1 The Old Bailey Proceedings Online (www.oldbaileyonline.org) (henceforth OBP), December 1691, Mary Mott (t16911209-4).

2 OBP, February 1802, Mary Lucas (t18020217-50).

3 21 Jac. I, c.27, ‘Act to Prevent the Destroying and Murdering of Bastard Children’, which clearly stated that it was the concealment of the birth that made the death of an illegitimate child a capital offence; quoted in OBP, April 1734, Mercy Hornby (t17340424-21).

4 R. W. Malcolmson, ‘Infanticide in the eighteenth century’, in J. S. Cockburn ed., Crime in England, 1550–1800 (Princeton, 1977), 187–209; John Beattie, Crime and the courts in England, 1660–1800 (Princeton, 1986); Mark Jackson, New-born child murder: women, illegitimacy and the courts in eighteenth-century England (Manchester, 1996); P. C. Hoffer and N. E. H. Hull, Murdering mothers: infanticide in England and New England 1558–1803 (New York, 1981); J. A. Sharpe, Crime in early modern England 1550–1750 (2nd edn, London, 1999); Wrightson, K., ‘Infanticide in earlier seventeenth-century England’, Local Population Studies xv (1975), 10–22Google Scholar. All these were published before the digitization of the Old Bailey Proceedings.

5 G. S. Rousseau, ‘Nerves, spirits, and fibres: towards defining the origins of sensibility’, in R. F. Brissenden and J. C. Eade eds., Studies in the eighteenth century, III: papers presented at the third David Nichol Smith memorial seminar, Canberra 1973 (Toronto, 1976) 137–57; Dana Y. Rabin, Identity, crime, and legal responsibility in eighteenth-century England (Basingstoke, 2004), 63–76.

6 Shoemaker, R. B., ‘The Old Bailey Proceedings and the representation of crime and criminal justice in eighteenth-century London’, Journal of British Studies 47 (July 2008), 559–80CrossRefGoogle Scholar; J. H. Langbein, The origins of adversary criminal trial (Oxford, 2003), 183–90; Beattie, John, ‘Garrow and the detectives: lawyers and policemen at the Old Bailey in the late eighteenth century’, Crime, History and Societies 11, 2 (2007), 5–23.CrossRefGoogle Scholar

7 Most of the Ordinary of Newgate's accounts can be viewed at www.oldbailey.online.org. The depositions are in the London Metropolitan Archives (henceforth LMA), in MJ/SP and CLA/047.

8 As with any keyword or category search, it is possible that mistakes have occurred in the tagging, and some trials may have been mis-tagged, and therefore eluded the category search.

9 Four more were indicted as married women and acquitted. The period 1674–1803 has been divided at the end of 1714, firstly because the continuous unbroken run of Proceedings starts at December 1714, and secondly because it is about this time that common law seems to be applied in these trials, although nothing specific is stated.

10 None were found guilty. There were also 5 married women charged with killing their legitimate children.

11 The period 1691–1714 has been excluded here because more than a third of the trial reports are missing. The statute was mentioned in two other trials during this period – OBP, July 1717, Ann Hasle (t17170717-18), and January 1723, Ann Leak (t17230116-37) – to show that the women, being married, were not subject to its proofs of guilt.

12 OBP, January 1723, Mary Radford (t17230116-38); April 1734, Mercy Hornby (t17340424-21); and January 1735, Elizabeth Ambrook (t17350116-11).

13 OBP, December 1742, Elizabeth Davis (t17421208-4); October 1743, Elizabeth Shudrick (t17431012-20) and Eleanor Scrogham (t17431012-29).

14 OBP, October 1743, Elizabeth Shudrick (t17431012-20). Before citing the statute as a footnote, the compiler of the Proceedings added, ‘Tis thought Cases of this Kind would not so frequently occur at the Old-Bailey, if the Law were more generally known.’

15 OBP, February 1779, Mary Anne Henichose (t17790217-41). See Beattie, Crime and the courts, 80–1 and 320–33 for more on the Grand Jury and Coroner's Inquisitions.

16 OBP, September 1784, Elizabeth Curtis (t17840915-149) (author's italics).

17 At least on the Northern Circuit (Jackson, New-born child murder) and at the Old Bailey, although Peter King has found evidence of the 1624 statute being adhered to in Cornwall to the end of the eighteenth century (stated in discussions at the conference ‘The Metropolis on Trial’, 10–12 July 2008).

18 Daines Barrington, Observations on the statutes, chiefly the more ancient (London, 1766), 424; William Blackstone, Commentaries on the laws of England (Oxford, 1769), vol. IV, 198; Mark Jackson, ‘Suspicious infant deaths: the statute of 1624 and medical evidence at coroners’ inquests', in M. Clarke and C. Crawford eds., Legal medicine in history (Cambridge, 1994), 72–4.

