MAGEE, Ellinor per Mexborough (1) 1841. By Don Bradmore (10/05/2021)

In March 1841, Ellinor Magee was convicted of theft in Ireland and sentenced to transportation for seven years.^[1] She arrived in Van Diemen’s Land (VDL) in December of that year. She was twenty-one years old. Two years later, she married convict James Allen but the marriage was not a happy one and, while they appear to have stayed in contact with each other, they were soon living apart. In 1847, Ellinor gave birth to a son by another man. That said, her conduct during the years of her servitude was unremarkable. She was charged with only three minor misdemeanours, for two of which she was merely reprimanded and, for the other, sent to the Female House of Corrections for the relatively short period of fourteen days. By 9 March 1848, she had served her time and was issued with a Certificate of Freedom. However, the next year was to see her in very serious trouble. In August 1849, she was found by a Coroner’s jury to have aided and assisted in the wilful murder of a man by the name of James Gosling, with whom she had been living for the previous three or four weeks. On the day of the murder, she, her husband James Allen, James Gosling and some of their acquaintances had been drinking together when an argument had started. A bitter fight ensued and Gosling, who had been stabbed through the neck, dropped to floor and died. The police were called and Ellinor, her husband and one of the acquaintances – a soldier of the 99^th Regiment of Foot, then stationed at Hobart – were arrested. All were fully committed for trial at the next session of the Supreme Court. Two weeks later - to the utter astonishment of the citizens of Hobart - the Attorney-General decided not to proceed with the matter and all three were discharged from gaol. Afterwards, Ellinor seems to have disappeared from the pages of history. Frustratingly, nothing more is known of her life. She was still only twenty-nine.

Ellinor (aka Elinor, Eleanor, Ellen) Magee was born at Enniskillen, County Fermanagh, Ireland, in 1820. Nothing is known her life in Ireland except that she had lived with an ‘aged’ mother and that the crime for which she was transported to VDL in 1841 was not her first offence.^[2]

Two years earlier, she had been convicted of larceny and sentenced to transportation for seven years. However, whilst in prison at Enniskillen in late 1839 awaiting a ship to take her away, a petition forwarded on her behalf by a number of very eminent citizens of the district was received by Viscount Ebrington, Lord Lieutenant General and General Governor of Ireland, begging for commutation of her sentence.^[3] The petitioners had based their plea for leniency on a number of factors: that Ellinor was only twenty years old; that she had never previously been charged with any crime; and that she had been led , ‘unfortunately’ and ‘unadvisedly’, into bad company and ‘induced and over-persuaded’ to commit her crime. In addition, the petition had been favourably endorsed by the judge who had presided at her trial - the Right Honorable Baron Richard Pennyfather - who expressed the view that, after serving a prison term, Ellinor might be expected to return to ‘a reputable life in future’. The petition was successful. In response to it, the Lord Lieutenant announced that he was pleased to commute the sentence to one of imprisonment in Ireland for seven years.^[4] And, as it happens, Ellinor was released from prison after having served only three months, the remaining term having been remitted.^[5]    

However, Ellinor seems not to have learned anything from that narrow escape. Two years later she was charged with the theft of a quantity of turf from a man by the name of Hetherington at Ballinmallard, Ireland.^[6] At her trial at Fermanagh in March 1841, the court was told of her previous offence and, additionally, that while in gaol at that time, a further charge of stealing prison blankets had been brought against her. She was found guilty of the theft of the turf and sentenced – once again – to transportation for seven years.^[7]

Once more, while Ellinor awaited her removal from Ireland, a petition was presented on her behalf. The petitioners, again a group of prominent citizens, sought commutation of the sentence on the grounds that the crime for which she had been convicted was of a ‘trifling nature’ in that she had stolen a mere ‘one penny worth’ of turf. The Lord Lieutenant, however, was not moved by the argument.^[8] The petitioners were informed that it was the view of the judge who had presided at her trial that there was no ‘prospect of her being reformed & remaining in the country’, that there were no ‘mitigating circumstances which would render her a proper object of mercy’, and that ‘the law must take its course.’^[9]

