Women's Crime and Criminal Administration in Pennsylvania, 1763-1790

NN WINTER appeared in court first in the December, 1764, term of Philadelphia County's court of quarter sessions charged Awith felonious theft; she suffered corporal punishment when a jury found against her. In 1770 and again in 1773, she appeared before Lancaster County's general sessions, in the first instance having a count of assault against her dismissed, in the second being convicted of stealing. Back in Philadelphia in September, 1777, she pleaded guilty to a third charge of theft and was sentenced to jail. In April 1779, before the mayor's court in Philadelphia and this time using the alias Mary Flood, Ann Winter was convicted of three counts of larceny and received thirty-nine lashes on her bare back for each conviction. She was by this time known as "a Notorious Thief." Records reveal she was also in "a forlorn condition," the mother of "two fatherless children," and again "big with child." Should she be released and her fine remitted, she promised authorities in November, 1779, they "should never after this time hear of the least blemish against her character As she intended retiring into the country to endeavour for an honest livelihood." Promises aside, Winter was again convicted of larceny in March, 1780, this time in oyer and terminer proceedings, and once more suffered corporal punishment and confinement. She was also judged guilty of larceny in the mayor's court in July, 1782, and in July, 1785, and pleaded guilty to still another charge of theft in April, 1784. She fared better in January, 1782, and in October, 1784, when juries in the mayor's court exonerated her of additional larceny

* The author wishes to acknowledge the assistance of his friend and colleague, John W. Fox, as well as financial help provided by the Philadelphia Center for Early American Studies, a National Endowment for the Humanities "Travel to Collections" grant, and the University of Northern Colorado's Research and Publications Board. 336 G. S. ROWE July charges, and in July, 1785, when a grand jury failed to bring in a bill against her for stealing. The veteran thief was summoned to court a final time in June, 1796, but the grand jury refused to indict. Though Ann Winter's criminal career was longer than most and her notoriety more pronounced, she was but one of hundreds of Penn- sylvania females accused of criminal behavior and brought before Pennsylvania's judicial authorities in the eighteenth century.1 The stories of these women and the chronicle of the legal mechanisms charged with punishing their crimes—crucial components of Pennsylvania's early social and legal history—have been ignored. This neglect is not unique to Pennsylvania. After surveying recent histo- riography, Douglas Greenberg lamented that, "we still know little ... about women and the criminal law in the colonies."2 By charting over time patterns of women's criminality in Pennsylvania, gauging the effectiveness of its law enforcement apparatus in dealing with alleged female criminal behavior, and identifying county variations in both, this study seeks to make a contribution to women's history and to the study of our early law.3 The few available studies on women's criminality in the eighteenth- century emphasize five factors in explaining crime rates and patterns: (1) economic deprivation; (2) female vulnerability and powerlessness (they concur that most female defendants were single, poor, and bound servants); (3) urban environment, where poverty was more pronounced and opportunities for theft more diverse; (4) shifts in social priorities; and (5) war and its aftermath. There is agreement that females perpetrated fewer and less violent crimes than did males and that most allegations against females centered either on moral

1 Winter's criminal career can be followed in the dockets for the courts and the dates mentioned. For personal information and the fact that she used the alias, Mary Flood, see petitions of Mary Flood, Oct., Dec. 4, Dec. 7, 1779; petition of Ann Winter, Nov. 4, 1779; James Young to Timothy Matlack, Oct. 30, 1778, Clemency Records, RG-27, 1775- 1780, Roll 36. Pennsylvania Historical and Museum Commission (PHMC). 2 Douglas Greenberg, "Crime, Law Enforcement, and Social Control in Colonial America," The American Journal oj Legal History (AJLH), 26 (1982), 314. 3 It is not the intent of this paper to explore either the causes of crime or the make-up of the female criminal population. Both are to be treated elsewhere. The author is collaborating with Professor Jack D. Marietta on a social study of crime and law enforcement in Penn- sylvania to 1800 which will explore the causes of crime and the make-up of the female criminal population. 1985 WOMEN'S CRIME 337 or minor property offenses. These studies suggest also that as the eighteenth-century progressed women were less frequently accused of crimes usually associated with their sex (e.g., witchcraft, adultery, and infanticide) and more often charged with offenses associated with men. Also, women were more likely than men to be acquitted and to have their cases dismissed.4 Finally, there seems to be agreement that women lost ground in legal terms during and after the Revo- lution. Linda Kerber in particular has painted a grim picture of women's legal status in the post-Revolutionary years, stressing, for instance, the declining care taken by courts in preserving dower thirds.5 Because of the limited number of published works in early women's history which focus on crime, and the omission of women from most legal studies of early America, scholars cannot yet distinguish with any precision between the extraordinary and the mundane in either field. Few acquittal, conviction, or resolution statistics for early Amer- ica are available; none for Pennsylvania.6 Virtually no information exists on the effectiveness of eighteenth-century courts. Still unclear from current studies is the extent and nature of local and regional similarities and variations either in women's crime or criminal justice procedures and successes. Neither is it evident at this point what

4 See J.M. Beattie, "The Criminality of Women in Eighteenth-Century England," Journal of Social History (JSH), 8 (1975), 80-116} Donna J. Spindel and Stuart W. Thomas, Jr., "Crime and Society in North Carolina, 1663-17'40," Journal of Southern History, 49 (1983), 223-224; Douglas Greenberg, Law Enforcement in the Colony of New York (Ithaca, New York, 1976), 51} Linda M. Kealey, "Crime and Society in Massachusetts in the Second Half of the Eighteenth-Century," Ph.D. diss., (Univ. of Toronto, 1981)} Hugh F. Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia (Charlottesville, Va., 1965)} and Natalie E.H. Hull, "Female Felons: Women and Serious Crime in the Superior Courts of Massachusetts, 1673-1774," Ph.D. diss., (Columbia Univ., 1980). 5 Linda K. Kerber, Women of the Republic: Intellect &? Ideology in Revolutionary America (Chapel Hill, 1980), chapts. 5 and 6. For a generally more pessimistic assessment of women's roles and rights in the revolutionary period, see Joan Hoff Wilson, "The Illusion of Change: Women and the American Revolution," in Alfred E. Young, ed., The American Revolution: Explorations in the History of American Radicalism (DeKalb, 111., 1976), 383-445. 6 Greenberg, "Crime, Law Enforcement and Control in Colonial America," 308. Studies of Pennsylvania crime which do not offer systematic quantification, include Lawrence H. Gipson, Crime and Its Punishment in Provincial Pennsylvania (Bethlehem, Pa., 1935), and Herbert W.K. Fitzroy, "The Punishment of Crime in Provincial Pennsylvania," Pennsylvania Magazine of History and Biography (PMHB), 60 (1936), 242-269. 338 G. S. ROWE July impact the Revolution had upon criminal allegations against women or on processes designed to cope with those accusations. An examination of criminal allegations against females in Penn- sylvania between 1763 and 1790, the mechanisms by which authorities dealt with them, and the efficiency with which officials processed cases, reveals much about Pennsylvania legal processes. Even though there was a decline in prosecutions against women in Pennsylvania after 1780, a larger percentage of females appeared before courts there than elsewhere.7 The number of types of charges against them indicate either that they were more volatile and contentious than women studied in other colonies, or that Pennsylvania authorities more assiduously sought out and punished infractions by females than magistrates from other areas. In Pennsylvania important variations in criminal conduct as well as in the preoccupation of judicial personnel and in the efficiency of legal mechanisms resulted from county differences and from the distance of the crime from the central administration. Nonetheless, once charged, women in Pennsylvania went before courts generally more effective than those faced by worhen elsewhere, even though that efficiency declined after 1780, particularly in prosecutions for sexual offenses. If their status before civil courts deteriorated after 1776, as Kerber and others have argued, Pennsylvania women were less likely to be charged with criminal conduct and to be taken before a criminal court after the American Revolution than before hostilities began.

7 Beattie, in his "The Criminality of Women in Eighteenth-Century England," 81, discovers that 21.2 percent of the cases coming before the Surrey courts involved charges against females. Spindel and Thomas, Greenberg, and Keally find that women comprised 11.4, 9.9 and 7.5 percent in North Carolina, New York, and Massachusetts respectively. Hugh Rankin gives no statistics but he makes it clear women constituted a very small portion of Virginia's colonial defendants. Beattie's study encompasses rural areas, but it also examines a much more extensive urban population than present in Pennsylvania. That may account for the larger percentage of female criminals found in his work. In 1982, according to the FBPs Uniform Crime Reports (Washington, D.C., 1983), 165, 16 percent of all arrests in the United States, involved women. Dissimilarities in jurisdictions, crime categories, no- menclature, and chronology as well as inconsistencies in the use of population ratios in determining crime rates account for many of the difficulties in comparing studies of crime and criminal administration. Lack of agreed upon standards in measuring the efficiency and effectiveness of courts also complicates efforts at comparisons. For a discussion of these issues, consult Michael Hindus and Douglas Jones; "Quantitative Methods or Quantum Meruit} Tactics for Early American Legal History," Historical Methods, 13 (1980), 63-73. 1985 WOMEN'S CRIME 339