19 Bernard Mandeville, in The fable of the bees: or private vices, publick benefits (4th edn, London, 1725), 66–7, expressed the view that, far from being ‘the Savage Monster’ that destroyed her own flesh, the more virtuous the single woman, the more she had to lose by the discovery of her pregnancy, and therefore the more likely to kill her bastard child. See also Hunter, William, ‘On the uncertainty of the signs of murder in cases of bastard children’, Medical Observations and Inquiries 6 (1784), 266–90.Google Scholar

20 Langbein, Adversary trial, 261–6.

21 Woods, R. I., Løkke, A. and van Poppel, F., ‘Two hundred years of evidence-based perinatal care: late fetal mortality in the past’, Archives of Disease in Childhood, Fetal and Neonatal Edition 91, 6 (November 2006), 445–7CrossRefGoogle ScholarPubMed; Woods, Robert, ‘Mortality in eighteenth-century London: a new look at the bills’, Local Population Studies 77 (2006), 12–23Google Scholar; Wrightson, ‘Infanticide’, 18; Hoffer and Hull, Murdering mothers, Appendix 5: London bills of mortality. All of these give a neonatal death rate of 4–5 per cent in the married population, where due preparation for the birth had taken place. See also the burial records for the parish of St Paul Covent Garden, 1785–1794, where three fathers recorded three stillbirths each in that decade (City of Westminster Archives Centre, STP/0426). As most of the defendants were servants, performing heavy chores right up until the moment of birth with no preferential treatment because of their condition, an even higher stillborn rate than in the married population would be likely.

22 21 Jac. I, c.27.

23 In valuable conversations with Margaret Hunt.

24 OBP, December 1689, Mary Campion (t16891211-26).

25 This defence was used in 37 of the 50 trials in this period. Throughout the whole period only 8 women were found guilty who claimed they had made provision for their child.

26 Jane Crosse's trial in May 1684 (OBP (t16840515-15)) is the only occasion that I have found when these defences were used before 1718.

27 Good character witnesses were reported in 12 per cent of infanticide trials in the 1720s, 33 per cent in the 1740s, 57 per cent in the 1760s, and 77 per cent in the 1770s.

28 OBP, October 1761, Hester Rowden (t17611021-27); April 1735, Elizabeth Tea (t17350416-67); and September 1722, Ann Morris (t17220907-5).

29 Sarah Hunter (OBP, June 1769 (t17690628-27)) claimed she was ‘not sensible what I did’; Elizabeth Parkins (April 1771 (t17710410-35)) claimed she was deprived of her senses; Anne Spinton (September 1771 (t17710911-63)) was apparently subject to ‘strong fits’; Elizabeth Harris (May 1781, t17810530-1)) appeared delirious and ‘not quite right in her head’; and one of the medical witnesses in the trial of Elizabeth Jarvis (January 1800 (t18000115-20)) suggested that the ‘extreme labour’ caused ‘a paroxysm, or derangement of the faculties, [that] might have rendered her incapable of knowing what she did’.

30 In the period 1674–1714 one of the acquitted was married, and another had told someone of her pregnancy, so they were therefore ‘out of statute’. Of the 5 acquitted in 1715–1759, 2 were married and 2 others had good character witnesses. For comparison, 47 per cent were acquitted in all infanticide trials between 1674 and 1714, 82 per cent between 1715 and 1759 and 88 per cent thereafter.

31 Jane Cornforth (OBP, May 1774 (t17740518-23)) was the only one found guilty. She appears not to have had counsel.

32 Rabin, Identity, 95–110. See also J. P. Eigen, Witnessing insanity: madness and mad-doctors in the English court (New Haven, 1995).

33 Rabin, Identity, 101–2, 107–9.

34 Rabin refers to three cases (in 1723, 1737 and 1744) where the defendants were described as ‘silly’, implying permanently defective intellect. All three were found guilty, but all three babies had obvious injuries; Rabin, Identity, 104.

35 OBP, January 1675, ‘A Woman of the Parish of St. Martins in the fields’ (t16750115-1).

36 OBP, February 1723, Pleasant Bateman (t17230227-21); October 1733, Hannah Perfect (t17470225-1); December 1755, Isabella Buckham (t17551204-27); December 1762, Ann Haywood (t17621208-26).

37 OBP, June 1769, Sarah Hunter (t17690628-27).

38 Jane Cornforth (OBP, May 1774 (t17740518-23)) was unsuccessful. Ann Spinton, who was subject to fits, appears to have been acquitted because it was uncertain whether the ‘murder’ was committed in London or elsewhere (OBP, September 1771 (t17710911-63)). The other three who were acquitted were Elizabeth Parkins (OBP, April 1771 (t17710410-35)), Elizabeth Harris (May 1781 (t17810530-1)) and Elizabeth Jarvis (January 1800 (t18000115-20)).

