Você está na página 1de 33

+(,121/,1(

Citation: 34 U. Toronto L.J. 447 1984

Content downloaded/printed from


HeinOnline (http://heinonline.org)
Mon Jun 10 16:39:17 2013

-- Your use of this HeinOnline PDF indicates your acceptance


of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from


uncorrected OCR text.

-- To obtain permission to use this article beyond the scope


of your HeinOnline license, please use:

https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=1710-1174
Constance B. Backhouse* DESPERATE WOMEN AND
COMPASSIONATE COURTS:
INFANTICIDE IN NINETEENTH-CENTURY CANADAt

Infanticide is one of the oldest, most widely known means of population


control.' In the time of Plato and Aristotle it was generally accepted and
even recommended for eugenic reasons. 2 Jean-Louis Flandrin has claimed
that even as late as the seventeenth century, infanticide was the principal
means of birth control in France: 'Women pregnant out of wedlock would
regularly murder their new-born bastards, and married couples had no
compunction about smothering or abandoning unwanted children in hard
times." The general acceptance of infanticide may have related to the in-
effectiveness or unavailability of other methods of fertility control; when
circumstances made child rearing impossible, infanticide was adopted as
a last resort. Furthermore the fragility of infant life in an era of limited
medical knowledge must have helped create an environment in which the
death of newborn children was a customary feature of daily life. Deliberate
child murder may have seemed less reprehensible under these conditions.
Given this background, it is not surprising that infanticide was a preva-
lent feature of nineteenth-century Canadian life. If one can judge reliably
from the number of legislative enactments and court trials, infanticide
appears to have been frequently resorted to by Canadian women who were
determined not to rear an unwanted child.4 This paper analyses the re-
sponse of the legal system to their efforts.
It was during the nineteenth century that the law first began to forbid

* Assistant Professor of Law, University of Western Ontario


" I would like to thank my research assistants, Kate Hughes and Rosemary Coombe,
for their excellent research and suggestions and the Social Sciences and Humanities
Research Council of Canada, which funded a research leave during which this
manuscript was written.
i See Langer, Infanticide: A historical survey (1974) 1 Hist. of Childhood Q. 353,
at 353-5; Shorter, Infanticide in the past (1973) 1 Hist. of Childhood Q. 178, at
179; Gordon Woman's Body, Woman's Right (1974), at 32-5.
2 Gordon, supra note i, at 32, 35
3 Shorter, supra note i, quotes this material from an unpublished manuscript by
Flandrin at 179.
,l. See Ward Unwed motherhood in nineteenth-century English Canada Historical
Papers (Canadian Historical Assoc., 1981) 34, at 44-5 for an excellent article
describing widespread prevalence of infanticide based on arrest records for To-
ronto between i86o and 1899.

HeinOnline -- 34 U. Toronto L.J. 447 1984


448 UNIVERSITY OF TORONTO LAW JOURNAL

the use of birth control and abortion.' The legal system, which was created
and operated exclusively by men, was starting to assert pervasive control
over the fertility of women. A logical extension of these initiatives would
have been to mete out harsh criminal punishment to women committing
infanticide. Yet male judges and male jurors exhibited remarkable lenience
when faced with women who were accused of infanticide, and in most cases
the women were discharged and set free. The courts regularly returned
verdicts of not guilty despite overwhelming evidence to the contrary. Their
response is one of the strongest indications of the attitude towards infanti-
cide in the nineteenth century - that of compassion, tolerance, and sym-
pathy. From the perspective of the twentieth century, this compassion may
seem misplaced, at least with respect to the many unwanted infants who
met their untimely end in rather violent ways. However an examination
of the conditions that confronted these women and their lack of alterna-
tives leads to the inescapable conclusion that infanticide was often an
obvious and necessary last resort.
The legal records indicate that the vast majority of women who were
charged with infanticide were unmarried. The disgrace which attached to
unwed pregnancy in Victorian times was intense and all-encompassing.
Family and friends might cut off all relations, and the poor woman would
be forced to leave her home and neighbourhood to seek anonymity. The
difficulties of trying to support herself and her child would have been nearly
insurmountable because women's wages were not set high enough to sup-
port themselves, let alone dependent children.6 Unless she could find a
charitable organization to take her in, prostitution would be her only resort.
Many unmarried pregnant women, often extremely young, were desperate
to conceal their pregnancy and do away with their child before their lives
were disastrously transformed. These women were determined to exert
some control over their fate, event through infanticide if necessary. A de-
scription of the statutes enacted in nineteenth-century Canada and the
many court trials which considered these laws will indicate the extent to
which the law failed to sanction their behaviour and will also illustrate that
society generally respected these women's decisions.
The statutoryframework
English common law treated child murder just like other forms of murder,
as a felony punishable by death.' It was extremely difficult to prove a
5 See my Involuntary motherhood: Abortion, birth control and the law in nineteenth-
century Canada, forthcoming in Windsor Access to Justice Yearbook.
6 See Ward, supra note 4, for a description of the many obstacles facing women
pregnant outside wedlock.
7 In earlier times this had not always been the case. It was not until 318 AD that the
Christian Emperor Constantine first declared the slaying of a son or daughter by
a father to be a crime.

HeinOnline -- 34 U. Toronto L.J. 448 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 449

charge of murder in infanticide cases, however, since so many babies died


at birth from natural causes or from improper medical treatment. To com-
plicate matters, some women concealed their pregnancies, gave birth in
secret, and then tried to hide the child's body in order to escape detection.
If she was caught, the terrified mother would claim that the child was still-
born or died right after birth despite her attempts to save it. While in some
cases this was no doubt true, in others it was a fabrication. To prevent
this, an unusual statute was enacted in a number of Canadian jurisdic-
tions to punish the 'concealment' of the birth of an infant.
The Nova Scotia and Prince Edward Island statutes, passed in 1758
and 1792 respectively, read as follows:
[I]f any woman be delivered of any issue of her body, male or female, which
being born alive, should by the laws of the realm of England be a bastard, and
that she endeavour privately, either by drowning or secret burying thereof,
or in any other way, either by herself, or the procuring of others, so to conceal
the death thereof, as that it may not come to light whether it were born alive
or not, but be concealed, the mother so offending shall suffer death as in the
case of murder, except such mother can make proof by one witness, that the
child whose death was by her so intended to be concealed, was born dead.8
These statutes were modelled upon English legislation 9 and were later
extended to Quebec and Upper Canada by way of general legislation re-
ceiving English criminal law into the colonies.' ° Prosecutors were no longer
forced to prove that the mother had actually murdered her newborn child;
all that was required was evidence that the mother had given birth, that
the child had died, and that the mother had attempted to conceal this fact.
At this point there was an automatic presumption of guilt, upon which the
mother could be put to death as a murderer. No matter how credible and
convincing the mother's testimony might have been, courts were instructed
to convict unless she could provide some other person as a witness to her
innocence. This witness would have to testify that he or she had seen the
mother give birth and that the child had been stillborn. Since the purpose
of concealment would have been destroyed by inviting a witness to attend
the birth, it must have been clear to the legislators that few women accused
8 An Act relating to Treasons and Felonies (1758) 32 Geo. ii, c 13, s 5 (N.S.) ; An
Act relating to Treasons and Felonies ( 1792) 33 Geo. 111, c I, s 5 (P.E.r.)
9 In fact the statutes were exact duplicates of an English statute entitled An act to
prevent the destroying and murdering of bastard children ,1623 21 James I, c 27,
S 2 (Eng.).
1o An act for the further introduction of the criminal law of England into this prov-
ince, and for the more effectual punishment of certain offenders (1800) 40 Geo. In,
c i, s i (Upper Canada). The Quebec reference is taken from Fred Kaufman j's
introduction to Burbidge Digest of the Criminal Law of Canada ( I98o, orig. pub.
189o), foreword at I.

HeinOnline -- 34 U. Toronto L.J. 449 1984


450 UNIVERSITY OF TORONTO LAW JOURNAL

of this crime would be able to meet this burden of evidence. They must
have known that they were sentencing innocent women to death in the
many cases where a woman attempted to conceal her childbirth but the
foetus was stillborn or died of natural causes.
Several other features of the statute are also of interest. The legislation
applied solely to 'bastard' children, and not to the concealment of children
born inside wedlock. Presumably the legislators had concluded that mothers
would not commit infanticide against legitimate children. While there is
no doubt that some married women were committing infanticide, they
may have had less reason to conceal their pregnancies, since they would
suffer no loss of reputation comparable to that of unwed mothers. The sub-
sequent death of a legitimate child could be brushed aside as a natural
event, with no one to claim the contrary. The legislation could conceivably
have encompassed married women giving birth inside wedlock, thus forc-
ing them to have witnesses at all births to testify as to the condition of the
infant when born. However, this may have been viewed as an unwarranted
intrusion upon the privacy of married couples. Furthermore, the legislators
may have believed that husbands were the best safeguard to prevent their
wives from concealing childbirth or committing infanticide. It is also in-
teresting that the legislature found it necessary to specify that the statute
was to apply to female children as well as to male children. In pre-industrial
societies female children had most often been chosen for elimination."
Knowledge of historical imbalances in the ratio of female to male infanti-
cide victims may have prompted the legislators to leave2 no room for doubt
that female children were to be given equal protection.1
There are no reported Canadian cases under these first concealment
statutes, which is not surprising in view of the paucity of reported decisions
up until the end of the first quarter of the nineteenth century. Two trials,
unearthed through the archival research of Robert L. Fraser, have emerged
as landmark cases; both of them occurred in the province of Upper
Canada.
Angelique Pilotte, a twenty-year-old native Indian woman, was tried
for the concealment of her illegitimate child in Niagara on 8 September
1817." While employed as a domestic servant, Angelique had travelled
to France, where she met a British officer with whom she had had an 'un-
ii See Gordon, supra note 1, at 34 and Dellapenna, The history of abortion: Tech-
nology, morality and the law (1979) 40 U. Pitts. L.R. 359, at 396.
12 The nineteenth-century legal materials discussed infra reveal no significant differ-
entiation between the number of male and female infants killed.
13 This account of the trial of Angelique Pilotte is drawn from the unpublished manu-
script prepared by Robert L. Fraser for the Dictionary of CanadianBiography, vol
5, biography No. T-427c.

