HIST 3130 Chapter Notes - Chapter 5: Puritans, Tyburn, Uxoricide

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9 Aug 2016
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Week 5
Changes in Old Bailey Trials for the Murder of Newborn Babies, 1674-1803
– Mary Clayton, 2009:
Introduction:
In her trial for killing her male infant bastard child in December 1961 Mary Mott ‘could not
prove that it was still born, as she alleged; so she was found guilty of willful murder
In February 1802 Mary Lucas was indicted for murdering her male bastard child, but ‘the
surgeon not being able to prove that the child was born alive, the prisoner was acquitted’
Changes in the implementation of the James I statute have been well documented, but
existing analyses have been primarily broad-brush in their focus – this article aims to chart
developments in trials that took place specifically at the Old Bailey in London over 130 years,
from 1674 when the Proceedings of that court were first published to 1803 when the King
James statute was replaced: that is, to chart the journey from Mary Mott to Mary Lucas
Those changes started with the desperate efforts of women who found themselves in a dire
situation, attempting to circumvent the harshness of the 1624 statute and thereby save their
lives
Their efforts were boosted by developments in court procedures, in the increase in lawyer
participation in trials, and in changes in the number and type of medical witnesses and
evidence presented in court – these 3 strands of change are interwoven and interdependent
and were influenced by the emergence of what has been termed ‘sensibility’
Underlying these strands is the dichotomy of statute law vs. common law – this article
explores this dichotomy before outlining the development of defence strategies used by the
women, followed by the role of court and lawyers in supporting their claims, before looking at
the part played by the medical practitioners; it will also address the issue of female agency,
and whether these women lost power over their lives as the professionals took firmer control
of the trial process
The Old Bailey Records:
The early Proceedings give very few details of the alleged offences, each publication being
only 4-9 pages long – in addition, less than a third of the Proceedings have survived for the
first decade of the 18th century
Although some trials were more fully reported between 1712 and 1729, detailed analysis of
this source is only really possible from December 1729 when the Proceedings were
expanded to 24 pages – from this date it is easier to follow developments in legal procedures
and defence strategies, and in the use of medical evidence
Through these fuller reports it is also possible to sense a difference in the disposition of
witnesses, counsel and juries to the circumstances these women found themselves in –
however, even these fuller reports were not verbatim accounts; they were heavily edited and
witness evidence was frequently summarized or omitted, particularly if given for the defence
On the ‘Proceedings of the Old Bailey Online’ website there are 204 trials categorized as
infanticide between 1674 and 1803 – not all of these trials were for the murder of newborn
babies, although the vast majority were
There is also evidence of additional trials to be found in the Ordinary of Newgate’s Accounts
and similar anonymous ‘dying confessions’, and in depositions held at the London
Metropolitan Archive for those periods when editions of the Old Bailey Proceedings have not
survived
In total I have found 220 cases of alleged newborn child murder for this period
In the first 40 years of this study, between 1674-1714, there is evidence of 90 trials in which
48 women were found guilty – 46 claimed that their child was either stillborn or not full-term or
that they had miscarried; 6 of the 42 acquitted were able to prove they were married and
therefore were not considered to be within the scope of the law, as the law was specifically
aimed at ‘lewd’ women who concealed the births, and deaths, of their bastard children
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Week 5
In the remaining 89 years of this study there were 130 trials, in which only 20 women were
found guilty, and none after December 1775 – in these 130 trials, 7 claimed the child was
either stillborn or not full-term or that they had miscarried; 13 claimed to be married, but had
been indicted on the 1624 statute
From Statute to Common Law:
From around 1715 proof of guilt seems to have changed in practice from that laid down by
the 1624 statute – the concealment of death of a bastard child – to the standard of proof
required to convict any other person of murder, that of willful intent: a change from the
evidence required for conviction by statute law to that for common law
In the 45 trials between 1674 and 1690, the James I statute was read or referred to in court
19 times, but it was read or referred to in only 3 trials between 1715 and 1735, each time
resulting in a guilty verdict
There were, however, signs of violence on all 3 babies in these cases, one, that of Elizabeth
Ambrook, having been thrown out of a window – 3 times in the 1740s the statute was printed
as a footnote to infanticide trials in the Proceedings
In one of these trials, that of Elizabeth Shudrick in October 1743, the Court asked her, ‘Can’t
you should that you did not conceal the Death of this Child?’ – she could not but was still
acquitted, as she had prepared some linen for the child, and she also had a child of about 5
years old living
Later in the century confusion arose when a defendant was dismissed by the Grand Jury but
indicted by the Coroner’s Inquisition – in February 1779 Mary Anne Henichose was charged
on the Coroner’s Inquisition with the willful murder of her female bastard child, although the
Grand Jury had thrown out the bill of indictment; not surprisingly, the witnesses did not
appear, and the case was dropped
Development of Defence Strategies:
Once a woman had been accused of killing her newborn child, she had to answer the charge
