Eureka: The Unfinished Revolution

by Peter Fitzsimons

  How to do that? What is the problem?

  There are three possibilities: there is a flaw in the law; they are flawed in the way they are arguing their case; or the judge and juries are simply getting it wrong. Stawell is not long in identifying the third possibility as the one that must be addressed, and he immediately orders a month’s stay in proceedings so that an entirely new pool of jurymen can be identified and sworn in, and a different judge assigned.

  Most of the Melbourne press, however, roundly condemn the Attorney-General’s move. In the words of The Argus, ‘He sets aside broad and general principles, essential to the welfare of the community, in order to meet a particular evil; and this is precisely what the diggers are charged with having done.’51

  7 March 1855, Prussia, full Marx

  All over Prussia, the readers of Neue Oder-Zeitung - the most radical newspaper in the land - are reading an article by the paper’s London correspondent, Karl Marx, who has become fascinated by an episode in a faraway land, an episode to do with a place called the Eureka Stockade …

  NEWS FROM AUSTRALIA

  BY KARL MARX

  The latest news from Australia adds a new element to the general discomfort, unrest and insecurity. We must distinguish between the riot in Ballarat (near Melbourne) and the general revolutionary movement in the State of Victoria. The former will by this time have been suppressed; the latter can only be suppressed by far-reaching concessions. The former is merely a symptom and an incidental outbreak of the latter …52

  This is more than just another article for Marx. The episode fascinates him. His good friend Friedrich Engels told him that Australia was no more than a United States of ‘murderers, burglars, ravishers and pickpockets’53 and not worth worrying about, but Marx disagrees. He is certain that it is yet one more example of workers rising against their oppressors, just as he had predicted.

  12 March 1855, hoorays and hoots in Melbourne

  The delay in the State trials in order to find a jury willing to convict the remaining prisoners causes such public discontent that, on this afternoon, there is yet one more public meeting on the open ground near St Paul’s Church.

  This is not a ‘monster meeting’, as had been held previously, but a smaller gathering of just 200 people to discuss the postponement of the State trials and raise money for the ongoing legal defence of the remaining prisoners.

  One speaker, medical practitioner and Bendigo goldfields leader, Dr John Downes Owens, is particularly well received as he moves the key resolution, asserting that the conduct of the Attorney-General in postponing the State trials is so appalling that it can ‘be expiated only by his resignation’.54

  Hurrah! Cheers! Owens has summed up their mood exactly.

  Though the authorities have a reserve guard on call, ready to move instantly if the crowd gets out of hand, there is no need. The meeting is conducted in a very orderly manner, and as the sun sinks low and an autumnal chill fills the air, most people start to drift homewards.

  Still, there are some 50 who linger at the end of the meeting, and who should happen to pass by on his way back to Toorac House? Why, it is none other than His Excellency, Sir Charles Hotham himself. And yet the people do not treat him as ‘His Excellency’. Quite the contrary …

  No sooner have they seen his strangely withered form - it is odd how much bigger he had looked when he had landed in Melbourne only nine months earlier - than, as reported by the officer on watch, Sub-Inspector Thomas Langley. ‘Some of the people assembled “hooted” him, but as they ceased as soon as he was out of sight no notice was taken of it.’55

  19 March 1855, Melbourne Supreme Court, days of Hayes

  At last the Attorney-General is ready with his new pool of 178 jurors from which the court will hopefully be able to find 12 good men who will agree to find guilty the next man on trial. And the prospects are good, for that man is none other than Timothy Hayes, against whom the authorities can provide dozens of witnesses able to attest to his role as one of the key agitators from the beginning - the very ‘Chairman’, no less, of the so-called Ballarat Reform League.

  Hayes’s counsel is an Irish lawyer working pro bono, Richard Ireland, who has already been heavily involved in the court cases coming from Ballarat. Curiously, he represented both Bentley and subsequently the three men held responsible for burning down Bentley’s Eureka Hotel. With a head like a hammer and a tongue like the devil’s poker, Ireland now sets to with a will to free his countryman so Hayes can return to the bosom of his wife and six children, now watching from the gallery. (And none more intensely than the fiery Anastasia, whose glare drills every man in turn who would speak or bear witness against her husband.)

