{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_65244/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_65244","id":"gutenberg_65244","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/65244","summary":null,"tags":["Abortion -- United States","Category: Health & Medicine","Category: History - American","Category: Law & Criminology","Category: Philosophy & Ethics"],"text":"ON\n CRIMINAL ABORTION\n IN AMERICA.\n\n BY\n HORATIO R. STORER, M.D.,\n OF BOSTON.\n MEMBER OF THE AMERICAN MEDICAL ASSOCIATION.\n\n \u201cAnd let the legislator and moralist look to it; for as sure\n as there is in any nation a hidden tampering with infant life,\n whether frequent or occasional, systematic or accidental, so\n sure will the chastisement of the Almighty fall on such a\n nation.\u201d\u2014GRANVILLE, _on Sudden Death_.\n\n [From the North American Medico-Chirurgical Review, January to\n November, 1859.]\n\n PHILADELPHIA:\n J. B. LIPPINCOTT & CO.\n 1860.\n\n\n\n\n TO\n\n THOSE WHOM IT MAY CONCERN,\n\n PHYSICIAN, ATTORNEY, JUROR, JUDGE,\u2014AND PARENT,\u2014\n\n These Pages\n\n ARE RESPECTFULLY INSCRIBED.\n\n\n\n\nCONTRIBUTIONS TO OBSTETRIC JURISPRUDENCE.\n\nNO. I.\n\nCRIMINAL ABORTION.\n\n\n_By the Common Law and by many of our State Codes, f\u0153tal life, per se, is\nalmost wholly ignored and its destruction unpunished_; abortion in every\ncase being considered an offence mainly against the mother, and as such,\nunless fatal to her, a mere misdemeanor, or wholly disregarded.\n\n_By the Moral Law_, THE WILFUL KILLING OF A HUMAN BEING AT ANY STAGE OF\nITS EXISTENCE IS MURDER.\n\nIn undertaking the discussion at length of this subject, three\npreliminary facts must be assumed:\u2014\n\n_First._\u2014That if abortion be ever a crime, it is, of necessity, even\nin isolated cases, one of no small interest to moralist, jurist, and\nphysician; and that when general and common, this interest is extended to\nthe whole community and fearfully enhanced.\n\n_Secondly._\u2014That if the latter assumption be true, both in premise and\nconclusion, neglected as the crime has been by most ethical writers and\npolitical economists, hastily passed over by medical jurists,[1] and\nconfessedly everywhere the great opprobrium of the law, often indeed\nby taunt that of medicine, either it cannot in the nature of things be\nsuppressed, as by these facts implied, or its suppression has not been\nproperly attempted. Discarding the former of these alternatives as alike\nunworthy of belief and proved false by facts hereafter to be shown, it\nwill appear,\n\n_Thirdly._\u2014That the discussion now broached is neither supererogatory nor\nout of place; further, that it is absolutely and necessarily demanded.\n\nMoreover, in order that the importance and various bearings of the\nsubject may be better appreciated, and that the writer\u2019s position and\naims may be more fairly understood, it must be borne in mind that there\nexist to this discussion certain positive and apparent objections, which\nhave, in a measure, given rise to much of the silence and omission\nalluded to above, and are, in the main, as follows:\u2014\n\n1. The natural dislike of any physician to enter upon a subject on some\npoints of which it is probable that a portion of the profession is at\nvariance with him, either from disbelief in the alleged increase of\ncriminal abortion, unnoticed for reasons shown hereafter, or from a blind\nreliance on Providence of itself to abate the evil.\n\n2. His fear, lest by any possible chance, by showing the frequency of the\ncrime and its means, he may unhappily cause its still further increase.\n\n3. The reluctance on the part of many of the profession to attack a\npowerful and acknowledged moneyed interest;\n\n4. And to tell their patients, more commonly than is yet general,\nmost unwelcome truth; thus not merely condemning, but, to their own\nconsciences at least, criminating them;\n\n5. And individually to risk losing practice, if thought more scrupulous\nthan others;\n\n6. And to be brought into more frequent contact with the law, even though\nfor ends of justice;\n\n7. And to exercise greater care and discretion in diagnosis and\ntreatment, lest themselves be brought to answer for malpractice, or worse;\n\n8. And publicly to discuss matters supposed to be generally unknown, and\nthus seem to throw open professional secrets to the world.\n\nAnd, finally, grave doubts lest the statements made, though simple and\ntrue, should yet appear so astounding as to shock belief, or so degrading\nas to tend to lessen all faith in natural affection and general morality.\n\nBut these objections, so far at least as regards the profession, are\nundoubtedly but of limited existence; and, on the other hand, as more\nthan counterbalancing them all, are the following arguments:\u2014\n\nThat medical men are the physical guardians of women and their offspring;\nfrom their position and peculiar knowledge necessitated in all obstetric\nmatters to regulate public sentiment and to govern the tribunals of\njustice.\n\nThat the discussion by them of this crime may very probably be the\nmeans, in great measure, of ultimately restraining or suppressing its\nperpetration.\n\nThat such will undoubtedly tend to save much health to the community and\nmany human lives.\n\nAnd, that, were there no other reason, it is clearly a duty.\n\nI shall accordingly proceed to prove, so far as possible, the truth of\nevery premise as yet stated, and to show the real nature and frequency\nof the crime: its causes; its victims; its perpetrators and its innocent\nabettors; its means and its proofs; its excuses, the deficiencies and\nerrors of existing laws, and the various other obstacles to conviction;\nand, above all, so far as the present series of papers is concerned, the\nduty of the profession toward its general suppression.\n\n\n\n\nI. IS ABORTION EVER A CRIME?\n\n\nThat this could have been doubted, least of all by mothers, however\nignorant or degraded, would at first sight appear improbable. The sense\nof the public, however, its practice, its laws, being each proved to\nthe contrary by the stubborn evidence of facts, the necessity of our\npreliminary inquiry will be made manifest.\n\nTo postpone, for the present, all other considerations, we will regard\nabortion in the abstract. It may be defined, best perhaps, as the violent\nand premature expulsion of the product of conception, independently of\nits age, viability, and normal formation. These characteristics are\neliminated as having judicially and actually nothing to do with the\nessential nature of abortion, whereas in infanticide they are each\nelements of great importance; a difference that will hereafter be seen.\n\nWe further, in the present investigation, set aside all cases where\nabortion is the result of accident, or from natural causes, or justified\nby the rules of medicine, whether to save the mother or her child. We\nshall have occasion, in the subsequent course of our inquiries, to\ndiscuss this latter question somewhat fully, and to set forth unpleasant\ntruths. We now confine ourselves exclusively to those instances where\nthe attempt at premature expulsion of the product of conception is\nartificially induced and intentional, and where, so far as can be judged,\nit is not necessitated and would not otherwise have occurred.\n\nIn the first place, the laws do not recognize that unnecessary abortion,\n_per se_, is a crime.\n\nThis act, when unnecessarily done, must be for one of two reasons:\neither to prevent the product of conception from receiving life, which\nsubsequent evidence will show cannot be the case, or, if living, to\ndestroy it.\n\nWe have said that the Common Law and many of our American statutes lose\nsight of this fundamental idea. Though based upon the first of the\nabove alternatives,\u2014the erroneous one, as regards the fact of their\nexistence,\u2014they are so worded as almost wholly to ignore f\u0153tal life, to\nrefuse it protection, to insure their own evasion, and by their inherent\ncontradictions to extend the very crime they were framed to prevent.\n\nThey recognize, for the most part, no offence against the f\u0153tus; we have\njust shown that such, and such alone, is always intended. They punish\nan attempt, which does not exist, upon the well-being or life of the\nmother; the intent being seldom or never to destroy the mother. She\nis herself, in almost every case, a party to the action performed; an\naccessory or the principal. To constitute a crime, a malicious or wicked\nintent is supposed to exist; we have thrown aside, as does the law, every\ncase occurring from accident or from justifiable cause. The intent, if\nexisting, as of course must be always the case, is against, and only\nagainst, the product of conception.\n\nAgain, the punishment meted by the law proves the truth of these\npropositions. Unless the woman die in consequence of the offence, it\nis declared, in every stage of pregnancy, a mere misdemeanor, as in\nMassachusetts; or else, while called such, or by omission justified\nor openly allowed in the early months when the f\u0153tus is without other\nsafeguard, the law pronounces abortion a felony and increases its\npenalties in more advanced pregnancy, after quickening has rendered it\ninfinitely more certain that the f\u0153tus will remain undisturbed, and has\nthus in the great majority of cases prevented the crime.\n\nOn the other hand, granting for the moment that the erroneous assumptions\nof the law were correct, and that the attempt were upon the life of the\nmother, how inconsistent to punish murder, attempted or committed, if by\ninjury to the throat or heart, capitally, and if by injury to the womb,\nby temporary imprisonment; especially where this latter case always\nnecessitates the slaughter of a second human victim.\n\nOr, granting that the attempt were only upon the mother\u2019s health or\ntemporary welfare, how absurd to punish the offence in early pregnancy,\nwhere her risks are greatest, by a trifling penalty or not at all, and\nin more advanced pregnancy, where these risks are daily lessened, with\nincreased severity.\n\nAnd, finally, if the f\u0153tus were, as has been sometimes supposed, merely\n_pars viscerum matris_, its removal would be like that of a limb, or of\nany other portion of the body, whose loss is not absolutely attended with\nthat of life; if made with the mother\u2019s consent, it would be unpunishable\nby law; if against her will, it would be already amenable, like other\nmaim or mutilation, to existing statutes. In the one case, laws against\nabortion were needless; in the other, unjustifiable.\n\nIn a word, then, in the sight of the common law, and, in most cases of\nthe statutory law, also, the crime of abortion, properly considered,\ndoes not exist; the law discussing and punishing a wholly supposititious\noffence, which not only does not exist, but the very idea of whose\nexistence is simply absurd.\n\nWe turn now to public opinion. It, too, both in theory and in practice,\nfails to recognize the crime. Its practical denial of the true character\nof the offence will be shown in the course of our remarks on its\nfrequency. Its theoretical denial we here consider, as proved in three\nways\u2014by implication, by collateral testimony, and by direct.\n\nFirst, the maxims of the law are based on past or present public opinion.\nIf merely on past, and this has totally changed, the law in matters of\nsuch importance is compelled to change also. The fact that the laws on\nthis subject remain unaltered, if it be granted, as will be proved, that\nthey are erroneous, furnishes us at the outset, and so far, with evidence\nthat public opinion was formerly wrong, and that it so continues.\n\nThe frequency of the offence, and the character and standing of the\nmothers upon whose persons it is practised, accessories as we have seen,\nor principals, to it, furnish similar and more cogent testimony regarding\nthe theory upon which it is founded. We shall soon perceive how extensive\nand high reaching is the frequency; we must therefore conclude that the\npublic do not know, or knowing deny, the criminal character of the action\nperformed.\n\nAgain, the direct testimony of the parties themselves is often available.\nIt is undoubtedly a common experience, as has certainly been that of the\nwriter, for a physician to be assured by his patients, often no doubt\nfalsely, but frequently with sincerity, that their abortions have been\ninduced in utter ignorance of the commission of wrong; in belief that\nthe contents of the womb, so long as manifesting no perceptible sign of\nlife, were but lifeless and inert matter; in other words, that being,\npreviously to quickening, a mere ovarian excretion, they might be thrown\noff and expelled from the system as coolly and as guiltlessly as those\nfrom the bladder and rectum.\n\nIt having now been shown, directly and by temporary assumption, that the\nlaw and public sentiment, both by its theory and its practice, alike deny\nto unjustifiable abortion the imputation of crime, it remains for us to\ndiscuss this question abstractly, and to prove not merely that they are\nwrong, but that the offence is one of the deepest guilt, a crime SECOND\nTO NONE.\n\nIgnorance of the law is held no excuse. The plea of ignorance of guilt\ncould hardly better avail where its existence is implied by common sense,\nby analogy, and by all natural instinct, binding even on brutes. Were\nthis guilt, however, clearly shown, and its knowledge, supposed wanting,\nto be spread broadcast by the press, the all-powerful arbiter of public\nopinion, the last and strongest prop of the crime were gone.\n\nIt has been shown, by setting aside all accidental cases, those naturally\noccurring and those necessarily, and in the absence of reasonable\nevidence to the contrary, that all other abortions must be intentional,\nthat they must be occasioned by the \u201cmalice aforethought\u201d of the law. It\nhas also been shown that in these cases, except it exist as an additional\nelement, the malicious intention is not against the life or person of the\nmother, but that in every instance it is against the product of her womb.\nHence, the whole question of the criminality of the offence turns on\nthis one fact, the real nature of the f\u0153tus in utero. If the f\u0153tus be a\nlifeless excretion, however soon it might have received life, the offence\nis comparatively as _nothing_; if the f\u0153tus be already, and from the very\noutset, a human being, alive, however early its stage of development, and\nexisting independently of its mother, though drawing its sustenance from\nher, the offence becomes, in every stage of pregnancy, MURDER.\n\n\u201cEvery act of procuring abortion,\u201d rules Judge King, of Philadelphia,[2]\ncontrary to the usual interpretation of the law, \u201cis murder, whether\nthe person perpetrating such act intended to kill the woman, or merely\nfeloniously to destroy the fruit of her womb.\u201d\n\nCommon sense, we have said, would lead us to the conclusion that the\nf\u0153tus is from the very outset a living and distinct being. It is alike\nabsurd to suppose identity of bodies and independence of life, or\nindependence of bodies and identity of life; the mother and the child\nwithin her, in abstract existence, must be entirely identical from\nconception to birth, or entirely distinct. Allowing, then, as must be\ndone, that the ovum does not originate in the uterus; that for a time,\nhowever slight, during its passage through the Fallopian tube, its\nconnection with the mother is wholly broken; that its subsequent history\nis one merely of development, its attachment merely for nutrition and\nshelter, it is not rational to suppose that its total independence, thus\nonce established, becomes again merged into total identity, however\ntemporary; or that life, depending not on nine months\u2019 growth, nor on\nbirth, because confessedly existing long before the latter period,\u2014since\nquickening at least, a time varying within wide limits,\u2014dates from any\nother epoch than conception; while it is as irrational to think that the\ninfluence of the father, mental and moral as well as physical, so often\nand so plainly manifested, can be exercised by any possibility upon the\nchild at any other moment than that original and only one of impregnation\nitself.\n\nAnother argument is furnished us, similar, but differing. The f\u0153tus,\nprevious to quickening, as after it, must exist in one of two states,\neither death or life. The former cannot take place, nor can it ever\nexist, except as a finality. If its signs do not at once manifest\nthemselves, as is generally the case, and the f\u0153tus be retained in utero,\nit must either become mummified or disintegrated; it can never again\nbecome vivified. If, therefore, death has not taken place, and we can\nconceive no other state of the f\u0153tus save one, that, namely life, must\nexist from the beginning.\n\nThese reasonings are strengthened by the evidence of analogy. The\nutter loss of direct influence by the female bird upon its offspring\nfrom the time the egg has left her, and the marked effect, originally,\nof the male; the independence in body, in movement, and in life,\nof young marsupial mammals, almost from the very moment of their\nconception, identical analogically with the intra-uterine state of\nother embryos,\u2014nourishment by teat merely replacing that by placenta at\nan earlier period; the same in birds, shown by movements in their egg\non cold immersion before the end of incubation; the permanence of low\nvitality, or of impaired or distorted nervous force, arising from early\narrest or error of development, and necessarily contemporaneous with it,\nare all instances in point.\n\nBrute instincts are often thought wholly supplanted by human reason.\nThat this is not so is proved by what obtains in the absence of reason,\nwhether from the outset or subsequently occurring. Idiots and lunatics\nalike show the actual identity in this respect of man and the brute,\nhowever instinct, in the former, may normally be tempered by conscience\nand reason. Whatever ideas on the subject of abortion the human mind may\nhave forced itself to entertain, let the slightest proof concerning the\nexistence of f\u0153tal life be alleged, and maternal instinct at once makes\nitself known: the parent, as after its birth, would often even perish to\npreserve her child. This is not conscience, which is stirred only by an\nafterthought, but instinct.\n\nThus far, incidental proof concerning the commencement of f\u0153tal life, and\nso the guilt of unjustifiable abortion. More decisive evidence is at hand.\n\nThat the movements of the f\u0153tus, subsequent to quickening, whatever the\nactual nature of that first sensation may be, declare the existence of\nintra-uterine life, is allowed by the world; by none more than by mothers\nthemselves, whose statistics prove that after the perception of these\nmovements criminal abortions are comparatively rare.\n\nBut quickening,\u2014a period usually occurring from the one hundred and\nfifteenth to the one hundred and thirtieth day after conception, but\nvarying within still more appreciable limits in different women, and in\nthe same women in different pregnancies, from variations in the amount\nof liquor amnii, the early strength of the f\u0153tus, and other causes, and\nalso, if at all, owing in its first sensation to rising of the womb from\nthe pelvis, probably occurring a little earlier with boys than with\ngirls, from their relative difference in size,[3]\u2014is often absent, even\nthroughout pregnancy; and f\u0153tal movements are sometimes appreciable to\nthe attendant when not to the mother, or indeed to the mother alone.\n\nFurther, in premature births, where quickening has not occurred, or\nbefore its usual period, by the movements of the f\u0153tus, its earlier\nindependent and vital existence is sometimes reduced to a matter of\nocular demonstration; while to the ear, in very many instances, as early\nand as conclusive evidence is afforded by the sounds these movements give\nrise to.[4]\n\nQuickening is therefore as unlikely a period for the commencement of\nf\u0153tal life as those others set by Hippocrates and his successors, varying\nfrom the third day after conception, to that of the Stoics, namely birth,\nand as false as them all.\n\nWe need not, with Dubois[5] and some earlier writers,[6] from the\nmanifest relation of means to the end, consider that the movements\nof the f\u0153tus in utero, and its consequent attitude and position, are\nsigns of an already developed and decided sentience and will, nor is it\nrequisite to suppose them the effect of an almost rational instinct. But\nthat they are wholly independent of the will and the consciousness of\nthe mother, and yet by no means characteristic of organic life, whether\nhers or its own,\u2014which latter is also by abundant evidence proved\nindependently to exist,\u2014but decidedly animal in their character; that\nthey are not explainable by gravity, despite all the arguments alleged,\nlatest by Matthews Duncan,[7] nor on any other supposition save that of a\nspecial and independent excito-motory system, distinct from that of the\nmother,[8] brings us directly down to this\u2014the existence of as distinct\nand independent a nervous centre, self-existing, self-acting, living.\n\nWe set aside all the speculations of metaphysicians regarding moral\naccountability of the f\u0153tus, the \u201cpotential man,\u201d and its \u201cinanimate\nvitalities,\u201d as useless as they are bewildering. If there be life, then\nalso the existence, however undeveloped, of an intellectual, moral, and\nspiritual nature, the inalienable attribute of humanity, is implied.\n\nIf we have proved the existence of f\u0153tal life before quickening has\ntaken place or can take place, and by all analogy and a close and\nconclusive process of induction, its commencement at the very beginning,\nat conception itself, we are compelled to believe unjustifiable abortion\nalways a crime.\n\nAnd now words fail. Of the mother, by consent or by her own hand, imbrued\nwith her infant\u2019s blood; of the equally guilty father, who counsels\nor allows the crime; of the wretches who by their wholesale murders\nfar out-Herod Burke and Hare; of the public sentiment which palliates,\npardons, and would even praise this so common violation of all law, human\nand divine, of all instinct, of all reason, all pity, all mercy, all\nlove, we leave those to speak who can.\n\nWe have next to prove\u2014\n\n\n\n\nII. ITS FREQUENCY, AND THE CAUSES THEREOF.\n\n\nThough we cannot at once, and in exact figures, show the yearly amount\nof criminal abortion in this country, statistics on the subject being\nnecessarily imperfect or wanting, we may yet arrive at an approximate\nresult. This is done by an easy and reliable process of induction,\nthe several factors of which, each of itself rendering probable the\nconclusion, tend, when combined, to make it almost absolutely certain.\n\nWe are to consider, in this connection, the evidence afforded by\u2014\n\n I.\u2014The comparative increase of population.\n\n II.\u2014The published records of still-births.\n\n III.\u2014The number of arrests, or trials for abortion.\n\n IV.\u2014The published number of immediate maternal deaths.\n\n V.\u2014The pecuniary success of abortionists, and\n abortion-producing nostrums.\n\n VI.\u2014The comparative size of families in present and past times.\n\n VII.\u2014The experience of physicians\u2014direct from applications for\n abortion and actual cases, and indirect from their results.\n\nSeveral of these points are as yet almost wholly uninvestigated. They are\nstated, therefore, with care, as bearing decidedly on the question at\nissue, and as tending to provoke still further research.\n\nTo go into an elaborate comparison of our national and state censuses\nwith themselves, past and present, with each other, and with those\nof similar communities abroad, involving, as it would do, intricate\ncalculations regarding the effect of emigration from state to state, and\nfrom nation to nation, the increase of urban population, and the frequent\ndecrease of rural, is not our present intention, nor is it necessary. By\nconsidering this point in connection with that immediately succeeding it,\nwith which it is intimately related, its bearing and importance will at\nonce be seen.\n\nStatistics in this country are as yet so imperfect, that we are\nnecessitated to a process of deduction. If it can be shown that a state\nof things prevails elsewhere to a certain extent, explainable only on\none supposition, and that the same state of things prevails in this\ncountry to a greater extent, all other causes, save the one referred to,\nbeing in great measure absent, little doubt can be entertained of the\npart this plays; but if it can, in addition, be proved that this cause\nmust necessarily be stronger with us than elsewhere, then its existence\nbecomes morally certain. Accordingly, if we find that in another\ncountry living births are steadily lessening in proportion alike to the\npopulation and to its increase, that natural or preventive causes are\ninsufficient to account for this, while the proportion of still-births\nand of known abortions is constantly increasing, and these last bear an\nevident yet increasing ratio to the still-births; that in this country\nthe decrease of living births, and the increase of still-births, are in\nmuch greater ratio to the population, and the proportion of premature\nbirths is also increasing; that these relations are constant and yearly\nmore marked, we are justified in supposing that abortions are at least as\nfrequent with us, and probably more so.\n\nIn many countries of Europe, it has been ascertained that the \u201cfecundity\u201d\nof the population, or the rate of its annual increase, is rapidly\ndiminishing.[9]\n\nIn Sweden, it has lessened by one-ninth in 61 years. In Prussia, by a\nthird in 132 years. In Denmark, by a quarter in 82 years. In England,\nby two-sevenths in a century. In Russia, by an eighth in 28 years. In\nSpain, by a sixth in 30 years. In Germany, by a thirteenth in 17 years.\nIn France, by a third in 71 years.[10]\n\nOr, in other words:\n\nIn Sweden it has lessened by a fifth; in Prussia, by a fourth; in Denmark\nand England, by a third; and in Russia, Spain, Germany, and France by a\nhalf, in a single century.\n\nFor the sake of convenience, larger bodies of statistics existing\nconcerning it, and from the fact that it represents the extreme of the\nalleged decrease, we take France for our comparisons.\n\nIn France at large, according to the official returns as analyzed by\nLegoyt, the increase of the population which, from 1801 to 1806, was at\nthe rate of 1.28 per cent. annually, from 1806 to 1846 had fallen to\nabout .5 per cent.[11] The exact ratio of decrease after this point is\nbetter shown by the figures themselves. The increase from 1841 to 1846\nwas 1,200,000; from 1846 to 1851, 380,000; from 1851 to 1856, 256,000.\n\nIn England, during this latter period, with a population of but one-half\nthe size, the returns of the Registrar-General show a relative increase\nnine times greater.[12] In thirty-seven years, from 1817 to 1854, the\nmean annual increase in France was not more than 155,929, yet in five\nyears, from 1846 to 1851, it had fallen to 76,000 yearly, and from 1851\nto 1856, to 51,200, and this with a population ranging from twenty-nine\nto thirty-four millions.\n\nA comparison of these facts, with those obtaining in other European\nStates, will make the above still more evident. We now quote from Rau.[13]\n\n Rate of Increase.\n Per Cent.\n Hungary, according to Rohrer 2.40\n England, from 1811 to 1821 1.78\n \u201d from 1821 to 1831 1.60\n Prussia, from 1816 to 1827 1.54\n \u201d from 1820 to 1830 1.37\n \u201d from 1821 to 1831 1.27\n Austria, (Rohrer) 1.30\n Scotland, from 1821 to 1831 1.30\n Netherlands, from 1821 to 1828 1.28\n Saxony, from 1815 to 1830 1.15\n Baden (Heunisch,) from 1820 to 1830 1.13\n Bavaria, from 1814 to 1828 1.08\n Naples, from 1814 to 1824 0.83\n France (Mathieu,) from 1817 to 1827 0.63\n France, more recently, (De Jonn\u00e9s) 0.55\n\nA similar and corroborative table, containing additional matter, is given\nby Quetelet;[14] its differences from the preceding are owing to its\nrepresenting a series of different years.\n\n Rate of Increase.\n Per Cent.\n Ireland 2.45\n Hungary 2.40\n Spain 1.66\n England 1.65\n Rhenish Prussia 1.33\n Austria 1.30\n Bavaria 1.08\n Netherlands 0.94\n Naples 0.83\n France 0.63\n\nAnd more recently, Legoyt brings up these results to the close of\n1846.[15] As shown by the census, the rate of increase was, in\n\n Per Cent.\n Great Britain, exclusive of Ireland 1.95\n Prussia 1.84\n Saxony 1.45\n Norway 1.36\n Sardinia 1.08\n Holland 0.90\n Austria 0.85\n Sweden 0.83\n France 0.68\n\nOr, as shown by the annual excess of births over deaths, and therefore\nmore reliable\u2014\n\n Per Cent.\n Norway 1.30\n Prussia 1.18\n Sweden 1.14\n Holland 1.03\n Wurtemberg 1.00\n Great Britain, exclusive of Ireland 1.00\n Denmark 0.95\n Austria 0.90\n Saxony 0.90\n Hanover 0.85\n Belgium 0.76\n Bavaria 0.71\n Russia 0.61\n France 0.50\n\nIn four departments of France, among which are two of the most thriving\nof Normandy, the deaths actually exceed the births.[16]\n\nFrom the above facts, it would naturally be supposed that the percentage\nof births to the whole population must be smaller than in other European\ncountries, and from the lessened annual rate of increase of the\npopulation, that the proportionate number of births must be decreasing in\nsimilar ratio. This is found, indeed, to be the case.\n\nFrom large statistics furnished by De Jonn\u00e9s, we have compiled the\nfollowing table of the comparative ratios of births to the population in\nthe principal countries of Europe:\u2014\n\n Ratio.\n Venice and Dependencies, 1827 1 to 23\n Tuscany, 1834 \u201d\n Lombardy, 1828 1 to 24\n Russia, 1835 1 to 25\n Wurtemberg, 1821 to 1827 \u201d\n Prussia, 1836 \u201d\n Mecklenburg, 1826 1 to 26\n Sardinia, 1820 \u201d\n Naples and Dependencies, 1830 \u201d\n Greece, 1828 \u201d\n Poland, 1830 1 to 27\n Ireland, 1821 to 1831 \u201d\n Germany, 1828 \u201d\n Switzerland, 1828 \u201d\n Spain, 1826 \u201d\n Portugal, 1815 to 1819 1 to 27.5\n Sweden, 1825 1 to 28\n Holland, 1832 \u201d\n Austria, 1829 \u201d\n Belgium, 1836 \u201d\n Bavaria, 1825 \u201d\n Two Sicilies, 1831 \u201d\n Sweden and Norway, 1828 1 to 30\n Denmark, 1833 \u201d\n Roman States, 1836 \u201d\n Turkey, 1835 \u201d\n Hanover, 1835 1 to 31\n Sicily, 1832 \u201d\n Austria, 1828 to 1830 1 to 32\n Great Britain, 1821 to 1831 \u201d\n Scotland, 1821 to 1831 1 to 34\n England, 1821 to 1831 1 to 35\n Norway, 1832 \u201d\n France, 1771 to 1851 1 to 25\n to 1 to 37\n\nIn a total population, at different periods, of 232,673,000, there were\n8,733,000 births; whence an average on the grand scale of one birth to\nevery 26.6 individuals.\n\nIn France, however, the ratio has been steadily lessening, as seen by the\nfollowing table:\u2014\n\n Ratio of births.\n 1771 to 1775 1 to 25\n 1801 to 1810 1 to 30\n 1811 to 1825 1 to 32\n 1826 to 1836 1 to 33\n 1836 to 1840 1 to 34\n 1841 to 1845 1 to 35\n 1846 to 1850 1 to 37\n\nThe position of France, as compared with the rest of Europe, in respect\nto the ratio of births to the population at different periods, is made\nstill more manifest by another table:\u2014\n\n Annual ratio of births.\n 1 to 23 Venetian Provinces, 1827; Tuscany, 1834.\n 1 to 23.5 Kingdom of Naples, 1822 to 1824.\n 1 to 24 Tuscany, 1818; Sicily, 1824; Lombardy, 1827 to 1828;\n Russia, 1831.\n 1 to 24.5 Prussia, 1825 to 1826.\n 1 to 25 France, 1781; Austria, 1827; Russia, 1835; Prussia, 1836.\n 1 to 26 Sardinia, 1820; Hanover, Wurtemberg and Mecklenburg, 1826;\n Greece, 1828; Naples, 1830.\n 1 to 27 Spain, 1826; Germany and Switzerland, 1828; Poland, 1830;\n Ireland, 1831.\n 1 to 27.5 Portugal, 1815 to 1819.\n 1 to 28 Holland, 1813 to 1824; Bavaria and Sweden, 1825; Austria,\n 1829; Belgium, 1836.\n 1 to 29 Canton Lucerne, 1810; Holland, 1832.\n 1 to 29.8 France, 1801.\n 1 to 30 Sweden and Norway, 1828; Belgium, 1832; Denmark, 1833;\n Turkey, 1835; States of the Church, 1836.\n 1 to 31 Sicily, 1832; Hanover, 1835.\n 1 to 31.4 France, 1811.\n 1 to 31.6 France, 1821.\n 1 to 32 Austria, 1830; Great Britain and Switzerland, 1831.\n 1 to 33 France, 1828 to 1831.\n 1 to 34 Norway and Holstein, 1826; Scotland, 1831; France, 1834\n to 1841.\n 1 to 35 Denmark, 1810; England, 1831; Norway, 1832.\n 1 to 37 France, 1851.\n\nIn Paris, strange to say, the decrease in the ratio of births to the\npopulation, though decided and steady, has not, in actual proportion,\nbeen as great as in the empire at large, showing that the cause, whatever\nwe find it to be, is not one depending on the influence of a metropolis\nalone for its existence.\n\nFrom 1817 to 1831 there averaged, in Paris, one birth to 26.87\ninhabitants; but from 1846 to 1851, one to 31.98.[17]\n\nAgain, as might have been expected, we find that the proportion of\nstill-births, in which we must include abortions, as has hitherto been\ndone, however improperly, in all extensive statistics, is enormous, and\nis steadily increasing. To show this the more plainly, we first present\na table of the ratio of still-births to the living births in the various\ncountries of Europe.[18]\n\n Geneva,[19] 1824 to 1833 1 to 17\n Berlin Hospitals, 1758 to 1774 1 to 18\n Paris Maternit\u00e9,[20] 1816 to 1835 1 to 20\n Sweden, 1821 to 1825 1 to 23.5\n Denmark, 1825 to 1834 1 to 24\n Belgium,[21] 1841 to 1843 1 to 24.2\n Prussia,[22] 1820 to 1834 1 to 29\n Iceland, 1817 to 1828 1 to 30\n Prague, 1820 1 to 30\n London Hospitals, 1749 to 1781 1 to 31\n Vienna, 1823 1 to 32\n Austria, 1828 1 to 49\n France at large, 1853 1 to 24\n Department of Seine 1 to 15\n Paris,[23] 1836 to 1844 1 to 14.3\n \u201d 1845 to 1853[24] 1 to 13.8\n\nThe proportion of still-births in the rural districts of France is\ngoverned by the same laws as in the metropolis.\n\nIn 363 provincial towns the ratio was, from\n\n 1836 to 1845 1 to 19.55\n 1846 to 1850 1 to 18.8\n\nWhile districts more thinly populated gave, from\n\n 1841 to 1845 1 to 29\n 1846 to 1850 1 to 27[25]\n\nIn Belgium, during a similar period, the ratio was much the same.[26]\n\n 1841 to 1843, in towns 1 to 16.1\n 1841 to 1843, in country 1 to 29.4\n\nThe apparent discrepancy between city and country, noticed as equally\nobtaining in Belgium and France, is chiefly owing to greater negligence\nof the country officials in registering the still-births, and to\nthe fact, as we have seen in Paris, that the ratio of births to the\npopulation is greater in the city than in the country at large.\n\nFinally, while the proportion of still-births to the whole number is\ngreatly increasing in Paris, so is the number of known abortions.\n\nWe omit, for the present, the evidence afforded by arrests and trials,\nwhich we might here have turned to account. At the Morgue, which\nrepresents but a very small fraction of the f\u0153tal mortality of Paris,\nand in this matter almost only crime, there were deposited during the\neighteen years preceding 1855, a total of 1115 f\u0153tuses,[27] of which 423\nwere at the full term, and 692 were less than nine months; and of these\nlast, 519, or five-sixths, were not over six months, a large proportion\nof them showing decided marks of criminal abortion.\n\nAgain, of the 692 f\u0153tuses of less than nine months, deposited at the\nMorgue during these eighteen years, 295 were between 1836 to 1845, an\naverage, at that time, of 32.7 yearly; and from 1846 to 1855 there were\n397, an average of 44.1. During the means of these periods the births in\nFrance were as follows[28]:\u2014In 1841, 1,005,203, and in 1851, 1,037,040,\nfrom which it is evident that there was deposited at the Morgue, in 1841,\none infant, dead from abortion, to every 30,700 births; and in 1851, one\nto every 23,500. The increased ratio is seen to be striking; it will\nhereafter become apparent that the increase is far greater in reality.