CRIMINAL ABORTION: 
ITS NATURE, ITS EVIDENCE, AND 
ITS LAW. 
By HORATIO R. ^STORER, M.D., LL.B., 
FELLOW OF THE AMERICAN ACADEMY OF ARTS AND SCIENCES, AND LATE 
PROFESSOR OF OBSTETRICS AND MEDICAL JURISPRUDENCE 
IN BERKSHIRE MEDICAL COLLEGE; 
AND 
FRANKLIN FISKE HEARD. 
BOSTON: 
LITTLE, BROWN, AND COMPANY. 
1868. Entered according to Act of Congress, in the year 1868, by 
HORATIO R. STORER, 
In the Clerk's Office of the District Court of the District of Massachusetts. 
CAMBRIDGE: 
PRESS OF JOHN WILSON AND SON. TO 
THOSE WHOM IT MAY CONCERN, 
COUNSELLOR, JUROR, JUDGE, AND PHSYICIAN, 
THESE PA GES 
•• ARE RESPECTFULLY INSCRIBED. PREFACE. 
Lawyers and physicians should stand to each other, in 
medico-legal matters, as associates working together for the 
common good of society, rather than as adversaries liable 
to be thought endeavoring to make the worse appear the 
better reason. The crime of unjustifiable abortion is now 
recognized by both the professions as of frequent occur- 
rence, and as going too often unwhipt of justice. Certain 
papers upon the subject, first published in the " North- 
American Medico-Chirurgical Review," at Philadelphia, dur- 
ing the year 1859, and then re-issued from the press in a 
collective form, have done somewhat to uncover the crime, 
and perhaps, what is better, to prevent it. Argumentation, 
however, though cogent, and ethics, though divine, are 
insufficient, this side of eternity, to restrain the vices and 
passions of mankind. 
The signs of the times lead us to believe that the publi- 
cation of this book, which is in part re-written from that 
above referred to, will be no premature delivery. Nine long 
years have passed since the idea upon which it is based was 
first conceived, - a time that even the proverbial slowness 
of the law will allow to be a full and sufficient term of VI 
PREFACE. 
gestation. In acting as its accoucheurs, we not merely hope 
for it success in the world upon its own merits ; but in view 
of the great interests, legal, moral, and religious, that it 
will tend, we trust, to subserve, we have carried still further 
the not wholly inappropriate simile ; and, though this symbol 
is rather an unusual one for a law-book, we have marked its 
face with the sign of the cross. 
In writing that portion which treats of the Criminal Law, 
it has been the aim of the authors to exhaust the subject. 
The cases have been stated so fully as to preclude the 
necessity of examining the volumes of Reports from which 
they are taken. This has been done not only for the benefit 
of the non-professional reader, but for the reason that many 
of the cases cited are taken from English Reports, which 
are not generally accessible, even to the legal Profession, in 
this country. Free use has been made of the fifth edition 
of " Russell on Crimes," London, 1865. This edition, 
edited by Mr. Greaves, for accuracy and completeness is 
not surpassed by any text-book in the law. 
The practitioner in the criminal courts, whether engaged 
in the prosecution or defence, will find Precedents of Indict- 
ments, - many of which have been drawn expressly for this 
work, - and the evidence necessary to support them. 
H. R. S. 
F. F. H. 
Boston, August, 1868. TABLE OF CONTENTS. 
BOOK I. 
FROM THE STAND-POINT OF MEDICINE. 
Chapter Page 
I. Is Abortion ever a Crime ? 1 
II. Its Frequency, and the Causes thereof 15 
III. Its Victims 65 
IV. Its Proofs 79 
1. The Occurrence 80 
2. The Commission 82 
3. The Intent 86 
4. The Identity of the Party accused 94 
V. Its Perpetrators 97 
VI. Its Innocent Abettors 104 
VII. Obstacles to Conviction 136 
BOOK IL 
FROM THE STAND-POINT OF LAW. 
I. The Common Law 151 
II. The English Statutes and Indictments thereon . 165 
III. Against whom an Indictment lies - Principals and 
Accessories 173 VIII 
TABLE OF CONTENTS. 
Chapter Page 
IV. Indictment 181 
V. Evidence 194 
1. An Infusion or Decoction of a Shrub are ejusdem 
generis. The Question upon 43 Geo. III. ch. 58, 
§ 2, was, whether any Matter or Thing was admin- 
istered to procure Abortion 194 
2. Noxious Thing 195 
3. What is an Administering and Causing to be Taken 197 
4. Procuring Drugs, etc., to cause Abortion . . . 201 
5. In General 202 
Appendix 211 CRIMINAL ABORTION. 
BOOK I. 
FROM THE STAND-POINT OF MEDICINE. 
CHAPTER I. 
IS ABORTION EVER A CRIME? 
At the Common Law, and by many of our State codes, foetal 
life, per se, is almost tvholly ignored, and its destruction un- 
punished ; 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 be- 
ing AT ANY STAGE OF ITS EXISTENCE IS MURDER. 
In undertaking the discussion of this subject, three pre- 
liminary facts must be assumed : - 
First. - That, if abortion be ever a crime, it is of neces- 
sity, 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 
1 2 
CRIMINAL ABORTION. 
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 sup- 
pressed, 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 abso- 
lutely and necessarily demanded. 
Moreover, in order that the importance and various bear- 
ings 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 
1 So far as the writer is aware, there existed, neither in this nor any other 
language, at the time he first commenced its consideration, any paper upon 
the subject, at all commensurate with its importance. The chapters devoted 
to it in medical text-books, though some of them, especially that of Beck, 
admirable so far as they went, were defective and often erroneous ; while but 
little information of any value could be found elsewhere. In the French 
periodicals there had appeared articles on special points hereafter referred to ; 
in Great Britain, able arguments regarding the commencement of foetal life 
had 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, in 1855, by the present Professor of Obstetrics in Harvard University. 
To the latter, his father, and to the journalists (Morland and Minot, of 
Boston), by whom the effort then made was so warmly and eloquently 
seconded, the writer acknowledged, at the time, his indebtedness for the 
thought of the undertaking, which has culminated, he has reason to believe, 
in an agitation which is now shaking society, throughout our country, to its 
very centre. 
Eight years have now passed. Not only has the medical profession been 
stirred to progressive action; but, through its members, the outside commu- 
nity. Paper after paper upon the subject has been issued by medical men ; 
the religious press has become deeply interested; political economists have 
found, as had been indicated in the previous edition of this book, an explana- 
tion of otherwise inexplicable problems ; an impetus of the most powerful IS ABORTION EVER A CRIME? 
3 
subject, on some points of which it is probable that a por- 
tion of his own 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 reli- 
ance 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 his 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 con- 
demning, but, to their own consciences at least, crimi- 
nating 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 ; 
character has been given to the movement, by the publication, under the au- 
spices of the American Medical Association, of the author's two books for 
the people, entitled " Why Not? a Book for Every Woman," and " Is It I? 
a Book for Every Man; " and we find one of the ablest and most conserv- 
ative of the theological writers of the present day, the Rev. Dr. John 
Todd, with his "Woman's Rights, a Plea for a Holier Living," confronted 
by as able and as fearless a writer of the other sex, " Gail Hamilton," with 
her "Woman's Wrongs, a Counter-irritant," in which, however covertly, 
the idea is practically upheld, that, whatever her other rights, a woman is 
certainly entitled to decide whether or no she shall bear children. The im- 
portance of the subject is rapidly becoming recognized by the legal as well 
as by the medical profession ; and extracts from the author's writings upon 
the subject, presented through the pages of Elwell's treatise on Mal- 
practice and Medical Evidence, and the later American editions of Taylor's 
Medical Jurisprudence, have already affected the rulings of courts. The 
early exhaustion of the previous edition of this book, which has long been 
out of print, and the fact that its writer has frequently been consulted in 
these matters by criminal lawyers, cause him to trust that the present 
edition, in the preparation of the first portion of which he has had valuable 
aid from his assistant in practice, Dr. Alexander J. Stone, while the latter 
half is wholly due to his accomplished colleague, Mr. Heard, may secure the 
approval of the two great bodies of professional men for whom as a manual 
it has been written. 4 
CRIMINAL ABORTION. 
7. And to exercise greater care and discretion in diagno- 
sis and treatment, lest themselves be brought to answer for 
malpractice, or worse; 
8. And publicly to discuss matters supposed to be gener- 
ally unknown, and thus seem to throw open professional 
secrets to the world. 
9. 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 medical 
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 knowl- 
edge 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. 
We 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, on 
medico-legal points, of existing laws, and the various other 
obstacles to conviction ; and, above all, the duty of the 
medical and legal professions toward its general suppression. 
We shall endeavor to present the matter as succinctly as is 
possible consistently with its extent, its novelty, and its 
importance. IS ABORTION EVER A CRIME? 
5 
That the true nature of an unjustifiable and criminal 
abortion 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 fatally erroneous 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.1 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,2 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 ex- 
clusively to those instances where the attempt at premature 
expulsion of the product of conception is artificially in- 
duced and intentional, and where, so far as can be judged, 
1 We are well aware that legal, as well as many medical writers, have re- 
stricted the term abortion to instances of delivery previous to the seventh 
month of gestation, this being considered the earliest period of the so-called 
viability of the child. The distinction is, however, a forced and unnatural 
one : viability is possible before the period alluded to; the technical infanti- 
cide cannot be committed until the foetus has been wholly born; and it would 
be very wrong, were its unjustifiably intentional expulsion during the last 
three months of pregnancy to be, or to seem, uncovered by the law. 
2 We have elsewhere given some attention to the above points; as in a paper 
entitled " Studies of Abortion," contained in the Boston Medical and Surgical 
Journal for February, 1863. 6 
CRIMINAL ABORTION. 
it is not necessitated, and would not otherwise have oc- 
curred. 
In the first place, the laws do not recognize that un- 
necessary abortion, intrinsically considered, 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 foetal 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 
foetus; 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 parent. She is her- 
self, 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; or else, while called 
such, or by omission justified or openly allowed, in the 
early months when the foetus is without other safeguard, 
the law pronounces abortion a felony and increases its 
penalties in more advanced pregnancy, after quickening has IS ABORTION EVER A CRIME ? 
7 
rendered it infinitely more certain that the foetus will remain 
undisturbed, and has thus in a 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 preg- 
nancy, where these risks are daily lessened, with increased 
severity ! 
And finally, if the foetus 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 necessarily attended with that of life. If 
made with the mother's consent, the act would be unpunish- 
able 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 sim- 
ply 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 8 
CRIMINAL ABORTION. 
denial we here consider as proved in three ways, - by im- 
plication, 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 com- 
pelled to change also. The fact that the laws on this 
subject remain unaltered, - if it be granted, as we have as- 
serted, and as will be proved, that they are erroneous,- 
furnishes us, at the outset and so far, with evidence that pub- 
lic 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 it 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 
the belief that the contents of the womb, so long as manifest- 
ing no perceptible sign of life, were but lifeless and inert 
matter: in other words, that, being, previously to quicken- 
ing, 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 their 
theory and their 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. IS ABORTION EVER A CRIME? 
9 
Ignorance of the law is held no excuse. The plea of 
ignorance of guilt could hardly better avail where its exist- 
ence is implied by common sense, by analogy, and by all 
natural instinct, binding even on brutes.1 Were this guilt, 
however, clearly shown, and its knowledge, supposed want- 
ing, 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 foetus in utero. If the foetus 
be a lifeless excretion, however soon it might have received 
life, the offence is comparatively as nothing: if the foetus be 
already, and from the very outset, a human being alive, 
however early its stage of development, and existing inde- 
pendently of its mother, though drawing its sustenance from 
1 The fact that some of the lower mammals - as cats, swine, &c.- at 
times devour their young, is no argument to the contrary of what we have 
above stated. Just as obtains in a large majority of the cases of infanticide, 
or murder of the child after its birth, in our own species, the act is owing 
to an aberration of instinct, itself the result of disease; a striking illustration 
of reflex disturbance of the nervous centres from irritation of the uterus or 
ovaries, or some other organic or pelvic lesion. The wholesale destruction 
of the young of their own species, after they are partly grown, by animals of 
types still lower in the scale, - as the mackerel, for instance, among fishes, - 
is more rationally to be explained upon the ground of a passing-away of 
parental instinct with the season of parturition or spawning, than by any 
assumed intention, upon the part of the Creator, of furnishing political econo- 
mists with a basis for Malthusian doctrines, or fashionable women with an 
argument for child murder, and for their own physical destruction, so often 
accompanying this crime. 10 
CRIMINAL ABORTION. 
her, the offence becomes, in every stage of pregnancy, 
MURDER. 
" Every act of procuring abortion," rules Judge King, of 
Philadelphia,1 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 con- 
clusion that the foetus 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 identify of life; the mother and the child within her, 
in abstract existence, must be entirely identical from the 
conception of the latter to its 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 connec- 
tion with the mother is wholly broken ; that its subsequent 
history after impregnation is one merely of development, 
its attachment merely for nutrition and shelter,-jit is not 
rational to suppose that its total independence, thus once 
established, becomes again merged into total identity, howr 
ever temporary; or that life, depending not on nine 
months' growth, nor on birth, because confessedly existing 
long before the latter period, - from 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 exer- 
cised by any possibility upon the child at any other moment 
than that original and only one of impregnation itself. We 
can recognize no period during uterine life, any more than 
in that after birth, during which the individual is more alive 
than at another. 
Another argument is furnished us, similar, but differing. 
1 As quoted by Hodge, Introductory Lecture, Philadelphia, 1854, p. 15. IS ABORTION EVER A CRIME? 
11 
The foetus previous to quickening, as after it, must exist in 
one of two states, - cither 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, after its occur- 
rence, as is generally the case, and the foetus be retained in 
utero, it must become either 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 
foetus save one, that, namely life, must exist from the be- 
ginning. 
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 tire male ; the inde- 
pendence 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 re- 
placing 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 contempo- 
raneous 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 ob- 
tains 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,1 how- 
1 In a work to which we have already alluded, written for the perusal of 
men, we have taken occasion to show, somewhat forcibly, that brutishness in 
one instinct, that of sexual gratification, is by no means ordinarily confined 
to idiots and persons considered by their fellows bereft of mind. There is 
no doubt that rape, such in every sense save its technical acknowledgment 
by the law, is frequently committed in the marriage-bed by the husband 
upon the sick or unwilling wife, and that this is done year after year, until 
death brings release. There is no doubt, again, that many cases of legal rape 12 
CRIMINAL ABORTION. 
ever 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 enter- 
tain, let the slightest proof concerning the existence of 
foetal life be alleged, and maternal instinct generally 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 after-thought; but 
instinct. 
Thus far incidental proof concerning the commencement 
of foetal life, and so the guilt of unjustifiable abortion. 
More decisive evidence is at hand. 
That the movements of the foetus, subsequent to quicken- 
ing, 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 appreci- 
able 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 foetus, 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 differ- 
ence in size1 - is often absent, even throughout pregnancy ; 
are the direct result of mental disease, primarily or secondarily existing; 
erotomania in the male being at times as distinctly the effect of local irrita- 
tion from haemorrhoids, ascarides, urinary calculus, &c., &c., as is nympho- 
mania in the female. There are many points in this connection of extreme 
interest to medical experts and to counsel, to some of which we have referred 
in our papers upon the Law of Rape, in the New-York Medical Journal for 1865, 
and the New-York Quarterly Journal of Psychological Medicine and Medi- 
cal Jurisprudence for 1868. 
1 Hippocrates states that this is a fact, and that he had found the differ- 
ence of a whole month, which he attributes to the " greater strength " of IS ABORTION EVER A CRIME? 
13 
and foetal movements are sometimes appreciable to the 
attendant when not to the mother, or, indeed, they may be to 
the mother alone. 
Further, in premature births where quickening has not 
occurred, or before its usual period, by the movement of the 
foetus its earlier independent and vital existence is some- 
times 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.1 
Quickening is therefore as unlikely a period for the 
commencement of foetal life as those others set by Hippoc- 
rates 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 Dubois2 and some earlier writers3 
from the manifest relation of means to the end, consider 
that the movements of the foetus in utero, and its conse- 
quent 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 conscious- 
ness 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 
the male. (On the Nature of the Child, sect. 11.) We are unaware that this 
point has been investigated by any modern writer. 
1 " These sounds may sometimes be distinguished several weeks before the 
mother becomes conscious of the motions of the child." - Naegele, Trea- 
tise on Obstetric Auscultation, p. 50. 
2 Memoire sur la Cause des Presentations de la Tete, &c. - Mem. de 
l'Acad. Roy. de Me'd., tome ii. 
3 A. Pare, English Trans., p. 899. Hugh Chamberlen's Trans, of 
Mauriceau on Diseases of Women with Child, p. 147, note. Ennemoser, 
Historisch-physiologische Untersuchungen liber den Ursprung und das 
Wesen der menschlichen Seele; Bonn, 1824. Cabanis, Rapports du 
Physique et du Moral de 1'Homme, tome ii. p. 431. 14 
CRIMINAL ABORTION. 
explainable by gravity, despite all the arguments alleged, 
as by Matthews Duncan,1 nor on any other supposition 
save that of a special and independent excito-motory system, 
distinct from that of the mother,2 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 foetus, 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 foetal life before quicken- 
ing has taken place or can take place, and by all analogy, 
and a close and conclusive process of induction, its com- 
mencement at the very beginning, at conception itself, we 
are compelled to believe unjustifiable abortion always a 
crime.3 
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. 
1 Edinburgh Medical and Surgical Journal, Jan. 1855, p. 50. 
2 Simpson, Obstetric Works, edited by Priestley and H. E. Stoker, 
vol. ii. p. 88. 
3 It will be noticed, that, in the medical portion of this work, no discussion 
is had of the technical character or evidence of infanticide, the murder of a 
child after its birth ; whereas, in the legal portion, it is necessary incidentally to 
refer to it as bearing upon collateral questions. There are, however, so many 
points involved of importance and interest, that it is possible we may con- 
jointly discuss this crime also, in a future publication. ITS FREQUENCY, AND THE CAUSES THEREOF. 
15 
CHAPTER 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, statis- 
tics 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 conclu- 
sion, tend, when combined, to make it almost absolutely 
certain. 
We are to consider, in this connection, the evidence 
afforded by - 
1. The comparative increase of population. 
2. The published records of still-births. 
3. The number of arrests, or trials for abortion. 
4. The published number of immediate maternal deaths. 
5. The pecuniary success of abortionists, and venders of 
abortion-producing nostrums. 
6. The comparative size of families in present and past 
times. 
7. The experience of physicians, - direct from applica- 
tions for abortion and actual cases thereof, and indirect 
from their results. 
Several of these points were, at the time we commenced 
our investigations, almost wholly uninvestigated. They 
were stated, therefore, with care, as bearing decidedly on 
the question at issue, and as tending to provoke still further 
research. 
1. Let us first consider the rate of increase of our popu- 
lation. 16 
CRIMINAL ABORTION. 
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, involv- 
ing, 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 fre- 
quent decrease of rural, was not our intention, nor was 
it necessary. By considering this point in connection 
with that immediately succeeding it, with which it is inti- 
mately related, its bearing and importance will at once be 
seen. 
Statistics in this country were as yet so imperfect, as is 
indeed still the case, that we were necessitated to the logic 
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 as 
in that country, and probably more so. 
I am aware that the evidence of statistics is received by 
many minds with a certain measure of doubt; but I shall ITS FREQUENCY, AND THE CAUSES THEREOF. 
17 
endeavor so to add proof to proof, and to draw these from 
such authoritative sources, that no doubt can fairly re- 
main. I base my remarks upon the following self-evident 
laws: - 
1st, That, while a result or event in individual instances 
is ever variable and uncertain, this result or event, when 
calculated from or upon masses of instances, becomes pro- 
portionately certain and invariable. 
2d, That, to apply this principle to the case we are now 
considering, the absolute number of living births in a given 
population in a given time should, in the absence of an 
evident and sufficient disturbing cause, be always nearly 
the same ; increasing with the increase of the popula- 
tion, and with the progress of medical science (which 
might easily be proved to be in this respect constantly 
advancing). 
3d, That the absolute number of still-births at the full period 
of pregnancy, occurring from natural causes in a given time 
in a given population, should be always nearly the same; 
increasing only in proportion to the actual increase of the 
population, and decreasing with the progress of medical 
science. 
4th, That the absolute number of premature births, occur- 
ring from natural causes in a given time in a given popula- 
tion, should be always nearly the same; increasing only in 
proportion to the actual increase of the population, and de- 
creasing with the progress of medical science. 
5th, That the relative number of still-births from natural 
causes, at the full period of pregnancy and premature, as com- 
pared with the living births in a given population in a given 
time, should be always nearly the same; not being affected 
by an increase of population, and constantly lessened by the 
progress of medical science. 
6th, That the relative number of still-births from natural 
causes, at the full period of pregnancy and premature, as 
compared with the general mortality in a given population in 18 
CRIMINAL ABORTION. 
a given time, should remain always nearly the same; not 
being affected by an increase of population, and but slightly 
by the progress of medical science. 
7th, That the relative number of still-births from natural 
causes, premature and at the full period of pregnancy, 
should remain always nearly the same compared with each 
other; neither of them being affected by the increase of 
population, and each of them nearly equally by the progress 
of medical science.1 
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. 
In Sweden, it has lessened by one-ninth in 61 years; in 
Prussia, by a third in 132 years; in Denmark, by a quar- 
ter 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.2 
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 annu- 
1 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 Eu- 
rope and America, read before the American Academy of Arts and Sciences, 
Dec. 14, 1858, as a contribution to the Science of Political Economy, 
and published in Silliman's Journal of Science and Art, New Haven, March, 
1867. 
2 Moreau De Jonnes, Ele'ments de Statistique, 1856, p. 202. ITS FREQUENCY, AND THE CAUSES THEREOF. 
19 
ally, from 1806 to 1846 had fallen to about .5 per cent.1 
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-Gen- 
eral show a relative increase nine times greater.2 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.3 
Rate of increase. 
Per cent. 
Hungary, according to Roh- 
rer 2.40 
England, from 1811 to 1821 1.78 
,, from 1821 to 1831 1.60 
Prussia, from 1816 to 1827 . 1.54 
„ from 1820 to 1830 . 1.37 
„ from 1821 to 1831 . 1.27 
Austria (Rohrer) . . . 1.30 
Scotland, from 1821 to 1831 1.30 
Netherlands, from 1821 to 
1828 1.28 
Rate of increase. 
Per cent. 
Saxony, from 1815 to 1830. 1.15 
Baden (Heunisch), from 
1820 to 1830 .... 1.13 
Bavaria, from 1814 to 1828 1.08 
Naples, from 1814 to 1824 . 0.83 
France (Mathieu), from 1817 
to 1827 0.63 
France, more recently (De 
Jonnes) 0.55 
A similar and corroborative table, containing additional 
matter, is given by Quetelet;4 its differences from the pre- 
ceding are owing to its representing a series of different 
years. 
1 Journal des Economistes, March and May, 1847. 
2 Edinburgh Review, Jan. 1857, p. 342; Med. Times and Gazette, May, 
1857, p. 462. 
3 Lehrbuch der Politischen Oekonomie. 
4 Sur 1'Homme et la Developpement de ses Faculty, tome i. ch. 7. 20 
CRIMINAL ABORTION. 
Rate of increase. 
Per cent. 
Ireland . . . . *. . . 2.45 
Hungary 2.40 
Spain 1.66 
England 1.65 
Rhenish Prussia .... 1.33 
Rate of increase. 
Per cent. 
Austria 1.30 
Bavaria 1.08 
Netherlands 0.94 
Naples 0.83 
France 0.63 
And more recently, Legoyt brings up these results to the 
close of 1846.1 As shown by the census, the rate of increase 
was, in 
Per cent. 
Great Britain, exclusive of 
Ireland 1.95 
Prussia 1.84 
Saxony 1.45 
Norway 1.36 
Per cent. 
Sardinia 1.08 
Holland 0.90 
Austria 0.85 
Sweden 0.83 
France 0.68 
Or, as shown by the annual excess of births over deaths, 
and therefore more reliable : - 
Per cent. 
Norway 1.30 
Prussia 1.18 
Sweden 1.14 
Holland 1.03 
Wurtemberg 1.00 
Great Britain, exclusive of 
Ireland 1.00 
Denmark 0.95 
Per cent. 
Austria 0.90 
Saxony 0.90 
Hanover 0.85 
Belgium 0.76 
Bavaria 0.71 
Russia 0.61 
France 0.50 
In four departments of France, among which are two of 
the most thriving of Normandy, the deaths actually exceed 
the births.2 
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 simi- 
lar ratio. This is found, indeed, to be the case. 
1 Journal des Economistes, May, 1847. 
2 Mill, Principles of Political Economy, i. p. 343. ITS FREQUENCY, AND THE CAUSES THEREOF. 
21 
From large statistics furnished by De Jonnes, we have 
compiled the following table of the- comparative ratios of 
births to the population in the principal countries of Eu- 
rope : - 
Ratio. 
Venice and Dependen- 
cies, 1827 . . . . 1 to 23 
Tuscany, 1834 ... „ 
Lombardy, 1828 . . . 1 to 24 
Russia, 1835 . . . . 1 to 25 
Wurtemberg, 1821 to 
1827 „ 
Prussia, 1836 .... ,, 
Mecklenburg, 1826 . . 1 to 26 
Sardinia, 1820 ... „ 
Naples and Dependen- 
cies, 1830 .... ,, 
Greece, 1828 .... ,, 
Poland, 1830 . . . . 1 to 27 
Ireland, 1821 to 1831 . ,, 
Germany, 1828 ... ,, 
Switzerland, 1828 . . ,, 
Spain, 1826 .... ,, 
Portugal, 1815 to 1819 . 1 to 27.5 
Ratio. 
Sweden, 1825 . . . . 1 to 28 
Holland, 1832 .... ,, 
Austria, 1829 .... ,, 
Belgium, 1836 .... ,, 
Bavaria, 1825 .... ,, 
Two Sicilies, 1831 ... ,, 
Sweden and Norway, 1828 1 to 30 
Denmark, 1833 .... ,, 
Roman States, 1836 . . ,, 
Turkey, 1835 .... ,, 
Hanover, 1835 . . . . 1 to 31 
Sicily, 1832 „ 
Austria, 1828 to 1830 . . 1 to 32 
Great Britain, 1821 to 1831 ,, 
Scotland, 1821 to 1831 . 1 to 34 
England, 1821 to 1831 . 1 to 35 
Norway, 1832 .... ,, 
France, 1771 to 1851 . . 1 t.o 25 
to 1 to 37 
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 : - 
Ratio of births. 
1771 to 1775 . . . . 1 to 25 
1801 to 1810 . . . . 1 to 30 
1811 to 1825 . . . . 1 to 32 
1826 to 1836 . . . . 1 to 33 
Ratio of births. 
1836 to 1840 . . . . 1 to 34 
1841 to 1845 . . . . 1 to 35 
1846 to 1850 . . . . 1 to 37 
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: - 22 
CRIMINAL ABORTION. 
Annual ratio 
of births. 
1 to 23 Venetian Provinces, 1827; Tuscany, 1834. 
1 to 23.5 Kingdom of Naples, 1822 to 1824. 
1 to 24 Tuscany, 1818 ; Sicily, 1824; Lombardy, 1827 to 1828; Rus- 
sia, 1831. 
1 to 24.5 Prussia, 1825 to 1826. 
1 to 25 France, 1781; Austria, 1827; Russia, 1835; Prussia, 1836. 
1 to 26 Sardinia, 1820; Hanover, Wurtemberg, and Mecklenburg, 
1826; Greece, 1828; Naples, 1830. 
1 to 27 Spain, 1826 ; Germany and Switzerland, 1828; Poland, 1830; 
Ireland, 1831. 
1 to 27.5 Portugal, 1815 to 1819. 
1 to 28 Holland, 1813 to 1824; Bavaria and Sweden, 1825; Austria, 
1829; Belgium, 1836. 
1 to 29 Canton Lucerne, 1810; Holland, 1832. 
1 to 29.8 France, 1801. 
1 to 30 Sweden and Norway, 1828; Belgium, 1832; Denmark, 1833; 
Turkey, 1835 ; States of the Church, 1836. 
1 to 31 Sicily, 1832; Hanover, 1835. 
1 to 31.4 France, 1811. 
1 to 31.6 France, 1821. 
1 to 32 Austria, 1830; Great Britain and Switzerland, 1831. 
1 to 33 France, 1828 to 1831. 
1 to 34 Norway and Holstein, 1826 ; Scotland, 1831; France, 1834 to 
1841. 
1 to 35 Denmark, 1810; England, 1831; Norway, 1832. 
1 to 37 France, 1851. 
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 31.98.1 
2. Again, as might have been expected, we find that the 
proportion of still-births, in which we must include abor- 
tions, as has hitherto been done, however improperly, in all 
1 Husson, Les Consummations de Paris, 1856. ITS FREQUENCY, AND THE CAUSES THEREOF. 
23 
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 Ihe various coun- 
tries of Europe.1 
Geneva,2 1824 to 1833 . 1 to 17 
Berlin Hospitals, 1758 to 
1774 1 to 18 
Paris Maternite,3 1816 to 
1835 1 to 20 
Sweden, 1821 to 1825 . 1 to 23.5 
Denmark, 1825 to 1834 . 1 to 24 
Belgium,4 1841 to 1843 . 1 to 24.2 
Prussia,5 1820 to 1834 . 1 to 29 
Iceland, 1817 to 1828 . 1 to 30 
Prague, 1820 . . . . 1 to 30 
London Hospitals, 1749 
to 1781 1 to 31 
Vienna, 1823 . . . . 1 to 32 
Austria, 1828 . . . . 1 to 49 
France at large, 1853 . 1 to 24 
Department of Seine . 1 to 15 
Paris,6 1836 to 1844 . . 1 to 14.3 
„ 1845 to 1853 7 .Ito 13.8 
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 
1836 to 1845 . . . . 1 to 19.55 | 1846 to 1850 .... 1 to 18.8 
While districts more thinly populated gave, from 
1841 to 1845 . . . . 1 to 29 | 1846 to 1850 . . . . 1 to 278 
In Belgium, during a similar period, the ratio was much 
the same.9 
1841 to 1843, in towns . 1 to 16.1 ] 1841 to 1843, in country 1 to 29.4 
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 
1 Compiled from De Jonnes. 2 10,925 births ; 646 still-births. 
3 Births, 52,538 ; still-births, 2,624. 
4 Compiled from Quetelet, Theory of Probabilities, p. 152. 406,073 
living births ; 16,767 still-births. 
5 Births, 7,593,017; still-births, 257,068. 1839-41, 1 to 26. - Elliott, 
Hunt's Merchants' Magazine, July, 1856. 
6 2,080 still-births. 7 2,349 still-births. 
8 De Jonnes, loc. cit., p. 239. 9 Quetelet, loc. cit., p. 152. 24 
CRIMINAL ABORTION. 
in Paris, that the ratio of births to the population is greater 
in the city than in the country at large. 
Still again, 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 foetal mortality of Paris, and in this matter almost 
only crime, there were deposited during the eighteen years 
preceding 1855, a total of 1,115 foetuses,1 of which 423 
were at the full term, and 692 were of less than nine 
months; and of these last, 519, or five-sixths, were of not 
over six months, a large proportion of them showing de- 
cided marks of criminal abortion. 
Again, of the 692 foetuses 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 :2- 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. 
Weturn 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 foetal deaths, has steadily and rapidly increased. With 
a population at that time (1805) of 76,770, the number of 
1 Register of the Morgue. 
2 De Jonnes, loc. cit., p. 193. ITS FREQUENCY, AND THE CAUSES THEREOF. 
25 
still and premature births was 47 ; in 1849, with a popula- 
tion estimated at 450,000, the number had swelled to 1,320? 
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 foetal deaths to the population was in - 
1805 1 to 1,633.40 
1810 1 to 1,025.24 
1815 1 to 986.46 
1820 1 to 654.52 
1825 1 to 680.68 
1830 1 to 597.60 
1835 1 to 569.88 
1840 1 to 516.02 
1845 1 to 384.68 
1849 1 to 340.90 
Iii the three years preceding 1849, there were registered 
in New York 400 premature births, and 3,139 children still- 
born,- a total of 3,539, representing at that time a yearly 
average of some 1,200 foetal 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 1,196 premature, and 4,735 still births,2 - a 
total of 5,931, representing a yearly average of some 2,000 
foetal deaths; showing that, in the short space of seven 
years, the number of foetal 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;3 
proving that of children at the full time alone, setting aside 
1 Report of the City Inspector of New York for 1849. 
2 City Inspector's Report for 1856. 3 Ibid. 26 
CRIMINAL ABORTION. 
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.1 
In Geneva, out of 10,925 births occurring from 1824 to 
1833, 1,221 of them being illegitimate, and therefore to be 
supposed liable to a large percentage of deaths from criminal 
causes, there were only 646 foetal deaths; a proportion of 1 
in 17. 
In Belgium there were 29,574 illegitimate births from 
1841 to 1843, and, of these, 1,766 were born still;2 1 in 
16.8. 
In New York, from 1854 to 1857, there were 48,323 births, 
and 5,931 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,3 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 as- 
tounding. 
1 Dr. E. M. Snow, of Providence, R. I., the very accurate Superintendent 
of Health of that city, writes us under date of 30th of January, 1868, that 
still-births in this country are as yet scarcely anywhere fully reported. " In 
Providence," he says, " I think we get nearly all of the still-born at full time, 
with a considerable number of the premature births. I report them all to- 
gether, and report them under the head of still-born. The proportion of 
still-born to all the births in Providence from 1856 to 1866 inclusive, is 1 in 
17.8." 
2 Compiled from Quetelet, loc. cit., p. 152. 
3 Compiled from City Inspector's Report for 1855. ITS FREQUENCY, AND THE CAUSES THEREOF. 
27 
1804 to 1809 . . . 
Total mortality. 
13,128 
Still-births. 
349 
Ratio. 
1 to 37.6 
1809 to 1815 . . . 
14,011 
533 
1 to 26.3 
1815 to 1825 . . . 
34,798 
1,818 
1 to 19.1 
1825 to 1835 . . . 
59,347 
3,744 
1 to 15.8 
1835 to 1855 . . . 
289,786 
21,702 
1 to 13.3 
1856 1 
21,658 
1,943 
1 to 11.1 
18682 
1 to 10.5 
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,3 there were 530 abortions and mis- 
carriages. Here all the abortions were known: their pro- 
portion was 1 in 78.5.4 
In New York, from 1854 to 1857, there were 48,323 
births at the full time reported, and 1,196 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. 
1 City Inspector's Report for 1856. 
2 As stated by Dr. Elisha Harris, Registrar of Vital Statistics in New 
York, and member of the Metropolitan Board of Health (New-York Med. 
Gazette, 8 Feb. 1868, p. 155). This fact, and another given on a shortly ensu- 
ing page, go far to prove that our early deductions from the statistics of the city 
of New York cannot be wide from the truth. The effect of the attendance by 
uneducated midwives is insufficient to account for more than a fraction of the 
ratio existing, which is the rather to be explained by " the great frequency 
of applications for the production of abortion made to physicians by per- 
sons of high character and intelligence." (Prof. Elliot of New York, Ibid.) 
3 Clay, Obstetric Cyclopaedia, p. 21. 
4 We have elsewhere shown that abortions from accidental causes, or from 
disease, are very much more frequent than is generally supposed (Boston 
Med. & Surg. Journal, Feb. 5,1863). It must be recollected, however, that, so 
far from their relative number increasing from year to year, it must surely be 
decreasing. Our control of those maternal, foetal, and placental diseases 
that may cause abortion, is steadily growing greater, and so is our ability to 
prevent the effect of most of the accidents that occur. The fact referred to 
tends, therefore, to strengthen rather than to weaken our argument. 28 
CRIMINAL ABORTION. 
Iii the seventeen years from 1838 to 1855,1 there were 
reported 17,237 still-births at the full time, and 2,710 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 6,445 still at the full time; a yearly average of 1 in 
10.2. 
In the eight years, from 1848 to 1855, there were 2,078 
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 1,556 
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, " such a hecatomb of human offspring to natural 
causes."2 We shall soon proceed to prove this point by 
other reasoning. 
In 1868, much the same condition of things still obtains. 
Dr. Elisha Harris estimates that an eighth of all the still- 
births in New York are now at the seventh month, a time 
when the skill or ignorance of the accoucheur are of compar- 
atively little importance with reference to the chance of so 
young a foetus living. This proportion is of course greatly 
1 Separate records of the premature births in New York were not made 
before this period. They were not rendered in 1842; we have therefore 
omitted in the calculation the still-births of the same year. For a series of 
the official reports, we are indebted to the then City Inspector, Mr. George 
W. Morton. 
It has been objected by a friend, with reference to the statistics of New 
York, that while for the past twenty-five years the returns of deaths, 
including still-births, have been very perfect, they were not so previously, 
and that, while the deaths and still-births are fully reported, the births never 
have been, and are not now, perhaps not even a fourth of them. If, 
however, to meet these points, we discard the earlier of the ratios given 
above, and examine only those that are calculated within the past twenty- 
five years, the irresistible conclusion remains the same. 
2 Inspector's Report of 1849. ITS FREQUENCY, AND THE CAUSES THEREOF. 
29 
increased by including the premature still-births occurring 
at all other periods of gestation.1 
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 
wdiole matter, directly and with almost mathematical exact- 
ness, is proved to tend. 
" In France," remarks De Jonnes,2 " 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 ;3 the number of births not 
increasing at all, while the proportion of births to the popu- 
lation is considerably diminishing."4 
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 increas- 
ing ; that the premature births progress in similar ratio, 
and, by deduction and actual statistics, the criminal abor- 
tions ; and that these facts obtain, not merely in the metrop- 
olis, 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 pro- 
portionate 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,5 Husson,6 and De Jonnds7 have thought, to be 
attributed to a mere progressive lack of fecundity. Reason, 
1 New-York Medical Gazette, 8 Feb. p. 155. 2 Loc. cit., p. 195. 
3 Loc. cit., i. p. 344. 4 Ibid., p. 343. 
5 Med. Times and Gazette, June, 1856, p. 611. 
6 Les Consummations de Paris. 7 Loc. cit. 30 
CRIMINAL ABORTION. 
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 
wre have stated. Their interpretation of the causes, un- 
willing as they would be to confess its ultimate bearing, we 
now compel to serve as evidence. 
"They depend," according to one writer,1 "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 popu- 
lation ; and this obstacle, this restraint, is found in its ad- 
vanced civilization." 2 
" This diminution of births," says Legoyt,3 " in the pres- 
ence 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 down- 
right ' Paysan du Danube: ' both in fact and in fiction he is 
now ' le rus^ paysan.' That is the stage which he has 
reached in the progressive development which the constitu- 
tion of things has imposed on human intelligence and human 
emancipation." 4 
" 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 prevent- 
ive check; and one or the other of these must and does 
exist, and very powerfully too, in all old societies. Wher- 
ever population is not kept down by the prudence of indi- 
1 De Jonnes, loc. cit., p. 194. 2 Ibid., p. 195. 
3 Journal des Economistes, 1847. 
4 Mile, loc. cit., i. p. 336. The italics are our own. We shall hereafter 
refer back to tliis passage. ITS FREQUENCY, AND THE CAUSES THEREOF. 
31 
viduals or of the State, it is kept down by starvation or 
disease."1 
But, on the other hand, it has been forgotten that the 
alternative supposed does not exist in the case we have in- 
stanced. Marriages in France, unlike some other Conti- 
nental 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,2 
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."3 Several of them 
have been named by the authority now quoted. Another, 
and greater than them all, he leaves unspoken : we are com- 
pelled to supply for him the omission. 
The practice of destroying the foetus 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,4 
and Plato.5 It is mentioned by Juvenal,6 Ovid,7 Seneca, 
and Cicero, and is denounced by the earlier Christians.8 It 
was common in Europe through the middle ages, and still 
prevails among the Mohammedans,9 Chinese,10 Japanese,11 
1 Ibid., i. p. 417. 2 Essay on Population. 
3 Mill, loc. cit., i. p. 417. 
4 Travels of Anacharsis, v. p. 270. 
5 Ibid., iv. p. 342. 6 Satires, vi. v. 592. 
7 Amor., lib. 2; Heroides, epist. 2. 
8 Reeve's Apologies. 
9 Blaquiere, Letters from the Med., pp. 90, 184; Slade, Records of 
Travels, ii. p. 162. 
19 Barrow, Travels in China, p. 113; De Pauw, Philosoph. Dissert.;' 
Medhurst, China, &c., p. 45 ; Smith, Exploratory Visit, &c., i. p. 53. 
11 Golownin, Memoirs of a Captivity, iii. p. 222. 32 
CRIMINAL ABORTION. 
Hindoos,1 and most of the nations of Africa and Polynesia,2 
to such an extent, that we may well doubt whether more have 
ever perished in those countries by plague, by famine, and 
the sword. 
1 Moor, Hindoo Infanticide, p. 63; Buchanan, Christian Researches in 
Asia, p. 49 ; Ward, View of the History, &c., of the Hindoos, p. 393. 
2 For a long list of authorities on these points, see Beck, Med. Jurispru- 
dence, ii. p. 389 et seq. 
Through the kindness of a friend, Dr. D. F. Lincoln, our attention has 
been called to a late paper by Dr. Stricker, of Frankfort-on-the-Main, who con- 
siders that the relative frequency of the crime in Christian as compared with 
other nations has not yet been sufficiently appreciated, either by ethnogra- 
phers or physicians, owing to the fact, that, while in heathen countries the prac- 
tice is resorted to with an openness which courts observation, in Europe its 
evidences are confined, in great measure, to the annals of criminal administra- 
tion, and are therefore comparatively unknown. This writer furnishes us with 
much interesting evidence of the frequency of abortion in uncivilized countries, 
which does not seem as yet to have been presented to the English reader, a por- 
tion of which I will here give. " Lorenz Rigler, whilom teacher of clinical 
medicine in Constantinople (Die Tiirkei und deren Bewohner; Wien 1850), 
says that along with the causes of the premature old age of the Turkish women, 
their usually irregular menstruation, their hemorrhages and numerous other 
diseases of the sexual organs, and their infecundity, must be reckoned the 
measures which they take to expel the fruit of their bodies, with the inten- 
tion of preventing a numerous family, for financial reasons, or to preserve 
their beauty. Pregnancy in the unmarried is always interrupted by violence, 
Jewesses being commonly employed. The Government treats those de- 
tected in giving drugs for this purpose with great severity. 
" Similar accounts are given by the former body physician to the Shah of 
Persia, and teacher in the medical school at Teheran, Dr. Jacob Edward Po- 
lak (Persien, das Land und seine Bewohner; Leipzig, 1863, 1, p. 216), 
who, after a nine years' residence in that country, states that all pregnancies 
outside of marriage end with abortion, the membranes being ruptured with a 
hook. This operation is executed by midwives of whom there were several 
in Teheran, well known and much sought after on this account. The busi- 
ness is carried on quite openly, and no hindrance is opposed. Only a few 
unhappy creatures try to assist themselves; these apply quantities of leeches, 
are bled in the feet, take emetics of sulphate of copper, drastic purgatives, or 
the sprouts of date-stones, and, if all these means fail, they cause their abdomen 
to be beaten, and walked over; many perishing under the effects of this 
rough treatment. But nowhere in Persia does the evil custom prevail, which 
is universal among the higher classes of Turkey, that the woman, after bear- 
ing two children, for the future provokes abortion, with the knowledge of her 
husband, partly to preserve her form and beauty, and partly to diminish the 
number of her descendants. Macmurdo found in Cutch, the peninsula 
north of Bombay, that abortion is an universal custom. -Ritter, Erdkunde, 
vi. p. 1054." ITS FREQUENCY, AND THE CAUSES THEREOF. 
33 
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 compar- 
ative 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 shud- 
ders." In comparing that city with Paris, certain allow- 
ances 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 mi- 
gration 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 constant progress of science, medical 
and hygienic, the ratio of foetal 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 despot- 
ism, the effects, attributable elsewhere to these causes, exist, 
and to a greater degree than in any other country : 
That the ratio of foetal 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 foetal deaths in seven years, 
from 1850 to 1857, had very nearly doubled: 
That the foetal 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 34 
CRIMINAL ABORTION. 
produced them, being 1 in 16.8,1 - had here, legitimate and 
natural, reached the frightful ratio of 1 in 8.1: 
That the foetal deaths, as compared with the total mortal- 
ity, had increased from 1 in 37, in 1805, to 1 in 13, in 1855 ; 
and to 1 in 10.5, in 1868: 
That the reported early abortions, of which the greater 
number of course escape registry, bear the ratio to the 
living births of 1 in 4.04, 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 pre- 
mature birth or abortion, innumerable ones occur that are 
never recorded. 
Almost doubling, therefore, as does New York, the worst 
of those fearful ratios of foetal 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 Amerique, dans une 
grande cite comme New York, constituer une industrie 
veritable et non poursuivie." 
In this description of New York, we have that of the 
country.2 The relative annual increase of the population 
1 Belgium. 
2 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 (North American Medico- 
Chirurgical Review, 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 Professor Hodge. ITS FREQUENCY, AND THE CAUSES THEREOF. 
35 
existing throughout America, depending as this does chiefly 
on immigration, must not mislead us. The ratio of foetal 
death in the metropolis surpasses what has ever been 
dreamed to obtain even in old countries, where innumer- 
able 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, " undoubt- 
edly more than a hundred still-births yearly escape being 
recorded, a large proportion of which, no doubt, result from 
criminal abortion."1 And our public prints, far and wide, 
even in the smaller towns and villages, constantly chronicle 
deaths from the commission of the crime.2 
It will be seen that the tables we have now given, and the 
calculations from which they are deduced, are mainly brought 
down to no later period than the year 1860. At the present 
date (1868), our time is so completely occupied by the 
1 MS. Letter from City Registrar, March 26, 1857. In a late number 
of the Philadelphia Medical and Surgical Reporter, it is stated that the effi- 
cient Registrar of the city of Boston, Mr. Apollonio, has seen reason to 
retract the above opinion. This, however, is not the case. He has just 
written us (1868) as follows : "I have not changed my opinion, and am at a 
loss to account for the statement. I think I am right in inferring what is 
obvious to every one who reflects at all on the matter: 1. That there are 
fewer marriages than there should be; 2. That fewer births result from these 
marriages than ought to proceed therefrom ; 3. That the cause of the above 
facts is not a good or satisfactory one, in any point of view." 
2 Shortly after the above was first written, the report of the committee ap- 
pointed in 1858 to investigate the Health Department of the city of New York 
appeared; and we found that our statements regarding the frequency of the 
crime in the metropolis were fully corroborated. Not merely were additional 
official statistics on this point given (pp. 182, 183), but valuable testimony 
from Drs. Griscom (pp. 25,30), McNulty (p. 55), Prancis (p. 64), and Bulk- 
ley (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. Valuable evidence is also given by Dr. Sanger, 
of New York, in his work upon Prostitution. 
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 
first in type, by Professor Walter Channing. (Boston Med. and Surg. 
Journal, March 17, 1859.) 36 
CRIMINAL ABORTION. 
duties of an engrossing practice, that it is impossible for 
us even to present the mass of statistical material that has 
since accrued, much less to institute careful comparisons 
between the different series of years. To do so is, however, 
now unnecessary; for, while we have no doubt that our con- 
clusions would all be borne out by the added results of 
later years, they have received such proof from the direct 
evidence that has since been afforded by medical practition- 
ers, as to render any further labor of the kind we have hither- 
to presented, simply a work of supererogation. As a single 
instance, however, of the completeness with which the more 
thorough investigations of the present day tend to cor- 
roborate our conclusions, we will present the statistics of one 
of our smaller towns, Amherst, Mass., tabulated to within 
the past year. They were compiled, and furnished us, by 
our friend, Professor Edward Hitchcock, of that place, in 
March, 1867. 
" On account of some statements made by a correspond- 
ent upon the subject of4 Vital Statistics,' - such as that the 
births and deaths for 21 years could be the only fair basis 
for a calculation, - our very accurate and courteous town 
clerk, Mr. Carter, has furnished a complete table of all the 
births and deaths in town for the past 21 years, and the 
number of deaths under one year (including still-born), 
and those under 21 years. 
Births. 
Deaths. 
Deaths 
under 1 year. 
Deaths 
under 21 years 
1846 . 
. . 72 . . 
. 56 . 
. . 16 . 
. . 33 
1847 
. . 72 . . 
. 26 . 
. . 4 . 
. . 9 
1848 
. . 83 . . 
. 67 . 
. . 7 . 
. . 39 
1849 
. . 68 . . 
. 70 . 
. . 11 . 
. . 34 
1850 
. . 74 . . 
. 66 . 
. . 17 . 
. . 37 
1851 
. . 80 . . 
. 75 . 
. . 11 . 
. . 42 
1852 
. . 77 . . 
. 43 . 
. . 9 . 
. . 19 
1853 
. . 79 . . 
. 49 . 
. . 6 . 
. . 20 
1854 
. . 59 . . 
. 60 . 
. . 8 . 
. . 23 
1855 
. . 61 . . 
. 42 . 
. . 6 . 
. . 16 
1856 
. . 67 . . 
. 40 . 
. . 2 . 
. . 8 
1857 
. . 68 . . 
. 54 . 
. . 12 . 
. . 30 ITS FREQUENCY, AND THE CAUSES THEREOF. 
37 
Births. 
Deaths. 
Deaths 
under 1 year. 
Deaths 
under 21 years 
1858 
. . 61 . . 
. 60 . 
. . 11 . 
. . 32 
1859 
. . 50 . . 
. 57 . 
. . 12 . 
. . 29 
1860 
. . 73 . . 
. 57 . 
. . 16 . 
. . 27 
1861 
. . 80 . . 
. 57 . 
. . 7 . 
. . 30 
1862 
. . 69 . . 
. 55 . 
. . 7 . 
. . 23 
1863 
. . 67 . . 
. 49 . 
. . 5 . 
. . 13 
1864 
. . 65 . » 
. 85 . 
. . 7 . 
. . 28 
1865 
. . 74 . . 
. 63 . 
. . 10 . 
. . 24 
1866 
. . 95 . . 
. 42 . 
. . 5 . 
. . 15 
Total births for 21 years, 1,494. 
Total deaths for 21 years, 1,173. 
Deaths under 1 year, 189. 
Deaths under 21 years, 531. 
Average annual births for 21 years, 71. 
Average annual deaths for 21 years, 56. 
Proportion of births to deaths for 21 years, 9 to 7 (nearly), 1 to 
0.785. 
Proportion of births to deaths from 1846 to 1855, 1 to 0.764. 
Proportion of births to deaths from 1856 to 1866, 1 to 0.804. 
Calculated proportion of births to deaths for 21 years, 1 to 0.400. 
" Suppose that we divide these 21 years into two periods, 
one from 1846 to 1855 inclusive, and from 1856 to 1866 in- 
clusive, and see what has been the death-rate for these 
periods. In the first one, it has been at the rate of 764 
deaths for every 1,000 births ; and, in the last one, at the rate 
of 804 to every 1,000, or an increase of 4 per cent. It 
ought to be mentioned, however, that, in the count of deaths 
for 1864, there were 19 reckoned as deaths in Amherst, 
which really did not take place in town, but were citizens of 
Amherst serving in the Union army, and either were killed 
in battle or died in hospital. This, however, would reduce 
the average but slightly, making the rate to be 780 to every 
1,000, instead of 804 to 1,000. Taking, then, the lowest 
actual death-rate, we find that the difference between the 
first and second period is sixteen-thousandths; or the fact 
is, that, out of every 1,000 deaths, there were 16 more in the 
second than in the first period. 
" Let us now try to arrive at the same conclusions in 38 
CRIMINAL ABORTION. 
another way, by comparing the births of the five-years period 
from 1846 to 1850 inclusive, with consecutive five-year 
periods. In this comparison, we find that the births from 
1846 to 1850 are to - 
The deaths from 1851 to 1855 as 1 to 0.749. 
The same from 1856 to 1860 as 1 to 0.746. 
The same from 1862 to 1866. as 1 to 0.805. 
Or still in another way, - 
Deaths from 1846 to 1850, 285. 
Deaths from 1861 to 1865, 309. 
Births from 1846 to 1850, 379. 
Births from 1861 to 1865, 355. 
" By which we see that in the first period the deaths were 
less, and the births greater, than in the latter period, when 
the population of the town exceeded the former period by 
probably 700 persons. 
" Or, more exactly, the births from 1842 to 1851 were 
753, and those from 1857 to 1867 were 702 ; also the deaths 
from 1842 to 1851 were 577, and those from 1857 to 1867 were 
579. So that in the last decade we have 51 less births than 
we had in the first, and 2 more deaths, and that in spite of 
an increased population from immigration. 
" In a condensed form, then, this fact is presented to us, 
that the town of Amherst 20 years ago, with a population 
numbering about 2,550, had annually a greater number of 
births than it now has, with a population of about 3,200 ; 
and that the deaths of the town in the above-mentioned 
periods are almo-st exactly the same. 
" Let us adduce another phase under tliis branch of vital 
statistics. 
" The number of births in Amherst from 1842 to 1866 
inclusive is 1,799. The number of intentions of marriage, 
as registered by the town clerk during the same period, is 
772. This gives an annual average for these 25 years of a 
little more than two children for each of these published 
intentions (2.343). If now we take the same proportion ITS FREQUENCY, AND THE CAUSES THEREOF. 
39 
for the years of 1842 to 1846, we find the result to be nearly 
three children (2.892) ; and, if we make the same proportion 
on the five-year period from 1862 to 1866, the result is a 
little more than one child (1.156), or a difference of nearly 
two children (1.736). 
" If, however, any one should think that similar estimates 
from the actual marriages would be more valuable than 
from the intentions of marriage, it may be said that from 
1842 to 1846 the proportion is 3.377, and from 1862 to 1866 is 
2.334, or a difference of about one child. The record of in- 
tentions of marriage, however, may be regarded as more 
surely indicating the number of marriages than the record 
of marriages actually solemnized in the town." 
In one of his late reports to the Legislature of Massachu- 
setts, the efficient and thoughtful Secretary of the Board of 
State Charities, Mr. F. B. Sanborn, thus comments upon 
the fact now alluded to, - the decrease of the excess of 
our births over the deaths : - 
" It may be interesting to notice here some observations 
made, and statistics given, by Dr. William Farr, of London, 
in a paper read before the Social Science Congress at Man- 
chester early in October, 1866. Dr. Farr's paper shows, so 
far as public health is concerned, that England ranks next 
to Sweden and Norway, which are the most highly favored 
countries of Europe in this respect, the death-rate in them 
being so low as 17 annually in the 1,000 of population. In 
Great Britain and Ireland it averages 22, and in France it is 
also 22 ; so that the two countries seem to be on a par. But 
while the annual increase of population in Great Britain, 
(due chiefly to the excess of births over deaths) is upwards 
of 14,000 per million of the population, in France it is 
scarcely more than 4,000. The annual rate of increase in 
France is less than half that of Holland, only as 4 to 11 
compared with Denmark, and as 4 to 13 to Prussia. That 
these figures of Dr. Farr are mainly correct, we have no 
reason to doubt; but it seems that the excess of births over 40 
CRIMINAL ABORTION. 
deaths in the city of Paris (with a population of about 
1,725,000) is considerably greater than the above-named 
rate of 4,000 to the million. The statistics of Paris for the 
second quarter of 1866 prove that, from the 1st of April to 
the 1st of July, 13,405 children were born, being 263 males 
in excess of females. 9,601 of these children were legiti- 
mate, and 3,854 illegitimate. Among these latter, 960 were 
not recognized. During the same period, 4,877 marriages 
were contracted. 11,114 deaths occurred, of which 5,780 
were males. The average number of deaths in Paris was 
122 per day. Admitting that this excess of births over 
deaths is a fair average for the year, we have the annual 
excess of 9,164, or at the rate of about 5,300 to every mil- 
lion of the population. The rate in Massachusetts for tlie 
eight years 1856-1863 was less than 10,000 to the million, 
but yet nearly double that of Paris. 
" How comes it, we may inquire, that with conditions of 
public health equal to what exist in England, and far supe- 
rior (as Dr. Farr's figures show) to those of Germany, the 
French people should have become almost stationary in 
numbers ? This surely is a curious and interesting ques- 
tion to study; for it goes to the very root of national stabil- 
ity, and becomes an important one to us, when we reflect 
that our own State is approximating to this condition of 
France, - the excess of births over deaths being yearly 
diminished, except as affected by the great disturbing forces 
of war and peace. In France it has been suggested that 
the abstraction of 400,000 young men from the flower of 
the population to supply the army affords a partial explana- 
tion ; the large numbers of persons under religious vows of 
celibacy has also been assigned; besides what is styled the 
social evil. But this is not peculiar to France. We might 
be inclined partly to account for the fact by the scandalous 
neglect to which infants are abandoned in Paris and the 
great towns; but the statistics of mortality seem to forbid 
this. At any rate, there exists a very large amount of infant ITS FREQUENCY, AND THE CAUSES THEREOF. 
41 
mortality in France, far exceeding that of Massachusetts, 
painful as our own statistics are. On this subject there is 
a great deal more to be said, for which I have now neither 
the time nor the necessary statistics, concerning the preven- 
tion and the destruction of offspring, and the other matters 
related to it."1 
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 re- 
cent foreign origin ; " 2 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 in- 
creased ratio."3 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.4 
For several years since tho preceding paragraphs were 
1 Third Report of the Mass. Board of State Charities, 1866, p. 31. 
2 Chickering, Comparative View of the Population of Boston, 1850; 
City Document, No. 60, p. 44. 
3 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. 
4 " 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 perma- 
nent 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 migra- 
tion (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 pop- 
ulation, 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 ex- 
cess of births over deaths, leaving 62 per cent to be accounted for by excess 
of immigration over emigration."-Elliott, The Laws of Human Mortal- 
ity in Massachusetts; Proceedings of Am. Assoc, for Adv. of Science, Mon- 
treal, 1857, p. 57. 42 
CRIMINAL ABORTION. 
written, this question of the dying-out of the native popu- 
lation has been carefully investigated by statisticians, more 
especially Drs. Snow, of Providence, R. I., to whose labors I 
have already referred, and Nathan Allen, of Lowell, Mass., 
a member of the Board of State Charities. Dr. Allen has 
been indefatigable in calling the attention of investigators 
to this important question, through the media of legislative 
reports, the medical, and the public press. His results 
seem identical with those I had myself presented, as will be 
seen by the following summary of them, published by Dr. 
Allen in 1866 : - 
" From 1850 to 1866, the fifteen registration reports of 
Massachusetts return 208,730 births of strictly foreign 
parentage, besides 22,376 not stated, a large portion of 
which must be'foreign. All of these living when the census 
is taken, would be considered, according to present usage, 
American ; whereas they should be counted strictly under 
the foreign head. A careful analysis of the census and 
registration reports presents the following facts: - 
" The increase of population in the State has been con- 
fined principally to cities and towns where manufacturing, 
mechanical, and commercial business is carried on. In the 
purely agricultural districts, there has been very little in- 
crease of population. Railroads have had a powerful in- 
fluence in changing the population of the State from the 
hills and country towns to the valleys and plains. Where- 
ever water-power or steam-power has been introduced, or 
where trade and commerce has found advantages, there 
population has greatly increased. The eastern section of 
the State has increased far more than the middle or west- 
ern districts. Population in manufacturing places has in- 
creased about five times more than in agricultural districts. 
It is found, also, wherever there has been much or a rapid 
increase of population, it has been made up largely of a 
foreign element. Now, if a line could be drawn exactly be- 
tween the American and foreign population as it respects ITS FREQUENCY, AND THE CAUSES THEREOF. 
43 
this increase, it would throw much light upon the subject. 
According to the census of 1860, it appears that two coun- 
ties- Dukes and Nantucket - had actually decreased in 
population. There were eighty-six towns also which had 
diminished in population between 1850 and 1860. In a 
small part of these towns, this change is accounted for by 
the fact that some section of the place had, in the mean 
time, been set off to another town. The places in the State 
that have increased the least, or declined in population, are 
found to be settled generally with American stock. 
"A serious question here arises, Is there a natural increase 
in this class of the community ? It is generally admitted, 
that foreigners have a far greater number of children, for 
the same number of inhabitants, than the Americans. It is 
estimated by some physicians, that the same number of mar- 
ried persons of the former have, on an average, three times 
as many children as an equal number of those of the latter. 
This gives the foreign element great power of increase of 
population, - derived not so much from emigration as from 
the births exceeding greatly the deaths. It is alleged that 
great numbers of Americans move out of the State, and that 
this accounts for their apparent decrease in population. It 
should be remembered, also, that large numbers of the same 
class move every year into this State from other States. If 
we take, from the census of 1860, the difference between 
the number of persons from Massachusetts living in other 
States, and those born in other States residing in this State, 
the gain in this difference, from 1850 to 1860, was less than 
11,000. It is evident from this fact, that the actual loss of 
population of purely American origin by emigration is not 
very great, amounting to less than three thousand persons 
annually. In this three thousand persons, allowance is 
made for filling the places of those deceased natives of 
Massachusetts residing in other States, in excess of the 
number of persons deceased in this State, but natives of 
other States. This general statement deserves repetition ; 44 
CRIMINAL ABORTION. 
that is, that the strictly American population of Massachu- 
setts is not diminished by emigration annually three thou- 
sand persons over and above the number of the same class 
moving from other States into this State. But the question 
of natural increase is far more important; for, if the increase 
from this source is small or none at all, the loss of three 
thousand persons every year from the best portion of our 
population becomes a very serious matter. 
" It has been alleged that the births are not all reported. 
For many years after the registration laws went into force, 
it is well known that this was the fact; but of late years 
there are reasons to believe that pretty full returns are 
made. The United States census for 1860 reports under 
one year of age in Massachusetts 31,312 persons. The 
Registration Report of the State returns for the same year 
36,051 births, and 4,821 deaths of infants under one year of 
age, which leaves living 31,230, only eighty-two less than 
the census. These separate results are obtained by two 
distinct agencies, and modes of collecting the statistics en- 
tirely different, so that there could be no collusion or repeti- 
tion. We have not the same means to verify in other years. 
The Registration Report for 1864 gives 30,449 births and 
28,723 deaths ; for 1865, 30,249 births and 26,152 deaths; 
making only 1,726 births in 1864 more than the deaths, and 
4,097 more in 1865. Now, since the foreign population 
have two or three times as many children as the same num- 
ber of married persons among the Americans, - a fact well 
established, - is it not very evident that the strictly American 
deaths exceed the births ? In examining the reports, it 
appears that the counties containing the least foreign popu- 
lation return in 1864 and 1865 more deaths than births. 
Take the towns containing none or scarce any foreign popu- 
lation, where in 1864 and 1865 not a single birth is reported 
(there are thirty-foul such towns in the State), and the 
whole number of deaths in these towns for 1864 and 1865 
exceeds each year the births. On the other hand, an ex- ITS FREQUENCY, AND THE CAUSES THEREOF. 
45 
amination of those cities and towns containing a large 
foreign element shows that the whole number of births 
there invariably exceeds the deaths. 
" There is a difficulty in discriminating in the registra- 
tion reports between the deaths of Americans and of for- 
eigners, since the deaths of all those of foreign origin born 
in this country are understood to be returned as Ameri- 
cans. This mode of reporting the deaths is unfortunate 
where it is desirable to ascertain the natural increase of 
population in the two classes separately. Still, very correct 
knowledge upon this subject can be obtained in any city by 
a careful examination of the books of the undertakers, the 
superintendent of burials, and of the city clerk, together 
with the places of burial. In the cities of Lowell and Law- 
rence, where there is a very large foreign element, we have 
obtained from these sources the exact number of deaths, 
foreign and American, for 1864 and 1865; and the number of 
deaths in the former city over the births were rising one 
hundred each year, and in Lawrence, for the two years, they 
were over one hundred. 
" In a report upon the comparative view of the population 
of Boston in 1849 and 1850, made to the city government 
November, 1851, Dr. Jesse Chickering, after a most careful 
analysis of the births and deaths in Boston, states that ' the 
most important fact derived from this view, is the result 
that the whole increase of population, arising from the ex- 
cess of births over deaths for these two years, has been 
among the foreign population.' Since 1850, we think it 
will be very difficult to prove that there has been any nat- 
ural increase of population in Boston with the strictly Amer- 
ican population. 
" It may be said the force of tine statistics from the Regis- 
tration Reports of 1864 and 1865 is very much impaired by 
the effects of the war. The births may have been somewhat 
diminished, and the deaths increased, by such means; but 
then the foreign element would have been affected as well 46 
CRIMINAL ABORTION. 
as the American, since it was largely represented in the 
war. But a similar state of things in reference to the in- 
crease of the two classes existed for years before the war; 
and there is abundant evidence to prove that for a long time 
there has been a relative decrease of births with the Amer- 
icans. In the colonial census of 1765, taken one hundred 
years ago, when the main population was purely American, 
the total inhabitants were then 222,563, and the number 
under sixteen years of age returned as 102,489, - almost 
one-half of the whole population. Now it is estimated, that 
only about one-third of our population is under fifteen years 
of age. According to this estimate, a careful analysis of 
the natural proportion of the children to each class will 
show that scarcely one-fifth of the Americans are at the 
present time under sixteen years of age. This makes a 
surprising difference in the relative number of children of 
the same people at the two periods, 1765 and 1865. 
" Again, many towns in the State have been settled over 
two hundred years, and their history will include from six 
to eight generations. The records of several of these towns 
have been carefully examined with respect to the relative 
number of children in each generation. It was found, that 
the families comprising the first generation, had, on an av- 
erage, between eight and ten children; the next three gen- 
erations averaged between seven and eight to each family; 
the fifth generation about five, and the sixth less than three, 
to each family. What a change as to the size of the families 
since those olden times! Then, large families were com- 
mon ; now, the exception. Then, it was rare to find married 
persons having only one, two, or three children : now, it is 
very common. Then, it was regarded a calamity for a mar- 
ried couple to have no children: now, such calamities are 
found on every side of us; in fact, they are fashionable. 
" It is the uniform testimony of physicians who have been 
extensively engaged in the practice of medicine twenty, 
thirty, forty, and fifty years in this State, - and who have ITS FREQUENCY, AND THE CAUSES THEREOF. 
47 
the best possible means of understanding this whole sub- 
ject,- that there has been gradually a very great falling-off 
in the number of children among American families. 
"Two general remarks should here be made: 1st, That 
this decrease of children is found to prevail in country 
towns and rural districts almost to the same extent as in 
the cities, which is contrary to the general impression; 2d, 
From the bills of mortality, it is an established fact, that, on 
an average, only about three-fifths of all persons born, in- 
cluding the city and the country, ever live to reach adult 
life. It will be seen at once, that with this rate of mortal- 
ity, if the deaths exceed every year the births, or are only 
slightly in excess, the children will not keep the original 
stock good in point of numbers. In view of these facts, 
several questions naturally arise. If the foreign popula- 
tion in Massachusetts continues to increase as it has, and 
the American portion remains stationary, or decreases, as 
the probabilities indicate, what will be the state of society 
here twenty-five, fifty, or a hundred years hence ? How long 
will it be before the foreign portion will outnumber the 
American in our principal cities and towns, or constitute 
even a majority in the whole Commonwealth ? 
" The cause why there should be such a difference in the 
number of children, between the American families now 
upon the stage, and those of the same stock one, two, and 
three generations ago, is a subject of grave inquiry. Again, 
why should there be such a difference in this respect be- 
tween American families, and those of the English, German, 
Scotch, and Irish of the present day? Is this difference 
owing to our higher civilization, or to a more artificial mode 
of life and the unwholesome state of society ? Or can it be 
attributed to a degeneracy in the physical condition and 
organization of females, or a settled determination with the 
married to have no children, or a very limited number ? "1 
1 Third Annual Report of the Secretary of the Board of State Charities of 
Mass., 1866, p. 27. The above paper has given rise to much discussion. A 48 
CRIMINAL ABORTION. 
" 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?"1 These questions have hitherto been unanswered. 
We shall find, however, their solution only too easy. 
writer in the Philadelphia Medical and Surgical Reporter of 24 Nov. 1866, 
asserts that a clearer distinction should have been recognized between 
nativity and parentage, and that, if this had been done, the bearing of the 
statistics would have been materially changed. Dr. Snow, moreover, in a 
subsequent number of the Reporter (Jan. 1867), has taken a similar view, and 
writes us concerning the deficiencies of the Massachusetts registration reports 
in the respect referred to, saying that, however true the fact may be of those 
towns where Americans and foreigners are more nearly balanced, it cannot 
be so over the whole State. We have, however, been unable to perceive the 
force of these objections, inasmuch as the statistics originally presented seem 
reliable so far as they have been collected. Waiving, however, this point, 
Dr. Snow admits the whole question, when he allows that, though there may 
have "always been, in a series of years, an actual gain (of the American 
population), as compared with the foreign there is probably a relative loss." 
Had Dr. Chickering in the paper written in 1850, from which we have 
quoted, stated that the excess of births over the deaths was chiefly, instead 
of wholly, of those of recent foreign origin, there could have been no pos- 
sible exception taken to the truth of the statement. We may say, moreover, 
in this connection, that our friend, Dr. Snow, who is still engaged in investi- 
gating this subject, and in whose fairness and desire to arrive at an impar- 
tial conclusion we have great confidence, writes us under date of 4 Feb. 1868, 
subsequently to the letter we have quoted, that, while he believes much of 
the apparent decrease in our American population is owing to the systematic 
prevention of pregnancy, - a point to which we have already referred, - 
and to other causes rather than to abortion, yet that he is much nearer our 
position than when he began to investigate. " I am satisfied," he says, 
" that the crime of abortion is much more frequent and wide-spread than I 
had supposed, and that there is need of every effort to suppress it; " and he 
shows us, in his Registration Report of the City of Providence for the 
month of February, 1868, as an interesting fact, that, while there was an 
increase of 103 marriages in 1866, there was a decrease of 8 births in 1867. 
The Boston Daily Advertiser of 17 Jan. 1867, presents the question very 
fairly in an editorial which has not merely attracted attention at home, but 
excited much abroad. Had we space, we should quote from M. Carlier, 
of Paris, known in this country by his work, Le Mariage aux Etats Unis. 
In a letter seeking information concerning the acclimation of races in the 
United States, and communicated to us by his translator, Dr. B. J. Jeffries, 
this author lays much stress upon the value of the article referred to. 
1 Chickering, loc. cit., p. 49. ITS FREQUENCY, AND THE CAUSES THEREOF. 
49 
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 we may read this im- 
portant problem.1 
In 1850, the ratio of births to the population of Mas 
sachusetts, foreign and American combined, was 1 in 36,2 
and in 1855, 1 in 34;3 a ratio much smaller than that 
obtaining in most countries of Europe, and about equalling 
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 
15.5.4 In France it is 1 to 24; in Austria, 1 to 49. 
In 1851, the ratio of foetal deaths to the general mortality 
was 1 to 13.3 ;5 in 1855, 1 to 10.4.6 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 26.1.7 In 
1 The tables now presented, we prepared in 1857, from the fifteen Regis- 
tration Reports of the State of Massachusetts then published. Advance 
sheets of the Sixteenth Report were kindly furnished us while our first 
article was passing through the press, by the compiler, Dr. Josiah Curtis, 
of Boston. The premature births for 1856 and 1857 were not given in the 
reports for those years, so that we could not extend our calculations beyond 
1855. Deductions from the still-births at the full time, which were alone given 
in the years referred to, are of course useless for the present inquiry. 
2 Births, 27,664; population, 994,665. 
3 Births, 32,845 ; population, 1,132,369. 
4 Total births at full time, 32,845; living births at full time, 32,120; 
foetal deaths, 2,064; still, at full time, 725; premature, 1,339. 
5 Total deaths, including 1,462 foetal, 19,461. 
6 Total deaths, including 2,064 foetal, 21,523. 
1 Births at full time, 154,245; premature, 5,899. 50 
CRIMINAL ABORTION. 
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 78.1 
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 4,570 still-births, and 11,716 premature births 
and abortions,2 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 Massachu- 
setts 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 2,976 
still-births, and 5,899 premature births and abortions,3 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 Massachu- 
setts as in the worst statistics of the city of New York. 
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 regis- 
tration, however imperfect, 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 
I We have hitherto shown that the argument from this fact can be very 
materially strengthened. 
2 Fourteenth Registration Report, 1855. 3 Ibid. ITS FREQUENCY, AND THE CAUSES THEREOF. 
51 
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 Essay1 on the subject, and 
to the current medical periodicals. 
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,2 for this to be allowed. Our own calcula- 
tions were made with care, and we have presented the ele- 
ments 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 Massa- 
chusetts by living births is almost exclusively among its 
1 London Sanitary Review, July, 1859. See also the London Lancet of 
corresponding date, &c. 
2 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. 52 
CRIMINAL ABORTION. 
resident foreigners, Catholics, the rules of whose church 
will hereafter be shown to exercise an important influence 
in preventing the destruction of foetal 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, fright- 
ful as is the extent to which the crime of abortion is perpe- 
trated abroad,1 there is reason to believe that it prevails to 
an equal, if not even greater, extent at home. 
So far as we are aware, there has been no attempt made 
to invalidate the correctness of the above reasoning, during 
the years that have elapsed, since we first called the atten- 
tion of statisticians to these startling and I believe unim- 
pregnable factors. 
Just as the present book is going to the press however, a 
friend, who, while acknowledging the truth of most of our 
premises, has yet felt a natural disinclination to accept their 
conclusions, directs our notice to a new point, important in 
this connection, but tending emphatically to support rather 
than to subvert our views. " One fact," writes this gentle- 
man (to whom we have already referred), " is shown in 
Providence, and nowhere else. It is this, that the foreign 
mothers, mostly Catholic, have nearly twice as many still- 
born children, in proportion to the whole number, as the 
American mothers. Thus in 1864, 1 in 29.3 of all the chil- 
dren of American mothers were still-born, and 1 in 12.7 
of the children of Irish mothers. In 1865, of American 
mothers, 1 in 18.1 still-born; of Irish mothers, 1 in 12.3. 
In 1866, of American mothers, 1 in 22.5 ; of Irish mothers, 
1 in 14.4. Thus, including premature births, the Irish- 
1 A late number of the Pall-Mall Gazette, in an editorial, calls attention 
to the fact, that, while Dr. Farr, the Registrar-General, has announced that 
■there are, in England and Wales alone, more than one million of childless 
families, other authorities affirm that the English race is so far less prolific 
than in former times, that, in their large towns, two children to each married 
.couple has come to be the average number. ITS FREQUENCY, AND THE CAUSES THEREOF. 
53 
Catholic mothers have a far greater proportion of still-born 
children than the American-Protestant mothers." Now 
with reference to this fact, if the greater proportion of the 
still-births occurring were owing to accidental causes, we 
should expect to find, even upon so small a basis of compu- 
tation as three years, that the proportion of still-births in 
Catholics and Protestants would hold some constant rela- 
tion to itself in each class, if not to each other; whereas 
there is a range of no less than eleven per cent between the 
two American extremes given by Dr. Snow, while in the 
Catholic the range is only two per cent. The true explana- 
tion, however, lies in this: that in a certain proportion of 
cases, Protestant and Catholic, the labor is more or less 
impeded or complicated by a variety of causes, inherent or 
accidental; such as inertia of the womb, disproportion be- 
tween the size of the foetus and the diameters of the pelvis, 
&c., which, if unrelieved, prove fatal to the child, during 
or previous to its delivery, and in many instances to the 
mother also. Most, if not all, of these sources of danger 
are now amenable to proper medical treatment. In Protes- 
tant practice, the rule is to early assist nature, or, if ne- 
cessary, to interfere with or correct her aberrations, as by 
turning the child in utero, or by applying the forceps, &c., 
and thus extracting it alive, when otherwise it must have 
died; while among Catholics, on the contrary, any such 
measures are almost invariably forbidden by the patient, 
her friends, or the clergy, lest the spiritual salvation of the 
foetus should thereby be imperilled. To overcome these 
scruples, there is but a single course; to this we shall soon 
allude: it is a course, however, that has not yet been pur- 
sued to any extent by physicians in this country, and the 
fact remains as we have stated it. It is sufficient, we think, 
to afford a full explanation of our friend's problem. 
3. The frequency of arrests or trials for abortion affords, 
save indirectly, no criterion of the actual frequency of the 
crime. Our laws on this subject are at present so easily 54 
CRIMINAL ABORTION. 
evaded, that officers of justice find it useless to trouble them- 
selves with prosecution for the crime: 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.1 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,2 
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 1,700 cases judicially 
examined, a yearly average throughout the empire of be- 
tween 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 ex- 
aggerated. 
4. 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 undoubt- 
edly a frequent result of induced abortion, it is, in propor- 
tion to the cases of its later occurrence, or of confirmed and 
chronic ill-health resulting from the act, comparatively rare. 
1 Reports of Attorney-General of Massachusetts, from 1849 to 1858. 
State Documents. 
2 Comptes Rendus Annuels de la Justice Criminelle. ITS FREQUENCY, AND THE CAUSES THEREOF. 
55 
From which it must be granted that, for every case thus 
made known, very many others must necessarily exist. 
5. 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. The profits that 
must be made from the sale of drugs supposed abortifacient 
may be judged from the extent to which they are adver- 
tised, and the prices willingly paid for them. From these 
facts, we may fairly estimate the extent of the nefarious 
traffic. 
It is a comfort to believe that none of the alleged specifics 
possess directly the power attributed to them, their effect 
upon the womb, when produced, being of a secondary char- 
acter, and dependent upon a severe disturbance, in itself 
very dangerous, of the adjacent intestinal canal. It is 
however, in equal degree, a grief to know that, even if un- 
successful in producing the effect for which they were de- 
signed, they frequently destroy the mother's life, and almost 
invariably, if she survive, her subsequent health. 
6. That families are seldom now found of the size former- 
ly 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 gener- 
ally becoming less productive of offspring than formerly, 
from any natural cause; or that the mass of our popula- 
tion, 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.1 
1 We are sorry to be obliged to state that the knowledge above referred to 
is rapidly becoming universal. We have elsewhere pointed out the inevitable 56 
CRIMINAL ABORTION. 
The number of pregnancies must be nearly, if not quite, 
as abundant as formerly : who can doubt what becomes 
of the offspring? It is now acknowledged that, allowing 
for the effect of religious belief, to which we have already 
referred, and considering only the families of Protestants, we 
seldom find them containing as many children as formerly 
was the average. We have elsewhere shown that this is 
no matter of accident, nor decline in the general constitu- 
tional vigor of our people. However marked this change 
of constitution may seem, we believe it apparent rather 
than real, and owing to the fact that the so-called harden- 
ing process, to which the privations and exposures of 
our ancestors subjected them, destroyed many of their 
offspring in early years, just as obtains with savages and 
with lower animals. Thanks to the comforts of modern 
civilization, and the progress of medical science, these ten- 
derlings are now saved, and reared to maturity. The late 
civil war proved most abundantly that neither the sires nor 
the sons of the present day are physically degenerate. We 
have shown, moreover, that our men are sexually as potent, 
when they choose to be, and our women naturally as fruitful 
as their predecessors; and that the sterility of the age is 
chiefly intentional, and not acquired. Dr. Allen, of Lowell, 
while admitting the frequency of criminal abortions, has 
endeavored to bridge this moral chasm on the supposition 
of a progressive constitutional change in American women, 
precluding them from conception, from carrying their 
children to maturity, or from safely giving them birth.1 
detriment occasioned to parties of either sex by the systematic prevention 
of pregnancy, no matter in what way this may be accomplished. 
1 This theory, which, it need hardly be said, is not borne out by facts, Dr. 
Allen has stated at great length in a paper upon " The Law of Human Increase; 
or, Population based upon Physiology and Psychology," published in the 
New-York Journal of Psychological Medicine and Medical Jurisprudence, 
for April of the present year. The reasonings there offered do not reach the 
main question involved, as has been shown in the Boston Medical and 
Surgical Journal, for April 23. ITS FREQUENCY, AND THE CAUSES THEREOF. 
57 
As well assert that the present fashion of foregoing 
lactation, so prolific in causing uterine disease, were 
generally owing to absence of milk or of the mammary 
glands. Women still menstruate as well as ever they did, 
and, in consequence of advanced knowledge of their diseases 
by physicians, probably better. While the menstrual func- 
tion lasts, and in the absence of distinct organic local dis- 
ease, which is generally to be found when it exists, if 
searched for, women can conceive ; that is, if their husbands 
are potent. Many of the more serious disturbances of 
pregnancy are now amenable to treatment; and, by the 
employment of anaesthesia, its greatest dangers have been 
removed from child-bed. 
7. Of the experience of physicians, there can be but one 
opinion. If each man of the profession were honestly to in- 
vestigate this matter, and as honestly to avow the result, 
the mass of evidence would be overwhelming. This state- 
ment is in no wise 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 neg- 
ative, and as such only to be valued. 
"We blush," says Professor Hodge, " while we acknowl- 
edge the fact, that in this city [Philadelphia], where litera- 
ture, 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.1 
The late Dr. Blatchford, of Troy, N.Y., wrote us thus: 
" A crime which forty years ago, when I was a young prac- 
titioner, was of rare and secret occurrence, has become fre- 
quent and bold." There is no need for us to multiply 
instances of what has long been the almost universal expe- 
rience. To quote the forcible language, more expressive 
than elegant, of a New-Hampshire physician, " Nowadays, 
1 Introductory Lecture, 1854, p. 17. 58 
CRIMINAL ABORTION. 
if a baby accidentally finds a lodgement in the uterus, it 
may perchance have a knitting-needle stuck in its eyes be- 
fore it has any." 
Applications for abortion are in many neighborhoods of 
constant occurrence, by no means among the poorer classes 
alone; and few women, unless convinced by their phy- 
sician of the enormity and guilt of that they intend, are de- 
terred 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 per- 
suade himself that the crime is rare; but if he reflect that 
upon himself, more than on clergyman or legislator, 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 compli- 
cated or improperly interfered with, the labor has been, the 
more certain are unfortunate sequelse; and that the earlier 
in pregnancy its occurrence, the greater, as a general rule, 
the danger, not merely to the mother's life, but, if she sur- 
vive, 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 ITS FREQUENCY, AND THE CAUSES THEREOF. 
59 
iii 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 early in his 
practice reported no less than fifteen such cases as occurring 
to himself within a period of less than six months ; and of 
these, all, without exception, were married and respectable 
women,1 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 expe- 
rience 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. Ten years 
ago, when we first broached this subject, physicians had a 
vague idea that unnecessary abortions were probably com- 
mon : the fact has now been proved to more than a demon- 
stration. Our medical journals teem with reported cases: 
our later text-books not only admit their occurrence, but 
call attention to it as one of the most decided causes of the 
so prevalent ill-health of the American women; while the 
American Medical Association considered the latter point 
of such importance, as an efficient argument against the 
crime, that it authorized the publication of its Prize Essay 
upon the subject - entitled "Why Not?" - for general 
circulation. 
We are compelled, from the preceding considerations, to 
acknowledge, not merely that criminal abortion is of alarm- 
ing 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 
1 Report to Suffolk Diet. Med. Society, May, 1857; New-York Med. 
Gazette, July, 1857, p. 390; N.H. Journal of Medicine, July, 1857, p. 211. 60 
CRIMINAL ABORTION. 
is fast becoming, if it has not already become, an established 
custom, less honored in the breach than in the observ- 
ance.1 
What are the causes of this general turpitude ? 
They also may be classified: - 
1. The low morale of the community as regards the guilt 
of the crime. 
2. The doctrines of political economists. 
3. The fear of child-bed. 
4. The ease with which the character of the crime may, 
in individual cases, be concealed. 
5. The unwillingness of its victims to give testimony that 
would also criminate themselves. 
6. The possibility of their inducing abortion upon them- 
selves without aid. 
7. The ease with which the laws, as at present standing, 
may be evaded. 
8. The lack or inefficacy of judicial preventives ; such as 
1 Thus we wrote in 1859. Since then, though so great a flood of light has 
been poured upon the subject, the times seem little changed. Let us hope, 
however, that the apparent fact may be owing to the unveiling of what was 
formerly more frequently practised, but kept concealed. " The public 
prints, the National Medical Association, and the profession, have drawn the 
attention of the community to the melancholy frequency and comparative 
impunity which marks the practice of the abortionists. Still the daily press 
publishes the advertisements of these people in such thinly veiled language 
that the purport cannot be mistaken; while pregnant women are tempted to 
solicit such treatment by the necessity for concealing their shame, from igno- 
rance of the vitality of the foetus, and reluctance to incur the cares, risks, 
and responsibilities of maternity." Elliot, Obstetric Clinic, 1868, p. 383. 
While these sheets are passing through the press, Professor Gaillard 
Thomas, of New York, has issued a most excellent work upon the Diseases of 
Women. In discussing the causes of these diseases, he corroborates all that 
we have urged for years concerning the fatal influences, and frequency, of 
criminal abortion, and closes his remarks upon this subject with the following 
words : " However much I may desire reformation in this matter, it is not in 
the spirit of a reformer that all this is written. I am not raising my voice 
against a great national crime, but am striving merely to establish the truth 
of my statement, that this crime is so frequent as to constitute in all classes 
of society, for it is limited to none, a great cause for uterine diseases." 
Thomas, Practical Treatise on the Diseases of Women, 1868, p. 59. ITS FREQUENCY, AND THE CAUSES THEREOF. 
61 
statutes for registration, and those against concealment of 
birth and secret burials. 
9. The prevalent ignorance of the true principles of its 
jurisprudence, in both government officials and medical wit- 
nesses. 
10. Social extravagance and dissipation. 
1. That public opinion should at present attach so little 
importance to the value of foetal 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 num- 
ber 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;1 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 constitu- 
tions, 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 necessa- 
ry 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 
1 As we have stated on a page just preceding, there are no means what- 
ever of artificially preventing pregnancy, whether by imperfect intercourse 
or otherwise, that are not positively injurious to one or both of the parties 
engaged. CRIMINAL ABORTION. 
62 
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 Spar- 
tans 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 off- 
spring of their parents: the others cannot endure the na- 
tional 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. 
2. 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, we 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 ; "1 and he indorses the asser- 
tion of Hume, subsequently proved false by Sadler,2 that 
the permission of child-murder, by removing the fear of 
too numerous a family in case of marriage, tends to en- 
courage this step, and thereby the increase of popula- 
tion ; " the powerful yearnings of nature preventing parents 
from resorting to so cruel an expedient, except in extreme 
cases.3 " 
Sismondi4 and a host of others might also be quoted ; but 
a few extracts from a later writer, standard in this country 
1 Loc. cit., p. 313. 2 The Law of Population, 1830. 
3 Hume, Essays, vol. i. No. xi., p. 431. 
4 Etudes sur 1'Economie Politique; Nouveaux Principes d'Economie 
Politique. ITS FREQUENCY, AND THE CAUSES THEREOF. 
63 
at present, and taught in our universities, till lately in that 
at Cambridge, for instance, will suffice. 
" We greatly deprecate," says Mill, " an increase of popu- 
lation, as rapid as the increase of production and accumula- 
tion." 1 
" There is room in the world, no doubt, and even in old 
countries, for an immense increase of population. But al- 
though it may be innocuous, I confess I see very little rea- 
son 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." 2 
" If the opinion were once generally established among 
the laboring class, that their welfare required a due regula- 
tion of the numbers of their families, only those would ex- 
empt themselves from it who were in the habit of making 
light of social obligations generally."3-"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 employ- 
ment." 4 
" 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." 5 
" In a place where there is no room left for new establish- 
ments," 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 
1 Loc. cit., ii. p. 253. 
2 Ibid., i. p. 451. An opinion to the same effect, italicized, has already 
been quoted. 
3 Ibid., ii. pp. 316, 317. 4 Ibid., i. p. 452, foot-note. 
8 Ibid., i. p. 447. 64 
CRIMINAL ABORTION. 
them die in infancy, these, and three of his own contempo- 
raries of each sex, will be compelled to abstain from mar- 
riage in consequence of his own imprudence." 1 
The direct result of remarks like these last, so pointed 
and plainly to be understood, is seen in the statistics we have 
so largely given. Would mankind, in following such ad- 
vice, 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." 2 
3. 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 ansesthesia. It has been 
urged, and not so absurdly as would at first sight appear, that 
the present possibilities of painless and so much safer deliv- 
ery, by changing thus completely the primal curse from 
anguish to a condition frequently of positive pleasure, re- 
move 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 we 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, we 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 account- 
able for the crime. 
1 Nouveaux Principes, &c., liv. vii. ch. 5. 2 Medical Ethics, p. 79. ITS VICTIMS, 
65 
CHAPTER 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. 
The division of the subject now to be examined, naturally 
presents itself under a fourfold aspect, - numerical, relation- 
al, social, and medical; representing respectively the multi- 
tude 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 foetal 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 of the mother and that 
of the foetus. 
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 com- 
parison with adultery, are most common in the youth of 
women, 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 66 
CRIMINAL ABORTION. 
only real limit to their later occurrence is the menstrual 
climacteric, or so called turn of life. 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 foetus 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 re- 
garding the commencement of foetal life. 
It was Orfila's opinion, that criminal abortion was most 
frequent in the first two 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 pre- 
venting 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 Chaud^ 
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.1 He ascertained, that, of 34 cases investigated 
by himself, 25 were in from the third to the sixth month, 
and most of these in the third, 5 in the first two months, 
and 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 Parisian Morgue, we 
find its statistics strikingly corroborative of these deduc- 
tions. We have already seen that from 1837-54 there had 
been deposited at the Morgue 692 foetuses of less than nine 
months. Of these, 23 were from the first to the second 
month; 79 were from the second to the third; 108 were 
1 Ancales d'Hygi^ne Publique, 1856, p. 122. ITS VICTIMS. 
67 
from the third to the fourth ; 158 were from the fourth to 
the fifth ; 150 were from the fifth to the sixth ; 97 were 
from the sixth to the seventh; 48 were from the seventh to 
the eighth; and 29 were from the eighth to the ninth. 
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 foetal 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 nine months, and the 
decrease in the seventh and eighth from those preceding, 
are worthy of remark. It is probable that the sudden in- 
crease may be attributed to mental re-action 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, chil- 
dren are born alive, the mother's courage then proving in- 
sufficient for infanticide and its more probable punishment, 
and her maternal affection being awakened by the sight of 
the child. 
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 foetal life 
is then rendered certain by the movements of the child, 
which are perceived the more strongly as pregnancy ad- 
vances. 
It was formerly thought that the induction of criminal 
abortion was confined to the unmarried: there exists, how- 
ever, abundant proof to the contrary. Had such been 
the fact, it would be reasonable to suppose, that, with the 68 
CRIMINAL ABORTION. 
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 
foetal deaths, and in similar ratio the number of living births 
has declined ; proving, as Husson was compelled to ac- 
knowledge of Paris, " a decrease in the fecundity of legiti- 
mate unions," 1 explainable in no wise 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 in- 
habitants 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 the Seine.2 
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 in- 
commensurate 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, stipulat- 
ing beforehand, at marriage or previously, that such shall 
be few or none,3 as, indeed, we have repeatedly known to 
occur amongst our own upper classes. In every case that 
has come to our knowledge, this arrangement has resulted 
in unhappiness to both parties, and in several instances has 
led to divorce. If a man treat his wife as a strumpet, even 
1 Les Consummations, &c. 2 Comptes Rendus Annuels, &c. 
3 Mayer, Des Rapports Conjugaux, consideres sous le triple point de 
vue de la population, de la sante et de la morale publique, Paris, 1857. ITS VICTIMS. 
69 
at her own solicitation, unfaithfulness in one or the other is 
almost sure to result. 
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 astonish- 
ing 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 practise it, does al- 
most 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, and that the 
rules of that church do not, as has been generally supposed, 
permit abortion in the earlier months,1 but that they rigidly 
exercise over foetal life throughout pregnancy the most ab- 
solute guard and supervision ;2 instances of this, in cases 
where craniotomy is supposed to be indicated, are familiar 
to every medical practitioner. The church, here omnipotent 
against the physician, and desiring that every created human 
being should receive the benefit-of baptism, demands that 
1 Cangiamila, Embryologia Sacra, p. 15. 
2 In verification of this statement, we are enabled to quote from a late 
authorized edition of the Canon Laws of the Church of Rome : Omnes, qui 
abortus seu foetus immaturi, tarn animati quam inanimati, formati vel informis, 
ejectionem procuraverint, pcenas propositas et inflictas tarn divino quam 
humano jure, ac tam per canonicas sanctiones et apostolicas constitutiones 
quam civilia jura adversus veros homicidas incurrere, hac nostril perpetuo 
valitura constitutione statuimus et ordinamus. Reiffenstuell, Jus Canon- 
icum Universum, tome iii. Paris, 1854. 70 
CRIMINAL ABORTION. 
foetal death must have taken place previously to the opera- 
tion proposed. It does not seek for the signs of foetal 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 foetus quocumque tempore gestationis editus bap- 
tizetur, vel absolute, si constet de vita ; vol sub conditione, 
nisi evidenter pateat eum vita carere." 1 
In cases where instrumental delivery is absolutely neces- 
sary, the ceremony of baptism as ordinarily administered is 
of course impossible. But as this is deemed so important 
by the Catholic Church,2 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, we do 
not hesitate to recommend intra-uterine baptism; the con- 
secrated element being carried to the child, if too high to 
be reached by the hand, by a sponge and staff, or, if neces- 
sary, by a syringe, as was long ago sanctioned by the theol- 
ogists of the Sorbonne;3 in the absence of a clergyman, if 
1 Decreta Synodi plenari® Episcoporum Hibernia?, apud Thurles habitae 
anno 1850; Art. de Baptismo, p. 20. 
2 Dublin Review, April, 1858, p. 100. 
8 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 the 
late Bishop Fitzpatrick, we were favored with a copy of Barry's Medico- 
Christian Embryology, as presenting upon this point the authorized and gen- 
erally received doctrine of the Catholic Church. We 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 ITS VICTIMS. 
71 
the case is urgent, the rite accounted so sacred being per- 
formed by the physician in attendance rather than to allow 
the death of the mother. We know that many of the profes- 
sion, 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 Chris- 
tians, refuse any aid ? We are not ashamed to acknowledge, 
that for ourself, though no Catholic, we have repeatedly 
performed this intra-uterine baptism, where delivery without 
mutilation was impossible, or where other instrumental as- 
sistance became necessary. We could neither conscientious- 
ly 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 we refused we should have been morally responsible for 
the almost inevitable death of the woman : it was, therefore, 
simply our duty. 
We shall now quote from an admirable letter we received 
from the late Catholic Bishop of Boston. The extracts are 
couched in so forcible language, and their spirit is so 
thoroughly Christian, that we need not apologize for their 
length, or that they recapitulate arguments we have already 
advanced. 
" The doctrine of the Catholic Church," remarked Bishop 
Fitzpatrick, " her canons, her pontifical constitutions, her 
theologians, without exception, teach, and constantly have 
taught, that the destruction of the human fcetus in 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 more generally known and acted upon 
by the medical profession, hundreds of lives, infant and maternal, now lost, 
would annually be saved. 72 
CRIMINAL ABORTION. 
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 sec- 
ond 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 penal- 
ties, 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 hid- 
den 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 man- 
ifested, 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 de- 
veloped into the fulness 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 mur- 
der in the eyes of God, the Judge of the living and the dead. 
Who can express what follows with regard to those women ITS VICTIMS. 
73 
who, finding themselves lawfully mothers, prefer to devas- 
tate with poison or with steel their wombs, rather thah bear 
the discomforts attached to the privilege of maternity, rather 
than forego the gayeties of a winter's balls, parties, and 
plays, or the pleasures of a summer's trips and amuse- 
ments ? 
" But abortion," the Bishop continued, " besides being a 
direct crime against a positive law of God, is also an indi- 
rect 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. Ev- 
ery 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 de- 
stroy one of its strongest bulwarks. 
" It affords me pleasure," he concluded, " to learn that 
the American Medical Association has turned its attention 
to the prevention of criminal abortion, a sin so directly op- 
posed 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 practised." 1 
" Whenever the parents of the child," says Professor El- 
liot, " are Roman Catholics, and believe that baptism of the 
unborn child is essential, the operator should see that the 
presenting part of a living child be baptized before a danger- 
ous operation is undertaken, since, according to the Roman 
Catholic Church, this can be done by a layman ; and it is the 
duty of the physician to respect the religious conviction of 
his patients. This advice is desirable in this country, where 
all varieties of religious creeds are found, and enjoy an 
1 MS. Letter, dated Nov. 14, 1858. 74 
CRIMINAL ABORTION. 
equal independence."1 It is almost needless to refer to the 
fact, that, among the lower classes, the rite should not be 
too indiscriminately resorted to. Depaul, for instance, 
relates a case where baptism was administered by the over- 
obliging physician to the child of Jewish parents, to the 
great grief of all parties concerned. 
Such being the doctrine of the Catholic Church, and sta- 
tistics nevertheless proving that its so stringent statutes 
against the destruction of foetal life, enforced alike by de- 
nouncement and excommunication, are constantly broken 
in Catholic France, it is more than probable, from the ex- 
istence 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 great- 
er 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.2 
1 Elliot, Obstetric Clinic, 1868, p. 17. 
2 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 ; our American women arrogate to themselves the 
settlement of what they consider, if doubtful, purely an ethical question; 
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. 
During the ten years that have passed since the preceding sentence was 
written, we have had ample verification of its truth. Several hundreds of 
Protestant women have personally acknowledged to us their guilt, against 
whom only seven Catholics ; and, of these, we found, upon further inquiry, 
that all but two were only nominally so, not going to the confession. The 
two referred to had each had some dozen children within fourteen or fifteen 
years, and thought that they had therefore a certain measure of excuse in 
desiring to rest awhile from their labors. 
Since the last chapter went to the press, and within the past twenty-four 
hours, we have received the Annual Report of the City Registrar of Boston, 
for the year 1867. The following extracts will serve to corroborate the evi- 
dence that we have already adduced: " During the year 1867, there has 
been only one birth in each 34.78 of the population, estimating the latter at 
205,000. In 1851, the births were in the ratio of one in 26 of the population ; 
and since that year the birth-rate has been diminishing, until it has reached ITS VICTIMS. 
75 
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 foe- 
tus 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 usuccessful attempt at abortion, would 
this be confessed, or indeed always suggest itself to the 
mother's own mind ? Fractures of the foetal 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. 
its present low state, with plain indications of falling still lower" (p. 3). 
" The number of children born in 1867, whose parents were both native 
born, was 24.11 per cent of the whole number of births. On the other hand, 
in those cases where both parents-were foreign born, the number of births 
was 61.37 per cent of the whole number. When it is remembered that the 
population of Boston is very evenly divided between the foreign and the native 
born, the facts tabulated above bear an unpleasant aspect, and show, that, if 
there be any thing reprehensible in the undesirable result witnessed, it unmis- 
takably belongs to the native population " (p. 4). " Not the least interesting 
fact connected with this subject is, that the diminishing birth-rate affects 
principally the native population; and, as this result does not vary essen- 
tially from year to year, the malady seems, therefore, not only chronic, but 
points unmistakably in the direction where it is seated. . . . The subject is 
one of vast importance, and its bearing upon the vital interests of the com- 
munity can scarcely be over-estimated " (pp. 36, 37). 76 
CRIMINAL ABORTION. 
In precisely the same manner may injury be occasioned 
to the nervous system of the foetus, as in a hydrocephalic 
case long under the writer's own observation, where the 
cause and effect were plainly evident. Intra-uterine convul- 
sions have been reported ; as induced by external violence, 
they are probably not uncommon, and the disease thus be- 
gun may eventuate in epilepsy, paralysis, or idiocy. 
To the mother there may happen correspondingly fre- 
quent and serious results. Not alone death, immediate or 
subsequent, may occur, from metritis, hemorrhage, peri- 
tonitic or phlebitic inflammation, from almost every cause 
possibly attending, not merely labor at the full period, com- 
paratively safe, but miscarriage, - increased and multiplied 
by ignorance, by wounds and violence; but, if life still re- 
main, it is too often rendered worse than death. 
The results of abortion from natural causes, as obstetric 
disease, separate or in common, of mother, foetus, or mem- 
branes, 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 dis- 
turbance from disease or poison, or even necessarily in- 
duced by the skilful physician in early pregnancy, the risks 
are worse. But if, taking into account the patient's consti- 
tution, her previous health and the period of gestation, the 
abortion has been criminal, these risks are infinitely in- 
creased.1 Those who escape them are few.2 
1 Passot, Des Dangers de 1'Avortement provoque dans un But Criminel. 
Gazette Med. de Lyon, 1853. 
2 At the time that we first expressed our own opinion upon this matter, 
there were many physicians who were apparently unaware of the true 
state of the case. Since then, however, much corroborative evidence has 
been put upon record, latest by Professor Fordyce Barker, of New York, who 
says : " The prognosis is particularly grave in abortion caused by criminal 
means. The dangers from hemorrhage may be either from a sudden 
gush, or a continued leakage, or recurring hemorrhages, due to retained pla- 
centa or membranes. From the same cause may arise peritonitis, septicaemia, 
&c. Other results are moles, subinvolution of the uterus, and sterility. As ITS VICTIMS. 
77 
Iii thirty-four cases of criminal abortion reported by Tar- 
dieu, where the history was known, twenty-two were fol- 
lowed, as a consequence, by death, and only twelve were not. 
In fifteen cases necessarily induced by physicians, not one 
was fatal.1 
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 conse- 
quence, greatly varies; though generally taking place al- 
most at once if there be hemorrhage, it may be delayed even 
for hours where there has been great laceration of the ute- 
rus, its surrounding tissues, and even of the intestines;2 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 ap- 
preciable lesion ; death, the penalty of unwarrantably inter- 
fering with nature, being occasioned by the entrance of a 
bubble of air into the circulation through a severed utero- 
placental vessel,3 and by syncope, by excess of pain, or by 
moral shock from the thought of the crime.4 
That abortions, even when criminally induced, may some- 
times be safely borne by the system, is of little avail to dis- 
prove the evidence of numberless cases to the contrary. 
We have instanced death. Pelvic cellulitis, on the other 
hand ; fistulae, vesical, uterine, or between the organs alluded 
compared with delivery at the full term, abortion may not be immediately 
so dangerous, but it is later much worse. If cases of puerperal fever in 
hospitals are excluded, more deaths occur from abortion than from delivery 
at full time." (New-York Med. Gazette, 8 Feb. 1868, p. 154.) 
1 Ann. d'Hygiene, 1856, p. 147. 
2 Dubois and Devergie, Ibid, tome xix: p. 425; tome xxxix. p. 157. 
3 A case of this kind is detailed by Dr. Hitchcock, of Kalamazoo, 
Mich. The abortionist, having separated a portion of the foetal membranes 
from the uterine wall by a catheter, blew g puff of air through the instru- 
ment to still farther detach them. The patient threw up her arms, and im- 
mediately expired. (Transactions of the American Medical Association, 
1864, p. 83.) For further illustrations in point, see Reid, Physiological Re- 
searches, p. 578; Simpson, Obstetric Works, vol. i. p. 719. 
4 Dubois and Devergie, loc. cit. 78 
CRIMINAL ABORTION. 
to ; adhesions of the os uteri or vagina, rendering liable sub- 
sequent 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 conse- 
quence, in one patient or another, of an intentional and un- 
justifiable 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 con- 
sciousness 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- 
The mental aberration may also be produced, and undoubt- 
edly frequently is, by the reflex cerebral irritation induced 
by either of the pelvic lesions, that we have instanced as 
directly resulting from abortion.1 Were we wrong in con- 
sidering death the preferable alternative ? 
1 To the decided effect, akin to neuralgia, very frequently produced upon 
the mental system by uterine and ovarian disease, we have had occasion to 
direct the attention of the medical profession. (Boston Med. and Surg. Journal, 
April, Oct. and Nov. 1864; Transactions of the American Med. Association, 
1865, p. 125, &c.) Inasmuch as several of the gentlemen charged with the 
supervision of our lunatic hospitals have been slow to apply towards the cure of 
their patients the practical suggestions that we have made, the evidence lately 
afforded by one of their own number upon the causation of insanity by abor- 
tion will be read with interest. "J have for many years," says Dr. Gray, 
of the New-York State Asylum at Utica, "received and treated patients 
whose insanity was directly traceable to this crime through its moral and 
physical effects." And again : " I need not here discuss at length the disor- 
ders consequent upon this crime in any and all of its shades; but I deem it 
no less than my duty to declare, as already stated, that it is directly and in- 
directly one of the causes of insanity." (Twenty-fourth Annual Report of 
the New-York State Lunatic Asylum, 1867.) ITS PROOFS. 
79 
CHAPTER 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 preg- 
nancy ; 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 foetal pulsations have 
become evident to the ear, it is impossible, as we have else- 
where insisted,1 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 foetal heart, not always to be detected, even by 
the double stethoscope.2 
Putting aside, therefore, the question of the existence of 
pregnancy and of foetal 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 Review of Montgomery's Signs of Pregnancy, North-American Medico- 
Chirurgical Review, March, 1857, p. 249. 
2 It is unnecessary for us to go into discussion of the relative value of 
the signs of pregnancy. The works of Montgomery and other writers 
upon this special point, and, indeed, most text-books upon common midwifery, 
afford all the detail that is likely to be required. It is, of course, very im- 
portant, here as elsewhere, that only the latest editions of any author be cited 
or allowed to be recognized in court. 80 
CRIMINAL ABORTION. 
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 prob- 
able or improbable; as in an instance related by Burns,1 
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 a woman's statements should contra- 
dict 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 dis- 
covered with any certainty by a personal examination after 
eight days have elapsed;2 those of an early abortion, not even 
after only one or two.3 The signs of delivery that are well 
marked at the full period, the general symptoms then 
1 Principles of Midwifery, p. 547. 
2 Baudelocque, tome i. p. 115; Fodere, ii. p. 17; Marc, Diet, de 
Med., i. p. 228 ; Montgomery, Signs of Pregnancy, p. 578; Devergie, 
Med. Legale, i. p. 244. 
3 Ryan, p. 267; Tardieu, loc. cit. ITS PROOFS. 
81 
obtaining, the size of the uterus, ascertained by a combined 
use of the hand and the uterine sound, lacerations of the 
perineum and cervix uteri, the presence of the lochia, the 
state of the breasts, abdomen, vagina, and vulva, all of little 
value except in conjunction with each other, are proportion- 
ately less defined as we go back in time, until, near the 
commencement of pregnancy, it becomes impossible to dis- 
tinguish an abortion from an attack of severe hemorrhage 
or from menorrhagia, unless by detecting the impregnated 
ovum. Even in cases where it would seem that there could 
be no doubt whatever of the fact, the worst error might yet 
occur; for, in what is called membranous dysmenorrhoea, 
the mucous membrane lining the uterine cavity is thrown 
off, either entire or in shreds, greatly hypertrophied, and the 
dysmenorrhoeal pains attending its expulsion may so closely 
similate those of an abortion as to deceive even a wary phy- 
sician. The regularity of these attacks, usually occurring 
at every menstrual period, serves as an important element 
of diagnosis. We have shown, moreover, that it is possible 
in some cases of uterine disease innocently acquired, as 
cancer, to be deceived by the impression given to the touch 
upon digital examination, and to form the erroneous opinion 
that the case is one of induced abortion. 
If the patient is dead, and too long time have not elapsed 
since the supposed occurrence of the crime, decision is often 
more easy; many facts in the case being generally known, 
and concealment being less possible. If the ovum, but par- 
tially detached, be still retained, the fact may be self-evident; 
for, if the embryo be present, its envelopes cannot be con- 
founded with the dysmenorrhoeal membrane, to which we 
have just referred; if it has been discharged, and concealed 
or lost, there will still be present the recent corpus luteum,1 
1 The corpus luteum, so called, of pregnancy, as distinguished from that 
of mere menstruation, is no longer to be relied upon. For a discussion of 
this question, see the later text-books on physiology, as those of Dalton and 
Austin Flint, Jr. 82 
CRIMINAL ABORTION. 
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;1 
the writer has seen it to a marked degree, some time previous 
to the expiration of pregnancy, at a Caesarean section, after 
death from laryngitis, occurring in the Edinburgh Maternity 
Hospital in 1854. 
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; and, in the lat- 
ter case, whether it were justifiable or criminal. Of this it 
will be found that the proofs are both positive and negative ; 
drawn from the history of the case and from personal ex- 
amination of the patient and the foetus. The value of each 
of these elements is increased in proportion as it is com- 
pared 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." 2 
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 present the likelihood of 
truth. If the habit of aborting at a certain period has 
existed, which of course cannot be alleged in a first preg- 
nancy ; 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 
1 Clarke, Trans, of Soc. for Impr. of Med.-Chir. Knowledge, iii. p. 290 ; 
Baudelocque, i. p. 123, note; Leroux, Traite des Pertes, Obs. xiii. p. 25; 
Montgomery, loc. cit., p. 618. 
2 Gardner, of New York, note to Tyler Smith's Lectures on Obstet- 
rics, p. 203. ITS PROOFS. 
83 
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;1 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 ; and the more decidedly 
do so, if accidentally or intentionally interfered with. 
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 foetal 
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 once reported by the writer to the Boston Society 
for Medical Observation, traces of former violence in instru- 
mental or other labors may remain, and to such an extent 
1 This is a very important matter, the true explanation of which up to 
this time (1868) seems hardly to have been given. It is, however, simple 
enough. The ordinary term of pregnancy expires at the end of nine calen- 
dar months and a week, or ten lunar months; that is to say, labor normally 
occurs at the tenth menstrual period. Now, at every menstrual period 
during pregnancy, there is a slight molimen, or effort at the re-establish- 
ment of the catamenial discharge. This in some women is so marked as 
to result in a hemorrhage from the external surface of the neck of the 
womb, giving rise at times to the belief that pregnancy cannot be present. 
Now in all cases, whether or no any signs of local or constitutional disturb- 
ance be noticed, there is probably a greater tendency to miscarry at these 
times than during the intervals ; and hence it is, that a woman who has perhaps 
undergone some severe shock, as of a railroad accident or a surgical operation, 
at one period of her pregnancy with impunity, may at another abort upon 
the most trifling provocation. These considerations are of the very greatest 
value, not merely to medical jurists, but to those engaged in the practice of 
medicine. 84 
CRIMINAL ABORTION. 
as to give to the touch every character of a recent and 
criminal interference.1 The foetus may show pre-existing 
and natural disease sufficient to account for the effect appa- 
rent, or may present the signs of direct and intentional 
interference. Recent scars of venesection on the arms and 
feet, or of leech-bites, especially on the upper and inner 
parts of the thighs, and vesications upon the breasts, 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; but these must not be 
confounded with the effects of ordinary disease or measures 
for their relief. Severe inflammation of the rectum very often, 
perhaps usually, results from the employment of the drastic 
pills so largely advertised as specifics. These, almost all of 
them, contain aloes as their chief ingredient, and act upon 
the uterus only secondarily, by establishing a sympathetic 
inflammation of that organ. The rectal inflammation may, 
however, be simply hemorrhoidal and chronic in its charac- 
ter, just as the metritis or uterine inflammation may be, 
and often is, found in virgins who have never been touched 
by men; the disturbance being induced by a great variety 
of causes, as exertion, or taking cold while the menses are 
present, &c. 
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-needles, pen-handles, skewers, goose- 
1 In the instance referred to, the cervix uteri had been deeply and exten- 
sively lacerated, forceps having been used in four previous labors; while de- 
pressions existing between the old cicatrices, and ragged and half filled with 
clots, were decidedly suggestive of punctured wounds. (Am. Journ. of the 
Med. Sciences, April, 1859.) The true nature of the case was rendered evi- 
dent by its past history, and corroborated by the fact that the patient was a 
Catholic; the latter being a point to which we are inclined to attach much 
importance, for reasons already given. ITS PROOFS. 
85 
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, 
whether this was before witnesses, and whether it was 
introduced openly or under pretence of a digital examina- 
tion.1 
The sensations of the patient at the time are also, in 
different cases, unlike each other. In some instances, noth- 
ing 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. These sensations 
however, it must be borne in mind, are very often present, 
especially in hysterical subjects, during an ordinary vaginal 
examination for uterine disease, even if nothing whatever is 
employed in the way of treatment. Slight but immediate 
hemorrhage generally occurs, save in professional cases, dur- 
ing the attempt at abortion; and it is usually increased by 
compelled exercise, prolonged baths, or ergot. 
The time ensuing before the expulsion of the foetus is an 
element not to be lost sight of. In 34 cases reported by 
Orfila, the minimum observed was 13| 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, 
1 Some physicians consider it proper, when legitimately treating uterine 
disease, to conceal from their patients the details of all the treatment pur- 
sued, in order to prevent anxiety, and other excitement of the nervous sys- 
tem. We are inclined, however, to believe, that here as elsewhere hon- 
esty is the best policy. The patient, and certainly some near friend of 
hers, can be told what is being done, without undue and unprofessional ex- 
aggeration of its nature, or creating alarm; and frankness of this kind, on 
the part of an attendant, always begets increased confidence in his reliability 
and good judgment. 86 
CRIMINAL ABORTION. 
so fatal both to itself and the mother in many instances of 
advanced pregnancy,1 has any influence in producing early 
abortion. In 293 premature still-births reported by Collins,2 
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 foetus born before the seventh 
month has a slender chance of surviving, its murder should 
be viewed with leniency,3 be allowed. Such arguments, 
that the perils and dangers to which the foetus 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, if such were used, 
were procured or administered, would tend the same way.4 
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 
1 Simpson, Obstetric Works, i. p. 397. 2 Practical Treatise, p. 275. 
3 I?yan, Med. Jurisprudence, p. 282. 4 Roscoe, Ev. 242. ITS PROOFS. 
87 
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,1 
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. Malice is not confined in its legal definition to 
ill-will toward one or more individual persons, but is in- 
tended to denote an action flowing from any wicked or cor- 
rupt motive, - a thing done malo animo, wfliere 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. 
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 pre- 
sumed 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; and 
1 We have elsewhere called attention to the risks attending this simple 
procedure during pregnancy, and the necessity therefore of avoiding it at that 
time. (Boston Medical and Surgical Journal, October, 1859.) Instances are 
now within our knowledge where ladies have entrapped dentists, ignorant of 
their condition, into preparatory operations for false teeth, which were un- 
doubtedly needed, and have thus very adroitly, from the shock to their sys- 
tems, accomplished the special end they so much desired. 88 
CRIMINAL ABORTION. 
the having been coaxed into this act by an unhappy or 
wicked woman, is not admitted as excuse. 
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 the ex- 
ample, influence, and previous education of the offender, 
its guilt.. 
If violent purging or vomiting have been resorted to 
without any apparent reason, or to a greater extent than is 
ordinarily prescribed or required; or if leeches have been 
applied to the thighs, to the number of a hundred or more, 
as instanced by Tardieu, or the like, - there is certainly 
ground for strong suspicion. And here it is that the crimi- 
nal liability of careless or ignorant physicians becomes evi- 
dent. In cases such as we have referred to, it would be 
very difficult for a successful defence to be offered, pro- 
viding 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, and yet the ovum 
retained as a mole, hydatids, skeleton, mummy, or putrilage ; 
and whether the woman be pregnant or not; and, if preg- 
nant, whether the child be alive, dead, or abnormally devel- 
oped or degenerated, - should be amenable as though fully 
consummated. We have seen the frequent difficulty in 
proving foetal 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 de- 
livery will be absent, and so also will be all evidence from 
the product of conception, unless the mother's death en- 
sue ; 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 ITS PROOFS. 
89 
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.1 
The age of the mother is not of consequence, save as re- 
lates to the question of her having passed or not passed the 
period of puberty, and her having reached or not reached 
the turn of life ; nor is that of the foetus, save as corre- 
sponding with the alleged period of pregnancy, and 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 proba- 
bility 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.2 
Whitehead and West are of opinion that abortion naturally 
1 We except here, of course, the very rare instances hereafter to be referred 
to, where abortion is necessitated at the hands of physicians to save the 
mother's life ; and those other cases, more frequent but still rare, where the 
child having died in utero, and being retained in whole or in part, it becomes 
imperative to open up the uterus by dilating tents of sponge, or other ma- 
terial, for its removal; the mother's death often occurring from constitutional 
irritation, hemorrhage, or pyasmia, if this is not done. 
2 We have already stated, that, in some families, abortions are resorted to 
only with the earlier children, from a wish to defer the assumption of family 
cares; and, in other families, they are induced to only with the later children, 
the ordinary limit considered fashionable in the neighborhood, say, two or 
three, having been reached. In still others, it is systematically practised in 
every pregnancy, from motives of economy, the so-called prudence, or lust; 
seldom from fear of suffering, for women now generally know, that, by the 
use of anaesthetics, the pains, and we may say the dangers, of child-bed may 
be practically annulled. We are sorry to be compelled to add, to the shame 
of our profession, that, while it would be considered cruel for a physician to 
refuse a little camphor or peppermint or pennyroyal to one of our own sex 
with an ordinary belly-ache, very many are disinclined, on refuse, to relieve 
the unnecessary sufferings of women in child-bed, which in reality and or- 
dinarily amount to an agony of which we men have probably no conception. 
Said Professor Simpson, of Edinburgh, at the last annual meeting of the 
British Medical Association, at Dublin, in August, 1867 : " A man who should 90 
CRIMINAL ABORTION. 
resulting is most common after the sixth pregnancy,1 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 opin- 
ion.2 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.3 
Other pleas as offered by the mother, ignorance of preg- 
nancy or of foetal life, duress, impaired personal health or 
that of her family, accident, carelessness, fear of child-bed, 
whip a poor sick woman with a cat-of-nine-tails, would be considered exceed- 
ingly cruel, and probably be punished by law for his cruelty. The act would 
merit some punishment; but the accoucheur who permits his patients to 
suffer the cruel pangs of child-birth, at this day, is guilty of a sin almost 
as heinous." Dr. Henry Bennet, the celebrated physician of London, 
expressed upon the same occasion an equally emphatic opinion. He stated, 
that, " if it were the law of nature that husbands should take turn about with 
their wives in bearing children, physicians would all at once become violent 
advocates of anesthetics in child-bed." (Richmond Medical Journal, January, 
1868, p. 859.) 
1 Med. Times and Gazette, January, 1856, p. 611. 
2 " This operation must not on any account be undertaken without the 
sanction, and in the presence, of another practitioner." Clay, Handbook of 
Obstetric Surgery, p. 13. 
3 We must frankly avow, however, our belief that, during the whole period 
of pregnancy, women are not quite as accountable morally, however they 
may be legally, as when not in this condition; just as in the non-puerperal 
state, their minds are ordinarily somewhat differently affected at the men- 
strual periods than during the interval; a fact acknowledged by every woman 
who honestly confesses to her own sensations, and noticed by every observ- 
ant medical practitioner, indeed by most married men. ITS PROOFS. 
91 
malpractice on part of the attendant, we have already con- 
sidered at sufficient length. It is sometimes effected in 
hatred of the husband or in jealousy, sometimes for con- 
cealment 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 insti- 
tuted were to prevent, .instead of to effect, the miscarriage, 
and that this has resulted in consequence merely of an ex- 
cess 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 prelimi- 
narily to lessen her danger; or, to conceal the character of 
those, on the other hand, that 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 al- 
ways 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 foetus. The same is true, 
though of course to a more limited extent, of all over-drug- 
ging, over-manipulation, or over-exertion by a pregnant 
woman, by whomsoever advised or performed. In every in- 
stance, it is necessary to compare the cause alleged with the 
effects observed, and to judge of it from these. Where 
direct operative manoeuvres are suspected or charged, the 
processes or instruments, the results, immediate and con- 
secutive as well as remote, the period elapsing before their 
occurrence, must all be taken into careful consideration. 92 
CRIMINAL ABORTION. 
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.1 
It was stated early in this inquiry, that a difference existed 
between the methods of investigation, as regards the exami- 
nation of the foetus, proper in abortion and infanticide. The 
reason of this has been pointed out by Tardieu.2 In the 
latter case, the whole matter turning upon the questions 
whether the child, which must have been wholly born for 
the offence to have been committed, was born living or dead, 
and in which of these states it was injured, it becomes neces- 
sary 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 pre- 
mature ; and, if so, was it intentional; and, if so, was it ab- 
solutely essential, and to save either maternal or foetal 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 foetus 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, like those related by Ollivier d'An- 
gers, and Casper, of Berlin, where the foetus, 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 ter- 
minating the pregnancy without injuring the foetus. 
1 1 Gabbett Crim. Law, 523. 2 Loc. cit. ITS PROOFS. 
93 
And so in other cases, especially of sudden maternal death, 
it is of importance to ascertain as nearly as possible the period 
at which the death of the foetus 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 decom- 
position in utero and in the open air must not be lost sight 
of. In the former case, according to Orfila, Devergie and 
Martin, Moreau, P. Dubois, Danyau, Cazeaux, Tardieu, and 
our 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 ;1 the foetus 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 mem- 
branes 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 foetus 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 situ- 
ation 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 
1 Chevalier and Devergie, Ann. d'Hyg., 1856, p. 157. 94 
CRIMINAL ABORTION. 
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 Taylor1 and other medical 
jurists, might, however, be expected, and is readily accounted 
for; the instruments used by ignorant persons seldom enter- 
ing 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 cases where 
there is a deficiency of liquor amnii, or in labor, the foetus 
can hardly be said to forcibly press. 
4. The Identity of the Party Accused. 
Most of the points here involved having already been in- 
cidentally considered, we will not repeat them. The cir- 
cumstances and history of the case, the relative correspond- 
ence 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 per- 
sons are at times wrongly accused, often by the true crimi- 
nals 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 un- 
noticed, the fact that the sanguineous effusion was hemor- 
rhagic 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 
1 Med. Jurisp., Griffith's ed., p. 472, Hartshorne's ed., p. 378. ITS PROOFS. 
95 
history of the case. Moles and hydatids are now generally 
allowed to be mere transformations of the product of con- 
ception ; their premature discharge, therefore, equally an 
abortion ; their very occurrence, often the effect of attempts 
at the crime. 
In answer to the second plea, the importance of sev- 
eral 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 nat- 
ural and accidental causes liable to have produced the abor- 
tion. 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 ; co- 
incidences must be guarded against, equally with untruth. 
We have already laid down rules here available : that the 
state of the foetug often affords proof of the cause of its expul- 
sion, this being slow and natural, and depending on disease 
and predisposition, or not; that in flagrant malpractice, the 
use of alleged specifics, or of measures likely to produce di- 
rect miscarriage, or otherwise absolutely counter-indicated 
by the general health and constitution of the patient, a con- 
tradiction exists to the plea offered, in itself strong presump- 
tive evidence of criminal intent; and that, in certain cases, 
this evidence becomes positive, as where, for instance, a 
sponge found, or proved to have been inserted into the os 
uteri as a dilating tent, is alleged to have been intended as 
a mere pessary, and placed in the vagina. 
If the accused be a physician, presumed, as he should be, 
to be acquainted with the great principles of practice, his 
only plea can be, where the means used were unjustifiable 
and proved such, and where the pregnancy was known to 
others, that he was ignorant of its existence. Liable as the 
profession are at any time to this charge, and easy as it is 
in almost every case, especially of instrumental procedure, 96 
CRIMINAL ABORTION. 
for us to take such preliminary measures as would be likely 
to settle the question of the existence of pregnancy, or to 
request the presence of a witness to our act, it is unjust to 
ourselves and to each other to omit these precautions. 
But if, on the other hand, the charge be utterly unfound- 
ed, it is probable, as I have already remarked, that contra- 
dictions in the testimony or the alleged facts could always 
be shown to exist, and the perjury thus exposed. It would 
be self-evident, were the accused proved to have been first 
consulted after the abortion had terminated, though not if 
it had only commenced. 97 
ITS PERPETRATORS. 
CHAPTER V. 
ITS PERPETRATORS. 
It is interesting, and, at the same time, of judicial impor- 
tance, to ascertain, so far as possible, the standing and char- 
acter of the perpetrators of this crime. 
In the first place, French statistics on the large scale 
show that the number of criminals, - principals, and accom- 
plices, - in that country at least, is in large excess to the in- 
stances of the crime, there having been in 183 trials, from 
1826 to 1853, not merely 417 parties accused, but 213 con- 
victed; and that in 75 per cent of the prosecutions and 
convictions occurring, where the abortion is not induced by 
the mother herself, the offenders are women.1 With us the 
same statement is, without doubt, equally true. 
The part played by the mother, herself so often a victim, 
is almost always that of a principal; yet, as laws now stand, 
she can scarcely ever be reached. The cases where she is 
under duress, by threat of other personal violence from her 
husband or seducer, and thus compelled to submit to abor- 
tion, or where the act is performed by his direction but 
without her knowledge, are so rare, that, in a general state- 
ment, they may be assumed not to exist. If the mother 
does not herself induce the abortion, she seeks it, or aids it, 
or consents to it, and is, therefore, whether ever seeming 
justified or not, fully accountable as a principal. We have 
already seen the position these mothers hold in the commu- 
nity, high as well as low, rich as well as poor, intelligent 
and educated as well as ignorant, professedly religious as 
well as of easy belief, not single alone, but married. 
1 Tardier, loc. cit., 1856, p. 124. 98 
CRIMINAL ABORTION. 
We turn now to their partners in guilt, more criminal 
than themselves; for, whatever excuse the latter may 
suppose themselves to possess, the former can have 
none. 
The accomplices in criminal abortion are of several class- 
es, distinguishable in some respects from each other, espe- 
cially by the relative frequency with which their part is 
played. They are, of women, - 1. Friends and acquaint- 
ance ; 2. Nurses; 3. Midwives and female physicians: 
and of men, - 4. Husbands ; 5. Quacks and professed abor- 
tionists ; 6. Druggists; 7. and worst of all, though fortu- 
nately extremely rare, physicians in regular standing. 
1. In many cases, - such at least is judged by the writer 
from his own observation, - the abortion is not merely ad- 
vised, but induced, by some female friend, especially by one 
who has herself undergone, in her own person, the crime ; 
perhaps without appreciable evil result, - but this is not 
necessarily the case, for even where such result is present, 
and plainly in consequence, its connection with the true 
cause is frequently unsuspected or disbelieved. 
It has been said that misery loves companionship: this is 
nowhere more manifest than in the histories of criminal 
abortion. In very many instances, from our own experience, 
has a lady of acknowledged respectability, who had herself 
suffered abortion, induced it upon several of her friends : 
thus perhaps endeavoring to persuade an uneasy conscience, 
that, by making an act common, it becomes right. Such 
ladies boast to each other of the impunity with which they 
have aborted, as they do of their expenditures, of their 
dress, of their success in society. There is a fashion in 
this, as in all other female customs, good and bad. The 
wretch whose account with the Almighty is heaviest with 
guilt, too often becomes a heroine. So true is the case, 
that the woman who dares at the present day publicly or 
privately to acknowledge it the holiest duty of her sex to 
bring forth living children, " that first, highest, and in ear- ITS PERPETRATORS. 
99 
lier times almost universal lot," 1 is worthy, and should re- 
ceive, the highest admiration and praise. 
2. The ease with which an accomplice is procured, pro- 
vided the idea originates with the victim herself, and is not 
suggested by another, is found among nurses to be greatly 
increased. We separate them as a class from midwives and 
female physicians, with whom, though in this country not 
generally acknowledged or thought identical, they not un- 
frequently aim to be confounded. They are usually, and 
rightly, thought more familiar with the laws of health and 
disease, than the generality of their sex; they are, if doing 
their duty in his sight, seen to be treated with respect by 
the physician ; they are commonly of mature age, supposed 
discreet, wise, and to keep their own counsel; they have 
had opportunities of gaining the confidence of the mother; 
many of them have themselves borne families. They are 
therefore approached with less hesitation, and are not al- 
ways found proof against an offered fee. 
3. What we have said of nurses applies with increased 
pertinency to female physicians and midwives. These make 
it their claim, in rivalry of the male physician, that their 
schools and their practice are, like his, founded on those 
abroad, especially of Paris. Tardieu shows, in a total of 32 
cases of criminal abortion occurring in that city and collect- 
ed by himself, that in 21, no less than 66 per cent, or two- 
thirds of the whole number reported, the crime was per- 
petrated by midwives.2 This class frequently cause abortion 
openly and without disguise. They claim a right to use 
instruments, and to decide on the necessity and consequent 
justifiability of any operation they may perform. Where 
they establish private hospitals, professedly for lying-in wo- 
men or not, their chances, previously great, of committing 
this crime and infanticide with impunity, become more 
than doubled. It has been found necessary in France for 
1 A Woman's Thoughts about Women. By the author of "John Halifax, 
Gentleman." 1858, p. 14. 2 Loe. cit. 100 
CRIMINAL ABORTION. 
the police to exercise rigid surveillance over these establish- 
ments. In one instance, occurring at Grenoble, it was 
proved that within three years there had happened in the 
house 31 still-births at the full time, or deaths just after 
birth, and that the abortions and miscarriages had been 
almost innumerable.1 In another case, to conceal the evi- 
dence of these truly corpora delicti, and to evade the law 
against secret burials, the midwife had established a cur- 
rent account with an undertaker, who was accustomed to 
smuggle the foetuses into his coffins, by the side of the 
corpses confided to him for burial. In still other cases, 
the victims are kept on hand, preserved in jars; private 
collections, vying in extent with those of legalized obstetric 
museums. 
By these remarks we would not be supposed endeavoring 
to excite prejudice against female physicians and midwives 
as such, or advocating their suppression. We are now 
merely considering this crime of abortion, in relation to 
which they are peculiarly and unfortunately situated. At 
present, every thing favors their committing the crime : their 
relations to women at large, their immunities in practice, 
the profit of this trade, the difficulty, especially from the 
fact that they are women, of insuring their conviction. Let 
better laws be enforced, and let public opinion be enlight- 
ened concerning the guilt of abortion, and the influence for 
evil of this class of offenders will in great measure be done 
away with.2 
1 Loc. cit. 
2 The above remarks were written in 1859. Since that time we have made 
public and ample trial of the possibility of females becoming as competent 
as can men for the practice of physic; a question which involves also the propri- 
ety of their attempting to do so even were it possible. For three years we 
were attached as surgeon to a hospital mainly under the charge of such ladies, 
and for two years our assistant in private practice was a female physician. 
The experiment, as we have said, was long and honestly tried; and our conclu- 
sion, as expressed in our letter of resignation to the officers of the institution 
above referred to (Boston Med. and Surg. Journal, Sept. 1866), was to the 
following effect: that, granting that women in exceptional cases may have ITS PERPETRATORS. 
101 
Of male abortionists we have less to say. Their number 
is fewer abroad, bearing the proportion, as we have seen, of 
but one to every four; and their liability of being applied to 
or consulted is slight in comparison. 
4. Husbands, though generally knowing to the offence of 
their wives, and often counselling it, probably but seldom 
attempt its commission themselves ; yet instances of this do 
undoubtedly occur.1 In but a sixteenth of the cases re- 
ported by Tardieu was any compulsory violence exerted over 
women by their husbands. 
5, 6. Professed abortionists and druggists are accountable 
for the greater number of the cases of the crime attributable 
to men. The former class, though proportionally rare, yet 
abound in every city, and take all means of making them- 
selves known. A knowledge of their alleged specifics, 
against the use of which, " at certain times," the public 
are " earnestly cautioned," Ac., is brought home to all our 
women, no matter how purely minded, and despite every 
care to the contrary, through the medium of the daily press ; 
few papers, however professedly respectable or religious, 
proving able to refuse the bribe. 
all the courage, tact, ability, pecuniary means, education, and patience neces- 
sary to fit persons for and sustain them in the difficulties, cares, and responsi- 
bilities of professional life, they still are and must be subject to the periodi- 
cal infirmity of their sex; which for the time, and in every case, however 
unattended by physical suffering, unfits them for any responsible effort of 
mind, and, in many cases, of body also. This is the true ground of objection, 
too often lost sight of. We have already referred to the mental influences of 
menstruation, and its effect upon individual responsibility; the condition being 
recognized and willingly acknowledged by those of the sex who have not 
some interested motive in denying it. It is not to women as physicians 
we would object, for they would often make most agreeable and charming 
attendants ; but it is to their often infirmity, during which neither life nor limb 
submitted to them would be as safe as at other times. We could hardly allow 
to a female physician convicted of criminal abortion the plea that the act 
was committed during the temporary insanity of her menstruation; and yet 
at such times a woman is undoubtedly more prone than men to commit any 
unusual or outrageous act. 
1 We have referred to this matter in fitting terms in our book for the pri- 
vate perusal of men. 102 
CRIMINAL ABORTION. 
Druggists, as a class, are little more than the confessed 
agents of these villains. Even should they not directly 
recommend their nostrums, as, however, is frequently the 
case, they almost universally keep them on sale, labelled 
to catch the eye, and placarded on their walls. Like the 
publishers and vendors of obscene literature, they conceive 
they are not to blame for supplying a public demand, how- 
ever much they themselves may have done toward its crea- 
tion. 
And in this connection we must again allude to the guilt 
of the public press, which has proved itself so constantly 
and so dangerously an accessory to the crime. It would be 
thought that in Massachusetts, for instance, a statute like 
the following might do something to check this license: -1 
" Whoever knowingly advertises, prints, publishes, dis- 
tributes, or circulates, or knowingly causes to be advertised, 
printed, published, distributed, or circulated, any pamphlet, 
printed paper, book, newspaper, notice, advertisement, or 
reference, containing words or language giving or convey- 
ing any notice, hint, or reference to any person, or to the 
name of any person, real or fictitious, from whom, or to any 
place, house, shop, or office, where, any poison, drug, mix- 
ture, preparation, medicine, or noxious thing, or any instru- 
ment or means whatever, or any advice, direction, informa- 
tion, or knowledge, may be obtained for the purpose of 
causing or procuring the miscarriage of any woman preg- 
nant with child, shall be punished," &c.2 
The above statute, however, such is the public sentiment 
on this point, is not enforced, or is daily evaded. The 
press, if it choose, may almost annihilate the crime: it now 
openly encourages it. 
7. It has been often alleged, and oftener supposed, that 
physicians in good standing not unfrequently, and without 
1 Gen. Sts. of Mass. ch. 165, § 10. 
2 " By imprisonment in the State prison, or jail, not exceeding three 
years, or by fine not exceeding one thousand dollars." ITS PERPETRATORS. 
103 
lawful justification, induce criminal abortion. This state- 
ment, whatever exceptional cases may exist, is wickedly 
false. The pledge against abortion, to the observance of 
which Hippocrates compelled his followers by oath,1 has 
ever been considered binding, even more strongly of late 
centuries. The crime is recognized as such in almost every 
code of medical ethics; its known commission has always 
been followed by ignominious expulsion from medical fel- 
lowships and fraternity. If this direct penalty be at any 
time escaped, it is only through lack of decisive proof; bare 
suspicion even of the crime insuring an actual sundering of 
all existing professional friendships and ties, - a loss that 
subsequent proof of innocence could hardly restore. Such 
is the. unanimous feeling of the profession. To'its credit be 
it said, that, with but a single exception,2 - and this to his 
eternal disgrace, - its writers are all agreed, abstractly con- 
sidering the subject, on the sanctity of foetal life. The 
instances, where physicians in good standing are guilty of 
the crime, are of rare occurrence; the error that has pre- 
vailed on this point originating from the self-assumed titles 
of notorious quacks and knaves. But no condemnation 
can be too strong for the physician who has thus forgotten 
his honor; who has used, to destroy life, that sacred knowl- 
edge by which he was pledged to preserve it. 
The criminal abuses likely to arise from the procurement 
of justifiable abortion by medical men are so numerous, 
their own liability to be thought by the public criminally 
careless of foetal life, or sceptical concerning its existence, 
is so great, that the subject is worthy special consideration. 
This we shall now devote to it. 
1 Opera omnia. Ed. 1655, i., p. 643. 
2 Jorg, of Leipsic, who 'speaks of the human foetus as " only a higher 
species of intestinal worm, not endowed with a human soul, nor entitled to 
human attributes." 104 
CRIMINAL ABORTION. 
CHAPTER VI. 
ITS INNOCENT ABETTOBS. 
We have referred to an apparent disregard of foetal life, 
obtaining in the medical profession, as a prominent cause of 
the prevalence of criminal abortion. We now proceed to 
show that the opinion is not unfounded. 
Premature labor, or obstetric abortion, may be justifiably 
induced by the physician for one of two reasons, - either to 
save the life of the mother, or that of her child. In each 
case it must be, absolutely and only, to save a life. 
Performed for the child's sake, it is evident that the 
operation can be only available during the last three months 
of pregnancy; for then only can the foetus with any degree 
of probability be considered viable. We grant that there 
are a few cases on record where, born during the sixth 
month and even in the fifth, the child has survived; but it 
is equally certain, despite the popular notion concerning the 
mortality of eighth-month children, that the later the opera- 
tion can be safely delayed, the better the chance for the 
infant's life. 
The rules for the induction of premature labor must, of 
course, vary for different cases. In this early stage of the 
inquiry, it is perhaps impossible to state them precisely, but 
they may still be approximately arrived at. 
1. The operation, performed for the child's sake, is but 
seldom requited ; and in general, 
2. Only after the commencement of the seventh month of 
pregnancy. 
3. It must be clearly indicated ; and 
4. Must be delayed as long as is consistent with the 
child's safety. ITS INNOCENT ABETTORS. 
105 
5. Its means must be those which are most efficient, and 
safest for the child. 
We have already stated, that the induction of abortion be- 
fore the seventh month, undertaken for the child's sake, 
must be generally useless; and therefore, as attended with 
some degree of danger to the mother, generally unjustifi- 
able. As the profession are nearly united on this point, its 
further discussion is here unnecessary. 
We have asserted, that the cases where prematurely in- 
duced labor is required for the child are comparatively 
rare. We now add, that, while in some respects they are 
more frequent, in others they are less so than is generally 
supposed. To necessitate it, there must be disease or de- 
formity on the part of the mother, or disease on the part of 
the foetus or its appendages. 
It is most frequently performed to avoid the alternative 
of craniotomy, or destruction of the child by evacuating the 
contents of its cranium; the necessity of which, unless ex- 
treme, can manifestly only be known with certainty, before 
the expiration of pregnancy, from the experience of past 
labors with the same patient. But here too much caution 
cannot be exercised ; the rules of the books and of accepted 
authorities are not to be blindly followed. 
Craniotomy at the full time is still too frequently per- 
formed ; for, where it has been suggested by the character 
of a previous labor, children are often, or might be, born 
living: where it seems indicated by direct exploration, as 
ruled even by recent writers, children are sometimes, or 
might be, born living: where it was formerly thought abso- 
lutely essential, the progress of obstetric science has now 
rendered it often unnecessary. 
It is proper that we consider these points, for they bear 
directly on the question at issue concerning criminal abor- 
tion. 
It is known that the sex of children exercises an appre- 
ciable influence upon the result of labors at the full time, 106 
CRIMINAL ABORTION. 
as regards the possibility of their passing alive, unaided or 
at all, through the pelvis, and as regards the length of 
the labor, which also progressively endangers the life of the 
mother and their own; the average female foetus, in cases 
at all difficult, having the advantage over the male by its 
inferiority in size, especially important in the cranial diam- 
eters. It is unnecessary for us to do more than refer to 
the facts by which these assumptions are proved.1 Where, 
therefore, craniotomy has been found necessary in a former 
labor, the child then being male, in another labor a female 
foetus may often pass uninjured. However this argument 
may be lessened in value by the impossibility of previously 
ascertaining the sex, it is strengthened in the doctrine of 
chances, by the number of the labor and the sex of the 
former children ; and by the fact that first labors are gener- 
ally most difficult, whatever the sex of the child. 
Furthermore, cases will suggest themselves to most prac- 
titioners of experience, in which, from difference in the char- 
acter of the labor, or without apparent reason, children are 
born living at the full time, males of large size, and pre- 
senting by the vertex, where craniotomy had previously, 
perhaps repeatedly, been performed. An instance of this 
has occurred to the writer, where the patient had been 
advised to early abortions from alleged physical incapacity 
of ever bearing living children ; he delivered her, without 
difficulty, of a large-sized and living boy, at the full time. 
Again, it may happen, that, in labor at the full period, 
craniotomy may seem decidedly indicated and advisable, 
but for one reason or another may not be performed, and 
yet the child, unaided, be born living. The writer's expe- 
rience prior to 1862, when he relinquished the practice of 
midwifery, furnished him with several illustrations of this 
class. One of these occurred in 1851, the patient having 
been his own, and Drs. Storer, sen., and Cabot, being in 
consultation; the other was seen at Edinburgh, in 1854, 
1 Simpson, Obst. Works, i., pp. 352, 404. ITS INNOCENT ABETTORS. 
107 
in the practice of a friend, Dr. Graham Weir. In both of 
the cases, permission was refused to operative procedures, 
the patients being Catholic, and the physicians unable con- 
scientiously to pronounce the foetus already dead, while the 
possibility of intra-uterine baptism was not recollected; in- 
both instances the children were born living, and without 
instrumental aid. 
In other cases, where, from deformity previously diagnos- 
ticated, craniotomy is pronounced necessary if the patient 
should go her full time, she may do so, the labor be unassist- 
ed, and the child yet escape with its life. We long since 
instanced a remarkable case for some time under our own 
charge at the Boston Lying-in Hospital, delivered by one of 
our colleagues, Dr. Dupee, and subsequently reported by 
Dr. Read.1 The pelvis was here equably contracted, and 
to a great degree; but from some difference of opinion, 
partly as regarded the justifiability of premature labor as 
compared with craniotomy, the patient was allowed to go 
her full time. Both mother and child did well. 
Finally, by turning, the use of the long forceps, and of 
anaesthesia, children are now constantly saved, where for- 
merly craniotomy and their consequent destruction would 
have been absolutely indicated. These processes, with the 
introduction of each of which as an alternative a single 
name, that of Sir J. Y. Simpson, of Edinburgh, is imperish- 
ably connected, are now successfully employed by very 
many of the profession;2 they have each of them saved to 
the writer the disagreeable necessity of foetal destruction. 
Where, however, one life is thus preserved, there are still 
multitudes unnecessarily, and therefore unjustifiably, sacri- 
ficed. 
1 Boston Med. and Surg. Journal, January, 1857, p. 462. 
2 The immorality of craniotomy, where delivery can be effected by any 
other method, is gradually becoming acknowledged in Great Britain. A 
discussion on this subject, at the Obstetric Society of London, was reported 
in the Medical Times and Gazette for February, 1859; and there have been 
several since. 108 
CRIMINAL ABORTION. 
The comparative frequency of craniotomy in the different 
countries of Europe is in this connection worth noticing. 
The operation was performed, in 1850-55, according to 
statistics we presented in 1859, in - 
Germany once in every 1944 labors 
Paris ,, ,, ,, 1628 ,, 
France at large ,, ,, ,, 1200 ,, 
Vienna ,, ,, ,, 688 ,, 
England ,, ,, ,, 220 ,, 
Ireland formerly1 ,, ,, ,, 128 ,, 
Ireland at present, Dublin Hospital, 18542 . ,, ,, ,, 105.7 ,, 
The remarkable difference between the practice on the 
Continent and in England, so suggestive to us in this coun- 
try, is undoubtedly owing to the fact, that, in Catholic States, 
a greater value is attached to the life of the child than " in 
Protestant States, as Britain, where the child is always sac- 
rificed to save the mother."3 The immense excess of em- 
bryotomy cases in Catholic Dublin furnishes no exception 
to this rule, drawn as they are from hospital practice under 
Protestant control. 
" Whenever," writes Professor Elliot, of New York, 
" there exists a hope that the child may still be living, em- 
bryotomy must not be resorted to, unless other elective 
operative measures have failed, and perhaps have failed in 
more than one trial. Nor even then is embryotomy justifiable, 
unless the consultation are convinced that further delay must 
certainly preclude every chance of safety for the child, and 
very seriously endanger the maternal tissues, or life." 4 
So far proof by deduction. In many cases involving the 
question of craniotomy, that operation is not required; in 
some of them, not even the induction of premature labor. 
Two classes of cases remain, each affording more direct 
1 Clay, Obstetric Surgery, p. 68. 
2 Sinclair and Johnston, Practical Midwifery, 1858. 130 cases of 
craniotomy in 13,748 labors. 
3 Clay, loc. cit., p. 69. 4 Obstetric Clinic, 1868, p. 314. ITS INNOCENT ABETTORS. 
109 
evidence ; those where craniotomy being absolutely indicated 
if the patient were allowed to go her full time, that opera- 
tion is, and those where it is not, performed. 
Craniotomy, being necessarily fatal to the foetus, is 
indicated only to save the mother's life; and it is to be 
avoided when any other alternative giving the foetus a chance 
of life, and not more than equally hazardous to the mother, 
can be resorted to. Especially is this the case when it is 
compared with the induction of premature labor, attended 
as is the latter, despite a certain amount of danger of its 
own, with great probability of saving the child, and with 
decidedly lessened risk to the mother; for craniotomy not 
merely requires the use of murderous instruments, danger- 
ous to all tissues they may approach or be in contact with, 
but the operation is usually, though often very improperly, 
delayed till late in the labor, and therefore till the mother's 
chances of recovery have been proportionally lessened. Pre- 
mature labor, on the other hand, though of course involving 
some risk to the child, is not necessarily fatal to it; nor is it 
usually so, when properly performed. That there is a choice 
in this respect between the means employed, will hereafter 
be shown. 
Craniotomy, when absolutely indicated at the close of 
pregnancy, must be for one of two reasons: that the foetus 
cannot pass through the pelvis at the full time alive, though 
it may do so unmutilated, the operation being performed to 
save the mother the greater risks of protracted labor ; or 
that it cannot pass at the full time unmutilated, even when 
dead. We defer the consideration of another supposable 
instance, where the foetus in the outset of its viability may 
pass, but not alive, for this pertains to the consideration of 
the mother's safety alone, no alternative availing for the 
child. In the other cases, if the necessity could be learned 
in season from the previous history of the patient or by 
pelvic exploration, labor should most certainly be prema- 
turely induced, as affording some positive chance of life to 110 
CRIMINAL ABORTION. 
the child, and as less dangerous to the mother. It were 
here worse than foolish, if not criminal, blindly to imitate 
nature, when, her course being obstructed, she would kill 
the child. 
We have alluded for a double reason to cases, fortunately 
few, where, craniotomy and much more decidedly premature 
labor being indicated, the practitioner decides from the 
outset to perform neither, and to give his patient or her child 
no aid. Such conduct is as cruel and wicked as it is 
unprofessional; and, were not instances occasionally reported, 
its existence could hardly be believed. We acknowledge 
with Blundell the evils of meddlesome midwifery, but there 
are extremes to all things ; certainly to the powers of nature 
and the limits of justifiable delay. 
We are aware that we have referred to a reported case, 
which might in this connection be quoted against the opinion 
now expressed ; but even by its exceptions do we prove the 
rule. Where chances are so greatly against both mother 
and child as in these cases if left unaided, it would be the 
office of the physician, were there no better procedure, by 
craniotomy to save the one;1 but at the present day it is no 
less plainly his duty, where possible, to anticipate labor, and 
thus save both. We have elsewhere discussed this question 
at some length,2 and can only repeat, as is indeed allowed 
by Churchill,3 that this is no matter on which to select one's 
words; the deliberately sacrificing an unborn but still 
living child, in cases where statistics go to prove that the 
1 The subject of justifiable craniotomy has been ably though controver- 
sially discussed by an anonymous writer (Dublin Review, April and October, 
1858), by Dr. Churchill (Dublin Quarterly Journal of Medical Science, 
August and November, of the same year), and by others. Care must be 
taken, lest in assenting to the decided and imperative necessity of the opera- 
tion in certain cases, and by a natural professional sympathy, too great fre- 
quency is allowed to this most horrible and appalling of all the operations to 
which physicians can ever be called. 
2 Review of Clay's Obstetric Surgery; Boston Med. and Surg. Journal, 
November, 1856, p. 283. 
3 Theory and Practice of Midwifery, p. 348. ITS INNOCENT ABETTORS. 
111 
adoption of another mode of delivery, nothing counter- 
indicating, would give that child a good chance of successful 
birth, is nothing short of wilful murder, no matter by what 
schools or by what eminent men it may be sanctioned, and 
it should be branded as such by the profession. 
But, undertaken for the child's sake, not merely should 
premature Iquor be resorted to for the purpose of preventing 
craniotomy, but often in cases of incurable disease, acute 
and chronic, of the mother, where it is evident that she 
must inevitably, or even probably, perish before the full pe- 
riod of pregnancy has been attained. Instances of such 
acute disease will readily suggest themselves. The question 
here is merely between the operation under consideration, 
the Caesarean section, and doing nothing. The last, suppose 
the foetus viable and to be still living, would in many instan- 
ces be decidedly unprofessional and unjustifiable. Caesarean 
section after the mother's death is comparatively unsuccess- 
ful ; and, before it, is so much more severe, and in all proba- 
bility so much more quickly fatal, that premature labor 
should be preferred, unless death be already close at hand. 
Instances of chronic incurable disease necessitating the 
induction of premature labor may not so readily occur to 
the mind. The shock of an abortion being frequently great- 
er to the maternal system than that of labor at the full 
time, it is evident that this rule cannot be universally ap- 
plied. It cannot in every case of thoracic disease, of the 
heart, for example, unless its own peculiar symptoms be- 
come so aggravated from progressing pregnancy as to ren- 
der probable earlier decease of the mother, the operation 
then being performed partly on her account; not so much 
to save her life as to delay a little her death. But there 
are other and extreme cases, as cancer of the lower segment 
of the uterus, or indeed of its fundus, which may have been 
diagnosticated previously to pregnancy by the use of expan- 
sible tents, where the mother would probably perish in labor 
at the full period, with most probably the loss of the child 112 
CRIMINAL ABORTION. 
also. Here, by premature labor, the child may be saved, 
and the mother's life - greater expansion of the uterus and 
its more probable laceration being prevented - possibly pro- 
longed. 
So far complications on the part of the mother necessi- 
tating premature labor for the sake of the child. There are 
others equally imperative, afforded by itself. Excessive size 
of the foetus in comparison with a normal pelvis, as rendered 
probable or evidenced by previous labors, is hardly of less 
importance in connection with craniotomy, than where the 
pelvis is distorted or contracted, and the foetus of natural 
size ; but the operation in question, as compared with pre- 
mature labor, we have already sufficiently discussed. 
Diseases of the placenta, congestive, inflammatory, or de- 
generative, are no less an indication, where known to exist, 
for an early delivery. Their diagnosis may be difficult, but 
yet not wholly impossible. The occurrence of the same 
disease in past labors, and evident intra-uterine disturbance 
as discovered by auscultation or by unnaturally frequent and 
strong foetal movements, are, taken together, frequently 
sufficient to establish the fact. The impropriety of allowing 
such cases to proceed unaided cannot be too strongly in- 
sisted upon. By early delivery, if in previous pregnancies 
the foetus have perished after the period of viability, and in 
addition, by special medication of the parent, if its death 
had usually occurred before that time, many valuable lives 
might annually be saved. 
Premature labor as resorted to on the mother's behalf 
alone, putting aside the cases we have incidentally consid- 
ered, where the lives of both herself and her offspring are of 
necessity taken into account, includes also its induction in 
the earlier months of pregnancy before the foetus is viable. 
It may be required by diagnosticated malformation or mon- 
strosity of the foetus, and by malformations on the part of 
the mother; by extreme pelvic contraction, congenital or 
from rickets or malacosteon, preventing the natural passage ITS INNOCENT ABETTORS. 
113 
of a foetus after viability, by tumors incapable of elevation 
or displacement, by contraction of the vagina, or by other 
severe obstetric complications, either recent or of long stand- 
ing. Of this last class of causes, obstinate vomiting, puer- 
peral convulsions, which are by no means confined to the 
full period of pregnancy, dropsies, irreducible displacements 
of the uterus, varix of the external labial vessels, sometimes 
fatal by laceration from tension, are all instances in point. 
With regard to each, the necessity of the abortion must be 
determined with the greatest caution, and resort be had to 
it, the child still living, with reluctance; especially should 
this be the case if the complication be supposed on the part 
of the fcetus, so important is it to avoid its sacrifice, if possi- 
ble, and the semblance of disregarding its own important 
claims. It must not be forgotten that the vomiting of preg- 
nancy has been discovered to originate in many instances 
from simple uterine irritation, the stomach itself being 
healthy; a fact that explains the frequent inefficacy of any 
remedial agents exhibited by the mouth. This is so impor- 
tant a matter, it has been so little understood, and so many 
lives are dependent upon the treatment resorted to, that it is 
well worthy close attention. We have elsewhere presented 
a short paper upon the subject.1 
The rules for the operation of premature labor when per- 
formed for the mother are the same as when for the child, 
save that, if absolutely required, it may be resorted to at an 
earlier period. If the child must necessarily be lost, the 
labor should not be long delayed. 
There are several subordinate questions arising in this 
connection, neither metaphysical nor merely casuistic, but 
practical, and, because bearing on the increase of criminal 
abortion, directly involving human life to an indefinite ex- 
tent, and thus important to the medical jurist. One of them 
we shall now mention. 
Let physical incapacity to the birth of a living or viable 
1 Detroit Review of Medicine and Pharmacy, November, 1867, p. 485. 114 
CRIMINAL ABORTION. 
child through the natural passages be supposed to exist on 
the part of the mother; that this has been proved by exam- 
ination, or by the result of a former labor, induced or at the 
full time: to save the mother's life, early abortion is 
once brought on and the child destroyed, the woman and 
her husband being of course informed of the true state of 
the case. Is it right or justifiable again to destroy the foe- 
tus, and as often as sexual lust may repeat impregnation ? 
Or should the patient be left to the risks of a subsequent 
Caesarean section, which would at least give the chance of 
life to her child ? 
We are aware on which side of this question lies at present 
the opinion and the practice of the mass of the profession ; 
that Naagele1 and others2 have ruled it right always to de- 
stroy the foetus when a refusal to undergo the Caesarean 
operation shall have been formally expressed by the mother; 
and that reports of instances where early abortion has been 
repeated, even to nine times upon the same patient, are still 
unblushingly published by men of the standing of Lever 
and Oldham.3 
But, on the other hand, in his admirable justification of 
craniotomy where absolutely necessitated, Churchill makes 
use of the following language, which, though offered in an- 
other connection, is none the less pertinent here: " It is 
the due appreciation of these relative responsibilities [re- 
garding mother and child] in difficult cases, that distin- 
guishes the wise and experienced accoucheur; he preserves 
a just counterpoise between them so long as it is possible to 
fulfil both, and recognizes the proper moment when one 
ceases. One, I say, not either; for I protest against the 
notion that we choose which of the two lives we shall save; a 
1 De jure vitas et necis quod competit medico in partu. Heidelberg, 1826. 
2 " Where one only can by any possibility be preserved, the female her- 
self 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 Med- 
icine, p. 145. 
3 Guy's Hospital Reports, 1856, p. 12. ITS INNOCENT ABETTORS. 
115 
notion as false in theory as it is in practice. No man dare 
make such a choice, for we have neither the necessary knowl- 
edge nor the right nor the authority to decide which is 
the more important life and best worth preserving."1 
" My own opinion is that such a course [the repetition of 
abortion] ought not to be adopted, but that pregnancy 
should be allowed to proceed, without interruption, to the 
full period; and when labor declares itself, that the infant 
should invariably be extracted by the Caesarean section," 2 
which, when performed in season, is by no means necessarily 
fatal to the mother, and may preserve life to the child. 
Said Professor Simpson to the British Medical Association, 
in August, 1867, at Dublin, which has always been the head- 
quarters of craniotomy, " If a woman with a deformed pelvis 
would go on putting herself in the way of becoming preg- 
nant, she ought to be made to take the risks of the Caesarean 
operation, rather than be encouraged in her course by sacri- 
ficing the life of her child."3 
The question now so plainly put is one for the profession 
soberly to discuss and to answer. 
We have already shown that, in many cases where instru- 
mental delivery or the induction of premature labor is 
apparently requisite, the mother, if a Catholic, is sacrificed 
to the supposed impossibility of administering the rite of 
baptism to the child. We do not, with some,, allow that 
the physician is here justified in deliberately and falsely 
asserting the child's death, where such has not taken place, 
but we have revived the suggestion of a method by which 
this great and fundamental obstacle may be overcome. We 
assert that the negligence too often shown by physicians in 
these cases, the custom of practically leaving the mother 
and her child to their fate when instrumental delivery shall 
have been refused upon religious grounds sincerely enter- 
1 Dublin Quarterly Journal of Medical Science, August, 1856, p. 10. 
2 Radford, British Record of Obst. Medicine, 1848, p. 84. 
3 Richmond Medical Journal, January, 1868, p. 58. 116 
CRIMINAL ABORTION. 
tained,1 is, however wide it may appear from the point, 
directly incentive to the increase of criminal abortion. 
Provided the question of necessity is determined, but one 
course in these cases should be pursued, and that, the per- 
formance of intra-uterine baptism. 
The objections usually made to the induction of premature 
labor - namely, the uncertainty of all pelvic measurements 
and of the exact period of gestation, the greater liability to 
malpresentation, and, from the uninvoluted state of the 
cervix, to the evils of a lingering labor - lose much of their 
force when tested by our preceding remarks. If resorted 
to, the means of its induction are various; and, as regards 
their justifiability, they present a decided choice. We here 
omit the consideration of the methods indirect or of doubtful 
efficacy, as draughts, general or local baths or bleedings, 
forced exercise, fatigue, and voluntary falls or blows, so 
frequently resorted to by the uneducated, or used, in addi- 
tion to other procedures, by the designing, to mask the 
reality : these will be subsequently considered ; and we con- 
fine ourselves, in comparing the other and more direct 
methods, only to ascertaining that which is safest and most 
efficacious, for these points alone can decide their respective 
justifiability. 
The direct and reliable means of inducing abortion, in 
the physician's possession, are only instrumental. Draughts 
of all kinds, whether purgative, emmenagogue, or so-called 
specific, - aloes, ergot, or savin ; or energetic poisons, 
expelling the foetus through a sudden and profound dis- 
turbance of the whole maternal system, as arsenic or can- 
tharides, - are too unreliable, unscientific, or dangerous 
1 The rules of the Catholic Church upon this point have been already 
referred to. Suffice it to say, further, that while they enjoin the Caesarean 
and vaginal sections in preference to craniotomy and in cases of extra-uterine 
fetation, yet turning, the use of forceps, and the induction of premature 
labor, where such are indicated, are distinctly allowed by them; although 
this fact does not seem familiar to many clergymen of the church referred to. 
Barry, Medico-Christian Embryology, pp. 41, 44, 45, 60. ITS INNOCENT ABETTORS. 
117 
either to mother or child. The justifiable methods are con- 
fined to those acting directly on the uterus and its contents, 
by dilating the os or detaching the membranes. 
They are, rejecting the local application of belladonna as 
utterly inert,- 
1. Local or distant and sympathetic irritation by the 
hand ; medicinal applications ; electricity or galvanism; 
irritation of the mammae; ice to the sacrum. 
2. Puncture of the membranes, and evacuation of their 
fluid contents. 
3. Dilatation of the os, and separation of the membranes 
from the uterine walls by expansible tents; as of sponge, 
sea-tangle, slippery elm, gentian root, &c.; the introduction 
of instruments ; or the injection of fluids. 
The first of these modes, in all of its applications, has 
generally proved extremely uncertain in effect. We think, 
however, that the measures referred to are in reality of 
greater importance than is generally supposed, and that the 
diversity of experience noticed in their use may be satis- 
factorily explained. We have already pointed out that it is 
at regular times during pregnancy, corresponding to the 
suppressed menstrual periods, that a woman is most likely 
to miscarry, in consequence of accident or disease. It is at 
just these times, that abortion or premature labor may most 
easily be intentionally induced. The measures under dis- 
cussion are, all of them, efficacious in increasing the amount 
of the menstrual discharge, where this is deficient. They 
will be found as efficacious for the other indication, provided 
the suggestions now made are borne in mind and acted 
upon. 
The second method, though that usually attempted, is of 
real avail only toward the close of pregnancy, and is even 
then decidedly inferior to the last of those proposed; at an 
earlier period, it is probably unjustifiable. In thirteen cases 
reported by Lever and Oldham,1 where labor was pre- 
1 Guy's Hospital Reports, 1856, p. 4. 118 
CRIMINAL ABORTION. 
maturely induced by puncturing the membranes, only four 
of the children were born living, and in all these the pre- 
sentation was by the vertex. It has been shown that mal- 
positions are much more frequent in earlier than later 
pregnancy, and, from evident causes, the comparative 
absence and weakness of the foetal movements which govern 
its position in utero, and the want of correspondence in 
form between itself and the containing organ. Of the nine 
cases reported where the foetus was dead, five presented by 
the vertex, and were therefore probably alive at the com- 
mencement of labor, as after death, previous to labor, mal- 
position very generally occurs, except there be deficiency of 
the liquor amnii or the pregnancy have advanced to near its 
close. 
Again, it appears from the same statistics, which as offered 
for another purpose are the more to be depended upon, that 
in the successful cases, where the child was born living, the 
length of time after the operation, and before the occurrence 
of pains, almost doubled that in the, unsuccessful cases, 
where the child was lost; the sum of the hours in the four 
successful cases exceeding the sum in the nine unsuccess- 
ful ones. That is to say, in the one class of cases time was 
allowed for a certain amount of dilatation of the os and 
cervix and for some degree of detachment of the membranes, 
an approach, however slight, to the characteristics of normal 
labor; and, in the other cases, the labor was brought on at 
once, without either of the above processes having com- 
menced, and when both uterus and its contents were totally 
unprepared. Had the times, moreover, from the commence- 
ment of labor to its close, been given in the two classes of 
cases, it would probably have been found that the relative 
proportions were reversed; that the sum of the hours in the 
unsuccessful cases exceeded that in the successful cases, 
as would be in strict accordance with the results to the 
foetus. 
In premature labor, as in that at the full period, the bag ITS INNOCENT ABETTORS. 
119 
of waters is required to be preserved until it lias fulfilled its 
purpose: on the one hand, of a fluid wedge; and, on the 
other, of protection to the child from violence till it has 
fairly entered the pelvic brim. Puncture is also attended 
with the danger of directly wounding the uterine tissues. 
The last of the methods referred to, dilatation and de- 
tachment, combined to a certain extent as they must ne- 
cessarily be, is in close imitation of the processes observed 
in natural labor, and is recommended alike by its safety to 
mother and child, its certainty, and the ease both to physi- 
cian and patient with which it may be effected.1 
From the above remarks, it is evident that the profession 
need to exercise great caution, lest they directly, though 
unintentionally, become the abettors of criminal abortion. 
1 For a full discussion of the respective merits of the several methods 
instanced above, see Simpson, loc. cit., i., p. 738. 
Where expansible tents are used for the purpose of inducing premature 
labor, those of properly shaped sponge are undoubtedly the best. We have 
experimented largely with sea-tangle tents, and for several reasons have 
abandoned them. Those of slippery elm, first proposed by ourself to the 
Medico-chirurgical Society of Edinburgh, in 1855 (Association Med. Journal, 
London, May, 1855; Boston Med. and Surg. Journal, November, 1855), are 
better for other purposes, as for relieving the pains of dysmenorrhoea. The 
same is true of gentian root; the results of our experiments with which we 
published in 1855, but which lias just been brought forward as new by 
Winckel, in 1867 (Deutsche Klinik); while we were both of us antedated 
by Hoeberl in 1834. Some years since we contrived an instrument, very 
similar to one proposed by Spencer Wells for dilatation of the female 
urethra, which, from its simple combination of the three principles involved, 
we prophesied would prove of material service in the induction of premature 
labor. We showed, moreover, that it possessed advantages over expansible 
tents for many 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, was published in the American Journal of 
the Medical Sciences for July, 1859. As so often proves the case in scientific 
discovery, it appeared however, that another writer, Dr. Keiller, of Edin- 
burgh, had conceived the idea at about the same time with ourself, and that 
our publications were almost simultaneous. The plan was subsequently 
adopted by an energetic and influential accoucheur of London: our instrument 
was slightly modified by him; and now, under the name of Barnes's dilator, 
it is universally acknowledged, and resorted to, as the best method of inducing 
premature labor throughout the world. For a full discussion of the question 
of priority in this matter, see Boston Med. and Surg. Journal, July, 1863. 120 
CRIMINAL ABORTION. 
But this liability is not confined to the instances already 
mentioned, where abortion has been intentionally induced. 
Nor is the matter in question one affecting merely the public 
health and morals, like prostitution or syphilization. 
It is a liability directly to increase the unjustifiable destruc- 
tion of human life ; and its existence cannot be too strongly 
impressed upon our minds, and guarded against. 
So true is this, that two of the French obstetricians, 
Moreau and Begin, have not hesitated to express their fears, 
and not on religious grounds ulone ; the latter, with Tardieu, 
giving it as his conviction, that every physician should make 
a legal declaration of the act to the public prosecutor, 
immediately on inducing premature labor, even if the period 
of viability has been reached by the foetus. The subject has 
also been discussed by the French Academy of Medicine ;1 
and in Great Britain it has been referred to by Radford, in 
whose opinion an enactment is necessary, " entirely prohibit- 
ing obstetric abortion (before the period of viability), as the 
door for evil purposes is already too open, and would be 
still more so, if it was legally decided that, where performed 
on supposed obstetric grounds, no inquiry should be made." 2 
Whenever an abortion is induced by a physician, even if 
accidentally, it is liable to be thought intentional by the 
patient and her friends, and consequently by the community, 
so far as it becomes aware of the fact. Instances of this 
are within the writer's knowledge. 
Accidental abortions, caused by a physician, may be from 
two causes: error or insufficient care in diagnosis, or the 
absence of all likelihood of the existence of pregnancy. When 
cases are reported in apparent innocence of fault, and by 
eminent practitioners, of the pregnant uterus having been 
tapped for ovarian dropsy; of craniotomy having been 
attempted upon an infant's fundament instead of its skull, and 
of the same operation in another instance undertaken upon 
1 Bulletin de l'Academie, xvii. p. 364. 
2 British Record, &c., p. 82. ITS INNOCENT ABETTORS. 
121 
the promontory of the mother's sacrum, it cannot be 
alleged, we care not by whom, that this caution is unneces- 
sary or these fears unfounded. The writer will state a few 
cases of many that have happened under his own observa- 
tion. He has several times known abortion to be accidentally 
occasioned by the use of sponge tents ;1 the patients being 
near the close of their menstrual lives, and neither them- 
selves nor the physicians in attendance supposing that the 
contents of the enlarged uterus could be foetal. In one 
of these cases, the woman had never before been pregnant; 
and in another, not for many years. He has more than once 
known the introduction of an intra-uterine pessary to be 
followed by abortion, and the same to occur from the use of 
the intra-uterine sound. In none of these cases was there 
any probability of the existence of pregnancy, save in the 
fact that the patients were married. He has known abor- 
tion to be produced by the application of lunar caustic to the 
os, in a case where, from the character of the operator, no 
suspicion could be entertained of the uterus having been 
more deeply tampered with. He has himself, in two cases 
reported by him to the Suffolk District Medical Society, in a 
somewhat similar manner, unintentionally induced miscar- 
riage. In one of these cases, the woman had aborted but a 
short time before. To abate its apparent effects, a strong- 
caustic was applied within the uterine cavity, the patient 
declaring that no intercourse had occurred since her 
previous mishap. The result was as already indicated. In 
the other instance, a lady supposed to be passing the grand 
climacteric, and who had had no children for many years, 
was operated upon for artificial perineum ; she also, as well 
as her husband, alleged that coitus had not been indulged 
in for several months. Some ten days or a fortnight after 
the operation, she miscarried. 
In cases like these, the practitioner would seem to render 
1 I have elsewhere discussed this subject; American Journal of the Medi- 
cal Sciences, January, 1859. 122 
CRIMINAL ABORTION. 
himself liable to the charge of malpractice, even though, by 
the improbability of malicious intent, he escaped that of 
criminal abortion. In all instances where there exists the 
slightest suspicion or possibility even of pregnancy, the only 
rule for operative interference must be, unless circumstances 
imperatively prevent, to wait the few months or weeks 
necessary to establish the diagnosis, by the detection of the 
sounds of the foetal heart. Justice to the profession and to 
the risk of error demand that where such precaution is not 
had, it should be replaced by a consultation, which would at 
once dispel any suspicion of carelessness or malpractice, 
and prevent a criminal charge. 
All that we have said regarding surgical obstetrics applies 
as forcibly to its medicinal procedures. Though draughts 
and potions of every kind are, as we have remarked, of 
doubtful or indirect efficacy for inducing abortion, yet with 
some of them instances of its occurrence do at times result; 
more particularly, as we have said, at the times corresponding 
to the menstrual period. 
In supposed obstructive amenorrhoea, unless of several 
months' standing, and in early pregnancy where established, 
the physician who does not intend it, must take care lest 
accidentally or carelessly, by purging, vomiting, or over- 
bleeding, he produce a miscarriage. 
But there is still another point in this connection we must 
not pass over. We state it in the following inquiries, 
received from one of the most eminent practitioners of the 
Eastern States, and put to us in all sincerity: - 
" Are there not cases where a physician would be justified 
in suggesting a course such as he would use in amenorrhoea, 
even where he might suspect, but not know, the existence of 
pregnancy ? Suppose a mother of several children, which 
she has had in rapid succession, and the physician feels 
assured that health, and possibly life, will be endangered if 
another pregnancy occurs : would he be criminal if he were to 
use common means for amenorrhoea if the menses have ITS INNOCENT ABETTORS. 
123 
been absent six weeks ? Are the cases always so plain that 
a man can decide, and may he not balance a choice of evils ? " 
Covering, as these questions do, much of the ground 
already gone over, we may answer them at once and 
decidedly in the negative. They apply more especially to 
the early months of pregnancy, where it is always impossi- 
ble to know its existence; and were direct or probable 
emmenagogues, or instrumental interference, to be here 
allowed, criminal abortion might be always induced before 
quickening, sanctioned and permitted by the rules of 
medicine. To justify abortion, life must certainly or 
very probably be endangered, not possibly merely, which is 
true in every pregnancy, and might be alleged at every trial 
for the crime. 
Hufeland advised, as a " golden rule," always to suppose 
the existence of impregnation in such cases, and to act ac- 
cordingly ; that is, to temporize long enough for the foetus, 
if present, to make its sign. " Thereby," he says, " the 
physician will avoid much mischief, and preserve his con- 
science as well as his reputation."1 
The ideas on this subject held by my friend are without 
doubt widely entertained by the profession. This book will 
have served a good purpose, and have saved many foetal 
lives, if it do no more than carry conviction of the error, and 
its likelihood to indefinitely extend the crime. 
Again, it is undoubtedly the case, that in all cases of ma- 
ternal death during pregnancy, where the foetus has arrived 
at the period of viability, its immediate extraction by the 
Caesarean section should be effected. We have already re- 
ferred to this subject; and Kergaradec, who has well written 
upon it, lays down the maxim that the operation should 
always be performed, even in the fifth month of pregnancy.2 
In some cases, of placenta praevia for instance, where the 
1 Enchiridion Medicum, p. 510. 
2 Question d'Embryoiogie Medicale, etc., Revue de l'Amerique et de 
1'Ouest, 1846. 124 
CRIMINAL ABORTION. 
chances are always more or less against the child's life, 
success is less probable; but this in no wise invalidates the 
necessity of the operation. The writer has himself per- 
formed it in the complication instanced, and in vain ; but he 
would none the more hesitate, on this account, to repeat it. 
There can be no reason against the procedure in any case, 
and by it the child may possibly be saved. In the words 
of an older writer, " Est inhumanum, post obitum matris, 
feetui pereunti et suffocari parato manus auxiliares denegare, 
et saepe viventem adhuc cum matre mortua eodom tumulo 
contegere et obruere. Idcirco jurisconsulti eum necis 
reum damnant, qui gravidam sepelierit non prius extracto 
feetu." 1 
A question has been raised concerning the rights of rela- 
tives in preventing the physician from such discharge of 
his duty. It has been asserted that " the father has not 
only the natural right of his relationship, but legal power; 
for Dr. Lever recently mentioned that he had consulted Dr. 
Alfred Taylor to know whether he would be justified in per- 
forming Caesarean section after the death of the mother, 
without the consent of the father, as it appeared unjustifia- 
ble homicide to allow the infant to die. Dr. Taylor gave 
his opinion that, in law, the infant belonged to the father,- 
the infant with the life thereof; and that if Dr. Lever 
touched it, even to rescue it from death, an action would lie 
against him." 2 We must, however, declare such doctrine to 
be false and pernicious. If signs of the child's life remain, 
no physician should hesitate endeavoring to preserve it, un- 
less restrained by actual force. We reiterate our conviction 
that such neglect, or seeming neglect, of foetal life is 
an actual wrong, both against the individual and against 
society. 
Similar points in which physicians are directly interested, 
1 Joan. Riolan., Anthropographia, lib. vi. cap. vii. p. 589. 
2 Churchill, Dublin Quarterly Journal of Medical Science, August, 
1858, p. 22. ITS INNOCENT ABETTORS. 
125 
as tending by their apparent disregard of foetal life to render 
themselves innocent abettors of criminal abortion, are 
not uncommon. Such are, neglect of efforts to prevent mis- 
carriage when threatening, or where it has become an estab- 
lished habit, for in many instances the. woman can now be 
enabled to go her full time; and of attempts at resuscitat- 
ing still-born children where there is the slightest chance 
of success, and success has now been rendered much more 
probable by the methods of Marshall Hall and Silvester; 
the performance of operations of any kind upon a pregnant 
women, even tooth-drawing,1 that might be delayed ; the 
careless or unnecessary use of ergot; the relying upon a 
single and unaided opinion, where not one life only, but 
two, may be endangered.2 
Other instances might be adduced; but enough has 
already been said, to prove that the importance of the sub- 
ject we are considering, and the responsibilities resting 
upon the profession regarding it, demand, as we have else- 
where suggested,3 that physicians should possess, should 
acknowledge, and should govern themselves by, an Obstetric 
Code, - the necessity of which will be made even more man- 
ifest, as we proceed in our investigation of questions per- 
taining to Obstetric Jurisprudence. We have referred to 
some of its leading principles, but have done no more than 
faintly foreshadow them. 
Distressing in the retrospect, inconvenient frequently in 
the present,4 such a code would undoubtedly prove; but it 
1 A case in point has been reported by the writer; American Journal of 
the Medical Sciences, April, 1859. He has elsewhere referred to others. 
2 In the tenth of our contributions to Obstetric Jurisprudence, entitled The 
Abetment of Criminal Abortion by Medical Men, we have more fully dis- 
cussed this subject. New-York Medical Journal, September, 1866, p. 422. 
3 Reports to the Suffolk District Medical Society of Massachusetts, 
1857, and to the American Medical Association, 1859. 
4 " It would in my opinion/' says Ramsbotham, referring to the nature 
of foetal 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. 126 
CRIMINAL ABORTION. 
is demanded of the profession by the progress of our science, 
by humanity, morality, and religion. Were the facts in the 
case more generally known, and the existence and sanctity 
of foetal life more universally appreciated, it would be also 
demanded by public opinion. 
We have now seen that " the absurd enactments still 
remaining on the statute book, the careless indifference with 
which society views the crime, the reluctance with which 
means are adopted to prevent its occurrence, its increase, 
and its frequent induction by obstetricians, are all evils 
which loudly and imperatively call for the closest investi- 
gation." 1 
We have stated that the prevalence of criminal abortion 
is in great measure owing to a seeming neglect of foetal life, 
on the part of medical practitioners, and that in other degree 
it is attributable to ignorance by the community of the actual 
character of the offence, - an ignorance of physiological 
facts and laws; and on both these points abundant proof 
has been afforded of the truth of our assertions. 
We have also stated that medical men, in all obstetric 
matters, are the physical guardians of women and their off- 
spring ; a proposition that none can deny. 
We have seen that unjustifiable abortion, alike as con- 
cerns the infant and society, is a crime second to none; 
that it abounds, and is frightfully on the increase; and that 
on medical grounds alone, mistaken and exploded, a mis- 
conception of the time at which man becomes a living 
being, the law fails to afford to infants and to society that 
protection which they have an absolute right to receive at 
its hands, and for the absence of which every individual 
who has, or can exert, any influence in the matter, is ren- 
dered so far responsible. 
Under these circumstances, therefore, it becomes the 
medical profession to look to it, lest the whole guilt of this 
1 Clay, Obstetric Retrospect, March, 1848, p. 44. ITS INNOCENT ABETTORS. 
127 
crime rest upon themselves.. The point is so important a 
one, that we may be excused for a few more words upon it. 
And, in the first place, it might be asserted with some 
truth, that such is indeed the case. For, on the one hand, 
it was from physicians, as is proved by early medical litera- 
ture, that the mistaken notions, both of the law and of the 
people, regarding intra-uterine vitality, were derived; and 
on the other, the apathy and silence still existing on this 
subject among medical men, though thousands and hun- 
dreds of thousands of human lives are thus directly at 
stake, and are annually sacrificed, can only be explained on 
one of two suppositions, - either that we do not yet really 
believe in the existence of foetal life, though professing to 
do so, or that we are too timid or slothful to affirm and de- 
fend it. By the one alternative, a gross lie seems proved; 
by the other, a degrading and strange inconsistency. 
But, we believe, this apparent negligence proceeds only 
from ignorance of the real duty of the profession. It is our 
aim', while setting forth a deliberate and carefully prepared 
opinion upon this point, to inspire, if possible, in our fel- 
low-practitioners throughout the land, somewhat of the holy 
enthusiasm sure, in a good cause, to succeed despite every 
obstacle, and an earnest, uncompromising hostility to this 
result of combined error and injustice, the permitted in- 
crease of criminal abortion. 
Enough has already been said, to show that there is need 
of increased vigilance on the part of medical men, lest they 
themselves become innocent and unintentional abettors of 
the crime.1 If, on the other hand, the community were 
made to understand and to feel that marriage, where the 
parties shrink from its highest responsibilities, is nothing 
less than legalized prostitution, many would shrink from 
1 In this connection, we cannot too strongly deprecate a practice that has 
soberly been proposed; namely, the detection of the early existence of preg- 
nancy 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. 128 
CRIMINAL ABORTION. 
their present public confession of cowardly, selfish, and sin- 
ful lust. If they were taught by the speech, and daily prac- 
tice of their medical attendants, that a value attaches to the 
unborn child, hardly increased by the accident of its birth, 
they also would be persuaded or compelled to a similar be- 
lief in its sanctity, and to a commensurate respect. 
But it has been asked, Is our silence wrong ? Is there 
not danger otherwise of increasing the crime ? These are 
the questions not of wisdom, or prudence, or philanthropy, 
but of an arrant pusillanimity. Vice and crime, if kept 
concealed, but grow apace. They should be stripped of 
such protection, and their apologists, thereby their accom- 
plices, condemned. Answers, however, are ready at hand 
to the questions proposed. 
" It is one of the great desiderata of registration, that 
more particularity should be observed, in collecting facts re- 
lating to the subject of the still-born." 1 
" Has it been sought," society demands of the profession, 
" to account for the peculiarities relating to the still-born, 
and to combat the causes which, in certain circumstances, 
swell their number in so deplorable a manner ? " 2 
" An honest and fearless expression of these causes and 
circumstances, on the part of medical men, would bring to 
light an amount of knowledge, that might be useful in 
checking this horrible and increasing waste of life." 3 
" Such an exercise of his knowledge, experience, and true 
moral courage, is not only the province, but the conscien- 
tious duty, of the physician." 4 
" It should be constantly borne in mind, that there is 
here a high and stern morality, that should stimulate the 
medical profession in the exercise of their utmost effort and 
1 Fifteenth Massachusetts Registration Report, 1857, p. 199. 
2 Quetelet, Theory of Probabilities, p. 234. 
3 New-York Medical Gazette, editorial; London Medical Times and 
Gazette, 1850, p. 487. 
4 Boston Medical and Surgical Journal, editorial, 1855, p. 411. ITS INNOCENT ABETTORS. 
129 
ingenuity, with the view to master and disclose the secrets 
of these villanous practices ; the more villanous, because 
they are very generally conceived in fraud, practised in de- 
ception upon innocent and unsuspecting victims, and result 
the most commonly in the destruction of two lives at 
once."1 
" For ourselves, we have no fear that the truth in refer- 
ence to the crime of procuring abortion would do aught but 
good. It would appear that sheer ignorance in many hon- 
est people is the spring of the horrible intra-uterine murder 
which exists among us: why not, then, enlighten this igno- 
rance ? It would be far more effectually done by some 
bold and manly appeal than by the scattered influence of 
honorable practitioners alone. Will not the mischief, by 
and by, be all the more deadly for delaying exposure and 
attempting relief ? 
" Whatever estimate may attach to our opinion, we be- 
lieve that not only ought these things not so to be, but that 
the public should know it from good authority." 2 
" This is a topic which ought to be regarded of the high- 
est interest to the profession and the public." 3 
" It is by far the most important subject before the pro- 
fession, and, in its medical as well as moral bearings, ap- 
peals alike to our patriotism and humanity."4 
" We think the public have very erroneous ideas of the 
turpitude of this crime; and we deem it our duty, as con- 
servators both of the public health and morals, to set it in a 
correct light before them."5 
" The question of criminal abortion is doubtless one of 
extreme difficulty; it is not, however, beyond the reach of 
the enlightened prudence and the firm will of the authori- 
ties. It is a subject of such vital import to society in gen- 
1 Dean, Medical Jurisprudence, p. 139. 
2 Boston Medical and Surgical Journal, editorial, Dec. 13, 1855. 
3 American Medical Gazette, editorial, July, 1857, p. 390. 
4 Ibid. April 1859, p. 289. 
5 Maine Medical and Surgical Reporter, editorial, June, 1858, p. 39. 130 
CRIMINAL ABORTION. 
eral, that we feel convinced it cannot but awaken the anx- 
ious thought of the persons who, from their position, are 
intrusted with the application of the laws, and the control 
of public morals."1 
Whoever shall succeed in fixing upon it the attention it 
deserves, "has taken a stand in this matter alike creditable 
to his head and his heart; and we feel that he will receive 
the hearty thanks of every true physician." 2 
" The increasing prevalence of infanticide," which is but 
rare compared with criminal abortion, " its dangerous moral 
influence, the apathy with which so many regard its spread, 
and the very considerable difficulty in obtaining conviction, 
call loudly for reform. The question is one of national im- 
portance." 3 
" With this view of the case before us, I suggest it as our 
imperative duty, to direct the attention of legislators to the 
importance of enacting a statute in conformity thereto."4 
Such are the confessions, independently given, of high- 
minded and honorable medical men. No more can be add- 
ed : no less would have been true. 
It must be granted, then, that a bold and manly utterance 
of the truth, combining, as this must, contradiction of the 
error, and denouncement of the crime, should be made by 
the members of the profession on every occasion. By this 
course, it is plain that a healthier moral tone would be made 
to prevail in the community, the crime would become of 
rarer occurrence, and the laws, such as they are, would be 
more faithfully attempted to be enforced. 
1 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. 
2 New-Hampshire Journal of Medicine, editorial, July, 1857, p. 216. 
3 London Lancet, editorial, July, 1858, p. 66. 
4 Tatum, Virginia Med. Journal, June, 1856, p. 457. 
It will be noticed, that I do not quote opinions of a later date than the 
first edition of this book. Since its publication, a host of commendatory no- 
tices have proved, the wisdom of the step then taken. ITS INNOCENT ABETTORS. 
131 
But it has been shown that the laws on the subject of 
criminal abortion are radically imperfect and defective, and 
that this is attributable wholly to a medical cause. We 
assert, therefore, that not only is it the duty of the profes- 
sion as individual components of society, but more espe- 
cially as medical men, to see them amended, and to leave no 
means untried, no effort unmade, for the attainment of this 
end. 
" Physicians alone," says Hodge, in his Introductory Ad- 
dress, " can rectify public opinion; they alone can present the 
subject in such a manner, that legislators can exercise their 
powers aright in the preparation of suitable laws; that mor- 
alists and theologians can be furnished with facts to enforce 
the truth upon the moral sense of the community, so that 
not only may the crime of infanticide be abolished, but 
criminal abortion properly reprehended, and that women in 
every rank and condition of life may be made sensible of 
the value of the foetus, and of the high responsibility which 
rests upon its parents."1 
It has been stated, indeed publicly avowed by a medical 
body,2 that when a physician "shall become cognizant of 
any attempt unlawfully to procure abortion, either by per- 
sons in the profession or out of it, it shall be his duty im- 
mediately to lodge information with some proper legal offi- 
cer, to the end that such information may lead to the 
exposure and conviction of the offender." 
This doctrine is doubtless true to a great extent; but it 
cannot be applied to the confidential disclosures of patients 
themselves, which no man has a right to reveal, unless con- 
strained by the direct command of the court, at which, it 
has been ruled, even professional secrets must be divulged.3 
1 Loc. cit. p. 19. 
2 The Councillors of the Massachusetts Medical Society. Proceedings 
of the Society, 1858, p. 77. 
3 Phillips on Evidence, i., p. 135; Ryan, Medical Jurisprudence, p. 
193; Stoker, sen., Introductory Address, 1855, p. 10; Simpson, Physi- 
cians and Physic, p. 31. 132 
CRIMINAL ABORTION. 
It follows, from the evidence we have now adduced, that, 
if it be the duty of the profession to urge upon individuals 
the truth regarding this crime, it is equally their duty to 
urge it upon the law, by whose doctrines the people are 
bound; and upon that people, the community, by whose 
action the laws are made. 
And this should be done by us, if we would succeed in 
suppressing the crime, - not by separate action alone, but 
conjointly as the profession, grandly representing its highest 
claim, - the saving of human life. 
Every step toward this end should be hailed with enthu- 
siasm. The too halting action of the State Society of Massa- 
chusetts, directly resulting from professional agitation of 
the subject, yet deserves praise and imitation ; the body re- 
ferred to having passed a series of resolutions to the follow- 
ing effect: " That the Fellows of the Massachusetts Medical 
Society regard with disapprobation and abhorrence all at- 
tempts to procure or promote abortion, except in cases 
where it may be necessary for the preservation of the 
mother's life ; and that no person convicted of such attempt 
can, consistently with its by-laws, any longer remain a fel- 
low of the society."1 
But the mere passage of resolutions in disapproval of this 
horrible and so rapidly increasing crime is not sufficient to 
effect its abatement. Something more has been wanted 
than the testimony of record books, the pointless vote of a 
board of councillors. We foretold that there must come a 
hearty, earnest, and unanimous voice from the mass of the 
profession, an assertion that criminal abortion, or at least 
its permitted commission, ought no longer to exist. As 
years have passed, this cry is beginning to make itself 
heard. 
Too much zeal cannot be shown by physicians in reliev- 
ing themselves from the weight of responsibility they may 
have incurred by innocently causing the increased destruc- 
1 Proceedings of the Society, 1858. ITS INNOCENT ABETTORS. 
133 
tion of human life. Let it not be supposed by the public 
that there is among us, either in theory or practice, any 
disregard of the unborn child. If such impression have al- 
ready obtained, from our own negligence, the falsehoods of 
irregular practitioners, or otherwise, it should at once be 
removed. Foetal life ever is, and ever has been, held sacred 
by all respectable physicians; and whenever criminal abor- 
tion has been known to have been advised, perpetrated, or 
abetted by one claiming our honorable name, he has inva- 
riably and at once lost all professional standing. 
We have seen that it is no trifling matter, this awful 
waste of human life. It is a subject that demands the best 
efforts of the whole profession as a body and as men. The 
crime, no longer practised in secret, must be met boldly ; and, 
met with unanimity, it will be met successfully. 
But whether these efforts are to be at once decisive or 
not, whether they are to be received with the gratitude of 
the community or its disfavor, is no concern of ours. Our 
duty is very plain: it is to stand, irrespective of personal 
consequences, in the breach fast making in the public 
morality, decency, and conscience, and, to the best of our 
strength, to defend them. 
It might be - it very likely would be - for our immediate 
pecuniary interest as a profession, to preserve silence; for 
we have shown that abortions, of all causes, tend to break 
down and ruin the health of the community at large. But 
to harbor this thought, even for a moment, were dishonor- 
able. " I will never set politics against ethics," said Bacon ; 
" for true ethics are but as a handmaid to divinity and 
religion." 
We must take this decided stand, - there is no choice ; else 
we are recreant to the high trust we have assumed, and to 
ourselves. Whether the suppression of abortion be effected 
or no, one thing is certain, our own hands will have been 
cleansed of this sea of blood. We shall have declared our 
abhorrence and our innocence of the crime. 134 
CRIMINAL ABORTION. 
Longer silence and waiting by the profession would be 
criminal. If these wretched women, these married, lawful 
mothers, - ay I and these Christian husbands, - are thus 
murdering their children by thousands, through ignorance, 
they must be taught the truth; but if - as there is reason 
to believe is too often the case - they have been influenced to 
do so by fashion, extravagance of living, or lust, no language 
of condemnation can be too strong. 
Let us, then, meet the issue earnestly and boldly. Silence 
and patient expectance have been fairly tried : the disease is 
not self-limited: the evil, instead of working its own cure, 
has assumed a gigantic, an awful growth. 
Abstract discussions of this matter, by ourselves, and 
within the closed doors of our several societies, no longer 
avail. We are all agreed upon the guilt of abortion : we 
ever have been. Our prayers for its suppression have not 
been answered, for they have hitherto been offered with in- 
active hand. 
We should, as a profession, openly and with one accord 
appeal to the community in words of earnest warning ; setting 
forth the deplorable consequences of criminal abortion, the 
actual and independent existence, from the moment of con- 
ception, of foetal life. And, that the effort should not be one 
of words merely, we long since advised that medical men, as 
a profession, should recommend to the legislative bodies of 
the land the revision and subsequent enforcement of all 
laws, statutory or otherwise, pertaining to this crime, that 
the present slaughter of the innocents may, to some extent 
at least, be made to cease. For it is " a thing deserving all 
hate and detestation, that a man in his very originall, whiles 
he is framed, whiles he is enlived, should be put to death 
under the very hands and in the shop of nature." 1 
In accordance with this opinion, a committee, consisting 
of Drs. Blatchford, of New York ; Hodge, of Pennsylvania ; 
Pope, of Missouri; Barton, of South Carolina; Lopez, of 
1 Man Transformed. Oxford, 1653. ITS INNOCENT ABETTORS. 
135 
Alabama ; Semmes, of the District of Columbia; Brisbane, of 
Wisconsin ; and the writer, - was appointed by the National 
Medical Association, at its meeting at Nashville, in 1857, to 
report upon criminal abortion, with a view to its general 
suppression. The report of this committee, brief, but in 
strict accordance with the views that we have expressed, 
was made to the Association, at its session held at Louis- 
ville, in May of the ensuing year. The report was accepted, 
and the resolutions appended to it1 were unanimously 
adopted. 
In behalf of the committee, of whom he had the honor to be 
chairman, the writer cannot close this portion of his labors 
without thanking the physicians of the land, represented as 
they are by Aie Association, for their hearty and noble re- 
sponse to the appeal that had been made them. He would 
express, wbre it possible, the gratitude not of individuals, 
but society; for by this act the profession was again true 
to " its mighty and responsible office of shutting the great 
gates of human death." 
We proceed to the other relations of criminal abortion, 
more especially to those immediately pertaining to the claims 
and course of justice. 
1 " 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 unwar- 
rantable 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 Asso- 
ciation are hereby authorized to carry out, by memorial, these resolutions." 
(Transactions of the American Medical Association, 1859, vol. xii. p. 75.) 136 
CRIMINAL ABORTION. 
CHAPTER VII. 
ITS OBSTACLES TO CONVICTION. 
We have already seen that there are special, though, it is 
to be hoped, not wholly insurmountable, causes for the exist- 
ing prevalence of abortion. It now becomes our duty to 
consider some of these reasons in detail, in so far as they 
relate to and obstruct the course of justice. 
It would seem, from what has been previously said, that 
little doubt could be entertained of the inefficacy of our 
present statutes against abortion. There are few of the 
States whose laws on this point are so wisely and completely 
drawn as in Massachusetts; yet, as they there stand, they 
cannot, as such, be enforced. In that Commonwealth, ac- 
cording to the reports of the attorney-general, during the 
eight years from 1849 to 1857, omitting 1853, - as there 
seems to have been no report rendered for that year, - there 
were, as we have seen, 32 trials for abortion, and not a sin- 
gle conviction I 
A committee of the State Medical Society of Massachu- 
setts, to whom the propriety of a professional appeal to the 
legislature for more protective statutes had been referred 
by the District Society of Boston, having reported against 
such action, on the ground " that the laws of the Common- 
wealth are already sufficiently stringent, provided that they 
are executed,"1 - it becomes the more necessary for us to 
1 Medical Communications of the Mass. Med. Soc. 1858, p. 77. 
The writer, having been a member of this committee, again enters, as he 
has long since 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. He has 
taken occasion elsewhere to express himself even more plainly upon the ITS OBSTACLES TO CONVICTION. 
137 
strike at the root of the whole matter, and to show, if pos- 
sible, why conviction, unless in case of the death of the 
mother, cannot at present be obtained. 
subject. A portion of those comments will here bear repeating, inasmuch 
as he intends, Deo volente, to see this matter righted. I have shown, that by 
any apparent disregard of the existence or sanctity of foetal life, however 
evinced, we in reality increase its disregard by the community. If a physi- 
cian appear to consider an unborn child of little or no account, why should 
not his patients also? I have also referred to this same unintentional abet- 
ment of abortion by medical men, in the prize essay of the American Medical 
Association. (Transactions of the American Medical Association, 1865, vol. 
xvi., p. 709.) 
" Few will doubt that my opportunities have been good for observation in 
this matter. The decided opinions that I have avowed, met as they were 
at first by so free expression of scepticism and indeed of denial, could but 
awaken a corresponding degree of interest in minds alive to the impor- 
tance of the subject; and my repeated consultation, personally or by letter, 
concerning abortion, by many of the leading practitioners of this country, 
may perhaps give a weight to the remarks I may now make, that formerly 
might have seemed presumptuous for me to claim. 
" It will be recollected, that in 1859, by order of the American Medical 
Association, a memorial was presented in its name to ' the several Legisla- 
tive 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; ' and that the association also requested, by formal memo- 
rial, the zealous co-operation of the various State Medical Societies in im- 
pressing this subject upon the legislatures of their respective States (vol. 
xii., p. 75). 
" This action was based upon a long, careful, and very thorough examina- 
tion of the whole subject, by a competent committee, who were unanimously 
of the opinion that the action desired was necessary. 
" A similar conclusion had previously been reached by a. committee 
appointed by the Suffolk District Society, of Boston, in 1857, consisting of 
Drs. Bowditch, Calvin Ellis, and myself; and yet, in the face of the fact 
that in this Commonwealth, for some eight years, there were thirty-two trials 
for abortion, and not a single conviction, the Councillors of the State Medi- 
cal Society of Massachusetts, to whom the propriety of a professional 
appeal to the legislature for more protective statutes had been referred, 
decided, that ' the laws of the Commonwealth are already sufficiently strin- 
gent, provided they are executed.' (Medical Communications of the Massa- 
chusetts Medical Society, 1858.) 
" It is not, however, the stringency of a statute, - so far as by this is meant 
the severity of its punishments, - but the certainty of their infliction, that is 
efficient to check a crime. By the laws of Massachusetts, the crime of abor- 
tion is considered as mainly against the person of the mother. In the case CRIMINAL ABORTION. 
138 
It has been thought, even publicly argued, that in the 
fact that statutes against abortion are almost everywhere not 
only not enforced, but not attempted to be enforced, there is 
of her death, already sufficiently provided for at common law, convictions can 
indeed be effected, though with great difficulty, under the statute. If she lives, 
the crime practically goes unpunished. It is true, that a few convictions have 
been obtained with us since 1863, but only by great effort, and probably in 
consequence mainly of the attention we have called to the subject. 
" I have elsewhere directed notice to this fact, and to its explanation, and 
to the causes of the general demoralization as regards child-bearing. 
" ' There are three of these causes, however,' say the committee of the 
American Medical Association, and they are the most important with which 
the medical profession have especially to do. 
" ' The first of these causes is a wide-spread popular ignorance of the true 
character of the crime,- a belief, even among mothers themselves, that the 
foetus is not alive till after the period of quickening. 
" ' The second of the agents alluded to is the fact, that the profession 
themselves are frequently supposed careless of foetal life ; not that its respect- 
able members are ever knowingly and intentionally accessory to the un- 
justifiable commission of abortion, but that they are thought at times to 
omit precautions or measures that might prevent the occurrence of so un- 
fortunate an event. 
" ' The third reason of the frightful extent of this crime is found in the 
grave defects of our laws, both common and statute, as regards the inde- 
pendent and actual existence of the child before birth, as a living being. 
These errors, which are sufficient in most instances to prevent conviction, 
are based, and only based, upon mistaken and exploded medical dogmas. 
With strange inconsistency, the law fully acknowledges the foetus in utero 
and its inherent rights for civil purposes; while personally, and as criminally 
affected, it fails to recognize it, and to its life as yet denies all protection.' 
(Report on Criminal Abortion, p. 3.) 
" To the action of the Councillors of the Massachusetts Medical Society, in 
1858, based, as it was upon the report of the committee appointed by the 
State Society at large, consisting of Drs. Foster Hooper, Jacob Bigelow, 
John Ware, J. C. Dalton, Ebenezer Hunt, Charles Gordon, and myself, 
drawn up and rendered during my necessary absence from this part of the 
country, and without my being in any way- conferred with, I entered, by 
letter to the councillors, my earnest protest. This protest, so far as can be 
judged by the published proceedings of the councillors, seems never to have 
been acted upon. 
" I should have long since brought pie matter before the profession at 
large, had I not been prevented by ill health. That cause no longer exists ; 
and after the lapse of eight years, during which, the subject has never by 
me been lost sight of, I am but the more confirmed in the opinion that a grave 
error was committed by my colleagues. By the vote of the councillors, there 
was furnished additional ground for the third of the causes mentioned ITS OBSTACLES TO CONVICTION. 
139 
afforded strong evidence of the existence of an ultimate and 
absolute impossibility of thus meeting the crime. The idea, 
though a fallacious one, is yet attributable to an important 
and evident cause. 
That the prevalence of abortion is in great measure owing 
to ignorance of guilt, on the part of the community at large, 
we have shown. We now assert that its futile prohibition 
by the law, its toleration, ate plainly in consequence of simi- 
lar ignorance on the part of legislators, and of officers of 
justice. 
Our communities form their own laws ; and, therefore, as 
was pointed out at the commencement of our remarks, these 
must necessarily bear the stamp of public opinion ; while 
the officers by whom they are to be enforced,-juror, attor-' 
ney, judge, - looking to the only source possible for their 
enlightenment on this subject, - to medical men, - had, until 
1858, found but few bold and honest statements,1 and these 
unindorsed by the mass of the profession ; or, in the total 
silence, a practical sanction of the popular belief. This is 
no exaggeration; the assertion is fully borne out by facts. 
Need we wonder, then, that the laws are not enforced, that 
indeed their enforcement is not attempted ? But this first 
and great cause, it is apparent, is by no means an essential 
one. 
We need add nothing to what we have already said of 
those obstacles to conviction arising from circumstances 
above, by which the profession become directly accountable for the increased 
frequency of the crime. 
" The resolutions adopted by the councillors upon the occasion referred to 
may have been supposed by some to fully cover the required ground. They 
are, however, speciously framed : they in reality amount to nothing, begging 
the vital question, as they completely do; and, as one of the committee by 
whom they were offered, I again repudiate them." (New-York Med. Jour- 
nal, Sept. 1866, p. 427.) 
1 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 Foetus in Utero." (Virginia Medi- 
cal Journal, 1856.) 140 
CRIMINAL ABORTION. 
common in greater or less degree to other crimes, - the diffi- 
culties of detection and of obtaining proof, however great 
these are allowed to be; but we shall soon proceed to con- 
sider the laws themselves by which in this country the 
crime of abortion is attempted or is expected to be sup- 
pressed. 
If our previous assumptions *of the actual character of 
criminal abortion be granted, - and we believe that they have 
been proved to a demonstration, - it will be found from their 
application that the common law, both in theory and in 
practice, is insufficient to control the crime ; that, in many 
States of this Union, the statutory laws do not recognize its 
true nature; that they draw unwarrantable distinctions of 
guilt; that they are not sufficiently comprehensive, directly 
allowing many criminals to escape, permitting unconsum- 
mated attempts at abortion, and improperly discriminating 
between the measures employed; that they require proofs 
often unnecessary or impossible to afford; that they neglect 
to establish a standard of justification, and thereby sanction 
many clear instances of the crime; that, by a system of 
punishments wholly incommensurate with those inflicted for 
all other offences whatsoever, they thus encourage instead 
of preventing its increase; and that in many respects they 
are at variance, not merely with equity and abstract justice, 
but with the fundamental principles of law itself. 
" It is to be hoped," has forcibly been written, " that the 
period is not far remote, when laws so cruel in their effects, 
so inconsistent with the progress of knowledge and civiliza- 
tion, and so revolting to the feelings and claims of humanity, 
will be swept from our statutes." 1 
In a similar trust, it behooves us to consider whether, 
and in what manner, the difficulties in the way of generally 
suppressing the crime of abortion can be overcome. 
1 Lee, Note to Guy's Principles of Forensic Medicine, p. 134. ITS OBSTACLES TO CONVICTION. 
141 
To the question, whether it can be all controlled by law, 
we do not hesitate to give an unqualified answer in the 
affirmative. The fact, that criminal abortion is not con- 
trolled by law anywhere, cannot be entertained as a valid 
argument to the contrary of this assertion ; for it is equally 
the fact, as we shall see, that laws against abortion do not 
as yet exist which are in all respects just, sufficient, and 
not to be evaded. 
It is evident, that, in aiming to suppress this crime, the 
law should provide not merely for its punishment, but indi- 
rectly as well as directly, and so far as possible, for its pre- 
vention. The punishment of a crime cannot be just, if the 
laws have not endeavored to prevent that crime by the best 
means which times and circumstances would allow;1 and 
this is to be accomplished by a twofold process: by render- 
ing, on the one hand, its detection more probable, and, on 
the other, its punishment more certain. 
As indirect though important measures for the former of 
these ends, we have already mentioned laws for registration,2 
and against concealment of births and secret burials. As a 
single proof of their possible influence in this respect, out 
of many that might be adduced, we instance the fact, that, 
in Paris, the number of premature foetuses deposited at the 
Morgue during the nine years from 1846 to 1854, inclu- 
sive, wras found to exceed by more than two-thirds that of 
the full decade just preceding, from 1836 to 1845.3 To 
1 Beccaria, Crimes and Punishments, 104. 
2 "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 oc- 
curred 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 proba- 
ble 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 Medical and Surgical Journal, Dec. 1857, p. 365.) 
3 Register of the Morgue. 142 
CRIMINAL ABORTION. 
render this difference more apparent, we have compiled the 
following table: - 
Ten years. 
Nine years. 
Age of foetuses deposited. 
1836-1845. 
1846-1854. 
From 2 to 3 months .... 
21 
58 
,, 3 to 4 ,, .... 
35 
73 
,, 4 to 5 ,, .... 
56 
102 
,, 5 to 6 ,, .... 
69 
82 
-- 
- 
Total 
181 
315 
Part of this advance, it is true, is attributable to the 
increase in the population of Paris, and in the prevalence of 
criminal abortion; but in great measure it is clearly owing 
to the enforcement of a more rigid law against secret burials. 
The above remarks are strikingly corroborated by the fact 
that of trials for the crime,- and we must not forget that 
these bear but a small ratio to the whole number of cases 
preliminarily investigated,1 - there were in France, during 
the latter of these periods, fully four times the number oc- 
curring from 1836 to 1845. 
The establishment of foundling hospitals, by the State 
governments, has been urged as a preventive of the crime; 
and, on the other hand, fears have been expressed lest the 
same means should increase it. For ourselves, however, 
and from some experience in such cases, we believe that 
these fears are groundless, and that with equal justice might 
they be entertained of every large charity having for its end 
the improvement, sanitary or otherwise, of the masses of 
society.2 
We have a statute in Massachusetts, though practi- 
cally unenforced, against one great agent in the increase 
of abortion,-an abuse of its license by the public press. 
Were such laws to become general, and to be faithfully 
executed, and were it also made penal to sell any drug, 
1 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 Annuelles de la Justice Criminelle.) 
2 The recent establishment of a State asylum for infants in Massachu- 
setts will soon practically test this question upon a sufficiently extensive scale. ITS OBSTACLES TO CONVICTION. 
143 
popularly known as emmenagogue, except as advised by phy- 
sicians, just as the sale of direct poisons is, or should be, 
controlled by law, the present system of openly advertising 
by abortionists would undoubtedly be brought to a close. 
In no matter is it of more importance than in cases of 
suspected criminal abortion, that coroners should be intelli- 
gent and well-educated medical men; and we could wish 
that this point might have received especial attention from 
Dr. Semmes, in his report upon the subject to the American 
Medical Association.1 In the sudden excitement of an 
inquest, the guilty are more likely than at a later period to 
be off their guard ; and evidence may often be elicited at this 
time, which, at the subsequent trial, it would be impossible 
to obtain. There can be no question of the importance of 
this point; the coroner should be skilled in all that pertains 
to obstetric jurisprudence; and if similar knowledge were 
more generally possessed by other officers of justice, attorney, 
juror, and judge, a far greater number of convictions, under 
a proper law, would be secured. 
As regards the more direct statutes, we shall hereafter 
consider their important points. 
" In order to render laws effectually preventive," has 
wisely been said, " they should be consistently framed, and 
based on justice." 2 In accordance with this truly axiomatic 
doctrine, and with various rulings of the courts, no proof 
should be demanded which is not necessitated by the actual 
character of the crime. We have seen that neither in intent 
nor in fact is this an attempt against the person or life of 
the mother. If she die in consequence, the offender is 
already amenable for it as homicide, - in the absence of any 
special statute, at common law. The crime, both in intent 
and in fact, is against the life of the child. 
The attempt being proved, it is unnecessary that it should 
have been consummated; not merely the completion of a crime 
1 Report on the Medico-legal Duties of Coroner. 1857. 
2 Radford, British Record of Obstetric Medicine, vol. i. p. 55. 144 
CRIMINAL ABORTION. 
bringing its punishment, but also certain overt acts with 
intent to the perpetration ; nor is it requisite that any injury, 
specific or general, should have been inflicted upon the 
person of the mother. 
The offence being of equal guilt throughout pregnancy, 
proof of quickening - the incident, not the inception, of vital- 
ity, indicating neither the commencement of a new stage 
of existence, nor an advance from one stage to another,1 
and therefore an element without the slightest intrinsic 
value, - should not be required. 
The crime of abortion should be considered to include, as 
it does in the absolute fact of moral guilt, all cases of at- 
tempted or intentionally effected destruction and miscarriage 
of the product of impregnation; and this, whether it be 
living or dead, normal or abnormal; which last expression 
equally comprehends instances of moles, hydatids, extra- 
uterine conception, acephalous, anencephalous, and other 
monsters. 
Proof should not, as is now, in some States, by statute, be 
required of intent to destroy the child.2 This should be con- 
sidered shown by the intent to produce miscarriage, in the 
absence of lawful justification therefor; the act in all stages 
of pregnancy being attended with great danger to the child, 
and, in much more than a moiety of the period, necessarily 
fatal to it. 
When the attempt is made criminal by statute, it follows, 
that proof of pregnancy is not necessary, and that conviction 
should be had though it were proved that pregnancy did 
not exist,3 even that the woman on whom the abortion was 
attempted, however unlikely, was still a virgin.4 
No discrimination should be made as to the means 
criminally employed, and an escape thus afforded to the 
1 Wharton, Crim. Law, § 1226, 5th ed. 
2 Smith v. The State, 33 Maine (3 Red.), 48. 
3 Regina v. Goodhall, 1 Denison C. C. 187. 
4 Taylor, Medical Jurisprudence, p. 386. ITS OBSTACLES TO CONVICTION. 
145 
guilty; as still obtains in Great Britain and many of our 
own States. 
The mother, almost always an accessory before the fact, 
or the principal, should not, as now, be allowed almost per- 
fect impunity. There is no valid reason for such entire 
exemption, unless we allow that all pregnant women are 
from that very fact more or less insane. There should be a 
certain measure of punishment for the mother, even if it be 
not so severe as for other parties engaged. The woman is 
covered by the laws of most nations of Continental Europe, - 
France, Austria, Germany, Bavaria, and Italy,-and by many 
of them her punishment, if married, is greatly increased. 
Similar severity is also exercised in these countries against 
the father of the foetus, if he too is implicated in the crime. 
To allow that abortion is extenuated in the unmarried, it 
has been said, will " to the moral and political philosopher 
appear to have exalted the sense of shame into the principle 
of virtue, and to have mistaken the great end of penal law, 
which is not vengeance, but the prevention of crime. Law, 
which is the guardian and bulwark of the public weal, must 
maintain a steady and even rigid watch over the general 
tendencies of human actions." 1 But, on the other hand, 
" the measure of punishment should be proportionate, as 
nearly as possible, to the temptation to offend, and to the 
kind and degree of evil produced by the offence." 2 
We have seen the increase in moral guilt, and of oppor- 
tunity for commission and for escape, in the case of nurses, 
midwives, and other classes of persons, who, from their 
profession, are brought more directly into contact with 
pregnant women. By the penal code of Napoleon I., re- 
markable in so many respects for the wisdom of its pro- 
visions, an increase of punishment was enacted for abortion 
criminally induced or advised by physicians, surgeons, or 
other officers of health, including midwives, or by druggists;3 
1 Percival, Medical Ethics, p. 84. 2 Ibid., p. 85. 
3 Loc. cit., article 317. 146 
CRIMINAL ABORTION. 
their guilt being enhanced by their greater opportunities and 
knowledge. 
Punishments for the crime of abortion should not, as is 
now generally the case, be so framed as to render the statute, 
in fact, if not in name, simply nugatory. Were the murder 
of adults to be made answerable by merely a year or two in 
prison, far more convictions than* at present wrnuld undoubt- 
edly be secured; but it is certain that the instances of the 
crime would be fearfully increased. We have reason to be- 
lieve that it is- precisely thus with the case in hand. 
A standard of justification for the instances of necessary 
abortion should be fixed by law. If perfection in this re- 
spect be impossible, let the nearest approach be made to it 
that can. 
Since our remarks upon the relative rights of the mother 
and foetus to the chance of life in doubtful cases were 
first published, we have received from Rattenmann, late 
of Tubingen, an essay, written by himself, in which this 
question is discussed at length, and the repetition of abor- 
tion upon the same individual, in the early months of preg- 
nancy, is defended. We have carefully considered the several 
arguments advanced by the gentleman, and are compelled to 
adhere to the views we have already expressed. 
In presenting a report upon the matter, in 1857, by direc- 
tion of the Suffolk District Medical Society of Massachusetts, 
the writer offered the draft of a law, prepared after much 
thought and consultation with legal as well as with medical 
men, and embodying the suggestions made above. This 
was intended for the consideration of the Legislature of the 
State, in the hope that it might be of aid toward a modifica- 
tion of the present defective law. 
The report closed as follows: "We have aimed at a 
statute, which, while it better defined this atrocious crime, 
and covered the usual grounds of escape from conviction, 
established also the proper standard of competence in all 
medical questions involving issues of life and death. We ITS OBSTACLES TO CONVICTION. 
147 
believe that it would be the means of preventing much of 
the present awful waste of human life. But enforce such a 
law, and the profession would never allow its then high place 
in the community to be unworthily degraded; nor, as now, 
would those be permitted, unchallenged, to remain in fel- 
lowship, who were generally believed guilty, or suspected 
even of this crime." 1 
In the same belief, - strengthened by nearly eleven years' 
careful reflection, - that criminal abortion can, to a great 
extent, be controlled by law, if but the community so will, 
we proceed to the purely legal relations of the subject. 
1 Report to Suffolk District Medical Society, May, 1857, p. 12. 
Two years later, as we have already stated, and in consequence of the 
action indicated above, the memorial of the American Medical Association, 
to which we have referred, was sent to the legislatures of the several States. 
There is reason to believe that, directly and indirectly, it was productive of a 
great deal of good. CRIMINAL ABORTION. 
BOOK II. BOOK II. 
FROM THE STAND-POINT OF LAW. 
CHAPTER I. 
THE COMMON LAW. 
In the well-known Latin work called " Fleta," 1 the law is 
thus stated, lib. I. cap. 23 : - 
§ 10. Qui etiam mulierem praegnantem oppresserit, vel vene- 
num dederit vel percusserit ut faciat abortivum, vel non concipiat, si 
foetus erat jam formatus et animatus, recte homicida est. § 11. Et 
similiter qui dederit vel acceperit venenum sub hac intentione ne 
fiat generatio vel conceptio. § 12. Item facit homicidium mulier 
quae puerum animatum per potationem et liujusmodi in ventre 
devastaverit. 
1 Fleta ; seu Commentarius Juris Anglicani, sub Edwardo I. ab anonymo 
conscriptus : editus, cum dissertations historica ad eundem, per Jo. Seldenum. 
This is a commentary in Latin, on the entire body of the English Law, as it 
stood at the time when the author wrote, which is supposed by some authori- 
ties to have been as late as the reign of Edward II. or Edward III.; but it 
has been satisfactorily shown by Selden, that it also belongs to the time of 
Edward I. The author is unknown, and gives as a reason for the title of 
his book, that it was written during his confinement in the Fleet Prison. 
His design seems to have been to give a concise account of the law, with 
such alterations as had been made since the time of Bracton, to whose trea- 
tise his work thus serves as an appendix and often as a commentary. The 
work was first published by Selden in 1647, 4to., with a learned dissertation 
by Selden himself. Another edition was published in 1685, 4to., but no 
others have been printed in England. See Spilsbury's Lincoln's Inn and 
Library, p. 162 : Introduction to Nichols's ed. Britton, I. xxv. Oxford, 
1865. 152 
CRIMINAL ABORTION. 
We give the following translation of this remarkable 
passage, which must have been written about a.d. 1290 : - 
Moreover, whoever shall have overlain a pregnant woman, or 
who shall have given her drugs or blows, in such sort as to procure 
abortion, or non-conception after the foetus shall have been already 
formed and endowed with life, is, by law, a homicide: And in like 
manner, whoever shall have given or taken drugs to the intent that 
no generation or conception may take place: Also the woman 
doeth homicide, who, by potions and things of that sort, shall have 
destroyed her animate child in her womb. 
Strange as it may seem, this third and last proposition of 
Fleta does not seem to have been recognized in the English 
law, although the English text-books and " books of Reports " 
are silent, or nearly so, on the subject, until the statute 24 
& 25 Viet. ch. 100, § 58, which enacts that, " Every woman, 
being with child, who, with intent to procure her own mis- 
carriage, shall unlawfully administer to herself any poison 
or other noxious thing, or shall unlawfully use any instru- 
ment or other means whatsoever, with like intent, shall be 
guilty of felony." And it is to be observed, that Fleta 
states that the destruction of the child is not only felony, 
but homicide; an offence not against the mother, whether 
directly or indirectly, but against the child. The more 
modern doctrine of the common law seems to have been 
based on the first and second propositions. 
In the latest text-book on the Criminal Law published in 
England,1 it is laid down that " an infant in its mother's 
womb, not being in rerum natura, is not considered as a 
person who can be killed, within the description of murder;2 
and therefore, if a woman, being quick or great with child, 
take any potion to cause an abortion, or if another give her 
1 Russell on Crimes, I. 670, 4th ed. 1865. 
2 In Britton this reason is assigned: "For an infant killed within her 
womb, a woman may not bring any appeal, no one being bound to answer to 
an appeal of felony when the plaintiff cannot set forth the name of the person 
against whom the felony was committed." Liv. I. ch. xxiv. § 7, Nichols's 
ed. I. 114, Oxford, 1865. THE COMMON LAW. 
153 
any such potion, or if a person strike her, whereby the child 
within her is killed, it is not murder or manslaughter." 
But, by the above quoted statute, any person unlawfully 
administering poison, or other noxious thing, to procure 
the miscarriage of any woman, or unlawfully using any 
instrument, or other means whatsoever, with the like 
intent, is guilty of felony. In many of the United States, 
it is a felony if the woman dies; otherwise, it is a misde- 
meanor. 
Where a child, having been born alive, afterwards died 
by reason of any potions or bruises it received in the womb, 
it seems always to have been the better opinion that it was 
murder in such as administered or gave them.1 Giving a 
child, whilst in the act of being born, a mortal wound in the 
head as soon as the head appears, and before the child has 
breathed, will, if the child is afterwards born alive, and 
dies thereof, and there is malice, be murder; but, if there 
is not malice, manslaughter. 
The prisoner was indicted for the manslaughter of an 
infant child; he practised midwifery, and was called in to 
attend a woman who was taken in labor; and when the head 
of the child became visible, being grossly ignorant of the 
art which he professed, and unable to deliver the woman 
with safety to herself and the child, as might have been 
done by a person of ordinary skill, he broke and compressed 
the skull of the infant, and thereby occasioned its death 
immediately after it was born. It was submitted, that the 
indictment was misconceived, though the facts would 
warrant an indictment in another form; and that, the 
child being en ventre sa mere at the time the wound was 
given, the prisoner could not be guilty of manslaughter ; 
1 Inst. III. 50. Hawkins P. C. I. ch. 31, § 16. Bl. Comm. IV. 198. 
East P. C. ch. 5, § 14, I. p. 228. Contra, Hale P. C. I. 432, and Staund- 
forde, 21. But the reason on which the opinions of the two last writers 
seem to be founded - namely, the difficulty of ascertaining the fact - cannot 
be considered as satisfactory, unless it be supposed that such fact never can 
be clearly established. See Exod. ch. xxi. v. 22, 23. Russell on Crimes, I. 
671, and note. 154 
CRIMINAL ABORTION. 
but, having been found guilty, the judges, upon a case 
reserved, were unanimously of opinion that the conviction 
was right.1 
If a person, intending to procure abortion, causes a child 
to be born so soon that it cannot live, and it dies in conse- 
quence, this is murder, though no bodily injury be inflicted 
on the child. Upon the trial of an indictment against Ann 
West for murder, it appeared that S. Henson, being with 
child, went to the prisoner, and underwent an operation for 
the purpose of procuring abortion. This operation was 
repeated on several days, and Henson was shortly after 
delivered of a male child, she being then about six months 
advanced in her pregnancy. The child was born alive, but 
died about five hours afterwards. A medical witness stated 
that there were no unusual appearances on the child, and that 
it was a healthy child ; but that, being born at that period 
of gestation, it was impossible that it could live any consider- 
able length of time separated from the womb of its mother. 
The witness added : " Judging from the healthy appearance 
of the child, I cannot suppose that the premature delivery was 
spontaneous. The operations described by Henson would 
naturally and probably produce that premature delivery. It 
might be produced by a fall, or any sudden shock received 
by the mother; but, in this case, I have no doubt it was 
produced by the acts of the prisoner." 2 Maule J. told the 
jury, that if a person, intending to procure abortion, does 
an act which causes a child to be born so much earlier than 
the natural time, that it is born in a state much less capable 
of living, and afterwards dies in consequence of its expos- 
ure to the external world, the person who by her miscon- 
duct so brings the child into the world, and puts it thereby 
into a situation in which it cannot live, is guilty of murder. 
The evidence seems to show clearly that the death of the 
1 Rex v. Senior, 1 Moody C. C. 346 (1832). 
2 The indictment alleged that the prisoner forced his right hand and a pin 
into the womb of Henson; and the report states that the operation was 
" of the nature described in the indictment." THE COMMON LAW. 
155 
child was caused by its premature birth; and, if that pre- 
mature delivery was brought on by the felonious act of the 
prisoner, then the offence is complete. If the child, by 
the felonious act of the prisoner, was brought into the 
world in a state in which it was more likely to die than it 
would have been if born in due time, and did die in conse- 
quence, the offence is murder; and the mere existence of a 
possibility that something might have been done to prevent 
the death, would not render it less murder.1 
Questions of considerable nicety sometimes arise on trials 
for infanticide, - as to whether the death took place after 
the child was actually born, or whilst it was in the progress 
of being born; and, although the law be clear that a child 
must be actually born to be the subject of murder, perhaps 
it is not clearly settled what constitutes actual birth for this 
purpose. Where, on the trial of an indictment alleging 
that the prisoner was delivered of a child, and that she 
afterwards strangled it, it appeared that the child, which 
was found concealed, had breathed ; but the medical men 
could not say whether it had breathed during the birth or 
afterwards,-Littledale J. said to the jury, "The being 
born must mean that the whole body is brought into the 
world ; and it is not sufficient that the child respires in the 
progress of the birth." 2 
So where, upon the trial of an indictment containing a 
count for murder by stabbing, and a count charging, that, 
before the child was completely born, the prisoner stabbed 
it with a fork, and that it was born, and then died of the 
stab, it was proved that a puncture was found on the child's 
skull; but when that injury was inflicted did not appear, 
and some questions were asked as to whether the child had 
breathed, - Parke J. said: " The child might breathe before 
it was born ; but its having breathed is not sufficiently life 
1 Regina v. West, 2 C. & K. 784 (1848). For the indictment in this case, 
see the Appendix to this volume. 
? Rex v. Poulton, 5C.&P. 329 (1832). 156 
CRIMINAL ABORTION. 
to make the killing of the child murder. There must have 
been an independent circulation in the child, or the child 
cannot be considered as alive for this purpose." 1 
So where the first count of an indictment charged that 
the prisoner, being big with a female child, did bring forth 
the said child alive, and did afterwards strangle it, and other 
counts varied the statement of the mode of death, but all 
of them stated the birth of the child as above mentioned ; 
and it appeared 'that the dead body of the child was found 
concealed under the prisoner's bed, with a ribbon tied tightly 
round the neck, and the evidence of the medical witnesses 
left it in doubt whether the ribbon was tied round the neck, 
and the child strangled by it, during the progress of birth, 
or after the child was fully born, but before the umbilical 
cord was severed: and it was submitted, that a child could 
not be the subject of murder till it had a completely inde- 
pendent circulation, and had been wholly detached from the 
mother; that the term " born alive " meant the being com- 
pletely separated from the mother, and having a completely 
independent circulation ; and a child would not have an in- 
dependent circulation for some time after it was completely 
brought forth, unless the umbilical cord was divided,- 
Parke B. said: " It has been frequently so said in cases 
where the death has been caused by suffocation, or other 
injuries, which might have occurred in the course of unas- 
sisted delivery; but I should like to know whether there is 
any case where it has been so held, where a wilful wound 
has been inflicted during the birth of a child.2 At all events, 
this indictment will not be supported, unless it be shown 
that the child was completely born, as it is distinctly averred 
that the child was brought forth before it was strangled." 
And, in summing up, the learned Baron said: " Whether 
there might be any question on a count differently framed, 
1 Rex v. Enock, 5 C. & P. 539 (1833). Regina v. Wright, 9 C. & P. 754 
(1841), Gurney B. s. p. 
2 See Rex v. Sellis, 7 C. & P. 850, post p. 158. THE COMMON LAW. 
157 
it is not necessary to say. Perhaps there might not; but, 
in order to convict on the first count, you must be satisfied 
that the whole body of the child had come forth from the 
body of the mother when the ligature was applied. If you 
think that the child was not killed after it came forth, you 
will acquit. I think it is essential that it should have been 
wholly produced. But supposing you should be of opinion 
that the child was strangled intentionally while it was con- 
nected by the umbilical cord to the mother, and after it was 
wholly produced, in that case I should put the matter into 
a course of further inquiry, directing you to convict the 
prisoner, and reserving the point for a higher tribunal; my 
present impression being, that it would be murder, if those 
were the facts of the case." 1 
And in a subsequent case, where this case was men- 
tioned, and the prisoner's counsel admitted that it did not 
go to the length of deciding that the child must have a 
separate, independent existence from that of the mother in 
order to make the killing of it murder, Vaughan J. said, 
" I should have been very much surprised if it had ; because, 
if that were the law, the child and the afterbirth might be 
completely delivered, and yet, because the umbilical cord 
was not separated, the child might be knocked on the head 
and killed, without the party who did it being guilty of 
murder."2 
And where one count charged that the prisoner, being 
big with a female child, " did bring forth the same alive f and 
then, in the usual manner, alleged the murder of the child 
by choking it with a handkerchief; and another count 
charged the murder in the same way of a certain illegitimate 
child, " then lately before born of the body " of M. T.; and 
there was strong evidence to prove that the child had been 
wholly produced alive from the prisoner's body, and that 
1 Rex v. Crutchley, 7 C. & P. 814 (1837). The prisoner was acquitted of 
murder. 
2 Regina v. Reeves, 9 C. & P. 25 (1839). 158 
CRIMINAL ABORTION. 
she had strangled it; but it was also clearly proved, by the 
surgeon who examined the body of the child, that it must 
have been strangled before it had been separated from the 
mother by the severance of the umbilical cord; and the 
surgeon further stated that a child has, after breathing 
fully, an independent circulation of its own, even while 
still attached to the mother by the umbilical cord, and that, 
in his judgment, the child in question had breathed fully 
after it had been wholly produced, and had therefore an 
independent circulation of its own before and at the time it 
was strangled, and was then in a state to carry on a sepa- 
rate existence, - Erskine J. directed the jury, that if they 
were satisfied that the child had been wholly produced from 
the body of the prisoner alive, and that the prisoner wil- 
fully strangled the child, after it had been so produced, and 
while it was alive, and while it had, according to the evi- 
dence of the surgeon, an independent circulation of its 
own, he was of opinion that the charge in the said counts 
was made out, although the child, at the time it was so 
strangled, still remained attached to the mother by the 
navel-string. The jury found the prisoner guilty; and, 
upon a case reserved, the judges held the conviction right.1 
Where the prisoner was indicted for the murder of her 
child by cutting off its head, and a surgeon stated that he 
was enabled to say decidedly that the child had breathed, 
but he could not swear that the whole body of the child 
was born when the act of breathing took place, Coltman J. 
said: " In order to justify a conviction for murder, you 
must be satisfied that the entire child was actually born into 
the world in a living state. The fact of its having breathed 
is not a decisive proof that it was born alive; it may have 
breathed, and yet died before birth."2 
But, if a child be actually wholly produced alive, it is not 
necessary that it should have breathed, to make it the sub- 
1 Regina v. Trilloe, 2 Moody C. C. 260, and C. & Marsh. 650 (1842). 
2 Rex v, Sellis, 7 C. & P. 850 (1837). THE COMMON LAW. 
159 
ject of murder. Upon an indictment for the murder of a 
child, where it appeared that the dead body of the child 
was found in a river, and it was proved by two surgeons 
that it had never breathed, Park J. said, " A child must 
be actually wholly in the world in a living state to be the 
subject of a charge of murder; but, if it has been wholly 
born, and is alive, it is not essential that it should have 
breathed at the time it was killed, as many children are 
born alive, and yet do not breathe for some time after 
their birth."1 
We have thus stated at length the cases on this branch of 
the law of infanticide, for the reason that an indictment for 
administering drugs or using instruments for the purpose 
of producing abortion may be so framed, and the evidence 
may be such, that the questions which are there discussed 
may be of vital importance. But it must be observed, that 
some of these cases are unsatisfactory, as many rulings at 
nisi prius must necessarily be. 
It is a general principle, that if an action unlawful in 
itself be done deliberately, and with intention of mischief 
or great bodily harm to particular individuals, or of mis- 
chief indiscriminately, fall where it may, and death ensue 
against or beside the original intention of the party, it will 
be murder. Thus, where a person gave medicine to a 
woman to procure an abortion,2 and where a person put 
skewers into the womb of a woman for the same purpose,3 
by which, in both cases, the women were killed, these acts 
were held clearly to be murder; for, though the death of 
the woman was not intended, the acts were of a nature 
deliberate and malicious, and necessarily attended with 
great danger to the persons on whom they were prac- 
tised.4 
1 Rex v. Brain, 6 C. & P. 349 (1834). 
2 Hale P. C. I. 429. 
3 Tinckler's Case, East P. C. I. ch. v. § 17, I. p. 230, and § 124, p. 354 
(1781). 
4 Russell on Crimes, I. 740. 160 
CRIMINAL ABORTION. 
Iii some of the United States, it has been decided that it is 
not a punishable offence, by the common law, to perform an 
operation upon a pregnant woman, with her consent, for the 
purpose of procuring an abortion, and thereby to effect such 
purpose, unless the woman is quick with child.1 " Such a 
distinction," says a writer on the criminal law, " is neither 
in accordance with the result of medical experience, nor 
with the principles of the criminal law." 2 
In Pennsylvania, a contrary doctrine has been held. Said 
Mr. Justice Coulter : " It is not the murder of a living child 
which constitutes the offence, but the destruction of gesta- 
tion by wicked means and against nature. The moment 
the womb is instinct with embryo life, and gestation has 
begun, the crime may be perpetrated." 3 " If we look at the 
reason of the law," writes Mr. Bishop, " we shall prefer the 
Pennsylvania doctrine, because the public and private mis- 
chiefs are the same, whether the abortion takes place just 
before or just after the first movings of the coming human 
existence are perceptible to the expectant mother."4 
There is a precedent in Chitty's Criminal Law,5 which 
is an indictment at common law, in which it is not alleged 
that the woman was quick with child. It does not appear 
that any judgment was rendered on this indictment, which 
was procured from the Crown Office, Michaelmas Term 42 
1 Commonwealth v. Parker, 9 Met. 263 (1845), explaining Commonwealth 
v. Bangs, 9 Mass. 387 (1812). The State v. Cooper, 2 Zabriskie, 52 (1849). 
Smith v. The State, 32 Maine, 48 (1851). See the argument of the counsel 
for the defendant, in Hall v. Hancock, 15 Pick. 256 (1834). The act was 
purged of its criminality, so far as it affected the mother, by her consent. It 
was an offence against the life of the child. The State v. Murphy, 3 Dutcher, 
114 (1858). 
2 Wharton Crim. Law, I. § 1220, 5th ed. 
3 Mills v. Commonwealth, 13 Pennsylvania State Rep. 631 (1850). See 
the earlier case, Commonwealth v. Demain, decided by the Supreme Court 
of Pennsylvania, January Term 1846, and reported in 6 Pennsylvania Law 
Journal, 29, and in Brightly, 441. And see a criticism on this case in The 
State v. Cooper, 2 Zabriskie, 58 (1849). 
4 Comm. Crim. Law, II. § 6. 
5 Vol. III. p. 798. This precedent is printed in the Appendix to this 
volume. THE COMMON LAW. 
161 
Geo. III. The next year, Lord Ellenborough's Act was 
passed, declaring the procuring of an abortion, though the 
woman is not quick with child, a felony. Upon a careful 
consideration of this precedent, it will not be found incon- 
sistent with the rule of the common law, - that, until the wo- 
man is quick with child, if she consents, no indictable offence 
is committed. The indictment contains several counts, and 
they all charge an assault upon the woman ; and there is no 
intimation that the applications were made with her consent; 
but the conclusion from the averments is otherwise. It is 
then the case of an assault at common law, with aggrava- 
tions. But what is more material is, that, although the wo- 
man was not alleged to be quick with child, yet it is averred 
that she was pregnant and big with child, and that the act 
was done by the defendant wilfully, and with intent feloni- 
ously, wilfully, and of his malice aforethought, to kill and 
murder the child with which she was so big and pregnant; 
and, in other counts, it is laid that drugs were administered 
to her, she being pregnant with another child, and with 
intent to cause and procure her to miscarry, and bring forth 
said child dead, &c. The whole proceeds on the averment, 
that she was then pregnant with a child then so far ad- 
vanced as to be regarded in law as having a separate exist- 
ence, a life capable of being destroyed; which is equivalent 
to the averment that she was quick with child.1 
" Care must be taken," said Chief Justice Shaw,2 " not to 
confound this case [i.e., whether, before the foetus has quick- 
ened, an abortion procured with the mother's consent is an 
offence at common law] with some others, which resemble it 
in fact, but fall within another principle. The use of vio- 
lence upon a woman, with an intent to procure her miscar- 
riage without her consent, is an assault highly aggravated 
by such wicked purpose, and would be indictable at com- 
1 Commonwealth v. Parker, 9 Met. 265 (1845). The State v. Cooper, 2 
Zabriskie, 56 (1849). 
2 Commonwealth v. Parker, 9 Met. 265 (1845). 162 
CRIMINAL ABORTION. 
mon law. So where, upon a similar attempt by drugs or 
instruments, the death of the mother ensues, the party 
making such an attempt, with or without the consent of the 
woman, is guilty of the murder of the mother, on the ground 
that it is an act done without lawful purpose, dangerous to 
life, and that the consent of the woman cannot take away 
the imputation of malice, any more than in case of a duel, 
where, in like manner, there is the consent of the parties." 
The words, " quick with child," have been variously con- 
strued. In Rex v. Phillips,1 upon an indictment on 43 
Geo. III. ch. 58, § 2, for endeavoring to procure an 
abortion, where it appeared that the woman was in the 
fourth month of her pregnancy, but swore she had not felt 
the child move within her before the taking the medicine, 
and that she was not then quick with child; and where 
the medical men, in their examinations, differed as to the 
time when the foetus may be stated to be quick, and to have 
a distinct existence, but all agreed, that, in common under- 
standing, a woman is not to be considered quick with child 
till she has felt the child alive and quick within her, which 
happens with different women in different stages of preg- 
nancy, although most usually about the fifteenth or sixteenth 
week after conception, - Lawrence J. said, that this was 
the interpretation that must be put upon the words, " quick 
with child," in the statute; and, as the woman had not felt 
the child alive within her before taking the medicine, he di- 
rected the jury to acquit the prisoner. In an investigation 
before a jury of matrons, Mr. Baron Gurney said, " ' Quick 
with child ' is having conceived. ' With quick child ' is when 
the child has quickened."2 But the distinction between 
these expressions has been denied. " There is no founda- 
tion whatever in law for this distinction," said Chief Justice 
i 3 Campb. 77 (1811). 9 Met. 266. 
2 Regina v. Wycherly, 8 C. & P. 262, 264 (1838.) See a note to this case, 
by the reporters, showing, on medical authority, that the popular idea of 
quick or not quick with child is founded in error. THE common law. 
163 
Green : " The ancient authorities show clearly that the terms 
are synonymous; both importing that the child had quick- 
ened in the womb, and that the period had arrived when the 
life of the infant, in contemplation of law, had commenced." 1 
In Ohio, a statute enacts, " That any physician or other 
person, who shall wilfully administer to any pregnant wo- 
man any medicine, drug, substance, or thing whatever, with 
intent thereby to procure 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 two phy- 
sicians to be necessary for that purpose, shall, upon convic- 
tion, be punished," etc. It has been decided that the offence 
may be committed at any time during the period of ges- 
tation.2 And in Vermont, where it is a statutory offence to 
attempt to procure the miscarriage of a woman " then preg- 
nant with child," it has been held not to be essential that 
the foetus be alive at the time the attempt is made. " We 
think," said Redfield C.J. " the mother is with child, 
whether the child be dead or alive, until the actual miscar- 
riage by the expulsion of the foetus."3 
In Hall v. Hancock,4 the court were of opinion, that the 
distinction between a woman being pregnant, and being 
quick with child, is applicable mainly, if not exclusively, to 
criminal cases ; and that it does not apply to cases of 
descents, devises, and other gifts; and that, generally, a 
child will be considered in being from conception to the 
time of its birth, in all cases where it will be for the benefit 
of such child to be so considered. 
The Massachusetts statute of 1845, ch. 27, enacts, that 
" Whoever maliciously, or without lawful justification, with 
intent to cause and procure the miscarriage of a woman then 
pregnant with child, shall," etc. On the trial of an indict- 
1 The State v. Cooper, 2 Zabriskie, 57 (1849). Bishop Crim. Law, II. § 7. 
2 Wilson v. The State, 2 Ohio State, 319 (1853). 
8 The State v. Howard, 32 Vermont, 380, 403 (1859). Bishop Crim. Law, 
II. § 8. 
< 15 Pick. 255 (1834). 164 
CRIMINAL ABORTION. 
ment under the statute, the court was requested to instruct 
the jury that a lawful justification would exist " if the child 
with which the woman was pregnant was not a live child." 
" If," said Thomas J. " by this was meant that the mother 
had not reached the stage of pregnancy in which she would 
be ' quick with child,' and when to procure an abortion 
would be an offence at common law, the prayer, in our 
opinion, misconceives the purpose of the statute, which was 
intended to supply the defects of the common law, and to 
apply to all cases of pregnancy. If the defendant meant 
to say it would be a legal justification to show that the foetus 
with which the woman was pregnant had lost its vitality, so 
that it could never mature into a living child, we think the 
position correct."1 
It seems, that pregnancy ceases when the child has come 
forth from the womb of the mother, though the child is still 
attached by the umbilical cord, and though the afterbirth 
has not been removed.2 
1 Commonwealth v. Wood, 11 Gray, 86 (1858). 
2 Commonwealth v. Brown, 14 Gray, 419 (1860). THE ENGLISH STATUTES, ETC. 
165 
CHAPTER II. 
THE ENGLISH STATUTES AND INDICTMENTS THEREON. 
In England, the statutes 43 Geo. III. ch. 58, 9 Geo. IV. 
ch. 31, and 7 Will. IV. and 1 Viet. ch. 85, formerly made 
certain attempts to procure the miscarriage of any woman 
highly penal; but these acts are repealed, and the recent 
act, 24 & 25 Viet. ch. 100, §§ 58, 59, is in force. These 
statutes are printed in this chapter, for the reason that they have 
been re-enacted, with alterations and additions, in many of the 
United States. For the assistance of the practitioner in 
framing an indictment under the particular statute of his 
own State, precedents of indictments have been inserted, 
drawn on these English statutes. 
The first section of 43 Geo. III. ch. 58, known as Lord 
Ellenborough's Act, after reciting that certain heinous 
offences, with intent to procure the miscarriage of women, 
had been of late frequently committed, and that no adequate 
means had been provided for their prevention and punish- 
ment, enacts, that if any person or persons " shall wilfully, 
maliciously, and unlawfully administer to, or cause to be 
administered to or taken by any of his Majesty's subjects, any 
deadly poison, or other noxious and destructive substance or 
thing, with intent such his Majesty's subjects thereby to mur- 
der, or thereby to cause and procure the miscarriage of any 
woman, then being quick with child," the person or persons 
so offending, their counsellors, aiders, and abettors, knowing 
of and privy to such offence, shall be felons, and shall 
suffer death, as in cases of felony, without benefit of clergy. 
The second section of the statute recites, that it might 
sometimes happen that poison or some other noxious and 166 
CRIMINAL ABORTION. 
destructive substance or thing might be given, or other means 
used, with intent to procure miscarriage or abortion, where 
the woman might not be quick with child at the time, or 
it might not be proved that she was quick with child ; and 
enacts, " That if any person or persons shall wilfully and 
maliciously administer to, or cause to be administered to, or 
taken by any woman, any medicine, drug, or other substance 
or thing whatsoever, or shall use, employ, or cause, or procure 
to be used or employed, any instrument or other means what- 
soever, with intent thereby to cause or procure the miscarriage 
of any woman not being, or not being proved to be, quick with 
child at the time of administering such things, or using such 
means, that then and in every such case, the person or 
persons so offending, their counsellors, aiders, and abettors, 
knowing of and privy to such offence, shall be and are 
hereby declared to be guilty of felony, and shall be liable to be 
fined, imprisoned, set in and upon the pillory, publicly or 
privately whipped, or to suffer one or more of the said 
punishments, or to be transported beyond the seas, for any 
term not exceeding fourteen years, at the discretion of the 
court, before which such offender shall be tried and convicted." 
Indictment for administering drugs to procure abortion, the woman 
not being quick with child. 43 Geo. III. ch. 58, § 2.1 
The jurors, etc., upon their oath present, that J. S. late of 
B. in the county of M. laborer, on the first day of June in 
the year of our Lord , at B. aforesaid in the county 
aforesaid, feloniously, wilfully, and maliciously did admin- 
ister to, and cause to be administered to and taken by one 
A. N., a large quantity of a certain drug called savin, to wit, 
two ounces of the said drug, with intent then and there and 
thereby to cause and procure the miscarriage of the said A. 
N., she the said A. N. at the time of the administering and 
taking the said drug as aforesaid, being with child, but not 
quick with child, to wit, at B. aforesaid, in the county afore- 
1 Archbold Crim. Pl. (2d London ed.) 235. THE ENGLISH STATUTES, ETC. 
167 
said ; against the form of the statute in such case made and 
provided, and against the peace, etc. 
Add a second count, substituting for the words, " being 
with child, but not quick with child," the words, " not being 
quick with child." 
Add also another set of counts, charging the defendant 
with having administered, etc., " a large quantity of a certain 
mixture to the jurors aforesaid unknown." 
Indictment if the woman were quick with child. 43 Geo. III. 
ch. 58, § I.1 
[ Commencement as in the last precedent.'] in the county 
aforesaid, feloniously, wilfully, maliciously, and unlawfully 
did administer to, and cause to be administered to and 
taken by one A. N., a large quantity of a certain noxious 
and destructive substance called savin, to wit, two ounces of 
the said substance called savin, with intent then and there 
and thereby to cause and procure the miscarriage of the said 
A. N., she the said A. N., at the time of the administering 
and taking the said substance as aforesaid, being quick with 
child, to wit, at B. aforesaid, in the county aforesaid: 
against the form of the statute in such case made and 
provided, and against the peace, etc. 
The 9 Geo. IV. ch. 31, Lord Lansdowne's Act, enacts - 
XIII. That, if any person, with intent to procure the 
miscarriage of any woman then being quick with child, un- 
lawfully and maliciously shall administer to her, or cause to 
be taken by her, any poison or other noxious thing, or shall 
use any instrument or other means whatever with the like 
intent; every such offender, and every person counselling, 
aiding, or abetting such offender, shall be guilty of felony; 
and, being convicted thereof, shall suffer death as a felon; 
and if any person, with intent to procure the miscarriage of 
any woman not being or not being proved to be, then quick 
with child, unlawfully and maliciously shall administer to 
1 Archbold Crim. Pl. (2d London ed.) 236. 168 
CRIMINAL ABORTION. 
her, or cause to be taken by her, any medicine or other 
thing, or shall use any instrument or other means whatever, 
with the like intent; every such offender, and every person 
counselling, aiding, or abetting such offender, shall be guilty 
of felony, and being convicted thereof, shall be liable, at 
the discretion of the court, to be transported beyond the 
seas for any term not exceeding fourteen years nor less than 
seven years, or to be imprisoned, with or without hard labor, 
in the common gaol or house of correction, for any term not 
exceeding three years, and if a male, to be once, twice, or 
thrice publicly or privately whipped, (if the court shall so 
think fit) in addition to such imprisonment. 
Indictment for procuring abortion when quick with child. 9 Geo. 
IV. ch. 31, § 13. 
The jurors, etc., on their oath present, that C. D. late of 
B. in the county of S. physician, on the first day of June 
in the year of our Lord , at B. aforesaid, in the county 
aforesaid, feloniously, unlawfully, and maliciously did ad- 
minister to, and cause to be taken by one E. F., she the said 
E. F. then and there being quick with child, a large quanti- 
ty, to wit, two ounces of a certain noxious thing, to wit, a 
noxious thing called [savin] with intent then and there and 
thereby to procure the miscarriage of the said E. F.: con- 
trary to the form of the statute in such case made and pro- 
vided, and against the peace, etc. 
Second count.;-And the jurors aforesaid, upon their oath 
aforesaid, do further present, that the said 0. D. on the day 
and year aforesaid, at B. aforesaid, in the county aforesaid, 
feloniously, unlawfully, and maliciously did administer to 
and cause to be taken by the said E. F., she the said E. F., 
then and there being quick with child, a large quantity, to 
wit, two ounces, of a certain poison and noxious tiling to the 
jurors aforesaid unknown, with intent then and there and 
thereby to procure the miscarriage of the said E. F.: con- 
trary to the form, etc. THE ENGLISH STATUTES, ETC. 
169 
Third count. - And the jurors aforesaid upon their 
oath aforesaid, do further present, that the said C. D. on 
the day and year aforesaid, at B. aforesaid in the county 
aforesaid, feloniously, unlawfully, and maliciously then and 
there did, with intent to procure the miscarriage of the said 
E. F., the said E. F. being then and there quick with child, 
use a certain instrument, to wit, a , in and upon the 
body of the said E. F., by then and there [state how it was 
used] : contrary to the form, etc. 
Indictment for procuring abortion when not quick with child. 9 
Geo. IV. ch. 31, § 13, second clause. 
The jurors, etc., that G. D. late of B. in the county of 
S. physician on the first day of June, in the year of our 
Lord , at B. aforesaid in the county aforesaid, feloni- 
ously, unlawfully, and maliciously did administer to and 
cause to be taken by one E. F., she the said E. F. then and 
there being with child, but not quick with child, a large 
quantity, to wit [proceed as in the preceding indictment to 
the endl\ 
St. 7 Will. IV. & 1 Viet. ch. 85 enacts - 
VI. Whosoever, with intent to procure the miscarriage of 
any woman, shall unlawfully administer to her, or cause to 
be taken by her, any poison or other noxious thing, or shall 
unlawfully use any instrument or other means whatsoever 
with the like intent, shall be guilty of felony, and being con- 
victed thereof, shall be liable, at the discretion of the court, 
to be transported beyond the seas for the term of his or her 
natural life, or for any term not less than fifteen years, or to 
be imprisoned for any term not exceeding three years. 
Indictment for administering poison to procure miscarriage. 7 
Will. IV. & 1 Viet. ch. 85, § 6.1 
The jurors, etc., upon their oath present, that C. D. late 
of B. in the county of S. laborer, on the first day of June 
1 Archbold Crim. Pl. (7th London ed.) 413. 170 
CRIMINAL ABORTION. 
in the year of our Lord , at B. aforesaid, in the county 
aforesaid, feloniously and unlawfully did administer to, and 
cause to be taken by, one E. F., a large quantity of a cer- 
tain noxious thing called savin, to wit, two ounces of the 
said noxious thing called savin, with intent then and there 
and thereby to procure the miscarriage of the said E. F.: 
contrary to the form of the statute in such case made and 
provided, and against the peace, etc. 
Indictment for using instruments to procure miscarriage. 7 Will. 
IV. & 1 Viet. ch. 85, § 6.1 
[ Commencement as in the last precedent] in the county 
aforesaid, feloniously and unlawfully did use a certain in- 
strument, called a , by then and there [state the mode 
of using the instrument] with intent [proceed as in the last 
precedent.] 
St. 24 & 25 Viet. ch. 100, enacts - 
LVIII. Every woman, being with child, who, with intent 
to procure her own miscarriage, shall unlawfully adminis- 
ter to herself any poison or other noxious thing, or shall 
unlawfully,, use any instrument or other means whatsoever 
with the like intent, - and whosoever, with intent to pro- 
cure the miscarriage of any woman, whether she be or be not 
with child, shall unlawfully2 administer to her or cause to 
be taken by her, any poison or other noxious thing, or shall 
unlawfully 3 use any instrument or other means whatsoever 
with the like intent, - shall be guilty of felony, and being 
convicted thereof shall be liable, at the discretion of the 
court, to be kept in penal servitude for life or for any term 
not less than three years, - or to be imprisoned for any 
term not exceeding two years, with or without hard labor, 
and with or without solitary confinement.4 
1 Archbold Crim. Pl. (7th London ed.) 414. 
2 The word " maliciously " was in the 9 Geo. IV. ch. 31, § 13. 
3 " Unlawfully " was not in the 9 Geo. IV. ch. 31, § 13. 
4 This clause is framed on the 7 Will. IV. & 1 Viet. ch. 85, § 6. The first THE ENGLISH STATUTES, ETC. 
171 
LIX. Whosoever shall unlawfully supply or procure any 
poison or other noxious thing, or any instrument or thing 
whatsoever, knowing that the same is intended to be unlaw- 
fully used or employed with intent to procure the miscar- 
riage of any woman, whether she be or be not with child, 
shall be guilty of a misdemeanor, and being convicted there- 
of, shall be liable, at the discretion of the court, to be kept in 
penal servitude for the term of three years, or to be im- 
prisoned for any term not exceeding two years, with or with- 
out hard labor.1 
Indictment for administering drzzgs.etc., to procure abortion. 24 & 25 
Viet. ch. 100, § 58. 
The jurors, etc., upon their oath present, that C. D. of B. 
in the county of S. on the first day of June, in the year of 
our Lord , at B. aforesaid in the county aforesaid, un- 
lawfully and feloniously did administer to [or did cause to be 
taken by] a certain woman called E. F. a large quantity, to 
wit, of a certain noxious thing called , with intent 
then and there and thereby to cause the miscarriage of the 
said E. F.: against the form of the statute in such case 
made and provided, and against the peace, etc. 
Indictment for using instruments to procure abortion. 24 & 25 Viet, 
ch. 100, § 58. 
The jurors, etc., upon their oath present, that C. D. of B. 
in the county of S. on the first day of June, in the year of 
our Lord , at B. aforesaid, in the county aforesaid, un- 
lawfully and feloniously did use a certain instrument called 
a , by then and there [stating how it was used; the 
part of it is new, and extends the former enactment to any woman who, 
being with child, attempts to procure her own miscarriage. The second part 
in terms makes it immaterial whether the woman were or were not with child, 
in accordance with the decision in Regina v. Goodhall, 1 Denison C. C. 187; 
s.c. as Regina v. Goodchild, 2 C. & K. 293 (1846). 
1 This section is new. It is intended to check the obtaining of poison, 
etc., for the purpose of causing abortion, by making both the person who 
supplies and the person who procures it guilty of a misdemeanor. 172 
CRIMINAL ABORTION. 
words in the statute are, " any instrument or other means 
whatsoever; " if by any other means state them; with 
intent then and there and thereby to cause the miscarriage 
of the said E. F.: against the form of the statute in such 
case' made and provided, and against the peace, etc. 
Add another count, stating it to be " a certain instrument 
to the jurors aforesaid unknown." The name of the wo- 
man will be stated, in stating the manner in which the 
instrument was used, and referred to afterwards as " the 
said E. F." 
1 See the indictment in Regina v. West, 2 C. & K. 784, in the Appendix 
to this volume. AGAINST WHOM AN INDICTMENT LIES. 
173 
CHAPTER III. 
AGAINST WHOM AN INDICTMENT LIES. - PRINCIPALS 
AND ACCESSORIES. 
It is a general principle in the criminal law, that where a 
statute enacts an offence to be felony, though it mentions 
nothing of accessories before or after, yet virtually and con- 
sequentially those that counsel or command the offence are 
accessories before the fact, and those who knowingly receive 
the offender are accessories after.1 And every indictment 
for felony, whether it be a felony at common law or by 
statute, must allege that the act which forms the subject- 
matter of the indictment was done " feloniously; " the word 
" feloniously " being a term of art for which no equivalent 
expression can be substituted.2 
The earliest English case on this subject is Hex v. Russell, 
decided in 1832.3 Russell was tried on an indictment 
which charged S. Wormsley with murdering herself with 
arsenic, and Russell with inciting her to commit the said 
murder. It appeared that Wormsley, who was about four 
months advanced in pregnancy, but not quick with child, 
died from taking arsenic, which she had received from Rus- 
sell for the purpose of procuring a miscarriage, and that she 
knowingly took it, with intent to procure a miscarriage, in 
the absence of Russell. It was objected, that there was no 
evidence to prove that she was felo de se; that the 9 Geo. 
IV. ch. 31, § 13,4 did not apply to a woman administering 
poison to herself, and that assuming her to have taken 
1 Purcell Crim. Pl. 25. 
2 Regina v. Gray, Leigh & Cave C. C. 365; 9 Cox C. C. 437; 9 L. T. 
Rep. n. s. 808 (1864). Purcell Crim. Pl. 87. 
3 1 Moody C. C. 356. 4 Ante, p. 166. 174 
CRIMINAL ABORTION. 
arsenic knowingly, and with intent to procure miscarriage, 
she was not guilty of any offence; and, consequently, if 
there were no principal, there could be no accessory. It 
was held, that she was felo de se, and that Russell was an 
accessory before the fact. 
In Regina v. G-aylor^ it appeared, that the prisoner pro- 
cured sulphate of potash, and gave it to his wife, intending 
that she should take it for the purpose of procuring abor- 
tion ; and that she, believing herself to be pregnant, al- 
though in reality she was not, took the sulphate of potash 
in the absence of the prisoner, and died from its effects. 
It was held that he was rightly convicted of manslaughter. 
Erle J. reserved the following case : " The prisoner was 
indicted for manslaughter. The facts were, that his wife's 
death was caused by swallowing sulphate of potash for the 
purpose of procuring abortion; she believing herself to be 
pregnant, although in reality she was not. The prisoner 
purchased this sulphate of potash, and gave it to his wife 
in order that she might swallow it for the above-mentioned 
purpose; but he was absent at the time when she so swal- 
lowed it. For the prosecution it was contended, that the 
wife committed a felony in so swallowing the sulphate of 
potash, and, as death ensued therefrom, she also committed 
murder ;2 that the prisoner was an accessory before the fact, 
to this felony, and to the consequent murder, and might be 
tried as if the principal had been convicted under 11 & 12 
Viet. ch. 46, § 1;3 and that, although the evidence showed 
his offence was murder, yet that would support an indict- 
ment for manslaughter. Under my direction the jury con- 
victed. I reserved the following questions : - 
1 Dearsly & Bell C. C. 288; 7 Cox C. C. 253 (1857). 
2 Rex v. Russell, 1 Moody C. C. 356 (1832). Ante, p. 172. 
3 That section enacts: " If any person shall become an accessory before 
the fact to any felony, whether the same be a felony at common law, or by 
virtue of any statute or statutes made or to be made, such person may be 
indicted, tried, convicted and punished in all respects as if he were a princi- 
pal felon." AGAINST WHOM AN INDICTMENT LIES. 
175 
" 1st. Was the deceased guilty of felony, in administering 
sulphate of potash to herself, for the purpose of procuring 
abortion, she not being pregnant? 2d. Was the husband, 
by his act, guilty of felony, or an accessory thereto ? - he 
having been absent when she swallowed the drug. 3d. If the 
husband was an accessory to the felony, was an indictment 
for manslaughter supported ? - it being laid down that there 
cannot be an accessory to manslaughter.1 4th. Can the in- 
dictment be supported under 11 & 12 Viet. ch. 46, § 1 ? " 
Judgment was given affirming the conviction, but no reasons 
were given. But it was undoubtedly affirmed on the ground, 
that the prisoner instigated the woman to take the drug.2 
In the course of the argument, Bramwell B. asked: " Sup- 
pose a man, for mischief, gives another a strong dose of 
medicine, not intending any further injury than causing 
him to be sick and uncomfortable, and death ensues, - would 
not that be manslaughter ? Suppose, then, another had 
counselled him to do it, - would not he who counselled be 
an accessory before the fact ? " 3 And Erle J. said: " The 
man was an accessory before the fact, to the woman taking 
the drug with intent to procure abortion. This would in 
my opinion be murder, if she died in consequence of taking 
that drug. The grand jury, however, found that it was 
manslaughter. If a man is indicted for manslaughter, and 
it turns out to be murder, he may be found guilty of man- 
slaughter. I thought the prisoner was guilty of murder, 
and might therefore be convicted of manslaughter." 
In Regina v. Fretwell, the prisoner was induced by a woman 
who was pregnant by him, to get for her a dose of corrosive 
sublimate, for the purpose of producing abortion, which he 
did with a full knowledge of the purpose to which it was to 
be applied. The woman took the dose in the absence of the 
prisoner, and died in consequence. The jury found that the 
prisoner did not administer the poison to her, or cause her to 
1 Hale P. C. II. 437. w 2 See the next case, Regina v. Fretwell. 
3 See Regina v. Smith, 2 Cox C. C. 233 (1847), per Parke B. 176 
CRIMINAL ABORTION. 
take it. On a case reserved, it was held, that, even if the 
woman were felo de se, the prisoner could not be convicted 
of murder, either as a principal, or as an accessory before the 
fact.1 The following case was reserved by Cockburn C. J.: 
" Francis Fretwell was indicted and tried before me, at the 
last Assizes for the county of Nottingham, for the wilful mur- 
der of Elizabeth Bradley. The deceased had died from the 
effects of corrosive sublimate, taken for the purpose of pro- 
ducing abortion. The poison had been procured for her by 
the prisoner, with full knowledge of the purpose to which it 
was to be applied; but there was ground for believing that 
the prisoner, in procuring the poison, had acted at the insti- 
gation of the deceased, and under the influence of threats 
by her of self-destruction, if the means of producing abor- 
tion were not supplied to her. She was a married woman, 
living in service, separately from her husband, and had be- 
come pregnant by the prisoner. She had endeavored to 
purchase corrosive sublimate herself; but, the druggists to 
whom she had applied having refused to furnish it to her, 
she had urged the prisoner to procure it. The prisoner 
was not present when the poison was taken. The facts in 
question occurred in the month of July 1861, anterior to 
the coming into operation of the 24 & 25 Viet. ch. 100. 
The jury, upon questions specially put to them by me, upon 
the evidence, expressly negatived the fact of the prisoner 
having administered the poison to the deceased, or caused 
it to be taken by her. They found, specially, that the pris- 
oner procured the poison, and delivered it to the deceased, 
with a knowledge of the purpose to which she intended to 
apply it, and that he was therefore accessory before the fact 
to her taking poison for the purpose of procuring abortion. 
Upon this finding, I directed the jury to return a verdict 
of wilful murder against the prisoner; reserving for the con- 
sideration and decision of the Court of Criminal Appeal the 
1 Regina v. Fretwell, Leigh & Cave C. C. 161; 9 Cox. C. C. 152; 8 Jur. 
N. s. 466; 6L. T. Rep. n. s. 333 (1862). AGAINST WHOM AN INDICTMENT LIES. 
177 
question, whether such verdict was right in point of law. 
In giving such direction, I acted in deference to the author- 
ity of the case of Rex v. Russell;1 but it appearing to me 
doubtful how far the ruling of the judges in that case, that, 
if poison be taken by a woman to produce abortion, and 
death ensues, the woman is felo de se, could be upheld; 
and still more so, how far a man, accessory to the mis- 
demeanor of a woman in taking poison for the purpose of 
producing abortion, can properly be held to be accessory to 
the self-murder of the woman, if, contrary to the intention 
of the parties, death should be the consequence, - I have 
reserved these points for the consideration of the court." 
Erle C. J.: " The prisoner was convicted of murder; and 
the question for us is, whether, upon the facts stated, he 
was properly convicted. The deceased, Elizabeth Bradley, 
was pregnant, and, for the purpose of producing abortion, 
took a dose of corrosive sublimate, which had been procured 
for her by the prisoner, with a full knowledge of the pur- 
pose to which it was to be applied. In procuring the poison, 
the prisoner had acted at the instigation of the deceased, 
and under the influence of threats by her of self-destruction, 
if the means of procuring abortion were not supplied to her. 
Then the case sets out the reasons which caused the woman 
to be so desirous of preventing her state becoming known. 
The jury expressly negatived the fact of the prisoner having 
administered the poison to the deceased, or caused it to be 
taken by her; but they found, that he had delivered it to 
her, with a knowledge of the purpose to which she intended 
to apply it, and that he was therefore accessory before the 
fact to her taking poison for the purpose of procuring abor- 
tion. Chief Justice Cockburn thereupon, on the authority 
of RusselVs Case, directed the jury to return a verdict of 
wilful murder against the prisoner, and reserved the case 
for the consideration of this Court. Now, upon the facts 
stated, the present case appears to me to differ materially 
1 1 Moody C. C. 356 (1832). Ante, p. 172. 178 
CRIMINAL ABORTION. 
from that of Rex v. Russell. There the prisoner, finding 
the woman to be pregnant, of his own motion procured 
arsenic, gave it to the woman, and instigated and persuaded 
her to take it, for the purpose of procuring a miscarriage; 
and the woman took it knowingly, with the like intent of 
procuring a miscarriage, and thereby caused her own death. 
The judges held, that it was a misdemeanor in her to take 
arsenic for the purpose of procuring abortion; that, having 
thereby caused her own death, she was felo de se ; and that 
the prisoner was an accessory before the fact to the murder. 
Now, there appears to me to be a very marked distinction 
between the conduct of the prisoner Fretwell, in this case, 
and the conduct of the prisoner Russell, in the case I have 
already referred to. In the latter case, Russell instigated 
and persuaded the woman to take the arsenic. In the pres- 
ent case, the prisoner was unwilling that the woman should 
take the poison. He procured it for her at her instigation, 
and under a threat by her of self-destruction. He did not 
administer it to her, or cause her to take it; and the facts 
of the case are quite consistent with the supposition, that he 
hoped and expected that she would change her mind, and 
would not resort to it. Then, the cases being distinguish- 
able, it is unnecessary to decide whether in this case the 
woman was felo de se. I am the more fortified in my opinion 
by looking at the late statute for consolidating and amend- 
ing the law relating to offences against the person.1 By § 58 
of that statute, any woman administering to herself poison 
with intent to procure miscarriage, and any person adminis- 
tering it to her, or causing it to be taken by her, with the 
like intent, is guilty of felony. By § 59, any one supplying 
or procuring any poison, knowing that the same is intended 
to be used with intent to procure miscarriage, is guilty of 
a misdemeanor. The crime, therefore, of procuring or sup- 
plying the poison, is one of a totally different character from 
that of administering it, or causing it to be taken. My 
1 24 & 25 Viet. ch. 100. Ante, pp. 169, 170. AGAINST WHOM AN INDICTMENT LIES. 
179 
opinion is, that the prisoner was not guilty of murder, and 
that the conviction must be quashed." 
Martin B.: " The acts of the prisoner were too remote 
from the death of the woman, to make him guilty of mur- 
der." 
Blackburn J.: " According to the finding of the jury, the 
prisoner neither administered the poison, nor caused it to 
be taken by the woman, and therefore was not a party to 
what took place in such a way, as to [make what he did 
amount] to murder." 
It seems, that an indictment, which avers that one defend- 
ant advised, ordered, and commanded two other defendants to 
administer ergot to a woman pregnant with child, and provided 
the ergot for the purpose, knowing that it was dangerous to 
life, which ergot she, according to his advice, order, and com- 
mand swallowed; and that he, " in so ordering, advising, and 
commanding the said ergot administered to her," to be by her 
swallowed, it being for her provided by him as aforesaid, 
" so ordered, advised, and commanded the same to be 
administered," with intent of him to cause her to miscarry, 
and in order that he might cause the destruction of the life 
of the child; and that she by means of said ergot, so 
ordered, advised, and commanded to be administered to her, 
and so provided by him for her to swallow, and so swallowed, 
the same thereafter being administered to her by the other 
defendants with intent of them to cause her to miscarry, and 
in order that the three defendants might cause the destruc- 
tion of the life of the child; and that she " by means of 
said ergot so administered and so provided by " him for her to 
swallow, and so swallowed, the same having been adminis- 
tered to her by the other defendants in pursuance of his 
aforesaid order, command, and advice, by him given to 
them, died, - charges him with administering the ergot as 
principal, and not as accessory.1 
1 Commonwealth v. Brown, 14 Gray, 419 (1860). 180 
CRIMINAL ABORTION. 
Indictment against the principal for using an instrument to procure 
miscarriage, and against an accessory before the fact.1 
The jurors etc., upon their oath present, that C. D. late of 
B. in the county of S., physician, on the first day of June in 
the year of our Lord , at B. aforesaid, in the county 
aforesaid, feloniously, unlawfully, maliciously and without 
lawful justification, did use a certain instrument, the name of 
which instrument is to the jurors aforesaid unknown, which 
instrument the said C. D. in his right hand then and there 
had and held, by then and there forcing and thrusting the 
instrument aforesaid, into the body and womb of a certain 
woman whose name is E. F., the said E. F. being then and 
there pregnant with child, with intent thereby then and there 
to cause and procure the miscarriage of the said E. F.; 
against the peace of said Commonwealth and contrary to the 
form of the statute in such case made and provided. And 
the jurors aforesaid, upon their oath aforesaid, do further 
present, that G. H. late of B. aforesaid, in the county afore- 
said, gentleman, before the said felony was committed in 
manner and form aforesaid, to wit, on the first day of June in 
the year of our Lord , at B. aforesaid, in the county 
aforesaid, did feloniously and maliciously incite, move, pro- 
cure, aid, counsel, hire and command the said C. D. the said 
felony in manner and form aforesaid to do and commit; 
against the peace of said Commonwealth and contrary to the 
form of the statute in such case made and provided. 
1 See Regina v. Ashmall, 9 C. & P. 286 (1840). INDICTMENT. 
181 
CHAPTER IV. 
INDICTMENT. 
The crime of abortion, as attempted, or as actually perpe- 
trated, is defined and punished by statutes in England, and 
in many of the United States. But there is no uniformity 
in the language of the statutes in either country. The 
pleader, by attentively considering the operative words of 
■the different statutes, and the decisions of the courts upon 
them, will have very little difficulty in determining the law 
applicable to any particular case. 
In Pennsylvania, an indictment at common law charged as 
follows:1 - 
"The Grand Inquest etc. present that J. G. M. of the 
county aforesaid, dentist, on the tenth day of May in the 
year of our Lord , and on divers other days and times 
between that day and the taking of this inquisition, in the 
county aforesaid, and within the jurisdiction of this court, 
with force and arms, wilfully, maliciously, unlawfully, and 
wickedly, did administer to and cause to be administered to, 
and taken by one Mary Elizabeth Lutz, single woman, she 
the said Mary Elizabeth Lutz, being then and there big and 
pregnant with child, divers large quantities of deadly, 
dangerous, unwholesome and pernicious pills, herbs, drugs, 
potions, teas, liquids, powders, and mixtures ; with intent 
thereby then and there, to cause and procure the miscarriage 
and abortion of the said child of which the said Mary Eliza- 
beth Lutz was then and there big and pregnant: to the great 
damage, etc." Coulter J.: " The error assigned is, that 
the indictment charges the defendant with intent to cause 
1 Mills v. Commonwealth, 13 Penn. State Rep. 631 (1850). 182 
CRIMINAL ABORTION. 
and procure the miscarriage and abortion of Mary Elizabeth 
Lutz, instead of charging the intent to cause and procure the 
miscarriage and abortion of the child. But it is a misconcep- 
tion of the learned counsel that no abortion can be predicated 
of the act of untimely birth by foul means. Miscarriage, both 
by law and philology, means the bringing forth the foetus 
before it is perfectly formed and capable of living; and is 
rightfully predicated of the woman because it refers to the 
act of premature delivery. The word ' abortion ' is synony- 
mous and equivalent to miscarriage in its primary meaning. 
It has a secondary meaning, in which it is used to denote 
the offspring. But it was not used in that sense here, and 
ought not to have been. It is a flagrant crime at common 
law, to attempt to procure the miscarriage or abortion of the 
woman, because it interferes with, and violates the mysteries 
of nature in that process by which the human race is 
propagated and continued. It is a crime against nature 
which obstructs the fountain of life, and therefore it is 
punished." 
In Pennsylvania, it was decided, that where the quickness 
of the woman is alleged in some counts of an indictment, 
at common law, but is omitted in others ; but it is alleged 
in all of them that the woman is big and pregnant with 
child, and there is a general verdict of guilty, - there is no 
error in the record.1 
Where the language of a statute is general, " to procure 
the miscarriage of any woman," it is immaterial whether 
the woman was or was not pregnant at the time.2 It is 
therefore unnecessary to allege in an indictment that the 
woman was " then and there pregnant with child." The 
earlier English statutes3 made an important distinction be- 
tween the case where the woman was quick with child, and 
1 Mills v. Commonwealth, 13 Penn. State Rep. 634 (1850). 
2 Regina v. Goodhall, 1 Denison C. C. 187, same case as Regina v. Good- 
child, 2 C. & K. 293 (1846). 
3 43 Geo. III. ch. 58, and 9 Geo. IV. ch. 31, § 14. Ante, pp. 164, 166. INDICTMENT. 
183 
where she was not, or was not proved to be, quick with child ; 
and so clearly showed, that, to constitute an offence within 
those acts-, the woman must have been pregnant at the time.1 
If there is any doubt as to the drug administered, charge 
it, in different ways, in several counts, and add a count alleg- 
ing it to be " a certain noxious thing to the jurors aforesaid 
unknown." 2 
It is a principle in the law of criminal pleading, that, when 
a statute makes two or more distinct acts, connected with 
the same transaction, indictable, each one of which may be 
considered as representing a stage in the same offence, those 
which are actually done in the course and progress of its 
commission may be coupled in one count. On this princi- 
ple, an indictment, on a statute which inhibits the use of 
" any means whatever," which charges one of the defend- 
ants with using instruments, and the same defendant, with 
other defendants, with administering drugs to procure a 
miscarriage, and that by both of said means the woman 
died, is not bad for duplicity; and proof of the use of 
either one of the means alleged is sufficient to warrant a 
conviction.3 
A statute prohibits the use of " any means whatever " to 
procure miscarriage. It also provides, that if the woman 
shall die in consequence of the doing of any of the acts pro- 
hibited, which are done to procure and cause her miscarriage, 
the punishment to be inflicted upon the offender shall, to a 
certain specified extent, be increased and aggravated. An 
indictment which avers that the defendant, by one or more 
of the means described in the statute, with the intent to 
procure her miscarriage, killed the woman, is only alleging 
in another form of words, that she died in consequence 
thereof, and does not charge the crime of manslaughter.4 
1 Rex v. Scudder, 1 Moody C. C. 216, and 3 C. & P. 605 (1829). 
2 Archbold Crim. Pl. (London ed. 1853), 518. 
3 Commonwealth v. Brown, 14 Gray, 419 (1860). 
4 Commonwealth v. Brown, 14 Gray, 419 (1860). 184 
CRIMINAL ABORTION. 
An indictment which charges the use of instruments, the 
administering of drugs, and the thrusting the hand into the 
womb after the coming forth of the child, and the death of 
the woman in consequence of all the means so used, the 
averment of violence by the hand of the defendant at that 
period, constitutes no part of the description of the acts pro- 
hibited by the statute, and is therefore an immaterial and 
superfluous statement, and may well be rejected as surplus- 
age.1 
In New York, by statute, Laws of 1845, ch. 260, § 2, it is 
a misdemeanor to administer drugs, etc.', to any pregnant 
woman with intent to procure a miscarriage; and by statute, 
Laws of 1846, ch. 22, § 1, it is manslaughter (a felony) to 
use the same means, with intent to destroy the child, in case 
the death of the child is thereby produced. An indictment 
charged all the facts necessary to constitute the crime of 
manslaughter, except the intent with which the acts were 
done; and, in conclusion, alleged that the accused " did 
feloniously and wilfully kill and slay " the child. The in- 
tent averred was an intent to produce a miscarriage. It was 
decided, on error, that the indictment was fatally defective 
for the felony, but [sufficient] to sustain a conviction for the 
misdemeanor.2 
In Indiana, the language of the statute is, " Every 
person who shall wilfully administer to any pregnant wo- 
man any medicine, drug, substance, or thing whatever, or 
employ any instrument, etc., with intent to procure the 
miscarriage of any woman," etc. An indictment charged 
that the defendant at a certain time and place " did feloni- 
ously, wilfully, and unlawfully administer to one L. H., then 
and there being pregnant with a child, a large quantity of 
medicine, with intent thereby feloniously, etc., to procure 
the miscarriage of said L. H., the administering said medi- 
1 Commonwealth v. Brown, 14 Gray, 419 (1860). 
2 Lohman v. The People, 1 Comstock, 379 (1848), affirming, s.c. 2 Bar- 
bour, 216; followed in People v. Stockham, 1 Parker, 424 (1853). INDICTMENT. 
185 
cine to said L. H. not then and there being necessary to 
preserve the life of said L. H., contrary to the statute," etc. 
The objection to the indictment was, that it neither named 
the medicine administered, nor alleged that it was noxious. 
Blackford J.: " This statute, so far as the present case is 
concerned, is similar to the second section of the statute, 
43 Geo. III. ch. 58; and it has been held, that, on the trial 
of an indictment on that section, the name of the medicine 
administered need not be proved; that the question is, 
whether the prisoner administered any matter or thing to 
the woman with intent to procure abortion.1 If the name of 
the medicine need not be proved, there seems to be no good 
reason for naming it in the indictment. It is also decided, 
in the case just referred to, that the indictment need not 
describe the medicine as noxious." 2 
In Massachusetts, the statute 1845, ch. 27, enacts, that 
" Whoever, maliciously, or without lawful justification, 
with intent to cause and procure the miscarriage of a woman 
then pregnant with child, shall administer to her, prescribe 
for her, or advise or direct her to take or swallow, any poison, 
drug, medicine, or noxious thing, or shall cause or procure 
her with like intent, to take or swallow any poison, drug, 
medicine, or noxious thing; and whoever maliciously, and 
without lawful justification, shall use any instrument or 
means whatever with the like intent, and every person with 
the like intent, knowingly aiding and assisting such offender 
or offenders, shall be deemed guilty of felony, if the woman 
die in consequence thereof, and shall be imprisoned not more 
than twenty years, nor less than five years, in the State 
prison; and if the woman doth not die in consequence 
thereof, such offender shall be guilty of a misdemeanor, and 
shall be punished by imprisonment not exceeding seven 
years, nor less than one year, in the State prison or house 
of correction or common jail, and by fine not exceeding 
two thousand dollars." 
1 Rex v. Phillips, 3 Campb. 73 (1811). 
2 The State v. Vawter, 7 Blackford, 592 (1845). 186 
CRIMINAL ABORTION. 
Aii indictment on this statute need not allege that the 
child with which the woman was pregnant was alive, or 
that she was quick with child ; nor whether she died or not 
in consequence of the operation.1 Nor is it necessary to 
prove that she was quick with child. The statute was in- 
tended to supply the supposed defects of the common law, 
and applies to all cases of pregnancy.2 The indictment in 
Commonwealth v. Wood? which was drawn on this statute, 
averred that the defendant at a certain time and place, 
" maliciously and without lawful justification, did force and 
thrust a certain metallic instrument, which the said Wood 
then and there had and held in his hand, into the womb and 
body of a certain woman by the name of Sarah Chaffee, the 
said Sarah being then and there pregnant with child, with 
the wicked and unlawful intent of the said Wood then and 
there thereby to cause and procure the said Sarah to mis- 
carry and prematurely to bring forth the said child with 
which she was then and there pregnant as aforesaid and 
the said Sarah at said place and time, by means of the said 
forcing and thrusting of said instrument into the womb and 
body of the said Sarah in manner aforesaid, did bring forth 
said child, of which she was so pregnant, dead ; against the 
peace," etc. This count was held not to be open to objec- 
tion, as not alleging that the defendant used the instrument, 
nor who the woman was nor what was her name, nor that 
she brought forth the child prematurely, nor brought it 
forth dead in consequence of what the defendant had done. 
The General Statutes of Massachusetts, ch. 165, § 9, 
enact: - 
" Whoever, with intent to procure miscarriage of any 
woman, unlawfully administers to her, or advises or pre- 
scribes for her, or causes to be taken by her, any poison, 
drug, medicine, or other noxious thing, or unlawfully uses 
any instrument or other means whatever with the like intent, 
1 Larned v. Commonwealth, 12 Met. 241 (1847). 
2 Commonwealth v. Wood, 11 Gray, 86 (1858). 
8 11 Gray, 86 (1858). 187 
INDICTMENT. 
or with like intent aids or assists therein, shall, if the 
woman dies in consequence thereof, be imprisoned in the 
State prison not exceeding twenty, nor less than five years, 
and if the woman does not die in consequence thereof, shall 
be punished by imprisonment in the State prison not exceed- 
ing seven years, nor less than one year, and by fine not 
exceeding two thousand dollars." 
In Commonwealth v. Sholes? an indictment which was 
drawn under this statute alleged that the defendant, at a 
certain time and place, " unlawfully did use a certain instru- 
ment," in a manner which was particularly described, in 
and upon a certain woman who was pregnant, " with intent 
then and thereby to cause and procure the miscarriage of 
said woman." It was held, that the indictment need not 
allege that the act was done " maliciously and without law- 
ful justification: " it is sufficient to allege that it was 
unlawfully done, with intent to cause and procure the mis- 
carriage.2 Gray J.: " An objection taken to the indict- 
ment is, that the defendant is not alleged to have committed 
the act therein described ' maliciously and without lawful 
justification.' But we are of opinion that no such allega- 
tion was necessary. The indictment following the words of 
the Gen. Sts. ch. 165, § 9, on which it is based, alleges that 
1 13 Allen, 554 (1866). 
2 The defendant's counsel argued thus : - 
I. Maliciously. The indictment charges, that the defendant "unlawfully " 
did, etc. All his acts may have been " unlawful," and yet no crime have 
been committed. "A mere guilty intention is not sufficient to constitute 
a crime. There must be an intent coupled with an overt act tending to 
the perpetration of the crime." Pollock C. B., in Regina v. Isaacs, Leigh 
& Cave C. C. 224. Legal malice is defined in Commonwealth v. York, 9 
Met. 105, as "a wrongful act done intentionally, without just cause or 
excuse." The word " unlawfully " does not embrace all this. It has no 
technical meaning; and, although it is in the statute on which this indict- 
ment was founded, and the omission of it would vitiate the indictment, 
still this is not one of the class of cases in which, in describing an 
offence, it is sufficient to pursue the very words of the statute. Hawkins 
P.C. bk. 2, ch. 25, § 111. The word " maliciously " imports a criminal 
motive, intent, or purpose. Commonwealth v. Walden, 3 Cush. 558. 
II. Without lawful justification. Where the potion is given, or other means 188 
CRIMINAL ABORTION. 
the defendant did the act described, 4 unlawfully,' and 
4 with intent to cause and procure the miscarriage of the 
said woman,' and sufficiently sets forth a criminal act 
and a criminal intent. The word 'unlawfully' negatives 
and precludes any inference or possibility that the act was 
done by a surgeon for the purpose of saving the life 
of the woman, or under any other circumstances which 
would furnish a lawful justification. Any unlawful use of 
an instrument, with intent to procure miscarriage, is made 
criminal by the statute. The learned counsel for the de- 
fendant admit, that, if the word 4 feloniously ' had been 
inserted in the indictment, their objection could not be sup- 
ported ; and the Gen. Sts. ch. 168, § 2, provide that4 it shall 
not be necessary to allege in any indictment or complaint 
that the offence charged is a felony, or felonious, or done 
feloniously; nor shall any indictment or complaint be 
quashed or deemed invalid by reason of the omission of the 
words 4 felony,' 4 felonious,' or 4 feloniously.' " 1 
Indictment for administering a certain noxious thing with intent to 
procure miscarriage. - Gen. Sts. of Mass. ch. 165, § 9. 
The jurors, etc., upon their oath present, that C. D. late 
of B. in the county of S. gentleman, on the first day of 
June in the year of our Lord , at B. aforesaid in the 
county aforesaid, feloniously and unlawfully did administer 
to a certain woman whose name is E. F., a large quantity, 
of causing abortion are used, by a surgeon, for the purpose of saving the life 
of a woman, the case is free from malice, and has a lawful justification. 
Report of the Mass. Crim. Law Commissioners in 1844, title " Abortion." 
I. note a. The operative words of the English statute, 7 Will. IV. and 1 
Viet. ch. 85, § 6, are like those of the General Statutes. And all the prece- 
dents charge that the defendant "feloniously and unlawfully," did, etc. Arch- 
bold Crim. Pl. 14th London ed. p. 551, and 4th Am. ed. p. 414. Archbold's 
Consolidated Statutes, p. 115. Precedent in Appendix to 6 Cox C. C. p. 
xeix. If the word "feloniously" had been inserted in this indictment, the 
objection, that the crime should have been alleged to have been committed 
"maliciously and without justification," could not be supported. That 
word would sufficiently show the intent with which the act was committed. 
Denman, arguendo in The King v. Towle, 2 Marshall, 468. 
1 Commonwealth v. Jackson, 15 Gray, 187. INDICTMENT. 
189 
to wit, two ounces of a certain noxious thing, called savin, 
with intent thereby then and there to cause and procure the 
miscarriage of the said E. F. [If the woman die in conse- 
quence, proceed as follows : -] 1 And the jurors aforesaid, 
upon their oath aforesaid, do further present, that the said 
E. F., afterwards, to wit, on the first day of July in the year 
of our Lord , at B. aforesaid, in the county aforesaid, by 
means of the noxious thing aforesaid, so as aforesaid, in 
manner and form aforesaid administered by the said C. D., 
and taken and swallowed by the said E. F., then and there 
died; against the peace etc. 
Indictment for using instruments with intent to procure miscarriage. 
- Gen. Sts. of Mass. ch. 165, § 9. 
The jurors etc., upon their oath present, that C. D. late 
of B. in the county of S. physician, on the first day of 
June in the year of our Lord , at B. aforesaid in the 
county aforesaid, feloniously and unlawfully did use a cer- 
tain instrument, the name of which instrument is to the 
jurors aforesaid unknown, which instrument the said 0. D. 
in his right hand then and there had and held, by then and 
there forcing and thrusting the instrument aforesaid, into the 
body and womb of a certain woman whose name is E. F., 
with intent thereby then and there to cause and procure the 
miscarriage of the said E. F.; against the peace of said 
Commonwealth and contrary to the form of the statute in 
such case made and provided. 
The General Statutes of Massachusetts, ch. 165, § 10, 
enact: - 
" Whoever knowingly advertises, prints, publishes, dis- 
tributes, or circulates, or knowingly causes to be advertised, 
printed, published, distributed, or circulated, any pamphlet, 
printed paper, book, newspaper, notice, advertisement, or 
reference, containing words or language giving or conveying 
any notice, hint or reference, to any person, or to the name of 
any person, real or fictitious, from whom, or to any place, 
1 But it is unnecessary. Commonwealth v. Wood, 11 Gray, 86 (1858). 190 
CRIMINAL ABORTION. 
house, shop, or office, where, any poison, drug, mixture, prep- 
aration, medicine, or noxious thing, or any instrument or 
means whatever, or any advice, direction, information, or 
knowledge, may be obtained for the purpose of causing or pro- 
curing the miscarriage of any woman pregnant with child, 
shall be punished by imprisonment in the State prison or 
jail not exceeding three years, or by fine not exceeding one 
thousand dollars." 
Indictment for circulating an advertisement relative to procuring 
miscarriage. - Gen. Sts. of Mass. ch. 165, § 10.1 
The jurors etc., upon their oath present, that C. D. late 
of B. in the county of S., physician, on the first day of June 
in the year of our Lord , at B. aforesaid, in the county 
aforesaid, feloniously, unlawfully and knowingly did publish, 
distribute, and circulate [or, unlawfully and knowingly did 
cause to be published, distributed, and circulated] a certain 
advertisement, containing words and language giving and 
conveying notice, hint, and reference to a certain place where 
a medicine, advice, direction, knowledge and information 
may be obtained, for the purpose of causing and procuring 
the miscarriage of any woman pregnant with child, which 
advertisement, published, circulated, and distributed as 
aforesaid, is of the tenor following, that is to say [here set 
out an exact copy of the advertisement] ; against the peace of 
said Commonwealth, and contrary to the form of the statute 
in such case made and provided. 
In Maine, it is enacted, that " Every person, who shall use 
and employ any instrument with intent to destroy the child 
of which a woman may be pregnant, whether such child be 
quick or not, and shall thereupon destroy such child be- 
fore its birth, shall be punished by imprisonment in the State 
prison, not more than five years, or by fine," etc. Rev. 
Sts. ch. 160, § 13. " The offence described in this section," 
1 In an indictment under this statute, it is advisable to insert different 
counts, charging the offence in different ways. INDICTMENT. 
191 
said Tenney J.,1 " is not committed unless the act be done 
with an intent to destroy such child as is there referred to, 
and it be destroyed by the means used for the purpose. It 
is required by established rules of criminal pleading, that 
the intention, which prompted the act that caused the 
destruction of the child, as well as the act itself, and the 
death of the child thereby produced, should be fully set out 
in the indictment, in order to constitute a crime punishable 
by imprisonment in the State prison, under the statute. 
The allegation, that a certain instrument was used upon a 
woman pregnant, and that the use of that instrument caused 
her to bring forth the child dead, is not a charge, that the 
one using the instrument intended to destroy the child. 
The inference of such design, from the use of the instru- 
ment, and its effect, is by no means necessary. The third 
count in the indictment alleges the act to have been done 
with the intent to cause and procure the deceased to mis- 
carry and bring forth the child of which she was then preg- 
nant and quick, and that by means of that act, she brought 
forth the child dead. But there is no allegation, that the 
act was done with the intention that she should bring forth 
her child dead, or with an intent to destroy it, unless the 
words miscarry, and bring1 forth the child, necessarily in- 
clude its destruction. The expulsion of the ovum or embryo, 
within the first six weeks after conception, is technically 
miscarriage; between that time and the expiration of the 
sixth month, when the child may by possibility live, it is 
termed abortion; if the delivery be soon after the sixth 
month, it is termed premature labor. But the criminal 
attempt to destroy the foetus, at any time before birth, is 
termed in law a miscarriage, varying, as we have seen, in 
degree of offence and punishment, whether the attempt 
were before or after the child had quickened.2 Other writers 
on the subject give a similar definition of the term ' mis- 
1 Smith v. The State, 32 Maine, 48, 58 (1851). 
2 Chitty's Med. Jurisp. 410. CRIMINAL ABORTION. 
192 
carriage.'1 The converse of this last proposition cannot be 
true, as there are undoubtedly many miscarriages, involving 
no moral wrong. If the term miscarriage were to be under- 
stood in the indictment, in its most limited sense, it cannot 
be denied, that, in effect, it must be identical with the de- 
struction of the foetus. But this indictment itself has given 
to the word ' miscarriage ' the more general signification. 
It charges, that the miscarriage was of the woman who was 
pregnant, and ' quick with child.' The term ' quick with 
child ' is a term known to the law, and courts are presumed 
to understand its meaning. A woman cannot be 'quick 
with child ' until a period much later than six weeks from 
the commencement of the term of gestation. The more 
general meaning of the word miscarriage must therefore be 
applied. The indictment charges no time, after the quick- 
ening, when the miscarriage took place. It may have been 
at any period when the birth would have been premature. 
The language of the indictment, when taken together, con- 
strued in its ordinary or in its technical and legal signifi- 
cation,2 does not forbid this. And labor is premature, if it 
take place at any period before the completion of the natural 
time. It is admitted by Dr. Paris, a writer of high repute 
on Medical Jurisprudence, from the number of established 
cases, it is possible that the foetus may survive, and be 
reared to maturity, though born at very early periods. 
Many ancient instances are stated of births even at four 
months and a half, with continued life even till the age of 
twenty-four years. And the Parliament of Paris decreed, 
that an infant at five months possessed the capability of 
1 Hoblyn's Dictionary of Terms used in Medicine and other Collateral 
Sciences. 
2 It is a clear principle, that the language of an indictment must be con- 
strued by the rules of pleading, and not by the common interpretation put 
on ordinary language; for nothing indeed differs more widely in construction 
than the same matter when viewed by the rules of pleading, and when con- 
strued by the language of ordinary life. Erle J., in Regina v. Thompson, 4 
Eng. Law & Eq. Rep. 292. INDICTMENT. 
193 
living to the ordinary period of human existence; and it has 
been asserted, that a child delivered at the age only of five 
months and eight days may live; or, according to Beck and 
others, if born at six months after conception.1 Many of the 
facts upon which the opinions of writers upon medical juris- 
prudence are founded, may be erroneous, and the opinions 
incorrect. We cannot take judicial notice of either. But 
it is not too much to say, that a child may be born living, 
when its birth may be so soon after conception, that it is 
premature. The foetus may be expelled, by unlawful means, 
so soon after conception, that extra-uterine life cannot con- 
tinue for any considerable length of time, and yet after 
birth it may once exercise all the functions of a living child. 
We have found no authority that this may not be termed a 
miscarriage, if the word is not confined to its most limited 
meaning; and, if it be so, it is not perceived that it ceases 
to be correct, if the life of the child prematurely born is 
further prolonged. It is quite clear, therefore, that the 
word miscarriage in its legal acceptation, and as used in 
this indictment, does not necessarily include the destruc- 
tion of the child before its birth; and a design to cause its 
miscarriage is not the same thing as a design to destroy the 
child. The other term used in the indictment, ' to bring 
forth the said child,' does not imply even a premature birth. 
Consequently it gives no additional strength to the charge." 
1 Chitty's Med. Jurisp. 410, 411. 194 
CRIMINAL ABORTION. 
CHAPTER V. 
EVIDENCE. 
1. An Infusion or Decoction of a Shrub are ejusdem generis. The Question 
upon 43 Geo. III. ch. 58, § 2, was, whether any Matter or Thing was 
administered to procure Abortion. 
2. Noxious Thing. 
3. What is an Administering and Causing to be Taken. 
4. Procuring Drugs, etc., to cause Abortion. 
5. In General. 
1. An Infusion or Decoction of a Shrub are ejusdem generis. The 
Question upon 43 Geo. III. ch. 58, § 2, was, whether any 
Matter or Thing was administered to procure Abortion. 
An indictment upon the 43 Geo. III. ch. 58, § 2, charged 
the prisoner with having administered to a woman a decoc- 
tion of a certain shrub called savin: and it appeared upon 
the evidence, that the prisoner prepared the medicine which 
he administered, by pouring boiling water on the leaves of 
a shrub. The medical men who were examined stated, 
that such a preparation is called an infusion, and not a 
decoction (which is made by boiling the substance in the 
water) ; upon which the prisoner's counsel insisted that he 
was entitled to an acquittal, on the ground that the medicine 
was misdescribed. But Lawrence J. overruled the ob- 
jection, and said, that infusion and decoction are ejusdem 
generis, and that the variance was immaterial: that the 
question was, whether the prisoner administered any mat- 
ter or thing to the woman to procure abortion.1 
1 Rex v. Phillips, 3 Campb. 74 (1811). The State v. Vawter, 7 Black- 
ford, 592 (1845). And in Rex v. Coe, 6 C. & P. 403 (1834), where the pris- 
oner was indicted on the 9 Geo. IV. ch. 31, § 13, for administering saffron to 
a female, and his counsel was cross-examining as to her having taken something 
else before the saffron, and also as to the innoxious nature of the article, - EVIDENCE. 
195 
2. Noxious Thing. 
On an indictment for administering featherfew and other 
drugs to procure abortion, it appeared that the prisoner 
gave the woman, who was alleged to be with child by him, 
two powders, with directions to take one on each of two 
successive nights, and said that the effect would be to cause 
miscarriage. She took one of the powders, with the feather- 
few, which brought on violent sickness. The other powder 
was examined by a physician, and he could not discover 
any mineral substance in it; as far as he could judge from 
the taste, smell, and appearance, it was a mixture of savin 
and fennigreek, the latter being the larger ingredient. The 
fennigreek would scarcely produce any effect at all; savin, 
in that quantity, might produce a little disturbance in the 
stomach for the time, but would do no further injury. 
Featherfew1 is an herb very similar to camomile: it is a 
tonic in common use among the peasantry, and has nothing 
noxious in it. A mixture of the powder and decoction of 
this herb would not alter the properties of either. The 
prisoner upon two or three subsequent occasions had brought 
Vaughan B. said: "Does that signify? It is with the intention, that the 
jury have to do; and if the prisoner administered a bit of bread merely, with 
intent to procure abortion, it is sufficient." It is not stated upon which branch 
of the section this indictment was framed; if upon the latter, which used 
the words ' any medicine or other thing,' perhaps the dictum was right. 
'But it should seem that neither this dictum nor that of Lawrence J. in 
Rex v. Phillips, apply to the new statute, 24 & 25 Viet. ch. 100, § 58, which 
uses the words ' any poison or other noxious thing,' only in the case of ad- 
ministering or causing to be taken; and although a doubt has been sug- 
gested in a note to Rex v. Coe, as to whether the words ' other means ' might 
not be applied to other substances than such as are poisonous or noxious, it 
should seem that the words ' other means ' cannot be so applied in the new 
act; first, because they are in an entirely distinct sentence; secondly, be- 
cause they are governed by the word ' use,' and not by ' administer.' " Note 
by Mr. Greaves, Russell on Crimes, I. 901. 
1 The proper name of this is feverfew, matricaria, so called from its sup- 
posed use in disorders of the womb. Edinb. Med. & Phys. Diet. 196 
CRIMINAL ABORTION. 
the woman other medicines to take for the same purpose, 
some of which she had taken, but not the rest. Wilde 
C.J. held, that the evidence was not sufficient to prove that 
the drugs administered came within tire meaning of the 
words " poison or other noxious thing."1 
As the prisoner administered the drugs with intent to 
procure a miscarriage, and as savin is unquestionably in its 
nature a noxious drug, the decision in this case seems open 
to great doubt. It is submitted that the true meaning of 
the words "poison or other noxious thing" is such things 
as in their nature are poisonous or noxious; and that it is 
a misapprehension to suppose that the statute requires such 
a quantity of a poison or other noxious thing to be ad- 
ministered as shall be noxious. If a person administers 
any quantity of a poison, however small, it has never yet 
been doubted, that, if it were done with intent to murder, 
the offence of administering poison with intent to murder 
was complete ; and Regina v. Cluderay? which was decided 
after this case, shows that if poison be administered in such 
a way that it cannot injure, the offence is nevertheless com- 
plete ; and Wilde C.J. there said, " The act of administer- 
ing poison with intent to kill, is proved. The effect of that 
act is beside the question." It is submitted, therefore, that, if 
there be an intent to procure abortion, it is quite imma- 
terial how small the quantity be of the poison or other 
noxious thing that is administered.3 
It was held, on the 43 Geo. III. ch. 58, § 2, that, unless 
the woman were with child, the offence was not committed, 
although the prisoner thought she was with child, and 
administered the drug with intent to destroy the child.4 
But the new act, 24 & 25 Viet. ch. 100, makes this im- 
material, except in cases where the mother is the offender. 
1 Regina v. Perry, 2 Cox C. C. 223 (1847). 
2 1 Denison C. C. 514 (1849). 
3 Note by Mr. Greaves, Russell on Crimes, I. 902. 
4 Rex v. Scudder, 1 Moody C. C. 216, and 3 C. & P. 605 (1828). EVIDENCE. 
197 
3. What is an Administering and Causing to be Taken. 
To constitute an administering, or causing to be taken, 
it is not necessary that there should be a delivery by the 
hand. If a person mix poison with coffee, and tell another 
that the coffee is for her, and she take it in consequence, it 
seems that this is an administering; and, at all events, it is 
a causing the poison to be taken. Upon an indictment 
under the 9 Geo. IV. ch. 31, § 11, some counts of which 
charged that the prisoner " administered," and others, that 
she " caused to be taken," poison, with intent to murder, etc., 
it appeared that a coffee-pot, which was proved to contain 
arsenic mixed with coffee, was standing by the side of the 
grate: the prosecutrix was going to pour out some tea, but 
on the prisoner telling her that the coffee was for her, she 
poured out some for herself, and drank it, and in about five 
minutes became very ill. It was objected, that the mere 
mixing of poison, and leaving it in some place for the per- 
son to take it, was not sufficient to constitute an administer- 
ing ; and Rex v. Cadman1 was relied on, as showing that 
the delivery of the poison by the hand of the prisoner is the 
main ingredient of the offence; that there was no count 
which did not require an agency on the part of the prisoner. 
A " causing to be taken " included an act, and so did an 
" attempt to administer." Park J. (in summing up) : 
" There has been much argument whether, in this case, 
there has been an administering of this poison. It has 
been contended that there must be a manual delivery of the 
poison, and the law, as stated in Kyan & Moody's Reports, 
goes that way ; but as my notes differ from that report, 
and also from my own feelings, I am inclined to think 
that some error has crept into that report. It is there 
stated that the judges thought swallowing of the poison not 
essential; but my recollection is, that the judges held just 
1 1 Moody C. C. 114. See the next page. 198 
CRIMINAL ABORTION. 
the contrary. I am inclined to hold that there was an 
administering here ; and I am of opinion that, to constitute 
an administering, it is not necessary that there should be a 
delivery by the hand. With respect to the question, whether 
the prisoner ' did cause the poison to be taken' by Mrs. S., 
it has been proved that she said that she put the coffee-pot 
down for Mrs. S., and that upon this Mrs. S. drank some of 
the coffee; and if you believe the evidence of Mrs. S., I am 
of opinion that this is a 4 causing to be taken,' within the 
Act of Parliament."1 
To constitute an administering, or causing to be taken, 
a mere delivery to the woman is not sufficient: the poison 
must be taken into the mouth, and, it seems, some of it 
must have been actually swallowed. The prisoner was in- 
dicted under the 43 Geo. III. ch. 58, for administering white 
arsenic and sulphate of copper, with intent to murder. It 
appeared that the prisoner pulled a white-bread cake out of 
his pocket, and pinched off a bit from the outside of it, and 
gave it the prosecutrix to eat, and she took it and put it 
into her mouth, but spit it out again, and did not swallow 
any part of it; it was proved that the cake contained arsenic 
and sulphate of copper: it was objected that it ought to be 
proved that the poison was swallowed by, or taken into the 
stomach of, the person intended to be poisoned ; and upon a 
case reserved, the judges seemed to think swallowing not 
essential; but they were of opinion that a mere delivery to 
the woman did not constitute an administering; and that, 
upon a statute so highly penal, they ought not to go beyond 
what was meant by the word 44 administering;" and a pardon 
was therefore recommended.2 
1 Rex v. Harley, 4 C. & P. 369 (1830). 
2 Rex v. Cadman, 1 Moody C. C. 114 (1825). But in Carrington's 
Supplement, 237, where the same case is reported, it is stated, that the judges 
held, that it was not an administering, unless the poison was taken into the 
stomach; and in Rex v. Harley, 4 C. & P. 371 (1830), Park J. in the course 
of the trial, said, that his note of this case was, " that the judges were unani- 
mously of opinion that the poison had not been administered, because it had EVIDENCE. 
199 
In Regina v. Wilson} the prisoner was convicted on an in- 
dictment for " unlawfully administering to, and causing to be 
taken " by, one Emma Cheney certain poison (in the second 
count stated to be a certain noxious thing), with intent to 
procure her miscarriage. It appeared that she, being and 
believing herself to be pregnant, applied to the prisoner to 
get her something to procure her miscarriage, and that the 
prisoner accordingly purchased some preparation of mercury, 
which he gave to her, directing her to take one-half of the 
quantity in gin. Cheney accordingly procured the gin, and, in 
the absence of the prisoner, took the dose, which produced a 
miscarriage. The jury found these facts, and that the mer- 
cury was both given by the prisoner to Cheney and taken 
by her with intent to procure the miscarriage ; and, upon a 
case reserved, it was held, that the prisoner was properly 
convicted, as there was a " causing to be taken " within the 
meaning of the statute. Cheney, though culpable, was not 
guilty of felony, and therefore not guilty of the felony 
created by the statute; and the prisoner was therefore the 
only person coming within the words as principal ; and this 
distinguishes the case from Regina v. Williams.2 So where, 
on a similar indictment, it appeared that the prisoner had 
talked with L. Chuter about her being with child, and 
brought her a bunch of savin, and told her, if she put it in 
some gin, and took from half a glass to a glass two or three 
times a week, it would destroy her child ; and she took the 
savin and gin three or four times accordingly; and the 
prisoner afterwards induced Chuter to get some blue pills 
from a chemist, which the prisoner made up with some 
not been taken into the stomach, but only into the mouth; " and this certainly 
is confirmed by the fact that a pardon was recommended ; which would be 
correct, according to this view of the decision; but incorrect, if it was 
sufficient to prove, that the poison was taken into the mouth, as that was 
proved to have been done. Note by Mr. Greaves, Russell on Crimes, I. 
988. 
1 Dearsly & Bell C. C. 127; 7 Cox C. C. 190; 2 Jur. n.s. 1146 (1856). 
2 1 Denison C. C. 39 (1844). 200 
CRIMINAL ABORTION. 
flour and tea into pills, of which Chuter took twenty or 
thirty, and was very ill from the time of taking the pills till 
she was confined, - it was held, upon a case reserved, that 
there was no distinction between this and the preceding 
case, Regina v. Wilson.1 It is not stated expressly whether 
the savin and pills were taken in the absence of the prisoner ; 
but the inference from the facts stated is that they were.2 
It is to be observed, that, under the statute 24 & 25 Viet, 
ch. 100, in such cases as the two last, the woman being 
with child would be a principal, and the man an accessory 
before the fact; but where the woman is not with child, 
these cases will still apply; for then the woman's criminality 
will be exactly the same as it was under the former act.3 
In New Jersey, the language of a statute approved in 1849 
is, " If any person or persons, maliciously or without lawful 
justification, with intent to cause and procure the miscar- 
riage of a woman then pregnant with child, shall administer 
to her, prescribe for her, or advise or direct her to take 
or swallow any poison, drug, medicine, or noxious thing," 
such offender shall, etc. It is a crime within the meaning 
of this statute to advise, without lawful justification, a 
pregnant woman to take some noxious thing with intent to 
cause her miscarriage. The actual taking or swallowing of 
the drug constitutes no element of the crime. The defend- 
ant's guilt is complete by giving the advice with the intent 
specified in the statute, and it is immaterial whether the 
advice is followed or not. Advising to take the potion is 
the overt act made criminal by the statute. " The design 
of the statute," said the Chief Justice, in delivering the 
opinion of the court, " was not to prevent the procuring of 
abortions so much as to guard the health and life of the 
mother against the consequences of such attempts. The 
1 Regina v. Farrow, Dearsly & Bell C. C. 164; 3 Jur. n.s. 167; 28 L. 
T. Rep. 311 (1857). 
2 See also Regina v. Gaylor, Dearsly & Bell C. C. 127; 7 Cox C. C. 
(1856), ante, p. 173. 3 Russell on Crimes, I. 902. EVIDENCE. 
201 
guilt of the defendant is not graduated by the success or 
failure of the attempt. It is immaterial whether the foetus 
is destroyed, or whether it has quickened or not. In either 
case the degree of the defendant's guilt is the same." 1 
4. Procuring Drugs, etc., to cause Abortion. 
In a very recent case it was decided, that, in order to 
constitute the offence of supplying a noxious substance, with 
the intention that it shall be employed in procuring abortion 
within the meaning of the fifty-ninth section 24 & 25 Viet, 
ch. 100, it is not necessary that the intention of employing 
it should exist in the mind of any other person than the 
person supplying it.2 Upon the trial, it was contended by 
the counsel for the defendant, that there was no case against 
him, because, among other objections, it was necessary that 
the defendant should know that the poison or noxious thing 
is intended to be unlawfully used or employed with intent 
to procure the miscarriage of any woman; whereas it was 
not intended, except by the defendant himself, to be so used 
at all. The jury found, that the woman did not intend to 
take the substance in question, nor did any other person, 
except only the defendant himself, intend that she should 
take it. The jury found a verdict of guilty, and the pre- 
siding judge reserved the case. Erle C.J.: " The ques- 
tion asked of us is, whether the intention of any other 
person than the defendant is necessary to the commission 
of the offence made punishable under this statute. We are 
all of opinion, that that question should be answered in the 
negative. The statute is directed against the supplying of 
any substance, with the intention that it shall be employed 
in procuring abortion. The prisoner supplied the substance, 
and intended that it should be employed to procure abor- 
1 The State v. Murphy, 3 Dutcher, 112 (1858). 
2 Regina v. Hillman, Leigh & Cave C. C. 343; 9 Cox C. C. 386; 9 L. T. 
Rep. n.8. 518 (1863). 202 
CRIMINAL ABORTION. 
tion. He knew of his own intention that it should be so 
employed ; and is, therefore, within the words of the statute, 
as we construe them. He is also, in our opinion, within 
the mischief of the statute, and ought to be convicted. 
That is the question for us, and that is our answer." 
Upon the trial of an indictment under the fifty-ninth sec- 
tion of the statute 24 & 25 Viet. ch. 100, it is necessary to 
prove that the thing supplied is noxious. The supplying an 
innoxious drug, whatever may be the intent of the person 
supplying it, is not an offence within the meaning of the 
statute.1 Pollock C.B.: " A mere guilty intention is not 
sufficient to constitute a crime. There must be an intent, 
coupled with an overt act tending to the perpetration of the 
crime.2 The administration of pure water is no offence 
within the section under which this woman was indicted." 
In this case, the surgeon testified, that a thing, otherwise 
of a perfectly harmless character, may be noxious by ex- 
citing the imagination of the woman, and thereby producing 
abortion. But the case clearly decides that it is not suffi- 
cient that the defendant merely imagined that the thing 
administered would have the effect intended; but it must 
appear that the drug administered was either a " poison " 
or " noxious thing." 
5. In General. 
On an indictment for administering savin with intent to 
procure abortion, the administration of savin on one day 
was proved, and it was proposed on the part of the prose- 
cution to prove the administration of similar drugs on many 
subsequent days, for the purpose of showing the intent, and 
also as part of the same felony ; and it was urged that the 
1 Regina v. Isaacs, Leigh & Cave C. C. 220 ; 9 Cox C. C. 228; 9 Jur. 
n.s. 212; 7 L. T. Rep. n.s. 365 (1862). 
2 The law will not take notice of an intent without an act. Regina v. 
Eagleton, Dearsly C. C. 538. Regina v. Roberts, Dearsly C. C. 551, per 
Parke B. EVIDENCE. 
203 
substance of the felony was. the administration of drugs for 
the purpose of procuring abortion, and if that were done by 
homoeopathic doses, taken for a long period, all would form 
part of one felony; but Cresswell J. held, that other 
matters of the same description might be proved for the 
purpose of showing the intent, but that the administration 
of other savin on other days could not be given in evidence 
as part of the offence.1 On the trial of an indictment for 
administering featherfew and other drugs to procure abor- 
tion, it appeared that the prisoner gave the woman, who was 
alleged to be with child by him, two powders, with directions 
to take one on each of two successive nights, and said that 
the effect would be to cause miscarriage. The prisoner, upon 
two or three subsequent occasions, had brought the woman 
other medicines to take for the same purpose, some of 
which she had taken, but not the rest. Wilde C.J. held, 
that the other transactions were admissible as showing the 
intent with which the particular drugs referred to in the 
indictment were administered.2 Sed quaere. " The law of 
England," said Lord Campbell C.J. " does not allow one 
crime to be proved in order to raise a probability that 
another crime has been committed by the perpetrator of the 
first." 3 
Where the evidence showed that ergot was administered 
to the deceased shortly before her death, it was held, that it 
was competent for the prosecution to prove that it was the 
popular opinion that ergot would produce abortion. " The 
fact proved might show a motive for administering it, and 
the intention with which it was done."4 
In Massachusetts, the St. 1845, ch. 27, enacts, that " Who- 
ever maliciously or without lawful justification, with intent 
to cause and procure the miscarriage of a woman then preg- 
J Regina v. Calder, 1 Cox C. C. 348 (1844). 
2 Regina v. Perry, 2 Cox C. C. 223 (1847). The prisoner was acquitted. 
3 Regina v. