“She Was Out of Her Senses When She Did It”: Narratives of Infanticide Defense in Eighteenth-Century London
Instructor’s Comment: April Genung wrote this paper for a research seminar in history. The seminar focused on crime and the courts in eighteenth-century England; and students based their papers on The Old Bailey Sessions Papers Online, a database of the pamphlets that recount the trials held at London’s criminal court. April’s paper is a model of the papers I hoped students would write. April identified a subject—infanticide. She developed relevant questions about the effect of the development in the eighteenth century of a culture of sensibility on the courts’ treatment of women accused of infanticide. She used her research on those questions to challenge the prevailing literature on the courts’ treatment of infanticide. And she presented her findings in an essay which clearly identified the subject, her questions, her answers, and their relevance to current scholarship. Because April’s essay is so clearly written and logically structured, the reader can appreciate the sophistication of her argument.
—Norma Landau, Department of History
Rates of conviction for charges of infanticide fell sharply in the latter half of the eighteenth century. Many scholars have concluded that this change came about because jurors were becoming uneasy with harsh punishment for a crime that was difficult to prove and more sympathetic to women in desperate circumstances. Others, in particular Dana Rabin, assert that this change was driven by the “culture of sensibility” that emerged in the eighteenth century: “its emphasis on experience, emotion and sympathy explains the defenses made by the accused and suggests reasons for their acceptance by judges and juries.” Rabin declares that analyzing the trials that use language related to emotional and mental states, what Rabin terms the “language of emotion,” reveals an emergent pattern in how women defended themselves against charges of infanticide and also how this crime was viewed by witnesses and the courts. However, the percentage of trials using such defenses actually decreased from the late 17th to the late 18th centuries. Convictions did decrease, but my research shows that rather than indicating an increased receptivity to the language of emotion, this change indicates a growing dissatisfaction with harsh punishment for a crime that was difficult to prove and under a statute that was unjust and inconsistently applied.
The great majority of women tried for infanticide were charged under the Concealment of Birth of Bastards Act, of 1624, which focused on the concealment of a bastard birth as a crime, rather than the killing of an infant. This paper uses information gathered from trial records beginning in 1674—the earliest year records are accessible through the Old Bailey online database—and ending in 1803, the year the Concealment Act was repealed. During these years 200 women were tried under the Concealment Act.
The Act reads:
WHEREAS many lewd Women that have been delivered of Bastard Children, to avoid their Shame, and to escape Punishment, do secretly bury or conceal the Death of their Children, and after, if the Child be found dead, the said Women do alledge, that the said Child was born dead; whereas it falleth out sometimes (although hardly it is to be proved) that the said Child or Children were murthered by the said Women, their lewd Mothers, or by their Assent or Procurement:
For the Preventing therefore of this great Mischief, be it enacted by the Authority of this present Parliament, That if any Woman after one Month next ensuing the End of this Session of Parliament be delivered of any Issue of her Body, Male or Female, which being born alive, should by the Laws of this Realm be a Bastard, and that she endeavour privately, either by drowning or secret burying thereof, or any other Way, either by herself or the procuring of others, so to conceal the Death thereof, as that it may not come to Light, whether it were born alive or not, but be concealed: In every such Case the said Mother so offending shall suffer Death as in Case of Murther, except such Mother can make proof by one Witness at the least, that the Child (whose Death was by her so intended to be concealed) was born dead.
Under this Act, any unmarried woman giving birth to a still-born child could be charged with its murder, and as still-births were common, it was a very real possibility that an innocent woman could be convicted. Additionally, as Leon Radzinowicz notes, “this statute was one of the few in English criminal law which were framed contrary to the principle of presumption of innocence.”
Because this Act specifies that it concerns concealment of the birth of “Bastard Children,” women could be acquitted if they were in fact married. Indeed, some 22 accused women testified that they were actually married and were acquitted because of this. This defense was successful even in the face of evidence that might indicate murder, as in the case of Ann Armor, who on 4 December 1719 was indicted for the Murder of her Female Bastard Child, by throwing her into a House of Office [an outhouse], on the 27th of October last, by which she received a mortal Bruise on the Left part of the Head, of which she instantly died. It appeared that the Prisoner was deliver’d of a Child, and that the Scull of it was Crackt; that she acknowledged her being with Child, and said she was to have gone in the Morning into the Country to her Fathers to Lye in. 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.
