THAT STRAGGLING LINE OF PRISONERS which on Sunday morning passed across the field, under the charge of military and police, was a decisive manifestation of digger defeat. Their Stockade was in ruins, their flag torn, tattered and taken away as a trophy and their leadership destroyed or dispersed. It was, apparently, all up with them, while for those who had conquered it was a time of wild exaltation, celebrated with pannikins of neat brandy. Word of what had happened quickly passed from tent to tent, and all Ballarat knew that it was over. But a few matters required immediate attention for a summer sun shone on Eureka, so both sides turned to the burial of their dead. The diggers were initially put to rest near the spot where Scobie fell, while the soldiers were interred at the cemetery near Yuille’s Swamp off the Creswick road. No inquests were needed for these were not ordinary deaths by violence or misadventure. Both the vanquished and the victors knew how death had come, although details as to why and by whose design were not as clear.
In the lock-up the Sunday passed slowly with a gradual development of a suffocating and intolerable atmosphere which caused Carboni to lapse into a state of delirium. To his credit Rede decided, about midnight, that it was inhuman to hold the prisoners in such a confined space. At 2 a.m. on Monday, 4 December, he had them all removed to the storehouse which was large, clean and well aired.1 Considerable physical confusion already had taken place among the ranks of the 114 prisoners, so that it was no longer possible to distinguish those who had been taken in or about the Stockade from those who had been apprehended in its vicinity. Even more importantly, the haste with which the whole affair had taken place and the prevailing air of excitement made it unclear as to exactly why individual prisoners had been arrested, whether they possessed weapons or not, and especially whether they were engaged in any discernible act of insurrection preceding, or at the point of, their apprehension. John Lynch, a captain in the Stockade and one who was most emphatically under arms there, arrived in the lock-up with a powder flask around his neck. He dropped it down a gap between the floorboards ‘and so got rid of a dangerous witness for the Crown’.2
News of what had occurred was rapidly transmitted to Melbourne, Geelong, Sandhurst and thence throughout the land where the initial reaction was one of almost universal disapproval. Hotham attended Divine Service on the Sunday in the company of Foster, the Colonial Secretary. As they emerged from St James’s they were met by the Attorney-General and other ministers. Foster retired to his home, while Hotham and the others went to the government printer and had a proclamation printed which was posted throughout the city in the afternoon. It was dated the previous day and could only have been in response to early word, which would easily have reached Melbourne by noon, that an attack on the Stockade was about to be mounted or in fact had started. In the placard Hotham stated that he had heard of ‘evil persons’ trying to excite the diggers of Ballarat to ‘riotous and violent’ behaviour, so he called upon all true Britons both to abstain from any identification with such a matter and to give support to the civil and military authorities at Ballarat. On the same day Count de Chabrillan, the French Consul, got up his own placard asking all Frenchmen to refrain from participating in any unruly activity, and to remember that they were guests in the Colony and hence bound ‘to respect the authority of the country which gives them hospitality’. De Chabrillan’s notice was dated on the Sunday which at least indicated that the government printer worked that day, and made even more curious the dating of Hotham’s placard. Perhaps, even at that stage, the Governor had begun to wonder whether he might have to take some steps to make it clear to all that the morning’s work was forced by unworthy diggers on a reluctant government.3
In any case, before the day was over Hotham had full information from Ballarat for Thomas, Hackett and naturally Rede himself wrote their accounts of the affair. In their own way they were all, understandably, triumphant, but in muted tones, as if the question had already crossed their minds whether applause for their actions would be unanimous. Thomas admitted that the number killed and wounded among the ‘insurgents’ was great, as many had subsequently died of wounds, but he nonetheless rejoiced. To him the necessity of action was clearly proved because ‘the police now patrol in small bodies the length and breadth of the Ballarat gold-field, without threats of insults’. Rede gave as his reason for the attack ‘the state of anarchy, and confusion’ that had prevailed on the field, but Hackett only wanted to know what he was to do with all the prisoners whom, as stipendiary magistrate, he now had at his ‘disposal’. It was almost as if a normal day’s work on Ballarat had concluded in a perfectly satisfactory way and, in Withers’s words, spoke volumes for the years of ‘odious and exasperating insults’ offered to law-abiding citizens by authorities enforcing the law with ‘cruel impertinence and harassing personal injuries’.4
