In unison with these opinions, Judge Coulter, of Pennsylvania, has ruled, that “it is not the murder of a living child which constitutes the offence, but the destruction of gestation.”[240]
If our previous assumptions of the actual character of criminal abortion be granted, and we believe that they have been proved to a demonstration, it must follow from the subsequent remarks that the common law, both in theory and in practice, is insufficient to control the crime; that in many States of this Union, the statutory laws do not recognize its true nature; that they draw unwarrantable distinctions of guilt; that they are not sufficiently comprehensive, directly allowing many criminals to escape, permitting unconsummated attempts, and improperly discriminating between the measures employed; that they require proofs often unnecessary or impossible to afford; that they neglect to establish a standard of justification, and thereby sanction many clear instances of the crime; that by a system of punishments wholly incommensurate with those inflicted for all other offences whatsoever, they thus encourage instead of preventing its increase; and that in many respects they are at variance, not merely with equity and abstract justice, but with the fundamental principles of law itself.
“It is to be hoped,” has forcibly been written, “that the period is not far remote, when laws so cruel in their effects, so inconsistent with the progress of knowledge and civilization, and so revolting to the feelings and claims of humanity, will be swept from our statutes.”[241]
In a similar trust, it now behooves us to consider whether, and in what manner, the difficulties in the way of generally suppressing the crime of abortion can be overcome.
VIII. CAN IT BE AT ALL CONTROLLED BY LAW?
To this important question I do not hesitate to give an unqualified answer in the affirmative. The fact that criminal abortion is not controlled by law anywhere, cannot be entertained as a valid argument to the contrary of this assertion; for it is equally the fact, as we have seen, that laws against abortion do not as yet exist, which are in all respects just, sufficient, and not to be evaded.
It is evident that in aiming to suppress this crime, the law should provide not merely for its punishment, but indirectly as well as directly, and so far as possible, for its prevention. The punishment of a crime cannot be just, if the laws have not endeavored to prevent that crime by the best means which times and circumstances would allow,[242] and this is to be accomplished by a twofold process: by rendering on the one hand its detection more probable, and on the other its punishment more certain.
As indirect though important measures for the former of these ends, we have already mentioned laws for registration,[243] and against concealment of births and secret burials. As a single proof of their possible influence in this respect, out of many that might be adduced, we instance the fact that in Paris the number of premature fœtuses deposited at the Morgue, during the nine years, from 1846 to 1854, inclusive, was found to exceed by more than two-thirds that of the full decade just preceding, from 1836 to 1845.[244] To render this difference more apparent, we have compiled the following table:—
| Age of fœtuses deposited. | Ten years: 1836-1845. | Nine years: 1846-1854. |
|---|---|---|
| From 2 to 3 months | 21 | 58 |
| ” 3 to 4 ” | 35 | 73 |
| ” 4 to 5 ” | 56 | 102 |
| ” 5 to 6 ” | 69 | 82 |
| Total | 181 | 315 |
Part of this advance, it is true, is attributable to the increase in the population of Paris, and in the prevalence of criminal abortion, but in great measure it is clearly owing to the enforcement of a more rigid law against secret burials. The above remarks are strikingly corroborated by the fact that of trials for the crime, and we must not forget that these bear but a small ratio to the whole number of cases preliminarily investigated,[245] there were in France, during the latter of these periods, fully four times the number occurring from 1836 to 1845.