The fact that Armor was married made her “innocent” of the crime described in the statute, though apparently she was actually guilty of killing her infant. Because these women were acquitted when they used marital status as a defense, it is evident that they were not thought to be married when they were indicted. It is impossible to determine whether these women were actually married or not, though many of the cases had witnesses who testified that the accused women were married. None of these 22 acquitted women was tried again for murder. Rabin observes “the statute and its enforcement suggest that in the seventeenth century infanticide by an unmarried woman was considered a reasoned, premeditated (though immoral and criminal) act, undertaken to preserve her reputation and her economic well-being. Such motives were not considered in the trial of a married woman accused of killing her baby, because married woman ordinarily seemed to lack any incentive to conceal the birth of a child.” This is confirmed by the testimony of Mary Dixon, herself on trial in 1735 when her newborn infant was found in a house of office, who said that she was innocent and “was under no Temptation of being so barbarous, for [she] had a good Husband who was able to maintain the Child.”
An additional inducement to concealment was the Poor Act of 1575, which contains a section “concerning Bastards begotten and born out of lawful Matrimony (an Offence against God’s Law and Man’s Law” and orders that “the Mother and reputed Father of such Bastard Child” will be “punished” by being charged by the parish “the Payment of Money weekly” for the “Sustenation” and “Relief of such Child,” and will be “committed to the common Gaol” if they fail to pay these charges. Though this act refers to both the father and mother, it was often impossible, or at least very difficult, to identify the father with any certainty; therefore, the legal and economic consequences typically fell to the mother alone. This Act created an additional difficulty for women, and may have contributed to the use of infanticide as a solution to an unwanted birth. As Frances Dolan notes, “in trying to control one form of social disorder, this legislation may have produced another”: that is to say, by attempting to place economic sanctions on unmarried mothers, the courts left poor women with no viable solution other than to destroy their infant children. Indeed, the great majority of those tried for infanticide were unmarried women working as servants.
The Old Bailey records contain one case of a man being tried for murdering his bastard infant. This man was tried for murder, not concealment, and so was the woman who bore his child. This case is recorded in the Old Bailey Ordinary’s Account, and relates the trial of Robert Foulks who, in 1679 “was left Guardian to the Gentlewoman Arraign’d with him, and . . . [with] urgent intreaties, gaind so far on her, as at last to debauch her to his bed, and had used that familiarity so often that at last she prov’d with Child.” He then forced her to give birth alone, with only himself in attendance, and when “the unfortunate babe” was born “he cruelly cram’d it down a house of Office; this was absolutely prov’d against him by several witnesses, nor was it deny’d by the miserable Gentlewoman, who was altogether ignorant of what he had done, till he himself had inform’d her what he had done with the murdered infant.” Foulks was convicted of murder, and executed; the mother of the child was acquitted. Though there are other cases in which fathers are tried for killing their children, this is the only one I was able to locate which concerned a father killing his bastard child.
Women known to be married at the time of their indictments were tried for murder rather than being tried under the Concealment Act. During the period of 1674 to 1803 there were 12 cases in which married people were on trial for murdering their infant children. Eight of these were women, but there were also four men. There were four convictions, two for men and two for women, and eight acquittals, three for men and five for women. Of those cases that resulted in not-guilty verdicts, six were ruled to be accidental deaths. The other two acquittals concerned women who were found to be “out of [their] senses” at the time of their babies’ deaths, and therefore not responsible for their murders.
The outcomes of these trials speak to the two main modes of defense used by women accused of concealing the birth of their bastard children. Either a woman would testify that the baby was still-born or died immediately after the birth, or she would testify that she had been so physically or emotionally exhausted by the rigors of childbirth that she was not aware of what had happened. Mark Jackson notes “throughout the century, both the general public and medical practitioners acknowledged that pregnancy and labour were associated with physical and emotional stress. . . . It was also recognized that the distress of labour could render women practically incapable at the birth or precipitate a temporary phrenzy or insanity. This raised the possibility that certain women might not be entirely responsible for the deaths of their children.” As further evidence that they did not intend their babies to die, women often used the “preparation defense,” in which they presented proof of preparation for the birth, such as hiring a midwife, making baby clothes or linen, or renting a room in which to “lie in.” Indeed, some 64 of the acquittals recorded in the Old Bailey used such a defense. These women testified that they had planned for the babies’ births, but they had experienced some kind of physical or emotion distress that resulted in the babies’ death.
