Abstract
Colonial authorities prosecuted surprisingly few women for the crimes of abortion and infanticide in viceregal Mexico. Although criminal courts tried hundreds of such cases in the nineteenth century, only a handful of trials survive from Mexico’s colonial era. This article examines criminal and inquisition records, jurisprudence, and medical texts to try to explain this discrepancy. The available evidence suggests that women in colonial Mexico did commit infanticide and abortion much more frequently than the surviving documentary record implies but that neither their peers nor courts viewed the crimes as harshly as they would in later periods. Women successfully concealed the crimes, the public declined to view these acts as criminal, and criminal courts treated them with leniency. Justices, members of the public, and mothers themselves privileged other factors, particularly fiscal concerns and the maintenance of codes of female honor, above a concern with the crimes of infanticide and abortion.
In July 1806, Mariana del Carmen Ventura, a prostitute of Spanish descent, stood accused of infanticide before the local criminal court in the town of Zacualtiplan de la Sierra in the present-day state of Hidalgo, Mexico. Having been denounced by a municipal official, Ventura revealed that since she had separated from her husband several years earlier, she had given birth to three children all of whom had died immediately after birth. In the most recent instance, she explained that two months earlier, she had given birth to a boy,
in the middle of the night, when she was alone without a midwife or any other person except my legitimate son Pedro. The child was born alive, but demonstrating that he was about to die (haviendo advertido que quería morir), she took a mouthful of water and blew it into in his mouth, saying “In the name of the Father and the Son and the Holy Spirit,” and then he died. The only one who saw this was her son Pedro. In the morning at about mid-day, she made a hole at the foot of her bed where she buried him and that is where his body remains to this day.
1
Aside from their lurid appeal, a number of issues are striking about this and other such trials involving women alleged to have either committed infanticide or procured abortions in late colonial Mexico. In this article, the author examines twenty-three infanticide and abortion cases tried in the viceroyalty of New Spain between 1652 and 1819. 3 In the first part of this article, the author presents evidence suggesting that women in colonial Mexico committed infanticide and procured abortions much more frequently than the surviving documentation of these crimes suggests. The analysis in the remainder of the article stems from her attempt to explain the possible reasons for both the small number of such cases uncovered in colonial Mexico to date and the clemency—or indifference—with which colonial judicial authorities handled such cases. The author studies these cases as a means of examining how citizens of the viceroyalty of New Spain conceived of both motherhood and aberrations from maternity in the decades preceding independence. The evidence amassed here suggests that, during much of the colonial period, both New Spain’s judicial authorities and the wider body of New Spaniards did not view mothers’ decisions to terminate the lives of their offspring, whether before or after birth, with the horror such acts provoked in later periods. Justices, members of the public, and mothers themselves instead privileged other factors, particularly fiscal concerns and the maintenance of codes of female honor, in their evaluations of—or disinterest in —the crimes of infanticide and abortion.
The majority of the cases examined here were brought before the Real Sala de Crimen, one of the three courts that operated under the aegis of New Spain’s Real Audiencia. Located in the capital, the Real Sala de Crimen functioned as the court of first instance for crimes prosecuted in Mexico City and as both the overseeing body and appeals tribunal for local courts throughout the Viceroyalty. In all the cases brought before the Real Sala discussed here, each of which transpired outside of the capital city, the court operated in this second capacity.
The small number of infanticide and abortion cases uncovered in this central holding of New Spain’s criminal court, one that operated for over a 300-year period, is surprising, particularly when it is viewed in contrast to the skyrocketing number of trials prosecuted in the nineteenth century. In the period between 1842 and 1899, for example, Mexico City’s Tribunal Superior del Distrito Federal alone investigated 394 cases involving abortion or infanticide charges. 4 Why then, are there so few colonial trials? Why is there not even one case originating in Mexico City, the largest city in New Spain, for the entire colonial period? Perhaps, trials that occurred in the capital were destroyed in the fires, floods, riots, and wars that ravaged archival collections in Mexico City. 5 Perhaps, the absence of trials is a reflection of poor record keeping by criminal courts, but why only records for these crimes should be affected is not at all clear. 6 Or perhaps few records exist that originated in regional courts because these had little reason to communicate with the Real Sala on a regular basis in infanticide and abortion investigations. None of these explanations are particularly compelling and initial research into the holdings of regional archives treating the crimes of abortion and infanticide has not uncovered significantly more trials for either crime. 7
It appears, then, that few women were prosecuted in colonial Mexico for either infanticide or abortion. The most obvious explanation for the paucity of trials is that women in Viceregal Mexico did not commit infanticide or procure abortions. 8 But various forms of evidence suggest that this was not the case. While reliable infanticide statistics for Latin America in the colonial period are nonexistent, our knowledge of colonial Latin Americans’ widespread practices of child abandonment is much more complete and substantiates the fact that there were large numbers of children born in colonial Latin America to parents who were unwilling or unable to raise them. Mexico City’s Casa de Niños Expósitos, for example, received an average of 118 infants per year in the period between 1786 and 1813. 9 We also know that, outside of the geographical context of colonial Latin America, in places where judicial records are known to be complete, contemporary infanticide statistics record criminal prosecution of infanticide at much higher rates per capita. 10 We also know that the crime of infanticide is one notable for its consistency across geographical contexts; prosecutions for the crime in England, France, Germany, North America, Ireland, and Poland all share many of the same features throughout the early modern period. 11 Is it likely that early modern Mexican women were less prone, for some reason, to murder their newborns than their English contemporaries? The author suggests that they were not. The small number of infanticide and abortion trials in late colonial Mexico is indicative not of the exceptionally low rate at which women committed infanticide or procured abortions in this setting but rather of the low frequency with which such crimes were denounced.
