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The men who were arrested at (or near) the Eureka Stockade on the morning of 3 December 1854 were marched to the Ballarat lock-up and held until charges could be laid against them or dropped. Most of the prisoners faced the Bench of Magistrates, but only thirteen were remanded for trial and charged with high treason. The records relating to the State Trials, that form part of the Eureka Collection (VPRS 5527), include depositions of witnesses for the prosecution taken between 7 and 9 December in Ballarat. These depositons formed the basis for the Prosecutor’s Brief, used to assist in the trial. Recognizances were also served to each deponent requiring them to attend the trials, scheduled for 15 January 1855 in Melbourne.
For those men who were not slaughtered at Eureka, the alternatives were to be arrested or to hide. It is not known how many prisoners managed to evade arrest, but many of the ringleaders avoided capture. The Commander-in-Chief Peter Lalor hid, heavily wounded, underneath slabs within the stockade. He was later rescued and after a few weeks of recovery, escaped from Ballarat to Geelong, hidden in a dray.
The Colonial Secretary’s Office offered a £200 reward for the capture of Lalor and George Black in the days and weeks after the attack, but to no avail. Frederick Vern commanded a £500 reward in spite of his reportedly rapid flight from the battle scene, presumably due to his distinctive appearance and significant role in the days preceding the attack.
The hundred or so prisoners who were arrested were marched to the Government Camp and held in the confined space of the lock-up. They were then moved to the storehouse of the Camp at 2 am on the Monday morning, 4 December, due to overcrowding.
Evidence against the prisoners arrested in and around the stockade was heard before E.P.S Sturt on 7, 8 and 9 December in Ballarat. The depositions taken, mainly from troopers and police involved in the attack and from some eyewitnesses, attempted to identify each prisoner’s level of involvement as they were brought into custody. The process involved taking sworn and signed statements (depositions) from witnesses who testified to the circumstances surrounding the charges. The testimony was made in front of the accused, who were then given a chance to respond to the charges.
The witnesses were bound by a ‘Recognizance to Give Evidence’ or a signed undertaking that they would appear at the trial to repeat and answer to their testimony. These signed statements and other documents were then forwarded to the prosecutors in the jury trial, forming the raw material for the prosecutor’s brief.
The nature of the mass arrests at the stockade led to a process in which numerous witnesses deposed against small groups of prisoners under charge. The respective groupings are reflected in the organisation of the recognizances and depositions in the files. The groupings are summarised below:
|Henry Goodenough||Daniel Haggarty|
|Thomas Atkins||Andrew Peters|
|Patrick Riley||John Badcock|
|William Revell||John Donnelly|
|Samuel Slackwell Furnell||Thomas Milne|
|John King||Patrick O’Keefe|
|James Gorr||George Fraser|
More detailed statements were taken against particular groups of prisoners, as follows.
Depositions against Timothy Hayes were taken on 7 December from:
|Henry Goodenough||Thomas Bailey Richards|
|Andrew Peters||Thomas Carruthers|
|Hugh King||William Fleming|
|William Thompson||James Ronayn|
|Thomas Edmund Langley|
Charles Jefferies Carter, John Manning Thomas, Joseph McKeown and John Cahill were all charged together on 8 December, and the witnesses who deposed against them were:
|Henry Goodenough||Patrick O’Keefe|
|Charles Jeffries Carter||Patrick Synott|
|Daniel Haggarty||Andrew Peters|
|William John Sullivan||Michael Costello|
Charles Brown, Thomas Barry, Michael Tuohy, Henry Read and James Campbell were also charged together on 8 December, and depositions were taken from the following:
|George King||John King|
|Samuel Slackwell Furnell||John Dogherty|
|Michael Lawler||Joseph Penrose|
|John White||John Penalama|
|Eugene Bellairs||James Wearne|
|James Richardson Gaunt||Peter Ellis|
|John Sullivan||James Clerk|
|Joseph Raynor||Henry Bedwell|
In the case of Thomas Dignum, which was later dropped by the Attorney-General, William Revell deposed as a witness on 9 December.
