Benjamin Ewing

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Digger Hunts from The Revolt at Eureka’ by R. Wenban. Schools Publishing House, 1959.
Walter E. Pidgeon, Illustration from The Eureka Stockade by Raffaello Carboni, Sunnybrook Press, 1942, offset print.
Art Gallery of Ballarat, purchased 1994.
George Goddard, John Chapman, Benjamin Ewing, Duncan McIntyre, William Bryant, and Donald Campbell were arraigned and pleaded not guilty to a charge of sedition and riot. Bryant was defended by Mr. Michie ; Goddard, Ewings, M'Intyre, and Campbell were defended by Mr Cope and Mr Prendergast ; the prisoner Chapman was undefended.
The information embraces four counts — the first charges the defendants with conspiring with other persons to the amount of fifty altogether, and unlawfully, maliciously, and seditiously meeting and assembling themselves together for the purpose of exciting discontent and disaffection in the minds of the leige subjects of the Queen, and for the purpose of moving them to hatred and contempt of the Government and Constitution of the colony. Second — Riot and assault on William Nolan, sergeant of police. Third count, charges them with being an unlawful assembly. Fourth count is one for a common assault on Nolan.
The Solicitor General opened the case to the jury, remarking that this was an information laid against the traversers for certain transactions that occurred at Ballaarat on the 30th of November last. To make this intelligible to the jury, it would be necessary to refer to certain events that occurred the day before. A meeting was convened to be held at Bakery Hill, at Ballaarat ; a placard was extensively circulated, headed "Down with the license fee" "Down with despotism." "Who so base to be a slave." And a request at the bottom that diggers would bring their licenses, as they might be wanted. At this meeting very strong language was used, a flag was displayed, and a large number of gold licences were burnt, as if to show that those who possessed them and burnt them were determined to be on the same footing as those who had none. The meeting on the 30th was a continuation of the one held on the 29th. On the 30th, the Government officers went to collect licenses from the diggers ; those who had no licenses were arrested, but rescued by the crowd ; and the character of the meeting was that with a display of force to intimidate those who had to collect the licenses, to meet this, the first count in the information was laid. The learned Solicitor thought a court of justice was not the place to discuss a question of politics, as to whether gold diggers should or should not be made to pay a tax for the use of the lands where they discovered their treasures , this would be most unbecoming, either in himself or the jury; it was not a jury's province, neither did he believe they were competent without much time and inquiry to deal with the question. Skilful politicians had made these laws, and they must be obeyed until they were constitutionally altered. A jury could not, ought not, to weigh the righteous nature of these laws — among many conflicting circumstances; a law, if considered impolitic, must be changed by lawful means, not by brute force, under a pretence of liberty: the majority compelling the minority by constraint to act with them, — this was not liberty, but licentiousness. They, as jurymen, were bound upon their solemn oaths to decide as to the facts adduced in evidence — not the expediency or the inexpediency of the measure ; neither was it their province to say if the gold commissioners had acted right or not in collecting the licences on the day in question. It was, however, for them to i iw what was law upon the subject — but this they would take from the learned Judge, and then they would say if the prisoners transgressed that law or not; that was the jury's simple duty. During the riot on the 30th there were shouts and loud cries uttered, and large stones, bottles, and other missiles thrown, and shots fired. The riot act was read, and the troops were called out. The defendants were now proceeded against only as rioters, although if people remained in assembly after the riot act had been read they laid themselves open to a far severer form of indictment. The learned counsel then defined the law upon the subject, as quoted by Mr. Baron Alderson in his charge to the grand jury delivered at the Monmouth Assizes in the Summer of 1839, in the case of Regina v Vincent, reported in the 9th volume of Carrington and Payne's reports, page 93, and said among the police injured was sergeant William Nolan; he was endeavoring to take a prisoner into custody, was knocked down, much beaten and illtreated, and certain of the prisoners partook in this outrage. The learned counsel then addressed himself to the bearing of the various counts in the information, and called as the first witness —
Gordon Evans, Inspector of Police, who, being sworn, said: I am Inspector of Police. I was at Ballaarat 30th November. I recollect a meeting on that day on the Gravel Pits, and another on [Bakery Hill], close to Gravel Pits. There was a large crowd between ten and eleven a.m. There were about 2000 at the meeting. They moved about from Gravel Pits to Bakery Hill. The meeting lasted more than an hour. I did not see any weapon but stones. The meeting was noisy, shouting, and calling "Joe."
His Honor: I see no harm in "Joe."
Witness: I saw stones thrown at the police whenever they came up. The police were in search of unlicensed miners. I went down in consequence of the police being assaulted. The meeting had assembled in consequence of the police going out on this duty. (Mr. Michie objected to Mr. Evans giving his opinion of the reasons of the events.) The crowd was very noisy and violent. I asked one myself if he had a license. He said he did not intend to have one. I directed the Sergeant of Police to take him into custody.
Mr. Michie submitted to His Honor the question whether or not the language of any one man could be taken as evidence against the others in the absence of any evidence of conspiracy.