39 Matthew Hale, History of pleas of the Crown, 2 vols. (London, 1736), vol. 1, 36.

40 I am assuming that the person cross-examining witnesses in Harris's trial was her defence counsel, though it does not specifically say so in the Proceedings.

41 LMA OB/SP/1781/05/042. See OBP May 1781 (t17810530-42) for her trial.

42 LMA OB/SP/1788/05/030-031. See OBP September 1788 (t517880910-83) for her trial.

43 But not the ‘breeding mischief’ retort of Rebecca Cowley.

44 William Garrow was Ann Brean's defence counsel. Although no defence counsel is mentioned in Rebecca Cowley's trial, the way the witnesses were questioned indicates that she had counsel too.

45 For the conflict between midwives and man-midwives and the rise of the professional man-midwife see Jean Donnison, Midwives and medical men: a history of the struggle for the control of childbirth (London, 1988), 34–71; Doreen Evernden, ‘Mothers and their midwives in seventeenth-century London’, 9–26, and David Harley, ‘Provincial midwives in England: Lancashire and Cheshire, 1660–1760’, 27–48, both in Hilary Marland ed., The Art of midwifery: early modern midwives in Europe (London, 1993); Irvine Louden, Medical care and the general practitioner 1750–1850 (Oxford, 1986), 89–90; Adrian Wilson, ‘William Hunter and the varieties of man-midwifery’ in W. F. Bynum and Roy Porter eds., William Hunter and the eighteenth-century medical world (London, 1985), 343–69.

46 Beattie, J. M., ‘Scales of justice: defence counsel and the English criminal trial in the eighteenth and nineteenth centuries’, in Law and History Review 9, 2 (1991), 221–67CrossRefGoogle Scholar; Langbein, J. H., ‘The criminal trial before the lawyers’, The University of Chicago Law Review 45 (Winter 1978), 307–14CrossRefGoogle Scholar; Langbein, Adversary trial, 178–242; Beattie, ‘Garrow and the detectives’, 11–12.

47 See OBP, May 1744, Anne Terry (t17440510-8). See the text and note 70 below for the evolution of this form of evidence.

48 OBP, February 1729, Jane Bostock (t17290226-8).

49 OBP, December 1754, Sarah Jenkins (t 17541204-33).

50 OBP, July 1755, Frances Palser (t17550702-21). In this trial, before the section marked ‘cross-examination’, witnesses were questioned on their evidence, presumably by the judge.

51 In 16 out of 33 trials. The two specifically mentioning defence counsel were OBP, September 1771, Anne Spinton (t17710911-63), and September 1779, Elizabeth Gwatkin (t17790915-78). This may, of course, be misleading, as it depends on how the trials were reported; see Shoemaker, ‘Representation of crime’, 566–7. In only two of these trials – those of Mary Mussen (OBP, May 1757 (t17570526-22)) and Maria Jenkins (OBP, September 1765 (t17650918-40)) – were guilty verdicts brought in, and in both reports ‘council’ is mentioned. From a close reading of the texts one can, I think, assume that these were acting for the defence rather than the prosecution.

52 In 5 trials out of 16.

53 OBP, September 1784, Elizabeth Curtis (t17840915-149).

54 OBP, December 1793, Ann Arbor (t17931204-31).

55 OBP, September 1779, Elisabeth Gwatkin (t17790915-78).

56 Probably Jonathan Wathen (1729–1808), a successful London surgeon and ophthalmologist.

57 OBP, April 1771, Elizabeth Parkins (t17710410-35).

58 OBP, September 1788, Ann Brean (t17880910-83). She was acquitted. Garrow also referred to Elizabeth Curtis as ‘the poor woman’ when he intervened in her trial to help her defence; OBP, September 1784, Elizabeth Curtis (t17840915-149). In Joanna M'Carty's trial the prosecution counsel referred to the prisoner as ‘that unfortunate woman’; OBP, September 1802 (t18020918-134).

59 OBP, October 1743, Eleanor Scrogham (t 17431012-29). She was acquitted. Some surgeons described themselves as both surgeon and man-midwife.

60 For the role of medical practitioners in court, see C. Crawford, ‘The emergence of English forensic medicine: medical evidence in common-law courts, 1730–1830’, unpublished D.Phil dissertation, Univerisity of Oxford, 1987; Jackson, New-born child murder, 84–109; T. R. Forbes, Surgeons at the Old Bailey: English forensic medicine to 1878 (New Haven, 1985).

61 See William Hunter's empathetic view of this situation in ‘On the uncertainty of the signs’, 288–9. For a later, less emotive explanation see Charles Severn, First lines of the practice of midwifery: to which are added remarks on the forensic evidence requisite in cases of foeticides and infanticides (London, 1831), 135–6.

