Accused of Infanticide: Evolution of a Criminal Offence in Popular Culture, 1680-1849 (by Tammy Cairns)

Accused of Infanticide: Evolution of a Criminal Offence in Popular Culture, 1680-1849 (by Tammy Cairns)

Infanticide has always been a highly emotive crime which draws upon pre-conceived ideas of femininity and maternal instinct. From the early modern period up until today, women accused of this crime have been vilified as unnatural beastly characters, capable of killing their own offspring and trying to conceal the evidence. Despite how these women have been portrayed, between 1600 and 1803 the law and parliament substantially altered how those accused were prosecuted and tried for their crimes. Throughout this essay I will be looking at the Old Bailey Proceedings between 1680 and 1849 in order to determine how infanticide changed from a crime where the defendant needed to prove their innocence, to one in which the courts needed to determine the defendant’s guilt. The trials recorded on the Old Bailey Online only highlight the number of cases that went to trial, this in no way portrays the true number of infanticides that occurred during this period. For such a secret and individual crime the true number can never be known, however, those which went to trial do give us a substantial number of cases to work from.

Throughout the seventeenth and eighteenth centuries, all known cases of infanticide resulted in unmarried mothers being tried under The Act to Prevent the Destroying and Murthering of Bastard Children (1624). This dictated that if the death of a baby was concealed, then the mother was automatically presumed guilty of murder unless she could prove her baby was a still born. Because these women were seen to be acting out violently, in a seemingly unusual and uncharacteristic way, they were seen as contradicting the traditional notions of female identity and behaviour (Kilday, 2010, p.60). Between 1624 and the Act’s repeal in 1803 ‘infanticide’ in fact covered two crimes: the murder of a new-born child; and the concealment of illegitimate children who had been born dead (Dickinson and Sharpe, in Jackson, 2002, p. 36). This meant that ultimately a woman could be taken to court, not for murder, but for the fact she had failed to inform anyone that she was pregnant or that her baby had died.

Although infanticide cases never made up more than ten per cent of the total murder cases held at the Old Bailey during the period, it does provide a rare example of a gender-specific crime where men very seldom had any direct involvement (Kilday, in Kilday and Nash, 2010, p.60). With less than five per cent of defendants being male, they were often tried alongside the mother as an accomplice, rather than being held directly responsible. Of the eleven men tried between 1680 and 1849, one hundred per cent of the defendants were found ‘not guilty’ meaning that not a single male defendant was convicted of this crime at the Old Bailey. The lack of prosecutions against men however did not prevent them being held responsible for the mothers’ downfall. William Hunter’s speech in the late eighteenth century is a prime example of this reaction, in it, he denounces the fathers of the supposedly murdered illegitimate children as the real culprits for their seduction and deception of young women (Jackson, 2002, pp.3-4). The women who ultimately get sentenced to death, although vilified, are often shown in the ordinary’s speeches as the victims of the men they trusted and were betrayed by, one such example follows in which the orderly attempts to warn men of their actions in future:

‘And as for that young Man… he having allur’d this poor wretched Creature into the great Sin of Whoredom, put her (as it were) under a necessity of committing a yet greater, I mean that of Murther… he is greatly guilty before God of both these heinous Crimes… I must desire other young Men also to take notice, so as they may avoid such heinous and provoking Sins’ (Ordinary of Newgate’s Account, January 1702 (OA17020128)).

When examining early Old Bailey Proceedings up to 1800 (just before the passing of Lord Ellenboroughs Act in 1803), we see as highlighted by the evidence on the Old Bailey website and Dana Rabin’s recent research, conviction rates for infanticide dropped sharply in England during the eighteenth century. This can be related to both the juries’ sympathy to the plight of some defendant’s on trial, but also the discomfort the legal authorities had with the hard 1624 statute (Rabin, in Jackson, 2002, p.73). With the exception of the 1730s which has a somewhat unexpected high ‘guilty’ rate, the number of convictions continues to remain lower than those of the previous century. This could be due to the fact that most judges and juries were unwilling to sentence women to death without solid proof that she had either murdered her child, or concealed its death for malicious reasons.

The first case of what Margaret Hunt calls the ‘childbed linen defence’ occurred in the trial of Mary Campion in December 1689. Such defence was particularly popular between 1712 and 1735 when it was used in seventy five per cent of trials and was successful in all but three of them (Clayton, 2009, p.341). This line of defence highlighted the mother’s intention to provide for her baby, and was often used in conjunction with making arrangements to lie in after the birth, or advising local midwives of the pregnancy. In the courtroom emphasis was often placed on the marital status of the defendant, the evidential weight of concealment and on the preparation for the arrival of the baby (Jackson, 2002, p.2). If a mother had prepared clothes or linen for the child or informed someone she was expecting, then the courts assumed she had not intended to conceal the child’s death (Jackson, 1996, p.34). Due to these dubious forms of evidence, from 1710 onwards acquittals were almost consistently above eighty per cent. This brings the overall outcome of trials for this period to 66.16 per cent of defendants being found ‘not guilty’ between 1674 and 1849, which accounts for two thirds of those tried at the Old Bailey. As the cases of Rebecca Prince in 1723 and Sarah Russell in 1782 show, the courts were willing to take into account the defendants’ circumstances and good character in relation to the crimes committed, thus moving away from the previous hard line of the 1623 statute. In both these cases the circumstances of delivery are also mentioned in court to account for the subsequent death of the babies.

