The Privy Council’s judgment and infant mortality rates
The Makin case has been described as ‘perhaps the most important and most frequently cited case in the history of New South Wales criminal law’8 because of the Privy Council’s statement of principle. Unfortunately, that has been for all the wrong reasons.
The starting point for the Privy Council’s decision was the Makins’ statements to Constable Joyce that they were not baby farmers and had only ever adopted one child for a fee. The Privy Council decided that the evidence of all the unmarried mothers who had paid to have their children adopted by the Makins was correctly admitted to rebut this claim and to provide evidence of a motive for the Crown’s case of murder.
The evidence of the discovery of the 12 other babies cannot be justified since the Makins offered no defence of neglect or accidental death. If the Makin case was tried according to the rules of evidence that apply today, Constable Joyce’s account of the 12 other babies would be treated as highly prejudicial. Because of this expected prejudice, a judge today would need to investigate whether the evidence of the Makins’ prior criminal misconduct had one or more alternative, rational explanations.9 One rational explanation arises because of the high infant mortality rate in the 1890s as a result of disease and/or undernourishment. Up until 1900, the infant mortality rate in the Australian colonies fluctuated between 101 and 130 per 1000 live births,10 compared to an average infant mortality rate of 11 in the 1980s and 4.6 in 2012. In 1892, the likelihood of a baby dying in its first year of life was 26 times greater than in 2012 and similar to the infant mortality rates in Afghanistan and Somalia today.11 Another rational explanation comes from the evidence of Daisy and Clarice Makin, who both said that Amber Murray’s baby had been taken to Burren Street. Clarice’s later retraction of her evidence is a strong hint she had been telling the truth originally. Baby Horace could not have been buried in George Street as assumed by the police, the lawyers and all the judges involved in the appeals.
Knowing very little about the mortality rates of infants, the incidence of syphilis in the maternal population and the living conditions in Sydney, the Privy Council made a legal decision based on no scientific or medical knowledge. As Justice Windeyer had said in a child death case four years before the Makins’ trial:
You might just as well try to prove that because the child died in the hospital and 50 other children died there, that the first child was murdered. You must raise some evidence that the child died an unnatural death, that there had been foul play, and that the person accused was guilty of it.12
In the 1890s, baby farmers were in a position similar to the diseased and unhygienic hospitals of the time. Diseases unknown in developed countries today were common and included cholera, diphtheria, smallpox and scarlet fever. The poorer baby farmers like the Makins accepted babies destined for the grave, while death came often to the homes of many legitimate midwives as well.13 Some baby farmers underfed their babies by watering down the Nestlé’s baby formula when money was short. While some of the Makins’ babies would have died from disease, others died from starvation or overdoses of Godfrey’s Cordial. But without evidence of ‘foul play’ in relation to Baby Horace, and with the rational explanation that he had thrush before and after he was adopted, Constable Joyce’s evidence ought not to have been admitted in the Makins’ trial.
At the end of this strange, convoluted journey into the minds of the trial and appeal judges, it is possible that logic and reason were supplanted by an emotional desire to find any excuse for admitting evidence of the 12 other babies. To many people, this may not matter since the totality of the Makins’ behaviour suggests they were baby farmers who had killed most of their adopted babies.
The morality of the Makins’ profession was on trial, since Justices Stephen and Windeyer were concerned that baby farmers would literally get away with murder because their victims were small enough to be easily concealed by burial. But the greater moral question in 1892 was the lack of interest in the lives of illegitimate children before they were baby farmed. No-one explained why the lives of illegitimate children mattered more when they were dead than when they were alive. The decision in the Makin case did nothing to change the short lives and quick deaths of countless babies in the city of Sydney in the 1890s and beyond. Baby farming was the inevitable outcome of the clash between poverty, morality and women’s place in Victorian society.
