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Women with malice aforethought

Phyl Brown

Brown, Phyl 2001, 'Women with malice aforethought', Fremantle Studies, 2: 36-46.

A visitor to Fremantle in 1845 might have been told by residents that the worst effects of economic depression were over — that returns from wool appeared promising, tobacco was being cultivated, increased areas of wheat were being sown, wheat and whales were being harvested and that the once tentative sandalwood industry was flourishing. The propertied may have talked about the high cost of labour, and the gainfully employed might have been heard muttering about low wages and wages paid in kind. Some may even have been heard arguing for a convict labour force.

1845 was a memorable year for John Hutt and Andrew Clarke, as the former resigned his governorship and the other took his place. Despite their move to a comfortable new home and Thomas’ appointment as magistrate, it was a year that Eliza Brown and her husband would have preferred to forget as they mourned for their drowned son, Vernon. It was a memorable year also for a young woman named Susan Hitchcock who was tried in the Court of Quarter Sessions for the theft of various items of her mistress’ clothing, and who consequently spent the year in gaol.

Between the years of 1845 and the introduction of convicts to the Swan River Colony in 1850, three women were indicted in magistrates’ courts and ordered to stand trial in the Court of Petty Sessions. Their number was increased by thirty seven in the years until 1868 when transportation ceased, and by seventeen in the following five years. Women were also tried in Courts of Petty Sessions for lesser crimes categorized as ‘misdemeanours’ Susan Hitchcock was the first of the fifty-seven judged in the high courts of the colony. She was one of the twenty four found guilty and sentenced to imprisonment and, like the other women whose actions were considered to be outside the limits of social acceptability, Susan was not just a statistic. During the years between 1845 and 1873 she and fifty-six other women lived, ate, loved, slept, fought, hated, often drank, made love, bore children, occasionally buried children — and were judged judicially and socially by their social superiors.

These twenty-eight years reflected tensions in the colony and the experiences of these women speak loudly of some of the stresses, rents and patches on the fabric of colonial life and values. Records of the Supreme Court of Western Australia give insights into the way social tensions and relationships were acted out and resolved in the colony.

The first generation of colonists was enthusiastic about the cultural baggage it had salvaged from social and demographic changes in Britain following the Agricultural and Industrial Revolutions. Although they had the chance to shape their society in a different way, leaders in Swan River Colony clung tenaciously to traditional British modes and values. The potential for change in a new land was perhaps perceived by some indentured servants — Stirling spoke of the need ‘To control these and to protect their masters in their just rights ...’ — but the vision was one-sided. [1] Tensions were there, but through the retained British infrastructure of law and government, comfortably prosperous English settlers established themselves as the landed social and political elite, and for decades colonial procedure generally lagged twelve or so months behind Britain in fashion, attitudes, legislation, and in responses and solutions to activities deemed ‘criminal’. The British judicial procedure of petty sessions being held before Justices of the Peace was retained, and serious offences were tried on indictment in Quarter Sessions. Constables and Government Residents (later called Resident Magistrates) were appointed to deal with civil disputes, minor crime and ‘the Natives’.

For many colonial women, home and family were the centre of a circumscribed universe. Emma Thomson carefully penned an extract from a text of her day into her diary in 1856:

If there be anything which will soothe the agitated Passions of the soul, which will calm that turbulence of feeling which the din and bustle of the world do frequently excite, it is the soothing influence of a cheerful fireside. [A man] goes out into the world to discharge his duties, and returns to his quiet home for happiness and repose. 2

Swan River gentry ‘Angels of the Hearth’ often fussed over their homes, children, appearance and their status. The press conspired to perpetuate the sanctified and civilising ideal of homes and family, 3 and most women from every class in colonial society aspired to the articulated paragon. Lines of propriety and morality needed to be etched deeply in a frontier community — especially one in which convicts and Irish immigrants walked the same streets as their employers. But for some women, poverty, hard labour, fear, overcrowding, disrespect and mental and physical violence were more familiar than genteel manners and accomplishments within the setting of a comforting family home. 4 Some endured quietly, some brawled, others found temporary oblivion in drink, and a few fretted in bondage in His Majesty’s Gaol.

While women were mostly seen as moral guardians of the community and were elevated on a pedestal of esteem, they could also be judged as ‘corruptors’. The effect of a woman’s persuasive influence on men - for good or evil - was articulated often during debates on the possible introduction of convict women. The Colonial Treasurer in 1857 was opposed to the move

on the ground of the contamination they would introduce into families as servants, and also as regarded the reformation of male convicts, he could not but think that unions with them would not tend to their elevation in the moral scale. 5

The extent of a woman’s perceived pollutive powers is suggested in a reported conversation between Mr Shenton and ‘a gentleman from Van Diemen’s Land’ who warned that ‘one female prisoner was sufficient to corrupt fifty males’. 6 While the potential corrupting power of a free female recalcitrant might be seen as less than that of a convict woman, evidence suggests that at least some of the fifty-seven women tried in higher courts of the colony of Western Australia were indicted as much for their questionable morality as their unlawful actions. A threat to the social order was perceived by Western Australia’s administrators and arbiters in the low ratio of females to males in the colony. In 1850 it was 2,142 to 3,151. Ten years after the introduction of convicts, the ratio was 5,698 females to 9,529 males. 7 In 1854 it was reported that there were thirty-five females to one hundred males and by 1857, only eleven women to each hundred men. 8 The problem was considered crucial. Because women were perceived as a catalyst for maintaining both physical and moral order, they were needed in Western Australian society. Mr Clifton was only one of many who warned of the physical aspects:

The passions of men long shut up cannot be restrained, and unless proper steps are taken the direst evils will ensue. 9

These evils were pronounced by the Reverend J Brown as ‘too humiliating for the mind to dwell upon — too revolting to name’. 10 The importance of women as ‘civilisers’ and child-bearers was explicit in 1853:

Every female immigrant who marries and settles in the colony is more useful to the colony than those who remain unmarried and in ' service. They become producers, increase our population, and consequently our prosperity. They induce settled habits among the male population: a roving and perhaps idle and dissipated man, marries and reforms; buys it may be, a small grant of land, grows corn and potatoes; breeds cattle, horses, and pigs, and adds to the wealth of the colony. 11

Women were also valued for their labour, especially as domestic servants to the gentry. These anticipated roles for female immigrants were expressed in a report in 1853: ‘A party of female emigrants per Clara arrived in Perth on Monday, and proceeded at once to the Servant Home. They will not, we presume, remain disengaged, in more senses than one! 12 Press reports of the arrival of ships carrying female immigrants continued enthusiastically throughout the 1850s and 1860s, for the immigration of free females to the colony was seen as an answer to the demographic imbalance. While individual circumstances naturally contributed to a ‘guilty’ verdict for serious offences, the expressed need for women in the community combined with patterns of acquittal and light sentences for women, suggest that social pressures quite outside the legal framework contributed to the processing of women in Western Australia’s courts of ‘justice’. Between 1845 and 1873 the ratio of women found guilty to those acquitted in the colony shows that over half were pronounced innocent. Thirty-three (or 58%) of the women tried were acquitted. To this acquittal rate may be added six more cases which, for various reasons, were not proceeded with.

Of the fifty-six white women who were indicted, at least eighteen were Irish immigrants, some of those induced to come to the colony to provide labour as well as to alleviate the gender imbalance. Most worked as domestic servants, and most of the female ‘offenders’ of the peak 1854-55 committals were of Irish origin. The session of July 1854 ‘was the heaviest without exception of any before’, as the Inquirer pointed out. 13 The arrival of the Travancore with passengers including ninety female orphans in 1853 introduced the first detachment of Irish women to the colony, which rekindled the glow of anti-Irish feeling. Servants from Ireland were considered inferior to their British counterparts in ability and religion. It was thought that Irish adherence to Roman Catholicism could induce ‘all the evils of a mixed marriage’. Mr Clifton argued

… that the introduction of so many of that creed was unfair to the settlers, as tending to destroy the Protestant character of the colony... that society here wanted Protestant wives for Protestant husbands, and that Roman Catholic servants were not required, and that the continuance of such a case as now pursued would cause serious evil to the colony. 14

The Inquirer sought to refute the worthlessness of Irish domestic servants by pointing out that, although it was undeniable that the majority had never been accustomed to indoor service and that but few of them were really good, they were capable of learning. In 1857, the Advocate General digressed in a debate on the introduction of female convicts to utter a

… coarse and gratuitous libel upon Irish immigrants, in which among other things he branded then as ‘bestial, dirty, slatternly’, and asserted his belief that as compared with such free emigrants, Female Convicts would elevate the standard of virtue and trustworthiness as domestics. 15

A reluctance to employ Irish women as domestic servants may have been grounded in the fear that whilst men were generally employed on outdoor labour ‘the females’ would be ‘introduced into the bosom of our families’. 16 Such strong antipathy towards Irish immigrants inevitably labelled them as outsiders in the female population, and perhaps contributed to their slow assimilation into colonial society, and to their high numerical representation among women tried in Quarter Sessions and the Supreme Court.

Only working class women wives of labourers, Enrolled Pensioner Guards and small tradesmen or single women usually employed as domestic servants - faced judgment in the colony’s higher courts. From information gleaned about the occupations of these single women it is known that one was a sempstress in Perth, sixteen were in domestic service (the greatest area of employment for women) and one was a shop servant. At least twenty-six of the women were married, although the number could be higher. Children are mentioned in some records where marital status is given as unknown. Marriage and bearing and rearing of families did not necessarily mean the end of wage employment for such women. ‘Philanthropist’ wrote to the Inquirer on the duty of the female parent in training the child:

Yet I think such cannot effectively be done among the labouring classes, however willing the individual may be, her time being mostly engaged in her efforts to earn a maintenance for her children. 17

At least two ‘offenders’ kept a lodging house, one helped the man with whom she was living to prepare skins for sale, an Enrolled Pensioner Guard’s wife worked both as a charwoman and a servant, two women were engaged in farm work and another worked as a live-in ‘housekeeper’ although (it may be deduced) under conjugal conditions. Most married women bore children and, at the time of trial, had between one and eight.

Most female defendants, whether married or single, were apprehended for actions in Perth or Fremantle. This is hardly surprising since the geographically concentrated population, greater opportunities for theft in towns, and increased agencies of law enforcement in Perth and Fremantle, meant that more arrests of both men and women were made in these areas. Cities were a centre of employment. In this colony where males greatly outnumbered females, evidence suggests that labourers tended to migrate to the towns where women were often employed as domestic servants, just as they did in Britain. Between 1845 and 1868 more women were indicted for actions in Perth with nineteen facing a jury; in Fremantle there were only six. After 1868 the rates were inverted with eight in Fremantle, and four for ‘offences’ committed in Perth.

The sentencing of women could be determined by outside circumstances such as gaol accommodation. Facilities were often overcrowded, inadequate and cells deemed unsuitable for female offenders. A report from Albany stated:

We are at a loss to know what to do with our female delinquents,

many of whom are constantly giving our magistrates a great deal of trouble. Recently a woman was caught in the act of shoplifting. The property was found upon her person, and she was adjudged guilty by the Bench, but our only prison being full of male prisoners. 18

Little is known about confinement conditions for women. The new, stone-walled Round House at Fremantle, completed in January 1831, accommodated both men and women, but contained only eight cells. The problem of a female prisoner in the Perth lockup with its poor conditions is revealed in a letter from police to the Colonial Secretary in 1853:

cells are not fit for her to remain in constantly and she occupies daily the room of the constable in charge —who is a married man with a family of children — this is most uncomfortable for him and his family — the woman wishes to be removed. 19

Perhaps the women found accommodation more amenable in 1856 when a gaol comprising twenty-six cells and seven association wards was opened in Perth. However, with a strong judicial hand needed to keep men in line, especially those of convict origin, and the fear of contamination by association, it is possible that sentences for women were admonitory rather than punitive. Nevertheless there was a need to impress acceptable codes of conduct involving respectability, sobriety and respect for property and the propertied, even upon women.

Although there were differences in age, literary level (only 12 out of 37 could sign their names), occupation, place of abode and any other variable, the one factor common to each of the women was her gender. One offence for which women were tried between 1845 and 1873, that of concealing a birth, was sex specific; others were gender influenced. As domestic servants, many women had unopposed access to the homes of their employers making larceny in a dwelling a likely offence. Shoplifting was also a misdemeanour common among women. Women could also use sexuality to their advantage: Rebecca Perry, Matilda Solomon, Mary Jane Gallagher and Agnes Arbuckle were all said to have either embraced their inebriated victim while robbing him, or enticed him with prospects of intimacy.

Offences involving the ‘violation of property rights’ varied in nature and circumstance. No consistent patterns are evident in the recessions in the mid to late 1850s, the mid 1860s or 1870s, nor to membership in a criminal subculture, but rather as Michael Sturma found in his New South Wales study — they were  ‘casual and fairly petty affairs’, motivated more by opportunity than anything else. 20

Twelve-year-old Maria Norrish, for example, while buying three quarters of a yard of alpaca, pocketed two pieces of ribbon at Mr and Mrs Dixon’s store. She repeatedly protested that she had not meant to steal the ribbon but had only ‘done it for a lark’. Maria had come from ‘150 or 160 miles out’ to receive schooling with the Sisters of Mercy. Strong differences between town and country experiences are suggested in a plea on Maria’s behalf by her legal champion, Mr Howell, who told the court that

She [Maria] has very recently come into town for the first time in her life, that she is presently unacquainted with the manners and customs of society in towns or the usages of shops. 21

Ann Caldwell, another defendant, was arrested for stealing a brass-bound leather purse belonging to a fellow servant, but a search of her box revealed scent, a work box, a pair of boots, two dresses and jewellery — all taken from stores and presumably just for her own use. 22

In the only case of ‘Obtaining Goods Under False Pretences’, Eliza Speirs represented herself as the servant of a well-known customer at Benjamin Mason’s store to obtain dress fabric and a crinoline. A similar offence at Julia Snook’s store was not prosecuted. Eliza pleaded guilty to the charge but asked permission to keep the goods she was charged with stealing. This was granted along with a six-month prison sentence. 23 In many larceny cases there are suggestions of a defendant’s enthusiastic acceptance of colonial social values, especially as expressed in dress, accompanied by either a rejection of the legitimate means of achieving them, or an acknowledgement that the goals were legally unobtainable.

As in studies by Philips, Sturma and others, many more women were charged with larceny than with any other offence. 24 Stolen goods comprised mainly clothing or dress materials and foodstuffs for personal use, and some jewellery or money. One woman was charged with sheep stealing, one with receiving a stolen sheep, and another with the theft of beef from a butcher neighbour when she helped him move house. Goods were often stolen from an employer, and sometimes a house, shop, or an acquaintance.

‘Concealing a birth’ infringed other social values. In each of the four cases prosecuted the woman was single; in each case there was animated community gossip about the defendant’s appearance suggesting her ‘being in the family way’ before the birth, and in each case the defendant continually denied her condition. Two of the four worked as domestic servants until the actual time of their labour. In each case, judicial compassion was shown, resulting in three acquittal verdicts, and one sentence of four months commencing with the day of the birth leaving less than one month to serve. Perhaps this was a mute acknowledgement of the situation of single women and their social, emotional and physical isolation and vulnerability. In no case was the father of a child even alluded to, and the woman, alone, was left to endure community censure and the physical consequences of an action which could not have been hers alone.

While statistics can reveal trends and patterns in ‘criminal’ activities, it is only through a close study of individual instances that we can perceive contributing conditions and circumstances working together. Court records provide not only information about an individual action and the responses that flow from it: they can also establish the context of life under which it was enacted. A ‘crime’ is never committed in a social and ecological vacuum. Personal economic situations, sometimes religious edicts, prevailing racial attitudes, sexual factors or social expectations, individual, group and legislative responses are a few of the many factors which can contribute to ‘criminality’. The stories of the disadvantaged or deviant in society are usually only recorded at times of their greatest vulnerability. However, this can be useful for a historian. Stannage advocated that

In order to understand [and confront] the past more fully, we must relive those moments of extreme agony and pain of our poor people ... From this experience will come empathy, and from empathy will come understanding. 25

Court records abound with images of members of the colony of Western Australia: at work of many kinds; in drink; while shopping; in deference; love or hate; at times of anguish and in childbirth. ‘Generally accepted popular assumptions’ about women are apparent and these are largely class based. ‘Respectable’ shopkeepers and keepers of servants are spoken of in very different terms from those used to describe the defendants who crossed them. The records reflect some of these attitudes, often demonstrating the powerlessness experienced by female defendants in their life experiences and choices. Incidents, relationships and interactions in each case speak loudly to the discerning ear.

Case histories from Supreme Court records allow us to glimpse some of the experiences and life conditions endured by women of the Swan River Colony whose lives are not recorded in surviving diaries or letters. These lives were often marked by hard work, physical or emotional abuse by men of all classes and by poverty in a society where the values espoused — respectability, sobriety and respect for others — were a form of social control. Susan Hitchcock had a father, but an illiterate serving girl could retain links with ‘home’ only with the greatest difficulty. Eliza Brown’s father sent her parcels from England; there was no one to send Susan Hitchcock the little luxuries that made her feel good about being a woman, and which she stole from her employer. Like Eliza Brown, Susan Hitchcock mourned for a dead child in 1845. Eliza could write to her father

If any consolation is to be derived from human comfort, we have been offered it from all the neighbourhood and distant parts of the Colony, even strangers interesting themselves in our trial for the loss of a beloved child. 26

There was little comfort for Susan Hitchcock when her stillborn illegitimate baby was born in Fremantle Gaol.

Perhaps, just perhaps, in terms of relationships and actions from a historical perspective, the pleas of Susan, and most of the Marys and Annes, the Elizabeths and the Margarets, the Catherines, Bridget, Belo and others of the fifty-seven were justified:

“Not Guilty”

Presented at the Fremantle Studies Day 21 November, 1999


1. Stirling to Twiss, 26 Jan 1830, Swan River Papers, Folio 4, in JMR Cameron and EKG Jaggard (eds), Western Australian Readings, Churchlands College, Perth, 1977, p 42

2. Cited in CT Stannage, The people of Perth, Perth City Council, Perth, 1979, p 101. However, wealth and standing did not always shield a woman from heartbreak and trials in the colony, as women such as Eliza Shaw and Eliza Brown sometimes found.

3. M Grellier, ‘The Family: Some aspects of its demography and ideology in mid-nineteenth century Western Australia’ in CT Stannage (ed.), A New History of Western Australia, University of Western Australia Press, Nedlands, l981,pp 473-510

4. See M Aveling (ed.), Westralian voices, documents in Western Australian social history, University of Western Australia Press, Nedlands, 1979, pp 304-31 1. Becky Duning’s work reveals life conditions and experiences of these women. See B Duning, ‘Being poor and female in colonial Western Australia’, Hecate vol. III, no 2, 1977; B Duning, ‘Who killed Mrs Ann K...? Towards an understanding of friendlessness in colonial Western Australia’, Hecate, vol IV, no.2, 1978.

5. Perth Gazette, 26 June 1857. For similar sentiments see Inquirer, 31 May 1854; Inquirer, 7 June 1854 .

6. Inquirer, 31 May l854close up

7. Statistical Register of Western Australia, 1896

8. Perth Gazette, 26 June 1857

9. Perth Gazette, 26 June 1857

10. Inquirer, 7 June 1854

11. Inquirer, 15 July 1853

12. Inquirer, 21 September 1853

13. Inquirer, 12 July 1854

14. Inquirer, 31 May 1854

15. Perth Gazette, 26 June 1857

16. G Shenton in a discussion on the introduction of female convicts, Inquirer, 31May 1854

17. Inquirer, 8 December 1852

18. Inquirer, 10 July 1872

19. Colonial Secretary’s correspondence, 1853, Police vol. 274, p151

20. M Sturma, Vice in a vicious society: Crime and convicts in mid-nineteenth century New South Wales, University of Queensland Press, St Lucia, 1983, p 112

21. Supreme Court criminal case file no 809, October 1859

22. Supreme Court criminal case file nos 56, 57, 58, July 1862

23. Supreme Court criminal case file no 265, October 1867

24. M Sturma, Vice in a vicious society, pp 91, 107; D Philips, Crime and authority in Victorian England: The black country 1835-I860, Croom Helm, London, 1977, p 147

25. CT Stannage, ‘Uncovering poverty in Australian history’, Early Days, Journal of the Royal Western Australian Historical Society, vol. 7, no. 8, 1976, p 102

26. P Cowan (ed), A faithful picture: the letters of Eliza and Thomas Brown at York in the Swan River Colony 1841-1

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