Murder at Myall Creek

by Mark Tedeschi

  Plunkett’s resignation deprived the Sisters of one of their staunchest supporters, and some of them, including Sister De Lacy, soon returned to Ireland. The incident was a classic demonstration of Plunkett’s single-minded commitment to principle at the expense of pragmatism, even when directed at his own beloved church. It was a precipitous reaction to a relatively trivial event that was blown out of all proportion by many of the participants and observers. The newspapers had a field day. By going public and resigning his positions at the hospital, Plunkett needlessly distanced himself from an institution that he greatly treasured. It was not the only time in his life that John Hubert Plunkett wildly overreacted to what he perceived as a matter of principle, thereby denying himself a position of influence in a much-loved organisation that he had helped to develop over many decades.

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  DICHOTOMOUS AND DEATHLY DEBATES

  It would be easy to think that John Plunkett’s views were in every instance progressive and visionary, but that would be to ignore the reality. In retrospect, his approach to a few issues, particularly in his latter years, can now be viewed as regressive or narrow-minded. In fairness, one should view these failings as a product of his time. In a few cases, where he had held progressive views in his younger years, he changed his mind as he grew older. No prejudices were more ubiquitous in his day than those on Asian immigration to the colony.

  With the discovery of gold in New South Wales in 1851, there was a massive increase in migration to the colony. It included Americans, Frenchmen, Italians, Germans, Poles and Hungarians. The influx also included a large contingent of Chinese. In fact, the Chinese were the third most numerous group after the British (including Irish) and the Germans. The Chinese miners were met with suspicion, resentment, racial intolerance and sometimes outward aggression from their Anglo and Irish counterparts.

  Debate about Asian immigration had taken place in the colony on many occasions prior to the gold rush, but in November 1851, in the early stages of the frenetic wave of men from all over the world seeking their fortune in the Australian goldfields, the authorities feared that the Californian experience of unfettered immigration would be repeated in New South Wales. As a result, a debate about Chinese immigration occurred in the Legislative Council. Honorary physician at Sydney Hospital, Dr Henry Douglass,1 suggested that ‘free men’ – meaning Anglo men and women – would be reluctant to emigrate to the colony if the Chinese were allowed to settle. In a speech brimming with xenophobia, he stated that the Chinese were:

  A race of people addicted to vices which he could not mention, and which could not be mentioned in that house for fear the expressions necessary to name them should be reported in the public journals, and that their children might ask what those expressions meant.

  He added:

  ‘We confess that we should not like to see the colony driven to such a choice as this. We are not partial to any admixture of races, particularly such an admixture as the Chinese and the Anglo-Saxon – the one so very different from and so vastly inferior to the other. We should like to see this colony preserve the English character which it has hitherto maintained … We have no desire to see the dusky population of China mingle in our streets with the fair complexion of the Anglo-Saxon – or the temples of Buddha rise side by side with the Christians’ house of prayer. We have no wish to see the habits and customs of paganism brought in immediate contact with those of Christianity. Our own countrymen – however fallen, however degraded – are dearer in our eyes than these benighted foreigners, and possess in themselves the germ of a great and extended civilisation. In a national point of view, the difference between a population of European Christians and Asiatic pagans is incalculable. The outpourings of all the hulks, and gaols, and penitentiaries of England, are better materials for the foundation of an empire than the best of the native inhabitants of Asia. However greatly they may be debased, they have a national character which vice and crime cannot divest from them – and which, in spite of themselves they must transmit to their posterity – a character which alone places them far before all the pagan communities in the universe. We would rather have these convicts, with all their anticipated pollution a thousand times over, than that the colony should be inundated with the benighted hordes of Asia, whether Tartar or Hindoo – Mussulman or Pagan.’2

  WC Wentworth, also a member of the Legislative Council, advanced quite different views and suggested that it would be a breach of the comity between nations to restrict Chinese immigration because there was nothing stopping Englishmen going to China. He was sure that English workers would be prepared to work alongside Chinese workers.