Thus, in late July 1841, Ellinor was put aboard the convict ship Mexborough which, with John Bridgman as Master, John Hampton as Surgeon Superintendent, one hundred and forty-five female convicts, thirty-six of their children and eleven free settlers, sailed from the port of Kingstown, Dublin, on 12 August. By 26 December, it had reached Hobart.^[10] Surgeon-superintendent Hampton was pleased to report that, with the exception of two deaths at sea ‘the convicts, free settlers & a very large proportion of young children arrived at Hobart Town in better health and condition than they were in on embarkation.’ Ellinor had not needed medical attention of any kind at sea, the only remark made by Hampton about her being that her conduct had been only ‘middling’.^[11]  

At Hobart, Ellinor was described as being twenty-one years old and single. She was five feet four and a half inches (164 cms) tall, with a fair complexion, black hair and grey eyes. She had a small scar on her forehead and a small mole on her right cheek. She was designated a ‘farm servant’ by the convict authorities.^[12] While there is some uncertainty about Ellinor’s employment in the first year or so of her convict servitude in VDL, it seems that she was assigned soon after disembarkation to settlers in the New Norfolk district.

There, at some time during 1842, Ellinor had attracted the eye of a convict by the name of James Allen. On 29 November of that year, he applied for permission to marry her and, with approval obtained, they were married at St. Matthew’s Church, New Norfolk, on 28 February of the following year.^[13]

Although the entry in the marriage register shows Allen’s age as twenty-seven, he was probably five or six years older than that. According to records at the Old Bailey, London, he was twenty-two when he was convicted of house-breaking in December 1833 and sentenced to death. Later, the sentence was commuted to transportation for life and he had arrived in the colony in December 1833 aboard the vessel John (2).^[14]     

In the colony, Allen was set to work initially as a labourer in the Government garden but was soon in trouble with the authorities again. In 1836, he received twenty-four lashes for stealing fruit and, in the following year, another fifty lashes for the same offence. Despite his misdemeanours, however, he had been granted a ticket of leave by 1839 and by 1840 had been appointed a police constable.^[15]

The appointment of convicts as constables was not unusual. Since the early days of settlement, successive governors of VDL had been faced with the problem of finding suitable men to control increasing lawlessness and, as more and more convicts had arrived in the colony, this situation had worsened. When, in 1836, the British Government had refused to continue to pay for the mounting police costs, the authorities in VDL had no option but to fund police and gaols from local resources. As early as the mid-1820s, convicts who appeared to have the appropriate character, experience and ability, or who had been recommended for the task by people in England or by the surgeon-superintendents of convict ships, were being recruited as constables immediately upon their arrival. Later, men who had served their time and, as ticket-of-leave holders, were now able to find their own employment, were also being recruited. While this often meant that those who had decided to join the police ranks earned the enmity of other prisoners, their decision was made easier by the depressed economic conditions which existed in VDL in the 1840s and the promises made to them of better pay and more freedoms than they could earn elsewhere. Even by the mid-1830s, when it is understood that the number of men employed by the colonial police force totalled over four hundred and fifty - a high ratio of one policeman to every hundred people - the majority were former convicts. Although governors, magistrates and police administrators were thankful that the large police force was effective in protecting people and property, many spoke out about defects in the recruitment procedures, admitting that corruption was rife and that convict-constables frequently abused their powers by using violence and arresting without cause. Nevertheless, the practice of recruiting convicts as policemen continued at least until the abolition of transportation in the early 1850s. ^[16]    

James Allen might well have been used as an example by those who spoke out about the defects in the convict-constable system. His record as a policeman is unflattering. In January 1840, he was charged with ‘not taking action when present when a felony was committed’ and was sentenced to three months hard labour on a road gang. His ticket of leave was suspended. In August of the same year, he was charged with being absent from duty and served another six months’ imprisonment with hard labour. Again, his ticket of leave was suspended. In April 1841, he was charged with misconduct in that, after arresting a man for some wrong-doing, he had let him go. He was fined five pounds. And twice more during 1842 and 1843, he was fined with neglect of duty as a constable.^[17]

However, Allen had apparently done enough to convince the authorities that he warranted a conditional pardon and it was granted to him in September 1843 – just months after his marriage to Ellinor Magee.^[18]

After their marriage, the couple had settled down in the New Norfolk region but, even from its beginning, there appears to have been problems. Just five weeks after the marriage, Ellinor was charged with ‘misconduct’ of some kind but managed to escape with a reprimand. Twice more – once in 1844 and once in 1845 – Ellinor was taken before a magistrate to face charges of misconduct and she was reprimanded again on both occasions. Although it is likely that her misconduct - the nature of which was not recorded – was trivial, her behaviour seems to suggest that things were not happy in the home.

