The preceding narrative is, in many ways, illustrative of the complex and contradictory phenomenon of infanticide in the district of Montreal during the first half of the nineteenth century. Although notices regarding the finding of infant bodies were frequent, discovery of twin infant bodies was not. This account was also unconventional in its tone: lacking the usual sterile narration typical of newspaper coverage of that topic, it cried out for the apprehension of the “perpetrator of so foul a deed.” Although the call for justice might have appeared strong, infanticide prosecutions were fairly rare and convictions rarer still. The prevalent view might have been to characterize the responsible party as an “unfeeling mother,” but the reality surrounding infanticide was altogether more complicated, yet fully as tragic.
1. The Montreal Herald (May 28, 1840). See also The Montreal Gazette (May 28, 1840) (citing The Montreal Herald); L'Ami du Peuple (May 30, 1840).
2. See Cathy Sherill Monholland, “Infanticide in Victorian England, 1856–1878: Thirty Legal Cases” (MA thesis, Rice University, 1989) 83.
3. For other definitions of infanticide, see, for example, Boys, William, A Practical Treatise on the Office and Duties of Coroners in Ontario, With an Appendix of Forms, 2nd ed. (Toronto: Hart & Rawlinson, 1878) 48 (defining it as the “murder of the child after birth.”). See also Cliche, Marie-Aimée, “L'infanticide dans la région de Québec (1660–1969),” Revue d'histoire de l'Amérique française 44 (1990): 34, n.8; Langer, William L., “Infanticide: A Historical Survey,” History of Childhood Quarterly 1 (1974): 353; Wheeler, Kennth H., “Infanticide in Nineteenth-Century Ohio,” Journal of Social History 31 (1997): 415–416, n.1; and Wright, Mary Ellen, “Unnatural Mothers: Infanticide in Halifax, 1850–1875,” Nova Scotia Historical Review (1987): 13. Other scholarshave used different ages. Compare Hoffer, Peter C. & Hull, N.E.H., Murdering Mothers: Infanticide in England and New England, 1558–1803 (New York University Press: New York, 1981) xiii (using the Tudor definition of an infant as a child aged 8 years or younger); Knelman, Judith, Twisting in the Wind, The Murderess and the English Press (University of Toronto Press: Toronto, 1998), 146 n.2 (using definition of infant as under 1 year of age). Infanticide is defined herein as the unlawful killing of a child under 1 year of age through acts of commission or omission.
4. The records include Montreal Coroner's Inquests; Records of the Montreal Gaol; Registers of the Court of King's/Queen's Bench; and Files of the Court of King's/Queen's Bench (all found within the Bibliothèque et Archives nationales du Québec, Centre d'archives de Montréal, hereinafter BAnQ-M ); and Applications for Pardons and Montreal Gaol Calendars (found at the National Archives of Canada in Ottawa, hereinafter N.A.C.).
5. As these documents were written by justices of the peace there is no way to measure their accuracy. Considerable filtering also took place between the act of a justice hearing a party's testimony and transcribing it, especially when language issues were implicated. Compare Krueger, Christine L., “Literary Defenses and Medical Prosecutions: Representing Infanticide in Nineteenth-Century Britain,” Victorian Studies 40 (1997): 275; see also Fyson, Donald, Magistrates, Police and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837 (Toronto: University of Toronto Press, 2006) 250–53 (discussing formulaic language in depositions). Affidavits are filtered through the middle-class, male jurists who recorded them. Documents such as arrest warrants, sureties, and the like preserve much less of the authorial voice, and even more is lost when documents are translated.
6. Compare Buckley, Thomas E., The Great Catastrophe of My Life: Divorce in the Old Dominion (Chapel Hill & London: University of North Carolina Press, 2002) 5 (noting bias in nineteenth-century divorce petitions).
7. Given that many prosecutions were privately driven, figures tend to reflect crimes for which someone chose to prosecute. See Philips, David, Crime and Authority in Victorian England (London: Croom Helm Limited, 1977) 49; see also King, Peter, Crime, Justice and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2000) 11. For discussion of the dynamics of such a system, see, generally, Beattie, J.M., Crime and the Courts in England 1660–1800 (Princeton: Princeton University Press, 1986) 199–235; Fyson, Magistrates (showing that in Quebec most assault cases were privately driven but that this was not true for a wide range of other offenses).
8. Compare Buckley, The Great Catastrophe of My Life, 5 (noting their unreliability); Conley, Carolyn A., The Unwritten Law: Criminal Justice in Victorian Kent (New York: Oxford University Press, 1991) 75 (noting editorial biases and omissions, while acknowledging their historical usefulness); Malcolmson, R.W. Robert, “Infanticide in the Eighteenth Century,” in Crime in England, 1550–1800, ed. Cockburn, J.S. (Princeton: Princeton University Press, 1977) 190 (infanticide cases in newspapers); and Olson, Ruth, “Rape—An ‘Un-Victorian’ Aspect of Life in Upper Canada,” Ontario Historical Society 68 (1976): 75 (noting gaps in coverage of criminal trials). All extant copies of sixteen period newspapers were examined for this study.
9. For an example of analysis of unconscious testimony in an American murder trial, see Pilarczyk, Ian C., “‘The Terrible Haystack Murder’: The Moral Paradox of Hypocrisy, Prudery, Piety in Antebellum America,” American Journal of Legal History 41 (1997): 25. Despite newspapers’ usefulness, a comment by Jarvis is apropos: “The work involved in researching these sources is wistfully belied by the brief appearance they present on a printed page.” Eric Jarvis, “Mid-Victorian Toronto: Panic, Policy and Public Response, 1857-1873” (PhD thesis, University of Western Ontario, 1978) 388.
10. A point made explicit in a study of female vagrancy by Poutanen, Mary Anne, “The Homeless, the Whore, the Drunkard, and the Disorderly: Contours of Female Vagrancy in the Montreal Courts, 1810–1842,” in Gendered Pasts: Historical Essays in Femininity and Masculinity in Canada, ed. McPherson, Kathryn, Morgan, Cecilia, and Forestell, Nancy M. (University of Toronto Press: Toronto, 2003) 31.
11. Focusing on reported cases has obvious limitations; see, for example, Backhouse, Constance, “Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada,” University of Toronto Law Journal 34 (1984): 456, n.26 (indicating only three infanticide cases were reported in nineteenth-century Canada). Other studies use selective surveying; see, for example, Emmerichs, Mary Beth Wasserlein, “Trials of Women for Homicide in Nineteenth-Century England,” Women and Criminal Justice 5 (1993): 99–109 (surveys in 5- year increments of infanticide prosecutions in England).
12. In recent years there has been a growing literature on everyday criminal justice in Quebec. For an excellent recent example see Fyson, Magistrates.
13. For the United States, see, for example, Gilje, Paul A., “Infant Abandonment in Early Nineteenth-Century New York City: Three Cases,” Signs 8 (1983) 580–90; and Wheeler, Kenneth, “Infanticide in Nineteenth-Century Ohio,” Journal of Social History 31 (1997): 407–18. For the United Kingdom, see, for example, Behlmer, George K., “Deadly Motherhood: Infanticide and Medical Opinion in Mid-Victorian England,” Journal of History of Medicine 34 (1979): 403–27; Emmerichs, “Trials of Women,” 99; John R. Gillis, “Servants, Sexual Relations and the Risks of Illegitimacy in London, 1801–1900,” in Sex and Class in Women's History, ed. J.L. Newton et al. Judith L. Newton, Mary P. Ryan, and Judith R. Walkowitz (London: Routledge & Kegan Paul, 1983); Higginbotham, Ann R., “‘Sin of the Age’: Infanticide and Illegitimacy in Victorian London,” Victorian Studies 32 (1989): 319–37; Krueger, “Literary Defenses”; Malcolmson, “Infanticide”; Rose, Lionel, Massacre of the Innocents: Infanticide in Great Britain, 1800–1939 (London: Routledge & Kegan Paul, 1986); and Sauer, R., “Infanticide and Abortion in Nineteenth-Century Britain,” Population Studies 32 (1978): 80–93. For continental Europe, see for example, Donovan, James M., “Infanticide and the Juries in France, 1825–1913,” Journal of Family History 16 (1991): 157–76. Some works offer a comparative perspective on time and place; see, for example, Hoffer & Hull, Murdering Mothers; and Langer, “Infanticide.”
14. Cliche, “L'infanticide.”
15. Backhouse, “Desperate Women”; Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: The Osgoode Society, 1991) 112.
16. Osborne, Judith A., “The Crime of Infanticide: Throwing Out the Baby With the Bathwater,” Canadian Journal of Family Law 6 (1987): 47–59. For a survey work of early- twentieth-century Canada, see Kramar, Kirsten Johnson, Unwilling Mothers, Unwanted Babies: Infanticide in Canada (Vancouver: University of British Columbia Press, 2005). For an account of the early eighteenth century, see Lachance, André, “Women and Crime in the Early Eighteenth Century, 1712–1759,” in Lawful Authority: Readings in the History of Criminal Justice in Canada, ed. Macleod, R.C. (Toronto: Copp Clark Pitman, 1988) 9–21. For coroner's inquests and infanticide in Ontario during this period, see Janet L. McShane Galley, “‘I Did It to Hide My Shame’: Community Responses to Suspicious Infant Deaths in Middlesex County, Ontario, 1850–1900” (MA thesis, University of Western Ontario, 1998). For a recent survey of child murder in Quebec, not specifically focusing on infanticide, see Cliché, Marie-Aimée, Fous, ivres ou méchants? Les parents meurtriers au Québec, 1775–1965 (Montreal: Boréal, 2011).
17. Wright, “Unnatural Mothers.”
18. Rapaport, Elizabeth, “Mad Women and Desperate Girls: Infanticide and Child Murder in Law and Myth,” Fordham Law Journal 33 (2006): 530.
19. The colony was known as “Quebec” from 1763 to 1791, when under the aegis of the Constitutional Act it was altered to “Lower Canada.” In 1840, it was changed to “Canada East” and renamed the “Province of Quebec” under The Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3. Herein, the term “Quebec” is used throughout.
20. For censuses from the founding of New France to 1871, see Census of Canada, 4 vols. (Ottawa: I.B. Taylor, 1871). For discussion of population, see Ouellet, Fernand, Economic and Social History of Quebec, 1760–1850 (Toronto: Macmillan, 1980); and Pentland, H. Clare, Labour and Capital in Canada, 1650–1860 (Toronto: J. Lorimer, 1981) 61–95.