Of those found guilty of infanticide before the 1880s, one hundred per cent were sentenced to death, which confirms the tough stance the courts took on those women found guilty, but also again helps to justify the high number of acquittals we see during the eighteenth century in particular. It was not until Lord Ellenborough’s 1803 Act that the law on infanticide was revised, meaning the court would need to prove the murder of the baby to ensure a conviction, rather than the dubious evidence of hearsay. In this respect for the first time infanticide was tried in the same way as other murders, with the exception that when a murder charge was likely to be impossible to prove, the court could instead try the mother for ‘concealment of birth’ which carried a maximum of two years imprisonment (King in Arnot and Usborne, 1999, p.70). From 1803 where the lesser charge of ‘concealment of birth’ was an option to jurors we still appear to have a relatively high acquittal rate, and of those found guilty in the 1840s almost a third of women received no punishment. This confirms not only the change in attitude of the courts but also wider society as the crime became better understood. No longer were these women assumed guilty of murder, instead their wider economic circumstances were taken into account as to why they would conceal their pregnancy in the first place. Reasons were primarily due to shame and the fear of losing permanent employment. Most defendants were unmarried domestic servants, who were particularly vulnerable if they became pregnant as it would often result in instant dismissal without references (Rose, 1986, p.19).

From 1711 onwards, the use of both midwives and surgeons became common throughout the majority of the Proceedings (Clayton, 2009, p.347). The case of Sarah Russell in 1782 is a good example of this. Both a surgeon and midwife provide evidence of how the injuries on the baby’s throat could have been caused by the mother delivering the baby alone. Also taken into account is the ripped cord and lung test, which was used to determine if the baby was still born by testing whether the lungs float or sink (trial of SARAH RUSSELL (t17820703-47)). The fact that these medical witnesses do not appear until the eighteenth century is not to say that they were not used before, however, due to the early Proceedings being so limited, a lot of the trial details were omitted which could have resulted in such testimonies being excluded. The use of midwives and surgeons in the court gave credence to medical testimony, and the increasing demand for post mortems on babies helped determine the cause of death, whether the baby was born alive or still born and also whether it was carried to full term (Clayton, 2009, p.348). This emphasises the shift away from the mother’s character and her ‘set out intentions’, to more medical orientated evidence. The shift in focus towards medical testimony also accounts for the large number of acquittals during the eighteenth century.

For those women accused of infanticide and who were unable to prove their innocence, then up until the 1800s their guilt would result in the death sentence being passed. The strict punishment can often be related to how the crime was perceived to society in general. One case which stands out is that of Mary Mussen who in May 1757 was found guilty of the murder of her child and sentenced to ‘death and dissection’. Throughout this trial both a number of medical and character witnesses are bought forward to provide evidence to try and establish why the baby’s throat would have been cut and if the defendant was capable of such a barbaric act (trial of Mary Mussen (t17570526-22)). The date of the trial in 1757 also emphasizes that although the courts were willing to acquit the majority of infanticide cases, in those such as this one, where murder was the definite cause of death, then the death penalty was the only option. Despite the number of character witnesses who appeared in court for the defence, due to the sheer manner in which the baby was murdered, the death penalty was not enough for the courts and they ordered Mary to be executed the next day and her body sent to the anatomist.

The criminal records from the early modern period right up to the first third of the twentieth century reveal that maidservants formed a large and constant proportion of the women charged with new born murder. This is not to say that the domestic servant was any more sexually active then other working class girls, they just happened to have fewer options when they fell pregnant. Their close proximity with their employers and fellow servants meant pregnancies were often noticed and suspected. Often as the Proceedings reveal it was family members, employers, neighbours or fellow domestics who remained integral to the initial detection of the crime (Kilday and Watson, 2008, p.89) and who provided key witness statements in the courts. As previously discussed, during the seventeenth and eighteenth centuries it was common for unmarried women who gave birth to illegitimate children to be charged of infanticide under the 1623 Act if the child was subsequently found dead. The trial of the unnamed ‘wench’ on 24th October 1679 gives a prime example of this:

Having been turned out of her parish while in labour ‘In this sad condition in the street, and without any help was this poor Creature delivered… a midwife was called, who found the Child dead, but not separated from her Body… nor did there any signs of Violence appear… however being a Bastard Child, and the law makeing [sic] it death in that case for any woman to be delivered alone without calling help, she was thereupon found Guilty’ (trial of Wench (t16791015-2)).

