, the domain of the House of Commons and House of Lords.

 

 

Labour has urged the government to come out and defend the three judges behind the controversial High Court ruling on the process of leaving the EU and  called the silence of Justice Secretary Liz Truss ‘embarrassing’ and said she had ‘let down’ the judiciary. 

The reaction to the judgement highlights the ignorance many of us have about the nature of the judiciary and the basis on which it makes decisions.  While the effect of the judgement has political consequences, it was not—and this was something the judges recognised in their statement about it not being political within the judgement—a political judgement but simply a restatement of what the law has been since the seventeenth century: the executive does not have the right to dispense with laws by decree.  Those who called for Brexit wanted Parliament to assert its sovereign powers and this is precisely what this judgement allows them to do.  You might not like the judgement and it might be inconvenient but you’ve got what you voted for…a sovereign parliament asserting its rights.

The critical question now is how Parliament uses those rights.  We know that the Lords largely supported the ‘Remain’ position whilst the Commons also had a less clear majority in favour of remaining.  But the people have spoken and most of the MPs interviewed in the media suggested that they would vote for Article 50…assuming a one line bill…but the Lords appear less clear.  There have been calls for transparency about what the aims of the negotiation will be and resistance from the government to what it calls a ‘running commentary’ on the issue.  The problem with this is that there is little consensus among those calling for transparency over what that actually means in this context.  Should the government simply lay down the broad principles…’we want to achieve a, b and c…that it seeks to achieve?  Well, yes but nothing more…you cannot have a situation where 650 MPs are effectively the negotiating team for Brexit…it simply won’t work.  Once it has completed its negotiation should it bring this back to Parliament for approval…again probably yes…but whether Parliament can then amend those conclusions or not becomes difficult.  Presumably the EU will say after the negotiations…this is what we’ve agreed, you have to accept it and if not, you leave the EU with no agreement about further relations.  We all knew that Brexit was going to be messy; Thursday’s legal judgement simply messed things up a little more. 

Brexit…A Never-Ending story

The High Court has ruled that the government does not have the power to trigger Article 50 - to start formal exit negotiations with the EU - without the approval of Parliament. What parliamentary approval means is unclear because the High Court did not specify.  So it could mean full legislation or a resolution, either by the House of Commons or from both houses. A resolution could be quicker and simpler, allowing the government to seek a very narrow resolution from MPs that grants approval for the triggering of Article 50. But using a narrow resolution could also be challenged in the courts, whereas full legislation should be watertight. Full legislation would be more complicated and time-consuming because it would require debates in the House of Commons and the House of Lords, allowing amendments to be tabled that could, for instance, limit the government's freedom in negotiations about the UK’s future relationship with the EU. 

In effect, the legal judgement—that will be appealed to the Supreme Court (but could it then be appealed to the European Court of Justice?)—reiterated the principle  laid down in 1610 during James I-Vi’s reign that the prerogative powers of the Crown—today exercised by the Prime Minister—do not have precedence over the powers of the legislature.  In the Case of Proclamations Sir Edward Coke stated ’the King hath no prerogative, but that which the law of the land allows him’  while the Bill of Rights 1688 confirmed this by stating that suspending and dispensing with ‘laws or the exercise of laws by regall authoritie as it hath been assumed and exercised of late is illegall’.  Parliamentary sovereignty has also been recognised in many leading cases as the highest constitutional authority.  The case centred round the argument that prerogative powers could not be used to invoke Article 50 because it would result in abolition of rights established in the 1972 European Communities Act without the legislation being repealed by Parliament.

Campaigners who brought the case insist it was about ‘process not politics’ and the High Court made clear that there’s was not a political judgement but the decision has huge implications, not just on the timing but on the terms of Brexit.  It lays Parliament open to criticism that it is trying to subvert the will of the people expressed in the referendum…ah, well the referendum was only advisory and not binding on Parliament…so we’ve listened to what you say but we have to act in the ‘national interest’ and the national interest dictates that we don’t really leave the EU.  It could also lead to a constitutional crisis between the elected Commons where most MPS will probably support Brexit—the question is not whether but what form it should take—and the unelected Lords that was largely in favour of Remain.   The potential for this increases the likelihood that the Prime Minister will call a General Election early next year.  There are certain advantages in doing so with the polls giving the Conservatives a clear victory as well as the potential for a Labour meltdown.  Assuming that she won, the Prime Minister could put invoking Article 50 into the manifesto that would head off problems with getting the necessary legislation through the Lords (it can’t vote against legislation contained in the manifesto). 

What happens now is far from clear.  An appeal will be held over five days in early December and if, as I suspect will be the case, what is an unequivocal High Court decision is upheld, the government will need to introduce legislation in early January 2017 (or even before Christmas) to seek parliamentary approval to invoke Article 50.  The High Court stated that once invoked Article 50 could not be revoked…Lord Kerr, the author of Article 50, had stated before the judgement that the process could be stopped if both parties agreed.  Though some MPs will certainly vote against invoking Article 50, having voted for a referendum by 6:1, it seems probable that any legislation will pass the Commons with relative ease so long as MPs are given some information about what the government’s plans are; the House of Lords is more problematic and prolonged resistance might result in the use of the Parliament Act to get the bill through.  If this was the case the planned timetable for leaving the EU would be thrown into question with Article 50 not invoked until much later in the year or even 2018.

