Sile, Sean and Seamus
Sile: It is hard to believe in this day and age that some countries still hang people. It
is even hard for me to believe -- as an Irish woman-- that Saorstat Eireann hanged
Annie Walsh back in 1925.
Sean: Why is it that you have no sympathy for her partner Michael Talbot? He was
also hanged and it wasn’t he who instigated the murder of her old man. Neither for
that matter was it Joseph Taylor who instigated the murder in 1903.
Seamus: Perhaps it is best to leave the commentaries on Joseph Taylor and Mary
Daly aside until we deal with 10.a. The Last of the Betagii. In respect of the Walsh;/
Talbot murder, might I in passing refer to the Judge’s summary.
Sean: What about it?
Seamus: It only happens to be, perhaps, the most thorough logical prosecution of
what is regarded as ‘circumstantial evidence’ one could possibly exhibit to the uninitiated.
If you feel you might appreciate 1) the compelling rational nature of circumstantial
reasoning upon apparent random matters of fact as well as over other forms
of reasoning ; 2) the horrific consequences of the legal process that has -- for whatever
reason -- left its adversarial roots and adopted an inquisitorial or umbrella
dimension; and 3) the stark power of the trained, professional or bourgeois mind over
the peasant apprehension of reality -- if you fancy learning about these aspects of legal
procedure, then by all means read Mr Justice O’Byrne’s summation in this case.
That is the case of the AG. v Walsh and Joyce (Galway), 1929, not to be mixed up
with AG. v. Walsh and Talobot (Limerick), 1925.
Judge: Mr. Justice O` Byrne, Co. Galway
Ref.: 234/2599 National Archives
CCA [19291 I.R. 526.
(Sentence further reduced to 10 years and 15 year in august 1929)
Sean: Can you make it available on this WebSite?
Seamus: It’s only an argument. More particularly, the inexorable manner in which
the Judge of Trial marshals the circumstantial facts into an evidentiary logic that is
simply quite remarkable for its clarity and its unassuming power.
Sean: But can you make it available on this WebSite?
Seamus: Perhaps. We’ll see. In the meantime, could we get on with this WebPage
Sile: Before proceeding. Can you say what you mean when you say that proof by circumstantial
reasoning is of greater force sometimes to other evidence. Surely , that
cannot be. It cannot be greater, for example , than direct evidence. I ean, that cannot
be. If I understand you correctly, you are saying that if I , or someone like me, gets up
in a witness box and we swear on the Bible (those of us who are still Christian) that
we saw John Murphy coming out of number 12 Bloomington Street with a candleabra
in his hand -- surely there is no better testimony than that?
Seamus: Not , if you are telling the truth. But ,what if you are lying? Then the whole
process is thrown into chaos,and whatever we like to call justice immediately becomes
its opposite. That, by the way , was the major issue in Maamtrasna. Were the ‘Independent Witnesses’ credible. The State, in the absence of alternative evidence,
has to proceed in good faith. But , with circumstantial evidence, the inferences compelling
a guilty conclusion do not depend upon the variable testimony of anyone’s
senses or anyone’s probity; or if they do, they depend upon verifiable data of fact by
disinterested parties. Read the Summary?
Sean: Where were we?
Sile: I was saying that I cannot believe the cruelties of this world sometimes -- and I
do in fact sympathize with the hanging of Michael Talbot in 1925. Indeed, when you
look at the little lives of these people, it makes one wonder how on earth the human
race travelled from Kyteler to where we are now, from the burning of churchdefined
witches, to pardoning police-murderers under the Good Friday Agreement
(NI). I suppose the great bridge in the leap forward for Norman-cum-Reformation
England, that is, from Kyteler to corrupting the King and his family (Treason), --
the wrong against God and the Pope was now punished by the wrong against the
King. Was this -- believe it or not -- the great leap forward? And we , who never had
a High King strong enough to kick anyone out of this country, were dragooned by it.
Sean: The Pope is still resisting the rise of the secular state.
Sile: Still begging up for his supper, is he?
Seamus: But the nation state was more a product of the late middle ages than the
early middle ages, was it not?
Sile: Nevertheless , throughout the feudal system the idea of treason was the breach
of allegiance to one’s overlord. I suppose one had to have the overlord system of vassalage
and lordship before treason could emerge as a secular crime. Before Crimes
Against the Faith could become transformed into Crimes Against The State , one
naturally had to have a state, a nation state in being. And power , as you have so often
claimed, had to be won from the Pope and by the King. What other way was there to
go? And it is the bones of this argument that Benedict XVI is trying to rekindle again
-- even as Europe reclines in the lassitude of its own remarkably scientific advances.
The ancient Gaels were spared these decision.
Sean: The ancient Gaels were as dead as doornails; that’s why they were -- what did
you say -- ‘spared these decisions.’ In any event , they never really had a High King
in the same way that the Romans had Emperors or the Normans had lords. And , of
course, they never have a Treason Act, if they never had a nation state -- an inevitable
omission, which, one suspects , was part of their whole structural problem to begin with. They were a bit like Sioux Indians talking about the merits or demerits of the
manumission of black slaves. It was never within their compass. Do you not agree?
Seamus: I do, with this proviso. If the Gaels ever had a High King in Ruairi O Connor,
the Pope undermined his High Kingship totally by awarding High Kingship and
such titles to the Normans -- and awarding it, let me add, long before he decided to
give Ireland to the Angevin King. It is this connection with the Normans, from their
respective campaigns in Souther Italy that really needs to be examined, in order to
comprehend what compelled the Papacy to act in its own interests above all others.
Even in those days the Whore of Babylon lusted after endless Lebensraum in the
name of Christian expansion.
Sile: The Normans were certainly the best bet at the time, if you wanted to be sure
that your rents were collected on time -- and the Popes always wanted their rents collected
on time -- the Normans were your best bet. Put it another way, how could the
Popes trust the MacMurrough Kavanaghs to collect their monies from Norman England,
Scotland and Wales, and then hand it over to their landlord without resorting to
a brown envelope or two? It just wasn’t on! In any event the Normans, who were
once pagan like the Irish, definitely had a few more tricks up their sleeves -- and I
don’t just mean Kite Shields or Long Bows. They were a bit like the Romans before
them and the Americans now: and the Popes always knew who to cuddle up to a rugged
lover when necessary. The Normans were geniuses at warfare, architecture, food,
and government. Even in Ireland , the Pope and the King used to have the Knights
Templars out in Clontarf and the Hospitallers out in Kilmainham doing the same rentcollection
while, at the same time, protecting the Church/State’s assets. Either the
rent was paid or the body bags mounted. If Peter’s Pence weren’t paid , the guys with
the long red pokers and a flare for inquisitional means and ends would be sent for.
And the same went for monarchs. Even poor King John had to pay up , and when he
couldn’t the Pope cut him off like a dead fish. If it wasn’t for his barons, the Pope
would have robbed England blind. That’s why the bad kings who build he nations
states were really progressive.
These days the Church does it diplomatically -- through the Opus Dei Irish, the
modest, butter-wouldn’t-melt-in-my-loins brigade. Some people are even beginning
to listen to Avro Manhattan on how much these poor popes own of this naughty materialist
The good news is that the Opus doesn’t just collect the rents off the Irish , they have
infiltrated the Australians, the Canadians and the Americans also:
While I am not selling Chick publications , one should perhaps have a look at it:
Seamus: So, what about Petty Traitors?
