THE OLD BAILEY RECORDS

The early Proceedings give very few details of the alleged offences, each publication being only four to nine pages long. In addition, less than a third of the Proceedings have survived for the first decade of the eighteenth 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 twenty-four 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, as Bob Shoemaker has recently demonstrated, witness evidence was frequently summarized or omitted, particularly if given for the defence.Footnote ⁶ This may help to explain some surprising verdicts, four of which are described later.

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.Footnote ⁷ In total I have found 220 cases of alleged newborn child murder for this period.Footnote ⁸

In the first forty years of this study, between 1674 and 1714, there is evidence of 90 trials in which 48 women were found guilty (53 per cent). Forty-six (51 per cent) claimed that their child was either stillborn or not full-term or that they had miscarried. Six 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.Footnote ⁹ In the remaining 89 years of this study there were 130 trials, in which only 20 women (15 per cent) were found guilty, and none after December 1775. In these 130 trials 70 (54 per cent) claimed the child was either stillborn or not full-term or that they had miscarried. Thirteen claimed to be married, but had been indicted on the 1624 statute.Footnote ¹⁰

FROM STATUTE LAW 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 the death of a bastard child – to the standard of proof required to convict any other person of murder, that of wilful 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.Footnote ¹¹ There were, however, signs of violence on all three babies in these cases, one, that of Elizabeth Ambrook, having been thrown out of a window.Footnote ¹² Three times in the 1740s the statute was printed as a footnote to infanticide trials in the Proceedings.Footnote ¹³ In one of these trials, that of Elizabeth Shudrick in October 1743, the Court asked her, ‘Can't you show 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 five years old living.Footnote ¹⁴

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 wilful murder of her female bastard child, although the Grand Jury had thrown out the bill of indictment.Footnote ¹⁵ Not surprisingly, the witnesses did not appear, and the case was dropped. There was a similar occurrence in 1784, when, almost 20 years before the change in the law, a judge commended the Grand Jury for dismissing a case because there was no evidence to charge Elizabeth Curtis ‘with wilful murder’, despite the fact that she had denied being pregnant just before the dead child had been found, and had given birth alone. The Recorder who was presiding over this trial had previously clarified the situation between common law and statute law as follows, and appears to have implied that even for an indictment under statute law proof of wilful murder was required:

The judge in this case was instructing the jury that conviction required proof of wilful intent, not just proof of concealment. Legal writers, perhaps following what was happening in the courts,Footnote ¹⁷ were suggesting from the mid 1760s that there needed to be enough evidence to justify a conviction according to common law if a life was at stake, and that there ought to be proof that the child had been born alive.Footnote ¹⁸ Society no longer assumed that all unmarried pregnant women were lewd and sinful and thus inclined to indulge in the barbaric and unnatural act of baby-slaying. There was a growing understanding that they deserved more sympathy than censure.Footnote ¹⁹ In addition, it could be argued that the judge in this case was also expressing the view that the standard of proof required to convict needed to be ‘beyond reasonable doubt’ as well, a concept that was being articulated in trials at the Old Bailey from the 1780s.Footnote ²⁰

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. As mentioned above, 116 women claimed that their child was either stillborn or had been born prematurely, which could well have been true in many cases.Footnote ²¹ 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 stated 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,Footnote ²² 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’Footnote ²³ occurred in the trial of Mary Campion 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’.Footnote ²⁴ This defence is reported in 84 of the 220 trials (38 per cent), though usually in conjunction with other mitigating circumstances. It was particularly popular between 1712 and 1735 when it was used in 74 per cent of trials and successful in all but 3 of them.Footnote ²⁵

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 one of these two defences, or both, were found guilty.Footnote ²⁶ 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 possible by the increasing medicalization of trials, which will be discussed below.

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 became much more common in the period 1760–1790 as the number of infanticide cases brought before the courts fell.Footnote ²⁷ 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 also 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, provision of childbed linen is not mentioned; a third admitted she had provided nothing for the child.Footnote ²⁸ 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.Footnote ²⁹

I have identified only 22 women in the whole period who claimed to be ‘not in their right senses’, 6 before 1715 (3 found not guilty), eight between 1715 and 1759 (5 found not guilty), and 8 thereafter (7 found not guilty).Footnote ³⁰ However, in the later period six of the eight 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.Footnote ³¹ Rabin has shown that increasingly during the eighteenth century the mental state of the women was used in their defence. She links this 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.Footnote ³² 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. She suggests that sensibility, together with the development of ‘the language of mental excuse’, convinced all involved with the trials that the women accused had had no wilful 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, according to Rabin, as professional men co-opted their stories.Footnote ³³

