This is a story about one of the great-grandchildren of the ‘Earl Grey Irish Famine orphans’. It comes with my thanks to two local and family historians, Mrs Pat Evans of Tourmina and Mr Brian Andrews of Kurri Kurri, NSW, both of whom alerted me to the Australian story of Mary McConnell, one of the notorious ‘Belfast Girls’. (You may read more about Mary in my blogposts 32 and 33. https://earlgreysfamineorphans.wordpress.com/2016/04/16/earl-greys-irish-famine-orphans-32/ and https://earlgreysfamineorphans.wordpress.com/2016/05/16/earl-greys-irish-famine-orphans-33/ )
Mary McConnell came to Sydney on the first female orphan ship, the Earl Grey, in October 1848. With their boisterous behaviour and colourful factory-floor working-class language, the ‘Belfast girls’ had so offended the middle-class sensibilities of the Surgeon-Superintendent Henry Grattan Douglass on board their ship, that Douglass damned them all as ‘abandoned and depraved characters’. He insisted they not be employed in Sydney town but sent to former penal settlements in the Hunter Valley, and at Moreton Bay. Mary McConnell, ‘a professed public woman‘, according to Douglass, was one of the young women sent to the Hunter.
Within a year Mary met the man with whom she was to spend the rest of her life, William Ashton, a former convict. For most of their life, William and Mary lived at Mount Vincent on the Mulbring Creek with other tenant farmers, on the estate of their landlord, William Knox Child. Knox Child was a well-off Englishman who successfully replicated the values of his English country estate in New South Wales. Given the kind of landlord-tenant relationship, and the small size of tenant farms on the Mount Vincent estate, there was little chance that William and Mary or their eleven children would become wealthy.
Like many another Irish Famine orphan, Mary and her husband raised a large family and had a hard-working life. Her children had the same hard-working existence. They settled in Toronto and throughout the Hunter region, mainly in working-class areas such as Moontown in East Maitland, employed as sawyers, labourers, farmers and miners, or married to farmers, labourers and ‘rough carpenters’.
By the late 1890s, one of those children, Thomas Ashton, a miner at the Wallerawang colliery, was residing with his wife and children at Toronto. Their 17–18-year-old daughter, Emma, to use the language of the day, ‘was walking out with’ 28–29-year-old Thomas Tudor, a local athlete who often went sailing on nearby Lake Macquarie with his friends. Tom Tudor was from the other side of the tracks to young Emma. He came from a relatively well-to-do family in Hamilton. His father, recently deceased, had been a local councillor, and his mother was licensee of the Tudor Arms hotel.
In July 1898 Emma Ashton gave birth to a healthy baby boy, Albert Cyril, Tom Tudor’s child, born out of wedlock. In November, Tom did the right thing and agreed to pay maintenance of five shillings a week.
Then one evening early in May 1899, Tom arranged to meet Emma at Ingall’s boat shed and asked her to bring young Albert along. They met, ‘had connexion’ (had sex) the baby asleep in a neighbouring bunk. Tom only held the baby a short time, about five minutes in total, in the dark, while Emma fixed her hat. Shortly after, young Albert started vomiting and later died a horrible death, ‘suffering intense agony’, having been poisoned with ‘Paris green’, a substance used in house paint, and usually containing 55- 65% arsenic.
At the coronial inquest which followed, Mr Julian Windeyer of the famous Windeyer legal family appeared on behalf of Thomas Tudor. The coroner, Mr G.C. Martin in his summing up, on 18 May, claimed that ‘the evidence disclosed a cruel and terrible crime…Only a callous, unsympathetic barbarian could make (a)way with such a lovely little creature as the jury had viewed at the morgue‘. The jury agreed, finding that ‘poison was wilfully administered to the child…by one Thomas Frederick Tudor‘, and committed Tudor to stand trial at the next Circuit Court.
The trial, however, was rescheduled, to be held at Darlinghurst on 12 June 1899. The police scurried around issuing subpoenas and collecting evidence, including statements from two people in Gunnedah, Matthew Hargraves and Thomas Roberts, that Tudor had told one of his friends ‘he had an illegitimate child to support and that he intended doing away with it‘. The statements never went to court. Tudor’s friend, a former schoolmate, claimed that what he said had been misconstrued. ‘What Tudor did say was that the mother of the child was no good and he would not be surprised if she did away with it‘.
At the June trial, the lawyer for Tudor’s defence was none other than Richard O’Connor QC, former NSW government minister, leading Federationist, later cabinet member, and leader of the Senate in the first Commonwealth Government. O’Connor, Bede Nairn has described as ‘one of the classes’ a member of Australia’s political and legal elite. How he came to be Tudor’s defence lawyer is unknown. His fees cannot have been low. Were favours being called in?
The crown prosecutor was Mr C.G. Wade, later NSW Premier and Judge, no less formidable a lawyer than O’Connor. He is described by the Australian Dictionary of Biography as a crown prosecutor who ‘fought his cases tenaciously’. The Judge was the well-regarded Mr Charles Emanuel Cohen, described by the ADB as being ‘extremely fair’.
The Darlinghurst trial, however, produced no result. Scribbled on the cover of the trial depositions held in NSW State records is a memo from Mr Wade to the Attorney General, ‘…the jury in this case disagreed…I think the accused should be tried again‘.
