At this point, however, Lieutenant-Governor Hotham and his leading officials, such as Commissioner Rede, are not finding it delightful at all. Notwithstanding His Excellency’s previous blandishments in Geelong that ‘all power proceeds from the people’, he had never meant it like this!
The notion proposed by the Ballarat Reform League, that authority for power could come up from the people and not down from Her Majesty the Queen - and that it is therefore the people’s right to remove whatever authority they don’t agree with - is truly dangerous, bordering on revolutionary. That much is highlighted by the threat to ‘effect an immediate separation of this Colony from the parent country’115 if their demands are not met.
Simply ignoring such demands and trusting that as moral-force Chartists the men will not take violent action is not enough. The movement itself must be stopped, and yet, for the moment, Robert Rede is not sure how to do it. It is obvious that the Camp urgently needs more troops than the 450 it already has, but after that? Rede’s mood changes by the hour, vacillating between wanting to send the troops in to crush the rebels and coming up with something to placate them.
Another week, another devastating financial report. This one received by Lieutenant-Governor Hotham details that the projected deficit for 1854 is - dot three, carry one, subtract two - PS2,226,616, 5s.116 To run the colony (including vast expenditure on new public works), the Government is already spending money it simply doesn’t have and, more than ever, the urgent need is to get the miners to make up the difference. Sir Charles has tried other methods, like imposing a levy of PS10 on every Chinese male who arrived at Port Phillip - no-one is more foreign than them, and it doesn’t matter if they don’t like it - but it came to nothing. The canny Chinese had simply gone on to Adelaide and walked overland from there. Which leaves Sir Charles where he started.
This movement against paying license fees must be crushed.
For Governor Hotham, mere military might is not enough. He also wants a well-oiled intelligence system to gather as much information as possible about what the ‘enemy’ is up to at all times. This is one of the many reasons that in the second week of November he summons Commissioner Rede to Melbourne to ensure that everything possible is being done to place their own men among the diggers - in the very garb of the diggers, pretending to be diggers. Rede has already been instructed to have observers and magistrates at every public meeting to write shorthand reports on everything that is said, but he also must ensure that things outside of public meetings are being recorded as well. What is happening? What are the diggers saying? What is their likely next move?
Obviously these men will have to be operating in conditions of strictest secrecy, lest they be exposed, and on the subject of secrecy Hotham is also insistent that he and Rede have a means of communicating with each other in code, so that he can send Rede ‘orders in cypher’.117 The Commissioner can then send coded messages back without the risk of sensitive information falling into the wrong hands. So clandestine is this method that not even Sir Charles’s most high-powered official, Colonial Secretary John Foster, will be aware of it.
For his part, Commissioner Rede reports that the key troublemakers are principally the non-English-speaking foreigners, who have as their ultimate goal the overthrow of the colonial government. These wretched ‘democrats’ will stop at nothing and must be held accountable by the law. Sir Charles finds it hard to believe that it is quite as bad as Rede makes out, but does agree that the law must be enforced, come what may …
CHAPTER NINE
ALL RISE
An unnatural separation was, so to speak, created by the law between the majority of the people and the Crown; and to give intensity to the danger, the people here were for the most part superior in mental and bodily capacities to the average capacities of their fellow countrymen whom they had left in their fatherlands. The courage and adventure which had made them emigrants, and the physical strength which had enabled them to weather the rude elements of early goldfields life, were qualities which made them valuable as freemen, but dangerous as slaves.
W. B. Withers in History of Ballarat1
[Robert Rede] was so puffed up with a sense of his own social importance that he made no attempt to conceal his contempt for the diggers. He was fond of using the language members of an elite use when discussing those placed under them. He was always talking of giving the diggers ‘a fearful lesson …’ It was the language of the English public school … Chance had placed him in authority over men who were likely to boil over when treated as inferiors.
Manning Clark in A History of Australia2
Saturday, 18 November 1854, a day of reckoning in the Melbourne Supreme Court
All rise.
Judge Redmond Barry presiding …
On this hot morning of late spring in the recently constructed Supreme Court on the north-west corner of La Trobe and Russell streets - with sandstone walls and shining mahogany interior - the case of Queen v. James Francis Bentley, Catherine Bentley, William Henry Hance and Thomas Farrell on the matter of the murder of the miner from Ballarat, James Scobie, may finally get under way.
And this time it is serious. Judge Barry is a carefully coiffed, good-looking 40-year-old Anglican Irishman of legendary learnedness, who is revered in Melbourne for the fact that his Old-World courtesy extends even to criminals - apart from his sentences, of course, which can sometimes be most discourteous. He is - with Chief Justice Sir William a Beckett - one of the two most respected judicial figures in the colony, not to mention one of the founding fathers of both the Melbourne Public Library3 and Melbourne University. There is a strong feeling that if he can’t provide justice, no-one can. (True, there had been a slight kerfuffle many years before when on his trip to Australia in 1839 the ship’s captain had been obliged to confine the young tearaway lawyer to his cabin to thwart the raging and very public love affair he was conducting with a female passenger - a woman every bit as beautiful as she was married - but it takes more than that to do a man down in these parts. As a matter of fact, even in the here and now, Judge Barry is not married to the woman who has already borne him two children - the small, dark-haired and strong-willed Louisa Barrow - but not even that is a problem.) He is also known to be a mostly kindly man, even if he is too kindly for some. It is known that, when a barrister, he frequently represented the natives, for free, if you can believe it.