Sile: As you can see, the book has three simple sections, an historical outline, a twentieth
century analyses, and considerable Appendix dealing with a description of each
case that occurred in Ireland and that is known to the author. Chapters 1 to IV inclusive
try to sketch an Irish historical perspective, and chapters V to VIV , deal exclusively
with twentieth century female cases attracting a capital sentence. The rest is
self-explanatory, I should think.
Sean: Chapter VI on Mary, Annie and Annie. That’s about the execution cases , I take
Sile: Of course. The are small in number but too important not to devote a chapter to.
Sean: And the Gentle Rain?
Sile: Mercy in the system, as we poke it out.
Sean: Right. Well, maybe we should retread our steps and revert to the notion of
Treason and Petty Traitors. What are Petty Traitors supposed to be?
Sile: If we look at treason first, we see that eventually, the whole criminal gamut revolved
around the hierarchy of Treason, Felony, Misdemeanors and Offenses. In this
schema, treason was not only the worst conceivable crime, but being concerned with
the new status of Nation-State-Kingship became a crime apart. It is by following
High Kingship (and the Nation State) that we find the source of capital punishment --
which is, in effect, the secular side of burning heretics. Just as no one but a Pope --
that is, specifically, a man who imagines (and has the power to prove that) he has no
peers in the realm he orders, a potentate who is monarch of all he surveys, including
lesser monarchs -- can dream of laying down the law for this world as well as the
next -- only such a person can say ‘this is witchcraft’ , ‘that is heresy’: and those who are thought to be witches or heretics ‘shall be investigated and tortured by my
Franciscan- and Dominican-monks and, if found guilty before God, shall be burned
to death by those appointed by us to do so.’
This social scheme of criminal things passed in the late middle ages from the holy
Roman Empire into the Nation States of Europe, wherein you now have an array of
secular Monarchs, men who came up the hard way and who -- replacing some Papal
powers -- became monarchs of all they surveyed within their respectively defined
kingdoms . This new European Monarch is a man who has to ignore, or challenge
and destroy the Pope’s claims to hegemony over his territory. Towards this end, the
new Monarch has an eye to breaking away from the old Crusader alignments and ,
where necessary, hiving themselves away from the Pope’s Templars and Hospitallers.
This new man, this new semi-secular Monarch, now says: ‘this is treason against
me and my family’, ‘that is Sedition within and against my Realm.’ ‘Within my
realm, all who commit treason and sedition’ shall be ‘hanged, drawn and quartered.’
At this time, then, and as already aforesaid, Crimes Against the Faith increasingly
become Crimes Against the State. The legal process develops away from the Penitentials,
the Confessional, the crusades and the burning of pagans and heretics. The advocate
Inquisitors now become the Nation -State’s Lawyers (King’s and Queen’s
Council, and if you live in the little Republic of Ireland, Junior and Senior Counsel
who are still hard to distinguish from Franciscans, Dominican and all kinds of
hangers-on). Power , in other words ,has passed at this period from the Pope to the
King: but not like Charlemagne to a king that is crowned by the Pope, but to a King
withal that is a King despite the Pope.
Sean: But when ‘withal’ did all this happen ‘withal’ ?
Sile: Throughout history, clodhopper!
Sean: But when in history, Master. -- Or should I say, Mistress?
Sile: Don’t you dare! Mostly during the later middle ages. In 1351, you may, for
example, recall that during the reign of Edward 111 (1327-77), the barons had reason
to fear the arbitrariness of the King’s judges, in response to which the Statute of
Treasons brought treason under seven defined categories. According to the first of
these, it was treason ‘to compass or imagine the death of our lord the King or our
lady his Queen or of their eldest son and heir’. Thereafter , the other categories spoke
of violating ‘the King’s companion’(wife), levying war against the King, assisting the
King’s enemies, or slaying the King’s ‘chancellor, treasurer’ or justices.
Seamus: So, originally the Petty Traitors were those who betrayed the trust given
them by the feudal notions of Kingship. It then spread to those of lese majeste but
still within the cultural bind, between those who were otherwise prized of some
spectrum of royal or other power, aimed at punishing the betrayal of entrusted
power by subalterns. What was earlier conceived as the corruption of the blood of
the Prince was now mediated to any whose power was subverted by their inferior
vassals, especially husbands and wives. Consequently, there was High Treason and
Small or Petit Treason, the lesser being punished pari passu with the greater.
Punishments were therefore differential and , as Wikipedia interestingly points out,
petty treason took cognizance of the benefit of clergy, which was not allowed to traitors
proper. The priesteen sneaked in under the canvas yet again to claim his privilege
as l’Ancien Regime!
Sile: Apparently a bit of Church Latin -- then , as now -- went a long way. If you
could recite the ‘neck verse’ ( and say misserere mei deus) you had an almost automatic
defense practically to anything. And , if you don’t believe me, have a look at
the manner the criminal justice system in Ireland was skewed to meet the Church’s
requirements in cases of clerical pedophelia. While they were winding down criminology
in DIT , they were opening its episcopal counterpart in UCD, the Bishop’s
college of greater majeste. If it wasn’t for people like Bruce Arnold, we might as well
go back to the time of Kyteler to get near anything approximating a secular or a
sincere critical voice against depravity.
The ‘neck verse’ , then as now, was always an excuse for crime and depravity in Ireland.
It is also reminiscent of an earlier period of the Christian conquest, when the
criminal justice system of the Christian conquistadors actually provided the defense
of ‘Hibernicus.’ It wasn’t so new at the time, for the holy Romans, as we have already
seen in the Statutes of Kilkenny, had already described the whole nation as ‘heretical
pagans’ and , according to Cannon Law , deserved the same fate as a witch or
a subject of the Inquisition. That meant that they could use the natives like a pinicushion
for the love of Jesus, and then they mercifully burned them to death. In the
same vein, therefore, the Christian Normans ,when they settled down to their big
houses in Ireland and started on the long road to becoming respectable Catholic
English-Irishmen, they would plead ‘Hibernicus’. If they chopped off a few native
heads, they went to court and spouted ‘Hibernicus’, meaning, no crime was committed.
The only time that the ‘English became more Irish than the Irish themselves’,was when they preferred to plead Irish law. Since Gaelic or Brehon Law never provided
the death penalty but only the Eric, the men of the middle nation could kill as
they pleased. The lack of a death sentence acted yet again against Gaelic interests.
In due course, however, the Gaels adopted the same measures as the church had
taught the Normans, picked up the axe from the Northmen, the long bow from the
Norman, and capital punishment and imprisonment from the followers of holy Jesus.
Seamus: For a useful site on such matters as Punishments between the 17th and 19th
centuries, might I mention :
Sile: You may mention that site. But for the earlier period , which I am here concerned
with, there is no way out of reading the heavies: Binchy, O Currain, MacNeill,
McKone, Breatnach, Patterson, Maine, etc. etc., and a hundred others as already
outlined in WebSite 2 .
