ON
CRIMINAL ABORTION
IN AMERICA.

BY
HORATIO R. STORER, M.D.,
OF BOSTON.
MEMBER OF THE AMERICAN MEDICAL ASSOCIATION.

“And let the legislator and moralist look to it; for as sure as there is in any nation a hidden tampering with infant life, whether frequent or occasional, systematic or accidental, so sure will the chastisement of the Almighty fall on such a nation.”—Granville, on Sudden Death.

[From the North American Medico-Chirurgical Review, January to November, 1859.]

PHILADELPHIA:
J. B. LIPPINCOTT & CO.
1860.

TO
THOSE WHOM IT MAY CONCERN,
PHYSICIAN, ATTORNEY, JUROR, JUDGE,—AND PARENT,—
These Pages
ARE RESPECTFULLY INSCRIBED.

CONTRIBUTIONS
TO
OBSTETRIC JURISPRUDENCE.
NO. I.
CRIMINAL ABORTION.

By the Common Law and by many of our State Codes, fœtal life, per se, is almost wholly ignored and its destruction unpunished; abortion in every case being considered an offence mainly against the mother, and as such, unless fatal to her, a mere misdemeanor, or wholly disregarded.

By the Moral Law, the wilful killing of a human being at any stage of its existence is Murder.

In undertaking the discussion at length of this subject, three preliminary facts must be assumed:—

First.—That if abortion be ever a crime, it is, of necessity, even in isolated cases, one of no small interest to moralist, jurist, and physician; and that when general and common, this interest is extended to the whole community and fearfully enhanced.

Secondly.—That if the latter assumption be true, both in premise and conclusion, neglected as the crime has been by most ethical writers and political economists, hastily passed over by medical jurists,[1] and confessedly everywhere the great opprobrium of the law, often indeed by taunt that of medicine, either it cannot in the nature of things be suppressed, as by these facts implied, or its suppression has not been properly attempted. Discarding the former of these alternatives as alike unworthy of belief and proved false by facts hereafter to be shown, it will appear,

Thirdly.—That the discussion now broached is neither supererogatory nor out of place; further, that it is absolutely and necessarily demanded.

Moreover, in order that the importance and various bearings of the subject may be better appreciated, and that the writer’s position and aims may be more fairly understood, it must be borne in mind that there exist to this discussion certain positive and apparent objections, which have, in a measure, given rise to much of the silence and omission alluded to above, and are, in the main, as follows:—

1. The natural dislike of any physician to enter upon a subject on some points of which it is probable that a portion of the profession is at variance with him, either from disbelief in the alleged increase of criminal abortion, unnoticed for reasons shown hereafter, or from a blind reliance on Providence of itself to abate the evil.

2. His fear, lest by any possible chance, by showing the frequency of the crime and its means, he may unhappily cause its still further increase.

3. The reluctance on the part of many of the profession to attack a powerful and acknowledged moneyed interest;

4. And to tell their patients, more commonly than is yet general, most unwelcome truth; thus not merely condemning, but, to their own consciences at least, criminating them;

5. And individually to risk losing practice, if thought more scrupulous than others;

6. And to be brought into more frequent contact with the law, even though for ends of justice;

7. And to exercise greater care and discretion in diagnosis and treatment, lest themselves be brought to answer for malpractice, or worse;

8. And publicly to discuss matters supposed to be generally unknown, and thus seem to throw open professional secrets to the world.

And, finally, grave doubts lest the statements made, though simple and true, should yet appear so astounding as to shock belief, or so degrading as to tend to lessen all faith in natural affection and general morality.

But these objections, so far at least as regards the profession, are undoubtedly but of limited existence; and, on the other hand, as more than counterbalancing them all, are the following arguments:—

That medical men are the physical guardians of women and their offspring; from their position and peculiar knowledge necessitated in all obstetric matters to regulate public sentiment and to govern the tribunals of justice.

That the discussion by them of this crime may very probably be the means, in great measure, of ultimately restraining or suppressing its perpetration.

That such will undoubtedly tend to save much health to the community and many human lives.

And, that, were there no other reason, it is clearly a duty.

I shall accordingly proceed to prove, so far as possible, the truth of every premise as yet stated, and to show the real nature and frequency of the crime: its causes; its victims; its perpetrators and its innocent abettors; its means and its proofs; its excuses, the deficiencies and errors of existing laws, and the various other obstacles to conviction; and, above all, so far as the present series of papers is concerned, the duty of the profession toward its general suppression.

I. IS ABORTION EVER A CRIME?

That this could have been doubted, least of all by mothers, however ignorant or degraded, would at first sight appear improbable. The sense of the public, however, its practice, its laws, being each proved to the contrary by the stubborn evidence of facts, the necessity of our preliminary inquiry will be made manifest.

To postpone, for the present, all other considerations, we will regard abortion in the abstract. It may be defined, best perhaps, as the violent and premature expulsion of the product of conception, independently of its age, viability, and normal formation. These characteristics are eliminated as having judicially and actually nothing to do with the essential nature of abortion, whereas in infanticide they are each elements of great importance; a difference that will hereafter be seen.

We further, in the present investigation, set aside all cases where abortion is the result of accident, or from natural causes, or justified by the rules of medicine, whether to save the mother or her child. We shall have occasion, in the subsequent course of our inquiries, to discuss this latter question somewhat fully, and to set forth unpleasant truths. We now confine ourselves exclusively to those instances where the attempt at premature expulsion of the product of conception is artificially induced and intentional, and where, so far as can be judged, it is not necessitated and would not otherwise have occurred.

In the first place, the laws do not recognize that unnecessary abortion, per se, is a crime.

This act, when unnecessarily done, must be for one of two reasons: either to prevent the product of conception from receiving life, which subsequent evidence will show cannot be the case, or, if living, to destroy it.

We have said that the Common Law and many of our American statutes lose sight of this fundamental idea. Though based upon the first of the above alternatives,—the erroneous one, as regards the fact of their existence,—they are so worded as almost wholly to ignore fœtal life, to refuse it protection, to insure their own evasion, and by their inherent contradictions to extend the very crime they were framed to prevent.

They recognize, for the most part, no offence against the fœtus; we have just shown that such, and such alone, is always intended. They punish an attempt, which does not exist, upon the well-being or life of the mother; the intent being seldom or never to destroy the mother. She is herself, in almost every case, a party to the action performed; an accessory or the principal. To constitute a crime, a malicious or wicked intent is supposed to exist; we have thrown aside, as does the law, every case occurring from accident or from justifiable cause. The intent, if existing, as of course must be always the case, is against, and only against, the product of conception.

Again, the punishment meted by the law proves the truth of these propositions. Unless the woman die in consequence of the offence, it is declared, in every stage of pregnancy, a mere misdemeanor, as in Massachusetts; or else, while called such, or by omission justified or openly allowed in the early months when the fœtus is without other safeguard, the law pronounces abortion a felony and increases its penalties in more advanced pregnancy, after quickening has rendered it infinitely more certain that the fœtus will remain undisturbed, and has thus in the great majority of cases prevented the crime.

On the other hand, granting for the moment that the erroneous assumptions of the law were correct, and that the attempt were upon the life of the mother, how inconsistent to punish murder, attempted or committed, if by injury to the throat or heart, capitally, and if by injury to the womb, by temporary imprisonment; especially where this latter case always necessitates the slaughter of a second human victim.

Or, granting that the attempt were only upon the mother’s health or temporary welfare, how absurd to punish the offence in early pregnancy, where her risks are greatest, by a trifling penalty or not at all, and in more advanced pregnancy, where these risks are daily lessened, with increased severity.

And, finally, if the fœtus were, as has been sometimes supposed, merely pars viscerum matris, its removal would be like that of a limb, or of any other portion of the body, whose loss is not absolutely attended with that of life; if made with the mother’s consent, it would be unpunishable by law; if against her will, it would be already amenable, like other maim or mutilation, to existing statutes. In the one case, laws against abortion were needless; in the other, unjustifiable.

In a word, then, in the sight of the common law, and, in most cases of the statutory law, also, the crime of abortion, properly considered, does not exist; the law discussing and punishing a wholly supposititious offence, which not only does not exist, but the very idea of whose existence is simply absurd.

We turn now to public opinion. It, too, both in theory and in practice, fails to recognize the crime. Its practical denial of the true character of the offence will be shown in the course of our remarks on its frequency. Its theoretical denial we here consider, as proved in three ways—by implication, by collateral testimony, and by direct.

First, the maxims of the law are based on past or present public opinion. If merely on past, and this has totally changed, the law in matters of such importance is compelled to change also. The fact that the laws on this subject remain unaltered, if it be granted, as will be proved, that they are erroneous, furnishes us at the outset, and so far, with evidence that public opinion was formerly wrong, and that it so continues.

The frequency of the offence, and the character and standing of the mothers upon whose persons it is practised, accessories as we have seen, or principals, to it, furnish similar and more cogent testimony regarding the theory upon which it is founded. We shall soon perceive how extensive and high reaching is the frequency; we must therefore conclude that the public do not know, or knowing deny, the criminal character of the action performed.

Again, the direct testimony of the parties themselves is often available. It is undoubtedly a common experience, as has certainly been that of the writer, for a physician to be assured by his patients, often no doubt falsely, but frequently with sincerity, that their abortions have been induced in utter ignorance of the commission of wrong; in belief that the contents of the womb, so long as manifesting no perceptible sign of life, were but lifeless and inert matter; in other words, that being, previously to quickening, a mere ovarian excretion, they might be thrown off and expelled from the system as coolly and as guiltlessly as those from the bladder and rectum.

It having now been shown, directly and by temporary assumption, that the law and public sentiment, both by its theory and its practice, alike deny to unjustifiable abortion the imputation of crime, it remains for us to discuss this question abstractly, and to prove not merely that they are wrong, but that the offence is one of the deepest guilt, a crime second to none.

Ignorance of the law is held no excuse. The plea of ignorance of guilt could hardly better avail where its existence is implied by common sense, by analogy, and by all natural instinct, binding even on brutes. Were this guilt, however, clearly shown, and its knowledge, supposed wanting, to be spread broadcast by the press, the all-powerful arbiter of public opinion, the last and strongest prop of the crime were gone.