\n\nWe turn now to our own country, to which the City of New York holds much\nthe same relation, as respects public opinion no less than in other\nmatters, that Paris holds to France.\n\nSince 1805, when returns were first made to the Registry of New York,\nthe number, proportionate as well as actual, of f\u0153tal deaths, has\nsteadily and rapidly increased. With a population at that time (1805) of\n76,770, the number of still and premature births was 47; in 1849, with\na population estimated at 450,000, the number had swelled to 1320.[29]\nThus, while the population had increased only _six_ times since 1805,\nthe annual number of still and premature births had multiplied over\n_twenty-seven_ times.\n\nThe following table shows the rapidity of this increase:\u2014The ratio of\nf\u0153tal deaths to the population, was in\n\n 1805 1 to 1633.40\n 1810 1 to 1025.24\n 1815 1 to 986.46\n 1820 1 to 654.52\n 1825 1 to 680.68\n 1830 1 to 597.60\n 1835 1 to 569.88\n 1840 1 to 516.02\n 1845 1 to 384.68\n 1849 1 to 340.90\n\nIn the three years preceding 1849, there were registered in New York\n400 premature births, and 3139 children still-born; a total of 3539,\nrepresenting at that time a yearly average of some 1200 f\u0153tal deaths.\nWhile it will be shown hereafter that a large proportion of the reported\npremature births must always be from criminal causes, and that though\nalmost all the still-births at the full time, even from infanticide,\nare necessarily registered, but a small proportion of the abortions and\nmiscarriages occurring are ever reported to the proper authorities, it\nwill immediately be made apparent that at the present moment the abortion\nstatistics of New York are far above those of 1849.\n\nIn the three years preceding 1857, there were registered in New York 1196\npremature, and 4735 still-births,[30] a total of 5931, representing a\nyearly average of some 2000 f\u0153tal deaths; showing that in the short space\nof seven years, the number of f\u0153tal deaths in New York, already enormous,\nhad very nearly doubled.\n\nAgain, in 1856, the total number of births at the full time in New York,\nwas 17,755; of these, 16,199 were living;[31] proving that of children at\nthe full time alone, setting aside the great number of viable children\nborn prematurely, and the innumerable earlier abortions not recorded, one\nin every 11.4 is born dead.\n\nFrom foreign statistics on a large scale, it is found that the proportion\nof still-births, even allowing a wide margin for criminal causes, does\nnot, in those countries, drop below 1 in 15, and this in France, ranging\nfrom that number up to 1 in 30 or 40 of the whole number of births\nreported. We have already given a table upon this point.\n\nIn Geneva, out of 10,925 births occurring from 1824 to 1833, 1221 of them\nbeing _illegitimate_, and therefore to be supposed liable to a large\npercentage of deaths from criminal causes, there were only 646 f\u0153tal\ndeaths; a proportion of 1 in 17.\n\nIn Belgium there were 29,574 _illegitimate_ births from 1841 to 1843, and\nof these, 1766 were born still;[32] 1 in 16.8.\n\nIn New York, from 1854 to 1857, there were 48,323 births, and 5931\nstill-births, at the full time and prematurely; or in other words, 1 to\nevery 8.1 was born dead.\n\nThe ratio of still-births in New York, including, as we have seen,\nabortions, is steadily increasing, as seen by the following table,[33] in\nwhich we have compared the still-births, supposable perhaps of accidental\nvalue, with the general mortality, whose value is at least as accidental,\nif not more so. The evidence, like that already furnished, is astounding.\n\n Total mortality. Still-births. Ratio.\n 1804 to 1809 13,128 349 1 to 37.6\n 1809 to 1815 14,011 533 1 to 26.3\n 1815 to 1825 34,798 1,818 1 to 19.1\n 1825 to 1835 59,347 3,744 1 to 15.8\n 1835 to 1855 289,786 21,702 1 to 13.3\n 1856[34] 21,658 1,943 1 to 11.1\n\nThe frequency of abortions and premature births reported from the\npractice of physicians, and thus to a certain extent, but not entirely,\nlikely to be of natural or accidental origin, is as follows:\u2014\n\nIn 41,699 cases registered by Collins, Beatty, La Chapelle, Churchill,\nand others,[35] there were 530 abortions and miscarriages. Here all the\nabortions were known; their proportion was 1 in 78.5.\n\nIn New York, from 1854 to 1857, there were 48,323 births at the full time\nreported, and 1196 premature. Here all the abortions were not known,\nprobably but a very small fraction of them; the proportion was 1 in 40.4.\n\nFinally, we compare the recorded premature still-births of New York, with\nthose still at the full time.\n\nIn the seventeen years from 1838 to 1855,[36] there were reported 17,237\nstill-births at the full time, and 2710 still prematurely; the last\nbearing the proportion of 1 to 6.3.\n\nIn the nine years, from 1838 to 1847, omitting 1842 for reasons stated\nbelow, there were 632 premature still-births, and 6445 still at the full\ntime; a yearly average of 1 in 10.2.\n\nIn the eight years, from 1848 to 1855, there were 2078 premature\nstill-births, and 10,792 still at the full time; an average of 1 in 5.\n\nWhile in 1856 there were 387 still prematurely, and 1556 at the full\ntime; or 1 in 4.02.\n\nFrom these figures there can be drawn but one conclusion, that criminal\nabortion prevails to an enormous extent in New York, and that it is\nsteadily and rapidly increasing. \u201cWe cannot refer,\u201d was well said by a\nformer inspector of that city,[37] \u201csuch a hecatomb of human offspring\nto natural causes.\u201d We shall now endeavor to prove this point by other\nreasoning.\n\nThat our deductions concerning the population and births of France are\nperfectly legitimate, is admitted beforehand by the leading political\neconomists of the day; ignorant as they were in its various relations of\nmuch of the evidence now brought forward, and of the conclusion to which\nthe whole matter, directly and with almost mathematical exactness, is\nproved to tend.\n\n\u201cIn France,\u201d remarks De Jonn\u00e9s,[38] \u201cthe fecundity of the people is\nrestrained within the strictest limits.\u201d\n\n\u201cThe rate of increase of the French population,\u201d says Mill, \u201cis the\nslowest in Europe;[39] the number of births not increasing at all,\nwhile the proportion of births to the population is considerably\ndiminishing.\u201d[40]\n\nWe have seen, moreover, that in France the actual ratio of living births\nis constantly and rapidly diminishing, while the still-births, actual and\nproportional, are as fast increasing; that the premature births progress\nin similar ratio, and by deduction and actual statistics, the criminal\nabortions; and that these facts obtain not merely in the metropolis, but\nthroughout the country.\n\nWhat are the causes of these remarkable facts, need it now be asked? Let\nall allowances be made for certain conjugal habits extensively existing\namong the French, and by no means rarely imitated in this country,\nbut the proportionate decrease of living births is too enormous, the\nactual and proportionate increase of premature and still-births is too\nfrightful to be wholly explained thus, or as West,[41] Husson,[42] and De\nJonn\u00e9s[43] have thought, to be attributed to a mere progressive lack of\nfecundity. Reason and the evidence alleged compel us to believe that in\ngreat measure they are owing to criminal abortion.\n\nPolitical economists allow the facts in France to be as we have stated.\nTheir interpretation of the causes, unwilling as they would be to confess\nits ultimate bearing, we now compel to serve as evidence.\n\n\u201cThey depend,\u201d according to one writer,[44] \u201ceither on physical agents,\nespecially climate, or on the degree of civilization of a people, their\ndomestic and social habits.\u201d \u201cIn France the climate is favorable to an\nincrease of population, and this obstacle, this restraint, is found in\nits advanced civilization.\u201d[45]\n\n\u201cThis diminution of births,\u201d says Legoyt,[46] \u201cin the presence of a\nconstant increase of the general population and of marriages, can be\nattributed to nothing else than wise and increased foresight on the part\nof the parent.\u201d\n\n\u201cThe French peasant is no simple countryman, no downright \u2018Paysan du\nDanube;\u2019 both in fact and in fiction he is now \u2018le rus\u00e9 paysan.\u2019 That\nis the stage which he has reached in the progressive development which\n_the constitution of things has imposed on human intelligence and human\nemancipation_.\u201d[47]\n\n\u201cThese facts are only to be accounted for in two ways. Either the whole\nnumber of births which nature admits of, and which happen in some\ncircumstances, do not take place, or if they do, a large proportion of\nthose who are born, die. The retardation of increase results either\nfrom mortality or prudence; from Mr. Malthus\u2019s positive, or from his\npreventive check; and one or the other of these must and does exist, and\nvery powerfully too, in all old societies. Wherever population is not\nkept down by the prudence of individuals or of the State, it is kept down\nby starvation or disease.\u201d[48]\n\nBut on the other hand, it has been forgotten that the alternative\nsupposed does not exist in the case we have instanced. Marriages in\nFrance, unlike some other continental States, are continually increasing,\nand starvation and disease are yearly being shorn of their power. The\nauthors quoted are therefore forced to a single position; that the\nlessening of births can only be owing to \u201cprudence\u201d on the part of the\ncommunity.\n\nMoreover, it is allowed by Mill and by Malthus himself,[49] that so\nmuch of the decrease as cannot thus be explained, must be attributed to\ninfluences generally prevalent in Europe in earlier ages, and in Asia to\nthe present time. \u201cThroughout Europe these causes have much diminished,\nbut they have nowhere ceased to exist.\u201d[50] Several of them have been\nnamed by the authority now quoted. Another, and greater than them all, he\nleaves unspoken; we are compelled to supply for him the omission.\n\nThe practice of destroying the f\u0153tus in utero, to say nothing of\ninfanticide, history declares to have obtained among all the earlier\nnations of the world, the Jews alone excepted, and to a very great\nextent. Aristotle defends it,[51] and Plato.[52] It is mentioned by\nJuvenal,[53] Ovid,[54] Seneca, and Cicero, and is denounced by the\nearlier Christians.[55] It was common in Europe through the middle ages,\nand still prevails among the Mohammedans,[56] Chinese,[57] Japanese,[58]\nHindoos,[59] and most of the nations of Africa and Polynesia,[60] to such\nan extent, that we may well doubt whether more have ever perished in\nthose countries by plague, by famine, and the sword.\n\nIt is evident, therefore, that the actual and proportionate increase of\nstill-births, and, by induction, setting aside all probable cases of\ninfanticide, of abortion, and the comparative increase of a population\nreciprocally influence and govern each other so completely, that from the\none it may in any given case be almost foreseen what the other must prove.\n\nIt is impossible that the results quoted from the Registry of New York,\nany more than those of France, even if so far, can in any great measure\nbe owing to natural causes alone. They are wholly inexplicable on any\nprinciples, \u201cwhich do not recognize an amount of guilt at which humanity\nshudders.\u201d In comparing that city with Paris, certain allowances must\nindeed be made; abroad, for the effects of wars and conscription,\nof despotism, and of migration outward; at home, for the effects of\ngovernmental laxity, and of migration inward. In both cities the amount\nof prostitution, an element not to be lost sight of, must be nearly\nthe same; and in both, under the steady progress of science, medical\nand hygienic, the ratio of f\u0153tal mortality, unless induced by criminal\ncauses, may year by year be supposed to have been steadily diminished.\n\nWe have seen that in New York, in the absence of all influences that\ntend to keep down population in foreign countries, old and crowded, and\nunder the yoke of despotism, the effects, attributable elsewhere to these\ncauses, exist, and to a greater degree than in any other country;\n\nThat the ratio of f\u0153tal deaths to the population had swelled from 1 in\n1633, in 1805, to 1 in 340, in 1849; while in France, at a later period,\n1851, they were only about 1 in 1000;\n\nThat the actual number of f\u0153tal deaths in seven years, from 1850 to 1857,\nhad very nearly doubled;\n\nThat the f\u0153tal deaths, as compared with the total of births, elsewhere in\ncases of illegitimacy, where the results are the very worst, and where\ncrime is confessed to have produced them, being 1 in 16.8,[61] had here,\nlegitimate and natural, reached the frightful ratio of 1 in 8.1;\n\nThat the f\u0153tal deaths, as compared with the total mortality, had\nincreased from 1 in 37, in 1805, to 1 in 13, in 1855;\n\nThat the reported early abortions, of which the greater number of course\nescape registry, bear the ratio to the living births of 1 in 40.4, while\nelsewhere they are only 1 in 78.5;\n\nAnd finally, that early abortions, bearing the proportion to the\nstill-births at the full time of 1 in 10.2, in 1846, had increased to 1\nin 4.02, in 1856.\n\nIt must be borne in mind that these statistics are positive, proving the\nexistence of a certain number of pregnancies abruptly terminated. They\ncannot therefore be controverted by any argument regarding means for the\nprevention of pregnancy, no matter to what extent these may be used.\nNor should it be forgotten that for every registered premature birth or\nabortion, innumerable ones occur that are never recorded.\n\nAlmost doubling therefore, as does New York, the worst of those fearful\nratios of f\u0153tal mortality existing in Europe, it is not strange that our\nmetropolis has been held up, even by a Parisian, to the execration of the\nworld. \u201cOn le voit (l\u2019avortement)\u201d says Tardieu, \u201cen Am\u00e9rique, dans une\ngrande c\u00ect\u00e9 comme New York, constituer une industrie v\u00e9ritable et non\npoursuivie.\u201d\n\nIn this description of New York, we have that of the country.[62] The\nrelative annual increase of the population existing throughout America,\ndepending as this does chiefly on immigration, must not mislead us.\nThe ratio of f\u0153tal death in the metropolis surpasses what has ever\nbeen dreamed to obtain even in old countries, where innumerable more\nlegitimate causes for it might be thought to exist. At Boston, which for\nmorals is allowed to compare favorably with any city of its size in the\nUnion, \u201cundoubtedly more than a hundred still-births yearly escape being\nrecorded, a large proportion of which, no doubt, result from criminal\nabortion.\u201d[63] And our public prints, far and wide, even in the smaller\ntowns and villages, constantly chronicle deaths from the commission of\nthe crime.\n\nIn the State of Massachusetts at large, it has been found of late years\nthat \u201cthe increase of the population, or the excess of the births over\nthe deaths, has been _wholly_ of those of _recent foreign origin_;\u201d[64]\nthis in 1850. In 1853 \u201cit is evident that the births within the\nCommonwealth, with the usual increase, have resulted in favor of foreign\nparents in an increased ratio.\u201d[65] In other words, it is found that\nin so far as depends upon the American and native element, and in the\nabsence of the existing immigration from abroad, the population of\nMassachusetts is stationary or decreasing.[66]\n\n\u201cThis result will doubtless surprise many, who will hardly think it\npossible. Is it general, or is it accidental? If it be general, how has\nit happened? What causes have been in operation to produce it? How is it\nto be accounted for?\u201d[67] These questions have hitherto been unanswered.\nWe shall find, however, their solution only too easy.\n\nAmid such general thrift and wealth, there has been every reason for the\nnative, like the foreign population, to increase. The preventive check\nof the economists, though undoubtedly present, can have played but an\ninferior part, as we shall prove. Emigration westward, the only apparent\npositive check, though extensive, cannot wholly account for the result.\n\nBut statistics exist by whose light, if acknowledged, we may read this\nimportant problem.[68]\n\nIn 1850, the ratio of births to the population in Massachusetts, foreign\nand American combined, was 1 in 36,[69] and in 1855, 1 in 34;[70] a ratio\nmuch smaller than that obtaining in most countries of Europe, and about\nequaling that of France, which, in 1850, was 1 in 37.\n\nIn 1855, the ratio of still-births, at the full time and premature, as\ncompared with the living births, was 1 to 15.5.[71] In France it is 1 to\n24; in Austria, 1 to 49.\n\nIn 1851, the ratio of f\u0153tal deaths to the general mortality, was 1 to\n13.3;[72] in 1855,1 to 10.4.[73] In New York City, in 1856, it was 1 to\n11. In any city we should expect to find the proportion much greater than\nin a State at large; we here find it less.\n\nThe ratio of premature births to those at the full time, during the\nperiod from 1850 to 1856, was 1 to 26.1.[74] In New York, in 1857, it was\n1 to 40, and in good medical practice it is found, as we have seen, to be\n1 in 78.\n\nIn comparing the recorded abortions and premature births in the City of\nNew York, with the still-births there occurring at the full time, we\nfound that the former had varied from 1 in 10, in 1838, to 1 in 4, in\n1856.\n\nIn the State of Massachusetts it appears, that during the fourteen years\nand eight months preceding 1855, there were recorded 4570 still-births,\nand 11,716 premature births and abortions,[75] the ratio being 1\nabortion to .3 still-birth; or, in other words, it would appear from\nthe statistics quoted, that the comparative frequency of abortions in\nMassachusetts is _thirteen_ times as great as in the worst statistics of\nthe City of New York. We are willing, however, we rejoice, to modify this\nstatement, as in the earliest of the years quoted, returns from the City\nof Boston seem to have been imperfect or wanting,\u2014and to confine our\ncalculations to a more recent period.\n\nFrom 1850 to 1855, the registration being much more accurate than\nbefore, and its results compiled with the greatest care, three years of\nthe five by a noted statistician, Dr. Shurtleff, there were recorded\nin Massachusetts, 2976 still-births, and 5899 premature births and\nabortions,[76] the ratio being 1 abortion to .5 still-birth; in other\nwords, the frequency of abortions as compared with still-births at the\nfull time, seems at least eight times as great in Massachusetts as in the\nworst statistics of the City of New York.[77]\n\nIt must not be forgotten that while nearly every still-birth at the full\ntime is necessarily recorded, there must be but very few registrations of\nthe premature births and abortions actually occurring; that though the\ncontrary seems here the case, such occurrences are generally, as they\nwould be supposed, far more frequent in crowded cities than in country\ndistricts, or in a State at large; and that however great may be the\ninfluence of the prevention of pregnancy in repressing a population,\nthese constitute proofs of pregnancies actually occurring, and frequently\ncriminally terminated.\n\nFew persons could have believed possible the existence of such frightful\nstatistics, the result toward which they must be confessed inevitably to\ntend, or the dread cause from which they spring. Either these statistics\nmust be thrown aside as utterly erroneous and worthless, or they must be\naccepted with their conclusions. We would gladly do the former, but they\npresent too many constant quantities, in other respects,[78] for this to\nbe allowed. Our own calculations have been made with care, and we have\npresented the elements on which they rest. In asserting the results, at\nonce so awful and astounding, we desire to fix upon them the attention\nand scrutiny of the world.\n\nWe have seen that the increase of the population of Massachusetts by\nliving births, is almost exclusively among its resident foreigners,\nCatholics, the rules of whose church will hereafter be shown to exercise\nan important influence in preventing the destruction of f\u0153tal life. The\nconclusion cannot therefore well be avoided, that in these facts there\nexists the evident relation here intimated, of effects to cause.\n\nWith some certainty, then, even though statistics are as yet so\nimperfect, can we assert this conclusion, that frightful as is the extent\nto which the crime of abortion is perpetrated abroad, there is reason to\nbelieve that it prevails to an equal, if not even greater extent at home.\n\nThe frequency of arrests or trials for abortion afford, save indirectly,\nno criterion of the actual frequency of the crime. Our laws on this\nsubject are at present so easily evaded, that officers of justice find\nit useless to trouble themselves with its prosecution; it is indeed \u201cnon\npoursuivie.\u201d During the eight years from 1849 to 1858, no report for 1853\nbeing rendered by the Attorney-General, there were 32 trials for abortion\nin Massachusetts; and in these there was not a single conviction.[79]\nAn estimate that for every arrest for this crime, a thousand instances\nof its commission escape the vigilance or at least the hand of the law,\nwould probably be within the truth. That such is the fact, is shown by\nthe statistics of France, where, from 1846 to 1850, out of 188 cases that\ncame to the knowledge of the police, for lack of decisive evidence, only\n22 went to trial,[80] or about one-ninth of those legally investigated.\nFrom 1826 to 1853, there were in France 183 trials for abortion. At the\nabove ratio this will give about 1700 cases judicially examined, a yearly\naverage throughout the empire of between 50 and 60. Comparing this fact\nwith the statistics of the Morgue already given, and with those of the\nactual decrease of the rate of increase of the population in Paris and\nin New York, and the increase of premature births, our statement of its\nfrequency will not seem exaggerated.\n\nThe number and success of professed abortionists is notorious. If\narrested, they are always ready with bribes or abundant bail. Hardly\na newspaper throughout the land that does not contain their open and\npointed advertisements, or a drug-store whose shelves are not crowded\nwith their nostrums, publicly and unblushingly displayed: the supply\nof an article presupposes its demand. From these facts we may fairly\nestimate the extent of their nefarious traffic.\n\nThat families are seldom now found of the size formerly common, is also\na matter of general remark. It were foolish to attempt to explain this\nby supposing that the present is an age of more moderate desire, or less\nunbridled lust; there is too much collateral proof against any such plea.\nNor is it reasonable to think that women are generally becoming less\nproductive of offspring than formerly, from any natural cause; or that\nthe mass of our population, whatever the exceptions, are already so far\nadvanced in knowledge, physiological or mechanical, or in practice, as\nin most cases to be able to regulate impregnation at will. The number\nof pregnancies must be nearly as abundant as ever; who can doubt what\nbecomes of the offspring? We deny, simply and decidedly, the statement\nof some writers, that of every seven pregnancies, at least one always\n_naturally_ terminates in abortion; this is uncorroborated by any\nreliable evidence, and is without doubt untrue.\n\nOf the experience of physicians, there can be but one opinion. If each\nman of the profession were honestly to investigate this matter, and as\nhonestly to avow the result, the mass of evidence would be overwhelming.\nThis statement is in nowise invalidated by the experience alleged by\nmany, especially among older practitioners; their evidence, based chiefly\non lack of inquisition, or on the acknowledged less prevalence of the\ncrime in former years, is merely negative, and as such only to be valued.\n\n\u201cWe blush,\u201d says Prof. Hodge, \u201cwhile we acknowledge the fact, that in\nthis city, (Philadelphia,) where literature, science, morality, and\nChristianity are supposed to have so much influence; where all the\ndomestic and social virtues are reported as being in full and delightful\nexercise, even here\u201d it prevails.[81]\n\nDr. Blatchford, of Troy, N. Y., writes me thus: \u201cA crime which forty\nyears ago, when I was a young practitioner, was of rare and secret\noccurrence, has become frequent and bold.\u201d But why multiply instances of\nwhat must be the almost universal experience?\n\nApplications for abortion are in many neighborhoods of constant\noccurrence, by no means among the poorer classes alone; and few women,\nunless also convinced by their physician of the enormity and guilt of\nthat they intend, are deterred by his refusal from going elsewhere for\naid, or from inducing abortion upon themselves.\n\nBut far greater proof than this we all possess, or can, if we desire.\nIn but few of the abortions criminally induced is an application ever\nmade to the physician in regular standing. He is oftener called upon\nafter the crime has already been committed, to treat its acute and\nimmediate effects. If he choose to take for granted in every case, that\nit has occurred from a perfectly natural cause, even where attending\ncircumstances clearly point to the contrary, or to ask no questions,\nor to shut his eyes and his ears to evident and patent facts, he can of\ncourse do so, and perhaps persuade himself that the crime is rare; but if\nhe reflect that upon himself more than on clergyman or legislator, often\nrests the standard of public morals, and act accordingly, he may arrive\nat a different result.\n\nBut this is not only the fact in acute cases of abortion. The same\nstatement holds true, perhaps even to a greater extent, with regard to\nchronic obstetric disease. It is now acknowledged that much of this is\nreally the consequence of past difficult or abnormal labors; that the\nmore complicated or improperly interfered with the labor has been, the\nmore certain are unfortunate sequel\u00e6; and that the earlier in pregnancy\nits occurrence, the greater, as a general rule, the danger, not merely\nto the mother\u2019s life, but to her subsequent health. In the treatment of\nthese results, even more marked perhaps at a late period than earlier,\nthe dependence of effect on cause, and their evident connection, can\noften be learned by a faithful inquirer, and in no small proportion of\ncases does the history go back without turn or the shadow of a doubt, to\nan induction of criminal abortion.\n\nAs a mere matter of individual experience, and from a practice by no\nmeans exceptional, the writer some time since reported no less than\nfifteen such cases as occurring to himself within hardly six months; and\nof these, all without exception were married and respectable women,[82]\nmany of them of wealth and high social standing; and subsequently he\nwas able, in consultation, to point out similar cases in the practice\nof gentlemen who, at that time, had denied the legitimacy of his\nconclusions. This experience must be a common one, only some lack the\ncourage, as others lack the will, to investigate the matter; should they\ndo so, they can come but to one result.\n\nThe frequency of maternal deaths, confessedly from criminal abortion,\nas gathered from published statements and mortuary reports, is also an\nitem of importance in our summary of evidence. It is probable that in\nbut few of the fatal cases really occurring, is foul play ever thought\nof, especially if the standing of the victim, and her previous history,\nhave been such as to prevent or disarm suspicion; and on the other\nhand, while immediate death is undoubtedly a frequent result of induced\nabortion, it is, in proportion to the cases of its later occurrence, or\nof confirmed and chronic ill health, comparatively rare. From which it\nmust be granted, that for every case thus made known, very many others\nmust necessarily exist.\n\nWe are compelled, from the preceding considerations, to acknowledge not\nmerely that criminal abortion is of alarming frequency among us, but that\nits frequency is rapidly increasing; this having been made apparent by\neach link in the chain of evidence that has been presented. Every effort\nthat might possibly check this flood of guilt will, if delayed, have so\nmuch the more to accomplish. The crime is fast becoming, if it has not\nalready become, an established custom, less honored in the breach than in\nthe observance.\n\n * * * * *\n\nWhat are the causes of this general turpitude?\n\nThey also may be classified\u2014\n\n I.\u2014The low _morale_ of the community as regards the guilt of\n the crime.\n\n II.\u2014The ease with which its character, in individual cases, may\n be concealed.\n\n III.\u2014The unwillingness of its victims to give testimony that\n would also criminate themselves.\n\n IV.\u2014The possibility of their inducing abortion upon themselves\n without aid.\n\n V.\u2014The ease with which the laws, as at present standing, may\n be evaded.\n\n VI.\u2014The lack or inefficacy of judicial preventives; such as\n statutes for registration, and those against concealment\n of birth and secret burials.\n\n VII.\u2014The prevalent ignorance of the true principles of its\n jurisprudence in both government officials and medical\n witnesses.\n\n VIII.\u2014Social extravagance and dissipation.\n\n IX.\u2014The doctrines of political economists.\n\n X.\u2014The fear of child-bed.\n\n * * * * *\n\nThat public opinion should at present attach so little importance to the\nvalue of f\u0153tal life, has already been shown to be owing in great measure\nto ignorance respecting its actual existence in the earlier months of\npregnancy. Two other, and no less general, physiological errors prevail,\nextensively inculcated by popular authors and lecturers for their own\nsinister purposes.\n\nOne of these is the doctrine that it is detrimental to a woman\u2019s\nhealth to bear children beyond a certain number, or oftener than at\ncertain stated periods, and that any number of abortions are not merely\nexcusable, as preventives, but advisable; it being entirely forgotten\nthat the frequency of connection may be kept within bounds, and the times\nof its occurrence regulated, by those who are not willing to hazard its\nconsequences; that if women will, to escape trouble or for fashion\u2019s\nsake, forego the duty and privilege of nursing, a law entailed upon\nthem by nature, and seldom neglected without disastrous results to their\nown constitutions, they must expect more frequent impregnation; that the\nhabit of aborting is generally attended with the habit of more readily\nconceiving; and that abortions, accidental, and still more if induced,\nare generally attended by the loss of subsequent health, if not of life.\n\nThis error is one which would justify abortion as necessary for the\nmother\u2019s own good; a selfish plea. The other is based on a more generous\nmotive. It is that the fewer one\u2019s children, the more healthy they are\nlikely to be, and the more worth to society. It is, however, equally\nfallacious with the first, and is without foundation in fact. The\nSpartans and Romans, so confidently appealed to, gave birth probably to\nas many weakly children as do our own women; that they destroyed many\nfor this reason in infancy, is notorious. The brawny Highlanders are\nnot the only offspring of their parents; the others cannot endure the\nnational processes of hardening by exposure and diet, and so die young\nfrom natural causes. But were this theory true even so far as it goes,\nthe world, our own country, could ill spare its frailer children, who\noftenest, perhaps, represent its intellect and its genius.\n\nIn asserting that the doctrines of the leading political economists for\nthe last half century are accountable for much of the prevalence and\nincrease of the crime, ignorant or careless as these writers all seem\nof the dire means that would be resorted to for the attainment of their\nends, I have in no way exaggerated. Malthus remarks in his well-known\nEssay on Population, that \u201cin the average state of a well-peopled\nterritory, there cannot well be a worse sign than a large proportion of\nbirths, nor can there well be a better sign than a small proportion;\u201d[83]\nand he endorses the assertion of Hume, subsequently proved false by\nSadler,[84] that the permission of child-murder, by removing the fear of\ntoo numerous a family in case of marriage, tends to encourage this step,\nand thereby the increase of population; \u201cthe powerful yearnings of nature\npreventing parents from resorting to so cruel an expedient, except in\nextreme cases.\u201d[85]\n\nSismondi[86] and a host of others might also be quoted, but a few\nextracts from a later writer, standard in this country at present, and\ntaught in our universities, till very lately in that at Cambridge, for\ninstance, will suffice.\n\n\u201cWe greatly deprecate,\u201d says Mill, \u201can increase of population, as rapid\nas the increase of production and accumulation.\u201d[87]\n\n\u201cThere is room in the world, no doubt, and even in old countries, for\nan immense increase of population. But although it may be innocuous, I\nconfess I see very little reason for desiring it.\u201d\n\n\u201cI sincerely hope, for the sake of posterity, that they will be content\nto be stationary long before necessity compels them to it.\u201d[88]\n\n\u201cIf the opinion were once generally established among the laboring\nclass, that their welfare required a due regulation of the numbers of\ntheir families, only those would exempt themselves from it who were in\nthe habit of making light of social obligations generally.\u201d[89] \u201cThe\nprinciples contended for include not only the laboring classes, but all\npersons, except the few who being able to give their offspring the means\nof independent support during the whole of life, do not leave them to\nswell the competition for employment.\u201d[90]\n\n\u201cWhen persons are once married, the idea never seems to enter any one\u2019s\nmind, that having or not having a family, or the number of which it shall\nconsist, is at all amenable to their own control. One would imagine that\nit was really, as the common phrases have it, God\u2019s will and not their\nown, which decided the number of their offspring.\u201d[91]\n\n\u201cIn a place where there is no room left for new establishments,\u201d says\nSismondi, entirely ignoring the escapes offered by emigration and the\nincreased importation of food, \u201cif a man has eight children, he should\nbelieve that unless six of them die in infancy, these, and three of\nhis own contemporaries of each sex, will be compelled to abstain from\nmarriage in consequence of his own imprudence.\u201d[92]\n\nThe direct result of remarks like these last, so pointed and plainly to\nbe understood, is seen in the statistics I have so largely given. Would\nmankind, in following such advice, merely resort to greater abstinence\nbefore their means allow the expense of children, and to greater prudence\nafter that period, no fault could be found; but when we discover criminal\nabortion thus justified and almost legitimated, we may well oppose to\nsuch doctrine the words of the indeed admirable Percival, \u201cTo extinguish\nthe first spark of life is a crime of the same nature, both against our\nMaker and society, as to destroy an infant, a child, or a man.