  Surveying them all from the bench is none other than the venerable Redmond Barry, a personal friend of William Stawell’s, with whom he had been at Trinity College in Dublin - the same tertiary education as Magistrate Hackett and Peter Lalor - before travelling through Europe together on holiday. Judge Barry is a straight shooter, and rightly revered as one of Melbourne’s leading citizens.

  The Attorney-General’s opening address is straightforward enough. Going to the heart of the matter - the two meetings on 29 and 30 November - there is no doubt that Timothy Hayes engaged in treasonous behaviour.

  ‘Gentlemen,’ Stawell begins in that curiously clipped accent of the well-educated Irishman, ‘the first meeting was held to abolish by compulsion the existing license fee. Gentlemen, that meeting was called, it was attended by the prisoner now before you and several others, he was present, and I believe at one portion of it, he himself presided.’56

  And not only was Hayes present at that first crucial meeting, the Attorney-General professes sorry to report - despite the gleam in his eye - he was also present throughout the entire decline into full rebellion. He was there at the meeting the next day when violence was first planned, took command of a body of armed men, saluted the rebel flag with all the rest and was present throughout all the treasonous drilling. He was arrested near the Stockade on the Sunday morning, carrying ammunition!

  And now all William Stawell needs to do, is prove it.

  The first witness for the prosecution is Henry Goodenough, who is equally forthright, affirming under oath that at the meeting on 29 November, when the Eureka flag first flew, he saw Hayes there, front and centre, and at the conclusion of the meeting Hayes said, ‘It was no use to petition the Governor any longer, but to come forward and stand up for their rights and liberties, and he for one would do so.’57 And then the next day, Hayes had been there again, as Lalor administered the oath to swear allegiance to the Eureka flag.

  Interesting. Very interesting.

  But, in cross-examination, Richard Ireland would just like to know of this fellow the exact words Hayes had said when speaking at the two digger meetings. He challenges Goodenough on his previous testimony that he heard Hayes say at one of the mass meetings that it was ‘necessary to take the law into their own hands’.58

  ‘He used words to that effect …’59 Goodenough returns, falteringly.

  ‘Then what you swore on the last trial is not true?’

  ‘I will swear that Hayes said what I have said.’

  ‘I ask you again, did Hayes state that to the meeting?’

  ‘He did not.’

  ‘Then if you said he did, did you say what was true or false?’

  ‘I did not say so.’

  ‘Will you swear to that?’

  ‘I will not swear to that …’60

  Perhaps you could tell us then, m’learned friend asks pleasantly enough, what you were wearing at the Stockade?

  ‘I was dressed in plain clothes.’

  ‘Why..?’

  ‘Because I was ordered to.’

  ‘For what purpose?’

  ‘I cannot say.’

  ‘Will you swear you cannot say?’

  ‘I was ordered to go in plain clothes, and I went to see and be seen - to see what I could …’

  ‘In fact, you wen
t as a spy - was it not so?’

  ‘If you like to call it so.’61

  Mr Ireland does like to call it so, and intends to remind the jury with as much frequency as would make a sensitive man’s nose bleed that Goodenough is a lowly hypocrite of a spy whose testimony cannot be counted on. And he may as well start now …

  ‘You saw this process of kneeling under the flag. Did you kneel down, as you were doing the hypocrite?’

  ‘I did.’

  ‘Did you swear allegiance to the flag?’

  ‘No.’

  ‘Did you pretend to do so?’

  ‘I did not swear.’

  ‘You knelt down?’

  ‘I knelt down.’

  ‘Perhaps you said “Amen”?’

  ‘No.’

  ‘Are you sure of that?’

