Although the Riot Enquiry, which reported on 17 November,
expressed general satisfaction with affairs in Ballarat, it recommended the
dismissal of Police Magistrate Dewes, whose close links with James Bentley were
exposed and Police Sergeant-Major Milne, whose activities included bribery and
corruption, on which Hotham acted quickly on 20 November.
[1] It also noted that the most important cause of
alienation was the gold license. Hotham had already concluded that a full-scale
investigation was needed after his visit to the goldfields in August and on 16
November had established a Royal Commission to Inquire into the Condition of the
Goldfields of Victoria, something more wide-ranging than the Riot Enquiry.
[2] Chaired initially by William Haines
[3] and supported by fellow Legislative Councillors John
Pascoe Fawkner, John O’Shanassy, William Westgarth and James Strachan
[4] and by William Wright, the Chief Commissioner, its
report proved to be a ‘document of crucial importance’.
[5] Commissioner Rede was in Melbourne during the second
and third weeks of November attending the trial of Fletcher, McIntyre and
Westerby and took the opportunity to meet with both Wright and Hotham. He was
increasingly convinced that problems in Ballarat were the result of a small
group of ‘foreigners’ who wanted to overthrow colonial government and who were
manipulating the other diggers. Hotham took a less serious view of the Ballarat
incidents recalling most of the troops sent to restore order after the riot on
17 October though he agreed with Rede on limiting the influence of known
troublemakers.
On Saturday 18 November, the trial of James Bentley, Catherine
Bentley, John (or Thomas) Farrell and William Hance in Melbourne’s Supreme Court
began. Judge Redmond Barry presided over the case; Richard Ireland acted as
Counsel for the Bentleys, while A. Michie and Mr Whipman represented Thomas
Farrell and William Hance respectively. Crown Prosecutor, Attorney-General W. F.
Stawell, presented evidence that had been previously used in the inquests and
magisterial hearings, but on this occasion called two new witnesses, who would
alter the fate of the accused.
[6] Michael Welsh, who lived at the
Eureka Hotel,
testified that on the night of Scobie’s murder he saw the victim arguing with
William Hance through the broken window of the hotel. This evidence was
supported by the testimony given by Mooney that revealed Bentley’s and Farrell’s
attempts to conceal what had occurred in the early hours of that morning. The
jury took only fifteen minutes to convict Bentley, Hance and Farrell of the
manslaughter of James Scobie but Catherine Bentley, now heavily pregnant was
acquitted. On 20 November, they were sentenced to three years hard labour on the
roads.
[7]
The same day, Redmond Barry began the trial of McIntyre,
Fletcher and Westerby who were represented by Richard Ireland. During the trial,
Ireland stated that had the authorities been more vigilant in dealing with the
death of James Scobie, the diggers would not have felt compelled to seek their
own form of justice. Stawell, taking great offence on the government’s behalf,
retorted that the motive behind Ireland’s inflammatory statement was monetary, a
claim the defence counsel vehemently denied, stating he was defending the three
diggers
pro bono. Despite evidence from Assistant-Commissioner Amos and
others that McIntyre had tried to save property from the hotel and Fletcher was
only a spectator, several witnesses against McIntyre had submitted depositions
of his active involvement in the destruction of the hotel.
[8] The jury retired in the afternoon to discuss its
verdicts but returned two hours later claiming it could not reach a unanimous
verdict seeking permission to take account of the ineptitude of the police on
the day and the provocation experienced by the diggers. Redmond Barry
emphatically refused the request. At around 9 pm after deliberating for five
hours, the jury returned its verdict to the court. McIntyre, Fletcher and
Westerby were found guilty with a recommendation for clemency. The jury
expressed its opinion that ‘it would never have been their painful duty to give
such a verdict had the Government officials at Ballarat done theirs’, a
declaration well received in the community. The crowd in the courtroom asserted
its jubilation with loud cheers, even though Judge Barry refused to accept the
jury’s rider, itself an unorthodox decision. The following day, Redmond Barry
handed down less harsh sentences than were anticipated: McIntyre three months,
Fletcher four months and Westerby six month in Melbourne Gaol. Barry’s leniency
may have been intended to avoid providing further grievances among the diggers
and prevent further acts of civil disobedience. The
Argus concluded:
In this trial, as in that of Bentley, the law has been upheld;
but, in both cases, the Government has been disgraced. The verdict of the jury,
in the case of the riot was as adverse to the Government as it was to the
prisoners.
