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Lynch, Philip --- "Juries as communities of resistance: Eureka and the power of the rabble" [2002] AltLawJl 29; (2002) 27(2) Alternative Law Journal 83

Juries as communities of resistance: Eureka and the power of the rabble

Philip Lynch[*]

History shows that where law makers are not mindful of fundamental human freedoms and dignity, the people will respond with acts of civil disobedience.

That the natural state and right of the people is freedom is confirmed by ‘the fact that, despite all efforts to contain them, the rabble continue to fight for their fundamental human rights’.[1] Reasons are needed for people to abandon their rights and submit to structures of authority and law. Where these reasons are illegitimate, or the deprivation of rights is disproportionate, the people’s condition of revolt will subsist. The ongoing struggles and disobedience of asylum-seekers in Woomera, members of the Aboriginal Tent Embassy in Canberra, the Rainbow Sash movement in the Church, anti-globalisation activists in Melbourne, and many other communities of resistance, are testament to this. History shows that where law makers are not mindful of fundamental human freedoms and dignity, the people will respond with acts of civil disobedience.

This article examines juries as potential communities of resistance. It argues that ordinary people — as jurors — can, do, and should, commit acts of ‘civil disobedience’ where they believe that the law under which a defendant is accused is unjust or that exigent circumstances justified the actions of the defendant.[2] This examination occurs in the context of the Eureka Stockade, and the State Trials and acquittals that followed.

Notwithstanding our contemporary commitment to the rule of law (and order), as far back as 1854, the Eureka diggers, the State Trial jurors and many other ordinary people rejected the view that official laws, however arbitrary and unjust, are to be obeyed. Like many troublemakers since, they affirmed that ‘the people are the origin of all just power’.[3] Justice Michael Kirby has opined that:

Eureka stands as a warning to indifferent politicians, judges and other officials. In the ultimate, the law is not obeyed because it is made in this or that way or even because it is declared in courts of the highest authority. In the end it depends upon the community’s acceptance of it.[4]

Eureka also stands as an example to ordinary people. Law and justice are not always concomitants, but acting often in a spirit of rebellion and always in accordance with conscience and human dignity will ensure that justice prevails.

The Eureka Stockade

On Sunday, 3 December 1854, a bloody attack was waged against the diggers of the Eureka Stockade by the combined forces of 276 police officers and soldiers. The attack began shortly before dawn and, with the advantage of surprise, weaponry and superior numbers, the invading troops quickly overpowered the diggers. Twenty-two diggers and four of the troops were killed.[5]

The erection of the Eureka Stockade represented the diggers’ desperate response to the government’s failure to address their complaints and deputations concerning corruption, injustice, oppression and the infraction of liberty on the goldfields.[6] According to Peter Lalor, identified in the course of the ensuing State Trials as ‘the person who principally incited the diggers to take up arms’,[7] ‘[f]or a considerable time before that event, the people were dissatisfied with the laws, because they excluded them from possession of the land, from being represented in the Legislative Council, and imposed on them an odious poll-tax’.[8]

It was perhaps this ‘poll-tax’ or licence fee which was the cause of greatest grievance.[9] Not only was the fee prohibitively expensive (made more so by the scarcity of gold) but, ‘the diggers were subjected to the most unheard of insults and cruelties in the collection of this tax, being in many instances chained to logs if they could not produce their license’.[10] Such was the zealousness of the officials who enforced the onerous tax (and were rewarded with half of any fine imposed)[11] that diggers were often ‘asked for their licenses four or five times in the course of a day’.[12] This practice became known as ‘digger-hunting’ and led one of the diggers to implore: ‘Are diggers dogs or savages, that they are to be hunted on the diggings, commanded … to come out of their holes, and summoned from their tents by these hounds of the executive?’.[13]

According to R.S. Ross:

the grievances under which the diggers laboured were very great and shamefully oppressive. There grew up a system of unbearable tax-gathering and digger-hunting and police espionage and governmental tyranny that was impertinent and brutal and degrading.[14]

