Ireland is very strongly of the view that not just this State trial, but all of the State trials must be abandoned.
‘I remind you gentlemen,’ he concludes, ‘that it is no act of treason merely to fire upon the Queen’s troops. These men erected a Stockade in case of another diggers hunt. A place where they would not be shot down like dogs. The learned Attorney-General hopes you will see treason where it is seen by no-one else. I trust that justice is safe with you.’77
It is now that Judge Barry sums up, and after carefully going through the case - the evidence for and against a guilty verdict - his final words to the jury stun the Attorney-General: ‘Recollect, gentlemen, that when I say this I am giving an opinion from which you may differ, [but] … my opinion is not to convict the prisoner …’78
Stawell slumps back in his chair. It has come to this!
Just 30 minutes later, the jury is back.
‘Have you reached a verdict?’
‘Yes, your Honour, we have.’
‘How do you find the defendant?’
‘Not guilty.’
Uproar. Through the court, down the corridors and out into the streets where no fewer than 5000 people are gathered.
‘NOT GUILTY!’
The explosion of relief, of savage exultation, goes up and, in the now traditional fashion, Hayes is carried through the streets of Melbourne upon the worthy shoulders of his supporters, the roar growing louder as others join in.
And it is a roar that is not long in making it all the way to Toorac, where Sir Charles Hotham broods, more humiliated than ever before. He is, after all, the man who has presided over the massacre, who has ordered the troops to Ballarat, and if the ringleaders are not guilty of treason, then what were they guilty of? If they are innocent, it means that innocents were massacred - and he is the man responsible. It is obvious that the accused have broad public support and nowhere more so than among the 12 jurors who are successively selected to try them.
21 March 1855, Melbourne Supreme Court, Do you find the prisoner at the bar guilty or not guilty?
The only upside to the government’s otherwise bleak legal landscape at this point is that at least the next defendant is Raffaello Carboni - of them all, perhaps the easiest to convict. As Stawell reviews the evidence going into this trial, he takes comfort in the fact that he has no fewer than eight solid witnesses who can swear on the Bible that they saw the noisy Italian in the Stockade, armed with a pike, and that he had attacked one of the witnesses and driven that witness outside its barriers before being fired upon by the rebels.
The Argus reports that Carboni on this day appears ‘more self-composed than he has hitherto appeared, the former acquittals having evidently given him confidence. There was, however, a strange excitability, manifested by him throughout the trial, which his professional adviser could scarce restrain’.79
That professional adviser, James Grant, is nevertheless another reason for Carboni’s growing confidence. As promised, the worthy Scot who had first visited him three months before to offer his services has assiduously prepared the Italian’s defence and, most importantly, secured the services of Richard Ireland as Lead Counsel.
But to the business at hand. After the members of the jury have been agreed upon by both sides and sworn in, the Attorney-General delivers the opening address, covering now-familiar ground to the court, promising to prove beyond reasonable doubt that the foreign anarchist had been with the rebellion from the beginning, that he had not only helped to incite it but trained rebels and took up arms himself when the battle began. It is a reasonable, though rather brief address, which The Age would note the following day, observing that ‘the learned Attorney-General … seemed labouring under severe indisposition’.80
And so, too, does the first witness, Henry Goodenough, seem a little out of sorts. His testimony has been shredded in the previous trials, and so it is again on this occasion, just as is the evidence of his fellow spy, Peters, after him.
Now it is the turn of the venerable magistrate, Charles Hackett, to take the stand. A careful, considered man, he tells the court that he remembers well the evening of 30 November, when the defendant had been one of a party of three, together with Father Patrick Smyth and George Black, who had come to the Camp as a delegation of diggers, seeking ways to avoid disaster.
And do you remember, sir, what Carboni had said that night?
Yes, he does. Hackett recalls the Italian telling them that the diggers were not animated by any ‘spirit of rebellion’81 but simply wanted an end to the exorbitant license fee.