  The Colonial Secretary, Edward Deas Thomson, cautioned that, although he was against the immigration of Chinese, he doubted that the Council had the authority to prohibit it or to prevent private employers bringing them into the colony.

  Attorney General John Plunkett stated his views on the topic in this way:

  ‘He was strongly opposed to this species of immigration, and would be willing to concur in any legitimate means for discouraging it. For his own part, although as much opposed to a renewal of transportation as any member of that House, he did not hesitate to declare as the result both of his personal observation and of his official experience, that he would rather have 2000 convicts landed in Australia than 500 Chinamen. (Hear, hear.) They were objectionable in every respect. They would introduce a piebald breed. (Laughter.) They never could become acquainted with the English language or reconciled to English laws and English customs.’3

  By 1861, ten years after the discovery of gold, the Chinese made up 3.3 per cent of the population of New South Wales. Arising out of resentment and fear, a Protection and Anti-Immigration League was established to press for reduced Chinese immigration. In the same year, anti-Chinese sentiment reached new heights. On 30 June 1861, at Lambing Flat (Young) on the south-west slopes of New South Wales, about 3000 European miners banded together in a gang, called a ‘roll up’, and armed themselves with picks, whips, knives, sticks and anything that could be used as a weapon. They carried a flag on which was written ‘Roll-up, Roll-up, No Chinese’,4 and overran the Chinese miners’ camp. Chinese tents and equipment were destroyed, their gold plundered, and an unknown number of Chinese men were murdered. Although the official death toll was given as two, eyewitness accounts suggest between thirty and forty, and several hundred more were injured. Dozens of the Chinese men had their pigtails cut off – a matter of great dishonour.

  As a result of the riots, anti-Chinese legislation was introduced later in 1861 when the New South Wales Parliament passed the Chinese Immigration Restriction and Regulation Act. The Act imposed numerous conditions regulating how long the Chinese could stay and whether or not they could bring their families, become naturalised, and work in the colony. The measure also raised a Chinese poll tax. Debate about the Act in the Legislative Assembly elicited varying approaches to the problem, including what we now view as sheer racism. Support for Chinese immigration came from pastoralists such as William Forster, who argued that the Chinese were an industrious and civilised people who could assist in developing the colony. Henry Parkes believed that further immigration of Chinese would lead to ‘future discord, anarchy and civil war’. Others were more overt in their racism, such as Captain William Russell, a Hunter River pastoralist, who complained of Chinese ‘vice, disease and dirtiness’, and deplored the possibility of a ‘mongrel population’ resulting from the immigration of an ‘inferior race’. Only in 1867, when the gold rush had almost run its course, was the Act repealed.

  Plunkett’s views on Chinese immigration, odious as they are today, must be seen in the context of his society. They would have been considered by most of his contemporaries as unremarkable and in line with mainstream attitudes. The surprising aspect of his approach to Chinese immigration was that it was at such variance with his unorthodox views on equality under the law for Aborigines, Dissenting Protestants, Jews and people of other non-Christian r
eligions. His dichotomous views can best be understood as an expression of admiration for British civilisation and law, and a belief that a model society would embody the best that the British system could produce: equality under the law; freedom from discrimination; self-government; and abolition of corporal punishment, including the death penalty. The last thing that he wanted to see was a diminution of British culture, law or government. A multicultural Australia, unimaginable as it was at that time, would have entailed a denial of the superiority of everything British. Many thought that large-scale, non-British immigration would lead to a regrettable division of society into racial and cultural enclaves that would have little or nothing to do with each other. Such racial divisions had existed on the goldfields, and nobody thought it would be any different elsewhere. No wonder that most colonists were intent on maintaining the racial and cultural homogeneity of their society. These views were widely held in Australia until the slow winding down of the ‘White Australia policy’ during the period between 1945 and 1975, and they even prevailed in pockets afterwards.