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. However, as in the cases of the 6 women mentioned above, where serious injuries had been found on the children, being ‘out of [one's] senses’ could be a life-saving defence. It was therefore worth a try and possibly the only viable defence under the circumstances.Footnote ³⁴

Temporary insanity was an accepted excuse for married women who killed their babies, as it had always been necessary to prove wilful intent to gain a conviction in such cases.Footnote ³⁵ Once the assumption had been accepted that wilful 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 1760s 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.Footnote ³⁶ The first single woman to be acquitted at the Old Bailey of killing her child where there were clear signs of significant wounding was Sarah Hunter in 1769.Footnote ³⁷ Over the next 34 years, until the repeal of the 1624 Act, another 5 women used the temporary insanity defence to explain the violent deaths of their infants. Three were able to demonstrate that they did not intend to harm their babies, by producing linen and/or having spoken to a midwife about their lying-in. All but one were acquitted.Footnote ³⁸

The culture of sensibility, and the acceptance of what Matthew Hale termed the ‘phrenzy’Footnote ³⁹ 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 was in these cases hard to refute, was their best option. Elizabeth Parkins, Ann Spinton, Elizabeth Harris and Elizabeth Jarvis all had counsel,Footnote ⁴⁰ who were able to represent their clients in a favourable and vulnerable light. Whether Jane Cornforth's life would have been saved if she had employed counsel is impossible to assess.

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 of murdering their infants were the passive, demure creatures these professional men assumed or hoped they were. Coroners' depositions give a rather feisty impression of two defendants. Rebecca Cowley is reported as having said, when challenged by her mistress Mrs Marsh with being pregnant, that ‘she wished people would trouble themselves with their own business that she was no more with child than the puppy or cat that lay there, and that if she was breeding, she was a breeding mischief’. Later, after the lodger Ann Spencer had informed Mrs Marsh that she thought ‘Becky’ had miscarried, Cowley denied it, saying ‘people had better mind their own business and not trouble themselves with her’, also claiming that the ‘spinage’ she had eaten with her dinner had disagreed with her.Footnote ⁴¹ Ann Brean repeatedly denied her pregnancy before and after she had given birth. When her mistress's sister asked Brean how she was, after the child had been found, she replied ‘Very well I thank you my dear as well as ever I was in my life.’ She claimed the pain she had experienced in her bowels was ‘occasioned by eating some rice milk the preceeding evening’.Footnote ⁴²

Some of this evidence was repeated in court and reported in the Proceedings,Footnote ⁴³ but the defendants do not appear to have given evidence themselves, leaving their defence to their counsel.Footnote ⁴⁴ Perhaps they were advised that a demure silence was their best option. In both these cases the barristers were able to demonstrate their clients' fondness for children and, with the help of surgeons, that it was not possible to state categorically that the babies had died through the wilful intent of their mothers. These trials may be demonstrating a loss of female agency, but they could also be examples of women ‘playing the system’.

THE IMPACT OF JUDGES AND LAWYERS

The production of good character witnesses, and the defence strategies of childbed linen provision, sudden and unexpected delivery, injury during birth and temporary insanity, together with the, initially tacit, acceptance that common law proof should be required for a capital conviction, all helped to increase the acquittal rate in infanticide trials in London throughout the course of the eighteenth century. However, the effectiveness of these strategies was certainly enhanced by the increased employment of professional men, both as surgeons and man-midwives and as counsel. In fact, in infanticide trials they complemented each other. This is not to discount the role played by midwives, but increasingly over the latter half of the eighteenth century it was the men who took on the role of expert medical witness.Footnote ⁴⁵ The defendants put forward their various explanations for the fate of their child; midwives and surgeons were called to give their professional opinion of these explanations; and the lawyers, in questioning the professionals, helped to further the plausibility of these explanations, thereby giving them acceptance and legitimacy. The permeation of sensibility into society noted by Rabin can be seen in the cross-examination of surgeons, and in their increasing sympathy for the difficulties women faced when in labour.