\u201d[93]\n\nFear of child-bed, in patients pregnant for the first time, or who\nhad suffered or risked much in previous labors, might formerly have\nbeen allowed some weight in excuse, but none at all in these days of\nan\u00e6sthesia. It has been urged, and not so absurdly as would at first\nsight appear, that the present possibilities of painless and so much\nsafer delivery, by changing thus completely the primal curse, from\nanguish to a state frequently of positive pleasure, remove a drawback of\nactual advantage, and by offering too many inducements for pregnancy,\ntend to keep women in that state the greater part of their menstrual\nlives.\n\n * * * * *\n\nThe consideration in detail of the various other causes to which I have\nalluded as accounting for the prevalence of abortion, together with that\nof the many special reasons offered in individual cases by way of excuse,\nI postpone for the present; merely premising that where ignorance is\nso evidently and so extensively its foundation, those who, possessing,\nyet withhold the knowledge which by any chance or in any way would\ntend to prevent it, themselves become, directly, and in a moral sense,\nresponsibly accountable for the crime.\n\n\n\n\nIII. ITS VICTIMS.\n\n\nWe have hitherto discussed abortion in the abstract, as a crime, and in\nits relations to the community at large. We have seen its heinous nature,\nand its awful extent.[94]\n\nThe division of the subject now to be examined naturally presents itself\nunder a fourfold aspect, numerical, relational, social, and medical;\nrepresenting respectively the multitude of the victims of abortion, their\ncharacter as parent and child, their standing in the community, and the\ndegree, whether unto death or otherwise, of their suffering.\n\nSo far as statistics will at present allow, the numerical relations of\nthe victims of abortion have already been fully discussed, the yearly\nthousands of f\u0153tal and the frequent maternal deaths; one sacrifice at\nleast, that of the child, being implied in every case.\n\nVarious incidental questions suggest themselves in this connection,\ncurious, and by some, though erroneously, thought to be of judicial\nimportance. Two of them will be here adverted to; they are the age or\nthe mother and that of the f\u0153tus.\n\nIt was formerly supposed, as in infanticide, that criminal abortion was\nseldom resorted to save for the concealment of shame; and as seductions,\nconfessedly frequent in comparison with adultery, are most common in\nyouth, it was laid down as probable that wilful abortions are most\nfrequent between the years corresponding, from sixteen to twenty-five.\nSubsequent experience, however, has disproved this conclusion, and it is\nevident that the only real limit to its later occurrence is the menstrual\nclimacteric. In many instances of marriage, abortions are resorted to at\nonce, in others after the family has reached a certain point, and are\nthence regularly continued.\n\nThe age of the f\u0153tus is of much more interest; not, as will ultimately\nappear, for the same reason as in cases of infanticide, but as proving to\na certain extent one of the facts we have already considered, the error\nprevalent regarding the commencement of f\u0153tal life.\n\nIt was Orfila\u2019s opinion that criminal abortion was most frequent in the\ntwo first months of pregnancy. This would naturally have been supposed\nthe case, as then some doubt might always obtain regarding its existence,\nand the excuse that the measures resorted to were for the purpose of\npreventing ill effect from an abnormal menstrual suppression would be\nmore available. Devergie, on the other hand, was inclined to put the\nlimits of greatest frequency at from three months to four and a half;\nwhile Briand and Chaud\u00e9 thought the crime more common in the third month\nthan the fifth, and in this last month much more frequent than even in\nthe first or second. Tardieu also came to a similar conclusion.[95] He\nascertained, that of 34 cases investigated by himself, 25 were in from\nthe third to the sixth month, most in the third; 5 in the first two\nmonths; 4 in the seventh and eighth; or that the cases in the third\nmonth, or shortly after, were five times as numerous as at either an\nearlier or a later period, and nearly three times as numerous as in both\ncombined.\n\nUpon examining the Register of the Morgue, we find its statistics\nstrikingly corroborative of these deductions. We have already seen that\nfrom 1837-54 there had been deposited at the Morgue 692 f\u0153tuses of less\nthan nine months. Of these,\n\n 23 were from the first to the second month;\n 79 \u201d \u201d second to the third;\n 108 \u201d \u201d third to the fourth;\n 158 \u201d \u201d fourth to the fifth;\n 150 \u201d \u201d fifth to the sixth;\n 97 \u201d \u201d sixth to the seventh;\n 48 \u201d \u201d seventh to the eighth;\n 29 \u201d \u201d eighth to the ninth.\n\nIt has been stated that 519, or five-sixths of them all, were not over\nsix months, and it now appears that on a scale twenty times larger\nthan that given by Tardieu from his own experience, nearly two-thirds\nof the f\u0153tal deaths induced by abortion were in from the third to the\nsixth month of pregnancy; the three periods included giving a much\nlarger proportion than any others, and the two last of them being almost\nidentical. The extreme paucity shown by the above table in the first\nand ninth months, and the decrease in the seventh and eighth from those\npreceding, are worthy of remark. It is probable that the sudden increase\nmay be attributed to mental reaction after the first shock occasioned\nby the absolute certainty of pregnancy is past; and the subsequent\ndecrease to the fact that in many attempted criminal abortions during the\nlater months children are born alive, the mother\u2019s courage then proving\ninsufficient for infanticide and its greater and more probable punishment.\n\nThe truth seems to be that while frequently the crime is committed in\nthe very earliest period of pregnancy, in the belief that possibly all\nalarm may be false, in most cases the woman waits a month or two to be\nsure that she really is pregnant. After the sixth month the comparative\nrarity of the crime is undoubtedly owing to the fact that f\u0153tal life is\nthen rendered certain by the perceived movements of the child, the more\nstrongly as pregnancy advances.\n\nIt was formerly thought that the induction of criminal abortion was\nconfined to the unmarried alone; there exists, however, abundant proof\nto the contrary. Had such been the fact it would be reasonable to\nsuppose that with the increase of marriages, the number of premature\nand still-births would have lessened. In proportion, however, as the\nnumber of marriages has increased, so has the number of f\u0153tal deaths,\nand in similar ratio the number of living births has declined; proving,\nas Husson was compelled to acknowledge of Paris, \u201ca decrease in the\nfecundity of legitimate unions,\u201d[96] explainable in nowise but by a\ncriminal cause. Direct statistics on this point are still wanting, and\nmust come, almost entirely, from medical men. The writer\u2019s published\nexperience has been already referred to; subsequent practice has only\nconfirmed it.\n\nAgain, the victims of abortion are not confined to the inhabitants of\ncities. Of the prosecutions in France during 1851-53, it appears that but\nlittle more than a tenth of the whole number occurred in the Department\nof Seine.[97] But we have already furnished much stronger evidence on\nthis point.\n\nFinally, though the excessive extravagance of the day, entailing as it\ndoes to so many an annual expenditure incommensurate with their income,\nis accountable in no small degree for the crime, yet it cannot always be\nalleged. There is too much reason to believe that with our communities\nit is as with others. In France it appears that the poor and uneducated\nhave on the whole the largest families, contrary in some respects to\nestablished hygienic rules; while, on the other hand, the rich are\ninclined as far as possible to restrict the number of their children,\noften indeed stipulating beforehand, at marriage or previously, that such\nshall be few or none.[98]\n\nBut not only must we believe that this crime prevails in our midst\nto an almost incredible extent among the wealthy and educated and\nmarried; we are compelled to admit that Christianity itself, or at least\nProtestantism, has failed to check the increase of criminal abortion. It\nis not astonishing to find that the crime was known in ancient times, as\nshown by evidence previously given, nor that it exists at the present\nday among savage tribes, excused by ignorance and superstition; but that\nChristian communities should especially be found to tolerate and to\npractice it, does almost exceed belief.\n\nIn the previous remarks, the French have been compared with our own\npeople, not merely because of their published statistics, but because\nfrom their loose morals and habits of life they might be thought to\nrepresent the extreme to which the crime would be likely to obtain among\ncivilized nations. We have shown reason to suppose that we equal them\nin guilt, if we do not exceed them. Now it must be borne in mind that\nthe French are Catholic; that the rules of that church do not, as has\nbeen generally supposed, permit abortion in the earlier months,[99] but\nthat they rigidly exercise over f\u0153tal life throughout pregnancy the\nmost absolute guard and supervision;[100] instances of this in cases\nwhere craniotomy is supposed to be indicated, are familiar to every\npractitioner. The church, here omnipotent against the physician, and\ndesiring that every created human being should receive the benefit of\nbaptism, demands that f\u0153tal death must have taken place previously to\nthe operation proposed. It does not seek for the signs of f\u0153tal life,\nbut takes this for granted, and requires that its absence must be proved\nbefore allowing the removal of the child, even though this is necessary\nto save the mother\u2019s life.\n\nThe rule runs thus: \u201cSedulam operam dent sacerdotes, ut quantum poterunt,\nimpediant nefandum illud scelus quo adhibitis chirurgicis instrumentis\ninfans in utero interficitur. Omnis f\u0153tus quocumque tempore gestationis\neditus baptizetur, vel absolute, si constet de vit\u00e2; vel sub conditione,\nnisi evidenter pateat eum vit\u00e2 carere.\u201d[101]\n\nIn cases where instrumental delivery is absolutely necessary, the\nceremony of baptism as ordinarily administered is of course impossible.\nBut as this is deemed so important by the Catholic Church,[102] even to\nthe sacrifice of the mother, any means of overcoming this obstacle, fatal\nto countless maternal lives, should be accounted, if found practicable,\nof the utmost importance. For this purpose, therefore, I do not hesitate\nto recommend intra-uterine baptism, the consecrated element being carried\nto the child, if too high to be reached by the hand, by a sponge and\nstaff, or if necessary, by a syringe, as was long ago sanctioned by the\ntheologists of the Sorbonne;[103] in the absence of a clergyman, if the\ncase is urgent, the rite accounted so sacred being performed by the\nphysician in attendance rather than to allow the death of the mother. I\nknow that many of the profession, from fear of ridicule or dislike to\nsanction what they do not believe in, would shrink from such a duty. Is\nit not, however, due to humanity in every way to prevent this frequent\nmurder? for such, by our apathy and neglect, the mother\u2019s death in these\ncases becomes. Can we, as Christians, refuse _any_ aid? I am not ashamed\nto acknowledge that for myself, though no Catholic, I have performed this\nintra-uterine baptism, where delivery without mutilation was impossible.\nI could neither conscientiously assert the child\u2019s death, nor allow the\nmother to linger till it should occur, while the friends, in the absence\nof a priest, whose presence it was impossible to procure for many hours,\nwould not permit the operation. Remonstrance was useless; had I refused I\nshould have been morally responsible for the almost inevitable death of\nthe woman; it was, therefore, simply my duty.\n\nI shall now quote from an admirable letter I have lately received from\nthe Catholic Bishop of Boston. The extracts are couched in so forcible\nlanguage, and their spirit is so thoroughly Christian, that I need not\napologize for their length, or that they recapitulate arguments I have\nalready advanced.\n\n\u201cThe doctrine of the Catholic Church,\u201d remarks Bishop Fitzpatrick, \u201cher\ncanons, her pontifical constitutions, her theologians without exception,\nteach, and constantly have taught, that the destruction of the human\nf\u0153tus in the womb of the mother, _at any period from the first instant\nof conception_, is a heinous crime, equal, at least, in guilt to that\nof murder. We find it distinctly condemned as such even as far back as\nthe time of Tertullian, (at the end of the second century,) who calls\nit _festinatio homicidii_, a hastening of murder. The Pope, Sixtus the\nFifth, in a bull published in 1588, subjects those guilty of the crime to\nall the penalties, civil and ecclesiastical, inflicted on murderers. It\nis denounced and reprobated in many other canons of the church.\n\n\u201cThe reason of this doctrine (apart from the authority of the church)\nmust, it seems to me, appear evident upon a little reflection. The very\ninstant conception has taken place, there lies the vital germ of a man.\nTrue, it is hidden in the darkness of the womb, and it is helpless;\nbut it has sacred rights, founded in God\u2019s law, so much the more to be\nrespected because it is helpless. It may be already a living man, for\nneither mothers nor physicians can tell when life is infused; they can\nonly tell when its presence is manifested, and there is a wide difference\nbetween these two things. At any rate, it is from the first moment\npotentially and _in radice_ a man, with a body and a soul destined most\nsurely by the will of the Creator and by his law, to be developed into\nthe fullness of human existence. No one can prevent that development\nwithout resisting and annulling one of the most sacred and important laws\nestablished by the Divine Author of the universe, and he is a criminal,\na murderer, who deals an exterminating blow to that incipient man, and\ndrives back into nothingness a being to whom God designed to give a\nliving body and an immortal soul.\n\n\u201cFrom this it follows that the young woman whose virtue has proved an\ninsufficient guardian to her honor, when she seeks by abortion to save in\nthe eyes of man that honor she has forfeited, incurs the additional and\ndeeper guilt of murder in the eyes of God, the judge of the living and\nthe dead. Who can express what follows with regard to those women, who,\nfinding themselves lawfully mothers, prefer to devastate with poison or\nwith steel their wombs, rather than bear the discomforts attached to the\nprivilege of maternity, rather than forego the gaieties of a winter\u2019s\nballs, parties, and plays, or the pleasures of a summer\u2019s trips and\namusements?\n\n\u201cBut abortion,\u201d the Bishop continues, \u201cbesides being a direct crime\nagainst a positive law of God, is also an indirect crime against society.\nAdmit its practice, and you throw open a way for the most unbridled\nlicentiousness, you make woman a mere instrument for beastly lust. Every\nwoman is somebody\u2019s mother or daughter or sister or wife; or she bears\nall these relations at once. Whatever protection, therefore, we would\nclaim for a woman because she stands in any of these relations to us,\nwe should also extend to all women, because they bear some one of all\nthese relations to others. Most assuredly, then, we should remove none\nof the safeguards that protect female virtue. But if we take away the\nresponsibility of maternity, we destroy one of its strongest bulwarks.\n\n\u201cIt affords me pleasure,\u201d he concludes, \u201cto learn that the American\nMedical Association has turned its attention to the prevention of\ncriminal abortion, a sin so directly opposed to the first laws of nature,\nand to the designs of God, our Creator, that it cannot fail to draw down\na curse upon the land where it is generally practiced.\u201d[104]\n\nSuch being the doctrine of the Catholic Church, and statistics\nnevertheless proving that its so stringent statutes against the\ndestruction of f\u0153tal life, enforced alike by denouncement and\nexcommunication, are constantly broken in Catholic France, it is more\nthan probable, from the existence of this fact, in addition to all the\nvarious causes of the crime we have seen equally prevailing there and\nin this country, that the actual number of abortions is much greater\nwith ourselves; at least with the American and native portion of\nour population. We have indeed shown that this is really the case in\nMassachusetts.[105]\n\nViewing this subject in a medical light, we find that death, however\nfrequent, is by no means the most common or the worst result of the\nattempts at criminal abortion. This statement applies not to the mother\nalone, but, in a degree, to the child.\n\nWe shall perceive that many of the measures resorted to are by no means\ncertain of success, often indeed decidedly inefficacious in causing the\nimmediate expulsion of the f\u0153tus from the womb; though almost always\nproducing more or less severe local or general injury to the mother, and\noften, directly or by sympathy, to the child.\n\nThe membranes or placenta may be but partially detached, and the ovum\nmay be retained. This does not necessarily occasion degeneration, as\ninto a mole or hydatids, or entire arrest of development. The latter\nmay be partial, as under many forms, from some cause or another, does\nconstantly occur; if from an unsuccessful attempt at abortion, would\nthis be confessed, or indeed always suggest itself to the mother\u2019s own\nmind? Fractures of the f\u0153tal limbs prior to birth are often reported,\nunattributable in any way to the funis, which may amputate indeed, but\nseldom break a limb. A fall, or a blow, is recollected; perhaps it was\naccidental, perhaps not, for resort to these for criminal purposes is\nvery common. In precisely the same manner may injury be occasioned to\nthe nervous system of the f\u0153tus, as in a hydrocephalic case long under\nthe writer\u2019s own observation, where the cause and effect were plainly\nevident. Intra-uterine convulsions have been reported; as induced by\nexternal violence they are probably not uncommon, and the disease thus\nbegun may eventuate in epilepsy, paralysis, or idiocy.\n\nTo the mother there may happen correspondingly frequent and serious\nresults. Not alone death, immediate or subsequent, may occur, from\nmetritis, hemorrhage, peritonitic or phlebitic inflammation, from\nalmost every cause possibly attending not merely labor at the full\nperiod, comparatively safe, but miscarriage,\u2014increased and multiplied by\nignorance, by wounds and violence; but if life still remain, it is too\noften rendered worse than death.\n\nThe results of abortion from natural causes, as obstetric disease,\nseparate or in common, of mother, f\u0153tus or membranes, or from a morbid\nhabit consequent on its repetition, are much worse than those following\nthe average of labors at the full period. If the abortion be from\naccident, from external violence, mental shock, great constitutional\ndisturbance from disease or poison, or even necessarily induced by the\nskilful physician in early pregnancy, the risks are worse. But if, taking\ninto account the patient\u2019s constitution, her previous health and the\nperiod of gestation, the abortion has been criminal, these risks are\ninfinitely increased.[106] Those who escape them are few.\n\nIn thirty-four cases of criminal abortion reported by Tardieu, where\nthe history was known, twenty-two were followed, as a consequence, by\ndeath, and only twelve were not. In fifteen cases necessarily induced by\nphysicians, not one was fatal.[107]\n\nIt is a mistake to suppose, with Devergie, that death must be\nimmediate, and owing only to the causes just mentioned. The rapidity\nof death, even where directly the consequence, greatly varies; though\ngenerally taking place almost at once if there be hemorrhage, it may\nbe delayed even for hours where there has been great laceration of the\nuterus, its surrounding tissues, and even of the intestines;[108] if\nmetro-peritonitis ensue, the patient may survive for from one to four\ndays, even indeed to seven and ten. But there are other fatal cases,\nwhere on autopsy there is revealed no appreciable lesion; death, the\npenalty of unwarrantably interfering with nature, being occasioned by\nsyncope, by excess of pain, or by moral shock from the thought of the\ncrime.[109]\n\nThat abortions, even when criminally induced, may sometimes be safely\nborne by the system, is of little avail to disprove the evidence of\nnumberless cases to the contrary. We have instanced death. Pelvic\ncellulitis, on the other hand; fistul\u00e6, vesical, uterine, or between\nthe organs alluded to; adhesions of the os or vagina, rendering liable\nsubsequent rupture of the womb, during labor or from retained menses, or,\nin the latter case, discharge of the secretion through a Fallopian tube\nand consequent peritonitis; diseases and degenerations, inflammatory or\nmalignant, of both uterus and ovary; of this long and fearful list, each,\ntoo frequently incurable, may be the direct and evident consequence, to\none patient or another, of an intentional and unjustifiable abortion.\n\nWe have seen that in some instances the thought of the crime, coming upon\nthe mind at a time when the physical system is weak and prostrated, is\nsufficient to occasion death. The same tremendous idea, so laden with\nthe consciousness of guilt against God, humanity, and even mere natural\ninstinct, is undoubtedly able, where not affecting life, to produce\ninsanity. This it may do either by its first and sudden occurrence\nto the mind; or, subsequently, by those long and unavailing regrets,\nthat remorse, if conscience exist, is sure to bring. Were we wrong in\nconsidering death the preferable alternative?\n\n\n\n\nIV. ITS PROOFS.\n\n\nIt is by no means an easy thing in all cases to obtain evidence that\nan abortion has occurred; still more difficult, that it has been\nintentionally induced. As most laws read, it is necessary at the outset\nto prove the existence of pregnancy; as many still stand, it must be\nshown that the woman has quickened. These requisitions are unwise and\nunjust, and under them, if insisted on by adroit counsel, it is almost\nuseless to pursue prosecution. In the earlier months, before quickening\nhas occurred or the f\u0153tal pulsations have become evident to the ear, it\nis impossible, as I have elsewhere insisted,[110] ever to be sure of the\nexistence of pregnancy, and yet attempts at its termination are then in\nno degree less criminal. The only infallible sign of pregnancy is the\nsound of the f\u0153tal heart, not always to be detected, even by the double\nstethoscope.\n\nPutting aside, therefore, the question of the existence of pregnancy\nand of f\u0153tal life, as taken for granted on the one hand by the attempt\nat their termination, and as proved on the other by this result, it is\nfound that the evidence of abortion classifies itself into proofs of\nits occurrence, of its commission, of the criminal intent, and of the\nidentity of the party accused.\n\n\n1. _The Occurrence._\n\nThe abortion may perhaps be known to have taken place by confession or\nwitness; in either case requiring no further demonstration. Instances are\nnot rare, however, where suspicion merely may exist, and the fact must be\nproved by collateral testimony; and this in two cases, where the woman is\nstill alive, and where she is dead.\n\nThe general history of the case, even if pregnancy and delivery be\nequally denied, may throw some light on its true nature. This as given,\nno matter how affected by the evidence of interested or implicated\nwitnesses, may be probable or improbable; as in an instance related by\nBurns,[111] where her sudden lessening in bulk was ascribed by a patient\nto a night\u2019s profuse sweating, of course an impossible result. But, on\nthe other hand, care is necessary lest from its rarity of occurrence or\nits improbability, the reality should be disbelieved. Cases are on record\nwhere innocent women, suffering from retention of menses or from ovarian\ndisease, and suddenly relieved by a critical and spontaneous discharge,\nhave on suspicion of abortion lost character and even their lives. If\nthe statements contradict each other, this fact of itself may reveal the\ntruth.\n\nThere are at times difficulties in proving delivery at the full period\nof pregnancy, as is well known. The earlier in gestation, if the patient\nsurvive, the more these difficulties are enhanced. The occurrence of\nnormal labor cannot be discovered with any certainty by a personal\nexamination after eight days have elapsed,[112] those of an early\nabortion not even after only one or two.[113] The signs of delivery that\nare well marked at the full period, the general symptoms then obtaining,\nthe size of the uterus, ascertained by the hand and sound, lacerations of\nthe perineum and cervix, the lochia, the state of the breasts, abdomen,\nvagina, and vulva, all of little value except in conjunction with each\nother, are proportionately less defined as we go back, until near the\ncommencement of pregnancy it becomes impossible to distinguish the\nabortion from severe hemorrhage or from menorrhagia, unless by detecting\nthe impregnated ovum.\n\nIf the patient is dead, and too long time have not elapsed since the\nsupposed occurrence, decision is often more easy; many facts in the\ncase being generally known, and concealment being less possible. If\nthe ovum, but partially detached, be still retained, the fact is\nself-evident; if it has been discharged, and concealed or lost, there\nwill still be present the recent corpus luteum and other well-known\nsigns, in proportion to the period of the pregnancy. Allowance, in this\nlatter respect, must be made for the possibility of partial uterine\ncontraction after death, as is sometimes known to occur at the full\nperiod;[114] the writer has seen it to a marked degree some time previous\nto the expiration of pregnancy, at a C\u00e6sarean section after death from\nlaryngitis, occurring in the Edinburgh Maternity Hospital.\n\n\n2. _The Commission._\n\nAllowing the fact of the occurrence of an abortion to be proved or\ngranted, it becomes necessary to discover its cause, whether accidental,\nnatural, or intentional. Of this it will be found that the proofs are\nboth positive and negative; drawn from the history of the case and from\npersonal examination of the patient and the f\u0153tus. The value of each of\nthese elements is increased in proportion as it is compared with the\nother; but \u201cthis I wish most especially to have noted, that WHEREVER\nTHERE IS A MISCARRIAGE, THERE IS ALWAYS PRESENT SOME ACTUAL, PERCEPTIBLE,\nAND OFTEN TANGIBLE CAUSE.\u201d[115]\n\nThe story of the patient may be to one effect, and that of other parties\ninvolved, to a very different one; if the first is corroborated by the\nsecond, it may again, as has already been remarked, present or not the\nlikelihood of truth. If the habit of aborting at a certain period has\nexisted, which of course cannot be alleged in a first pregnancy, if\nthe patient has had sudden fright or grief, or is known to have been\naccidentally injured, the chances are to be considered in her favor, in\nthe absence of proof to the contrary. The converse of this statement,\nhowever, must not be considered as always and necessarily true. Women\nhave time and again suffered shipwreck, undergone torture, been thrown\nfrom a height, and otherwise severely injured, and yet have escaped\nmiscarriage; while, on the other hand, they may repeatedly have aborted\nbefore, and yet passing safely their usually critical point, may without\ntrouble go on to the full period. In still other cases there may exist\nlocal disease, pelvic or uterine, which, if left alone, would of itself\noccasion miscarriage.\n\nThe character of the abortion is not without its value, whether occurring\nsuddenly and without apparent cause, or preceded by maternal disease or\nthe signs of f\u0153tal death.\n\nExamination of the mother, though proof that she has herself been\ninjured is not necessary to establish the crime, may reveal local wounds\nand mutilations; or their absence, which, however, by no means goes\nto prove that violence may not have been inflicted; and, on the other\nhand, as in a case lately reported by the writer to the Boston Society\nfor Medical Observation, traces of former violence in instrumental or\nother labors may remain, and to such an extent as to give to the touch\nevery character of a recent and criminal interference.[116] The f\u0153tus\nmay show pre-existing and natural disease sufficient to account for\nthe effect apparent, or may present the signs of direct and intentional\ninterference. Recent scars of venesection on the arms and feet, and of\nleech-bites, especially on the upper and inner parts of the thighs, are\nsuspicious in a patient who has aborted, unless they were evidently\nrequired by the state of her previous health. If signs of irritant\ninjections into the vagina are present, they are ground for more than\nsuspicion.\n\nThe instrument, where used, with which the operation has been performed,\nmay sometimes be identified; though this is almost impossible unless\nby confession or direct testimony. The weapons resorted to by the\nunprofessional are various; knitting kneedles, pen handles, skewers,\ngoose quills, pieces of whale-bone, and even curtain rods, are among the\nnumber. The finger alone, except where the uterus is prolapsed or can\nbe depressed, and the os is very soft and patulous, is seldom if ever\nsufficient for the deed. If a physician be accused, it is important to\nnotice with what instrument the crime is said to have been performed, if\nbefore witnesses, and whether it was introduced openly or under pretence\nof a digital examination.\n\nThe sensations of the patient at the time, are also in different cases\nunlike each other. In some instances nothing unusual is observed, in\nothers a prick or probing, but in most an acute and tearing uterine pain,\noften followed by syncope or an hysterical attack. Slight but immediate\nhemorrhage generally occurs, save in professional cases, increased by\ncompelled exercise, prolonged baths or ergot.\n\nThe time ensuing before the expulsion of the f\u0153tus is an element not to\nbe lost sight of. In 34 cases reported by Orfila, the minimum observed\nwas 13\u00bd hours, the maximum 6 days; in 36 cases by Tardieu, the minimum\nwas 5 hours, the maximum 11 days. Of these last cases, however, 29 were\nwithin 4 days.\n\nIt cannot be alleged in excuse that the sex of the child, so fatal in\nadvanced pregnancy, has any influence in producing early abortion. In 293\npremature still-births reported by Collins,[117] 146 were male and 147\nfemale, bearing the proportion of 100 to 100. Nor can the plea of Drs.\nGordon Smith, Good, Paris, and Copeland, that as a f\u0153tus born before the\nseventh month has a slender chance of surviving, its murder should be\nviewed with leniency,[118] be allowed. Such arguments, that the perils\nand dangers to which the f\u0153tus is naturally subjected should lessen the\ncriminality of attempts at its destruction, are without foundation, and\nwhen advanced by physicians are utterly unworthy the profession.\n\n\n3. _The Intent._\n\nWe shall hereafter discuss the perpetrators of the crime, and the\nemergencies which can alone justify the induction of premature labor\nor obstetric abortion. We shall see that by none save medical men can\nsuch necessity ever be known; it is, therefore, apparent that the intent\nmay frequently be judged from the relation of the parties implicated,\nand the excuses offered by them. It will also often appear from the\nother circumstances of the case. That the child was likely to be born a\nbastard, and to be chargeable to the reputed father, would be evidence to\nthat effect; and proof of the clandestine manner in which the drugs were\nprocured or administered would tend the same way.[119]\n\nOn the part of the mother, bastardy also, the having denied the existence\nof pregnancy, concealed its expelled product, expressed an intention\nor desire to abort, made a known application for this purpose, visited\na notorious abortionist, taken alleged specifics, or given similar\nadvice to a friend, are all presumptive evidence; as are also the having\nneglected to send for aid when needed, or refused to take precautions or\nremedies when prescribed. In like manner, evidence of criminal intent\nwould seem apparent, if drugs generally supposed abortive had been\nadvised or given to a pregnant woman, or violence of any kind usually\nproductive of the effect in question, even to tooth-drawing, had been\nhastily or unnecessarily used.\n\nHere, as in many other cases where no malice is expressed or openly\nindicated, the law will imply it; if, for instance, a man wilfully\npoisons another, in such a deliberate act the law presumes malice, though\nno particular enmity can be proved.[120] Malice is not confined in its\nlegal definition to ill-will toward one or more individual persons,\nbut is intended to denote an action flowing from any wicked or corrupt\nmotive, a thing done _malo animo_, where the fact has been attended with\nsuch circumstances as carry in them the plain indications of a heart\nregardless of social duty and fatally bent on mischief; and, therefore,\nit is implied from any deliberate or cruel act against another.[121] The\nrule is, that the implication of malice arises in every such case, and\nall the circumstances of accident, necessity, or infirmity are to be\nsatisfactorily established by the party charged, unless they arise out\nof the evidence and attending circumstances; if they do not, there is\nnothing to rebut the natural presumption of malice. This rule is founded\non the plain and obvious principle that a person must be presumed to\nintend to do that which he voluntarily and wilfully does in fact do, and\nthat he must intend all the natural, probable, and usual consequences of\nhis own act.[122]\n\nThe standing in society of the accused, unless notoriously bad, should\nof course be allowed to weigh but little; the less the likelihood of the\ncrime, the greater, from example and previous education, its guilt.\n\nIf violent purging or vomiting have been resorted to without any apparent\nreason, or to a greater extent than ordinarily prescribed or required; or\nif leeches have been applied to the thighs, to the number of an hundred\nor more, as instanced by Tardieu, or the like, there is certainly ground\nfor strong suspicion. And here it is that the criminal liability of\ncareless or ignorant physicians becomes evident. In cases such as we\nhave referred to, it would be very difficult for a successful defence\nto be offered, providing the pregnancy had been suspected by those not\nimplicated, were the statutes on abortion properly drawn and enforced.\n\nIt has been ruled, and very justly, that attempts at the crime,\nthough unsuccessful; or effective, yet the ovum retained as mole,\nhydatids, skeleton, mummy, or putrilage; and whether the woman be\npregnant or not, and if pregnant, whether the child be alive, dead, or,\nabnormally developed or degenerated, should be amenable as though fully\nconsummated.[123] We have seen the frequent difficulty in proving f\u0153tal\nlife; the attempt at its destruction shows the belief in its existence,\nand the intent. The proofs will here of course be of a different nature.