  * * *

  Another area in which Plunkett’s views could hardly be categorised as visionary was his opposition to the secret ballot. In 1858, New South Wales Premier Charles Cowper introduced the Electoral Reform Act, which abolished the last remaining property and income qualifications for voters and provided for universal, adult, male suffrage. In this respect, the Act had the support and encouragement of most legislators, including John Plunkett. However, the Act also introduced the secret ballot, providing anonymity for voters at elections. This measure had already been introduced in Tasmania (renamed in 1856), Victoria and South Australia. It was such an innovative feature of voting that for a time it was known around the world as ‘the Australian ballot’. Plunkett opposed the new way of voting on the basis that ‘we should be willing to give our votes like men’.5 While this approach illustrated the stridency with which he held his own views, it also demonstrated a lack of empathy for ordinary men who were less powerful and less firm in their convictions than himself.

  * * *

  By 1860, the now fifty-eight-year-old John Plunkett was enduring waning influence and failing health. It was under these circumstances that he came to some disturbing conclusions that seemed then, and still appear now, to be seriously at variance with his earlier progressive, liberal views, and suggest that his judgement had become clouded by age. In 1862, the Church Act was abolished, which removed state funding to the churches. Plunkett was troubled that the state was not providing any funds to any religion, and believed that this was a threat to the moral fibre of society. He also became increasingly concerned at secularism in public education. Finally, in a complete reversal of his stance over many decades, when Premier Parkes brought in the Public Schools Act in 1866, Plunkett opposed the measure and became a supporter of denominational schools. In anticipation of the disappearance of all state funding of religious schools, he set up an association to raise funds to support the Catholic system. The secular public education system had been his crowning achievement for decades, yet he was unable to see that Parkes’s measures amounted to further progress – maybe because he had played no role in formulating them.

  * * *

  In other respects, however, John Hubert Plunkett remained a visionary in his time, in contrast to other leaders of the colony. The most notable example was in his opposition to the death penalty. Although Plunkett had been a most enthusiastic, forceful and successful prosecutor, leading to the execution of many defendants whose convictions he had secured, he was a strident opponent of the death penalty on moral and philosophical grounds. This contradiction had been sorely tested in 1835 when Plunkett was appointed for a short period as an acting judge to conduct the trial of two convict men confined on Norfolk Island who had been charged with murder. On their convictions, he had no choice but to don the black cap and impose sentences of death upon them.

  The first curtailment of the death penalty in New South Wales came with some changes introduced during Plunkett’s first full year as Solicitor General. In 1833, capital punishment was no longer available for relatively petty crimes such as cattle stealing, forgery and certain kinds of theft.6 Then, in 1838, the colony adopted several major reforms that had been introduced in England the preceding year, when capital punishment was abolished for a wide range of more serious crimes, such as nonviolent burglary, attempted murder without bodily injury, riot, smuggling and slave trading. In 1845, Plunkett proposed the abolition of capital punishment for embezzlement, but it was rejected in the Legislative Council by twenty votes to two.

  The next legislative reform of capital punishment in the colony was the abolition of public executions, and in this respect New South Wales moved ahead of developments in Britain. Plunkett spoke in favour of the change, stating that executions were ‘extremely demoralising’. By this time, Plunkett was vociferously against the death penalty for any offence – a position he maintained for the rest of his life.7 In 1853 the Legislative Council passed an Act to abolish public executions, but it required Royal assent before it could become law, which meant it only came into force on 11 January 1855.8 Britain followed suit thirteen years later. When remission-of-death-penalty decisions came before the Legislative Council, Plunkett would excuse himself, because he was unwilling to be party to any decision to put someone to death.

  In 1867, still in poor health and viewed as an elder statesman of waning influence, John Plunkett introduced a Bill in the Legislative Council for capital punishment in New South Wales to be restricted to offences that carried the same penalty in England. The newspapers that supported him, particularly the People’s Advocate and the Henry Parkes – owned Empire, argued that the death penalty should be eliminated entirely. Plunkett asserted his preference for total abolition, but acknowledged that his Bill was more modest in seeking to align the law of New South Wales with England. He argued that:

  The sooner the NSW parliament adopted his abolition bill, the better for the country, and the more honourable to us as Christian men.