  ‘Yes.’62

  The barrister, his huge whiskers bristling at the indignity of having to even be in the same room as such a cur, appears far from sure that that is the truth, but again moves on. While perhaps Goodenough didn’t swear allegiance, he would like the spy to admit that he, personally, had also urged the miners ‘to stand up for their rights and liberties’,63 just as Hayes is said to have done! Reluctantly acknowledging that to be the truth, Goodenough nevertheless tries to defend having said it on the ground that he was there with two fellow policemen, similarly disguised. ‘I did not want the diggers to know that I was a policeman.’64

  But the fact is, he said it. Whatever is left of Goodenough’s credibility has just been shredded. Perhaps they’ll go better with the next witness?

  No, not really. Andrew Peters, too, is like a sick rabbit before a ravenous dingo and is no match for the barrister. He had also been there as a spy!

  ‘Did you hear anything said against the British Constitution?’ Ireland asks him.

  ‘I will not swear I did.’

  ‘Did you hear anything about establishing a Republic?’

  ‘There was a great deal said backwards and forwards …’65

  No doubt. But Peters is unable to confirm positively that they had talked of a republic.

  ‘On the Thursday, was there a search for licenses?

  ‘Yes, there was.’

  ‘Did you go …?’

  ‘No …’

  ‘Did you know that there were shots fired by the troopers?’

  ‘Not by the troopers, no, by the foot police, I heard them say so …’

  ‘If a man should state that his license is in his tent, and he is at his hole, what do you do with him?

  ‘I go back to his tent with him.’

  ‘Will you swear that such is a general practice?’

  ‘I will not swear it is the general practice …’66

  By the time Ireland has finished with him, Peters looks incapable of swearing as to what his own name is and leaves the dock shakily.

  Next!

  Police Inspector Henry Foster is called and recounts how, after Hayes’s arrest outside the Stockade, he had personally searched the Irishman and found two gold licenses, a note in code, five bullets and some percussion caps.

  This time Ireland is rather like a seemingly friendly python turning rogue - and squeezing tighter with every coil.

  The five bullets, for example …

  ‘I believe what you found on Hayes were the ordinary contents of a digger’s pocket?’

  ‘I cannot say …’ 67

  Of course he cannot say, but the point is not lost on the jury. If carrying bullets in your pocket was treasonous of itself, then every man jack on the diggings was likely treasonous! But now, let us return to the licenses also found on Hayes

  ‘Both those licenses were made out to Hayes, the prisoner?’

  ‘Yes.’

  ‘Then he evidently had not burnt his licenses?’

  ‘No, evidently not …’68

  After the court is adjourned for the day, it is reconvened the following morning, and Ireland is at least able to introduce credible testimony conclusively demonstrating both that the troopers had fired their weapons at the diggers on the morning of the 30 November digger hunt and that Hayes had not been in the Stockade at the time of the attack. And he most certainly had not fired a shot in anger.

  One of Ireland’s witnesses is a digger by the name of John O’Brien, who gives honest testimony that at the time of the attack on the Stockade he had gone to Hayes’s tent to find his friend had just risen from bed and was on his way to Father Smyth’s presbytery - a fact that Father Smyth himself corroborates. Hayes had come to him, Father Smyth then recounts from the witness box, to tell him that they must both go together to the Stockade, where they will be needed.

  With the act of firing upon Her Majesty’s troops no longer possible to prove, the key remaining charge is that Hayes was treasonous by whipping up the mob against Her Majesty. And yet Loftus Grey, The Argus correspondent, swears on oath, so help him God, that he had been there at the meeting on 29 November with notebook in hand, listening intently and documenting it all.

  Junior Counsel Thomas Spencer Cope addresses him in reference to that meeting. ‘Now, was anything said at that meeting by Hayes of his intention to take the law into his own hands?’

  ‘Decidedly not.’

  ‘Did you hear Hayes saying anything about a “common enemy”?’

  ‘No.’

  ‘Goodenough stated that Hayes said they must stand up for their rights and liberties and fight. Is that correct?’

  ‘I did not hear him use the word “fight”.’69

  ‘Did you see the digger hunt?’

