Criminal Historian

Working with dead people

Category: legislation

Plagium: how stealing a child in Victorian Scotland was punished

from the Morning Chronicle, 3 August 1855

In 1855, the Morning Chronicle in London published a list of capital punishments in Scotland (see above). The English media often covered Scottish affairs in a similar way to how it would publish stories about mainland Europe – highlighting its difference and ‘foreignness’ rather than claiming common ground with it.

So here, the list of Scottish capital crimes included several ones specific to Scottish law, with the speechmarks round them emphasising their ‘un-English’ nature. So we have hamesucken – a felony relating to a premediated assault, whereby a person was attacked in his own home – for example, and notour adultery.

Notour adultery, as opposed to the other offence of simple adultery, was, according to Henry Tebbs’ Essay on the Scripture Doctrines of Adultery and Divorce and on the Criminal Character and Punishment of Adultery (1821) , ‘the conduct of open and incorrigible adulterers, unreformed by the censures of the church, where they keep company publicly together, and procreate issue’ – in other words, adultery that resulted in the birth of children.

Stouthrief, also mentioned in the article, was a form of theft committed by force – so where a person was threatened with violence, or had violence committed against him, during a housebreaking.

Whereas hamesucken was where assault was the primary motive for a housebreaking, stouthrief suggested that the assault was incidental, or a secondary motivation, to the actual theft.

Furtum grave was an aggravated theft, deriving from the Latin ‘furtum’ (theft), where the amount of goods stolen might be particularly high.

The lack of understanding about Scots law was clear in the inclusion of ‘flagium’ as an offence; this was actually plagium, which was again a form of theft, but this time the theft of a person!

Detail from ‘French peasants finding their stolen child’ by P Calderon (Illustrated London News, 15 October 1859)

Akin to modern-day abduction, it commonly involved children, such as a case in 1844, when Helen Wade was charged with plagium at Glasgow when she ‘did, wickedly and feloniously, steal and theftuously carry away’ three-year-old Catherine Hamilton.

Catherine, an illegitimate child, had been living with her mother (although possibly another relative), hand-loom weaver Betty Hamilton, renting rooms with Helen Fleming on the Main Street of Camlachie; she was snatched from that road on 5 April 1844.

The next day, Helen Wade inquired for a ticket to board a ship to Liverpool. Viewed with suspicion by the ticket agent, she was asked about the child with her, and ‘declared that the child was her own, and told a false story about its father’.

They were still given a ticket, though, and it was only in Liverpool that Catherine Hamilton was retrieved and returned to her mother in Scotland.

Helen Wade was found guilty of plagium, but it was noted that in several previous cases of its type, the death sentence had been commuted to transportation for life.

Helen’s case was considered not as serious as others, and this, plus the rarity of convictions for plagium by the 1840s, meant that this defendant was ‘lucky’ enough to receive seven years’ transportation instead (case reported in Archibald Broun, Reports of Cases before the High Court and Circuit Courts of Justiciary in Scotland during the years 1844 and 1845, vol 2 (T & T Clark, Edinburgh, 1846)).

The types of capital offence listed by the Morning Chronicle show the continuing importance placed on property by the law. Although this article tried to make Scots criminal law sound alien, it actually reflected concerns both in Scotland and the rest of Britain, about looking after one’s goods, one’s livelihoods – and one’s relatives, too.


NB: Sir George Mackenzie’s 1699 book, The Laws and Customs of Scotland in Matters Criminal, is a fascinating read if you’re interested in criminal offences in Scotland, and available for free on Google Books.

Wayward women and malleable morality in Victorian Cornwall

I’ve recently been looking at the criminal activities of Cornish women in the 19th century, placing their offences within their wider economic and social context. However, here, I thought I’d focus in on one particular Cornish family, to show how their offences and lives could be different from those of local men, and how these women were able to contribute to the household economy and form a financial coping strategy in times of economic need. Their lives were governed not by conventional morality (or concepts of what defined morality) but by a practicality and by close bonds with the other women in their families.

In March 1848, two women, 34-year-old Elizabeth Worsley and 47-year-old Eliza Harvey, were convicted at the Penzance Borough Sessions of keeping a bawdy house, and sentenced to three months each in prison. This was a fairly unusual offence to be charged with, judging from surviving criminal registers for Cornwall; women were more frequently convicted of in the 1840s of larceny, including larceny as a servant, a more serious offence whereby female servants stole from their masters or mistresses. But there was also an apparent monitoring of female sexuality in the mid 19th century, with women being deemed to be ‘common prostitutes’ for walking in public at night, or for having an illegitimate child.

380px-EN_BESKYTTERINDE_AF_INDUSTRIENElizabeth Worsley, one of the women charged, lived in the Penzance area all her life. She was born there in 1814, and died in the town in 1873. In 1851, the census listed her as the head of household at a house in Camberwell Street, Penzance, working as a boot binder, along with her sister, 29-year-old Mary Worsley. Also with them were Elizabeth’s two children – Charles F Worsley, aged 11, and daughter Wilmot Ann Worsley, 3, and Mary’s son, two year old Isaac. Elizabeth was clearly listed as single; her two children were illegitimate, and took her surname. Similarly, Mary’s son was also illegitimate. Also present at their house was Elizabeth’s ‘sweetheart’ – named as such in the census – Peter Knight, a 31-year-old mariner.