It has been shown, by setting aside all accidental cases, those naturally occurring and those necessarily, and in the absence of reasonable evidence to the contrary, that all other abortions must be intentional, that they must be occasioned by the “malice aforethought” of the law. It has also been shown that in these cases, except it exist as an additional element, the malicious intention is not against the life or person of the mother, but that in every instance it is against the product of her womb. Hence, the whole question of the criminality of the offence turns on this one fact, the real nature of the fœtus in utero. If the fœtus be a lifeless excretion, however soon it might have received life, the offence is comparatively as nothing; if the fœtus be already, and from the very outset, a human being, alive, however early its stage of development, and existing independently of its mother, though drawing its sustenance from her, the offence becomes, in every stage of pregnancy, murder.

“Every act of procuring abortion,” rules Judge King, of Philadelphia,[2] contrary to the usual interpretation of the law, “is murder, whether the person perpetrating such act intended to kill the woman, or merely feloniously to destroy the fruit of her womb.”

Common sense, we have said, would lead us to the conclusion that the fœtus is from the very outset a living and distinct being. It is alike absurd to suppose identity of bodies and independence of life, or independence of bodies and identity of life; the mother and the child within her, in abstract existence, must be entirely identical from conception to birth, or entirely distinct. Allowing, then, as must be done, that the ovum does not originate in the uterus; that for a time, however slight, during its passage through the Fallopian tube, its connection with the mother is wholly broken; that its subsequent history is one merely of development, its attachment merely for nutrition and shelter, it is not rational to suppose that its total independence, thus once established, becomes again merged into total identity, however temporary; or that life, depending not on nine months’ growth, nor on birth, because confessedly existing long before the latter period,—since quickening at least, a time varying within wide limits,—dates from any other epoch than conception; while it is as irrational to think that the influence of the father, mental and moral as well as physical, so often and so plainly manifested, can be exercised by any possibility upon the child at any other moment than that original and only one of impregnation itself.

Another argument is furnished us, similar, but differing. The fœtus, previous to quickening, as after it, must exist in one of two states, either death or life. The former cannot take place, nor can it ever exist, except as a finality. If its signs do not at once manifest themselves, as is generally the case, and the fœtus be retained in utero, it must either become mummified or disintegrated; it can never again become vivified. If, therefore, death has not taken place, and we can conceive no other state of the fœtus save one, that, namely life, must exist from the beginning.

These reasonings are strengthened by the evidence of analogy. The utter loss of direct influence by the female bird upon its offspring from the time the egg has left her, and the marked effect, originally, of the male; the independence in body, in movement, and in life, of young marsupial mammals, almost from the very moment of their conception, identical analogically with the intra-uterine state of other embryos,—nourishment by teat merely replacing that by placenta at an earlier period; the same in birds, shown by movements in their egg on cold immersion before the end of incubation; the permanence of low vitality, or of impaired or distorted nervous force, arising from early arrest or error of development, and necessarily contemporaneous with it, are all instances in point.

Brute instincts are often thought wholly supplanted by human reason. That this is not so is proved by what obtains in the absence of reason, whether from the outset or subsequently occurring. Idiots and lunatics alike show the actual identity in this respect of man and the brute, however instinct, in the former, may normally be tempered by conscience and reason. Whatever ideas on the subject of abortion the human mind may have forced itself to entertain, let the slightest proof concerning the existence of fœtal life be alleged, and maternal instinct at once makes itself known: the parent, as after its birth, would often even perish to preserve her child. This is not conscience, which is stirred only by an afterthought, but instinct.

Thus far, incidental proof concerning the commencement of fœtal life, and so the guilt of unjustifiable abortion. More decisive evidence is at hand.

That the movements of the fœtus, subsequent to quickening, whatever the actual nature of that first sensation may be, declare the existence of intra-uterine life, is allowed by the world; by none more than by mothers themselves, whose statistics prove that after the perception of these movements criminal abortions are comparatively rare.

But quickening,—a period usually occurring from the one hundred and fifteenth to the one hundred and thirtieth day after conception, but varying within still more appreciable limits in different women, and in the same women in different pregnancies, from variations in the amount of liquor amnii, the early strength of the fœtus, and other causes, and also, if at all, owing in its first sensation to rising of the womb from the pelvis, probably occurring a little earlier with boys than with girls, from their relative difference in size,[3]—is often absent, even throughout pregnancy; and fœtal movements are sometimes appreciable to the attendant when not to the mother, or indeed to the mother alone.

Further, in premature births, where quickening has not occurred, or before its usual period, by the movements of the fœtus, its earlier independent and vital existence is sometimes reduced to a matter of ocular demonstration; while to the ear, in very many instances, as early and as conclusive evidence is afforded by the sounds these movements give rise to.[4]

Quickening is therefore as unlikely a period for the commencement of fœtal life as those others set by Hippocrates and his successors, varying from the third day after conception, to that of the Stoics, namely birth, and as false as them all.

We need not, with Dubois[5] and some earlier writers,[6] from the manifest relation of means to the end, consider that the movements of the fœtus in utero, and its consequent attitude and position, are signs of an already developed and decided sentience and will, nor is it requisite to suppose them the effect of an almost rational instinct. But that they are wholly independent of the will and the consciousness of the mother, and yet by no means characteristic of organic life, whether hers or its own,—which latter is also by abundant evidence proved independently to exist,—but decidedly animal in their character; that they are not explainable by gravity, despite all the arguments alleged, latest by Matthews Duncan,[7] nor on any other supposition save that of a special and independent excito-motory system, distinct from that of the mother,[8] brings us directly down to this—the existence of as distinct and independent a nervous centre, self-existing, self-acting, living.

We set aside all the speculations of metaphysicians regarding moral accountability of the fœtus, the “potential man,” and its “inanimate vitalities,” as useless as they are bewildering. If there be life, then also the existence, however undeveloped, of an intellectual, moral, and spiritual nature, the inalienable attribute of humanity, is implied.

If we have proved the existence of fœtal life before quickening has taken place or can take place, and by all analogy and a close and conclusive process of induction, its commencement at the very beginning, at conception itself, we are compelled to believe unjustifiable abortion always a crime.

And now words fail. Of the mother, by consent or by her own hand, imbrued with her infant’s blood; of the equally guilty father, who counsels or allows the crime; of the wretches who by their wholesale murders far out-Herod Burke and Hare; of the public sentiment which palliates, pardons, and would even praise this so common violation of all law, human and divine, of all instinct, of all reason, all pity, all mercy, all love, we leave those to speak who can.

We have next to prove—

II. ITS FREQUENCY, AND THE CAUSES THEREOF.

Though we cannot at once, and in exact figures, show the yearly amount of criminal abortion in this country, statistics on the subject being necessarily imperfect or wanting, we may yet arrive at an approximate result. This is done by an easy and reliable process of induction, the several factors of which, each of itself rendering probable the conclusion, tend, when combined, to make it almost absolutely certain.

We are to consider, in this connection, the evidence afforded by—

Several of these points are as yet almost wholly uninvestigated. They are stated, therefore, with care, as bearing decidedly on the question at issue, and as tending to provoke still further research.

To go into an elaborate comparison of our national and state censuses with themselves, past and present, with each other, and with those of similar communities abroad, involving, as it would do, intricate calculations regarding the effect of emigration from state to state, and from nation to nation, the increase of urban population, and the frequent decrease of rural, is not our present intention, nor is it necessary. By considering this point in connection with that immediately succeeding it, with which it is intimately related, its bearing and importance will at once be seen.

Statistics in this country are as yet so imperfect, that we are necessitated to a process of deduction. If it can be shown that a state of things prevails elsewhere to a certain extent, explainable only on one supposition, and that the same state of things prevails in this country to a greater extent, all other causes, save the one referred to, being in great measure absent, little doubt can be entertained of the part this plays; but if it can, in addition, be proved that this cause must necessarily be stronger with us than elsewhere, then its existence becomes morally certain. Accordingly, if we find that in another country living births are steadily lessening in proportion alike to the population and to its increase, that natural or preventive causes are insufficient to account for this, while the proportion of still-births and of known abortions is constantly increasing, and these last bear an evident yet increasing ratio to the still-births; that in this country the decrease of living births, and the increase of still-births, are in much greater ratio to the population, and the proportion of premature births is also increasing; that these relations are constant and yearly more marked, we are justified in supposing that abortions are at least as frequent with us, and probably more so.

In many countries of Europe, it has been ascertained that the “fecundity” of the population, or the rate of its annual increase, is rapidly diminishing.[9]

In Sweden, it has lessened by one-ninth in 61 years. In Prussia, by a third in 132 years. In Denmark, by a quarter in 82 years. In England, by two-sevenths in a century. In Russia, by an eighth in 28 years. In Spain, by a sixth in 30 years. In Germany, by a thirteenth in 17 years. In France, by a third in 71 years.[10]

Or, in other words:

In Sweden it has lessened by a fifth; in Prussia, by a fourth; in Denmark and England, by a third; and in Russia, Spain, Germany, and France by a half, in a single century.

For the sake of convenience, larger bodies of statistics existing concerning it, and from the fact that it represents the extreme of the alleged decrease, we take France for our comparisons.

In France at large, according to the official returns as analyzed by Legoyt, the increase of the population which, from 1801 to 1806, was at the rate of 1.28 per cent. annually, from 1806 to 1846 had fallen to about .5 per cent.[11] The exact ratio of decrease after this point is better shown by the figures themselves. The increase from 1841 to 1846 was 1,200,000; from 1846 to 1851, 380,000; from 1851 to 1856, 256,000.

In England, during this latter period, with a population of but one-half the size, the returns of the Registrar-General show a relative increase nine times greater.[12] In thirty-seven years, from 1817 to 1854, the mean annual increase in France was not more than 155,929, yet in five years, from 1846 to 1851, it had fallen to 76,000 yearly, and from 1851 to 1856, to 51,200, and this with a population ranging from twenty-nine to thirty-four millions.

A comparison of these facts, with those obtaining in other European States, will make the above still more evident. We now quote from Rau.[13]

A similar and corroborative table, containing additional matter, is given by Quetelet;[14] its differences from the preceding are owing to its representing a series of different years.

And more recently, Legoyt brings up these results to the close of 1846.[15] As shown by the census, the rate of increase was, in

Or, as shown by the annual excess of births over deaths, and therefore more reliable—

In four departments of France, among which are two of the most thriving of Normandy, the deaths actually exceed the births.[16]

From the above facts, it would naturally be supposed that the percentage of births to the whole population must be smaller than in other European countries, and from the lessened annual rate of increase of the population, that the proportionate number of births must be decreasing in similar ratio. This is found, indeed, to be the case.

From large statistics furnished by De Jonnés, we have compiled the following table of the comparative ratios of births to the population in the principal countries of Europe:—

In a total population, at different periods, of 232,673,000, there were 8,733,000 births; whence an average on the grand scale of one birth to every 26.6 individuals.