21. Ouellet, Economic and Social History, 659; and Pentland, Labour, 64.
22. Linteau, Paul-André, Robert, Jean-Claude, and Durocher, René, Quebec: A History 1867–1929 (Toronto: J. Lorimer, 1983) 40.
23. Baker, G. Blaine, Fisher, Kathleen E., Masciotra, Vince, and Young, Brian, Sources in the Law Library of McGill University for A Reconstruction of the Legal Culture of Quebec, 1760–1890 (Montreal: McGill Faculty of Law & Montreal Business History Group, 1987) 9.
25. Robert, Jean-Claude, Atlas historique de Montréal (Montreal: Éditions Libre Expression, 1994).
26. Baker et al., Sources, 13. See, generally, Robert, Jean-Claude, Montréal, 1821–1871: Aspects de l'urbanisation (These de doctorat en histoire, Université de Paris I, 1977); Tulchinsky, Gerald, The River Barons: Montreal Businessmen and the Growth of Industry and Transportation, 1837–1853 (Toronto: University of Toronto Press, 1977); and Harvey, FernandRevolution industrielle et travailleurs, Une enqûete sur les rapports entre le capital et le travail au Québec à la fin du 19e siècle (Montreal: Boréal Express, 1978).
27. Baker et al., Sources, 13.
28. Baker et al., Sources, 13–14 and Magistrates, 8.
29. Women outnumbered men in Montreal during this period. Cross, D. Suzanne, “The Neglected Majority: The Changing Role of Women in Nineteenth Century Montreal,” in The Canadian City: Essays in Urban History, ed. Stelter, Gilbert A. and Artibise, Alan F.J. (McClelland and Stewart, Toronto, 1977) 67–68. Halifax shared the commonalities of being a thriving port city with a large military garrison. See Wright, “Unnatural Mothers,” 22.
30. Fyson, Magistrates, 10.
31. Baker et al., Sources, 17–18 and Magistrates, 8.
32. See, for example, Fyson, Magistrates, 16.
33. See, for example, Hay, Douglas, “The Meaning of the Criminal Law in Quebec, 1764–1774,” in Crime and Criminal Justice in Europe and Canada, ed. Knafla, Louis A. (Waterloo: Wilfrid Laurier Press, 1981). For the structure and jurisdiction of courts, see generally Fyson, Magistrates.
34. Fyson, Magistrates, at 7; for discussion of the police force and related institutions, see ibid. at 136–83.
35. The Montreal Gazette, November 27, 1826.
36. Some were driven to suicide. See, for example, The Vindicator, July 3, 1829: “Suicide––On Saturday last a woman named Ellen Brasil, a native of Ireland, put an end to her existence by hanging herself with a Silk Handkerchief. The Verdict of the Coroner's Inquest––felo de se. We learn that this unhappy female had for some time previous to her death, been cohabitating with one Patrick Shiels, a huckster…who, it would seem, had seduced her under promise of marriage. The wretched woman becoming pregnant, and finding no probability of Shiels performing his promise, formed the dreadful resolution of destroying herself…”
37. See, generally, Malcolmson, “Infanticide.” For discussion of adoption, see, for example, Grossberg, Michael, Governing the Hearth, Law and the Family in Nineteenth-Century America (Chapel Hill & London: University of North Carolina Press, 1985) 268–80.
38. See, generally, Fyson, Magistrates, 285–89.
39. Cross, Neglected Majority, 74–77. The oldest in Montreal was established in 1858. Ibid., 75. It is noteworthy that married English, Irish, and Scottish mothers appear to not have worked outside the home relative to their French-Canadian counterparts.
40. Backhouse, Petticoats, 44. For seduction in Quebec, see, generally, Cliche, Marie-Aimée, “Fille-mere, famille et société sous le Régime francais,” Histoire Sociale/Social History 41 (1988): 39–69; and Mignault, Pierre-Basile, Le Droit Civil Canadien (Montreal: C. Théoret, 1901) 368–69. For Canada, see, generally, Backhouse, , “The Tort of Seduction: Father and Daughters in Nineteenth-Century Canada,” Dalhousie Law Journal 10 (1986): 45–80; Bailey, Martha J., “Servant Girls and Upper Canada's Seduction Act, 1837–1946,” in Dimensions of Childhood: Essays on the History of Children and Youth in Canada, eds. Smandych, Russell, Dodds, Gordon, and Esau, Alvin (Legal Research Institute: University of Manitoba, 1990) 159–82.
41. Compare Eric Jarvis, “Mid-Victorian Toronto,” 132. But see Sauer, “Infanticide and Abortion” 84–85 (infanticide arising from illegitimate births was rare in Victorian Scotland); ibid., 89 (infanticide rarely practiced by nineteenth-century Irish emigrants in England). No differences among ethnic groups are readily apparent here, unlike that of socioeconomic class. Irish defendants feature prominently, but they reside next to French-Canadians, Scots, and Brits. In later years, orphanages were used by parents in financial straits. See, generally, Bradbury, Bettina, “The Fragmented Family: Family Strategies in the Face of Death, Illness and Poverty, Montreal, 1860–1885,” in Childhood and Family in Canadian History, ed. Parr, Joy (Toronto: McClelland and Stewart, 1982), 109–28.
42. See, generally, Malcolmson, “Infanticide,” 187–188. For discussions of abortion, see, for example, McLaren, Angus, “Birth Control and Abortion in Canada, 1870–1920,” in The Neglected Majority: Essays in Canadian Women's History, vol. 2, ed. Prentice, Alison and Trofimenkoff, Susan Mann (Toronto: McClelland & Stewart, 1985), 84–101; Backhouse, Constance, “Involuntary Motherhood: Abortion, Birth Control and the Law in Nineteenth-Century Canada,” Windsor Yearbook of Access to Justice 3 (1983): 61–130; Ward, W. Peter, “Unwed Motherhood in Nineteenth-Century English Canada,” Communications Historiques/Historical Papers (1981): 34–56; and McLaren, Angus, “Abortion in England, 1893–1914,” Victorian Studies 20 (1977): 379–400. For a rare example within the judicial archives, see BAnQ-M, Records of the Montreal Gaol (hereinafter MG), Donald McLean committed for “administering poisonous drugs for the purpose of creating primative (sic) abortion”; defendant acquitted (September 30, 1842). The only newspaper account involved a defendant who served his long-time paramour ergot of rye and was charged with poisoning with intent to produce miscarriage. Montreal Gazette, October 26, 1850. Its near invisibility in these sources, coupled with the research of McLaren and others, suggests abortion was not perceived as a significant social issue during the period.
43. Compare Malcolmson, “Infanticide,” 188.
44. See, generally, Cliche, “L'infanticide,” 36–37; Malcolmson, “Infanticide”; and Sauer, “Infanticide and Abortion,” 82. See also Jarvis, “Mid-Victorian Toronto,” 132–133: “The children, both male and female, were usually left where someone was sure to find them, such as on the doorsteps of churches, or the homes of prominent people. Usually they were well dressed, and in good health, cradled in a basket, sometimes complete with a nursing bottle of milk, a note telling the name, or instructions suggesting a possible name or requesting baptism. Often, it was noted, they came with rather expensive clothes, far beyond the means of poor parents, leaving the suspicion that this was not just a lower class phenomenon. Such deserted children generally survived and were sent to an orphanage or the House of Industry.”
45. Wright, “Unnatural Mothers,” 18, observed that abandonment was probably a rationalization as it was theoretically possible that the infant could be rescued.
46. As pointed out by Peter Gossage, “Abandoned Children in Nineteenth-Century Montreal” (MA thesis, McGill University, 1983), 1–2, illegitimacy and poverty were key drivers of child abandonment. See also Gossage, Peter, “Les Enfants Abandonnés à Montréal au 19e Siècle: La Crèche d'Youville des Soeurs Grises, 1820–1871,” Revue d'Histoire de l'Amérique Française 40 (1986–87): 537–59.
47. For discussion of women and public spaces, see Mary Ann Poutanen, “The Homeless.”
48. See, generally, Gossage, “Abandoned Children”; Gossage, “Les enfants.” The Grey Nuns acted as a “depository for children that could not be raised in a traditional family unit for a number of reasons, the most common of which was illegitimacy.” Gossage, “Abandoned Children,” 10. For discussion of abandonment, see Boswell, John, The Kindness of Strangers: The Abandonment of Children in Western Europe from Late Antiquity to the Renaissance (New York: Pantheon Books, 1988); and Fuchs, Rachel Ginnis, Abandoned Children: Foundlings and Child Welfare in Nineteenth-Century France (New York: State University of New York Press, 1984).
49. See Rose, Massacre of the Innocents 2–3; Krueger, Christine, “Literary Defenses and Medical Prosecutions: Representing Infanticide in Nineteenth-Century Britain,” Victorian Studies 44 (1997): 271.
50. Gossage, “Les enfants,” 544 Table 1.
52. The Pilot, September 12, 1846.
53. Ibid. Similarly, their annual report 2 years noted they “have the happiness of firmly believing, that so far from this Institution having been the cause of inducing immorality, it has been the means of saving numbers from vicious courses and eternal ruin.” Ibid., October 14, 1848.
54. Mothers may have preferred the “legitimacy” of foundling institutions, but the results were often equally tragic, see Gossage, “Abandoned Children,” 11. The mortality rate for the Grey Nuns’ Foundling Hospital, although horrifically high, was not unusual. During 1820–1840, 86.9% of the children in this institution died. Ibid., 116; and Gossage, “Les enfants,” 549. “Baby farming” was similarly lethal, although often more premeditated. See, for example, Knelman, Judith, Twisting in the Wind: The Murderess and the English Press (University of Toronto Press: Toronto, 1998), 157–80.
55. For the period from 1820 to 1840, 2,385 children were abandoned with the Grey Nuns; of these, the ages of 1,690 were recorded: 91.7% were less than a year old; 71.5% were less than a month old; and 51.2% were less than a week old. Gossage, “Abandoned Children,” 106. Such was the privacy with which children could be deposited that only one newspaper reference was found: “A police man who was not far away from the Grey Nun's convent heard the cries of a child emanating near the wall that surrounded the building. After searching, he found a small newborn, wrapped in a few sheets. He brought it to the convent and the charitable sisters of this institution took it under their care.” La Minerve, March 19, 1846 (author's translation). See also The Pilot, March 20, 1846 (citing The Montreal Herald). That the infant was left so close to the convent suggests the mother might have had a lapse of courage when dropping her child, or was terrified of discovery.