HeinOnline -- 34 U. Toronto L.J. 450 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 451

happy connection.' Returning to Quebec alone and pregnant, she man-


aged to obtain another domestic position by concealing her pregnancy.
Angelique's ability to hide her condition was so great that even the female
servant who shared her bed knew nothing about it. Rising from bed on
the night of 30 July 1817, Angelique went out to a nearby field and gave
birth to a male infant about 2 : oo am. The child seems to have been born
alive, although it was sickly and did not cry at all. After staying there an
hour or so, Angelique wrapped the infant's body tightly in a cloth and left
him behind a stable until about 2:oo am the next night, when, fearful
of her mistress's reaction, she buried him in a shallow grave. When the
child's body was discovered, Angelique's mistress suspected her. Con-
fronted by accusations, Angelique, who seemed unaware that concealing
the birth of a child was a crime under English law, immediately confessed
to having given birth and was held for trial 'in a state of extreme convul-
sion.'
The wording of the statute made proof of the cause of death irrelevant
unless there was evidence to this effect from witnesses other than the
mother. However both trial lawyers seemed anxious to bring out evidence
concerning the reasons for the child's death. Henry John Boulton, the
prosecutor, introduced evidence from a local surgeon who testified that
the infant's body 'was perfect in form, and had every appearance of ma-
ture birth.' He also stated that a live child 'so tightly pinned up [by cloth]
must necessarily be smothered.' Under cross-examination by the defence
counsel, Bartholomew C. Beardsley, however, he admitted that the child's
death might have also been caused by 'the want of proper assistance at
the time of delivery.' The surgeon also added that it was usual for babies
to cry after birth, and it was therefore surprising that Angelique's child
had never uttered a sound. The child might have died, then, from any
number of causes - from natural birth defects, from lack of medical atten-
tion at the delivery, from lack of food or exposure, from choking under
the tightly wrapped cloth, or from being buried in the field. The evidence,
however, was clearly sufficient to convict Angelique under the conceal-
ment charge, and the jury took little time in concluding that she was
guilty. Although the jury 'strongly' urged mercy, William Campbell j
concluded that Angelique had been convicted on 'clear and sufficient evi-
dence' and sentenced her to be hanged on I I September 1817.
The sentence brought a great outcry from the community, and a sur-
prising number came forward to plead for clemency on Angelique's be-
half. Petitions for mercy came from some of the most respected members
of the community including a number of military officers stationed in
the area and more than a dozen magistrates. Particular attention was

HeinOnline -- 34 U. Toronto L.J. 451 1984


452 UNIVERSITY OF TORONTO LAWJOURNAL

focused upon Angelique's Indian heritage. Emphasizing that she had


not even 'the slightest instruction in the principles of Christian religion,'
a petition from Angelique's lawyer claimed that she knew only the 'cus-
toms and maxims of her own nation' and was guilty only of the 'invariable
custom of Indian women to retire and bring forth their children alone and
in secret.' The absurdity of convicting an Indian woman under an imperial
concealment statute was the key argument in the document. Eight months
later, Angelique was notified that a royal pardon had commuted her sen-
tence to one year's imprisonment. While all involved were no doubt re-
lieved that Angelique would not be hanged, some must have continued
to wonder whether she had really murdered her child, a fact that had never
been determined at trial. Her mistress had publicly stated that Angelique
was 'so simple and ignorant as not to know right from wrong, nor that she
thought it a crime to kill her own child.' This woman may have hit upon
the critical issue involved in the case - that Angelique had viewed infanti-
cide as a normal event, something which was practised by many Indian
women without fear of criminal sanction. Further research about North
American Indian cultures would be necessary before one could know for
certain whether Angelique's response to an unwanted pregnancy was a
common one in the Indian community at this time.
The second landmark case involved Mary Thompson, a young woman
who came from an impoverished, landless family living in the area of York.
She was tried on 17 October 1823 at York for the concealment of the birth
of her illegitimate child.14 When Mary had discovered she was pregnant,
she confided in her married sister, who promised to assist her during the
delivery. However Mary had miscalculated the date of delivery and, taken
by surprise, she had given birth alone, without assistance. She killed the
child immediately, which she claimed was an act prompted by 'the pains
and anguish of childbirth.' The child was found with 'a fracture of the
skull, braine, and extravagate [sic] blood,' and the twelve jurors who tried
the case had little difficulty returning a verdict of guilty. In spite of the jury's
recommendation for 'merciful consideration,' William Dummer Powell cj
sentenced Mary to be hanged on 20 October 1823.
Mary's father put forth the only major petition urging clemency; never-
theless Powell cj delayed the execution and gave consideration to seeking
royal review. During the trial the judge had permitted the introduction of
evidence that the dead child's lungs had floated when immersed in water;
this had been accepted as conclusive proof that the child had been born
14 This account of the trial of Mary Thompson is drawn from an unpublished manu-
script prepared by Robert L. Fraser for the Dictionary of Canadian Biography,
6
vol 6, biography No. T- 54.

HeinOnline -- 34 U. Toronto L.J. 452 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 453

alive. After the trial, Powell cj learned that this evidence was no longer
considered legally reliable in England, and he decided that the case should
be given royal consideration. This decision is somewhat perplexing, since
under the concealment statute the question of whether the child was born
alive was of no consequence unless there was some witness who could attest
to this fact. However on 6 August 1824 Mary Thompson was granted a
general pardon, and hence a lesser sentence than that served by Angelique
Pilotte.
Another reason cited by the judge for the pardon was the disparity be-
tween English and Canadian law. In 1803 the English Parliament had
repealed the harsh concealment statute, noting that 'doubts [had] been
entertained respecting the true sense and meaning' of the earlier act, and
that it 'had been found in sundry cases difficult and inconvenient to be
put into practice." 5 The 1803 imperial statute thus became a focus for
the attention of Canadian law reformers. The new English law provided
that, with the repeal of the harsh 1623 concealment statute, women
charged with the murder of their bastard children would be governed by
the rules of evidence and presumptions of law used for ordinary murder
trials. As a result, the child would have to be proved to have been born
alive before the mother could be convicted of its murder. To deal with
the difficulties of proof in infanticide cases, the new legislation provided
that when a mother was acquitted of the murder of her illegitimate child,
a new verdict of 'concealment' could be substituted. This new offence
had a maximum penalty of two years' imprisonment, a sharp drop from
the death penalty seen in the earlier statute. The parliamentary debates
indicate that Lord Ellenborough, who introduced the bill, was particu-
larly concerned about the high acquittal rate on child-murder charges.
The debates stated that the provision was 'to relieve the judges from the
difficulties they labour under ... At present the judges were obliged to
strain the law for the sake of lenity, and to admit the slightest suggestion
that the child was still-born as evidence of the fact."'
Canadian judges had exhibited similar tendencies. Both the cases dis-
cussed resulted in convictions, but both courts seemed preoccupied with
the technically irrelevant evidence concerning the cause of the child's
death. The courts were straining for evidence with which to avoid the harsh
death penalty, although in neither case were they able to muster enough
material to warrant a finding of not guilty. It is evident that the conceal-

15 An act for the further prevention of malicious shooting and attempting to discharge
loaded fire-arms ... and for repealing 'An act to prevent the destroying and murder-
ing of bastard children' ( 803) 43 Geo. ill, c 58, s 3, 4 (Eng.) See also the preamble.
16 Cobbett's ParliamentaryHistory of England (1803) 46 Geo ill, vol 36, at 1246.

HeinOnline -- 34 U. Toronto L.J. 453 1984


454 UNIVERSITY OF TORONTO LAW JOURNAL

ment statute was viewed as overly harsh, both by the community which
reacted with concern to the sentence in the case of Angelique Pilotte and
by the legal officials who sought for, and were granted, the commutation
of the death penalty following both trials.
The jurisdictions of New Brunswick, Lower Canada, and Nova Scotia
had already moved to repeal the harsh death penalty for the concealment
offence, following the English lead: New Brunswick in 18 1o, Lower Can-
ada in I812, and Nova Scotia in I813. All of them adopted provisions
almost identical to the 1803 English statute, setting a penalty for the new
concealment offence at a maximum of two years.' 7 Following the Mary
Thompson trial, some of the most powerful political figures in the province
of Upper Canada began a concerted effort to duplicate the initiative. Such
prominent men as John Beverley Robinson (who had acted as the Crown
prosecutor in the Thompson trial), John Strachan, George Markland, and
Jonas Jones attempted to push a repeal bill through the legislative assembly
and council, and were finally successful in I 826.' s However, for some un-
accountable reason, the legislation was later disallowed by the select com-
mittee of the Privy Council in England, which reviewed all colonial legis-
lation. The repeal bill lay dormant until 183 1, when Robinson was able to
get the bill through the legislative assembly and council once again, and
royal assent was granted, seemingly without difficulty this time.' 9 Prince
Edward Island was the final Canadian jurisdiction to repeal the old law in
1836, enacting provisions identical to those passed in the other provinces.2"
Next, the legislatures began to pass a series of statutes which expanded
the scope of the concealment offence. The first set of amendments ex-
panded the legislation to include the concealment of all infants, legitimate
or illegitimate. Now that the harsh death penalty had been lifted, the legis-
lators may have felt easier about extending the criminal law to cover mar-
ried women. The English Parliament moved first on this amendment in
1828, followed by New Brunswick and Upper Canada in 1831, Prince
17 An Act for making further provisions to prevent the destroying and murdering of
Bastard Children (18io) 50 Geo. II, c 2, S I, 2 (N.B.) ; An Act to repeal 'An Act
to prevent the destroying and murdering of Bastard Children' (1812) 52 Geo. ill,
c 3, s i, 2, 3 (Lower Canada) ; An Act for repealing ... 'An Act relating to Treasons
and Felonies' (1813) 53 Geo. ui, c I I, s i, 2 (N.S.)
18 An Act to prevent the operation of 'An act to prevent the destroying and murdering
of bastard children' (1826) 7 Geo. iv, c 2, s i. 2. 3 (Upper Canada)
19 An Act to prevent the operation of 'An Act to prevent the destroying and murdering
of Bastard Children' (1831) 2 Win. Iv, c 1, s 3 (Upper Canada). Upper Canada
had not provided a fixed sentence for the new misdemeanour in the earlier 1826
statute; however the 183 legislation enacted a specific penalty of a maximum of
two years.
2o An Act to provide for the punishment of Offences against the Person (1836) 6
Win. Iv, c 22, s 7 (P.E.s.)

