Out of the Silence

by Wendy James

  Mr Justice Hodges, in summing up, pointed out that there was no question of the actual facts, and while the case was a painful one, it was perhaps more painful because it was so very plain. He had felt the need to interrupt counsel for the accused when he referred to her present state of mind, as the jury had only to deal with her condition on January 16. Her present physical or moral condition did not now concern them in arriving at their verdict. The theory advanced by her counsel was that she was not morally responsible, but what they had to decide was whether she was legally responsible for the deed. If she intentionally dropped her child into the river she was guilty of the offence with which she was charged. Dr Stawell had been asked whether, if she had been suffering from mania at the time, she would have been able to describe the occurrence minutely, and he had replied that she could not have done so. Yet she recounted what took place, and described all her movements. The circumstances of the case might demand their sympathy, but did not relieve her of legal responsibility. Her own evidence showed that she had committed the crime under pressure of circumstances, but he asked the jury to leave out all question of sympathy in deciding their verdict.

  Upon the court resuming after the luncheon adjournment the jury returned and the foreman asked: ‘Can we bring in a verdict of manslaughter?’

  Mr Justice Hodges. – It depends on what you mean by ‘can’. In a trial for a murder a verdict of manslaughter can be brought in, but there must be some evidence that the act for which the person is being tried was not intentional. Sometimes when a person is tried for murder there is doubt whether the act was really intentional, in which case the jury would give the person the benefit of it. It is legally right for them, if they can find evidence that the prisoner’s act was not intentional, and was not done with deliberate intention, to bring in a verdict of manslaughter.

  The foreman. – May we bring in a recommendation?

  Mr Justice Hodges. – Yes. It is entirely within your province to do so if you think fit.

  The jury, after a further short retirement, returned a verdict of guilty, with a strong recommendation to mercy on account of the prisoner’s weakness of mind and great destitution at the time.

  In answer to the usual question, which was conveyed to her by the warder standing at her side, the prisoner murmured a few words to the effect that she did intend to take the child to Sydney, and that the address, No. 204, was given her by [the name was inaudible].

  Mr Justice Hodges, addressing the prisoner, said ‘You have been found guilty by the jury, and have also been strongly recommended to mercy. That finding and that recommendation will be communicated to the proper authorities, who will deal both with the finding and the recommendation, and they also will have the evidence of your case before them, in order to be able to form an opinion as to your moral as well as your legal responsibility. It would be improper for me to suggest the probable result of their deliberations. They may or may not give heed to the recommendations. I have here but one thing to do. I need not speak of my feelings, but whatever sympathy I have at this time and in this place I can discharge but one duty, and that is to pass the last sentence of the law.

  Mr Justice then passed sentence in the usual form, and the prisoner, moaning and in an almost unconscious state, was removed.

  MARGARET HEFFERNAN’S CASE

  To the Editor of The Age

  Sir, I respectfully crave leave to point out in your columns that Dr Stawell’s evidence, to the effect that a woman who had suffered from puerperal insanity would be unable afterwards to give a distinct account of her actions, is at variance with the articles on this subject in Dr Hack Tuke’s very modern and authoritative work A Dictionary of Psychological Medicine. Dr Tuke puts it no further than that only some such patients may be unable. In a paper on the subject by Drs Springethorpe and Mullen, and read before the Intercolonial Medical Congress in Sydney in 1892, the writers state, ‘This legal fiction that a puerperal woman may not know what she is doing when she is committing her unnatural act is completely wrong. Experience teaches medical men that she does know.’

  Yours, &c.,

  James Hawkins (MD)

  To the Editor of The Age

  Sir, I would like to obtain your kind permission to insert a few words re Maggie Heffernan’s very sad case. I am a member of one of the institutions that so cruelly refused her admission in her sad need; although we are pledged to help the fallen and needy sinner, in Christ’s name. How very appealing to womanly sympathy was her sad tale. I am sure that many others, as well as myself, would like to know, through the medium of your paper (which is always ready, if possible, to correct an error), whether that statement was correct. If so, how can we ask for subscriptions, and yet not do all in our power to at least assist for a time such a manifestly urgent case, or could they not have inquired into it, and directed her to a maternity or some other home. Hoping some more able pen will feel it their duty to advocate such cases.

  Yours, &c.,

  A Mother

  The Argus, 22 February, 1900

  A CRUEL SENTENCE

  Yesterday Mr Justice Hodges had the painful duty of sentencing three prisoners to death. William Robert Jones was convicted of the Broadford murder – one of those peculiarly horrible crimes at which the whole community stands aghast. In a quiet little country town a girl-child of eight years old was done to death with fiendish cruelty. Then the murderer tried to destroy the evidence against himself by burning the body. Only charred remains of what had been a bright and innocent young life were discovered. For the perpetrator, if caught, there could only be one just punishment – the gallows. There is no foothold for mercy in such a case …

  Remotely different was the case of the unfortunate young woman Margaret Heffernan, convicted of drowning her baby in the Yarra. It cannot be disputed that she intentionally dropped her child into the river. The plea of mental unsoundness failed, as it deserved to do. Legal responsibility was made out to the satisfaction of the jury. But the strong recommendation to mercy will be endorsed by the whole community. There is no doubt whatever that the crime was committed under the pressure of most distressing circumstances upon a weak nature. The case illuminates one of the deficiencies of our social system. If Margaret Heffernan could have placed her child somewhere, the terrible temptation to which she yielded would never have taken shape in her mind. How was a young mother, possibly more sinned against than sinning, to earn a living for herself and the baby, which needed instant attention? She wandered about Melbourne with 2/ in her pocket, 1/6 of which went in paying for her first night’s lodging. Can nothing be devised by the philanthropists to meet the needs of persons so situated? Of course the sentence will not be carried out. A term of imprisonment is all that justice requires. And if that is so, it is to be regretted that Mr Justice Hodges had to pass the same sentence upon Margaret Heffernan as upon William Robert Jones. Public opinion revolts at the classing together of two so dissimilar convicts together. Judges in England have protested against the passing of the death sentence on occasions when everybody knows it will not be carried out. It is a farce, but a very cruel farce. Melbourne would like to see the young woman convicted yesterday given every chance, consistent with regard to justice, to make a new start in life. Compelling her to pass within the shadow of the gallows – though there would be a universal outcry if the sentence were not most mercifully commuted – is an unnecessarily harsh procedure.

  Elizabeth Hamilton’s diary

  28 February

  Letters from Thisbe & Isolde Tucker. Their young governess has my admiration: their expression is vastly improved. I’m glad they are at last receiving some competent instruction – they do deserve it. Their progress on the piano seems remarkably rapid – already they are both playing some of the simpler Preludes. A note from Mr Tucker accompanied their letters, saying they will all be in Melbourne for a fortnight in early April and would like me to visit them if convenient. The girls are eager to see me and he would be pleased to have me a
ccompany them on several educational excursions to art galleries, museums, parks and so on, if I can spare the time. He is a very civil writer. It will be interesting to see whether these past months have returned him to some degree of equilibrium. I hope so: I can’t think of anything less appealing than an afternoon spent traipsing around Melbourne’s parks and museums with Mr Tucker as he was when I first encountered him.

  Extract of letter from Elizabeth Hamilton to her brother Robert

  2 March

  The fate of poor Maggie Heffernan continues to occupy our household’s energies and attention. Vida has organised a petition seeking to have the sentence commuted, though this is more or less a certainty anyway, and we are all (even James) busily working to obtain as many signatures as we are able. At Vida’s request Maggie’s mother agreed to write a letter relating relevant details of Maggie’s background: did she perhaps suffer from any illnesses, particularly any affecting her behaviour or temperament? Her mother had commented when we met her that in her opinion Maggie ‘never was quite right’, a point with which her father violently disagreed, so it will be interesting to hear what she has to say.

