[1] So far as the writer is aware, there exists, in this or any other
language, no paper upon the subject at all commensurate with its
importance. The chapters devoted to it in medical text-books, though
some of them admirable so far as they go, especially that of Beck, are
defective and often erroneous; while but little information of any value
can be found elsewhere. In the French periodicals have appeared articles
on special points hereafter referred to; in Great Britain able arguments
regarding the commencement of fœtal life have been made by Radford,
(1848;) and in this country, with remarks on the frequency of the crime,
by Hodge, of Philadelphia, (1839 and 1854,) and by the present Professor
of Obstetrics in Harvard University, (1855.) To the latter, his father,
and to the journalists (Drs. Morland and Minot, of Boston,) by whom
the effort then made was so warmly and eloquently seconded, the writer
acknowledges his indebtedness for the thought of the present undertaking.
[2] As quoted by Hodge. Introductory Lecture, p. 15.
[3] Hippocrates states that this is a fact, and that he had found
the difference of a whole month, which he attributes to the “greater
strength” of the male.—(_On the Nature of the Child_, Sect. 11.) I am
unaware that this point has been investigated by any modern writer.
[4] “These sounds may sometimes be distinguished several weeks before the
mother becomes conscious of the motions of the child.”—NÆGELE; _Treatise
on Obstetric Auscultation_, p. 50.
[5] Memoire sur la cause des Présentations de la Tête, &c.—_Mém. de
l’Acad. Roy. de Méd._ tome ii.
[6] A. PARÉ; English Trans., p. 899. HUGH CHAMBERLEN’S Trans. of
Mauriceau on _Diseases of Women with Child_, p. 147, Note. ENNEMOSER;
Historisch-physiologische Untersuchungen über den Ursprung und das Wesen
der menschlichen Seele; Bonn, 1824. CABANIS; Rapports du Physique et du
moral de l’Homme, tome ii. p. 431.
[7] Ed. _Med. and Surg. Journ._, Jan. 1855, p. 50.
[8] SIMPSON, _Obstetric Works_, vol. ii. p. 88.
[9] Many of the statistics now presented we have also embodied in a paper
upon the decrease of the rate of increase of population now obtaining
in Europe and America, read before the American Academy of Arts and
Sciences, December 14th, 1858, as a contribution to the Science of
Political Economy.
[10] MOREAU DE JONNÉS, Eléments de Statistique, 1856, p. 202.
[11] Journal des Economistes, March and May, 1847.
[12] Edinburgh Review, Jan. 1857, p. 342. Med. Times and Gazette, May,
1857, p. 462.
[13] Lehrbuch der Politischen Oekonomie.
[14] Sur l’Homme et la Developpement de ses Facultés, tome i. ch. 7.
[15] Journal des Economistes, May, 1847.
[16] MILL, Principles of Political Economy, i. p. 343.
[17] HUSSON, Les Consummations de Paris, 1856.
[18] Compiled from DE JONNÉS.
[19] 10,925 births; 646 still-births.
[20] Births, 52,538; still-births, 2624.
[21] Compiled from QUETELET, Theory of Probabilities, p. 152; 406,073
living births; 16,767 still-births.
[22] Births, 7,593,017; still-births, 257,068. 1839-41, 1 to 26; ELLIOTT,
Hunt’s Merchants’ Magazine, July, 1856.
[23] 2080 still-births.
[24] 2349 still-births.
[25] DE JONNÉS, loc. cit., p. 239.
[26] QUETELET, loc. cit., p. 152.
[27] Register of the Morgue.
[28] DE JONNÉS, loc. cit., p. 193.
[29] Report of City Inspector of New York for 1849.
[30] City Inspector’s Report for 1856.
[31] Ibid.
[32] Compiled from QUETELET, loc. cit., p. 152.
[33] Compiled from City Inspector’s Report for 1855.
[34] Ibid. for 1856.
[35] CLAY, Obstetric Cyclopedia, p. 21.
[36] Separate records of the premature births in New York were not made
before this period. They were not rendered in 1842; I have therefore
omitted in the calculation the still-births of the same year. For a
series of the official reports, I am indebted to the present City
Inspector, Mr. Geo. W. Morton.
[37] Report of 1849.
[38] Loc. cit., p. 195.
[39] Loc. cit., i. p. 344.
[40] Ibid., p. 343.
[41] Med. Times and Gazette, June 1856, p. 611.
[42] Les Consummations de Paris.
[43] Loc. cit.
[44] DE JONNÉS, loc. cit., p. 194.
[45] Ibid., p. 195.
[46] Journal des Economistes, 1847.
[47] MILL, loc. cit., i. p. 336. The italics are my own. I shall
hereafter refer back to this passage.
[48] Ibid., i. p. 417.
[49] Essay on Population.
[50] MILL, loc. cit., i. p. 417.