56. The Montreal Transcript, June 13, 1837. See also The Montreal Transcript, April 1, 1845 (detailing practice of abandoning older children); The Montreal Transcript, August 8, 1846 (“a young female child, abandoned by its parents, was found on Wednesday last on the market. There was on her person, a paper indicating her Christian name and age.”)
57. For discussion of such a prosecution, see footnote 226 below and accompanying text. A newspaper account portraying the abandonment of several adolescent children and which also identifies the mother, who was arrested but escaped from custody, appeared in La Minerve, April 3, 1845. This theme of fleeing justice was common.
58. Malcolmson, “Infanticide,” 188.
59. See, generally, Jarvis, “Mid-Victorian Toronto,” 133–34.
60. See Wheeler, Infanticide, 407; Donovan, James M., “Infanticide and the Juries in France, 1825-1913,” Journal of Family History 16 (1991):159–60.
61. Outside city limits, it was not unusual for other officials to preside over inquests, such as the Captain of Militia. See footnote 71 below.
62. Rose, Massacre of the Innocents, 57.
63. Adjusted figures are derived by omitting cases for which verdicts were unknown. Many bodies of children older than a year came before inquests but I have excluded them as non-infants. For other jurisdictions, compare Higginbotham, “Sin of the Age,” 319 (by the 1860s 150 infant bodies a year were found in London); Jarvis, “Mid-Victorian Toronto,” 135 (in 1860s Toronto fifty to sixty infants were examined by the coroner); and Wright, “Unnatural Mothers,” 17 (124 infant bodies were found in Halifax in 1850 to 1875).
64. Compare Galley, “I Did It To Hide My Shame,” 33 (eight out of eleven inquests on infants during 1842–1850 resulted in murder verdicts).
65. BAnQ-M, Coroner's Inquests (hereinafter CR) no.233 (June 1, 1840) (child of Zoe Lorrain). Compare Cliche, “L'infanticide,” 35 and Table I (forty-three Quebec City inquests on infants between 1820 and 1849, of which nine led to murder verdicts; the mother was identified in seventeen cases); Galley, “I Did It To Hide My Shame,” 14 (twelve percent of eighty–two inquests involving suspicious infant deaths in late-nineteenth-century Ontario led to trial).
66. See, for example, La Minerve, July 24, 1845 (author's translation); see also The Pilot, July 24, 1845 (“[T]he jury convened last Monday to inquire into the body of a child found in the ditch near Campeau Street and rendered a verdict of voluntary murder. Sarah Fairservice, the mother of the child was put in prison yesterday upon a coroner's warrant accusing her of ‘infanticide.’”). In another case, the mother was not prosecuted, because of insanity. BAnQ-M, CR no.2058 (February 1, 1850) (Marie Dufull (?), verdict that she was “suffocated by her mother being deranged.”). Other accounts were ambiguous as to the mother's role in the infant's death; see note 94 below.
67. See also note 93 below and accompanying text. Table 1 above reveals that nearly all findings of “died by visitation of God” occurred for the years 1848 to 1850. Furthermore, twelve of fifteen findings of murder took place between 1840 and 1850. Those facts suggest that the findings were the result of a difference in techniques or philosophies, most likely because of a change of coroner. For similar experiences in Victorian England, see Rose, Massacre of the Innocents, 59–60.
68. Ibid., 59–62.
69. See, for example, L'Ami du Peuple, May 25, 1839: “A newborn's body was found Thursday morning by a small stream that crosses Bleury Street….It is cruel to have to think that there could exist mothers so unnatural as to commit such an act.” It is ambiguous as to whether the editor is condemning the discarding of the body or an assumed infanticide, or both.
70. Compare Malcolmson, “Infanticide,” 191; Sauer, “Infanticide and Abortion,” 82; and Wheeler, “Infanticide,” 407. Wheeler, however, did attempt to reconstruct infanticide rates. For discussion of crime measurement from historical records, see, for example, J.M. Beattie, “Judicial Records and the Measurement of Crime in Eighteenth-Century England,” in Knafla, Crime and Criminal Justice, 127–45; and Terry Chapman, “The Measurement of Crime in Nineteenth-Century Canada: Some Methodological and Philosophical Problems,” in Knafla, Crime and Criminal Justice, 147–55.
71. For an example, see BAnQ-M, CR no.498 (April 4, 1825): The Inquisition taken…by James Glassford, Captain of Militia… on view of the body of an infant child found in a hole in the ice tied to a large stone…[T]he jury assembled [and declare]….that the said infant child was willfully (sic) murdered by some person or persons unknown to the jurors….
72. The Montreal Gazette, March 31, 1848 (citing The Montreal Transcript).
73. See, for example, Malcolmson, “Infanticide,” 191–92 (“When a dead baby was found in a pond, a barn, an outhouse, a box or buried in a garden, there is little reason to doubt that it had probably been murdered, or at the least deliberately not kept alive.”); and Wheeler, “Infanticide,” 407 (“Yet even when people found infant bodies in creeks or outhouses, they could not be certain they had uncovered an infanticide.”).
74. For an overt example, see, for example, The Vindicator, May 29, 1829: “Mysterious Discovery––Two little children playing in the garret of a certain house in this city, discovered…the skeleton of an infant…That part of the dress covering the chest was of a bloody colour, from whence it is conjectured that the child had its throat cut….”
75. The Montreal Transcript, July 12, 1842 (citing The Montreal Courier).
76. See, generally, Jones, David, Crime, Protest, Community and Police in Nineteenth-Century Britain (London: Routledge and Kegan Paul, 1982), 110.
77. The Canadian Courant, October 28, 1829. See also The Montreal Gazette, March 4, 1830.
78. The Canadian Courant, June 25, 1825 (emphasis in original) The coroner's inquest concluded the infant was a “female bastard still born” of Bridget McKane, and that Mrs. Barker had delivered the body to the putative father, who denied responsibility. The jury further concluded that “the body remained in the said street but without any criminal intentions on the part of Mrs. Barker in exposing the said body….” BAnQ-M, CR no.514 (June 22, 1825).
79. The gravedigger who interred the female infant of Bridget McKane received 5s for burial expenses from the city coroner, ibid. See also Cliche, “L'infanticide,” 36. In 1825, the cost of a child's grave in Montreal was 7s. 6d. Young, Brian, Respectable Burial: Montreal's Mount Royal Cemetery (McGill-Queen's Press, Montreal, 2003), 9. As one scholar noted, “privation often forced families to approach death with pragmatism.” Strange, Julie-Marie, Death, Grief, and Poverty in Britain, 1870–1914 (Cambridge University Press: Cambridge, 2005), 65.
80. Strange, ibid.
81. BAnQ-M, CR no.1039 (June 10, 1834) (finding of “found dead”).
82. BAnQ-M, CR no.1213 (August 27, 1836) (ditto).
83. BAnQ-M, CR no.1202 (October 10, 1836) (ditto).
84. Whaley, Joachim, ed, Mirrors of Mortality: Studies in the Social History of Death (New York: St. Martin's Press, 1981), 60; Jupp, Peter C. and Gittings, Clare, eds, Death in England, An Illustrated History (Rutgers University Press: New Brunswick, 1999), 150; Strange, Death, Grief, and Poverty, 106; Field, David, Hockey, Jeremy, and Small, Neil, eds., Death, Gender and Ethnicity (New York: Routledge, 1997), 6; Alice Lovell, Death at the Beginning of Life, 32. The tension still exists today with miscarried, stillborn, and early neonatal deaths. Lovell, ibid.
85. Thornton, Patricia and Olson, Sherry, “A Deadly discrimination among Montreal infants, 1860–1900,” Continuity and Change 16 (2001): 99. In the 1860s, Irish Catholic infants were often baptized at 6 or 8 days old, French Canadians by the second day. Ibid., 129 n.10. The illegitimacy figure is for 1859. Ibid.
86. The informal burial of a child in a well-made coffin suggests that expense was not the main concern. For an example of an interment in Upper Canada, see The Vindicator, November 18, 1831 (citing The Colonial Advocate).
87. Strange, Death, Grief and Poverty, 89–90. Although no explicit examples were found in Montreal, Wright has pointed to the abandonment of infant bodies in graveyards in nineteenth- century Halifax as signifying concern about the disposal of dead infants by parents who could not afford burial expenses, also noting that cemeteries were one public area not frequented at night. Wright, “Unnatural Mothers,” 17–18. For accounts of burials by affluent families, see, generally, Young, Brian, “Death, Burial, and Protestant Identity In An Elite Family: The Montreal McCords,” in Negotiating Identities in 19th- and 20th-Century Montreal, ed. Bradbury, Bettina and Myers, Tamara (University of British Columbia Press: Vancouver, 2005), 101.
88. The Montreal Gazette, March 16, 1844 (account of discovery of body); The Montreal Gazette, March 19, 1844 (inquest concluded the child died violently of bleeding or strangulation).
89. The Canadian Courant, June 4, 1831 (citing The Montreal Herald). For other representative examples, see e.g., BAnQ-M, CR no.227 (May 27, 1840) (account of a “much disfigured” body of male infant “found enveloped in a piece of flannel and a shawl, put into a bag with a fire brick and a stone and thrown into the River St. Lawrence;” verdict that the child “came to his death by being thrown into the River…and drowned.”). See also The Montreal Gazette, June 10, 1834 (citing The Montreal Herald) (“[a]n infant was found wrapped in a coarse cloth containing also a stone, yesterday evening, near the Canal, and shewing (sic) evident symptoms of having met with an unnatural death.” The inquest's verdict was “in accordance with the appearance which this victim of inhuman violence presented.”).
90. The Montreal Gazette, March 15, 1834.
91. Compare the horror with which vivisection was commonly viewed. See Linebaugh, Peter, “The Tyburn Riot Against the Surgeons,” in Albion's Fatal Tree: Crime and Society in Eighteenth Century England, ed. Hay, Douglas and & Thompson, E.P., eds., (London: Allen Lane, 1975), 65–117.
92. Simpson, Jacqueline, “The Folklore of Infant Deaths: Burials, Ghosts and Changelings,” in Representations of Childhood Death, ed. Avery, Gillian and Reynolds, Kimberley (New York: St. Martin's Press, 2005), 15 (“The infant burials…however surreptitious and curtailed, nevertheless must be seen as a ‘lucky’ minority. Far more numerous must have been the miscarried or abortive foetuses, the illegitimate stillbirths, the victims of infanticide who were disposed of in total secrecy.”).
