Murder at Myall Creek Read online

  The main impediment to Catholics taking high office was the requirement to take the Oath of Supremacy, which included a declaration that the Monarch was ‘the only supreme governor of this realm … in all spiritual or ecclesiastical things or causes, as [well as] temporal, and that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority ecclesiastical or spiritual within this realm’. Obviously, a Catholic could not in conscience acknowledge the spiritual and ecclesiastical supremacy of the head of the Church of England.

  In 1823, two prominent Irish lawyers, Daniel O’Connell and Richard Lalor Sheil, set up an organisation known as the Catholic Association to press peacefully for Irish emancipation through the medium of public opinion, the electoral process and changes to existing laws. Like Mahatma Gandhi more than a century later, O’Connell and Sheil rejected any violent means and called for mass participation in the call for the civil rights of Catholics, and indeed for adherents of all other religions. They were passionate voices against slavery in America, and they even advocated for better conditions and equality of opportunity for all in the far-flung colony of New South Wales.

  O’Connell and Sheil believed that civil rights were universal, irrespective of colour, creed, class or gender, and that violence in the pursuit of political ends was counterproductive. They were of the view that the principles on which they called for Catholic emancipation had universal application and they condemned all religious intolerance and discrimination. At a meeting of the Catholic Association in Connaught in 1826, a resolution was passed that stated:

  The State should have no established religion. It should preserve neutrality between them all.

  and:

  To attempt seizing on public education with a view to converting it into a monopoly for any particular class or sect, is to disturb in a direct manner the order of society.

  These principles were to play a major role in John Hubert Plunkett’s later life.

  In October 1823, as a friend of O’Connell’s son Maurice, twenty-one-year-old John Plunkett was one of the first Irishmen to sign up for membership of the Catholic Association. Within two years the Association had amassed a great number of supporters throughout Ireland and collected substantial funds. The leadership of the Association was well organised and disciplined, avoiding any violence or disturbances at public meetings. Its accounts were meticulously kept and publicly available, avoiding any accusation that the funds were being used for unlawful purposes. The Association’s aims were supported by English Catholics and even by progressive Protestants.

  In 1825 Daniel O’Connell and a delegation from the Catholic Association went to London and convinced the government to allow Catholics with a certain landholding to hold high office, including membership of Parliament, and to abolish the requirement to take the Oath of Supremacy. The Catholic Relief Bill was passed by the House of Commons, but rejected in the House of Lords. That bastion of inherited Protestant ascendancy had prevailed against the wishes of the elected representatives of the people.

  As an O’Connell family intimate, John Plunkett was in the midst of this exciting new movement. He was indeed fortunate at the beginning of his legal career to be present at such a momentous time in the history of Catholic emancipation. He was a young man in search of a mission, and intensely aware of the discrimination that his forebears had suffered under English law. At the same time, he was mindful of the power of the law to effect positive social and political change. Even as a young man, he believed that the most important aspect of any civilised society was the equality of all under the law. He was determined that once he qualified as a lawyer he would devote his professional energies to achieving justice and equality for the underdogs of Irish society, including his own suppressed Catholic majority. He had no idea that his main contribution would be on the opposite side of the world.

  Upon his admission as a barrister in 1826, John Plunkett became one of the principal liaison men between the Catholic Association’s headquarters in Dublin and the Province of Connaught, where he practised law. He lived in Dublin, but his working life as a barrister and as a representative of the Catholic Association was in Connaught. In both these capacities, Plunkett soon won admiration and respect for his ability, diligence and professionalism. His legal work included both civil and criminal cases, although the latter were almost invariably for the defence. The Catholic Association provided counsel to many of its members, and Plunkett would often have to take such a case without a fee. On many occasions he represented defendants accused of crimes for which they were at risk of forfeiting their lives or being transported to the colonies. In such cases, he was only too aware of his enormous responsibility by virtue of the fact that his advocacy might well determine whether or not a man was to be executed or forced to labour for years in one of the distant British colonies.

  In 1828, with the repeal of the Test and Corporation Acts, dissenting Protestants (non-Anglicans) were permitted to stand for election to Parliament and to hold other offices of government. Daniel O’Connell decided that the time had finally come to mount a serious challenge to the exclusion of Catholics. An opportunity arose with a by-election in the vacant seat of Clare – the neighbouring county to Connaught – and O’Connell decided to stand as a candidate. As a Catholic, he could not take up the seat because he could not in conscience take the Oath of Supremacy, but there was nothing to prevent him standing for election, and, if he won, it would demonstrate the absurdity and injustice of the exclusion of Catholics and put immense pressure on the government to change the law.

  Millions of Irish Catholics supported O’Connell’s candidacy and in July 1828 he convincingly won the by-election. London feared that if he attempted to take his seat in Westminster and was denied it, a terrible tide of resentment would inevitably follow, threatening civil disturbance and possibly another Irish uprising, which was the last thing anyone wanted. In addition, there were many Englishmen who felt that the time had come to end the restrictions on Catholics and to allow proper representation of the majority of the Irish in Westminster. O’Connell portrayed himself as a bastion of legality and respectability holding back the tide of resentment and the threat of an uprising.

