Murder at Myall Creek Page 2

  Plunkett felt deep in his bones that he, and only he, stood between the unjustified release of these men and the truth that they had committed a most egregious crime for which they should be punished. He felt overwhelmingly that he had a duty to follow his conscience, no matter what the obstacles, no matter what the risks to his reputation or standing, no matter how much hatred and vitriol would be directed at him by society at large. Even his junior counsel, Roger Therry, would question the appropriateness and propriety of the decision that he had just taken, and be dismayed that they had not discussed it beforehand, which was the usual practice between co-counsel. The Governor would insist on some considered, written legal opinion, with past decisions of the superior courts in England to justify a second trial. Plunkett’s wife, Maria, would no doubt complain endlessly that even more friends and acquaintances would refuse to associate with them and that once again he had made a decision that would impact her without taking her feelings into account. Despite all this, his conscience dominated his actions, and he felt he had no choice.

  Plunkett’s concerns for the fate of the Aboriginal victims of atrocities by whites and for the course of justice to play its role were deeply felt. Before coming to New South Wales, as an Irish Catholic in a profession dominated by his native country’s English overlords, he had experienced prejudice and discrimination since beginning his working life. It was only a few years before his admission as a barrister in Dublin in 1826 that the requirement was removed for those seeking admission to the Bar to take an oath renouncing a belief in ‘transubstantiation’ – the miraculous transformation of the Eucharistic bread and wine during Holy Communion to become the body and blood of Christ. The Church of England believed in the symbolic role of the Eucharist, whereas the Catholics believed in a physical transformation. The oath had also included a declaration that the adoration of the Virgin Mary or any other saints was ‘superstitious and idolatrous’. As transubstantiation and the veneration of Mary were two of the central tenets of Catholic faith, and points of departure for the Church of England, this was an effective mechanism for keeping Catholics out of the legal profession, which even in Ireland was dominated by the English.

  The injustice of oppression by English overlords had been implanted in the Plunkett family’s DNA ever since the time of their illustrious ancestor, Archbishop Oliver Plunkett, who became the Roman Catholic Archbishop of Armagh and Primate of all Ireland in 1669. From 1670 to 1678, Archbishop Plunkett was active in resurrecting a severely oppressed and diminished Catholic Church in Ireland, including the building of schools and the creation of educational institutions for the clergy. In Drogheda, he established a Jesuit College for 150 students, 40 of whom were Protestant, making it the first integrated school in Ireland. It has been said of Oliver Plunkett:

  Whenever a principle in which he believed was at stake, he would defend it robustly and courageously and his pen could be quite sharp in this regard. He had a sense of humour, which also surfaces occasionally. Through the evidence of his letters, he kept meticulous records and accounts, all of which prove he was an excellent administrator, so it must be unusual then, that he could be an outstanding worker out in the field as well. A diplomat, he built bridges between the different traditions and he was soon respected in all quarters.3

  In 1678, anti-Catholic measures were re-introduced and Archbishop Plunkett was forced to go into hiding. Despite being on the run and having a price on his head, he refused to leave his flock. He was arrested in Dublin in December 1679 and prosecuted for high treason by the English on fabricated evidence. It was alleged that he had conspired to bring 20 000 French soldiers into Ireland to force out the British and had levied a tax on his clergy to raise a force of 70 000 local men for a rebellion.4 At his first trial, at Dundalk in Ireland, Plunkett faced an all-Protestant jury; however, the prosecution case collapsed, as the witnesses were themselves wanted men and afraid to turn up in court. The trial was then moved to England and Archbishop Plunkett faced a mockery of a second trial at Westminster Hall, where he was denied the basic rights of all accused: he was not represented by counsel; he was given no reasonable opportunity to call witnesses in his defence; he was deprived of the criminal histories of those who gave evidence against him. When Archbishop Plunkett raised complaints about these aspects, the trial judge, Lord Chief Justice of England Sir Francis Pemberton, said to him:

  Look you, Mr Plunkett, it is in vain for you to talk and make this discourse here now … Don’t misspend your own time; for the more you trifle in these things, the less time you will have for your defence.5

  In other remarks during the trial, Sir Francis Pemberton demonstrated ever more his prejudices:

  The foundation of Oliver Plunkett’s treason was setting up a false religion, which was the most dishonourable and derogatory to God of all religions and that a greater crime could not be committed against God than for a man to endeavour to propagate that religion.

  Archbishop Plunkett’s unjustified conviction in June 1681 was assured, and his sentence of death was inevitable. In the sixteen days between his trial and execution, he was visited by a large number of Catholics and Protestants seeking his blessing. On the day of his execution, 1 July 1681, he showed great equanimity and strength of mind. From the three-cornered gallows at Tyburn, in a prepared speech, he refuted his accusers point by point and forgave them all, including the judges and witnesses who had given evidence against him. He was executed in the manner reserved for those convicted of treason – being hanged, drawn and quartered. Within days of his death, those who had been involved in the fabrication of evidence were exposed, but it was too late for the Archbishop.