HeinOnline -- 34 U. Toronto L.J. 454 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 455

Edward Island in 1836, Newfoundland in 1837, and Lower Canada in


1841.21 New Brunswick and Nova Scotia expanded their legislation still
further in 1849 and 1851 respectively. Both enacted a statute which made
it clear that the offence could be committed by 'any person,' not only
mothers.22 In the majority of cases, at least of the cases in which the con-
cealment plot was detected and the mother was caught, the mother acted
alone and without aid from anyone else. However, in some situations the
woman's husband or lover, or her female friends or relatives were involved
in the child-murder and concealment effort. An 1849 English case had
held that persons other than the mother could only be indicted if the
mother had been found guilty of concealment herself.2 3 The New Bruns-
wick and Nova Scotia legislatures acted swiftly to ensure that all persons,
acting independently or in concert, could be convicted under the section.
The federal government acquired control over the criminal law in 1867,
and it dealt with infanticide in its first consolidation of offences against the
person. It enacted the broadest legislation then in force anywhere in the
country, picking up all the amendments seen in the most innovative stat-
utes. The harsh death penalty applied to murder if the full offence could
be proven; the offence of concealment of the birth of a child was given
a maximum term of two years. The statute specified that upon an acquittal
for murder of a child, if the evidence warranted a court could substitute a
verdict for concealment of birth. It was also clear that the statute was in-
tended to cover both legitimate and illegitimate children, and that mothers
and other persons could be charged with the offence.2 4 No further sub-
21 See Offences against the Person Act (1828) 9 Geo. IV, c 31, s 14 (Eng.) ; Offences
against the Person Act (1831) I Wm. IV, c 17, s I (N.B.); and An Act to extend
the Criminal Laws of England to this Colony (1837) 1 Vict. c 4 (Nfld.). The Upper
Canada statute of 183 1 removed the reference to bastardy in the text of the legisla-
tion but retained the reference in the margin heading: see An Act to prevent the
operation of ... 21 James I' (1831) 2 WM. Iv, c 1, s 3 (Upper Canada). The mis-
leading margin reference was removed by 1841 : see Offences against the Person
Act ( 1841) 4 & 5 Vict., c 27 (Province of Canada), which also extended the legis-
lation to cover the geographic area of Lower Canada.
22 An Act to consolidate the Criminal Law (1849) 12 Vict., c 29, 'Offences against
the Person,' article 9 (N.B.) ; Of Offences against the Person R.S.N.S. 1851, C 162,
S 12 (N.S.). See also An Act for consolidating Statutes relative to Offences against
the Person ( 1841 ) 4 & 5 Vict., c 27, s 14 (Province of Canada) ; An Act respecting
Offences against the Person (1859) 22 Vict., c 91, s 4 (Province of Canada) also
known as c.s.c. 1859, c 91; and An Act respecting Procedure in Criminal Cases
c.s.c. 1859 , c 99, s 67 (Province of Canada), none of which provided that anyone
other than the mother could be charged with the offence.
23 See R. v Waterage (1846) 6 L.T. 0.s. 523, I Cox C.. 338. England was much
slower in amending its law; see An Act to consolidate the Statute Law relating to
Offences against the Person (i86i) 24 & 25 Vict., c ioo, s 6o (Eng.).
24 An Act respecting Offences against the Person (1869) 32 & 33 Vict., c 20, s 1, 6i,
62 (Dominion of Canada)

HeinOnline -- 34 U. Toronto L.J. 455 1984


456 UNIVERSITY OF TORONTO LAW JOURNAL

stantive amendments were made until 1892, although the federal govern-
ment did extend its criminal law to the newly joined provinces of Mani-
toba, British Columbia, and Prince Edward Island in the 1870s.25

A profile of infanticide

Using court records to reconstruct evidence about infanticide in nineteenth-


century Canada is filled with risk, since this information fails to take into
account the great number of situations in which the crime remained un-
detected or unsolved. Eric Jarvis has noted that the number of arrests for
infanticide in mid-nineteenth-century Toronto was very small compared
with the large number of infants' bodies discovered in ditches, in trash-
heaps, in privies, under the platforms of railway stations, by the sides of
roads, at the bottoms of wells, and in uncleared fields and lots: 'In To-
ronto during the I86os, for instance, there were only seven cases where a
woman was ever charged with the offence; but the number of dead in-
fants found and examined by the coroner was between fifty and sixty. And
these were only the ones that were discovered, possibly a mere fraction of
those actually killed.' 26
The court records do, however, provide some insight into how the
women who were caught were tracked down. -7 In most cases the woman
involved had attempted to hide her pregnancy and childbirth entirely. But
in some cases the childbirth was a difficult one, and the mother was ulti-

25 An Act to extend to the Province of Manitoba certain of the Criminal Laws ( 1871 )
34 Vict., C 14 (Can.) ; An Act to extend to the Province of British Columbia certain
of the Criminal Laws (1874) 37 Vict., c 42 (Can.).: An Act to extend to the Prov-
ince of Prince Edward Island certain Criminal Laws ( 1877) 46 Vict., c 4 (Can.)
26 Jarvis, Mid-Victorian Toronto: Panic, policy and public response 1857-73 PH D
thesis (under Armstrong), University of Western Ontario 1978, at 134-5
Canadian legal records reveal only three reported cases in the nineteenth century
involving infanticide trials, one from Newfoundland, one from New Brunswick, and
the other from Ontario: The Queen v Travers (186o) 4 Nfld. R. 521 (s.c.) ; R. v
Pichi (1879), 30 U.C.C.P. 4o9; The Queen v Fennety (1885) 8 N.B.R. 132 (S.C.);
see also R v Winegarner (i888) 17 O.R. 208 (c.P.). Beth Light and Alison Prentice
have uncovered two other cases in newspaper accounts, one from New Brunswick
and the other from Quebec (Light and Prentice Pioneer and Gentlewomen of
British North America 1713-1867 (198o), at 207). An investigation of the court
records in the Ontario Archives for the period from 1840 to 19oo revealed an addi-
tional twenty-seven murder charges, six manslaughter charges, and thirty conceal-
ment charges (Archives of Ontario, hereinafter AO, RG22, County Court Judges'
Criminal Court Minute Books and Courts of Criminal Assize Minute Books, 1840-
19OO).
27 The generalizations following were compiled from a thorough reading of the avail-
able court records but canno- be considered completely determinative. Many of
these records were sparse in detail, and the conclusions have been drawn only from
those cases where the material was recorded.

HeinOnline -- 34 U. Toronto L.J. 456 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 457

mately unable to conceal her illness. Doctors were called in and, except in
several very unusual cases, they discovered that the woman had given
birth."8 Confronted with this accusation, the woman inevitably broke
down and confessed where she had hidden the body. In other cases the first
indication that infanticide had taken place was the recovery of the infant's
body. Suspicious neighbours or relatives often linked the child to the
woman concerned. In other cases, a detective would be assigned to investi-
gate. In one situation, a neighbouring widow was even called in to conduct
a physical examination upon a suspected woman, to decide whether she
had recently given birth. Sometimes the woman herself confessed to a
friend or family member without any accusation or prompting.
Most of the women charged were very young, often still living at home
or in a boarding house with another family. For most of them, the preg-
nancy appeared to have been their first. The overwhelming majority of
women charged with infanticide were single. This may indicate that the
crime was most often committed by women pregnant out of wedlock, but
it may also reflect the greater difficulties of proof against married women.
Married women would rarely need to conceal the full pregancy, and could
give birth openly, kill the child, and later declare that it had died of natural
cause. If these women could count upon the collusion of their husbands, it
would be virtually impossible for a prosecutor to obtain a guilty verdict.
The majority of women charged with infanticide in Canada were from
the lower class, employed most commonly as domestic servants." The life
of a domestic servant in nineteenth-century Canada was often one of social
isolation, long hours, hard work, and low pay. ' o Many were immigrants
or workhouse children from England, who arrived in Canada without
family or close friends. A common feature of their lives was sexual exploita-
tion at the hands of their employer and his sons." 1 Once they became preg-
nant, their situation was perilous. Describing the large number of domestic

28 For cases in which hospital personnel and doctors failed to diagnose pregnancy be-
cause of the ingenious explanations and subterfuge of the women involved, see The
Queen v Catherine Graham, AO RG22. Middlesex County Minute Books, 1859 and
The Queen v Susan MacFarlaneAO RG22, Carleton County Minute Books, 188o
29 The absence of any wealthy women from infanticide trials may in part relate to
their greater resources. Unmarried upper-class women may have been able to give
birth in private and have the child disposed of secretly or placed out to others who
would care for it in return for payment. This would have been especially likely
where the woman's family. presumably anxious to protect its family name, decided
to assist her in this deed.
3o Leslie, Domestic service in Canada i88o-19i2o, in Acton et al Women at Work
1850-1930 (1974), at 7 1-125.
31 See Rotenberg, The wayward worker: Toronto's prostitutes at the turn of the cen-
tury, in Acton, supra note 3 o . at 3,-69: Langer, supra note i, at 357; Palmegiano
Women and British Periodicals 1832-1867: A Bibliography (1976), at xxv.

HeinOnline -- 34 U. Toronto L.J. 457 1984


458 UNIVERSITY OF TORONTO LAW JOURNAL

servants who became prostitutes in Toronto at the turn of the century, Lori
Rotenberg has noted that 'the domestic servant who lost her virginity, or
worse, became pregnant, could no longer look forward to the possibility
of marriage. If she bore an illegitimate child, she would lose her job and be
ostracized from society at large.' 2 The concealment of the pregnancy fol-
lowed by infanticide must have seemed preferable to disgrace, loss of em-
ployment and shelter, and even starvation. Much less is known about the
men who fathered the children in question. Despite speculation that the
male employers of domestic servants were often responsible, 3 the mothers
refused to identify the men involved in virtually every case. In two rare
instances where the father was revealed, one turned out to be a labourer
in a Toronto brickyard who had refused to marry the woman he had im-
pregnated, and the other was the woman's own brother.
Some of the women described the motivations that drove them to in-
fanticide. One told of her terror at contemplating the shame that would
come to herself and her family from an illegitimate birth. Another re-
counted the impossibility of surviving as a single woman attempting to
raise a child. Still another referred to her stark poverty. The young women
especially may have tried to deny their pregnancy even to themselves, and
may have hoped for a last minute miscarriage or even that the child might
be stillborn. When confronted with a live birth, they resorted to infanticide
as a final, desperate measure. The courage and resourcefulness that these
women exhibited in total secrecy and isolation, and often in complete ig-
norance of the natural processes of pregnancy and childbirth, is striking.
They had to keep up normal appearances in front of employers and ac-
quaintances despite any pregnancy-related illnesses, find some privacy in
which to give birth unobserved, serve as their own midwife, and do away
with the child and its body before discovery, afterwards continuing their
daily routine as if nothing had happened. The cases below portray the
stories of women who failed, in one or more respects, to follow through on
this entire course of action successfully.