\nThe signs of delivery will be absent, and all evidence from the product\nof conception, unless the mother\u2019s death ensue; in which event, as in\nthe other fatal cases we have considered, and on the principle just\nlaid down, procedure might be had on the charge either of abortion or\nhomicide; but it must not be forgotten, as we early pointed out, that\nimmediate death from the shock may occur, and no lesion of any kind be\nfound. The patient or parties interested are proved by the attempt to\nhave supposed pregnancy existing, and to have behaved as though this were\nthe fact.\n\nThe age of the patient is not of consequence; nor is that of the f\u0153tus,\nsave as corresponding with the alleged period of pregnancy, in case any\ndoubt exist as to its own identity or that of the mother, and as bearing\non the statement we have already attempted to prove, that criminal\nabortion is comparatively rare after the period of quickening, and,\ntherefore, on the probability of intent. The number of the pregnancy\nis also wholly immaterial, different as are the causes alleged for its\ncriminal induction, and equally liable in youth and age, as women seem\nto be, to accident or placental disease. Whitehead and West are of\nopinion that abortion naturally resulting is most common after the sixth\npregnancy,[124] but the point needs further investigation.\n\nAmong the proofs of intent must be included, as we have seen, the excuses\noffered by the accused or suspected party, and the means resorted to for\nconsummation. These we now proceed to examine.\n\nIt will be evident that the plea of necessity can be made by none but a\nmedical man. We shall show that the cases where abortion is legitimated\nby the rules of science are extremely few, and that for safety\u2019s sake\ntheir applicability should in no instance be allowed to rest upon a\nsingle opinion.[125] For all others beside the physician there can be\nno allowable excuse except, in the mother\u2019s case, insanity; which,\nhowever common in the true puerperal state, and often no doubt then\nshowing itself by infanticide, has in early pregnancy, and to any extent,\nstill to be observed. Other pleas as offered by the mother, ignorance\nof pregnancy or of f\u0153tal life, duress, personal health or that of her\nfamily, accident, carelessness, fear of child-bed, malpractice on part\nof the attendant, we have already considered at sufficient length. It is\nsometimes effected in hatred of the husband or in jealousy, sometimes\nfor concealment of shame; excuses of little more value than those of\nextravagance or fashion. Constitutional predisposition can hardly be\nasserted, unless the miscarriage have been preceded by others; very\nmany ineffectual attempts are on record, although the existence of such\npredisposition was evident. It will often be alleged that the measures\ninstituted were to prevent instead of to effect the miscarriage, and that\nthis has resulted in consequence merely of an excess of good-will; the\nsophistry is generally apparent.\n\nThe means resorted to are for two purposes: on the one hand, to prepare\nthe patient for the abortion and preliminarily to lessen her danger,\nor to conceal the character of those, on the other hand, which really\noccasion it, and for this end used prior or subsequently to them. We may\nyet take occasion to consider these several agents in some detail; it\nremains only to remark that their use in any given case must be compared\nwith what was then actually needed, or would have been required had the\nabortion been justifiable and necessary.\n\nCertain drugs, ergot and savin for instance, the class of so-called\nabortives, popularly considered specific, are always suggestive of\nevil intent. They would not be used, were abortion necessary, by a\nwell-informed practitioner, caring for the life of the parent or f\u0153tus.\nThe same is true, though of course to a more limited extent, of all\nover-drugging, over-manipulation, or over-exertion by a pregnant woman,\nby whomsoever advised or performed. In every instance it is necessary to\ncompare the cause alleged with the effects observed, and to judge of it\nfrom these. Where direct operative man\u0153uvres are suspected or charged,\nthe processes or instruments, the results, immediate and consecutive as\nwell as remote, the period elapsing before their occurrence, must all be\ntaken into careful consideration.\n\nBut, on the other hand, it is immaterial what was the agent, and whether\nor not it would produce abortion, if it was believed capable of this\neffect, and employed or administered with that intent. If the person\ncharged knew that the woman was with child, and the probable effect of\nthe agent administered, this is good presumptive evidence that the intent\nwas to produce the miscarriage, and where the effect of abortion is\nactually thus produced, it will materially aid the presumption of such\nintent.[126]\n\nIt was stated early in this inquiry that a difference existed between\nthe methods of investigation, as regards the examination of the f\u0153tus,\nproper in abortion and infanticide. The reason of this has been pointed\nout by Tardieu.[127] In the latter case, the whole matter turning upon\nthe questions whether the child was born living or dead, and in which\nof these states it was injured, it becomes necessary to prove one or\nthe other of the alternatives, but in abortion they are intrinsically\nof no importance whatever. The only points then to be decided are, was\nthe birth premature, and if so, was it intentional, and if so, was it\nabsolutely essential and to save either maternal or f\u0153tal life. Except as\nbearing on these questions, therefore, it is of no consequence whether\nwounds were inflicted, whether the lungs had been inflated, whether the\nf\u0153tus was viable, or even whether it was ever discovered.\n\nIn their place, however, these points are each important, but only as\nbearing on the main facts to be determined. In a case, for instance, as\nthat related by Ollivier d\u2019Angers, where the f\u0153tus, though very immature,\nlives several hours after its expulsion, this fact alone will preclude\nthe idea of a slow and progressively acting cause like most forms of\nabortive disease, and will point to some direct interference, by means\nsuddenly terminating the pregnancy without injuring the f\u0153tus.\n\nAnd so in other cases, especially of sudden maternal death, it is of\nimportance to ascertain as nearly as possible the period at which death\nof the f\u0153tus took place. If the two were coincident, the deduction\nmight be other than if the latter were proved to have preceded the\nformer by several days. The differences observed between putrefaction\nand decomposition _in utero_ and in the open air must not be lost sight\nof. In the one case, according to Orfila, Devergie and Martin, Moreau,\nP. Dubois, Danyau, Cazeaux, Tardieu, and my own experience, a uniform\nand characteristic reddish-brown hue obtains in proportion to the time\nof retention after death, varied perhaps by the action of the amniotic\nfluid;[128] the f\u0153tus wrinkles, dries, and becomes mummified, unless in\nearliest pregnancy, when it generally resolves itself into a gelatinous\nmass.\n\nIf the cervix, the portion of the uterus most frequently wounded, is\nfound punctured or lacerated, while the ovum is still retained, there is\nreason for suspicion; if the membranes are torn and extensively detached,\nwhile the cervix is but little dilated, such is increased; and it is made\nalmost a certainty, if with the latter condition, nothing remain of the\novum in the uterine cavity but lacerated fragments. Here the abortion\nwould probably not merely have been intentionally induced, but by the\ndirect introduction and agency of instruments.\n\nWounds of the f\u0153tus are much rarer than those of the mother, and\nare usually simple pricks of the skin marked by blackish coagula or\nextravasations; which, if upon the skull and unless care be used,\nare liable to be simulated by clots casually adhering to the hair or\nscalp. If the wound be deeper, its course may be traced by dissection.\nIts situation varies; Devergie thinking it always on the back and\nbuttocks, while Tardieu, with some warmth, would restrict its location\nto the top of the cranium. This difference is easily explained by\nvariations in the time of pregnancy, and in consequence partly, as may\nalso depend on its life or death, in the presentation of the child.\nThe rarity of their occurrence, though denied by Taylor[129] and other\nmedical jurists, might, however, be expected, and is readily accounted\nfor; the instruments used by ignorant persons seldom entering the os,\nhowever severely wounding the cervix, and where they do enter, usually\nonly piercing the membranes; against which, except toward the end of\npregnancy, in a deficiency of liquor amnii, or in labor, the f\u0153tus can\nhardly be said to forcibly press.\n\n\n4. _The Identity of the Party Accused._\n\nMost of the points here involved having already been incidentally\nconsidered, we will not repeat them. The circumstances and history of the\ncase, the relative correspondence of different testimony, the allegations\nof the accused, will all bear directly upon the question at issue.\n\nIn trials for abortion, of all others, the medical witness and the\nadvocate should bear in mind their liability to error; the juror and the\njudge the fact that innocent persons are at times wrongly accused, often\nby the true criminals themselves.\n\n * * * * *\n\nIn defence, it must either be pleaded that the alleged abortion did not\noccur, that it was accidental or natural, that it was necessitated, or\nthat it was induced by another than the individual charged.\n\nThe first of these pleas is seldom offered except in the earliest months\nof pregnancy, and would be invalid if an attempt at the abortion could\nbe proved. In default of this, however, where the ovum has been lost,\nor has passed unnoticed, the fact that the sanguineous effusion was\nhemorrhagic and attended with clots, would, in the absence of any uterine\ndisease sufficient to account for this, be so far presumptive evidence;\nto be corroborated or not by the history of the case. Moles and hydatids\nare now generally allowed to be mere transformations of the product of\nconception; their premature discharge, therefore, equally an abortion.\n\nIn answer to the second plea, the importance of several points must\nbe borne in mind. It has been well put by Tardieu that it is wrong to\ncommence, as advised by most authorities on the subject, by enumerating\nall the natural and accidental causes liable to have produced the\nabortion. On the contrary, the signs and proofs of criminal violence\nshould first be sought, and these compared with the allegations of\nwitnesses and the possibility of a natural or accidental origin. The\ntraces of falls, contusions, and wounds must be found, not believed on\nmere allegation; coincidences must be guarded against, equally with\nuntruth.\n\nWe have already laid down rules here available; that the state of the\nf\u0153tus often affords proof of the cause of its expulsion, this being slow\nand natural, and depending on disease and predisposition, or not; that in\nflagrant malpractice, the use of alleged specifics, or of measures likely\nto produce direct miscarriage, or otherwise absolutely counter-indicated\nby the general health and constitution of the patient, a contradiction\nexists to the plea offered, in itself strong presumptive evidence\nof criminal intent; and that in certain cases this evidence becomes\npositive, as where, for instance, a sponge found or proved to have been\ninserted into the os uteri as a dilating tent, is alleged to have been\nintended as a mere pessary and placed in the vagina.\n\nIf the accused be a physician, presumed as he should be, acquainted\nwith the great principles of practice, his only plea can be, where the\nmeans used were unjustifiable and proved such, and where the pregnancy\nwas known to others, that he was ignorant of its existence. Liable as\nthe profession are at any time to this charge, and easy as it is in\nalmost every case, especially of instrumental procedure, for us to take\nsuch preliminary measures as would be likely to settle the question of\nthe existence of pregnancy, or to request the presence of a witness\nto our act, it is unjust to ourselves and to each other to omit these\nprecautions.\n\nBut if, on the other hand, the charge be utterly unfounded, it is\nprobable, as I have already remarked, that contradictions in the\ntestimony or the alleged facts could always be shown to exist, and the\nperjury thus exposed. It would be self-evident, were the accused proved\nto have been first consulted after the abortion had terminated, though\nnot if it had only commenced.\n\n\n\n\nV. ITS PERPETRATORS.\n\n\nIt is interesting, and at the same time of judicial importance to\nascertain, so far as possible, the standing and character of the\nperpetrators of this crime.\n\nIn the first place, French statistics on the large scale show that the\nnumber of criminals, principals and accomplices, in that country at\nleast, is in large excess to the instances of the crime, there having\nbeen in 183 trials, from 1826 to 1853, not merely 417 parties accused,\nbut 213 convicted; and that in 75 per cent. of the prosecutions and\nconvictions occurring, where the abortion is not induced by the mother\nherself, the offenders are women.[130] With us the same statement is,\nwithout doubt, equally true.\n\nThe part played by the mother, herself so often a victim, is almost\nalways that of a principal, yet as laws now stand, she can scarcely ever\nbe reached. The cases where she is under duress, by threat of other\npersonal violence from her husband or seducer, and thus compelled to\nsubmit to abortion, or where the act is performed by his direction but\nwithout her knowledge, are so rare, that in a general statement they\nmay be assumed not to exist. If the mother does not herself induce the\nabortion, she seeks it, or aids it, or consents to it, and is, therefore,\nwhether ever seeming justified or not, fully accountable as a principal.\nWe have already seen the position these mothers hold in the community,\nhigh as well as low, rich as well as poor, intelligent and educated as\nwell as ignorant, professedly religious as well as of easy belief, not\nsingle alone, but married.\n\nWe turn now to their partners in guilt, more criminal than themselves;\nfor whatever excuse the latter may suppose themselves to possess, the\nformer can have none.\n\nThe accomplices in criminal abortion are of several classes,\ndistinguishable in some respects from each other, especially by the\nrelative frequency with which their part is played. They are:\n\n Of women, I.\u2014Friends and acquaintance.\n II.\u2014Nurses.\n III.\u2014Midwives and female physicians.\n Of men, IV.\u2014Husbands.\n V.\u2014Quacks and professed abortionists.\n VI.\u2014Druggists.\n VII.\u2014And worst of all, though fortunately extremely\n rare, physicians in regular standing.\n\nIn many cases, such at least is judged by the writer from his own\nobservation, the abortion is not merely advised, but induced by some\nfemale _friend_, especially by one who has herself undergone, in her own\nperson, the crime; perhaps without appreciable evil result,\u2014but this\nis not necessarily the case, for even where such result is present and\nplainly in consequence, its connection with the true cause is frequently\nunsuspected or disbelieved.\n\nIt has been said that misery loves companionship; this is nowhere\nmore manifest than in the histories of criminal abortion. In more\nthan one instance, from my own experience, has a lady of acknowledged\nrespectability, who had herself suffered abortion, induced it upon\nseveral of her friends, thus perhaps endeavoring to persuade an uneasy\nconscience that by making an act common, it becomes right. Such ladies\nboast to each other of the impunity with which they have aborted, as they\ndo of their expenditures, of their dress, of their success in society.\nThere is a fashion in this, as in all other female customs, good and bad.\nThe wretch whose account with the Almighty is heaviest with guilt, too\noften becomes a heroine. So true is the case, that the woman who dares at\nthe present day publicly or privately to acknowledge it the holiest duty\nof her sex to bring forth living children, \u201cthat first, highest, and in\nearlier times almost universal lot,\u201d[131] is worthy, and should receive,\nthe highest admiration and praise.\n\nThe ease with which an accomplice is procured, provided the idea\noriginates with the victim herself, and is not suggested by another,\nis found among _nurses_ to be greatly increased. We separate them\nas a class from midwives and female physicians, with whom, though in\nthis country not generally acknowledged or thought identical, they not\nunfrequently aim to be confounded. They are usually, and rightly, thought\nmore familiar with the laws of health and disease, than the generality\nof their sex; they are, if doing their duty in his sight, seen to be\ntreated with respect by the physician; they are commonly of mature age,\nsupposed discreet, wise, and to keep their own counsel; they have had\nopportunities of gaining the confidence of the mother; many of them\nhave themselves borne families. They are therefore approached with less\nhesitation, and are not always found proof against an offered fee.\n\nWhat we have said of nurses applies with increased pertinency to _female\nphysicians_ and _midwives_. These make it their claim, in rivalry of\nthe male physician, that their schools and their practice are, like\nhis, founded on those abroad, especially of Paris. Tardieu shows, in\na total of 32 cases occurring in that city and collected by himself,\nthat in 21\u2014no less than 66 per cent., or two-thirds of the whole\nnumber reported\u2014the crime was perpetrated by midwives.[132] This class\nfrequently cause abortion openly and without disguise. They claim a\nright to use instruments, and to decide on the necessity and consequent\njustifiability of any operation they may perform. Where they establish\nprivate hospitals, professedly for lying-in women or not, their chances,\npreviously great, of committing this crime and infanticide with impunity,\nbecome more than doubled. It has been found necessary in France for the\npolice to exercise rigid surveillance over these establishments. In one\ninstance, occurring at Grenoble, it was proved that within three years\nthere had happened in the house thirty-one still-births at the full time,\nor deaths just after birth, and that the abortions and miscarriages had\nbeen almost innumerable.[133] In another case, to conceal the evidence\nof these truly _corpora delicti_, and to evade the law against secret\nburials, the midwife had established an understanding and a current\naccount with an undertaker, who was accustomed to smuggle her f\u0153tuses\ninto his coffins, by the side of the corpses confided to him for burial.\nIn still other cases, the victims are kept on hand, preserved in jars;\nprivate collections vieing in extent with those of legalized obstetric\nmuseums.\n\nBy these remarks we would not be supposed endeavoring to excite prejudice\nagainst female physicians and midwives, as such, or advocating their\nsuppression. We are now merely considering this crime of abortion, in\nrelation to which they are peculiarly and unfortunately situated. At\npresent everything favors their committing the crime; their relations to\nwomen at large, their immunities in practice, the profit of this trade,\nthe difficulty, especially from the fact that they are women, of insuring\ntheir conviction. Let better laws be enforced, and let public opinion be\nenlightened concerning the guilt of abortion, and the influence for evil\nof this class of offenders will in great measure be done away with.\n\nOf male abortionists we have less to say. Their number is fewer abroad,\nbearing the proportion, as we have seen, of but one to every four,\nand their liability of being applied to, or consulted, is slight in\ncomparison.\n\n_Husbands_, though generally knowing to the offence of their wives,\nand often counselling it, probably but seldom attempt its commission\nthemselves; yet instances of this do undoubtedly occur. In but a\nsixteenth of the cases reported by Tardieu, was any compulsory violence\nexerted over women by their husbands.\n\n_Druggists_ and _professed abortionists_ are accountable for the greater\nnumber of the cases of the crime attributable to men. The latter class,\nthough proportionally rare, yet abound in every city, and take all means\nof making themselves known. A knowledge of their alleged specifics,\nagainst the use of which, \u201cat certain times,\u201d the public are \u201cearnestly\ncautioned,\u201d etc. etc., is brought home to all our women, no matter how\npurely minded, and despite every care to the contrary, through the medium\nof the daily press; few papers, however professedly respectable or\nreligious, proving able to refuse the bribe.\n\nDruggists, as a class, are little more than the confessed agents of these\nvillains. Even should they not directly recommend their nostrums, as,\nhowever, is frequently the case, they almost universally keep them on\nsale, labelled to catch the eye, and placarded on their walls. Like the\npublishers and vendors of obscene literature, they conceive they are not\nto blame for supplying a public demand, however much they themselves may\nhave done toward its creation.\n\nAnd in this connection we must again allude to the guilt of the public\npress, which has proved itself so constantly and so dangerously an\naccessory to the crime. It would be thought that in Massachusetts, for\ninstance, a statute like the following might do something to check this\nlicense:[134]\n\n\u201cEvery person who shall knowingly advertise, print, publish, distribute,\nor circulate, or knowingly cause to be advertised, printed, published,\ndistributed, or circulated, any pamphlet, printed paper, book, newspaper,\nnotice, advertisement, or reference, containing words or language, giving\nor conveying any notice, hint, or reference to any person, or to the name\nof any person, real or fictitious, from whom, or to any place, house,\nshop, or office where any poison, drug, mixture, preparation, medicine\nor noxious thing, or any instrument or means whatever, or any advice,\ndirections, information, or knowledge, may be obtained for the purpose of\ncausing or procuring the miscarriage of any woman pregnant with child,\nshall be punished,\u201d etc. etc.[135]\n\nThe above statute, however, such is the public sentiment on this point,\nis not enforced, or is daily evaded. The press, if it choose, may almost\nannihilate the crime; it now openly encourages it.\n\nIt has been often alleged, and oftener supposed, that _physicians in\ngood standing_ not unfrequently and without lawful justification, induce\ncriminal abortion. This statement, whatever exceptional cases may exist,\nis wickedly false. The pledge against abortion, to the observance of\nwhich Hippocrates compelled his followers by oath,[136] has ever been\nconsidered binding, even more strongly of late centuries. The crime is\nrecognized as such in almost every code of medical ethics; its known\ncommission has always been followed by ignominious expulsion from medical\nfellowships and fraternity. If this direct penalty be at any time\nescaped, it is only through lack of decisive proof, bare suspicion even\nof the crime insuring an actual sundering of all existing professional\nfriendships and ties; a loss that subsequent proof of innocence could\nhardly restore. Such is the unanimous feeling of the profession; to its\ncredit be it said, that with but a single exception,[137] and this to his\neternal disgrace, its writers are all agreed, abstractly considering the\nsubject, on the sanctity of f\u0153tal life. The instances where physicians\nin good standing are guilty of the crime, are of rare occurrence; the\nerror that has prevailed on this point, originating from the self-assumed\ntitles of notorious quacks and knaves. But no condemnation can be too\nstrong for the physician who has thus forgotten his honor; who has\nused to destroy life, that sacred knowledge by which he was pledged to\npreserve it.\n\nThe criminal abuses likely to arise from the procurement of justifiable\nabortion by medical men, are so numerous, their own liability to be\nthought by the public criminally careless of f\u0153tal life, or skeptical\nconcerning its existence, is so great, that the subject is worthy special\nconsideration. This I shall now devote to it.\n\n\n\n\nVI. ITS INNOCENT ABETTORS.\n\n\nWe have referred to an apparent disregard of f\u0153tal life, obtaining in the\nmedical profession, as a prominent cause of the prevalence of criminal\nabortion. We now proceed to show that the opinion is not unfounded.\n\n * * * * *\n\nPremature labor, or obstetric abortion, may be justifiably induced by the\nphysician for one of two reasons; either to save the life of the mother\nor that of her child. In each case it must be, absolutely and only, to\nsave a life.\n\n * * * * *\n\nPerformed for the child\u2019s sake, it is evident that the operation can\nbe only available during the last three months of pregnancy, for then\nonly can the f\u0153tus with any degree of probability be considered viable.\nWe grant that there are a few cases on record where, born during the\nsixth month and even in the fifth, the child has survived; but it is\nequally certain, despite the popular notion concerning the mortality\nof eighth-month children, that the later the operation can be safely\ndelayed, the better the chance for the infant\u2019s life.\n\nThe rules for the induction of premature labor must, of course, vary\nfor different cases. In this early stage of the inquiry, it is perhaps\nimpossible to state them precisely, but they may still be approximately\narrived at.\n\n1. The operation, performed for the child\u2019s sake, is but seldom required;\nand in general,\n\n(2.) only after the commencement of the seventh month of pregnancy.\n\n3. It must be clearly indicated; and\n\n(4.) must be delayed as long as is consistent with the child\u2019s safety.\n\n5. Its means must be those which are most efficient, and safest for the\nchild.\n\nWe have already stated that the induction of abortion before the seventh\nmonth, undertaken for the child\u2019s sake, must be generally useless;\nand therefore, as attended with some degree of danger to the mother,\ngenerally unjustifiable. As the profession are nearly united on this\npoint, its further discussion is here unnecessary.\n\nWe have asserted that the cases where prematurely induced labor is\nrequired for the child, are comparatively rare. We now add that while in\nsome respects they are more frequent, in others they are less so than is\ngenerally supposed. To necessitate it, there must be disease or deformity\non the part of the mother, or disease on the part of the f\u0153tus or its\nappendages.\n\nIt is most frequently performed to avoid the alternative of craniotomy,\nthe necessity of which, unless extreme, can manifestly only be known\nwith certainty, before the expiration of pregnancy, from the experience\nof past labors. But here too much caution cannot be exercised; the rules\nof the books and of accepted authorities are not to be blindly followed.\n\nCraniotomy at the full time is still too frequently performed:\n\nWhere it has been suggested by the character of a previous labor,\nchildren are often, or might be, born living;\n\nWhere it seems indicated by direct exploration, as ruled even by recent\nwriters, children are sometimes, or might be, born living;\n\nWhere it was formerly thought absolutely essential, the progress of\nobstetric science has now rendered it often unnecessary.\n\nIt is proper that we consider these points, for they bear directly on the\nquestion at issue concerning criminal abortion.\n\nIt is known that the sex of children exercises an appreciable influence\nupon the result of labors at the full time, as regards the possibility\nof their passing alive, unaided or at all, through the pelvis, and as\nregards the length of the labor, which also progressively endangers the\nlife of the mother and their own; the average female f\u0153tus, in cases at\nall difficult, having the advantage over the male by its inferiority in\nsize, especially important in the cranial diameters. It is unnecessary\nfor us to do more than refer to the facts by which these assumptions\nare proved.[138] Where, therefore, craniotomy has been found necessary\nin a former labor, the child then being male, in another labor a female\nf\u0153tus may often pass uninjured. However this argument may be lessened\nin value by the impossibility of previously ascertaining the sex, it is\nstrengthened in the doctrine of chances, by the number of the labor and\nthe sex of the former children; and by the fact that first labors are\ngenerally most difficult, whatever the sex of the child.\n\nFurthermore, cases will suggest themselves to most practitioners of\nexperience, in which from difference in the character of the labor or\nwithout apparent reason, children are born living at the full time,\nmales, of large size, and presenting by the vertex, where craniotomy\nhad previously, perhaps repeatedly, been performed. An instance of\nthis has occurred to the writer, where the patient had been advised to\nearly abortions from alleged physical incapacity of ever bearing living\nchildren; he delivered her, without difficulty, of a large-sized and\nliving boy, at the full time.\n\nAgain, it may happen that in labor at the full period, craniotomy may\nseem decidedly indicated and advisable, but for one reason or another\nmay not be performed, and yet the child, unaided, be born living. The\nwriter\u2019s experience furnishes him with two illustrations of this class:\none of them occurred in 1851, the patient his own, Drs. S. sen., and\nC., in consultation; the other was seen at Edinburgh, in 1854, in the\npractice of his friend, Dr. G. W. In both cases, permission was refused\nto operative procedures, the patients being Catholic, and the physicians\nunable conscientiously to pronounce the f\u0153tus already dead, while the\npossibility of intra-uterine baptism was not recollected; in both\ninstances the children were born living, and without instrumental aid.\n\nIn other cases, where from deformity previously diagnosticated,\ncraniotomy is pronounced necessary if the patient should go her full\ntime, she may do so, the labor be unassisted, and the child yet escape\nwith its life. I instance a remarkable case for some time under my\nown charge at the Boston Lying-in Hospital, delivered by one of my\ncolleagues, Dr. Dupee, and subsequently reported by Dr. Read.[139] The\npelvis was here equably contracted, and to a great degree, but from some\ndifference of opinion, partly as regarded the justifiability of premature\nlabor as compared with craniotomy, the patient was allowed to go her\nfull time. Both mother and child did well.\n\nFinally, by turning, the use of the long forceps and of an\u00e6sthesia,\nchildren are now constantly saved, where formerly craniotomy and their\nconsequent destruction would have been absolutely indicated. These\nprocesses, with the introduction of each of which as an alternative a\nsingle name is imperishably connected, are now successfully employed by\nvery many of the profession;[140] they have each of them saved to the\nwriter the disagreeable necessity of f\u0153tal destruction. Where, however,\none life is thus preserved, there are still multitudes unnecessarily,\nand, therefore, unjustifiably, sacrificed.\n\nThe comparative frequency of craniotomy in the different countries of\nEurope is in this connection worth noticing.\n\nThe operation is performed, in\n\n Germany once in every 1944 labors;\n Paris \u201d \u201d 1628 labors;\n France, at large \u201d \u201d 1200 labors;\n Vienna \u201d \u201d 688 labors;\n England \u201d \u201d 220 labors;\n Ireland, formerly \u201d \u201d 128 labors;[141]\n \u201d at present, Dublin\n Hospital, 1854, \u201d \u201d 105.7 labors.[142]\n\nThe remarkable difference between the practice on the continent and in\nEngland, so suggestive to us in this country, is undoubtedly owing to the\nfact that in Catholic States greater value is attached to the life of the\nchild than \u201cin Protestant States, as Britain, where the child is always\nsacrificed to save the mother.\u201d[143] The immense excess of embryotomy\ncases in Catholic Dublin furnishes no exception to this rule, drawn as\nthey are from hospital practice under Protestant control.\n\nSo far proof by deduction. In many cases involving the question of\ncraniotomy, that operation is not required; in some of them, not even the\ninduction of premature labor.\n\nTwo classes of cases remain, each affording more direct evidence; those\nwhere craniotomy being absolutely indicated if the patient were allowed\nto go her full time, that operation is, and those where it is not\nperformed.\n\nCraniotomy, being necessarily fatal to the f\u0153tus, is indicated only\nto save the mother\u2019s life; to be avoided when any other alternative\ngiving the f\u0153tus a chance of life, and not more than equally hazardous\nto the mother, can be resorted to. Especially is this the case when\nit is compared with the induction of premature labor, attended as is\nthe latter, despite a certain amount of danger of its own, with great\nprobability of saving the child, and with decidedly lessened risk to\nthe mother; for craniotomy not merely requires the use of murderous\ninstruments, dangerous to all tissues they may approach or be in contact\nwith, but the operation is usually, though often very improperly, delayed\ntill late in labor, and therefore till the mother\u2019s chances of recovery\nhave been proportionally lessened. Premature labor, on the other hand,\nthough of course involving some risk to the child, is not necessarily\nfatal to it; nor is it usually so, when properly performed. That there is\na choice in this respect between the means employed, will hereafter be\nshown.\n\nCraniotomy, when absolutely indicated at the close of pregnancy, must be\nfor one of two reasons: that the f\u0153tus cannot pass through the pelvis\nat the full time alive, though it may do so unmutilated, the operation\nbeing performed to save the mother the greater risks of protracted\nlabor; or that it cannot pass at the full time unmutilated, even when\ndead. We defer the consideration of another supposable instance, where\nthe f\u0153tus in the outset of its viability may pass, but not alive, for\nthis pertains to the consideration of the mother\u2019s safety alone, no\nalternative availing for the child. In the other cases, if the necessity\ncould be learned in season, from the previous history of the patient\nor by pelvic exploration, labor should most certainly be prematurely\ninduced, as affording some positive chance of life to the child, and as\nless dangerous to the mother. It were here worse than foolish, if not\ncriminal, blindly to imitate nature, when, her course being obstructed,\nshe would kill the child.\n\nI have alluded for a double reason to cases, fortunately few, where\ncraniotomy, and much more decidedly premature labor being indicated,\nthe practitioner decides from the outset to perform neither, to give\nhis patient or her child no aid. Such conduct is as cruel and wicked as\nit is unprofessional, and were not instances occasionally reported, its\nexistence could hardly be believed. We acknowledge with Blundell the\nevils of meddlesome midwifery, but there are extremes to all things;\ncertainly to the powers of nature and the limits of justifiable delay.