[51] Travels of Anacharsis, v. p. 270.
[52] Ibid., iv. p. 342.
[53] Satires, vi., v. 592.
[54] Amor., lib. 2.; Heroïdes, epist. 2.
[55] REEVE’s Apologies.
[56] BLAQUIERE, Letters from the Med., pp. 90, 184; SLADE, Records of
Travels, ii. p. 162.
[57] BARROW, Travels in China, p. 113; DE PAUW, Philosoph. Dissert;
MEDHURST, China, &c., p. 45; SMITH, Exploratory Visit, &c., i. p. 53.
[58] GOLOWNIN, Memoirs of a Captivity, iii. p. 222.
[59] MOOR, Hindoo Infanticide, p. 63; BUCHANAN, Christian Researches in
Asia, p. 49; WARD, View of the History, &c., of the Hindoos, p. 393.
[60] For a long list of authorities on these points, see BECK, ii. p.
389, et seq.
[61] Belgium.
[62] Local exceptions to this general rule will of course be found
to exist, as is always the case with laws based on mere statistics,
especially, as here, where reports to the registry are liable, for
evident reasons, to be withheld. Thus it appears from Dr. Jewell’s
collections (this Journal, March, 1857, p. 277,) that the proportion
of still-births in Philadelphia was, in 1856, only 1 in 913 to the
total population, and 1 in 20.1 to the general mortality, against which
evidence must be placed that which we subsequently furnish from Prof.
Hodge.
[63] MSS. Letter from City Registrar, March 26, 1857.
[64] CHICKERING, Comparative View of the Population of Boston, 1850. City
Document, No. 60, p. 44.
[65] Twelfth Registration Report to the Legislature of Massachusetts,
1853, p. 116. The truth of this statement has been corroborated by Dr.
Curtis, in his Report on the Census of Boston in 1855. City Document,
1856, p. 22. Also, Fifteenth State Registration Report, 1856, p. 179.
[66] “Had the rate of the annual increase of the numbers living under
the age of five (3.13 per cent.) resulted entirely from the increase of
births in a permanent population, the number of births of 1855 (in the
districts where the ratio of the registered deaths to the population was
greater than one to sixty-three, 166 of the 331 towns) would have been
24,457, instead of 23,481, the number registered. On the other hand, had
the increase resulted wholly from migration, (the annual number of births
in the permanent population being constant,) the number of births would
have been only 22,956. The number of births registered is somewhat nearer
the latter than the former of these two values.
“Assuming the correctness of the births, deaths, and population, in the
selected districts, it appears that 35 per cent. of the increase of the
population under the age of five was due to births in the permanent
portion of the population, and 65 per cent. due to the movement of the
migratory portion; also, that 38 per cent. of the increase of population
at all ages was due to excess of births over deaths, leaving 62 per cent.
to be accounted for by excess of immigration over emigration.”—ELLIOTT,
The Laws of Human Mortality in Massachusetts; Proceedings of Am. Assoc.
for Adv. of Science, Montreal, 1857, p. 57.
[67] CHICKERING, loc. cit., p. 49.
[68] The tables now presented, we have compiled from the fifteen
published Registration Reports of the State of Massachusetts. Advance
sheets of the Sixteenth Report have kindly been furnished me while this
article is passing through the press, by the compiler, Dr. Josiah Curtis,
of Boston. The premature births for 1856 and 1857 are not given in the
reports for those years, so that I cannot extend my calculations beyond
1855. Deductions from the still-births at the full time, which are alone
given in the years referred to, are of course useless for the present
inquiry.
[69] Births, 27,664; population, 994,665.
[70] Births, 32,845; population, 1,132,369.
[71] Total births at full time, 32,845; living births at full time,
32,120. Fœtal deaths, 2064; still, at full time, 725; premature, 1339.
[72] Total deaths, including 1462 fœtal, 19,461.
[73] Total deaths, including 2064 fœtal, 21,523.
[74] Births at full time, 154,245; premature, 5899.
[75] Fourteenth Registration Report, 1855.
[76] Fourteenth Registration Report, 1855.
[77] In the above remarks we must not be misunderstood. We believe
Massachusetts no worse with regard to abortion than many other portions
of the country, but that its registration is conducted with greater care.
From the statistics given it may easily be surmised what the amount of
this crime _must be elsewhere_. It is necessarily of infinitely more
common occurrence than infanticide, the murder of children after birth,
for proof of the frequency of which, at the present moment, in Great
Britain, we refer to Dr. Burke Ryan’s Fothergillian Essay on the subject
in the London Sanitary Review for last July, and to the London Lancet of
corresponding date.