Nigel Farage said that the ruling could be the start of a ‘deliberate wilful attempt’ to ‘betray voters’ and an attempt to ‘water down what people had voted for’.  Whether this is right or not, what we have seen today is a reassertion of the authority of the political elite at the expense of the popular will.  While we may still leave the EU, the decision about what ‘leaving the EU’ means will in practice l be what the political establishment decides and I am certain it will use the nebulous notion of ‘in the national interest’ to justify their decision.

Trial without Retribution

The attack on the Eureka Stockade marked the dénouement of digger protests that began with the first protest meeting at Buninyong on 25 August 1851 when news arrived of a license fee being levied on all miners. The Geelong Advertiser’s reporter Alfred Clarke who attended the meeting wrote:

 

…there has not been a more gross attempt at injustice since the days of Wat Tyler…It is a solemn protest of labour against oppression, an outburst of light, reason and right against the infliction of an effete objectionable Royal claim…It is taxation without representation. Tonight for the first time since Australia rose from the bosom of the ocean, were men strong in their sense of right, lifting up a protest against an impending wrong, and protesting against the Government. Let the Government beware! [1]

 

This early agitation was followed by a number of protest movements, beginning with the formation of a Miners’ Association at Mount Alexander (Castlemaine) in December 1851. There were protests at the Ovens and at Bendigo, a Colonial Reform Association was formed in Melbourne in 1853 and in Bendigo the Red Ribbon agitation was led by the Anti-Gold License Association. The Bendigo petition was couched in Chartist terms. Protest meetings were held at Ballarat and a Chartist newspaper, the Diggers Advocate, was founded in Melbourne in October 1853 by Henry Holyoake and George Black, with H. R. Nicholls as an assistant editor.[2] Its editorials called the Victorian government ‘an arbitrary despotism…which denied the right to assist in making the laws under which they [the diggers] lived’. [3] On 3 November 1853, the Argus reported the formation of a Gold Diggers’ Association. The volatility of the goldfields made it difficult to organise the diggers and these political movements were short-lived.

 

The arrival of Sir Charles Hotham in July 1854 saw the popular movement re-emerge in Ballarat. Initially admired, he soon ordered that the diggers must pay their licenses and that his police and military should conduct regular inspections, if necessary, at the point of a bayonet. The political climate in Victoria changed dramatically. A growing sense of injustice at the failure of the courts to deliver fair verdicts and the persistent cancer of the gold license led to the formation of the Ballarat Reform League in early November. The failure of the local goldfield administration to defuse the situation and growing digger militancy led to a direct attack on the authority of the Crown with the construction of the Stockade at Eureka and the swearing of an oath before the Southern Cross. The authorities acted swiftly and with brutality on 3 December 1854 but the initial euphoria at their success quickly evaporated once the tragic scale of the ‘massacre’ became known. Charles Evans commented:

 

It is a dark indelible strain on a British Government – a deed which can be fitly placed side by side with the treacheries and cold blooded cruelties of Austria & Russia. [4]

 

With over 100 diggers in custody, the question was what would Hotham do next?

In the immediate aftermath of the attack on Eureka Stockade, public opinion was divided. Hotham’s initial call for support in maintaining law and order was well received and was supported by the Legislative Council, the city of Melbourne and its councillors and by bankers, merchants and landowners. On 7 December, the ‘squatting community’ pledged their support for any measure Hotham decided would further ‘the maintenance of law and the preservation of the community from social disorganisation’. [5] However, the government’s response to Eureka and its subsequent actions led to growing opposition. The Argus was concerned by a ‘most formidable spirit of disaffection’ with the government and the open assertion of ‘republican principles’ among the people. [6] Resolutions passed at a public meeting in Melbourne on 6 December, while they did not directly support the diggers, expressed concerns about the government’s use of excessive military force at Ballarat. [7] Its first resolution stated:

 

That the constitutional agitation at Ballaarat has assumed its present form in consequence of the coercion of a military force, professedly imported for the defence of the colony against foreign aggression; and that matters would not have been precipitated to their present issue, but for the harsh and imprudent recemmencement of digger-hunting during a period of excitement.

 

While the second made further criticisms of the government:

 

That the citizens of Melbourne, while disapproving of the physical resistance offered by the diggers to the Government, cannot, without betraying the interests of liberty, lend their support to the measures of the Government till they have a guarantee that steps will at once be taken to place the colony in general and the goldfields in particular on such a footing that a military despotism will no longer be required.

 

Instead of attempting to defuse the situation and despite the recommendation of the Gold Fields Commission on 10 January 1855, Hotham exacerbated matters by refusing an amnesty for those involved in the rebellion, while granting it to officials. Digger disillusion with the government’s behaviour over Eureka and specifically with the decision to try men for treason was evident across the goldfields.

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[1] Argus, 30 August 1851, p. 4, cit, Stackpoole, Harry, Gold at Ballarat: The Ballarat East goldfield, its discovery and development, (Lowden), 1971, p. 17.

[2] Clark, C. M. H., History of Australia, Vol. 4, (Melbourne University Press), 1978, p. 105, Pickering, Paul A., ‘“Glimpses of Eternal Truth”: Chartism, Poetry and the Young H. R. Nicholls’, Labour History, No. 70, (May 1996), pp. 53-70.

[3] Diggers Advocate, 1 April 1854.

[4] SLV, MS 13518, Charles Evans, Diary, 3 December 1854, p. 138.

[5] ‘The Legislative Council’, Argus, 8 December 1854, pp. 4-5.

[6] ‘State of Feeling in Victoria’, Argus, 6 January 1855, p. 5.

[7] ‘Meeting for the Protection of Constitutional Liberty’, Argus, 7 December 1854, p. 5.