historical data analysis project of burglary and infanticide statistics spanning the 17th to 20th...

Louisa Orford History 3JJ3 – Dr. John C. Weaver

Burglary and Infanticide:An Old Bailey Analysis of Crimes and Their Punishments in Early Modern England

Between the 17th and 20th centuries in England, the criminal justice system underwent

many systematic changes as it morphed and adapted to the ever-changing societal priorities and

pressures of the nation. This can be seen through many different crimes, examples being burglary

and infanticide. Though there is no direct link between burglary and infanticide as crimes, they

show a similar pattern in how the criminal justice system of England evolved and changed

between 1674 and 1913. By examining the arguments of criminal historians and analyzing

criminal justice statistics, reports and testimonials collected by Old Bailey Proceedings Online,

this essay will use burglary and infanticide as examples to expound the challenges surrounding

interpreting criminal justice data as well as display trends that can be traced through different

crimes to societal factors that influenced alterations to England’s criminal code and criminal

justice proceedings.

Due to the diversity of criminals and their crimes, the punishments, as delivered by the

courts, could also be diverse. However, in the 17th century, the death penalty was still the most

common punishment for a wide variety of crimes. The way it was performed varied from

hanging to more extreme executions like quartering and burning. The death penalty was favoured

in many jurisdictions as a deterrent for anyone who was considering a life of crime.1 Heinous

crimes such as treason, infanticide, murder, and rape were punishable by death, but so were

smaller crimes like sedition, burglary and petty theft.2 However, statistical analysis of

prosecutions of burglary and infanticide in England, conducted between the 1670s and the 1910s,

1 Stuart Banner. The Death Penalty: An American History. Cambridge: First Harvard Press, 2002. 232 Ibid., 5; In this source Banner examines capital punishment through an American focus, but the American criminal justice system did originate from that of England.

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show that the death penalty, though popular throughout the 17th and early 18th centuries, began to

lose popularity around the mid- to late 18th century.

Theft was one of the largest categories of offenses in England during this time and was

therefore broken down and specifically defined in smaller categories. Burglary, as a subcategory

of theft, was a very popular crime amongst lower-class citizens. While involving the act of theft,

burglary was, at the time, defined as “breaking into a dwelling house at night with intent to

commit a felony (normally theft), or actually doing so…[it] was considered to be particularly

serious because there were likely to be people sleeping in the house.”3 All subcategories falling

under the umbrella of theft were treated as felonies but each had their own associated

punishments that could vary widely and they tended to be categorized based on type and value of

the goods stolen as well as the manner in which they had been stolen.4 According to the records

of the Old Bailey Criminal Court of London’s database, there were over 10,000 reported

burglaries between 1674 and 1913.5 Nevertheless, this is likely a ways from the number of

burglaries that were actually committed during this time, as many would have gone uncaught and

unreported.6 There was often unwillingness on the part of the victim to come forward to report

the crimes as well as fraudulent accusations made that were reported therefore a conclusive

number of burglaries could never be ascertained.7

The statistics provided by Old Bailey Proceedings Online display an odd pattern of

spiking and dropping in the number of burglaries reported throughout the 1830s. Historian and

author Clive Emsley argues that this could be a legitimate rise and fall in the crime rates due to

3 Old Bailey. (www.oldbaileyonline.org, version 7.0, 05 March 2015), Glossary: burglary.4 Old Bailey. Glossary: burglary. 5 Old Bailey. (www.oldbaileyonline.org, version 7.0, 05 March 2015).6 Clive Emsley. Crime and Society in England: 1750-1900. Harlow, UK: Pearson Education Ltd, 2010. 247 Ibid.