Sean: Can you not suggest an easier reading list. Authors like Binchy are life-studies
rather than a good read. While I know the subject is not easy, is there no simpler
way of getting to the bottom of things?
Sile; If Irish anthropolog was that easy, then there would be no need for scholarship --
and there would be less people talking to themselves. You could , of course, read the
books mentioned on this WebSite when -- and if -- they are completed.
Sean: Is that the best you can do on this topic?
Sile: OK. The above authors notwithstanding, for one of the most direct contacts with
the ancient Irish world as well as a very informative way of thinking about that
world, let me simply recommend (again) two works by female authors and , if possible,
that the two books be read in conjunction with each other: From Kings to Warlords
(the changing political structure of Gaelic Ireland in the later middle ages) by
Katharine Simms: (Studies in Celtic History, the Boydell Press, 1987) and The Social
Determination of Knowledge by Judith Willer, Prentice-Hall, Inc., New Jersey, 1971)
Seamus: You are aware that I have already recommended these authors?
Sile: Yes, but not in the emphatic woman-to-woman way I have now recommended
them. They are brillo and -- maybe its a woman’s thingy, but they get to the meat
much faster than the boys! But they are more to be studied than read.
Seamus; As you please.
Sean: Are we now finished with this topic?
Sile: Certainly not. This so-called benefit of clergy was, by the way, one of the most
significant sources of bias in favour of ‘criminous clerks’ for which the Pope and the
Princes fought for centuries and for which, incidentally, Thomas Becket gave his life.
It is important, because in its origins it points up the unimaginable fact that we have
been elsewhere at pains to emphasize. Before the 12th century -- difficult though it
may be to comprehend fully -- there were no nation states or , indeed, criminal justice
systems, as we known them today. The Church ran the courts as they ran the multinational
and multi-purposeful pre-mercantilist industrial monasteries. When they took
over from the Roman Empire ,they invaded every aspect of it and claimed every social
nook and cranny of governmental ethics from peeing to procreation. If you don’t
believe it, have a look at John Cooney’s reference to the sale of Tampons in Ireland in
1944, when the Church was equally concerned with the plight of the Nazis and indifferent
to the holocaust. In his work on John Charles McQuaid (Ruler of Catholic ireland),
McQuaid more to less told the government what to do with their Tampons. I
don’t think women had a say in the matter -- and, as we know, a government that
could ratline Nazis were not going to have the free sale of Tampax in their jurisdiction.
Sean: I accept that they were horrible times for everyone!
Sile: Now, don’t drown my epiphan-tistic flight with your meely-mouthed off-thepulpit
generalizations about the ‘times’ that were in it. Please! If that is all you have
to say, please, please shut up!
Sean: O, I didn’t know you took these things so personally...!
Sile:Whose Tampons are they anyway! And if you mention Prince Charles, I shall....
Seamus: Easy, Eeeeeaaasy, pardners ! Such excitement over -- over what? As for you
, Sean, it serves you right! -- Now, may we proceed anew and finish this goddamn
webpage on Petty Traitors...?
Sile: Throughout the later middle ages the several courts began to be organized by
the King’s Seneschals, who with the early notion of the emerging nation state muscled
in on the bishops. For this explosion of the most superstitious aspects of the
Mediterranean myth we must thank the naked fact of war, greed and the installation
of power for longer and longer terms. We were well on our way to a Capo De Tutti
Capo -- and the Pope with the Christian fingers on the Radian Bomb is still in contention
with Bertie, Blair and Bush. Sometimes we can see things better by looking
back than we can either contemporaneously or by looking forward. As I understand
it, this, in essence, is the Joycean theory of history; not so much that you can see to-day by studying yesterday, but that you can see yesterday today. It’s brillo... It’s worthy
of Flan O’Brien and the greatest of the greats. It is Freud backwards, Mozart inverted,
Ulysses for the masses. Just look at Benedict XVI and Bertie-Blair-Bush to
see Caesar in action with a cross and a crucifix. If we have an eye for history and
imagination, now is the time to put them on. We live in a wonderful country, a symphonic
museum to all that has been, all that is foregone: a country that has never
moved forward one inch beyond the Mote and Bailey of the Norman Castle-come-
Cathedral. We are an old museum piece of Europe’s past; we are the Mediterranean
Myth! -- and the saddest thing is ,we have so few exhibits!
By means of territorial wars, the Kings of Europe needed increasingly to tax their
subjects. This put the Pope and his clergy on the spot; they were either of this world
or they weren’t . We, in Ireland ,have always known that they were and they weren’t
-- or , more correctly, they wanted jam on it in both worlds: and that, of course, is
what they got in Ireland. The downside is what we, the people got as a result: dilapidated
Castles and splendid Cathedrals built, it seems , for the most recent Polish immigrants.
Of course, the Popes objected to being forced to live in one world at a time, but a
King could go nowhere if he didn’t command his people. And between the right to
tax the clergy as well as the right to try and punish them for crimes committed by
them, lay the bones of a struggle between the Popes and the Kings that lasted right
down to the Reformation. (One occasionally needs to remind oneself, if not already
reminded by the Ferns escapade, that Ireland is a pre-Reformation country; it has little
by way of a secular Ego, and it is consequently somewhat short of courage when
it comes to punishing clergymen for robbing the family silver (which they do habitually)
or menacing the staff or abusing the children.
All one has to do is to remember that when the Papacy was captured by the French
and stuck in Avignon, the rest of Europe got a bit jealous. I mean, these days , they
can have the Pope, Vatican and all. Even Mussolini didn’t really want it. But that’s
today; not when the Pope had the dogs of war more visibly on a leash -- at a time
when the British wanted its French territories secure,and it wasn’t too happy with the
Papacy for allowing itself to go all French for decades: for a Pope in the bush of Avignon
was worth a lot of feofs, knights, monies and supports from all kinds of places.
So, the British and the French, if they were going to fight each other (100 years war)
needed to tax the clergy. The clergy, when they were finished moaning about the poor
, always seemed to be more attached to geld than anyone . They simply had to be
taxed ,and they simply had to be stopped hoarding monies out of the the criminal andcivil courts. And this is what stoked the greatest and most enduring tensions between
successive Popes and successive Kings throughout Europe.
For the classical demonstration of this dual jurisdiction, see WebPage 2 for Alice,
the Irish Witch. By a long process of feuds between the Norman Kings and the
Popes, the Normans increasingly drove out the religious courts in order to make
space for the secular ones that we frequent today. But, again, in Catholic countries
like the Republic of Ireland, they have not gone away.
Sean: But surely they are restrained?
Sile: By whom restrained?
Sean: I mean ; restrained in their jurisdiction.
Sile: No comment. There is , in my opinion, no substitute for a real honest-togoodness-
hang-the-Pope-English or German Reformation. Why should they get all
the good revolutions, while we -- the Fenians and the IRA -- keep shooting the
wrong people in order to go back in time!
Seamus: But even if he killed his friend Becket on an altar, Henry 11 still had to
make his Amende Honourble!
Sile: Well, if by that , you mean that the Angevin King had to allow himself to be
whipped by 80 monks, ostensibly conceding point-power in this respect to the
Church , but not in respect of High Treason and Arson, then OK. But it was all religious
melodrama , was it not? Even then the Roman Church-and-Norman State was
playing the best Christian theatre in town. Towards what end? In order, no doubt, for
either , each and both of them , to keep their citizens in good serf- like working order.
For the serfs to work on the inner space, the outer space of social control had to
appear to be divinely made. And who was to say when something was God-like
moreso than the Pope of Rome. Wasn’t it ‘upon this rock’ that he gave his greatest
performances, and even built himself a church. Indeed, the Church and the State began
to scratch each other’s back so much that you might imagine them to be Irish,
newly Emancipated , and ready ,willing and able, to put everyone else in Catholic
chains. And so it followed that lots of other crimes were taken over by the secular
and emerging state, until the Nation State itself in the guise of the undisputed Monarch
dominated smart Europe.
After the Renaissance and the Reformation this state of secular affairs became a faitaccompli everywhere nations sought their own unification. Many of them suffered
tremendously for this ambition. The Irish are still trying hard. But for most post-
Reformation European nation states, the main -- but certainly not the last -- interfer-ence from their arch-enemy, the Papacy, was thwarted by the eventual development
of Parliament, democracy, the criminal justice system and the Welfare State, as we
know them today.
In this context , does anyone remember the Uncrowned King of Ireland, Charles Stuart
Parnell and the Bishops and the Party that brought him down? Does anyone remember
Noel Browne and the Mother-and-Child-Scheme and the role of the Irish
Bishops? God love us , aren’t we the idiotically led people!
Seamus: You are beginning to sound more and more like me. Can we stay with Petty
Treason? I want to go home and watch Coronation Street.
Sile: Far be it from me…! Petty Treason really came to mean wives murdering husbands
but by 1828 it ceased to distinguish itself as an aggravated form of murder.
Nevertheless, as we have shown elsewhere, most Irishwomen in the nineteenth century
, when they murdered, they murdered their husbands. And that’s why this study
is called Petty Traitors. Women had come a long way. Instead of being burned at the
stake for shafting their husbands, they were now mercifully hanged instead. There is
no beating penological progress, for which and more see:
Seamus: By the way, a 1939 Judges’ committee -- perhaps the main attempt at reform
in the 1930s and ‘40s -- also recommended the introduction of a Treason Act. As
you know -- at that time, ‘we’ hadn’t any!
Sile: I was just coming to that.
Seamus: Well, don’t you find it at all curious? In ‘us’ the world has a society that introduces
a Treason Act and an Infanticide Act simultaneously-- both being firsts, the
one imposing a death penalty on the traitors of the newly defined herd, and the other,
waving the death penalty in respect of the despoilers of the old community, herded, as
of old, out of polygamy and into the holy family.
Sile: From unforgivable Gaelic clan to forgivable Roman infanticide in one-leap of a
full Reich by way of Dry-Gulch Junction!
Seamus: Surely this phenomenon must tell us something about ourselves?
Sean: Like what?
Seamus: When your Treason Act comes so late in the day, it appears more like a
status symbol than an object of inquisitorial manner of deterrence. It’ s a bit like a
traffic jam. If you don’t have traffic jams, you can’t tell the world that you have a
driving Celtic Tiger. Look what traffic jams have done to the Asian Tiger: they are
killing themselves; but the International community want them to continue doing so.
I went to Vietnam recently -- to cry for my youth and what the Christian Americans
had done there fado fado. I discovered that apart from their Catholic Churches ,they
have some fourteen million hondas blasting off at the same time, and they all happen
to gather under my window.
Sean: What’s that got to do with Irish Treason in the thirties?
Seamus: If you don’t have a Treason Act, it suggests that you don’t have something
worth stealing. And who -- apart from the Holy Romans -- could do anything with
the Irish? Alternatively, what do we have -- apart from rabid religion -- that sensible
people would want to steal? Can you imagine? ... I know what you are going to
say.... Please , don’t say it; don’t think it?
Sile: I was thinking that if ‘Treason’ implies that we have something that could be
stolen, then , maybe, Treason isn’t as bad as we were led to believe. There are a lot
of things in Ireland that I wish people would steal and , perhaps, take them a little further
out into the Atlantic -- never to return.
Seamus: I asked you not to say it!! Now, can we continue in a more serious vein.
Seamus: I am suggesting that a country’s first Treason Act has great significance. I
suspect that the last time a ‘native’ body called for protection for the whole island
was probably in 1317 with the Remonstrance of the Gaelic Chieftains. And before
that, there never was a nation that could draft a Treason Act, for it would be redundant
to a clan-comprising society. Historically speaking, Laudabiliter (1155) was
more or less the first real Act of Union between Ireland and emerging Normanised
Catholic England. After this ‘treason’ will gradually and logically begin to replace
‘heresy’, just as the Tudors will replace the need for a crusade against Ireland. The last expression of any possible Gaelic unity or sovereignty is in 1317, when the Gaels
appeal to whom? To the Pope! For what? For relief from Laudabiliter. But even at
this stage, the Gaels are on their knees, and they know it. The implicit treachery of
Dermot MacMurrough Kananagh (and , indeed, the thoughtlessness of St.Malachy in
running at the mouth to St. Bernard about Gaelic weaknesses) played into the hands
of the bigger players like the Pope. In any event, after 1317, the Gaelic game was up ;
no amount of Treason Acts -- even if they could enact them from a non-existing central
Government and a non-efficiently installed High Kingship -- could save them
from those sheep-like monks who had monasticised the whole island and had prostrate
themselves and the country behind the great white father in Rome. Even before
1317 you are talking English Catholic all the way to the second Act of Union of 1800 -- which wasn’t native. What more need one say about Irish history?
So what now does this 1939- discussion about a Treason Act and an Infancticide Act
Sile: Well, your first Treason Act tells you that you never had a society requiring external
relations before, -- in other words, that you never had an ‘ego’, you never had
a ‘you’ before. It also tells you that hitherto you have learned how to have someone
else’s ego, someone else’s motive powers in contradistinction to your own -- in this
case the ego possessed has had to be limned from external relations, And since Ireland
has only known two external relations, the one from Holy Rome and the other
from secular Britain, it has had to be either of these, or both combined in some mad
mix. Historically , we know how it all happened; the religious was the first to destroy
pagan Ireland and it was they through their infinite monks (monastic, militant and
mendicant) that replaced the Gaels with the Irish. And from Parnell to Bertie Ahern,
we know who had been fighting whom and who owns the Irish ego.
By the same token, the first Infantide Act tells us that the religious hegemony
adopted in the Treason Act had to yield to the more real epistemology of the secular
world in order to continue to appear remotely credible. The procrastination in abolishing
the death penalty was Roman in a way the same way as the denial of the need
for an Infanticide Act, but whereas in the case of the former the delay could be contained,
the delay in the latter would have revealed the atavistic nature of the Irish
Church/State. They would surely have continued the practice of hanging women for
disposing of their babies if they could. But the British and World secular opinion
would not allow it. So , they kept the capital sentence alive and, at the same time,
reluctantly ushered in the Infanticide Act. Unsurprisingly, after all these centuries,
Ireland yet again got the worst of both worlds, the Pre-Reformation religious Roman
world and the Post-Reformation secular British one.