CHAPTER TWENTY-ONE
Makin’s last chance: an ‘innocent’ man under the thumb of a ‘fiendish’ woman
11–14 August 1893
After the final appeal, John Makin was placed in one of the six ‘gloomy and dismal’ condemned cells of E Wing in Darlinghurst Gaol which were located close to the gallows. Resigned to his fate, he was heavily ironed while his cell had ‘an open iron grille . . . so that the warder could keep continuous watch’.1
John’s siblings were terribly distressed by the impending execution of their brother. After paying a small fortune for his legal representation, they marched down their very last avenue of appeal by petitioning the Colonial Secretary, Sir George Dibbs. Although John himself had sought a reprieve from Sir Henry Parkes, the Premier of New South Wales, his letter, which pointed out the weaknesses in the evidence against him, met with a cold response.2
On the morning of Friday 11 August 1893, Sir George received the deputation that had travelled from Wollongong to see him—George and Daniel Makin, John’s sister-in-law, Mrs Joseph Makin, as well as Mr Campbell, a member of Parliament. Perhaps they thought they would obtain a fair hearing from a man with his own colourful past. Sir George had spent 12 months in prison from May 1880 to April 1881 in the debtors’ wing of Darlinghurst Gaol for failure to pay damages of £2000 when a lawsuit for slander was brought against him by his sister-in-law’s lover. Nonetheless, Dibbs adjusted to prison life well, restoring his health through his love of woodwork, ‘[i]n this “cheery, pleasant retreat where one can do martyrdom for principle’s sake with every comfort”’.3
In presenting their petition, the Makin family deputation stressed that it had been signed by many Wollongong citizens, including mayors, aldermen, clergymen and Justices of the Peace. They did not attempt to re-argue the merits of the case against John:
[t]hey simply asked . . . for the sake of his brothers and their families, and his own family, that the extreme penalty of the law should not be carried out, and that his punishment should be made the same as that inflicted on his wife.4
But there was more. This last desperate attempt was to be an assassination of Sarah’s character and a whitewashing of John’s—a good man who had fallen in with a bad woman because it was ‘the woman and not the man [who] was responsible’. Socially acceptable misogyny provided the Makin family with the tools to try to save their brother from the gallows.
Mr Campbell said he had known John since ‘he was a lad growing up at Wollongong’. While he had a reputation for ‘being a foolish young man’ he was not known to have a ‘disposition for cruelty or anything in that direction’ and ‘no one would ever have associate[d] him with murderers or brutal crimes’. These ‘brutal crimes’ were a shock to the Makin family who, Mr Campbell reassured Sir George, were ‘most respectable people, and his father was for 30 years agent for the Illawarra S.S. Company at Wollongong’—so respectable that ‘the surroundings of the condemned man were in every way of a creditable character while he was young’.
The problem for poor John was that he had been ‘led to whatever he did by his wife’ who was ‘the arch-aggressor, the arch-fiend in the matter’. Mr Campbell appealed to Sir George’s knowledge of the way of the world since he would know ‘that the whole business was a woman’s matter, as no man would ever start a baby farming business’. The problem was Sarah. Not only was she ‘a strong-minded woman . . . possessed of an almost fiendish disposition’, she ‘would not be wound round the fingers of any man’. John had been ‘made use of by the woman whose neck had escaped’ and if he had no
t known her, he would never have been convicted. Proof of this was to be seen in the lives of John’s brothers, George, Joseph and Daniel, since no better fathers or men existed in New South Wales.
With this homily to John and his ‘respectable’ family, was Mr Campbell trying to save John’s neck or was there more at stake? He let slip the truth when he revealed the family’s expectations—‘[t]o prevent the stigma resting on them and their children for generations, the relatives hoped that the sentence on the condemned man would be commuted’. George Makin then asked Sir George ‘to have mercy on his poor wife and family’ while Daniel Makin ‘begged for mercy on account of the family, so that in time to come people would not be able to point the finger of scorn at them’ as he tried to rescue some of the ‘respectable’ family reputation.