  Quoting from a well-known English constitutional history book, he suggested that:

  The deepest stain of English politics was the history of criminal law. The lives of men were sacrificed to a reckless barbarity, worthier of an Eastern despot, or African chief, than of a Christian state.9

  Plunkett referred to research in England that showed that wrongful convictions had occurred in which innocent men had been executed. He cited a poignant example of one of his own cases in 1841 in which a man had been wrongfully convicted of murder:

  Mr Plunkett recollected one case which occurred in this colony, in 1841. Two men were in a public-house in Goulburn – one a settler, well to do – and the other an assigned servant in the neighbourhood. The case was heard before as able, as humane, as painstaking a judge as ever sat – Sir J Dowling. The men left the public-house at dusk, they were not intoxicated but elevated. They were heard talking loudly; the man to whom the house belonged was found murdered the next morning. The assigned servant went to his master’s place and was described as he appeared the next morning. He was taken up as having been the last person with the murdered man. There was a doctor who gave extraordinary testimony – that it was not a gun-shot wound, that it was a stab. He made up his statement from the evidence. Altogether, the evidence seemed very conclusive, but the prisoner made a statement that he (Mr Plunkett) listened attentively to. He spoke so clearly, so naturally, so confidently, yet without bluster; he told such a story, in fact, that it made a deep impression on his (Mr Plunkett’s) mind. The man was sentenced to death, and the case was coming before the Executive Council on a particular day. Now, he (Mr Plunkett) received depositions which showed him that a man – a bushranger, named Curran – was out bushranging, committing robberies, and fired at persons in this neighbourhood, and it occurred to him that Curran had committed the crime for which the other man was convicted. He was not a member of the Executive Council, but he took the papers there,
and [Chief Justice] Sir James Dowling was staggered. The man’s tale had been that as they were passing the bridge some man had fired, that the horse started, both fell, and he became alarmed, and ran home. And it appeared too, that it was from a gunshot wound that the murdered man died, and not from a stab; and subsequently, on the conviction of Curran, he at the scaffold, and in presence of the clergyman and others, said that he was the man who had committed the murder – had fired the shot – and that the man’s tale was correct. The man had been sent to Norfolk Island, and on this he was brought back. He thought that such a case should make them pause before they inflicted the punishment of death, which was irrevocable.10

  The debate on Plunkett’s Bill prompted a letter to the editor of The Argus in Melbourne from Frederick Lee, a member of the Society for the Abolition of Capital Punishment, on 9 December 1867:

  Mr Plunkett, who for so many years ably and most honourably occupied the distinguished position of Attorney General of New South Wales, introduced a bill into the Legislative Council to abolish the punishment of death in certain cases, and to assimilate the law of New South Wales in that respect with the law of England. This bill was rejected by the Council without any attempt of philosophical reasoning save a miserable attack upon the bill by Mr E Deas Thompson, who had such a lame case as to be compelled to rake up some statistics twenty-three years old, gleaned from a work of no authority, to the entire suppression of Parliamentary statistics of 1866, or the authority of the home Government, and which statistics proved Mr Plunkett’s position. Out of a House of eleven nominees, two only – the President and Mr Plunkett – were in favour of the bill; and it does appear rather presumptuous on the part of these nine nominees to assume to themselves a greater degree of wisdom than that possessed by both Houses of Parliament in the mother country, who enacted the repeal of these law after the strictest investigations by commissions at an expense of £100,000, and upon the unanimous recommendation of six ex-chancellors. I think, Sir, it proves to demonstrate that the Council represents nothing but their noble selves, and the rejection of the bill in toto (for there are sixteen crimes at present punishable with death in New South Wales), involves a gross and wicked libel on the people of New South Wales.11