As the Irish over the centuries have been compelled through conquest to assimilate
someone else’s ego -- in this case an ego limned in Holy Rome’s unreal abstractions ,
the Infanticide Act demonstrates its preparedness to compromise. But the compromise
for the ‘saints and scholars’ is great. Prior to the Infanticide Act, the mother who
killed her offspring had been for centuries sentenced to death. Why? Because by killing
her offspring she unilaterally threatened the Holy Family also, as well as threatening
the divine male practice of primogeniture. It also meant that she killed the
very same Holy Family that supplied the celibate Church with its requisite cadres,
for the crusades as well as for the spread of the faith: for the celibate church cannot
exist without new blood. And women are the main providers of each new generation.
Therefore their sexual and familial organization is a matter of prime importance to
those who , to survive, must control Irish fertility! It is a vicious circle, isn’t it?
Births, Marriages, and (Reproduction before) Death.
But when one puts both Acts together (Treason and Infanticide) it can mean only one
Sean: Which is?
Seamus: That’s my question to you.
Sile: I suppose it means that while Rome owns the Irish, the Brits have the real grasp
on reality. It demonstrates that the secular is infinitely more moral than the religious.
It also demonstrates that the history of protest -- the making of Parliament, of democracy,
of choice and of the celebration of pleasure and the greater production and
distribution of wealth -- have all been progressive forces. Such historical movements
have been -- and are -- more morally endowed than the medieval religious mind
could ever pretend to be.
Sean: I think you view the RC Church as being very negative to women.
Sile: Well , shiver my timbers, how did you come by that awesome idea! Was it
something I actually said?
Sean: No, but it is the way you said it.
Sile: How do you interpret the conjunction of a first Treason Act cheek-by-jowl
alongside a first Infanticide Act?
Sean: Truth to tell, I have never really thought about it.
Sile: If you read enough versions of the Catholic Encyclopedia, you can be sure that
however much they wish to change their tune from the old glue of the chalk woman,
they still can’t quite extricate themselves from their medieval stickiness. Consequently,
they still hang to to such chestnuts as "The man . . . is the image and glory of
god; but the woman is the glory of the man" (1 Corinthians 11:7).
Sean: Maybe you dislike the Church because it understands women.
Sile: Understands women! The Church’s fascination with woman never extended
beyond the fact that we could reproduce when we had no say in the matter. Indeed,
we reproduced to fill their universal cadres; for , as you know, the highest red Cardinal
is as barren as a pig in clamps. Now that us women have a say in the matter and
manner of reproduction , we don’t particularly wish to produce to the sound of the
Angelus on RTE or the Sound of the Bells of Shannon. We prefer to drink gins-andtonics
in pubs anonymous. So, now the Church’s fascination has turned to what?
How to enlist the babies from the third world for their next cuckoo conquests.
Sean: You must be joking!
Sile: Are you trying to say that the RC church hasn’t always loved women of chalk,
in equal measure as it despised actual women of flesh, blood and desire unlimited .
Women of chalk are so easy to manage, to put in their place. In this way, they never
move or answer back. Religious men treat women the same way children abuse their
mother. To monkish men, women are an eternal heresy: a foreign country with whom
no contact is desirable, no concordat possible. Unforgivably, women actually embrace
life, this life; they laugh without guilt and swagger without cause. They balance
so many contradictory parts in unison, parts that move in unimaginable counterpoint
with the conjunct motion of their body parts; parts that defy grace as well as gravity;
and other parts, in contrast to monkish pretension, that constitute the perfect impudence.
Women have even got parts that conceal the secrets of the world. They are
what men are not, and in their common landscape appear to lure and snare and beguile
the monkish mind. They are impiety personified; they know no primal scream.
They are born in the hush and shade of the divine feminine, whither men, all men,
especially all monkish men, all celibate Roman monkish men, come as if to a manger
in Bethlehem to point out the primal wrong, to lay bare the ultimate blame. Born bawling into life between the bloody pillars of their legs , they want us to die in the
repose of our arms. How better then to consummate man’s religious little frolic than
by denying its testronal parts and by condemning the other sex to heresy. The best
thing that ever happened, happened in Paradise. But men had to make their myths in
order to assert their dominance over us, themselves and the world. They concocted
the Fall and convinced themselves that it was better throughout life’s long endurance
to hold their pricks in their hands , than to face woman folk. Wankers! They are all so
negative. Put them in black. Black is where they belong. The FAll was what they deserved;
we deserve neither them, nor their myths. Personally, I think all these religious
men need a good fuck. But in the meantime they prefer to whip themselves. And
I don’t even mind that; it’s when they want to whip the rest of us, that one should be
concerned. The RC Church runs an old folks home for those mentally disturbed people
who reverse the natural order of the world and call it religion. They do this because
otherwise , they would decay and die. They are life’s unwanted waste looking
at the stars.
Sean: Is there nothing right with them?
Sile: Dante had it right. Hell is for those who could but wouldn’t enjoy life. And I
don’t mind the unbalanced Holy Romans being put in some pit or other, but I resent
them bringing my country and especially my friends and family with them.
Seamus: Is all this in preparation of the other works, the Petty Traitors and the work
on Infanticide, or does it belong here at all?
Sile: We are talking about
And if you recall the Miss D case, we can demonstrate it yet again. Moreover, while
the Church’s ego had dominated the Irish as it had annihilated the Gaels, it elided the
confrontation posed by the current external secular relations which denounced past
barbarities, and showed how a secular state could spare the life of the mother, even
when she kills her infant offspring. Who were the people who most resisted the Infanticide
Act? Guess, go on. Guess. Of course you’re right. Who else would prefer
chalk to human flesh, but those who lived off words and sin and who never let the
word be made flesh. Ooooops! That’s toooooo sexy for us ol’ Romans! And there’s no
Roman older than a holy Irish Roman, is there?
= = =
||Mrs. HIBERNICUS ..........................................................
||THE 16th AND 17th CENTURIES ...............................
||THE 18TH CENTURY ....................................................
||THE 19TH CENTURY ....................................................
||THE 20TH CENTURY- OVERVIEW ............................
||PUTTING WOMEN IN THEIR PLACE .........................
||MARY, ANNIE AND ANNIE............................................
||APPEALS AND PETITIONS .........................................
||A (13 cases) (52)
||SELECT BIBLIOGRAPHY ............................................
A Short History
On the face of it, there is little doubt but the Irish male has been historically much
more criminogenic than his female counterpart -- at least as far as murder is concerned.
1 As we have already seen,2 to meet this incidence of male murder Irish
society felt that for every female capitally sentenced, more than three males were
similarly sentenced.3 This meant in effect that for each of the two twentieth-century
females executed, twenty-three males were also executed. 4 This -- very briefly --
gives us a picture of the measures required to maintain the prevailing skewed sense
of social control, the differential rates in the allocation of the death penalty being but
one requirement in the gearings of such control . 5
In comparing these sentences – and given the egalitarian claims made on behalf
of the law and incorporated into the 1936 constitution, (Bunreacht na h-Eireann),
e.g. equality of citizens before the law, and no one to be ‘above the law’) 6 -- we find
an obvious if stunning bias against males. If we look at a sample of such sentences,
say for the 40s and early 50s (Table VIV.I), we see with whatcircumspection they
must have impressed a bewildered public, 7 and yet, with very few exceptions, no
memorable voices of protest were raised against the authorities either on a party political
basis or otherwise. 8 Why this has been the case, perhaps, was due as much to
the deep social and religious context in which murder and capital sentences as to the
military activities of the IRA.