However, the lawyers cannot take all the credit for drawing out medical opinion in support of the defence strategies. Although defence counsel in felony trials had been allowed in the Old Bailey from the 1730s and barristers were involved in increasing numbers as the century progressed, defendants were still only represented in a minority of cases.Footnote ⁴⁶ Frequently, in the absence of barristers, it was the judge presiding over the trial who asked the searching questions. By looking closely at the infanticide reports in the Proceedings, it is clear that it was the judges who were the first to doubt the value of the post mortem experiment on the lungs,Footnote ⁴⁷ and who first supported the surprise delivery defence.Footnote ⁴⁸

Counsel was not named in the Proceedings before December 1783, but the side-heading of ‘cross-examination’ can be found in the reports of infanticide trials from 1754.Footnote ⁴⁹ This may indicate the presence of defence counsel, but it may instead be a way of recording the interrogation of witnesses by the judge, in his traditional role of supporting the defendant. It is difficult much of the time to ascertain who was asking the questions. Occasionally the reports are specific, with ‘Council’ being recorded as speaking. This may, of course, have been prosecution counsel. It is impossible to state categorically that the person cross-examining a witness was acting for the defence before 1783, unless he was specifically identified as such. From the mid 1740s onwards it seems that the questioning of witnesses, whether by the Court, or the prosecution or defence lawyers, was aimed at finding an acceptable explanation of events, and therefore acquittal. In some trials, such as that of Frances Palser in 1755 where the questions were aimed at justifying the defendant's story, one may surmise that defence counsel was asking the questions.Footnote ⁵⁰ Counsel in this trial helped to further establish the ‘delivery by surprise’ defence as a plausible one by cross-examining first the midwife and then the surgeon. Between 1754 and 1783 the Proceedings indicate that cross-examination of witnesses took place in half of the trials for infanticide, but in only two was defence counsel specifically mentioned.Footnote ⁵¹ After 1783, named defence counsel was employed in just under a third of trialsFootnote ⁵² and, in a further trial, that of Elizabeth Curtis in 1784, William Garrow took it upon himself to speak for the defence, as the defendant had no counsel of her own, although he was apparently acting for the Coroner.Footnote ⁵³

Infanticide trials were an excellent arena for lawyers to practice their art. The defence aimed to convey to the jury that the cause of death was accidental or uncertain, and that there was not enough evidence to be sure that the mother had intended the death of her child. They were also keen to emphasize that the woman was of good character and fond of children, a poor unfortunate being, not a wanton strumpet. Not only were there the ‘lay’ witnesses – employers, relations and fellow servants – to cross-examine but there were also those with specialist knowledge to be interrogated – midwives, man-midwives, apothecaries and surgeons. Their testimony could be relentlessly and minutely questioned, any possible explanation seized upon and any glimmer of sympathy for the plight of the unfortunate woman nurtured in the hope of affecting the jury.

An example of effective cross-examination by a barrister can be seen in the trial of Ann Arbor in December 1793. The counsel for the defence destroyed a young witness who claimed to have seen the defendant acting suspiciously and to have heard a child cry. To start with he addressed the witness by saying ‘What makes you tremble so? Look at the Jury; stand up.’ Having thus intimidated him, he proceeded to question him closely and aggressively. When asked how he knew what he heard was the voice of a child, the barrister asked the supplementary question: ‘Was you ever present at the delivery of a woman?’ The answer, not surprisingly, was ‘Never.’ The witness's cross-examination culminated in more of a statement than a question: ‘Then the whole perception you had of this woman in that business was by a glance?’ With the surgeon not prepared to say whether the child was born alive or not, and an excellent character witness extolling her ‘tender affection and humanity’ towards his motherless children, Ann Arbor was acquitted.Footnote ⁵⁴

In another trial, a female witness expressed scepticism over the mother's claim that the child had dropped from her at the necessary, a claim already supported by a surgeon and man-midwife. Under cross-examination, presumably by the prisoner's defence lawyer, she was asked if she had ever practiced midwifery. Once she had answered ‘No’, the questioning continued:

Thus another prosecution witness was discredited.