The unnamed women in the above trial was later reprieved but the fact that there was no evidence of the baby dying other than natural means highlights how unfavourable the law was towards unmarried mothers in the seventeenth century. If we compare this to the trial of Ann Armor in 1719 we see how the defendants acquittal was ultimately down to her marital status ‘The Indictment being laid for the Murther of her Bastard Child, and it fully appearing that she was a Married Woman, the Jury Acquitted her’ (trial of Ann Armor alias Armstrong (t17191204-7)). This trial does not account for how the baby died (natural means or murder); it just uses the wording of the statute as a loophole to acquit Ann Armor. Both these cases provide examples of how illegitimate children and their mothers were regarded by the 1623 Act and show the dangerous position young unmarried women were in during this period.

Mary Clayton points some of the responsibility for the change in attitudes towards women tried for infanticide under the 1803 Act on the judges, lawyers and surgeons who provided these women with the excuses they needed to survive. These defendants were now presented in court as passive victims (Clayton, 2009, p.353). The case of Harriet Longley who in April 1841 was found guilty of infanticide and sentenced to death was recommended for mercy. Her extreme poverty and distressed state were reasoned for her actions. (trial of HARRIETT LONGLEY, alias Eliza Harris, (t18410405-1120)). After this case only three other women were sentenced to death for infanticide until 1913 where the proceedings online end.

In conclusion although infanticide has always been regarded as a beastly act, during the eighteenth and early nineteenth centuries we see a shift away from all those charged being villains, to one in which the circumstances of the mother are taken into account. Although the death sentence remained the only punishment until the nineteenth century, we do see an increasing number of acquittals as juries and judges became uneasy sentencing women to death without solid evidence that the baby was murdered or the pregnancy hidden from others. Such changes led to the increasing presence of doctors and midwives which acted as predecessors to the trials we see today that rely almost entirely on medical and psychological evidence. Although throughout this period we do not see much evidence of psychological understandings of post-natal depression the defendant’s circumstances before the birth are contributed to the trial in an attempt to gain a greater understanding of the case. After 1803 and the inclusion of ‘concealment of birth’ charge and verdict we see a substantial drop in the number of death sentences and instead see imprisonment become the primary sentence passed.

Bibliography

Primary Sources:
Proceedings
Old Bailey Proceedings Online (www.oldbaileyonline.org, version 6.0, 02 November 2011 & 7th November 2011),
Trial of Wench for infanticide, October 1679 (t16791015-2). – accessed 02-11-2011
Trial of Ann Armor alias Armstrong for infanticide, December 1719 (t17191204-7). – accessed 02-11-2011
Trial of Rebecca Prince for infanticide, February 1723 (t17230227-3). – accessed 07-11-2011
Trial of Mary Mussen for infanticide, 26th May 1757 (t17570526-22) – accessed 07-11-2011
Trial of SARAH RUSSELL for infanticide, July 1782 (t17820703-47). – accessed 07-11-2011
Trial of Harriett Longley, alias Eliza Harris for infanticide, April 1841 (t18410405-1120) – accessed 02-11-2011
Ordinary Accounts
Old Bailey Proceedings Online (www.oldbaileyonline.org, version 6.0, 02 November 2011),
Ordinary of Newgate’s Account, January 1702 (OA17020128)

Secondary Sources:
Clayton, M. (2009), ‘Changed in Old Bailey trials for the murder of newborn babies, 1674-1803’, in Continuity and Change, vol. 24, no. 2, pp. 337-359
D’Cruze, S. and Jackson, L. A. (2009), Women, Crime and Justice in England since 1660, Basingstoke: Palgrave Macmillan
Kilday, A. M and Watson, K. D. (2008), ‘Infanticide, Religion an Community in the British Isles, 1720-1920: Introduction’, in Family and Community History, vol. 11, no. 2, pp. 84-99
Kilday, A. M. (2010), ‘Desperate Measures or Cruel Intentions? Infanticide in Britain since 1600’, in Kilday and Nash, (eds.), Histories of Crime: Britain 1600-2000, Basingstoke: Palgrave Macmillan
King, P. (1999), ‘Gender, Crime and Justice in late eighteenth and early nineteenth century England’, in Arnot, M. L. and Usborne, C. (eds.), Gender and Crime in Modern Europe, London: University College London, pp. 44-74
Jackson, M. (1996), New Born Child Murder: Women, Illegitimacy and the Courts in Eighteenth Century England, Manchester: Manchester University Press
Jackson, M. (ed.), (2002), Infanticide: Historical Perspectives on Child Murder and Concealment 1550-2000, Aldershot and Burlington: Ashgate
Rose, L. (1986), The massacre of innocents: infanticide in Britain, 1800-1939, London: Routledge

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