\n\nI am aware that I have referred to a reported case, which might in this\nconnection be quoted against the opinion now expressed; but even by its\nexceptions do we prove the rule. Where chances are so greatly against\nboth mother and child as in these cases if left unaided, it would be the\noffice of the physician, were there no better procedure, by craniotomy\nto save the one;[144] but at the present day it is no less plainly his\nduty, where possible, to anticipate labor, and thus save both. I have\nelsewhere discussed this question at some length,[145] and can only\nrepeat, as is indeed allowed by Churchill,[146] that this is no matter\non which to select one\u2019s words; the deliberately sacrificing an unborn,\nbut still living child, in cases where statistics go to prove that the\nadoption of another mode of delivery, nothing counter-indicating, would\ngive that child a good chance of successful birth, is nothing short of\n_wilful murder_, no matter by what schools or by what eminent men it may\nbe sanctioned, and it should be branded as such by the profession.\n\nBut, undertaken for the child\u2019s sake, not merely should premature labor\nbe resorted to for the purpose of preventing craniotomy, but often in\ncases of incurable disease, acute and chronic, of the mother, where it\nis evident that she must inevitably, or even probably, perish before\nthe full period of pregnancy has been attained. Instances of such acute\ndisease will readily suggest themselves. The question here is merely\nbetween the operation under consideration, the C\u00e6sarean section, and\ndoing nothing. The last, suppose the f\u0153tus viable and to be still living,\nwould in many instances be decidedly unprofessional and unjustifiable.\nC\u00e6sarean section after the mother\u2019s death is comparatively unsuccessful;\nand before it, is so much more severe and in all probability so much\nmore quickly fatal, that the other should be preferred, unless death be\nalready close at hand.\n\nInstances of chronic incurable disease necessitating the induction\nof premature labor, may not so readily occur to the mind. The shock\nof an abortion being frequently greater to the maternal system than\nthat of labor at the full time, it is evident that this rule cannot be\nuniversally applied. It cannot in every case of thoracic disease, of the\nheart, for example, unless its own peculiar symptoms become so aggravated\nfrom progressing pregnancy as to render probable earlier decease of the\nmother, the operation then being performed partly on her account; not\nso much to save her life as to delay a little her death. But there are\nother and extreme cases, as cancer of the lower segment of the uterus,\nor indeed of its fundus, which may have been diagnosticated previously\nto pregnancy by the use of expansible tents, or of my uterine dilator\nhereafter referred to, where the mother would probably perish in labor at\nthe full period, with most probably the loss of the child also. Here, by\npremature labor, the child may be saved, and the mother\u2019s life, greater\nexpansion of the uterus and its more probable laceration being prevented,\npossibly prolonged.\n\nSo far complications on the part of the mother necessitating premature\nlabor for the sake of the child. There are others equally imperative,\nafforded by itself. Excessive size of the f\u0153tus in comparison with a\nnormal pelvis, as evidenced and rendered probable by previous labors, is\nhardly of less importance in connection with craniotomy, than where the\npelvis is distorted or contracted, and the f\u0153tus of natural size; but the\noperation in question, as compared with premature labor, we have already\nsufficiently discussed.\n\nDiseases of the placenta, congestive, inflammatory or degenerative, are\nno less an indication, where known to exist, for an early delivery. Their\ndiagnosis may be difficult, but yet not wholly impossible. The occurrence\nof the same disease in past labors, and evident intra-uterine disturbance\nas discovered by auscultation or by unnaturally frequent and strong\nf\u0153tal movements, are, taken together, frequently sufficient to establish\nthe fact. The impropriety of allowing such cases to proceed unaided,\ncannot be too strongly insisted upon. By early delivery, if the f\u0153tus\nhave formerly perished after the period of viability, and in addition,\nby special medication of the parent, if its death had usually occurred\nbefore that time, many valuable lives might annually be saved.\n\nPremature labor as resorted to on the mother\u2019s behalf alone, putting\naside the cases we have incidentally considered, where the lives of both\nherself and her offspring are of necessity taken into account, includes\nalso its induction in the earlier months of pregnancy before the f\u0153tus is\nviable. It may be required by diagnosticated malformation or monstrosity\nof the f\u0153tus and by malformations on the part of the mother; by extreme\npelvic contraction, congenital or from rickets or malacosteon, preventing\nthe natural passage of a f\u0153tus after viability, by tumors incapable of\nelevation or displacement, by contraction of the vagina, or by other\nsevere obstetric complications, either recent or of long standing. Of\nthis last class of causes, obstinate vomiting, puerperal convulsions,\nwhich are by no means confined to the full period of pregnancy, dropsies,\nirreducible displacements of the uterus, varix of the external labial\nvessels, sometimes fatal by laceration from tension, are all instances\nin point. With regard to each, the necessity of the abortion must be\ndetermined with the greatest caution, and resort be had to it, the child\nstill living, with reluctance; especially should this be the case if the\ncomplication be supposed on the part of the f\u0153tus, so important is it to\navoid its sacrifice, if possible, and the semblance of disregarding its\nown important claims.\n\nThe rules for the operation when performed for the mother are the same as\nwhen for the child, save that if absolutely required, it may be resorted\nto at an earlier period. If the child must necessarily be lost, the labor\nshould not be long delayed.\n\n * * * * *\n\nThere are several subordinate questions arising in this connection,\nneither metaphysical nor merely casuistic, but practical, and because\nbearing on the increase of criminal abortion, directly involving human\nlife to an indefinite extent. One of them we shall now mention.\n\nLet physical incapacity to the birth of a living or viable child through\nthe natural passages be supposed to exist on the part of the mother; that\nthis has been proved by examination, or by the result of a former labor,\ninduced or at the full time. To save the mother\u2019s life, early abortion\nis once brought on and the child destroyed; the woman and her husband\nbeing of course informed of the true state of the case. Is it right or\njustifiable, again to destroy the f\u0153tus, and as often as sexual lust may\nrepeat impregnation? Or should the patient be left to the risks of a\nsubsequent C\u00e6sarean section, which would at least give the chance of life\nto her child?\n\nI am aware on which side of this question lies at present the opinion\nand the practice of the mass of the profession; that N\u00e6gele[147] and\nothers[148] have ruled it right always to destroy the f\u0153tus when a\nrefusal to undergo the C\u00e6sarean operation shall have been formally\nexpressed by the mother; and that reports of instances where early\nabortion has been repeated, even to nine times upon the same patient,\nare still unblushingly published by men of the standing of Lever and\nOldham.[149]\n\nBut, on the other hand, in his late admirable justification of craniotomy\nwhere absolutely necessitated, Churchill makes use of the following\nlanguage, which though offered in another connection, is none the\nless pertinent here: \u201cIt is the due appreciation of these relative\nresponsibilities (regarding mother and child) in difficult cases, that\ndistinguishes the wise and experienced accoucheur; he preserves a just\ncounterpoise between them so long as it is possible to fulfil both, and\nrecognizes the proper moment when one ceases. _One_, I say, not _either_;\nfor I protest against the notion that _we choose which of the two lives\nwe shall save_, a notion as false in theory as it is in practice. _No man\ndare make such a choice_, for we have neither the necessary knowledge,\nnor the right, nor the authority, to decide which is the more important\nlife and best worth preserving.\u201d[150]\n\n\u201cMy own opinion is that such a course (the repetition of abortion)\nought not to be adopted, but that pregnancy should be allowed to\nproceed, without interruption, to the full period; and when labor\ndeclares itself, that the infant should invariably be extracted by the\nC\u00e6sarean section,\u201d[151] which, when performed in season, is by no means\nnecessarily fatal to the mother, and may preserve life to the child.\n\nThe question now so plainly put, is one for the profession soberly to\ndiscuss and to answer.\n\n * * * * *\n\nWe have already shown that in many cases where instrumental delivery or\nthe induction of premature labor is apparently requisite, the mother, if\na Catholic, is sacrificed to the supposed impossibility of administering\nthe right of baptism to the child. We do not, with some, allow that the\nphysician is here justified in deliberately and falsely asserting the\nchild\u2019s death, where such has not taken place, but we have revived the\nsuggestion of a method by which this great and fundamental obstacle may\nbe overcome. We assert that the negligence too often shown by physicians\nin these cases, the custom of practically leaving the mother and her\nchild to their fate when instrumental delivery shall have been refused\nupon religious grounds sincerely entertained,[152] is, however wide\nit may appear from the point, directly incentive to the increase of\ncriminal abortion. Provided the question of necessity is determined, but\none course in these cases should be pursued, and that the performance of\nintra-uterine baptism.\n\n * * * * *\n\nThe objections usually made to the induction of premature labor,\nnamely, the uncertainty of all pelvic measurements and of the exact\nperiod of gestation, the greater liability to malpresentation, and,\nfrom the uninvoluted state of the cervix, to the evils of a lingering\nlabor, lose much of their force when tested by our preceding remarks.\nIf resorted to, the means of its induction are various, and, as regards\ntheir justifiability, they present a decided choice. We here omit\nthe consideration of the methods indirect or of doubtful efficacy,\nas draughts, general or local baths or bleedings, forced exercise,\nfatigue, and voluntary falls or blows, so frequently resorted to by the\nuneducated, or used, in addition to other procedures, by the designing to\nmask the reality; these will be subsequently considered, and we confine\nourselves, in comparing the other and more direct methods, only to\nascertaining that which is safest and most efficacious, for these points\nalone can decide their respective justifiability.\n\nThe direct and reliable means of inducing abortion, in the physician\u2019s\npossession, are only instrumental. Draughts of all kinds, whether\npurgative, emmenagogue, or so-called specific,\u2014aloes, ergot, or savin,\u2014or\nenergetic poisons, expelling the f\u0153tus through a sudden and profound\ndisturbance of the whole maternal system, as arsenic or cantharides, are\ntoo unreliable, unscientific, or dangerous either to mother or child. The\njustifiable methods are confined to those acting directly on the uterus\nand its contents, by dilating the os or detaching the membranes.\n\nThey are, rejecting the local application of belladonna as utterly inert:\n\n1. Local or distant and sympathetic irritation\n\n By the hand;\n medicinal applications;\n electricity or galvanism.\n\n2. Puncture of the membranes, and evacuation of their fluid contents.\n\n3. Dilatation of the os, and separation of the membranes from the uterine\nwalls\n\n By sponge tents;\n the introduction of instruments;\n or the injection of fluids.\n\nThe first of these modes, in all of its applications, is extremely\nuncertain in effect.\n\nThe second, though that usually attempted, is of real avail only\ntoward the close of pregnancy, and is even then decidedly inferior to\nthe last of the methods proposed; at an earlier period it is probably\nunjustifiable. In thirteen cases reported by Lever and Oldham,[153] where\nlabor was prematurely induced by puncturing the membranes, only four of\nthe children were born living, and in all these the presentation was by\nthe vertex. It has been shown that malpositions are much more frequent in\nearlier than later pregnancy, and from evident causes, the comparative\nabsence and weakness of the f\u0153tal movements which govern its position\nin utero, and the want of correspondence in form between itself and the\ncontaining organ. Of the nine cases reported where the f\u0153tus was dead,\nfive presented by the vertex, and were therefore probably alive at the\ncommencement of labor, as after death previous to labor, malposition very\ngenerally occurs, except there be deficiency of the liquor amnii or the\npregnancy have advanced to near its close.\n\nAgain, it appears from the same statistics, which as offered for another\npurpose are the more to be depended upon, that in the successful\ncases, where the child was born living, the length of time after the\noperation and before the occurrence of pains, almost doubled that in\nthe unsuccessful cases, where the child was lost; the sum of the hours\nin the four successful cases exceeding the sum in the nine unsuccessful\nones. That is to say, in the one class of cases time was allowed for a\ncertain amount of dilatation of the os and cervix and for some degree\nof detachment of the membranes, an approach, however slight, to the\ncharacters of normal labor; and in the other cases the labor was brought\non at once, without either of the above processes having commenced, and\nwhen both uterus and its contents were totally unprepared. Had the times,\nmoreover, from the commencement of labor to its close, been given in the\ntwo classes of cases, it would probably have been found that the relative\nproportions were reversed; that the sum of the hours in the unsuccessful\ncases exceeded that in the successful cases, as would be in strict\naccordance with the results to the f\u0153tus.\n\nIn premature labor, as in that at the full period, the bag of waters is\nrequired to be preserved until it has fulfilled its purpose, on the one\nhand, of a fluid wedge, and on the other, of protection to the child from\nviolence till it has fairly entered the pelvic brim. Puncture is also\nattended with the danger of directly wounding the uterine tissues.\n\nThe last of the methods referred to, dilatation and detachment, combined\nto a certain extent as they must necessarily be, is in close imitation of\nthe processes observed in natural labor, and is recommended alike by its\nsafety to mother and child, its certainty, and the ease both to physician\nand patient with which it may be effected.[154]\n\n * * * * *\n\nFrom the above remarks it is evident that the profession need to exercise\ngreat caution lest they directly, though unintentionally, become the\nabettors of criminal abortion. But this liability is not confined to\nthe instances already mentioned, where abortion has been intentionally\ninduced. Nor is the matter in question one affecting merely the public\nhealth and morals, like prostitution or syphilization. It is a liability\ndirectly to increase the unjustifiable destruction of human life, and its\nexistence cannot be too strongly impressed upon our minds and guarded\nagainst.\n\nSo true is this, that two of the French obstetricians, Moreau and B\u00e9gin,\nhave not hesitated to express their fears, and not on religious grounds\nalone; the latter, with Tardieu, giving it as his conviction, that every\nphysician should make a legal declaration of the act to the public\nprosecutor, immediately on inducing premature labor, even if the period\nof viability has been reached by the f\u0153tus. The subject has also been\ndiscussed by the French Academy of Medicine;[155] and in Great Britain\nit has been referred to by Radford, in whose opinion an enactment is\nnecessary, \u201centirely prohibiting obstetric abortion (before the period\nof viability), as the door for evil purposes is already too open, and\nwould be still more so, if it was legally decided that where performed on\nsupposed obstetric grounds, no inquiry should be made.\u201d[156]\n\nWhenever an abortion is induced by a physician, even if accidentally, it\nis liable to be thought intentional by the patient and her friends, and\nconsequently by the community, so far as it becomes aware of the fact.\nInstances of this are within the writer\u2019s knowledge.\n\nAccidental abortions, caused by a physician, may be from two causes:\nerror or insufficient care in diagnosis, or the absence of all likelihood\nof the existence of pregnancy. When cases are reported in apparent\ninnocence of fault, and by eminent practitioners, of the pregnant\nuterus having been tapped for ovarian dropsy; of craniotomy having been\nattempted upon an infant\u2019s fundament instead of its skull, and of the\nsame operation in another instance undertaken upon the promontory of\nthe mother\u2019s sacrum, it cannot be alleged, I care not by whom, that\nthis caution is unnecessary or these fears unfounded. The writer will\nstate a few cases that have happened under his own observation. He has\ntwice known abortion to be accidentally occasioned by the use of sponge\ntents;[157] the patients being near the close of their menstrual lives,\nand neither themselves nor the physicians in attendance supposing that\nthe contents of the enlarged uterus could be f\u0153tal; in one of these cases\nthe woman had never before been pregnant, and in the other not for many\nyears. He has twice known the introduction of an intra-uterine pessary\nto be followed by abortion; in neither case was there any probability\nof the existence of pregnancy, save in the fact that the patients were\nmarried. He has known abortion to be produced by the application of lunar\ncaustic to the os, in a case where, from the character of the operator,\nno suspicion could be entertained of the uterus having been more deeply\ntampered with.\n\nIn cases like these, the practitioner would seem to render himself\nliable to the charge of malpractice, even though by the improbability of\nmalicious intent he escaped that of criminal abortion. In all instances\nwhere there exists the slightest suspicion or possibility even of\npregnancy, the only rule for operative interference must be, unless\ncircumstances imperatively prevent, to wait the few months or weeks\nnecessary to establish the diagnosis. Justice to the profession and to\nthe risk of error demand that where such precaution is not had, it should\nbe replaced by a consultation, which would at once dispel any suspicion\nof carelessness or malpractice, and prevent a criminal charge.\n\nAll that we have said regarding surgical obstetrics, applies as forcibly\nto its medicinal procedures. Though draughts and potions of every kind\nare, as we have remarked, of doubtful or indirect efficacy for inducing\nabortion, yet with some of them instances of its occurrence do at times\nresult. In supposed obstructive amenorrh\u0153a, unless of several months\nstanding, and in early pregnancy where established, the physician who\ndoes not intend it, must take care lest accidentally or carelessly, by\npurging, vomiting or over-bleeding, he produce a miscarriage.\n\n * * * * *\n\nBut there is still another point in this connection we must not pass\nover. We state it in the following inquiries, received from one of the\nmost eminent practitioners of the Eastern States, and put to us in all\nsincerity.\n\n\u201cAre there not cases where a physician would be justified in suggesting a\ncourse such as he would use in amenorrh\u0153a, even where he might _suspect_,\nbut not _know_, the existence of pregnancy? Suppose a mother of several\nchildren, which she has had in rapid succession, and the physician feels\nassured that health, and possibly life, will be endangered if another\npregnancy occurs; would he be criminal if he were to use common means for\namenorrh\u0153a if the menses have been absent six weeks? Are the cases always\nso plain that a man can decide, and may he not balance a choice of evils?\u201d\n\nCovering as these questions do, much of the ground already gone over,\nwe may answer them at once, and decidedly in the negative. They\napply more especially to the early months of pregnancy, where it is\nalways impossible to know its existence; and were direct or probable\nemmenagogues, or instrumental interference, to be here allowed, criminal\nabortion might be always induced before quickening, sanctioned and\npermitted by the rules of medicine. To justify abortion, life must\ncertainly or very probably be endangered, not possibly merely, which is\ntrue in every pregnancy, and might be alleged at every trial for the\ncrime.\n\nHufeland advised, as a \u201cgolden rule,\u201d always to suppose the existence of\nimpregnation in such cases, and to act accordingly; that is, to temporize\nlong enough for the f\u0153tus, if present, to make its sign. \u201cThereby,\u201d\nhe says, \u201cthe physician will avoid much mischief, and preserve his\nconscience as well as his reputation.\u201d[158]\n\nThe ideas on this subject held by my friend, are without doubt widely\nentertained by the profession. This paper will have served a good purpose\nand have saved many f\u0153tal lives, if it do no more than carry conviction\nof the error and its likelihood to indefinitely extend the crime.\n\n * * * * *\n\nAgain, it is undoubtedly the case that in all cases of maternal death\nduring pregnancy, where the f\u0153tus has arrived at the period of viability,\nits immediate extraction by the C\u00e6sarean section should be effected.\nWe have already referred to this subject, and Kergaradec, who has well\nwritten upon it, lays down the maxim that the operation should always be\nperformed, even in the fifth month of pregnancy.[159] In some cases,\nof placenta pr\u00e6via, for instance, where the chances are always more or\nless against the child\u2019s life, success is less probable; but this in no\nwise invalidates the necessity of the operation. The writer has himself\nperformed it in the complication instanced, and in vain; but he would\nnone the more hesitate, on this account, to repeat it. There can be\nno reason against the procedure in any case, and by it the child may\npossibly be saved. In the words of an older writer, \u201cEst enim inhumanum,\npost obitum matris, f\u0153tui pereunti et suffocari parato manus auxiliares\ndenegare, et s\u00e6p\u00e8 viventem adhuc cum matre mortu\u00e2 eodem tumulo contegere\net obruere. Idcirco jurisconsulti eum _necis_ reum damnant, qui gravidam\nsepelierit non prius extracto f\u0153tu.\u201d[160]\n\nA question has been raised concerning the rights of relatives in\npreventing the physician from such discharge of his duty. It has\nbeen asserted that \u201cthe father has not only the natural right of his\nrelationship, but legal power; for Dr. Lever recently mentioned that he\nhad consulted Dr. Alfred Taylor to know whether he would be justified in\nperforming C\u00e6sarean section after the death of the mother, without the\nconsent of the father, as it appeared unjustifiable homicide to allow\nthe infant to die. Dr. Taylor gave his opinion that, in law, the infant\nbelonged to the father,\u2014the infant with the life thereof,\u2014and that if\nDr. Lever touched it, even to rescue it from death, an action would lie\nagainst him.\u201d[161] I must, however, declare such doctrine to be false\nand pernicious. If signs of the child\u2019s life remain, no physician should\nhesitate endeavoring to preserve it, unless restrained by actual force. I\nreiterate my conviction that such neglect, or seeming neglect, of f\u0153tal\nlife is an actual wrong, both against the individual and against society.\n\nSimilar points in which physicians are directly interested, as tending\nby their apparent disregard of f\u0153tal life to render themselves innocent\nabettors of criminal abortion, are not uncommon. Such are neglect of\nefforts to prevent miscarriage when threatening, or where it has become\nan established habit; and of attempts at resuscitating still-born\nchildren where there is the slightest chance of success, and success has\nnow been rendered much more probable by the methods of Marshall Hall and\nSilvester; the performance of operations of any kind upon a pregnant\nwoman, even tooth-drawing,[162] that might be delayed; the careless or\nunnecessary use of ergot; the relying upon a single and unaided opinion,\nwhere not one life only, but two, may be endangered.\n\nOther instances might be adduced; but enough has already been said to\nprove that the importance of the subject we are considering, and the\nresponsibilities resting upon the profession regarding it, demand as I\nhave elsewhere suggested,[163] that physicians should possess, should\nacknowledge, and should govern themselves by, an _Obstetric Code_\u2014the\nnecessity of which will be made even more manifest, as we proceed in our\ninvestigation of questions pertaining to Obstetric Jurisprudence. We have\nreferred to some of its leading principles, but have done no more than\nfaintly foreshadow them.\n\nDistressing in the retrospect, inconvenient frequently in the\npresent,[164] such a Code would undoubtedly prove; but it is demanded\nof the profession by the progress of our science, by humanity, morality\nand religion. Were the facts in the case more generally known, and the\nexistence and sanctity of f\u0153tal life more universally appreciated, it\nwould be also demanded by public opinion.\n\nWe have now seen that \u201cthe absurd enactments still remaining on the\nstatute book, the careless indifference with which society views the\ncrime, the reluctance with which means are adopted to prevent its\noccurrence, its increase, and its frequent induction by obstetricians,\nare all evils which loudly and imperatively call for the closest\ninvestigation.\u201d[165]\n\nWe proceed to the other relations of criminal abortion, more especially\nto those immediately pertaining to the claims and course of justice.\n\n\n\n\nVII. ITS OBSTACLES TO CONVICTION.\n\n\nWe have already seen that there are special, though, it is to be hoped,\nnot wholly insurmountable causes for the existing prevalence of abortion.\nIt now becomes our duty to consider some of these reasons in detail, in\nso far as they relate to and obstruct the course of justice.\n\nIt would seem, from what has been previously said, that little doubt\ncould be entertained of the inefficacy of our present statutes against\nabortion. There are few of the States whose laws on this point are so\nwisely and completely drawn as in Massachusetts; yet, as they there\nstand, they cannot, as such, be enforced. In that Commonwealth, according\nto the reports of the attorney-general, during the eight years from 1849\nto 1857, omitting 1853\u2014as there seems to have been no report rendered for\nthat year\u2014there were, as we have seen, 32 trials for abortion, and not a\nsingle conviction!\n\nA committee of the State Medical Society of Massachusetts, to whom\nthe propriety of a professional appeal to the Legislature for more\nprotective statutes had been referred by the District Society of Boston,\nhaving reported against such action, on the ground \u201cthat the laws of\nthe Commonwealth are already sufficiently stringent, provided that they\nare executed,\u201d[166] it becomes the more necessary for us to strike at\nthe root of the whole matter, and to show, if possible, why conviction,\nunless in case of the death of the mother, cannot at present be obtained.\n\nIt has been thought, even publicly argued, that in the fact that statutes\nagainst abortion are almost everywhere not only not enforced, but not\nattempted to be enforced, there is afforded strong evidence of the\nexistence of an ultimate and absolute impossibility of thus meeting the\ncrime. The idea, though a fallacious one, is yet attributable to an\nimportant and evident cause.\n\nThat the prevalence of abortion is in great measure owing to ignorance\nof guilt, on the part of the community at large, we have shown. We now\nassert that its futile prohibition by the law, its toleration, are\nplainly in consequence of similar ignorance on the part of legislators,\nand of officers of justice.\n\nOur communities form their own laws, and, therefore, as was pointed\nout at the commencement of our remarks, these must necessarily bear\nthe stamp of public opinion; while the officers by whom they are to be\nenforced\u2014juror, attorney, judge\u2014looking to the only source possible for\ntheir enlightenment on this subject, to medical men, have hitherto found\nbut few bold and honest statements,[167] and these unindorsed by the\nmass of the profession; or, in the total silence, a practical sanction\nof the popular belief. This is no exaggeration; the assertion is fully\nborne out by facts. Need we wonder, then, that the laws are not enforced,\nthat indeed their enforcement is not attempted? But this first and great\ncause, it is apparent, is by no means an essential one.\n\nWe need add nothing to what we have already said, of those obstacles to\nconviction, arising from circumstances common in greater or less degree\nto other crimes;\u2014the difficulties of detection and of obtaining proof,\nhowever great these are allowed to be,\u2014but we proceed at once to consider\nthe laws themselves by which in this country the crime of abortion is\nattempted, or is expected to be suppressed.[168]\n\nThe arguments by which we have shown the mistaken premise on which\nthe common law of England, as covering this crime, is founded, and by\nadoption, the common law of this country, will not have been forgotten.\nWe shall perceive that similar reasoning applies with equal force to the\nspecial statutes, where such exist, of almost every State in the Union.\n\n * * * * *\n\nIn the following States, Rhode Island, New Jersey, Pennsylvania,\nDelaware, Maryland, North Carolina, South Carolina, Georgia, Florida,\nKentucky, Tennessee, Iowa, and the District of Columbia, there appear to\nexist no statutes against abortion, and the crime can only be reached at\ncommon law and by the rulings of the courts.\n\nIn the case of the District of Columbia, all rulings are based on the\ncommon law, the old English statutes, from Elizabeth to George II., and\nthe old colonial statutes of the Province of Maryland, down to 1800, the\nperiod of cession to the United States of that portion of Maryland lying\non the north side of the Potomac, now included in the federal district.\n\nThe later English statutes, even those of George IV., being enacted\nsubsequent to the separation from the mother country, are not recognized\nin the District. In the State courts, so far as the rules and principles\nof the common law are applicable to the administration of criminal\nlaw, and have not been altered or modified by acts of the colonial or\nprovincial government, or by the State Legislature, they have the same\nforce and effect as laws formally enacted.[169] In the States referred\nto, therefore, as having no special statutes of their own, the later\nEnglish statutes, though not of absolute force, are to a certain extent\nundoubtedly acknowledged.\n\n * * * * *\n\nBy the common law of England, as stated by Blackstone:\u2014\n\n\u201cIf a woman is quick with child, and by a potion or otherwise, killeth it\nin her womb, or if any one beat her, whereby the child dieth in her body,\nand she is delivered of a dead child, this, though not murder, was by the\nancient law homicide, or manslaughter. But the modern law doth not look\nupon this offence in quite so atrocious a light, but merely as a heinous\nmisdemeanor.\u201d[170] \u201cBut if the child be born alive, and afterwards die in\nconsequence of the potion or beating, it will be murder.\u201d[171]\n\nBy this law it is necessary to furnish proof not merely of pregnancy, but\nof quickening; no one besides the mother can be reached, save in the rare\ninstance of beating; it is often impossible to prove that a child, born\nliving, has died in consequence of means used upon itself or its mother\nbefore the birth.\n\n * * * * *\n\nThe Ellenborough act,[172] passed in 1803, runs thus:\u2014\n\n\u201cIf any person shall willfully and maliciously administer to, or cause\nto be administered to, or take any medicine, drug, or other substance\nor thing whatsoever, or use, or cause to be used or employed, any\ninstrument, etc., with intent to procure the miscarriage of any woman,\nnot being, or not being proved to be, quick with child at the time of\ncommitting such thing, or using such means, then, and in every such case,\nthe persons so offending, their counselors, aiders and abettors, shall be\nand are declared guilty of felony, and shall be liable,\u201d etc. etc.; if\nbefore quickening, to fine, the pillory, stripes, or transportation; if\nafter quickening, to death;\u2014but in the clause providing for the latter\ncase, mention of instruments was omitted.\n\n * * * * *\n\nPunishment was thus extended to the crime prior to quickening; and\nbesides the actual perpetrator, to those counseling and assisting\ntherein. For its commission after quickening, capital punishment was\nrestored; but by a strange oversight, no penalty was provided for the\ncases occurring at this period, where the abortion was induced by\ninstrumental or other mechanical violence.\n\nTo remedy this defect another act, that of Lord Lansdowne,[173] was\nsubstituted in 1828:\u2014\n\n\u201cIf any person, with intent to procure the miscarriage of any woman then\nbeing quick with child, unlawfully and maliciously shall administer to\nher, or cause to be taken by her, any poison or other noxious thing, or\nshall use any instrument, or other means whatever, with the like intent;\nevery such offender, and every person counseling, aiding or abetting such\noffender, shall be guilty of felony, and being convicted thereof, shall\nsuffer death as a felon;\u201d if the woman were \u201cnot, or not proved to be,\nthen quick with child,\u201d the offence was still felony, and punished by\ntransportation, or imprisonment and stripes.\n\nBy this enactment, the mistaken belief in a difference of guilt,\naccording to the period of f\u0153tal life, was still retained. For which\nreason, and in the false hope that by again abolishing capital\npunishment, juries would more frequently decide in accordance with fact,\nthe English law has later, and during the present reign, still further\nbeen modified and rendered more just, simple, and comprehensive.[174]\n\n * * * * *\n\n\u201cWhosoever, with the intent to procure the miscarriage of any woman,\nshall unlawfully administer to her, or cause to be taken by her, any\npoison or other noxious thing, or shall unlawfully use any instrument,\nor other means whatsoever, with the like intent, shall be guilty of\nfelony, and being convicted thereof, shall be liable,\u201d etc. etc., to\ntransportation or imprisonment.\n\n * * * * *\n\nBy the present English statute, the woman herself can hardly yet be\nreached; many convictions must still be lost from failure to prove the\nagent either a poison or noxious thing; in other respects, however, it is\nwell drawn. Attempts at the crime are covered, and proof is not required\nof pregnancy, or of actual injury to the mother.\n\n * * * * *\n\nSo far the instances in this country of an absence of special statutes.\nWhere such exist, they may be variously classified. Reserving for a\nlittle all other considerations, we find them at once falling into four\ngreat divisions.\n\nI. Those acknowledging the crime only after quickening has occurred:\u2014\n\n Connecticut,\n Mississippi,\n Arkansas,\n Minnesota,\n Oregon.