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The Contradictions of Reform: Prosecuting Infant Murder in the Nineteenth-Century United States

Published online by Cambridge University Press:  07 May 2021

Felicity Turner
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Abstract

“The Contradictions of Reform” analyses the complications of reform of legislation regulating punishment for women convicted of infanticide in Connecticut between 1790 and 1860, within the context of broader social, cultural, and legal understandings of the crime within the US. These changes are investigated through a close reading of petitions for clemency to Connecticut's General Assembly in which women convicted of the crime petitioned the state legislature seeking reduced sentences. The article argues that although the nineteenth century opened with legislation that promised death to all women convicted of infanticide, in practice courts and juries never imposed the penalty. Instead, juries proved reluctant to convict and/or death sentences were not imposed, even if juries found women guilty. In the early decades of the nineteenth century, the Connecticut Assembly reformed existing infanticide law in response to a number of social debates about the merits of the death penalty, particularly for women. The article argues, however, that these reforms counter-intuitively resulted in less favorable outcomes for those convicted of the crime, as they found themselves facing lengthy prison sentences. Such an outcome was unlikely in the early decades of the nineteenth century. The article, therefore, demonstrates, the “contradictions of reform.”

Type
Forum: Rethinking the Criminalization of Childbirth: Infanticide in Premodern Europe and the Modern Americas
Information
Law and History Review , Volume 39 , Issue 2 , May 2021 , pp. 277 - 297
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the American Society for Legal History

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Footnotes

She thanks several people for valuable advice on drafts of this article, including the anonymous reviewers for Law and History Review, Laura Edwards, and Sara McDougall.

References

1. In Catharine Dunn's case, the conviction recorded was “murder two.” Under the sentencing options available for such a conviction, the maximum possible penalty was life imprisonment. If convicted of murder one, then the punishment was death. See “An Act Concerning Crimes and Punishments,” Title VI, Chapter 2, Sections 4–5, in The Statutes of the State of Connecticut (New Haven: T. J. Stafford, 1854).

2. “Horrible Case of Infanticide,” Hartford Courant, March 14, 1866, 3; “Miscellaneous Selections,” Hartford Courant, August 7, 1841, 2; and “A Sad Case for a Philanthropist,” Hartford Courant, April 3, 1856, 3. For reported associations between infanticide and “uncivilized” nations, see “Chinamen in California,” Hartford Courant, July 10, 1851, 2; “American Board of Commissioners for Foreign Missions,” Hartford Courant, September 15, 1854, 2; “Rev. Mr. Baldwin… ,” Hartford Courant, January 19, 1859, 2; and “The Chinese in America,” Hartford Courant, April 27, 1862, 2. For the 1854 account, see “Infanticide,” Hartford Courant, August 7, 1854: 2.

3. Two of the bestselling novels in the early nineteenth-century United States, Hannah Webster Foster's The Coquette, originally published in 1797, and Susanna Rowson's Charlotte Temple, originally published in 1791, focused on the plights of white women seduced by rakish men. The sexual encounters resulted in pregnancies and, in each case, the novel ended with the woman's death after she had given birth. The moral, in each instance, is that it was not possible for a woman to survive the ignominy of an illegitimate pregnancy. See Foster, Hannah Webster, The Coquette, ed. Davidson, Cathy (New York: Oxford University Press, 1986)Google Scholar; and Rowson, Susanna, Charlotte Temple, ed. Rust, Marion (New York: Norton, 2011)Google Scholar.

4. My argument builds on the body of work that has critically re-evaluated the role of white women, free blacks, and the enslaved, all assumed to be traditionally marginalized from involvement in the legal system. For early scholarship in this vein, see Edwards, Laura, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009)Google Scholar; Gross, Ariela, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton: Princeton University Press, 2000)Google Scholar; Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1985)Google Scholar; Hartog, Hendrik, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000Google Scholar; and Penningroth, Dylan, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century American South (Chapel Hill: University of North Carolina Press, 2003)Google Scholar. For more recent work that extends and amplifies this literature, see Gronningsater, Sarah, “‘On Behalf of His Race and the Lemmon Slaves': Louis Napoleon, Northern Black Legal Culture, and the Politics of Sectional Crisis,” Journal of the Civil War Era 7 (2017): 206–41CrossRefGoogle Scholar; Kelly Kennington, In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America (Athens, GA: University of Georgia Press, 2017); Yvonne Pitts, Family, Law, and Inheritance in America: A Social and Legal History of Nineteenth-Century Kentucky (New York: Cambridge University Press, 2013); Anne Twitty, Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787–1857 (New York: Cambridge University Press, 2016); and Kimberly M. Welch, Black Litigants in the Antebellum American South (Chapel Hill, NC: University of North Carolina Press, 2018).