  The English recognised that an accommodation had to be reached. O’Connell was quietly requested to delay his arrival in Westminster for several months. On 13 April 1829, the Catholic Relief Act was finally passed by both Houses in Westminster, allowing Catholics to become members of Parliament and to hold most other high offices, and replacing the Oath of Supremacy with one acceptable to those who were Christian, but not Anglican.7 However, the Act was not retrospective, so O’Connell had to seek re-election, and in July that year was elected unopposed. It was said that King George IV used to joke that ‘Wellington is the King of England, O’Connell is the King of Ireland, and I am only the dean of Windsor’, reflecting admiration for the role that O’Connell had played in Anglo–Irish relations. John Plunkett was on the sidelines watching these important events.

  The death of George IV in 1830 precipitated a general election. O’Connell and his supporters were keen to win as many of the 100 Irish seats in Westminster as possible. The district of Roscommon had two seats in Parliament, and the person chosen to stand for one of them was Owen O’Conor – known as the O’Conor Don – who was the scion of the O’Conor family, which had produced the ancient kings and chieftains of Connaught. The O’Conor Don chose young John Plunkett to be his election campaign manager. It was a natural choice, considering John’s passion for Catholic emancipation, his knowledge of the people of Connaught, his closeness to Daniel O’Connell, and his personal attributes as a talented barrister and tireless worker for the Catholic Association. At the 1830 elections, the Tories were defeated by the Whigs, who were committed to many progressive causes, including the abolition of slavery, the emancipation of Catholics and serious electoral reform. A significant reason for the Whigs’ win was the considerable
success of Daniel O’Connell’s candidates, who played a significant role in the formation of the new government. The O’Conor Don was elected to one of the Roscommon seats. John Plunkett’s contribution to this success was widely acknowledged and Daniel O’Connell caused a dinner to be held in his honour.

  The election of the new Whig government in 1830 marked a significant shift of power away from the landed aristocracy to the urban middle classes. Within three years, Acts were passed to modernise the distorted electoral laws in England, Scotland and Ireland, and to abolish slavery throughout the Empire.

  John Plunkett was lucky to be associated with some of the principal political players at a time of significant change in British politics and considerable advancements in the emancipation of Catholics. Although he was on the periphery of the movement, he was present at the cusp of an era of sustained reform, and was ready to take a position of leadership if and when it became available. His association with Daniel O’Connell clearly had a profound influence on him, and his views on the rights of all men, regardless of faith or origin, clearly reflected those of his mentor. His time as a ‘shop steward’ for the Catholic Association developed his administrative skills and politicised him as an advocate for human rights. His law practice gave him the opportunity to see that many of his clients facing serious consequences for petty crimes were decent people who had reacted unwisely in response to political oppression or financial hardship, or both. His work as a defence barrister on the Connaught circuit taught him much about the British legal system and how it could be used as an instrument of either justice or injustice.

  * * *

  On 18 January 1830, the Catholic Relief Act became law in New South Wales and the stage was set for a Catholic to assume high office in the colony. In many ways, the colony was more ready for an Irish Catholic to assume a position of influence and authority than was Great Britain. There was such a dearth of talent in so many areas of government in New South Wales that religious affiliation was more easily overlooked. In any event, about a quarter of the population were Irish Catholics, most of whom had come as convicts. Over time, however, many of them had served their sentences or been given early release on a ticket-of-leave, and had taken up life as free men and women.

  * * *

  By 1831, John Hubert Plunkett was looking for a change in his life. Despite emancipation and the success of his legal career, he recognised that serious hurdles still stood in the way of his professional advancement in Ireland, where very few opportunities for high office would present themselves. He was ambitious and desperate to make a difference. The colonies offered many more opportunities to an energetic and resourceful young man. In addition, he had suffered a broken engagement to a woman he deeply loved and was keen to make a change to overcome the trauma.8 No doubt with Plunkett’s agreement, O’Connell and the Earl of Fingall successfully lobbied the Colonial Office in London to appoint Plunkett as Solicitor General of New South Wales. The appeal of the colony was enhanced by the knowledge that Plunkett’s old Trinity friend Roger Therry had preceded him there and was already in legal practice. The fact that Plunkett would be the first Catholic to hold high office in the colony must also have attracted him to making the momentous decision to move to the other side of the earth. Also of importance was the fact that the Governor, Major-General Richard Bourke, had a reputation as a reformer and a man of compassion and tolerance.