In 1861, Elizabeth was still working as a shoe or boot binder, but was now living at 31 Adelaide Street. Now aged 41, she was listed in the census as unmarried, but she was also stated to be the mother of Charles, a 21-year-old cordwainer, Amelia, 15, a servant, and Wilmot Ann, 12, a scholar. Two of Elizabeth’s other sisters were now living with her – a married sister, 42-year-old Ann Rowe, and a younger, single sister – Wilmot Worsley, after whom her niece was named. This younger sister also had an illegitimate child with her – Isaac Crow Worsley, aged 12. Neither sister had a job, and so Elizabeth and her two older children were responsible for maintaining this extended family.

Elizabeth – still single – and her son, Charles, were in 1871 living with her ‘daughter in law’ Amelia, 24 (presumably the same Amelia who was stated to be Elizabeth’s daughter ten years earlier; see note at end). Also living with them was Elizabeth’s nephew Isaac, by now a 22 year old labourer. Charles had followed his mother’s occupation, and was now a shoemaker.

So we have here a woman who never married, but who had and raised children on her own, maintaining an extended family through her work. She may well have supplemented her boot-binding income with sex work, as the bawdy house conviction suggests; was the ‘sweetheart’ named in the earliest census one of her clients? But she lived in close confines with this extended family, and it seems unlikely that if she had sex for money she did so on a formal basis, from her own home. It seems more likely that when times were hard, she may have tried to get money where she could, on a more ad hoc, disorganised basis, until things got better.

Christian_Krogh-Albertine_i_politilægens_venteværelseWhat does seem apparent is that this was a matriarchal set-up, where marriage was neither sought nor thought about. Elizabeth’s own illegitimate daughter Wilmot Ann, born in 1849, followed her mother’s example. She died in 1928 in Penzance, still unmarried, but this does not mean she did not have relationships. In 1881, she was the head of household in a house in Friggens Court, off Market Street, working as a seamstress. She was working to support not only herself, but her 10-year-old illegitimate son, Charles. Charles was actually her second illegitimate child; the first, Mary, baptised in 1868, seems to have died young.

Wilmot only had one recorded appearance before the magistrates – in August 1881, she appeared at the Penzance Petty Sessions, charged with disobeying a school attendance order – she had not been making Charles go to school. She was fined 2s 6d for the offence. At the same time, two of her relatives similarly appeared; William Worsley for not ensuring that his children regularly attended St Paul’s School, and was fined the same as Wilmot. Then Amelia Worsley was summoned for not sending her daughter to school, but she claimed her child was ill, and produced a doctor’s certificate (The Cornishman, 11 August 1881).

It was noted that she did not send her children to school regularly – and in fact, four months earlier, Amelia Worsley had been before the magistrates for the same reason, both her son and daughter having failed to attend school. In that case, Amelia had argued that her son ‘had been frightened by a dog’ and her daughter was ill; but she was censured for not having got a medical certificate to that effect (The Cornishman, 17 February 1881). In this case, too, the children appear to have been Amelia’s illegitimate son and daughter.

This was the same situation ten years later; Wilmot was now working as a charwoman, living in a different, but still poor part of the town, her income now supplemented by Charles’s work as a driver. Wilmot then moved to a two-room house at 7 Summer Court, New Street, where she remained for at least ten years. She continued to work as a char, and clearly signed her name as ‘Mrs Wilmot Worsley’, despite not marrying, and the use of ‘Mrs’ to denote a female whether married or single having become obsolete.

These children’s illegitimate status seems to have been overlooked or tolerated within their local community, and all of them were baptised within the Church of England (in Wilmot’s and Amelia’s cases, Elizabeth was recorded as her father in the records, with a Mary Worsley listed as mother). There is no record online that their baptisms had the common annotation ‘base born’ or ‘illegitimate’ next to them.

Elizabeth freely declared that she was a single woman, as did Wilmot, although she used the title ‘Mrs’. Amelia, in 1901, was listed as a widow in the census, when she was working as an office caretaker and living on her own – but she was similarly listed as a widow in 1891, and in 1881, when she was working as a laundress and living with her children Mary, 10, Charles, 7 – and an 11 month old child, William. And as mentioned previously, in the 1871 census, she listed herself as ‘wife of John Worsley’, but there was no John living at the address, and no record of any Cornish marriage between a John Worsley and Amelia.*

Were the Worsleys simply one family who refused to live by the conventions of Victorian morality, or were they representative of their community? The apparent acceptance of their lifestyles in their local area, their openness in recording their status and that of their children, and the many cases involving ‘immoral’ behaviour and prostitution by women in Cornwall during the 19th century suggests that female sexual behaviour was not perceived by these women as anything to be embarrassed about – even if the authorities sporadically attempted to punish them for it.