In France, however, the ratio has been steadily lessening, as seen by the following table:—

The position of France, as compared with the rest of Europe, in respect to the ratio of births to the population at different periods, is made still more manifest by another table:—

In Paris, strange to say, the decrease in the ratio of births to the population, though decided and steady, has not, in actual proportion, been as great as in the empire at large, showing that the cause, whatever we find it to be, is not one depending on the influence of a metropolis alone for its existence.

From 1817 to 1831 there averaged, in Paris, one birth to 26.87 inhabitants; but from 1846 to 1851, one to 31.98.[17]

Again, as might have been expected, we find that the proportion of still-births, in which we must include abortions, as has hitherto been done, however improperly, in all extensive statistics, is enormous, and is steadily increasing. To show this the more plainly, we first present a table of the ratio of still-births to the living births in the various countries of Europe.[18]

The proportion of still-births in the rural districts of France is governed by the same laws as in the metropolis.

In 363 provincial towns the ratio was, from

While districts more thinly populated gave, from

In Belgium, during a similar period, the ratio was much the same.[26]

The apparent discrepancy between city and country, noticed as equally obtaining in Belgium and France, is chiefly owing to greater negligence of the country officials in registering the still-births, and to the fact, as we have seen in Paris, that the ratio of births to the population is greater in the city than in the country at large.

Finally, while the proportion of still-births to the whole number is greatly increasing in Paris, so is the number of known abortions.

We omit, for the present, the evidence afforded by arrests and trials, which we might here have turned to account. At the Morgue, which represents but a very small fraction of the fœtal mortality of Paris, and in this matter almost only crime, there were deposited during the eighteen years preceding 1855, a total of 1115 fœtuses,[27] of which 423 were at the full term, and 692 were less than nine months; and of these last, 519, or five-sixths, were not over six months, a large proportion of them showing decided marks of criminal abortion.

Again, of the 692 fœtuses of less than nine months, deposited at the Morgue during these eighteen years, 295 were between 1836 to 1845, an average, at that time, of 32.7 yearly; and from 1846 to 1855 there were 397, an average of 44.1. During the means of these periods the births in France were as follows[28]:—In 1841, 1,005,203, and in 1851, 1,037,040, from which it is evident that there was deposited at the Morgue, in 1841, one infant, dead from abortion, to every 30,700 births; and in 1851, one to every 23,500. The increased ratio is seen to be striking; it will hereafter become apparent that the increase is far greater in reality.

We turn now to our own country, to which the City of New York holds much the same relation, as respects public opinion no less than in other matters, that Paris holds to France.

Since 1805, when returns were first made to the Registry of New York, the number, proportionate as well as actual, of fœtal deaths, has steadily and rapidly increased. With a population at that time (1805) of 76,770, the number of still and premature births was 47; in 1849, with a population estimated at 450,000, the number had swelled to 1320.[29] Thus, while the population had increased only six times since 1805, the annual number of still and premature births had multiplied over twenty-seven times.

The following table shows the rapidity of this increase:—The ratio of fœtal deaths to the population, was in

In the three years preceding 1849, there were registered in New York 400 premature births, and 3139 children still-born; a total of 3539, representing at that time a yearly average of some 1200 fœtal deaths. While it will be shown hereafter that a large proportion of the reported premature births must always be from criminal causes, and that though almost all the still-births at the full time, even from infanticide, are necessarily registered, but a small proportion of the abortions and miscarriages occurring are ever reported to the proper authorities, it will immediately be made apparent that at the present moment the abortion statistics of New York are far above those of 1849.

In the three years preceding 1857, there were registered in New York 1196 premature, and 4735 still-births,[30] a total of 5931, representing a yearly average of some 2000 fœtal deaths; showing that in the short space of seven years, the number of fœtal deaths in New York, already enormous, had very nearly doubled.

Again, in 1856, the total number of births at the full time in New York, was 17,755; of these, 16,199 were living;[31] proving that of children at the full time alone, setting aside the great number of viable children born prematurely, and the innumerable earlier abortions not recorded, one in every 11.4 is born dead.

From foreign statistics on a large scale, it is found that the proportion of still-births, even allowing a wide margin for criminal causes, does not, in those countries, drop below 1 in 15, and this in France, ranging from that number up to 1 in 30 or 40 of the whole number of births reported. We have already given a table upon this point.

In Geneva, out of 10,925 births occurring from 1824 to 1833, 1221 of them being illegitimate, and therefore to be supposed liable to a large percentage of deaths from criminal causes, there were only 646 fœtal deaths; a proportion of 1 in 17.

In Belgium there were 29,574 illegitimate births from 1841 to 1843, and of these, 1766 were born still;[32] 1 in 16.8.

In New York, from 1854 to 1857, there were 48,323 births, and 5931 still-births, at the full time and prematurely; or in other words, 1 to every 8.1 was born dead.

The ratio of still-births in New York, including, as we have seen, abortions, is steadily increasing, as seen by the following table,[33] in which we have compared the still-births, supposable perhaps of accidental value, with the general mortality, whose value is at least as accidental, if not more so. The evidence, like that already furnished, is astounding.

The frequency of abortions and premature births reported from the practice of physicians, and thus to a certain extent, but not entirely, likely to be of natural or accidental origin, is as follows:—

In 41,699 cases registered by Collins, Beatty, La Chapelle, Churchill, and others,[35] there were 530 abortions and miscarriages. Here all the abortions were known; their proportion was 1 in 78.5.

In New York, from 1854 to 1857, there were 48,323 births at the full time reported, and 1196 premature. Here all the abortions were not known, probably but a very small fraction of them; the proportion was 1 in 40.4.

Finally, we compare the recorded premature still-births of New York, with those still at the full time.

In the seventeen years from 1838 to 1855,[36] there were reported 17,237 still-births at the full time, and 2710 still prematurely; the last bearing the proportion of 1 to 6.3.

In the nine years, from 1838 to 1847, omitting 1842 for reasons stated below, there were 632 premature still-births, and 6445 still at the full time; a yearly average of 1 in 10.2.

In the eight years, from 1848 to 1855, there were 2078 premature still-births, and 10,792 still at the full time; an average of 1 in 5.

While in 1856 there were 387 still prematurely, and 1556 at the full time; or 1 in 4.02.

From these figures there can be drawn but one conclusion, that criminal abortion prevails to an enormous extent in New York, and that it is steadily and rapidly increasing. “We cannot refer,” was well said by a former inspector of that city,[37] “such a hecatomb of human offspring to natural causes.” We shall now endeavor to prove this point by other reasoning.

That our deductions concerning the population and births of France are perfectly legitimate, is admitted beforehand by the leading political economists of the day; ignorant as they were in its various relations of much of the evidence now brought forward, and of the conclusion to which the whole matter, directly and with almost mathematical exactness, is proved to tend.

“In France,” remarks De Jonnés,[38] “the fecundity of the people is restrained within the strictest limits.”

“The rate of increase of the French population,” says Mill, “is the slowest in Europe;[39] the number of births not increasing at all, while the proportion of births to the population is considerably diminishing.”[40]

We have seen, moreover, that in France the actual ratio of living births is constantly and rapidly diminishing, while the still-births, actual and proportional, are as fast increasing; that the premature births progress in similar ratio, and by deduction and actual statistics, the criminal abortions; and that these facts obtain not merely in the metropolis, but throughout the country.

What are the causes of these remarkable facts, need it now be asked? Let all allowances be made for certain conjugal habits extensively existing among the French, and by no means rarely imitated in this country, but the proportionate decrease of living births is too enormous, the actual and proportionate increase of premature and still-births is too frightful to be wholly explained thus, or as West,[41] Husson,[42] and De Jonnés[43] have thought, to be attributed to a mere progressive lack of fecundity. Reason and the evidence alleged compel us to believe that in great measure they are owing to criminal abortion.

Political economists allow the facts in France to be as we have stated. Their interpretation of the causes, unwilling as they would be to confess its ultimate bearing, we now compel to serve as evidence.

“They depend,” according to one writer,[44] “either on physical agents, especially climate, or on the degree of civilization of a people, their domestic and social habits.” “In France the climate is favorable to an increase of population, and this obstacle, this restraint, is found in its advanced civilization.”[45]

“This diminution of births,” says Legoyt,[46] “in the presence of a constant increase of the general population and of marriages, can be attributed to nothing else than wise and increased foresight on the part of the parent.”

“The French peasant is no simple countryman, no downright ‘Paysan du Danube;’ both in fact and in fiction he is now ‘le rusé paysan.’ That is the stage which he has reached in the progressive development which the constitution of things has imposed on human intelligence and human emancipation.”[47]

“These facts are only to be accounted for in two ways. Either the whole number of births which nature admits of, and which happen in some circumstances, do not take place, or if they do, a large proportion of those who are born, die. The retardation of increase results either from mortality or prudence; from Mr. Malthus’s positive, or from his preventive check; and one or the other of these must and does exist, and very powerfully too, in all old societies. Wherever population is not kept down by the prudence of individuals or of the State, it is kept down by starvation or disease.”[48]

But on the other hand, it has been forgotten that the alternative supposed does not exist in the case we have instanced. Marriages in France, unlike some other continental States, are continually increasing, and starvation and disease are yearly being shorn of their power. The authors quoted are therefore forced to a single position; that the lessening of births can only be owing to “prudence” on the part of the community.

Moreover, it is allowed by Mill and by Malthus himself,[49] that so much of the decrease as cannot thus be explained, must be attributed to influences generally prevalent in Europe in earlier ages, and in Asia to the present time. “Throughout Europe these causes have much diminished, but they have nowhere ceased to exist.”[50] Several of them have been named by the authority now quoted. Another, and greater than them all, he leaves unspoken; we are compelled to supply for him the omission.

The practice of destroying the fœtus in utero, to say nothing of infanticide, history declares to have obtained among all the earlier nations of the world, the Jews alone excepted, and to a very great extent. Aristotle defends it,[51] and Plato.[52] It is mentioned by Juvenal,[53] Ovid,[54] Seneca, and Cicero, and is denounced by the earlier Christians.[55] It was common in Europe through the middle ages, and still prevails among the Mohammedans,[56] Chinese,[57] Japanese,[58] Hindoos,[59] and most of the nations of Africa and Polynesia,[60] to such an extent, that we may well doubt whether more have ever perished in those countries by plague, by famine, and the sword.