  John Plunkett had known of his famous ancestor’s fate since he was a young boy, and the tragedy of what had occurred 150 years earlier burned in his heart as though it had happened in his own lifetime. His most treasured possession was a silver chalice used by Archbishop Plunkett during the celebration of Mass, which, after the martyrdom, had been passed down for generations from father to son. John would regularly bring this prized relic out of the cupboard at his home and perform a ritual of holding it in both his hands while recalling the terrible travesty of justice that had befallen his ancestor.

  John Plunkett was deeply mindful of the circumstances of his famous ancestor’s two trials: the all-Protestant juries; the fabricated evidence; the inability of Archbishop Plunkett to call witnesses in his defence; the tactic of a second trial to overcome the failure of the first. No man was more aware than John Plunkett of how the law could be misused as an instrument of oppression against a downtrodden section of society. No man was more sensitive to the evils of sectarianism and religious bigotry. No man was more determined that the law should be used to punish the transgressions of oppressors. Despite the fact that he was a deeply religious Catholic, he firmly believed that the divisions and differences between men were illusory and that all were equal in the eyes of God, no matter what their race, background or spiritual beliefs might be.

  In 1826, at the age of twenty-four, John Plunkett became a member of the Irish and English Bars. Over the next six years, he distinguished himself in legal practice, primarily on the court circuit in the Irish Province of Connaught. However, he was painfully aware that Protestant barristers frequently prevailed in progression and promotion over their Catholic counterparts, and he realised that as an adherent of the latter faith he would always be treated as a second-class lawyer. This was despite the fact that he had already shown himself to be a practitioner of superior ability to many of his peers. Just as he became aware of the full extent of the restrictions that derived from his origins and faith, he was informed that a position was available for a member of the English or Irish Bar to assume the office of Solicitor General in the far-flung convict colony of New South Wales. Without consulting his family, Plunkett accepted an offer to take up the post, which had been made by those in the Colonial Office in London, who were only too pleased to see an able and industrious lawyer take up a seni
or government position in what was then a most distant, harsh and unpopular destination. Plunkett was, in fact, the first Catholic to be appointed to a major position of authority in the colony.

  The society that John Plunkett found on his arrival in Sydney in June 1832 was solidly based on the availability of free labour by convicts working their way to freedom. Without this ready supply of workers to build the basic foundations, the colony would have floundered. Many male convicts were forced to engage in harsh manual labour on public building projects; however, a large number were assigned to private sector landowners as a source of free labour to work on farms, on cattle and sheep stations, or as domestic servants throughout the colony. In reality, this was a form of slavery, because the convict workers were not paid for their efforts, apart from being provided with barely sufficient food to maintain their ability to work.6 Most female convicts were either sent to one of the thirteen ‘female factories’7 in New South Wales and Van Diemen’s Land,8 or assigned to free-settler masters as domestic servants. The rate of sexual abuse must have been horrendously high.

  The treatment of assigned convicts by their masters varied from case to case. Many masters were brutal and cruel, while others treated their workers with humanity and kindness. By 1832, there was already a sizeable number of ex-convicts, many of whom, on completing their sentences or being granted early release by the issue of a ticket-of-leave, had taken up grants of Crown land and commenced to farm. Others had opened small businesses, and quite a few of them had flourished and become prosperous.

  While there were still some restrictions on the legal entitlements of ex-convicts, there were none on their ability to own land, engage in farming and open businesses. Their numbers soon swelled to the extent that they became a social class with increasing political influence. Almost without exception, once these freed convicts found a paying job or acquired property or set up a business, they had an investment in the social cohesion and prosperity of their society, and their crime rate was negligible. This enlightened approach proved to be one of the enduring strengths of the developing colony: it encouraged convicts to peacefully serve out their sentences, and it gave emancipated convicts a sense of identification with their society. This is to be contrasted with the situation in the American colonies, where freed slaves and their offspring were denied social acceptance and did not possess any financial or political investment in their society, with the result that their crime rate remained astronomically high and their poverty overwhelming.9 Those few settlers who had arrived in New South Wales as free men viewed the emancipated ex-convicts as second-class citizens, tainted by their earlier status as prisoners, and there was a deep social and political divide between these groups. Those in the military, or retired from its ranks, considered themselves as a class of their own, but identified with the interests of the free settlers. While some of them returned to England after their period of service had ended, others remained in the colony after discharge and engaged in farming or business.

  Sydney had the atmosphere of a military garrison at the outer reaches of the known world – a wild locality surrounded by dense, threatening bush, with a convict and ex-convict majority and the ever-present threat of violence from the Aborigines. Punishment of convicts was frequent and severe, and the death penalty often invoked. Bushrangers – escaped convicts who lived in the bush on the periphery of white settlement and often survived through robbery – were prevalent. Most whites believed that there was a constant threat from the menace of the black inhabitants, who, they believed, could move about the bush without being seen and appear out of nowhere at any time. In this setting, violence was only just below the surface. The colony was perfused with tension and a sense of everyone constantly being on guard, aware that the threat of starvation had only just been averted during the early years of settlement. It was a society that depended for its survival and smooth running on the division of men into categories that defined their limitations, rights and obligations. It was a settlement that could only prosper because of the ruthless oppression and displacement of the Indigenous population and the rigorous exploitation of the labour of convicts, about one-quarter of whom were of Irish origin. It was a society in which the military, the magistrates and the mounted police were viewed by free settlers as fragile bastions against a constant threat of disintegration of this outpost of British civilisation so remote from the mother country.