\n\nII. Those acknowledging the crime throughout pregnancy, but supposing its\nguilt to vary with the period to which this has advanced:\u2014\n\n Maine,\n New Hampshire,\n New York,\n Ohio,\n Michigan.[175]\n\nIII. Those acknowledging the crime throughout pregnancy, unmitigated; but\nstill requiring proof of the existence of this state:\u2014\n\n Vermont,\n Massachusetts,\n Illinois,\n Wisconsin,\n Virginia,\n Missouri,\n Alabama,\n Louisiana,\n Texas,\n California.[176]\n\nIV. That, like the present English statute, requiring no such proof, and\npunishing also the attempt, even though pregnancy do not exist:\u2014\n\n Indiana.\n\nBriefly to recapitulate these groups:\u2014\n\n Maine, Class II.\n New Hampshire, \u201d II.\n Vermont, \u201d III.\n Massachusetts, \u201d III.\n Rhode Island, no statute.\n Connecticut, Class I.\n New York, \u201d II.\n New Jersey, none.\n Pennsylvania, none.\n Delaware, none.\n Maryland, none.\n District of Columbia, none.\n Virginia, Class III.\n North Carolina, none.\n South Carolina, none.\n Georgia, none.\n Florida, none.\n Alabama, Class III.\n Mississippi, \u201d I.\n Louisiana, \u201d III.\n Texas, \u201d III.\n Ohio, Class II.\n Indiana, \u201d IV.\n Illinois, \u201d III.\n Michigan, \u201d II.\n Kentucky, none.\n Tennessee, none.\n Missouri, Class III.\n Arkansas, \u201d I.\n Wisconsin, Class III.\n Iowa, none.\n Minnesota, Class I.\n California, \u201d III.\n Oregon, \u201d I.\n\nWe now proceed to the consideration of these statutes in detail, and for\nthis purpose, present them at length.\n\n * * * * *\n\nI. States acknowledging the crime only after quickening:\u2014\n\nCONNECTICUT.\u2014\u201cEvery person who shall willfully and maliciously administer\nto, or cause to be administered to, or taken by, any woman then being\nquick with child, any medicine, drug, noxious substance, or other\nthing, with intent thereby to produce the miscarriage of such woman, or\nto destroy the child of which she is pregnant, or shall willfully and\nmaliciously use and employ any instrument or other means to produce such\nmiscarriage, or to destroy such child, shall suffer imprisonment in the\nConnecticut State prison for a term not less than seven, nor more than\nten years.\u201d[177]\n\nMISSISSIPPI.\u2014\u201cThe willful killing of an unborn quick child, by any injury\nto the mother of such child, which would be murder if it resulted in the\ndeath of the mother, shall be deemed manslaughter.\n\n\u201cEvery person who shall administer to any woman pregnant with a quick\nchild, any medicine, drug, or substance whatever, or shall use or employ\nany instrument or other means, with intent thereby to destroy such child,\nunless the same shall have been necessary to preserve the life of such\nmother, or shall have been advised by a physician to be necessary for\nsuch purpose, shall be deemed guilty of manslaughter.\u201d[178] Punishment,\nby fine not less than one thousand dollars, or imprisonment in the county\njail for not more than one year, or in the penitentiary for not less than\ntwo years.\n\nARKANSAS.\u2014\u201cThe willful killing of an unborn quick child, by any injury\nto the mother of such child, which would be murder if it resulted in the\ndeath of such mother, shall be adjudged manslaughter.\n\n\u201cEvery person who shall administer to any woman pregnant with a quick\nchild, any medicine, drug, or substance whatever, or shall employ any\ninstrument or other means, with intent thereby to destroy such child,\nand thereby shall cause its death, unless the same shall be necessary to\npreserve the life of the mother, or shall have been advised by a regular\nphysician to be necessary for such purpose, shall be deemed guilty of\nmanslaughter.\u201d[179]\n\nMINNESOTA.\u2014\u201cThe willful killing of an unborn infant child, by any injury\nto the mother of such child, which would be murder if it resulted in the\ndeath of such mother, shall be deemed manslaughter in the first degree.\n\n\u201cEvery person who shall administer to any woman pregnant with a quick\nchild, any medicine, drug, or substance whatever, or shall use or employ\nany instrument or other means, with intent thereby to destroy such child,\nunless the same shall have been necessary to preserve the life of such\nmother, or shall have been advised by two physicians to be necessary\nfor such purpose, shall, in case the death of such child or of such\nmother be thereby produced, be deemed guilty of manslaughter in the\nsecond degree.\u201d[180] Punishment for first degree, imprisonment in the\nterritorial prison for not less than seven years; and for second degree,\nnot more than seven years nor less than four.\n\nOREGON.\u2014\u201cAny person who shall administer to any woman pregnant with a\nquick child, or prescribe for any such woman, or advise or procure any\nsuch woman to take any medicine, drug, or substance whatever, or shall\nuse or employ any instrument or other means, with intent thereby to\ndestroy such child, unless the same shall have been necessary to preserve\nthe life of such mother, shall, in case the death of such child, or of\nsuch mother, be thereby produced, be deemed guilty of manslaughter.\u201d[181]\nPunishment, imprisonment in the penitentiary for not less than one or\nmore than ten years, and by fine not exceeding five thousand dollars.\n\n * * * * *\n\nII. Those acknowledging the crime throughout pregnancy, but as of\ndifferent degrees of guilt:\u2014\n\nMAINE.\u2014\u201cWhoever administers to any woman pregnant with child, whether\nsuch child is quick or not, any medicine, drug, or other substance,\nor uses any instrument or other means, unless the same were done as\nnecessary for the preservation of the mother\u2019s life, shall be punished,\nif done with intent to destroy such child, and thereby it was destroyed\nbefore birth, by imprisonment not more than five years, or by fine not\nexceeding one thousand dollars; if done with intent to procure the\nmiscarriage of such woman, by imprisonment less (_sic_) than one year,\nand by fine not exceeding one thousand dollars.\u201d[182]\n\nNEW HAMPSHIRE.\u2014\u201cEvery person who shall willfully administer to any\npregnant woman, any medicine, drug, substance, or thing whatever, or\nshall use or employ any instrument or means whatever, with intent thereby\nto procure the miscarriage of any such woman, unless the same shall have\nbeen necessary to preserve the life of such woman, or shall have been\nadvised by two physicians to be necessary for that purpose, shall, upon\nconviction, be punished by imprisonment in the county jail not more than\none year, or by a fine not exceeding one thousand dollars, or by both\nsuch fine and imprisonment, at the discretion of the court.\n\n\u201cEvery person who shall administer to any woman pregnant with a quick\nchild, any medicine, drug, or substance whatever, or shall use or employ\nany instrument or means whatever, with intent thereby to destroy such\nchild, unless the same shall have been necessary to preserve the life of\nsuch woman, or shall have been advised by two physicians to be necessary\nfor such purpose, shall, upon conviction, be punished by fine not\nexceeding one thousand dollars, and by confinement to hard labor not less\nthan one year nor more than ten years.\n\n\u201cAny person who shall cause the death of any pregnant woman, in the\nperpetration or attempt to perpetrate either of the crimes mentioned in\nthe two preceding sections, or in consequence of the perpetration or the\nattempt to perpetrate either of said crimes, shall be taken and deemed to\nbe guilty of murder in the second degree, and be punished accordingly.\n\n\u201cAny woman who shall voluntarily submit to the violation of the\nprovisions of this act (this and the three preceding sections[183])\nupon herself, shall be punished by imprisonment in the county jail not\nexceeding one year, or by fine not exceeding one thousand dollars, or by\nboth said fine and imprisonment, at the discretion of the court.\u201d[184]\n\nNEW YORK.\u2014\u201cThe willful killing of an unborn quick child, by an injury to\nthe mother of such child, which would be murder if it resulted in the\ndeath of such mother, shall be deemed manslaughter in the first degree.\n\n\u201cEvery person who shall administer to any woman pregnant with a quick\nchild, or prescribe for any such woman, or advise or procure any such\nwoman to take any medicine, drug, or substance whatever, or shall use or\nemploy any instrument or other means, with intent thereby to destroy such\nchild, unless the same shall have been necessary to preserve the life of\nsuch mother, shall, in case the death of such child, or of such mother be\nthereby produced, be deemed guilty of manslaughter in the second degree.\n\n\u201cEvery person who shall administer to any pregnant woman, or prescribe\nfor any such woman, or advise or procure any such woman to take any\nmedicine, drug, substance, or thing whatever, or shall use or employ any\ninstrument, or other means whatever, with intent thereby to procure the\nmiscarriage of any such woman, shall, upon conviction, be punished by\nimprisonment in a county jail not less than three months nor more than\none year.\n\n\u201cEvery woman who shall solicit of any person any medicine, drug, or\nsubstance, or thing whatever, and shall take the same, or shall submit to\nany operation, or other means whatever, with intent thereby to procure\na miscarriage, shall be deemed guilty of a misdemeanor, and shall, upon\nconviction, be punished by imprisonment in the county jail not less than\nthree months nor more than one year, or by a fine not exceeding one\nthousand dollars, or by both such fine and imprisonment.\u201d[185]\n\nOHIO.\u2014\u201cAny physician, or other person, who shall willfully administer to\nany pregnant woman, any medicine, drug, substance, or thing whatever, or\nshall use any instrument, or other means whatever, with intent thereby to\nprocure the miscarriage of any such woman, unless the same shall have\nbeen necessary to preserve the life of such woman, or shall have been\nadvised by two physicians to be necessary for that purpose, shall, upon\nconviction, be punished by imprisonment in the county jail not more than\none year, or by fine not exceeding five hundred dollars, or by both such\nfine and imprisonment.\n\n\u201cAny physician, or other person, who shall administer to any woman,\npregnant with a quick child, any medicine, drug, or substance whatever,\nor shall use or employ any instrument, or other means, with intent\nthereby to destroy such child, unless the same shall have been necessary\nto preserve the life of such mother, or shall have been advised by two\nphysicians to be necessary for such purpose, shall, in case of the death\nof such child or mother, in consequence thereof, be deemed guilty of a\nhigh misdemeanor, and upon conviction thereof, shall be imprisoned in the\npenitentiary not more than seven years, nor less than one year.\u201d[186]\n\nMICHIGAN.\u2014\u201cThe willful killing of an unborn quick child, by any injury\nto the mother of such child, which would be murder if it resulted in the\ndeath of such mother, shall be deemed manslaughter.\n\n\u201cEvery person who shall administer to any woman pregnant with a quick\nchild, any medicine, drug, or substance whatever, or shall use or employ\nany instrument, or other means, with intent thereby to destroy such\nchild, unless the same shall have been necessary to preserve the life of\nsuch mother, or shall have been advised by two physicians to be necessary\nfor such purpose, shall, in case the death of such child or of such\nmother be thereby produced, be deemed guilty of manslaughter.\n\n\u201cEvery person who shall willfully administer to any pregnant woman,\nany medicine, drug, substance, or thing whatever, or shall employ any\ninstrument, or other means whatever, with intent thereby to procure the\nmiscarriage of any such woman, unless the same shall have been necessary\nto preserve the life of such woman, or shall have been advised by two\nphysicians to be necessary for that purpose, shall, upon conviction, be\npunished by imprisonment in a county jail not more than one year, or\nby a fine not exceeding five hundred dollars, or by both such fine and\nimprisonment.\u201d[187]\n\n * * * * *\n\nIII. Those not allowing this mitigation, but still requiring proof of\npregnancy:\u2014\n\nVERMONT.\u2014\u201cWhoever maliciously, or without lawful justification, with\nintent to cause and procure the miscarriage of a woman, then pregnant\nwith child, shall administer to her, prescribe for her, or advise or\ndirect her to take or swallow any poison, drug, medicine, or noxious\nthing, or shall cause, or procure her, with like intent, to take or\nswallow any poison, drug, medicine, or noxious thing; and whoever\nmaliciously and without lawful justification, shall use any instrument,\nor means whatever, with the like intent, and every person, with the like\nintent, knowingly aiding and assisting such offenders, shall be deemed\nguilty of felony, if the woman die in consequence thereof, and shall be\nimprisoned in the State prison not more than ten years, nor less than\nfive years; and if the woman does not die in consequence thereof, such\noffenders shall be deemed guilty of a misdemeanor, and shall be punished\nby imprisonment in the State prison not exceeding three years, nor less\nthan one year, and pay a fine not exceeding two hundred dollars.\u201d[188]\n\nMASSACHUSETTS.\u2014\u201cWhoever maliciously or without lawful justification, with\nintent to cause and procure the miscarriage of a woman then pregnant with\nchild, shall administer to her, prescribe for her, or advise or direct\nher to take or swallow any poison, drug, medicine, or noxious thing, or\nshall cause or procure her, with like intent, to take or swallow any\npoison, drug, medicine, or noxious thing; and whoever maliciously and\nwithout lawful justification shall use any instrument, or means whatever,\nwith the like intent, and every person with the like intent knowingly\naiding and assisting such offender or offenders, shall be deemed\nguilty of felony, if the woman die in consequence thereof, and shall\nbe imprisoned not more than twenty years, nor less than five years, in\nthe State prison; and if the woman doth not die in consequence thereof,\nsuch offender shall be guilty of a misdemeanor, and shall be punished by\nimprisonment not exceeding seven years, nor less than one year, in the\nState prison, or house of correction, or common jail, and by fine not\nexceeding two thousand dollars.\u201d[189]\n\nILLINOIS.\u2014\u201cEvery person who shall administer, or cause to be administered\nor taken, any noxious or destructive poison, substance, or liquid, with\nthe intention to procure the miscarriage of any woman then being with\nchild, and shall thereof be duly convicted, shall be imprisoned for a\nterm not exceeding three years in the penitentiary, and fined in a sum\nnot exceeding one thousand dollars.\u201d[190]\n\nWISCONSIN.\u2014\u201cEvery person who shall administer to any pregnant woman, or\nprescribe for any such woman, or advise or procure any such woman to\ntake any medicine, drug, or substance, or thing whatever, or shall use\nor employ any instrument, or other means whatever, or advise or procure\nthe same to be used, with intent thereby to procure the miscarriage of\nany such woman, shall, upon conviction, be punished by imprisonment\nin a county jail, not more than one year nor less than three months,\nor by fine not exceeding five hundred dollars, or by both fine and\nimprisonment, at the discretion of the court.\n\n\u201cEvery woman who shall take any medicine, drug, substance, or thing\nwhatever, or who shall use or employ any instrument, or shall submit\nto any operation, or other means whatever, with intent to procure a\nmiscarriage, shall, upon conviction, be punished by imprisonment in\na county jail not more than six months, nor less than one month, or\nby a fine not exceeding three hundred dollars, or by both fine and\nimprisonment, at the discretion of the court.\u201d[191]\n\nVIRGINIA.\u2014\u201cAny free person who shall administer to, or cause to be taken\nby a woman, any drug or other thing, or use any means, with intent\nto destroy her unborn child, or to produce abortion or miscarriage,\nand shall thereby destroy such child, or produce such abortion or\nmiscarriage, shall be confined in the penitentiary not less than one, nor\nmore than five years. No person, by reason of any act mentioned in this\nsection, shall be punishable where such act is done in good faith, with\nthe intention of saving the life of such woman or child.\u201d[192]\n\nMISSOURI.\u2014\u201cEvery physician, or other person, who shall willfully\nadminister to any pregnant woman, any medicine, drug, or substance\nwhatsoever, or shall use or employ any means whatsoever, with intent\nthereby to procure abortion, or the miscarriage of any such woman, unless\nthe same shall have been necessary to preserve the life of such woman,\nor shall have been advised by a physician to be necessary for that\npurpose, shall, upon conviction, be adjudged guilty of a misdemeanor,\nand punished by imprisonment in the county jail not exceeding one year,\nor by fine not exceeding five hundred dollars, or by both such fine and\nimprisonment.\u201d[193]\n\nALABAMA.\u2014\u201cAny person who willfully administers to any pregnant woman,\nany drug or substance, or uses and employs any instrument or other means\nto procure her miscarriage, unless the same is necessary to preserve her\nlife, and done for that purpose, must, on conviction, be fined not more\nthan five hundred dollars, and imprisoned not less than three or more\nthan twelve months.\u201d[194]\n\nLOUISIANA.\u2014\u201cWhoever shall feloniously administer, or cause to be\nadministered, any drug, potion, or any other thing, to any woman, for the\npurpose of procuring a premature delivery, and whoever shall administer,\nor cause to be administered, to any woman pregnant with child, any drug,\npotion, or any other thing, for the purpose of procuring abortion, or a\npremature delivery, shall be imprisoned at hard labor for not less than\none, nor more than ten years.\u201d[195]\n\nTEXAS.\u2014\u201cIf any person shall designedly administer to a pregnant woman,\nwith her consent, any drug or medicine, or shall use toward her any\nviolence, or any means whatever, externally or internally applied, and\nshall thereby procure an abortion, he shall be punished by confinement in\nthe penitentiary not less than two, nor more than five years; if it be\ndone without her consent the punishment shall be doubled.\n\n\u201cAny person who furnishes the means for procuring an abortion, knowing\nthe purpose intended, is guilty as an accomplice.\n\n\u201cIf the means used shall fail to produce an abortion, the offender is\nnevertheless guilty of an attempt to procure abortion, provided it be\nshown that such means were calculated to produce that result, and shall\nreceive one half the punishment prescribed.\n\n\u201cIf the death of the mother is occasioned by an abortion so produced, or\nby an attempt to effect the same, it is murder.\n\n\u201cIf any person shall, during parturition of the mother, destroy the\nvitality or life in a child, which child would otherwise have been born\nalive, he shall be punished by confinement in the penitentiary for\nlife, or any period not less than five years, at the discretion of the\njury.[196]\n\n\u201cNothing contained in this chapter shall be deemed to apply to the case\nof an abortion procured or attempted to be procured by medical advice for\nthe purpose of saving the life of the mother.\u201d[197]\n\nCALIFORNIA.\u2014\u201cEvery person who shall administer or cause to be\nadministered or taken, any medicinal substance, or shall use, or cause\nto be used, any instrument whatever, with the intention to procure the\nmiscarriage of any woman then being with child, and shall be thereof duly\nconvicted, shall be punished by imprisonment in the State prison for a\nterm not less than two years, nor more than five years; provided, that no\nphysician shall be affected by this section, who, in the discharge of his\nprofessional duties, deems it necessary to produce the miscarriage of any\nwoman in order to save her life.\u201d[198]\n\n * * * * *\n\nIV. The State, like England, where proof of pregnancy is not\nrequired:[199]\n\nINDIANA.\u2014\u201cEvery person who shall willfully administer to any pregnant\nwoman, or to any woman whom he supposes to be pregnant, anything\nwhatever, or shall employ any means with intent thereby to procure the\nmiscarriage of such woman, unless the same is necessary to preserve her\nlife, shall be punished by imprisonment in the county jail not exceeding\ntwelve months, and be fined not exceeding five hundred dollars.\u201d[200]\n\n * * * * *\n\nThe impossibility of proving the existence of pregnancy, in all cases\nof early occurring, and in many of advanced abortion, save by its\nresult, is undeniable. Quickening, where abortion is criminal, is seldom\npreviously ascertained by witnesses, at least from actual examination.\nIf the mother is dead, her own testimony, not often willingly given, is\nlost, and the only reliable evidence that the usual period of quickening\nhad been reached, is from the body of the f\u0153tus, frequently concealed or\ndestroyed. The law requires, in proof of the existence of quickening,\nthat the woman should herself have felt the child move within her;[201]\nthus discarding[202] the distinction once very properly made by a learned\njudge, \u201cQuick with child, is having conceived; with quick child, is where\nthe child is quickened.\u201d[203]\n\nWe have already sufficiently insisted on the error, injustice, and actual\nwrong to society, of making this absurd distinction between the f\u0153tus of\nan early and a later age, and only refer to it at the present time as\nforemost among the existing obstacles to conviction.\n\nIn some of the States, the offence is considered a trifling one, except\nas affecting the person or life of the mother; this is the case in New\nHampshire, Vermont, and Massachusetts. In Ohio, Michigan, Minnesota,\nWisconsin, and Oregon, the proved death of either child or mother is\nrequired to make abortion a high misdemeanor, felony or manslaughter;\nwhile in Virginia and Arkansas it is necessary to constitute an\nindictable offence, in the one State that the death of the child should\nbe proved, and in the other that this or its premature discharge has\nactually taken place. An attempt at the crime would here seem beyond\nindictment, unless f\u0153tal life were destroyed; though if this could be\nproved, the attempt might perhaps be reached, even though the f\u0153tus\nwere retained in utero, and a true abortion, its discharge, had not\ntaken place. In Maine, the f\u0153tus must have died before birth; if, born\nliving, it yet die in consequence of the abortion, the crime would seem\nnot indictable, save at common law. In other States, allowing the fact\nof pregnancy to be proved, and in Indiana alone this is not necessary,\nattempts at abortion are as indictable as the act consummated, save in\nTexas, where the means used must be shown to be such as \u201cwere calculated\nto produce the result.\u201d\n\nIn but few instances is the crime, intrinsically considered, accounted a\nheinous one, and recognized in its true character\u2014an attempt to destroy\nthe life of the child. In Texas, the consent of the mother half palliates\nthe crime; while in very many codes abortion is omitted from the list\nof offences against the person, and accounted only a breach of public\ndecency and morality.\n\nIn Ohio, as we have seen, it is called a high misdemeanor; in New York,\nMichigan, Oregon, Arkansas, and Mississippi, it is styled manslaughter\nin the first degree. The punishment inflicted by the latter of these\nStates, however, is ridiculously trivial, and in all of them proof of\nquickening is required. In New York it has been determined that under\nan indictment for procuring the abortion of a quick child, which by the\nrevised statutes is a felony, the prisoner may be convicted, though it\nturn out that the child was not quick, and the offence therefore a mere\nmisdemeanor;[204] as in the remaining States it is indeed either in name\nor by penalty considered,\u2014a simple, trivial, and venial offence.\n\nBut it must not be forgotten that the true nature of manslaughter\nconsists in the absence of all malice or willful intent, expressed or\nimplied, to do personal injury: out of tenderness to the frailty of\nhuman nature,[205] the law mercifully denying to such homicide, from\nunlawful accident or hasty passion, the same degree of guilt with the\ncool, deliberate act;[206] nor that misdemeanors are specifically\nconfined to the following category: disturbances of the public peace,\ntrivial personal injuries, public nuisances and scandals, lewdness, and\nincentives to special crimes.[207] It is evident that under neither of\nthese heads can the crime of abortion be properly made to fall.\n\nDifficulties of conviction, similar to those we have seen obtaining in\nEngland, and arising from requirement of proof that the means employed\nare unlawful, also present themselves in several of our States, though\nin most they have been wisely avoided. In Vermont and Massachusetts\nthe agent administered, to be indictable, must have been a \u201cpoison,\ndrug, medicine, or noxious thing;\u201d in Illinois, a \u201cpoison, noxious,\nor destructive substance, or liquid;\u201d in Texas, a \u201cdrug or medicine;\u201d\nand in California, a \u201cmedicinal substance.\u201d In Maine, New Hampshire,\nConnecticut, New York, Ohio, Michigan, Minnesota, Wisconsin, Oregon,\nVirginia, Missouri, Arkansas, Alabama, Mississippi, and Louisiana, the\nwording of the statute is sufficiently comprehensive; while in Indiana,\nthere is used the curt but significant expression \u201canything whatever,\u201d\nit not being necessary under this statute, in an indictment for\nadministering medicine or any other substance, to procure abortion, for\nthe agent to be described as noxious, or even its name to be stated.[208]\nThe use of instrumental and other violence is generally well provided\nagainst.\n\nThe truth is, as has indeed been ruled, that it should not be necessary\nto show, in pleading or evidence, that the drug, etc. administered is\nnoxious or the like, the intent to procure abortion being the gist of\nthe attempt;[209] and if a person administer a bit of bread merely, with\nthis intent, it is sufficient to constitute the offence.[210] On the\nother hand, it has been laid down, that if the thing administered could\nof itself by no possibility produce the abortion, and it were proved that\nthis fact were known to the person administering, the crime would not\nhave been committed; on the ground that he must be presumed to have acted\nwithout the malicious intent which the law requires.[211] Here, however,\nthe frequent and important physiological effect through the imagination,\nin producing a definite result where such is supposed to be intended, has\nbeen entirely forgotten.\n\nIn several States, a seemingly unwise discrimination has been made by the\nlaw between the various methods employed. Thus in Michigan, Mississippi,\nArkansas, and Minnesota, a special statute has been enacted for cases\nwhere the crime is effected \u201cby any injury to the mother, which would be\nmurder if it resulted in the death of such mother.\u201d We have seen that the\nsurest and most efficient means of producing abortion are those where no\ninjury whatever is necessarily inflicted upon the mother. Such statutes\nas the above, therefore, actually tend to encourage the crime.\n\nAnother important obstacle to conviction is found in the latitude the\nstatutes allow, generally by omission, to the plea of justification.\n\nIn Illinois and Louisiana no justification whatever is allowed by the\nlaw. In Connecticut the offence is penal where committed \u201cwillfully\nand maliciously;\u201d in Vermont and Massachusetts to the latter of these\nexpressions are added the words, \u201cor without lawful justification:\u201d\nbut in each case, decision upon this point is left in great measure or\nwholly to the court. In Virginia, to be allowable, the abortion must have\nbeen necessary for the life of either the mother or child. In Maine,\nNew Hampshire, Massachusetts,[212] New York, Ohio, Indiana, Michigan,\nMissouri, Alabama, Mississippi, Arkansas, Texas, Minnesota, California,\nOregon, and the Territories of Kansas and Washington, it must have been\nperformed for the sake of the mother\u2019s life alone.\n\nIn none of these States is a standard of such justification established\nby the statute. In Maine, New York, Indiana, Alabama, Oregon, and\nthe Territory of Washington, this is not even attempted. In Texas,\nthe statute acknowledges \u201cmedical advice.\u201d In Missouri, Mississippi,\nCalifornia, and the Territory of Kansas, the sanction of \u201ca physician\u201d\nis allowed as excuse; in Arkansas that of \u201ca regular physician;\u201d in New\nHampshire, Ohio, Michigan, and Minnesota, \u201ctwo physicians\u201d may decide on\nits necessity; but in every one of these States, the word \u201cor\u201d stands\nengrossed upon the statute, and thereby the precaution is practically\ninvalidated; which could not have been the case had the word \u201cand\u201d have\nbeen used instead.\n\nThe truth is, as we have seen, that when such latitude is allowed by the\nlaw, it is inevitably abused. Medical evidence, medical sanction, and\nmedical performance are absolutely essential for excuse in every case; if\nthe opinion of a single physician is allowed to be sufficient, an escape\nis afforded for all instances where this privilege has been dishonored;\nthe word \u201cregular\u201d is much more liable to be misinterpreted than the\nword \u201ccompetent;\u201d[213] in every case before abortion can be justified,\nits necessity should previously have been decided and the possibility of\ncrime thus prevented, by a consultation of at least two competent medical\nmen.\n\nWe have pointed out many circumstances under which premature labor is\ndemanded, by the rules of humanity and of medicine, for the sake of the\nmother\u2019s life, and have seen that in several States it is for this cause\nallowed. But we have also shown that it is often equally necessitated for\nthe sake of the child. In no State save Virginia is its justifiability\nfor this purpose yet recognized by the statute law.\n\nBy the codes of most States, the mother is not punishable, however\ndirectly implicated in the crime. New Hampshire, New York, and Wisconsin,\nare apparently the only exceptions to this statement; the last two of\nthem also not requiring proof of pregnancy for conviction, while by\nimplication New Hampshire does.\n\nBy the statute of Indiana, all other women equally with the mother would\nseem released from prosecution, the word \u201che\u201d being used of the persons\nindictable. The same oversight is noticed in the first section of the\nstatute of Texas.\n\nObjections were formerly made, especially in England, to the severity\nof the penalties then inflicted, (death in case of quickening,\ntransportation or long imprisonment otherwise,) on the erroneous ground\nthat this severity was wholly disproportionate to the guilt of the\noffence, and that, therefore, juries did not convict. The mistaken\ncharacter of this supposition is shown by abundant proof in this country.\nIn many States the penalties of the law are absurdly insignificant,\ntending, equally with the uncertainty of their infliction, to encourage\nthe crime, and yet the same difficulties of conviction prevail. The true\nnature of these difficulties we have endeavored in great measure to\nexplain, and we think it will have appeared that however numerous and\nserious they may be, they are yet not insuperable.\n\nBefore concluding this subject, it is proper that we examine more fully\ninto the doctrine of the common law, to understand more precisely its\nmeaning. In so doing, we shall quote freely from the leading authorities\nof the day, especially those of this country.\n\n * * * * *\n\nThe destruction of an unborn child is not at the present day murder at\nthe common law, though such was formerly the case;[214] to constitute\nwhich crime, the person killed must at the time of death have been\nalive,[215] as we have shown the f\u0153tus to be from the time of conception,\nand \u201ca reasonable creature in being,\u201d[216] a quality in this connection\ndenied to the child by the law, though in all other relations it\ninconsistently allows and affirms it; as it does also, and always, from\nthe moment of birth, even though the funis is undivided and the placenta\nstill attached.[217]\n\nTo cause abortion after quickening, is not, as such, murder or\nmanslaughter at common law, but a high misdemeanor.[218]\n\nWhether to cause, or to attempt, abortion before quickening is a penal\noffence at common law, has been differently decided. In several of the\nStates, as Maine, Massachusetts, and New Jersey, it has been ruled by the\nSupreme Court not to be indictable, even as an assault, if done with the\nconsent of the woman; on the ground that only in case of high crimes is\nthe person assaulted incapable of assenting.[219] The Pennsylvania court,\nhowever, has discarded this doctrine, and has decided that the moment the\nwomb is instinct with embryo life, and gestation has begun, the crime may\nbe perpetrated.[220]\n\nThe distinction alluded to with regard to quickening, is allowed by an\nacknowledged legal authority[221] to be at open variance not only with\nmedical experience, but with all other principles of the common law.[222]\nThe civil rights of an infant in utero are respected equally throughout\ngestation; at every stage of which process, no matter how early, it may\nbe appointed executor,[223] is capable of taking as legatee[224] or under\na marriage settlement,[225] may take specifically as \u201ca child\u201d under a\ngeneral devise,[226] and may obtain an injunction to stay waste.[227]\n\nWhen, in an attempt to procure an abortion, there is an evident intent\nto produce the death of the mother, and her death does actually occur,\nsuch attempt becomes murder at common law;[228] but when nothing more is\nintended than to commit the misdemeanor, it is only manslaughter,[229]\nbeing an instance of homicide from individual malice toward a third\nparty, when the fatal blow falls on the deceased by mistake. It has\nbeen said, however, that this last is not the true doctrine, the\ndestruction of an infant in utero being, even at common law, in some\nrespects felonious, and the act in its nature malicious and deliberate,\nand necessarily attended with danger to the person on whom it is\nperformed.[230]\n\nThe use of violence upon a woman, with an attempt to produce her\nmiscarriage without her consent, rules Chief Justice Shaw, of\nMassachusetts, is an assault highly aggravated by such wicked purpose,\nand would be indictable at common law. So where, upon a similar attempt,\nthe death of the mother ensues, the party making such an attempt, with\nor without her consent, is guilty of murder, on the ground that it is an\nact done without lawful purpose, dangerous to life, and that the consent\nof the woman cannot take away the imputation of malice, any more than\nin case of a duel, where in like manner there is the consent of the\nparties.[231]\n\nThough to kill the f\u0153tus in utero is as such, by the common law, no\nmurder, yet if it be born alive, and die subsequently to birth from the\nwounds it received in the womb, or from the means used to expel it, the\noffence becomes murder in those who cause or employ them.