His Honor did not see that the evidence affected any one directly. It was intended to show the character of the meeting.
Mr. Cope suggested that it might be necessary to identify the defendants as having been in the crowd, before the evidence as to its character should be taken.
Witness resumed: When I ordered the policeman to take the man into custody, the man struck the policeman down with a club; the blow laid his head open. There were about thirty people on that spot. It was about 200 yards from the main crowd. The thirty saw and heard all that passed, and immediately dispersed in different directions. They came from the meeting. I do not identify any of the defendants as having been among the thirty. I asked M'Intyre if he had a license, he said he had not one, and did not intend to have one. This was about a quarter of an hour after the previous occurrence. The police moved about from place to place, and the main body of the crowd followed, annoying them as much as possible.
Solicitor-General: What effect do you think these proceedings were calculated to have?
Mr. Michie and Mr. Pendergast objected : It could only be asked, what was the effect on your own mind ?
Witness resumed: The meeting was calculated to produce alarm. I thought I might be shot. I was not alarmed. General alarm was produced. When M'Intyre told me he had no license, I told him I would have him taken into custody. He said, "You are a b——y wretch." I asked Bryant if he had a license. He had none. I ordered him to be taken into custody, he was excessively violent. I had to order him to be handcuffed, and on the way up he called to the people on both sides, He said, "Won't you help."
Cross-examined by Mr. Michie : Bryant said he had no license.
Mr. Morris Ximenes being sworn, stated : I am not a Government officer. Was Sub-lnspector of Police on the 30th of November. I was ordered to proceed with Mr. Commissioner Johnston, about half-past ten, to collect licenses. We met a large party, who came out of their holes. There were two or three hundred. We asked for their licenses. There were ten horse police and ten foot. None of the men produced their licenses. One of them told the rest not to show their licences, saying, "If they were of his mind, they would not shew their licenses to any b——y commissioner or policeman." Sergeant Nolan arrested that man. The crowd rushed forward and dragged the sergeant and the prisoner towards the holes. I ordered the mounted men to follow me to help him. The crowd then threw stones, broken bottles, &c., at us. The holes were being wrought. The people came altogether out of the holes. There might have been 500. The crowd continued together for about two hours ; it increased in numbers. The riot act was read, I heard it. There might then be 2000. This large crowd joined the 200 on the road. Reinforcements came down from the Camp with the Resident Commissioner; he read the riot act. It might be about eleven or twelve o'clock. Immediately after the act was read I saw two stones thrown at Mr. Rede, which missed him, and struck two diggers. I saw other stones thrown. I saw a policeman, a boy of about 18 or 20, go up to a man, he was cut down by him and severely injured. The man who struck down the police- man was in front of the crowd of two or three thousand, I was struck myself. I saw Sergeant Nolan struck. I did not observe any of the traverses there.
By Mr. Cope I cannot fix the reading of the act nearer than 11, 12 or 1 o'olock. It was between 11 and 1.
Samuel S. Furnell, being sworn, said I am a Sub Inspector of Police. I recollect the 30th of November. I was on duty. I went down after the police had been assaulted, with another party, to aid them. I found the police drawn up in the road, and from 500 to 1000 people drawn up in front of them. Some stones were being thrown at the police. Captain Carter accompanied me with foot police. Captain Carter sent two men to ask a man for his license, one of them was struck down; this was in presence of the crowd. The crowd showed approbation, I should fancy. I was present when the act was read. It was about half past eleven or twelve. The military had been called out. A shot was fired. Saw Campbell running away, with smoke around him. I rode after him, and took him. He had a revolver on him, of which one barrel had been fired off. I saw M'Intyre at the meeting after the riot act was read. I saw Bryant there, he was violent. He was there I believe.
Mr. Michie: Do not tell us, sir, what you believe. Is he the man ?
Witness continued: Well, I do not know. I will not swear he is the man. I decline speaking about Goddard.
William Nolan, sworn: I am sergeant in the mounted police. I was on the 30th out collecting licenses at Ballaarat. I recollect the riot act being read. Goddard was there after the act was read. He was on a horse bare backed. He waved his hand to the mob who were shouting. He passed on ; from his gestures I thought he was addressing them. He then rode from tent to tent. M'Intyre was in front of the crowd, he was one of the leading men. I arrested a man for not having a license. Campbell came up, and I was knocked down by him or others, and the prisoner ran away. I was trampled upon. A number of stones were thrown at me, and one of the men cut at my head with a spade.
Mr Prendergast, in cross-culmination, elicited that Campbell when taken into custody had a revolver in his pocket loaded, and about twenty or thirty balls in his pocket: there were caps on the pistol.
The Solicitor-General re-examined on this fresh information.
Robert Rede, being sworn, said: I was Resident Commissioner at Ballaarat on the 30th of November. There was a large crowd. I read the riot act, as the people would not disperse, and the police had been assaulted. It was about twelve o'clock. The effect of their conduct was that they had determined to resist the Government. I had a large number of stones thrown at my head. I did not feel afraid, or think I was in danger, as I went in right among the crowd.
