By Sarah Toohey, Museum Officer, Old Court House Law Museum
The wig and gown were first worn in Western Australia by Dublin-born Richard Nash in 1840. Described by barrister Edward Landor as “the most active-minded and public-spirited man in the colony”,1Landor, E.W. The Bushman, or, Life in a new country, London: R Bentley, 1847, p. 38. Perth Gazette, Editorial and Trial Reports, 3 October 1840. Nash was a lively and controversial figure in the young Swan River Colony.
Admitted to the Irish Bar in 1832, Nash arrived in the colony in 1839 and soon after was persuaded by Reverend Wittenoom to represent Jane Green, a young woman charged with murder. The paper of the day reported: “This gentleman reluctantly took the brief or the defence of the girl and, much to his credit, exerted himself most ably and strenuously without the slightest fee or reward.”
Nash made such an impression in legal regalia during his first appearance in a WA court that the newspaper of the day reported:
“The appearance of the gown and wig in our court for the first time was a novelty we were well pleased to see.”
Jane Green was a 17-year-old orphan brought out to the colony by the Children’s Friend Society in 1839 to work as a servant. She was apprenticed to the Resident Magistrate of Toodyay, Captain Francis Whitfield. A year or so later, after concealing her pregnancy, Jane silently gave birth to a baby boy in the Whitfield home. Mrs Charlotte Whitfield discovered the dead infant at the foot of Jane’s bed covered with rags. It appeared his throat had been cut. Jane was charged with wilful murder.
Jane stood trial in the Old Court House before Chairman William Henry Mackie and the case was of great interest to the people of the colony. Whitfield, along with Reverend Wittenoom, was one of 28 commissioners appointed to look after the interests of orphans sent out to the colony. He was identified as the father of the child and the ensuing scandal caused Whitfield to resign from his position as magistrate. There appears to have been strong community support for Jane Green and the prospect of a guilty verdict and death sentence was abhorrent to the community. Efforts were made to obtain the best legal advice in the colony.
Nash argues that it was not known whether the child was born alive or dead and that the cuts may have been caused by attempting to remove the umbilical cord from around the baby’s neck. He called the colonial surgeon, Joseph Harris, as a witness. Harris explained that temporary delirium was commonly induced by child labour.
The question of Jane’s life rested upon the jury’s decision. Chairman Mackie drew the jury’s attention to several particular points. Firstly, they had to be satisfied that the child was born alive; secondly, that the fatal injuries were inflicted by the prisoner; and thirdly, that she inflicted them in a sound state of mind.
The jury found Jane Green not guilty of the murder of her baby, but guilty of trying to conceal the birth of a child. She was sentenced to two year’s imprisonment with labour suited to her age and sex.
On 7 October 1840, Whitfield advertised his decision to leave the colony by the first conveyance. Wittenoom noted in 1841 that “…Captain Whitfield has been degraded from the Magistracy, deserted by his wife and numerous grown-up family and entirely excluded from reputable society.”2Blackburn, G. The Children’s Friend Society, WA: Access Press, p. 147 (from Wittenoom’s Report of the Children, 1841).
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