Eureka - The Unfinished Revolution (80 page)

Yes, Chapman will reluctantly allow that Joseph’s conduct might have been something less than proper, but that is not the issue at hand. For Joseph has not been charged with merely acting improperly, and the task of the jury is to determine whether he is innocent or guilty of what he
has
been charged with.

‘Gentlemen, I ask you therefore once more, upon the whole of this testimony, whether you will deliberately upon your oaths as twelve reasonable men come to the conclusion that that man’s intention was to upset the Queen’s authority in this Colony, or to induce her to change her measures; because unless you can come to that conclusion, however culpable that man’s conduct may have been, it certainly does not amount to High Treason.’

Does the Junior Counsel Butler Cole Aspinall have anything he might like to add?

He certainly does.

‘Gentlemen,’ he starts in, ‘there he is accused of an intention to subvert the British Constitution and depose Her Majesty, set up here as a sort of political Uncle Tom, and you must look upon him, I suppose, either as a stupid negro, a riotous nigger from down south who had no conception of treason in his head, or as being actuated by the eloquence of Lalor on the top of this stump, and actually prepared to defend himself, and that he had some idea, that though a negro, in any British possession he was entitled to his liberties . . .’

It is a point well made, for the edition of
The Age
that very morning has confessed itself impressed with Joseph, despite his race.

‘Here is a poor nigger charged with “ulterior designs” of a character to him quite incomprehensible,’ it notes. ‘Treason is rather a respectable crime, and is generally associated with political partisanship and intellectual energy. Not that we depreciate Joseph. He may be . . . a very respectable individual in his way. He is, at all events, a man of strength and courage, as shown by the fact that he “challenged” thirty men before quietly resigning himself to his trial.’

The fact that he has black skin, however, is actually a key part of the defence’s case. Aspinall goes on to point out in this closing address, to murmurings of wide agreement around the court, ‘There are plenty of black men on the goldfields, and it is almost impossible for anybody but a slaveholder to know a negro from his fellow.’

The dark mood among the remaining prisoners in their holding cells lifts as, at the lunch break, John Joseph is able to re-join them and provide hilarious mimicry of the court proceedings. Oh, the fun of it!

Chapman, in the American’s account, becomes ‘old Chappyman’ while Aspinall is ‘t’other smart’un of spin-all’ and between the two of them, as Joseph evocatively describes it, they ‘did fix that there mob of traps, especially that godammed hirpocrit of a sergeant, I guess!’

And it is not just the words, it is the American way he does it, ‘with such eye-twinklings, widening of nostrils, trumping up the lips, scratching all the while his black wool so desperately’, that they all fall about with laughter. Things are looking up!

But it is now time for Joseph to head back to court – he composes himself to look blank, blinking slowly once more – for the Attorney-General’s closing address.

On the subject of John Joseph’s supposed lack of intelligence, William Stawell will have none of Aspinall’s line of reasoning and is crisply disapproving of this approach.

‘One learned counsel’s defence,’ he says, staring bleakly at Aspinall, ‘seemed to consist of this – that he supposed the prisoner now before you, because he happened to be a man of colour, was a man utterly devoid of intellect, utterly without education, a man who really did not entertain one single idea in his head. Gentlemen, I know no such thing – you know no such thing . . .’

That, however, would remain to be seen. For now, all Stawell can do is to conclude the formal proceedings by bidding farewell to the jury on their deliberations and saying, ‘Gentlemen, I leave this case fearlessly in your hands.’

After Chief Justice a Beckett gives a long summation of the case to the jury – finishing with, ‘Having discharged my duty, I now leave you to discharge yours’ – they retire to consider the verdict.

The jury returns just one hour later to an immediate stirring of the public gallery as all try to adduce the verdict from their looks alone. The stirring turns into a positive gust as the gallery thinks they spot it. And they like it!

Order!
Order!

‘Have you reached a unanimous decision?’

‘We have, Your Honour . . .’

‘What say you?’