93. The Montreal Gazette April 5, 1826. For other examples, see BAnQ-M, CR no.370 (June 15, 1822) (“we are ignorant of the cause of death” of naked female infant discovered in well; author's translation); BAnQ-M, CR no.395 (October 29, 1822) (male infant found in Hôtel Dieu, but jury could not determine when and how it died). The Hôtel-Dieu took in abandoned children during the period 1800–1850. See Cliche, “L'infanticide,” 39, n.24.
94. The Montreal Transcript (November 23, 1844). It went on to say that the “number of cases of this kind which have occurred lately calls for serious attention.”
95. See, for example, Charles Dickens, Oliver Twist (Oxford: Oxford University Press, 1999), 5.
96. One observer penned doggerel verse after witnessing an inquest held on an infant suspected of being murdered: “Placed round the child, two certain Doctors stand/Waved handsome wigs, and stretched the asking hand/State the grave doubt, the cause they cannot see/And both do claim-–though none deserve the fee.” The Montreal Gazette, July 18, 1850 (emphasis in original). The suspected murderess was a domestic servant to the family. Wright, “Unnatural Mothers,” 24, states that Halifax inquests were criticized for their expense, given that so little effort was expended in discovering the offenders.
97. Boys, Practical Treatise, 48. See, for example, Taylor, A. S., A Manual of Medical Jurisprudence, 8th ed. (London: John Churchill & Sons, 1866) 456–503 (discussion of infanticide and medical tests to be employed).
98. Krueger, “Literary Defenses,” 275 (citing Theodric Romeyn Beck and John Brodhead Beck, Elements of Medical Jurisprudence, 7th ed., 1842).
99. That requirement was interpreted literally, so that if any part of the infant remained inside the birth canal at the time of death, a murder charge could not be sustained. Krueger, “Literary Defenses,” 274; Rose, Massacre of the Innocents, 70–72. For contemporary discussion of that nuance, see Boys, Practical Treatise, 48.
100. Ibid., 49. Discussion of the full range of period medical procedures falls beyond the scope of this article, but that test played an indispensable part in many such inquests.
101. See ibid., 50. The test was described by Boys as follows: “The lungs are removed from the chest in connection with the trachea and bronchi, and placed on the surface of water, free from salt or other ingredient which would increase its specific gravity––pure distilled or river water is recommended. If they sink, notice whether rapidly or slowly. Then try if each lung will sink separately; cut them into several small pieces, and see if these pieces float or sink. If the lungs float, note if they float high above the surface, or at or below the level of the water, and see if the buoyancy is due to the lungs generally, or only to the state of particular parts. By considering the general result of these experiments, an inference may be drawn as to whether respiration has taken place at all, or partially, or perfectly.” Ibid., 91.
102. See Malcolmson, “Infanticide,” 199–200; and Rose, Massacre of the Innocents, 72.
103. Boys, Practical Treatise, 50–51 & 91. As Cliche pointed out in the context of Quebec City, the immersion test was questioned but remained in use by mid-century coroners. Cliche, “L'infanticide,” 50, n.75. Problems with detection of infant murder still exist today. Rapaport, “Mad Women,” 535 n.39.
104. Taylor, Manual, 461. See also Rapaport, ibid. at 550 n.136 (contemporary difficulties associated with determining live births).
106. See, for example, Malcolmson, “Infanticide,” 199–200.
107. Rose, Massacre of the Innocents, 43 (juries of inquest) and 59 (coroners).
108. BAnQ-M, CR no.331 (March 17, 1841) (finding: “found dead without marks of violence.”).
109. Ibid. For the view that coroners were known to be inaccurate, see Higginbotham, “Sin of the Age,” 323.
110. See, for example, The Pilot, December 24, 1847 (citing The Montreal Courier): “Infanticide—An infant male child was found dead on Monday last in a wood-shed off Bleury Street. After a careful examination of the body by Dr. Hall, the Coroner's Jury returned a verdict that death had been caused by violence inflicted by some person or persons as yet unknown.”
111. See, generally, Wiener, Martin J., “Judges v. Jurors: Courtroom Tensions in Murder Trials and the Law of Criminal Responsibility in Nineteenth-Century England,” Law and History Review 17 (1999): 479, n.38.
112. BAnQ-M., Files of the Court of Quarter Sessions (hereinafter QS[F]), Queen v. Ann Murphy (August 14, 1841) (notes of inquest); The Montreal Gazette, September 7, 1841 (inquest verdict).
113. BAnQ-M, CR no.1836 (May 22, 1849) (male child of Henrietta Miles, finding “premature delivery by violence.”); BAnQ-M, CR no.2427 (October 31, 1850) (female child of Emelie Legault, finding “death from violence.”). For an example in which a mother was arrested on suspicion of murder but was exonerated by the inquest, see N.A.C., Records of the Montreal Police, Rural Returns (Napierville) (hereinafter MP[RR]), Domina Regina v. Maria Atkins (August 23, 1840); Registers of the Court of King's Bench, 4 (hereinafter KB(R)) (coroner's report no.276, “infant child of Maria Atkins…died for want of necessary care”) (August 27, 1840).
114. The Pilot, November 21, 1845 (citing The Montreal Herald).
115. Ibid. According to The Pilot, The Times asserted that the medical testimony was to the effect “that the child had breathed, not that it was born alive.” Ibid.
116. See also footnote 181 below.
117. That conclusion mirrors observations by other scholars. See, for example, Malcolmson, Infanticide, 192 (nineteenth-century England).
118. Admission figures for the Grey Nuns for 1820–1840 show a similar pattern: fifty-one percent were less than a week old; twenty percent were aged 8 days to 1 month; twenty percent were aged 1 month to 1 year. Gossage, Les enfants, 548.
119. See, generally, Constance Backhouse, “Desperate Women.”
120. See, for example, Hoffer and Hull, Murdering Mothers, 3: “That epoch saw a burst of prosecutions and the emergence of new attitudes and laws on the crime. The cause of this shift in practice and opinion lies in a combination of jurisprudential, religious, economic, and social forces. With their confluence begins the history of modern Anglo-American infanticide law.” See also Gilje, Paul A., “Infant Abandonment in Early Nineteenth-Century New York City: Three Cases,” Signs: Journal of Women in Culture and Society 8 (1983): 582. Historically, the illegitimate child who survived had no legal status, being considered under the common law as ‘filius nullius’—nobody's son.
121. 21 James I, c. 27, s. 2 (1624) (U.K.) (hereinafter the “Act of 1624”), which read: Whereas many lewd women that have been delivered of bastard children, to avoid their shame and to escape punishment, do secretly bury, or conceal the death of their children, and after if the child be found dead the said women do allege that the said children were born dead; whereas it falleth out sometimes (although hardly it is to be proved) that the said child or children were murdered by the said women their lewd mothers, or by their assent or procurement: For the preventing therefore of this great mischief, be it enacted…that if 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, in every such case the mother so offending shall suffer death as in the case of murder except such mother can make proof by one witness at the least, that the child (whose death was by her so intended to be concealed) was born dead.” See also Backhouse, “Desperate Women,” 449; Cleveland, Arthur Rackham, Women Under the English Law, from the Landing of the Saxons to the Present Time (London: Hurst & Blackett, 1896), 177; Malcolmson, Infanticide, 196; and Osborne, “Infanticide,” 49.
122. Backhouse has stated that legislators must have been aware of that fact and hence knew they were convicting women who had concealed the birth of a stillborn infant or one who died of natural causes. Backhouse, “Desperate Women,” 450. See also Gilje, “Infant Abandonment,” 582. However, as Backhouse also acknowledged, few were convicted.
123. Cliche, “L'infanticide,” 45.
124. 14 Geo. III c.83 (1774) (U.K.). See also 40 Geo. III, c.1 (1800) (U.C.) (establishing English criminal law as it stood on September 17, 1792 was deemed received into Upper Canada, following the division of Quebec into Upper and Lower Canada).
125. See Cliche, “L'infanticide,” 45.
126. See, generally, Backhouse, “Desperate Women,” 448. See also Osborne, “Infanticide,” 50.
127. 43 Geo. III, c. 58 (1803) (L.C.) (hereinafter the Act of 1803). See, generally, Gilje, “Infant Abandonment,” 582; Krueger, “Literary Defenses,” 274; and Rose, Massacre of the Innocents, 70; Sauer, “Infanticide and Abortion,” 82. But also see Cleveland, Women Under the English Law, 178–79 (the 1803 Act reflected the fact that Parliament “saw the injustice” of the earlier statute).
128. Parliamentary History of England, 36, (London: R. Bagshaw, 1820), 1245–47 (cited in Hoffer and Hull, Murdering Mothers, 87 and n 25).
129. The Act of 1803 stated in pertinent part: “The Jury by whose verdict any Prisoner charged with such murder as aforesaid shall be acquitted, to find, in case it shall so appear in Evidence that the Prisoner was delivered of Issue of her Body, Male or Female, which, if born alive, would have been Bastard, and that she did, by secret Burying, or otherwise, endeavor to conceal the Birth thereof, and thereupon it shall be lawful for the court before which such Prisoner shall have been tried, to adjudge that such Prisoner shall be committed to the Common Gaol or House of Correction for any Time not exceeding two Years.” See, generally, Emmerichs, “Trials of Women,” 104. The current Criminal Code of Canada provides for a 5-year maximum sentence for infanticide. R.S.C. 1985, C-46, s.237.
130. 52 Geo. III, c.3 (1812) (L.C.). The statute's preamble stated that “the [previous statute] hath been found, as well in England as in this Province, in sundry cases, difficult and inconvenient to be put in practice….” Ibid. at s.1. These statutes only included illegitimate infants within their purview. Backhouse, “Desperate Women,” 450. A number of American jurisdictions had acted to reform infanticide laws even earlier. Shortly after the Revolution, many of the existing English statutes were replaced. For example, Massachusetts changed the law in 1784, and Pennsylvania in 1787 placed the burden of proof on the prosecution. See Hoffer and Hull, Murdering Mothers, 90–93; and Gilje, “Infant Abandonment,” 582.
131. 8 Geo. IV, c. 34 (1828) (U.K.). See also Hoffer and Hull, Murdering Mothers, 87; and Rose, Massacre of the Innocents, 70.