Civil authorities in Pennsylvania processed 10,014 accusations of criminal activity in ten counties (founded before the Revolution) and in the city of Philadelphia between 1763 and 1790.8 Sixteen hundred ninety-eight accusations of criminal conduct, including 1486 primary charges—the heart of this study—involved the alleged criminality of females.9 Although females over the age of 16 constituted perhaps 24.0 percent of the total population, women accounted for only 14.8 percent of all criminal charges and 12.2 percent of all convictions identified in Pennsylvania in the nearly three decades following the Seven Years War.10 Concentrating on the years between 1763 and 1790 permits a focus on the impact of Revolution. Also, dockets for those years are generally complete, and several of the counties have substantial runs of auxilliary records and criminal papers. In addition, newspapers, council records, and clemency file materials cast light on crime and justice.11 This

8 Examined were all legal records and materials touching crime and law enforcement for Bedford, Berks, Bucks, Chester, Cumberland, Lancaster, Northumberland, Philadelphia County, Philadelphia, Westmoreland, and York Counties. No attempt to use church records to identify crimes dealt with by various religious groups has been made. 9 An examination of the records turned up 1486 primary accusations against 1355 females, 192 secondary accusations, and 20 tertiary charges. Many of the secondary and tertiary accusations were dismissed; in other cases clerks were careless in noting their disposition. This study focuses on primary charges in every instances except fornication and bastardy cases where the charges were often employed in conjunction and where both are required to understand the court's priorities. 10 I am working under the assumption that the adult female population in Pennsylvania comprised 24.9 percent of the total population before 1790 as it apparently did in that year. County totals for the female population in the 11 jurisdictions have been computed with that in mind. My totals are 31,000 in 1763, 40,520 in 1770, 44,961 in 1774, 50,.525 in 1779, 53,500 in 1781, and 68,719 in 1790. For population figures for 18th Century Pennsylvania and some of its counties, see Virginia D. Harrington and Evarts B. Greene, American Population Before the Federal Census oj 1790. (Glouster, Mass., rep., 1966); and Thomas Potter, "Growth of Populaton in America, 1700-1860," in D.V. Glass and D.E.C. Eversly, eds., Population in History: Essays in Historical Demography (London, 1965), 652- 660. For Philadelphia, where more sophisticated estimates exist, see John K. Alexander, "The Philadelphia Numbers Game: An Analysis of Philadelphia's Eighteenth-Century Pop- ulation," PMHBy 98 (1974), 214-224; Billy G. Smith and Gary B. Nash, "The Population of Eighteenth-Century Philadelphia," ibid., 94 (1975), 362-368; and Smith, "Death and Life in a Colonial Emmigrant City: A Demographic Analysis of Philadelphia," Journal oj Economic Historyy 37 (1977), 863-889. Obviously much remains to be done for Pennsylvania outside Philadelphia. 1' For a discussion of the weaknesses and strengths of indictments, dockets, and file papers 340 G. S. ROWE July study encompasses eleven jurisdictions ranging from established, heav- ily populated counties to new, isolated, frontier venues. The range of statistics makes comparisons among urban areas, commercial towns, and villages possible. Criminal accusations examined here include all those coming before Pennsylvania's general quarter sessions of the peace and gaol delivery, its oyer and terminer tribunals, as well as all criminal charges known to have been deliberated by individual Justices of the Peace. Local JPs, appointed by the governor before 1776 and popularly elected for seven-year terms after that date, acted individually or jointly to deal with minor criminal infractions such as sabbath-breaking, gambling, drunkenness, and lesser forms of disorderly conduct. They could also bind potential offenders with personal securities for their good behavior, confine suspicious persons and suspected runaways, and settle most quarrels between servants and masters.12 County justices holding commissions to the general quarter sessions and gaol delivery had full cognizance over most other misdemeanors and non-capital felonies. As judges of the quarter sessions which met, as the name implies, four times a year in each county, these law enforcement officers processed, among other charges, assaults and batteries, thefts, fornication and most bastardy cases, adultery, unli- censed and disorderly inns, riots, nuisances, and contempts. Courts of oyer and terminer, with justices of the supreme court presiding, delivered gaols twice a year in each venue to try capital felonies such as arsons, burglary, murder, treason, and rape. They also weighed

for studies of crime, see Michael Hindus and Douglas Jones, "Quantitative Methods or Quantum MeruitV* 64-65. That there was considerable unreported crime in early Pennsylvania is incontestible (note the account of rape in the Carlisle Gazette of November 19, 1788, and the career of Westmoreland's Mary Shipler Eckstine which involved—according to all acounts, including her own—"repeated acts of adultery and . . . open and avowed prostitution for several years," but no criminal charges against her. James T. Mitchell and Henry Flanders, eds., The Statutes at Large of Pennsylvania from 1682 to 1801 (Harrisburg, 1896), XI, 279-80. 12 A convenient survey of a justice's power as an individual justice and in conjunction with other justices out of sessions is found in The Conductor Generalis: ory A Guide for Justices of the Peace (Phil., 1749) iii-vi. Also Statutes at Large, II, 19, 49; III, 246; IV, 217-18. One limitation to examining this level of judicial activities in the dearth of personal JP Dockets and their occasional vagueness. Fewer than a dozen have been located for this period. 1985 WOMEN'S CRIME 341 appeals from quarter sessions and dispatched cases brought by writs of certiorari on substantive or procedural grounds.13

Pennsylvania had a larger percentage of females brought before its bar of justice to answer for violence against contemporaries than any other eighteenth-century American jurisdiction. Michael Hindus has aptly observed, "Crime statistics are not totally divorced from reality; just as they are not totally reflective of it." Although the numbers of allegations and prosecutions clearly do not represent all crimes committed, they do reveal the priorities, assumptions, and capacities of law enforcement personnel. They also often expose the tempera- ment and hypersensitivity of both accused and accuser. Nearly one- quarter (22.8 percent: N = 339) of all charges against females in Pennsylvania were for attacks of varying sorts against persons. Two hundred and eighty-one accusations were for assault or assault and battery. Both totals exceed comparable figures for eighteenth-century New York, North Carolina, Virginia, and Massachusetts, although they are slightly lower than English totals.14 Female assaults in Penn- sylvania occurred with greater frequency in urban centers than in rural areas. Philadelphia and its immediate environs experienced nearly half (45.6 percent; N=128) of all female assaults between 1763 and 1790. Not surprisingly, populous market towns such as Carlisle, York, and Lancaster account for most of their counties' totals (Table 1). Female assault statistics for Pennsylvania reinforce Susan Klepp's findings that marriage in colonial Pennsylvania was frequently an impromptu, tempestuous, and temporary affair.15 Married women

13 Reforms in the 1780s substantially reduced the number of capital felonies. 14 Michael Hindus, Prison and Plantation: Crime, Justice and Authority in Massachusetts and South Carolina, 1767-1878 (Chapel Hill, 1980), 60. Women were accused of only 6.25 percent of assaults in early North Carolina, 12.1 percent of all attacks upon persons not leading to death in New York, and less than 5 percent in Massachusetts. Spindel and Thomas, "Crime and Society in North Carolina," 238; Greenberg, Law Enforcement in The Colony oj New York, 50; N.E. H. Hull, "Female Felons," 84. Hull did not study county courts where most minor assaults presumably were adjudicated. Nineteen Pennsylvania women were also charged with participating in riots. 15 Susan Klepp, "Philadelphia in Transition: A Demographic History of the City and Its Occupational Groups," Ph.D. diss., (Univ. of Pennsylvania, 1980), lOOff. Of the 281 defendants accused of assault, the marital status is known for only 86. Of those 59 (69.0 342 G. S. ROWE My

TABLE I PATTERNS OF ACCUSATIONS" COUNTY ASSAULTS PCT. MURDER PCT. THEFTS PCT. FORN/B* PCI7 Bedford 6 14.6 0 0.0 5 12.2 26 59.1 Berks 14 26.9 9 17.3 11 21.2 20 35.7 Bucks 10 7.9 1 0.1 19 14.9 115 75.7 Chester 20 10.8 8 4.3 44 23.8 153 65.9 Cumberland 37 30.1 7 5.7 36 29.3 30 23.8 Lancaster 24 20.2 6 5.0 31 26.1 29 23.6 Northumberland 5 19.2 2 7.7 8 30.8 21 56.8 Philadelphia 42 16.2 8 3.1 134 51.5 17 6.4 Phil. Co. 86 27.6 0 0.0 82 26.3 71 21.5 Westmoreland 9 19.1 1 2.1 13 27.7 24 51.1 York 28 14.4 4 2.1 41 21.1 103 51.2 * All percentages represent the percentile of a county's total accusations against women. * Because fornication and bastardy offenses were so closely linked and generally were treated as separate charges, both first and second charges are included here. c These percentages have been adjusted to take into consideration that both first and second charges have been included.