In fact, James and Ellinor seem to have lived together as man and wife for only a short period. In April 1845, Ellinor was granted her ticket of leave and, while later evidence suggests that they remained in contact with each other, it may have been at that time that they decided to live apart.^[19] They were obviously not together when, in 1847, Ellinor gave birth to a son, whom she had named Charles Christie. She was then about twenty-seven years old.

Neither the birth of the child nor the name of the father appears to have been recorded officially but it is possible that the father was former convict Charles Christie, who had arrived in VDL as a fifteen-year-old convict per Hindostan (2) in 1840. In July 1844, he had been granted his ticket of leave and, in December 1846, his certificate of freedom.^[20] There is nothing in the records to indicate that Ellen saw him again after the birth.

On 9 March 1848, Ellinor was free by servitude. A week later, she was issued with her certificate of freedom.^[21] Although Ellinor’s days as a convict were now over, her troubles with the law were not.

In fact, she was soon to be in greater trouble than ever before!

At some time around the middle of 1849, Ellinor had met another former convict, a bootmaker by the name of James Gosling, and was soon in a loving relationship with him. He had arrived in the colony at the age of sixteen in July 1842 after being found guilty in his native Devon, England, of stealing two pieces of satin cloth and sentenced to transportation for seven years. In the colony, he had been charged with numerous new offences– absconding, neglect of work, misconduct, disobedience of orders, the use of abusive language towards his gaolers and more – and had been punished frequently with hard labour in chain gangs. Nevertheless, by 1848, he had earned his ticket of leave and was free to find his own accommodation and employment.^[22]

Soon after their meeting, Ellinor and her infant son were living with Gosling in what was to be described later as a rented ‘house or skilling situated in a miserable court in Barrack Street … at the back of Mr. Chard’s public-house’.^[23] While others described Gosling as Ellinor’s ‘fancy man’, she – endearingly - called him ‘Jemmy Ducks’, an obvious play on his names, ‘James’ and ‘Gosling’.^[24]

Tragically, however, the relationship between the two was to be short-lived. On Saturday, 11 August 1849, Gosling was stabbed to death in a violent brawl inside the house – and Ellinor was charged with his murder!^[25]

On 15 August, an inquest was convened before the Coroner, Mr. A. B. Jones and a jury of seven men to establish the actual circumstances in which Gosling had met his death. Prior to the release of the verdict of that court, however, the Launceston Examiner had provided these details:

The deceased was found with his feet towards the fire-place and his head lying towards a chest, against which in falling he had apparently struck, with a deep stab [wound] in the right side of the throat penetrating downwards … There was a recent [wound] at the back of the neck and another between the shoulder blades … The shirt of the deceased, which was torn in all directions, exhibited corresponding cuts to the wounds described and other evidence that a murderous conflict had taken place.^[26] 

At the inquest, a number of those who were present when Gosling was killed were called to give evidence. Janet Milne, a ticket-of-leave woman, had told the court that she had been drinking with Ellinor at a public-house prior to the events that had led to Gosling’s death. Afterwards, they had gone to Ellinor’s house. There, they had been surprised to find James Allen, Ellinor’s estranged husband, waiting for her. A short while later, Allen had left the house, apparently to get more alcohol. While he was away Ellinor had also gone out but had returned within five minutes, bringing her ‘Jemmy Ducks’ [Gosling] with her. A little later, Allen came back, this time accompanied by three acquaintances with whom he had been drinking. One was a woman by the name of Mary Donovan. The other two were uniformed soldiers of the 99^th Regiment of Foot - Michael O’Connor and Michael Driscoll – both stationed at the nearby barracks. All seven in the house were drinking and Allen had gone out once again to get more beer. Meanwhile, Ellinor had cooked a meal and had fed some of it to Gosling while he sat on her knee to eat it.^[27] One of the soldiers took Mary Donovan upstairs and, when he came down again, he had a knife in his hand. Gosling had accused him of attempting to steal the knife, claiming that he had left it in a room upstairs where he occasionally repaired shoes. As Gosling tried to wrestle the knife out of the soldier’s hand, the two began to push and shove each other and were soon fighting furiously. As the struggle continued, Allen, clearly upset at seeing Gosling’s close relationship with Ellinor, had been urging the soldier on, yelling: ‘It deserves him [Gosling] right. What business has he here?’ Becoming afraid for her own safety, Milne had left the room but when she looked back through the open door, she saw that Gosling had collapsed to the floor. She had not seen what had made him fall but she had seen Ellinor, with the knife in her hand, kneeling in blood beside him and screaming, ‘Oh, what have I done? I have killed Jemmy Ducks.’ In concluding her evidence, Milne had stated that, a week or so before the fatal night, she had witnessed a quarrel between Ellinor and Gosling and had heard Ellinor say that ‘as Gosling was a drunkard, she wished to have her own husband again.’^[28]    