5. Petition of Catherine Dunn for release from state prison, May 1861, General Assembly Papers, Connecticut State Archives, Hartford, Connecticut (hereafter CSA); and “Connecticut Legislature,” Hartford Daily Courant, June 14, 1861, 2. Most studies on early American prisons focus on the Pennsylvania model, which was superseded by the “Auburn model,” which was developed in the early decades of the nineteenth century. The term “Auburn model” referred to the Auburn State Penitentiary in New York where the prison system developed the model. On the “Auburn model”—a system of reform that combined working in groups during the day with silence and solitary confinement at night; see W. David Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796–1848 (Ithaca: Cornell University Press, 1965); and Rebecca McLennan, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776–1941 (New York: Cambridge University Press, 2008). Charles Dickens and Alexis de Tocqueville both visited Wethersfield State Prison to review the famed “Auburn system” in action. For de Tocqueville's assessment, see Gustave de Beaumont and Alexis de Tocqueville (trans. Francis Lieber), On the Penitentiary System of the United States (Philadelphia: Carey, Lee & Blanchard, 1833). For an assessment of Wethersfield Prison, see Goodheart, Lawrence, The Solemn Sentence of Death: Capital Punishment in Connecticut (Amherst: University of Massachusetts Press, 2011), 101–4Google Scholar.

6. For the English law, see 21 Jac. 1, c. 27, “An Act to Prevent the Destroying and Murdering of Bastard Children” passed in British Parliament, May 1624. The law stated “That if any Woman after one Month next ensuing the End of this Session of Parliament be delivered of any Issue of her Body, Male or Female, which being born alive should by the Laws of this Realm be a Bastard, and that she endeavor privately, either by drowning, or secret burying thereof, or any other Way, either by herself or the procuring of others, so to conceal the Death thereof, that it may not come to Light whether it were born alive or not, but be concealed: In every such Case, the Mother so offending shall suffer Death as in case of Murder, except such Mother can make Proof by one Witness at the least, that the Child (whose Death was by her so intended to be concealed) was born Dead.” For the development of English law in relation to infanticide see Gowing, Laura, “Secret Births and Infanticide in Seventeenth-Century England,” Past and Present 156 (1997): 87–115CrossRefGoogle Scholar; Mark Jackson, New-Born Child Murder: Women, Illegitimacy and the Courts in Eighteenth-Century England (Manchester: Manchester University Press, 1996); Peter C. Hoffer and N. E. H. Hull, Murdering Mothers: Infanticide in England and New England, 1558–1803 (New York: New York University Press, 1981); and Frank McLynn, Crime and Punishment in Eighteenth-Century England (New York: Routledge, 1989), 110–15. As these historians note, successful prosecutions for infanticide under the original Jacobean statute steadily declined over the course of the eighteenth century amid changing attitudes toward capital punishment.

7. As historians of British infanticide have noted, in his study of newborn child murder in eighteenth-century England, Mark Jackson characterized the term “infanticide” as “anachronistic” and “vague.” See Jackson, New-Born Child Murder, 5–6. Historians of infanticide in the nineteenth-century United States, however, have argued that nineteenth-century Americans understood the term “infanticide” broadly, as one that included a cluster of crimes—such as murder and child abandonment—related to the deaths of infants even as they were aware of the formal legal requirements for ensuring a successful prosecution using an infanticide statute modeled on the Jacobean law. See, for example, Marcela Micucci, “‘Another Instance of That Fearful Crime’: The Criminalization of Infanticide in Antebellum New York City,” New York History 99 (2018): 68–98; and Julie Miller, Abandoned: Foundlings in Nineteenth-Century New York City (New York: New York University Press, 2008), 41–42.