Further evidence supports this interpretation. We know that New Spain’s systems of both criminal and canon law dictated that both infanticide and abortion be judged severely, presumably reflecting historic responses to the odiousness of the crimes. Criminal law in Spanish America dictated that both acts were punishable by death. The administration of law in the Spanish empire rested largely in the hands of provincial judicial officers— alcaldes mayors and their inferiors, tenientes de justicia. These officials approached the resolution of disputes in the empire through the application derecho indiano (the law of the Indies). Derecho indiano derived both from peninsular and from New World sources. It was founded upon medieval and early modern Castilian legal codes, including the Ordenamiento de Alcalá (1348), the Laws of Toro (1505), the Nueva Recopilación de Castilla (1569), municipal charters (fueros), the Fuero Real (1255), and most importantly, the Siete Partidas (1265). 12 Distinctive American contexts also influenced the formation of Spanish imperial law, particularly after 1614 when Philip III ordered that only laws formulated specifically for the Americas would govern the region. 13 The collection of royal decrees pertaining to the governance of the Indies was first collected in the 1689 Recopilación de leyes de los reynos de las Indias. The Recopilación does not explicitly address the crimes of either infanticide or abortion, but the older peninsular legal codes treated both crimes severely. Infanticide carried the penalty of death by burning in medieval Spain. 14 The Siete Partidas considered abortion as homicide, generally punishable by death for both the mother and the abortionist and did not follow the ancient distinction between “quickened” or “ensouled” fetuses and unanimated ones. 15 The Siete Partidas also classified the killing of children as parricide (the murder of any persons related by consanguinity) and punished such murders with death or life imprisonment, although this code cautioned that infanticide was not considered a capital offence when it involved infants under the age of three days. 16
Midwives in colonial Mexico were instructed that their involvement in abortion would incur the death penalty. One midwifery manual published in Mexico in 1775 warned: Midwives, and any other person, who counsel or cooperate in any way with abortion, sin mortally, even if the creature is not animated, and even if they do this to protect the honour, or life, of the pregnant woman. And if the creature is animated, they incur excommunication reserved to the Pope as well, and they will receive the death penalty for this act.
17
Nineteenth-century legal practice maintained these older precepts, suggesting that contemporary practice continued to influence how legislators and theorists viewed the crimes. Escriche, one of the most frequently cited sources for Spanish law in nineteenth-century Spanish America, set out the medieval and early modern precedents of criminal law in its definitions of crimes and their appropriate punishments. It reported that “people who procure or induce abortion are treated and punished as those who commit homicide, if the fetus is already animated, and if it is not, they incur the penalty of five years of isolation on an island.” Escriche also considered infanticide, like homicide, punishable by death. 22 While legal theory dictated that infanticide and abortion should be punished with death, Mexican justices never awarded such harsh sentences to those investigated for either crime. Both criminal justices who tried these cases, and residents of New Spain were presumably reluctant to incur such harsh penalties on suspected women.
Few were denounced and prosecuted for these crimes, but various forms of evidence support the idea that both crimes were not uncommon. Colonial governors and administrators bemoaned what they claimed was infanticide’s common practice in late colonial Mexico. In 1794, King Charles IV issued a Royal Cédula addressing the plight of “exposed” (abandoned) children throughout his Spanish possessions. He sought to improve the lives of foundlings by providing them with several protections and declaring them all the legitimate “sons of the king.” Charles also included in the decree a number of concrete measures to protect those apprehended while transporting infants to foundling homes, “in the interest of avoiding the many infanticides that occur because of the fear that people who bring infants to foundling homes have of being discovered and persecuted, throw down and kill these children.” 23 He instructed that a person who claimed to be transporting a child to a casa de expósitos should not be detained or examined, lest fear provoke them to a rasher act. Instead, they should be accompanied to the home to ensure the infant’s safe arrival. 24
More locally, the founding ordinances, of the (Orwellian sounding) “Department of Secret Births” (departamento de partos ocultos ó reservados), established in 1806 as part of Mexico City’s Poor House, declared that such an establishment was necessary to provide a place for Spanish women to give birth secretly, so they would not lose their honour. Otherwise, these women were liable to kill their offspring: They are compelled to bury them secretly, to embrace the most cruel, bloody, and horrible acts against themselves and the innocent fruits of their wombs, unfortunate victims that they sacrifice to their own fear. They take powerful abortives and give birth in isolated places without help …
25
Those few documents that do survive hint that infanticide and abortion were practiced more often they were brought to judicial authorities’ attention. The bureaucrats who conducted one 1818 investigation into reports of infanticide originating in Popotla, a suburb of Mexico City, where four or five infant corpses had been discovered during street cleaning, lamented mothers’ ongoing practice of resorting to murder in cases of financial or social desperation. 26 And Francisca Romero, a midwife accused of committing infanticide who was brought before the municipal criminal court of the city of Oaxaca in the early postindependence era, commented that her investigators were searching in the wrong place when they charged midwives as those most often responsible for the crime. Romero declared, “For how often does it happen that mothers are responsible for the homicide of their own children?” 27 The discrepancy between these indications of more widespread practices of infanticide and abortion and the small numbers of cases actually prosecuted suggests that women in New Spain did commit infanticide and abortion more frequently than the archival trail would imply but that few of their peers denounced them for these crimes. Whatever legal codes and royal ordinances might have dictated, colonial Mexicans most often looked the other way when they learned that mothers aborted fetuses or killed their newborns.