[9]
On Monday 27 November, the Ballarat Reform League’s
representatives John Humffray, Thomas Kennedy and George Black went to Melbourne
to meet Hotham, but without success.
[10] The deputation put the diggers’ grievances before
Hotham, the Colonial Secretary and Attorney-General were also present, not as a
petition, but as demands. Evans commented:
I never heard of anything more ridiculously absurd. No man
in his senses can believe for a moment that the Governor will recognize the word
demand in a petition. It is easy to guess the result of it.
[11]
George Black ‘demanded’ the release of McIntyre, Fletcher and
Westerby ‘in the name of the Ballarat diggers’. Hotham unsurprisingly took
exception to the use of the word. Black pointed out that it had been requested
by the Reform League Committee and reiterated that all the diggers felt that
they were guilty of arson but were justified in their actions as the magistrates
had failed to dispense justice. Hotham argued that he had set up the Board of
Enquiry that uncovered corruption on which he had already acted and that he had
also appointed a Royal Commission though Black objected that its members had
been appointed without reference to the diggers. Although emphasis has been
placed on the diggers’ ‘demand’, the minutes of the meeting suggests that it was
more wide-ranging dealing with the broader constitutional and political issues
raised by the diggers. Humffray emphasised the constitutional nature of the
protest but intimated to Hotham that the ‘popular voice’ needed to be heard.
Hotham appeared willing to make some concessions offering to admit one elected
digger representative to the Legislative Council immediately but Black felt that
this was insufficient. The delegates were reminded of the benefit to the diggers
in the new legislation that was then en route to England and the meeting ended.
The delegates, who found Hotham fair but certainly not conciliatory, left the
meeting with only a vague hope that a formally prepared petition might bring
success and returned to Ballarat to consult with their members. Hotham and the
moderate reformers had lost their last opportunity for reconciliation.
[1] Riot at Ballarat, Report and Evidence of
the Board of Enquiry into the Death of James Scobie and Burning of the Eureka
Hotel, printed 21 November 1854,
Votes & Proceedings,
A.27/1854-55. See also, ‘Legislative Council’,
Argus 22 November 1854, p.
4.
[2] ‘Legislative Council’,
Argus, 17 November 1854,
p. 4. Anderson, Hugh, (ed.),
Report from the Commission appointed to inquire
into the Condition of the Goldfields, first published 1855, (Red Rooster
Press), 1978, pp. 116-120.
[3] Malone, Betty, ‘William Clark Haines (1810-1866)’,
ADB, Vol. 4, pp. 315-317.
[4] Brown, P. L., ‘James Ford Strachan (1810-1875)’,
ADB, Vol. 2, p. 492.
[5] H. V. Evatt’s introduction to Carboni, Raffaelo,
The
Eureka Stockade, first published 1855, (Sunnybrook Press), 1942, p. xxvi.
[6] The brief for the prosecution documents the ways in
which it planned to conduct its case against those accused of Scobie’s murder,
PROV 5527/P Unit 1, Item 5.
[7] ‘The Trial of Bentley’,
Argus, 20 November 1854,
p. 4.
[8] PROV 5527/P Unit 1, Item 8.
[9] Argus, 21 November 1854.
[10] Minutes of the meeting between Hotham and the diggers’
representatives: PROV 1095/P Unit 3, Bundle 1 no. 16. Ibid, Molony, John,
Eureka, pp. 106-110, gives a riveting account of the meeting. See also,
‘Ballaarat’,
Argus, 29 November 1854, p. 4.
[11] SLV, MS 13518, Charles Evans,
Diary, 26
November 1854, p. 116.
