Ballaarat [Eureka Rebellion trials, 14 December 1854]

[Editor: A report on the committal proceedings of the Eureka Rebellion prisoners. Published in the Colonial Times, 14 December 1854.]


The trials of state prisoners commenced on the 6th. Mr. Sturt presided, and Mr. Webster, and Mr. Smith sat with him. Mr. Hackett was in court, but did not take his seat on the bench, and interfered very little with the business of the Court. The public, in whose presence the examination was conducted, consisted almost exclusively of two representatives of the M. M. Herald, two representatives of the Argus, two solicitors, a few officers of the military and police force, Mr. J. H. Dunne, the barrister, and a number of soldiers and constables, the admission of “the general” to the Camp being strictly prohibited, and the parties interested being admitted only by special order.

Application was made on behalf of Mr. Seekamp, that the money found on him when apprehended, (£106) might be returned to defray the expenses of his defence, which was allowed.

Some unimportant cases were disposed of readily. One man, who acknowledged that he had been drunk and insensible, and had been arrested twenty-four hours before on the charge of attempting forcibly to pass a sentry, was, the sentry not appearing, discharged with a caution. Four men, brothers, of the name of Cornish, arrested at a tent near the Eureka Stockade, was defended by Mr. Dunne, and discharged. Alexander Fraser was fined 40s. for calling out “Joe” to a sergeant of mounted police. It was remarked by the Bench, that if this insult to people in the discharge of their duty had been earlier punished sufficiently, very serious consequences might have been averted.

Mr. Dunne applied to the court for a sum of money found on the person of James Steer, remarking that prisoners were entitled to receive such money for the purpose of providing for their defence. The bench held, that though this was true to a certain extent, yet, in the case of so serious a charge as high treason, a certain limit must be observed. Mr. Dunne argued that till a man was convicted, he was entitled to be regarded as innocent. It was not certain that the prisoner in question would be committed for trial on so grave a charge. The case was very different to one of larceny or robbery, in which such immediate detention of property might be justifiable. The Bench admitted Mr. Dunne’s arguments, and, on its appearing that the sum referred to was £283, made an order similar to that in the case of Seekamp.

Edward M’Mahon was remanded to the following day. Four individuals, brought in prisoners on Sunday, were placed at the bar. Two of them were mere boys of fourteen or fifteen. They were not recognised by any of the military or police force, and were discharged.

Timothy Hayes was then called. Mr. Dunne defended him. Hayes is a tall, robust, handsome man, and is very generally known on the diggings. Henry Goodenough, trooper, attended a meeting on Bakery Hill, on Wednesday, the 29th ult. Hayes made a speech, as one of the deputation to the Government. The prisoner narrated the interview, and said it was of no use to petition the Governor any more. It was time for the people to take the law into their own hands; he, for one, would stand up for rights and liberties. After the meeting was over, the chairman — not Mr. Hayes — he was not the chairman — invited volunteers to come forward. They did so, and were armed to protect rights and liberties. Hayes divided the volunteers into companies; he was not himself armed. At ten on the following day Hayes was at the same place armed with a double-barrelled gun; he made no speech then. He was at the side of a line of armed men divided into companies. The line was four deep, and about a mile long. Hayes did not give any orders. They went to the Eureka, and there drilled. Prisoner was not drilled, but seemed to have command of several companies, and to have the choosing of the officers. He conversed with the leaders, and seemed to direct all. He was in company with Lawler at every meeting. Lawler was commander-in-chief.

The meeting at Bakery Hill took place at four p.m. There was no riot, but all was peaceful and orderly. Witness had come from Melbourne about a fortnight ago. Was sure of the prisoner. Did not hear Mr. Hayes recommend peace and order, though he was at the meeting for one hour and a half. Will not swear that he did not do so.

Andrew Peters, trooper, corroborated the evidence of previous witness.

The men with whom Hayes marched were in several companies, and armed with double-barrelled guns, &c., others with pikes. There was a flag hoisted on a pole, with a white cross on a blue ground. There was no motto. Hayes did not speak. Lawler did; but there was no conversation between Lawler and prisoner. Did not hear him give any order.