Hardly the words of a man who went on to commit treason? That, at least, appears to be the mood of the gallery, as there is a happy sigh of relief at these words.
But let’s focus, Ireland says, on the consequences of the jury returning a guilty verdict. As he notes - using clever lawyerly hyper-bole to shock the members of the jury - the law is very severe on those who are found guilty of treason. The cruelly condemned man would be taken to the place of execution first, hanged by the neck, disembowelled and quartered - his body cut into four pieces. His severed head would then be affixed to a pole. Oh, yes, that would be the result of a guilty verdict. Is that a worthy fate for this man, who had only been reacting to hideous injustice, and who had certainly done no more than three other defendants who have been found ‘not guilty’ by three separate juries? Ireland would also take this opportunity to remind the jurors that he, personally, was not to blame for this enormous waste of time and money. That would be the Crown.
Ireland has complete faith in these honest men, that they will deliberate wisely and well and come back with the only verdict possible on the evidence presented: not guilty.
From the looks on the faces of the jury, they seem to be impressed by the argument as they gaze upon the Italian benignly at worst, perhaps even warmly. At nine o’clock the jury retires and, while Carboni prays to the Lord his God and Redeemer, they deliberate.
Mercifully, one way or another, it does not take long - the jurors are back just 20 minutes later..
The Clerk of the Court takes over and speaks up: ‘Gentlemen of the Jury, have you considered your verdict?’
‘We have.’82
‘Do you find the prisoner at the bar guilty or not guilty?’
‘NOT GUILTY!’83
Hurrah!
Just a minute later, Raffaello Carboni is standing on the steps of the Supreme Court, a free man, completely smothered in hugs, handshakes and pats on the back from his supporters. The feeling is overwhelming, and yet the Italian still has the presence of mind to raise his right hand to the heavens and utter a quick public prayer, finishing with, ‘in Thy mercy save this land of Victoria from the curse of the “spy system”.’84
Right next to him, Timothy Hayes - a free man himself, of course - responds with, ‘Amen’, a word and sentiment repeated by all and sundry gathered before them.
With the jury’s announcement the next day that the Nederlander Jan Vannick is also ‘not guilty’, The Age places its story prominently, beginning:
THE FIFTH DEFEAT!
Vannick, another of ‘the foreign anarchists,’ is acquitted! Go on Mr Attorney! You are very hoarse, but you are doing more in a week to bring the Government into contempt than The Age could do in a year.85
The following day, with Raffaello Carboni in ecstatic attendance, encouraging them with many gestures and smiles in his Latin way, both Michael Tuohy and James Beattie are also acquitted.
Of course, with each acquittal the likelihood increases that all the remaining prisoners will also be freed. Once it has been established that the actions of the others are not treasonable, the task of the prosecutors will be to prove that one or all of the remaining prisoners has done something different. It is perhaps for this reason that on 26 March the Sydney-born Thomas Dignum is released without trial on the prosecutors’ reckoning that they simply don’t have enough evidence of sufficient weight and difference to convict him. (Which is alright for so
me, for it is on this very morning that the one-time editor of the seditious Ballarat Times, Henry Seekamp, begins to serve his six-month sentence.)
What of the other five cases? To most observers it is obvious that the government is never going to get a conviction, and as Sir Charles Hotham would later advise the now Home Secretary Sir George Grey in his report to his superior, after the acquittal of Carboni, ‘it became a subject of discussion whether the trials should be proceeded with; it was urged that justice was held up to derision and mockery, and that it would be most prudent to desist.’86
Sir Charles, however, will hear none of it, as he would later tell Sir Grey: ‘But in this opinion I do not share. If juries would not do their duty I could discover no reason why I should not do mine. I deemed it of the highest importance to prove that the common law of the land in political cases was insufficient.’87
So it is that the trials go ahead, with all five remaining prisoners brought to the court together.
