Eureka: The Unfinished Revolution

by Peter Fitzsimons

  The new Commissioner does indeed appear with six policemen, but it all proves to be just for show. These worthies have no sooner appeared to do a little prancing about - let that be a lesson to all you diggers that the government is still in charge - than they retreat to the Camp and are heard from no more.

  8-10 January 1855, in Melbourne, at Toorac House, Hotham holds fast

  Some more gentlemen to see you, Your Excellency …

  It proves to be men from the Goldfields Commission of Enquiry that Sir Charles set up a month earlier, and they have come with a clear message. Though their voluminous official report will not be ready for many more weeks, they feel justified in telling His Excellency immediately that they are ‘unanimous in recommending the abolition of the license fee.’8 After conducting open hearings in Melbourne and across the major goldfields, they have no doubt that the major cause of the Eureka disaster was the maladministration of those goldfields and, most particularly, the manner in which the license fee was collected.

  In effect, the Commission is affirming that everything the diggers have been petitioning is legitimate, and it is the government that has been in the wrong - something that is quite shocking to Her Majesty’s representative who has been primarily and demonstrably responsible for the whole state of affairs.

  Out of the question, gentlemen. Good day to you, sirs. I said, good day.

  And so they go.

  Two days later, however, the men of the Goldfields Commission write the Lieutenant-Governor a formal letter, whereby they make clear: ‘[We] consider it would be both a wise and human policy on the part of Your Excellency to proclaim at once a general amnesty as regards the past in the late proceedings, including within its scope all persons now awaiting trial for their part in the outbreak …’9

  A nice idea. Alas, another two days on again, the Commission receives a rather stiff note from the newly installed Colonial Secretary, William C. Haines, after consultation with the Executive Council: ‘I have now to inform you that the Lieutenant-Governor, with the concurrence of the Council, declines to accede to your suggestion.’10

  His Excellency has determined upon his course of action - and intends to follow through, come what may.

  Come … what … may.

  Sir Charles feels some vindication for this decision when, just a short time later, a jury pronounces itself unimpressed with Henry Seekamp’s claims that he did not personally write the articles in question and finds him guilty of seditious libel - subsequently to be sentenced to six months in gaol - but the Lieutenant-Governor equally knows that this conviction is not remotely the test. Seekamp, who had been bailed for PS2200 in early December, was not involved in the military defence of the Stockade, and in terms of the 13 prisoners charged with High Treason who have all of the public’s attention, Seekamp is no more than a noisy sideshow at Row’s Circus. In a similar vein, Arthur Purcell Akehurst’s acquittal by a Melbourne jury of the ‘manslaughter’11 of Henry Powell, on the technicality that Powell had not been sworn in by Inspector Evans before taking his statement, is a small boon for Sir Charles and the conservative forces arrayed behind him, but no more than that.

  There is no doubt that as the time for the trial proper approaches, public agitation for the release of the State trial prisoners is increasing. Two protest meetings in quick succession in mid-January, held in the vacant space adjacent to St Paul’s Church in Swanston St, call for amnesty ‘to all concerned in the recent disturbances at Ballarat’.12 They are so passionately anti-government and sympathetic to the accused that the Sheriff of Melbourne, Claud Farie, feels it ‘possible that some attempt might be made to rescue the prisoners in the event of a conviction’.13

  There are some uplifting moments, despite it all. At the second meeting, a young Irish lawyer by the name of Butler Cole Aspinall brings joy to the crowd by insisting that the time for granting amnesty has now gone!

  ‘Gentlemen,’ he declares in richly educated tones, ‘I am prepared to say that I consider it far better for these men and for the ultimate liberties of Victoria that they should be acquitted by their fellow citizens than that they should be pardoned by their “Owner”.’ (Laughter and cheers.) ‘We want no pardon for them now, for I believe that their pardon is in the breasts of the jury who are to try them. They will be acquitted and not only that, but have the glorious privilege of pardoning those who put them on their trial.’14 (Cheers.)