On Monday morning Hotham met with his Executive Council and they jointly decided to proclaim martial law in and over Ballarat, although they were cautious enough to order that no death sentences be carried out without Hotham’s express consent. While they were sitting, a deputation of members of the Legislative Council and ‘other influential persons’, including the Mayor, arrived, so all went out to meet them. Hotham made a speech in which ‘idle and disreputable persons’, including many foreigners, figured prominently and, fearful lest disaffection spread further, he asked the people there assembled whether they would defend Melbourne itself, given the absence of the troops. There was a very general and warm response to this proposition, and Thomas Fulton assured Hotham that the men working in his foundry widely approved of his determination in suppressing the riotous behaviour of the diggers. Much discussion then ensued as to how they ought go about the defence of the city, with no great clarity of detail emerging, after which all the gentlemen retired and Hotham went back to his correspondence.5 Among it was a letter from the American Consul who had found it necessary to explain that he had not bothered to issue a proclamation in the manner of de Chabrillan, as he was sure no Americans were involved. Such a disclaimer caused Hotham some resentment, as he had already been informed that young McGill was deeply committed—indeed was the ‘most active leader’—so he asked his secretary to convey that piece of information to the Consul. It was, at the very least, a warning to Tarleton that he could not take lightly the question of American involvement and, in the event, made startling the decision taken by Hotham not to offer a reward for McGill’s apprehension.6
Monday, for Peter Lalor, brought a brush with death. He had spent the afternoon of Sunday with friends at Warrenheip and, either that evening or next morning, he walked to Ballarat, suffering greatly from his wounds. He sheltered for a-while in Stephen Cummins’s tent and it soon became clear that, without medical assistance, Peter would die. Stephen became deeply agitated, and the only person he could turn to with a degree of confidence was Father Smyth, who told him to get Peter to the presbytery. It was a decidedly dangerous task, but when darkness had fallen Stephen somehow managed to get the injured man across the gully to the priest’s house, where medical assistance was procured from Drs Doyle and Stewart. They quickly decided that amputation of his left arm was an immediate necessity but, not having the appropriate instruments, they requested a loan from a medical associate and performed their task in the presbytery with the priest, Mrs Timothy Hayes and Mrs Cummins present to assist. It is part of the legend that, coming back to his senses during the operation and aware of hesitation by the doctor, Lalor said ‘Courage! Courage! Take it off. It was some days before he could be moved from the presbytery to the home of Michael Hayes from where, after a few weeks, he was carried by dray to Geelong. A reward of £200 was offered for his apprehension because he had incited men to arm themselves ‘with a view to make war against Our Sovereign Lady the Queen’, so Peter lay hidden at Geelong in the home of his fiancée, Alicia Dunne (whom he married, when times were better, on 10 July 1855 at St Mary’s in that city).7
In an attempt to apprehend those considered the ringleaders of the affair, the government offered rewards, not only for Lalor but also for George Black and Vern. Alfred Black had been Lalor’s original ‘Minister of War’ and had left the Stockade on Saturday to intercept the troop reinforcements. His brother George was not present during the engagement, but his previous activities were apparently of sufficient notoriety as to warrant an offer of £200 for information leading to his apprehension. For whatever reason, it was Vern who achieved the distinction of the highest price. Under the name of Sir Robert Nickle a reward notice of £500 was posted for his person on 11 December. Lalor and George Black were accused merely of inciting men, but Vern had allegedly ‘unlawfully, rebelliously and traitorously levied and arrayed Armed Men’ to make war against the Queen. Clearly his bluster in and about the Stockade had conveyed the impression that he was primarily responsible for the military aspects of all that had taken place. Perhaps his name, his Hanoverian origins and his ‘strong foreign accent’, to which the placard referred, assisted in conveying the impression that the revolt was an alien thing, more likely to have been conceived in the mind of a foreigner than in that of a loyal Briton, or even an Irishman. Ultimately none of the rewards was realized as no one came forward to give the requisite information. Vern was given shelter by various diggers, but continued his normal blustering behaviour with several letters to the newspapers in which he rejected the widely held opinion that he had played the coward in the moment of trial. It was probably closer to the truth to say that he had shown a good deal of sense in making the quick judgement that resistance was futile and flight the only reasonable alternative.8
Meanwhile, those who had been apprehended continued to languish in the Camp storeroom. On Monday morning Henry Seekamp joined them. He had been arrested for his ‘seditious’ articles in the Ballarat Times, and much sport was made of him by those who had been the butt of his rapier-like pen in the columns of his paper. In respect of Henry, it could at least be said that there was some degree of clarity as to why he was arrested, although some doubt was expressed as to whether he actually wrote the material which brought him to arrest. As for the others, it was much more a question of hit and miss. Most of those who had been to the forefront of the movement, with Timothy Hayes, Manning and Carboni as exceptions, were free or dead. Kennedy, George Black and even McGill were not numbered among the prisoners, and no one in authority seemed inclined to seek them out.