were more frequently accused of assaults than for any other crime. Most assaults by females were directed against members of their domestic circle—husbands, children, servants, slaves, and acquaint- ances—or against officials seeking to "disturb" family and friends. Mary Dickson of Lancaster, for instance, sorely abused her servant, Anne Regan, in 1771. When Anne's husband, Allan, protested, Dickson "struck him several times with a stick." Neighbors testified that Dickson and her husband, William, who also assaulted Allan Regan, were "drunken" and "violent."16 Women were often not the sole instigators of domestic violence. In nearly one-third (31.3 percent) of the cases where women were accussed of assault and battery, they were charged as co-defendants. Berks County charged 14 females with committing assaults between 1763 and 1790. Eleven were proscribed for having joined men in carrying out the assault: 5 with their husbands, 5 with male corn-

percent) were married. That Quaker females contributed little to the numbers of assaults is suggested by Jack D. Marietta, The Reformation of American Quakerism, 1748-1783 (Phil- adelphia, 1984), 24. 16 Klepp, "Philadelphia in Transition," 106-107; Lancaster Co. folder, 1771, Oyer and Terminer Court Papers, RG-33, PHMC. This "assault" turned to murder when Regan died from his beating. The Dicksons were ultimately convicted of murder but pardoned. 1985 WOMEN'S CRIME 343 panions, and 1 with a brother. The case of Mary Riley of Goshen Township, Chester County, is typical. In August, 1763, her husband, Thomas Riley's "Blood Boyled . . . when he seen the Sight of Mathias Leamy." According to witnesses, Riley "lifted one of his Feet and Swore he would Kick Leamy's Damn'd guts out for one Half Penny." When he did strike Leamy, Mary quickly joined him, and both Rileys ended up before local magistrates.17 Fifty of the cases (53.8 percent) concerning women assailants and male companions involved husbands and wives. An additional 26 cases consisted of female and male associates. In still another 26 actions women were accused in connection with other women, although in 10 of those instances both females and males were linked with the original female charged. In at least half of the cases when the accomplices were other females, the individual implicated was a relative. Females assaulted those in and around their homes, the only arena in which they exercised power, and they frequently acted in connection with others. This pattern was not unique to Pennsylva- nia—though the large numbers involved were.18 Pennsylvania females were accused of committing almost twice as many murders in twenty-seven years as were women in Massachusetts in more than half a century and more than six times the number found in colonial North Carolina. Seven women were convicted of murder in Pennsylvania and suffered execution between 1763 and 1790. Altogether, 46 women were accused of murder and faced prosecution; 2 others were indicted for manslaughter. Several, like Elizabeth Wilderness of York County, a mother of eight who stabbed her husband to death, were convicted of manslaughter though indicted for murder. Twelve women were charged with slaying adults—in eleven cases men known or related to them.19 Forty-three of the 48 prosecutions occurred outside Philadelphia County. The majority of murder charges against females in Pennsylvania (N = 34), as elsewhere, involved infanticide. Five women were executed for killing

17 Chester County, Quarter Sessions Papers, Aug., 1763 (deposition of George Smith), Chester Co. Historical Society (CCHS), West Chester. 18 See for instance, Hull, "Female Felons," 87-88. 19 Kealey, "Crime and Society in Massachusetts," 103} Spindel and Thomas, "Crime and Society in North Carolina," 238. For Wilderness, see Thomas McKean to his wife, April 28, 1778, McKean Papers, Historical Society of Pennsylvania (HSP), Philadelphia. 344 G. S. ROWE July their children. Chester County's Elizabeth Wilson, executed for slaying her twin sons, was the most celebrated case of infanticide in early Pennsylvania, but every county had similar tragedies.20 The numbers of property crimes in Pennsylvania closely mirror those in neighboring states, although the percentage is smaller than found for English courts.21 Almost one-third (32.4 percent) of all prosecutions against females between 1763 and 1790 alleged property transgressions. Only 2 women, both black, were executed for crimes against property; one for arson, the other for burglary.22 Five other females, all white, were convicted of capital felonies but pardoned.23 Forcible entry, trespass, arson, and receiving stolen goods constituted a small fraction of the transgressions against property supposedly perpetrated by women. Most accusations (N = 424) centered on theft.24 Ann Winter, whose career in crime was described earlier, observed from long experience that cities afforded more temptation and opportunity for theft than did life "in the country."25 Historian John Alexander and others have catalogued factors which motivated Phil- adelphia's urban dwellers to commit property offenses.26 Statistics on female thefts (Table 1), show that half of the thefts (50.9 percent; N = 216) occurred either in Philadelphia or its suburbs. Older mar- keting towns like York, Chester, Carlisle, and Lancaster also expe-

20 For details of the Wilson tragedy, see Wilson, A Faithful Narrative of Elizabeth Wilson (Phil., 1786); Charles Biddle, The Autobiography of Charles Biddle (Phil., 1883), 199-200; Henry Drinker Biddle, ed., Extracts From the Journal of Elizabeth Drinker from 1759 to 1807 (Phil., 1889), 303. 21 Beattie, "The Criminality of Women in Eighteenth-Century England," 81. 22 Only 31 (2.3 percent) black women appear in this study, primarily because before 1780 special courts handled infractions by blacks and records for those courts are rare. See A. Leon Higginbotham, In the Matter of Color: Race and the American Legal Processf The Colonial Period (New York, 1978), 288-289; Statutes at Large, II, 233-36. 23 Elizabeth Grant, convicted of burglary in Philadelphia and pardoned in 1771, may have been a mulatto, but the evidence is ambiguous. 24 Theft here means robbery, larceny, burglary, and felonious theft. Robbery and burglary offenses among women were rare (7 robberies and 16 burglaries were identified in this study). 25 Petitions of Mary Flood and Ann Winter, Oct., Dec. 4, and Dec. 7, 1779, Clemency Records, 1775-1780, roll 36 (PHMC). 26 John K. Alexander, Render Them Submissive: Responses to Poverty in Philadelphia, 1760- 1800 (Amherst, Mass., 1980), chapter 4. Also, works by Billy G. Smith cited in note 41. 1985 WOMEN'S CRIME 345 rienced large numbers of thefts by females. Bucks county (having no comparable towns) had only a fewer more thefts than did West- moreland County, suggesting that it was not the size of the population that accounted for a county's theft statistics. The Revolution generated crimes against the state for which women were prosecuted or harassed. Revolutionary committees as well as courts and the Supreme Executive Council in Pennsylvania took action against women for robbery, nuisance, "selling for hard money," and trespassing, when, in fact, their "crimes" were participating in activities judged "inimical to the United States." Susanna Adams, wife of Jonathan Adams, a Philadelphia County snuffmaker, was attainted for high treasons along with her husband. Catherine Devenderfer, also charged with her husband, and Mary Colley—both of Phila- delphia—were indicted for treason but not successfully prosecuted. Sara Brecht (or Bright) of Berks was brought to court in May, 1778, charged with misprision of treason but, like Devenderfer and Colley, subsequently not tried. As late as June, 1788, Sarah Bulla, wife of outlaw Thomas Bulla, was convicted of being an accessory after the fact in the crimes of Aaron Doan, one of the "Royal Refugees" in the Revolution and the object of outlawry proceedings in 1784.27 Nine women—the majority of them single and none the wife of a patriot—were also formally accused of "aiding the enemy," "associating with disaffected persons," or with "going to the enemy." While few female Tories faced formal courts for their activities and beliefs, many had to endure harassment on the part of various committees, casual abuse by Whig neighbors, or forced relocation imposed by state authorities.28 Unfortunately, because most available accounts

27 Henry J. Young, "Treason and Its Punishment in Revolutionary Pennsylvania," PMHB, 90 (1966), 311-312; Berks Co., QS Dockets May, 1778; Oyer & Terminer Dockets, Sept., 1778, April, 1781, PHMCh "Diary of Samuel Rowland Fisher," PMHB, 41 (1917), 282; comment by Sarah Sheppard, 1777, Clemency Records, 1775-1780. RG-27, roll 36, PHMC; and Rowe, "Outlawry in Pennsylvania, 1782-1788, and the Achievement of an Independent State Judiciary," AJLH, 20 (1976), esp. 232, 240. Misprision of Treason is the knowledge and concealment of an act of treason by failing to disclose it to the appropriate officials. 28 Examples are numerous. A Mrs. Lawrence Fegen, wife of a Philadelphia tavern owner suspected of being a Tory, for instance, was wounded and her home ransaked by angry Whig neighbors in August, 1776. Minutes of the Provincial Council oj Pennsylvania (PCR) (Harrisburg, 1851-1883), XX, 701. 346 G. S. ROWE July of eighteenth-century crime end with the Revolution, and the two exceptions—works by Linda Kealey and Anne Ousterhout—fail ad- equately to distinguish between male and female criminality during those chaotic years, efforts at comparing Pennsylvania's revolutionary patterns with other states currently are unrewarding.29

Most accusations against women in Pennsylvania between 1763 and 1790 centered on violations of the moral and public order, a pattern typical of other states in eighteenth-century America. Six hundred eighty-six violations of public order and morals appear in the record, almost half (46.2 percent) of all crimes purportedly instigated by women between 1763 and 1790.30 In Pennsylvania as in neighboring jurisdictions, women's offenses against the public order consisted largely of operating illegal ordinaries. Eighty-three accusations arose from females allegedly operating tippling houses; another 64 for overseeing "disorderly houses," a euphemism for residences or inns where brawling, drunkenness, and prostitution occurred. Sev- eral of these last prosecutions were, in fact, actions against prostitutions and overseers of brothels.31 Philadelphia offered its women, white or black, greater opportunity to operate inns and taverns—legally or illegally—than did the hin- terlands. Ann Striker, the owner of a tavern in the city, was among the richest women in North America in 1774. Twenty-two percent of all tavern licenses sold in Philadelphia in the decade before the Revolution went to females, and any number of additional ordinaries were operated by females either too poor or unwilling for one reason or another to purchase licenses.32

