Eureka: The Unfinished Revolution

by Peter Fitzsimons

  In cross-examination, Chapman is at least able to shake the soldier a little.

  ‘You are aware that this is a very serious charge against the prisoner, putting his life at risk, and I am quite sure you would not give testimony as to identity unless you felt certain of it. Had you ever seen the prisoner before that occasion?’

  ‘No.’

  ‘Were there other black men about the Camp there?’

  ‘There were a good many black men.’

  ‘Are you quite certain this was the one you saw there?’

  ‘I am positive, I assisted to escort him out of the Stockade.’

  Which is one thing, but Lynott’s testimony amounts to no more than that he saw one black man among many black men fire only ‘in the direction’ of Wise. It is a long way from proof positive that he was the one who killed him.

  The key witness in this regard is the 40th Regiment’s Private Patrick O’Keefe. For, gentlemen of the jury, this man, this man, actually witnessed John Joseph firing at Captain Wise. Tell them, Private O’Keefe.

  ‘Just as you got to it,’ Stawell asks, ‘did you see any one whom you now recognise?’

  ‘Yes, that coloured man there.’

  ‘What distance might you be from him?’

  ‘It might be about five or six yards, and I saw him discharge one barrel of a double-barrelled piece.’

  ‘Where was he when he fired, and where were you when you saw him?’

  ‘I was within about six paces of the entrance of the Stockade where he was. He was inside the Stockade.’

  ‘In what direction did he fire?

  ‘He fired in the direction that I was coming up, both me and Captain Wise. Captain Wise fell, but I cannot say it was from the shot he delivered …’26

  At these words the Attorney-General is seen to slump a little because it is clearly going to be impossible to prove beyond reasonable doubt that Joseph fired the fatal shot when the key witness ‘cannot say’.

  What makes matters worse is that, as Henry Chapman cross-examines the soldier, it is quickly established that besides Joseph - and more or less right beside him - ‘two or three’ other men were also firing! So who can say which shot from which gun killed Wise, most particularly when you know that the brave captain was wounded by two shots.

  Hopefully the next witness, Thomas Allen - known to one and all as ‘Old Waterloo’ - might be able to provide some more cogent testimony?

  The old man shuffles forward and is dutifully sworn in.

  ‘What is your Christian name?’ the Attorney-General begins.

  ‘Yes, that is the prisoner,’ says Old Waterloo, nodding towards John Joseph, as a laugh is raised in the gallery.

  ‘What is your name?’ repeats William Stawell, a little annoyed.

  ‘No; I have no pension at all; you see I am rather deaf …’27

  It is hopeless - even when the old man does understand the question, he proves unable or perhaps even unwilling to provide testimony that truly incriminates the American.

  After some more legal manoeuvring, it is time for Henry Chapman to sum up the case for the defence, assisted by Butler Cole Aspinall. And it is now that Chapman truly comes into his own as he begins by dealing with the issue of the flag. After all, can it really be High Treason, to raise a flag bearing the Southern Cross? While some say it was a very peculiar kind of flag, this barrister does not.

  ‘I believe,’ he says with the flourish of one who is about to unveil a masterstroke, ‘that it may be the very flag that was hoisted and produced when the Anti-Transportation League paid a visit - that is, the delegates from Van Diemen’s Land, paid a visit to this Colony; and if I mistake not my learned friend the Attorney-General himself, who was always (and I think it highly to his credit that he was so) an opponent of transportation to these colonies, himself has acted under that very banner …’28

  On a roll now, while Stawell stares, shocked, in the manner of a man who is powerless to get out of the way of a runaway train before it hits him, Chapman now flourishes the very thing …

  ‘I must put this piece of physical evidence before your eyes, and ask you whether it was not the very flag29 … that was hoisted here in the anti-transportation days, and if the fact of hoisting that flag be at all relied upon as evidence of an intention to depose Her Majesty, then I can only say that my learned friend and myself ought to be included in this indictment.’30

  As it happens, so sickly does the Attorney-General look at this point that it would be a very hard-hearted jury indeed that would so indict him, but Chapman goes on for some time - deliciously, devastatingly - wondering just what the difference is between the so-called treasonous Eureka flag and the flag William Stawell was proud to gather under? Finally, however, even for the indefatigably merciless, there is no recourse but to be at least a little merciful, and he moves back to the diggers.

