by Clare Wright
It was Justice Redmond Barry who would preside over this morality play. On 20 November there was a solar eclipse. Commentators attributed the freakishly mercurial weather—hot one minute, storms the next—to this astrological phenomenon. The packed public gallery at the Supreme Court didn’t need to look into the sun to be dazzled by the strange alignment of events. Only two days before, Ann Quin had been arrested in Melbourne in connection with the Bank of Victoria robbery, Eliza Smith was brought in for all those stolen notes stuffed into her stockings and now here was another of Ballarat’s daughters in the dock. And that night, another Irish Protestant Catherine, the internationally acclaimed chanteuse Catherine Hayes, would make her final appearance at the Queen’s Theatre just down the road from the courts. The lady was as rapturously encored as ever, reported the ARGUS, greeted with a shower of bouquets and with volleys of cheers and other manifestations of delight from the audience.21 Catherine Hayes was reputed to have cleared over £10,000 from her two-month tour of Sydney, Melbourne and the diggings. The only volley Catherine Bentley would receive was of jeers as she entered the court.
Three hundred diggers came to Melbourne for the Bentleys’ trial, but it proved anti-climactic. The most scintillating drama occurred when Catherine was given a chair during her cross-examination in order to rest her swollen body. Dr Carr, who was there to give evidence, assessed the exhausted woman’s condition and Justice Barry called an adjournment for Catherine to have proper attention from the doctor. (No newspaper reported that she was pregnant.) Apart from that, there were no shocks, scandals or bombshells to entertain the crowds. The circumstantial evidence was piled up against the Bentleys. The best John Ireland could do for the defence was to ask Mary Ann Welch whether she had any ill feeling towards Mrs Bentley that might have motivated her testimony. No, said Mary Ann. In the end, Ireland could only plead that his clients had already suffered enough in losing all their property and being held up to public execration. And he subtly pointed out that, if anything, the bulk of the evidence was ranged against Catherine Bentley. If found guilty of this most serious charge, Ireland told the jury, they must expiate this accidental calamity by death, involving too the life of a woman.
Would Catherine Bentley be the first woman to hang in Victoria? Attorney General Stawell had no qualms about such an outcome. Though the reasonable man might be unwilling to believe that a woman had gone out to commit murder, Stawell thundered, the jury should lay aside all such considerations…She also seems to have rejoiced as much as anyone at the way in which the men were got rid of.22
Justice Barry addressed the jury for over an hour. The jury deliberated for forty-five minutes. At 9pm on Saturday evening, as Catherine Hayes was singing her last aria, the foreman delivered the verdict. James Bentley, Farrell and Hance, guilty of manslaughter. Catherine Bentley, not guilty. (Scot free was how Carboni put it.) On Monday, as the sun slipped behind the moon, the men were sentenced to three years’ hard labour on the roads. Catherine was released to her own version of the retributive wilderness. She would not swing, but in February she would give birth alone, to her baby Louisa. Catherine was a mother of two with no lawful means of support, and by Christmas 1855, she would be brought up on charges of illegally selling alcohol from her Maryborough refreshment tent. What a spectacular fall: from licensed victualler and owner of the largest building on the most prosperous goldfield in the world to sly grogger at an outlying diggings. The Bentley family’s brief flirtation with the world of chandeliers and champagne would never be reprised. It was all downhill from here.
It was a busy week for Redmond Barry and John Ireland. On the same day that Bentley and his co-convicted were sentenced, Thomas Fletcher, Andrew McIntyre and John Westoby had their hour upon the stage. It was another show trial of sorts. The government desperately needed to save face after the Eureka Hotel riot. In the mind of the diggers’ leadership, the conviction of James Bentley justified the incendiary action of the mob. The grievances at Ballarat had quickly gone from begging letters about poverty and iniquitous taxation to calls for self-government and even secession from the Crown. The ARGUS had reported Thomas Kennedy as saying in his Bakery Hill address that if the diggers did not get justice, they would Go to the Queen of England, a simple-minded mother, far away from these her children, and ask if the child suck too long it will not injure both one and the other.23 (Kennedy knew what an over-sucked mother looked like: he had four small children and an enervated wife in his own tent.)
Hotham did not want to be responsible for any premature weaning of the infant colony. But neither could he close the nursery door on the screaming baby. The howls of protest were now coming from all quarters. Even that doyenne of imperial respectability, Caroline Chisholm, was weighing in on political affairs. Mrs Chisholm had toured the diggings in November. On her return to Melbourne she made a lengthy speech to a large crowd on 17 November, the eve of the Bentley trial. She represented the miners as a fine body of men, the vast majority of whom emphatically possessed heads on their shoulders, not just hands for digging. Echoing Ellen Young, Mrs Chisholm advocated unlocking the lands to encourage more wives and families to the goldfields, and warned: If something is not done to remove the difficulties under which these men are placed, the consequences will be terribly felt.24 Her lengthy speech was reprinted verbatim in the Melbourne papers.