laid against her, first at the Coroner’s Inquisition and then, if the Grand Jury deemed there
was a case to answer, before the judges of the Old Bailey
With the lack of detail in the early Proceedings it is difficult, much of the time, to discern what
defence the accused offered the court, apart from asserting that the child was stillborn
As the law started that unless the mother of a bastard child could prove ‘by one witness at
least, that the child (whose death was by her so intended to be concealed) was born dead’
she was to be found guilty of murder, the only defence possible should have been presenting
a witness to corroborate the mother’s assertions
Despite this, several successful defence strategies emerged over the years, which were
helped by the changing attitudes towards unmarried mothers, both within the courts and in
society at large
The first recorded instance in the Old Bailey Proceedings of what Margaret Hunt calls the
‘childbed linen defence’ occurred in the trial of Mary Champion in December 1689 – the
Proceedings state that ‘she being found to make good provision for the child against the birth,
she was deemed to be out of the statute, so she was acquitted’
This defence is reported in 84 of the 220 trials, though usually in conjunction with other
mitigating circumstances
Claims of being taken by surprise by the delivery, and/or that the child dropped from the
mother whilst she was sitting on ‘the necessary’ or ‘vault’ started to appear increasingly from
1718 – only 4 of the 39 women who used 1 of these 2 defences, or both, were found guilty
Allied defences were that the child was suffocated or injured by inadvertently falling into the
vault or necessary, or in its recovery from the vault by the use of tongs or a stick, or that the
child was injured during the birth – the development of these defence tactics was made
possibly by the increasing medicalization of trials
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Week 5
The ability to provide character witnesses became another important part of an accused’s
defence – they started to appear, or to be reported, in the 1720s but because much more
common in the period 1760-1790 as the number of infanticide cases brought before the
courts fell
The increase could reflect a difference in reporting, but even if that were the case it would be
reflecting the greater importance attached to good character – it may be reflecting the
increased use of defence counsel
Of the 20 women who were found guilty after 1714, signs of violence were discovered on 14
of the babies – in the trials of 2 of the remaining 6, provisions of childbed linen is not
mentioned; a third admitted she had provided nothing for the child
There were also 8 trials where there were signs of violence but the defendants were acquitted
– in all of these 8 trials the defendants were able to produce good character witnesses, 6
could produce childbed linen and for the same 6 it was suggested in the trial that the child
could have been injured during the birth
In 5 cases the women’s defence relied on their having suffered some sort of mental
derangement during labour and therefore not responsible for their actions
Only 22 women in the whole period who claimed to be ‘not in their right senses’, 6 before
1715 (found not guilty), 8 between 1715 and 1759 (5 found not guilty), and 8 thereafter (7
found not guilty)
However, in the later period 6 of the 8 defendants who used this defence did so where there
were significant signs of violence on the child and, as mentioned above, 5 of these women
were acquitted
Increasingly during the 18th century the mental state of the women was used in their defence
– this is linked with an evolving ‘culture of sensibility’ that influenced not only the accused
women but also the men who served as judges, jurors, lawyers and medical practitioners; this
can be seen in the language used in court, in the sympathy shown to defendants and in the
desire to accept any explanation for the ‘unfortunate’ events
Sensibility, together with the development of ‘the language of mental excuse’, convinced all
involved with the trials that the women accused had had no willful intent and therefore should
not be held responsible for the demise of their babies – they were temporarily insane owing to
the severe pain of childbirth and the anguish of their situation as single women
These women were seen as passive agents, in sharp contrast to the lewd and threatening
creatures who were the focus of the 1624 statute – in consequence, there was an erosion of
female agency, as professional men co-opted their stories
The danger of using the temporary insanity defence, though, was that it implied at least some
guilt, so that failure to convince the court would result in conviction and possible execution
Temporary insanity was an accepted excuse for married women who killed their babies, as it
had always been necessary to provide willful intent to gain a conviction in such cases – once
the assumption had been accepted that willful intent needed to be proved for an unmarried
woman as well, the way was clear for the temporary insanity defence to be used for them too
Before the late 1960s the only women who were successful in their deployment of this
defence were those whose infants showed no signs of violence having been inflicted on them
The culture of sensibility, and the acceptance of what Matthew Hale termed the ‘pherenzy’
that sometimes accompanied childbirth as a viable defence, led to the acquittal first of women
who had not obviously harmed their infants but then, later in the century, of those who had –
their defence choices were limited, and temporary insanity, even with the implied admittance
that they had killed their babies, which in these cases hard to refute, was their best option
Although women increasingly relied on having lawyers and medical practitioners in the
courtroom to save them, it is perhaps unwise to assume that all women who found
themselves accused or murdering their infants were the passive, demure creatures these
professional men assumed or hoped they were
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