Murderand manslaughtertrials

The trial of Catherine McDonald in 1861 in the County of Peterborough


is typical of a pervasive pattern in infanticide cases. Time after time courts
32 Rotenberg, supra note 3 1, at 41
33 Langer has noted that in 1871 the secretary of the Society for the Rescue of Young
Women and Children testified before an English Parliamentary Committee that at
least nine out of ten of the women in trouble were domestic servants: 'In many cases
the fathers of their children are their masters, or their master's sons, or their master's
relatives, or their master's visitors.' (Langer, supra note i, at 357).

HeinOnline -- 34 U. Toronto L.J. 458 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 459

would discharge women accused of infanticide, despite compelling evi-


dence of their guilt. Catherine McDonald, who was charged with murder-
ing her infant child, was employed as a servant on a farm near Peterbor-
ough and was apparently unmarried, although the records do not specify
her age.14 When she discovered she was pregnant, she managed to disguise
the fact by wearing 'skirts with very full hoops.' No one but the farmer's
wife suspected. During the last week of her pregnancy, she compained of
headaches and finally took to her bed the last few days. Someone over-
heard Catherine get up and go out of the house at night. She did not return
for some time, and must have given birth alone outside. A child's body was
later discovered by another farmer in the area. Only part of its arm, leg,
and trunk remained and it appeared to have been torn apart by dogs. Sus-
picion soon fell upon Catherine, and she was charged with murder.
The grand jury which had to screen the case to determine whether it
should go forward to trial rendered a rather confusing decision. The archi-
val records state that the grand jury found Catherine guilty of wilful con-
cealment of birth, but that the jurors were 'not able to say positively
whether the said infant was stillborn or not.' Nevertheless, their decision
speculated that it was their opinion 'that it was born alive from the appear-
ances of the portions found; and it is also their opinion that the said girl
is guilty of wilfully causing its death.' Despite these views, the grand jury
decided that the case should not go forward to trial, and there is no record
of any further legal proceedings being taken against Catherine McDonald.
In 1884 in the County of York, Lizzie Smith was charged with murder-
ing her infant female child.3" The evidence showed that Lizzie Smith was
a single woman, living as a boarder with a Toronto family, who had man-
aged to conceal her pregnancy from everyone around her. She also man-
aged to give birth in secret, in the middle of the night, and allegedly threw
the infant's body down a privy." It was soon discovered, and when it was
unearthed and examined it was found to have scratches on its body, which
appeared to have been made by a stick with a nail in it. Despite this evi-
dence, the court's verdict was that Lizzie was not guilty of murder, and
the case was dismissed.
Fanny Smith and her sister, Carrie Smith, were both tried for child

34 The Queen v Catherine McDonald AO RG22, Peterborough County Minute Books,


186i
35 The Queen v Lizzie Smith AO RG22, York County Minute Books, 1884
36 A number of English cases acquitted women who disposed of their infants in privies
on the ground that they may have confused the act of birth with normal execretory
functions! See R. v Turner (1839) 8 c. & P. 755, 173 E.R. 704; The Queen v
Derham (1843) 1 Cox c.c. 56; R. v Coxhead (1845) 1 Car. & K. 623, 174 E.R. 964.

HeinOnline -- 34 U. Toronto L.J. 459 1984


460 UNIVERSITY OF TORONTO LAW JOURNAL

murder on 22 June 1887 in the County of York. 7 Fanny was the one who
had given birth, and she was charged as the principal in the case; Carrie
was charged as an accessory. Fanny had been employed as a servant at the
Albion Hotel in Toronto, where she had secretly given birth to an illegiti-
mate child. She placed the body of the infant in her trunk, covered it with
clothes, and locked the trunk. Desperate and confused, she fled the hotel
leaving the trunk behind. When the trunk was opened two weeks after she
left, the body was discovered and Fanny was tracked down at another
Toronto hotel where she was staying, and charged. Once again the grand
jury brought in a finding of 'no bill,' and Fanny and her sister, whose role
was unexplained, were permitted to go free.
On 27 June 1888 Eva Harris was charged with the murder of her infant
daughter in the County of York." s She was also a single woman, living in
a boarding house, who had managed to conceal her pregnancy entirely.
She gave birth alone, hid the baby in a hole in the floor of her room, and
covered it with a carpet. However she was too sick to get out of bed for
several days, and a doctor was called in to examine her. His examination
revealed that Eva still retained the child's afterbirth, which had now be-
come infected. When this was discovered, a Detective Black was called in,
and he soon found the child's body under the carpet. The grand jury con-
cluded that the child's death had been caused 'by the carelessness of her
mother in not procuring proper medical attendance at childbirth'; they
returned a decision of 'no bill' and Eva Harris was discharged.
The case of Malvina Jane Hearns, heard in the County of Northumber-
land and Durham in 1892, involved a situation of incest which had resulted
in pregnancy. 9 Malvina Hearn's brother had had sexual intercourse with
her and she had become pregnant. She fled to the home of one of her other
brothers, in Port Hope, where she delivered the child. Unlike the other
women discussed above, Malvina did not attempt to hide her pregnancy
or childbirth. In fact, she readily admitted that she had been impregnated
by her brother. Her case is also unusual in that she did not attempt to do
away with the child immediately. She lived with her brother for four weeks
until she was able to obtain a position as a domestic servant in another
home. Before leaving, she murdered her child and buried it in the back-
yard while her brother and family were out. She told them when they
returned that she had given the child away, but her brother soon found the
child's dress down a well. Upon closer questioning, Malvina broke down
37 The Queen v Fanny Smith and CarrieSmith AO RG22, York County Minute Books,
22 June 1887
38* The Queen v Eva HarrisAO RG22, York County Minute Books, 27 June 1888
39 The Queen v Malvina Jane Hearns AO RG22, Northumberland and Durham County
Minute Books, May 1892

HeinOnline -- 34 U. Toronto L.J. 460 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 461

and admitted she had murdered the child. She must have been in a state
of shock as well as relief, for she kept muttering 'I am free, I am free.'
Whether Malvina's brother turned her in is not clear, but the evidence does
indicate that he dug up the child's body and gave it to an undertaker for a
'proper burial.' Once this became known, Malvina was charged with mur-
der. At this point she changed her story, and claimed that the child had
'strangled or suffocated while at her breast.' Despite the contradictory
evidence, the court's verdict was that she was not guilty.
A somewhat different case involved Charlotte Saunders, who was tried
for murdering her infant in 1897 in the County of Northumberland and
Durham.4" Charlotte Saunders was a widow with three children, who was
described as 'absolutely without means.' One of her neighbours had ob-
served that she was pregnant and when he did not see a young child pro-
duced, he notified the authorities that he believed Charlotte had murdered
it. During the trial Charlotte took the stand and claimed that she had given
birth, but that she believed the child was born dead. She was too weak,
she testified, for a full five hours after giving birth alone, to examine it
further. In the morning, when her other children woke up, she discovered
that the infant's navel string was around its neck and that it was dead. She
carefully washed it body, placed it in a box, and asked her nine-year-old
son to bury it. Charlotte's son also took the stand and testified that he was
aware that his mother had been 'sick' one day, and that she had requested
that he bury a dead baby the next morning. He claimed he never heard
the baby cry out once. The medical evidence was in stark contradiction to
this testimony. The doctors claimed that a post-mortem examination of
the infant's body indicated that it had been strangled by the pressure of
a human hand. When the jurors questioned the doctors about whether the
'so-called finger prints and discolouration on the child's neck' could have
been caused during burial or by some other means, the doctors replied
that they did not think so. Despite the testimony of the doctors, however,
the jury opted to believe Charlotte Saunders and her son and brought in
a verdict of not guilty.
The most striking thing about these murder trials is the tenacity with
which juries persisted in acquitting women charged with infanticide. These
cases are typical of the infanticide trials of the time, as reflected in the sur-
viving records from the Ontario archives between 184o and I9OO (see
Table I ). Of the twenty-seven child-murder trials which took place during
this period, two-thirds (18) of the women charged with the murder of their
infants were discharged. In six cases a lesser verdict of concealing the birth
40 The Queen v CharlotteSaunders AO RG22, Northumberland and Durham County
Minute Books, 1897

HeinOnline -- 34 U. Toronto L.J. 461 1984


462 UNIVERSITY OF TORONTO LAW JOURNAL

TABLE 1
Murder charges and verdicts in infanticide trials,
Archives of Ontario 1840-1900

substitute (lesser)
verdict of verdict
guilty not guilty concealment unknown TOTAL

1840s 0 0 1 (50%) 1 (50%) 2


1850s 0 0 0 0 0
1860s 2 (20%) 6 (60%) 2 (20%) 0 10
1870s 0 0 1 (100%) 0 1
1880s 0 8 (88.9%) 1 (11.1%) 0 9
1890s 0 4(80%) 1 (20%) 0 5
TOTAL 2 (7.4%) 18 (66.7%) 6 (22.2%) 1 (3.7%) 27

of an infant was substituted, in one case the verdict was unknown, and in
only two cases did the court return a verdict of guilty. What reasons can
be given to explain this very high rate of acquittal? It is possible, of course,
that some of these women were indeed innocent and that they had mis-
takenly been accused of the crime. Lawrence Friedman has also noted that
fledgling police forces and prosecutorial staff lacked both resources and
expertise, and that this may account for the generally low rate of criminal
4
convictions in the nineteenth century. '
However the innocence, or perceived innocence, of the women accused
of infanticide does not explain all the acquittals. Based upon the evidence
elicited at trial, some of these women were clearly guilty of the deed
charged. The reluctance of juries to convict in infanticide cases has been
noted by R.W. Malcolmson as characteristic of eighteenth-century English
jurisprudence as well.4" William Langer has attributed the acquittals, seen
even in the most flagrant cases in England, to the fact that 'capital punish-
ment was far too harsh a penalty to pay when the real culprit was usually
the girl's seducer.'48 D. Seaborne Davies, writing in 1937 about the lenience
of English courts in infanticide trials, has outlined a more systematic set
of reasons. In part, he argued, juries were very sensitive to the social realities
which drove the women to commit the crime. Their motivation being from

41 Friedman A History of American Law (1973), at 252. Systematic evidence on the


general criminal conviction rate in nineteenth-century Canada has yet to be un-
earthed, but my recent article Nineteenth-century Canadian prostitution law: Re-
flection of a discriminatory society (unpublished manuscript) indicates that the
chance of conviction was much higher for prostitution charges.
42 Malcolmson, Infanticide in the eighteenth century, in Cockburn (ed) Crimes in
England 1550-1800 (977), at 198.
43 Langer, supra note i, at 36o