Death Sentences Reviewed by Government in Period
from 1st January, 1944 to 10th March, 1953
|Date of Review by Government
||Name of Prisoner
||Rec. to Mercy by Jury
||Reprieved or Executed
||James H. Lehman
||Daniel J. Duff
+ = Restricted Access or not available until 2020
* = Tried by Special Criminal Court
** = Government decided on 9/3/51 NOT to advise President to commute sentence;
following reconsideration of case on 11/12.5.51 President advised to commute
*** = Government decided on 10/3/53 NOT to advise President to commute
sentence ; following a subsequent appeal to Court of Criminal Appeal, prisoner was
found “insane and unfit to plead” in Central Criminal Court on 14.05.1953.
On the September 2 1942 , for example, Thomas Joseph Williams (19) was
hanged in Belfast for the (IRA) murder of Constable Patrick Murphy on Easter Sunday
1942. Two years later in Saorstat Eireann Charlie Kerins (26), Deputy Chief of
Staff of the IRA was also executed for shooting and killing Detective Sergeant Denis
O’Brien. At the time, he was closely acquainted with Sean Mac Bride, Barrister, ardent
Catholic, militant Republican and Minister for Foreign Affairs in the 1948-51
Coalition Government. The climate and aura of ‘sacrifice’ was ever present in the
Republic and, notwithstanding the orientation of Cumann na mBan, Maud Gonne,
Maire Commerford, and a host of female Republicans, who tried to focus upon republican prison conditions, the idea of being hanged for a military offence tended
to be exclusively male. Indeed, if we look at the National Archive’s references in the
case of the execution of Charles Kerins, we find that most of the petitions for a reprieve
of sentence are almost exclusively female.
The gender-bias favouring females over males is best understood as part of an
overall social ensemble – an ensemble that has had long-term beneficial effects on
what we have chosen to call the ‘mercy miracle.’ 21 And , yet, without the heavily biased
terms against the male (or, what is the same thing, in favour of the female), it is
doubtful if the armoury of male repression and biblical deterrence could ever have
been penetrated. 22 The disproportionate number of female sentences commuted to
penal servitude for life became in some ways the Achilles’ heel in retributive and deterrent
theories. 23 In this respect it is a salutary to realise -- as we shall demonstrate
later -- that the social interest is best served by the ensemble of familial responses
rather than individual ones. The very complicated interactions which direct the social
propensity to punish men, women and children differentially, rather than by any
single-gender or familial response was confronted by the crime of Infanticide. 24
Before 1922 the commutation of a capital sentence meant for the person commuted
had a sentence of Penal Servitude (PS) for life substituted for the death penalty.
A sentence so commuted could not be further reduced or interfered with and any
application or petition to that effect were to be avoided. The reasoning behind this
practice was firmly based on the uniqueness of the petition itself. Because the reprieve
was a once-off event, one could not be permitted to re-apply by way of another
petition for a further reduction in the terms of penal servitude. 25 At least that was the
theory before Saorstat Eireann came into existence, when the Irish got their hands on
British Constitutional law. 26 (See Vol. 1 of this series)
Although the number of executions decreased generally, the gender bias in male
executions persisted. In this light , it is pertinent at this point to ask if this bias applied
quantitatively as well as qualitatively. In other words, was the gender bias
which was operative in cases of execution, carried over into the terms of imprisonment
imposed on men as opposed to women?
Such a concern leads us to an adjacent concern of no less importance respecting
the differential between female sentences. Since the new offence of Infanticide drove
a perceptive wedge between females charged, on the one hand, with the murder of
adults generally and , on the other hand, with the murder, under special circumstances,
of newly born infants, it is is pertinent to ask how this affected the sentencing patterns for homicide. Was there a differential between women murderers as opposed
to those found guilty of infanticide? If so, how was the differential realised in
terms of custodial sentences. To formulate these concerns more fully, it is best if we
address the following questions:
a. What did ‘Penal Servitude for Life’ mean in practical terms?27
b. Did women do longer or shorter time than men? And
c. What, if anything, was the difference in custodial terms between a female
sentenced for murder and one sentenced for infanticide?
a. “Penal Servitude for Life”
A rare archival table (Table VIV.II) suitably amended and extended,28 gives us an
account by way of sample of several of the cases we have already dealt with.
Overall the range of sentence varied dramatically between 3 years and 18 years
8 months -- a variation which must reflect the uncertainty of penological principles
and one which must have had the effect of undermining faith in the judicial sentence.
29 But what the judge of trial says is one thing; what the prison governor does seems
to be quite another: and it appears that it is the governor who counts when it comes to
determining the duration of custodial time served. 30
If we include Tomashina Purser’s estimated sentence and exclude Jane Reynolds,
who died in prison, and ignore the time spent by M.A.B. Daly in a convent, the
average duration served by those females convicts sampled was 10 years and 6/7
months. Compared with this average, the long terms of detention inflicted upon Hannah
O’Leary and Hannah Flynn can be appreciated. Two interrelated reasons are
mentioned in this respect. Table VIV.11, after some additions and modifications, was
drawn up by civil servants. The civil servants stated that these internees ‘were not
considered (as) quite normal.’ While there is little to inform us as to why this was the
case or how normality was assessed at the time, one can only assume that Hannah
O’leary and Hannah Flynn showed evident signs of distress while serving their time.
Given the long religious resistence to anything approximating a social or a secular ‘science’ in Ireland, one can only imagine what it was like to spend almost twenty
years in an Irish prison. Secondly, despite provisions being widely made for ‘political
prisoners’ , there was little or nothing available by way of rehabilitation for ‘ordinary
prisoners.’ In the event of being released , the plain fact of the matter was that
Hannah O’Leary and Hannah Flynn had nowhere to go. Obviously, this obstacle of social isolation became worse as the years wore on, so that the longer they served ,
the less likely it was that a relative or friend would reclaim them from prison. 31 A
note of exasperation is detectable from the civil servants’ footnote, conceding that ‘The Good Shepherd Nuns finally agreed to take them.’
LENGTH OF SENTENCE SERVED BY SAMPLE OF FEMALE
CONVICTS SERVING LIFE SENTENCES FOR MURDER
||Years of Penal S.
||Length of Sentence Served
|1. Agnes Black
|2. Sarah A. Pearson
|3. Jane Reynolds **
(and Angelo di Lucia)
|4. Tomashina Purser **
(and Richard Purser)
|5. Mary Moynihan
|6. Hannah Flynn *
|7. Hannah O'Leary *
(and Con O`Leary)
|8. Annie Walsh
(& Martin Joyce)
|9. Jane O`Brien
|10. Annie Hanly
Died in Prison
|11. Agnes McAdam
|12. Mary A. B.Daly **
|13. Frances Cox
* " These Women were not considered quite normal. They were kept in prison for such a
long period as no person could be found to look after them on release. The Good Shepherd
Nuns finally agreed to take them."