Patrick McIntyre, a near neighbour, testified that, at about ten o’clock on the night in question, he had heard a row begin at Ellinor’s house and that it had continued for two hours. He had heard screams and a heavy fall. He had seen a soldier running from the house but had been told by Ellinor that he should ‘let him go as he was not the one who had done it’. McIntyre added that this was not the first time that Allen had arrived without notice at Ellinor’s house. A week earlier, he had heard Allen quarrelling with Ellinor and Gosling inside the house but shortly afterwards he had been ‘thrust out the door’.^[29]

Sworn in as a witness and cautioned by the Coroner against saying anything that might incriminate himself, James Allen confirmed that Ellinor was his wife. He was aware that Gosling had been living with Ellinor ‘in that peculiar way which rouses a man’s jealousy even in Van Diemen’s Land’. While at Ellinor’s house on that night, he had overheard an exchange of angry words between Gosling and the soldier. Standing face to face, the soldier had struck Gosling and Gosling had struck back. Gosling was struck twice again – the first blow to the left side of his face and the second to the right side of his neck - and Gosling had fallen to the floor. Allen had left the house immediately to fetch the police. He was certain that it was Driscoll with whom Gosling had fought, adding that the other soldier – O’Connor – had been upstairs with one of the women at the time.^[30]

William Brown, sergeant-major, 99^th Regiment, told the Coroner that the two soldiers had been given passes to remain out of the barracks until the morning of Sunday, 12 August. On the following Monday, one of the men – Michael Driscoll – was asked by Colonel Despard, the commanding officer on the 99^th Regiment, what he knew of Gosling’s death. Driscoll had replied forthrightly, ‘I committed the deed’. When asked how he came to do it, he had said, ‘In self-defence’. He had added that he ‘thought he should own to it’ because he had been told by some of his fellow-soldiers that ‘it was only manslaughter’.^[31]

After the evidence of other neighbours, doctors, police and senior officers of the 99^th Regiment had been heard, Ellinor herself was brought in. The evidence affecting her was read to her and she, too, was cautioned against saying anything that could be used against her later. The evidence she gave was brief. Swearing to tell the truth, she told the Coroner simply that she was sitting on a stool with her baby on her knee when the soldier stabbed Gosling and that she had played no part whatsoever in his death.^[32]

Summing up the evidence, the Coroner told the jury that it was their task to decide whether malice had been proved against Driscoll, saying that if there had been no malice, then the crime was manslaughter rather than murder. With regard to Ellinor and James Allen, he felt, it was ‘more suspicious’ but, in his judgement, the evidence presented had not been sufficient to charge James with any crime. He warned, however, that it was possible that James might still be charged before some other tribunal.^[33]

After contemplating for some time, the jury returned a verdict of ‘Wilful Murder’ against Driscoll, finding that Ellinor, as an accessory to the fact, had aided and assisted him in his actions. Both were handed over to the custody of the Police Magistrate to await trial.^[34]

In the weeks which followed, the police did see fit to charge James Allen with the murder also – and, on 15 September 1849, he, along with Ellinor and Driscoll, appeared in a pre-trial hearing at the Police Court, Hobart.

There, Driscoll said that he had nothing more to add to what he had already told the Coroner This time, however, Ellinor gave a more detailed account of events, telling the court that, as the row had broken out, she had heard Gosling ask Driscoll to leave the house but he had refused to do so. She had remained seated with her baby on her knee as the two men struggled. She had seen Gosling reach for a heavy candlestick on the mantle to use as a weapon and that was when Driscoll had stabbed him. James Allen’s evidence was much the same as he had given to the Coroner, intimating that most of those present had been drinking heavily during the day. He had seen the fight break out between Gosling and Driscoll but had taken no part in it himself. He had seen Gosling strike the first blow and Driscoll stab him in retaliation. As Gosling lay dying on the floor, he had helped Ellinor attend to him. In doing so, his sleeves had become covered with blood and it was that that circumstance, he felt, that had led to his arrest by the police. At the conclusion of the hearing, all three of those charged were remanded in custody to await trial in the Supreme Court.^[35]

Tragically, just a few days after the Police Court hearing, Ellinor was to receive another – even sadder - blow when her two-year-old son Charles, whom she had been permitted to keep with her in gaol while awaiting trial, passed away suddenly.