If the odious licence fee was the primary source of the diggers’ dissatisfaction, a number of events in late 1854, including increasing corruption, the arrival and heavy- handedness of Governor Sir Charles Hotham, an attempted cover-up of the murder of a digger, and the conflagration of a hotel following a diggers’ protest, transformed the rumblings to rebellion.[15]

The charges

Following the suppression of the Eureka diggers’ rebellion, martial law was proclaimed in the area and 155 of the insurgents were arrested.[16] However, in the face of increasing community protest, ‘over a hundred of the persons were hurriedly released on the face-saving grounds of insufficient evidence’.[17] Thirteen of the dissidents were remanded and charged with high treason.[18] Fearing community support for the insurgents in Ballarat, they were transported to Melbourne in conditions of ‘considerable privation’[19] and detained for some months awaiting trial.[20] The conditions of prolonged incarceration were described by Carboni Raffaello, perhaps the most contemporaneously celebrated of the accused:

[T]he prison was crammed to suffocation. We had not space enough to lie down and so it was taken in turns to stand or lie down … Fleas, lice, horse-stealers, and low-thieves soon introduced themselves to my notice. This vermin and the heat of the season and the stench of that place and the horror of my situation, rendered life intolerable to me.[21]

The charge of ‘high treason’ was predicated on the Treason Act 1351 (Eng). The charge was punishable by death and would, it was hoped by the government, sound as a dire warning for any prospective insurgents. Instead, the draconian charge consecrated public opinion against the government, and foisted martyrdom on the thirteen accused.[22]

‘High treason’ required that there be an insurrection, that the insurrection be accompanied by force, and that the object of the insurrection be of a general and public nature.[23] The general defence policy was to ‘laugh at the [charge of] treason’.[24] Counsel for the defendants exhorted that:

[h]igh treason might be manifested … if any ulterior object of dethroning the Government, or changing the laws by force, was demonstrated; but where was this shown? — or where was the constituted authority of the Queen attempted to be subverted?[25]

Notwithstanding these exhortations, there was considerable evidence and opinion at the time that the elements of high treason would be satisfied.[26]

The State Trials

On 13 February 1855, the thirteen accused were arraigned before Chief Justice William a’Beckett in the Supreme Court of Victoria. Both Chief Justice a’Beckett and Justice Redmond Barry, who presided over each of the seven State Trials, ‘enjoyed a cosy relationship with the Executive’.[27] As if this relationship was insufficient to give rise to some reasonable apprehension of bias, a’Beckett CJ had a ‘profound aversion to gold mining’![28] The insurgents were hence fortunate to have been represented by a ‘band of able and brilliant barristers’[29] and to have been tried by a jury.[30]

The case against John Joseph, an African–American from New York, was the first to be tried. Six prosecution witnesses identified Joseph as having been present within the stockade at the time of the attack and evidence was presented that he had discharged a gun in the direction of Captain Wise, who was fatally wounded.[31] In his defence, Joseph called no witnesses. Counsel for Joseph addressed the jury as follows:

Gentlemen, this prisoner’s plain and simple story is that … he was there with no more idea of subverting this apparently very shaky British Constitution … than he had of flying; he was there as they all were, trying to get his living, and I dare say objecting to being bullied and tortured by police …[32]

Chief Justice a’Beckett’s directions to the jury included a dispensation of the defence’s arguments based on provocation and self-defence,[33] a condonation of the brutal suppression of the rebellion, and a substantial reiteration of the prosecution’s case.[34] So partisan was the Chief Justice’s summation that His Honour even went so far as to give a direction which had the effect of reversing the burden of proof.[35] The Age reported that, ‘never in the whole course of our experience do we recollect such a one-sided charge. He quite outstripped the Attorney-General in his ardour to hunt down the ‘political Uncle Tom’ that stood in the dock’.[36] Having received their instructions, the jurors retired to consider their verdict. Within half an hour they returned:

‘Not Guilty’. Such is the spontaneous and righteous verdict that a jury of Victorian citizens have given in the case of the first of the Ballarat men … Such is the nobly honest and fearless reply that these true-hearted men have given to the weak Government which sought to make them the instruments of its vengeance on their fellow colonists. Such are the words in which … those twelve good men and true have summed up their emphatic protest against injustice, oppression and treachery.[37]

The jury’s verdict was acclaimed both inside and outside the Court.[38]

The next case to be tried was that of John Manning, a journalist for the Ballarat Times. The evidence presented both by the prosecution and the defence was similar to that given in the Joseph case. Counsel for the defence ‘felt convinced from the want of conclusive evidence the prisoner ought to be acquitted’[39] and declined to address the jury. Chief Justice a’Beckett rendered a ‘measured summing up’[40] and, after deliberating for half an hour, the jury returned a verdict of not guilty.[41]

Notwithstanding public exhortations that the remaining prosecutions be abandoned,[42] they were pursued following a month-long postponement. The postponement enabled the Crown to establish a new list of jurors and revealed a fixity of purpose of the government, provoking widespread resentment and condemnation within the community: ‘The postponement of the trials was discreditable to the Government, subversive to the benefits of trial by jury and shows an unbecoming desire for vengeance’.[43]

The trials of: Timothy Hayes; Carboni Raffaello; Jan Vannick; James Beattie and Michael Tuohey (who were tried together); and Henry Reid, James Campbell, William Molloy, Jacob Sorenson and John Phelan (who were tried together), were conducted with increasing expedition and predictable results.[44] In the Hayes case, the Age wrote that the jurors, ‘looked as if their minds were made up, and as if the formalities of the trial were a mere nuisance, which decency compelled them to endure’.[45] In the case of Reid, Campbell, Molloy, Sorenson and Phelan, the jury delivered a verdict of ‘not guilty’ after deliberating for a mere seven minutes.[46] In all, the cases were concluded by 27 March 1855 with a total of less than ten sitting days.[47] All of the defendants were vindicated by juries and found not guilty.

Why the expedition and haste in the conduct of the trials? From the outset, public opinion was arraigned against the prosecutions. As the trials continued, public condemnation of the trials and the governmental agenda became increasingly scathing. The government was variously accused of perjury, tyranny and vengeance.[48] The Age submitted that ‘the heart of the people is sound; it is only the heart of the Government that is rotten’,[49] while the Melbourne Morning Herald described the trials as ‘one of the most pitiful and disgusting performances ever witnessed’.[50] Faced with crystallising adverse public opinion but determined to make an example of the insurgents and reluctant to reject the justice of its own cause, the government opted to pursue the prosecutions, albeit with startling haste.[51]

Why the resounding acquittals in each of the trials? Although the Age derided the Crown evidence as ‘rambling and contradictory’ — and even went so far as to maintain that ‘nothing had been sworn to, which could convict a cat’[52] — the evidence adduced against the dissidents was, arguably, sufficient to convict.[53] Given the ‘cosy relationship’ between the judiciary and the government, and the apparent preparedness of Crown witnesses to perjure themselves in a quest for convictions,[54] the acquittals are therefore, in some ways, perplexing. Indeed, it seems that there is little doubt that the verdicts would have been manifestly different had the question of guilt been left to the judiciary and the criminal justice system not been ‘encumbered’ with the jury.[55]

In correspondence to the Age, John Manning acknowledged that he owed his life ‘to the unbending honesty, independence and integrity of a Melbourne jury’.[56] While it might be overly romantic to contend that the jury verdicts were an attestation of the jurors’ ‘devotion to Democracy and the love of Liberty’,[57] the acquittals do seem to have been the response of the people to:

[T]he conduct of the Government in, first of all, permitting the grievances of the diggers to go unaddressed; secondly, in exasperating them by their connivance at the misdeeds of their subordinate officers, until the diggers were driven to the verge of revolt; and then, thirdly, in precipitating the tragic catastrophe … by their unnecessary display of military force, and that odious digger hunt.[58]