29 Keally's work has been cited. See also Anne M. Ousterhout's "Controlling the Opposition in Pennsylvania During the Revolution," PMHB, 105 (1981), 3-34. 30 Offenses against morals and the public order include rioting, gambling, deceit, contempt, rescue, perjury, bigamy, distilling, harboring, conspiracy, operating either tippling or disorderly houses, and, of course, fornication and bastardy. 31 Mary Fuller (Philadelphia Co., QS Dockets, June, 1764) who was convicted of running a "bawdy house" and sentenced to stand one hour in the stocks, to pay 25, and to put up security for her future good behavior, was also referred to as the operator of a disorderly house. 32 Alice Hanson Jones, Wealth of a Nation to Be: The American Colonies on the Eve oj the Revolution (New York, 1980), 249; Frances May Manges, "Women Shopkeepers, Tavern- keepers, and Artisans in Colonial Pennsylvania" Ph.D. diss., (Univ. of Pennsylvania, 1958), xxiii, 71, 75-76, 78-81, 116. 1985 WOMEN'S CRIME 347

Tippling and disorderly houses seemed virtually a Philadelphia monopoly in the nearly thirty years before 1790. In its county and city courts appeared two-thirds (66.3 percent; N = 55) of all alleged offenses involving tippling houses and virtually all (96.9 percent; N = 62) those touching disorderly house prosecutions. Berks County had 1 tavern for every 40 citizens, the city of Reading 1 for every 9, yet Berks authorities never prosecuted a female for operating either a tippling or disorderly house. Nor did officials in Westmoreland or Northumberland Counties.33 Sexual offenses constituted the most common charge against Penn- sylvania women between 1763 and 1790 (Table 1). Prosecutions for fornication and bastardy constituted more than two-thirds (69.8 percent) of the violations attributed to females within the moral/order category in Pennsylvania and one-third (32.3 percent) of all primary charges located in this study. Concern for the moral tone of the community as well as care lest community resources be overburdened by the financial costs of tending illegitimate children encouraged authorities in every county to proceed against these offenses. Still, degrees of commitment and success varied widely from court to court (Table 1). As in all types of crime in this study, statistics on fornication and bastardy offenses represent more a county's interest in punishing violators of the law than they do the actual rate of violations. Numbers relating to fornication and bastardy, however suspect in some respects, reveal that individual counties approached crime with different priorities, assumptions, and abilities, and these differences manifested themselves in action—or lack of action—on the part of grand and traverse juries as well as individual justices.34 Chester, Bucks, and York counties maintained greater and more

33 For Reading and Berks County, consult Laura Becker, "The American Revolution as a Community Experience: A Case Study of Reading, Pennsylvania," Ph.D. diss., (Univ. of Pennsylvania, 1978), 120. 34 Bedford County, Quarter Sessions Criminal Papers, 1 box, and QS Dockets, April, 1789, Bedford Co. Courthouse, reveal a one-day roundup of unmarried pregnant females. Individual justices pursued their duties with varying degrees of energy and commitment. See comments, regarding Bucks County justices, to the effect that they were "very old and infirm," "old, Impaired by apolexy," and that one "Scarce-ever comes to court," in Penn- sylvania Archives, 9 Series (138 vols., Philadelphia and Harrisburg, 1852-1949), 1st Ser., Ill, 182. 348 G. S. ROWE July

TABLE 2 THE CHRONOLOGY OF PENNSYLVANIA ACCUSATIONS

COUNTY 1763-1768 1769-1775 1776-1782 1783-1789 A: 0 2 1 3 Bedford T: 0 2 2 1 S: 0 2 5 19 A: 0 0 6 8 Berks T: 0 5 4 2 S: 1 7 8 4 A: 4 0 4 2 Bucks T: 5 3 5 6 S: 68 30 14 3 A: 6 6 1 8 Chester T: 8 11 6 19 S: 22 38 23 70 A: 5 9 10 13 Northumberland T: 10 9 10 7 S: 3 12 11 4 A: 2 14 5 3 Lancaster T: 3 11 11 6 S: 3 12 11 4 A: 0 2 0 3 Northumberland T: 0 3 4 1 S: 0 10 3 8 A: 5 0 21 16 Philadelphia T: 8 8 65 53 S: 1 0 1 15 A: 8 22 30 26 Philadelphia Co.T: 19 19 26 18 S: 21 15 19 16 A: 0 5 2 2 Westmoreland T: 0 5 1 7 S: 0 0 6 18 A: 16 4 0 8 York T: 14 11 7 9 S: 18 20 39 26

A: Assaults and batteries. T: All thefts, including robberies, larcenies, burglaries, pickpockets. S: Fornication and bastardy offenses. sustained enthusiasm for seeking compliance of the law in sexual matters than did other counties (Tables 1 & 2). Why Lancaster and Berks of the older, populous counties did not show similar inclinations is not clear. Neither is it clear why Philadelphia exhibited little interest in formally prosecuting fornication and bastardy cases, preferring 1985 WOMEN'S CRIME 349

instead to encourage personal and private remedies.35 Even Phila- delphia's rise in fornication accusations after 1783 (Table 2) is misleading, for in almost every case these prosecutions were pursued only against the males involved and charges against females were in most cases routinely dropped. The location of a female's infraction—whatever its nature—played a major role in determining if she would be charged and, if charged, successfully prosecuted. The younger (and more primitive) the county, the less numerous and experienced the justices and constabulary, and the more scattered and sparse its population—the more likely she was to go unindicted, and, if indicted, unpunished. Indeed, the farther she was from Philadelphia, the less likely (except in sexual infractions) she would have been caught and formally punished (Ta- bles 4, 5, 6). And yet neither Bucks nor Berks County, among the more settled counties had efficient courts commensurate with their histories (Tables 4, 5, 6). To identify variations in county patterns is easier than to explain them. That disparate social and economic values (and, thus, priorities) were present in eighteenth-century Pennsylvania is clear from the works of James T. Lemon, Stephanie G. Wolf, and Laura Becker.36 How these factors influenced law enforcement mechanisms is less clear. In all likelihood, religious and ethnic factors played roles in determining the degree of enthusiasm exhibited by justices and veniremen in identifying and chastising peccant females. Quakerism, for instance, may account for the seeming preoccupation of Chester's

35 Klepp argues persuasively that there existed in Philadelphia an "urban" view of sexuality that differed markedly from that found outside the city. See her "Philadelphia in Transition," 91-93. See also Sharon Ann Burnston, "Babies in the Well: An Underground Insight into Deviant Behavior in Eighteenth-Century Philadelphia," PMHB, 106 (1982), 165, 169, 172-173; Elaine Crane, "The World of Elizabeth Drinker," ibid., 107 (1983), 19; Alms House Admission Books: Guardians of the Poor, 1785-1807, book 210 (Philadelphia City Archives, passim. 36 James T. Lemon, The Best Poor Man's Country: A Geographical Study oj Early Southeastern Pennsylvania (Baltimore, 1972); Stephanie G. Wolf, Urban Village: Population, Community, and Family Structure in Germantown, Pennsylvania, 1683-1800. (Princeton, 1976); and Becker, "The Revolution as a Community Experience." Berks County's statistics regarding women's crime and criminal administration present the greatest contrasts with other counties its size and age. But see also Allan Tully, William Penn's Legacy: Politics and Social Structure in Provincial Pennsylvania, 1726-1755 (Baltimore, 1972), and Jerome H. Wood, Jr., Conestoga Crossroads: Lancaster, Pennsylvania, 1730-1790 (Harrisburg, 1979). 350 G. S. ROWE July justices with, say, fornication prosecutions; if so, this fails to explain why Philadelphia and Bucks Counties, which also had large Quaker populations, apparently pursued different concerns. If Berks's large German population explains its seeming disinterest in prosecuting females in quarter sessions, why did York's Germans possess different priorities?37 Only sporadic crime rates are available for women of the eighteenth century.38 Hampering efforts to compute rates for Pennsylvania are the state's imprecise population figures prior to the 1790 federal census. However, if an estimate of an adult female population of 43,850 is correct for 1773 in the 11 jurisdictions under study, and if figures of 44,961 for 1774, 49,408 for 1778, 52,100 for 1780, and 56,000 for 1782 are reasonably accurate, then the female crime rates for those years in Pennsylvania per 10,000 adult women were 11.39, 15.14, 8.91, 22.07, and 12.32, respectively.39 These rates confirm conclusions reached from other measurements: that criminal accusations against females rose steadily prior to the outbreak of the Revolution, dropped dramatically because the legal apparatus failed to function continuously or effectively during the war years, increased markedly by 1780, then leveled off, indeed declined somewhat. Generally speaking, in Pennsylvania there was a steady rise in raw numbers of assault prosecutions throughout the twenty-seven years following the Seven Years War. Nearly one-third (N = 92) of all assault cases attributed to females between 1763 and 1790 occurred after 1783. Still, this may be misleading, for only in Berks, Cum- berland, and York Counties were there real increases after 1776. Totals from the city and county of Philadelphia after 1776 leave an impression of a persistent rise in assaults. Following 1783 Cumber- land, York, and Westmoreland Counties reported proportionately more assaults by females than did more settled and highly populated Lancaster, Chester, Bucks, or Berks Counties. Bucks, Lancaster, and the two Philadelphia venues actually experienced fewer cases after