[232] If a\nperson, intending to procure abortion, does an act which causes the child\nto be born earlier than its natural time, and therefore in a state much\nless capable of living, and it afterwards die in consequence of such\npremature exposure, the person who by this misconduct brings the child\ninto the world, and puts it into a situation in which it cannot live, is\nguilty of murder, though no direct injury to the child be proved; and the\nmere existence of a possibility that something might have been done to\nprevent the death, does not lessen the crime.[233]\n\nThe earlier English statutes, from their peculiar phraseology, held\npregnancy essential for the commission of the crime,[234] yet an attempt\nto produce abortion is now indictable at common law,[235] though it fail\nby reason of the woman being, in fact and contrary to the belief of the\nparty, not pregnant.[236] For though as no man would attempt what he\nabsolutely knew he could not in fact perform, nor would be deemed in law\nto have so attempted, and as every one being conclusively presumed to\nunderstand the law, no man can legally intend what is legally impossible,\nthe rule as to facts is different; for men are not conclusively held\nby the law to know facts. And if a man fails in what he undertakes,\nbecause of an impossibility in fact, which he did not know, he is just as\nanswerable as if the failure were from any other cause.[237]\n\nWe have seen the mistaken basis, as regards the criminality of abortion,\non which the common law is founded, and that while it recognizes the\ndistinct existence of the f\u0153tus for civil purposes, it here considers its\nbeing as totally engrossed in that of the mother.\n\nA recent authority thus accounts for and defends the mistake. The\nwealth and prosperity of the country, it is assumed, and the growth and\nefficiency of its population, are alike matters of general concern, and\ntherefore the law takes them under its care. As to population, there\nare in civil jurisprudence such rules, as that the husband may hold the\nlands of his deceased wife during his life, if before her death a living\nchild was born, but not otherwise; the law thus offering, in effect, a\nreward for issue. It does not compel matrimony, because that would be\nan infringement of private rights; but for the same end, it does punish\nabortions.[238]\n\nAnother writer has also implied that the common law, in making f\u0153ticide\npenal, had in view the great mischiefs which would result from even its\nqualified toleration: namely, the removal of the chief restraint upon\nillicit intercourse, and the shocks which would be sustained thereby by\nthe institution of marriage and its incidents; among which the delicacy\nof women.[239]\n\nIn unison with these opinions, Judge Coulter, of Pennsylvania, has ruled,\nthat \u201cit is not the murder of a living child which constitutes the\noffence, but the destruction of gestation.\u201d[240]\n\n * * * * *\n\nIf our previous assumptions of the actual character of criminal abortion\nbe granted, and we believe that they have been proved to a demonstration,\nit must follow from the subsequent remarks that the common law, both\nin theory and in practice, is insufficient to control the crime; that\nin many States of this Union, the statutory laws do not recognize\nits true nature; that they draw unwarrantable distinctions of guilt;\nthat they are not sufficiently comprehensive, directly allowing many\ncriminals to escape, permitting unconsummated attempts, and improperly\ndiscriminating between the measures employed; that they require proofs\noften unnecessary or impossible to afford; that they neglect to establish\na standard of justification, and thereby sanction many clear instances\nof the crime; that by a system of punishments wholly incommensurate with\nthose inflicted for all other offences whatsoever, they thus encourage\ninstead of preventing its increase; and that in many respects they are\nat variance, not merely with equity and abstract justice, but with the\nfundamental principles of law itself.\n\n\u201cIt is to be hoped,\u201d has forcibly been written, \u201cthat the period is not\nfar remote, when laws so cruel in their effects, so inconsistent with the\nprogress of knowledge and civilization, and so revolting to the feelings\nand claims of humanity, will be swept from our statutes.\u201d[241]\n\nIn a similar trust, it now behooves us to consider whether, and in what\nmanner, the difficulties in the way of generally suppressing the crime of\nabortion can be overcome.\n\n\n\n\nVIII. CAN IT BE AT ALL CONTROLLED BY LAW?\n\n\nTo this important question I do not hesitate to give an unqualified\nanswer in the affirmative. The fact that criminal abortion is not\ncontrolled by law anywhere, cannot be entertained as a valid argument to\nthe contrary of this assertion; for it is equally the fact, as we have\nseen, that laws against abortion do not as yet exist, which are in all\nrespects just, sufficient, and not to be evaded.\n\nIt is evident that in aiming to suppress this crime, the law should\nprovide not merely for its punishment, but indirectly as well as\ndirectly, and so far as possible, for its prevention. The punishment of\na crime cannot be just, if the laws have not endeavored to prevent that\ncrime by the best means which times and circumstances would allow,[242]\nand this is to be accomplished by a twofold process: by rendering on the\none hand its detection more probable, and on the other its punishment\nmore certain.\n\nAs indirect though important measures for the former of these ends,\nwe have already mentioned laws for registration,[243] and against\nconcealment of births and secret burials. As a single proof of their\npossible influence in this respect, out of many that might be adduced, we\ninstance the fact that in Paris the number of premature f\u0153tuses deposited\nat the Morgue, during the nine years, from 1846 to 1854, inclusive,\nwas found to exceed by more than two-thirds that of the full decade\njust preceding, from 1836 to 1845.[244] To render this difference more\napparent, we have compiled the following table:\u2014\n\n Age of f\u0153tuses deposited. Ten years: Nine years:\n 1836-1845. 1846-1854.\n From 2 to 3 months 21 58\n \u201d 3 to 4 \u201d 35 73\n \u201d 4 to 5 \u201d 56 102\n \u201d 5 to 6 \u201d 69 82\n --- ---\n Total 181 315\n\nPart of this advance, it is true, is attributable to the increase in the\npopulation of Paris, and in the prevalence of criminal abortion, but in\ngreat measure it is clearly owing to the enforcement of a more rigid law\nagainst secret burials. The above remarks are strikingly corroborated\nby the fact that of trials for the crime, and we must not forget that\nthese bear but a small ratio to the whole number of cases preliminarily\ninvestigated,[245] there were in France, during the latter of these\nperiods, fully four times the number occurring from 1836 to 1845.\n\nThe establishment of foundling hospitals, by the State governments,\nhas been urged as a preventive of the crime, and, on the other hand,\nfears have been expressed lest the same means should increase it. For\nourselves, however, and from some experience in such cases, we believe\nthat these fears are groundless, and that with equal justice might they\nbe entertained of every large charity having for its end the improvement,\nsanitary or otherwise, of the masses of society.\n\nWe have quoted a statute existing in Massachusetts, though practically\nunenforced, against one great agent in the increase of abortion, an abuse\nof its license by the public press. Were such laws to become general, and\nto be faithfully executed, and were it also made penal to sell any drug,\npopularly known as emmenagogue, except as advised by physicians, just\nas the sale of direct poisons is, or should be, controlled by law, the\npresent system of openly advertising by abortionists would undoubtedly be\nbrought to a close.\n\nIn no matter is it of more importance than in cases of suspected criminal\nabortion, that coroners should be intelligent and well educated medical\nmen; and we could wish that this point might have received especial\nattention from Dr. Semmes, in his late admirable report to the American\nMedical Association.[246] In the sudden excitement of an inquest, the\nguilty are more likely than at a later period to be off their guard, and\nevidence may often be elicited at this time, which, at the subsequent\ntrial, it would be impossible to obtain. There can be no question of\nthe importance of this point; the coroner should be skilled in all that\npertains to obstetric jurisprudence; and if similar knowledge were more\ngenerally possessed by other officers of justice, attorney, juror, and\njudge, a far greater number of convictions, under a proper law, would be\nsecured.\n\nAs regards the more direct statutes, we have already considered their\nimportant points.\n\n\u201cIn order to render laws effectually preventive,\u201d has wisely been said,\n\u201cthey should be consistently framed, and based on justice.\u201d[247] In\naccordance with this truly axiomatic doctrine, and with various rulings\nof the courts, already quoted, no proof should be demanded which is not\nnecessitated by the actual character of the crime. We have seen that\nneither in intent nor in fact is this an attempt against the person or\nlife of the mother. If she die in consequence, the offender is already\namenable for it as homicide; in the absence of any special statute, at\ncommon law. The crime, both in intent and in fact, is against the life of\nthe child.\n\nThe attempt being proved, it is unnecessary that it should have\nbeen consummated, not merely the completion of a crime bringing its\npunishment, but also certain overt acts with intent to the perpetration;\nnor is it requisite that any injury, specific or general, should have\nbeen inflicted upon the person of the mother.\n\nThe offence being of equal guilt throughout pregnancy, proof of\nquickening, the incident, not the inception of vitality,\u2014indicating\nneither the commencement of a new stage of existence, nor an advance\nfrom one stage to another,\u2014[248] and, therefore an element without the\nslightest intrinsic value, should not be required.\n\nThe crime of abortion should be considered to include, as it does in the\nabsolute fact of moral guilt, all cases of attempted or intentionally\neffected destruction and miscarriage of the product of impregnation;\nand this, whether it be living or dead, normal or abnormal, which\nlast expression equally comprehends instances of moles, hydatids,\nextra-uterine conception, acephalous, anencephalous, and other monsters.\n\nProof should not, as now, be required of intent to destroy the\nchild.[249] This should be considered shown by the intent to produce\nmiscarriage, in the absence of lawful justification therefor; the act in\nall stages of pregnancy being attended with great danger to the child,\nand, in much more than a moiety of the period, necessarily fatal to it.\n\nThe attempt being considered criminal, it follows that proof of pregnancy\nis not necessary, and that conviction should be had though it were proved\nthat pregnancy did not exist,[250] even that the woman on whom the\nabortion was attempted, however unlikely, was still a virgin.[251]\n\nNo discrimination should be made as to the means criminally employed, and\nan escape thus afforded to the guilty; as we have seen still obtaining in\nGreat Britain and many of our own States.\n\nThe mother, almost always \u201can accessory before the fact,\u201d or the\nprincipal, should not, as now, be allowed almost perfect impunity. There\nis no valid reason for such exemption, there is every reason against\nit. The woman is covered by the laws of most continental nations of\nEurope,\u2014France, Austria, Germany, Bavaria, and Italy,\u2014and by many of them\nher punishment, if married, is greatly increased. Similar severity is\nalso exercised in these countries against the father of the f\u0153tus, if he\ntoo is implicated in the crime.\n\nTo allow that abortion is extenuated in the unmarried, it has been said,\nwill \u201cto the moral and political philosopher appear to have exalted the\nsense of shame into the principle of virtue, and to have mistaken the\ngreat end of penal law, which is not vengeance, but the prevention of\ncrime. Law, which is the guardian and bulwark of the public weal, must\nmaintain a steady and even rigid watch over the general tendencies of\nhuman actions.\u201d[252] But, on the other hand, \u201cthe measure of punishment\nshould be proportionate, as nearly as possible, to the temptation to\noffend, and to the kind and degree of evil produced by the offence.\u201d[253]\n\nWe have seen the increase in moral guilt, and of opportunity for\ncommission and for escape, in the case of nurses, midwives, and other\nclasses of persons, who, from their profession, are brought more directly\ninto contact with pregnant women. By the penal code of Napoleon the\nFirst, remarkable in so many respects for the wisdom of its provisions,\nan increase of punishment was enacted for abortion criminally induced or\nadvised by physicians, surgeons, or other officers of health, including\nmidwives, or by druggists;[254] their guilt being enhanced by their\ngreater opportunities and knowledge.\n\nPunishments for the crime of abortion should not, as is now generally\nthe case, be so framed as to render the statute, in fact, if not in\nname, simply nugatory. Were the murder of adults to be made answerable\nby merely a year or two in prison, far more convictions than at present\nwould undoubtedly be secured; but it is certain that the instances of the\ncrime would be fearfully increased. We have reason to believe that it is\nprecisely thus with the case in hand.\n\nA standard of justification for the instances of necessary abortion\nshould be fixed by law. If perfection in this respect be impossible,\nlet the nearest approach be made to it that can. Since my remarks upon\nthe relative rights of the mother and f\u0153tus to the chance of life in\ndoubtful cases were published in a former paper of the present series, I\nhave received from Dr. Rattenmann, late of T\u00fcbingen, an essay, written\nby himself, in which this question is discussed at length, and the\nrepetition of abortion upon the same individual, in the early months\nof pregnancy, is defended. I have carefully considered the several\narguments advanced by the gentleman, and am compelled to adhere to the\nviews I have already expressed.\n\n * * * * *\n\nIn presenting a report upon the matter, in 1857, by direction of the\nSuffolk District Medical Society of Massachusetts, the writer offered the\ndraft of a law, prepared after much thought and consultation with legal\nas well as with medical men, and embodying the suggestions made above.\nThis was intended for the consideration of the Legislature of the State,\nin the hope that it might be of aid toward a modification of the present\ndefective law.\n\nHaving seen no reason to change the opinions then avowed, but, on the\ncontrary, receiving constant confirmation of their truth, I now present\nthe essential portions of that draft, acknowledging most willingly that\nits wording may, perhaps, with safety, be simplified and condensed; but\ncontending, in all sincerity and earnestness of purpose, that its general\ntenor is what justice and humanity alike, and imperatively, demand at the\nhands of society.\n\n\u201cWhoever, with intent to cause and procure the miscarriage of a woman,\nshall sell, give, or administer to her, prescribe for her, or advise,\nor direct, or cause, or procure her to take any medicine, or drug, or\nsubstance whatever, or shall use, or employ, or advise any instrument,\nor other means whatever, with the like intent, unless the same shall\nhave been necessary to preserve the life of such woman, or of her unborn\nchild, and shall have been so pronounced (in consultation) by two\ncompetent physicians; and any person, with the like intent, knowingly\naiding and assisting such offender or offenders, shall be deemed guilty\nof felony,\u201d etc. etc.; \u201cand if such offence shall have been committed by\na physician, or surgeon, or person claiming to be such, or by a midwife,\nnurse, or druggist, such punishment may be increased at the discretion of\nthe court.\u201d\n\n\u201cEvery woman who shall solicit, purchase, or obtain of any person, or\nin any other way procure, or receive, any medicine, drug, or substance\nwhatever, and shall take the same, or shall submit to any operation or\nother means whatever, or shall commit any operation or violence upon\nherself, with intent thereby to procure a miscarriage, unless the same\nshall have been by two competent physicians (in consultation) pronounced\nnecessary to preserve her own life, or that of her unborn child, shall be\ndeemed guilty,\u201d etc. etc.; \u201cand if said offender be a married woman, the\npunishment may be increased at the discretion of the court.\u201d\n\nIt was also advised that the encouragement of criminal abortion, by\npublication, lecture, or otherwise, or by the advertisement, sale or\ncirculation of such publication, should be made penal, and that the\npresent well worded statute against the personal advertisements of\nabortionists, and their nostrums, should be rigorously enforced.\n\nTo the words now quoted were added, and they are still applicable, the\nfollowing:\u2014\n\n\u201cWe have aimed at a statute, which, while it better defined this\natrocious crime, and covered the usual grounds of escape from conviction,\nestablished also the proper standard of competence in all medical\nquestions involving issues of life and death. We believe that it would\nbe the means of preventing much of the present awful waste of human\nlife. But enforce such a law, and the profession would never allow its\nthen high place in the community to be unworthily degraded; nor, as now,\nwould those be permitted, unchallenged, to remain in fellowship, who were\ngenerally believed guilty, or suspected even of this crime.\u201d[255]\n\nIn the same belief, strengthened by nearly three years careful\nreflection, that criminal abortion can, to a great extent, be controlled\nby law, if but the community so will, we proceed to the last division of\nour subject, and discuss the duty of the medical profession toward the\nultimate suppression of the crime.\n\n\n\n\nIX. THE DUTY OF THE PROFESSION.\n\n\nI have stated that the prevalence of criminal abortion is in great\nmeasure owing to a seeming neglect of f\u0153tal life on the part of medical\npractitioners, and that in other degree it is attributable to ignorance\nby the community of the actual character of the offence, an ignorance of\nphysiological facts and laws; and on both these points abundant proof has\nbeen afforded of the truth of my assertions.\n\nI have also stated that medical men, in all obstetric matters, are the\nphysical guardians of women and their offspring; a proposition that none\ncan deny.\n\nWe have seen that unjustifiable abortion, alike as concerns the infant\nand society, is a crime second to none; that it abounds, and is\nfrightfully on the increase; and that on medical grounds alone, mistaken\nand exploded, a misconception of the time at which man becomes a living\nbeing, the law fails to afford to infants and to society that protection\nwhich they have an absolute right to receive at its hands, and for the\nabsence of which every individual who has, or can exert, any influence in\nthe matter, is rendered so far responsible.\n\nUnder these circumstances, therefore, it becomes the medical profession\nto look to it, lest the _whole_ guilt of this crime rest upon themselves.\n\nAnd, in the first place, it might be asserted with some truth, that such\nis indeed the case. For, on the one hand, it was from physicians, as\nis proved by early medical literature, that the mistaken notions, both\nof the law and of the people, regarding intra-uterine vitality, were\nderived; and on the other, the apathy and silence still existing on this\nsubject among medical men, though thousands and hundreds of thousands of\nhuman lives are thus directly at stake, and are annually sacrificed, can\nonly be explained on one of two suppositions,\u2014either that we do not yet\nreally believe in the existence of f\u0153tal life, though professing to do\nso, or that we are too timid or slothful to affirm and defend it. By the\none alternative a gross lie seems proved; by the other a degrading and\nstrange inconsistency.\n\nBut, I believe, this apparent negligence proceeds only from ignorance\nof the real duty of the profession. It is my aim, while setting forth a\ndeliberate and carefully prepared opinion upon this point, to inspire, if\npossible, in my fellow-practitioners throughout the land, somewhat of the\nholy enthusiasm sure in a good cause to succeed despite every obstacle,\nand an earnest, uncompromising hostility to this result of combined error\nand injustice, the permitted increase of criminal abortion.\n\nEnough has already been said to show that there is need of increased\nvigilance on the part of medical men, lest they themselves become\ninnocent and unintentional abettors of the crime.[256] If, on the other\nhand, the community were made to understand and to feel that marriage,\nwhere the parties shrink from its highest responsibilities, is nothing\nless than legalized prostitution, many would shrink from their present\npublic confession of cowardly, selfish and sinful lust. If they were\ntaught by the speech and daily practice of their medical attendants, that\na value attaches to the unborn child, hardly increased by the accident of\nits birth, they also would be persuaded or compelled to a similar belief\nin its sanctity, and to a commensurate respect.\n\nBut it is asked, is our silence wrong? Is there not danger otherwise of\nincreasing the crime? These are the questions not of wisdom, or prudence,\nor philanthropy, but of an arrant pusillanimity. Vice and crime, if kept\nconcealed, but grow apace. They should be stripped of such protection,\nand their apologists, thereby their accomplices, condemned. Answers,\nhowever, are ready at hand to the questions proposed.\n\n \u201cIt is one of the great desiderata of registration, that more\n particularity should be observed in collecting facts relating\n to the subject of the still-born.\u201d[257]\n\n \u201cHas it been sought,\u201d society demands of the profession, \u201cto\n account for the peculiarities relating to the still-born, and\n to combat the causes which in certain circumstances swell their\n number in so deplorable a manner?\u201d[258]\n\n \u201cAn honest and fearless expression of these causes and\n circumstances, on the part of medical men, would bring to light\n an amount of knowledge that might be useful in checking this\n horrible and increasing waste of life.\u201d[259]\n\n \u201cSuch an exercise of his knowledge, experience, and true moral\n courage, is not only the province, but the conscientious duty\n of the physician.\u201d[260]\n\n \u201cIt should be constantly borne in mind, that there is here a\n high and stern morality, that should stimulate the medical\n profession in the exercise of their utmost effort and\n ingenuity, with the view to master and disclose the secrets of\n these villainous practices; the more villainous, because they\n are very generally conceived in fraud, practiced in deception,\n upon innocent and unsuspecting victims, and result the most\n commonly in the destruction of two lives at once.\u201d[261]\n\n \u201cFor ourselves, we have no fear that the truth in reference to\n the crime of procuring abortion, would do aught but good. It\n would appear that sheer ignorance in many honest people, is the\n spring of the horrible intra-uterine murder which exists among\n us; why not then enlighten this ignorance? It would be far more\n effectually done by some bold and manly appeal, than by the\n scattered influence of honorable practitioners alone. Will not\n the mischief, by-and-by, be all the more deadly, for delaying\n exposure and attempting relief?\n\n \u201cWhatever estimate may attach to our opinion, we believe that\n not only ought these things not so to be, but that the public\n should know it from good authority.\u201d[262]\n\n \u201cThis is a topic which ought to be regarded of the highest\n interest to the profession and the public.\u201d[263]\n\n \u201cIt is by far the most important subject before the profession,\n and in its medical as well as moral bearings, appeals alike to\n our patriotism and humanity.\u201d[264]\n\n \u201cWe think the public have very erroneous ideas of the turpitude\n of this crime, and we deem it our duty, as conservators both\n of the public health and morals, to set it in a correct light\n before them.\u201d[265]\n\n \u201cThe question of criminal abortion is doubtless one of extreme\n difficulty; it is not, however, beyond the reach of the\n enlightened prudence and the firm will of the authorities. It\n is a subject of such vital import to society in general, that\n we feel convinced it cannot but awaken the anxious thought of\n the persons who, from their position, are entrusted with the\n application of the laws and the control of public morals.\u201d[266]\n\n Whoever shall succeed in fixing upon it the attention it\n deserves, \u201chas taken a stand in this matter alike creditable to\n his head and his heart, and we feel that he will receive the\n hearty thanks of every true physician.\u201d[267]\n\n \u201cThe increasing prevalence of infanticide,\u201d which is but\n rare compared with criminal abortion, \u201cits dangerous moral\n influence, the apathy with which so many regard its spread,\n and the very considerable difficulty in obtaining conviction,\n call loudly for reform. The question is one of national\n importance.\u201d[268]\n\n \u201cWith this view of the case before us, I suggest it as our\n imperative duty to direct the attention of legislators to the\n importance of enacting a statute in conformity thereto.\u201d[269]\n\nSuch are the confessions, independently given, of high-minded and\nhonorable medical men. No more can be added, no less would have been\ntrue.\n\nIt must be granted, then, that a bold and manly utterance of the truth,\ncombining as this must, contradiction of the error and denouncement of\nthe crime, should be made by the members of the profession on every\noccasion. By this course it is plain that a healthier moral tone would\nbe made to prevail in the community, the crime would become of rarer\noccurrence, and the laws, such as they are, would be more faithfully\nattempted to be enforced.\n\nBut it has been shown that the laws on the subject of criminal abortion\nare radically imperfect and defective, and that this is attributable,\nwholly, to a medical cause. We assert, therefore, that not only is it\nthe duty of the profession as individual components of society, but more\nespecially as medical men, to see them amended, and to leave no means\nuntried, no effort unmade, for the attainment of this end.\n\n\u201cPhysicians alone,\u201d says Hodge in his Introductory Address, \u201ccan rectify\npublic opinion, they alone can present the subject in such a manner\nthat legislators can exercise their powers aright in the preparation\nof suitable laws; that moralists and theologians can be furnished with\nfacts to enforce the truth upon the moral sense of the community, so\nthat not only may the crime of infanticide be abolished, but criminal\nabortion properly reprehended, and that women in every rank and condition\nof life may be made sensible of the value of the f\u0153tus, and of the high\nresponsibility which rests upon its parents.\u201d[270]\n\nIt has been stated, indeed publicly avowed by a medical body,[271] that\nwhen a physician \u201cshall become cognizant of any attempt unlawfully to\nprocure abortion, either by persons in the profession or out of it, it\nshall be his duty immediately to lodge information with some proper legal\nofficer, to the end that such information may lead to the exposure and\nconviction of the offender.\u201d\n\nThis doctrine is doubtless true to a great extent, but it cannot be\napplied to the confidential disclosures of patients themselves, which no\nman has a right to reveal, unless constrained by the direct command of\nthe court, at which, it has been ruled, even professional secrets must be\ndivulged.[272]\n\n * * * * *\n\nIt follows, from the evidence we have now adduced, that if it be the\nduty of the profession to urge upon individuals the truth regarding\nthis crime, it is equally their duty to urge it upon the law, by whose\ndoctrines the people are bound; and upon that people, the community, by\nwhose action the laws are made.\n\nAnd this should be done by us, if we would succeed in suppressing the\ncrime, not by separate action alone, but conjointly, as the profession,\ngrandly representing its highest claim,\u2014the saving of human life.\n\nEvery step toward this end should be hailed with enthusiasm. The late\naction of the State Society of Massachusetts, directly resulting from\nprofessional agitation of the subject, deserves praise and imitation; the\nbody referred to having passed a series of resolutions to the following\neffect: \u201cThat the Fellows of the Massachusetts Medical Society regard\nwith disapprobation and abhorrence all attempts to procure or promote\nabortion, except in cases where it may be necessary for the preservation\nof the mother\u2019s life; and that no person convicted of such attempt,\ncan, consistently with its by-laws, any longer remain a fellow of the\nsociety.\u201d[273]\n\nBut the mere passage of resolutions in disapproval of this horrible and\nso rapidly increasing crime is not sufficient to effect its abatement.\nSomething more is wanted than the testimony of record books, the\npointless vote of a board of councillors. There must come a hearty,\nearnest, and unanimous voice from the mass of the profession; an\nassertion that criminal abortion, or at least its permitted commission,\nshall no longer exist.\n\nToo much zeal cannot be shown by physicians in relieving themselves\nfrom the weight of responsibility they may have incurred by innocently\ncausing the increased destruction of human life. Let it not be supposed\nby the public that there is among us, either in theory or practice, any\ndisregard of the unborn child. If such impression have already obtained,\nfrom our own negligence, the falsehoods of irregular practitioners, or\notherwise, it should at once be removed. F\u0153tal life ever is, and ever has\nbeen, held sacred by all respectable physicians, and whenever criminal\nabortion has been known to have been advised, perpetrated or abetted by\none claiming our honorable name, he has invariably and at once lost all\nprofessional standing.\n\nWe have seen that it is no trifling matter, this awful waste of human\nlife. It is a subject that demands the best efforts of the whole\nprofession as a body and as men. The crime, no longer practiced in\nsecret, must be met boldly; and met with unanimity, it will be met\nsuccessfully.\n\nBut whether these efforts are to be at once decisive or not, whether\nthey are to be received with the gratitude of the community or its\ndisfavor, is no concern of ours. Our duty is very plain; it is to stand,\nirrespective of personal consequences, in the breach fast making in\nthe public morality, decency, and conscience, and, to the best of our\nstrength, to defend them.\n\nIt might be, it very likely would be, for our immediate pecuniary\ninterest, as a profession, to preserve silence; for we have shown that\nabortions, of all causes, tend to break down and ruin the health of the\ncommunity at large. But to harbor this thought, even for a moment, were\ndishonorable. \u201cI will never set politics against ethics,\u201d said Bacon,\n\u201cfor true ethics are but as a handmaid to divinity and religion.\u201d\n\nWe must take this decided stand, there is no choice; else we are\nrecreant to the high trust we have assumed, and to ourselves. Whether\nthe suppression of abortion be effected or no, one thing is certain, our\nown hands will have been cleansed of this sea of blood. We shall have\ndeclared our abhorrence and our innocence of the crime.\n\nLonger silence and waiting by the profession would be criminal. If these\nwretched women, these married, lawful mothers, aye, and these Christian\nhusbands, are thus murdering their children by thousands, through\nignorance, they must be taught the truth; but if, as there is reason to\nbelieve is too often the case, they have been influenced to do so by\nfashion, extravagance of living, or lust, no language of condemnation can\nbe too strong.\n\nLet us, then, meet the issue earnestly and boldly. Silence and patient\nexpectance have been fairly tried; the disease is not self-limited; the\nevil, instead of working its own cure, has assumed a gigantic, an awful\ngrowth.\n\nAbstract discussions of this matter, by ourselves, and within the closed\ndoors of our several societies, no longer avail. We are all agreed upon\nthe guilt of abortion; we ever have been. Our prayers for its suppression\nhave not been answered, for they have hitherto been offered with inactive\nhand.\n\nWe should, as a profession, openly and with one accord appeal to the\ncommunity in words of earnest warning; setting forth the deplorable\nconsequences of criminal abortion, the actual and independent existence,\nfrom the moment of conception, of f\u0153tal life. And that the effort should\nnot be one of words merely, we should, as a profession, recommend to the\nlegislative bodies of the land, the revision and subsequent enforcement\nof all laws, statutory or otherwise, pertaining to this crime,\u2014that the\npresent slaughter of the innocents may to some extent, at least, be\nmade to cease. For it is \u201ca thing deserving all hate and detestation,\nthat a man in his very originall, whiles he is framed, whiles he is\nenlived, should be put to death under the very hands and in the shop of\nnature.\u201d[274]\n\nIn conclusion; a committee, consisting of Drs. Blatchford, of New York,\nHodge, of Pennsylvania, Pope, of Missouri, Barton, of South Carolina,\nLopez, of Alabama, Semmes, of the District of Columbia, Brisbane,\nof Wisconsin, and the writer, was appointed by the National Medical\nAssociation, at its meeting at Nashville, in 1857, to report upon\ncriminal abortion, with a view to its general suppression. The report of\nthis committee, brief, but in strict accordance with the series of papers\nnow ended, has lately been made to the Association, at its session held\nat Louisville, in May of the present year. The report was accepted, and\nthe resolutions appended to it[275] were _unanimously_ adopted.\n\nIn behalf of the committee, of whom he had the honor to be chairman,\nthe writer cannot close this portion of his labors without thanking the\nphysicians of the land, represented as they are by the Association, for\ntheir hearty and noble response to the appeal that has been made them.\nHe would express, were it possible, the gratitude not of individuals,\nbut society; for by this act the profession has again been true to \u201cits\nmighty and responsible office of shutting the great gates of human death.\u201d\n\n\n\n\nFOOTNOTES\n\n\n[1] So far as the writer is aware, there exists, in this or any other\nlanguage, no paper upon the subject at all commensurate with its\nimportance. The chapters devoted to it in medical text-books, though\nsome of them admirable so far as they go, especially that of Beck, are\ndefective and often erroneous; while but little information of any value\ncan be found elsewhere. In the French periodicals have appeared articles\non special points hereafter referred to; in Great Britain able arguments\nregarding the commencement of f\u0153tal life have been made by Radford,\n(1848;) and in this country, with remarks on the frequency of the crime,\nby Hodge, of Philadelphia, (1839 and 1854,) and by the present Professor\nof Obstetrics in Harvard University, (1855.) To the latter, his father,\nand to the journalists (Drs. Morland and Minot, of Boston,) by whom\nthe effort then made was so warmly and eloquently seconded, the writer\nacknowledges his indebtedness for the thought of the present undertaking.