Hotham was now eager to claw back some control of the good ship Victoria, which was veering dangerously off course. Added to the public pressure was the fact that the military reinforcement of Ballarat was costing him a fortune, precisely when London was looking for him to balance the budget: Cobb and Co. and George Francis Train alone had charged thousands of pounds to transport the extra troops to Ballarat.
In the trial of McIntyre, Fletcher and Westoby, the jury deliberated for over five hours. A defence of provocation had been mounted, citing the wrongful conduct of the Ballarat officials; Mr Justice Barry rejected it. Was it really any surprise when all three accused were found guilty of assembling together unlawfully, riotously and tumultuously? But the jury added a rider to the verdict: if the government at Ballarat had done its duty properly, the jury would never have had to perform the painful duty it had just been called upon to execute. The hushed courtroom exploded in cheering. But Barry was unmoved. He expressed particular disgust with respect to the horses that had been incinerated in the hotel blaze and sentenced Andrew McIntyre to three months in Melbourne Gaol, Fletcher to four and Westoby to six. Richard Ireland had seen six clients incarcerated in the space of two days. He would get the chance to redeem himself sooner than he knew.
When news reached the diggings that the Ballarat Three had been convicted, the executive of the reform league met to decide how to respond. Black and Kennedy were dispatched to Melbourne, where they met up with Humffray and made an appointment to see the governor himself. This delegation would present the concerns of the Ballarat diggers directly, including a copy of the Diggers Charter. It is a measure of the small-town intimacy of the colony, despite its recent population explosion, that the men could get an audience with His Excellency, the colonial secretary and the attorney general on Monday 27 November. (Whether Lady Hotham was party to the discussions the notaries did not record.) It was the same familiarity that had inspired Ellen Young to write to Hotham back in September, offering him her detailed ideas for an alternative licensing system.25 It was also the source of her resentment when Hotham reneged on his promise to listen to the people. Ellen’s fury is not a sign of womanly temper but a reaction to the tantalising proximity of colonial power: it was personal.
Nor did Black, Kennedy and Humffray come to the great man shaking at the knees; in fact, Hotham might have been a darned sight more amenable if they had fawned a little more. Instead, the reform league’s representatives followed Ellen Young’s lead and presented Hotham with their demands. Black demanded that Fletcher, McIntyre and Westoby be released. Hotham bristled. He reminded the delegation that the Americans of Ballarat had successfully
petitioned him for executive clemency in Carey’s case. Then: I must take my stand on the word ‘demand’, said a defensive Hotham. I am sorry for it, but that is the position you place me in.
The delegation did not apologise, but tried another tack. Kennedy implored Hotham to act on the diggers’ grievances before blood was spilt. Black played to one of Hotham’s pet concerns: bringing women to the diggings. I am desired by the married men of Ballarat to make a request of your Excellency, Black began.
It is this—that every possible facility may be afforded by your Excellency to enable them to settle and have their wives and families there. They are all anxious to settle upon the land, but at present the difficulties of their so doing are too great, and I am requested to bring that subject especially before your Excellency’s notice.
Hotham softened. That is a point which presses very much, he conceded. But he could not give an answer to take back to the married men of Ballarat, except to say that he agreed in the necessity of some provisions being made.
Ten days earlier Hotham had announced a commission of enquiry into the administration of the goldfields. It was to this decree that he now returned.
Tell the Diggers from me and tell them carefully that this Commission will enquire into everything and every body, high and low, rich and poor, and you have only to come forward and state your grievances, and, in what relates to me they shall be redressed. I can say no more, we are all in a false position altogether.26
As the delegates left with pockets full of empty promises, how could they fail to notice that Hotham was in a false position in a mansion in leafy Toorak, while they returned to threadbare tents on a dusty goldfield.
The road to and from Ballarat was taking a beating in those last weeks of November. There were all the witnesses summoned to the two trials: Mary Ann and Bernard Welch, Dr Carr, the turncoat Mooney, Agnes Sinclair the nursemaid, and a slew of police happy for a night or two away from the gloom and tension at the Camp. There was the reform league’s deputation, Diggers Charter in hand. There were the five hundred men and five hundred women and children still arriving each week to try their luck on the Ballarat goldfields. There was another batch of one hundred and fifty military reinforcements from the 40th Regiment sent to the Camp on 27 November, the same day Hotham took tea with the delegates.
And there were the Camp’s wives and families, on the move again. Back in October, after the hotel riot, the women had been sent from Camp for their own safety. After Captain Thomas’s defence plan, they returned. Following the conviction of Fletcher, McIntyre and Westoby, it was deemed prudent they leave again.
Maggie Johnston chose this occasion to resume her diary entries.
November 22 Wednesday
Went to Buninyong to the Allens. Mrs Lane and I—our first flight from camp.
November 23 Thursday
Spent an anxious day. Nothing happened to our beloveds.
November 24 Friday
Passed much in the same way. Still anxious. Had a letter from dear Jamie.
November 25 Saturday
My dearie came for us and we got safely back. Found everything alright.
November 26 Sunday
Was poorly, in bed. Dear Jamie went to church alone.
November 27 Monday to December 2 Saturday
Every day this week most anxious as the diggers threatened all sorts of horrid things. All the ladies out of camp—out myself.