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necessity in the period following the revolutions occurring in France.8 Emsley also offers another

plausible explanation stating that it could have been the desire of farmers and property owners to

deter any future criminals from committing the same offenses because of hard times.9 They were

making examples of the criminals rather than admonishing them for their crime, though there

were still instances where property owners would have taken pity on offenders because of the

harder times.10

The majority of the burglary records recorded by Old Bailey Proceedings Online begin

with the explanation that the accused “was indicted, for feloniously and burglariously breaking

and entering the dwelling house of [another].”11 What makes the records from the 1830s different

is the value of the stolen, or potentially stolen items in the cases where burglars were caught

before leaving the premises (see figure 4 for the 1830s statistics regarding burglary). In 1830,

only eight burglaries were reported, all concerning goods of significant value. By 1835, there

were sixty-three reported burglaries, some of which did concern items of great total value, but

there were also many cases concerning items worth only a few pence or a few shillings.12 In the

case of James Sheen, William Harris and James Edwards, the three men “were indicted for…

breaking and entering the dwelling-house of John Robinson, [on the] night of the 18th of

February…and stealing therein 5 knives, value 4s…”13 On the 7th of February, Henry Green was

indicted for stealing 28 pence of the monies of his master.14 These values are substantially

8 Emsley, 259 Ibid.10 Ibid.11 Old Bailey. (Statistic Search: offence category is burglary and verdict category is guilty. Counting by offence). 05 March 2015.12 Old Bailey. (Statistic Search: offence category is burglary, verdict category is guilty and year is 1835. Counting by offence). 05 March 2015.13 Old Bailey. (www.oldbaileyonline.org, version 7.0, 05 March 2015), March 1835, trial of James Sheen, William Harris, James Edward (t18350302-662).14 Old Bailey. (www.oldbaileyonline.org, version 7.0, 05 March 2015), March 1835, trial of Henry Green (t18350302-658).

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different from the indictment of James Brown (alias King) on the 21st of April when he

reportedly stole “1 hat, value 10s.; 1 coat, value 10s.; 1 pair of boots, value 12s.; 1 shawl, value

20s.; 1 watch, value 10s., and 7 spoons, value 20s.,” from the house of William Newton.15 He

was found guilty and sentenced to death at the age of 22. These examples act to reinforce

Emsley’s theory that many burglars were being found guilty and sentenced to death for

seemingly petty crimes to be put forth as an example rather than simply reprimanded for their

indiscretions.

The statistics also show a dramatic increase in burglaries, beginning in 1862, which could

have a very similar explanation. It was in this same year that the death penalty was last used as a

punishment for burglary in London. As it can be seen in figure 1 of the appendix, the number of

guilty verdicts resulting in death had been decreasing for almost two decades before use of the

punishment ceased in 1862. Up until this point, the most common method of capital punishment

used for crimes of burglary was hanging, with only a few cases using respited.16 In the case of

John Roberts, alias Arthur Roberts (or last name Chambers), his sentencing was thrice respited in

1703 and ultimately no punishment was carried out.17 Those three respited sentences account for

three out of five total recorded respited proceeding from that year, and out of a total of eight to

have been respited between 1674 and 1913.18 Roberts was indicted first on January 7th for

breaking and entering into the house of William Haley with the intention to steal goods; second,

on July 7th for entering the dwelling of William Brookes and taking goods; and third on March 4th

15 Old Bailey. (www.oldbaileyonline.org, version 7.0, 05 March 2015), July 1829, trial of James Brown, alias King (t18290716-113).16 Old Bailey. (Statistic Search: offence category is burglary, verdict category is guilty and punishment category is respited. Counting by offence). 05 March 2015.17 Old Bailey. (Statistic Search: offence category is burglary, verdict category is guilty and punishment category is respited). 05 March 2015. 18 Old Bailey. (Statistic Search: category is burglary, verdict category is guilty and punishment category is respited. Counting by offence). 05 March 2015.

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for stealing a rug, among other items, from the home of William Hollingsworth. Upon his fourth

indictment on March 10th, he was acquitted of all current and previous indictments.19

However, it is also an excellent example to help show the inaccuracies of using statistical

data such as this. There are years, like 1678, when it appears as if no males or females committed

any burglaries, yet the case data shows that there were in fact at least two cases of burglaries

brought forth that year. There are discrepancies throughout this data set. Out of a total of 10,447

reports relating to indictment for burglary, only 6,120 are accounted for by a gender. From the

statistics, it appears that males committed the majority of the burglaries, around 52% of them

(see figure 2 for a graph using exact numbers). Though this percentage makes it seem as though

there should be around about an even split of male and female indictees, females account for just

over 6% of burglary indictments represented by the Old Bailey Proceedings Online data. This

means that there are 4,327 (~41%) cases of data where the gender of the accused is unknown and

as such leaves a large margin of error in any conclusion that is drawn. It is likely, however, that

one can conclude men would have been convicted much more often than women because, as

historian Stuart Banner suggests, men often took the blame for crimes that women committed so

that the women could maintain their domestic roles and keep the household running.20 Women

would have been able to adjust to a working role more easily than men would have to a domestic

role.

