10.d. Petty Traitors

Seamus Breathnach’s Irish-criminology.com examines Irish society through its norm-creating as well as its norm-breaking agencies. These include the Church controls of Ireland’s State -- its Schools, Law, Police, Courts, Prisons, Media and much more...

 

10.) Capital Punishment     10d.): A Short History of Capital Punishment in Ireland

  Volume 3: Petty Traitors

    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 ß

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 first. 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. ß

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. ß

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 world : www.cephasministry.com/catholic_vaticans_billions_1.html www.cath4choice.org/news/inthenews/2006/200605cs_breakingtheopusdeico de.asp 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: www.files.tikkun.org/current/article.php?story=2006102810293419 While I am not selling Chick publications , one should perhaps have a look at it: www.chick.com/catalog/books/0191.asp www.cephasministry.com/catholic_vaticans_billions_1.html 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 it. 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 ß

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! See www.infoplease.com/ce6/society/A0806992.html 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 ß

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 : www.oldbaileyonline.org/history/crime/punishment.html#benefit-of-clergy 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 ß

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 ß

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-togoodnesshang-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 ß

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 postReformation 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: www.h-net.msu.edu/~law/threads/pettreas.html www.en.wikipedia.org/wiki/Burned_at_the_stake www.links.jstor.org/sici?sici=0037-3222(199223)43%3A3%3C317%3ATSPPTA%3E2.0.CO %3B2-%23 http://feministstudies.org/pdf/20-29/29-2-preface.pdf 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. Sean: So? 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 ß

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? Sean: What? 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 clancomprising 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 ß

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 mean? 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 thing! ß

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 ß

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?

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CONTENTS I INTRODUCTION ............................................................. 0 ß

II Mrs. HIBERNICUS .......................................................... 1 III THE 16th AND 17th CENTURIES ............................... 11 IV THE 18TH CENTURY .................................................... 20 V THE 19TH CENTURY .................................................... 31 VI THE 20TH CENTURY- OVERVIEW ............................ 45 VII PUTTING WOMEN IN THEIR PLACE ......................... 60 VIII MARY, ANNIE AND ANNIE............................................ 75 VIV APPEALS AND PETITIONS ......................................... 90 GENTLE RAIN.................................................................. 104 APPENDIX ....................................................................... A (13 cases) (52) SELECT BIBLIOGRAPHY ............................................ 160 INDEX................................................................................ 163

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A Short History Of Capital Punishment In Ireland VOLUME THREE

Petty Traitors

Seamus Breathnach ß

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LECTURE VIV GENTLE RAIN 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.

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+ = 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 sentence. *** = 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? ß

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.’

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* " 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 halfcentury 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 ß

d a t a available consider either Hannah Flynn or Hannah O`Leary

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a s

deserving o f 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 sexes? 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 ß

penal servitude for life. When compared with 30 commutations out of 32 for females, we can immediately see how unquestionably favoured the female was. 41 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 Blackand-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 ß

also tended downwards and in much the same fashion. Unlike male sentences, however, which clustered better around the average, female sentences varied downwards dramatically. 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 six years. 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 ß

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 envisage. 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. 52

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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. He added: “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 ß

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.                

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