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Justice Not Done : The Hanging of Elizabeth Workman

  • Scott M. Gaffield (a1)
Abstract

Throughout Canadian history, there has only been a single woman hanged contrary to the jury's recommendation : Elizabeth Workman. Hanged in 1873 in Sarnia, Ontario, she was a working-class immigrant mother, who had been convicted of the murder of her husband. This article seeks to advance our understanding of the hanging of Elizabeth Workman by reporting on a comprehensive study of a series of interrelated questions : why was Elizabeth Workman convicted? Why was she recommended for mercy? Why was this recommendation not accepted? To best answer these questions, a wide range of primary and secondary sources were consulted, including the capital case file, census records, local newspapers, and more recent scholarship on the social and legal context in which her trial and execution took place. The answers to these questions suggest that Elizabeth Workman thus became the only woman ever hanged in Canada contrary to a jury's recommendation for mercy as a result of the specific convergence of individual actions, social context, and legal culture and practice.

Dans l'histoire judiciaire du Canada, une seule femme fut exécutée contre la recommandation du jury : Elizabeth Workman. Pendue en 1873 à Sarnia, en Ontario, cette mère de classe ouvrière et immigrante avait été condamnée du meurtre de son époux. Cet article vise à approfondir notre compréhension de la pendaison d'Elizabeth Workman en répondant à un ensemble de questions reliées : Pourquoi fut-elle condamnée? Pourquoi le jury recommanda-t-il qu'elle soit graciée? Pourquoi cette recommandation ne fut-elle pas acceptée? Pour répondre de manière fondée à ces interrogations, un corpus substantiel de sources primaires et secondaires a été consulté, incluant le dossier judiciaire, des données de recensements, des quotidiens locaux ainsi que des travaux scientifiques plus récents sur le contexte social et légal du procès et de l'exécution. Ces données suggèrent qu'EIizabeth Workman est devenue la seule femme à être exécutée contrairement à la recommandation d'un jury suite à une convergence d'actions individuelles, du contexte social et de la culture et pratique légales.

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1 “Execution of Mrs. Workman for the Murder of Her Husband: The Final Scene” Toronto Evening Mail (June 20, 1873) 1.

2 These campaigns had a 56 % success rate. National Archives of Canada, RG 13, C. 1.

3 ibid.

4 Swainger, Jonathan, The Canadian Department of Justice and the Completion of Confederation, 1867–1878 (Vancouver: University of British Columbia Press, 2000) at 72.

5 Anderson, Frank W., A Dance With Death: Canadian Women on the Gallows, 1754–1954 (Toronto: Webcom, 1996) at 220.

6 Ibid. at 220.

7 Greenwood, F. Murray & Boissery, Beverley, eds., Uncertain Justice: Canadian Women and Capital Punishment (Toronto: Dundurn Press, 2000) at 156.

8 Ibid. at 157.

9 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Osgoode Society, 1991) at 1.

10 “Suspected Murder: A Man Beaten to Death” Toronto Evening Mail (October 29, 1872) 1.

11 NAC, RG 13, vol. 1410, File 64A.

12 The census data is useful, though it must be examined with a critical eye as errors are not uncommon in the reproductions of these early federal censuses. Errors could have occurred in the transcription from the original documents, and it is also difficult to distinguish between individuals of the same name, especially when the rest of the information provided is not necessarily reliable.

13 “Execution of Mrs. Workman” Sarnia Observer and Lambton Advertiser (June 20, 1873) 2.

14 “Local News” Sarnia Observer and Lambton Advertiser (November 8, 1872) 2.

15 Age estimates for James Workman range from 55 into his mid-sixties, depending on the source. The case file itself does not give any age, and the census records could certainly be erroneous. In fact, there is no James Workman listed in Lambton County in 1871. There are two other listings of James Workman, a 55-year-old Scot butcher who lived in Perth South, and a 66-year-old English farmer who lived in Oxford North. Though it is unclear why he is listed as living in Perth, the first of those two appears to be the most likely to refer to the James Workman in question, though 55 is likely less than his actual age. In the trial, it is revealed that butcher tools were around the Workman home, one of which was reportedly used by Elizabeth to deliver the fatal blow. The age gap between Elizabeth and James is noted many times in the newspaper articles, however, and so the best estimate puts James Workman at somewhere in his early sixties at the time of his death, about twenty years older than his wife.

16 Trial testimony of Sarah Patterson, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

17 “Execution of Mrs. Workman” supra note 13.

18 Trial testimony of Hugh Workman, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File64A.

19 Trial testimony of Sarah Patterson, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

21 “Local News” Sarnia Observer and Lambton Advertiser (November 8, 1872) 2.

22 “Man Killed in Mooretown” Sarnia Observer and Lambton Advertiser (November 1, 1872)2.