By Mr. Michie: Some six weeks before this it might be that I received instructions from Melbourne to search for unlicensed miners. My instructions were to go out and search for diggers without license twice a week. It was some time after the Governor returned from Ballaarat.
These searches were more frequent after his Excellency's visits to Ballaarat than before.
Patrick O'Keele, being sworn, said, I am a private in the 40th regiment. I remember the 30th of November being in Ballaarat. I saw the defendant Ewings in the crowd. (Ewings is a boy of about 15 years old.) I heard a shot fired. The prisoner run away from the place where it was fired. I will not swear he was the party who fired. I arrested him.
By Mr. Cope: I told the prisoner if he did not stay I would shoot him — seeing I could apprehend him without, I did not fire. If I could not have secured him without, I would have shot him, if I thought he was one of the guilty parties.
Jeromah Fitzgerald: I am a private in the 40th regiment. I see Ewings in court. I recollect a crowd on the 30th of November at Ballaarat. I was on duty. The military were called out to asisst the police. I saw Ewings fire a pistol. He ran away, and he was apprehended. I am sure he was the man who fired the shot. No pistol was found on him. I saw the pistol in his hand. After he fired, and before he was apprehended, I lost sight of him.
Cross examined by Mr. Cope: I have been in the regiment five years. I am blessed if I know if it was a common pistol, or a horse-pistol, or what. The military came up after the riot act was read.
George Jeffries Carter, sworn: I am Sub Inspector of Police. The military were called out to assist the police, who had been driven back by the diggers on the 30th of November. One of the police was knocked down by a man with an axe-handle. Bryant was asked for his license, he refused to shew it, and was taken into custody after great resistance.
William Clary sworn: I remember the crowd at the gravel pit road, Ballaarat, on the 30th. The man Campbell was amongst them. I saw Sergeant Nolan going up to arrest a man for not having his license. Campbell was with about thirty others. He said "Come on, you b——y wretches." Camp- bell struck Nolan on the back of the head with his hand. I saw him also take up two stones. He threw one, and struck Constable Glover, who was going to assist Nolan. The stone struck him on the back. Glover ran back, and Campbell followed him, and threw the second stone at his head. The police then drew off, and got under arms at Ballaarat. They returned to the spot, and I again saw Campbell, and pointed him out to Captain Carter. Orders were given to arrest him; and, when he saw the men advancing, he ran away. He was captured after a chase.
Cross examined by Mr Cope: I did not state these circumstances before, on my previous examinations. The depositions produced are mine
The reason why I did not state this was because I was not asked. The occurrence took place near the road to Ballaarat, and near the bowling-alley, It was between the road and the diggings.
William Thompson sworn: I saw the prisoner Campbell at the meeting on the 30th of November. I attempted to arrest him, and he endeavored to disarm me. He was standing amidst thirty or forty people at the time. He ran away when I went towards him, and I called on him to stop — When he would not do so I fired at him.
Cross examined by Mr. Cope: I endeavored to induce him to stop, nor did I fire until I found that he was escaping. Whilst I was pursuing him, he turned round and endeavored to seize my bayonet, saying "O, you b——y dog." I stated all this when examined before, but it was not taken down. I did not hear the riot act read. There were two other men with me. Cumpbell was arrested by Mr. Furnell.
William Graham examined: I am sergeant of the mounted police I was out on the 30th of November at Ballaarat. There was a crowd there, and I saw Chapman on the outskirts of it. They commenced throwing stones at the police, and we turned round. The crowd drew back, but Chapman presented a pistol at me. This is the weapon (produced), and I afterwards found it was loaded. There were military on the ground at this time.
By Mr. Michie: I was in company with some troopers. We were riding towards the camp, rank and file. We were doing nothing else.
Henry Moore stated: I was Sub-Inspector of police at the time of the Ballaarat riots. I saw Chapman in the crowd on the 30th of November, and saw him present a pistol at some troopers. I gave orders for his arrest. The crowd had been throwing stones previously, but none of us were hurt.
William Nevil: I am a trooper, and was present at Ballaarat on the 30th of November. I saw Chapman with a pistol, which was cocked, and he appeared to be examining the nipple. I called to him to drop it, or I would shoot him, and he did so.
By Mr. Michie: I was about thirty yards from him at the time.
George Webster said: I was present at a meeting held at Bakery Hill on the 29th of November, and heard many of the speeches made there.
The Solicitor General was proceeding to inquire the tenor of these speeches, but his question was objected to, and he at once admitted the validity of the objection.
The Witness: I saw placards on that occasion, but do not remember precisely what they were, or their date.
This closed the case for the Crown.
Mr. Michie: I now submit to your Honor that there is no evidence of conspiracy against any of the prisoners.
The Court: There may not be sufficient evidence on the first count, but there are other counts besides the first.
The Solicitor General: The second count com- prises the charge of riot, and assault on Nolan.
Mr. Michie: With regard to the second count, there is no evidence against either Bryant or Chapman, for neither of them were seen to have in the slightest degree participated in the assault upon Nolan.