By the time the next trial was convened at Maitland Circuit Court, in late September, 1899, the defence had strengthened its case. A considerable number of character witnesses were marshalled. It was shown Tudor had no problems meeting his maintenance payments. Nor could he be specifically linked to the purchase of Paris green—even though he was a painter by trade. The type of silk handkerchief, sometimes worn by Tudor, that was found near the scene of the poisoning, (it had been found in the flue of the colonial stove in the boat-shed, stained with Paris green, and partly burnt) did not belong to Tudor–according to the sworn testimony of his mother and his sister. O’Connor harried and questioned, and picked away at the case for the prosecution which was ineffectually argued by Mr Broomfield and his junior, Mr Watt. Nothing was made of the inconsistencies in Tudor’s statements to the police. Nothing was made of Emma’s claim that it was only when Tudor returned Albert to her arms that she smelt paint.
And our ‘extremely fair’ Mr Justice Cohen gave free voice to his prejudices in his summing up. Emma had appeared in the witness box, her second pregnancy to Tudor plainly visible. She would give birth the following month to another baby boy [she was to name him, Charles Lilley].
In his summing up, Mr Justice Cohen quite rightly advised the jury that their ‘verdict should be free from either passion, prejudice or sympathy‘ but then launched into an aside. The following quotation is from the trial transcripts, information which somehow did not make its way to the judge’s personal case notes.
‘One is aghast at want of parental control and display of immorality—no protest—shame taken easily—callous parents—allow immorality to continue and further shame to be incurred. This is at Toronto not far from Newcastle. One is aghast at want of protest. This is immaterial to case but I must enter protest and point out necessity for mission work‘.
If I was sitting on the jury, I think I would be influenced by this. Emma and her parents were not on trial.
Taking all these circumstances into consideration, the jury, after four hours deliberation, returned a verdict of not guilty.
Now what do you think is the historical significance of this story? It is interesting in itself as part of a larger story of the Irish famine orphans in Australia.
Another possibility would be to apply the same micro-historical skills used by Natalie Davis and Carlo Ginzburg in their study of ‘ordinary’ people in the sixteenth century, Bertrande de Rols and Domenico Scandella. Might we do the same for Emma Ashton and Thomas Tudor in 19th-century Australia? Whether their story is typical of the times in which they lived is neither here nor there. Exceptional cases, as Davis and Ginzburg have shown, can also throw light on the societies in which they lived.
Australia, as it approached Federation and, in the years shortly after, is often seen as leading the world in progressive social institutions. The new Commonwealth was to extend the franchise, set up an Arbitration Court, later a Court of Arbitration and Conciliation that defended a needs-based wage system, and introduced income tax, and old age pensions among other measures, ‘civilising capitalism’. Little wonder that Australia was seen as ‘a working man’s paradise’, and a progressive, egalitarian society. So much so that Frank Clarke concludes his recent work, Australia in a nutshell (2003) with the words, ‘Australia needs to throw off the corrosive self-doubt and arthritic conservatism of current times and the recent past, and to recapture the free-flowing, radical and inclusive self-confidence of 1901‘.
It seems to me, however, that the story of Mary McConnell, Emma Ashton and her baby, casts some doubt on this image of a progressive, free-flowing, inclusive, egalitarian society. Australia was no paradise for working-class women like Emma Ashton. Or to put this argument differently, our White Australia policy grew out of the racial ideology and labour movements of the late nineteenth century. And for a long time, ‘the ideal of White Australia’ sat ‘very comfortably with the national myth of egalitarianism‘. This is also part of the Australian picture at the turn of the century.
Finally, what does the case of Albert Cyril Ashton tell us about the functioning of the law? At the end of the 19th century, jurists such as Albert Venn Dicey were ‘very big’ on what they called the ‘majesty of the law’; that is, the rule of law is based on Natural Law, an inalienable, moral awareness of natural order, justice and equality before the law. I wonder whether Emma Ashton and her baby were embraced by the ‘majesty of the law’, or was the Emperor more than semi-naked?
There are certainly many questions raised by the case, R. v Tudor. The central one, of course, is did the lawyers get it right? Or was there a miscarriage of justice? Had the district coroner rushed to judgement? Why weren’t the Hargraves and Roberts statements about Tudor wanting to do away with the child not followed up and used at the trial? That evidence would not have been admissible.
In cases of circumstantial evidence, the prosecution must supply a motive. Broomfield at the September trial merely suggested that Tom Tudor couldn’t pay maintenance for two children. There was no attempt to explore the relationship between Emma Ashton and Tom Tudor as to possible motive.
The court could not enquire into the ‘murder’ of young Albert Cyril; this was not what they were being asked to do.
As for Mr Justice Cohen’s outburst, you will notice he made his outburst, and then returned to legal principles – ‘this is immaterial to the case‘ –. Judges have prejudices and biases, and the law allows for this. But we are left wondering why the crown prosecutor didn’t at least object, or indicate that this outburst might be grounds for an appeal. No appeal occurred. Broomfield, the Crown Prosecutor, may have been overawed or overpowered by the reputation and influence that Mr Justice Cohen and Tudor’s lawyers wielded.
This, in turn, brings us to a wider context of justice, law and power in society. Was the law reinforcing the patterns of deference and obligation of the period? Were the scales of justice tipped in Tudor’s favour? Did he get off because of who he was, and who he knew/his social connections?
One cannot but wonder if the legal ‘system’–its rules and regulations regarding rules of evidence, — being unable to enquire into the ‘murder’ of young Albert, –disregarding a judge’s evident bias—prevented young Albert from getting the justice he deserved?
Trevor McClaughlin is a member of the Tinteán editorial team.