It is evident, therefore, that the actual and proportionate increase of still-births, and, by induction, setting aside all probable cases of infanticide, of abortion, and the comparative increase of a population reciprocally influence and govern each other so completely, that from the one it may in any given case be almost foreseen what the other must prove.

It is impossible that the results quoted from the Registry of New York, any more than those of France, even if so far, can in any great measure be owing to natural causes alone. They are wholly inexplicable on any principles, “which do not recognize an amount of guilt at which humanity shudders.” In comparing that city with Paris, certain allowances must indeed be made; abroad, for the effects of wars and conscription, of despotism, and of migration outward; at home, for the effects of governmental laxity, and of migration inward. In both cities the amount of prostitution, an element not to be lost sight of, must be nearly the same; and in both, under the steady progress of science, medical and hygienic, the ratio of fœtal mortality, unless induced by criminal causes, may year by year be supposed to have been steadily diminished.

We have seen that in New York, in the absence of all influences that tend to keep down population in foreign countries, old and crowded, and under the yoke of despotism, the effects, attributable elsewhere to these causes, exist, and to a greater degree than in any other country;

That the ratio of fœtal deaths to the population had swelled from 1 in 1633, in 1805, to 1 in 340, in 1849; while in France, at a later period, 1851, they were only about 1 in 1000;

That the actual number of fœtal deaths in seven years, from 1850 to 1857, had very nearly doubled;

That the fœtal deaths, as compared with the total of births, elsewhere in cases of illegitimacy, where the results are the very worst, and where crime is confessed to have produced them, being 1 in 16.8,[61] had here, legitimate and natural, reached the frightful ratio of 1 in 8.1;

That the fœtal deaths, as compared with the total mortality, had increased from 1 in 37, in 1805, to 1 in 13, in 1855;

That the reported early abortions, of which the greater number of course escape registry, bear the ratio to the living births of 1 in 40.4, while elsewhere they are only 1 in 78.5;

And finally, that early abortions, bearing the proportion to the still-births at the full time of 1 in 10.2, in 1846, had increased to 1 in 4.02, in 1856.

It must be borne in mind that these statistics are positive, proving the existence of a certain number of pregnancies abruptly terminated. They cannot therefore be controverted by any argument regarding means for the prevention of pregnancy, no matter to what extent these may be used. Nor should it be forgotten that for every registered premature birth or abortion, innumerable ones occur that are never recorded.

Almost doubling therefore, as does New York, the worst of those fearful ratios of fœtal mortality existing in Europe, it is not strange that our metropolis has been held up, even by a Parisian, to the execration of the world. “On le voit (l’avortement)” says Tardieu, “en Amérique, dans une grande cìté comme New York, constituer une industrie véritable et non poursuivie.”

In this description of New York, we have that of the country.[62] The relative annual increase of the population existing throughout America, depending as this does chiefly on immigration, must not mislead us. The ratio of fœtal death in the metropolis surpasses what has ever been dreamed to obtain even in old countries, where innumerable more legitimate causes for it might be thought to exist. At Boston, which for morals is allowed to compare favorably with any city of its size in the Union, “undoubtedly more than a hundred still-births yearly escape being recorded, a large proportion of which, no doubt, result from criminal abortion.”[63] And our public prints, far and wide, even in the smaller towns and villages, constantly chronicle deaths from the commission of the crime.

In the State of Massachusetts at large, it has been found of late years that “the increase of the population, or the excess of the births over the deaths, has been wholly of those of recent foreign origin;”[64] this in 1850. In 1853 “it is evident that the births within the Commonwealth, with the usual increase, have resulted in favor of foreign parents in an increased ratio.”[65] In other words, it is found that in so far as depends upon the American and native element, and in the absence of the existing immigration from abroad, the population of Massachusetts is stationary or decreasing.[66]

“This result will doubtless surprise many, who will hardly think it possible. Is it general, or is it accidental? If it be general, how has it happened? What causes have been in operation to produce it? How is it to be accounted for?”[67] These questions have hitherto been unanswered. We shall find, however, their solution only too easy.

Amid such general thrift and wealth, there has been every reason for the native, like the foreign population, to increase. The preventive check of the economists, though undoubtedly present, can have played but an inferior part, as we shall prove. Emigration westward, the only apparent positive check, though extensive, cannot wholly account for the result.

But statistics exist by whose light, if acknowledged, we may read this important problem.[68]

In 1850, the ratio of births to the population in Massachusetts, foreign and American combined, was 1 in 36,[69] and in 1855, 1 in 34;[70] a ratio much smaller than that obtaining in most countries of Europe, and about equaling that of France, which, in 1850, was 1 in 37.

In 1855, the ratio of still-births, at the full time and premature, as compared with the living births, was 1 to 15.5.[71] In France it is 1 to 24; in Austria, 1 to 49.

In 1851, the ratio of fœtal deaths to the general mortality, was 1 to 13.3;[72] in 1855,1 to 10.4.[73] In New York City, in 1856, it was 1 to 11. In any city we should expect to find the proportion much greater than in a State at large; we here find it less.

The ratio of premature births to those at the full time, during the period from 1850 to 1856, was 1 to 26.1.[74] In New York, in 1857, it was 1 to 40, and in good medical practice it is found, as we have seen, to be 1 in 78.

In comparing the recorded abortions and premature births in the City of New York, with the still-births there occurring at the full time, we found that the former had varied from 1 in 10, in 1838, to 1 in 4, in 1856.

In the State of Massachusetts it appears, that during the fourteen years and eight months preceding 1855, there were recorded 4570 still-births, and 11,716 premature births and abortions,[75] the ratio being 1 abortion to .3 still-birth; or, in other words, it would appear from the statistics quoted, that the comparative frequency of abortions in Massachusetts is thirteen times as great as in the worst statistics of the City of New York. We are willing, however, we rejoice, to modify this statement, as in the earliest of the years quoted, returns from the City of Boston seem to have been imperfect or wanting,—and to confine our calculations to a more recent period.

From 1850 to 1855, the registration being much more accurate than before, and its results compiled with the greatest care, three years of the five by a noted statistician, Dr. Shurtleff, there were recorded in Massachusetts, 2976 still-births, and 5899 premature births and abortions,[76] the ratio being 1 abortion to .5 still-birth; in other words, the frequency of abortions as compared with still-births at the full time, seems at least eight times as great in Massachusetts as in the worst statistics of the City of New York.[77]

It must not be forgotten that while nearly every still-birth at the full time is necessarily recorded, there must be but very few registrations of the premature births and abortions actually occurring; that though the contrary seems here the case, such occurrences are generally, as they would be supposed, far more frequent in crowded cities than in country districts, or in a State at large; and that however great may be the influence of the prevention of pregnancy in repressing a population, these constitute proofs of pregnancies actually occurring, and frequently criminally terminated.

Few persons could have believed possible the existence of such frightful statistics, the result toward which they must be confessed inevitably to tend, or the dread cause from which they spring. Either these statistics must be thrown aside as utterly erroneous and worthless, or they must be accepted with their conclusions. We would gladly do the former, but they present too many constant quantities, in other respects,[78] for this to be allowed. Our own calculations have been made with care, and we have presented the elements on which they rest. In asserting the results, at once so awful and astounding, we desire to fix upon them the attention and scrutiny of the world.

We have seen that the increase of the population of Massachusetts by living births, is almost exclusively among its resident foreigners, Catholics, the rules of whose church will hereafter be shown to exercise an important influence in preventing the destruction of fœtal life. The conclusion cannot therefore well be avoided, that in these facts there exists the evident relation here intimated, of effects to cause.

With some certainty, then, even though statistics are as yet so imperfect, can we assert this conclusion, that frightful as is the extent to which the crime of abortion is perpetrated abroad, there is reason to believe that it prevails to an equal, if not even greater extent at home.

The frequency of arrests or trials for abortion afford, save indirectly, no criterion of the actual frequency of the crime. Our laws on this subject are at present so easily evaded, that officers of justice find it useless to trouble themselves with its prosecution; it is indeed “non poursuivie.” During the eight years from 1849 to 1858, no report for 1853 being rendered by the Attorney-General, there were 32 trials for abortion in Massachusetts; and in these there was not a single conviction.[79] An estimate that for every arrest for this crime, a thousand instances of its commission escape the vigilance or at least the hand of the law, would probably be within the truth. That such is the fact, is shown by the statistics of France, where, from 1846 to 1850, out of 188 cases that came to the knowledge of the police, for lack of decisive evidence, only 22 went to trial,[80] or about one-ninth of those legally investigated. From 1826 to 1853, there were in France 183 trials for abortion. At the above ratio this will give about 1700 cases judicially examined, a yearly average throughout the empire of between 50 and 60. Comparing this fact with the statistics of the Morgue already given, and with those of the actual decrease of the rate of increase of the population in Paris and in New York, and the increase of premature births, our statement of its frequency will not seem exaggerated.

The number and success of professed abortionists is notorious. If arrested, they are always ready with bribes or abundant bail. Hardly a newspaper throughout the land that does not contain their open and pointed advertisements, or a drug-store whose shelves are not crowded with their nostrums, publicly and unblushingly displayed: the supply of an article presupposes its demand. From these facts we may fairly estimate the extent of their nefarious traffic.

That families are seldom now found of the size formerly common, is also a matter of general remark. It were foolish to attempt to explain this by supposing that the present is an age of more moderate desire, or less unbridled lust; there is too much collateral proof against any such plea. Nor is it reasonable to think that women are generally becoming less productive of offspring than formerly, from any natural cause; or that the mass of our population, whatever the exceptions, are already so far advanced in knowledge, physiological or mechanical, or in practice, as in most cases to be able to regulate impregnation at will. The number of pregnancies must be nearly as abundant as ever; who can doubt what becomes of the offspring? We deny, simply and decidedly, the statement of some writers, that of every seven pregnancies, at least one always naturally terminates in abortion; this is uncorroborated by any reliable evidence, and is without doubt untrue.

Of the experience of physicians, there can be but one opinion. If each man of the profession were honestly to investigate this matter, and as honestly to avow the result, the mass of evidence would be overwhelming. This statement is in nowise invalidated by the experience alleged by many, especially among older practitioners; their evidence, based chiefly on lack of inquisition, or on the acknowledged less prevalence of the crime in former years, is merely negative, and as such only to be valued.

“We blush,” says Prof. Hodge, “while we acknowledge the fact, that in this city, (Philadelphia,) where literature, science, morality, and Christianity are supposed to have so much influence; where all the domestic and social virtues are reported as being in full and delightful exercise, even here” it prevails.[81]

Dr. Blatchford, of Troy, N. Y., writes me thus: “A crime which forty years ago, when I was a young practitioner, was of rare and secret occurrence, has become frequent and bold.” But why multiply instances of what must be the almost universal experience?