The Solicitor-General: I admit that Campbell is the only man positively proved to have been present at the assault upon Nolan.
The Court: There is no evidence against any- body but Campbell under the second count.
Mr Cope: I submit that there is no evidence at all against M'Intyre.
The Court: The fourth count also affects Campbell alone, but on the third count of riotously and unlawfully assembling, there is evidence to go to the jury with respect to all.
Mr. Cope I submit that there is no evidence against Ewings as to the unlawful as assebling ; he is only charged with firing a pistol.
The Solicitor General: Yes, but that pistol was fired at one of the troopers.
Mr. Cope: That does not appear.
His Honor: I have watched the cases carefully, and the evidence relating to every individual act spoken of, in order to see whether such acts were directly in connection with those of the crowd. Whatever the evidence on that particular act may be, it does not appear to have had any conncetion with the actions of the crowd. The prisoner was not seen in the crowd at all.
The Solicitor General: The man was near to the police at the time.
His Honor: That, however, gives us not the slightest particle of evidence against him.
The Solicitor General: The officers of police were endeavoring to arrest a prisoner at the time.
Mr. Prendergast: I submit to your Honor that in the case of Goddard there is no evidence to go to the jury. He is only shown to have ridden through the crowd on horseback.
His Honor: There is no other evidence against him, for he is shewn afterwards to have ridden from tent to tent. There is a difference between slight evidence, and no case to go to the jury.
Mr Michie then addressed the jury, and said: In one point I certainly do entirely and cordially agree with my learned friend the Solicitor-General, and that is, that there is nothing whatever in the case to necessitate either myself or my learned friends treating it in a political or any other spirit than that belonging to any ordinary case which
might come before us in the course of any of these sittings. My learned friend, however, seems to have anticipated — and, certainly, so far as I am concerned, he has done so without foundation — that we were about to convert the arena of the court into a kind of political exhibition ; and that we were driven to the necessity of entrapping you into a verdict either from your sympathies or your prejudices, rather than rely, as I do, upon the intrinsic facts of my case. This case seems to have been looked at through a political magnifying glass — a sort of Lord Rosse's telescope, and the evidence seems to correspond with that proceeding, or rather, as it seems to me, we have now to look at it with the glass inverted, for the evidence we have received has been of an infinitesimal character, is given in homeopithic doses by the commissioners, who have been called upon to consume several hours of our time, and have produced very little for it. For what is the question we are assembled to try? You will find that all the evidence has been adduced against these men that the Crown relied upon, that evidence being taken distributively rather than in the particular cases to which that evidence might apply, and when we come to analyse, sift, and examine, what proportion, if any, of this entire body of evidence applies to, or can be made to apply to, any of the serious counts in this information? Really there is — speaking accord- ing to the language of common sense, which is the language of the law — nothing that will justify the crown, in my opinion, for treating this as any- thing but a common assault, and there has been no evidence to justify the conclusion that, by many of them, even a common assault was committed. You must dismiss altogether from your contemplation any part of the evidence whatever which relates to those counts which charge the prisoners with seditiously assembling, and at once, and without any further delay, contine your serious attention to every part of the evidence which can be adduced by the Crown to bear upon the proposition sent to you, whether or not this was an unlawful assemblage. What does Inspector Evans tell us? I do not intend to challenge his veracity or his ingenuousness, but I can say distinctly, and I have not the slight- est doubt that I can make you say with corresponding distinctness, comparing a portion of my learned friend's speech with Evans's evidence, where is the proof that this meeting took place in consequence of the constables going out to challenge unlicensed miners? The conclusion is demonstrably wrong, because what I understood my learned friend to say as a part of his speech, — for although he does not prove that part of his case, I am obliged to refer to it, — is that the placard was posted on the 29th November. I will here say that I adopt in toto the terms of that placard, and they may prosecute me for it if they like. I say "down with despotism," and I hope it may never thrive in any country, and that there may never be an exhibition of power against the just rights of the public here. What we have to do with the placard, however is not with the contents of it, but to fix on our minds the important salient fact, that the placard seems to be in itself an evidence that the meeting was not called in consequence of the license search to take place. I refer to it as bearing on what my learned friend said in regard to Evans' testimony. Now Evans said that he believed that the knowledge that the police were to go out and hunt for unlicensed miners, and the occurrence of the meeting were cause and effect. But how stands the fact. We have the placard in existence on the morning of the 30th and the meeting takes place the same day. At any rate this shews that the meeting was a lawful one, and one likely to be a quiet one if it had not been interrupted. It is the constitutional right of any body of men in any part of this country to assemble together for the purpose of passing reasonable resolutions, with the view of their having a moral effect and influence upon the powers to be affected; and this meeting, which took place on the 30th, had evidently been convened by previous arrangement, and had been got up for an especial purpose. Therefore you may say that it was in consequence of an excursion made on the 29th; but there was no collection of licenses on that day, for the authorities seemed to be particular to select the 30th for their purpose. Now what is the conclusion we must arrive at from this ? Whether it originated with Mr. Rede or the higher powers, I care not which — we know that the 30th was selected by the authorities for their excursion in the neighborhood of the Gravel Pits for the purpose of collecting licenses at the time of this meeting. No one can resist this conclusion; and you will see that Mr. Evans is under an erroneous impression when he says that the meeting is improvised. The meeting was not convened on the 30th in consequence of the police going out on that day to challenge unlicenced miners, unless you are to suppose that so soon as it was intimated that the police were about tomake a raid through the diggings they had got up the meeting, and stuck up placards instantly.