** Jane Reynolds was released after 3 years on condition that she enter a convent.
And Angelo di Lucia was released and deported in 1927 after serving
11years and 4 months.
** Richard Purser was released officially in 1928 having served 10 years imprisonment.
It is believed that he was also conscripted for some period of time into
service in the Black and Tans. No record was found of Tomashina Purser. On the
basis that it is probable that Tomashina served or would have served the same length of time as her co-accused son, we have substituted 10 years in brackets
against her name.
** Mary A.B. Daly also spent some ten years in a convent as part of her sentence.
Given that the average reprieved sentence for females over the period of the
half-century was 10 years and 6/7 months, whereas Hannah Flynn’s and Hannah
O’Leary’s sentence ( pronounced respectively in 1924 and 1925) were almost double
the average, one is tempted to ask why they could not have benefited from a ‘Eucharistic
pardon.’ In celebration of the 1932 Eucharistic Congress , the RC church on the
occasion of the Congress acquired a Barabas-like power of release with respect to
some prison inmates. At this early stage, if not earlier, it must have been apparent to
some that the RC Church could -- inferentially at any rate -- direct penal policy for
the State, not just with respect to children under their control, as we were to appreciate
more fully in the twenty first century, but with respect to a wide range of issues,
including the education and release of prisoners,35 as well as the intake of Nazi warcriminals.
Although some of these long-term inmates were not deemed ‘normal’, neither
were they deemed mentally ill. Nor did the religious authorities -- so far as one
can ascertain from the archival data available -- consider either Hannah Flynn or
Hannah O`Leary as deserving of the Eucharistic pardon -- at which time they would
have served only 7 and 8 years respectively.36
Looking at things from another perspective we can see that these two excessive
sentences tended unduly to inflate the average and tended to disguise the true penological
intent of the authorities. 37 By excluding them from our calculus, therefore,
we arrive at another average sentence of 8 years and 4 months. Arguably, this average
better reflects the true penological intention of the authorities with respect to females
whose capital sentences had been reprieved. If so, then both Hannah Flynn and Hannah
O’ Leary, becasue they had nowhere to go when released from prison, did time
well in excess of twice the average sentence served by others for similar crimes.
Further, by removing these two exceptional cases from Table VIV. II we can the
better see in the sample – albeit over half a century’s duration -- a definite tendency
downwards over time from circa 12 years to circa 7 years. Given the phlegmatic
nature of penal policy towards change,38 this marks a considerable reduction in the
punitive spirit -- one that must have been informed with radical and growing certainty
in the liberal mind. The question is: did it proceed from the Irih religious mind or the
more secular British mind? 39 There is much evidence to suggest that the movement
towards mercy grew out of the vagaries surrounding both Insanity and Infanticide and
clustered around the liberal and feminist movements, both of which had little or no effect on Irish legal or religious persuasion and were much more readily accommodated
in the United Kingdom. 40
b. Was there a difference in the application of Penal Servitude as between the
For the moment comparisons with the male population are not readily available.
Nevertheless, we may remind ourselves of what we already know, namely, that out of
the 100 male sentences handed down between 1900 and 1954, 55 of them were
commuted to penal servitude for life. When compared with 30 commutations out of
32 for females, we can immediately see how unquestionably favoured the female
Bearing in mind that the case studies described and exhibited in Appendix
A were not drafted with gender bias in mind, we might consult it while making the
following observations. Appendix A was compiled to annotate real murder case
studies for students of criminology and to annotate the material for future reference
and research. With this in mind, Appendix A should be read as a refresher to the cases
referred to herein. If we briefly examine the co-defendant cases in Table VIV.11, we
may first observe the differences between the respective sentences as they were
carried into effect. It is not our intention to explain these differences in terms of
gender bias -- merely to note them.
In 1915, for example, Jane Reynolds received 3 years to Angelo di Lucia’s 11
years and four months. Some people might think that this difference was unwarranted.
Bearing in mind that some twelve years earlier, both Joseph Taylor and Mary
Daly were hanged for a ‘similar type’ offence, it would suggest that penal policy had
radically changed with respect to capital punishment. In 1918, while there is no
record of Tomashina Purser, there is strong evidence to suggest that her son , Richard,
was released to serve with the Black-and-Tans. This evidence comes from neighbours
in Carlow who knew him and recognised him at the time. No doubt , this kind
of service would have brought him onto the streets much earlier than the official figure
of 10 years would suggest. In any event , we have a differential sentence in ‘favour’
of the male but not solely by virtue of gender as much as due to warlike ‘exigencies’.
In 1925 , perhaps the most flagrant case of sentencing occurred , when
Hannah O’Leary was sentenced to terms of imprisonment while her brother, Con O’
Leary was hanged. It is not implausible in this case to imagine that the authorities,
over time, might well have come to the realisation that they hanged the wrong person, or , in any event, they had hanged the less guilty party to the murder of their
brother. In 1928 Annie Walsh receives a marginally lower sentence than her
co-defendant lover. The real comparison here is between the most recent spousemurder
cases in 1903 (Mary Daly and Joseph Taylor), 1915 (Jane Reynolds and
Angelo di Lucia) , and 1924/5 (Annie Walsh and Michael Talbot) with the Limerick
Couple (Annie Walsh and Martin Joyce). The first two, under a British administration,
result in a joint execution in 1903 and terms of differential imprisonment in
1915. The second two cases result respectively in a joint execution in 1925 and
comparatively short terms of imprisonment in 1929.
Despite this see-sawing in penal policy, the meaning of penal servitude (as well
as the meaning of capital punishment and imprisonment) was changing for males in
much the same way as it was for females, that is, the average male commuted sentence
decreased sooner rather than later, and on a par with the female average.
If, for example, we take a sample of 14 convicts sentenced between 1888 and
1915, we find that they served an average sentence of 11 years and 1 month and were
released between 1905 and 1922. If we sample another 12 convicts, this time sentenced
between 1915 and 1929, we find that they served an average sentence of 7
years and 6 months. And if we sample yet another 8 convicts, sentenced after 1923
and released after 1932, we again find that they served a reduced average sentence of
6 year and 7 months.
Notwithstanding the political significance of 1932,42 secular and clerical, the
unmistakable tendency was to reduce the once dreaded sentence of penal servitude
for life to terms that were appropriate to larcenies rather than commuted murders.
Female sentences, as we have seen, were more erratic, but like male sentences,
they also tended downwards and in much the same fashion. Unlike male sentences,
however, which clustered better around the average, female sentences varied downwards
Over the half-century, then, we can say that sentences (both male and female)
tended on average to become halved from a term of twelve years PS to a term approximating
Are there any other areas that might show up a gender- discrepancy in sentencing?
In cases where male and female murderers were jointly convicted, we note the
leaning towards leniency on the female’s part. (See under Follie de Dieux below). We
are again forced back to our consideration of the female: that is, the male’s view of
the female, as wife, as mother, and as ‘significant other’. Because of this general
tendency to shy away from hanging a woman , much relief proceeded proceeded
from the focus of female execution as a window into the entire penal system. In the
first instance Infanticide appeared to raise issues of a peculiarly female character and
on behalf of women at their weakest/strongest, but which issues (as the author contends)
eventually spread throughout the system and served fundamentally to undermined
the whole notion of capital punishment in Western society 43.