This analysis of the burglary statistics provided by Old Bailey Proceeding Online

reinforce the notion that, as the English criminal justice system progressed through from the 17th

century to the 20th century, there were societal factors that led the system to re-evaluate and

change the way it prosecuted. Burglary is just one example of a crime that had one very popular

19 Old Bailey. (www.oldbaileyonline.org, version 7.0, 05 March 2015), January 1703, trial of John Roberts, alias Chambers, alias Arthur Roberts, alias Chambers (t17030115-22); 20 Emsley, 106

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punishment in the beginning and progressed to have an entirely new favoured punishment by the

end of this time period. The movement from favouring capital punishment to incarceration shows

the recognition that, since more burglaries were being indicted and more criminal convicted for

pettier thefts than before, the punishment of death was seemingly too harsh for the crimes being

committed. If they wished to continue to prosecute petty burglaries, the punishment needed to be

less severe. Transpiring around the early to mid-19th century, this shift also corresponds to the

beginning of the movement to discontinue the use of the death penalty (see figure 3 for declining

numbers). It was furthered by a proposal made in 1856 to eliminate public executions in England

and would ultimately succeed by 1868.21

Comparatively, though not directly related to burglary, the crime of infanticide also

supports the idea of societal pressures and progressions causing necessary changes in England’s

criminal justice system. Infanticide does not have the same strikingly high numbers that burglary

does, but it is different in the fact that there is at least one person indicted for infanticide every

year between 1674 and 1913.22 Defined as the “practice…of killing unwanted children soon after

birth,” infanticide was a common form of murder that dates to before the 16th century and even

up to the 20th century.23 The statistics for infanticide, unlike burglary, stay relatively consistent

(see figure 7). Societal pressures were not likely to let up on the view of female respectability,

nor did they have any reason to worsen. Convictions were made if or when it could be proven

that the child had been murdered and it was treated as a homicide. When a conclusive decision

could not be made as in any case of any homicide the accused was acquitted.

21 John C. Weaver. “Lecture: History 3JJ3” Hamilton: McMaster University. 05 March 2015. 22 Old Bailey. (Statistic Search: offence category where offence category is infanticide. Counting by offence.). 05 March 2015.23 Oxford Dictionary. (www.oxforddictionary.com)

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Infanticide was classified as a type of homicide and as such was usually grouped with

other homicides where the victim knew the killer when reports were analyzed. There was still a

very prominent fear of being murdered by an unknown, like a burglar, but statistical evidence

shows that it was far more likely that the victim and murderer would know one another, and it

happened much more often.24 Amongst the homicides committed by someone familiar to the

victim, it was common to have a familial connection between the two. Infanticide is an excellent

example of this as it was often the mother of the child who was accused of killing the newborn.

Historian and author J.A. Sharpe contends that infanticide was singled out to have some of the

most severe punishments as a way for the English government to try to control feminine sexual

morality and states that the concern over the sexual morality of unmarried mothers may have

taken precedent over the defense of innocent young lives. 25 The laws prohibiting the

concealment of a stillborn child or the act of murdering a live child “may have resulted in more

executions than the more familiar witch craze.”26 Infanticide was a highly impermissible crime

that English society preferred to punish rather than offer assistance, purely based on the premise

of the respectability of the women involved.