This could not have been the case, and if therefore, the meeting was convened before the police were known to be coming out, we have a strong reason to infer that, as it was a peaceable meeting, it would have gone off without a single breach of the peace, even of the mildest character — but for the gross want of judgement — I use no worse term, for that is sufficient for my purpose;— but for the indefensible want of judgement shown by Mr. Rede and his myrmidons. Of this statement I find evidence in the bowels of the case, for I can find from no statement which comes either from constable, soldier, or magistrate, that these parties conspired together previously, or improvised a conspiracy, or that they intended anything unlawful. I ex- tract from the bowels of the case to shew that they contemplated nothing more than a peaceful and constitutional meeting, and this is clearly proved from the language of one of the defend- ants,who said to the trooper, "You are foolish in coming here at all, we don't wish to hurt you." That was the language used. And now gentlemen, I put it to you, as twelve reasonable men trying this case, what have you in this city to fear from even the men of Ballaraat? I trust that you and I live in a community too sound, — too wise, — too free, — too conscious of our real character and our own interests, — valuing too much the blessings of peace, to fear any outbreak amongst us. But I ask you, facing these things like men of ordinary perception — what do you see in the conduct of these men to warrant their prosecution in the terms addressed to you ? What do you find in the evidence to support the views of the prosecution, when even one of the alleged conspirators says to those against whom he is supposed to conspire — "We don't wish you any harm — you are foolish to come here ?" I reiterate his word — I echo him — it was foolish of the authorities, higher or lower — it was a criminal, a gross, want of judgement, for it might have led to the shedding of blood in very considerable quantity. There are duties to be observed on both sides — by those entrusted with power, and those to be affected by that power, and it was, according to this view, a gross want of judgement to select this particular time for a license raid. I need not tell you this — it is almost superfluous, for you can find the impropriety by the experience of any one of you. You are not so young, so in- experienced, so raw in the proceedings of large bodies of persons, as not to know that when they are assembled even for the most innocent purpose, there is an additional excitability and sensibility which is something contagious — and thus, words uttered by a man in such an assembly, would have far more effect than if uttered to a private individual in a room. There is always a greater effect upon a mob than upon individuals, — not excepting from this rule the British House of Peers, which was truly called by a great critic a mob, for they were so while they were forgetful of the amenities, the delicacies, and the dignified manner which the peerage was supposed to possess and they usually exhibit, and without which they could not command the ascendancy and respect they possess, and I trust they will still continue to possess. I speak of the occasion on which they received King William the Fourth, when he went down to prorogue Parliament on the occasion of the Reform agitation. I have read Mr. Roebuck's history of the Whig administration, and Lord Brougham's account also, and from these I gathered an account of the manner in which they received their monarch when he went to dissolve Parliament for having resisted the passing of that great measure, which the united nation, respectability, power, wealth, and all that could command or indicate public opinion, joined in demanding from it. On that occasion they insulted their sovereign, and why ? because he interrupted them in their course of opposition to a public measure of reform;— because it was intimated to them at very short notice, that the Lord Chancellor was going to dissolve the House, and that their Monarch was going to try another appeal to the country. They then insulted their Sovereign, and if you find such a deportment as that from such a body as I have named — what, I ask you, must Mr. Commissioner Rede expect, or anybody higher or lower than him, without an ounce of judgement, or as much brains as a mouse — what could he possibly expect on an occasion of this kind, when he made an excursion at such a time, and under such circumstances, for the purpose of doing what — the most aggravating act that could be done in that locality. He said, perhaps, let us pop down on them in the midst of a discussion, that will be extra aggravating — let us hound them in the act of constitutionally petitioning Government for the rescinding of this very power which we exercise. Now, gentlemen, I ask you, this being the case — the men being interrupted in this manner — what do you think of the character of the act? I put it to you as Englishmen — I put it to you Colonists — as men not altogether ignorant of political proceedings. I, gentlemen, can remember when I was a boy attending a political meeting in Lincoln Inn-Fields — on the occasion of Sir Francis Burdett being in the chair. That meeting was convened for the purpose of forming a national political union. There were many thousands present, and some exceedingly strong language used — in fact some persons might extract treason out of it; and the Government let it pass by. They knew that there is something about Englishmen which makes it not likely that they will take an unconstitutional course; and that though they respected the authorities they were in the habit of speaking exceedingly plain, and having done so: they pursued their ordinary course. I ask you if on this particular occasion, and I use it as a fair illustration to apply to the conduct of Rede and the others acting with him, if at the time of the meeting to which I have adverted it had gone forth, or the circumstances of the metropolis could have permitted such a fiat to go forth, the whole tax-gatherers of London with their ink bottles at their button holes were to have rushed in upon such a crowd, and said, "Come, pay up your taxes, I cannot allow you to be standing here, listening to resolutions! Pay up your