There were some few others, however, who had taken part in the act of resistance and who had been arrested. Michael Tuohey, Thomas Dignum and John Joseph, natives respectively of Scarriff, County Clare, Sydney and New York were unquestionably participants, and they had acquitted themselves as men. But there were many others—indeed the majority amongst those 114—of whom no one had ever taken notice, such as the Toy Brothers, Ferdinand and Thomas, or the Spaniard known as Pergo. They all had their fleeting moment in the public eye in the first days of the first week in December. It was clearly necessary to take official cognizance of them all, just as much as it was imperative to single out some of them for State trial. But, for the authorities, it was all so confusing with eleven ‘foreigners’ among the 114, bearing names as flamboyant as that of the Italian ‘Romeo’ who seemed to have no other. Even the familiar was fraught with difficulty when four brothers turned up, all known merely as Cornish, while a dark-skinned person proclaimed himself as James Campbell. Alexander Frazer was a relatively simple case, for it could be clearly established that he had been heard using the epithet ‘Joe’. In the event he was fined 40s. Again it was mildly disturbing to find that only about one-third of these miscreants were Irish, so it was not going to be an easy task to substantiate the claim that the whole affair was both Irish and foreign, unless the main actors could be pinned down.9
At about 10 o’clock on Monday morning formalities began. The prisoners were lined up in four rows and the officials of the Camp, with the soldiers and the police, assembled ‘to number their prey, and mark out a score of heads to make an “example” of, for the better conduct of future generations’. No one doubted the seriousness of the situation and the story that the military were digging a large pit within the precincts of the Camp caused some to fear that they might be buried alive, so hardened had they become to the harshness and injustices of the application of the law in their regard. The news that soldiers had fired indiscriminately from the Camp after dark on Sunday night, killing an innocent woman and a child, seemed to add weight to this judgement. An Irishman was heard to remark, ‘Where did you read in history that the British Lion was ever merciful to a fallen foe?’, but it was unjust, though natural, for him to single out the British.10
The ensuing days saw the arrival of Major-General Nickle on Tuesday, 5 December, the proclamation, probably invalid, of martial law on Wednesday, the 6th, a welter of public meetings and an outpouring of newspaper accounts—in the main condemning the government—of Sunday, the 3rd. Mining operations had been severely impeded for well over a week. Water had risen in all the shafts which made the slabbing insecure, and on the Red Hill line all was at a standstill. Thus, even in the material sense, it seemed that the diggers were being made to pay for Eureka.11 That great Australian patriot, John Dunmore Lang, summed up much of public opinion in his letter to the Empire. Admittedly he was a man given to extravagance but, with an insight forged by long experience of colonial matters, Lang was in a unique position to go to the nub of the matter. As a former member of the Legislative Council for Port Phillip and as one who had travelled widely there, Lang knew a good deal about the colony now called Victoria. To him it was the form of government which was at fault, for it had allowed complete dominance by officials, government nominees and the squatters to the exclusion of the Voice of the people’. As a result ‘there [had] not been a more incapable, a more extravagant, a more unprincipled, or a more unjust and oppressive Government in Christendom’. The goldfields had been managed by folly, impotence, injustice and oppression which ‘the diggers could stand no longer’ and the result was ‘insurrection and bloodshed’.12 They were the words of a self-proclaimed republican, but they were also an encapsulation of a long-held and widespread conviction on the part of such a substantial proportion of Her Majesty’s loyal subjects as to give any government pause for thought. The Age put it this way: ‘Let the Government be undeceived. There are not a dozen respectable citizens in Melbourne who do not entertain an indignant feeling against it for its weakness, its folly and its last crowning error ... They do not sympathize with injustice and coercion’.13 Opinion such as this did not stop the rumour mongers. At Ballarat it was said that a large gallows was in course of erection for the purpose of immediately hanging diggers guilty of crimes. In Melbourne the citizens were informed by the Herald that armed bands of diggers were on the roads towards the city with the intention of sacking it, while the Age, acting on the report of a soldier who had returned from Ballarat, reported, more calmly, that the purpose of the diggers’ visit was entirely peaceful.14
Hotham was in anything but a peaceful frame of mind. He was clearly incapable of comprehending the situation and his judgement of it had, of necessity, to be confined to simplicities or misconceptions. ‘The insurgents are principally Foreigners,’ he wrote on the Monday to Denison, his counterpart in Van Diemen’s Land, together with a request for further troop reinforcements. By the time Captain Wise, of the 40th Regiment, had died on 21 December nothing had shaken the officials in their determination to see an alien, ugly force at work on Ballarat. Nickle got out a general order properly lamenting Wise’s death, but then referred to the Eureka Stockade as a place ‘which a numerous band of foreign anarchists and armed ruffians had converted into a stronghold’, despite the fact that such was already proven to be a groundless and offensive falsehood.15