Emsley reports that was much easier to convict someone of infanticide when the death

occurred directly or shortly after birth, but even if it was determined to be murder, juries often

found it difficult to claim the mother was solely responsible.27 The most common appeal made in

court was that the child was stillborn but this appeal was only accepted if it could be verified by

at least one other witness.28 In a case referring to two “young wenches,” two women attempted to

24 Emsley, 42-4325 J.A. Sharpe. Crime in Early Modern England: 1550-1750. London: Addison Wesley Longman Ltd, 1999. 87-8826 Ibid., 8827 Emsley, 4228 Old Bailey. (www.oldbaileyonline.org, version 7.0, 05 March 2015), September 1674, trial of Young Wenches (t16740909-2).

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use the stillborn appeal but it was overturned, as there was no witness. The incident was

described as the women having been “inticed to Folly, and at last got with Child, and to cover

one sin with a greater, most Unnaturally…Murthered their Infants…but being both discovered

by certain Symtomes usually visible in that condition, upon strait search, the whole matter came

to be disclosed, and they respectively Commited.” The mention of “inticed to Folly” can reflect

back on the earlier point of respectability and the societal perception of women needing to be

chaste in order to be virtuous enough to marry. Both women were condemned to death for their

horrific actions.

In another case, Elizabeth Messenger was indicted for the murder of her bastard son in

May 1681. Her situation is described as having gotten too “familiar” with a man who promised

her marriage but withdrew once she proved she was with child.29 Ms. Messenger proceeded to

carry the baby without it being detected and delivered it in solitude. It was only afterwards that

she became ill and that her “mistriss” became suspicious. She called for a midwife and it was be

determined that she had in fact given birth. She had hidden the child under loose floorboards in

the cellar and eventually confessed in court to concealing the child and the body was discovered.

Ms. Messenger was found guilty of murder and punished to death. This was one of only a few

reports where the accused had admitted guilt and the child was not found until after the trial had

begun. The role of the midwife was unique in this scenario as she did not play an aid in the

birthing process but rather was a key testimony for conviction as her profession led Ms.

Messenger’s mistriss and the courts to believe that Messenger was guilty.

In contrast, not every case of infanticide that came before the criminal courts ended in a

death sentence or even a guilty verdict. In the case of Jane Simpson, there was a lack of evidence

29 Old Bailey Proceedings Online (www.oldbaileyonline.org, version 7.0, 05 March 2015), May 1681, trial of Elizabeth Messenger (t16810520-3).

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that led to her acquittal in September 1715: “…the Prisoner said she made some Provision for the

Birth, and that it was born dead; and no Body proving any thing to the contrary, she was

acquitted.”30 The midwife had found the body of the child wrapped in a cloth under Ms.

Simpson’s bed, but she could not say for sure that it had not been stillborn. Since there were no

marks on the body of the child to suggest that it had been murdered, the courts were forced to

acquit Ms. Simpson of the charges. This relates back to the requirement of at least one witness

who could attest to a stillbirth in order for it to be held as an acceptable explanation in court.

Since the midwife could not testify either way, it was regarded as a possibility that the child was

stillborn and Ms. Simpson was not charged.

Infanticide was a largely female dominated crime. The statistics provided by Old Bailey

Proceedings Online show only six indictments of males for the crime between 1674 and 1913.31

None of these males were ever found guilty; five were acquitted on lack of evidence and one was

acquitted on a plea of insanity and was taken into Her Majesty’s custody.32 Figure 5 shows the

years in which each of these men were indicted on an individual basis. Mothering a bastard child

was viewed as a female indiscretion so the women bore the brunt of the blame more often than

not and men were not viewed as being responsible for the unfortunate circumstance that was

infanticide. Societal pressures and what Emsley refers to as the “cult of respectability” could

have played a very significant role in the number of infanticide reports and convictions present in

England.33 What he is referring to is the notion that women who bore bastard children were no

longer respectable in the eyes of a potential suitor. Homicide was one of the top reported crimes

30 Old Bailey. (www.oldbaileyonline.org, version 7.0, 05 March 2015), September 1715, trial of Jane Simpson (t17150907-16).31 Old Bailey. (Statistic Search: offence category is infanticide and defendant gender is male.). 05 March 2015.32 Old Bailey. (www.oldbaileyonline.org, version 7.0, 05 March 2015), January 1875, trial of James Hayes (43) (t18750111-145).33 Emsley, 49

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of the time but, even though it was considered under the broader category of homicide,

infanticide was notorious for going unreported and was therefore hardly dealt with by courts.34

For the over 200 years that Old Bailey Proceedings Online covers, there were only 430 total

reported cases of infanticide and only 165 of those were ever convicted.35 Of the 165 convictions

of infanticide, 63 were sentenced to death, 87 of them resulted in incarceration and the remaining

were “released on [their] own recognisances.”36

The underreporting of infanticidal crimes is another example of the discrepancies that can

arise when examining criminal justice data. In a society that was highly concerned with the

respectability of women, having only 430 indictments in just over 200 years seems quite low.