  * * *

  It was into this society that in 1832 John Hubert Plunkett, a man with an abiding hatred of bigotry and injustice and a belief in the equality of all men under the law, arrived to take up the position of Solicitor General of New South Wales – a posting that made him the second most senior law officer of the colony and answerable only to the Attorney General, John Kinchela, and the Governor, Sir Richard Bourke.10

  In order to fully understand the actions of John Plunkett during the most important case of his career – the 1838 trials of the men charged with the murders of twenty-eight Aboriginal men, women and children at Myall Creek in the north of the colony – it is necessary to know more about his early life in his native Ireland, about what he achieved in the colony in the six years prior to the trials, and the unique circumstances prevailing at that time in the penal settlement of New South Wales.

  2

  EARLY YEARS

  John Hubert Plunkett was born on 4 June 1802 at Mount Plunkett in the county of Roscommon, which is part of the Province of Connaught in central-western Ireland, an area rich in Gaelic history with some of the most beautiful countryside in the land. In Plunkett’s time, the Irish language was frequently spoken. John Plunkett had an older twin brother, Christopher, and a younger sister, Kate Amelia. His father, George Plunkett, was a gentleman farmer who owned 400 acres of land on which he had built an impressive, large manor house for his family,1 making him one of the more prosperous Catholic landholders in Ireland, although far less so that the prominent Protestant English families. The Plunketts were Catholic aristocracy2 who had managed to keep a small part of their landholdings during centuries of British persecution by using the services of supportive Protestant friends to hold their land on their behalf. The scion of the Plunkett family in John Hubert’s lifetime was Arthur Plunkett, the eighth Earl of Fingall. This branch of the family spoke English, had English ways, identified with their Catholic counterparts in England and were intensely loyal to the British Crown. The Plunketts were not revolutionaries or radicals, but they were very aware of the deep injustices and legal restrictions that still persisted to hamper Catholics, and they pressed strongly for reform of the many anti-Catholic laws. The family motto was ‘Festina Lente’ – hasten slowly. It was fortuitous for John Plunkett that he was born into a period when the restrictions on Catholics were in the process of being slowly dismantled.

  From 1819, John Plunkett attended Trinity College in Dublin at a time when it was a bastion of Protestant hegemony in Ireland. He was the only one of his siblings to go to university, no doubt because he was the one who showed the most promise. At that time, Catholics had only been allowed entrance to university for twenty-six years, and only a few attended the prestigious Trinity College. He enrolled for a Bachelor of Arts degree and from 1821 he was concurrently a student of law at King’s Inn, Dublin. By 1823, John had completed his degree at Trinity College and served his terms at King’s Inn. The next step was to serve a period as a student of law at one of the Inns of Court in London, and so, like many Irishmen wishing to practise law, he joined Gray’s Inn in London. It was here that he made two connections that were to influence the direction of his later life, when he befriended two other law students. The first was Maurice O’Connell, the eldest son of Daniel O’Connell, who became the most significant proponent of Catholic emancipation of his era. During the period that John Plunkett was in London between 1823 and 1826, Daniel O’Connell was also there for much of the time, and Plunkett came to know him well. The second important connection at Trinity was with fellow student Roger Therry, who pr
eceded Plunkett as a lawyer in New South Wales, and whose career for much of the time ran parallel to, though slightly behind, Plunkett’s.

  On 20 January 1826, at the age of twenty-three, John Plunkett was admitted as an English and Irish barrister. The ceremony, before Lord Manners – the Chief Judge of the King’s Bench in Dublin – left an indelible mark on the budding young lawyer because of the judge’s bad manners. The admission of Catholics was still a rare event, and there was not a single Catholic on the Bench or among the senior counsel in Dublin. Although John Plunkett was not required to take an oath abhorrent to his faith, he was obliged during the ceremonial hearing to make a formal, oral request to the Court that he ‘take the form of oath for the relief of Catholics’, and he could not fail to notice the Chief Judge’s change of demeanour when this application was made. When he signed the roll as a new barrister, he used his full name – John Hubert Plunkett – to distinguish himself from another, unrelated John Plunkett already at the Irish Bar, and from then on he was always known by his full name.3

  At the time of Plunkett’s admission as a barrister, there were still numerous restrictions on Catholics. They were ineligible to hold office in the most senior government posts. They could not be judges in the superior courts or become senior counsel.4 They could not be Attorney General or Solicitor General or participate in Parliament in Westminster.5 Although seven million of the eight million people in Ireland were Catholic, less than five per cent of those Crown offices that Catholics were eligible to hold were in fact held by Catholics.6