Much more was on trial at Eureka than the life and liberty of the thirteen accused: ‘It was a cause bound up with the rejection of maladministration, tyranny and corruption … and with aspirations for a better future’.[59] The State Trials were, indeed, the Government’s ‘heavy reckoning’ for the Eureka Stockade.[60] The jury acquittals were, indeed, the indictment of ‘the Government and its authoritarian tools … at the bar of public opinion’.[61]

The legal system of 1855

Prior to the Eureka Stockade, the Ballarat Times, referring to the legal system, commented that:

[T]he balance has been wrested from the hand of Justice … she has been chased away from her court, and Injustice with sword and chains, has usurped the throne, calling in to her aid Corruption, Bribery, Personal Animosity, Private Interest and Brutality.[62]

These complaints were clearly manifested in the obnoxious mining licenses and ‘digger-hunts’, the brutal attack on the Eureka diggers, the inhumane conditions in which the thirteen accused were transported and detained, the fervour with which convictions were pursued, and the ostensible bias of the judiciary in the trials. They were further evidenced in such aspects of the State Trials as the admission of clearly perjured testimony, a’Beckett CJ’s reversal of the onus of proof and failure to uphold any presumption of innocence, the extended duration of the incarceration of the prisoners, and the intimidation of the juries by both the executive and the judiciary. The Ballarat Times editorial comment on the legal system concluded with an appeal for ‘an unbiased and equitable dispensation of justice … we want justice’.[63]

Yet, despite the imperfections of the legal and jury systems in 1855 (there were, for example, no women on any of the juries and the selection of each jury was conducted on alphabetical lines),[64] the juries in the State Trials did mete out justice:

So thoroughly were they convinced of the misgovernment and misconduct which had been apparent in the management of the goldfields, that, notwithstanding very great exertions made by the Crown lawyers, the prisoners were found not guilty.[65]

The juries refused to be intimidated by a government intent on securing convictions and were not cowed by a judiciary which demonstrated manifest bias against, and hostility towards, the accused.[66] In the words of one of the accused, ‘the jury appeared to me, to be decidedly willing to let me go … because … however rashly the diggers had acted in taking up arms … they were justified in resisting unconstitutional force by force’.[67] As the Argus editorialised, ‘[h]omicide may, indeed, be justifiable in extreme cases, and no one disputes that rebellion may sometimes be a duty rather than a crime’.[68] While the people may not have been inclined to adopt or accept wholesale rebellion, they were determined to ‘teach the government that they could not escape from the responsibilities they had incurred by their folly’.[69]

Civil disobedience and the power of the rabble

The Eureka diggers and the jurors who acquitted them were conjoined by a uniting bond: ‘a deeply entrenched hostility towards an unfeeling administration and an insensitive bureaucracy’.[70] The government had intransigently dismissed the diggers’ deputations, and not heeded the struggle of the people for ‘just conditions of labour, for control … of their own destinies and for popular responsible government’.[71]

The aims of the diggers and the jurors were not ‘anarchy, bloodshed, or plunder’,[72] nor were they, despite the extravagant hopes of Karl Marx, ‘general revolution’.[73] Both the Eureka Stockade and the State Trial acquittals were reactionary — the response of the people to an authoritarian system of law-making and law enforcement, a system in which law and justice were often divergent. In the context of this system, the Eureka diggers and the State Trial jurors formed communities of resistance. The Eureka diggers united and took up arms against their oppressors. The State Trial jurors voted with their collective consciences — and probably against the ‘law’ — in the courtroom.

In forming a community of resistance and achieving justice rather than following law, the State Trial jurors performed an act that is indispensable in civil society. It was an act of civil disobedience. This act not only ensured that the juries fulfilled their fundamental functions as a ‘bulwark against oppression’ and an ‘instrument of liberty’,[74] but that they contributed to our advance towards civilisation. Their civil disobedience sent a clear signal to the government of the social and political consequences that will be reaped by law makers who do not respect human dignity and freedoms. Most importantly, however, their act set a laudatory example for ordinary people. Sometimes ‘law and order’ is the problem and civil disobedience is the answer. When law and justice diverge it is appropriate that we recall the apposite words of Leo Tolstoy’s magistrate, Ivan Illyich who, on his deathbed, reflects that his life could have amounted to more:

‘Maybe I did not live life as I ought to have done … But how can that be, when I did everything properly?’ … and he remembered all the legality, correctitude and propriety of his life.[75]

Civil disobedience may be a state full of danger, as all history shows, yet it is also full of hope.[76]

[*] Philip Lynch is the Coordinator of the Homeless Persons’ Legal Clinic run by the Public Interest Law Clearing House (Vic) Inc and a part-time lawyer with Allens Arthur© 2002 Philip Lynch

[1] Chomsky, Noam, Deterring Democracy, 1992, p.398.

[2] See generally Zinn, Howard, ‘Law and Justice’ in Zinn, Howard, The Zinn Reader: Writings on Disobedience and Democracy, Seven Stories Press, 1997, pp.367-402.

[3] Manning Clark quoted in ‘Eureka Means Different Things to Different People’, (1988) 154 Recorder 8, 8.

[4] Justice Michael Kirby quoted in ‘Eureka Means Different Things to Different People’, above, ref 3, 8.

[5] Fricke, Graham L., ‘The Eureka Trials’ (1997) 71 Australian Law Journal 59, 61.

[6] Mark Twain quoted in ‘Eureka Means Different Things to Different People’, above, ref 3, 8.

[7] ‘Eureka Stockade: Its Place In Our History’ (1984) 131 Recorder 14, 14.

[8] Lalor, Peter, ‘Statement to the Colonists of Victoria’, Argus (Melbourne), 10 April 1855.

[9] Fricke, above, ref 5, 61; Kercher, Bruce, An Unruly Child: A History of Law in Australia, 1995, p.131.

[10] Lalor, above, ref 8.

[11] Fricke, above, ref 5, 61. There is an instructive contemporary parallel with the correlation between police promotions and infringement notices issued by officers.

[12] Lalor, above, ref 8.

[13] Raffaello, Carboni, The Eureka Stockade, first published 1855, 2nd edition 1947, p.36.

[14] Ross, R. S., Eureka: Freedom’s Fight of ’54, 1914, p.197.

[15] Lalor, above, ref 8; Fricke, above, ref 5, 61; Kercher, above, ref 9, p.131. See also Mark Twain quoted in ‘Eureka Means Different Things to Different People’, above, ref 3, 8.

[16] ‘Hotham Declares Martial Law at Ballarat’, Argus (Melbourne), 5 December 1854; ‘130 Diggers Stand Trial’, Argus (Melbourne), 6 December 1854; Smith, Russell, ‘The Eureka State Treason Trials: Thirteen Men, Goode and True’ [1980] Summons 16, 18.

[17] Walshe, R.O., The Eureka Stockade 1854-1954, 1954, p.25.

[18] Fricke, above, ref 5, 61; Smith, above, ref 16, 18.

[19] Phillips, Justice John H., ‘The Eureka Advocates’ (Pt 1) (1990) 64 Australian Law Journal 211, 211. See also Molony, John, Eureka, 1984, p.189.

[20] Fricke, above, ref 5, 61.

[21] Raffaello, above, ref 13, p.113.

[22] Smith, above, ref 16, 18.

[23] Frost’s Case [1839] EngR 1190; (1839) 173 ER 771 (Tindal CJ).

[24] Phillips, above, ref 19, 211.

[25] Archibald Michie (lead counsel for Read, Campbell, Molloy, Sorenson and Phelan) quoted in ‘Verdicts are Returned’, The Argus (Melbourne), 28 March 1855.

[26] State Trials, Victoria, 1855, R v Hayes, 55.

[27] Fricke, above, ref 5, 62; Sharwood, Robin L., ‘The Local Courts on Victoria’s Gold Fields, 1855 to 1857’ [1986] MelbULawRw 5; (1986) 15 Melbourne University Law Review 508, 509-10.

[28] Fricke, above, ref 5, 62.