  ‘Suppose they did intend to bring their licenses to burn them, what effect would that have? It would be injuring themselves, it would have just the foolish effect, I may say, upon the license fee that I might produce by burning some of the notes of the Union Bank of Australia which I may happen to have in my pocket; it would be simply injurious to myself.’31

  As to the testimony heard from the likes of Henry Goodenough, who has identified John Joseph as being a part of the fight, this must be put in perspective. Chapman is completely merciless, his words lashing the English trooper in much the same manner that a gentleman might take his horsewhip, sir, to a cad, a cur and a … a … bounder! And what is worse, Goodenough was in the Stockade as a spy, which makes him by definition morally duplicitous!

  ‘There is positive evidence,’ Chapman thunders, ‘that four men were sent forth disguised in various ways: Goodenough was disguised as a digger, Peters as a storekeeper, and for what purpose?

  ‘For the purpose of acting as spies upon these men. Now, men who will be guilty of that extreme meanness of being spies under these circumstances, I say, are men who will not be very scrupulous of telling a lie when they come into the witness box. I believe it indicates a low moral condition which an honest mind naturally revolts from.’32

  In short, in this man named ‘Goodenough’ we have one who is nothing of the kind, and the same can be said of those other low beings pretending to be diggers while actually in the employ of this perfidious government.

  The testimony of witnesses like Private O’Keefe, identifying a black man at a distance before dawn, along with other shooters standing beside him, has already been demonstrated to be completely unreliable.

  ‘It is quite clear, therefore,’ the fiery barrister says, ‘that no evidence whatever can be received that either one of these wounds was the cause of Captain Wise’s death.’33

  Beyond all the mechanics of who did what to whom and when, however, Chapman draws the jury’s attention to the ludicrous nature of all four counts of the indictment against the accused.

  ‘Now, gentlemen, look at that man at the bar. Do you suppose that that man, present as he may possibly have been, was present for the purpose of deposing Her Majesty from her rank and authority and station and kingly title in this Colony? Do you suppose that such an intention ever entered into his mind? Do you suppose that there was any intention in his mind to induce Her Majesty generally to change her measures? No, he never thought of such a thing.’34

  John Joseph, under strict instruction to look as stupid as possible - though he is not that - stares blankly back at him, blinking slowly.

  For let the jury look at the whole picture here. Perhaps it is wrong then to meet in large numbers …? Well, it depends which way you look at it.

  ‘These men were driven to hold meetings that certainly afterwards became unlawful. They were induced to hold meetings at which they armed. They were unlawful meetings, I admit, but they were not High Treason. They might have been indicted for holding unlawful meetings; they might have been indicted for conspiracy; they might have been indicted for sedition, if their speeches were of tha
t nature; but there was no treason in those speeches; they were unlawful, but not treasonable.’35

  Criminal to build a Stockade …? How could that possibly be? For what would any reasonable group of people do, when finding themselves fired upon?

  ‘Why would they raise a Stockade for the purpose of guarding themselves from the attacks that were apprehended? What does that prove? The only evidence given as to intention throughout the whole of this case is the words attributed to Lalor, and what does he say? Why, he says, “If the soldiers attack you, resist them,” and that is what they did; and I say the soldiers marched up there without showing sufficient authority, and that want of authority stripped the case altogether of its treasonable character. It was an attack made on the part of men who were behind the Stockade, for the purpose of defending themselves against troops who had not put themselves in a lawful position, either by reading the Riot Act or by showing some authority under which they acted …’36

  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.’37

  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 …’38

  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 partisan-ship 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.’39

  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.’40

  The dark mood among the remaining prisoners in their holding cells lifts as, at the lunch break, John Joseph is able to rejoin 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!’41

  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’,42 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 …’43

  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.’44

  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’45 - 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.’46

  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’47 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.’48

  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.’49

  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.’50

  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.