On this very morning, The Age, with Ebenezer Syme and David Blair in their finest form, sets the tone:
‘To-day,’ it reports, ‘the familiar farce of “State Prosecutions; or, the Plotters Outwitted” will be again performed, and positively for the last time; on which occasion that first-rate performer, Mr. W. F. Stawell, will (by special desire of a distinguished personage) repeat his well-known impersonation of Tartuffe, with all the speeches, the mock gravity, &c., which have given such immense satisfaction to the public on former occasions. This eminent low comedian will be ably supported by Messrs. Goodenough and Peters, so famous for their successful impersonations of Gold-diggers; and it is expected that they will both appear in full diggers’ costume, such as they wore on the day when they knelt before the “Southern Cross,” and swore to protect their rights and liberties. The whole will be under the direction of that capital stage manager, Mr. R. Barry, who will take occasion to repeat his celebrated epilogue, in which he will - if the audience demand it - introduce again his finely melodramatic apostrophe to the thunder.
‘With such a programme, what but an exceedingly successful farce can be anticipated? A little overdone by excessive repetition, it may be said; but still an admirable farce; and, as we have said, this is positively the last performance. Therefore, let it go on; or as Jack Falstaff says, “play out the play”.’88
And so it does go on, with the five prisoners all arraigned and tried together … for the widely expected result.
The next morning, after just seven minutes of deliberation, the jury delivers their verdict and … all are acquitted!
27 March 1855, alone, so very alone, in Toorac House
Never more isolated from Melbourne proper than now, Governor Hotham receives the news with a heavy heart, his morale and moral authority destroyed in equal measure. Even his legal authority is now looking shaky.
It is on this same day that the Goldfields Commission presents to the Lieutenant-Governor its report of their inquiry into the conditions of the Victorian goldfields, confirming everything that it had forewarned in early January.
It is their official view that the license fee is the primary cause of the revolt, and it should be abolished immediately, replaced by an export duty on gold at two shillings and sixpence an ounce. The diggers themselves would not be let off scot-free: although the whole license-fee system and Gold Commission should be abolished, they should pay for a license called a ‘Miner’s Right’ at a fee of PS1 annually, but with that license they would also have the right to vote. Who for? The Commission recommends that the Legislative Council should have eight members elected specifically from the gold-digging communities across Victoria, and another four nominated members. As to the administration of the law, it suggests that local miners’ courts should be established on the goldfields, with local miners elected to them, just as local wardens could be appointed to replace the gold commissioners. What is more, the report finds, ‘This land monopoly must be completely broken down. If the lands by hundreds and thousands of acres yearly are insufficient for that purpose, they must be brought forward by millions.’89
In short, the Commission’s recommendations are that all the grievances held by the diggers are justified, and the best way forward is to grant all the things they have requested.
Yes, it is only a report at this stage, but the findings come with the imprimatur of having been issued by a qualified body that, at the Lieutenant-Governor’s behest, has thoroughly investigated all the issues - and their findings clearly concur with what is the broad view of all of Victoria, with the exception of the squatters … who now matter less and less as democracy starts to take hold. The Lieutenant-Governor could only ignore the people and the findings of this Commission at his peril. Given the events at Eureka, that is unthinkable.
The days of Sir Charles Hotham ruling Victoria in splendid isolation are over.
Less than 12 months after his glorious arrival, he has lost the confidence of the people, his Executive Council and - though he has not yet received the letter confirming it - the confidence of his masters in London.
That letter, when it comes, is devastating in its own way. In a confidential dispatch, the British Secretary of State for the Colonies, Lord John Russell, does not mince words: ‘In further acknowledgment of your dispatch No. 38 of 28th February last, respecting the trial of the prisoners taken at Ballarat, I wish to say that although I do not doubt you have acted to the best of your judgement, and under advice, yet I question the expediency of bringing these rioters to trial under a charge of High Treason, being one so difficult of proof, and so open to objections of the kind which appear to have prevailed with the Jury …’ 90
For the moment, however, it is The Age that puts it rather well, when it comes to Sir Charles: ‘In the short period of seven or eight months, he has managed to alienate the sympathies of every class in the colony … earned a character for contemptible official trickery and evasion, and has brought the good faith of the Government into disrepute by a systematic breach of contract … [and] a disgraceful system of espionage.’91
Peter Lalor couldn’t agree more as he continues to closely follow the unfolding events while recuperating under the care of Alicia. His love!