[29] Forde, John, The Story of the Bar of Victoria, 1910, p.139.

[30] Fricke, above, ref 5, 62.

[31] Phillips, Justice John H., ‘As Witty as Sheridan’ (1992) 16 Criminal Law Journal 55, 55.

[32] Phillips, above, ref 31, 55-6.

[33] Smith, above, ref 16, 20.

[34] Fricke, above, ref 5, 65-6.

[35] Ricke, above, ref 5, 66.

[36] ‘Trial Verdict Returned’, Age (Melbourne), 24 February 1855.

[37] Editorial, Age (Melbourne), 24 February 1855.

[38] ‘Verdict Announced’, Argus (Melbourne), 24 February 1855; Fricke, above, ref 5, 66; Smith, above, ref 16, 20; ‘They Could Have Been Executed’ (1988) 154 Recorder 17, 17.

[39] Editorial, Argus (Melbourne), 27 February 1855.

[40] Manning, John, ‘Original Correspondence’, Age (Melbourne), 27 February 1855.

[41] Fricke, above, ref 5, 67; Smith, above, ref 16, 21.

[42] Editorial, Age (Melbourne), 24 February 1855.

[43] Editorial, Argus (Melbourne), 28 February 1855.

[44] Fricke, above, ref 5, 67.

[45] Editorial, Age (Melbourne), 20 March 1855.

[46] Smith, above, ref 16, 24-5.

[47] Fricke, above, ref 5, 68.

[48] Smith, above, ref 16, 25; Serle, Geoffrey, The Golden Age, 1963, p.175.

[49] Editorial, Age (Melbourne), 22 March 1855.

[50] Editorial, Melbourne Morning Herald (Melbourne), 28 March 1855.

[51] Molony, above, ref 19, p.190.

[52] Editorial, Age (Melbourne), 20 March 1855.

[53] Smith, above, ref 16, 27.

[54] Ross, above, ref 14, p.149; Smith, above, ref 16, 25.

[55] Fricke, above, ref 5, 69. The system of jury trial was adopted in Victoria in 1851: Fricke, above, ref 5, 60.

[56] Manning, above, ref 40.

[57] Ross, above, ref 14, p.8.

[58] Ross, above, ref 14, p.131.

[59] Molony, above, ref 19, p.190.

[60] Ross, above, ref 14, p.131.

[61] Ross, above, ref 14, p.135.

[62] Editorial, Ballarat Times (Ballarat), 28 October 1854.

[63] Editorial, Ballarat Times (Ballarat), 28 October 1854.

[64] Phillips, above, ref 19, 211; Phillips, Justice John H., ‘The Eureka Advocates’ (Pt 2) (1990) 64 Australian Law Journal 290, 290; Phillips, Justice John H., ‘The Eureka Advocates’ (Pt 3) (1990) 64 Australian Law Journal 311, 311.

[65] Ross, above, ref 14, p.143.

[66] Fricke, above, ref 5, 59.

[67] Raffaello, above, ref 13, p.167.

[68] ‘The Approaching Trials — Capital Punishment’, The Argus (Melbourne), 12 January 1855.

[69] Raffaello, above, ref 13, p.164.

[70] John Mildren quoted in ‘Eureka Means Different Things to Different People’, above, ref 3, 9.

[71] Serle, above, ref 48, p.171.

[72] Lalor, above, ref 8.

[73] Karl Marx quoted in ‘Eureka Means Different Things to Different People’, above, ref 3, 9.

[74] Cheng v The Queen [2000] HCA 53 (5 October 2000), para 80 (Gaudron J), para 245 (Kirby J); Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171, 197 (Brennan J); Li Chia Hsing v Rankin [1978] HCA 56; (1978) 141 CLR 182, 198 (Murphy J); Apprendi v New Jersey 68 USLW 4576, 4579 (2000) (Stevens, Scalia, Souter, Thomas and Ginsburg JJ).

[75] Quoted in Zinn, above, ref 2, p.402.

[76] Bertrand Russell quoted in Chomsky, above, ref 1, p.398.

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