assessed taxes, or shew your receipt for your last quarter's taxes." They would have been considered mad, and the result would no doubt have been something more enormous than that which has already taken place at Ballaarat, for I think in the metropolis the assembled thousands would have said to the tax gatherers, "If you don't walk off, you may provoke a breach of the peace, and lead to unpleasant ulterior results." Now, with these general prefatory remarks, I will take up a little of your further time in seeing how the evidence affects the prisoner for whom I appear. There is no evidence against him, even of the most vague and indifferent description, having reference to the terms of any part of these informations. It remains to be proved, even if you do call this an unlawful assembly, that Bryant was present at it, for, in the first instance, he is stated to be one of about thirty who fluctuated between the crowd and somewhere else, but, when I came to elicit a little more, the witness is compelled to admit that Bryant is not one of them. Somebody, it seems however, went up to Bryant, and asked for his license, and he replied, that he had not got one, or that he did not want one ; on this he is seized by the throat and taken away. Now, I think it is not a wise course — it is scarcely an English course — it is scarcely a constitutional, permissible, moral or decent course — that when a man says he has not got his license he should be seized in this way. It might be that he had no money to get a license, being a new arrival, he might be going away, and so have no occasion for a license, and so say — I do not want one , but why make the mere answer to a question a matter of such acrimony ? If a man is apprehended for a trifling breach of the law under such circumstances the probability is that, if the community be not already a set of vagabonds, such practises will leave them so. Take the worst outcast at Baillant, and it is monstrous — it is simply absurd and monstrous — that on no further showing than this he should be laid hold of by the throat, clapped into a lock up, and punished by being subjected to the ignominy of being led away by force. It is not as if a man were to say "I have the money to pay for my license, but I am going to continue here in defiance of your authority." They could only have shown —that which is required to be shown in every police court, and which I trust will be required here — that the man was an intentional offender against the law. Now, gentlemen, the conduct of the police on this occasion, when they tell you that this is all that passed previous to their precipitating themselves on Bryant and taking him away to imprisonment, de- feats their own object, for therefore Bryant cannot be guilty of an assault. He is not amenable as having been one of an unlawful assembly, for it has not been proved that he was one of the meeting, nor is it proved that the meeting was an un- lawful assembly or a concealed and organised resistance to the collection of the license-fee. The meeting was for the purpose of rescinding the fee and therefore was not an unlawful meeting any more than the assembly of which I have spoken of in London, or any of these monster meetings which have taken place in England, Ireland or Scotland, contemporaneously with any great political movement. Aye, and more than that — any more than this meeting lately assembled in the vacant space outside the building, and where there was as strong language used by the different speakers as at Ballaarat itself. Because, however, we were not diggers we were allowed to speak our utmost and then proceed to our homes. What we have done therefore, we still contend was legal, and so was the other meeting, the elements of discord were only introduced into it by those who should have been the preservers of the public peace instead of the disturbers of it. Supposing, however, that the meeting was unlawful: Bryant was not there, but only on the outskirts of it, and is merely challenged as to whether he has got his license, nor would he have been brought here except for the circumstance of his not having it. In the case of the Queen v. Barney there is the report of a special Commission at Salisbury, which decides that "the prisoner must be identified as par of a crowd before the riot is proved." Now, gentlemen, suppose a riot is proved here, — a general, concerted, and organised movement of attack upon the authorities — the Crown is under the necessity of proving that my client was present. If this were otherwise, had any of you — any man in this Court been there, and refused to show a licence — for it does not appear that the inquiry is initiated by an inquiry as to whether a man is a digger, by their magnificences, the police, — he might have been dragged here as a rioter. The police, it seems are superior to any prolix or prolonged inquiries of the kind, for they are too much of gentlemen to comply with the little niceties of justice. They do not ask a man if he is a digger, but say — "Where's your licence?" And if his Grace the Archbishop were there, and could not exhibit a license, he would be marched off. This may appear extremely absurd, but it is extremely irritating. It has not, however, been shewn that Bryant was there, and therefore the case against him is simply narrowed to this: is he or not guilty of a common assault, and unless he was he is here altogether illegally and unjustifiably.
His Honor: There is no case against any one of assault except Campbell.
Mr Michie: I was fearful that the jury might be under a misimpression — for the case might be construed into something like assault; therefore, gentlemen, I solicit as a matter of justice — as a matter of common reason — a merciful verdict. I think that punishment enough has been fixed on these men, over whom these proceedings have been hanging during the last two or three sittings, and who have incurred the expense and loss of time of attendance. This is absolutely more than enough on such a trumpery charge. We find, moreover, but an infinitessimal amount of evidence against these men, and I trust that this, and the doubtful nature of the supposed offence, will entitle them at your hands to an acquittal.
Mr. Cope followed, and Mr. Prendergast also addressed the court for the other prisoners, and called for the defence.
