1855 Victorian high treason trials

The 1855 Victorian high treason trials took place between 22 February – 27 March in the aftermath of the Battle of the Eureka Stockade. The Goldfields Commission recommended a general amnesty for all on the runs from the fallen Eureka Stockade. Instead, thirteen of the rebels detained were eventually indicted for high treason. The juries all returned a verdict of not guilty by a jury, and the indictment against Thomas Dignum was withdrawn. On 23 January, the trial of Ballarat Times editor Henry Seekamp resulted in a finding of guilt for seditious libel, and a month later, he was sentenced to a term of imprisonment of six months. The trials have been described as farcical, and the colonial secretary would rebuke Governor Sir Charles Hotham over prosecuting the Eureka rebels for the lofty offence of high treason.

Goldfields Commission recommends general amnesty
On 14 December 1854, the Goldfields Commission sat for the first time. The first Ballarat session is held four days later at Bath's Hotel. At a meeting with Hotham on 8 January 1855, the gold fields commissioners made an interim finding that the mining tax be scrapped, and two days later made a submission advising a general amnesty be granted in relation to all those persons criminally liable for their association with the Eureka Rebellion.

Trial of Henry Seekamp
The first trial relating to the rebellion was a charge of sedition against Henry Seekamp of the Ballarat Times. Seekamp was arrested in his newspaper office on 4 December 1854 for a series of articles that appeared in the Ballarat Times. It has been speculated some of the offending articles were written by either John Manning, George Lang, the embezzling bank manager whose father was the prominent Republican and Presbyterian Minister of Sydney, the Reverend John Dunmore Lang, or Clara Seekamp, Henry's de facto wife. Seekamp was tried and convicted of seditious libel by a Melbourne jury on 23 January 1855 and, after a series of appeals, sentenced to six months imprisonment on 23 March. He was released from prison on 28 June 1855, precisely three months early. During Seekamp's absence, Clara would serve as editor of the Ballarat Times.

Eureka high treason trials
Of the approximately 120 individuals detained after the battle, thirteen were put on trial for high treason beginning on 22 February 1855, where matters of fact were determined by a lay jury chosen from among members of the general public who were largely sympathetic to the rebel cause.

Written summonses issued
The prisoners had already been served with written summonses and, after being called by name and seated, were asked in the following manner to answer the following indictments:

"Prisoners at the bar, the charge against you in the first count of the information to which you are now called to plead is, that you did, on the 3rd December, 1854 (being at the time armed in a warlike manner), traitorously assemble together against our Lady the Queen; and that you did, whilst so armed and assembled together, levy and make war against our said Lady the Queen, within that part of her dominions called Victoria, and attempt by force of arms to destroy the Government constituted there and by law established, and to depose our Lady the Queen from the kingly name and her Imperial Crown.

In the second count you are charged with having made war, as in the first count mentioned, and with attempting at the same time to compel by force our said Lady the Queen to change her measures and counsels.

In the third count the charge against you is, that having devised and intended to deprive our said Lady the Queen of the kingly name of the Imperial Crown in Victoria, you did express and evince such treasonable intention by the four following overt acts:

Ist That you raised upon a pole, and collected round a certain standard, and did solemnly swear to defend each other, with the intention of levying war against our said Lady the Queen.

2nd being armed with divers offensive weapons, you collected together and formed troops and bands under distinct leaders, and were drilled and trained in military exercise, to prepare for fighting against the soldiers and other loyal subjects of the Queen.

3rd That you collected and provided arms and ammunition, and erected divers fences and stockades, in order to levy war against our said Lady the Queen.

4th That being armed and arrayed in a warlike manner, you fired upon. fought with, wounded, and killed divers of the said soldiers and other subjects then fighting in behalf of our said Lady the Queen, contrary to duty and allegiance.

In the fourth count the charge against you is, that having devised and. levy war against the Queen, in order to compel her by force and constraint her measures and counsels, you did express and evince such treasonable and divers acts, which overt acts are four in number, and the same as those described in the third count."