Because the issue of Infanticide was ineluctably bound up with so many other
emotional matters, the debate about capital punishment became immersed in much
emotional imagery. It now found itself juxtaposed uncomfortably with ‘motherhood’
‘youthful motherhood’, ‘birth’, ‘teenage pregnancy’, ‘family’ and ‘death by hanging’.
44 So dramatic was the substance of the argument , so apposite the issues, that if we
compare the sentences for female murder with those for female infanticide, we get a
glimpse at the disparity, the moral and punitive difference, in effect, over which people
were arguing. 45
c. What, if anything, was the difference in custodial terms between a female sentenced
for murder and one sentenced for infanticide?
As aforesaid, the break between those sentenced for murder and those sentenced for
infanticide is dramatic. Infanticide presents itself in a most radical manner, differentiating
itself from all other capitally sentenced crimes and their perpetrators, both male
and female 46. It differentiates itself on a gender basis and managed to radicalise the
prevailing view of homicide like never before. Formerly, what was most hideous in
the homicidal calendar – the snuffing out of an innocent infant life -- soon became
the object of the greatest of humanitarian responses 47.
What was hitherto nominal (‘a life for a life’), was eventually confronted and
denied as a matter of principle. All biblical equations, more mathematical or ideological
than human, were suspended when it came to the issue of infanticide. Deterrence
and retribution do not lose their honoured role, until history catches up with the
doctrine of ‘an eye for an eye’ and eventually transcends it. Only mothers can enter
the sacred portals of mercy and for the first time in human history since the Christian
conquest , history and the reflective mind have managed to triumph miraculously over abstract dogma, religion, and God-inspired cruelty. The Infanticide Acts 48,
originally brought in because of the general outcry against hanging women for murdering
their offspring, was meant to have the sentence of death commuted to penal
servitude for life, which by any standards was a more humane option. But what in
effect it accomplished was nothing short of the radicalization in the notion of punishment
and abolition of the death penalty 49.
How was this achieved?
First, by attacking the death penalty as an appropriate punishment for mothers
who murdered their offspring under particularly defined circumstances of birth, it
brought the sacredness of motherhood into conjunction with thought of the propriety
of the gallows. In this way, it deepened the concern attaching to the propriety of executing
women generally to condemning young defensive and sometimes confused
mothers to death for not providing properly for their offspring. This further led to
questioning the propriety of PS for life as an appropriate substitute punishment for
the death penalty, and thence to questioning imprisonment as a substitute for PS for
life. 50. Through the beneficent notion of motherhood, now relieved somewhat from
its inveterate religious and male-dominated moorings, the miracle of secular social
and historical reflection began to penetrate fifteen hundred years of Christian obduracy
to reach the more secular and a more human heart than Christianity could ever
It is clear from our small sample of infanticides (Table VIV.111) that the sentences
nowhere envisage either a death sentence reprieved or a commuted sentence
of PS for life. We can see that those sentenced to Infanticide drew an average of
between two and three years 51, with one offender, Deborah Sullivan, receiving a
mere 4 months sentence, two other offenders receiving a year each. At the upper end
one offender received 3.5 years and another 4 years. But however we analyze these
sentences, any comparison between Table V1V.11 and V1V.111 will confirm that the
new sentences for infanticide are different in kind from anything that preceded them.
TABLE XIV. 111
MOMEN CONVICTS SERVING LIFE SENTENCES
FOR INFANTICIDE WITH DURATION OF SENTENCE
||Year of Infanticide
||Duration of Sentence
|1 Elizabeth Doran
|2 Mary Kiernan
|3 Elizabeth Hannon
|4 Mary Anne Keane
|5 Deborah Sullivan
|6 Catherine Ahearne
|7 Christina Russell
|7 Margaret Finn
|8 Elizabeth Edwards
|9 And Rose Edwards
|10 Mary Sommerville
|11 Kate Owens
Comparison with Male Child Murderers 53:
The raison d’etre of Infanticide might lead one to expect that males who murder
infants might likewise be suffering from some biological, genetic or, indeed,
social malady, and might, accordingly, benefit not only from a commuted
capital sentence but also from a reduction in terms comparable with
those sentenced for Infanticide. Equality or no, the childbearing function of
women made any such comparison problematic, even when the childmurderer
was not the mother of the deceased. Initially, Infanticide was conceived
as peculiarly a mother’s crime, there being hundreds of such cases
across England and Wales, whereas the number of male infant-murders were
uncommon. In Ireland they could be counted on one hand. But even when the
murderer was quite obviously not compus mentis, the sentences and expectations
were gender biased. Two examples will suffice to demonstrate such bias.
On April 21 1923 one of the most surprising murders occurred at Mullinavat,
County Kilkenny, when P. Aylward (60) killed William Holden, an 18-month-old by ‘putting the infant on a fire’. Quite understandably, there was no
recommendation to mercy. The trial judge L C J Molony stated that he agreed
fully with the verdict of the Jury, adding that the only question remaining was
the mental state of the prisoner.
“If the prisoner is responsible in law for his actions, I am afraid I am
unable to see any mitigating circumstance which would make the prisoner an object of mercy 54.”
As might also be expected the very few men who were sentenced for murdering
infants, were generally older than the women who committed infanticide. 55
In cases of male infant-murder, therefore, we find exhibited the classic bind in
which the Judiciary operated. Responsibility in law was the only responsibility the
Judge admitted, and if the mens rea did not countenance anything outside of
McNaughton, then there simply was no other reason in which mitigating circumstances
could make themselves visible or operative. It was a true statement of the
classical criminological position, which initially counseled against admitting of mitigating
factors such as age, infirmity, or mental disease,56 but which, eventually and
reluctantly, had to admit of these phenomena.
Alyward was sentenced to hang, but his sentence was commuted to PS for life
and he was released on license on the 30.06.1932, having served a 9-year sentence 57.
One has to admit of a different dimension in dealing with the murder of infants by
males, particularly when they are not presumed to be non compos mentis. Part of the
benefits to the mother of the enlightened view of Infanticide arose categorically from
the presumption that the mother was ill. This, of course, implied that she could be
cured, as well as the fact that her condition was a non-recurring one. With the insane
male, no such knowledge attaches. unless and until a registered psychiatrist certifies
that the prisoner is no longer so afflicted.
The second comparable case occurred at Slievekeale, Co. Waterford, on
15th of February 1923 when W. Devereaux (56) killed his sister-in-law, Anne
Devereaux. Again, the Jury made no recommendation. The trial judge, again
L.C.J. Molony, somewhat more encouragingly stated:
‘ I see no reason to alter the view expressed in my report that the verdict
was fully justified by the evidence. I feel a sympathy for this poor
man who, of all the prisoners I tried for murder at Green Street, was
the only one who presented an appearance of real sorrow and I would
be satisfied if the prerogative of mercy was exercised 58’.
Devereaux was sentenced to be hanged on November 22 1923. His sentence
was commuted to PS for life, and he was released on June 30 1932,
having served a term of 8 years and 7 months imprisonment 59.