On the same day, the witnesses against William Molloy, Jacob Sorenson and Patrick Howard were:
|Edward Viret||George King|
|Thomas Bradley||Henry Foster|
Also on 9 December, depositions against John Phelan were taken from:
|Ladislas Kossak||Samuel Slackwell Furnell|
Although over one hundred men were arrested, the cases against all but thirteen were dismissed due to lack of evidence. The final thirteen charged were: Timothy Hayes, John Joseph, Raffaello Carboni, James Beattie, J.F. Cambell, John Manning, William Molloy, John Phelan, Henry Read, Michael Tuohy, Thomas Dignum, Jacob Sorenson and Jan Vennick. All were charged with high treason.
The prisoners were then quickly removed to Melbourne under heavy escort, to await trial in the Supreme Court. They were to be held at the Melbourne Gaol, where they were subject to cramped conditions and harsh treatment. The prisoners were so appalled at their treatment they eventually submitted a letter to the Sheriff appealing for clemency.
The transcription below is taken from the Age dated 14 February 1855. The original is not extant in the holdings of the Public Record Office Victoria.
To the Sheriff of the Colony of Victoria,
SIR – As the chief officer of the Government regulating Prison Discipline in Victoria, we, the undersigned Ballarat state prisoners, respectfully beg to acquaint you with the mode of our treatment since our imprisonment in this Gaol, in the hope that you will have the goodness to make some alterations for the better.
At seven o’clock in the morning we are led into a small yard of about thirty yards long and eight wide where we must either stand, walk or sent (print not readable) upon the cold earth (no seats or benches were afforded us), and which at meal times serves chair, table, &c., with the additional consequence of having our food saturated with sand (print not readable) and with every kind of disgusting filth which the wind may happen to stir up within the yard. We are locked in about three o’clock in the afternoon, four or five of us together, in a cell whose dimensions are three feet by twelve, being thus debarred from the free air of heaven for sixteen hours out of the twenty-four. The food is of the very worst description ever used by civilised beings. We are debarred the use of writing materials except for purposes of pressing necessity ; are never permitted to see a newspaper ; and strictly prohibited the use of tobacco and snuff ; we have been subjected to the annoyance of being sometimes stripped naked, a dozen men together, when a process of ‘searching’ takes place which is debasing to any human being, but perfectly revolting to men whose sensibilities have never been blunted by familiarity with crime – an ordeal of examination, and the coarse audacity with which it is perpetrated, as would make manhood blush, and which it would assuredly resent, as an outrage upon common decency in any other place than a prison. And again, when the visiting Justice takes his rounds, we are made to stand bareheaded before him, as if &c.
We give the Government the credit of believing that it is not its wish we should be treated with such unsparing malignity and apparent malice, and also believe that, if you, Sir, the representative of Government, in this Department, had been previously been made acquainted with this mode of treatment you would have caused it to be altered. But we have hitherto refrained from troubling the Government on the subject, in expectation of a speedy trial, which now appears to be postponed sign die.
We, each of us, can look back with laudable pride upon our lives, and not a page in the record of the past can unfold a single transgression which would degrade us before man, or for which, we would be condemned before our Maker.
And we naturally ask why we should be treated as if our lives had been one succession of crime, or as if society breathe freely once more at being rid of our dangerous and demoralising presence. Even the Sunday that to all men in Christendom is a day of relaxation and comparative enjoyment, is for us one of gloom and weariness, being locked up in a dreary cell from three o’clock Saturday evening, til seven on Sunday morning (except for about an hour and a half on Sunday), thus locked up in a narrow dungeon for forty consecutive hours, 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?
We therefore humbly submit that, as the State only looks at present to our being well secured we ought to be treated with every liberality consistent with our safe custody, and that any unnecessary harshness or arrogant display of power, is nothing more or less than wanton cruelty. Some of us for instance, could while away several hours each day in writing, an occupation which, while it would fill up the dreary vacuum of a prison life, would lend elasticity to the mind, as would the moderate use of snuff and tobacco, cheer it and soothe that mental irritation consequent upon seclusion. But that system of discipline which would paralyse the mind and debilitate the body – that would destroy intellectual as well as physical energy and vigor, cannot certainly be of human origin.
Trusting you will remove these sources of annoyance and complaint,
We beg to subscribe ourselves,
Sir Your obedient servants,
Here follows the names.
On 16 January 1855 the prisoners were brought before Sir William a`Beckett, in the Supreme Court of Victoria, where they were required to answer the charges laid against them and to select counsel. The prisoners were not required to enter a plea until 29 January.