The prosecution was unable to proceed with any lesser charges, such as murder due to the difficulties associated with the criminal burden of proof. Commissioner of Crown Lands, Gilbert Amos, testified that "it was perfectly impossible for us to be seen until we came within 500 yards." A sergeant in the 40th regiment, James Harris, said that it was only possible to positively identify certain rebels at a distance of 50 yards at the time of the fighting. Private John Donnelly swore under oath that: "It was scarcely light; it was light enough to see what we were doing" and that the sun was shining by the time the stockade was overrun, stating that: "Ten minutes at the break of day makes a great deal of difference."

Preliminary hearings
The defendants were originally to be tried in the same order as they were listed in the indictments as follows: Timothy Hayes, Charles Raphelo Carboni, John Manning, John Joseph, Jan Vennick, James Beattie, Henry Reid, Michael Tuohy, James Macfie Campbell, William Molloy, Jacob Sorrenson, Thomas Dignum and John Phelan. However, due to the pre-trial legal chicanery and the unavailability of witnesses, Joseph, an African American, was the first accused man to go on trial. The prosecution may have hoped to exploit any racial prejudices among the jurors. Two privates from the 40th regiment testified that they saw the defendant fire a double-barreled shotgun, and by implication, that he inflicted the fatal wounds to Captain Wise.

Trial of John Joseph
Butler Cole Aspinall, who appeared pro bono as junior counsel for the defendants John Joseph and Raffaello Carboni, was formerly chief of parliamentary reporting for The Argus before returning to practice and was elected to the Legislative Assembly in the wake of the Eureka trials. He would receive many other criminal briefs later in his legal career, including the matter of Henry James O’Farrell, who was indicted for an 1868 assassination attempt on the Duke of Edinburgh in Sydney. Gavan Duffy said of Aspinall that he was: "one of the half-dozen men whose undoubted genius gave the Parliament of Victoria a first place among colonial legislatures."

As John Molony points out, "No question could arise as to the legality of trying a foreigner for treason, as such a matter had been widely agreed upon as early as 1649," however regarding the mens rea requirement:

"it was another thing entirely to prove that any treasonable intent was harboured in the mind of John Joseph ... These matters were weighty and more conclusive of proof than a charge of murder, but they left the Crown with an arduous task of convincing the jury that Joseph had acted with such an elevated intent."

The jury deliberated for about half an hour before returning a verdict of "not guilty." The Argus reported that "A sudden burst of applause arose in the court," but it was instantly checked by court officers. The Chief Justice condemned this as an attempt to influence the jury, as it could be construed that a jury could be encouraged to deliver a verdict that would receive such applause; he sentenced two men (identified by the Crown Solicitor as having applauded) to a week in prison for contempt. Over 10,000 people had come to hear the jury's verdict. According to Richard Allan's account published in the Ballarat Star, upon emerging from the courthouse, Joseph "was put in a chair and carried around the streets of the City in triumph with the greatest demonstrations of joy".

Succession of acquitals
Manning's case was the next to be heard. The remaining trials were then presided over by Victorian Chief Justice Redmond Barry, with all the other accused men being acquitted in quick succession except Dignum, whose indictment was withdrawn nolle prosequi. The remaining five were all tried together on 27 March. The lead defence counsel Archibald Michie observed that the proceedings had become "weary, stale, flat, dull and unprofitable." The trials have, on several occasions, been described as a farce.

Colonial Secretary rebukes Hotham
Following the acquittal of the thirteen prisoners, Lalor and all the other wanted Eureka Stockade rebels were granted a general amnesty on 9 May 1855. The Colonial Secretary Lord John Russell rebuked Hotham over the decision to prosecute them for treason, saying in a despatch:

"respecting the trial of the prisoners taken at Ballarat, I wish to say that, although I do not doubt you have acted to the best of your judgment, and under advice, yet I question the expediency of bringing these rioters to trial under a charge of High Treason, being one so difficult of proof, and so open to objections of the kind which appear to have prevailed with the jury."