37 For an attempt to study the connection between prosecution patterns and the religious affiliations of JPs, see Jack D. Marietta, "Law and the Enforcement of Morals in Early Pennsylvania" Paper delivered at the OAH meeting, San Francisco, 1980. 38 Hull offers crime rates based on individual crimes per 100,000 population. 39 See note 5 above. 1985 WOMEN'S CRIME 351

1783 than in the preceding five years, although in the case of the two Philadelphia courts, their reduction is explained in part by missing dockets (Table 2). The twenty-two percent increase in prosecutions following 1775 over that of the comparable earlier period may be accounted for by the creation of new legal entities such as Westmoreland, Bedford, and Northumberland Counties. The increase in assault prosecutions against females from the period after 1775 over that of the previous eleven years is less impressive when increases in the population are taken into account. Assaults by females increasingly may have been judged as minor infractions and left to individual JPs, even though extant JP dockets fail to confirm this. The impression left is that counties had less interest in apprehending and punishing female assailants after 1783 than before 1776. The same diminution of zeal appears to have affected accusations and prosecutions in cases of theft. A slight decline develops in charges for theft by females after 1776. The picture is somewhat skewed by the closing of the courts in 1776-1777, and the disarray courts re- mained in until 1780. But the pattern continues after 1783 when records are more complete. Although there were modest increases in Chester and Westmoreland Counties, in view of the population growth in those counties, those figures imply no real change. The only significant rise occurred in the city of Philadelphia, where a sharp ascendency in larceny prosecutions and a slight increase in burglary and robbery accusations swelled that city's totals (Table 2). There is little mystery in Philadelphia's mounting prosecutions. During the Revolution and after, the city witnessed impressive growth in population from roughly 34,000 in 1774 to perhaps 53,000 in 1790 and a disproportionate increase in numbers of poor, the very elements most likely to commit crimes. Elizabeth Mooney, illiterate and without work or resources, told city authorities when she was arraigned for theft that she had "come from Virginia in these troubled times" and "got involved with the wrong people."40

40 For conditions in Philadelphia, see Gary B. Nash, Urban Crucible: Social Change, Political Consciousness, and the Origins of the American Revolution (Cambridge, Mass., 1979), chapt. 9; Johann David Schoepf, Travels in the Confederation, ed. by Alfred J. Morrison (New York, rep., 1968), I, 101-102j "Diary of James Allen, Esq., of Philadelphia, Counsellor- at-Law, 1770-1778," PMHB, 9 (1985), 191, 193, 196, 282, 285, 43Zj Petition by Elizabeth Mooney, July 30, 1781, Clemency Records, 1775-1780, RG-27, Microfilm roll 36, PHMC. 352 G. S. ROWE July

Undeniably, missing dockets would add to the city's numbers regarding the thievery of women. It is doubtful, however, that those numbers would be great enough to confirm a proportionate increase in prosecutions against women for pilfering. A drop in the prices of essential goods after 1784 eliminated one incentive to steal among the city's "lower sorts," but population increases doubtless offset decreases in crime caused by economic recovery. It seems clear, then, that as in the case of assault prosecutions against women, authorities throughout the eleven court jurisdictions did not pursue accusations of theft by females as assiduously after 1783 as they did before 1776.41 The revolutionary activities distracted court personnel from prosecuting women. Clemency files, court dockets, committee records, and newspaper accounts describing the number of persons charged and incarcerated during and immediately after the Revolution suggest that neither Whig nor Tory women appeared before courts in proportionately larger numbers, or suffered confinement at the hands of committees in greater numbers, before or after 1776. It is unlikely that there were fewer offenses by females during the war; that there were fewer formal prosecutions against them is incontestible. In the turmoil of revolutionary exigencies courts and committees focused more obviously upon male malefactors.42 Historians Michael Hindus and David Flaherty argue that the economics of bastardy became more compelling than the morality of fornication to the people of America sometime in the eighteenth- century, although there is no agreement on just when and why the change occurred.43 Because clerks often exercised little care in main- taining dockets, it is impossible to make definitive pronouncements concerning this matter for Pennsylvania. The impression left by the

41 Economic conditions and price fluctuations are discussed in Billy G. Smith, "The Material Lives of Laboring Philadelphians, 1750-1800," William and Mary Quarterly (WMQ), XXXVIII (1981), esp. 173, 184, and in "Inequality in Late Colonial Philadelphia: A Note on its Nature and Growth," ibid., XLI (1984), 629-645. 42 For evidence that crime did increase following the Revolution see "The Memorial," Independent Gazetteer, Nov. 11, 1785; Alexander, Render Them Submissive, 74ff; Carlisle Gazette, June 4, 1788. 43 Hindus, Prison and Plantation, 48-55; David Flaherty, "Law and the Enforcement of Morals in Early America," Perspectives in American History, 5 (1971), 247-48. Also, William Nelson, "Emerging Notions of Modern Criminal Law in the Revolutionary Era: An His- torical Perspective," New York University Law Review, 42 (1967), 455-57, 461-62. 1985 WOMEN'S CRIME 353 record is that by the time of the Revolution few women were punished for fornication when no illegitimate birth was involved, and in some counties the adjustment of priorities surfaced earlier (Table 2). The same was true of bigamy and adultery prosecutions. In Berks, Bucks, Chester, Lancaster, and York Counties the decline in prosecutions of females in sexual offenses was dramatic. In Lan- caster County, for instance, prior to 1779, both men and women appeared in sexual cases. On no occasion did women before that time appear singly to answer for fornication. After 1779 only two couples appeared. The remaining prosecutions were against males. In Berks this change seems to have occurred in 1780-1781. Similar patterns developed in Chester, York, Cumberland, and Bucks Counties, yet the break in those counties was not nearly so precipitous. Western counties such as Westmoreland and Bedford continued to prosecute fornication accusations throughout the 1780s (Table 2).44 In none of the courts did authorities cease identifying females who by the "rising of their aprons" signaled their guilt regarding fornication. If prosecutors were not intent on charging females obviously guilty of fornication, they were still interested in noting potential burdens upon the public dole. These women, therefore, continued to be brought before authorities and often had their names listed in general sessions dockets. The father of the child or fathers of expectant mothers absorbed the attention of court personnel, however, and authorities generally did not move to indict females until after failure of attempts to guarantee financial support of the child and recognition of responsibility from males. Chester County officials prosecuted Rachel Mercer in November, 1789, only after not succeeding in gaining convictions against two men suspected of fathering her child.45 The general pattern of prosecutions suggests that the Revolution was a watershed for criminal administration in Pennsylvania. The type and volume of accusations and prosecutions against women shifted perceptibly after 1776-1777. Before then, prosecutions of women for crimes against individuals comprised more than one-fifth (21.9 percent) of all charges against females. In the same period,

44 Numbers of prosecutions before the mayor's court suggest that Philadelphia changed its priorities prior to 1763. 45 Chester Co. Dockets, Feb., May, Nov., 1789, CCHS. 354 G. S. ROWE July charges against women for crimes against property constituted more than one-quarter (26.7 percent) of the totals, and violations against the public order and morality more than half (51.3 percent). Ac- cusations against women for crimes against persons between 1783 and 1790 made up 22.9 percent of the total charges against women, a rise of only 1 percent over the period before 1776. Complaints against women for property offenses were 32.4 percent of the total after 1783, up to 5.7 percent from the earlier period; those against women for transgressions against public order and decency were 44.6 percent, a drop of 6.7 percent.46 Furthermore, females charged and arraigned after the war represented a smaller percentage of the total crime in Pennsylvania than did women prosecuted before the war. Prior to the closing of the courts in 1776-1777 women represented 15.9 percent of all accusations of criminal behavior in the colony. Their share dropped to 12.1 percent between 1783 and 1790. When figures are adjusted to elim- inate those accusations failing to lead to indictment and those not pursued, the decline is still apparent. When original accusations in each category are examined, one finds that the proportion of crimes committed by women remains constant only in crimes against persons. Females were charged with 10.3 percent of all crimes against individuals committed before 1776 and virtually the same (10.0 percent) between 1783 and 1790. Their share of accusations for crimes against property declined from 14.8 percent to 12.1 percent. For crimes against order and morality the percentage attributed to women slipped from 22.7 percent between 1763 and 1776 to 14.4 percent after 1783. The adjustment in overall accusations and prosecutions takes on more significance when viewed from the county level. The creation of more than a half dozen new counties following the Revolution- each carved out of the less populated areas of older counties where males outnumbered females—logically should have increased the proportion of accusations and prosecutions against females in the totals

46 Specific numbers: 140 crimes against persons between 1763 and 1776; 170 crimes against property, and 327 against the moral and public order. After 1783, the numbers are 103, 145, and 200 respectively. 1985 WOMEN'S CRIME 355

for each spawning counties. This did not happen. Only in West- moreland and Bedford counties did it fail to drop. Changes in accusations and prosecution patterns may, of course, reflect very real changes in behavior.47 Until more is known about patterns in courts of common pleas we will not know if apparent shifts in criminal prosecutions were anything more than the result of persons preferring to turn potential criminal cases into civil actions. We may simply be looking less at a change in criminal behavior than a shift in how disputes were adjudicated. Also, alterations in the sexual, ethnic, and religious composition of the population can modify prosecution patterns as can the age of the county, and the changing size of the jurisdictions, the number, status, and experience of the judicial personnel. A society's redefinition of criminal behavior and switching of judicial responsibilities can also leave the impression of changing crime patterns when, in fact, none occurs.48 One important factor in Pennsylvania's transference from female prosecutions to a more obvious preoccupation with male malefactors seems to have been the growing demands on its courts. Dockets were crowded throughout the 1760s. Perennial complaints against delays and inefficiency plagued assembly and court personnel who readily conceded the problem. The inadequacy of the judicial circuit in mitigating these conditions was not removed either by the judicial circuit bill of 1767 or by judicial revisions incorporated into the state constitution of 1776. As male crimes and in particular—"revolutionary crimes" increased after 1776, state officials, pressed for space on docket calendars, apparently opted to give primary attention to them. The fact that the revolution loosened restraints upon women and offered them greater independence (thereafter lessening public cen- sure of their private lives) made such a reassessment easier.49