Applications for abortion are in many neighborhoods of constant occurrence, by no means among the poorer classes alone; and few women, unless also convinced by their physician of the enormity and guilt of that they intend, are deterred by his refusal from going elsewhere for aid, or from inducing abortion upon themselves.

But far greater proof than this we all possess, or can, if we desire. In but few of the abortions criminally induced is an application ever made to the physician in regular standing. He is oftener called upon after the crime has already been committed, to treat its acute and immediate effects. If he choose to take for granted in every case, that it has occurred from a perfectly natural cause, even where attending circumstances clearly point to the contrary, or to ask no questions, or to shut his eyes and his ears to evident and patent facts, he can of course do so, and perhaps persuade himself that the crime is rare; but if he reflect that upon himself more than on clergyman or legislator, often rests the standard of public morals, and act accordingly, he may arrive at a different result.

But this is not only the fact in acute cases of abortion. The same statement holds true, perhaps even to a greater extent, with regard to chronic obstetric disease. It is now acknowledged that much of this is really the consequence of past difficult or abnormal labors; that the more complicated or improperly interfered with the labor has been, the more certain are unfortunate sequelæ; and that the earlier in pregnancy its occurrence, the greater, as a general rule, the danger, not merely to the mother’s life, but to her subsequent health. In the treatment of these results, even more marked perhaps at a late period than earlier, the dependence of effect on cause, and their evident connection, can often be learned by a faithful inquirer, and in no small proportion of cases does the history go back without turn or the shadow of a doubt, to an induction of criminal abortion.

As a mere matter of individual experience, and from a practice by no means exceptional, the writer some time since reported no less than fifteen such cases as occurring to himself within hardly six months; and of these, all without exception were married and respectable women,[82] many of them of wealth and high social standing; and subsequently he was able, in consultation, to point out similar cases in the practice of gentlemen who, at that time, had denied the legitimacy of his conclusions. This experience must be a common one, only some lack the courage, as others lack the will, to investigate the matter; should they do so, they can come but to one result.

The frequency of maternal deaths, confessedly from criminal abortion, as gathered from published statements and mortuary reports, is also an item of importance in our summary of evidence. It is probable that in but few of the fatal cases really occurring, is foul play ever thought of, especially if the standing of the victim, and her previous history, have been such as to prevent or disarm suspicion; and on the other hand, while immediate death is undoubtedly a frequent result of induced abortion, it is, in proportion to the cases of its later occurrence, or of confirmed and chronic ill health, comparatively rare. From which it must be granted, that for every case thus made known, very many others must necessarily exist.

We are compelled, from the preceding considerations, to acknowledge not merely that criminal abortion is of alarming frequency among us, but that its frequency is rapidly increasing; this having been made apparent by each link in the chain of evidence that has been presented. Every effort that might possibly check this flood of guilt will, if delayed, have so much the more to accomplish. The crime is fast becoming, if it has not already become, an established custom, less honored in the breach than in the observance.

What are the causes of this general turpitude?

They also may be classified—

That public opinion should at present attach so little importance to the value of fœtal life, has already been shown to be owing in great measure to ignorance respecting its actual existence in the earlier months of pregnancy. Two other, and no less general, physiological errors prevail, extensively inculcated by popular authors and lecturers for their own sinister purposes.

One of these is the doctrine that it is detrimental to a woman’s health to bear children beyond a certain number, or oftener than at certain stated periods, and that any number of abortions are not merely excusable, as preventives, but advisable; it being entirely forgotten that the frequency of connection may be kept within bounds, and the times of its occurrence regulated, by those who are not willing to hazard its consequences; that if women will, to escape trouble or for fashion’s sake, forego the duty and privilege of nursing, a law entailed upon them by nature, and seldom neglected without disastrous results to their own constitutions, they must expect more frequent impregnation; that the habit of aborting is generally attended with the habit of more readily conceiving; and that abortions, accidental, and still more if induced, are generally attended by the loss of subsequent health, if not of life.

This error is one which would justify abortion as necessary for the mother’s own good; a selfish plea. The other is based on a more generous motive. It is that the fewer one’s children, the more healthy they are likely to be, and the more worth to society. It is, however, equally fallacious with the first, and is without foundation in fact. The Spartans and Romans, so confidently appealed to, gave birth probably to as many weakly children as do our own women; that they destroyed many for this reason in infancy, is notorious. The brawny Highlanders are not the only offspring of their parents; the others cannot endure the national processes of hardening by exposure and diet, and so die young from natural causes. But were this theory true even so far as it goes, the world, our own country, could ill spare its frailer children, who oftenest, perhaps, represent its intellect and its genius.

In asserting that the doctrines of the leading political economists for the last half century are accountable for much of the prevalence and increase of the crime, ignorant or careless as these writers all seem of the dire means that would be resorted to for the attainment of their ends, I have in no way exaggerated. Malthus remarks in his well-known Essay on Population, that “in the average state of a well-peopled territory, there cannot well be a worse sign than a large proportion of births, nor can there well be a better sign than a small proportion;”[83] and he endorses the assertion of Hume, subsequently proved false by Sadler,[84] that the permission of child-murder, by removing the fear of too numerous a family in case of marriage, tends to encourage this step, and thereby the increase of population; “the powerful yearnings of nature preventing parents from resorting to so cruel an expedient, except in extreme cases.”[85]

Sismondi[86] and a host of others might also be quoted, but a few extracts from a later writer, standard in this country at present, and taught in our universities, till very lately in that at Cambridge, for instance, will suffice.

“We greatly deprecate,” says Mill, “an increase of population, as rapid as the increase of production and accumulation.”[87]

“There is room in the world, no doubt, and even in old countries, for an immense increase of population. But although it may be innocuous, I confess I see very little reason for desiring it.”

“I sincerely hope, for the sake of posterity, that they will be content to be stationary long before necessity compels them to it.”[88]

“If the opinion were once generally established among the laboring class, that their welfare required a due regulation of the numbers of their families, only those would exempt themselves from it who were in the habit of making light of social obligations generally.”[89] “The principles contended for include not only the laboring classes, but all persons, except the few who being able to give their offspring the means of independent support during the whole of life, do not leave them to swell the competition for employment.”[90]

“When persons are once married, the idea never seems to enter any one’s mind, that having or not having a family, or the number of which it shall consist, is at all amenable to their own control. One would imagine that it was really, as the common phrases have it, God’s will and not their own, which decided the number of their offspring.”[91]

“In a place where there is no room left for new establishments,” says Sismondi, entirely ignoring the escapes offered by emigration and the increased importation of food, “if a man has eight children, he should believe that unless six of them die in infancy, these, and three of his own contemporaries of each sex, will be compelled to abstain from marriage in consequence of his own imprudence.”[92]

The direct result of remarks like these last, so pointed and plainly to be understood, is seen in the statistics I have so largely given. Would mankind, in following such advice, merely resort to greater abstinence before their means allow the expense of children, and to greater prudence after that period, no fault could be found; but when we discover criminal abortion thus justified and almost legitimated, we may well oppose to such doctrine the words of the indeed admirable Percival, “To extinguish the first spark of life is a crime of the same nature, both against our Maker and society, as to destroy an infant, a child, or a man.”[93]

Fear of child-bed, in patients pregnant for the first time, or who had suffered or risked much in previous labors, might formerly have been allowed some weight in excuse, but none at all in these days of anæsthesia. It has been urged, and not so absurdly as would at first sight appear, that the present possibilities of painless and so much safer delivery, by changing thus completely the primal curse, from anguish to a state frequently of positive pleasure, remove a drawback of actual advantage, and by offering too many inducements for pregnancy, tend to keep women in that state the greater part of their menstrual lives.

The consideration in detail of the various other causes to which I have alluded as accounting for the prevalence of abortion, together with that of the many special reasons offered in individual cases by way of excuse, I postpone for the present; merely premising that where ignorance is so evidently and so extensively its foundation, those who, possessing, yet withhold the knowledge which by any chance or in any way would tend to prevent it, themselves become, directly, and in a moral sense, responsibly accountable for the crime.

III. ITS VICTIMS.

We have hitherto discussed abortion in the abstract, as a crime, and in its relations to the community at large. We have seen its heinous nature, and its awful extent.[94]

The division of the subject now to be examined naturally presents itself under a fourfold aspect, numerical, relational, social, and medical; representing respectively the multitude of the victims of abortion, their character as parent and child, their standing in the community, and the degree, whether unto death or otherwise, of their suffering.

So far as statistics will at present allow, the numerical relations of the victims of abortion have already been fully discussed, the yearly thousands of fœtal and the frequent maternal deaths; one sacrifice at least, that of the child, being implied in every case.

Various incidental questions suggest themselves in this connection, curious, and by some, though erroneously, thought to be of judicial importance. Two of them will be here adverted to; they are the age or the mother and that of the fœtus.

It was formerly supposed, as in infanticide, that criminal abortion was seldom resorted to save for the concealment of shame; and as seductions, confessedly frequent in comparison with adultery, are most common in youth, it was laid down as probable that wilful abortions are most frequent between the years corresponding, from sixteen to twenty-five. Subsequent experience, however, has disproved this conclusion, and it is evident that the only real limit to its later occurrence is the menstrual climacteric. In many instances of marriage, abortions are resorted to at once, in others after the family has reached a certain point, and are thence regularly continued.

The age of the fœtus is of much more interest; not, as will ultimately appear, for the same reason as in cases of infanticide, but as proving to a certain extent one of the facts we have already considered, the error prevalent regarding the commencement of fœtal life.

It was Orfila’s opinion that criminal abortion was most frequent in the two first months of pregnancy. This would naturally have been supposed the case, as then some doubt might always obtain regarding its existence, and the excuse that the measures resorted to were for the purpose of preventing ill effect from an abnormal menstrual suppression would be more available. Devergie, on the other hand, was inclined to put the limits of greatest frequency at from three months to four and a half; while Briand and Chaudé thought the crime more common in the third month than the fifth, and in this last month much more frequent than even in the first or second. Tardieu also came to a similar conclusion.[95] He ascertained, that of 34 cases investigated by himself, 25 were in from the third to the sixth month, most in the third; 5 in the first two months; 4 in the seventh and eighth; or that the cases in the third month, or shortly after, were five times as numerous as at either an earlier or a later period, and nearly three times as numerous as in both combined.