132. Rose, Massacre of the Innocents, 71. See also Beattie, J.M, “The Criminality of Women in Eighteenth-Century England,” in Women and the Law, A Social Historical Perspective, vol. 1, ed. Weisberg, D. Kelly (Cambridge: Schenkman Publishing Company, 1982), 197, 203. English juries often acquitted if the infant's body had been disposed of in a public thoroughfare, or in such a haphazard way as to guarantee discovery. Rose, Massacre of the Innocents, 71. See also Krueger, “Literary Defenses,” 274.
133. 4,5 Vict. c. 27 s.14 (1841) (L.C.), which read: “And be it enacted, That if any woman shall be delivered of a child, and shall, by secret burying or otherwise disposing of the dead body of the said child, endeavour to conceal the birth thereof, every such offender shall be guilty of a Misdemeanor, and being convicted thereof, shall be liable to be imprisoned for any term not exceeding two years; and it shall not be necessary to prove whether the child died before, at or after its birth: Provided always, that if any woman, tried for the murder of her child shall be acquitted thereof, it shall be lawful for the jury…[to find] she was delivered of a child, and that she did, by secret burying or otherwise disposing of the dead body of such child, endeavour to conceal the birth thereof, and thereupon the Court may pass such sentence as if she had been convicted…for the concealment of the birth.” Therefore, until December 31, 1841, an accused could only be charged with concealment following an unsuccessful prosecution for infanticide.
134. L'Ami du Peuple, April 18, 1840 (author's translation).
135. But see Anderson, Frank W., A Dance With Death, Canadian Women on the Gallows 1754–1954 (Fifth House Publishers: Saskatoon & Calgary, 1996), 186 (until 1914 such cases were not newsworthy and Williams’ case did not merit mention in period newspapers).
136. BAnQ-M, Files of the Court of King's Bench (hereinafter KB(F)), Queen v. Betsey Williams (April 16, 1840) (voluntary examination of Betsey Williams) (author's translation). Monholland, “Infanticide,” 72, stated that fifty percent of infants were killed on journeys away from the mother's workplace or, as in Williams’ case, en route to visiting family.
137. BAnQ-M, KB(F), Queen v. Betsey Williams (April 15, 1840) (affidavit of Domithild Charlebois).
138. BAnQ-M, KB(F), Queen v. Betsey Williams (April 15, 1840) (affidavit of François Augustin Menard).
139. Although this differed in certain areas outside the city, blacks and natives generally constituted only a small part of the population of the District of Montreal. Fyson, Magistrates, 303.
140. L'Ami du Peuple, April 18, 1840 (author's translation).
141. There was no right to counsel for felons in English jurisdictions during the first several decades of the nineteenth century. There was, however, a convention that English and British North American courts would secure the services of defense counsel for defendants charged with capital crimes. Counsel could cross-examine witnesses and argue points of law, but could not address the jury. As was the case with Williams, some Montreal defendants were not represented by counsel. The statutory right to counsel in felony cases was established in 1836, along with the right of counsel to address juries. See 6 & 7 Will. IV c.114 (1836) (U.K.); 5 Will. IV c.1 (1836) (L.C.). See, generally, Cairns, David J.A., Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford & New York: Hambledon Press & Oxford University Press, 1998); Philips, David, Crime and Authority in Victorian England (London: Croom Helm Limited, 1977), 104; Taylor, David, Crime, Policing and Punishment in England, 1750–1914 (New York: St. Martin's Press, 1991), 114; Greenwood, F. Murray and Boissery, Beverley, Uncertain Justice: Canadian Women and Capital Punishment 1754–1953 (Toronto: Osgoode Society, 2001), 84; and Wiener, “Judges v. Jurors,” 474. For discussion of lack of counsel in such cases, see, generally, Monholland, “Infanticide,” 154–159. In Quebec, the reality was mixed in terms of accused felons having professional assistance; see Fyson, Magistrates, 245–49.
142. See, generally, Devlin, Patrick, The Criminal Prosecution in England (New Haven: Yale University Press, 1958), 108; Taylor, Crime, 115; Philips, Crime and Authority, 106. This did not preclude defendants from giving unsworn testimony, but such statements were typically seen as self serving. There was no indication in any of these cases that the defendants testified. It should be noted that defendants in felony cases generally were shown significant solicitude. See, for example, Douglas Hay, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree, 32. Moreover, the weightiness of capital crimes worked against the Crown, particularly as jurors feared committing “judicial murder.” Ibid., 23. These factors did not hold true in the Williams trial.
143. The Montreal Gazette, September 10, 1840. The newspaper account read as follows: “Elizabeth Williams, for the murder of her infant (male) child, aged five weeks, was tried, and found guilty, the Jury not even withdrawing to deliberate. It appeared in evidence, that the unfortunate prisoner had deposited her child in the bush at Grand Brulé, under a tree, in very inclement weather in the month of April last. She acknowledged she had been induced to this act from the fear she entertained of her father, to whose residence she was repairing, having been away at the Indian village of the Lake of the Two Mountains, for about a year. The child was illegitimate. The prisoner offered no defence.” For accounts of the short time spent in deliberation by juries in such cases in nineteenth-century England, see Monholland, “Infanticide,” 193–95.
144. BAnQ-M, KB(R), 77–78, Queen v. Elizabeth Williams (September 8, 1840) (verdict); KB(R), 94–95, ibid. (September 10, 1840) (sentence). The sentencing remarks have not survived. Those rituals were important symbolic components of the “majesty, justice and mercy” of the law although they may not all have been transplanted to Quebec. For discussion of rituals, see, generally, Hay, “Property”; King, Crime, Justice and Discretion, 334–40. For Quebec court's attempt to impose the terror and majesty of the law, see, generally, Fyson, Magistrates, 310–31.
145. N.A.C., Applications for Pardons (hereinafter AP), vol. 24, 10776–77, “Pray mercy for Elizabeth Williams sentenced to death for murder” (September 28, 1840).
146. The Montreal Gazette, October 10, 1840. See also N.A.C., AP, vol. 24, 10776–77 (September 28, 1840) (Williams given conditional pardon and sentenced to 3 years); 10778–79 (November 14, 1840) (Sheriff's receipt of Williams’ pardon). See also Borthwick, J. Douglas, History of the Montreal Prison from A.D. 1784 to A.D. 1886 (Montreal: A. Feriard, 1886), 265; and Borthwick, J. Douglas, From Darkness to Light, History of the Eight Prisons Which Have Been, Or Are Now, in Montreal, from A.D. 1760 to A.D. 1907––Civil and Military (Montreal: The Gazette Printing Company, 1907), 79–80. Compare Cliche, “L'infanticide,” 49, Table III (the sole conviction for murder in Quebec City was punished by 6 months’ incarceration).
147. See, generally, Rainer Baehre, “Imperial Authority and Colonial Officialdom of Upper Canada in the 1830s: The State, Crime, Lunacy, and Everyday Social Order,” in Knafla, Crime and Criminal Justice, 185 (capital punishment in Upper Canada and the U.K.); Beattie, J.M., Attitudes Towards Crime and Punishment in Upper Canada, 1830–1850: A Documentary Study (Toronto: University of Toronto Press, 1977), 56–73 (Upper Canada); J.M. Beattie, “The Criminality of Women,” 8; Higginbotham, “Sin of the Age,” 323; and Phillips, Jim, “The Operation of the Royal Pardon in Nova Scotia, 1749–1815,” University of Toronto Law Journal 42 (1992): 401–49. For discussion of pardons, see Phillips, “Operation of the Royal Pardon”; Hay, “Property,” 43–49; Chadwick, R. Roger, Bureaucratic Mercy: The Home Office and the Treatment of Capital Cases in Victorian Britain (New York: Garland, Modern European History Series, 1992); King, Crime, Justice and Discretion, 297–333 (pardons for property offenses); and Swainger, Jonathan, “A Distant Edge of Authority: Capital Punishment and the Prerogative of Mercy in British Columbia, 1872–1880,” in Essays in the History of Canadian Law, vol. 6, ed. Foster, Hamar and McLaren, John (Toronto: Osgoode Society, 1995), 204. For Canadian infanticide prosecutions in which death sentences were not commuted, see Anderson, A Dance With Death, 185–210.
148. Greenwood and Boissery, Uncertain Justice 16; Phillips, “Operation of the Royal Pardon,” 406.
149. See, generally, Hay, “Property”; Beattie, “The Criminality of Women,” 8–9 (discussing mercy and clemency in administering Britain's “Bloody Code”); Beattie, Attitudes, 8–10 (discussing similar experiences in Upper Canada); Chapman, “Measurement of Crime,” 150–153 (nineteenth-century Canada). An Act of 1827 reduced the scope of capital punishment significantly, the first major English legal reform that would eventually leave only a few capital crimes. Beattie, “The Criminality of Women,” 10. In Canada, this reform occurred under 3 Will. IV c.3 (1833), ibid. In 1841, the scope of capital punishment was essentially limited to murder and treason, ibid.
150. See, generally, Strange, Carolyn, “Wounded Womanhood and Dead Men: Chivalry and the Trials of Clara Ford and Carrie Davis,” in Gender Conflicts: New Essays in Women's History, ed. Iacovetta, Franca and Valverde, Mariana (Toronto: University of Toronto, 1992), 176. For discussion of gender and pardons, see Beattie, “Criminality of Women,” 436–38 (seventy-five percent of women were pardoned); Philips, “Crime and Authority,” 257.
151. For comparison, see, for example, Jarvis, “Mid-Victorian Toronto,” 134 (seven cases in 1860s Toronto); and Malcolmson, Infanticide, 191–92 (sixty-one cases tried in 1730–1774 London).
152. See Greenwood and Boissery, Uncertain Justice, 17 and n.15 (during the half-century after 1812, female convictions in Montreal constituted approximately 5.4% of all convictions); Lachance, “Women and Crime,” 158 (fifteen percent of crimes were committed by women after the mid-nineteenth century); see also King, Crime, Justice and Discretion, 283. Recent historiography has begun focusing on women as offenders rather than as victims. See, for example, Pearson, Patricia, When She Was Bad: Violent Women and The Myth of Innocence (Toronto: Viking Press, 1997).