23 Howe, S.G., Report to the Freedmen's Inquiry Commission, 1864: Refugess from Slavery in Canada West (Boston: Wright & Potter, 1864) at 102.

24 Ibid. at 43.

25 Ibid. at 31.

26 Ibid. at 35.

27 Ibid. at 45. There are many other testimonies to the racist environment in Canada in Howe's Report, including statements such as “Niggers are a damned nuisance,” from a head clerk at a Hamilton hotel (at 40), and “niggers are a low, miserable set of people, and I wish they were not here,” from the Head Magistrate in Maiden (at 41), who was not named.

28 Ibid., at 40.

29 Bettina Bradbury notes there were many differences between family models, depending on social class, and so the Workman family can, and should only be compared to other working-class families of the time. (Bradbury, Bettina, Canadian Family History: Selected Readings (Mississauga: Copp Clark Pittman, 1992) at 212.)

30 As S.J. Wilson notes: “The lack of power women have in determining the economic condition of their lives is reflected and reinforced in personal interaction.” (Wilson, S.J., Women, Families and Work, 3rd ed. (Whitby, Ont.: McGraw-Hill Ryerson, 1991) at vii).

31 Bradbury, Bettina, Working Families: Age, Gender and Daily Survival in Industrializing Montreal (Toronto: McClelland and Stewart, 1993) at 4951.

32 Margrit Eichler emphasizes the fact that only 11 divorces were registered in Canada in 1900, notes the reluctance of public assistance programs to replace what an able-bodied father did not provide, and asserts: “Such women and children were doubly trapped: they were forced into economic dependency on one man, but when the man failed to support them, no one else took over his role” (Eichler, Margrit, Family Shifis: Families, Policies, and Gender Equality (Toronto: Oxford University Press, 1997) at 1012.). In retrospect, it is certainly not clear that James Workman was able-bodied, because of his age, but at the time, it is less likely that he was viewed in such a sympathetic light, largely because of society's disdain for his drinking.

33 Bettina Bradbury notes the differences in practice between social classes for laws that concerned women. (Bradbury, supra note 31 at 50).

34 Nancy Mandeli and Ann Duffy describe this transition in some detail, as they assert that this period was the foundation of a family structure that did not change significantly until the early 1980s. This model held the father as the provider, and the mother as the homemaker. (Mandeli, Nancy & Duffy, Ann, Canadian Families: Diversity, Conflict and Change, 2nd ed. (Toronto: Harcourt, 2000) at 517).

35 Emily Nett describes the effects of increasing urbanization and industrialization, noting the changes in family structure that this trend brought. She notes that 1/8 of paid workers in Canada in 1891 were women, often through part-time labor that they did in their home. The washing that Elizabeth Workman did for Samuel Butler is a perfect example of this type of labor. (Nett, Emily M., Canadian Families: Past and Present, 2nd ed. (Toronto: Butterworths, 1993) at 4751).

36 Eichler mentions this double-standard, even noting that adultery would render a woman unfit in the eyes of the courts to retain custody of children, but would not have the same effect for a man. (Eichler, supra note 32 at 11). Interestingly, Nett does not make this distinction, rather stating that “perhaps monogamy is the oldest tradition,” not limiting it to either sex. (Nett, ibid. at 96).

37 Silverman, Robert A., Teevan, James J. Jr., & Sacco, Vincent F., Crime in Canadian Society, 4th ed. (Markham: Butterworths, 1991) at 70.

38 Carrigan, D. Owen, Crime and Punishment in Canada: A History (Toronto: McClelland & Stewart, 1991) at 449.

39 Weaver, John C., Crimes, Constables and Courts: Order and Transgression in a Canadian City, 1816–1970 (Montreal: McGill-Queen's University Press, 1995) at 265–69.

40 “Return of Convictions” Sarnia Observer and Lambton Advertiser (May 2, 1873), (July 18, 1873), (October 17, 1873), (January 23, 1874) all on page 1.

41 Weaver, supra note 39 at 75.

42 Trial testimony of Samuel Judson, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

43 Trial testimony of Peter Mayhew, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

44 Trial testimony of Samuel Judson, supra note 42 and trial testimony Peter Mayhew, supra note 43.

45 Trial testimony of Hugh Workman, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

47 Trial testimony of David Patterson, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

48 Trial testimony of Hugh Workman, supra note 45.

49 Trial testimony of Edward Oliver, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

50 Trial testimony of Sarah Patterson, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

53 Trial testimony of Hugh Workman, supra note 45.

54 Trial testimony of Sarah Patterson, supra note 50.

56 Trial testimony of Hugh Workman, supra note 45.

57 Trial testimony of Sarah Patterson, supra note 50.

58 Trial testimony of Robert Richmond, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

60 Trial testimony of Hugh Workman, supra note 45.

61 Trial testimony of Sarah Patterson, supra note 50.

63 Trial testimony of David Patterson, supra note 47.

64 Trial testimony of Sarah Patterson, supra note 50.

66 Trial testimony of Mr. Brooks, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

67 Trial testimony of Sarah Patterson, supra note 50.

68 Trial testimony of Edward Oliver, supra note 49.

69 “Suspected Murder: A Man Beaten to Death” supra note 10.