[78] As, for instance, in the regularly progressive series of deaths and
births, as compared with the population; constant, also as compared with
each other:—Population of Massachusetts: by census of 1850, 994,665;
1855, 1,132,369. Deaths: 1851, 18,934; 1852, 18,482; 1853, 20,301; 1854,
21,414; 1855, 20,798. Births: 1851, 28,681; 1852, 29,802; 1853, 30,920;
1854, 31,997; 1855, 32,845.
[79] Reports of Attorney-General of Massachusetts, from 1849 to 1858.
State Documents.
[80] Comptes Rendus Annuels de la Justice Criminelle.
[81] Introductory Lecture, 1854, p. 17.
[82] Report to Suffolk Dist. Med. Society, May, 1857; New York Med.
Gazette, July, 1857, p. 390; N. H. Journal of Medicine, July, 1857, p.
211.
[83] Loc. cit., p. 313.
[84] The Law of Population, 1830.
[85] HUME, Essays, vol. i. No. xi., p. 431.
[86] Études sur l’Économie Politique; Nouveaux Principes d’Économie
Politique.
[87] Loc. cit., ii. p. 253.
[88] Ibid., i. p. 451. An opinion to the same effect, italicized, has
already been quoted.
[89] Ibid., ii. pp. 316, 317.
[90] Ibid., i. p. 452, foot-note.
[91] Ibid., i. p. 447.
[92] Nouveaux Principes, &c., liv. vii. ch. 5.
[93] Medical Ethics, p. 79.
[94] Since our last article, the report of the Committee appointed in
1858 to investigate the Health Department of the City of New York has
appeared, and we find that our statements regarding the frequency of the
crime in the metropolis are fully corroborated. Not merely are additional
official statistics on this point given (pp. 182, 183), but valuable
testimony from Drs. Griscom (pp. 25, 30), McNulty (p. 55), Francis
(p. 64), and Bulkley (p. 133). Dr. Reese’s paper on Infant Mortality,
republished by the Committee (pp. 90-100), from the Transactions of the
American Medical Association for 1857, also contains incidental reference
to the frequency of abortion, and for its direct and earnest dealing with
the subject deserves unqualified commendation.
In this connection we would call attention to the evidence of the extent
of the crime in Boston, afforded since our own remarks upon that point
were in type, by Dr. Walter Channing. (Boston Med. and Surg. Journal,
March 17, 1859.)
[95] Annales d’Hygiène Publique, 1856, p. 122.
[96] Les Consummations, etc.
[97] Comptes Rendus Annuels, etc.
[98] MAYER, Des Rapports Conjugaux, considérés sous le triple point de
vue de la population, de la santé et de la morale publique. Paris, 1857.
[99] CANGIAMILA, Embryologia Sacra, p. 15.
[100] In verification of this statement I am enabled to quote from the
last authorized edition of the Canon Laws of the Church of Rome. “Omnes,
qui abortûs seu fœtûs immaturi, tam animati quam inanimati, formati vel
informis, ejectionem procuraverint, pœnas propositas et inflictas tam
divino quam humano jure, ac tam per canonicas sanctiones et apostolicas
constitutiones quam civilia jura adversus veros homicidas incurrere,
hâc nostrâ perpetuo valiturâ constitutione statuimus et ordinamus.”
REIFFENSTUELL, Jus Canonicum Universum, tome iii. Paris, 1854.
[101] Decreta Synodi plenariæ Episcoporum Hiberniæ, apud Thurles habitæ
anno 1850. Art. de Baptismo, p. 20.
[102] Dublin Review, April, 1858, p. 100.
[103] DEVENTER, 1734, p. 366; STERNE, Tristram Shandy, p. 54; Med. Times
and Gazette, Aug., 1858, p. 196. Though the fact of this decision has
been doubted, it is nevertheless strictly true. Through the kindness
of Bishop Fitzpatrick I have been favored with a copy of BARRY’s
Medico-Christian Embryology, as presenting upon this point the authorized
and generally received doctrine of the Catholic Church. I quote the
following from the chapter “On Baptism in Impracticable and Difficult
Labors:”
“In case of impacted head and at all times that one is obliged to apply
the forceps, whether at one of the straits or in the pelvic excavation,
it becomes necessary to baptize the child on the part which presents at
the uterine orifice after the rupture of the bag containing the waters.
“In order to baptize the child, a syringe charged with natural water may
be used. If this be not at hand, a person may use a sponge, or a linen or
cotton rag, wetted with water, which is to be carried to the child by the
fingers, a pair of forceps, or any other suitable contrivance, and then
squeezed or pressed on the surface of the part presenting.” (Loc. cit.,
p. 45.)
“Any person, whether man, woman or child, may baptize an infant when in
danger of death.” (Ibid., p. 76.)
If the facts now stated should be generally known and acted upon by the
profession, hundreds of lives, infant and maternal, would annually be
saved.
[104] MS. Letter, dated Nov. 14th, 1858.