Hugh King, constable, Ballarat — Saw the prisoner taken out of the rebels’ camp. (Mr. Dunne interfered, and called the attention of the Court to the use of such language as “the rebels’ camp.” He protested against the use of such terms as “rebels,” as applied to the people. The Bench directed the witness to narrate the events of the Sabbath morning.) He was called at daylight on the 3rd inst., and marched in a body of police, in company with the 40th, commanded by Captain Thomas. Captain Carter was in command of the foot police; the order was to advance on the right of the 40th, towards Eureka. They approached a stockade, an enclosure of slabs, three or four deep. He saw men in front of the stockade. They retired. When the troops were within three or four hundred yards of the stockade a heavy fire was opened on them from the stockade. Some of the 40th were wounded when the troops were ordered to fire. The men in the stockade shouted. A blue flag with a white cross and five stars was visible in the stockade. A flag like a Union Jack was afterwards found rolled up in the breast of a prisoner. He advanced with the rest, firing as they advanced. When the firing ceased at the stockade, the troops were ordered to take all prisoners. They entered the stockade, and several shots were fired on them after they entered. He observed the prisoner brought down from a tent in custody. Could not say whether any shots had been fired from that tent. There were thirty or forty prisoners; some of them were armed. He did not enter the tent, and did not know that it was called the guard-room. A great number of double-barrelled guns, pistols, and pikes were found in the stockade. As he went over the stockade, he saw some of the men there firing on the troops.

Cross-examined: Reached the stockade about four a.m. Was present when Hayes was arrested. Did not see him brought into the stockade. Knows Captain Carter. He was present in command of the foot police. Knows Lieutenant Richards. He was present. (The witness was complimented by the Bench on the clear manner in which he had given his evidence.)

William Thompson, constable at Ballaarat: was one of the foot police ordered by Captain Thomas to go to Eureka, on the morning of the 3rd inst. The military and police advanced on a stockade, and were halted on an eminence near it, perhaps 200 yards from it. The rioters immediately fired. Did not know what the general orders were. As soon as the forces were over the hill, hundreds of shots were fired from the stockade. The military had fired before the rioters opened their fire. The first fire was from the rioters.

The Bench, addressing the clerk, said it was unnecessary to take down that evidence; it was contradictory.

Mr. Dunne submitted that it was of importance for the defence that the contradiction should be recorded.

According to the direction of the Bench the evidence was recorded as given.

Witness resumed: As the forces advanced on the stockade, he saw many go into a large tent, from which several shots were fired. Hayes was taken out of this tent. Knows him well. Saw several armed men in the stockade, and several shots fired by the rioters. Saw several men armed with pikes, but saw no blows given.

Cross-examined: Hayes was in Custody when he first saw him. Does not recollect in whose custody. Does not know any of the other prisoners.

Mr. Hackett, S.M.M., stated that he had been in the court during part of the examination of the previous witnesses, not being aware, when the witnesses in the case were requested to withdraw, that his testimony would be taken.

Mr. Dunne meant to cast no reflection upon Mr. Hackett, but submitted that his testimony could not be received.

The Bench regarded the evidence in the case as of so general a character as to admit of Mr. Hackett’s being taken.

Mr. Dunn pressed his objection, and Mr. Hackett’s evidence was not taken.

Thomas Edmund Langley, senior sub-inspector of police, arrested the prisoner on Sunday morning last, at half-past two a.m. He had been ordered to advance with the military on an entrenchment at the Eureka. He commanded a body of mounted troopers. He was to cover the left flank. On approaching the stockade he was ordered not to show his men. He heard firing for some time, and then captured several people running from the stockade. He was ordered by Captain Thomas to form his men and advance, as a rearguard to the troops retiring. He heard some one say, “There goes Hayes.” He galloped after and arrested him. The prisoner was captured on a slight rise, about 300 yards from the stockade, when walking along in company with another man, from right to left, parallel with the stockade.

Cross-examined: Is not positive as to the distance, it might be 300, it might be 400 yards. Brought the prisoner up with the rest to the Camp. Did not arrest the prisoner in the stockade, nor did he see him there. Prisoner was never out of the custody of witness. He might have been arrested before, and have broken away, and so be arrested in the stockade. A portion of the troops were at this time on their return.