  Maggie’s case is currently the talk of the town – indeed there seem to be very few individuals who do not have a settled opinion on ‘the matter’.

  There are a large number who insist that she is yet another victim of man’s uncontrolled passion, a tragic instance of the double standard. That she was duped, misled. That the fellow, the child’s father (cad, scoundrel, reprobate), is to blame. That he should somehow be made to pay.

  A few seem to have ‘heard’ (though they can never tell one where) that Maggie is somewhat simple-minded (‘as so many of her class undoubtedly are’), and, without the education that her betters are so fortunate to receive, sadly lacking in moral understanding.

  At least amongst these individuals the prevailing sentiment is that Maggie has been treated unjustly – that her sentence is a travesty, an abomination, an outrage on our common humanity.

  But there have been some less sympathetic responses. The most Reverend Dr Simons – visiting chaplain at Merton House – was pleased to be able to inform me that such acts are growing ever more frequent: abortion, infanticide, baby farming are all on the rise. That these wicked deeds are all contributing to the alarming decline in the birthrate. That if harsh retribution is not meted out in this and every instance, race suicide is inevitable.

  And James has told me that his esteemed colleague Dr Barrett (who is already a great foe of Vida’s, arguing publicly that if women are given the vote, the birthrate will fall even further) regards Maggie as nothing less than a monster. It is evident, saith he, that she lacks the maternal instinct that is, that should be, that must be, the defining feature of our sex. Dr B. is very much afraid that such acts (and such monsters) will become more common as women move into the male sphere. He is convinced that the ‘new woman’ (in the guise of the female doctor, in particular) is leading civilisation towards a moral abyss.

  Harriet has said that she has heard a few – not so many, but enough – comments that women like Maggie – of easy virtue and evil inclination – deserve all that they get; that an innocent child’s life is to be valued above all else. That there is no punishment too great for her. That they would lower the noose themselves, and gladly.

  Regardless of such opinions you will be pleased to know that I have managed to overcome my aversion to ‘making a noise in public’, as our dear Mama liked to call it, and that I have successfully obtained the signatures of all the teaching staff at Merton Hall (including our dear chaplain!), as well as a significant number of the house staff, several parents, and even (and I am mortified just recalling the extravagant flattery that was required) the young lad who delivers our sausages.

  There has been something of an outcry from outraged citizens – letters to the editor, resignations from committees, withdrawals of funds – condemning the want of Christian charity demonstrated by some of these so-called Christian institutions, Maggie having been turned away from not one, but two homes the night before she drowned her boy. I imagine there are other, less public investigations underway too: workers interviewed, this person denounced, these accusations denied, strangers blamed … I suppose that ultimately this will all be to the good and will remind the individuals concerned of what is at stake. But it all comes too tragically late — much too late for Maggie and her baby …

  Elizabeth Hamilton’s diary

  9 March

  Vida’s petition for the commution of Maggie Heffernan’s sentence was sent to the Lieutenant-Governor today. It has more than 17,000 signatures, Vida says.

  To His Excellency the Lieutenant-Governor and the Members of the Executive Council

  The petition of the United Council for Women’s Suffrage and Friends undersigned, humbly sheweth:

  1. That at the February sittings of the criminal court in Melbourne, a woman named Margaret Heffernan was found guilty of the wilful murder, on the 16 January last, of her illegitimate child, born of her on 29 December 1899. The prisoner confessed to the act, described the details, and admitted she knew she was wrong in committing the deed. She was condemned to death and now lies under such sentence in the Melbourne Gaol.

  2. That during the progress of the trial the question of the mental condition of the prisoner at the time of the commission of the act was raised by his Honour the presiding judge. In reply to Mr Justice Hodges, a medical witness, who had given evidence as to the cause of death, stated that if the prisoner had been suffering from puerperal mania at the time the deed was committed, she would have afterwards been unable to describe exactly what occurred.