Proceedings in the trials, which had enormous public interest, finally began on 22 February 1855. On this day, the Attorney-General William Stawell commented that
‘so long as we are interested in the maintenance of law and order, so long must we feel the greatest and deepest importance in the result of a trial of this kind’.
The daily proceedings of the trials were reported in both Melbourne newspapers, the local papers of Ballarat and Geelong, and also in New South Wales. The events were often the subject of scathing editorial and public comment, particularly in the Age in Melbourne, which made no apologies for its criticism of the government and mockery of the trials.
For a summary of the trials click here.
The prisoners were placed at the bar and answered to their names. As they had already received a full written copy of the charges against them, a summary was read by the Associate:
Prisoners at the bar, 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.
In the second count you are charged with having made war, as in the first count mentioned, and with attempting at the same time to compel by force our said Lady the Queen to change her measures and counsels.
In the third count the charge against you is, that 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:
Ist 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.
2nd 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.
3rd 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.
4th That being armed and arrayed in a warlike manner, you fired upon. fought with, wounded, and killed divers of the said soldiers and other subjects then fighting in behalf of our said Lady the Queen, contrary to duty and allegiance. In the fourth count the charge against you is, that having devised and . levy war against the Queen, in order to compel her by force and constraint her measures and counsels, you did express and evince such treasonable and divers acts, which overt acts are four in number, and the same as those described in the third count.
Each of the prisoners were then required to enter a plea. Timothy Hayes was first to plea, but defence lawyers stalled his plea due to a minor discrepancy written on the indictment. He eventually pleaded not guilty later that morning, after the twelve other prisoners had responded similarly to the charges. The prisoners were required to appear in the order they were listed in the indictment. Timothy Hayes and then Charles Raphelo (Raffaello Carboni) were to be tried first, but this was delayed by their counsel due to the absence of key witnesses. John Manning’s case was also delayed as his lawyer was reportedly too ill to attend. This meant John Joseph, the African American, was the first to be tried. A list summarising trial dates has been included for reference.
The Attorney-General began his argument, emphasising what he considered to be the heinous nature of the offences and their wider implications for the newly formed colony. He argued that
‘if men were allowed to organize such a conspiracy as this, there is no saying how many wrong headed men, acting with zeal – but misguided zeal – might be led into the commission of the most dreadful crimes and outrages.’
He also made a point of clarifying the definition of treason for the jurymen, as it was the first case of treason to be heard in the colony:
‘it must be an insurrection, and that insurrection must be accompanied with force – it must be not merely the outburst of a moment, but must have been planned and arranged by previous concert; and the conspiracy must be with a general object’ (State Trials transcript).
A general overview of the events leading up to the stockade in Ballarat was then described to the court. The Attorney-General made particular reference to the drilling of diggers, and the oath taken by them to fight for their rights and liberties under the flag of the southern cross.
John Joseph, it was argued, had been seen ‘distinctly’ in the stockade while the battle was occurring, armed with a double-barrelled gun. One witness, Stawell argued, had seen Joseph firing this gun in the direction of Captain Wise, who later died from wounds incurred at the stockade. Witnesses also testified to Joseph being drilled on the days leading up to the battle. The Attorney-General concluded with the summation that the evidence presented would be enough to convict the prisoner on all counts.
Additional evidence for the trial was also compiled to assist with the prosecution’s case.
These depositions form the basis of the prosecutor’s evidence against each prisoner, which became part of the trial brief.
Two complete transcripts were taken during the proceedings of the trials of John Joseph and Timothy Hayes. These are held by the Victorian Supreme Court Library. The transcripts shed light on the legal manouvering and questioning used by both the Attorney-General and the defence counsel.
The conduct of the trials was based around the statements by police and troopers involved in the attack. We have provided the following extract from the State Trials Transcript for the trial of Timothy Hayes to give an example of how the depositions were used, and challenged in court.
As Lieutenant Governor Hotham reports to England in his despatch no. 38 of 1855, the trials did not bring about the outcome he had sought. After the quick acquittal of Joseph and Hayes, subsequent trials were postponed while a new jury panel was collected together. This maneouvre was widely criticised, but did not have much effect. With each ‘not guilty’ verdict announced for the Eureka defendants the courtroom erupted into celebration, much to the chagrin of the Attorney-General and presiding judges.