This idea is also supported by contextual information regarding birth rates in Mexico City. In the late colonial and early Republican periods, women in the Mexican capital gave birth unexpectedly infrequently. Alexander von Humboldt, late colonial Mexico’s most publicized foreign commentator, himself remarked upon the “very small number of births in the capital.” 28 Silvia Arrom’s findings, drawn from her examination of a sample of Mexico City wills dating from 1802 to 1855, substantiate Humboldt’s observation. Contrary to popular misconceptions of the timelessly enormous size of Latin American families, and the specific evidence of rapid eighteenth-century population increase in the Mexican capital in the last years of the colony and the first of the new republic, nearly 10 percent of the women Arrom studied had given birth to no children by age 45, a further 8 percent had borne only one child and another 14 percent had only two children. And there are other instances, in the earlier colonial period of other urban contexts—for example, Guadalajara in the seventeenth century—that featured surprisingly low birth rates. 29
Alexander von Humboldt saw the scarcity of medical services, celibacy, and Indian indigence as the principal explanations for the capital’s low birth rates. Arrom instead saw the low birth rates as the result of the large numbers of women who remained single or were widowed early. But this conclusion implies that reproduction could only occur within matrimony, a reading belied by the staggering rates of illegitimacy characteristic of colonial Mexico. 30 Over twenty years ago, Thomas Calvo remarked that while it would be foolhardy to explain Guadalajara’s low seventeenth-century birth rate exclusively on the use of contraceptives and abortion, “the issue cannot be lightly dismissed.” 31 And yet, the study of contraception, abortion, and infanticide in colonial Mexico remains largely overlooked to date. The combined evidence of high rates of extramarital sexual activity and low birth rates in particular contexts in colonial Mexico suggest that women’s practices of contraception, abortion, and infanticide were more common than has hitherto been acknowledged. 32
The archival trail documenting colonial women’s practices of contraception is faint. Some evidence does survive that reveals that colonial women, particularly parteras (midwives) possessed knowledge about birth control in the colonial period and shared this information with their clients. 33 Colonial practices of contraception appear to have largely derived from the preservation of pre-Columbian practices. Both the sixteenth-century Franciscan missionary, Bernardino de Sahagún, and his contemporary, the eminent naturalist Francisco Hernández de Toledo, described in their scientific treatises on the flora and fauna of the New World, how the Nahuas possessed knowledge of several plants that discouraged reproduction or provoked sterility, including tetexquilitl, axoxooquilitl, and tlaxoxiloxóchitl. 34 There is ample evidence that midwives in the late colonial period retained many pre-Columbian obstetrical knowledge and practice, and we can presume this expertise included knowledge of contraception. 35 Ignacio Segura suggests as much in his late eighteenth-century midwifery treatise in which he warns that “because parteras mingle with people of great coarseness, it is worth warning them that it is a mortal sin to do anything that can impede generation [of offspring].” 36
More evidence survives documenting abortion practices in the colonial era. Spanish historian Gonzalo Fernández de Oviedo recorded indigenous women’s use of abortafacients in his 1535 Historia general y natural de las Indias: “There are others so friendly with lust that if they become pregnant they take a certain herb, that later stirs up and casts out the pregnancy [from a woman’s body].” 37 Francisco Flores, who published a four-volume history of Mexican medicine in 1886, detailed pre-Columbian obstetrical knowledge, noting that the Aztecs practiced abortion (tlatlaxiliztli). He also referred to Francisco López de Gómara’s sixteenth-century observation that among the Aztecs, “many abort in secret.” 38 Flores described how pre-Columbian Mexicans provoked abortions through the use of cihuapatli (an aster flower), mecaxochitl (a pepper), and yyauhtli (a marigold), as well as from a powder made from the dried and ground up tail of the tlaquatzin (opossum), which they considered a very powerful abortifacient. 39
Use of these substances persisted into the colonial period. Francisco Hernández observed in his early-seventeenth-century study of New Spain’s botany that the yyahthtli plant could be applied on the body to provoke both urination and menstruation, and that it also expelled stillborn fetuses from mothers’ wombs.
40
In a medical tract composed in 1795, Antonio León y Gama, one of New Spain’s most respected scientific writers, commented that “all the uterine illnesses that women suffer from find efficient remedy in the multitude of herbs known by the generic name of cihuapatli; or medicine of women.”
41
Even as late as the close of the nineteenth century, Mexican parteras continued to use cihuapatli to induce labor, and likely to provoke abortions as well, although the institutional profession in this era soundly chastised them for it.
42
The continuity of pre-Columbian knowledge of herbal abortives is also documented in an obstetrical treatise that physician Nicolas León composed in the mid-nineteenth century about the Tarascan Indians of Michoacán. León observed that, I have had the opportunity to observe an intentional abortion that was brought about by the ingestion of a powerful infusion of the seeds of strong Phurénchequa (Eritrina coralloides Sess et Moc. Leguminosas)… I have also been informed that the plant called in Mexican Chihuapatli is used for this end as well as mechanical manipulations with the hands.
43
Various criminal and inquisition trials from the colonial period also document that seventeenth- and eighteenth-century parteras provided women with herbal abortifacients, or with remedies to “regularize” the menses. 47 According to the prolific scientific writer Antonio León y Gama, even so ubiquitous a substance as pulque, a popular fermented cactus drink, could be used “to provoke the menses in women.” 48 One mid-seventeenth-century inquisition investigation of a mestiza partera and curandera (healer), Isabel Hernández, described her participation in this medical treatment. Among the crimes for which Hernández was denounced was her provision of an abortion to a woman “believed to be a virgin” who was pregnant. Hernández testified to the court that in this case, when the woman’s hour of birth arrived, she was called by the woman’s family who had publicized her condition as simply “the detention of the menses.” This was a condition well-known in the colony’s medical literature. According to physician Juan Manuel Venegas, who published the Compendio de la medicina práctica in Mexico in 1788, it was understood to have such innocent (and self-contradictory) origins as, “the good or bad disposition of the organs, health or sickness, robust and weak complexions, hot or cold climates….” 49 Medical works circulating in New Spain provided various remedies for inducing the resumption of the menses when these had been “suppressed.” These works suggest that in this context, as John Riddle discovered was the case in Europe before the late-nineteenth century, “most authorities did not consider the taking of a menstrual regulator, regardless of whether there was a pregnancy, as an abortifacient. Unless a woman was demonstrably and visibly pregnant, she was not pregnant until she so declared.” 50 Similarly in late colonial Mexico, institutional medical authorities believed women’s menses could become suppressed for various reasons other than impregnation. Juan Manuel Venegas, Mexican professor of medicine, wrote in his Compendio de la medicina in 1788 that such suppression could be caused by various alterations in the body’s blood flow induced by “fright, sadness, dizziness … violent rage, hysteria, and convulsion.” 51
In the case of the seventeenth-century inquisition trial, Isabel Hernández had given the laboring mother some powders and the woman had given birth that same night, and talk ran in Tlaxcala of this confessant, and how she had cured the woman with some powders and while many friends asked her what powders she had used, she responded that they were some powders that she knew and did not want to say, when the truth was that she had not wanted people to know about the moral laxity of this woman.
52
Various forms of evidence indicate, then, that colonial midwives made some forms of contraception, and perhaps more frequently, menstrual “regulators” and abortions available to women in colonial Mexico. “Regulating the menses” was a legally and socially accepted practice; abortion and infanticide were, of course, illegal. Yet, both were practiced in New Spain, and, the author argues here, were practiced more frequently than the small numbers of instances in which these crimes were prosecuted would suggest. This indicates that members of colonial society were either hesitant to denounce women who engaged in either practice to New Spain’s criminal tribunals, did not consider abortion and infanticide criminal acts, or did not suspect that infanticide or abortion had taken place, perhaps because women, were adept at successfully concealing unwanted pregnancies and offspring. In the cases examined here, witnesses, even those who experienced intimate daily interactions with pregnant women, testified to the court they were ignorant of these women’s conditions, even very late in the gestational period.
It is also possible that members of the public, for much of the colonial period, would have displayed greater tolerance for women who breached the law by committing infanticide or procuring abortion in the same way that they tolerated illegitimate family members so prevalent in colonial society. Ann Twinam and Muriel Nazzari have both demonstrated that women of the Latin American elite successfully avoided having premarital pregnancies damage their reputations by concealing their pregnancies. Often, they were later able to integrate the resultant offspring into their families as agregados and occasionally succeeded eventually in legitimizing them. 53
As well as the low frequency with which members of the public, or state officials denounced women for committing infanticide or procuring abortions, such trials are also intriguing because of the remarkable degree of leniency with which both criminal and ecclesiastical courts in New Spain treated both infanticide and abortion cases. Seven of the eleven abortion trials examined here were cases brought before the Holy Office of the Inquisition, and in all of these trials, the court either did not pursue the case beyond the initial denunciation or did not focus on the crime of abortion in either its formal accusation or its sentence. 54 In one trial dating from 1731, a priest, Gregorio de Jesús María, denounced himself to the Holy Office for soliciting and impregnating two women, and citing Innocent XI’s condemnation of the deed, for attempting to procure abortions for them. On one occasion, he had attempted to arrange for a partera to abort the fetus; on the second, he himself had provided the woman with an abortifacient for her consumption. The inquisition did not pursue the case beyond his initial denunciation. 55
A mid-eighteenth-century inquisition trial from Zultepec involved Juana Incolaza Flores’ denunciation of midwife Lucia Berrueta. Berrueta had previously declared to Incolaza that she had previously “lost” six of the seven babies to whom she had given birth. The seventh had disappeared from her womb when she was six months’ pregnant. Berrueta described having awoken one night to discover the fetus’ physical absence from her body, and deduced that it must have been because the fetus was a
Saurie [a spiritual being] and that at six months after conception in the maternal womb, while the mother is sleeping, Sauries leave the womb to seek graces, and once they find them, return to the womb to await the remaining months for the day they will be born into the world and attain, once born, the use of their divinatory gifts and the favours that await them.
56
The court chose to suspend altogether its investigation of one late-eighteenth-century Clarisa nun who claimed to having aborted with the assistance of the Virgin Mary. Sor Ana María La Cal’s confessor denounced her to the inquisition in 1788, stating that she had sometimes “executed lewd acts in front of others, speaking with the devil, as if she was sinning with him.” 57 The convent’s Mother Abbess swore that Sor Ana María had told another nun that she was pregnant and that the child inside her stomach would be called Juan, and that “he was destined to be another Baptist and another Messiah that would save the whole world.” 58 Despite her impregnation with this miraculous progeny, however, Sor Ana María desired to abort her child. Her confessor told the court that he had heard Sor Ana María claim in public that “although I have been left pregnant, Holy Mary will save me.” 59 He also attested that everyone in the convent knew that Sor Ana María had procured an abortion. Several other witnesses confirmed his testimony. 60 Likewise, in several other inquisition cases in which the accused confessed to either providing or having procured abortions, the court of the Holy Office either dismissed the charges, or did not focus on the issue of abortion in its judgments. 61
Four criminal trials from the late colonial period involved abortion, but again, in these instances, justices either ignored denunciations, or did not sentence those convicted with severity. One undated denunciation of a military officer who had procured an herbal abortion for a woman he had impregnated was not pursued.
62
In a second case, tried by the Tribunal de Justicia de Indios, the curate of Tultitlan had sentenced the indigenous woman María Manuela Ramos to depósito (supervised custody) after learning she had procured an abortion, but Ramos had managed to flee before being confined.
63
A third trial, dating from 1784, concluded with a sentence of depósito, but in this instance, the ruling was overturned. The judges of New Spain’s Real Sala de Crimen originally convicted Matiana María, an unmarried Indian woman from the town of San Lorenzo Tultitlan, to six years’ reclusion in Mexico City’s Santa María Magdalena recogimiento, a reformatory institution for women, for “having aborted in the countryside and having left the creature to be eaten by animals.”
64
Matiana María claimed that she had not intentionally aborted, but had suffered a misbirth, alone, had left the remains of the fetus exposed, and had then sought refuge in the parish church of San Lorenzo. From there, San Lorenzo’s teniente, the local official who administered justice in the town, had extracted Matiana, requesting permission to interview her, and had then tried and convicted her. But San Lorenzo’s curate vigorously objected to these actions, and eventually threatened excommunication to the teniente if he did not return Matiana to his care. Concern over whether Matiana had actually committed the crime was of secondary importance to curate don Martin Josef Verdurgo. He was preoccupied, rather, with the threat the case posed to his jurisdictional privilege over Matiana. Most of his correspondence dealt with questions of jurisdiction. In passing, he merely observed that, Matiana and the other witnesses have declared, in summary, that the only crime here was that of having had an accidental misbirth and there is no fault in that, as well as not having procured that Holy Baptism be administered to the baby.
65
In a final 1786 trial originating in San Antonio Xacala, judicial authorities sanctioned Juana Trinidad Márquez, for having procured an abortion, but with a far lighter sentence than that ostensibly mandated by the law. Antonio Márquez, Juana Trinidad’s second cousin, had impregnated her, according to her testimony, under the promise of marriage, and had then abandoned her. She had subsequently taken some herbs to abort the fetus. Juana Trinidad was sentenced to perform public spiritual penance and six months reclusion, while Antonio was exiled from his home town for one year, required to perform public spiritual penance, and mandated to pay Juana a 100-peso fine. In its investigation, however, the court was much more preoccupied with the issue of the couple’s contravention of incest sanctions and with Juana Trinidad’s loss of her virginity than it was with her consumption of an abortaficient. 66
The leniency with which criminal courts treated these crimes is even more explicit in the infanticide cases, where an overwhelming pattern of dismissing or acquitting the accused emerges. Of the twelve infanticide cases studied here, only three resulted in convictions. Little information survives for two of these cases; all we know is that, unusually, two men were imprisoned for the crime of infanticide, one in 1711, and the second in 1800, in Villa Alta, Oaxaca, and in Tlaxcala, Puebla, respectively. 67 In the third case, also from Oaxaca, but dating from 1699, several of the neighbors of Juana Hernández an indigenous widow from the town of San Juan Yalagui, described how she had hidden the birth of a child and had exposed “what she gave birth to” so that it was devoured by dogs before it could be baptized. 68 In various settings in the colonial context, the horrific image of wild dogs devouring unbaptised exposed children functioned as a trope to support efforts for the construction of foundling homes. 69 However, as this case and several others illustrate, dogs were known to literally and not just figuratively devour exposed infants. As punishment, the alcalde mayor (royal district governor who acted as a local judge) for the town of Villa Alta de San Ildefonso determined that “Hernández, should be deposited in the house of Juan de Aguilar, bailiff of the jail of the town until such time as the accused should marry … so that she avoid sins and live honestly and chastely.” 70
As in the case of Juana Trinidad Márquez’s abortion investigation, the criminal court seemed more concerned with Hernández’s upholding of conventional gender codes than with the possibility that she had committed the criminal act of infanticide. 71 Kristin Ruggiero explains that by the late-nineteenth century in Argentina, infanticide carried a lesser sentence than did homicide. To be classified as infanticide, the child had to be a newborn and the crime had to have been carried out by the mother in order to hide her public dishonor, which was thus judged a mitigating factor in prompting a woman to kill her offspring. 72 Mexico’s colonial infanticide trials suggest that such concerns were already paramount at least one century earlier.
The outcome of three other infanticide cases is not clearly indicated in the existent documentation. 73 However, judges in local criminal courts or in the capital’s Real Sala de Crimen either acquitted, dismissed, or pardoned the accused in each of the remaining six infanticide cases, including in the 1806 trial Mariana del Carmen Ventura, with which this article opened. A few examples serve to illustrate. In one instance, a municipal official in the town of San José de Tula (Hidalgo), denounced a Spanish woman he had come across in a laneway, clutching a newborn’s corpse with bloody hands. The mother, Teresa Escobar Betolaza, declared her infant had been stillborn. Since no physicians were available in the town, the court called upon two phlebotamists (bloodletters) and a midwife to examine the infant’s corpse. They all attested that their examinations revealed that the baby had been born alive and had subsequently died. The midwife, María Josefa de Lara, said she had inspected the corpse and seen a “blow close to the skullbone that had broken the bone,” and another blow that had broken a rib. She judged that while likely premature, the infant had been born alive and then had been hit or dropped and this had caused its demise, an interpretation also favored by Teresa Escobar’s denouncer. 74
Escobar’s eloquent curador, Don Francisco Ortiz Hidalgo, (who had housed Escobar en depósito in the days before her miscarriage) introduced a different interpretation. He asserted that his discussion with two other phlebotomists had confirmed that her child must have been born prematurely and that both a very long walk and the jostling she received in a crowded church a few days before her labor had surely provoked her miscarriage. 75 The court sent copies of the case’s testimonies to several doctors and requested that they provide written opinions of these. These physicians concurred that there was just cause for believing Escobar’s labor had begun prematurely and concluded that the infant could have been stillborn, supporting her curador’s interpretation. The court accepted the interpretation the physicians introduced, and, repudiating the ignorance of both the phlebotamists and the midwife, released Teresa Escobar from prison.
In another 1807 trial from Temasaltepec (Mexico), a mestiza servant, María de la Luz Lara was accused of drowning her newborn. Two eye witnesses described how they had discovered Lara alone on the banks of a river immediately after she had given birth. The soaking wet corpse of her newborn lay in a drenched basket beside her. Lara claimed that the infant had been born dead and said she then placed it in the basket which had rolled into the river and floated there until she had succeeded in fishing it out. Her defense rested on the argument that if she had killed the newborn and wished to dispose of its body, she would not have dragged it out of the river. Lara claimed that a fall from a ladder that she had sustained a few days earlier had caused her to miscarry the infant. Her employer testified that such a ladder did exist in her house, but no one had seen Lara fall from it. Despite the possible cause for doubt her case raised, the court again accepted Lara’s defense and released her. In Lara’s case, as in several others, the directive to declare her innocent rested partly on a physician’s assessment that she might have miscarried and partly on the ruling of a Mexico City official, here the fiscal (prosecutor) of the Real Sala de Crimen. He wrote that, it has not been possible to prove that María de la Luz Lara maliciously aborted and killed the fetus. Although there are some indications that she did, upon which the case was founded, they are not decisive, nor is there hope that the verification of the crime might happen in the future, for this reason, the prosecutor judges just that the sentence of his inferior [the local administrator of justice] in which the said Lara is absolved.
76
One of Dolores’ nieces followed her aunt’s grim directive. In her testimony, María Felipa Urbana, 14, explained that Dolores had ordered Jacoba to “smother her child so that her [Dolores’] husband would not hear it.” When Jacoba hesitated, her aunt told Urbana to take the child and kill it, so she had carried the infant to a nearby ravine where she had “squeezed the air out of its little neck.” With the assistance of her cousin, María de los Santos, she had buried the corpse, marking the ground with some nopal leaves. 81 The court imprisoned all three women, and investigated their case for two years, but in December 1821, in the first year of Mexico’s independence from Spain, the prosecuting fiscal judged the accused parties in the case to qualify for a general pardon that Imperial Mexico had issued. 82
In each of these instances, and in several others, officials of New Spain’s criminal court system seemed prone to treat those suspected of infanticide or abortion with leniency when any possible grounds for the dismissal of the cases existed. 83 The leniency characterizing both secular and sacred tribunals seems odd, given the contemporary church and state’s condemnation of both abortion and infanticide. It is also clear that Mexican tribunals assessed those suspected of these crimes with a great deal more clemency than various other court systems elsewhere or with Latin American courts in a later period. Contemporary European courts prosecuted these crimes vigorously. In Paris, France, the records of the high court of appeal with jurisdiction over a population of eight to twelve million people revealed that from the sixteenth to the eighteenth century, approximately 1,500 women (and a handful of men) were executed for the crime of infanticide 84 In the English setting, the Court of Great Seesions at Chester, hanged 27 of the 112 people accused for committing infanticide between 1650 and 1800. 85 While court and prison records from Nüremberg, Germany document that eighty-seven women were executed for infanticide from 1513 to 1777. 86 Criminal courts in Buenos Aires, one of the few Latin American settings in which the history of infanticide has been documented, investigated twenty-five women for infanticide, convicting 80 percent of them, between 1871 and 1905. 87
The leniency with which tribunals in New Spain treated those accused of infanticide and abortion is also apparent if conviction rates for these crimes are compared to general criminal conviction rates. In 1796, for instance, out of a total of 574 trials brought before the Sala de Crimen in Mexico City, only 1 percent resulted in pardons, and a total of 31 percent in prisoners’ release. And in the period between 1800 and 1817, the alcalde ordinario of Mexico City’s Cuartel Mayor No. 7 in the north of the capital, tried a total of 502 criminal cases, and of this group again pardoned 1 percent, and released 35 percent of the accused. 88 In contrast, not one of the infanticide case the Real Sala tried ended in a conviction. What could account for this discrepancy? Why were women getting away with murder in colonial Mexico? Did New Spain’s popular and legal culture afford women greater autonomy in deciding about whether or not to bear or raise children than we have previously assumed?
Several factors may account for both the public’s reluctance to denounce these crimes and the court’s unwillingness to convict women for them. We might first consider that the high incidence of infant mortality that colonial Mexicans faced is an important contextual point that helps explain why both communities and court officials might have hesitated to suspect women of committing infanticide. Across Latin America in the colonial period, infant mortality rates were astronomical. According to the 1683 Numeración General of Upper Peru, for example, life expectancy was only twenty-five years and nearly half of the population died before age 10. In eighteenth-century Mexico, infant mortality was probably over 250 per 1,000 births. 89 Consideration of this factor surfaces in the trials examined here. In the prostitute María del Carmen Ventura’s infanticide trial, the curador acting for the accused characterized the charge against Ventura as unfounded and capricious. Women in his midst, he argued, frequently miscarried, “and was this always because they killed their babies?” 90 High rates of infant mortality might also explain why members of the public were willing to extend the benefit of the doubt to women whose infants died soon after birth.
Mexican justices might have been reluctant to find people guilty of either abortion or infanticide because legal theory (if not judicial practice) dictated that those convicted be awarded the death penalty. 91 However, research on criminal sentencing in colonial Mexico reveals that magistrates exercised considerable discretion in assigning sentences in the local context of New Spain, more often exercising clemency than legal codes dictated. 92 Therefore, a desire to avoid sentencing women with the death penalty—as was dictated by peninsular law—does not offer a full explanation.
However, a second factor that offers a more compelling explanation account for the low rates of conviction in infanticide and abortion cases is that magistrates did not hold the accused to severe degrees of scrutiny because they did not view the victims of these crimes—fetuses and newborn children—as valuable, or, rather, deemed them less valuable than those things that their mothers would have sacrificed—their honor and their livelihood—if their offspring had lived. This would at least have been the case for the infants and fetuses affected in the cases discussed here, who were uniformly illegitimate and poor and often mixed race. In the same way that crimes committed against women were prosecuted less severely in the colonial era than those in which the victims were male, crimes such as those examined here, in which the victims had little social standing might not have been treated with great seriousness. 93
The interpretation that these types of children were little valued in colonial society is certainly borne out by some of the statistical information we have pertaining to the quality of life—and the frequency of death—they experienced in New Spain’s orphanages and foundling homes. Child mortality in Latin American foundling homes could climb to as high as 80 percent in this era. 94 In the first eight years after its foundation in 1767, Mexico City’s Casa de Niños Expósitos, for example, received 619 abandoned children; 415 of them died in infancy. 95 Similar conditions prevailed in Havana’s contemporary foundling home, where Ann Twinam observes, “for most babies, abandonment at the Casa proved a virtual death sentence.” 96
Such conditions persisted despite the Bourbon monarchy’s late-eighteenth-century campaign to ameliorate the well-being of Spanish American children through policy measures to scientifically improve hygiene, medicine, education, family relations, and public institutions. These measures included Charles IV’s 1794 Cédula and the founding ordinances of theDepartamento de partos reservados, discussed above. 97 Several scholars have argued that Charles’ 1794 decree defending the rights of unborn and abandoned children did not take into account the central role that race played in tensions surrounding the treatment that illegitimate offspring experienced in the New World setting. 98 In decreeing that illegitimate offspring in his possessions should henceforth be considered the legitimate “children of the king” the Bourbon monarch imagined this status extending only to babies of pure Spanish lineage, but of course, such offspring would have constituted only a fraction of those born illegitimately in Spain’s overseas possessions. Cynthia Milton observes that colonial bureaucrats would have been hesitant to award legitimacy to Indian or free black offspring because this would have potentially deprived them of a source of those who would contribute tribute (a head tax paid by Indians and free blacks but not by mestizos or Spaniards) to their treasuries. 99 In Lima, Bianca Premo found that local elites resisted new policies because “these were antagonistic to traditional modes of colonial rearing, especially those that reproduced caste differences by creating quasi-familial ties of dependency between the city’s children and the myriad of adults who raised them.” 100 Furthermore, Ann Twinam argues that both the Council of the Indies and the local elites in Spanish America attempted to subvert the illegitimacy Cédula because “they feared that any legislation that gave expósitos the natal and racial benefit of the doubt might open up dangerous potentials for upward social and racial mobility.” 101 Evidence from the Mexican infanticide and abortion trial transcripts supports the interpretation that, in a similar vein, magistrates and inquisitors did not enthusiastically embrace the Bourbon state’s triumph of the improvement of the status of children.
In other cases, awareness of the economic circumstances of the accused parties’ economic circumstances seems to have prompted justices to acquit suspects. In one 1792 trial from the town of Atitlaquia (in present-day Hidalgo state), both Juana Josefa Alsivar and Lorenzo Hernández, were imprisoned for exposing a newborn whose body was discovered by neighbors, “whose face and head had been eaten by animals.” 102 Alsivar, a poor nineteen-year-old Spanish woman said Hernández had repeatedly forced himself upon her. She testified to the court that the day before her appearance, she had been collecting water from the river when she had fallen face down on the ground when frightened by a snake, but had miscarried on her way back to her house. Since the infant was dead, she had wrapped her in some white cloths and hidden her on the path to her house. Three weeks later, with their trial still pending, Lorenzo Hernández’s wife, María Ignacia, india cacique, appeared before the court to plead that her husband “imprisoned in the royal jail for suspected illicit friendship” be released. She declared that she was pregnant, very sick, and “hardly able to walk.” Although Hernández had confessed to having had a relationship with Alsivar, his wife claimed he was innocent and pleaded that he be released, “because I do not have anyone who can look after me in childbirth, nor anybody to provide me with food to eat.” 103 Two weeks following Ignacia’s plea, and having secured no further evidence from any party about either the illicit friendship or suspected infanticide, the court released both Alsivar and Hernández from prison, threatening both parties with future imprisonment if they maintained communication with one another. 104 In this case, then, the practical matter of addressing María Ignacia’s economic circumstances, albeit themselves involving the future well-being of another newborn, outweighed the court’s concern over his and Alsivar’s suspected criminal actions.
For the women accused of these crimes themselves, as for the magistrates who investigated them, economic necessity surfaced as a central explanation for the commission of such crimes. 105 Many of the accusations examined here involved cases where women had attempted to hide a pregnancy or a child’s birth. Most often, accused parties claimed that rather than guilty of infanticide or abortion, they were guilty only of having not provided their infants with proper baptisms and burials after having miscarried. Most of the accused came from poor social classes and they were uniformly single—either unmarried or widowed. Their occupations were not always recorded in their trials, but several women indicated that they worked as domestic servants, two were midwives, one was a nun, and another was a prostitute. As their descriptions of the circumstances under which they gave birth or miscarried reveal, they were women with few resources—temporal or material—to spare. Angela Hernández, an Indian from San Agustin Tlautepeque, for instance, told the alcalde of Teposcolula in 1810 that she had miscarried alone, behind a house in the town of Achutla, since she had “no other refuge” and, since the child had been born dead, she had left it there and immediately returned to her own town. 106 A servant, María de la Luz Lara, working in the town of Temascaltepec in 1807, also gave birth by herself, reclined on the rocky banks of a river near her employer’s house, because, she claimed, her employer refused her request to take shelter in her mother’s house or that of a neighbor. 107 These were women who could not afford the luxury of recuperating from physical duress—whether in the form of childbirth, miscarriage, or abortion—and would have been similarly pressed, in some cases unsustainably so, had they needed to allot newborn care into the schedules of their working lives.
A more explicit motivation the accused provided for their concealment of births, or in one instance, even for the murder of a newborn, was the defence of honor. In the colonial era, women maintained their honor—and that of the men associated with them—through the viability of their public reputation for chastity. These cases substantiate earlier research on plebeian perspectives of honour that argued that lower class and mixed race populations in colonial Latin America absorbed and appropriated ideas about social propriety and public identity championed by Spanish elites. 108 Hiding the birth of illegitimate children in order to preserve public reputations for chastity was a chief motivation for birth concealment, even among the lower class women examined here. (Concealing pregnancies seems to have presented women with less of a problem, for in many of these cases, witnesses in close physical contact to the accused, including their mothers and employers, testified that they had not known that suspects, even those well advanced in pregnancy, were with child.) In one 1819 trial, María Dolores, the wife of the Indian foreman of an estate in Tepeapulco, Hidalgo, admitted that she had ordered her nieces to “silence” a newborn baby on the night of its birth. Dolores testified that one of her nieces had given birth to a baby whose father was Dolores’ son (and thus the mother’s first cousin). Dolores declared that she wished to prevent the dishonour that knowledge of the child’s existence would bring to both her husband and her son. 109
For lower-class women, the need to preserve a public reputation for chastity was closely related to financial imperatives. In her 1807 trial, for instance, Prudencia Tereza Escobar, a woman of Spanish descent from the town of Tula, testified that, “carried away by her own weakness,” she had been seduced by Antonio José, an Indian who had seduced her under promise of marriage. Once she had discovered she was pregnant, and “fearing the reaction of [those in] her house, feeling herself ready to give birth, she left the house where she worked with the desire to give birth in the countryside.” 110 Similarly, María de la Luz Lara, also declared that she had made efforts to hide her pregnancy and birth from her employers. 111 Significantly, for both of these women, the audience before which a successful staging of sexual virtue was crucial was that of Spanish employers.
Financial pragmatism played a crucial role in determining the decisions Prudencia Teresa Escobar, María de la Luz Lara, and many other reluctantly impregnated women in late colonial Mexico would make about childbirth, infanticide, and abortion. Evidence amassed from colonial criminal records, inquisition trials, medical texts, and state decrees suggests that such women opted to end the lives of their offspring, either prior to, or shortly after, their births rather more often than the scarce surviving documentation would suggest. Their peers may have declined to denounce women to state or church authorities for these crimes because of the frequency with which newborns died from natural causes in colonial Mexico or because women were skilled at concealing the evidence of such crimes. But the fact that their peers were reluctant to denounce women for abortion and infanticide, and that, on those rare occasions when they were criminally investigated, magistrates prosecuted them so infrequently, suggests that these mothers’ assessments of the limits of acceptable maternal behavior was not far removed from those held by the wider body of New Spaniards, including the judiciary. Beginning in the mid-eighteenth century, colonial authorities began championing a new enlightened discourse of the child, celebrating children’s potential value as a future subjects of the state. As the Republican era dawned, state makers and reformists similarly celebrated the important educational influences that mothers exercised in the education of the young, escalating the importance of motherhood. However, neither of these transformations, by the end of the colonial period, had made sufficient inroads to exert a significant influence on the way in which judicial authorities or members of the public perceived of the inherent value of future citizens, if these were poor, illegitimate, infants. Such changes, however, would arise in the course of the nineteenth century, when Mexican rates of prosecution for both crimes rose dramatically.
Footnotes
Acknowledgments
The author is grateful to Nancy van Deusen, Zeb Tortorici, the Journal of Family History’s anonymous readers, and several of my colleagues and students for their thoughtful reactions to this material.Thanks also to Linda Arnold for her generous sharing of sources, inventories, and expertise.
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: funding received from the Fonds Québécois de la rechereche sur la société et la culture (FQRSC).