As they take their place prior to the proceedings proper, the four accused prisoners sit glowering, none more than Bentley himself. His wife, Catherine, sits beside him, looking pale and unwell, though this admittedly may be because she is clearly not far away from confinement - perhaps in both senses of the word. Through the course of the day she is frequently seen to sob.
And why wouldn’t she?
To begin the case, the Crown Prosecutor, Attorney-General Stawell, offers a new witness who did not testify at the previous hearing. He is the waiter from the Eureka Hotel, Michael Welsh, who tells the court that on the night in question he had personally seen Scobie arguing through the broken window with one of the accused, William Hance, entirely destroying the notion that the victim had no interaction with anyone in the hotel before he was carried there. This evidence is corroborated by Tom Mooney’s crucial testimony. The hotel’s nightwatchman not only gives details of the subsequent assault, but also swears that his boss, Bentley, had told him to lie!
‘He told me not to say anything about it except that two men were in the front of the house and he was in bed himself and that the two men went away … When Bentley returned from the Camp with the police he called me in again and again told me not to say anything more than he previously directed …
‘I did not tell what I knew at the inquest, nor did any of the witnesses there. I said nothing, because Bentley told me to keep it quiet, and it would all go off like a bottle of smoke. I denied all I knew, because Bentley told me to do so, and to keep it all very secret.’4
It is devastating testimony, demonstrati
ng from an obviously sincere man that Bentley, Farrell and Hance have been lying through their teeth, making all of their denials worthless. The only saving grace for the three men is that when the Attorney-General asks nightwatchman Mooney to identify the accused, he falters.
Going up to Hance, he confirms his identity, but then before Farrell he says, ‘This man I don’t know, he was not one.’ The gallery gasps. Standing right in front of the glaring Bentley, he stares at him for some time and again says, ‘I do not know this man, he is not one of them.’5
This time the gallery bursts into uproarious laughter, prompting Judge Barry to sternly admonish, ‘This Court is not to be constantly made the scene for levity and outbursts of laughter. I will the very next time order the Court to be cleared. This is the most solemn enquiry that can take place anywhere.’6
Mooney defends himself. ‘Bentley is altered or else my eyesight is. I am not a madman. I have not been in a lunatic asylum.’7
It is a curious episode, but it has not swayed the court’s view that Bentley had indeed told him to lie. And yet can it be established that the actions of the defendants actually killed Scobie?
It is here that the evidence of Dr Alfred Carr is crucial. After being sworn in, the remarkably diffident doctor gets to the thrust of his testimony.
‘He was quite dead when I first saw him,’ he says of Scobie. ‘There was no trace of life. He was warm. I had him removed to the hotel, and sent for the police. I made a post mortem examination next day. There was a bruise on the left collarbone, a severe bruise over the lips, especially the upper lip. The right cheek very much bruised and grazed. The right eyebrow, the lower part of the upper lid was slightly bruised and grazed. Also near the nose. There were two slight bruises on the head. I detected no wound from which blood could flow except from the nose …
‘I think it highly improbable that a spade would have caused these wounds, unless it was that one on the side of the head. The witness Martin was very tipsy, tumbling about the hotel. In about half an hour after, he gave an account of how the occurrence happened. In the state of Scobie’s stomach a very slight blow would have occasioned death.’8
It is those last words that are the most staggering, as noted by the correspondent for The Argus. ‘According to his statement, no wound had been inflicted by the spade; nor were any of the wounds apparently of a serious nature. Indeed, he seemed to treat the cause of death as a very light affair, and was disposed to think that it might have resulted from a fall, or from some trifling blow.’9
Finally, however, at the end of the long day, the prosecution is finished, the defence rests, the jury retires to begin its deliberations and …
And, hulloa!, the jury is already back
They have taken just 15 minutes to make their deliberations.
Has the jury reached a decision?
We have, Your Honour.
‘We find James Francis Bentley, William Henry Hance and Thomas Farrell all guilty of manslaughter. We find Catherine Bentley innocent of all charges.’
Their sentencing is to be in two days’ time, on the Monday morning, at which point Judge Barry will then preside on his next case: the three men charged over the burning of the Eureka Hotel.
Monday, 20 November 1854, Melbourne feels denuded
Colonial Secretary John Foster is worried. It has been one thing to have 450 armed men on the ground in the highly troublesome area of Ballarat, and they still have some more in reserve, but what if Ballarat should flare again and they have to send reinforcements? Who, then, would be able to guard Melbourne? Already there are rumours of armed diggers marching on the city, and there is also the matter of the Russians, who are at war with Britain in the Crimea, and might also be disposed to attack elsewhere. It is for this reason that Foster writes on behalf of the Lieutenant-Governor to the Assistant Military Secretary, William F. A. Wallace, to enable one of the volunteer corps of riflemen to be put on stand-by. (Under an Act just passed by the Legislative Council, loyal subjects are enabled to enrol in one of these volunteer corps, which could be called upon to serve in times of crisis, side by side with Her Majesty’s forces, with their officers to be appointed by His Excellency.) The Melbourne Volunteer Rifle Regiment was the first formed, and joined shortly thereafter by the Richmond Rifles, the Victorian Yeomanry Corps, the Geelong Volunteer Rifle Corps, the East Collingwood Rifles and the FitzRoy Volunteer Rifles, commanded by none other than Judge-cum-Captain Redmond Barry - a dab shot, if he does say so himself.