* There is one marriage between John Worsley and, possibly, an Amelia Hardy in 1870, but this took place in Manchester, and there is no evidence that the Worsleys ever moved outside of Penzance. In addition, as Amelia is clearly Elizabeth’s daughter in the 1861 census, and has Elizabeth’s family with her in 1871, it seems unlikely that she was a daughter-in-law with the maiden name of Hardy, rather than a Worsley by birth. There is also no record of Elizabeth Worsley having a son named John (one John Worsley baptised in 1852 in Penzance was the son of Mary and John Worsley). However, a John Worsley, aged 49, did die in Penzance in 1878, so I cannot be 100% sure that Amelia wasn’t telling the truth.

Gleaning, poor women, and the law

"Gleaning" by Arthur Hughes

“Gleaning” by Arthur Hughes

Gleaning was a right of the poor up to the late 18th century, under common law. After a farmer had harvested his crops, local people could gather any leftovers, providing a useful supplement to a family’s income or providing additional food.

As the local poor had the right to glean, it being a long established practice, Richard Burn made no mention of it in his legal handbook The Justice of the Peace, and Parish Officer.

It was so accepted that in villages, a church bell might be rung each day to signal the time period in which the gleaners could operate.

In a society where common pasture and fields were being steadily enclosed, restricting the land that labouring people could use to keep animals or grow their own small crops, gleaning was a much needed source of income.

This much needed right was substantially eroded in 1788, when the case of Steel versus Houghton was determined in the House of Lords. The case centred around a Suffolk woman, Mary Houghton, who was sued for trespass by a local landowner, James Steel, after she gleaned on his farmland. However, the case had followed increasing tension between landowners and farmers and the local labouring population in East Anglia.

The case’s verdict stated that gleaning was not a right of the poor, but a privilege – and so to glean was to trespass on another’s land. Lord Loughborough, who gave the judgement, argued that charitable acts by individual landowners should not be seen as legal obligations, and that the creation of any such obligation would make the poor more ‘insolent’.

In such a way did the gleaning case mark the gradual change in attitude toward the poor that occurred in the late eighteenth and early nineteenth centuries, prior to the creation of the 1834 New Poor Law.

Yet gleaning did not die out altogether as a result of the 1788 case. The following year, in Northamptonshire, Mary Tebbutt, a married woman, appeared before local magistrate George Spencer – the 2nd Earl Spencer – to complain that another woman, Elizabeth Loucke, had taken some gleanings off her. Mary had been gleaning in a field belonging to local farmer George Buttons, when Elizabeth – believing she was entitled to glean in the field but Mary wasn’t – assaulted her and grabbed the gleanings.

Spencer was obviously aware of the 1788 precedent, and did not regard either woman as having the right to glean. Instead, he argued that George Buttons had the right to decide who – if anyone – could glean on his land, and that therefore, both women were wrong. He made them acknowledge this, and after they promised to behave better in the future, he dismissed them [1. The papers of the second Earl Spencer, British Library, Add MSS 76337-76340].

But even into the nineteenth century, in rural England, gleaning continued to be debated over in justicing rooms. Samuel Whitbread, dealing with cases in Bedfordshire, dealt with three cases – two in 1811 and one in 1813.

The first two cases again suggested some conflict between local people when it came to the individual’s rights to glean. In the first case, a local farmer came to Whitbread to get his advice on whether the local poor had the right to ‘glean on a farmer’s land without his leave’. Whitbread made clear that they did not. [2. Alan F Cirket (ed), Samuel Whitbread’s Notebooks (Bedford, 1971), 36]

In the second case, this time, a gleaner approached the magistrate. Elizabeth Kilby ‘complained of abuse in the field’ whilst she was gleaning, and Whitbread quickly dismissed the case. [3. Alan F Cirket, Samuel Whitbread’s Notebooks (Bedford, 1971), 44]. The final case, heard two years later, involved a Biggleswade woman, Ann Thomas, who complained that a local shoemaker, James Pope had not paid for her gleaning, owing her over three shillings. [4. Alan F Cirket, Samuel Whitbread’s Notebooks (Bedford, 1971), 89] This shows the value that gleaning had for poor people – often women.

Ann was reliant on selling her gleanings to improve her income, and the fact that she had visited Samuel Whitbread at Southill –  a four mile walk away – suggests that the owed money was an important part of this income. She got little satisfaction from the magistrate, though, with Whitbread simply referring her to the local constable for help.

These cases show the continued tension between landowners and the labouring poor after Steel v Houghton had been determined. The poorer members of rural societies clearly continued to glean, and to see gleaning as a valuable source of income and as their right. Conversely, landowners, encouraged by the 1788 case, believed that the poor no longer had such a right – but to ensure that they were within their right to stop them from gleaning, they would seek legal advice if necessary.

Long-established habits died hard, and gleaning took a while to die.

For more on gleaning and the Steel v Houghton case, see Peter King’s article, ‘Legal change, customary rights and social conflict in the late eighteenth century: the origins of the Great Gleaning Case of 1788’ (Law and History Review, 10:1, Spring 1992)

© 2018 Criminal Historian

Theme by Anders NorenUp ↑