47 Michael Hindus and Daniel S. Smith, "Premarital Pregnancy in America, 1640-1971: An Overview and Interpretation," Interdisciplinary History, 5 (1975), esp. 537, 561, finds that premarital pregnancies increased steadily throughout the last half of the eighteenth- century. Klepp discovers a different pattern for Philadelphia and offers reasons why, in her "Philadelphia in Transition," 9Iff. 48 John B. Mays, Crime and the Social Structure (London, 1963), 69, 75. Klepp argues that in Philadelphia the number of premarital pregnancies dropped following the Revolution, but there are few other indications that women participated in fewer criminal acts after 1783. 49 That the new Republican ideology brought about a reassessment of the double standard 356 G. S. ROWE July

TABLE 3 CONVICTIONS AND RESOLUTION RATES OVER TIME

1763-1768 1769-1775 1776-1782 1783-1789 SCR: 1.11 1.23 1.32 1.28 ECR: 1.77 2.10 2.61 3.06 PTF: 0.66 0.87 1.29 1.78 UNR: 21.50 25.50 26.20 26.80

SCR: Simple conviction rate (number of verdicts per every 1 conviction. ECR: Effective conviction rate (number of bills coming before grand juries per every 1 conviction). PTF: Pretrial factor rate (the difference between the two. UNR: Percentage of unresolved cases.

Pennsylvania's legal mechanisms generally performed well in processing charges against females (with the exception of the years between 1776 and 1778), but statistics reveal a persistent decline in their efficiency and effectiveness throughout the period under scrutiny. As the case load mounted—and it increased in raw numbers for females as well as males, even if not in the percentage of women involved— Pennsylvania's judicial system slipped both in capacity to resolve cases and in the number of convictions achieved relative to verdicts and to bills coming before grand juries (Table 3). To reverse this persistent decline in its effectiveness court personnel turned their attention to what they considered the more pressing threat to society: crimes by males. Nowhere was the court's increasing ineffectiveness more apparent than in fornication proceedings.50 Linda Kerber has observed a deterioration in women's legal status in the post-revolutionary years and has stressed, among other devel- opments, the persistence of the practice of coverture and the declining care taken by courts in safeguarding dower thirds.51 Her conclusions will have to be modified if Pennsylvania patterns of female criminality

in sexual matters is noted in Mary Beth Norton, Liberty's Daughters: The Revolutionary Experience of American Woman (Boston, 1980), 240-242. 50 For fornication the figures are: 1763-1768 1769-1775 1776-1782 1783-1789 SCR: 1.00 1.00 1.14 1.00 ECR: 2.00 2.32 14.90 15.20 PTF: 1.00 1.32 13.75 14.20 UNR% 27.00% 39.80% 50.00% 21.00% 51 Kerber, Women oj the Republic, chapts. 5 and 6; also Joan Hoff Wilson, "The Illusion of Change," 383-445. 1985 WOMEN'S CRIME 357 and criminal administration prove to be typical. As we have seen, proportionately fewer females came before Pennsylvania courts after the Revolution than before. By reducing prosecutions against fornication in particular after 1776, the court deemphasized the crime most likely to bring a women to court before that date. Professor Kerber may be correct about reduced female rights in the post- revolutionary period, however, in ways she did not anticipate. As proportionately fewer female criminals or alleged criminals appeared in court, fewer female witnesses and victims attended legal proceedings.52 Whether correspondingly fewer females attended court days as observers can not be ascertained. Even so, as fewer women were called to court, fewer women could draw upon the court as a principal fount of republican education.53

The legal process for females accused of criminality in Pennsylvania was for the most part quick and effective once charges reached the grand jury stage (Table 4). Closer surveillance of females on the part of its constabulary and the greater efficiency of its courts may explain why, even with the decline in charges against females after 1783, and even in the face of a corrosion in the courts' proficiency after that date, a larger number of women came before Pennsylvania tribunals than occurred in other states. Out of 281 assault offenses alleged against females, 50 (17.8 percent of the total) were not successfully processed by courts. These unresolved actions in part reflect cases truncated in 1776-1777 when courts throughout Pennsylvania collapsed. They may also represent cases entered on dockets but ultimately arbitrated outside the court- room or concluded in common pleas courts as civil actions. Sixty-one accusations were returned ignoramus or entered nolle prosequi.5* In 130

52 Women were particularly important as witnesses in prosecutions against females for fornication and bastardy, assault, and larceny cases. 53 Norton (p. 6, 133-35) and Kerber (p. 153-54) deny women shared in the educational drama present at their court-houses, but see Rowe, "The Role of Courthouses in the Lives of Eighteenth-Century Pennsylvania Women," The Western Pennsylvania Historical Magazine, 68 (January, 1985), 5-23. 54 See Hindus and Jones, "Quantitative Methods or Quantum MeruitV 69. Hindus (Prison and Plantation, 29-30) discovered that two-thirds of all assault and battery complaints either were thrown out by grand juries as frivolous or not prosecuted by solicitors or complainants 358 G. S. ROWE July

TABLE 4 CONVICTION PATTERNS FOR ASSAULT CASES COUNTY A CP C NG UR SCR ECR PTF Bedford 6 6 4 0 2 1.00 1.50 0.50 Berks 14 11 7 0 4 1.00 2.00 1.00 Bucks 10 6 5 0 1 1.00 2.00 1.00 Chester 20 17 9 0 8 1.00 2.22 1.22 Cumberland 37 24 20 0 4 1.00 1.85 0.85 Lancaster 24 15 10 1 4 1.10 2.40 1.30 Northumberland 5 4 2 0 2 1.00 2.50 1.50 Philadelphia 42 36 30 2 4 1.07 1.40 0.33 Philadelphia Co. 86 69 47 8 14 1.17 1.83 0.66 Westmoreland 9 8 4 0 4 1.00 2.25 1.25 York 28 24 19 2 3 1.11 1.47 0.36 A: Accusations CP: Charges prosecuted. C: Convictions. NG: Not guilty verdicts. UR: Unresolved cases. SCR: Simple conviction rate. ECR: Effective conviction rate. PTF: Pre-trial factor rate. cases defendants either chose not to contest charges and submitted to the court's judgment or pleaded guilty. Another 27 (12.3 percent of accusations prosecuted) were convicted by juries. In only 13 instances (32.5 percent of cases going before juries) did veniremen exonerate defendants. Few assault proceedings involving females went before juries. A smaller percentage of female cases went before juries than was true for male cases. It is impossible now to determine whether the willingness of female defendants to accept judgment without going to a jury was a comment on the toughness of juries, the intimidation defendants felt, the cost in time and money, the competence of prosecuting attorneys in preparing cases, or the obvious guilt of the parties involved. In any case, not a single example of trial by jury for assault by a female has been uncovered for Bedford, Berks, Bucks,

for the same reasons. The ignoramus or nolle prosequi proceedings do not necessarily imply a weakness in the court machinery. Many cases were dropped when complainants chose not to assume the costs of prosecution or when agreements were made whereby defendants paid the costs in exchange for a termination of the complaint. 1985 WOMEN'S CRIME 359 or Northumberland Counties, and only a single instance each has been found for Chester and Cumberland Counties. Nevertheless, prosecutions against female assailants were successful for the most part, once grand juries brought in indictments. If one dismisses the 57 cases in which grand juries returned indictments ignoramus, and the 4 charges ruled nolle prosequi when settlements were achieved "out of sessions," the simple conviction rate was 1 conviction for every 1.08 verdicts. The effective conviction rate was 1 conviction per 1.79 assault bills coming before grand juries, making the pre-trial factor in assault prosecutions .71 percent. Prosecutions in Pennsylvania courts against females for murder (including infanticide) were much less successful than assault proceedings. Berks's Elizabeth Bishop, for instance, slew her black female servant. Although she was charged with murder, and although dep- ositional materials clearly established her culpability, she never faced a trial nor paid formally for the slaying.55 Pennsylvania averaged only 1 conviction in every 3 verdicts or for every 4 bills for murder coming before grand juries. As we have seen, 12 women were charged with slaying adults. In 3 known instances, women prosecuted for murder allegedly acted as accomplices for male associates, in 2 cases, husbands. One woman accused in connection with her husband was convicted.56 Thirty-four charges involved infanticide. Margaret Rauch was one of a very few married women prosecuted for that crime. Four months pregnant by another man when she married Peter Rauch of Nor- thumberland in 1772, she eventually killed the child and buried it in a dung heap.57 Never did more than a fraction of the women who deliberately killed their young or who contributed to their death