8. All of the material I consulted is available within Record Group 2 (General Assembly Records) and Record Group 3 (Judicial Department) at CSA. The number of cases from Connecticut was typical for a state of its size. Infanticide was uncommon, but neither unexpected nor unfamiliar. Indeed, the number of cases involving unknown infants during this period, both within Connecticut and across the country, suggests that infanticide may have been more common than the number of recorded cases indicates. Further, the very nature of the crime presupposed secrecy. Although the sample from Connecticut does not include cases involving enslaved women, the outcomes for enslaved women charged with infanticide were often analogous to those of free black women in northeastern and mid-Atlantic states. For studies of infanticide in the United States focusing on the period between the Revolution and the Civil War, see Hemphill, Katie, “‘Driven to the Commission of This Crime’: Women and Infanticide in Baltimore, 1835–1860,” Journal of the Early Republic 32 (2012): 437–61CrossRefGoogle Scholar; King, Wilma, “‘Mad’ Enough to Kill: Enslaved Women, Murder, and Southern Courts,” Journal of African American History 92 (2007): 37–56CrossRefGoogle Scholar; Lyons, Clare, Sex Among the Rabble: An Intimate History of Gender & Power in the Age of Revolution, 1730–1830 (Chapel Hill: University of North Carolina Press, 2006), 95–100Google Scholar; Micucci, “Another Instance of That Fearful Crime”; Roth, Randolph, “Child Murder in New England,” Social Science History 25 (2001): 101–47CrossRefGoogle Scholar; Rowe, G. S., “Infanticide, Its Judicial Resolution, and Criminal Code Revision in Early Pennsylvania,” Proceedings of the American Philosophical Society 135 (1991): 200–32Google ScholarPubMed; Spanos, Joanna B., “Pardon or Punish? Legal and Community Interpretations of a Nineteenth-Century Infanticide,” Pennsylvania Magazine of History and Biography 142 (2018): 163–87CrossRefGoogle Scholar; and Wheeler, Kenneth, “Infanticide in Nineteenth-Century Ohio,” Journal of Social History 31 (1997): 407–18CrossRefGoogle Scholar.

9. For the most comprehensive history of Connecticut's judicial and legislative structure, see Horton, Wesley W., The Connecticut State Constitution (New York: Oxford University Press, 2012)Google Scholar.

10. In 1818, when Connecticut drafted its first constitution, the constitutional convention considered granting the pardon power to the executive, as was the norm in other states. The convention elected, however, to ensure that the legislature retained the exclusive right to pardon. Today, the legislature—not the executive—still reserves that exclusive right, although since 1883 the legislature has delegated the power to a Board of Pardons. Although the executive possesses the right to grant a reprieve—to stay a punishment—it still does not possess the power to grant pardons, making Connecticut one of the few American states where the governor does not possess the power to grant pardons. See Horton, Connecticut State Constitution, 130.

11. Ibid., 8–14.

12. For the English law, see 21 Jac. 1, c. 27, “An Act to Prevent the Destroying and Murthering of Bastard Children.” For the relevant Connecticut statute, see “An Act for the Punishment of Murder,” Acts and Laws of the State of Connecticut in America (Hartford: Elisha Babcock, 1786), 162. The 1796 Connecticut law varied minimally from the Jacobean law quoted in full in footnote six. For a discussion of the development of English law and early American law in relation to infanticide, see Hoffer and Hull, Murdering Mothers. For an analysis of early developments in Connecticut law in relation to infanticide, see Cornelia Hughes Dayton, Women before the Bar: Gender, Law, & Society in Connecticut, 1639–1789 (Chapel Hill: University of North Carolina Press, 1995), 210–13.

13. For examples of early cases in which grand juries did not find a true bill, see State v. Hannah Gardiner, July Term 1794, New Haven County, Superior Court Files; and State v. Julia Anderson, December Term 1804, New Haven County, Superior Court Files, CSA.

14. State v. Clarissa Ockry, February Term 1808, Superior Court Files, New London County; CSA; and Petition to the Connecticut General Assembly on behalf of Clarissa Ockry, May 2 1808, Crimes & Misdemeanors, Series II:IV, 92–95, CSA. For a discussion of the case in the broader context of seventeenth and eighteenth century prosecutions for infanticide, see Goodheart, Lawrence B., “Changing Legal Culture in the Early Republic: Connecticut, Neonaticide, and the Case of Clarissa Ockry,” Connecticut History 53 (2014): 3–15Google Scholar.

15. For the role of the grand jury in Connecticut's Superior Court at this time, see Dwight Loomis & Joseph G. Calhoun, The Judicial and Civil History of Connecticut (Boston: Boston History Company, 1895), 178. For Zephaniah Swift's instructions to the jury, see “From The Courier,” Connecticut Courant, February 17, 1808, 1. In a September 1796 letter to David Daggett, speaker of the council and later a judge in the Connecticut Supreme Court, Zephaniah Swift argued for the importance of establishing “general principle[s]” in law, “applicable to all cases.” He criticized the Connecticut judiciary, particularly members of the Superior Court, for seemingly deciding every case on the basis of the individual circumstances presented. This argument seems to contradict what Swift argued in relation to Ockry's case in 1808, but it is important to note that in January of 1808, Swift seemed to suggest that the “general principle” established by the law to date was one that had proved forgiving of the conduct of women, rather than punitive. See Elizabeth Forgeus, “An Unpublished Letter of Zephaniah Swift,” New England Quarterly 11 (1938): 180–86, at 185.

16. Zephaniah Swift, A System of the Laws of the State of Connecticut, Vol. 1 (Windham, CT: John Byrne, 1796), 5.

17. Ibid.

18. Petition to the Assembly on behalf of Clarissa Ockry, Crimes & Misdemeanors, Series II:IV, 92a—92d, CSA. The race of Mrs. Eames, and the other witnesses listed by Ockry, is unknown, although that factor may have been significant. As the law framed concealment—the keeping of a secret as the crime—those accused of infanticide under the statute sought to demonstrate that they had prepared for the birth of the child and told others around them about their pregnancy. Visible signs of an expectant murder included the preparation of linens or clothing for a newborn child. This often served as a successful defense to the crime. See Gowing, “Secret Births and Infanticide in Seventeenth-Century England.” For assessments of how the accused framed petitions for mercy in the early decades of the nineteenth-century, see Irene Quenzler Brown and Richard D. Brown, The Hanging of Ephraim Wheeler: A Story of Rape, Incest, and Justice in Early America (Cambridge, MA: Belknap Press, 2003); and Edwards, The People and Their Peace, 60–61. For an assessment of the exercise of clemency by the executive, rather than the legislature, in an historical context, see Carolyn Strange, Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression (New York: New York University Press, 2016).

19. “An Act to prevent the destroying and murdering of bastard children” passed by Connecticut General Assembly, May 1808, as reprinted in Hartford Courant, June 29, 1808, 1.

20. In succeeding decades, judges sentenced defendants pursuant to the amended law, with the full range of punishments executed. These included a term of incarceration, a fine, and sentencing a woman to standing on the gallows for an hour. See, for example, State v. Charlotte Baldwin, January Term 1817; State v. Catharine Jones, August Term 1820; and State v. Catharine O'brian, August Term 1825; all in New Haven County, Superior Court Criminal Files, CSA.

21. State v. Anna Gilbert, August Term 1813, Superior Court Criminal Files, New Haven County, CSA.

22. Ibid.; and Petition to the Connecticut General Assembly on behalf of Anna Gilbert, Crimes & Misdemeanors, Series II:IV, 85–86, CSA.

23. For a similar set of petitions from the late eighteenth century—also in relation to infanticide—see State v. Hannah Bishop, August Term 1791, Superior Court Files, New Haven County; State vs. Saul Foster, August Term 1791, Superior Court Files, New Haven County; and “Petition of Hannah Bishop, the wife of John Bishop, and [Petition of] Saul Foster…,” May 1791, Crimes & Misdemeanors, II:IV, 72–73; all at CSA. Like the petition drafted by Trueman Gilbert on behalf of his wife Anna, this lengthy petition provided a detailed list of particulars in which the accused outlined the details of their defense previewing what they anticipated presenting in court. Like Gilbert, the assembly directed the local Justice of the Peace to bail the accused, thereby enabling them to circulate within the community before they faced trial. Like Anna Gilbert, the grand jury in the case elected not to indict, ensuring that neither stood trial for the crime of which they were accused.

24. Horton, Connecticut State Constitution, 14–17.

25. Ibid.

26. State v. Sarah Freeman, October Term 1842, Superior Court Files, New Haven County; and Petition of Sarah Freeman for Commutation of Punishment, May Session 1843, General Assembly Papers—African American; both at CSA. Note here that the prison records are incorrect, recording only the original sentence.

27. For general discussions of the movements against the death penalty in America, centered in the New England states during the antebellum period, see Allen, Howard and Clubb, Jerome with Lacey, Vincent, Race, Class, and the Death Penalty: Capital Punishment in American History (Albany: State University of New York Press, 2008), 47–66Google Scholar; Banner, Stuart, The Death Penalty: An American History (Cambridge, MA: Harvard University Press, 2002)Google Scholar; and Masur, Louis, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford University Press, 1989)Google Scholar. For changing public attitudes towards the use of capital punishment for women, see Shipman, Marlin, “The Penalty is Death”: U.S. Newspaper Coverage of Women's Executions (Columbia: University of Missouri Press, 2002)Google Scholar. For debates about the death penalty in Connecticut during this period, see Goodheart, Solemn Sentence of Death, 100–131.

28. In May 1842, members of the Connecticut legislature had investigated the possibility of abolishing capital punishment within the state and proposed legislation for doing so. See Report of the Joint Select Committee, on that part of the governor's message relating to capital punishment: together with a bill in form for its abolishment. May session, 1842 (New Haven: Osborn and Baldwin, 1842). The same report was presented to Connecticut's General Assembly the following year in May, the same time at which Sarah Freeman's death sentence was arousing public debate on the purpose of the death sentence. See Report of the Joint Select Committee: on so much of the Governor's message as relates to capital punishment, with the petition of sundry citizens that it may be abolished; to the General Assembly, May Session, 1843 (Hartford: Alfred E. Burr, 1843).

29. See “Capital Punishment,” Hartford Courant, May 24, 1843, 2.

30. For confirmation of Sarah Freeman's race, I referred to the federal census of 1850, during which year she was still incarcerated in the Wethersfield State Prison.

31. “Superior Court—Sentence of Sarah Freeman,” Hartford Courant, October 24, 1842, 2.

32. For the “Black Law,” see “An act in addition to an Act entitled “An Act for the admission and settlement of Inhabitants of Towns,” May 24 1833. For discussion of Prudence Crandall's case and the Black Law, see Baumgartner, Kabria, In Pursuit of Knowledge: Black Women and Educational Activism in Antebellum America (New York: New York University Press, 2019), 13–45Google Scholar; and Williams, Donald E. Jr., Prudence Crandall's Legacy: The Fight for Equality in the 1830s, Dred Scott, and Brown v. Board of Education (Middletown, CT: Wesleyan University Press, 2014), 81–97Google Scholar.

33. “Inquest on the Body of an Infant,” September 7, 1832, New London County, Superior Court Files: Inquests; State v. Rue & Betsey Benedict, September Term 1832, New London County, Superior Court Files; both at CSA. See Steenburg, Nancy Hathaway, Children and the Criminal Law in Connecticut, 1635–1855 (New York: Routledge, 2005), 154Google Scholar.

34. Petition of Catherine Dunn for release from state prison, May 1861, General Assembly Papers, Connecticut State Archives, Hartford, Connecticut; and “Connecticut Legislature,” Hartford Daily Courant, June, 14 1861, 2.

35. For laws in relation to abortion, see “Offenses Against the Person: Abortion, Miscarriage” Title 19, Secs. 1411–12; for the laws in relation to “obscene” material, see “Offenses Against Humanity and Morality: Obscene Literature: Title 19, Sec. 1537; for laws prohibiting birth control see “Offenses Against Humanity and Morality: Use of drugs or instruments for the purpose of preventing conception,” Title 19, Sec. 1539; and for laws establishing the Office of the Coroner and the Medical Examiner in each county, see “Coroners,” Chapter 124; all in the General Statutes of State of Connecticut, Revision of 1887, Vol. 1 (Hartford: Case, Lockwood, & Brainard Co., 1887). For a useful summary of state-based anti-abortion and anti-contraceptive laws passed in the mid to late to late nineteenth-century, see Bailey, Martha J., “‘Momma's Got the Pill’: How Anthony Comstock and Griswold v. Connecticut Shaped US Childbearing,” American Economic Review 100 (2010): 98–129CrossRefGoogle Scholar.