Even in what might at first glance appear to be a clear case of murder, a good defence lawyer could use medical evidence to bring about an acquittal. Elizabeth Parkins's baby was found in water, in a copper, with its head almost severed from its body. To start with, the surgeon, Mr Wathen,Footnote ⁵⁶ had assumed the child had been born alive, and that the wound had been made with a sharp instrument. He was allowed to report a conversation he had had with the defendant, where she said she had not intended to wound the child, and she did not know how she did it or with what. One of the other witnesses, Elizabeth Davis, said that the water in the copper was not very bloody, just ‘somewhat discoloured’. Defence counsel cross-examined her on this, emphasizing the point that it was ‘not like bloody water’. He then asked Wathen,

In addition, under cross-examination Davis had said she thought Parkins ‘seemed in a stupefy'd way, as if she had just come out of a fit’, which substantiated the implication of the surgeon's conversation with the defendant reported earlier in the hearing, that she was not in her right senses. So despite the serious injury to the child, Elizabeth Parkins was acquitted.Footnote ⁵⁷

Defence lawyers were very keen to establish the good character of their clients and how fond they were of children, and to bring to the jury's notice that they had provided baby linen. In every trial where the cross-examination of witnesses took place, character witnesses were also called. Counsel also used specific phrases to influence the sensibilities of juries. William Garrow, defending Ann Brean in 1788, referred to the defendant as ‘this poor woman’ throughout, and the birth of the child at the necessary as ‘the accident’.Footnote ⁵⁸ The lawyers were, however, helped by the medical profession in bringing about the acquittal of almost all of the infanticide defendants from the mid eighteenth century on.

THE ROLE OF MEDICAL PRACTITIONERS

Evidence from midwives was reported in a few of the early Proceedings, but as these publications were only a few pages long it cannot be assumed that midwives did not give evidence just because it is not reported. From 1711 testimony from a midwife or surgeon is included in the majority of the Proceedings. Surgeons began to appear regularly in infanticide trials from the 1730s and the first reference to a man-midwife comes in the trial of Eleanor Scrogham in October 1743.Footnote ⁵⁹

Considerable weight seems to have been accorded the evidence from medical practitioners, whether they were midwives (of either gender), apothecaries or surgeons.Footnote ⁶⁰ Midwives, and later surgeons, raised issues such as the condition of the navel string, whether cut or torn, and the possibility of death through the child's bleeding to death because the string was not tied. This must have been a frequent occurrence with young women delivering themselves, before the phenomenon was brought to the attention of the court by the medical profession. They described the child as dying ‘through want of assistance’, a more sympathetic way of explaining the death of a child brought about by an inexperienced mother's desire to conceal the birth.Footnote ⁶¹

In the trial of Elizabeth Davis in December 1742 the midwife, Ann Tullock, emphasized in her testimony that there were no marks of violence on the child, and she was not prepared to say how the child came by its death. Referring to the defendant, she remarked that she thought ‘the poor Creature’ was ignorant, implying that her ignorance of childbirth may have contributed to the child's death.Footnote ⁶² In October 1746, when the midwife, Mary Jeyne, was asked by the Court whether she thought the child of Mary Hope had been born dead or ‘came to any violent Death afterwards’, she replied, ‘‘Tis impossible for any Body to say it was born alive; for want of Help in Time it might be suffocated, or another Way, thro’ the Naval String, or otherwise', adding ‘The Child look'd just like another Child that should die a natural Death.’Footnote ⁶³ Midwife Mary Rogers was of the opinion that Hannah Spires's baby had ‘stagnated in the birth for want of help’. The apothecary who examined the body thought the child ‘might be suffocated either in the birth or afterwards’.Footnote ⁶⁴ All these pronouncements implied the accidental death of the child, and therefore a lack of wilful intent on the part of the mother.

Midwives were the first medical practitioners to give credence to the ‘surprise delivery’ defence. The midwives in the trials of Jane Bostock, Elizabeth Smith, Hannah Bradford and Mary Dixon all agreed it was possible for a child to drop from the mother whilst she was visiting the necessary.Footnote ⁶⁵ The last two defendants were married, and so were outside the strictures of the statute, thus giving the explanation more value. Both a midwife and a man-midwife in Eleanor Scrogham's trial testified that women felt the need to visit the necessary immediately prior to birth. Robert Simmonds, a ‘Practitioner in Midwifry’ was asked ‘whether it is usual with Women, when the Time of Child-bed draws near, to have a violent Inclination to go to the Vault?’, to which he replied, ‘It is very common; and it is a common Prognostick of an approaching Birth.’Footnote ⁶⁶

These midwives had been so successful in laying the foundations for this defence that when a surgeon, Richard Stephens, was asked by the Court in 1751, ‘Is it possible a woman might be deliver'd of such a child as this, by a sudden surprize, while she is sitting on the necessary house?’ and he replied, ‘It is very improbable’, he seems not to have been believed. He was then asked if he was a man-midwife. He admitted he was not, but the Court continued to push him to say that under certain circumstances it might happen. He did not budge in his opinion, but the jury found the defendant not guilty, perhaps showing that his lack of midwifery experience counted against his testimony.Footnote ⁶⁷

