We have already laid down rules here available; that the state of the fœtus often affords proof of the cause of its expulsion, this being slow and natural, and depending on disease and predisposition, or not; that in flagrant malpractice, the use of alleged specifics, or of measures likely to produce direct miscarriage, or otherwise absolutely counter-indicated by the general health and constitution of the patient, a contradiction exists to the plea offered, in itself strong presumptive evidence of criminal intent; and that in certain cases this evidence becomes positive, as where, for instance, a sponge found or proved to have been inserted into the os uteri as a dilating tent, is alleged to have been intended as a mere pessary and placed in the vagina.

If the accused be a physician, presumed as he should be, acquainted with the great principles of practice, his only plea can be, where the means used were unjustifiable and proved such, and where the pregnancy was known to others, that he was ignorant of its existence. Liable as the profession are at any time to this charge, and easy as it is in almost every case, especially of instrumental procedure, for us to take such preliminary measures as would be likely to settle the question of the existence of pregnancy, or to request the presence of a witness to our act, it is unjust to ourselves and to each other to omit these precautions.

But if, on the other hand, the charge be utterly unfounded, it is probable, as I have already remarked, that contradictions in the testimony or the alleged facts could always be shown to exist, and the perjury thus exposed. It would be self-evident, were the accused proved to have been first consulted after the abortion had terminated, though not if it had only commenced.

V. ITS PERPETRATORS.

It is interesting, and at the same time of judicial importance to ascertain, so far as possible, the standing and character of the perpetrators of this crime.

In the first place, French statistics on the large scale show that the number of criminals, principals and accomplices, in that country at least, is in large excess to the instances of the crime, there having been in 183 trials, from 1826 to 1853, not merely 417 parties accused, but 213 convicted; and that in 75 per cent. of the prosecutions and convictions occurring, where the abortion is not induced by the mother herself, the offenders are women.[130] With us the same statement is, without doubt, equally true.

The part played by the mother, herself so often a victim, is almost always that of a principal, yet as laws now stand, she can scarcely ever be reached. The cases where she is under duress, by threat of other personal violence from her husband or seducer, and thus compelled to submit to abortion, or where the act is performed by his direction but without her knowledge, are so rare, that in a general statement they may be assumed not to exist. If the mother does not herself induce the abortion, she seeks it, or aids it, or consents to it, and is, therefore, whether ever seeming justified or not, fully accountable as a principal. We have already seen the position these mothers hold in the community, high as well as low, rich as well as poor, intelligent and educated as well as ignorant, professedly religious as well as of easy belief, not single alone, but married.

We turn now to their partners in guilt, more criminal than themselves; for whatever excuse the latter may suppose themselves to possess, the former can have none.

The accomplices in criminal abortion are of several classes, distinguishable in some respects from each other, especially by the relative frequency with which their part is played. They are:

Of women,I.—Friends and acquaintance.
II.—Nurses.
III.—Midwives and female physicians.
Of men,IV.—Husbands.
V.—Quacks and professed abortionists.
VI.—Druggists.
VII.—And worst of all, though fortunately extremely rare, physicians in regular standing.