‘I need not speak of Alicia,’ he would soon write to his brother Richard, now back in Ireland. ‘Every misfortune of mine seems to add new vigour to her affection. When I believed I was dying for some days, my only earthly trouble was Alicia. The diggers and inhabitants of Melbourne love her for her conduct towards me …’92
For the moment Lalor stays hidden but, in the light of the acquittals and the complete vindication of everything that he and his fellow diggers had fought for, the one-armed, one-time rebel leader eventually writes a statement for The Argus. Published on 10 April 1855, it includes words that Fintan Lalor himself would surely have been proud to pen …
‘From the steps now being taken by the Government, I have no doubt but that we shall have many measures of useful reform carried into effect. Why were not these measures adopted before? Why did not the Government take steps to alter the land system, to amend the mode of collecting the gold revenue, and to place the administration of justice in the hands of honest men before this bloody tragedy took place? Is it to prove to us that a British Government can never bring forth a measure of reform without having first prepared a font of human blood in which to baptise that offspring of their generous love? Or is it to convince the world that, where a large standing army exists, the Demon of Despotism will have frequently offered at his shrine the mangled bodies of murdered men?
‘Whatever may have been the object of our rulers in adopting the line of policy they have pursued, the result has been deplorable, and such, I hope, as a civilised people will never again have to witness.’93
5 May 1855, an auspicious day on the diggings of Ballarat
After a preliminary release of land the year before, some more prize land near Ballarat goes on sale at a public auction, allowing diggers and others a choice of
lots of varying sizes to buy and have title to - some of it close to Ballarat. One particularly coveted bit of terrain boasts 160 acres of fertile fields at Glendaruel, just 20 miles north-west of the diggings, and the bidding is intense.
In the end, though, the man who wins it is a strapping fellow with a roundish face and beard who looks to be in his late 20s, standing at the back of the auction room with a coat curiously draped across his left shoulder.
The auctioneer knocks the land down to him and then says, ‘Yours, sir. What is your name, please?’
‘My name, sir,’ says he, ‘is Peter Lalor.’94
As one the room gasps and peers more closely, and it is indeed him! And he has the money to pay for it, too. Knowing Lalor’s intent, many of his friends on Ballarat have gathered together to raise money to get him back on his two feet again, and have put together over PS1000 for him to buy this land. It is Lalor’s aim to try his luck raising crops and cattle - incapacitated as he now is, further gold-digging is out of the question, even if he wanted to. So grateful are the mass of diggers that even more money is now being raised to pay for a house to be built on that land and to establish the farm.
No move is made to arrest Lalor. Even though there officially remains a PS200 reward on his head, it is tacitly understood, by the authorities at least, that there is to be no more pursuing those involved with the Eureka Stockade. In fact, four days after Lalor reappears in public, the government announces that the mooted reforms will indeed be made, and also makes a proclamation revoking the rewards that had been offered for the likes of Friedrich Vern, George Black and Peter Lalor. With 13 acquittals from 13 imprisoned, there is no point, nor strength left, to try the 14th, 15th and 16th, even if the government could find them.
For everything, but everything, is now changing rapidly.
On 12 June, the Goldfields Act 1855 - incorporating most of the Commission of Inquiry proposals - is passed. The whole system of license fees and collection is abolished, and, as had been suggested by the Commission, is replaced by the Miner’s Right, which for an annual PS1 fee gives the diggers the right to dig for gold, to vote for their eight members of the Legislative Council, and to build a home and develop a garden on a piece of land known as a ‘Residence Area’. It is in this manner that the country towns of Central Victoria - stable, urban environments - suddenly spring up.
Eureka: The Unfinished Revolution Page 59
