Wall art depicting a woman and a fetus in a womb with Nursing Clio logo superimposed over it.

The Proof of Pregnancy

In February 1819, the Caswell County Superior Court in North Carolina tried three white women for infanticide. At issue was the state of the remains: whether the body was of a fetus or child. The accused birth mother, Sarah Jeffreys, initially denied her pregnancy but upon repeated questioning acknowledged “she had lost something but she did not know what it was.” As she moved through the legal system, the community — involving a range of white women experienced in pregnancy, a local judge, and several prominent white men — debated whether the remains constituted a fetus or a full-term child.

For Sarah Jeffreys, the distinction was particularly significant. A fetus suggested a miscarriage or pre-term birth, which nineteenth-century Americans understood as a possible — if undesirable — outcome of a pregnancy. Further, even if Jeffreys had induced a miscarriage, in 1819, abortion was not illegal in North Carolina. Disposing of a fetus was, therefore, not a crime. Concealing the corpse of a child born at full-term, however, constituted infanticide, regardless of whether the child was born dead or alive. The maximum penalty for the crime was death.1

Sarah Jeffreys’s case is one of many that illustrate how local people used the legal system to negotiate the complex issues associated with pregnancy, childbirth, and pregnancy loss in the nineteenth-century US. There were no white, male medical practitioners present at Sarah Jeffreys’s trial, and, even if there had been, it is unlikely they would have provided the community with answers any more definitive than those provided by anyone else who participated in the initial inquest and the court cases that followed. Like midwives, doctors in the early nineteenth-century US served as one medical authority within local communities, but were not the sole authority. Absent a singular, authoritative source of medical knowledge, communities turned to the legal system to help sort out the mess.

Painting of a naked woman holding two babies haphazardly.
Medea killing her sons, by Eugène Ferdinand Victor Delacroix (1862) (Web Gallery of Art/Wikimedia Commons)

Inquest records seem an unlikely place to excavate historical understandings of pregnancy loss. In part, the underuse of such historical sources today is prompted by narratives that emerged in the late nineteenth century, which conflated infanticide and abortion in the public imagination. The discourse was powerful, fueling the mistaken and persistent belief that women accused of the criminal act of infanticide did not lose a pregnancy, but intentionally acted to kill a living child.

Such a misunderstanding of infanticide, however, limits the range of possible ways scholars might use and interpret historical legal records pertaining to infant death in the United States. Infanticide was unique, a complicated legal construction as one of the few — if not the only — crimes that did not require a body to establish murder. For that same reason, however, investigations into cases of suspected infanticide also illuminate nineteenth-century ideas about pregnancy and pregnancy loss in a way that other sources cannot. In order to successfully establish if an accused woman — as only women could be convicted of the statutory crime of infanticide — had indeed disposed of her newborn infant, the accusers needed to establish several things.

First, they needed to prove the accused had been pregnant. Next, they needed to establish she had given birth to a full-term child. Finally, the accusers needed to prove the accused woman had disposed of the child. To establish disposal, it mattered not a whit if the child was born dead or alive, a fact that may seem surprising to contemporary readers. Rather, what mattered was the act of concealment. If a woman sought to conceal her pregnancy and the subsequent birth, then she was guilty. Keeping a secret, not the act of killing, was the crime. For keeping that secret, the punishment was death.2

To prove infanticide, therefore, one had to prove pregnancy, not murder. Testifying at an inquest, neighbors (re)considered the size of a woman as she had moved through the town in the previous months. They debated if her enlarged size could be attributed to a “cold” or extra clothing. Jurors sought information about an accused woman’s preparations for a potential birth. Collecting clothes for a newborn infant, for example, suggested a caring and excited expectant mother, but the same evidence also served as proof of an accused woman’s guilt. At inquests, local people testified as to the sights, smells, and sounds of pregnancy, all of which might indicate if a woman had recently given birth. Even the evidence provided by enslaved and free blacks — who could testify against whites at inquests, but not in courtrooms — proved crucial.3

Titian’s Diana and Callisto, 1559, shows the moment when Callisto’s pregnancy is discovered. (National Gallery, London/Wikimedia Commons)

Some accused women were subject to close physical examinations by a group of matrons and midwives. In April 1811, for example, a jury of matrons diligently reported to an all-male, all-white jury of inquest in Caswell County, North Carolina that Elizabeth Beaver’s breasts “milked out yellow milk.” That evidence satisfied the jury that Beaver had indeed recently given birth, and the Justice of the Peace indicted her for infanticide. In contrast to free white women accused of the crime, enslaved black women did not enjoy the privilege of shielding their bodies from the prying eyes of men. At the turn of the century, Dr. Simms of Northampton County, North Carolina testified that he watched “milk drawn freely” from the breasts of Sarah, an enslaved woman suspected of killing her newborn infant. That evidence also proved decisive in Sarah’s case.4

Nineteenth-century juries were diligent, assessing, sorting, and sifting through all available evidence. But communities acknowledged that the legal frameworks for negotiating pregnancy loss proved imperfect. Within the legal system, successful convictions for the crime of infanticide often turned upon detailed and intimate knowledge of pregnancy and childbirth, knowledge that communities conceded was imprecise and messy. Even when juries of inquest established a woman had given birth, grand juries recommended that courts did not proceed with indictments and petit juries elected not to convict. In rare cases, such as those of Sarah Jeffreys, women were found guilty. Even then, appeals to the state Governor often — although not always — ensured relief from the death penalty or a reprieve from a lengthy jail term.

To understand how nineteenth-century Americans understood pregnancy loss, one must first understand how those same people understood pregnancy. Counterintuitively, investigations into cases of suspected infanticide provide an opportunity to examine historical ideas about the pregnant body. As they explored the possibility of concealment and criminal activity, Americans negotiated, defined, and grappled with ideas about pregnancy, childbirth, and pregnancy loss. For nineteenth-century Americans, the law proved a means — albeit a messy and imperfect one — of exploring ideas about pregnancy and creating knowledge about the pregnant body.

Notes

  1. State v. Sarah Jeffreys & Betsy Coombs, May Term 1819, Caswell County, Criminal Action Papers; Archibald D. Murphey, Request to Governor John Branch for Pardon for Sarah Jeffreys, March 16 1820, Governor’s Papers, 49: 3: 356—357; Daniel Malone & citizens of Caswell, Request to Governor John Branch for Pardon for Sarah Jeffreys, undated [@ May 1820], Governor’s Papers, 49: 500-501 March 16 1820; all at North Carolina Office of Archives & History (hereafter NCOAH). Return to text.
  2. The morass of laws relating to infanticide in the nineteenth-century US was complicated, yet they were laws with which nineteenth-century Americans were intimately familiar. The laws in most states originated from the Jacobean statute that created the crime. See 21 Jac. 1, c.27, “An Act to Prevent the Destroying and Murthering of Bastard Children.” Return to text.
  3. Ariela Gross, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Athens: University of Georgia Press, 2000): 72-121. Return to text.
  4. State v. Elizabeth Beaver, May Term 1811, Caswell County, Criminal Action Papers; and Investigation into death of infant belonging to Sarah, 1799, Slave Records (Civil & Criminal), 1785-1829, Northampton County, NCOAH. Return to text.

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