\n\n[2] As quoted by Hodge. Introductory Lecture, p. 15.\n\n[3] Hippocrates states that this is a fact, and that he had found\nthe difference of a whole month, which he attributes to the \u201cgreater\nstrength\u201d of the male.\u2014(_On the Nature of the Child_, Sect. 11.) I am\nunaware that this point has been investigated by any modern writer.\n\n[4] \u201cThese sounds may sometimes be distinguished several weeks before the\nmother becomes conscious of the motions of the child.\u201d\u2014N\u00c6GELE; _Treatise\non Obstetric Auscultation_, p. 50.\n\n[5] Memoire sur la cause des Pr\u00e9sentations de la T\u00eate, &c.\u2014_M\u00e9m. de\nl\u2019Acad. Roy. de M\u00e9d._ tome ii.\n\n[6] A. PAR\u00c9; English Trans., p. 899. HUGH CHAMBERLEN\u2019S Trans. of\nMauriceau on _Diseases of Women with Child_, p. 147, Note. ENNEMOSER;\nHistorisch-physiologische Untersuchungen \u00fcber den Ursprung und das Wesen\nder menschlichen Seele; Bonn, 1824. CABANIS; Rapports du Physique et du\nmoral de l\u2019Homme, tome ii. p. 431.\n\n[7] Ed. _Med. and Surg. Journ._, Jan. 1855, p. 50.\n\n[8] SIMPSON, _Obstetric Works_, vol. ii. p. 88.\n\n[9] Many of the statistics now presented we have also embodied in a paper\nupon the decrease of the rate of increase of population now obtaining\nin Europe and America, read before the American Academy of Arts and\nSciences, December 14th, 1858, as a contribution to the Science of\nPolitical Economy.\n\n[10] MOREAU DE JONN\u00c9S, El\u00e9ments de Statistique, 1856, p. 202.\n\n[11] Journal des Economistes, March and May, 1847.\n\n[12] Edinburgh Review, Jan. 1857, p. 342. Med. Times and Gazette, May,\n1857, p. 462.\n\n[13] Lehrbuch der Politischen Oekonomie.\n\n[14] Sur l\u2019Homme et la Developpement de ses Facult\u00e9s, tome i. ch. 7.\n\n[15] Journal des Economistes, May, 1847.\n\n[16] MILL, Principles of Political Economy, i. p. 343.\n\n[17] HUSSON, Les Consummations de Paris, 1856.\n\n[18] Compiled from DE JONN\u00c9S.\n\n[19] 10,925 births; 646 still-births.\n\n[20] Births, 52,538; still-births, 2624.\n\n[21] Compiled from QUETELET, Theory of Probabilities, p. 152; 406,073\nliving births; 16,767 still-births.\n\n[22] Births, 7,593,017; still-births, 257,068. 1839-41, 1 to 26; ELLIOTT,\nHunt\u2019s Merchants\u2019 Magazine, July, 1856.\n\n[23] 2080 still-births.\n\n[24] 2349 still-births.\n\n[25] DE JONN\u00c9S, loc. cit., p. 239.\n\n[26] QUETELET, loc. cit., p. 152.\n\n[27] Register of the Morgue.\n\n[28] DE JONN\u00c9S, loc. cit., p. 193.\n\n[29] Report of City Inspector of New York for 1849.\n\n[30] City Inspector\u2019s Report for 1856.\n\n[31] Ibid.\n\n[32] Compiled from QUETELET, loc. cit., p. 152.\n\n[33] Compiled from City Inspector\u2019s Report for 1855.\n\n[34] Ibid. for 1856.\n\n[35] CLAY, Obstetric Cyclopedia, p. 21.\n\n[36] Separate records of the premature births in New York were not made\nbefore this period. They were not rendered in 1842; I have therefore\nomitted in the calculation the still-births of the same year. For a\nseries of the official reports, I am indebted to the present City\nInspector, Mr. Geo. W. Morton.\n\n[37] Report of 1849.\n\n[38] Loc. cit., p. 195.\n\n[39] Loc. cit., i. p. 344.\n\n[40] Ibid., p. 343.\n\n[41] Med. Times and Gazette, June 1856, p. 611.\n\n[42] Les Consummations de Paris.\n\n[43] Loc. cit.\n\n[44] DE JONN\u00c9S, loc. cit., p. 194.\n\n[45] Ibid., p. 195.\n\n[46] Journal des Economistes, 1847.\n\n[47] MILL, loc. cit., i. p. 336. The italics are my own. I shall\nhereafter refer back to this passage.\n\n[48] Ibid., i. p. 417.\n\n[49] Essay on Population.\n\n[50] MILL, loc. cit., i. p. 417.\n\n[51] Travels of Anacharsis, v. p. 270.\n\n[52] Ibid., iv. p. 342.\n\n[53] Satires, vi., v. 592.\n\n[54] Amor., lib. 2.; Hero\u00efdes, epist. 2.\n\n[55] REEVE\u2019s Apologies.\n\n[56] BLAQUIERE, Letters from the Med., pp. 90, 184; SLADE, Records of\nTravels, ii. p. 162.\n\n[57] BARROW, Travels in China, p. 113; DE PAUW, Philosoph. Dissert;\nMEDHURST, China, &c., p. 45; SMITH, Exploratory Visit, &c., i. p. 53.\n\n[58] GOLOWNIN, Memoirs of a Captivity, iii. p. 222.\n\n[59] MOOR, Hindoo Infanticide, p. 63; BUCHANAN, Christian Researches in\nAsia, p. 49; WARD, View of the History, &c., of the Hindoos, p. 393.\n\n[60] For a long list of authorities on these points, see BECK, ii. p.\n389, et seq.\n\n[61] Belgium.\n\n[62] Local exceptions to this general rule will of course be found\nto exist, as is always the case with laws based on mere statistics,\nespecially, as here, where reports to the registry are liable, for\nevident reasons, to be withheld. Thus it appears from Dr. Jewell\u2019s\ncollections (this Journal, March, 1857, p. 277,) that the proportion\nof still-births in Philadelphia was, in 1856, only 1 in 913 to the\ntotal population, and 1 in 20.1 to the general mortality, against which\nevidence must be placed that which we subsequently furnish from Prof.\nHodge.\n\n[63] MSS. Letter from City Registrar, March 26, 1857.\n\n[64] CHICKERING, Comparative View of the Population of Boston, 1850. City\nDocument, No. 60, p. 44.\n\n[65] Twelfth Registration Report to the Legislature of Massachusetts,\n1853, p. 116. The truth of this statement has been corroborated by Dr.\nCurtis, in his Report on the Census of Boston in 1855. City Document,\n1856, p. 22. Also, Fifteenth State Registration Report, 1856, p. 179.\n\n[66] \u201cHad the rate of the annual increase of the numbers living under\nthe age of five (3.13 per cent.) resulted entirely from the increase of\nbirths in a permanent population, the number of births of 1855 (in the\ndistricts where the ratio of the registered deaths to the population was\ngreater than one to sixty-three, 166 of the 331 towns) would have been\n24,457, instead of 23,481, the number registered. On the other hand, had\nthe increase resulted wholly from migration, (the annual number of births\nin the permanent population being constant,) the number of births would\nhave been only 22,956. The number of births registered is somewhat nearer\nthe latter than the former of these two values.\n\n\u201cAssuming the correctness of the births, deaths, and population, in the\nselected districts, it appears that 35 per cent. of the increase of the\npopulation under the age of five was due to births in the permanent\nportion of the population, and 65 per cent. due to the movement of the\nmigratory portion; also, that 38 per cent. of the increase of population\nat all ages was due to excess of births over deaths, leaving 62 per cent.\nto be accounted for by excess of immigration over emigration.\u201d\u2014ELLIOTT,\nThe Laws of Human Mortality in Massachusetts; Proceedings of Am. Assoc.\nfor Adv. of Science, Montreal, 1857, p. 57.\n\n[67] CHICKERING, loc. cit., p. 49.\n\n[68] The tables now presented, we have compiled from the fifteen\npublished Registration Reports of the State of Massachusetts. Advance\nsheets of the Sixteenth Report have kindly been furnished me while this\narticle is passing through the press, by the compiler, Dr. Josiah Curtis,\nof Boston. The premature births for 1856 and 1857 are not given in the\nreports for those years, so that I cannot extend my calculations beyond\n1855. Deductions from the still-births at the full time, which are alone\ngiven in the years referred to, are of course useless for the present\ninquiry.\n\n[69] Births, 27,664; population, 994,665.\n\n[70] Births, 32,845; population, 1,132,369.\n\n[71] Total births at full time, 32,845; living births at full time,\n32,120. F\u0153tal deaths, 2064; still, at full time, 725; premature, 1339.\n\n[72] Total deaths, including 1462 f\u0153tal, 19,461.\n\n[73] Total deaths, including 2064 f\u0153tal, 21,523.\n\n[74] Births at full time, 154,245; premature, 5899.\n\n[75] Fourteenth Registration Report, 1855.\n\n[76] Fourteenth Registration Report, 1855.\n\n[77] In the above remarks we must not be misunderstood. We believe\nMassachusetts no worse with regard to abortion than many other portions\nof the country, but that its registration is conducted with greater care.\nFrom the statistics given it may easily be surmised what the amount of\nthis crime _must be elsewhere_. It is necessarily of infinitely more\ncommon occurrence than infanticide, the murder of children after birth,\nfor proof of the frequency of which, at the present moment, in Great\nBritain, we refer to Dr. Burke Ryan\u2019s Fothergillian Essay on the subject\nin the London Sanitary Review for last July, and to the London Lancet of\ncorresponding date.\n\n[78] As, for instance, in the regularly progressive series of deaths and\nbirths, as compared with the population; constant, also as compared with\neach other:\u2014Population of Massachusetts: by census of 1850, 994,665;\n1855, 1,132,369. Deaths: 1851, 18,934; 1852, 18,482; 1853, 20,301; 1854,\n21,414; 1855, 20,798. Births: 1851, 28,681; 1852, 29,802; 1853, 30,920;\n1854, 31,997; 1855, 32,845.\n\n[79] Reports of Attorney-General of Massachusetts, from 1849 to 1858.\nState Documents.\n\n[80] Comptes Rendus Annuels de la Justice Criminelle.\n\n[81] Introductory Lecture, 1854, p. 17.\n\n[82] Report to Suffolk Dist. Med. Society, May, 1857; New York Med.\nGazette, July, 1857, p. 390; N. H. Journal of Medicine, July, 1857, p.\n211.\n\n[83] Loc. cit., p. 313.\n\n[84] The Law of Population, 1830.\n\n[85] HUME, Essays, vol. i. No. xi., p. 431.\n\n[86] \u00c9tudes sur l\u2019\u00c9conomie Politique; Nouveaux Principes d\u2019\u00c9conomie\nPolitique.\n\n[87] Loc. cit., ii. p. 253.\n\n[88] Ibid., i. p. 451. An opinion to the same effect, italicized, has\nalready been quoted.\n\n[89] Ibid., ii. pp. 316, 317.\n\n[90] Ibid., i. p. 452, foot-note.\n\n[91] Ibid., i. p. 447.\n\n[92] Nouveaux Principes, &c., liv. vii. ch. 5.\n\n[93] Medical Ethics, p. 79.\n\n[94] Since our last article, the report of the Committee appointed in\n1858 to investigate the Health Department of the City of New York has\nappeared, and we find that our statements regarding the frequency of the\ncrime in the metropolis are fully corroborated. Not merely are additional\nofficial statistics on this point given (pp. 182, 183), but valuable\ntestimony from Drs. Griscom (pp. 25, 30), McNulty (p. 55), Francis\n(p. 64), and Bulkley (p. 133). Dr. Reese\u2019s paper on Infant Mortality,\nrepublished by the Committee (pp. 90-100), from the Transactions of the\nAmerican Medical Association for 1857, also contains incidental reference\nto the frequency of abortion, and for its direct and earnest dealing with\nthe subject deserves unqualified commendation.\n\nIn this connection we would call attention to the evidence of the extent\nof the crime in Boston, afforded since our own remarks upon that point\nwere in type, by Dr. Walter Channing. (Boston Med. and Surg. Journal,\nMarch 17, 1859.)\n\n[95] Annales d\u2019Hygi\u00e8ne Publique, 1856, p. 122.\n\n[96] Les Consummations, etc.\n\n[97] Comptes Rendus Annuels, etc.\n\n[98] MAYER, Des Rapports Conjugaux, consid\u00e9r\u00e9s sous le triple point de\nvue de la population, de la sant\u00e9 et de la morale publique. Paris, 1857.\n\n[99] CANGIAMILA, Embryologia Sacra, p. 15.\n\n[100] In verification of this statement I am enabled to quote from the\nlast authorized edition of the Canon Laws of the Church of Rome. \u201cOmnes,\nqui abort\u00fbs seu f\u0153t\u00fbs immaturi, tam animati quam inanimati, formati vel\ninformis, ejectionem procuraverint, p\u0153nas propositas et inflictas tam\ndivino quam humano jure, ac tam per canonicas sanctiones et apostolicas\nconstitutiones quam civilia jura adversus veros homicidas incurrere,\nh\u00e2c nostr\u00e2 perpetuo valitur\u00e2 constitutione statuimus et ordinamus.\u201d\nREIFFENSTUELL, Jus Canonicum Universum, tome iii. Paris, 1854.\n\n[101] Decreta Synodi plenari\u00e6 Episcoporum Hiberni\u00e6, apud Thurles habit\u00e6\nanno 1850. Art. de Baptismo, p. 20.\n\n[102] Dublin Review, April, 1858, p. 100.\n\n[103] DEVENTER, 1734, p. 366; STERNE, Tristram Shandy, p. 54; Med. Times\nand Gazette, Aug., 1858, p. 196. Though the fact of this decision has\nbeen doubted, it is nevertheless strictly true. Through the kindness\nof Bishop Fitzpatrick I have been favored with a copy of BARRY\u2019s\nMedico-Christian Embryology, as presenting upon this point the authorized\nand generally received doctrine of the Catholic Church. I quote the\nfollowing from the chapter \u201cOn Baptism in Impracticable and Difficult\nLabors:\u201d\n\n\u201cIn case of impacted head and at all times that one is obliged to apply\nthe forceps, whether at one of the straits or in the pelvic excavation,\nit becomes necessary to baptize the child on the part which presents at\nthe uterine orifice after the rupture of the bag containing the waters.\n\n\u201cIn order to baptize the child, a syringe charged with natural water may\nbe used. If this be not at hand, a person may use a sponge, or a linen or\ncotton rag, wetted with water, which is to be carried to the child by the\nfingers, a pair of forceps, or any other suitable contrivance, and then\nsqueezed or pressed on the surface of the part presenting.\u201d (Loc. cit.,\np. 45.)\n\n\u201cAny person, whether man, woman or child, may baptize an infant when in\ndanger of death.\u201d (Ibid., p. 76.)\n\nIf the facts now stated should be generally known and acted upon by the\nprofession, hundreds of lives, infant and maternal, would annually be\nsaved.\n\n[104] MS. Letter, dated Nov. 14th, 1858.\n\n[105] It is not of course intended to imply that Protestantism, as such,\nin any way encourages, or indeed permits, the practice of inducing\nabortion; its tenets are uncompromisingly hostile to all crime. So\ngreat, however, is the popular ignorance regarding this offence, that\nan abstract morality is here comparatively powerless; and there can\nbe no doubt that the Romish ordinance, flanked on the one hand by the\nconfessional, and by denouncement and excommunication on the other, has\nsaved to the world thousands of infant lives.\n\n[106] PASSOT, Des dangers de l\u2019avortement provoqu\u00e9 dans un but criminel;\nGazette M\u00e9d. de Lyon, 1853.\n\n[107] Ann. d\u2019Hygi\u00e8ne, 1856, p. 147.\n\n[108] DUBOIS and DEVERGIE, ibid., tome xix. p. 425; tome xxxix. p. 157.\n\n[109] Ibid.\n\n[110] Review of MONTGOMERY\u2019s Signs of Pregnancy; The North American\nMedico-Chirurgical Review, March, 1857, p. 249.\n\n[111] Principles of Midwifery, p. 547.\n\n[112] BAUDELOCQUE, tome i. p. 115; FODERE, ii. p. 17; MARC, Dict. de\nM\u00e9d., i. p. 228; MONTGOMERY, Signs of Pregnancy, p. 578; DEVERGIE, M\u00e9d.\nL\u00e9gale, i. p. 244.\n\n[113] RYAN, p. 267; TARDIEU, loc. cit.\n\n[114] CLARKE, Trans. of Soc. for Impr. of Med.-Chir. Knowledge, iii. p.\n290; BAUDELOCQUE, i. p. 123, note; LEROUX, Trait\u00e9 des Pertes, Obs. xiii.\np. 25; MONTGOMERY, loc. cit., p. 618.\n\n[115] GARDNER, of New York, note to TYLER SMITH\u2019s Lectures on Obstetrics,\np. 203.\n\n[116] Am. Journ. of the Med. Sciences, April, 1859. In the instance\nreferred to, the cervix had been deeply and extensively lacerated,\nforceps having been used in four previous labors; while depressions\nexisting between the old cicatrices and half filled and ragged with\nclots, were decidedly suggestive of punctured wounds. The true nature of\nthe case was rendered evident by its past history, and corroborated by\nthe fact that the patient was a Catholic; the latter being a point to\nwhich I am inclined to attach much importance, for reasons already given.\n\n[117] Practical Treatise, p. 275.\n\n[118] RYAN, Med. Jurisprudence, p. 282.\n\n[119] ROSCOE, Law of Evidence, 242.\n\n[120] ARCHBOLD, Crim. Pleading, 491; 1 HALE, 455.\n\n[121] DAVIS, Crim. Justice, 482.\n\n[122] DAVIS, Crim. Justice, 483.\n\n[123] Reg. _v._ Haynes; Reg. _v._ Goodall; Rex _v._ Phillips.\n\n[124] Med. Times and Gazette, Jan., 1856, p. 611.\n\n[125] \u201cThis operation must not on any account be undertaken without the\nsanction, and in the presence, of another practitioner.\u201d\u2014CLAY, Hand-book\nof Obstetric Surgery, p. 13.\n\n[126] 1 GABBETT, Cr. Law, 523.\n\n[127] Loc. cit.\n\n[128] CHEVALIER and DEVERGIE, Ann. d\u2019Hyg., 1856, p. 157.\n\n[129] Med. Jurisp.; Griffith\u2019s ed., p. 472, Hartshorne\u2019s ed., p. 378.\n\n[130] TARDIEU, loc. cit., 1856, p. 124.\n\n[131] A Woman\u2019s Thoughts about Women. By the author of \u201cJohn Halifax,\nGentleman.\u201d 1858, p. 14.\n\n[132] Loc. cit.\n\n[133] Ibid.\n\n[134] Mass. Laws of 1847, chap. 83.\n\n[135] \u201cBy imprisonment in the State prison, house of correction, or\ncommon jail, not more than three years, or by fine not exceeding one\nthousand dollars.\u201d\n\n[136] Opera omnia. Ed. 1655, i., p. 643.\n\n[137] J\u00d6RG of Leipsic, who speaks of the human f\u0153tus as \u201conly a higher\nspecies of intestinal worm, not endowed with a human soul, nor entitled\nto human attributes.\u201d\n\n[138] SIMPSON, Obst. Works, i. pp. 352, 404.\n\n[139] Boston Med. and Surg. Journal, January, 1857, p. 462.\n\n[140] The immorality of craniotomy, where delivery can be effected by\nany other method, is gradually becoming acknowledged in Great Britain. A\nlate discussion on this subject, at the Obstetric Society of London, is\nreported in the Medical Times and Gazette for February, 1859.\n\n[141] CLAY, Obstetric Surgery, p. 68.\n\n[142] SINCLAIR and JOHNSTON, Practical Midwifery, 1858. 130 cases of\ncraniotomy in 13,748 labors.\n\n[143] CLAY, Loc. cit., p. 69.\n\n[144] The subject of justifiable craniotomy has of late been ably though\ncontroversially discussed by an anonymous writer (Dublin Review, April\nand October, 1858,) and Dr. Churchill (Dublin Quarterly Journal of\nMedical Science, August and November, of the same year). Care must be\ntaken, lest in assenting to the decided and imperative necessity of the\noperation in certain cases, and by a natural professional sympathy, too\ngreat frequency is not allowed to this most horrible and appalling of all\nthe operations to which as physicians we can ever be called.\n\n[145] Review of CLAY\u2019s Obstetric Surgery; Boston Med. and Surg. Journal,\nNovember, 1856, p. 283.\n\n[146] Theory and Practice of Midwifery, p. 348.\n\n[147] De jure vit\u00e6 et necis quod competit medico in partu. Heidelberg,\n1826.\n\n[148] \u201cWhere one only can by any possibility be preserved, the female\nherself may use her right of self-preservation and choose whether her own\nlife or that of her child shall fall a sacrifice.\u201d GUY, Principles of\nForensic Medicine, p. 145.\n\n[149] Guy\u2019s Hospital Reports, 1856, p. 12.\n\n[150] Dublin Quarterly Journ. of Med. Science, August, 1858, p. 10.\n\n[151] RADFORD, British Record of Obst. Medicine, 1848, p. 84.\n\n[152] The rules of the Catholic Church upon this point have been already\nreferred to. Suffice it to say, further, that while they enjoin the\nC\u00e6sarean and vaginal sections, in preference to craniotomy and in cases\nof extra-uterine f\u0153tation, yet turning, the use of forceps, and the\ninduction of premature labor, where such are indicated, are distinctly\nallowed by them. BARRY, Medico-Christian Embryology, pp. 41, 44, 45, 60.\n\n[153] Guy\u2019s Hosp. Reports, 1856, p. 4.\n\n[154] For a full discussion of the respective merits of the several\nmethods instanced above, see SIMPSON, loc. cit., i. p. 738.\n\nI have lately contrived an instrument very similar to one not long\nsince proposed by Spencer Wells for dilatation of the female urethra,\nwhich by a simple combination of the three principles involved, will\nprobably prove of material service in the induction of premature labor.\nIt may be called the uterine dilator, as it possesses many advantages\nover expansible tents for all cases of uterine disease where dilatation\nis necessary, either for diagnosis or treatment. A description of the\ninstrument, and of its first application to obstetric practice, is\npublished in the current number of the American Journal of the Medical\nSciences.\n\n[155] Bulletin de l\u2019Acad\u00e9mie, xvii. p. 364.\n\n[156] British Record, etc., p. 82.\n\n[157] I have elsewhere discussed this subject; American Journal of the\nMedical Sciences, January, 1859.\n\n[158] Enchiridion Medicum, p. 510.\n\n[159] Question d\u2019Embryologie M\u00e9dicale, etc.; Revue de l\u2019Am\u00e9rique et de\nl\u2019Ouest, 1846.\n\n[160] JOAN. RIOLAN., Anthropographia, lib. vi. cap. vii. p. 589.\n\n[161] CHURCHILL, Dublin Quarterly Journ. of Med. Science, August, 1858,\np. 22.\n\n[162] A case in point has been reported by the writer; Amer. Journ. of\nthe Med. Sciences, April, 1859.\n\n[163] Reports to the Suffolk Dist. Med. Society of Massachusetts, 1857,\nand to the American Medical Association, 1859.\n\n[164] \u201cIt would in my opinion,\u201d says Ramsbotham, referring to the nature\nof f\u0153tal existence, \u201cbe much better not to endeavor to explain the\nsecrets of nature, so deeply hidden.\u201d\u2014(Obst. Medicine and Surgery, p.\n309.) This belief seems still, in practice, very widely entertained.\n\n[165] CLAY, Obstetric Retrospect, March, 1848, p. 44.\n\n[166] Medical Communications of the Mass. Med. Soc., 1858, p. 77.\n\nThe writer having been a member of this committee, here enters, as he has\nalready done by letter to the councillors of the Society, his earnest\nprotest against the plainly erroneous opinion avowed in that report,\nwhich was presented and accepted during his absence from the State.\n\nBy the laws of Massachusetts, the offence is considered as mainly against\nthe person of the mother. In case of her death, already sufficiently\nprovided for at common law, convictions can be effected, with great\ndifficulty, under the statute,\u2014as has twice occurred the present year, in\nthe cases of Jackson and Brown; but hardly otherwise.\n\n[167] In this connection honorable mention is due Drs. TATUM and JOYNES,\nof Virginia, for their papers on \u201cThe Attributes of the Impregnated\nGerm,\u201d and \u201cSome of the Legal Relations of the F\u0153tus in Utero\u201d (Virginia\nMedical Journal, 1856.) Through the agency of the latter of these\ngentlemen, an important modification has been made in the law of the\nState; as has also been effected in Wisconsin, by Dr. BRISBANE.\n\n[168] For valuable information in this connection, I am indebted to many\nfriends, more particularly to Drs. THAYER, of New Hampshire, PHELPS, of\nVermont, CHAS. HOOKER, of Connecticut, BLATCHFORD, of New York, WOOD, of\nPennsylvania, THOMPSON, of Delaware, WROTH, of Maryland, BRAINARD, of\nIllinois, CAMERON, of Indiana, LELAND, of Michigan, LE BOUTILLIER, of\nMinnesota, BRISBANE, of Wisconsin, POPE, of Missouri, HOYT, of Tennessee,\nHAXALL and JOYNES, of Virginia, SEMMES, of District of Columbia, DICKSON,\nof North Carolina, LOPEZ, of Alabama, BARTON, of Louisiana, (now of\nSouth Carolina,) and to my relatives, WOODBURY and BELLAMY STORER,\nEsqrs., of Maine and Ohio, and JAMES M. KEITH, Esq., of Boston, late\nDistrict-Attorney for Norfolk and Plymouth Counties. In every instance,\nhowever, verification of the statutes has been made from copies in the\nState Library of Massachusetts.\n\n[169] DAVIS, Criminal Justice, p. 482.\n\n[170] 1 Commentaries, 129.\n\n[171] Ibid.\n\n[172] 43 George III., c. 58.\n\n[173] 9 Geo. IV., c. 31; 10 Geo. IV., c. 34.\n\n[174] 7 William IV.; 1 Vict., c. 85.\n\n[175] To this list may also be added the Territory of Washington.\n\n[176] The Territory of Kansas belongs to the above group.\n\n[177] Compiled Statutes of Connecticut, 1854, p. 307.\n\n[178] Revised Code of Mississippi, 1857, chap. 64, p. 601.\n\n[179] Digest of Statutes of Arkansas, 1848, chap. 51, p. 325.\n\n[180] Revised Statutes of Minnesota, 1851, chap. 100, p. 493.\n\n[181] Statutes of Oregon, 1855, chap. 3, p. 310.\n\n[182] Revised Statutes of Maine, 1857, chap. 124, p. 685.\n\n[183] The above should evidently read \u201cthe first two sections,\u201d to be\npossible.\n\n[184] Compiled Statutes of New Hampshire, 1853, chap. 227, p. 544.\n\n[185] Revised Statutes of New York, 1852, ii. pp. 847, 876. The last\nsection of this statute does not require proof of pregnancy.\n\n[186] Revised Statutes of Ohio, 1854, chap. 162, p. 296.\n\n[187] Compiled Laws of Michigan, 1857, vol. ii. chap. 180, p. 1509. The\nstatute of the Territory of WASHINGTON is very similar to those above.\n\n\u201cEvery person who shall administer to any woman pregnant with a quick\nchild, any medicine, drug, or substance whatever, or shall use or\nemploy any instrument, or other means, with intent thereby to destroy\nsuch child, unless the same shall have been necessary to preserve the\nlife of such mother, shall, in case the death of such child or of such\nmother be thereby produced, on conviction thereof, be imprisoned in the\npenitentiary not more than twenty years, nor less than one year.\n\n\u201cEvery person who shall administer to any pregnant woman, or to any\nwoman whom he supposes to be pregnant, any medicine, drug, or substance\nwhatever, or shall use or employ any instrument, or other means, thereby\nto procure the miscarriage of such woman, unless the same is necessary\nto preserve her life, shall, on conviction thereof, be imprisoned in the\npenitentiary not more than five years, nor less than one year, or be\nimprisoned in the county jail not more than twelve months, nor less than\none month, and be fined in any sum not exceeding one thousand dollars.\u201d\nStatutes of the Territory of Washington, 1855, p. 81.\n\n[188] Compiled Statutes of Vermont, 1850, chap. 108, p. 560.\n\n[189] Supplement to the Revised Statutes of Massachusetts, 1849, p. 322.\n\n[190] Statutes of Illinois, 1858, vol. i. p. 381.\n\n[191] Revised Statutes of Wisconsin, 1858, chap. 169, sect. 58. It will\nbe noticed that the second section of the above statute differs from the\nfirst, in not requiring the proof of pregnancy.\n\n[192] Code of Virginia, 1849, chap. 191, p. 724.\n\n[193] Revised Statutes of Missouri, 1856, i. chap. 50, p. 567.\n\n[194] Code of Alabama, 1852, sect. 3230, p. 582.\n\n[195] Revised Statutes of Louisiana, 1856, p. 138. By its wording, this\nstatute might be forced into the next division.\n\n[196] I insert this clause not merely for its relation to the points we\nare now considering, but for its important bearing on the broad question\nof infanticide during labor; concerning which it stands in bold and\ndirect antagonism to all the rulings of the common law in this country\nand abroad. In other respects also, though not faultless, the Texas\nstatute is rationally and admirably drawn.\n\n[197] Penal Code of Texas, 1857, p. 103.\n\n[198] Digest of Laws of California, 1857, art. 1905, p. 334. The statute\nof the Territory of KANSAS, similar to the above, is as follows:\u2014\n\n\u201cEvery physician or other person who shall willfully administer to any\npregnant woman, any medicine, drug, or substance whatever, or shall use\nor employ any instrument or means whatsoever, with intent thereby to\nprocure abortion, or the miscarriage of any such woman, unless the same\nshall have been necessary to preserve the life of such woman, or shall\nhave been advised by a physician to be necessary for that purpose, shall,\nupon conviction, be adjudged guilty of a misdemeanor, and punished by\nimprisonment in a county jail not exceeding one year, or by fine not\nexceeding five hundred dollars, or by both such fine and imprisonment.\u201d\nStatutes of Kansas, 1855, chap. 48, p. 243.\n\n[199] We have already commented upon the phraseology of the Louisiana\nstatute. The latitude of its first clause is shown by the context to\nhave been unintentional, and therefore hardly justifies a change in\nits classification. The second section of the Statute of Washington\nTerritory, however, is closely analogous to that now given; while the\nfinal sections of the statutes both of New York and Wisconsin, which make\nit penal for a woman voluntarily to effect or submit to the unjustifiable\ninduction of abortion, are equally silent regarding proof of the\nexistence of pregnancy.\n\n[200] Revised Statutes of Indiana, 1852, p. 437.\n\n[201] Rex _vs._ Phillips, 3 CAMPBELL, 77; RUSSELL, Crim. Law, 553-4; 1\nGABBETT, Crim. Law, 522; 1 BISHOP, Crim. Law, 386.\n\n[202] State _vs._ Cooper, 2 ZABRISKIE, 52, 57; Rex _vs._ Russell, 1\nMOODY, 356, 360.\n\n[203] Regina _vs._ Wycherley, 8 CARRINGTON and PAYNE, 265.\n\n[204] The People _vs._ Jackson, 3 HILL, N. Y. Reports, 92; WHARTON,\nCriminal Law, 98.\n\n[205] DAVIS, Crim. Justice, 484.\n\n[206] WHARTON, Amer. Crim. Law, 424.\n\n[207] WHARTON, Amer. Crim. Law, 75.\n\n[208] The State _vs._ Vawter, 7 BLACKFORD, 592.\n\n[209] 1 GABBETT, Crim. Law, 523; ARCHBOLD, P. A., lxx, 2.\n\n[210] ROSCOE, L. E., 242; Eng. Com. L. Rep., xxv. 453; Rex _vs._ Coe, 6\nCAR. & P., 403; Vaughan, 13.\n\n[211] 1 BISHOP, Crim. Law, 527.\n\n[212] In Massachusetts, though the statute is silent on these points, it\nis asserted that whenever a potion is given, or other means are used, by\n\u201ca surgeon,\u201d for the purpose of saving the life of the woman, the case\nis free of malice, and has a lawful justification. DAVIS, Crim. Justice,\n282; Report of the Criminal Law Commissioners, 1844, Causing Abortion,\nI., note _a_.\n\n[213] After a little reflection, it will be seen that this word is not so\nopen to objection as might at first be supposed.\n\n[214] 1 RUSSELL, Crimes, 671; 1 VESEY, 86; 3 COKE, Inst., 50; 1 HAWKINS,\nC. B., s. 16; 1 HALE, 434; 1 EAST, P. C., 90; 3 CHITTY, Crim. Law, 798;\nWHARTON, Crim. Law, 537.\n\n[215] DAVIS, Crim. Justice, 486.\n\n[216] ARCHBOLD, Crim. Pleading, 490.\n\n[217] Regina _vs._ Trilloe, 2 MOODY, C. C., 260, 413.\n\n[218] The State _vs._ Cooper, 2 ZABRISKIE, 52; HANES, U. S. Digest, 5.\n\n[219] The Commonwealth _vs._ Parker, 9 METCALF, 263; The Commonwealth\n_vs._ Bangs, 9 Mass., 387; The State _vs._ Cooper, 2 ZABRISKIE, 57;\nHANES, U. S. Digest, 5; Smith _vs._ State, 33 MAINE, (3 RED.) 48.\n\n[220] BISHOP, Crim. Law, 386; Mills _vs._ The Commonw., 1 HARRIS, Pa.,\n631, 633.\n\n[221] WHARTON, Crim. Law of the U. S., 537.\n\n[222] 1 RUSSELL, Crimes, 661; 1 VESEY, 86; 3 COKE, Inst., 50; 1 HAWKINS,\nc. 13, s. 16; BRACTON, 1. 3, c. 21.\n\n[223] BAC. Ab., tit. Infants.\n\n[224] 2 VERNON, 710.\n\n[225] Doe _vs._ Clark, 2 H. Bl., 399; 2 VESEY, jr., 673; Thellusson _vs._\nWoodford, 4 VESEY, 340; Swift _vs._ Duffield, 6 SERG. & RAWLE, 38.\n\n[226] FEARNE, 429.\n\n[227] 2 VERNON, 710; The Commonwealth _vs._ Demain, 6 Penn. Law Journ.,\n29; BRIGHTLY, 441.\n\n[228] 1 HALE, 90; The Commonw. _vs._ Chauncey, 1 ASHMEAD, 227; Smith\n_vs._ State, 33 MAINE, (3 RED.) 48.\n\n[229] Ibid.; HANES, U. S. Digest, 5.\n\n[230] WHARTON, Law of Homicide, 44.\n\n[231] The Commonw. _vs._ Parker, 9 METCALF, 263, 265; DAVIS, Crim.\nJustice, 281.\n\n[232] 1 BLACKSTONE, 129; Rex _vs._ Senior, 1 MOODY, C. C., 346; 3 Inst.,\n50; WHARTON, C. L., 537; Ibid., Law of Homicide, 93.\n\n[233] Rex _vs._ West, 2 CARR. & KIR., 784; 1 BISHOP, C. L., 255; WHARTON,\nLaw of Homicide, 93.\n\n[234] Rex _vs._ Scudder, 1 MOODY, 216, 3 CAR. & P., 605, overruling Rex\n_vs._ Phillips, 3 CAMPBELL, 73; RUSSELL, Cr., 763, note.\n\n[235] If made without her consent?\n\n[236] Regina _vs._ Goodchild, 2 CAR. & KIR., 293; Rex _vs._ Goodhall, 1\nDEN. C. C., 187; 3 CAMPBELL, 76.\n\n[237] 1 BISHOP, Crim. Law, 518.\n\n[238] 1 BISHOP, Crim. Law, 385.\n\n[239] WHARTON, Crim. Law, 541.\n\n[240] 1 HARRIS, Pa., 631, 633.\n\n[241] LEE, Note to Guy\u2019s Principles of Forensic Medicine, p. 134.\n\n[242] BECCARIA, Crimes and Punishments, 104.\n\n[243] \u201cAn efficient, and practical remedy for the prevention of this\ncrime would be a law requiring the causes of death to be certified by\nthe physician in attendance, or where there has been no physician, by\none called in for the purpose. In this way the cause of death, both in\ninfants and mothers, could be traced to attempts to procure abortion. In\nthree cases which occurred in Boston, in 1855, the death was reported by\nfriends to be owing to natural causes, and in each it was subsequently\nascertained that the patient died in consequence of injuries received\nin procuring abortion. It is probable that such cases are by no means\nrare; and if the cause of death were known, an immediate investigation\nmight lead to the detection of the guilty party.\u201d (Boston Med. and Surg.\nJournal, Dec., 1857, p. 365.)\n\n[244] Register of the Morgue.\n\n[245] From 1846 to 1850, 188 cases of criminal abortion were discovered\nin Paris, but for want of proof, only 22 of them were sent to trial.\n(Comptes Rendus Ann. de la Justice Criminelle.)\n\n[246] Report on the Medico-legal duties of Coroner. 1857.\n\n[247] RADFORD, British Record of Obstetric Medicine, vol. i. p. 55.\n\n[248] WHARTON, Criminal Law, 540.\n\n[249] Smith _vs._ The State, 33 MAINE, (3 RED.) 48.\n\n[250] Rex _vs._ Phillips; Regina _vs._ Goodall; Reg. _vs._ Haynes, etc.\n\n[251] TAYLOR, Med. Jurisprudence, p. 386.\n\n[252] PERCIVAL, Medical Ethics, p. 84.\n\n[253] Ibid., p. 85.\n\n[254] Loc. cit., article 317.\n\n[255] Report to Suffolk District Med. Society, May, 1857, p. 12.\n\n[256] In this connection, I cannot too strongly deprecate a practice that\nhas lately been proposed, the detection, namely, of the early existence\nof pregnancy by the administration of ergot. (Boston Med. and Surg.\nJournal, April, 1859, p. 197.) The use of ergot for this purpose, in\nhowever small a dose, would seem utterly unjustifiable.\n\n[257] Fifteenth Massachusetts Registration Report, 1857, p. 199.\n\n[258] QUETELET, Theory of Probabilities, p. 234.\n\n[259] New York Med. Gazette, Editorial; London Medical Times and Gazette,\n1850, p. 487.\n\n[260] Boston Med. and Surg. Journal, Editorial, 1855, p. 411.\n\n[261] DEAN, Medical Jurisprudence, p. 139.\n\n[262] Boston Med. and Surg. Journal, Editorial, Dec. 13, 1855.\n\n[263] American Medical Gazette, Editorial, July, 1857, p. 390.\n\n[264] Ibid., April 1859, p. 289.\n\n[265] Maine Med. and Surg. Reporter, Editorial, June, 1858, p. 39.\n\n[266] DEVILLE, Researches on the proportion of still-born children\ncompared with the mortality of the City of Paris during the thirteen\nyears, 1846-58. Memoirs of the French Academy, 1859.\n\n[267] New Hampshire Journal of Medicine, Editorial, July, 1857, p. 216.\n\n[268] London Lancet, Editorial, July, 1858, p. 66.\n\n[269] TATUM, Virginia Med. Journal, June, 1856, p. 457.\n\n[270] Loc. cit., p. 19.\n\n[271] The Councillors of the Massachusetts Medical Society. Proceedings\nof the Society, 1858, p. 77.\n\n[272] PHILLIPS, On Evidence, i. p. 135; RYAN, Medical Jurisprudence, p.\n193; STORER, Sen., Introductory Address, 1855, p. 10; SIMPSON, Physicians\nand Physic, p. 31.\n\n[273] Proceedings of the Society, 1858.\n\n[274] Man Transformed. Oxford, 1653.\n\n[275] \u201c_Resolved_, That while physicians have long been united in\ncondemning the procuring of abortion, at every period of gestation,\nexcept as necessary for preserving the life of either mother or child,\nit has become the duty of this Association, in view of the prevalence\nand increasing frequency of the crime, publicly to enter an earnest and\nsolemn protest against such unwarrantable destruction of human life.\n\n\u201c_Resolved_, That in pursuance of the grand and noble calling we\nprofess,\u2014the saving of human life,\u2014and of the sacred responsibilities\nthereby devolving upon us, the Association present this subject to the\nattention of the several legislative assemblies of the Union, with the\nprayer that the laws by which the crime of abortion is attempted to be\ncontrolled may be revised, and that such other action may be taken in the\npremises as they in their wisdom may deem necessary.\n\n\u201c_Resolved_, That the Association request the zealous co-operation of\nthe various State medical societies in pressing this subject upon the\nlegislatures of their respective States, and that the president and\nsecretaries of the Association are hereby authorized to carry out, by\nmemorial, these resolutions.\u201d\u2014_Transactions of the Am. Med. Association_,\n1859, vol. xii. p. 75.","title":"On criminal abortion in America","tradition":"philosophy-ethics","translated_text":null,"word_count":46608}