70 Trial testimony of Sarah Patterson, Sarnia, supra note 50.

71 Jury's verdict, Coroner's Inquest, County of Lambton, November 4, 1872, NAC, RG13, vol. 1410, File 64A.

72 “Man Killed in Mooretown,” supra note 22.

74 “The Assizes” Sarnia Observer and Lambton Advertiser (March 28, 1873) 2.

75 Federal Census of 1871, Ontario Index, NAC, RG 31.

76 Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

77 Wallace, W. Stewart, The Macmillan Dictionary of Canadian Biography (London: Macmillan, 1963) at 805.

78 Statement of Judge Wilson, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

79 Statement of Judge Wilson, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

81 “The Assizes,” supra note 74.

82 Jury's Verdict, Sarnia, County of Lambton Criminal Court, March 21, 1873, NAC, RG13, vol. 1410, File 64A.

83 “Mrs. Workman's Case” Sarnia Observer and Lambton Advertiser (April 18, 1873)2.

84 Swainger, supra note 4 at 56.

85 NAC, RG 13, vol. 1410, File 64A.

88 Letter from John A. Macdonald to the Earl of Dufferin regarding Mrs. Workman's case (1873) NAC, RG13, C1.

89 NAC, RG13, vol. 1410, File 64A.

90 Trial testimony of David Patterson, supra note 47.

91 “Mrs. Workman's Case” Sarnia Observer and Lambton Advertiser (June 13, 1873) 2.

92 Edward Oliver, Samuel Judson, Robert Richmond, Mr. Brooke, petitioners, Mooretown (April 1873) NAC, RG13, vol. 1410, File 64A.

93 Jury's verdict, Coroner's Inquest, County of Lambton, November 4, 1872, NAC, RG13, vol. 1410, File 64A.

94 Edward Oliver et al., supra note 92.

95 “Man Killed in Mooretown,” supra note 22.

96 Noel, Jan, Canada Dry: Temperance Crusades Before Confederation (Toronto: University of Toronto Press, 1995) at 11.

97 The first quote is taken from Noel, Ibid. at 132, and the second from “The Drunkard's Daily Experience” Sarnia Observer and Lambton Advertiser (July 25, 1873) 1.

98 “Man Killed in Mooretown,” supra note 22.

99 Opinions on this vary, as four of the petitions describe her as “sober,” while the fifth describes Elizabeth Workman as “addicted to intemperance.” Mr. Elliot, foreman, and 16 other petitioners, Grand Jurors of the Court of General Sessions (1873) NAC, RG 13, vol. 1410, File 64A and Edward Oliver et al, supra note 92.

100 Charles Taylor and 119 other petitioners, addressed to the Earl of Dufferin (1873) NAC, RG 13, vol. 1410, File 64A.

101 Ibid.

102 Edward Oliver et al, supra note 92.

103 Ibid.

104 Ibid.

105 “Mrs. Workman's Case,” supra note 91.

106 Ibid.

107 Ibid. An error was made in the logic of the county council, however, since the cases to which they referred did not prove their argument — Horton had been allowed to live because of a mental condition. (NAC, RG 13, vol. 1409, File 42A)

108 Sarnia County Council Minutes, June 10, 1873, NAC, RG 13, vol. 1410, File 64A.

109 Swainger, supra note 4 at 64.

110 Ibid. at 64. This statement, though certainly demonstrative of Macdonald's feelings on the issue, is not necessarily representative of the entire public opinion concerning Black men and White women. As S.G. Howe argues in his report, some believed that “the respect paid to women, by colored men, as soon as they become free, is one of the most hopeful signs for the race.” (Howe, supra note 23 at 95–96)

111 Ibid. at 59–60.

112 Ibid. at 60.

113 NAC, RG13,C1.

114 Ibid.

115 Swainger, supra note 4 at 59.

116 Ibid. at 59.

117 Kramer, Reinhold & Mitchell, Tom, Walk Towards the Gallows: The Tragedy of Hilda Blake, Hanged 1899 (Toronto: Oxford University Press, 2002) at 184.

* For comments on earlier versions of this paper, as well as discussions that aided greatly with my work, I am grateful for the assistance of Jay Gitlin, Gerald Friesen, Chad Gaffield, Constance Backhouse, Robert Gordon, and the Journal's anonymous reviewers.

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Canadian Journal of Law and Society / La Revue Canadienne Droit et Société
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