153. See, for example, Greenwood and Boissery, Uncertain Justice,18; King, Crime, Justice and Discretion; Jones, Ann, Women Who Kill (New York: Fawcett Columbine, 1980), xv–xvi. There is evidence that most homicide trials involving women implicated the killing of children rather than husbands or lovers. See, for example, Emmerichs, “Trials of Women,” 99. In Canada in 2001, whereas most child homicides were committed by fathers and stepfathers, biological mothers were more likely to murder children aged 3 years or less. Family Violence in Canada: A Statistical Profile 2001 (Ottawa: Statistics Canada, 2001) 16.
154. Compare Donovan, “Infanticide,” 169, n.11 (5.5% of defendants were men in France during the period from 1826 to 1913); Hoffer and Hull, Murdering Mothers, 98 (ninety percent of infanticide defendants were women); Malcolmson, “Infanticide,” 192; and Lachance, “Women and Crime,” 159. Three putative defendants were never identified and as such they are not counted.
155. See, generally, Osborne, “The Crime of Infanticide,” 56. See also Hoffer and Hull, Murdering Mothers, 98 (arguing that as women performed virtually all of the child care, “[w]hen they felt anger, the nearest object was not another adult but a child….It was in this sense inevitable that infanticide would be a woman's crime.”). That latter view suggests that infanticide was primarily a crime of passion rather than an act of desperation or a survival strategy, with which I disagree. For the view that it was a much more evenly balanced crime in terms of the gender of perpetrators; see, for example, Rapaport, “Mad Women,” 536 (nearly equal number of mothers and fathers who kill children under 5 years of age).
156. See, for example, Emmerichs, “Trials of Women,” 99 (a mistaken assumption that women in nineteenth-century England were most often charged with killing husbands or lovers, whereas they were most often arrested for murdering their children); Jones, Women Who Kill, xv–xvi (women usually killed intimates, including husbands, lovers, and children); Knelman, Twisting in the Wind, 145 (infanticide as the most common type of murder by women). Women were commonly implicated in cases involving assault, vagrancy, petty larceny, prostitution, and the like. See generally Fyson, Magistrates.
157. Compare, generally, Backhouse, “Desperate Women” (nineteenth-century Canada); Osborne, “The Crime of Infanticide” (ditto); Higginbotham, “Sin of the Age” (nineteenth-century England); Beattie, “Criminality,” 203 (ditto); and Philips, “Crime and Authority,” 261 (ditto). For a contemporary reference, see The Pilot, May 15, 1847 (“Of the many women tried at the recent assize circuits in England and Wales for the murder of their infant children, not one was convicted, although the evidence against several of them was indisputably clear.”). For a modern-day analogy, see Osborne, “The Crime of Infanticide,” 47 (arguing that the provisions of the Canadian Criminal Code reflect “reluctance to find the mother guilty of murder….”).
158. Compare Backhouse, “Desperate Women,” 456 n.26, 461–62, 465, 468 (in 1840 to 1900 Ontario, of twenty-seven murder cases, eighteen, or 66.6%, resulted in acquittals, six, or 22.2%, in convictions on lesser charge, two, or 7.4%, in convictions on initial charge; two out of six, or 33%, of manslaughter cases resulted in conviction; and 43% of concealment cases resulted in conviction, 46.7% in acquittals); Cliche, “L'infanticide,” 49 (one out of nineteen murder cases, or 5.2%, resulted in conviction; eleven out of eighteen concealment cases, or 61.1%, resulted in conviction; zero out of four infanticide cases resulted in conviction; and zero out of one manslaughter cases resulted in conviction); Higginbotham, “Sin of the Age,” 331 (68% conviction rate if charged with murder first; 73% for concealment only); Wright, “Unnatural Mothers,” 27 (two out of eleven murder cases, or 5.5%, resulted in acquittals, two resulted in conviction for infanticide, seven, or 15.7%, resulted in conviction for concealment); Conley, The Unwritten Law 110–111, 117 (62% of women charged with infanticide were convicted of concealment); and Philips, “Crime and Authority,” 261 (fifteen out of thirty-nine infanticide and concealment cases, or 38.5%, resulted in a guilty verdict).
159. Compare Higginbotham, “Sin of the Age,” 331.
160. See La Minerve, February 8, 1847 (no bill found on February 3, 1847 against Elizabeth Scott on charge of concealing the birth of her child). Compare Taylor, Crime, 118 (in the context of seventeenth- and eighteenth-century England, twenty-seven percent of infanticide indictments were ignored).
161. BAnQ-M, KB(F), Domina Regina v. Françoise Coullard dit Lestrase (sic) (November 15, 1840) (affidavit of Margaret Doré); ibid. (November 18, 1840) (arrest warrant); MG (Françoise Coullard dit Lestrase (sic) committed November 20, 1840 for infanticide). Doré's affidavit serves as an excellent example of the transcriptive/descriptive nature of many of these documents.
162. BAnQ-M, KB(F), Domina Regina v. Françoise Coullard (November 20, 1840) (voluntary examination); The Montreal Gazette (December 1, 1840) (no bill); BAnQ-M, MG, note 161 above (including notation of her discharge on December 6, 1840).
163. Compare Emmerichs, “Trials of Women,” 105 (in England in 1860, eighty-one women were charged with infanticide but 126 dead infants were found); Jarvis, ‘Mid-Victorian Toronto,” 134 (in Toronto in the 1860s, seven women were charged but fifty to sixty infants were found).
164. BAnQ-M, KB(F), Domina Regina v. Geneviève Clouthier (December 29, 1840) (affidavit of Joseph Desjardins and Rosalie Leroux); ibid, (affidavit of Noel Clouthier).
165. BAnQ-M, KB(F), Domina Regina v. Geneviève Clouthier (December 25, 1840) (name of deponent illegible) (author's translation); KB(R), 29, Queen v. Geneviève Clouthier (March 3, 1841) (true bill); KB(R), 32, ibid. (March 5, 1841) (defendant defaulted and process issued). See also The Montreal Gazette, March 4, 1841; The Montreal Herald, March 8, 1841.
166. See, generally, Galley, “I Did It To Hide My Shame,” 51.
167. The Canadian Courant, April 17, 1830 (case of Elizabeth McQuillon). See also The Montreal Gazette, April 19, 1830.
168. The Canadian Courant, April 21, 1830.
169. The Pilot, June 9, 1846 (citing The Times). See also L'Aurore, June 10, 1846.
170. The Pilot, July 2, 1846 (citing The Montreal Herald). For discussion of the Grey Nuns (or “Soeurs Grises”), see, generally, Gossage, “Abandoned Children,” 14.
171. BAnQ-M, MG (Marie Carmel committed June 29, 1846 for “throwing her child into the privy.”); The Montreal Gazette, August 7, 1846 (“true bill Marie Carmel for attempting to murder her child.”).
172. The Montreal Transcript, February 23, 1847. Presumably this means they verified that she had recently given birth.
173. See, generally, Taylor, Manual, 115; King, Crime, Justice and Discretion, 225–26. This distrust also extended to cases implicating child abuse and domestic violence prosecutions. See, generally, Ian C. Pilarczyk, Justice in the Premises: Family Violence and the Law in Montreal, 1825–1850 (DCL thesis, McGill University, 2003). Confessions that were induced, prompted, or coerced by police or other agents were thrown out. Monholland, “Infanticide,” 138–43; but also see Galley, “I Did It to Hide my Shame,” 54–55 (confessions to the crime of infanticide guaranteed conviction). During this period, several Montreal defendants first confessed but pled not guilty at trial and were acquitted. If those defendants are representative, then confessions did little to increase the chance of conviction. Judges generally erred on the side of exclusion rather than risk admitting a confession that was induced by promises of leniency, a practice that had its critics. See, for example, The Times and Daily Commercial Advertiser, February 2, 1844 (condemning the practice of suppressing confessions, even those made by defendants “in the confusion of guilt or in the despair of concealment.”). Guilty pleas to capital felonies were likewise discouraged as being inimical to justice. Wiener, “Judges v. Jurors,” 473, n.15 (murder trials).
174. The Montreal Transcript, February 23, 1847; see also La Minerve, February 11, 1847. Her trial appeared to have received short thrift in the local press. Her case is recorded in BAnQ-M, KB(R) (August 1846–August 1849), 112–13, Queen v. Marie Carmel (February 11, 1847) (trial and verdict); MG (Carmel discharged February 11, 1847).
175. Compare Backhouse, “Desperate Women,” 468; and Higginbotham, “Sin of the Age,” 327. But see also Cliche, “L'infanticide,” 49, Table III (nineteen murder, eighteen concealment, four infanticide, and one manslaughter charges brought in Quebec City during 1812 to 1892).
176. Compare Higginbotham, “Sin of the Age,” 331.
177. Compare Emmerichs, “Trials of Women,” 108, who has opined that the charge of concealment “by the middle of the nineteenth century represents…the kind of ‘pious perjury’ so common in English law, used to prevent the capital punishment of offenders for whom the courts had some sympathy.” Emmerichs went on to note that most of the women in England charged with concealment after 1862 were young, unmarried domestic servants; faced with loss of their livelihood it was likely that many did actually murder their infants, ibid. See also Backhouse, “Desperate Women,” 467–68; Higginbotham, “Sin of the Age,” 328.
178. The Montreal Gazette, September 6, 1834; The Montreal Herald for the Country, September 8, 1834 (not guilty plea).
179. BAnQ-M, KB(R), 15–17, Dominus Rex v. Jane Hughes (September 9, 1834) (trial and verdict); KB(R), 92, ibid. (September 10, 1834) (sentence). See also The Vindicator, September 12, 1834; The Montreal Gazette, September 11, 1834. The latter newspaper described concealment as a “minor offense.” For her pardon, see N.A.C., AP, vol. 19, 7884–86, “The Attorney General's Draught of pardon in favour of Jane Hughes” (December 18, 1834). The language of the pardon reflects the ritualized aspects of the law: the attorney general on behalf of the Crown exercised his “Grace and mercy” and with their “special Grace, certain knowledge and mere motion” did “pardon, remit and release” Hughes from her sentence.
180. BAnQ-M, KB(R), 8, Queen v. Anastasie Lepine dit Chevaudier (November 5, 1840) (true bill); KB(R), 24–35, ibid. (November 10, 1840) (trial and verdict); and KB(R), 14, ibid. (December 5, 1840) (sentence). See also The Montreal Gazette, November 10, 1840; and The Montreal Herald, November 12, 1840 (noting her conviction and stating that the “facts which we cannot lay before our readers were such as to excite a great interest in the fate of the prisoner.”). Such societal conventions frustrate the efforts of the historian in reclaiming these stories.