Furthermore, there are 63 cases that produced guilty verdicts and that resulted in death sentences

yet only three are attributed to having been women and none are attributed to men (see figure 6).

That means that there are 60 cases of people being found guilty of infanticide and sentenced to

death that are not determinately linked to a specific gender. When looking through the statistics,

it is clear then that one must read through each case in attempt to find something within the

record that may suggest the gender of the accused, and many have no such indication. This is the

same problematic situation that arises in the burglary cases, and no doubt in other criminal cases

from this time.

The similarities between the crimes of burglary and infanticide are not limited to the

discrepancies seen when examining the gendering of the convicted. The shift away from the use

34 Emsley, 4835 Old Bailey. (Statistic Search: offence category where offence category is infanticide. Counting by offence.). 05 March 2015; Old Bailey. (Statistic Search: offence category is infanticide and verdict category is guilty. Counting by offence.). 05 March 2015.36 Old Bailey. (Statistic Search: offence category where offence category is infanticide, verdict category is guilty and punishment category is death. Counting by offence.). 05 March 2015; Old Bailey. (Statistic Search: offence category is infanticide, verdict category is guilty and punishment category is imprisonment. Counting by offence.). 05 March 2015; Old Bailey. (Statistic Search: offence category is infanticide, verdict category is guilty and punishment category is miscellaneous.). 05 March 2015.

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of capital punishment is represented well by both burglary and infanticide. Figure 8 exhibits the

shift that occurred within the English criminal justice system surrounding infanticide and figure

1 shows the drastic drop in death sentences for burglars. The movement occurred around the turn

of the 19th century and the English criminal justice system began to favour imprisonment

sentences over those of death. Prisons were initially places that simply held the accused persons

for the period of time between their arrest and their trial; they were not originally intended to be

a place for long-term stays.37 The shift began as a push by reformers to overhaul the existing

“Bloody Code” as it was perceived as being “arbitrary and savage.”38 The reformers were

promoting more rational and morally sound alternatives to the death penalty and their argument

gained momentum as the government became increasingly involved in the prison system

themselves. The government opened two new prisons, Millbank and Pentonville in 1816 and

1842 respectively, and introduced a “prison inspectorate” in 1835 to aid in prison organization

and supervision. 39 Emsley associates the government’s willingness to reform its penal system to

the introduction of the workhouse as a secondary institution of discipline that came in to effect

under the New Poor Law of 1834.40

The English criminal justice system changed dramatically between the 17th and 20th

century. The example crimes of burglary and infanticide showcase how societal standards and

circumstances led to an increase in crime. The increase in crime was the exact condition that

reformers needed in order to advocate for an overhaul of the Bloody Code, which determined the

punishments of those convicted. Burglary, being a crime that was predominantly committed by

males, resulted in many deaths because of the desire to use the burglars of increasingly pettier

37 Emsley, 26138 Ibid.39 Ibid.40 Ibid.

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thefts as examples to deter others from committing the same crime. Infanticide, being a crime

predominately committed by females, also resulted in many deaths as the women were often

convicted to show the other women of the society what could happen if they were not virtuous

and respectable. In essence, though there is no obvious link between burglary and infanticide as

crimes, they can be linked through the fates of the people who committed them. They both

exemplify a similar pattern in the evolution of the criminal justice system in England between

the 17th and 20th centuries. Through the examination of arguments made by criminal historians

and the analyzing of criminal justice statistics, reports and testimonials as provided by Old

Bailey Proceedings Online, it is clear that there are trends that can be traced through different

crimes, such as burglary and infanticide, to societal factors that ultimately influenced alterations

to England’s criminal code and criminal justice proceedings.