These types of defenses are the focus of a book chapter written by historian Dana Rabin. When Rabin’s work was published in 2002, Old Bailey records were only available from 1714. Older records are now available, beginning in 1674, and these additional 40 years allow for a deeper understanding of the language of defense that was employed during this period. From 1674 to 1803, of 209 women tried for infanticide, 149 were acquitted and 60 were convicted. Of these cases, only 20 contained language relating to emotional states, or, what Rabin calls the “language of emotion.” This language was used by the accused women themselves and also by the courts and witnesses in order to describe them. Commonly used terms were “senses,” “sensible,” “silly,” “melancholy,” “phrenzy,” and “distracted.” Rabin asserts that these terms appear in trials throughout this period, but their use was more likely to result in an acquittal from the mid-century on, and that when they were employed earlier in the century their use typically resulted in conviction. However, extending the analysis to include the 40 extra years that are now available reveals that the use of such language actually peaked in the years 1674–1699 and decreased slightly as the century progressed. The following chart illustrates this trend:
Additionally, defenses using such language did not result in acquittals more often in the latter half of the century than at the beginning. As Table 2 shows, use of the language of emotion during a trial did not tend to result in the defendant being acquitted. Throughout the period only 10% of cases used the language of emotion, so this alone cannot account for the overall drop in infanticide convictions.
Guilty verdicts did decline generally, but this cannot be attributed entirely to the use of the language of emotion. Of all trials during the period of 1775 to 1803, there is only one case in which the defendant was found guilty, and this took place in 1775. There is therefore no indication that use of the language of emotion in a woman’s trial increased, nor is there evidence to support that its use resulted in an acquittal more often during the latter half of the century.
According to Rabin, “during the latter part of the eighteenth century the state of the defendant’s mind became so privileged—both by defendants and by jurors and other legal authorities who heard testimony about infanticide—that evidence about the [infant’s] body no longer determined the outcome of a trial.” However, in one of the earliest cases for which trial records are available, evidence about the condition of the infant’s body was apparently considered less significant than other evidence about the woman’s marital status, reputation, or signs that she had prepared for the birth. This is most notable in the case of a woman identified only as B. G. who was tried along with two accessories at the Old Bailey on 9 December 1691:
for the Murther of Mrs. B– G–s Female Infant, on the 4th of November last: The Evidence for the King Deposed, that the Child was found Dead, lying in a Vault, in some Old Ruined Houses, in Park-Street Westminster, being a most amazing Spectacle, having no Covering about it; and its Tongue forced out of the Mouth which was done by great Violence . . . But whether born alive or no, could not be found, and the Prisoner Mrs B– had made provision for her lying in; So in the End they were all Acquitted.
(During this period “Mrs.” was used for both married and unmarried women. Mrs. B. G. was an unmarried woman.) Though the infant’s body showed that someone had done violence to it, the court was unwilling to assign guilt to the child’s mother or her two companions and attributed this uncertainty about her guilt to the fact that she had prepared for the infant’s birth. It must be said that this case is fairly unusual, as it was more typical for trial records to declare that the infant’s body “showed no marks of violence,” but it is important to note that this case is not unique and indicates that evidence about the body was not treated consistently throughout the period.
Sometimes, as in the case above, physical evidence was less persuasive than other evidence about the accused, but in other cases the physical evidence took precedence. One such case is that of Jane Cornforth, who, on 18 May 1774, was the next-to-last woman tried and found guilty of infanticide before 1803. As the trial record reads, Cornforth “was indicted for the wilful murder of her male bastard child, by throwing it into a certain privy belonging to [her master], thereby giving to the said child in and upon the belly, a little above the navel, a mortal wound of the length of half an inch, and of the depth of a quarter of an inch, of which said mortal wound the said child did die.” The infant was alive when it was retrieved from the privy, and it was cleaned and treated by a doctor before being taken to a workhouse, where it later died. Cornforth herself did not speak in her own defense, though her words were reported by witnesses who spoke at her trial. Most significant is the testimony given by Mary Jarvis, who stated:
I asked [the prisoner] how she could commit so rash an action, and how the wound came on the belly; she said she believed it was by poking it down the vault with a stick, but she believed she was out of her senses when she did it, or else she had not done it.