‘Your Honour, on the charge of Treason, we find the defendant, John Joseph . . .
not guilty
,’

The roar from the crowd is so strong, so shattering, so entirely uncontrolled and improper in a judicial environment that Chief Justice a Beckett – ‘Order!
Order!
ORDER!’ – has no hesitation in putting two of the more uproarious members of the gallery in gaol a week for their trouble.

No matter! The calamitous commotion is soon turned outside the court as the cheering throng bear the stunned American upon their shoulders and out into the fresh air of freedom, tearing off down Swanston Street.

(Free at last, free at last, thank God almighty, he is free at last!)

What might have happened had he been found guilty? That is not certain, though one view later expressed by a carrier, John Chandler, who passed by the 3000-strong crowd outside the court every day, is that among them are many ‘secretly’ armed men ready to forcibly release any man the court might find guilty and sentence to hang.

In the wake of John Joseph’s acquittal, it is perhaps
The Age
–
pushed along by Ebenezer Syme and campaigning editor David Blair – that is most strident in its criticism of the Hotham administration’s handling of the case. The paper eloquently puts in black and white what the vast majority of the population is clearly thinking.

‘There remains, then, only one safe and honourable course for the government,’ it states flatly. ‘They should at once ABANDON THE STATE PROSECUTIONS . . . We repeat, and again repeat, ABANDON THE STATE PROSECUTIONS.’

To the far north, however, a few days later,
The Sydney Morning Herald
, disgusted that such a verdict could have been achieved in such a clear-cut case of treason, will have none of it.

‘We are quite aware,’ the august journal sneers, ‘that a strong feeling exists in Victoria in favour of separation from the old country . . . Where there is a large foreign element, a strong democracy, and many who have “the little learning” which attaches infinite moment to a popular idea, it will of course exist in great and growing strength. We do not pretend to represent this notion as criminal in itself – it is held by every section of politicians as a thing to be looked for – to be met by rational, and therefore gradual preparation. But there are persons who anticipate this separation with mad impatience!

‘Their real duty is, to press the claims of society and of the law to the last moment. If the Melbourne jurors chose to perjure themselves under the intoxication of popular passion, that is their concern. The Government should not abate one jot of its devotion to its duty, because it is met by a hostile influence, where it had a right to look for intrepidity and uprightness.’

Sadly for the authorities, however, the case against the next man on trial for his life, John Manning, goes no better and is all over in one day. There is no evidence that shows him to have been actively fighting against government troops in the Stockade on the Sunday morning. (Even though he had, in fact, been as active as any man there.) Though he is strongly suspected of having written some of the more inflammatory diatribes in
The Ballarat Times,
there is no proof of that either. It is the nature of such diatribes that they go out under the banner of the paper itself, rather than the name of the individual.

So what have they got? Not much. Manning, too, is found not guilty!

The joyous commotion outside the court is matched only by the celebrations on the goldfields, as the mighty
Ballarat Times
reports: ‘On Wednesday evening . . . in compliance with instructions from the committee of the Reform League, a large number of diggers fired salutes in honour of the acquittal of the two State prisoners, Joseph and Manning. Several large fires were lighted on the hills, and volley after volley was discharged. A band of music perambulated through the township in the afternoon, and played some lively tunes. There was a feeling of triumph and satisfaction in the breasts of all the sons of liberty at the acquittal of the prisoners and the defeat of the government.’

That throbbing sound?

It is either the pulsating excitement running through much of the colony at the prospect of the government’s total humiliation, or the veins in the temples of the Attorney-General and Lieutenant-Governor, who have now registered two major defeats. The pressure on them both is now enormous. It is one thing for the government forces to have stormed the Stockade, but with so many deaths they need to demonstrate that the assault was justified. Such grave consequences require that a charge of equally tremendous gravity be proven against the rebel leaders – to show it was their fault – and the only one that fitted was High Treason. With two of the accused now found not guilty of that charge, it is now
imperative
that the Attorney-General achieve a conviction against most or all of the remaining rebels.

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.’

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 . . .

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’ 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’.

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.’

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.)