What perhaps destabilized Hotham more than anything was the resignation of his colonial secretary, John Foster. Since his arrival six months previously, Hotham had been a law unto himself, making his own decisions without reference to his officers. As his principal ally in government, Foster was the first to whom he ought to have turned for advice but, as it appears, even in the crucial matter of the decisions that led to Eureka, Foster was ignored. Whether Hotham decided that some scapegoat had to be offered for the debacle at Ballarat, or whether Foster himself was not prepared to serve a governor in whom he had no trust, was never made clear. He resigned without fuss or public explanation, and the bitter irony he carried for life stemmed from an enraged public opinion which saw him as the leading adviser who had aided and abetted, or even prompted, Hotham along his obdurate course of destruction.16
It was nevertheless true that the Governor was offered a considerable degree of support for his actions by those whose immediate perception of the work of Sunday was that it helped to preserve their own interests. He took some pains to present a case to the Legislative Council that, by its very tone and emphasis, made nonsense of both truth and justice. Eureka was entirely caused by misguided men who had engaged in an insurrection and ‘fired on and killed some of Her Majesty’s forces’. No mention was made of what fate befell those misguided ones, to say nothing of the innocent who had been slain or injured. But the Council was quick to accept that Hotham had acted manfully. It recognized that he had been placed in a ‘painfully embarrassing situation since his arrival in Victoria’. It did not spell out the nature of the situation, part of which lay at its own door, because that same Council had long resisted reform in the colony, even on the relatively simple matter of substituting an export duty for the licence fee. It was happy to countenance butchery, express its sympathy to Hotham—not to widows and children—and assure him of its loyalty.17 The squatting community met on the Tuesday and likewise made pronouncements about ‘designing and unscrupulous men’. They were particularly anxious that the Governor inform the Queen of the loyalty which lay deep within ‘all classes of the Pastoral interests of this Colony’. So great was their concern that they were moved to pledge their support as a body for anything Hotham did to maintain the law and to preserve the community from ‘social disorganization’.18
Yet, if the Council and the men of property could be said to support Hotham in his stand, it was otherwise with the general run of the people. A meeting called on Tuesday by the Mayor of Melbourne to support the Governor had to be surrounded by military police and naval might in an effort to keep order and perhaps to intimidate those present. It proved ineffectual for, when the crowd of 4,000–5,000 assembled in Swanston Street was asked to choose between ‘the flag of England’ and ‘the new flag of the Southern Cross’, it refused to co-operate and the Mayor closed the meeting in great haste. On Wednesday an even greater crowd assembled outside St Paul’s, and 6,000 persons refused to support the government because to do so would betray ‘the interests of liberty’. In the country areas similar meetings were in full swing demanding redress, representation, land, the freeing of the State prisoners and a large measure of justice. Republican principles were being widely asserted and independence claimed as both a right and a necessity, and the Empire wistfully proclaimed that the day was not far distant when Victoria would see as its own emblem ‘the triumphant unfolding of the banner of the Southern Cross’.19 Hotham was not even able to get an opinion from his law officers that prosecution should take place for seditious utterances; they thought it unlikely that a conviction would be obtained ‘for the expression of seditious opinions in which a considerable portion of the public coincide’. He could draw little comfort from the staunchly conservative Argus which hoped that the ‘more temperate people of the towns’ would furnish proper and wise advice to the diggers who, thitherto, had taken no pains to find out what ‘other classes of colonists’ thought of their actions.20
It was increasingly clear that Eureka, in the space of a few days, had already achieved a firm objective. The day of arbitrary or despotic rule in Victoria was over. For months Hotham had stood by the principle that the law was supreme and that it was his duty to uphold it. He had chosen to ignore the warning of the Bentley affair and to disregard the less forthright, but nonetheless adamant, rejection of goldfield rule at Bendigo, Castlemaine and Beechworth. He had been incapable of comprehending that the goldfield population was such as to make the imposition of British law at the point of a bayonet an odious tyranny. No amount of talk about unrest being a thing bred only in foreign breasts would serve to palliate the outraged feelings of the larger portion of the population once they had heard of the brutal massacre of the Sunday morning. Set up a commission to investigate the situation he certainly could, but with some streak bordering on obsession he wanted to make it plain that the law was supreme. No one, he thought, could question the facts. Men had taken up arms at Ballarat; whether in offence or defence was irrelevant. The military forces of Her Majesty had been fired upon, and some had died under arms. That, to Sir Charles, was manifestly high treason and, if convicted, the perpetrators would suffer the supreme penalty. In his eagerness to see justice done Hotham had forgotten one important aspect of the British legal system called the jury. The final act of hanging the State prisoners had to await, and depend upon, a verdict of guilty and, if he had been able to read the signs, he would have known that the chance of obtaining one favourable to the government was slender indeed.
