Infanticide in the Early Modern Period: Account for the Relatively Low Conviction Rate in Cases of New-born Child Murder in England

In the early modern period, there was a huge stigma attached to having a child born outside of marriage. The distress and shame of the unmarried mothers-to-be would sometimes manifest itself in a mania, which led the new mother to murder her baby during birth. Not all women showed signs of mental illness; some babies were murdered with deliberate violence. However, not all women were guilty of murder, some were accused of murder on the basis of being unmarried and concealing a stillbirth. Many of the women accused of new-born child murder, gave birth in secret, were poor and without familial support. An unmarried pregnant mother faced the probability of losing her livelihood. Many of the women accused were live-in domestic servants; and once found to be pregnant they were likely to be dismissed. The father of the child would often be a male member of the household; her employer or male servant. Without livelihood and home, the unmarried mothers would be left in abject penury. The accused would also lose her standing in the community, especially in rural areas were societal gossip was rife and neighbours could be hostile towards an unmarried pregnant woman due to her perceived immorality. Towards the end of the eighteenth century, the conviction rate declined in the cases of new-born child murder and this essay will address some of the reasons why this occurred.

Legislation was passed in 1624 which outlawed new-born child murder and the concealment of a stillbirth by a single mother. The Act to Prevent the Murdering of Bastard Children preceded the ‘”infanticide wave” possibly resulting in more executions than the more familiar witch-craze.’ Gaskill states that the Jacobean statute was part of a re-emphasising of the ‘heinousness of murder’ as it followed other Acts in the late fifteenth century and early sixteenth century that highlighted specific methods of murder. However, Sharpe argues that the English legislation was, to a large extent, ‘the control of sexual morality as much as in defence of infant life.’ Jackson agrees with Sharpe and states that the persistent indictments of single females for neonaticide ‘stemmed from concerns about the appropriate behaviour of unmarried women, covert sexual relationships and about the financial burdens of bastardy,’ which was demonstrated by the Acts that preceded the Jacobean Statute. In 1576 and 1610 respectively, legislation was passed to punish financially incompetent parents of illegitimate children and to enable justices of the peace to imprison unmarried mothers for one year.

In a puritanical seventeenth century, sex inside marriage was for procreation, sex outside marriage was fornication, and was sinful. The 1624 statute criminalised the concealment of a stillbirth by a single mother. It implied that the concealment of the dead baby’s birth was due to its murder, rather than the shame that its illegitimacy might bring to the mother. During the earlier decades of the statute, the letter of the law was most keenly followed, with eleven of the twelve women brought to trial in Essex between 1630 and 1639, hanged. Between 1670 and 1679 four out of eighteen women who were tried for new-born child murder were hanged. This Act remained in force until1803, when the relatively low conviction rate caused its repeal.

One experiment to prove the guilt or innocence of the accused was to check if the child had been born with clenched fists; if the baby was born with clenched fists it was stillborn. Another was the hydrostatic lung test. This was an experiment that used the lungs of the supposed victim that had been removed from the body during a post mortem. The lungs were placed in a vat of water and if they floated it was believed that the child had drawn breath and was born alive. If they sank, the baby had been born dead and had never drawn breath. This was popular in the early days of the statute but its use became contentious by the mid-1700s as many surgeons and judges found these tests implausible and refused to accept the results as definitive medical evidence.

Sharpe suggests that the pattern of behaviour in English society changed and that the country appeared to become a less violent place as the homicide rate dropped between 1660 and 1800. He concludes that ‘some important changes took place in the social psychology of the English.’ Indeed, Clayton has also noted this “’sensibility’” in neonaticide discourse. This change in societal behaviour occurred in an era that was ‘strongly influenced by the use of scientific method, rationalism and the political and philosophical ideas of the enlightenment.’ According to Jackson, nearly 200 women were prosecuted in the northern circuit courts of Yorkshire, Westmoreland, Cumberland and Northumberland ‘between 1720 and 1800, only six were found guilty and, of those, only two were hanged.’ The statistics demonstrate that although many women were still being indicted for the crime of new-born child murder, a large proportion of women were being acquitted throughout the eighteenth century.

The women accused of new-born child murder used several defence strategies to win acquittal. For example, she would demonstrate that she had bought linens, usually to make a layette for the baby. This indicated that the mother had prepared for the birth and the future life of the baby. This was the defence used by Ann Brean in 1788, at the Old Bailey, who had given birth to a ‘female bastard child.’ The mother sometimes protested at the trial that she had not felt the baby move for one or two weeks, Walker states this was a ‘common assertion made by women accused of neonatal infanticide.’ This would assist in the defence of stillbirth. It would possibly indicate that the baby had died in the womb and therefore had been born dead. Some women would produce character witnesses. They would be able to vouch for the previous good character of the accused. The accused could also claim “’want of help.’” She would have to demonstrate that she had called for help during her labour which proved that she did not intend to conceal the birth. Women who had performed a violent act towards their babies at birth might claim temporary insanity; that the pain of labour and grief of their plight induced a malady that would lead to violence. They could not claim a straightforward stillbirth; for some, this remained the only chance of receiving an acquittal. Some of the women accused employed defence counsel. For example, Ann Brean and Rebecca Cowley, who was acquitted at the Old Bailey in 1781. Ann’s defence counsel referred to her throughout the Proceedings as ‘the poor woman’ and questioned the witnesses cleverly as he referred to the ‘accident’, inferring to the jury that it was just that, an accident, and not new-born child murder. Rebecca used witnesses to bolster her defence, her employer vouched for her previous good character and a surgeon testified that there did not appear to be any indication of violence against the child.

Clayton argues that the 1624 statute was being interpreted differently by 1715 and in practice the assumption of guilt seems to have changed and in its place was the belief of wilful intent. This development was ‘a change from the evidence required for conviction by statute law to that for common law.’ Historians agree that it was a combination of good defence strategies; professional people appearing in court as witnesses, or lawyers to cross-examine witnesses, combined with the changing sensibility that became evident during the eighteenth century, that accounted for the low conviction rate.

Gaskill demonstrates in Crime and Mentalities, that the judiciary had started to distrust the previously acceptable supposition and conjecture and looked for a more scientific or empirical conclusion. This included denouncing the assumption of guilt by concealing the infant’s body. An indication of the enlightenment extending to the criminal arena was the humanity shown to the accused as the eighteenth century progressed. Furthermore, Jackson argues that the leniency shown by the judges was legitimised by the repeal of the 1624 statute in 1803.

The statistics demonstrate that the conviction rate for those accused of new-born child murder was relatively low. Several factors facilitated this change over a period of time. The male-dominated judiciary rejected the statute’s assumption of guilt, became more sceptical of the evidence presented in court and showed more compassion to the women accused. The accused also became more successful in their defence and with the help of counsel and expert medical testimony they were able to prove their innocence. Undoubtedly, some guilty women won a reprieve, but judges in the new era of sensibility saw the accused as victims of circumstance and not as common murderers.

 

Image from Wikimedia Commons

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