An inquest into the child’s death was held at ‘The Dog and Partridge Inn’, corner of Goulburn and Barrack Streets, Hobart, on 21 September 1849. Dr W.L. Crowther, Esq., who had examined the body, was of the opinion that the child, described in court as ‘the fine little boy’, had died from natural causes. The jury returned a verdict of ‘Visitation by God’, the term commonly used at the time in reference to a death which could not be accounted for in any other way.^[36]

What happened next was quite extraordinary! To say that it was utterly unexpected would be a gross understatement!

On 24 October 1849, the Launceston Examiner published this brief notice:

The Supreme Court sat yesterday for criminal trials. To the astonishment of the inhabitants of Hobart Town, the attorney-general declined to find a bill of indictment against Michael Driscoll of the 99th regiment, and James Allen and his wife Eleanor, for the murder of James Gosling in Barrack-street some time ago, and on Wednesday afternoon they were liberated from gaol on that charge by directions of the attorney-general.^[37]

On the following day, a reader’s letter published in the Britannia and Trades’ Advocate expressed absolute amazement at this most surprising turn of events and hinted at possible reasons for it:

A soldier of the name of Driscoll, of the 99th regiment … admitted to Colonel Despard that ‘he had done the deed.’ The Coroner's jury returned a verdict of wilful murder against Mrs. Allen and Driscoll, and after another most patient investigation before the Police Magistrate (Mr. Wilmot), Mrs. Allen, and her husband James Allen, and this soldier, were fully committed for trial for wilful murder … It was quite clear that a human being had been killed, and yet the Attorney General declined to place this case before a jury. For what reason, may it be asked? Was he afraid of encountering the talent of Mr. Macdowell [Driscoll’s lawyer]? Was there any upper influence used in smothering this case? These are questions which the public of Hobart Town ask of the Attorney General …^[38]

Despite the outcry, it was all over! No further action was taken against the three accused and Ellinor was free. She was now able to get on with the rest of her life. She was still only twenty-nine years old.

But … was Ellinor ever able to make a new, and better, life for herself? Was she able to reconcile whatever differences she had with James Allen? Did she find happiness with somebody else? 

Sadly, and frustratingly, there are no answers to these questions - but there are ominous signs that she might have had difficulty in finding some sort of peace.  On the night after being given the news that the Attorney-General had decided that there was insufficient evidence to place her (with husband James and the soldier Driscoll) on trial, she was found drunk and using obscene language in the streets of Hobart. She was fined ten shillings.^[39]

Thereafter, nothing more is known of Ellinor. Did she remarry? Did she leave the colony? What became of her?

It is not easy to know what to make of Ellinor and her troubled life. The petitions received in Ireland while she had been awaiting transportation suggest that she was not an evil person. The crime for which she had been sent to VDL was of a quite trivial nature. None of her offences as a convict in the colony had been particularly bad. She seems to have been a likeable person and one who made friends easily. From the little we know, she was a good mother to her child. Her estranged husband obviously cared for her long after they had separated.

So, why was her life not easier?

Was her problem – as it was in the case of so many of the female convicts who were transported to VDL – simply one of an over-fondness of alcohol? If so, she was by no means the only one with the problem. Newspapers at the time railed frequently against the ‘extraordinary addiction to drinking’ which existed in the VDL community and which led to ‘servile devotion to the vices’ accordingly.^[40] Months before she had begun to co-habit with ‘Jemmy Ducks’, in fact, a newspaper report of an inquest into the sudden death of a Hobart woman by the name of Mary Hogg, with whom Ellinor was living at the time, had mentioned that she had been intoxicated when police had been called to a house.^[41]

Shockingly, perhaps, a search of the database of the Female Convicts Research Centre, Hobart – using the simple terms ‘drunk’ and ‘drunkenness’ - reveals that, of the 13,500 (approx.) women who were transported to VDL between 1812 and 1853, nearly 4,200 were charged with being drunk one or more occasions or were involved in offences in which excessive drinking played a part.^[42] Many of these women had been torn from their husbands and children, parents and friends, without any prospect of ever seeing them again.

Was alcohol the easiest way to alleviate their pain?