55 Berks Co. file, 1772, Oyer and Terminer Court Papers, RG-33, Boxes 1-4, PMHC. 56 Berks County File, 1772, Oyer and Terminer Papers, RG-33, PHMC; The simple conviction rate in murder cases was 1:3.18, the effective conviction rate, 1:4.38 and pre- trial factor 1.18. Negley K. Teeters, "Public Executions in Pennsylvania, 1682-1838," Journal of the Lancaster Historical Society, 64 (1960), 108, suggests Catherine Fisher killed an adult but the Clemency Papers confirm she slew her child. Teeters' list of women convicted, executed and pardoned for murder in this period (108, 153-163), despite minor errors, is useful. 57 Peter C. Hoffer and N.E.H. Hull, Murdering Mothers: Infanticide in England and New England, 1558-1803 (1981), chapt. 5, discusses conditions which promoted infanticide. See also Burnston, "Babies in the Well," passim-, Oyer & Terminer Files: Phil. Co., 1772, RG- 33, PHMC. 360 G. S. ROWE July through indifference stand trial. Even Kelly Rogers, a poor single working women living near Carlisle who brutually murdered her eight year old son in September, 1785, because "she could not think of letting him survive ... in such servility," never faced a jury.58 Five women between 1763 and 1790 were executed for infanticide. Generally, only when women "showed no remorse," like Jane Ewing in 1765, were convictions achieved and executions carried out. In nearly two-thirds (64.7 percent; N = 22) of the cases involving child deaths the accused was exonerated. Seven were convicted but, of those, 1 was pardoned and another—considered "half-witted"—evidently was too. The remaining prosecutions, which can not now be followed in the records, did not lead to executions; we can assume that defendants either were acquitted or pardoned, once convicted. The former seems more likely in light of the fairly complete records existing for the Council, the only agency which could legally grant pardons.59 Like their counterparts in neighboring states and in England, Pennsylvania juries often acquitted females of infanticide and worked diligently to gain pardons for the few convicted. In Pennsylvania as elsewhere juries commonly accepted a single piece of "ready clothes" or a single item prepared for the child by the mother as evidence of the absence of evil intent in order to vote not guilty.60 Only after Pennsylvania law was revised in 1786 and 1790 to define lesser penalties for concealment of a child's death did veniremen on occasion choose to convict women and see them sentenced to prison, a de- velopment manifest also in Massachusetts following the Revolution.61 Pennsylvania prosecutions of crimes against property were only slightly less efficient than its proceedings against female assault defendants.62 In Berks County, for instance, 10 of 11 accusations against

58 Carlisle Gazette, Sept. 21, 1785. Rogers after killing her son cut her own throat and "mangled" her arms "in a shocking manner" but survived and was jailed. 59 PCR, IX, 236. That Sarah Williams was "half witted" is established in the Jasper Yeates Legal Papers, folio 3 (1787), HSP. A few obviously had charges dropped or escaped. 60 For Pennsylvania practices, see Biddle, Autobiography, 202. That this was general practice is confirmed by Beattie, "The Criminality of Women," 84; Burnston, "Babies in the Well," 176; and Hoffer and Hull, Murdering Mothers, 68-70, 73. 61 Burnston, "Babies in the Well," 176, illustrates this change as does Kealey, "Crime and Society in Massachusetts," 103. 62 The rates are SCR: 1:1.37; ECR: 1:1.87; PTF: .50. 1985 WOMEN'S CRIME 361

TABLE 5 CONVICTION PATTERN FOR THEFTS COUNTY A CP C NG UR $SCR ECR PTF Bedford 5 2 2 0 0 .00 2.50 1.50 Berks 11 10 6 3 1 .50 1.83 0.33 Bucks 19 14 8 1 5 1.13 2.38 1.25 Chester 44 36 23 7 5 .30 1.91 0.61 Cumberland 36 27 12 7 8 [.58 3.00 1.42 Lancaster 31 27 16 8 3 1.50 1.94 0.44 Northumberland 8 8 3 3 2 :2.00 2.67 0.67 Philadelphia 134 124 80 30 13 1.38 1.68 0.30 Philadelphia Co. 82 76 51 17 8 1.33 1.61 0.28 Westmoreland 13 12 3 0 9 1.00 4.33 3.33 York 41 36 23 9 4 1.39 1.78 0.39

A: Accusations CP: Charges prosecuted. C: Convictions. NG: Not guilty verdicts. UR: Unresolved cases. SCR: Simple conviction rate. ECR: Effective conviction rate. PTF: Pre-trial factor rate. women were resolved by the court, 7 by juries. In Lancaster County, of 31 cases for theft, 28 were resolved by court action including 4 which failed to reach indictment. York County experienced similar success in having court procedures rather than individual defendants or extra-legal activities determine the outcome of its cases. In the city and county of Philadelphia even with the large number of charges, the efficiency was more pronounced (Table 5). The confusion of the times and the imperfect nature of records during the Revolution make conclusions regarding the resolution of Revolutionary crimes tentative at best. Of the 14 women identified in this study charged with treason, misprision of treason, "associating with the enemy," or other "revolutionary crimes," 7 were convicted by juries. The remaining cases were unresolved. At least four of the women left the state. Comparisons with courts outside Pennsylvania are impossible. Almost nothing is known about the illegal activities of females elsewhere in those years.63

63 Kerber, Women of the Republic-^ Norton, Liberty's Daughter"> and Wilson, "The Illusion of Change," advance our knowledge of women during the Revolutionary years but none comments on crime or criminal administration. 362 G. S. ROWE July

The ability of Pennsylvania courts to process accusations of offenses against the public order and morals was not as impressive as its capacity to resolve theft and assault charges. Authorities did achieve surprising success in prosecutions of tippling and disorderly house infractions, greater success than they attained in prosecuting men for those offenses.64 The courts' inability to reduce the number of illegal ordinaries through criminal prosecutions must have vexed a public torn between believing such establishments bred a variety of crimes and understanding that they were the only way some females could support themselves or families.65 Among transgressions against the public order and morality, fornication and bastardy were the most pervasive and, apparently, the least likely to be successfully adjudicated by courts. At no time between 1763 and 1790 did the courts' overall unresolved percentage in such cases fall below one-fifth of their total. The low conviction rates in fornication and bastardy proceedings undoubtably reflect the difficulty of prosecuting sexual offenses as well as the growing am- bivalence over the state's role in regulating private sexual practices (Table 6). Surviving dockets maintained by individual justices of the peace indicate that a portion of the bastardy offenses were dealt with sum- marily.66 Summary procedures made sense in most cases when dealing with females: the woman's pregnancy being prima jade evidence of her guilt on both counts. If fornication were not the justice's prime concern, he moved against both male (if known) and female on bastardy charges. Bastardy prosecutions usually were dropped when couples married, when the female disappeared with the child, when the child died, or when settlements were reached for the care of the child "out of doors." Occasionally, offenses proved extremely onerous for authorities as when the father of the child was unknown or when there was more

64 In many of the frontier counties especially males accused of tippling and disorderly house offenses merely left the community. Women were more limited in their options. 65 Rates for public order and morals cases are 1:1.08; 1:3.18; and 2.10. For tippling and disorderly house prosecutions they are 1:1.24; 1:2.53; and 1.28. 66 A number of dockets representing individual justices of the peace can be found in the HSP and the CCHS. I have consulted all of them all, even those from Delaware and New Jersey. 1985 WOMEN'S CRIME 363

TABLE 6 CONVICTION PATTERNS FOR FORNICATION/BASTARDY COUNTY A CP C NG UR g>CR ECR PTF Bedford 26 23 9 0 12 1.00 2.89 1.89 Berks 20 15 0 0 5 ().00 0.00 0.00 Bucks 115 57 27 0 30 LOO 4.26 3.26 Chester 153 58 38 0 20 1.00 4.03 3.03 Cumberland 30 26 7 0 19 1.00 4.29 3.29 Lancaster 29 18 4 2 12 1.50 7.25 5.75 Northumberland 20 14 6 0 8 1.00 3.33 2.33 Philadelphia 17 2 0 0 2 ().00 0.00 0.00 Q Philadelphia Co. 71 34 26 0 0 .00 2.73 1.73 Westmoreland 24 22 5 0 17 .00 4.80 3.80 York 103 76 21 0 55 [.00 4.90 3.90

A: Accusations CP: Charges prosecuted. C: Convictions. NG: Not guilty verdicts. UR: Unresolved cases. SCR: Simple conviction rate. ECR: Effective conviction rate PTF: Pre-trial factor rate. than one candidate for that honor. Elizabeth Briggs exemplifies one such dilemma faced by Chester County officials. Briggs appeared before Justice Henry Hale Graham in May, 1775, when her pregnancy could no longer be concealed. Her father testified before a grand jury that Benjamin Jones had fornicated with Briggs. To the consternation of Chester's justices, Elizabeth insisted that her lover and the father of her unborn child was John Smith. The county eventually prosecuted both males for bastardy. A jury subsequently acquitted Smith but before a second jury could determine Jones's culpability, Elizabeth Briggs was dead and, evidently, so was the child. The county's enthusiasm for prosecuting Jones died with the mother and child.67 Four hundred forty-one accusations of fornication and 168 alleged cases of bastardy came to the attention of Pennsylvania authorities between 1763 and 1790. At least 6 women faced charges more than once. Twenty-nine accusations failed to lead to indictment or were