HeinOnline -- 34 U. Toronto L.J. 462 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 463

the best of intentions, 'to hide their shame,' meant that 'there was not that
malignancy in these cases which characterizes other forms of murder.'44
Another explanation for the lenience may have been that the death
of an infant was perceived very differently from the murder of an adult.
Glanville Williams has quoted the following statement made by an English
doctor namer Mercier as recently as 191 1, which depicted infants as some-
thing less than fully human:
In comparison with other cases of murder, a minimum of harm is done by
[infanticide]. The victim's mind is not sufficiently developed to enable it to
suffer from the contemplation of approaching suffering or death. It is in-
capable of feeling fear or terror. Nor is its consciousness sufficiently developed
to enable it to suffer pain in appreciable degree. Its loss leaves no gap in any
family circle, deprives no children of their breadwinner or their mother, no
human being of a friend, helper, or companion. The crime diffuses no sense
45
of insecurity.
It would appear that the killing of a child did not create the same feeling
of alarm as other forms of murder, at least in the perceptions of the adults
who applied the criminal law. Glanville Williams gives some force to this
speculation by his observation in 1957 that 'a woman who kills her child
under the stress of adverse circumstances is almost certainly not dangerous
to anyone but her own children, if any, and not necessarily to them.'46 The
lenience may also have been related, in part, to the quasi-property status
that children still held in the eves of the law. Parents were almost never
prosecuted for disciplining their children, even when this resulted in severe
physical injury. 47 The custody decisions of the nineteenth century also indi-
cate that children were often viewed as the property of their parents, rather
than as individuals in their own right. 4' This was beginning to change by
44 Davies, Child killing in English law ( 973) 1 Mod. L.R. 203 and 269, at 221.
45 Williams The Sanctity of Life and the Criminal Law (1957), at 18. The reference
is to Mercier's Crime and Insanity ( 191 1 ), at 212-13. Apparently much the same
argument had also been propounded by Jeremy Bentham in his Theory of Legisla-
tion, at 264.
46 Id. at 33.
47 See, for example, a statute passed in Prince Edward Island in 1792 that provided
legal immunity for parents who committed the following acts against their children
while chastising or correcting them: murder, cutting out or disabling the tongue,
putting out an eye, slitting the nose or lip, cutting off or disabling the limb or mem-
ber, stabbing or thrusting with a weapon ((1792) 33 Geo in, c 1, S 2, 3, 4
(P.E..)).
48 -See my Shifting patterns in nineteenth-century Canadian custody law, in Flaherty
(ed) Essays in the History of Canadian Law (1981) vol i, 212. The nineteenth-
century decisions reveal that, while the property analysis was dominant, it was the
father rather than the mother who held the property interest in the child. However,
in the case of unwed mothers the property right lay with the woman concerned.

HeinOnline -- 34 U. Toronto L.J. 463 1984


464 UNIVERSITY OF TORONTO LAW JOURNAL

the end of the century, but it still may account for the reluctance of legal
authorities to intervene in infanticide.
Naturally, not all the cases culminated in an acquittal. In a few instances,
women were convicted of murder and in others of the lesser and included
offences of 'manslaughter' or 'concealment.' However the accounts of these
trials provide little that would help to determine why the jury brought in
a verdict of guilty, since there is not much to distinguish them from the
cases discussed above. Murder convictions were obtained in only two of
the cases for which records have been preserved in the Archives of Ontario.
One of these involved Mary Anne Byrne, who was charged with the
murder of her child in 1863 in Carleton County.4 9 Mary Anne Byrne had
been employed as a servant in a farm house, and she had successfully man-
aged to conceal her pregnancy throughout its term. She gave birth to the
child alone, outside behind a woodpile, and stuffed leaves and grass into
its mouth to suffocate it. When the child's body was found, Mary Anne was
suspected. A neighbouring widow was asked to examine Mary Anne to
decide if she had recently delivered a child, and she concluded that this
was the case. In contrast to the previous trials discussed, the court brought
in a verdict of guilty. There is nothing in the archival records which would
give any indication why the outcome in this trial was so different from
the others. Mary Anne was not executed, however, for she managed to
escape from jail and was said 'to have gone to the Western States.'
The other case, also tried in the 186os, was that of The Queen v Ellen
Teague." The evidence indicated that Ellen had given birth to an infant
in the afternoon. She was too exhausted to examine the child to see whether
it was alive or not, and leaving it on the floor, she crawled back into bed
and lay there until the next day. When she was finally able to get up, she
wrapped her apron around the child and threw it into the water closet.
The jury concluded that the child had come to its death either 'of having
a string tied around its neck by its mother Ellen Teague with the intention
of destroying it,' or by her having 'allowed it to bleed to death ... with the
same design.' They found Ellen guilty of wilful murder. This verdict seems
almost inexplicable, especially in comparison with the earlier cases where
women were acquitted on far stronger evidence. The actual sentence was
not recorded in the case file, but since the offence of murder was a capital
offence, presumably Ellen was hanged. Only a royal pardon would have
reprieved her.51
49 The Queen v Mary Anne Byrne Ao R022, Carleton County Minute Books, 1863
50 The Queen v Ellen Teague AO RG22, Middlesex County Minute Books, 1861
51 See also the murder trial of The Queen v Elizabeth Fellows AO RG22, York County
Minute Books, 16 December 1887. This case would probably have resulted in a
guilty finding, except for the successful insanity defence. The evidence showed

HeinOnline -- 34 U. Toronto L.J. 464 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 465

TABLE 2
Manslaughter charges and verdicts in infanticide trials,
Archives of Ontario 1840-1900*

verdict
guilty not guilty unknown TOTAL

1880s 0 2 (100%) 0 2
1890s 2 (50%) 2 (50%) 0 4
TOTAL 2 (33.3%) 4 (66.7%) 0 6
* There were no charges of manslaughter laid in in-
fanticide cases in the earlier decades.

In several cases the mother was charged with manslaughter rather than
murder (see Table 2). While there were fewer manslaughter than murder
charges, it seems that courts were equally reluctant to convict upon this
lesser charge. Of the six cases found in the archival records, four resulted
in verdicts of not guilty.
One of the convictions was obtained against Sarah Fox in the spring of
1891 in the County of York.52 Under the explosive heading 'A WOMAN'S
AWFUL PLIGHT: A Self-Confessed Murderer Now in Toronto Jail,' the
Toronto World described Sarah Fox as 'twenty years old, of dark com-
plexion, medium height, and ... passably good looking.' 3 When Sarah
had become pregnant, she confided in her lover, a labourer from the To-
ronto brickyards, but he refused to marry her. She did not attempt to hide
her pregnancy and gave birth at the Burnside Hospital. She obviously felt
unable to cope with the burdens of unwed motherhood and immediately

that Elizabeth Fellows had been married for four years, had several children, and
had recently given birth to a male child, named Johnnie Fellows. When her child
was seven weeks old, she murdered it. The medical evidence disclosed that the
child's body showed signs of knife wounds, teeth marks, and peeling skin from
having been immersed in a pot of boiling water. This case, then, was a very unusual
one. The accused was married, she had made no attempt to conceal her pregnancy
or the birth, and she did not kill the child at birth but waited for seven weeks
before murdering it. The extreme violence involved in the killing is also a bizarre
feature. When the jury learned that Elizabeth had previously been hospitalized in
an insane asylum, they concluded that it was her insanity that had prompted the
crime and acquitted her for this reason. She was ordered to be held in strict cus-
tody 'until the pleasure of the Lieutenant-Governor be known,' that is until her
insanity had been cured. From the hindsight of the twentieth century, one might
have expected that far more of these cases would have resulted in acquittals by
reason of insanity.
52 The Queen v Sarah Fox AO Ro22, York County Minute Books, 2o April 1891
53 Toronto World 2 March 1891

HeinOnline -- 34 U. Toronto L.J. 465 1984


466 UNIVERSITY OF TORONTO LAW JOURNAL

took her child to a private child-adoption home on Centre Street in To-


54
ronto.
Sarah then began urgently seeking employment, and although jobs were
scarce she obtained a waitressing position at the League Coffee House in
competition with sixteen other applicants. For undisclosed reasons she re-
turned to the Centre Street home and reclaimed her child, whom she
moved to a similar agency on Huron Street. She was determined to sever
all connection with the child this time, and so she left a false address. One
can only imagine her shock and dismay when she was confronted with the
child at her place of work. The Huron Street home had apparently decided
that it could not keep the child and had tracked Sarah down at the coffee
shop. The home ignored her pleas; she was given a lecture on the 'duties of
a mother,' and the child was left with her at the coffee shop. Sarah then
strangled the infant, throwing it over a fence in an attempt to hide it. Its
body was discovered, however, and Detective Black's investigation soon
led him to Sarah.
It is surprising on these facts that Sarah was not charged with murder.
The manslaughter charge seems a singularly inappropriate one to lay in
cases of infanticide. Manslaughter was defined by legal writers of the day
as 'unlawful homicide without malice aforethought.' 5 'Malice afore-
thought,' an essential ingredient in murder, was defined as 'an intention
to cause the death of, or grievous bodily harm to, any person,' or 'knowledge
54 These private adoption agencies were often described vituperatively as 'baby farms.'
Predominantly run by women, they would take in a number of unwanted infants
at a time, for payment of approximately $5 to $io. There would be some attempt
to place the infant out for adoption, again for a fee paid by the adopting parents,
but if this failed, critics charged that the infants were allowed to die from neglect
or drug overdose. Nevertheless, in an era before government-operated adoption
bureaucracies and foster-parent programs, these centres filled a gap and provided
a much-needed service. In the interests of brevity, this paper will not attempt to
deal with the legislation which sprang up in nineteenth-century Canada to regulate
these organizations or with the spate of cases in which women accused of being the
owners of 'baby farms' were charged with child-murder. But see The Queen v Jane
Ann Thomas AO RG22, York County Minute Books, 188o; Presentment of the Grand
Jury to the Court of Criminal Assize, York County, end of session, 24 June 188o,
York Criminal Assize Book 1878-87, at 193; ibid, presentment at the end of the
winter assize, at 270; The Queen v Christina Leslie AO R022, York County Minute
Books, 2o and 30 October 1884; The Queen v Elizabeth Thomas AO RG22, York
County Minute Books, May 1898; The Queen v Mary BeasleyAo RG22, York County
Minute Books, fall 1898; An Act for the protection of Infant Children (1887) 50
Vict., c 36 (Ont.), reprinted as R.S.o. 1887, C 209; An Act to regulate Maternity
Boarding Houses and for the Protection of Infant Children R.S.o. 1897, c 258
(Ont.) ; An Act to Provide for Licensing Boarding Houses for Infants under Twelve
Years of Age ( 1897) 6o Vict., c 40 (N.S.) ; An Act respecting Maternity Boarding
Houses and for the Protection of Infant Children (1899) 62 & 63 Vict., C 21
(Man.)
55 Burbidge, supra note to, at 2 16