181. BAnQ-M, KB(R), 67, Queen v. Bridget Cloone (February 14, 1846) (author's translation). See also La Minerve, February 16, 1846. The eleven convictions in Quebec City resulted in the following sentences: (1) 2 years hard labor; (1) 1 year hard labor; (2) 1 year in prison; (1) 6 months hard labor; (3) 6 months in prison; (1) 4 months in prison; (1) 2 months in prison; and (1) 6 weeks in prison. See Cliche, “L'infanticide,” 49.
182. BAnQ-M, KB(F), Queen v. Sarah Thomas (July 7, 1843).
183. Ibid. An improbably named male relative, Thomas Thomas, was implicated in the case but there were no legal grounds to charge him as an accessory.
184. Compare Cliche, “L'infanticide,” 50–51; Sauer, “Infanticide and Abortion,” 82.
185. Compare Donovan, “Infanticide,” 162.
186. See footnotes 207–10 and accompanying text (case of Susan Pengelly). Five pairs of twins were alleged within those court documents, but only two pairs of twins appeared in trial evidence. Perhaps in the other cases, one of the siblings was deemed to have died a natural death. For comparable observations about other jurisdictions, see, for example, Backhouse, “Desperate Women,” 448, 457 (nineteenth-century Canada); Higginbotham, “Sin of the Age,” 321 (nineteenth-century London); Malcolmson, “Infanticide,” 192 (eighteenth-century England); Monholland, “Infanticide,” 68 (nineteenth-century England); and Philips, “Crime and Authority,” 261 (ditto).
187. See Table II at 602, above. See also Backhouse, “Desperate Women,” 450, n.12 (noting no significant difference between murder rates of male versus female infants); Malcolmson, “Infanticide,” 124 (noting that in English infanticides “the circumstances of the mother provided the rationale for infanticide, not the sex of her infant”). Contemporary experience follows the same pattern. See Crime in the United States, 2001 (Washington: Federal Bureau of Investigation, United States Department of Justice, 2002) (stating that of 220 infanticide cases in 2001, 126 were male infants, 92 were female, and 1 was unidentified). But also see, generally, Langer, “Infanticide,” 47, for the view that female infants were historically the most likely to be murdered; see also Radbill, Samuel X., “Children in a World of Violence: A History of Child Abuse,” in The Battered Child, ed. Helfer, Ray E. and Kempe, Ruth S. (Chicago: University of Chicago Press, 1987), 6.
188. See Table II at 602. See also Higginbotham, “Sin of the Age,” 324; Malcolmson, “Infanticide, ”192; and Rose, Massacre of the Innocents, 7. That fact holds true, as pointed out by Rose, ibid., 1. See also Family Violence in Canada, 18.
189. See footnotes 134–46 above and accompanying text (case of Betsey Williams) and footnotes 186 and 207–10 above and accompanying text (case of Susan Pengelly). No children were older than 1 year of age, reflecting the fact that their deaths would have been covered under the law governing homicide. Likewise, no fetal deaths were identified. As discussed, an infant had to be fully born of the mother to constitute a life-in-being.
190. Compare Higginbotham, “Sin of the Age,” 321; Malcolmson, “Infanticide,” 192; and Monholland, “Infanticide,” 64–67. That remains true today. See, for example, Piers, Maria W., Infanticide (New York: W.W. Norton & Company, 1978) 514–15.
191. Compare Cliche, “L'infanticide,” 40; and Higginbotham,. “Sin of the Age,” 326. For accounts of women who died during childbirth rather than disclose their condition to family, see Galley, “I Did It To Hide My Shame,” 32–33.
192. See, generally, Cliche, “L'infanticide,” 39–41 (parental reproach as a factor leading to infanticide); Higginbotham, “Sin of the Age,” 321–22; and Sauer, “Infanticide and Abortion,” 84.
193. See Gilje, “Infant Abandonment,” 583 (noting the traditional view was that those mothers were trying to save their reputations, but arguing that poverty was probably a more likely trigger). See also Sauer, “Infanticide and Abortion,” 85.
194. The Montreal Transcript (August 7, 1847). For discussion of Sally Ann Armstrong's case, see footnotes 212–14 below and accompanying text.
195. Sauer has noted that “[i]llegitimacy occurred predominantly in lower social groups where sanitary standards were low and mothers were least aware of proper techniques of child care.” Sauer, “Infanticide and Abortion,” 87. For the (I believe unconvincing) view of these women as “revolutionaries” and “rebels” who were driven to protest a lack of birth control or assert control over their sexuality, see Backhouse, “Desperate Women,” 477; and Jones, Women Who Kill, 49.
196. See, generally, Gillis, John R., “Servants, Sexual Relations and the Risks of Illegitimacy in London, 1801–1900,” in Sex and Class in Women's History, ed. Newton, Judith L. et al. (London: Routledge and Kegan Paul, 1983), 115; and Lacelle, Claudette, Urban Domestic Servants in Nineteenth Century Canada (Ottawa: Environment Canada, 1987), 59. For discussion of the legal response to seduction of domestics in Upper Canada, see, generally, Bailey, “Servant Girls,” 159.
197. Lachance, “Women and Crime,” 160–162, discusses four cases of women charged with this crime in eighteenth-century Canada, two of whom were maids. For similar experiences, see, for example, Backhouse, “Desperate Women,” 457; Cliche, “L'infanticide,” 38; Donovan, “Infanticide,” 169; Krueger, “Literary Defenses,” 285; Langer, “Infanticide,” 357; Malcolmson, “Infanticide,” 192; Monholland, “Infanticide,” 85; and Rose, Massacre of the Innocents, 18.
198. See, generally, Wheeler, “Infanticide,” 412.
199. See Rose, Massacre of the Innocents,” 19. Most domestics in Montreal during this period were young, unmarried Irish Catholics. Cross, Neglected Majority, 68–73 (general discussion of Montreal domestics). One scholar has intriguingly suggested that women of respectable backgrounds may have identified themselves as domestics as a means of camouflage. See ibid., 18.
200. BAnQ-M, KB(F), Queen v. Zoe Laurin/Lorrain (May 31, 1840) (affidavit of Louis Pontus dit Claremont (sic)). The deponent described hearing her use the chamber pot in the middle of the night and finding a “new born female infant with the afterbirth attached” at 4:30 a.m. the following morning. He had earlier accused her of being pregnant, which she had denied. He went on to state that “[t]he deponent and his wife reproached her for having concealed and brought to such a termination the infant,” in response to which she “looked in the bucket but did not speak.” On Monday afternoon he carried the infant “to Thomson Clements the Beadle in a coffin of wallnut (sic) wood” and asserted that Laurin “is now in bed and appeared unwell.” Similar observations about recklessness were made by Higginbotham, “Sin of the Age,” 326.
201. BAnQ-M, KB(F), Queen v. Zoe Laurin (August 29, 1840); KB(R), 29, Queen v. Zoe Lorrain (August 29, 1840).
202. Compare note 181 at 43 above and accompanying text (case of Bridget Cloone) and footnotes 223–24 below and accompanying text (case of Catherine Whelan).
203. See, for example, Higginbotham, “Sin of the Age,” 326; and Monholland, “Infanticide,” 125–26.
204. The theme of a woman mistaking labor pains for a bowel movement or cramps was a commonly accepted defense, probably reflecting a general lack of knowledge of pregnancy among many unmarried women. See, generally, Krueger, “Literary Defenses,” 285–86 (also noting that accidental death by drowning was a common defense); Rose, Massacre of the Innocents, 73; Wright, “Unnatural Mothers,” 13. For a reference in Victorian medical jurisprudence, see Boys, Treatise, 54 (the “pains of labour may be mistaken for other sensations, and the child in consequence be born under circumstances which would inevitably cause its loss without any blame attaching to the mother.”).
205. The Montreal Transcript, August 7, 1847. For the view that townsfolk played a prominent part in ferreting out murders of illegitimate newborns, see Wheeler, “Infanticide,” 408.
206. See, generally, Sauer, “Infanticide and Abortion,” 81; see also, generally, Hansen, Elizabeth de G.R., “Overlaying in Nineteenth-Century England: Infant Mortality or Infanticide?” Human Ecology 7 (1979): 333–43. For a reference to this practice, see The Pilot, September 1, 1846 and The Montreal Weekly Pilot, September 1, 1846: “DEATH OF AN INFANT FROM SUFFOCATION––On Thursday, an inquest was held upon the body of an infant, ten months old….It appears that the infant, while sleeping with its mother slipped between the bed and wall, which produced suffocation. A verdict was accordingly returned.” Other common forms of natal care, such as administering narcotic-based soporifics, could also be dangerous. See The Pilot, March 11, 1845 (cautioning parents against that practice).
207. The Montreal Gazette, March 21, 1840. For a similar case in Ontario, see Backhouse, “Desperate Women,” 464–65, n. 51.
208. This fact pattern more closely mirrors a number of high-profile modern child murders; see, generally, Rapaport, “Mad Women.”
209. Ibid. As Monholland noted, children were commonly accepted as witnesses in mid-nineteenth century England and elsewhere. Monholland, “Infanticide,” 179–81. For the period under examination, evidence of that practice in Montreal sources is mixed. In the case of Susan Pengelly, the testimony of her family clearly helped her case. Compare Monholland, 169, noting that “in virtually every case wherein a defendant's family member testified, those comments about a defendant were derogatory, negative, and hurtful to that case.”
210. BAnQ-M, KB(R), 79–80, Queen v. Susannah Pengelly (March 7, 1840).
211. See, generally, Wheeler, “Infanticide,” 413. Hoffer likewise made the observation that the most frequent abettor in those rare cases involving accessories was the defendant's mother. Hoffer and Hull, Murdering Mothers, 103.
212. The Montreal Gazette, August 14, 1847.
213. Or, as the physician put it, from “want of care.” The Montreal Transcript, August 7, 1847. This claim corroborates the view that infanticide was not infrequently a passive act.
214. For her concealment conviction, see BAnQ-M, KB(R) (August 1846–August 1847), 151–52, Queen v. Sally Anne Armstrong (August 3, 1847); La Minerve, August 5, 1847. For her sentence, see BAnQ-M, MG (Armstrong committed February 9, 1847, convicted August 14 and sentenced to 6 months’ imprisonment; discharged on February 14, 1848); BAnQ-M, KB(R) (August 1846–August 1847), 195, Queen v. Sally Anne Armstrong (August 14, 1847); see also The Montreal Transcript, August 17, 1847; La Minerve, August 16, 1847. More than a year had elapsed from the time of her incarceration to her discharge.