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Appendix

Figure 1 – Graph charting statistics collected from Old Bailey Proceedings Online representing the number of burglary cases that received guilty verdicts that resulted in the use of the death penalty.

Figure 2 – Graph comparing the number of females indicted for burglary against the number of men indicted for the same crime according to Old Bailey Proceedings Online.

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1770 15 1802 18 1834 91771 12 1803 10 1835 351772 11 1804 14 1836 171773 16 1805 8 1837 201774 16 1806 8 1838 01775 11 1807 5 1839 01776 12 1808 9 1840 01777 11 1809 10 1841 01778 14 1810 19 1842 01779 10 1811 19 1843 11780 5 1812 12 1844 01781 7 1813 18 1845 01782 15 1814 21 1846 01783 14 1815 32 1847 01784 26 1816 40 1848 11785 31 1817 31 1849 11786 25 1818 22 1850 01787 23 1819 26 1851 01788 13 1820 23 1852 01789 12 1821 27 1853 01790 14 1822 24 1854 01791 8 1823 18 1855 01792 13 1824 23 1856 01793 7 1825 27 1857 01794 6 1826 37 1858 11795 7 1827 26 1859 11796 15 1828 17 1860 21797 11 1829 10 1861 11798 8 1830 51799 7 1831 61800 22 1832 51801 16 1833 5

Year Burglaries

Year Number of Deaths

Figure 3 – Table displaying the number of convictions resulting in the death penalty for crimes of burglary from 1770-1861. This period shows the most significant drop in numbers to the eventual culmination in 1861.

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1830 171831 101832 81833 91834 381835 771836 441837 471838 511839 481840 67

Total 416

Years # of Indictments # of Guilty Verdicts1718 1 01766 1 01817 1 01859 1 01875 1 01881 1 0

Infanticide: Death Sentences by GenderFemales 3Males 0Indeterminate 0

Other60

Total63

Figure 4 – Table displaying the exact number of reported burglaries between 1830 and 1840. Statistics courtesy of Old Bailey Proceedings Online (www.oldbaileyonline.org)

Figure 5 – There were only 6 cases of males being indicted for the crime of infanticide according to the statistics of Old Bailey Proceedings Online. This chart shows the years in which the indictments occurred, the number indicted in each of those years, as well as the number of guilty verdicts.

Figure 6 – Totals as found through statistical analysis on Old Bailey Proceedings Online. Table shows the discrepancies that can be found when looking at gendered cases concerning charges of infanticide that resulted in the death sentence.

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Figure 8 – Graph comparing the number of infanticide convictions, reported to and recorded by Old Bailey Proceedings Online, that resulted in the death penalty versus those that resulted in incarceration. It also displays the fundamental shift from the favouring of one punishment to the other.

Figure 7 – Graph displaying all cases of infanticide reported to and recorded by Old Bailey Proceedings Online between 1674 and 1913.

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Bibliography

Banner, Stuart. The Death Penalty: An American History. Cambridge: First Harvard Press, 2002.

Emsley, Clive. Crime and Society in England: 1750-1900. Harlow, UK: Pearson Education Ltd, 2010.

Old Bailey Proceedings Online (www.oldbaileyonline.org, version 7.0, 05 March 2015).- September 1674, trial of Young Wenches (t16740909-2).- January 1703, trial of John Roberts, alias Chambers, alias Arthur Roberts, alias Chambers

(t17030115-22).- September 1715, trial of Jane Simpson (t17150907-16).- July 1829, trial of James Brown, alias King (t18290716-113).- March 1835, trial of James Sheen, William Harris, James Edward (t18350302-662).- March 1835, trial of Henry Green (t18350302-658). - May 1681, trial of Elizabeth Messenger (t16810520-3).- January 1875, trial of James Hayes (43) (t18750111-145).

Sharpe, J.A. Crime in Early Modern England: 1550-1750. London: Addison Wesley Longman Ltd, 1999.

Weaver, John C. Lecture: History 3JJ3: Crime, Criminal Justice and Punishment in Modern History. Hamilton: McMaster University. 05 March 2015

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