Maternity as a Legal Fiction: Infanticide and Sir Walter Scott's The Heart of Midlothian

She sat down below a thorn Fine flowers in the valley, And there she has her sweet babe born And the green leaves they grow rarely. "Smile na sae sweet, my bonny babe," Fine flowers in the valley, "And ye smile sae sweet, ye'll smile me dead," And the green leaves they grow rarely. She's taen out her little pen-knife, Fine flowers in the valley, And twinned the sweet babe o' its life, And the green leaves they life, grow rarely. from "The Cruel Mother"' (traditional Scottish ballad) Laws tell stories-stories that create a typology of female legal subjects (or more properly, legal objects). Such stories about women historically have been written by men and delineate a mythical feminine sexual ideal with punishments for deviations from that ideal. Because legal stories (such as those contained in common law or statutes) are ostensibly impartial, they are all the more authoritative. Simple criticism, let alone outright attack, becomes an uphill task in the face of an official discourse that can lay epistemological claim to Right, Justice and Truth. As Antonio Gramsci notes, the most trenchant hegemony is that which inspires both the powerful and the oppressed to acquiesce in its ideology because no other worldview seems imaginable. But imagining the unimaginable is precisely the province of another privileged discourse-the novel. The novel's favored position, like that of a court jester, gives it the freedom to criticize the established order in a manner that, under other circumstances, would result in severe punishment. Law, as one kind of fiction., exists in a complex symbiosis with that other great fiction, the novel. The law and the novel are constructed on the same epistemology, empirical and circumstantial, but both are inherently fictional, that is, artificial and symbolic. Thus, Ian Watt notes the similarities between a novel reader and a juror: both attempt to ascertain the truth of a case, take the "circumstantial view of life" and want to know "all the particulars" of a case. And Norman 0. Brown, commenting on the similarities between the symbol systems of law and literature, cites nineteenth century legal scholar Rudolf Von Ihering for the proposition that courtroom action "is a trial or contest, an agon, as in the Greek stage plays, in which 'the parties litigant are not definite individuals, but abstract persons in the mask of plaintiff and defendant. But while law and literature share similarities in epistemology and in symbol systems, they differ in gender. While the law has been identified as masculine (i.e., rational, real and worldly) the novel has been identified as feminine (imaginative, pleasurable and domestic). Novels which address women's legal rights and obligations, therefore, enter into an ambiguously gendered space-a space where real-life female suffering under the law is made visible, but only within the structure of fiction. It is precisely in the encounter between legal fictions (concepts at law) and fictions of legality (novels addressing legal issues) that social and cultural paradigms of the category "mother" are revealed in their most complex, multivalent form. The novel, in its privileged position, has the ability to mediate between the loquacity of the law and the silence of the disenfranchised. But in mediating these extremes, a text is in constant danger of rupturing under the strain and falling into its own patterns of oppression. Despite the growing interest in the connections between legal studies and literary studies (demonstrated by the writings of James Boyd White, Stanley Fish, Richard Posner, Alexander Welsh and Richard Weisberg, among others in a growing field), comparatively little attention has been given to feminist issues in Law and Literature studies. The area I am interested in is precisely that space where legal studies, literary studies and feminism intersect. This article explores the complex reification and mythologizing of the feminine in law and literature, using Sir Walter Scott's influential historical novel, The Heart of Midlothian, to explicate the legal stories surrounding the category of "maternity." First, we will begin with Scott's legal background in order to examine how his legal expertise influences his novels. Second, we will examine the law of infanticide in Scotland and England during the time frame of the novel, focusing on the legal fiction of presumptive guilt underpinning the infanticide statute at issue. Third, we will explore the interrelated maternity narratives of the statute and the novel in light of Rene Girard's work on "persecution texts" (i.e., documents legitimizing collective violence against a scapegoat figure). My conclusion is that Walter Scott's The Heart of Midlothian and the 1690 infanticide statute which fuels its plot activate a complex of tensions around the concept of maternity. The text's narrative structure mirrors the key element of the statute-concealment. Scott gives us depths and surfaces, interiors and exteriors. He conceals in order to reveal, hides in order that we may find. In particular, Scott reveals the statute's operation as a persecution text and critiques the scapegoat role into which unwed mothers are forced. But in critiquing an already obsolete statute and revealing the persecution of women underpinning that statute, the text itself also constructs another, hidden scapegoat-the murderous mother.