Thomas Waer, examined by Mr. Cope: I am a digger at Ballarat, and was a mate of Campbell's. On the 30th of November he was at work in the hole. I saw him several times during the day at work there ; and I also saw him at the Gravel-pit road. Campbell was at work when the great row took place about the licenses, and at the time when the police-sergeant was struck.
By the Solicitor-General: I saw the police sergeant running away with his head down. I do not know who it was. I had that moment come away from the hole where Campbell was and he was putting on his clothes. I was not present when he was arrested. I have another mate, Murdock M'Donnell, who assisted me to lower and raise Campbell from the hole on that day.
Donald McLeod, examined by Mr. Cope: I reside at Ballarat. On the 30th of November last I saw Campbell at work at his hole. Had Campbell been present when Nolan was struck I must have seen him, as I was on the spot, although not looking on at the time of the act. There was a large crowd at the time.
By the Solicitor-General: There might be sixty or seventy persons in the crowd. I did not know any of them, but I am sure Campbell was not there. He might have been by a possibility there without my seeing him. I know Waer, and believe he was present, but I did not see him.
James Robinson: I am a digger at Ballaarat. I was there on the 30th of November, and I saw Nolan struck. He was struck by a man greatly resembling Campbell, who had on a red cap. It was not Campbell. The man who struck the blow is at Ballaarat.
By Mr. Prendergast: Bryant was my mate. I was with him when he was arrested.
By the Solicitor-General: The man who struck Nolan is called Jack. I call him "red cap." He resembles Campbell in appearance, but not in features.
Joseph Turner examined by Mr. Prendergast:
I am assitant to a gold broker. On the 30th of November I was residing, at Ballaarat, and near Bakery Hill. My residence would command a view of what took place on the 30th. I saw the whole transaction on the 30th. I saw Goddard on a bare-backed horse coming right through the crowd. He did not remain in sight more than two minutes, as he was going directlt towards his own tent to which there was no other road. The crowd called to him to go to the Eureka men for assistance, but he waved his hand, and said, "let me pass, I am in a hurry." I heard afterwards that he had been arrested. The troopers came up a moment afterwards, and drove the crowd back in the direction in which Goddard went.
By the Solicitor-General: The horse was his own, and I had seen him coming with it from the flat where it was grazing, towards his own tent.
This was the case for the defendants.
The Solicitor-General, in replying, pointed out that it was not the fact of the meeting of the 29th to which he drew the attention of the jury, but to the combination of the succeeding day to oppose the police when they came out to search for licenses. He argued that there was abundant evidence to prove an antecedent resolution to obstruct the police in their duty. The very cha- racter of the meeting was illegal. It was called for the express purpose of opposing the law. There was evidence to show that it was predetermined to assault the police. Where it was safe to do so, they had thrown stones at them, at other times they had only groaned and hooted. The reading of the Riot Act, to which reference had been made, did not make their assembly un- lawful, it was so beforehand. There was evidence to shew that they had fired at the police.
His Honor did not remember any such evidence. The Solicitor-General said he might have misstated that particular, but they had certainly thrown stones. The learned counsel then proceeded to detail the evidence as bearing on the case of Goddard, and subsequently on that of the prisoners. In the course of his reply the Solicitor-General was frequently interrupted by the opposing Counsel, who affirmed that he was straining the facts of the evidence.
His Honor was about to address the jury, when the officers of the court raised the usual out-cry of 'silence,' upon which his Honor said, that as the court was perfectly quiet, he did not see any necessity for their creating an uproar by crying 'silence.'
In summing up, His Honor said, that the duty which the Jury and himself had to perform was a simple one. They were to be guided simply by the evidence which had been adduced. With regard to the first count charging the defendants with conspiracy, there was no evidence at all to support it. The second and fourth counts; relating to the assault on Nolan, could only apply to Campbell. The third count, namely, that of unlawfully assembling, was the only one in which the whole of the defendants were implicated. The assembly might be for a lawful object, and yet become unlawful from the manner in which it was carried out. It was unnecessary to enter upon the evidence as to whether they were lawfully or unlawfully assembled in the first instance. The facts had been justly laid down by the counsel on both sides; but wrong conclusions had been drawn therefrom. It might be assumed that it was in the first instance a lawful assembly, because the parties constituting it had on undoubted right to discuss the measures of the Government if they were dissatisfied with them, and to require, in a constitutional manner, the redress of any grievances of which they complained. There was no doubt of their right to discuss such matters in the most unmeasured terms short of sedition. They met to consider the licence fee, which hey imagined to be a hardship, and a grievance which required redress. There was nothing to shew that the meeting was assembled for an unlawful object, for although a placard had been spoken of by the Solicitor-General, no evidence had come before them regarding such a placard. There had been no evidence adduced to satisfy them of any unlawful intention in assembling the meeting. They had therefore a right to assume that the object was a lawful one. But though the object were a lawful one, the meeting might become unlawful from the manner in which it was conducted. For though the assembly were a lawful one, yet, if it could be shown that it was carried on in a riotous manner, that rendered it unlawful. The learned Judge here quoted authorities on the subject, explaining that, were the assembly conducted in a riotous manner, so as to become alarming to the neighborhood, it became unlawful. His