HeinOnline -- 34 U. Toronto L.J. 466 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 467

that the act which causes death will probably cause the death of, or grievous
bodily harm to some person.' 56 It is difficult to see how these mothers could
ever have been charged as lacking 'malice aforethought.' In each case,
including that of Sarah Fox, there was either an intent to cause death or
knowledge that the child could suffer grievous bodily harm from the
actions involved. The element which most characterizes manslaughter,
that of 'culpable negligence,' would appear to be an inappropriate way to
characterize many of these actions. 57 Manslaughter was also defined as
homicide which was acted out 'in the heat of passion, caused by provoca-
tion. '5 8 This definition would seem to be no more useful in infanticide cases,
since provocation was defined very narrowly. George Burbidge, a noted
Canadian commentator on criminal law in the nineteenth century, gave the
following as examples of provocation: 'assault and battery ... two persons
quarrel and fight ...unlawful imprisonment ... [when a] husband [sees] the
act of adultery committed with his wife.'5 9 Clearly nothing involving the
birth of a child could be legally defined to amount to provocation, thus
engendering sufficient legal cause for a lesser charge of manslaughter.
Despite this, some women were charged with manslaughter, and in Sarah
Fox's case, the court convicted her, also making a recommendation for
mercy.
More commonly, and perhaps more consistently with the cases in which
acquittals were rendered, the jury would substitute a verdict of 'conceal-
ing the birth of an infant.' This happened in the case of The Queen v Mary
Fredenburgh in 188o in the County of Peterborough, despite very strong
evidence that would seem on its face to have warranted a conviction for
murder.6 ° Mary was a young, unmarried woman, living at home with her
father and brothers. When she became pregnant she hid the fact from her
family and managed to give birth on Io October 188o while everyone was
out. She strangled the child and threw him into the Otonobee River. Some-
how a neighbour discovered that Mary had given birth and reported this
to Mary's father. Questioned by him, Mary confessed, even telling her
father where she had thrown the child's body into the river. Mary's father
managed to fish the body out, but must have been rather confused about
56 Ibid, at 216-17
57 But see the obiter comments in the English case of R. v Handley ( 1874) 13 Cox
c.c. 79, at 81 for a discussion of how infanticide might possibly be viewed as a
matter of 'wicked negligence' and thus warrant a manslaughter conviction.
58 Clarke Criminal Law in Canada (1872), at 253
59 Burbidge, supra note io, at 219
6o The Queen v Mary Fredenburgh AO Ro22, Peterborough County Minute Books,
188o-i. See also The Queen v Eleanor Strachan and Eliza Winks AO RG22, Leeds
and Grenville County Minute Books, 186 1; The Queen v Ellen McCarty AO RG22,
York County Minute Books, 12 October 1870.

HeinOnline -- 34 U. Toronto L.J. 467 1984


468 UNIVERSITY OF TORONTO LAW JOURNAL

TABLE 3
Concealment charges and verdicts in infanticide trials,
Archives of Ontario 1840-1900

verdict
guilty not guilty unknown TOTAL

1840s 2 (100%) 0 0 2
1850s 1 (100%) 0 0 1
1860s 5 (41.7%) 5(41.7%) 2 (16.7%) 12
1870s 2 (66.7%) 1 (33.3%) 0 3
1880s 1 (11.1%) 7(77.8%) 1 (11.1%) 9
1890s 2 (66.7%) 1 (33.3%) 0 3
TOTAL 13 (43.3%) 14 (46.7%) 3 (10%) 30

what to do, for he put the body into the henhouse. He did, however, send
for a doctor, and Mary was subsequently charged with murder. The jury
concluded as follows: 'That the said male child came to his death by being
strangled and thrown in the Otonabee River on October I o, 188o ... that
the said male child was alive and fully developed when born and that Mary
Fredenburgh committed the crime of strangling the said male child.' The
jury then rendered a surprise verdict. Despite their conclusions as to the
cause of the child's death, they found Mary not guilty of murder, and guilty
only of the concealment of her child.

Concealment trials

The case reports and the archival records indicate that the charge of 'con-
cealment of the birth of an infant' was laid more frequently in nineteenth-
century infanticide cases than either murder or manslaughter. There were
two reported cases and the archives revealed an additional thirty charges
(see Table 3). One striking difference between concealment trials and
trials for murder and manslaughter of an infant shows up in the pattern of
verdicts. With concealment, the findings of guilty and not guilty were about
evenly matched: thirteen convictions and fourteen acquittals. In part, at
least, the hopes of the legislators who passed the concealment statutes were
realized. Convictions were easier to obtain under this lesser charge, which
had only a maximum penalty of two years' imprisonment.
Most of the concealment cases were rather sparsely reported and reveal
little about the trial except the charge, year, county, name of the accused,
and in most cases the verdict. A few of the cases gave a brief description of
how and where the mother attempted to hide the child. Newborn infants

HeinOnline -- 34 U. Toronto L.J. 468 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 469

were disposed of in pails of water, " in stove pipes,12 in hollow pine trees,6"
and under floorboards "4 and buried in snow.65 There was no discernible
pattern in sentencing; penalties ranged from a minimum of two months in
the common gaol to the maximum term permitted, two years in the Andrew
Mercer Reformatory for Women. The most common sentence was three
6
months.
Although there were more convictions in the concealment cases, there
were still a number of inexplicable acquittals. One striking example was
The Queen v Lilly Cook in 1883.'7 Lilly Cook, who was working as a serv-
ant in a hotel in Middlesex County, gave birth to a male infant, whom she
hid under a barn. When the body was found, the records noted that a de-
tective was hired to find the mother. He soon tracked down Lilly Cook, who
admitted that the child was hers but denied having killed it, and claimed
she could not account for its death. During her trial for concealment, she
testified that she had felt compelled to hide the infant in order not to 'bring
disgrace on herself and her famil." Despite this clear-cut admission of guilt,
the jury found Lilly not guilty.
In contrast, R. v PichU is an illustration of one concealment trial where
a conviction was brought down in a case that might have been expected to
warrant an acquittal.s This case, which took place in Ontario in 1879,
was the only report of an appeal from any such trial during the century.
The prisoner, whose marital status was not identified, was apparently
living alone in her own house at the time of the incident. This must have
been an unusual state of affairs, since few women in nineteenth-century
Canada lived independently from their fathers, husbands, or other male
relatives. On the evening of 3 1 July, the prisoner called to a neighbour from
an upstairs window to send for her mother, adding that she had been sick
and thought she might die. Instead, the neighbour brought over his mother-
in-law, and despite Pichs remonstrations, called for a doctor, who arrived
later that evening. Pich told the doctor she was suffering from cramps, but

61 The Queen v Elizabeth lope Bownsall AO RG22, Northumberland and Durham


County Minute Books, i86o
62 The Queen v Mary Anne Fowler AO RG22. Oxford County Minute Books, 1862
63 The Queen v Mary Singleton Ao RG22, Brant County Minute Books, 1863
64 The Queen v Agnes Ellis Ao RG22, Wentworth County Minute Books, 187,
65 The Queen v Janet Histid Ao RG22. Wentworth County Minute Books, 187?
66 See the cases of Eliza Morrow, Brock District, 1844; Ann Glafscote, Bathurst Dis-
trict, 1848; Caroline Hawkins, York County, 1861; Eliza Ann Gurnett, York
County, 1863; Maria Manning. York County, 1863; Mary Ann Bostwick, York
County, 1863; and Helen Darrah. Hastings County, 1898.
67 The Queen v Lilly Cook AO RG22. Middlesx County Minute Books, 1883. See also
The Queen v Susan MacFarlaneAO RG22, Carleton County Minute Books, 188o.
68 R. v Pich (1879) 30 u.C.C.P. 409

HeinOnline -- 34 U. Toronto L.J. 469 1984


470 UNIVERSITY OF TORONTO LAW JOURNAL

he immediately suspected what had happened; when he accused her of


having delivered a child, she denied it. The doctor examined the prisoner
and soon removed the afterbirth, which she still retained inside her. At this
point she admitted the truth and confessed that the child's body was behind
a chest in her room. The dead body of a child was found lying between the
trunk and the wall on top of some clothes, 'wrapped in a small shirt.' The
doctor testified that the afterbirth had been severed by a sharp instrument,
but that the child had been born alive. Pich was charged and convicted of
concealment by a County Court judge who heard the case alone, since
Pich consented to a trial without a jury. However, the trial judge held
some doubt over whether the facts had really amounted to a concealment,
and he reserved the case for consideration of the full Court of Common
Pleas.
The defence lawyer had noted that the child was not placed inside a box,
either locked or unlocked, and he argued that merely leaving it between a
box and a wall should not warrant a conviction. In contrast, the Crown
prosecutor argued that Pich had initially denied having had a child, and
had placed the body where it could not be seen by anyone in the room.
Adam Wilson cj used the fact that Pich lived alone as the basis for his
conclusion that the verdict had been justified. 'If the house had been occu-
pied by others who had access to the room,' he noted, this would not have
constituted 'a secret disposition of the body, but living alone as she did in
the house,' there was no other conclusion to be drawn. The dangers facing
women who desired, or were forced by circumstances, to live independently
must have been underscored by judicial rulings of this nature. In a sur-
prising addendum, Wilson cj admitted that a jury, or even another judge,
might have come to a different decision upon the same facts:
It might, for instance, have been presented to the jury that although the
prisoner had the house wholly to herself and was delivered of her child while
alone, and placed the body between the chest and the wall ... she did not intend
to exclude others from the house at the time .. and the fact, although she called
for no help, that when seen by ... her neighbour, she said she wanted to see her
mother, was some evidence that she did not intend at or from the first to con-
ceal the birth of the child, or the place where she had put the body. And it
might also have been urged on her behalf that she did not object to ... persons
... being admitted ... to the room where the body was, when there would be a
69
great chance that they might discover the child.
The Pich case was anomalous in a number of respects. The absence of
a jury initially and the fact that the ultimate judgment was delivered by
69 Ibid, at416

HeinOnline -- 34 U. Toronto L.J. 470 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 471

a higher court sitting in review of the trial decision may have had a signifi-
cant bearing on the eventual outcome.7" At least one interpretation of the
evidence would have warranted an acquittal, and yet the prisoner's con-
viction was allowed to stand. 7 ' That the court was considering the lesser
charge of concealment, rather than the full offence of murder, was no doubt
also critical to the result.