Upon examining the Register of the Morgue, we find its statistics strikingly corroborative of these deductions. We have already seen that from 1837-54 there had been deposited at the Morgue 692 fœtuses of less than nine months. Of these,

It has been stated that 519, or five-sixths of them all, were not over six months, and it now appears that on a scale twenty times larger than that given by Tardieu from his own experience, nearly two-thirds of the fœtal deaths induced by abortion were in from the third to the sixth month of pregnancy; the three periods included giving a much larger proportion than any others, and the two last of them being almost identical. The extreme paucity shown by the above table in the first and ninth months, and the decrease in the seventh and eighth from those preceding, are worthy of remark. It is probable that the sudden increase may be attributed to mental reaction after the first shock occasioned by the absolute certainty of pregnancy is past; and the subsequent decrease to the fact that in many attempted criminal abortions during the later months children are born alive, the mother’s courage then proving insufficient for infanticide and its greater and more probable punishment.

The truth seems to be that while frequently the crime is committed in the very earliest period of pregnancy, in the belief that possibly all alarm may be false, in most cases the woman waits a month or two to be sure that she really is pregnant. After the sixth month the comparative rarity of the crime is undoubtedly owing to the fact that fœtal life is then rendered certain by the perceived movements of the child, the more strongly as pregnancy advances.

It was formerly thought that the induction of criminal abortion was confined to the unmarried alone; there exists, however, abundant proof to the contrary. Had such been the fact it would be reasonable to suppose that with the increase of marriages, the number of premature and still-births would have lessened. In proportion, however, as the number of marriages has increased, so has the number of fœtal deaths, and in similar ratio the number of living births has declined; proving, as Husson was compelled to acknowledge of Paris, “a decrease in the fecundity of legitimate unions,”[96] explainable in nowise but by a criminal cause. Direct statistics on this point are still wanting, and must come, almost entirely, from medical men. The writer’s published experience has been already referred to; subsequent practice has only confirmed it.

Again, the victims of abortion are not confined to the inhabitants of cities. Of the prosecutions in France during 1851-53, it appears that but little more than a tenth of the whole number occurred in the Department of Seine.[97] But we have already furnished much stronger evidence on this point.

Finally, though the excessive extravagance of the day, entailing as it does to so many an annual expenditure incommensurate with their income, is accountable in no small degree for the crime, yet it cannot always be alleged. There is too much reason to believe that with our communities it is as with others. In France it appears that the poor and uneducated have on the whole the largest families, contrary in some respects to established hygienic rules; while, on the other hand, the rich are inclined as far as possible to restrict the number of their children, often indeed stipulating beforehand, at marriage or previously, that such shall be few or none.[98]

But not only must we believe that this crime prevails in our midst to an almost incredible extent among the wealthy and educated and married; we are compelled to admit that Christianity itself, or at least Protestantism, has failed to check the increase of criminal abortion. It is not astonishing to find that the crime was known in ancient times, as shown by evidence previously given, nor that it exists at the present day among savage tribes, excused by ignorance and superstition; but that Christian communities should especially be found to tolerate and to practice it, does almost exceed belief.

In the previous remarks, the French have been compared with our own people, not merely because of their published statistics, but because from their loose morals and habits of life they might be thought to represent the extreme to which the crime would be likely to obtain among civilized nations. We have shown reason to suppose that we equal them in guilt, if we do not exceed them. Now it must be borne in mind that the French are Catholic; that the rules of that church do not, as has been generally supposed, permit abortion in the earlier months,[99] but that they rigidly exercise over fœtal life throughout pregnancy the most absolute guard and supervision;[100] instances of this in cases where craniotomy is supposed to be indicated, are familiar to every practitioner. The church, here omnipotent against the physician, and desiring that every created human being should receive the benefit of baptism, demands that fœtal death must have taken place previously to the operation proposed. It does not seek for the signs of fœtal life, but takes this for granted, and requires that its absence must be proved before allowing the removal of the child, even though this is necessary to save the mother’s life.

The rule runs thus: “Sedulam operam dent sacerdotes, ut quantum poterunt, impediant nefandum illud scelus quo adhibitis chirurgicis instrumentis infans in utero interficitur. Omnis fœtus quocumque tempore gestationis editus baptizetur, vel absolute, si constet de vitâ; vel sub conditione, nisi evidenter pateat eum vitâ carere.”[101]

In cases where instrumental delivery is absolutely necessary, the ceremony of baptism as ordinarily administered is of course impossible. But as this is deemed so important by the Catholic Church,[102] even to the sacrifice of the mother, any means of overcoming this obstacle, fatal to countless maternal lives, should be accounted, if found practicable, of the utmost importance. For this purpose, therefore, I do not hesitate to recommend intra-uterine baptism, the consecrated element being carried to the child, if too high to be reached by the hand, by a sponge and staff, or if necessary, by a syringe, as was long ago sanctioned by the theologists of the Sorbonne;[103] in the absence of a clergyman, if the case is urgent, the rite accounted so sacred being performed by the physician in attendance rather than to allow the death of the mother. I know that many of the profession, from fear of ridicule or dislike to sanction what they do not believe in, would shrink from such a duty. Is it not, however, due to humanity in every way to prevent this frequent murder? for such, by our apathy and neglect, the mother’s death in these cases becomes. Can we, as Christians, refuse any aid? I am not ashamed to acknowledge that for myself, though no Catholic, I have performed this intra-uterine baptism, where delivery without mutilation was impossible. I could neither conscientiously assert the child’s death, nor allow the mother to linger till it should occur, while the friends, in the absence of a priest, whose presence it was impossible to procure for many hours, would not permit the operation. Remonstrance was useless; had I refused I should have been morally responsible for the almost inevitable death of the woman; it was, therefore, simply my duty.

I shall now quote from an admirable letter I have lately received from the Catholic Bishop of Boston. The extracts are couched in so forcible language, and their spirit is so thoroughly Christian, that I need not apologize for their length, or that they recapitulate arguments I have already advanced.

“The doctrine of the Catholic Church,” remarks Bishop Fitzpatrick, “her canons, her pontifical constitutions, her theologians without exception, teach, and constantly have taught, that the destruction of the human fœtus in the womb of the mother, at any period from the first instant of conception, is a heinous crime, equal, at least, in guilt to that of murder. We find it distinctly condemned as such even as far back as the time of Tertullian, (at the end of the second century,) who calls it festinatio homicidii, a hastening of murder. The Pope, Sixtus the Fifth, in a bull published in 1588, subjects those guilty of the crime to all the penalties, civil and ecclesiastical, inflicted on murderers. It is denounced and reprobated in many other canons of the church.

“The reason of this doctrine (apart from the authority of the church) must, it seems to me, appear evident upon a little reflection. The very instant conception has taken place, there lies the vital germ of a man. True, it is hidden in the darkness of the womb, and it is helpless; but it has sacred rights, founded in God’s law, so much the more to be respected because it is helpless. It may be already a living man, for neither mothers nor physicians can tell when life is infused; they can only tell when its presence is manifested, and there is a wide difference between these two things. At any rate, it is from the first moment potentially and in radice a man, with a body and a soul destined most surely by the will of the Creator and by his law, to be developed into the fullness of human existence. No one can prevent that development without resisting and annulling one of the most sacred and important laws established by the Divine Author of the universe, and he is a criminal, a murderer, who deals an exterminating blow to that incipient man, and drives back into nothingness a being to whom God designed to give a living body and an immortal soul.

“From this it follows that the young woman whose virtue has proved an insufficient guardian to her honor, when she seeks by abortion to save in the eyes of man that honor she has forfeited, incurs the additional and deeper guilt of murder in the eyes of God, the judge of the living and the dead. Who can express what follows with regard to those women, who, finding themselves lawfully mothers, prefer to devastate with poison or with steel their wombs, rather than bear the discomforts attached to the privilege of maternity, rather than forego the gaieties of a winter’s balls, parties, and plays, or the pleasures of a summer’s trips and amusements?

“But abortion,” the Bishop continues, “besides being a direct crime against a positive law of God, is also an indirect crime against society. Admit its practice, and you throw open a way for the most unbridled licentiousness, you make woman a mere instrument for beastly lust. Every woman is somebody’s mother or daughter or sister or wife; or she bears all these relations at once. Whatever protection, therefore, we would claim for a woman because she stands in any of these relations to us, we should also extend to all women, because they bear some one of all these relations to others. Most assuredly, then, we should remove none of the safeguards that protect female virtue. But if we take away the responsibility of maternity, we destroy one of its strongest bulwarks.

“It affords me pleasure,” he concludes, “to learn that the American Medical Association has turned its attention to the prevention of criminal abortion, a sin so directly opposed to the first laws of nature, and to the designs of God, our Creator, that it cannot fail to draw down a curse upon the land where it is generally practiced.”[104]

Such being the doctrine of the Catholic Church, and statistics nevertheless proving that its so stringent statutes against the destruction of fœtal life, enforced alike by denouncement and excommunication, are constantly broken in Catholic France, it is more than probable, from the existence of this fact, in addition to all the various causes of the crime we have seen equally prevailing there and in this country, that the actual number of abortions is much greater with ourselves; at least with the American and native portion of our population. We have indeed shown that this is really the case in Massachusetts.[105]

Viewing this subject in a medical light, we find that death, however frequent, is by no means the most common or the worst result of the attempts at criminal abortion. This statement applies not to the mother alone, but, in a degree, to the child.

We shall perceive that many of the measures resorted to are by no means certain of success, often indeed decidedly inefficacious in causing the immediate expulsion of the fœtus from the womb; though almost always producing more or less severe local or general injury to the mother, and often, directly or by sympathy, to the child.

The membranes or placenta may be but partially detached, and the ovum may be retained. This does not necessarily occasion degeneration, as into a mole or hydatids, or entire arrest of development. The latter may be partial, as under many forms, from some cause or another, does constantly occur; if from an unsuccessful attempt at abortion, would this be confessed, or indeed always suggest itself to the mother’s own mind? Fractures of the fœtal limbs prior to birth are often reported, unattributable in any way to the funis, which may amputate indeed, but seldom break a limb. A fall, or a blow, is recollected; perhaps it was accidental, perhaps not, for resort to these for criminal purposes is very common. In precisely the same manner may injury be occasioned to the nervous system of the fœtus, as in a hydrocephalic case long under the writer’s own observation, where the cause and effect were plainly evident. Intra-uterine convulsions have been reported; as induced by external violence they are probably not uncommon, and the disease thus begun may eventuate in epilepsy, paralysis, or idiocy.