In addition to this testimony about her emotional state at the time of the infant’s mortal injury, no less than seven other witnesses testified that Cornforth was “a tender, humane, good natured girl” who “bore a good character,” was “very tender and affectionate to wards children,” and “charitable and humane to the poor when they came to the door, and very kind to children.” The phrase “tender and humane” was repeated by five of the witnesses. This case directly contradicts Rabin’s assertions that the defendant’s state of mind was privileged over physical evidence. The witnesses at Cornforth’s trial are uniformly sympathetic—her master even testified that he “would have put [her] into the hospital to lie-in if [she] had acquainted [him] of this matter,” but the fact of the child being alive when it was but into the privy was apparently impossible for the jury to ignore. Jane Cornforth was found guilty and executed. Even at the end of this period, if the physical evidence was strong enough, it could outweigh the evidence about the woman’s emotional state. Because there are cases supporting Rabin’s assertion early in the period, and cases disproving it later in the period, her assertion is not supported by the Old Bailey evidence.
Defenses used in the 24 trials after 1775, all of which resulted in non-guilty verdicts, are not materially different from those used earlier in the period. In 16 of these trials the juries found that they were unable to determine if the baby was born alive, and/or there were “no marks of violence” on the body. In 7 trials the juries determined that the infant died due to injury during or immediately after the birth, or that it was born alive and died due to natural causes shortly afterwards. One case was dismissed because no witnesses appeared. Of these, only two used the language of emotion. These proportions are consistent with the trials from 1674 to 1774, which indicates that the narratives of defense used by women and their witnesses did not significantly change from the late seventeenth to the late eighteenth centuries.
By the time the 1624 Concealment Act was repealed in 1803 it had been the subject of years of debate and discussion by lawmakers. Leon Radzinowicz describes this debate as it occurred in the House of Commons during the Parliamentary Committee of 1770, in which those who argued against the 1624 Act considered it to be “an unwise, inconsistent and unjust law.” William Blackstone, writing roughly contemporary with this debate, opined that the law “savoured pretty strongly of severity, in making the concealment of the death almost conclusive evidence of the child’s being murdered by the mother,” and that “it has of late years been usual with us in England, upon trials for this offence, to require some sort of presumptive evidence that the child was born alive before the other constrained presumption (that the child whose death had been concealed was therefore killed by its parent) was admitted to convict the prisoner.” The 1803 Act, by which the 1624 statute was repealed, entitled the Malicious Shooting or Stabbing Act, clearly states why the earlier statute was repealed. It states, “doubts have been entertained respecting the true Sense and Meaning of” the Concealment Act, and it has “been found in sundry Cases, [to be] difficult and inconvenient to be put in Practice. The Act further states that any women “charged with the Murder of any Issue of their bodies, Male or Female, which being born alive would by Law be Bastard” will be tried for murder, as if the prior Act “had never been made,” and also reduces the punishment for concealment of a bastard birth to a “Time not exceeding two Years.”
It is possible to connect the sentiments behind these debates to the emergent culture of sensibility, but instead of relating the change in infanticide prosecutions to this growing sensitivity, it is more accurate to connect it to a larger change in how crimes in general were prosecuted. Trial records reveal that jurors and prosecutors were always, or at least from 1674 onward, consistently ambivalent in their attitudes toward women charged with infanticide. Although they recognized that such crimes did occur and had to be punished, they were unwilling to condemn women to death for crimes that were difficult to prove and under a statute that, in Radzinowicz’s words, was “unjust and inconsistent.” It is an aversion to this fundamental unfairness that can explain support for the new statute of 1803. It is possible that this change can be explained by the culture of sensibility, but this cannot be proven simply through the narratives of defenses offered to the charges of infanticide.