  Before he can answer, however, the somewhat flustered Attorney-General doth protest vigorously. ‘I object, Your Honour, to the use of the term “digger hunt”. It is not a proper form of expression.’

  With an impatient wave of the hand, in the manner he might shoo a blowfly, Cope carefully rephrases: ‘Did you see on the Thursday a search for licenses, commonly called on the diggings, a “digger hunt”?’

  A wave of merriment rolls through the gallery.

  Order! Order!

  ‘Yes.’

  ‘Will you describe it?’

  ‘A party of 25 mounted police came down from the Camp.’

  ‘Were they armed?’

  ‘Yes, the mounted police had their swords drawn, and the foot police had their bayonets fixed.’

  ‘Is that the customary method of collecting licenses?’

  ‘I have seen the foot police with bayonets fixed, but not the troopers with their swords drawn.’70

  Finally, it is time for Cope’s piece de resistance …

  Over the fierce protestations of the Attorney-General, he now draws the jury’s attention to Captain Thomas’s report to Lieutenant-Governor Hotham, including the words, ‘Early on the 2nd [December] information was received that the rebels were forming an entrenched camp at the Eureka diggings … I determined to attack their camp at daylight the next morning.’71

  ‘You will remark, gentlemen,’ Cope begins, ‘that early on the 2nd December, Captain Thomas had made up his mind to attack the diggers, and not they him, and the reason of his determining to attack was, because they had entrenched themselves in the Eureka Stockade. Now, I have yet to learn that entrenching yourself in a Stockade is High Treason? The cause of these men retiring into the Stockade was in order to protect themselves … After being fired upon on the Thursday, they said, “We’ll have no more of this, we’ll have some place to go to, and not be shot down like dogs at a digger hunt …”’72

  It is a devastating point, all the more damaging to the Crown’s case because the fact that the government intended to attack them all along is nothing more than the simple truth, and all of it in their own words.

  At this point Hayes’s defence team would have loved nothing better than to call Sir Charles Hotham himself to demonstrate that the real blame lay not with those on Ballarat but with the man living in Toorac House. Alas, on the advice of his senior legal counsel, Sir Charles had already given notice that h
e declined to attend, on the grounds that his testimony might ‘disclose that which public policy requires to be concealed’.73

  Although Hotham does not escape unscathed.

  Warming to a theme, Ireland now notes how well His Excellency had been welcomed to Victoria at a time when the colony had been ‘loyally mad’.74

  Ah, but that loyalty extended had not been returned.

  ‘Gentlemen, the diggers at this time, no doubt suffering under a great deal of misgovernment and oppression, continued peaceably to bear it until the death of Scobie … They found a murder perpetrated, and when the man charged with it was brought before the authorities he was discharged and the Government took no notice of it … Gentlemen, in order to vindicate the law, the law was violated. The Eureka Hotel, worth PS27,000, was burnt to the ground, and then and not till then Bentley was brought before a magistrate … tried at the Supreme Court, and sent to gaol for three years.’75

  Ireland’s theme is strong, the words of his summation confident.

  ‘Gentlemen,’ he continues, ‘you are to connect the violence of 3rd December, not with the meeting on the 29th November, which was a legal, constitutional agitation, but you are to connect it with the firing on the people on the Thursday morning, and the apprehension that a repetition of the same thing would take place. Accordingly, you find them on the afternoon of that day drilling and re-drilling, marching and counter-marching … and on the Saturday you find them behind a Stockade, which they had erected, consisting of a few slabs thrown up in a few hours. And where? Why, actually around their own habitations!

  ‘Gentlemen, does that show you an intention of deposing Her Majesty from her royal crown and dignity? Does it not rather show you that it was an organisation on the part of the people to resist aggression upon them in the shape of digger hunting? If it was, then I tell you, and His Honour will bear me out in so telling you, that this is not high treason. You may make it a riot; and why did not the Crown do so, and indict the prisoner for that offence? Why, because it is very desirable to make everybody opposed to the Government hate the Queen, instead of being opposed to the local Government.’76