To the mother there may happen correspondingly frequent and serious results. Not alone death, immediate or subsequent, may occur, from metritis, hemorrhage, peritonitic or phlebitic inflammation, from almost every cause possibly attending not merely labor at the full period, comparatively safe, but miscarriage,—increased and multiplied by ignorance, by wounds and violence; but if life still remain, it is too often rendered worse than death.

The results of abortion from natural causes, as obstetric disease, separate or in common, of mother, fœtus or membranes, or from a morbid habit consequent on its repetition, are much worse than those following the average of labors at the full period. If the abortion be from accident, from external violence, mental shock, great constitutional disturbance from disease or poison, or even necessarily induced by the skilful physician in early pregnancy, the risks are worse. But if, taking into account the patient’s constitution, her previous health and the period of gestation, the abortion has been criminal, these risks are infinitely increased.[106] Those who escape them are few.

In thirty-four cases of criminal abortion reported by Tardieu, where the history was known, twenty-two were followed, as a consequence, by death, and only twelve were not. In fifteen cases necessarily induced by physicians, not one was fatal.[107]

It is a mistake to suppose, with Devergie, that death must be immediate, and owing only to the causes just mentioned. The rapidity of death, even where directly the consequence, greatly varies; though generally taking place almost at once if there be hemorrhage, it may be delayed even for hours where there has been great laceration of the uterus, its surrounding tissues, and even of the intestines;[108] if metro-peritonitis ensue, the patient may survive for from one to four days, even indeed to seven and ten. But there are other fatal cases, where on autopsy there is revealed no appreciable lesion; death, the penalty of unwarrantably interfering with nature, being occasioned by syncope, by excess of pain, or by moral shock from the thought of the crime.[109]

That abortions, even when criminally induced, may sometimes be safely borne by the system, is of little avail to disprove the evidence of numberless cases to the contrary. We have instanced death. Pelvic cellulitis, on the other hand; fistulæ, vesical, uterine, or between the organs alluded to; adhesions of the os or vagina, rendering liable subsequent rupture of the womb, during labor or from retained menses, or, in the latter case, discharge of the secretion through a Fallopian tube and consequent peritonitis; diseases and degenerations, inflammatory or malignant, of both uterus and ovary; of this long and fearful list, each, too frequently incurable, may be the direct and evident consequence, to one patient or another, of an intentional and unjustifiable abortion.

We have seen that in some instances the thought of the crime, coming upon the mind at a time when the physical system is weak and prostrated, is sufficient to occasion death. The same tremendous idea, so laden with the consciousness of guilt against God, humanity, and even mere natural instinct, is undoubtedly able, where not affecting life, to produce insanity. This it may do either by its first and sudden occurrence to the mind; or, subsequently, by those long and unavailing regrets, that remorse, if conscience exist, is sure to bring. Were we wrong in considering death the preferable alternative?

IV. ITS PROOFS.

It is by no means an easy thing in all cases to obtain evidence that an abortion has occurred; still more difficult, that it has been intentionally induced. As most laws read, it is necessary at the outset to prove the existence of pregnancy; as many still stand, it must be shown that the woman has quickened. These requisitions are unwise and unjust, and under them, if insisted on by adroit counsel, it is almost useless to pursue prosecution. In the earlier months, before quickening has occurred or the fœtal pulsations have become evident to the ear, it is impossible, as I have elsewhere insisted,[110] ever to be sure of the existence of pregnancy, and yet attempts at its termination are then in no degree less criminal. The only infallible sign of pregnancy is the sound of the fœtal heart, not always to be detected, even by the double stethoscope.

Putting aside, therefore, the question of the existence of pregnancy and of fœtal life, as taken for granted on the one hand by the attempt at their termination, and as proved on the other by this result, it is found that the evidence of abortion classifies itself into proofs of its occurrence, of its commission, of the criminal intent, and of the identity of the party accused.

1. The Occurrence.

The abortion may perhaps be known to have taken place by confession or witness; in either case requiring no further demonstration. Instances are not rare, however, where suspicion merely may exist, and the fact must be proved by collateral testimony; and this in two cases, where the woman is still alive, and where she is dead.

The general history of the case, even if pregnancy and delivery be equally denied, may throw some light on its true nature. This as given, no matter how affected by the evidence of interested or implicated witnesses, may be probable or improbable; as in an instance related by Burns,[111] where her sudden lessening in bulk was ascribed by a patient to a night’s profuse sweating, of course an impossible result. But, on the other hand, care is necessary lest from its rarity of occurrence or its improbability, the reality should be disbelieved. Cases are on record where innocent women, suffering from retention of menses or from ovarian disease, and suddenly relieved by a critical and spontaneous discharge, have on suspicion of abortion lost character and even their lives. If the statements contradict each other, this fact of itself may reveal the truth.

There are at times difficulties in proving delivery at the full period of pregnancy, as is well known. The earlier in gestation, if the patient survive, the more these difficulties are enhanced. The occurrence of normal labor cannot be discovered with any certainty by a personal examination after eight days have elapsed,[112] those of an early abortion not even after only one or two.[113] The signs of delivery that are well marked at the full period, the general symptoms then obtaining, the size of the uterus, ascertained by the hand and sound, lacerations of the perineum and cervix, the lochia, the state of the breasts, abdomen, vagina, and vulva, all of little value except in conjunction with each other, are proportionately less defined as we go back, until near the commencement of pregnancy it becomes impossible to distinguish the abortion from severe hemorrhage or from menorrhagia, unless by detecting the impregnated ovum.

If the patient is dead, and too long time have not elapsed since the supposed occurrence, decision is often more easy; many facts in the case being generally known, and concealment being less possible. If the ovum, but partially detached, be still retained, the fact is self-evident; if it has been discharged, and concealed or lost, there will still be present the recent corpus luteum and other well-known signs, in proportion to the period of the pregnancy. Allowance, in this latter respect, must be made for the possibility of partial uterine contraction after death, as is sometimes known to occur at the full period;[114] the writer has seen it to a marked degree some time previous to the expiration of pregnancy, at a Cæsarean section after death from laryngitis, occurring in the Edinburgh Maternity Hospital.

2. The Commission.

Allowing the fact of the occurrence of an abortion to be proved or granted, it becomes necessary to discover its cause, whether accidental, natural, or intentional. Of this it will be found that the proofs are both positive and negative; drawn from the history of the case and from personal examination of the patient and the fœtus. The value of each of these elements is increased in proportion as it is compared with the other; but “this I wish most especially to have noted, that wherever there is a miscarriage, there is always present some actual, perceptible, and often tangible cause.”[115]

The story of the patient may be to one effect, and that of other parties involved, to a very different one; if the first is corroborated by the second, it may again, as has already been remarked, present or not the likelihood of truth. If the habit of aborting at a certain period has existed, which of course cannot be alleged in a first pregnancy, if the patient has had sudden fright or grief, or is known to have been accidentally injured, the chances are to be considered in her favor, in the absence of proof to the contrary. The converse of this statement, however, must not be considered as always and necessarily true. Women have time and again suffered shipwreck, undergone torture, been thrown from a height, and otherwise severely injured, and yet have escaped miscarriage; while, on the other hand, they may repeatedly have aborted before, and yet passing safely their usually critical point, may without trouble go on to the full period. In still other cases there may exist local disease, pelvic or uterine, which, if left alone, would of itself occasion miscarriage.

The character of the abortion is not without its value, whether occurring suddenly and without apparent cause, or preceded by maternal disease or the signs of fœtal death.

Examination of the mother, though proof that she has herself been injured is not necessary to establish the crime, may reveal local wounds and mutilations; or their absence, which, however, by no means goes to prove that violence may not have been inflicted; and, on the other hand, as in a case lately reported by the writer to the Boston Society for Medical Observation, traces of former violence in instrumental or other labors may remain, and to such an extent as to give to the touch every character of a recent and criminal interference.[116] The fœtus may show pre-existing and natural disease sufficient to account for the effect apparent, or may present the signs of direct and intentional interference. Recent scars of venesection on the arms and feet, and of leech-bites, especially on the upper and inner parts of the thighs, are suspicious in a patient who has aborted, unless they were evidently required by the state of her previous health. If signs of irritant injections into the vagina are present, they are ground for more than suspicion.

The instrument, where used, with which the operation has been performed, may sometimes be identified; though this is almost impossible unless by confession or direct testimony. The weapons resorted to by the unprofessional are various; knitting kneedles, pen handles, skewers, goose quills, pieces of whale-bone, and even curtain rods, are among the number. The finger alone, except where the uterus is prolapsed or can be depressed, and the os is very soft and patulous, is seldom if ever sufficient for the deed. If a physician be accused, it is important to notice with what instrument the crime is said to have been performed, if before witnesses, and whether it was introduced openly or under pretence of a digital examination.

The sensations of the patient at the time, are also in different cases unlike each other. In some instances nothing unusual is observed, in others a prick or probing, but in most an acute and tearing uterine pain, often followed by syncope or an hysterical attack. Slight but immediate hemorrhage generally occurs, save in professional cases, increased by compelled exercise, prolonged baths or ergot.

The time ensuing before the expulsion of the fœtus is an element not to be lost sight of. In 34 cases reported by Orfila, the minimum observed was 13½ hours, the maximum 6 days; in 36 cases by Tardieu, the minimum was 5 hours, the maximum 11 days. Of these last cases, however, 29 were within 4 days.

It cannot be alleged in excuse that the sex of the child, so fatal in advanced pregnancy, has any influence in producing early abortion. In 293 premature still-births reported by Collins,[117] 146 were male and 147 female, bearing the proportion of 100 to 100. Nor can the plea of Drs. Gordon Smith, Good, Paris, and Copeland, that as a fœtus born before the seventh month has a slender chance of surviving, its murder should be viewed with leniency,[118] be allowed. Such arguments, that the perils and dangers to which the fœtus is naturally subjected should lessen the criminality of attempts at its destruction, are without foundation, and when advanced by physicians are utterly unworthy the profession.