62 OBP, December 1742, Elizabeth Davis (t17421208-4): acquitted.

63 OBP, October 1746, Mary Hope (t17461015-23): acquitted.

64 OBP, January 1751, Hannah Spires (t17510116-52): acquitted.

65 OBP, February 1729, Jane Bostock (t17290226-8); August 1730, Elizabeth Smith (t17300828-28); April 1732, Hannah Bradford (t17320419-15); September 1735, Mary Dixon, (t17350911-88): all acquitted.

66 OBP, October 1743, Eleanor Scrogham (t17431012-29): acquitted.

67 OBP, September 1750, Jane Trigg (t17500912-76): acquitted.

68 OBP, February 1754, ‘G. A.’ (t17540227-51): acquitted.

69 From 1730 to 1769 midwives were called to give evidence in 35 trials, and men, as surgeons, man-midwives and apothecaries in 21 trials. Between 1770 and 1803 the numbers were 11 female midwives and 23 medical men.

70 The hydrostatic test for stillbirth was developed in Germany in the late seventeenth century; see Crawford, ‘English forensic medicine’, 24. See also Jackson, New-born child murder, 94–7.

71 OBP, April 1729, Sarah Harwood (t17290416-67); October 1737, Sarah Allen (t17371012-28); May 1757, Mary Mussen (t17570526-22); and September 1765, Maria Jenkins (t17650918-40).

72 OBP, April 1737, Mary Wilson (t17370420-18).

73 See Michael Bevan, ‘Bromfield, William (bap. 1713, d. 1792)’, Oxford Dictionary of National Biography (Oxford, 2004), for Bromfield's biography, where he is described as ‘a successful but not a particularly gifted surgeon’ (http://www.oxforddnb.com/view/article/3506, accessed 21 July 2008).

74 OBP, October 1737, Sarah Allen (t17371012-28).

75 OBP, July 1755, Francis Palser (t17550702-21); May 1757, Mary Mussen (t17570526-22).

76 OBP, April 1771, Elizabeth Parkin (t17710410-35), and September 1771, Ann Spinton (t17710911-63).

77 OBP, December 1778, Anne Taylor (t17781209-45), and May 1781, Rebecca Cowley (t17810530-42); LMA, OB/SP/1781/05/042; Shoemaker, ‘Representation of crime’, 571.

78 OBP, July 1782, Sarah Russell (t17820703-47).

79 Crawford, ‘English forensic medicine’, 93. See the comments of the midwife Mary Jeyne in the trial of Mary Hope mentioned in note 63 above.

80 Hunter, ‘On the uncertainty of the signs’, 281–2.

81 For example, the surgeon giving evidence in the trial of Elizabeth Warner conducted the hydrostatic test even though the child had been dead four to five days, as he thought that ‘if it turned out in favour of the woman, it would be a proof that the child was still-born’; OBP, October 1770, Elizabeth Warner (t17701024-51).

82 OBP, September 1779, Elisabeth Gwatkin (t17790915-78).

83 OBP, October 1770, Elizabeth Warner (t17701024-51), September 1788, Ann Brean (t17880910-83).

84 OBP, December 1762, Mary Samuels (t17621208-27).

85 OBP, October 1679, ‘a wench’ (t16791015-2). The ‘wench’ is named at the end of the proceedings as Joan Blackwell.

86 The execution, last speeches & confessions, of the thirteen prisoners that suffered on Friday the 24th of October, 1679 (BL 1505/40 (4)). This account was not written and published by the Ordinary of Newgate.

87 OBP, May 1684, Mary Stanes (t16840515-10).

88 OBP, May 1741, Elizabeth Bennet (t17410514-7).

89 The National Archives, SP 36/56 fo.79: The Ordinary of Newgate, His Account of the Behaviour, Confession, and Dying Words, of the Malefactors, Who were Executed at Tyburn, On Friday the 12th of June, 1741. Bennet was reprieved on 4 June.

90 OBP, September 1765, Maria Jenkins (t17650918-40).

91 OBP, October 1761, Hester Rowden (t17611021-27). In this case there was a suspicion that the child had been strangled.

92 Rabin, Identity, 109.

93 Tim Hitchcock, Down and out in eighteenth-century London (London, 2004), 132–49.

94 They may also have read about successful defences in the published Old Bailey Proceedings; see Devereaux, Simon, ‘The City and the Sessions Papers: “public justice” in London, 1770–1800’, in The Journal of British Studies 35, 4 (October 1996), 491–2.CrossRefGoogle Scholar

95 Shoemaker, ‘Representation of crime’, 566–71. Elizabeth Bennet conducted her own defence, including questioning witnesses, for example.