The authorities on Ballarat meanwhile were engaged in probing the loyalty of the 114 prisoners who, either singly or in pairs, came before them for a decision as to what was to be done. Carboni found himself hobbled to John Joseph, and listened while various government witnesses, none of whom he had seen before, swore that he had attacked them with a pike, and that he had been captured and taken in the Stockade. He insisted that both Carter and Carr could swear to the opposite but, as those men were not forthcoming, Mr Sturt, ‘with an odious face’, committed him to stand trial for high treason, to which fate John Joseph was also consigned. Of the considerable contingent of those charged, only thirteen were eventually committed for trial, seven of whom Carboni had never seen before. The one person whose release caused Carboni very marked surprise was Charles Ferguson, a young American.21 It cannot be assumed that all of the Californian Riflemen were Americans, but it is reasonably clear that, when the assault on the Stockade began, of the 300–400 on Ballarat at the time, there were very probably fewer than a dozen Americans involved. Among them Charles Ferguson was certainly numbered.
Carboni spent the night of Tuesday shackled to Ferguson, who was kind enough to leave him his blue blankets before his release from prison. He knew that Ferguson had been seen in the Stockade at 4 p.m. on Saturday by the spy, Andrew Peters. He was absolutely astounded that Ferguson was freed when he came up for trial on the Wednesday. The reason given by the young man for his behaviour was that he had been forcibly seized and detained by the stockaders and that, as a consequence, his participation was involuntary. Kenworthy gave all possible support to him, even helping to arrange a change of clothing to confuse the prosecution. It was scarcely needed as ‘no spy, no trap, no trooper’ came forward to give witness against him. There can be no doubt that Kenworthy was aware that Ferguson had been lured away from the Stockade with false information, as perhaps had been the case with McGill. In fact it was a matter of the doctor helping Ferguson when he most certainly knew of his involvement. Perhaps he considered the young man a mere hothead who deserved help, especially as the whole affair had turned out so well and the Americans had not been put in a bad light.22
Hotham clearly connived at the immunity granted to McGill, as he also did with Ferguson. That he did so for political or baser motives is unproven. That the Americans themselves were either heavily involved or, to the extent that they were, that their purpose was the formation of a republic, probably warranted far less attention than was given to it by the Argus, the Herald, the Age and the Ballarat Times.23 Nevertheless, it remains a mystery why and how McGill was induced to leave the Stockade at such a crucial moment, and to that extent American participation, at least in a negative sense, was decisive in the outcome. However, it remained to the point to ask why Hotham was concerned to prove that Irish and other assorted foreigners were so much at the core of the problem. The answer was clear, for little credit could come to a governor from the crushing of loyal Englishmen, but foreigners who could not comprehend ‘our British principles of moral force and Constitutional agitation’ were another matter, and he ranted about them long and loud. To him they were ‘men who are not suffered to remain in their own countries in consequence of the violence of their characters and the deeds they have done’. By Tuesday, 7 December, Hotham was already a deeply disturbed man who felt that his only hope was to rally the ‘Englishmen of Victoria’ to a united cause in the name of that good order he would always uphold.24 It was to those of his own race that he turned for support. The rest except, it seemed, the Americans, could expect no clemency.
Meanwhile, no one had to bother overmuch about the plight of John Joseph. John was black and therefore manifestly foreign. Consequently, he could be brought to trial without regard to the reaction of the Vice-Consul and other influential Americans.