Honor said that those observations applied equally to the mob of which the defendants were said to have formed a part. It was for the jury to consider whether a mob had acted in such a riotous manner before they could connect the defendants with it. The most comprehensive evidence which had been adduced on that subject was that of Evans, the Inspector of Police, who stated that there were about 2000 persons assembled, some of whom attacked the police with stones, and called out "Joe" as they passed. With regard to that cry of "Joe" he saw nothing in it. It might have been "Bill" or anything else. There was no evidence to show what it meant and if the jury appealed to him in his judicial capacity, he could simply inform them that he could give no idea as to what was its meaning. This witness had, it appeared, been attacked with stones as he was taking a man into custody for having no license. So long as it was the duty of the police to take men into custody for having no license, it was of course, wrong to resist them in the execution of that duty. The mob appeared from the evidence to have been scattered about in knots, and, in one or two instances there appeared to have been particular cases of violence. It was for the jury to consider how far this was a riotous assembly calculated to strike terror into the neighborhood, which appeared to have consisted in fact of the diggers themselves. It became a matter for consideration how far particular parties in that mob were implicated in its proceedings. The bare fact of being in it proved little, as from its scattered nature, and from the character of the diggings (he did not state this from any personae knowledge of them) he should imagine that no one could immediately and completely withdraw from the scene. Therefore it became a matter for serious consideration as to the position in which the defendants were found, whether near their own homes or not. There was not sufficient evidence to shew that arms were found upon the men, but even if there were, they knew that carrying arms was common even among the most respectable classes. On the diggings in particular, a revolver seemed as necessary a part of a digger as a pick. Nothing was therefore proved, even were arms found upon them, unless it could be shown that those arms had been used in a riotous manner, and were this proved in one or two instances, that might not prove a tumultuous assembly. Yet they must not overlook the fact, that several of the police had declared that stones were thrown by the mob generally. Then came the most important question, in fact the only important one, so far as the defendants were concerned, as to what part they had acted in the affair. From the evidence, it appeared that Campbell was the only one who was implicated in the assault upon Nolan. The other five then were charged with assisting at a tumultuous assembly. There was a little evidence against them; it was for for them to say whether it was of that comprehensive character as to shew that the defendants had acted in a different manner to that which any person accidentally there might have done. There was no evidence against Ewing, except that he had desired some of them not to produce their license; a very different matter from desiring them to act in a riotous manner if they were demanded. Bryant was implicated chiefly by the evidence of Evans and Carter. From that evidence it appeared that when they endeavored to take him into custody he behaved in such a violent manner that they were obliged to handcuff him. There appeared to have been about a dozen persons around at the time, who were quiet, and, therefore though Bryant, who appeared to have acted violently, might have been obstructing the police, the evidence did not shew that he was assisting a tumultuous assembly. He thought there would have to be something more before they could connect Bryant with a tumultuous mob. Next they came to M'Intyre. Although from the evidence (which his Honor read) it was shown that he was acting the part of a peacemaker, yet it was argued, from the tone of it, that it proved him to have been a leader of the mob. But they must consider whether the language he used was not equally consistent with no illegal design as with the one that was endeavored to be given to it. He did not think that would inculpate him.
The strongest evidence was undoubtedly that against Campbell. It was asserted that he threw stones at the police; that he stood by while a policeman was knocked down and that he struck Nolan. If they doubted the evidence, they would give the defendant the benefit but the evidence was quite sufficient to lead them to a different opinion. When the police were performing their duty, no matter what it might be, no man had a right to obstruct them in a violent manner. From the evidence called by Campbell, it appeared that Robinson saw Nolan knocked down, and that it was not done by Camp- bell. Also, that there was another person very like Campbell, and a mistake might have originated that way. They had to consider whether that were reasonable and likely. Coming to Goddard, the only evidence which affected him was that of Nolan. It did not appear, however that he had endeavored to excite the mob, while from the evidence of Turner it would appear that he was out riding and went the only way to his home. The evidence if any, against him, was but slight. Chapman who, it had not been shown was part of the crowd, had been seen by two witnesses to present a pistol, and by one to cock it, but had thrown it down when desired to do so. It was for them to consider from the evidence whether he was one who had taken part in a tumultuous mob. From his summary they would perceive that it was Campbell and Chapman against whom the evidence was the strongest. There was a doubt in favor of Campbell which they must give him the benefit of. On the third count, then, it was for them to consider whether a mob had acted in tumultuous manner, and whether the prisoners had taken part in those acts.
Mr. Michie reminded his Honor that he had not noted that Chapman was out of range when he presented the pistol.
His Honor mentioned the fact to the jury.
The jury retired for about three minutes, and, on entering, returned a verdict of "Not guilty" against the whole of the defendants.[1]

See also

Charles Carter

Thomas Cope

Samuel Furnell

Archibald Michie

Maurice Ximenes
  1. The Argus, 20 January 1855.