The midwife in the trial of G. A. in 1754 strongly supported the surprise-delivery defence by not only confirming that an accidental birth whilst visiting the necessary was possible but also adding that ‘such cases often happen to married sober women’. She ended her testimony with the statement, ‘I was satisfied from all I heard or saw, that there was no murder committed in this case.’Footnote ⁶⁸

Although midwives continued to give evidence in court, there was a rise in the number of surgeons called as witnesses throughout the eighteenth century.Footnote ⁶⁹ Surgeons were increasingly asked by coroners to perform post mortems when a dead newborn child was found, to help them decide whether a criminal act had taken place or not. They wanted to know the cause of death; whether the child had lived or was stillborn; whether it was full-term; whether the child had any injuries and, if so, whether they could have been caused during the birth or by the mother after the birth. Coroners frequently asked the surgeons to perform an experiment on the lungs of the dead baby to see whether it had ever breathed.Footnote ⁷⁰ The results of this experiment became part of the surgeons' testimony in court: it was thought conclusive in 1729, its value became a matter of opinion in the 1730s and 1740s and it was discredited by the 1770s, but not before it had helped to send four women to the gallows.Footnote ⁷¹

In the trial of Mary Wilson in April 1737, the surgeon (un-named) described the experiment and gave his opinion:

Wilson was found not guilty. Unfortunately for Sarah Allen in October of the same year, surgeon William Brumfield had a different opinion.Footnote ⁷³ In his evidence he said, ‘I try'd the Experiment of the Lungs in Water, (which I take to be very certain) and they floated; this in my Opinion, was a sure Sign that the Child had breath'd; for if it had not, they would have subsided in the Water.’ She was found guilty.Footnote ⁷⁴

In the trial of Frances Palser, in July 1755, surgeon Benjamin Colebourn refused to perform the lungs experiment, as he was not prepared for the results to be considered definitive, whereas John James, the surgeon in Mary Mussen's trial in May 1757, did consider the experiment results conclusive, a view challenged by Mussen's counsel.Footnote ⁷⁵ There were discussions between surgeons, the Court and counsel on the merits of the experiment in several trials in the 1760s and 1770s, debating whether, if the birth was protracted, the child could take a gasp or two before dying of natural causes. By 1771 one surgeon stated, ‘I did make an experiment on the lungs, which was formerly thought decisive; but now that opinion is exploded’, while another maintained that ‘It is held that this experiment is not decisive.’Footnote ⁷⁶ In Anne Taylor's trial in 1778, the Court responded to the surgeon's statement that the Coroner had ordered that the usual experiment be made on the lungs by saying, ‘That is nothing. We never suffer that to be given in evidence’, a stance confirmed in the case of Rebecca Cowley, in 1781. Coroners' depositions made by two surgeons stated that they had performed the lungs experiment, and considered that the child had lived, but this evidence is not reported in the Proceedings. Maybe it was not considered acceptable evidence, or maybe a decision was taken not to report it.Footnote ⁷⁷

Perhaps the final word on the lungs experiment can be left to the Court. In 1782 the Court asked surgeon John Clarke,

‘Yes’, replied Clarke.Footnote ⁷⁸

The debates that took place concerning the hydrostatic test illustrate the genuine difficulty that medical practitioners found themselves in. They were asked questions in the courtroom about circumstances that did not arise in their normal professional practice. Crawford is surely right to point out that ‘A midwife or accoucheur might well have knowledge and experience regarding the prevention of still-birth and the resuscitation of a lifeless newborn, but detecting the signs of still-birth in a corpse some hours or days after parturition was a task that arose only in the legal context of suspected infanticide.’Footnote ⁷⁹ The same difficulties applied to surgeons. William Hunter thought that before a professional man could express an opinion on cause of death, he should have examined many newborn children, both stillborns and those who had lived only a short time. He also suggested that many physicians were ‘not so conversant with science as the world may think’.Footnote ⁸⁰ It seems that, as knowledge of forensic medicine increased, so did the difficulty of giving a definitive answer to questions posed by the legal profession in court. They could only give an opinion as to the probability of the cause of death, or of the explanation given by the mother, and the evidence before them did not usually exclude alternative explanations. With the greater sympathy being shown towards single mothers in the latter half of the eighteenth century, many surgeons reported the bald facts of their post mortems in their testimony, but were reluctant to make any statement that might lead to conviction. Defence lawyers were, of course, quick to emphasize the inconclusivity of their evidence.