[105] It is not of course intended to imply that Protestantism, as such,
in any way encourages, or indeed permits, the practice of inducing
abortion; its tenets are uncompromisingly hostile to all crime. So
great, however, is the popular ignorance regarding this offence, that
an abstract morality is here comparatively powerless; and there can
be no doubt that the Romish ordinance, flanked on the one hand by the
confessional, and by denouncement and excommunication on the other, has
saved to the world thousands of infant lives.
[106] PASSOT, Des dangers de l’avortement provoqué dans un but criminel;
Gazette Méd. de Lyon, 1853.
[107] Ann. d’Hygiène, 1856, p. 147.
[108] DUBOIS and DEVERGIE, ibid., tome xix. p. 425; tome xxxix. p. 157.
[109] Ibid.
[110] Review of MONTGOMERY’s Signs of Pregnancy; The North American
Medico-Chirurgical Review, March, 1857, p. 249.
[111] Principles of Midwifery, p. 547.
[112] BAUDELOCQUE, tome i. p. 115; FODERE, ii. p. 17; MARC, Dict. de
Méd., i. p. 228; MONTGOMERY, Signs of Pregnancy, p. 578; DEVERGIE, Méd.
Légale, i. p. 244.
[113] RYAN, p. 267; TARDIEU, loc. cit.
[114] CLARKE, Trans. of Soc. for Impr. of Med.-Chir. Knowledge, iii. p.
290; BAUDELOCQUE, i. p. 123, note; LEROUX, Traité des Pertes, Obs. xiii.
p. 25; MONTGOMERY, loc. cit., p. 618.
[115] GARDNER, of New York, note to TYLER SMITH’s Lectures on Obstetrics,
p. 203.
[116] Am. Journ. of the Med. Sciences, April, 1859. In the instance
referred to, the cervix had been deeply and extensively lacerated,
forceps having been used in four previous labors; while depressions
existing between the old cicatrices and half filled and ragged with
clots, were decidedly suggestive of punctured wounds. The true nature of
the case was rendered evident by its past history, and corroborated by
the fact that the patient was a Catholic; the latter being a point to
which I am inclined to attach much importance, for reasons already given.
[117] Practical Treatise, p. 275.
[118] RYAN, Med. Jurisprudence, p. 282.
[119] ROSCOE, Law of Evidence, 242.
[120] ARCHBOLD, Crim. Pleading, 491; 1 HALE, 455.
[121] DAVIS, Crim. Justice, 482.
[122] DAVIS, Crim. Justice, 483.
[123] Reg. _v._ Haynes; Reg. _v._ Goodall; Rex _v._ Phillips.
[124] Med. Times and Gazette, Jan., 1856, p. 611.
[125] “This operation must not on any account be undertaken without the
sanction, and in the presence, of another practitioner.”—CLAY, Hand-book
of Obstetric Surgery, p. 13.
[126] 1 GABBETT, Cr. Law, 523.
[127] Loc. cit.
[128] CHEVALIER and DEVERGIE, Ann. d’Hyg., 1856, p. 157.
[129] Med. Jurisp.; Griffith’s ed., p. 472, Hartshorne’s ed., p. 378.
[130] TARDIEU, loc. cit., 1856, p. 124.
[131] A Woman’s Thoughts about Women. By the author of “John Halifax,
Gentleman.” 1858, p. 14.
[132] Loc. cit.
[133] Ibid.
[134] Mass. Laws of 1847, chap. 83.
[135] “By imprisonment in the State prison, house of correction, or
common jail, not more than three years, or by fine not exceeding one
thousand dollars.”
[136] Opera omnia. Ed. 1655, i., p. 643.
[137] JÖRG of Leipsic, who speaks of the human fœtus as “only a higher
species of intestinal worm, not endowed with a human soul, nor entitled
to human attributes.”
[138] SIMPSON, Obst. Works, i. pp. 352, 404.
[139] Boston Med. and Surg. Journal, January, 1857, p. 462.
[140] The immorality of craniotomy, where delivery can be effected by
any other method, is gradually becoming acknowledged in Great Britain. A
late discussion on this subject, at the Obstetric Society of London, is
reported in the Medical Times and Gazette for February, 1859.
[141] CLAY, Obstetric Surgery, p. 68.
[142] SINCLAIR and JOHNSTON, Practical Midwifery, 1858. 130 cases of
craniotomy in 13,748 labors.
[143] CLAY, Loc. cit., p. 69.
[144] The subject of justifiable craniotomy has of late been ably though
controversially discussed by an anonymous writer (Dublin Review, April
and October, 1858,) and Dr. Churchill (Dublin Quarterly Journal of
Medical Science, August and November, of the same year). Care must be
taken, lest in assenting to the decided and imperative necessity of the
operation in certain cases, and by a natural professional sympathy, too
great frequency is not allowed to this most horrible and appalling of all
the operations to which as physicians we can ever be called.
[145] Review of CLAY’s Obstetric Surgery; Boston Med. and Surg. Journal,
November, 1856, p. 283.
[146] Theory and Practice of Midwifery, p. 348.
[147] De jure vitæ et necis quod competit medico in partu. Heidelberg,
1826.
[148] “Where one only can by any possibility be preserved, the female
herself may use her right of self-preservation and choose whether her own
life or that of her child shall fall a sacrifice.” GUY, Principles of
Forensic Medicine, p. 145.
[149] Guy’s Hospital Reports, 1856, p. 12.
[150] Dublin Quarterly Journ. of Med. Science, August, 1858, p. 10.
[151] RADFORD, British Record of Obst. Medicine, 1848, p. 84.
[152] The rules of the Catholic Church upon this point have been already
referred to. Suffice it to say, further, that while they enjoin the
Cæsarean and vaginal sections, in preference to craniotomy and in cases
of extra-uterine fœtation, yet turning, the use of forceps, and the
induction of premature labor, where such are indicated, are distinctly
allowed by them. BARRY, Medico-Christian Embryology, pp. 41, 44, 45, 60.
[153] Guy’s Hosp. Reports, 1856, p. 4.
[154] For a full discussion of the respective merits of the several
methods instanced above, see SIMPSON, loc. cit., i. p. 738.
I have lately contrived an instrument very similar to one not long
since proposed by Spencer Wells for dilatation of the female urethra,
which by a simple combination of the three principles involved, will
probably prove of material service in the induction of premature labor.
It may be called the uterine dilator, as it possesses many advantages
over expansible tents for all cases of uterine disease where dilatation
is necessary, either for diagnosis or treatment. A description of the
instrument, and of its first application to obstetric practice, is
published in the current number of the American Journal of the Medical
Sciences.
[155] Bulletin de l’Académie, xvii. p. 364.
[156] British Record, etc., p. 82.
[157] I have elsewhere discussed this subject; American Journal of the
Medical Sciences, January, 1859.
[158] Enchiridion Medicum, p. 510.
[159] Question d’Embryologie Médicale, etc.; Revue de l’Amérique et de
l’Ouest, 1846.
[160] JOAN. RIOLAN., Anthropographia, lib. vi. cap. vii. p. 589.
[161] CHURCHILL, Dublin Quarterly Journ. of Med. Science, August, 1858,
p. 22.
[162] A case in point has been reported by the writer; Amer. Journ. of
the Med. Sciences, April, 1859.
[163] Reports to the Suffolk Dist. Med. Society of Massachusetts, 1857,
and to the American Medical Association, 1859.
[164] “It would in my opinion,” says Ramsbotham, referring to the nature
of fœtal existence, “be much better not to endeavor to explain the
secrets of nature, so deeply hidden.”—(Obst. Medicine and Surgery, p.
309.) This belief seems still, in practice, very widely entertained.
[165] CLAY, Obstetric Retrospect, March, 1848, p. 44.
[166] Medical Communications of the Mass. Med. Soc., 1858, p. 77.
The writer having been a member of this committee, here enters, as he has
already done by letter to the councillors of the Society, his earnest
protest against the plainly erroneous opinion avowed in that report,
which was presented and accepted during his absence from the State.
By the laws of Massachusetts, the offence is considered as mainly against
the person of the mother. In case of her death, already sufficiently
provided for at common law, convictions can be effected, with great
difficulty, under the statute,—as has twice occurred the present year, in
the cases of Jackson and Brown; but hardly otherwise.
[167] In this connection honorable mention is due Drs. TATUM and JOYNES,
of Virginia, for their papers on “The Attributes of the Impregnated
Germ,” and “Some of the Legal Relations of the Fœtus in Utero” (Virginia
Medical Journal, 1856.) Through the agency of the latter of these
gentlemen, an important modification has been made in the law of the
State; as has also been effected in Wisconsin, by Dr. BRISBANE.
[168] For valuable information in this connection, I am indebted to many
friends, more particularly to Drs. THAYER, of New Hampshire, PHELPS, of
Vermont, CHAS. HOOKER, of Connecticut, BLATCHFORD, of New York, WOOD, of
Pennsylvania, THOMPSON, of Delaware, WROTH, of Maryland, BRAINARD, of
Illinois, CAMERON, of Indiana, LELAND, of Michigan, LE BOUTILLIER, of
Minnesota, BRISBANE, of Wisconsin, POPE, of Missouri, HOYT, of Tennessee,
HAXALL and JOYNES, of Virginia, SEMMES, of District of Columbia, DICKSON,
of North Carolina, LOPEZ, of Alabama, BARTON, of Louisiana, (now of
South Carolina,) and to my relatives, WOODBURY and BELLAMY STORER,
Esqrs., of Maine and Ohio, and JAMES M. KEITH, Esq., of Boston, late
District-Attorney for Norfolk and Plymouth Counties. In every instance,
however, verification of the statutes has been made from copies in the
State Library of Massachusetts.
[169] DAVIS, Criminal Justice, p. 482.
[170] 1 Commentaries, 129.
[171] Ibid.
[172] 43 George III., c. 58.
[173] 9 Geo. IV., c. 31; 10 Geo. IV., c. 34.
[174] 7 William IV.; 1 Vict., c. 85.
[175] To this list may also be added the Territory of Washington.
[176] The Territory of Kansas belongs to the above group.
[177] Compiled Statutes of Connecticut, 1854, p. 307.
[178] Revised Code of Mississippi, 1857, chap. 64, p. 601.
[179] Digest of Statutes of Arkansas, 1848, chap. 51, p. 325.
[180] Revised Statutes of Minnesota, 1851, chap. 100, p. 493.
[181] Statutes of Oregon, 1855, chap. 3, p. 310.
[182] Revised Statutes of Maine, 1857, chap. 124, p. 685.
[183] The above should evidently read “the first two sections,” to be
possible.
[184] Compiled Statutes of New Hampshire, 1853, chap. 227, p. 544.
[185] Revised Statutes of New York, 1852, ii. pp. 847, 876. The last
section of this statute does not require proof of pregnancy.
[186] Revised Statutes of Ohio, 1854, chap. 162, p. 296.
[187] Compiled Laws of Michigan, 1857, vol. ii. chap. 180, p. 1509. The
statute of the Territory of WASHINGTON is very similar to those above.
“Every person who shall administer to any woman pregnant with a quick
child, any medicine, drug, or substance whatever, or shall use or
employ any instrument, or other means, with intent thereby to destroy
such child, unless the same shall have been necessary to preserve the
life of such mother, shall, in case the death of such child or of such
mother be thereby produced, on conviction thereof, be imprisoned in the
penitentiary not more than twenty years, nor less than one year.
“Every person who shall administer to any pregnant woman, or to any
woman whom he supposes to be pregnant, any medicine, drug, or substance
whatever, or shall use or employ any instrument, or other means, thereby
to procure the miscarriage of such woman, unless the same is necessary
to preserve her life, shall, on conviction thereof, be imprisoned in the
penitentiary not more than five years, nor less than one year, or be
imprisoned in the county jail not more than twelve months, nor less than
one month, and be fined in any sum not exceeding one thousand dollars.”
Statutes of the Territory of Washington, 1855, p. 81.
[188] Compiled Statutes of Vermont, 1850, chap. 108, p. 560.
[189] Supplement to the Revised Statutes of Massachusetts, 1849, p. 322.
[190] Statutes of Illinois, 1858, vol. i. p. 381.
[191] Revised Statutes of Wisconsin, 1858, chap. 169, sect. 58. It will
be noticed that the second section of the above statute differs from the
first, in not requiring the proof of pregnancy.
[192] Code of Virginia, 1849, chap. 191, p. 724.
[193] Revised Statutes of Missouri, 1856, i. chap. 50, p. 567.
[194] Code of Alabama, 1852, sect. 3230, p. 582.
[195] Revised Statutes of Louisiana, 1856, p. 138. By its wording, this
statute might be forced into the next division.
[196] I insert this clause not merely for its relation to the points we
are now considering, but for its important bearing on the broad question
of infanticide during labor; concerning which it stands in bold and
direct antagonism to all the rulings of the common law in this country
and abroad. In other respects also, though not faultless, the Texas
statute is rationally and admirably drawn.
[197] Penal Code of Texas, 1857, p. 103.
[198] Digest of Laws of California, 1857, art. 1905, p. 334. The statute
of the Territory of KANSAS, similar to the above, is as follows:—
“Every physician or other person who shall willfully administer to any
pregnant woman, any medicine, drug, or substance whatever, or shall use
or employ any instrument or means whatsoever, with intent thereby to
procure abortion, or the miscarriage of any such woman, unless the same
shall have been necessary to preserve the life of such woman, or shall
have been advised by a physician to be necessary for that purpose, shall,
upon conviction, be adjudged guilty of a misdemeanor, and punished by
imprisonment in a county jail not exceeding one year, or by fine not
exceeding five hundred dollars, or by both such fine and imprisonment.”
Statutes of Kansas, 1855, chap. 48, p. 243.
[199] We have already commented upon the phraseology of the Louisiana
statute. The latitude of its first clause is shown by the context to
have been unintentional, and therefore hardly justifies a change in
its classification. The second section of the Statute of Washington
Territory, however, is closely analogous to that now given; while the
final sections of the statutes both of New York and Wisconsin, which make
it penal for a woman voluntarily to effect or submit to the unjustifiable
induction of abortion, are equally silent regarding proof of the
existence of pregnancy.
[200] Revised Statutes of Indiana, 1852, p. 437.
[201] Rex _vs._ Phillips, 3 CAMPBELL, 77; RUSSELL, Crim. Law, 553-4; 1
GABBETT, Crim. Law, 522; 1 BISHOP, Crim. Law, 386.
[202] State _vs._ Cooper, 2 ZABRISKIE, 52, 57; Rex _vs._ Russell, 1
MOODY, 356, 360.
[203] Regina _vs._ Wycherley, 8 CARRINGTON and PAYNE, 265.
[204] The People _vs._ Jackson, 3 HILL, N. Y. Reports, 92; WHARTON,
Criminal Law, 98.
[205] DAVIS, Crim. Justice, 484.
[206] WHARTON, Amer. Crim. Law, 424.
[207] WHARTON, Amer. Crim. Law, 75.
[208] The State _vs._ Vawter, 7 BLACKFORD, 592.
[209] 1 GABBETT, Crim. Law, 523; ARCHBOLD, P. A., lxx, 2.
[210] ROSCOE, L. E., 242; Eng. Com. L. Rep., xxv. 453; Rex _vs._ Coe, 6
CAR. & P., 403; Vaughan, 13.
[211] 1 BISHOP, Crim. Law, 527.
[212] In Massachusetts, though the statute is silent on these points, it
is asserted that whenever a potion is given, or other means are used, by
“a surgeon,” for the purpose of saving the life of the woman, the case
is free of malice, and has a lawful justification. DAVIS, Crim. Justice,
282; Report of the Criminal Law Commissioners, 1844, Causing Abortion,
I., note _a_.
[213] After a little reflection, it will be seen that this word is not so
open to objection as might at first be supposed.
[214] 1 RUSSELL, Crimes, 671; 1 VESEY, 86; 3 COKE, Inst., 50; 1 HAWKINS,
C. B., s. 16; 1 HALE, 434; 1 EAST, P. C., 90; 3 CHITTY, Crim. Law, 798;
WHARTON, Crim. Law, 537.
[215] DAVIS, Crim. Justice, 486.
[216] ARCHBOLD, Crim. Pleading, 490.
[217] Regina _vs._ Trilloe, 2 MOODY, C. C., 260, 413.
[218] The State _vs._ Cooper, 2 ZABRISKIE, 52; HANES, U. S. Digest, 5.
[219] The Commonwealth _vs._ Parker, 9 METCALF, 263; The Commonwealth
_vs._ Bangs, 9 Mass., 387; The State _vs._ Cooper, 2 ZABRISKIE, 57;
HANES, U. S. Digest, 5; Smith _vs._ State, 33 MAINE, (3 RED.) 48.
[220] BISHOP, Crim. Law, 386; Mills _vs._ The Commonw., 1 HARRIS, Pa.,
631, 633.
[221] WHARTON, Crim. Law of the U. S., 537.
[222] 1 RUSSELL, Crimes, 661; 1 VESEY, 86; 3 COKE, Inst., 50; 1 HAWKINS,
c. 13, s. 16; BRACTON, 1. 3, c. 21.
[223] BAC. Ab., tit. Infants.
[224] 2 VERNON, 710.
[225] Doe _vs._ Clark, 2 H. Bl., 399; 2 VESEY, jr., 673; Thellusson _vs._
Woodford, 4 VESEY, 340; Swift _vs._ Duffield, 6 SERG. & RAWLE, 38.
[226] FEARNE, 429.
[227] 2 VERNON, 710; The Commonwealth _vs._ Demain, 6 Penn. Law Journ.,
29; BRIGHTLY, 441.
[228] 1 HALE, 90; The Commonw. _vs._ Chauncey, 1 ASHMEAD, 227; Smith
_vs._ State, 33 MAINE, (3 RED.) 48.
[229] Ibid.; HANES, U. S. Digest, 5.
[230] WHARTON, Law of Homicide, 44.
[231] The Commonw. _vs._ Parker, 9 METCALF, 263, 265; DAVIS, Crim.
Justice, 281.
[232] 1 BLACKSTONE, 129; Rex _vs._ Senior, 1 MOODY, C. C., 346; 3 Inst.,
50; WHARTON, C. L., 537; Ibid., Law of Homicide, 93.
[233] Rex _vs._ West, 2 CARR. & KIR., 784; 1 BISHOP, C. L., 255; WHARTON,
Law of Homicide, 93.
[234] Rex _vs._ Scudder, 1 MOODY, 216, 3 CAR. & P., 605, overruling Rex
_vs._ Phillips, 3 CAMPBELL, 73; RUSSELL, Cr., 763, note.
[235] If made without her consent?
[236] Regina _vs._ Goodchild, 2 CAR. & KIR., 293; Rex _vs._ Goodhall, 1
DEN. C. C., 187; 3 CAMPBELL, 76.
[237] 1 BISHOP, Crim. Law, 518.
[238] 1 BISHOP, Crim. Law, 385.
[239] WHARTON, Crim. Law, 541.
[240] 1 HARRIS, Pa., 631, 633.
[241] LEE, Note to Guy’s Principles of Forensic Medicine, p. 134.
[242] BECCARIA, Crimes and Punishments, 104.
[243] “An efficient, and practical remedy for the prevention of this
crime would be a law requiring the causes of death to be certified by
the physician in attendance, or where there has been no physician, by
one called in for the purpose. In this way the cause of death, both in
infants and mothers, could be traced to attempts to procure abortion. In
three cases which occurred in Boston, in 1855, the death was reported by
friends to be owing to natural causes, and in each it was subsequently
ascertained that the patient died in consequence of injuries received
in procuring abortion. It is probable that such cases are by no means
rare; and if the cause of death were known, an immediate investigation
might lead to the detection of the guilty party.” (Boston Med. and Surg.
Journal, Dec., 1857, p. 365.)
[244] Register of the Morgue.
[245] From 1846 to 1850, 188 cases of criminal abortion were discovered
in Paris, but for want of proof, only 22 of them were sent to trial.
(Comptes Rendus Ann. de la Justice Criminelle.)
[246] Report on the Medico-legal duties of Coroner. 1857.
[247] RADFORD, British Record of Obstetric Medicine, vol. i. p. 55.
[248] WHARTON, Criminal Law, 540.
[249] Smith _vs._ The State, 33 MAINE, (3 RED.) 48.
[250] Rex _vs._ Phillips; Regina _vs._ Goodall; Reg. _vs._ Haynes, etc.
[251] TAYLOR, Med. Jurisprudence, p. 386.
[252] PERCIVAL, Medical Ethics, p. 84.
[253] Ibid., p. 85.
[254] Loc. cit., article 317.
[255] Report to Suffolk District Med. Society, May, 1857, p. 12.
[256] In this connection, I cannot too strongly deprecate a practice that
has lately been proposed, the detection, namely, of the early existence
of pregnancy by the administration of ergot. (Boston Med. and Surg.
Journal, April, 1859, p. 197.) The use of ergot for this purpose, in
however small a dose, would seem utterly unjustifiable.
[257] Fifteenth Massachusetts Registration Report, 1857, p. 199.
[258] QUETELET, Theory of Probabilities, p. 234.
[259] New York Med. Gazette, Editorial; London Medical Times and Gazette,
1850, p. 487.
[260] Boston Med. and Surg. Journal, Editorial, 1855, p. 411.
[261] DEAN, Medical Jurisprudence, p. 139.
[262] Boston Med. and Surg. Journal, Editorial, Dec. 13, 1855.
[263] American Medical Gazette, Editorial, July, 1857, p. 390.
[264] Ibid., April 1859, p. 289.
[265] Maine Med. and Surg. Reporter, Editorial, June, 1858, p. 39.
[266] DEVILLE, Researches on the proportion of still-born children
compared with the mortality of the City of Paris during the thirteen
years, 1846-58. Memoirs of the French Academy, 1859.
[267] New Hampshire Journal of Medicine, Editorial, July, 1857, p. 216.
[268] London Lancet, Editorial, July, 1858, p. 66.
[269] TATUM, Virginia Med. Journal, June, 1856, p. 457.
[270] Loc. cit., p. 19.
[271] The Councillors of the Massachusetts Medical Society. Proceedings
of the Society, 1858, p. 77.
[272] PHILLIPS, On Evidence, i. p. 135; RYAN, Medical Jurisprudence, p.
193; STORER, Sen., Introductory Address, 1855, p. 10; SIMPSON, Physicians
and Physic, p. 31.
[273] Proceedings of the Society, 1858.
[274] Man Transformed. Oxford, 1653.
[275] “_Resolved_, That while physicians have long been united in
condemning the procuring of abortion, at every period of gestation,
except as necessary for preserving the life of either mother or child,
it has become the duty of this Association, in view of the prevalence
and increasing frequency of the crime, publicly to enter an earnest and
solemn protest against such unwarrantable destruction of human life.
“_Resolved_, That in pursuance of the grand and noble calling we
profess,—the saving of human life,—and of the sacred responsibilities
thereby devolving upon us, the Association present this subject to the
attention of the several legislative assemblies of the Union, with the
prayer that the laws by which the crime of abortion is attempted to be
controlled may be revised, and that such other action may be taken in the
premises as they in their wisdom may deem necessary.
“_Resolved_, That the Association request the zealous co-operation of
the various State medical societies in pressing this subject upon the
legislatures of their respective States, and that the president and
secretaries of the Association are hereby authorized to carry out, by
memorial, these resolutions.”—_Transactions of the Am. Med. Association_,
1859, vol. xii. p. 75.