[214] Osenbrüggen, Das alamannische Strafrecht im deutschen Mittelalter, p. 229 sq. Idem, Studien zur deutschen und schweizerischen Rechtsgeschichte, p. 358.
[215] Charles V.’s Peinliche Gerichts Ordnung, art. 131.
[216] de Feyfer, Verhandeling over den Kindermoord, p. 225. von Fabrice, Die Lehre von der Kindsabtreibung und vom Kindsmord, p. 251.
[217] Berner, Lehrbuch des Deutschen Strafrechtes, p. 497.
[218] Bentham maintained (Theory of Legislation, p. 264 sq.) that infanticide ought not to be punished as a principal offence. “The offence,” he says, “is what is improperly called the death of an infant, who has ceased to be, before knowing what existence is,—a result of a nature not to give the slightest inquietude to the most timid imagination; and which can cause no regrets but to the very person who, through a sentiment of shame and pity, has refused to prolong a life begun under the auspices of misery.”
[219] de Feyfer, op. cit. p. 228. For modern legislation on infanticide, see also Spangenberg, in Neues Archiv des Criminalrechts, iii. 360 sqq.; von Fabrice, op. cit. p. 254 sqq.
[220] Code Pénal, art. 300, 302.
[221] Garraud, Traité théoretique et pratique du droit pénal français, iv. 251.
[222] Stephen, History of the Criminal Law of England, iii. 86.
Hand in hand with the custom of infanticide goes feticide, which prevails extensively in the savage world.[223] The same considerations as induce savages to kill their new-born infants also induce them to destroy the fetus before it has proceeded into the world from the mother’s body. Besides, women procure abortion with a view to avoiding the disagreeable incidents accompanying the state of pregnancy; or, very frequently, in order to conceal illicit intercourse.[224] Considering that the same degree of sympathy cannot be felt with regard to a child not yet born as with regard to an infant, it is not surprising to find that feticide is practised without objection even by some peoples who never commit infanticide. Thus in Samoa, where the latter practice was perfectly unknown, the destruction of unborn children prevailed to a melancholy extent, and the same was the case in the Mitchell Group.[225] Among the Dacotahs, who only occasionally killed infants, abortion procured by artificial means was not held objectionable.[226] On the other hand there are savages who consider it a crime. Some Indian tribes in North America abhor the practice.[227] The natives of Tenimber and Timor-laut punish it with heavy fines.[228] Regarding the Kafirs, Mr. Warner states that “the procuring of abortion, although universally practised by all classes of females in Kafir society, is nevertheless a crime of considerable magnitude in the eye of the Law; and when brought to the notice of the Chief, a fine of four or five head of cattle is inflicted. The accomplices are equally guilty with the female herself.“[229]