Mrs Joseph Makin enlarged on the theme of Sarah’s badness. She had, she confided, seen Sarah ‘knock her own blind mother down with a chair, and she had struck her mother-in-law in the face’. By contrast, ‘a better-hearted young man’ than John had never lived. John was like a piece of putty, it seemed, since ‘his wife could turn him round her fingers’ because he ‘was easily led—in fact he was a fool’. At the time that John married her, Sarah was a barmaid with ‘a temper more like a fiend than a woman’. She was, confided Mrs Joseph Makin, ‘a terrible woman’ and ‘the whole cause of the trouble’.
George Makin then admitted that his family ‘had had a good deal of trouble with John Makin, but it was all the fault of his wife, who used to drink, and spend all the money he earned’. Yet the family well knew that John, with an irregular employment history, had failed to hold down a steady job to feed his large family. They knew he had previous convictions, had accrued debts and been declared a bankrupt before he married Sarah. They could not have forgotten that John’s mother had ensured that John would not be able to waste his inheritance by providing him with a monthly payment rather than a lump sum when she died. Out of John and Sarah, who had twisted whose arm to enter the land of murder?
George Makin’s admission suggests that John had a habit of bothering his family for money, using the excuse that Sarah was drinking away his hard-earned income. Conveniently, John did not tell his family the truth about his role in the baby-farming business—how he conducted the monetary negotiations with unmarried mothers, signed the contracts, made up the many excuses as to why the mothers could no longer see their babies, buried the babies and used such language to describe the baby who cried too much that his words were unprintable. He may have been a foolish young man who was easily led but he had turned into a cunning adult with a gift for story-telling and deception. John’s family would have been embarrassed by him long before his conviction for murder. They may have muttered to themselves that John would one day end up in a lot of trouble, just not the type of trouble to bring the family’s name into such disrepute.
Sir George reminded the family that John had been found guilty and it was not the role of the Executive Government to overturn a jury’s decision. A case could only be reopened if further facts were brought forward. While he would call a special meeting of the Executive Council on Monday morning and put before them all the matters raised by the family, he warned the deputation that they had not given him any facts to ‘show that the verdict of the jury is not a just one’.
As expected, the Executive Council was unconvinced by the petition that begged mercy for John’s life and ‘decided the law should take its course’.5 When the final decision was relayed to John he received it calmly ‘without the least sign of emotion’, merely saying: ‘I am quite prepared’. After farewelling his daughters and son-in-law, ‘the doomed man seemed to contemplate his fate with composure’ and remarkable tranquillity. Perhaps this was the reaction not of a man coerced by his wife into being her partner in crime, but of a man who knew he was guilty of something. As the editor of The Sydney Morning Herald suggested, Makin’s reaction ‘may be accepted as his acknowledgement of its perfect justice’.6
Letters fly while editorials rant
At the same time as the Makin family tried to persuade the government to commute John’s death sentence, a letter appeared in The Sydney Morning Herald about the unfairness of the penalty against him:
I [would] have hoped that the . . . almost intolerable apathy that so generally exists in our midst would not have been exhibited when the sacredness of human life was at stake. “Yes,” some of your readers may say; “Sacredness of human life? The very reason why the man must die.” But . . . as the life of the female prisoner, considered the most guilty of the two, is to be spared, so also should be that of the male prisoner.7
Up until this time, there had been few opinions in the newspapers about who, out of John and Sarah, was the ‘most guilty’. The law had treated Sarah as acting under the influence of her husband but the letter writer, Charles Counsell, was convinced that Sarah was the culprit:
Stress is laid on the fact of John Makin receiving money on the infants being given up? Granted. Was this so heinous as the crime of the woman, whose natural instincts should have made her revolt from the diabolical horror of administering . . . so little nourishment to the infants . . . as would sooner or later bring about their death? . . . Have not Governments and society at large too long “winked at” and given the “go-by” to it?
Mr Counsell also recognised what the courts and editors of newspapers had refused to—that the government and the public had tacitly condoned baby farming.
The similarity between the themes in Counsell’s letter and the Makin family’s pleas to Sir George Dibbs suggests the family tried to elicit public condemnation of John’s execution. They were in for a shock. The next day, The Sydney Morning Herald printed a reply from a Mr Chamberlain, who growled at the suggestion that John should be reprieved:
I read the letter signed ‘Charles Counsell’ . . . with mixed feelings of surprise and disgust . . . To those people who think children’s lives as of far less importance than those of adults, this sophistry may be plausible; but to those who think, with me, that the more helpless the victims the greater should be the protection of the law, the whole of Mr. Counsell’s ideas will be repulsive . . . Considering that infants are slaughtered almost daily . . . it seems . . . that an example should be made of the first really bad case sheeted home, and a worse case than Makin’s is hard to conceive.8
Mr Chamberlain was unconcerned that John’s execution would not solve the problem of illegitimacy because other mysterious influences were at work to which justice must not succumb:
If Makin is reprieved it will be . . . ascribed to ‘influence,’ and his alleged threats of exposing people well to do in this city.
It is unknown what the alleged threats were but I am reminded here of Blanche’s allegation that Mother Robinson had ‘put’ John ‘up’ to baby farming, which suggested John may have been involved in various illegal activities.
Overwhelmingly, retribution was the preferred response in the colony. Newspaper editors gloated about the decision to execute John, confident that it ‘will have the full concurrence of the general community’, particularly since John was ‘the prime mover and chief actor in the crimes’. Unlike John’s relatives, one editor believed there was:
a strong and not discreditable aversion to the spectacle of the hanging of any woman; and . . . there is much to be said . . . for giving a certain amount of application to the old presumption of coercion, which held the husband primarily responsible for both.9
Others also had sympathy for Sarah, who was thought to have been a weak-willed woman held by John ‘in a sort of magnetic thrall’ which, out of fear, turned her into ‘the instrument of a stronger nature than a voluntary criminal’.10 This was sexism operating in the opposite direction. But another editor let fly with his outrage that Sarah had been recommended to mercy:
Mercy! If either deserve it, it is Makin the man, in whom the brute might reasonably be expected to be more strong. But mercy to a woman who had borne and suckled chi
ldren, and in whom maternal and womanly love was dead that she could deliberately assist to slay eighteen [sic] tiny creatures whose helplessness a savage had spared, aye, possibly a wolf or a tiger . . . Mercy! . . . Rather the rope, for if ever the woman Collins deserved death, the far more barbarous woman Makin deserves it twice over.11
According to John’s relatives, Sarah was the chief fiend while the prevalent legal view was that she was pliable putty in her husband’s hands. But no-one seems to have considered their equal participation as a matter of survival. Only one editor recognised that baby farming is different from other types of murder:
[i]t was committed systematically, and as a matter of business. It was committed from the basest and most sordid of motives, the desire to make money by murder . . . to make infant murder their daily bread.12
However, the real reason for John’s execution was to remove:
[a] terrible stain [which] would lie upon this great city and upon our whole administration of law if the blood of these unhappy infants were to remain unavenged.13
John’s final letter
John wrote an intriguing letter to his brothers on 14 August 1893, the night before he was executed:
I, John Makin . . . to be executed on the morrow for the murder of Horace Amber Murray, sincerely and solemnly declare that the body of the infant found in the yard of the house at Redfern, and on which the charge of murder against me was based, and for which I am now to be executed, was not the body of . . . the child of Amber Murray. Nor was the clothing found on the body, supposed to be that of Horace Amber Murray—and which Amber Murray and Mrs. Patrick swore to . . . —ever worn by the child. The clothing was never in their possession, nor had they ever seen it before it was produced for their identification . . . They have, I solemnly state, sworn falsely, and their false swearing is the cause of my life being taken away. My wife, Sarah Makin, did not murder the child supposed to be Horace Amber Murray; the body found was buried in the yard weeks before we got her child. And I also solemnly declare that the child myself and my daughter Blanche took to the residence of Mrs. Patrick . . . in the month of July, 1892, was the child of Amber Murray and no other.14
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