  Cheers aside, the overall mood remains dangerous. Sheriff Farie secures no fewer than 500 sandbags, which he places strategically around Her Majesty’s Gaol, so that in the event of a serious attack, he and his men will be able to defend themselves and the premises. As expressed in that new upstart newspaper The Age, which has been newly joined by the fiercely pro-digger campaigner Ebenezer Syme, civil war had been a real possibility. Now, even though the likelihood of that has diminished; even though thousands of special constables have been sworn in and there has been an endless blathering of loyalty by the propertied classes who have a stake in preventing violent political disorder, The Age is firm in its view.

  All of this, it editorialises, ‘weighs as nothing against the overwhelming expressions of contempt towards the authorities, of sympathy for the Diggers - ay, and admiration too - and, what is still more worthy of notice, the open assertion of republican principles, and the confident anticipation of speedy freedom and independence for the Australian colonies which one hears frequently expressed …’15

  A letter to the editor that appears in the newspaper on 5 February, signed by ‘An Australian’, sets the tone, calling on ‘every Australian who honours the men who have sacrificed their lives for their country [to] adopt their faith, and swear allegiance to republicanism’.16 Ebenezer Syme couldn’t agree more had he written it himself … and there would be speculation that he had done exactly that.

  And this feeling is not only apparent in Victoria. So strong is the mood that an article in Sydney’s Empire begins with the statement, ‘In a city like Melbourne, so recently threatened with all the horrors of civil war … the triumphant unfolding of the banner of the Southern Cross, may not be so far distant as is popularly imagined.’17

  6 February 1855, Her Majesty’s Gaol, Melbourne, rough justice

  The prisoners’ situation in Melbourne Gaol has been intolerable, leavened only by the splendid mimicry of John Jeffreys as he takes off perfectly the walk and talk of their various turnkeys, and the fact that sometimes one of the guards might give them a stick of tobacco to share when Carboni sings some piece from an Italian opera. But that is it. The rest is just one wearisome day dragging itself into the next, and though on this day they collectively pen and sign a letter complaining to the Sheriff of their appalling treatment - ‘We appeal to you, and ask, was there ever worse treatment, in the worst days of the Roman inquisition, for men whose reputation had never been sullied with crime?’18 - they are destined to receive no reply.

  22-24 February 1855, Victorian Supreme Court, Goodenough just ain’t

  At last!

  The 13 prisoners are manacled, placed in drays and driven under tight guard through the streets of Melbourne to the Supreme Court, where they are placed in the dock before the baleful eye of Chief Justice Sir William a Beckett. (He, for one, is unlikely to be sympathetic to the diggers’ cause. After all, three years earlier he had told the Melbourne Total Abstinence Society: ‘Distinctions and grades, there will always be in any constitution of civilized society … “Equality”, as has well been said, “is the dream of a madman, or the passion of a fiend”.’)19

  If it pleases, m’lud, the Attorney-General William Stawell - all wig, sideburns, black robes and the scent of slightly too much talc amid an air of great superiority - would like to file the formal charges against the dirty prisoners before him. And yes, for all his obvious superiority, the Attorney-General does look rather intense before this standing-room-only public gallery, but that is only because the stakes are so high. This trial is not simply a determination of the guilt
or innocence of these particular diggers, but the guilt or innocence of the entire system that has caused them to take arms against it. Not only is all of Victoria watching this trial closely, but all the other colonies on the great red continent.

  If the prisoners come to be acquitted, it will be a slur on the said system and effectively mean the rebels were justified in taking up arms against it. It is doubly important, therefore, that they be found guilty! And so to the charges, which are now read aloud by the Chief Justice’s Associate, as not only the prisoners but the public gallery and every press man there strain forward to gather in every syllable …

  ‘Prisoners at the bar,’ the court functionary intones with the slightly bored air of the legal professional, an air totally at odds with the crackling excitement all around, ‘the charge against you in the first count of the information to which you are now called to plead is, that you did, on the 3rd December, 1854 (being at the time armed in a warlike manner,) traitorously assemble together against our Lady the Queen; and that you did, whilst so armed and assembled together, levy and make war against our said Lady the Queen, within that part of her dominions called Victoria, and attempt by force of arms to destroy the Government constituted there and by law established, and to depose our Lady the Queen from the kingly name and her Imperial Crown …

  ‘Having devised and intended to deprive our said Lady the Queen of the kingly name of the Imperial Crown in Victoria, you did express and evince such treasonable intention by the four following overt acts:—

  ‘First. That you raised upon a pole, and collected round a certain standard, and did solemnly swear to defend each other, with the intention of levying war against our said Lady the Queen.

  ‘Second. That being armed with divers offensive weapons, you collected together and formed troops and bands under distinct leaders, and were drilled and trained in military exercise, to prepare for fighting against the soldiers and other loyal subjects of the Queen.

  ‘Third. That you collected and provided arms and ammunition, and erected divers fences and Stockades, in order to levy war against our said Lady the Queen.

  ‘Fourth. That being armed and arrayed in a warlike manner, you fired upon, fought with, wounded, and killed divers of the said soldiers and other loyal subjects then fighting in behalf of our said Lady the Queen, contrary to your duty and allegiance.

  ‘In the fourth count the charge against you is, that having devised and intended to levy war against the Queen, in order to compel her by force and constraint to change her measures and counsels, you did express and evince such treasonable intentions by divers overt acts …’20

  William Stawell listens with some satisfaction to this account of the legal grievances the Queen has versus these State prisoners. It is he who, with Sir Charles Hotham, insists on charging them with High Treason from the beginning rather than something much easier to prove, like riot and affray. He has no doubt that such a dire offence - betraying one’s country by aiding and abetting another state - is exactly what they have committed, and they must be held to account, come what may. This notwithstanding, he has already made an exception for the American James McGill who, after negotiations via an intermediary, presented himself to Sir Charles Hotham to express his regret.

  Sir Charles, dismayed by McGill’s youth, made no promises but at least did not have him arrested on the spot. Afterwards, he put out the word that if McGill quietly slipped away he would not be interfered with. Such leniency to McGill and his countrymen - for not long after the battle Sir Charles had also ordered the release of all Americans bar John Joseph - caused resentment among some of the diggers, feeling that they had received favourable treatment because of the sensitivity of relations between the British and Americans. But so be it.

  As to those in the dock now, though they are under no illusions as to just how perilous their situation is, there remains among them a great sense of relief that after nearly three months of waiting they can at least - and at last - answer such charges. Yet, while every man must have his day in court, the most pressing question on this day is … which man?

  Attorney-General Stawell and his legal counsellors wish to start with the most senior insurgent captured, Timothy Hayes, but their learned friends defending those on trial for their lives have other ideas. Through a series of legal manoeuvres focusing on minor technicalities, the defence manages to delay the trial of Hayes on the grounds that several material witnesses are absent. Other similar technicalities are invoked on other defendants until they arrive at the defendant the defence team has wanted to start with all along. His papers are in order, his witnesses are present. He is ready to go to trial. In the end the Attorney-General has no choice but to agree as the other prisoners are led away to the holding cells.

  Step forward, John Joseph, the man characterised in the press variously as ‘the nigger-rebel’21 and the ‘nigger martyr’.22

  And so the black American does, even if the wheels of justice continue to move only very slowly from there. The Crown objects to all potential Irish jurors, all publicans and all others of dubious character, while to the amusement of the gallery - the nigger speaks! - John Joseph himself desires to have neither merchants nor gentlemen sitting in judgement upon him and says so. His drawling voice is rich as molasses, resonant and thickly accented.

  Nevertheless, after no fewer than 30 prospective jurors are rejected by Joseph, assisted by his Lead Counsel, the former Colonial Secretary of Van Diemen’s Land, Henry Chapman - who had been dismissed from that post because of his opposition to transportation - and his Junior Counsel, Butler Cole Aspinall, the two sides have finally agreed on 12 good men and true.

  As all the legal manoeuvres have taken the better part of a day, the court is adjourned until the following morning, at which point the Attorney-General is not long in making what he considers to be an extremely strong case against the American.

  There is no doubt that John Joseph was with the rebels from the start - he was there when they raised their flag and built their Stockade.

  ‘They met under that flag,’ Stawell says in his clipped tones, ‘and patrolled together. Many of them were armed; indeed most of them were armed; and they all appeared to be marshalled, and they selected certain officers …

  ‘Under this flag all those who really wished to volunteer, as it was termed, for this service, undertaking, as they called it, to fight for their rights and liberties, came forward, took their hats off, and knelt down and swore to defend each other, kneeling under this flag …’23

  And this, of course, was only the beginning of the treasonous acts subsequently committed when those same rebels fired on Her Majesty’s soldiers! As many witnesses will attest, John Joseph was in the Stockade in the days leading up to the battle, attended all the meetings and participated in all the drills, carrying a double-barrelled gun. And as it happens, members of the jury, we have the very gun that Joseph was subsequently seen firing at Captain Henry Wise of the 40th Regiment, giving that brave officer in Her Majesty’s service a wound from which he subsequently tragically died.

  For his first witness for the prosecution, William Stawell calls none other than Police Trooper Henry Goodenough, who, disguised in plain clothes, was inside the Stockade in the days leading up to the event. Strangely, however, the trooper’s evidence is only of the most general variety, detailing the Stockade building and the drilling conducted therein, without actually positively identifying the defendant as being a part of it.

  At least the next witness for the prosecution, Goodenough’s fellow spy Andrew Peters, is able to give testimony that Joseph was in the Stockade on the early morning of 3 December, but, once again, could you trust the word of a spy? Joseph’s counsel thinks not.

  Peeved at this line of attack, the Attorney-General is at least able to bring forward several Redcoats who also testify to Joseph’s presence in the Stockade and that he shot at Captain Wise.

  ‘The soldiers were so impressed with the conviction that this man shot their
officer,’ Stawell says, ‘that a desperate rush was made at the Stockade, and he was afterwards seen to go into a large tent in the Stockade known as “the guard tent”.’24

  Let us begin with Private Patrick Lynott, of the 40th Regiment.

  ‘Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?’

  ‘I do.’

  ‘You are, I believe in the 40th Regiment?’ the Attorney-General begins.

  ‘Yes …’

  ‘Did you go out on the morning of Sunday the 3rd December?’

  ‘I did.’

  ‘About what hour?’

  ‘Between three and four o’clock.’

  ‘How many went out?’

  ‘I think between the 12th and 40th we amounted to 164 …’

  Private Lynott then describes approaching the Stockade and being fired upon first.

  ‘What distance were you from the Stockade when the volley was fired at you?’ the Attorney-General asks.

  ‘We might be about 300 yards …’

  ‘When you got to the Stockade, did you go inside?’

  ‘Yes.’

  ‘Did you see anybody inside that you recognise?

  ‘Yes, I saw the prisoner … He had a double-barreled gun, and he raised it and fired immediately … He discharged it, and in the direction in which he fired I saw Captain Wise lying wounded.’

  At this point Henry Chapman objects strenuously: ‘I would submit to your Honour that this is merely a matter of aggravation because in a melee of this sort, where, as the witness has described, firing was taking place pretty sharply on either side, it would be utterly impossible to ascertain from which particular bullet Captain Wise unfortunately fell. I submit that it is not evidence in the matter, it is utterly impossible for any witness to know that.’25

  ‘The witness states it as a fact, your Honour,’ Stawell interrupts, rather peeved at the presumption of his legal adversary. ‘It is for the jury to say whether they think it worth attending to or not.’