  3. His Honour relied upon this evidence in his charge to the jury. The facts of the case being admitted, the mental condition of the prisoner became the subject matter to be considered as to the question of legal guilt or innocence. Your petitioners believe that no other evidence on this point was placed before the jury.

  4. That since the passing of the death sentence it has been asserted, in the public press, that the aforesaid medical witness is incorrect. Your petitioners are informed, and believe that the said evidence is at variance with the highest authorities in psychological medicine, and opposed to the experience of medical men who have had practical knowledge of insane patients. Evidence from such sources is easily procurable, which will show that a woman when suffering from puerperal insanity generally knows the nature and quality of her act, that she is doing wrong, and can describe all the details.

  5. The definition, so-called of insanity, as applied in our criminal courts is generally discredited. It does not admit the form of disorder known as puerperal insanity as it is found by medical men. It is sometimes not acted on by English judges. It is not acted upon by our judges in testimentary cases, nor in inquisitions in lunacy. Eminent judges in England and America have pronounced it unsatisfactory. It is a legal fiction effectual only for hanging prisoners who may be either sane or insane.

  6. Your petitioners believe that the unfortunate girl is deserving not so much of legal punishment as of the deepest sympathy. Society has not taken any adequate steps to take care of and protect unfortunate girls placed in the position of the prisoner. Seduced, betrayed, deserted, homeless, friendless, left to starve in the streets in a physically exhausted condition, with nothing but water to give to a newly born babe, the hanging of such an unfortunate creature, no matter how excellent may be the legal definitions and procedures, would be an outrage on our common humanity.

  Your petitioners, therefore, humbly pray that the death sentence be commuted, and that under the special circumstance of her case, Margaret Heffernan be released.

  10 March

  Mr Stratford to dinner. At the end of the evening he gave us the sad news that he is to leave Melbourne. He is moving to Queensland in a month’s time – he has work with a newspaper in Brisbane. The Labour movement in the North is not quite so moribund as in Victoria, and he feels he will be of greater use there
than here.

  ‘There is nothing to keep me here …’ he said, gazing at Vida, and his expression spoke volumes. Vida, of course, failed to notice.

  ‘Yes’ she said briskly. ‘It would be a pity to waste your talents. Much better to go where you are needed, where you can do good.’

  Poor man.

  11 March

  Vida has received communication through a connection in the lieutenant-governor’s department that Maggie’s sentence is to be commuted. The decision will not be made public until tomorrow, but we visited Maggie late this afternoon to give her the news. That poor girl – we felt we were bringing such glad tidings, yet it seemed to me that her anguish only intensified when she realised that the commution of her sentence did not mean she was to be released from prison.

  She has been moved to the Women’s Prison at Pentridge, which was built more recently, but is no less imposing than Melbourne Gaol. These places have a coldness about them that cannot quite be explained – a coldness that begins to settle as soon as their high wall is breached, and that would, I fear, become a permanent fixture of the soul if one were compelled to remain.

  We were initially taken to meet with the governor of the Women’s Prison, a Mrs Henderson, another sensible, intelligent woman, though rather severe. The first female prison governor in the Empire, Vida informs me. Indeed, the penitentiary itself is something of a model, as these places go. Mrs Henderson said that she was pleased Vida had taken such an interest in the poor girl, and even though Miss Heffernan had been assured many times that the sentence was only a formality, she had no doubt that the news would be very gladly received. She would ordinarily prefer to wait until she had been informed officially, but she had faith in Miss Goldstein’s integrity and could see no harm – rather a great deal of good – in the message being thus relayed. However, Mrs Henderson seemed slightly dubious about Vida’s intent to petition further for Maggie’s acquittal and release. ‘You will have to ask Maggie herself if she wishes you to take up her cause,’ she told us. ‘At the moment she’s unwell – rather frail and exhausted – and the balance of her mind is somewhat precarious. She probably cannot take too much excitement.’ Mrs Henderson said the girl had been visited many times in the short space of time she had been incarcerated, and the visits seemed to have more of a lowering effect than otherwise.