Mr. Thomas Bailey Richards. Lieut. of 40th: Was present with the forces at the stockade on the morning in question. Captain Thomas ordered the troops to advance in silence.

Mr. Dunne submitted that the orders given to the forces, in the absence of the prisoner, were not evidence.

The Bench thought it of importance that all the circumstances out of which the affray arose should be known.

Witness returned — It was ordered that no man should fire till fired upon. The troops advanced in column, and then extended to, the right and left. Several shots were fired on the troops. Then Captain Thomas ordered the military to fire. More than forty shots were fired at the troops before this order was given. They were all too high. No shots at that time had been fired at the stockade. At the signal, the troops advanced, firing as the advanced. On approaching the stockade, as the smoke cleared, after the discharge, several men inside were seen running away. Witness entered the stockade. Numbers of armed men, dead and wounded, were seen in the entrenchment. Did not see Hayes. The men were drawn off. On his way home, witness, having halted his men, to fetch a wounded man a drink of water, saw Hayes. Was told, “There goes Hayes, one of the principal ringleaders.” He was more than 300 yards from the stockade, going towards it. He sent Mr. Langley, with two men, to capture him. A man by whom he was accompanied was also taken.

Cross-examined — Hayes was going along quietly; he appeared to me shuffling away from the troops, with downcast look. He was not armed, nor was the man who accompanied him.

Witness resumed — Prisoner’s wife came and said, “Are you taken?” He answered “Yes.”

She said, “If I had been a man, I would not have been taken by so few,’ and, turning to witness, “Why did you not come yesterday?”

Thomas Carruthers, private of 40th, was one of the mounted troopers at the attack on the stockade. He saw Hayes taken, by one of the police and handed over to the troopers, 200 or 300 yards from the stockade. Several other prisoners had been taken after the firing had ceased. Had seen prisoner some time before. Did not know where he came from on this occasion.

Cross-examined — Did not enter the Stockade. Prisoner had no arms, nor had the man who was with him.

William Fleming, private, 40th: About 100 yards to the right of the stockade prisoner was handed over to him, ten minutes after the firing had ceased.

James Rowen, private, 40th: Knew the prisoner. He saw him in Ballaarat the last time he was here. Prisoner came and told the soldier that he was sorry to see them so insulted. Saw prisoner in custody. He was chairman of the Wednesday meeting.

This ended the case for the prosecution.

The Bench said they must commit the prisoner for trial.

Mr. Dunne asked on what charge.

The Bench answered that the charge on the sheet was, “Seditious language, and being a ringleader in the rebel mob.”

The learned Counsel repeated the words, and asked the Bench if he was to understand that this was the charge on which his client was committed. The Bench answered that the charge was thus recorded on the sheet, and that there was ample ground in the evidence to warrant a committal.

Mr. Dunne begged to ask whether bail would be accepted for Mr. Hayes.

After deliberation the Bench stated, that the charge against the prisoner was equivalent to that of high treason, and that consequently bail could not be accepted.

Orders were given, in answer to a question from Mr. Dunne that everything should be done to promote the comfort of the prisoner, not incompatible with his safety.

James Beattie, Fenwick, Josephs and Raphaelo were then brought up. Fenwick seems to be a Dane, Josephs is a tall powerful man of colour, and Raphaelo is an Italian. A large amount of evidence was adduced in reference to the prisoners, but at four o’clock, as it was stated that twelve more witnesses would be examined, the enquiry was adjourned till next day, at half-past nine.

Before the rising of the Court, Mr. Dunne asked if bail would be accepted for Mr. Seekamp (proprietor of the Ballaarat Times) and referred to the case of the Queen versus O’Connell, in which bail had been had been accepted.

The Court consented to accept bail, two sureties in £1000 each, and the prisoner in £2000.

Colonial Times (Hobart, Tas.), Thursday 14 December 1854, page 2

[Editor: Corrected “on an intrenchment” to “on an entrenchment”; “Lieut. of 40th;” to “Lieut. of 40th:” “hould be known” to “should be known”; “taked by” to “taken by”. Added full stop to “Mr” in “Mr Dunne submitted” and “Mr. Hackett, S.M.M.”.]

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