Evidence from surgeons significantly enhanced the acceptability of the surprise delivery defence. Like defence counsel, they referred to the defendant as ‘the poor creature’ or ‘the unfortunate woman’, and to use terms such as the ‘agonies’ of labour, ‘torment’, ‘great pain and agony’, to find medical explanations for almost every situation.Footnote ⁸¹ Some volunteered as expert witnesses for the defence, as in the trial Elisabeth Gwatkin,Footnote ⁸² and most claimed they could not state for certain whether the child had been born alive or dead.Footnote ⁸³ Sometimes the circumstances medical practitioners found at the scene of a neonatal death were clear enough for them to be decisive, but only in support of acquittal. The man-midwife who attended Mary Samuel in November 1762 explained that the injuries to the child, including a broken navel string, were commensurate with such a very difficult birth, and that there had been no possibility of it being born alive. Throughout his testimony and cross-examination he referred to her as ‘the poor creature’.Footnote ⁸⁴

SURPRISING VERDICTS

It is sometimes difficult to understand why juries reached the verdicts they did throughout the period, particularly in the seventeenth century when the trial reports were so brief, as the following examples show.

In the report of her trial at the Old Bailey on 15 October 1679 Joan Blackwell was referred to as a ‘poor young wench’. The woman she lodged with had taken her to an adjoining parish in the middle of the night whilst she was in labour, because the woman feared ‘some charge or trouble might happen to her’. Blackwell was found ‘lying as one half dead by the watch’, with the child dead, but still attached to her. It is clear from the account that the Court thought the child had died from lack of assistance, and not through any violent intent of the mother. Despite this, the Court decided that, as she had given birth to ‘a Bastard Child, and the law makeing it death in that case for any woman to be delivered alone without calling help, she was thereupon found Guilty’.Footnote ⁸⁵ Blackwell was in fact reprieved, for as the author of an anonymous ‘dying confessions’ publication explained, ‘she was onely convicted upon the severity of the statute’.Footnote ⁸⁶

In contrast, on 14 April 1684 Mary Stanes's baby was found dead, wrapped in blankets in a box. She pretended to her mistress ‘to be troubled with the Wind-Cholick, or Gravel, and by that Pretence kept them without Suspicion’, but the fact of her delivery was eventually discovered. Surprisingly, the trial account goes on, ‘How be it, some of the Witnesses speaking very favourably of the said Mary Stanes, she was acquitted.’Footnote ⁸⁷

Despite the various defence strategies that developed in the eighteenth century, the greater detail to be found in the Proceedings, and the changes that took place in the courtroom with the presenting of medical evidence and the advent of counsel, the following two eighteenth-century examples show that it is impossible for us to fully understand what went on in court. Perhaps there was specific evidence omitted from the printed Proceedings that would explain the two following verdicts.

In her trial on 14 May 1741, Elizabeth Bennet used three defence strategies that had been successful in a number of earlier trials, claiming that she was taken by surprise at the delivery as she did not think she was so near her time, that the child dropped from her whilst she was using the necessary, and that she had made provision for the child. According to a witness, Bennet had in her box ‘every thing that is proper for a young Infant, and a great many poor Women have not so many’.Footnote ⁸⁸ Despite this, she was found guilty. Her sentenced was, however, reduced to transportation.Footnote ⁸⁹

Maria Jenkins in September 1765 also claimed that her child had dropped from her while she was visiting the necessary. She had witnesses who stated that she had applied to borrow some childbed linen, and she also produced twelve character witnesses. The surgeon/man-midwife confirmed there were no marks of violence on the child. In addition he agreed with the suggestion of Jenkins's defence counsel that a child's lungs could be inflated during the birth and the child could subsequently die of natural causes, which had the effect of diminishing the impact of his testimony and making the experiment he had performed on the lungs seem less conclusive. Under cross-examination he also confirmed the possibility of a surprise delivery at the necessary. Despite using all the usually successful strategies, and employing counsel, she was still found guilty, and was hanged on 23 September.Footnote ⁹⁰ Since Elizabeth Bennet's conviction in 1741, only one other woman had been found guilty of killing her newborn child where there were no signs of violence on the body.Footnote ⁹¹