3. The Intent.

We shall hereafter discuss the perpetrators of the crime, and the emergencies which can alone justify the induction of premature labor or obstetric abortion. We shall see that by none save medical men can such necessity ever be known; it is, therefore, apparent that the intent may frequently be judged from the relation of the parties implicated, and the excuses offered by them. It will also often appear from the other circumstances of the case. That the child was likely to be born a bastard, and to be chargeable to the reputed father, would be evidence to that effect; and proof of the clandestine manner in which the drugs were procured or administered would tend the same way.[119]

On the part of the mother, bastardy also, the having denied the existence of pregnancy, concealed its expelled product, expressed an intention or desire to abort, made a known application for this purpose, visited a notorious abortionist, taken alleged specifics, or given similar advice to a friend, are all presumptive evidence; as are also the having neglected to send for aid when needed, or refused to take precautions or remedies when prescribed. In like manner, evidence of criminal intent would seem apparent, if drugs generally supposed abortive had been advised or given to a pregnant woman, or violence of any kind usually productive of the effect in question, even to tooth-drawing, had been hastily or unnecessarily used.

Here, as in many other cases where no malice is expressed or openly indicated, the law will imply it; if, for instance, a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved.[120] Malice is not confined in its legal definition to ill-will toward one or more individual persons, but is intended to denote an action flowing from any wicked or corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent on mischief; and, therefore, it is implied from any deliberate or cruel act against another.[121] The rule is, that the implication of malice arises in every such case, and all the circumstances of accident, necessity, or infirmity are to be satisfactorily established by the party charged, unless they arise out of the evidence and attending circumstances; if they do not, there is nothing to rebut the natural presumption of malice. This rule is founded on the plain and obvious principle that a person must be presumed to intend to do that which he voluntarily and wilfully does in fact do, and that he must intend all the natural, probable, and usual consequences of his own act.[122]

The standing in society of the accused, unless notoriously bad, should of course be allowed to weigh but little; the less the likelihood of the crime, the greater, from example and previous education, its guilt.

If violent purging or vomiting have been resorted to without any apparent reason, or to a greater extent than ordinarily prescribed or required; or if leeches have been applied to the thighs, to the number of an hundred or more, as instanced by Tardieu, or the like, there is certainly ground for strong suspicion. And here it is that the criminal liability of careless or ignorant physicians becomes evident. In cases such as we have referred to, it would be very difficult for a successful defence to be offered, providing the pregnancy had been suspected by those not implicated, were the statutes on abortion properly drawn and enforced.

It has been ruled, and very justly, that attempts at the crime, though unsuccessful; or effective, yet the ovum retained as mole, hydatids, skeleton, mummy, or putrilage; and whether the woman be pregnant or not, and if pregnant, whether the child be alive, dead, or, abnormally developed or degenerated, should be amenable as though fully consummated.[123] We have seen the frequent difficulty in proving fœtal life; the attempt at its destruction shows the belief in its existence, and the intent. The proofs will here of course be of a different nature. The signs of delivery will be absent, and all evidence from the product of conception, unless the mother’s death ensue; in which event, as in the other fatal cases we have considered, and on the principle just laid down, procedure might be had on the charge either of abortion or homicide; but it must not be forgotten, as we early pointed out, that immediate death from the shock may occur, and no lesion of any kind be found. The patient or parties interested are proved by the attempt to have supposed pregnancy existing, and to have behaved as though this were the fact.

The age of the patient is not of consequence; nor is that of the fœtus, save as corresponding with the alleged period of pregnancy, in case any doubt exist as to its own identity or that of the mother, and as bearing on the statement we have already attempted to prove, that criminal abortion is comparatively rare after the period of quickening, and, therefore, on the probability of intent. The number of the pregnancy is also wholly immaterial, different as are the causes alleged for its criminal induction, and equally liable in youth and age, as women seem to be, to accident or placental disease. Whitehead and West are of opinion that abortion naturally resulting is most common after the sixth pregnancy,[124] but the point needs further investigation.

Among the proofs of intent must be included, as we have seen, the excuses offered by the accused or suspected party, and the means resorted to for consummation. These we now proceed to examine.

It will be evident that the plea of necessity can be made by none but a medical man. We shall show that the cases where abortion is legitimated by the rules of science are extremely few, and that for safety’s sake their applicability should in no instance be allowed to rest upon a single opinion.[125] For all others beside the physician there can be no allowable excuse except, in the mother’s case, insanity; which, however common in the true puerperal state, and often no doubt then showing itself by infanticide, has in early pregnancy, and to any extent, still to be observed. Other pleas as offered by the mother, ignorance of pregnancy or of fœtal life, duress, personal health or that of her family, accident, carelessness, fear of child-bed, malpractice on part of the attendant, we have already considered at sufficient length. It is sometimes effected in hatred of the husband or in jealousy, sometimes for concealment of shame; excuses of little more value than those of extravagance or fashion. Constitutional predisposition can hardly be asserted, unless the miscarriage have been preceded by others; very many ineffectual attempts are on record, although the existence of such predisposition was evident. It will often be alleged that the measures instituted were to prevent instead of to effect the miscarriage, and that this has resulted in consequence merely of an excess of good-will; the sophistry is generally apparent.

The means resorted to are for two purposes: on the one hand, to prepare the patient for the abortion and preliminarily to lessen her danger, or to conceal the character of those, on the other hand, which really occasion it, and for this end used prior or subsequently to them. We may yet take occasion to consider these several agents in some detail; it remains only to remark that their use in any given case must be compared with what was then actually needed, or would have been required had the abortion been justifiable and necessary.

Certain drugs, ergot and savin for instance, the class of so-called abortives, popularly considered specific, are always suggestive of evil intent. They would not be used, were abortion necessary, by a well-informed practitioner, caring for the life of the parent or fœtus. The same is true, though of course to a more limited extent, of all over-drugging, over-manipulation, or over-exertion by a pregnant woman, by whomsoever advised or performed. In every instance it is necessary to compare the cause alleged with the effects observed, and to judge of it from these. Where direct operative manœuvres are suspected or charged, the processes or instruments, the results, immediate and consecutive as well as remote, the period elapsing before their occurrence, must all be taken into careful consideration.

But, on the other hand, it is immaterial what was the agent, and whether or not it would produce abortion, if it was believed capable of this effect, and employed or administered with that intent. If the person charged knew that the woman was with child, and the probable effect of the agent administered, this is good presumptive evidence that the intent was to produce the miscarriage, and where the effect of abortion is actually thus produced, it will materially aid the presumption of such intent.[126]

It was stated early in this inquiry that a difference existed between the methods of investigation, as regards the examination of the fœtus, proper in abortion and infanticide. The reason of this has been pointed out by Tardieu.[127] In the latter case, the whole matter turning upon the questions whether the child was born living or dead, and in which of these states it was injured, it becomes necessary to prove one or the other of the alternatives, but in abortion they are intrinsically of no importance whatever. The only points then to be decided are, was the birth premature, and if so, was it intentional, and if so, was it absolutely essential and to save either maternal or fœtal life. Except as bearing on these questions, therefore, it is of no consequence whether wounds were inflicted, whether the lungs had been inflated, whether the fœtus was viable, or even whether it was ever discovered.

In their place, however, these points are each important, but only as bearing on the main facts to be determined. In a case, for instance, as that related by Ollivier d’Angers, where the fœtus, though very immature, lives several hours after its expulsion, this fact alone will preclude the idea of a slow and progressively acting cause like most forms of abortive disease, and will point to some direct interference, by means suddenly terminating the pregnancy without injuring the fœtus.

And so in other cases, especially of sudden maternal death, it is of importance to ascertain as nearly as possible the period at which death of the fœtus took place. If the two were coincident, the deduction might be other than if the latter were proved to have preceded the former by several days. The differences observed between putrefaction and decomposition in utero and in the open air must not be lost sight of. In the one case, according to Orfila, Devergie and Martin, Moreau, P. Dubois, Danyau, Cazeaux, Tardieu, and my own experience, a uniform and characteristic reddish-brown hue obtains in proportion to the time of retention after death, varied perhaps by the action of the amniotic fluid;[128] the fœtus wrinkles, dries, and becomes mummified, unless in earliest pregnancy, when it generally resolves itself into a gelatinous mass.

If the cervix, the portion of the uterus most frequently wounded, is found punctured or lacerated, while the ovum is still retained, there is reason for suspicion; if the membranes are torn and extensively detached, while the cervix is but little dilated, such is increased; and it is made almost a certainty, if with the latter condition, nothing remain of the ovum in the uterine cavity but lacerated fragments. Here the abortion would probably not merely have been intentionally induced, but by the direct introduction and agency of instruments.

Wounds of the fœtus are much rarer than those of the mother, and are usually simple pricks of the skin marked by blackish coagula or extravasations; which, if upon the skull and unless care be used, are liable to be simulated by clots casually adhering to the hair or scalp. If the wound be deeper, its course may be traced by dissection. Its situation varies; Devergie thinking it always on the back and buttocks, while Tardieu, with some warmth, would restrict its location to the top of the cranium. This difference is easily explained by variations in the time of pregnancy, and in consequence partly, as may also depend on its life or death, in the presentation of the child. The rarity of their occurrence, though denied by Taylor[129] and other medical jurists, might, however, be expected, and is readily accounted for; the instruments used by ignorant persons seldom entering the os, however severely wounding the cervix, and where they do enter, usually only piercing the membranes; against which, except toward the end of pregnancy, in a deficiency of liquor amnii, or in labor, the fœtus can hardly be said to forcibly press.

4. The Identity of the Party Accused.

Most of the points here involved having already been incidentally considered, we will not repeat them. The circumstances and history of the case, the relative correspondence of different testimony, the allegations of the accused, will all bear directly upon the question at issue.

In trials for abortion, of all others, the medical witness and the advocate should bear in mind their liability to error; the juror and the judge the fact that innocent persons are at times wrongly accused, often by the true criminals themselves.

In defence, it must either be pleaded that the alleged abortion did not occur, that it was accidental or natural, that it was necessitated, or that it was induced by another than the individual charged.

The first of these pleas is seldom offered except in the earliest months of pregnancy, and would be invalid if an attempt at the abortion could be proved. In default of this, however, where the ovum has been lost, or has passed unnoticed, the fact that the sanguineous effusion was hemorrhagic and attended with clots, would, in the absence of any uterine disease sufficient to account for this, be so far presumptive evidence; to be corroborated or not by the history of the case. Moles and hydatids are now generally allowed to be mere transformations of the product of conception; their premature discharge, therefore, equally an abortion.

In answer to the second plea, the importance of several points must be borne in mind. It has been well put by Tardieu that it is wrong to commence, as advised by most authorities on the subject, by enumerating all the natural and accidental causes liable to have produced the abortion. On the contrary, the signs and proofs of criminal violence should first be sought, and these compared with the allegations of witnesses and the possibility of a natural or accidental origin. The traces of falls, contusions, and wounds must be found, not believed on mere allegation; coincidences must be guarded against, equally with untruth.