Abandoning an infant

Some women who did not feel capable of carrying out the actual murder
of their child abandoned them instead. Mothers deposited infants on
church doorsteps, in front of hospitals, near the homes of prominent citi-
zens, and in publicly frequented areas, hoping that someone would dis-
cover them and take them in.7 2 In some situations the results were every
bit as tragic as cases of infanticide. The Queen v Fennety was one such case
that took place in Fredericton, New Brunswick, in 1855."
Sophia Fennety had given birth to an illegitimate male child, whom she
had nursed for six weeks. She had carefully wrapped the infant in a quilt,
leaving its face uncovered, and placed it upon the wharf of the St John
River. The child rolled off the wharf and into the river and drowned. It
was not stated in the report how Sophia's role was discovered, but she was
charged with manslaughter after the ensuing investigation.
The prosecutor argued that she had left the child in an open and exposed
place intending that he should fall into the river and perish. The defence
70 While it is tempting to speculate that upper court judges may have been harsher on
infanticide suspects, it is difficult to draw much analysis from one case. By way of
comparison, see Backhouse, supra note 41, in which it is shown that upper court
judges were significantly less harsh towards women convicted of prostitution-
related offences in nineteenth-century Canada. Again, it is difficult to detect 3ub-
stantial judge-jury divisions without a greater number of non-jury decisions. Com-
parative English research would seem to indicate that English judges were as reluc-
tant as juries to convict in infanticide trials: see, for example, the jury instructions
in R v Sellis (1837) 7 c. & P. 850, 173 E.R. 370; R. v Crutchley (1837) 7 C. & P.
349, 173 E.R. 355; and Rv vEnoch & Pulley (1833) 5 C.& P. 539, 172 E.R. to89.
In some cases the English judges forthrightly directed the jury to acquit. See, for
example, R. v Alton (1841) 5 J.P. 194; R. v Ash (1840) 2 M. & Rob. 296, N.P.,
174 E.R. 293.
71 A number of English cases raised the distinction between temporary and final or
completed concealment; see R. v Alton (1841) 5 J.. 194; R. v Snell (1837) 2 M.
& Rob. 44, N.P., 174 E.R. 208; R. v Ash ( 1840) 2 M. & Rob. 296, N.P., 174 E.R. 293;
R. v Goldthorpe (1841) 2 Mood. c.c. 244 C.C.R., 169 E.R. 97; The Queen v Farn-
ham (1845) 9 J.P. 234, 1 Cox c.c. 349; R. v Sleep (1864) 9 Cox c.c. 559; R. v
Clarke (1866) 4 F. & F. 1040, 176 E.R. 900, R. v Cook (1870) 22 L.T. 216, 11 Cox
c.c. 542.
72 Jarvis, supra note 26, at 132-3; Clarke Of Toronto the Good (1898), at 97
73 The Queen v Fennety ( 1855), 8 N.B.R. 132 (s.c.)

HeinOnline -- 34 U. Toronto L.J. 471 1984


472 UNIVERSITY OF TORONTO LAW JOURNAL

counsel countered that Sophia had left the child upon the wharf, which
was described as 'a very public place,' with the intention that 'it should be
found by some person passing.' Since she had neither drowned nor smoth-
ered the infant herself, he argued, she had committed no unlawful act.
Although the trial judge, Wilmot j, found Sophia guilty, he reserved the
case for the consideration of the full court. James Carter cj delivered the
review judgment: 'In order to support the indictment in this case, it would
be clearly necessary that the death of the child should be proved to have
been caused by drowning, or by some means causing death in a similar
way, as by suffocation. The probability seems [to us] rather the other way.'
Under these circumstances the court recommended that the initial sentence
4 7
not be executed.
The New Brunswick legislature must have been concerned about this
situation, since it took the initiative in 1864 of enacting legislation to make
specific provisions against the abandonment of children: 'Whosoever shall
unlawfully abandon or expose any child, being under the age of two years,
whereby the life of such child shall be endangered, or the health of such
child shall have been or shall be likely to be permanently injured, shall be
guilty of a misdemeanour, and being convicted thereof ... imprisoned ...
for any term not exceeding two years.' 75 The first federal consolidation of
the criminal law in 1869 in turn included a provision on the abandonment
76
of children.
Several cases indicate that Canadian courts were as reluctant to convict
mothers in these situations as they were in infanticide trials. In the case of
The Queen v Sarah Howe et al., Sarah Howe was charged with abandon-
ing a child in the County of York on 22 July 188 1." The evidence describ-
ing Sarah Howe is confusing, since at one point she was identified as an
unwed mother and at another as married but separated from a 'worthless
fellow.'
Sarah had given birth to an unwanted daughter, whom she was unable
to keep and still retain her position as a domestic servant. She named the

74 Ibid, at 132-5. The report stated that the court was uncertain whether it had the
power to alter the trial judgment, since the review had been framed as a motion in
arrest of judgment. As a result, the court recommended a pardon.
75 An Act further to amend the Law relating to Offences against the person (1864)
27 Vict., c 4, S 2 (N.B.) This was modelled upon an English statute passed three
years earlier; see An Act to consolidate the Statute Law relating to Offences against
the Person ( t861 ) 24 & 25 Vict., c 100, s27 (Eng.) The only difference was that
the English statute provided for a maximum term of three years.
76 An Act respecting Offences against the Person (1869) 32 & 33 Vict., c 20, s 26.
Instead of a two-year term, the federal act provided for a maximum of three years.
77 The Queen v Sarah Howe, Margaret Redfrn, et al. AO RG22, York County Minute
Books, 22 September r88r

HeinOnline -- 34 U. Toronto L.J. 472 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 473

child 'Fanny Howe' and then began to search for a way to place the infant
with someone who would care for her. She first put Fanny out for 'wet nurs-
ing,' placing her with another woman who had recently given birth herself.
However this woman's own child became sickly; the wet nurse decided to
devote all her time to it and returned Fanny to Sarah. Sarah then claimed
that she took the child to the Infants' Home, an institution that had been
established in Toronto to look after deserted children. Sarah told the court
that the matron running the home refused to accept Fanny. It is not clear
whether this refusal was due to overcrowding at the home, or whether the
staff just generally refused to take children unless the parents were un-
known. Sarah finally took the child to her sister, Margaret Redfern. Mar-
garet was also unable to take the child permanently, and it was ultimately
discovered by the front gate of an institution that was identified in the
court as 'the Girls' Home.' Fanny died at the Girls' Home the next day,
purportedly of 'wasting' or want of nourishment, and both Sarah and her
sister Margaret were charged with abandoning a child. The grand jury
which screened the case must have sympathized with Sarah's repeated
efforts to secure a home for her daughter, for they recommended that no
further legal proceedings be taken against either woman. This sad tale of
one woman's futile efforts to place her infant illustrates why so many
women may have turned to outright infanticide. There were simply too
few alternatives available.
In another rather unusual case, the mother attempted to pressure the
illegitimate child's father into accepting responsibility for raising the infant,
but still found herself charged with abandoning an infant. In R. v Topp,
Emma Topp was proven to be the mother of a fourteen-month-old child,
whom she claimed to have been fathered by her brother-in-law, who had
previously 'seduced' her.7" Emma claimed that she was completely unable
to support the child, and that she had begged her brother-in-law to take the
infant into his family. When her entreaties proved fruitless, she wrapped
the baby in a cloak and abandoned it on a chilly evening on the doorstep
of her brother-in-law's dwelling in St Thomas, Ontario. The child was
soon discovered and taken inside before it was seriously harmed by the cold.
Hughes ccj found the defendant not guilty, stating that there was 'a total
absence of proof that the health of the child suffered, much less that its life
was endangered by this act.'7 9 Up to this point the decision does not appear

78 R. v Topp (1883) 19 Canada L.]. 367. A careful reading of nineteenth-century


literature, statutes, and case law reveals that the term 'seduced' was often a veiled
reference to the act of rape; at the very least this word indicated a high degree of
deceit and persistence on the part of the male involved.
79 Ibid., at 368

HeinOnline -- 34 U. Toronto L.J. 473 1984


474 UNIVERSITY OF TORONTO LAW JOURNAL

to be a remarkable one, but the judge went on to state: 'Had it been alleged
that its health was likely to have been permanently injured the case might
have been different; but even that would be doubtful.' ° The judge's com-
ment flew directly in the face of the statute which prohibited the abandon-
ment of children where 'the health of such child shall have been or shall be
likely to be permanently injured.' The decision also contained a surprising
reference to the charge of murder: 'When a person leaves a child at the
door of its putative father, where it is likely, or almost certain, to be taken
in the house immediately, it would be too much to say that if death ensued
it would be murder in the person who left it there. The probability there
would be so great (almost amounting to a certainty) that the child would
be found and taken care of, that malice prepense - the essential ingredient
in an accusation for murder - could not be presumed.' 8 ' Why the judge
was speculating about murder is not clear, since this was not the offence
charged. Yet this is some indication that the judge felt drawn to consider
the link between this new legislation and other criminal law relating to
infanticide. The lenience that characterized many of the earlier murder
cases and some of the concealment cases was also showing up in abandon-
ment trials.
When the Criminal Code was passed in 1892, the legislators responded
to this judicial clemency by enacting an even stricter set of stipulations. The
following subsection was added to the abandoning provision: 'The words
"abandon" and "expose" include a wilful omission to take charge of the
child on the part of the person legally bound to do so, and any mode of
dealing with it calculated to leave it exposed to risk without protection.' 82

8o Ibid, at 369, emphasis added


81 Ibid., emphasis in original.
82 The Criminal Code, 1892 (1892) 55 & 56 Vict., C 29, S 216 (Can.). In addition,
ss 209 and 2 1o created a legal duty for a parent to provide necessaries of life for
any child under sixteen years. Neglecting the duty to provide necessaries yielded
a maximum three-year term (s 215).
The Code made no substantive changes but merely codified the existing juris-
prudence regarding murder. Homicide was defined as the killing of a human being
by another, directly or indirectly, by any means whatsoever (s 218). Homicide was
declared culpable when it consisted in the killing of any person, either by an un-
lawful act or by an omission, without lawful excuse, to perform or observe any legal
duty, or by both combined (s 220). Culpable homicide was held to be murder
where: (a) the offender meant to cause the death of the person killed; or (b) the
offender meant to cause to the person killed any bodily injury, which was known
to the offender to be likely to cause death, and was reckless whether death ensued
or not (s 227).
An attempt was also made to distinguish between abortion (the killing of an
unborn child) and infanticide. The murder provisions only applied when the child
had already 'become a human being.' The Code described its meaning here: 'A
child becomes a human being within the meaning of this Act when it has completely
proceeded, in a living state, from the body of its mother, whether it has breathed or
not, whether it has an independent circulation or not, and whether the navel string

HeinOnline -- 34 U. Toronto L.J. 474 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 475

Conclusion

Social attitudes towards infanticide have undergone dramatic changes from


the time of the nineteenth century. Infanticide today is generally viewed as
the pathological response of a psychotic woman who is not fully responsible
for her actions; it also appears to be an isolated and extremely rare occur-
rence. Increased access to birth control and abortion and the development
of respectable adoption agencies and foster-care services have also greatly
reduced the need for this desperate response to unwanted motherhood. In
addition, attitudes towards children have altered, and they are now fre-
quently seen as entitled to greater protection than adults, rather than as
insignificant beings who are somewhat less than human. The lowered rates
of infant mortality have also contributed, by making the prospect of infant
death far less common or acceptable. From the earlier perspective, which
viewed infanticide as somewhat less heinous than other forms of murder,
we have now come to a diametrically opposite position, and Glanville
Williams can without difficulty query in his 1957 treatise: 'Do we regard
8 3
[infanticide] as an ordinary murder, or as something more venal?'
Yet the frequency with which the crime was committed in earlier times
indicates that this is a relatively modern view. The overwhelming conclu-
sion is that in nineteenth-century Canada infanticide was viewed as a
rather common feature of daily life. Women who lacked other methods of
fertility control and for whom child rearing created impossible demands
chose infanticide out of necessity. Although there were certainly laws which
were meant to deter this behaviour, they functioned largely as symbolic
pronouncements. When it came time to put these laws into operation, most
judges and juries refused to convict the female perpetrators of infanticide,
even in cases of gruesome and indisputable evidence.
The main explanation for this was that society simply had not developed
is severed or not. The killing of such a child is homicide, when it dies in consequence
of injuries received before, during or after birth' (s 219). The concealment pro-
visions were also included without any significant change, as s 24 o . The section
read: 'Every one is guilty of an indictable offence, and liable to two years' imprison-
ment, who disposes of the dead body of any child in any manner, with intent to
conceal the fact that its mother was delivered of it, whether the child died before,
or during, or after birth.
For the first time. women were also forced under sanction of the criminal law
to obtain 'reasonable assistance' during childbirth. If they failed to do so and the
child was permanently injured or died from this neglect, they could be charged and
convicted. The penalty-was a miximum of life imprisonment if it was proved that
the mother's intent was that the child should not live. If she merely intended to
conceal the birth, the penalty was set at a maximum of seven years (s 239). Pre-
sumably this legislation was intended to force pregnant women to have someone
assist them while they gave birth. Required by law to have witnesses at the birth,
they would be much less likely to have an opportunity to commit infanticide.
83 Williams, supra note 45, at 13

HeinOnline -- 34 U. Toronto L.J. 475 1984


476 UNIVERSITY OF TORONTO LAW JOURNAL

other ways of dealing with unwanted children. The women did not have
adequate access to information or services that might have prevented un-
wanted pregnancies, and neither the government nor privately run chari-
ties had established mechanisms through which to place these children with
individuals or institutions that could care for them. The relative disregard
in which children were held both helped to permit this unfortunate situa-
tion to continue and fostered complacent attitudes towards infant death,
whether by natural causes or by wilful murder. One would want to test this
analysis further by examining archives from different areas of Canada in
the nineteenth century, to see whether judges and juries in other regions
might have ruled somewhat differently from those mentioned in this article.
It appears, for example, that Quebec may have had a more highly devel-
oped system of church-run orphanages, as well as stricter religious controls
on birth control and abortion. The unusual features of Quebec society may
well have fostered different attitudes towards infanticide, and the law may
have reflected this. Since there are no reported infanticide cases in the
nineteenth century from the province of Quebec, further archival research
as well as investigation into church records would be necessary to determine
how infanticide laws were applied there. Comparative analysis of infanti-
cide laws of England and the United States would also be instructive. 4

84 In the interests of brevity, this article will not undertake a full-scale analysis of
nineteenth-century English infanticide law for comparative purposes. However a
reading of all the reported English cases revealed that nineteenth-century English
judges and juries were every bit as reluctant to convict women charged with in-
fanticide as their Canadian counterparts. See, for example, R. v Sellis (1837) 7
c. & P. 850, 173 E.R. 370; R. v Crutchley (1837) 7 c. & P. 349, 173 E.R. 355; R. v
Enoch & Pulley (1833) 5 c. & P. 539, 172 E.R. io8g; and for some exceptional
convictions, see R. v Trilloe (1842) Car. & M. 650, 174 E.R. 674; R. v Handley
(1874) 13 Cox c.c. 79; R. v Banks ( 1873) 12 Cox c.c. 393. If anything, the English
courts were even more resistant to convictions, at least in respect to concealment
trials. See, for example, R. v Turner ( 1839) 8 c. & P. 755, 173 E.R. 704; The Queen
v Derham (1843) 1 Cox c.c. 56; R. v Coxhead (1845) 1 Car. & K. 623, 174 E.R.
964; R. v Alton( 1841) 5 J.P. 194; R. v Snell (1837) 2 M. & Rob. 44, N.P., 174
E.R. 208; R. v Ash (1840) 2 M & Rob. 296, N.P., 174 E.R. 293; R. v Sleep (1864)
9 Cox c.c. 559; R. v Colmer (1864) 9 Cox c.c. 506; R. v Clarke (1866) 4 F. & F.
1040, 176 E.R. 900; R. v May (1867) 16 L.T. 362, 10 Cox C.C. 448, C.C.R.; R. v
Morris (1848) 12 J.P. 251 , 2 Cox c.c. 489; R. v Williams (1871) 1 1Cox c.c. 684;
R. v Berriman (1854) 6 Cox c.c. 388; R. v Hewitt and Smith (1866) 4 F. & F.
1101, 176 E.R. 923. For exceptional convictions, see R. v Goldthorpe (1841) 2
Mood c.c. 244 c.c.R., 169 E.R. 97; The Queen v Farnham (1845) 9 J.P. 234, 1
Cox c.c. 349; R. v Cook (1870) 22 LT. 216, ii Cox c.c. 542; R. v Brown (1870)
L.R. I C.C.R. 244. See also Hoffer and Hull ( 1981 ) ; Murdering Monthers: Infanti-
cide in England and New England 1558-18o3; Kellum, Infanticide in England in
the late middle ages, Hist. oj Childhood Q. i (Winter 1974) 367; Saur, Infanticide
and abortion in nineteenth-century Britain Population Studies 32 (March 1978)
81; Gilje, Infant abandonment in early nineteenth-century New York City: Three
cases Signs: Journalof Women in Culture and Society 8:3 (Spring 1983) 580.

HeinOnline -- 34 U. Toronto L.J. 476 1984


INFANTICIDE IN NINETEENTH-CENTURY CANADA 477

This article is really a preliminary investigation into what appears to have


been a widespread phenomenon and a significant example of how legal
rules were bent to accommodate the necessities of nineteenth-century life.
Writing about infanticide in the colonial United States, Ann Jones has
argued that the women who committed this act were asserting a significant
challenge to patriarchal authority:

Now that birth control is more or less routine, infanticide seems an unrelated
and horrifying event. To colonial women who had no alternative and whose
offspring were very likely to die in infancy anyway, infanticide might be a
desperate kind of birth contral after the fact. In killing their infants, they not
only committed murder. They also asserted, symbolically at least, that a woman
should not be punished for her own sexuality, that she is entitled to some meas-
ure of control over her body ... In a patriarchal society, these women were
revolutionaries. 5

One can argue that the law on infanticide may not have been enforced
because the courts recognized that these crimes were committed by desper-
ate women who might have been driven to other more dangerous acts if
they had been denied the right to do away with their unwanted children."
Another line of reasoning seems more compelling, however. It is certainly
correct to characterize these women as rebels, but they also constituted rela-
tively powerless forces in the nineteenth century. They were generally poor,
lower-class, and unmarried women, who had been seduced and abandoned
by the fathers of their children. The male legislators, lawyers, judges, and
jurors who controlled the legal system did not have to be concerned about
these women in order to ensure the proper continuation of male blood lines
or to supervise the descent of male property to the next generation. 8 7 The
resourcefulness and courage that these women exhibited was awesome, but
the male-dominated court structure did not fear them as revolutionaries.
Indeed they were insignificant in terms of the overall balance of power be-

85 Jones Women Who Kill (598o), at 49


86 Denied this option, women might possibly have rebelled on a totally different
plane, by perpetrating violence on the men who had impregnated them or upon
the society around them which made involuntary motherhood such a common ele-
ment of female life.
87 Susan Brownmiller has alleged that these were the primary concerns which moti-
vated the first male insistence upon female chastity and the first laws against rape
(see Brownmiller Against Our Will: Men, Women and Rape (1975). See also my
Nineteenth-century Canadian divorce law: Shoring up the patriarchal family (un-
published manuscript) for analysis of legislation and case law relating to female
adultery in nineteenth-century Canada; inside marriage, sexual chastity was viewed
as critical for women.

HeinOnline -- 34 U. Toronto L.J. 477 1984


478 UNIVERSITY OF TORONTO LAW JOURNAL

tween the sexes. 8 This, then, provided a conspicuous and ideal platform
upon which the courts could well afford to exhibit compassion towards
desperate women.

88 Judicial interpretation of the laws prohibiting abortion, in contrast, was marked


by much more rigorous application of criminal sanctions. In another article I have
thoroughly discussed the enforcement of the criminal laws against abortion in
nineteenth-century Canada; see supra note 5. The difference in approach was at
least partly due to the common perception that abortion was often resorted to by
married women of middle- and upper-class background. The existence of a major
lobby campaign by some Canadian doctors against abortion also served as a signi-
ficant force behind the harsher application of the abortion laws.

HeinOnline -- 34 U. Toronto L.J. 478 1984