67 Chester Co., QS Criminal Papers, Nov. 7, 1775, CCHS; Chester Co., QS Dockets, May, 1775, November 1775, CCHS. 364 G. S. ROWE July quashed once an indictment was returned. In 244 instances, officials decided not to prosecute the female but to charge the male instead. One hundred thirty-five women appeared, accepted the court's punishment, or pleaded guilty and paid the price. Only 11 charges against women reached juries where 2 (both in Lancaster County) were acquitted. The fact that Pennsylvania courts apparently did not successfully process almost one-third (30.9 percent, N=188) of the accusations of fornication and bastardy coming before them may be deceptive, however. These figures may simply represent the summary handling of matters by justices and the subsequent routine notation of their appearance (without comment or judgment noted) in general sessions dockets. If so, these cases were treated exclusively as bastardy offenses, because fornication was a felony and had to be tried in quarter sessions. Despite its difficulties in efficiently processing sexual accusations and its inability to grapple affectively with lawlessness in several of its frontier counties, Pennsylvania's criminal justice system appeared to have been more successful than neighboring courts in processing accusations against women.68 They also resolved accusations quickly, averaging 1.9 terms per female case prior to 1776, 2.7 after 1783. Both figures were higher for cases involving males. Typically, a woman appeared to be charged and bonded to appear at the following term. At the second term she pleaded guilty, threw herself on the court's mercy, or opted for a jury trial. In more than one-fourth of the cases, resolutions were reached at her first appearance.69 Studies treating female criminality and criminal administration in the eighteenth-century have discovered a general pattern of leniency toward women. Disagreement exists about how much more leniency was directed toward women than men and about what motivated this

68 Any number o£ examples of the criminal and judicial system breaking down could be cited including the Wyoming difficulties, the Paxton killings (1763-1764), the Sideling Hill incident (1765), and the Frederick Stump affair (1768). 69 Pennsylvania's overall conviction rate was 1.23; its effective conviction rate was 2.37, and its pre-trial factor was 1.14. Figures (taken from Donna J. Spindel, "The Administration of Criminal Justice in North Carolina, 1720-1740," AJLH> 25 (1981), 160) for North Carolina are 1.18, 3.50, and 1.69 respectively. Little other data exists. 1985 WOMEN'S CRIME 365 compassion.70 Felony law did not discriminate against females. Stat- utes prescribed punishment for each original and for each succeeding offense by females and males. Only within the narrow confines of statute provisions were judges permitted discretionary sentences. Legal reforms in the late 1780s spared women (as they did men) some of the horrors of corporal punishment and the death penalty, but, as we have seen, by defining lesser penalties for crimes touching infanticide, they reduced the number of routine acquittals for that crime and sent greater numbers to prison. Though there is evidence that with the Revolution came harsher new penalties and judges levied maximum sentences, for the most part women in Pennsylvania continued to be recipients of an institutional compassion. Additional study is needed to resolve conclusively whether this leniency as well as the state's declining accusations and prosecutions after 1776 simply resulted from an adjustment of priorities, an idealization of women which left them the object of a condescending indulgence, or a growing respect for women which diminished interest in seeing them appear in un- flattering situations in court.71 Until 1786, in cases of infanticide, almost any excuse enabled acquittal. Prosecutors and juries alike also commonly sought to judge women on lesser charges than those contained in original indictments—and they did so more often than in proceedings involving males—making murder manslaughter, robbery larceny, rioting simple assault. A pregnant convicted felon would gain delays in punishment by "pleading her belly," a strategem which often led to reduced penalties. Judges frequently recommended leniency for convicted females "from a tenderness of [their] sex." Female violators in tippling house transgressions commonly avoided prosecution if they could

70 Hull, "Female Felons," 151-152, 154, 169, 196, passim; Spindel, "The Administration of Criminal Justice in North Carolina," 15 9-60 j and Kealey, "Crime and Society in Mas- sachusetts," 334. Rita Simon, "Women and Crime," The Annals of the American Academy of Political and Social Science, 423 (1976), 43, suggests that leniency toward women has been traditional. 71 On legislation during the Revolution, see Young, "Treason and Its Punishment," 297j Ousterhout, "Controlling the Opposition," 17. Kai Erickson, Wayward Puritans: A Study in the Sociology of Deviance (New York, 1966), 24, argues that, "the numbers of deviancies which come to a community's attention are limited by the kinds of equipment it uses to detect them and handle them, and to that extent that rate of deviation found is at least in part a function of size and complexity of its social control apparatus." 366 G. S. ROWE July prove hardship. When Philadelphia County's Ann George, charged in 1785, submitted petitions testifying to her poverty and good character, charges were dropped. In addition, fines against women often were perfunctorily remitted or, in some instances, never collected. If coverture imposed hardships on females in civil actions, in criminal proceedings it conveyed benefits by declaring women who committed capital felonies (excluding only murder and treason) in conjunction with their husbands to be acting under his command and thus not culpable.72 Leniency toward women can be measured in other ways. Propor- tionately more females than males received pardons and reprieves. Moreover, in oyer & terminer proceedings females were acquitted or had their cases dismissed in almost half (41 percent; N = 39) of the cases, a higher percentage than those for males. Of those cases involving women that came before juries, 30.2 percent resulted in acquittal; for men the figure was 28.3 percent. The effective conviction rate for female cases was 2.37; for males, 2.11. When figures are adjusted to, isolate pre-trial factors, they are 1.14 for female proceedings and .94 for male. Recidivism among Pennsylvania females was low. Only 98 women (6.9 percent) of the 1355 females accused of criminal behavior in this study were repeaters, a rate lower than occurred elsewhere and lower than the male recidivism rate of over 12 percent. Most of the 93 female repeaters appeared only twice. A small coterie of habitual felons including, as we have seen, Ann Winter, however, appear in the records year after year. Nonetheless, in its ability to discourage recidivists and in the speed with which it resolved cases, Pennsylvania's legal system certainly was more efficient than today's courts.73

72 Philadelphia Co., QS Dockets, May, 1785, HSP; Pa. Arch., 1st Sen, IV, 660; Thomas McKean to Council, Feb. 10, 1783, in Clemency Papers, roll 38, PMHC; Rowe, "The Role of Courthouses in the Lives of Eighteenth-Century Pennsylvania Women," 15-17. For a discussion of coverture as it applied to criminal proceedings, consult Sir William Blackstone, Commentaries on the Laws of England, 12 ed., (London, 1746), I, 27-28. 73 Recidivism rates regarding females are rare but it was 8.5 percent in Massachusetts. Hull, "Female Felons," 102. For today, see Source Book oj Criminal Justice—1982 (Wash- ington, D.C., 1983), 463, passim. 1985 WOMEN'S CRIME 367

Pennsylvania's revolutionary experience altered the way its peoples viewed criminal behavior on the part of women and allegations of misdeeds against them. The public did not lose its enthusiasm for punishing habitual offenders like Ann Winter or others guilty of serious offenses; nonetheless, it did come generally to reassess women's criminality. It chose not to prosecute incidents of fornication, bastardy, adultery, and bigamy against women as aggressively as in pre-war years. It chose instead increasingly to view female sexual activity as a private matter or—in the case of illegitimate births—as an economic burden for which males should assume primary responsibility. Au- thorities in post-war Pennsylvania pursued less diligently charges regarding females' involvement in crimes against property and individuals. They preferred rather to concentrate efforts on punishing male crimes, particularly those associated with the Revolution and property violations during and after the war. Whether this change in emphasis occurred because the public came to perceive women differently or because Pennsylvanians viewed their laws and the role of their courts in a different light is not altogether clear. Undoubtedly, shifting views on private sexual matters played a part in the reassessment. But, apparently, so did changing ideological assumptions. Republican ideas challenged conventional wisdom about women's faults and the double standard, for instance. Rapidly shifting social and sexual priorities and emerging political ideas that reshaped community views of women combined with dismay over burgeoning court calendars to evoke the new consciousness. Patterns of criminal accusations and efficiency rates of criminal courts—and modifications in both over time—while capable of il- luminating aspects of womens' lives and facets of the criminal justice system fail in the end to reveal completely the many forces which forged these patterns. An awareness of general patterns is but a first step. The "whys" and "whos" should be part of an agenda for historians that includes examining why Pennsylvania patterns evolved as they did and to what degree Pennsylvania standards paralleled those of other eighteenth-century jurisdictions. Questions which must be pursued to enhance our understanding of Ann Winter, her fellow felons, and the system which processed accusations against them, are at this point more obvious than the 368 G. S. ROWE July

strategies required to answer them intelligently. However, the lives of Ann Winter and women accused of crimes between 1763 and 1790 were indelibly linked with Pennsylvania's law enforcement system. To ignore the bond between the lives of these women and the legal mechanisms which helped to shape their destinies is to offer an incomplete account. Therefore, while the challenge clearly is not to the legal historian alone, a more concerted effort to examine legal materials and to bring a greater susceptivity to legal records is essential. Success in both tasks can lead to a more intimate and compelling understanding of eighteenth-century Pennsylvania society which, in turn, will make more sense of its judicial practices. By the same token, a more sensitive appreciation of its legal forms and assumptions will enable historians to begin to comprehend the many facets of group life and power relationships within Pennsylvania's various commu- nities.

University oj Northern Colorado G.S. ROWE