For Foster, the point now is to formally notify the colony’s military authorities: ‘Recent events have pointed out to [His Excellency] the uncertain temper of the vast population of the Goldfields; no-one from day to day can tell when an outbreak may arise, and therefore … it is upon these Volunteer Corps that the [Lieutenant-Governor] depends to guard the Cities if the 40th Regiment should suddenly be required elsewhere.’10
Yes, the 12th is on its way to the goldfields, and if something happens that the 40th must go too, the volunteers have to be ready. Their best hope is that nothing else will greatly upset the diggers, no provocation that might act as a catalyst for another uprising …
Wednesday evening, 22 November 1854, Ballarat makes a demand
The goldfields remain aflame. A serious injustice has been done and it must be put right. On this evening the executive committee of the Ballarat Reform League meets at the usual watering hole of the moral-force Chartists, the Star Hotel. There, in a back room clutching their nobblers, they resolve that the best way forward is for a delegation from the diggers, composed of Black and Kennedy, to return to Melbourne (along with Humffray, they had just been there to formally observe the trial and sentencing of Fletcher, McIntyre and Westerby on behalf of the League) and wait upon His Excellency, the Lieutenant-Governor. If they put their case in reasonable terms to a reasonable man, surely they will be rewarded with a reasonable result. Surely these iniquitous sentences will be overturned by the representative of Her Majesty’s law and order, her justice, in this colony. The key sticking point at the meeting - and it does become very heated - is whether to use the word ‘demand’ or ‘petition’ in their statement to the Lieutenant-Governor. By a bare majority they finally settle on ‘demand’11 because the committee sees ‘the stronger, but less politic, word as honestly expressive of their own and the public opinion in reference to the matter’.12
Obvious to most diggers is that, just as by their combined and vigorous might they have been able to alter the course of justice in the Scobie case, so too must they do the same when it comes to the three innocent men in prison. They don’t want to merely beg for justice, they demand it! There is a monster meeting of the Ballarat Reform League coming up the following Wednesday. That will be the obvious time for Black and Kennedy to report back to them what the Lieutenant-Governor has said to them in Melbourne. From there they can determine their course of action, and that upcoming monster meeting is already arousing a great deal of interest.
Saturday, 25 November 1854, Ballarat receives good news
Gather round lads and look at this!
From everywhere they come - from every digging, from the bottom of every hole, from every tent - for the front page of The Ballarat Times has the news they’ve all been waiting to hear:
TRIAL OF
MR AND MRS BENTLEY
Hanse, and Farrel,
FOR THE MURDER OF
JAMES SCOBIE.
Supreme Court, Melbourne.
GUILTY! of Manslaughter.
Mrs Bentley scot-free.
His Honour considered their conduct
was wanton and reckless. He should
mark his sense of the outrage of which
they have been found guilty, by pass-
ing on each of them a sentence of
THREE (!) YEARS’ IMPRISON-
MENT WITH HARD LABOUR
ON THE ROADS.13
No, it is not the murder conviction the diggers wanted, but it is something alright. Sentenced for
manslaughter to three years’ hard labour on the roads is a whole lot better for that bastard - and he probably is a bastard - than getting off scot-free. And it is vindication for the destructive action that the diggers took against the Eureka Hotel.
If the people had not reacted to the situation en masse and with outrage, justice would not have prevailed. United, they have shifted the course of the government and its judiciary!
And yet there is a rather troubling article in the edition of The Ballarat Times:
TRIAL OF
FLETCHER, MCINTYRE AND WESTERBY for
BURNING THE EUREKA HOTEL
Supreme Court, Melbourne.
CRIMINAL SITTINGS.
GUILTY, WITH A RECOMMENDATION TO MERCY!14
‘The Foreman of the jury appended the following rider to the verdict: “The jury feel, in giving their verdict against the prisoners at the bar, that in all probability [the jury] should never have had that painful duty to perform if those entrusted with the government offices at Ballaarat had done theirs properly. His Honour said: “The sentence of the Court is that you, McIntyre, be confined in H. M. Gaol at Melbourne for three months, but I shall not subject you to labour. You, Fletcher, to four months and you, Westerby, to six months confinement …”.’15
The diggers’ reaction is pure outrage. When a thousand of them had participated in meting out true justice to a real murderer that the judiciary had let off, these brave men had to spend time in gaol? When even one of the authorities, Commissioner Gilbert Amos himself, had wonderfully testified that McIntyre, for one, was not guilty of what he had been charged with? Still, the judge found them guilty?
Eureka: The Unfinished Revolution Page 34