  Plunkett received his letter of appointment as Solicitor General on 10 October 1831. Over the next four months, before setting sail for Australia, no doubt still on the rebound from his broken engagement, Plunkett married Maria Charlotte McDonough, the attractive and vivacious daughter of his first cousin, who was a Plunkett on her mother’s side. He was thirty and Maria was only nineteen, having just returned from a period in a convent in Paris run by English nuns. Apart from their family connection, John and Maria had two fundamental interests in common: they were both committed to their religion and they both loved music. Maria was a first-rate pianist and John was an accomplished violinist with a passion for Irish folk music.9

  While awaiting their departure at the port of Cobh, near Cork, Plunkett came across thirty-eight-year-old Catholic priest Father John McEncroe, who was ministering to the convicts as they awaited their passage to the colonies. Plunkett and McEncroe had known each other in Dublin. Coincidentally, McEncroe was keen to go to New South Wales, and had already sought permission from the Colonial Secretary but received no reply. Both had heard that there was only one Catholic priest in the colony, Father John Therry, who was unpopular with his flock. McEncroe asked Plunkett if he could accompany him on the voyage, and, in an act of bravado, Plunkett readily agreed. Plunkett’s clerk, who was to have gone on the voyage, offered to surrender his berth, and McEncroe took his place. Shortly before they departed, Plunkett sought permission from the Colonial Secretary for McEncroe to proceed to New South Wales as a member of the clergy, which was given but only after their ship, the Southworth, had departed on 6 February 1832. Also on this journey with John and Maria Plunkett was John’s younger sister, Kate Amelia, and a female domestic servant. Fellow passengers included 134 female convicts, aged between thirteen and seventy, transported to partially redress the gender imbalance in the colony. The voyage to Sydney took 129 days, during which time only one of the prisoners died – an unusually low number considering the length of time that many of them had awaited the journey in leaking hulks or dank prisons and the atrocious conditions under which the convicts were kept at sea. On the trip, Plunkett cemented a friendship with McEncroe that was to last for the rest of their lives.

  3

  JURIES, OATHS AND WITNESSES

  When John Plunkett arrived in Sydney on 14 June 1832, he was a thirty-year-old man with enormous drive and ambition that would have been quite unrealistic for a man of his age and faith in his native Ireland. The Australian colonies offered a bright, energetic, young, Irish barrister many more opportunities than he could ever have expected at home. In order to understand the steps taken by John Plunkett during the 1838 trial of the men responsible for the Myall Creek murders, it is important to set out his efforts as Solicitor General and Attorney General of New South Wales to achieve reforms of the most brutal and retrograde aspects of colonial society in the six years prior to the murders. Considering its physical isolation and its penal function, Sydney was a vibrant town. Many landowners had already become quite prosperous from cattle and sheep farming. There were a number of outspoken newspapers, many places of entertainment and flourishing groups of artists, musicians, sportsmen, tradesmen and professional men.

  At the time of his arrival, Plunkett was fortunate that the Governor, Major-General Richard Bourke, was a man who, like himself, believed in the equality of all men and had a desire to see reformist changes in the colony. Plunkett’s early years in the colony gave him unprecedented opportunities to join with his Governor in introducing progressive reforms, some of which had not yet been achieved in England and Ireland. Some of the measures were readily accepted in the colony, while others were initially rejected as too far-reaching. A few were not able to be realised in his lifetime.

  Major-General Richard Bourke was the first Irish-born Governor of the colony. His arrival had been much feted, because his predecessor, General Ralph Darling, had been most unpopular. Bourke came from a well-established, Anglo–Irish family based in Limerick and Tipperary in southern Ireland. He had been educated in England and attended Westminster School and been greatly influenced by the English statesman and author Edmund Burke, who was a distant relative. Richard Bourke held strong liberal and humanitarian beliefs.1 He was sympathetic to the reformist ideals advocated by the Whigs, and, although he was a devout Anglican, he was liberal in his attitude to people of other religions, particularly the Roman Catholics. He had seen at first hand the suffering of the Irish poor, and had empathy for them. He had been Chairman of the Irish Relief Association and supported the idea of capital works funded by the state to provide employ
ment for the poor. In Ireland in 1829, Bourke became involved with Thomas Spring-Rice, the Member of Parliament for Limerick and a friend of the Bourke family, in advocating for public education that would be available for the children of poor Catholic and Protestant families. The non-denominational schools were to be built with government subsidies. Representatives of the Anglican, Catholic and Presbyterian Churches agreed to become members of a National Board of Education.2 The non-Christian religions were expected to provide for their own children’s educational needs. These early steps towards public education in Ireland were to have a profound influence in New South Wales in years to come.

  Upon John Plunkett taking up his position as Solicitor General of New South Wales, the colonial government’s legal services were in considerable disarray. The fifty-eight-year-old Attorney General, John Kinchela, who had arrived in the colony only the year before Plunkett, was quite deaf, which meant that it was difficult for him to appear in Court. The Crown Solicitor, William Henry Moore, was idle and incompetent, preferring to focus his energies on his private practice. These factors rendered two of the three senior legal roles in government virtually moribund. As a result of Kinchela’s disability, Plunkett was compelled to take on many of the criminal trials that would normally have been done by the Attorney General. As a consequence of Moore’s ineptitude and inattention, Plunkett was forced to do many of the civil cases normally performed by a government solicitor. Because of his sense of duty and work ethic, this situation resulted in John Plunkett performing much of the work of the three most important legal officers in the colony.