Elizabeth Massey was at the Queen’s Theatre to see Catherine Hayes’ final performance. She concurs that the singer was indeed showered with nuggets, sovereigns and bouquets; it was said Hayes took £800 that night. But the festivities were rudely interrupted.
Our gaieties were rather suddenly put a stop to by our friends’ anxiety to return home in consequence of the frightful and exaggerated reports which were daily arriving in rapid succession from the country, of an outbreak at Ballarat.
That night, a rumour spread that the Camp had been burnt down. Another report said the whole 40th Regiment was going up. The gossip was exaggerated, but a deployment was certainly on the move. They would first sail to Geelong, gather reinforcements and head up to Ballarat from there. Mrs Massey and her friends went to see off the troops. At the docks, she expected to find doleful faces, but was flabbergasted at the celebratory atmosphere.
I think I never saw a more joyous party. They reminded me of happy schoolboys bound for some party of pleasure, yet kept in unwilling restraint by the eye of the master…many were bestriding the guns, and otherwise testifying their satisfaction at the prospect of a fight.
Happy schoolboys. Unwilling restraint. The prospect of a fight.
Arriving at the barracks, Mrs Massey found an altogether different scene.
The women and children, who had turned out to see the departure of their husbands and fathers, were weeping and bewailing their sad lot in not being allowed to follow them, and kind people were doing their best to console, seemingly to no purpose, these disconsolate ones.
The only solace, surmised Mrs Massey, was that the regimental wives didn’t have poverty to bear as well as loneliness. But for some in the embrace of Her Majesty’s service, there would never be compensation for the eternal grief about to descend.
Thursday 28 November was Thanksgiving. Turkey Day. Always keen to celebrate their nation’s holidays, the American community on the diggings prepared to feast. Expat Yankees drank bourbon and sang patriotic songs, in each other’s tents or at a grand ball. A lavish dinner was staged at Brandt and Hirschler’s Victoria Hotel at Red Hill. The proprietors had gone the whole hog, providing a perfect legion of delicacies for the seventy men who dined from 8pm to 2am.27 A band played ‘The Star Spangled Banner’, ‘God Save the Queen’ and ‘La Marseillaise’. James Tarleton accepted an invitation to attend. So did Robert Rede, who welcomed the occasion to cement good relations with Ballarat’s most prominent Americans.
Popular discontent was at its apex. In every quarter—the pub, the field, the store, the campfire, the theatre, the church—people stopped to discuss the theory of political relationships, as the GEELONG ADVERTISER put it. Thomas Pierson was more specific. At the daily stump meetings being held, people speak openly in unmeasured terms against that old scamp the Governor and nearly all in office. [They] urge people to declare Independence. One speaker Pierson heard said if all the people would just assert their rights and claim a Republican Government, then we could stand here as Proud as any of the sons of America. The agitators, noted Pierson, seem determined to make Australia free.
To Rede and his fellow upholders of Australia’s peculiar ancien régime of squattocracy and imperial monarchy, such talk did not come cheap. Another monster meeting at Bakery Hill had been placarded for tomorrow, the 29th, and it was rumoured that a formal declaration of independence would be made. On the goldfields, Yankee-style freedom signalled frontier lawlessness: Lynch Law, the law of the bowie knife.
A recent incident in Ballarat had confirmed what a Yankee justice system might look like. In August, American digger Robert Clarke was playing cards at the Albion Hotel with three cronies. They were playing for ‘nobblers’ (shots of spirits). Clarke refused to follow suit in one trick, causing a dispute with a digger called Van Winkler, who accused Clarke of cheating. Clarke backed down, but in the following hand threatened to blow out the brains of any man who disrupted the play. Van Winkler told Clarke that a man that sat down to play on his friends and could not play without cheating was no man at all. Clarke pulled out his pistol and fired. The bullet missed Van Winkler, whistled through a canvas wall and killed Kosman Berand, who was asleep in a cot. Mrs O’Kell, the landlady, whipped out her own pistol, while the diggers and musicians in the hotel wrestled Clarke to the ground.
On 28 October, Clarke was found guilty of manslaughter and sentenced to seven years on the road.28 If it had happened on the American frontier, Clarke would have wiped the blood from the cards and continued his hand as the musicians picked up the tune and Berand was dragg
ed out to the pigs. The American frontier was Robert Rede’s idea of hell.
Lone ranger vigilance committees were one thing, but republican yearnings were quite another. There had always been a concern among some British bystanders at how quickly Victoria was becoming Americanized. It was a love–hate relationship. In George Francis Train’s assessment, the colonial government admired the indomitable energy, entrepreneurial ingenuity, can-do spirit and brash confidence of the American immigrants, but was less comfortable with the fact that Americans had no truck with ‘the word’. The American disrespect for constituted authority seemed to be rubbing off on the digging body as a whole, especially as the authorities did nothing to win back the people’s regard. After the Eureka Hotel blaze, George Francis Train wrote in his BOSTON GLOBE column, Give the colonists their own way, and they will remain loyal—cross their path and they will have a flag of their own.