215. Hoffer and Hull have pointed out that fathers were sometimes charged in concealment prosecutions but rarely convicted. Co-defendants tended to be related. See Hoffer and Hull, Murdering Mothers, 103.
216. BAnQ-M, KB(F), Queen v. Eleanor Chance & Stanislas Forgette (March 1, 1843) (affidavit of Dominique Joanette) (author's translation).
217. BAnQ-M, KB(F), Queen v. Eleanor Chance & Stanislas Forgette (March 1, 1843) (affidavit of Félicité Monette).
218. BAnQ-M, KB(F), Queen v. Eleanor Chance & Stanislas Forgette (March 5, 1843) (voluntary examination of Eleanor Chance).
219. BAnQ-M, KB(F), Queen v. Eleanor Chance & Stanislas Forgette (March 3, 1843) (voluntary examination of Stanislas Forgette). One might wonder why the couple did not show authorities the burial site, unless the body would have been incriminating. It is also interesting that this is the only instance in which burial in consecrated ground was alleged.
220. The Times and Commercial Advertiser, September 9, 1843. See also The Montreal Transcript, September 8, 1843.
221. See L'Aurore, September 8, 1848 and La Minerve, September 7, 1848 (author's translation): “INFANTICIDE––The named Louis Legault and Elmire Legault his niece…were arrested Tuesday and brought to the police station on accusation of having maintained an illicit relationship together and having hidden the births of two children who were buried in the cellar. Information having been given to Mr. Coursol the Coroner by the brother of the girl…the cellar was excavated but without result. It appears that he has since avowed that the bodies were exhumed from the cellar and interred in a field, but after a new search conducted by the Coroner, it was impossible to find them. As a result of the testimony and several confessions made by the prisoners they were both sent to prison.” For a similar account, see The Pilot, September 7, 1848 (citing The Montreal Herald). Note the reference to the defendant having confessed, and the role of the woman's brother in providing evidence. Incest per se was not a legally cognizable offense during this period. See generally Pilarczyk, Ian C., “‘To Shudder at the Bare Recital of Those Acts’: Child Abuse, Family, and Montreal Courts in the Early-Nineteenth-Century,” publication forthcoming in Essays in the History of Canadian Law: Old Quebec and the Canadas, ed. Baker, G. Blaine and Fyson, Donald (University of Toronto Press, for the Osgoode Society for Canadian Legal History, Toronto, 2013).
222. BAnQ-M, KB(R), 321, Queen v. Louis Legault otherwise called Desloriers (sic) & Elmire Legault otherwise called Desloriers (sic) (February 6, 1849) (no bill for murder); KB(R), 322, ibid. (February 6, 1849) (no bill for manslaughter); KB(R), 323, ibid. (February 9, 1849) (no bill for concealment).
223. The Montreal Gazette, February 7, 1848 (case of Catherine Whelan and Peter Brennan). See also BAnQ-M, KB(R) (August 1846–August 1849), 219–20, Queen v. Catherine Whelan & Peter Brennan (trial for murder); KB(R), 220–21, ibid. (trial for manslaughter). The phrase “moral criminality” is another example of the commonly perceived intersection between crime and morality.
224. It was reported that the jury “did not consider the evidence conclusive.” Ibid. For a discussion of the inappropriateness of manslaughter charges, see Backhouse, “Desperate Women,” 466–467.
225. In the context of eighteenth century England, Hay observed that the law's “very inefficiency, its absurd formalism, was part of its strength as ideology.” Hay, Property, 33.
226. BAnQ-M, QS(F), Dominus Rex v. Mary Pollard (26 December 1834) (charge of misdemeanor). The charge made on the document also was described as “abandonment” as well as “misdemeanor.”
227. Abandonment was not a statutory offense in British North America until 1864, when the New Brunswick legislature was the first to promulgate such legislation; it became a federal offense in 1869. Backhouse, “Desperate Women,” 472. It became law in England in 1861 with 24 & 25 Vict. C. 100, s. 27 (1861) (providing a maximum sentence of three years’ imprisonment upon conviction of concealment). The majority of cases would have been inimical to prosecution given the difficulty of identifying a putative defendant. Abandonment as a “crime,” however, was tracked even though not prosecutable. See for example, The Pilot, January 10, 1849 (listing crime figures for 1848 which included two cases of child abandonment; the ages of the children were not identified).
228. BAnQ-M, KB(F), Domina Regina v. Ann Armstrong (2 February 1847); BAnQ-M, MG (Ann Armstrong committed on 27 January 1847; discharged 3 February 1847); KB(R), 83, Queen v. Sally Anne Armstrong & Anne Armstrong (3 February 1847). Nineteenth century Canadian indictments and charges were often fluid, and did not always correlate neatly to common law or statutory offenses. See generally Pilarczyk, “Justice” (indictments for offenses related to family violence were often more descriptive than legally accurate); Ian C. Pilarczyk, “‘Too Well Used by His Master’: Judicial Enforcement of Servants’ Rights in Montreal, 1830–1845, 46 McGill Law Journal (2001): 491–529 and “The Law of Servants and the Servants of Law: Enforcing Masters’ Rights in Montreal, 1830–1845,” 46 McGill Law Journal (2001): 779–836 (illustrating the descriptive and flexible nature of charges related to labor infractions during this period); Poutanen, ‘The Homeless” (fluidity in charges related to vagrancy); Fyson, Magistrates, 211–212 (describing range of offenses and difficulties in categorization by scholars). In some instances, cases were filed under various charges. See e.g., Dominus Rex v. Mary Pollard, above at footnote 226 and accompanying text. The provinces of New Brunswick and Nova Scotia amended their statutes to allow for charging persons other than the mother in 1849 and 1851, respectively, while England did so in 1861 and Canada in 1869. Backhouse, “Desperate Women,” 455.
229. See footnotes 134–46 above and accompanying text (case of Betsey Williams) footnotes 175–85 above and accompanying text (concealment prosecutions).
230. That was a common occurrence in successful prosecutions for infanticide. Compare Osborne, “Crime of Infanticide,” 51; Phillips, “Pardon,” 438.
231. One may well ask if her background influenced the manner in which she understood or reacted to the proceedings against her. Compare Backhouse, “Desperate Women,” 112–124 (discussing a First Nations defendant convicted of infanticide in Upper Canada in 1817); Wright, “Unnatural Mothers,” 25 (1862 Nova Scotia case in which race may have been a factor leading to conviction); but see Beattie, “Attitudes,” 57 (citing period article claiming that “Indians and Negroes” were treated more leniently than whites in criminal proceedings).
232. See pp. 620–21, 623, and 625 above.
233. For imprisonment as a survival strategy, see for example, Mary Anne Poutanen, “Reflections of Montreal Prostitution in the Records of the Lower Courts, 1810–1842,” in Class, Gender and the Law: Papers of the Montreal History Group, 218; Poutanen, “The Homeless,” 41–43 (imprisonment of female vagrants); generally Jim Phillips, ‘Poverty, Unemployment, and the Administration of the Criminal Law: Vagrancy Laws in Halifax, 1864–1890” in Girard, Philip and Phillips, Jim, eds., Essays in the History of Canadian Law, vol. 3 (Toronto: University of Toronto Press, 1990) 134. For a description of Montreal prison conditions, see Poutanen, “Images du danger,” 402 n.86.
234. See footnotes 178–80 above and accompanying text (cases of Anastasie Lepine dit Chevaudier and Jane Hughes).
235. See generally Backhouse, “Desperate Women,” 447; Osborne, “Crime of Infanticide,” 52; Rose, “Massacre of the Innocents,” 5.
236. Compare Donovan, “Infanticide,” 169; Galley, “I Did It to Hide My Shame,” 81–85; Knelman, Twisting in the Wind, 151; Sauer, “Infanticide and Abortion,” 83. That view was to survive well past the nineteenth century. For example, the 1922 English infanticide law declared all women potentially insane for the first few months after childbirth. See generally Higginbotham, “Sin of the Age,” 337. Similarly, the present Criminal Code provision concerning infanticide reads: “A female person commits infanticide when by a willful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent upon the birth of the child her mind is then disturbed.” R.S.C. 1985, C-46, s. 233. Contemporary commentators have noted that today we retain a dichotomous view of these women as either “mad or bad.” See generally Rapaport, Mad Women; Ania Wilczynski, “Images of Women Who Kill Their Infants: The Mad and the Bad,” 2 Women and Criminal Justice (1991): 71–88.
237. See generally Backhouse, “Desperate Women,” 462; Donovan, “Infanticide,” 169 & 173; Langer, “Infanticide,” 360; Rose, “Massacre of the Innocents,” 74.
238. L'Aurore (June 10, 1846) (author's translation). The language used is clearly not sympathetic to Carmel, making it even more striking that the editor acknowledges the central role played by men in these crimes.
239. See, for example, Osborne, “Crime of Infanticide,” 53; Beattie, “Attitudes,” 9 (detailing Upper Canadian experience of victims refusing to prosecute and juries refusing to convict).
240. Galley, “I Did It To Hide My Shame,” 13.
241. Compare Donovan, “Infanticide,” 169. Donovan also suggests that violent crimes committed by women were generally not deemed as compelling as those committed by men. Ibid. at 170.
242. Compare Gillis, “Servants,” 463; Osborne, “Crime of Infanticide,” 52. Cliche, “L'infanticide,” 48, points out that these were seen as less dangerous than other violent crimes and that the mothers were more to be pitied than condemned.
243. See Beattie, “Attitudes,” 2 (discussing the perceived correlation between crime and morality in the nineteenth century). This was even more heightened when the offenses implicated the complex issues of sexuality that surrounded infanticide.
244. Hoffer & Hull, Murdering Mothers, 79, have pointed out that the mercy shown defendants in eighteenth century English infanticide trials “perhaps reflected a sense of the diminished threat of crimes like infanticide to the social order.” For the view that infant deaths did not threaten bloodlines or inheritances, see generally Backhouse, “Desperate Women,” 477–478.
245. Compare Donovan, “Infanticide,” 163.
246. See generally Backhouse, “Desperate Women,” 463; Sauer, “Infanticide and Abortion,” 82–83.
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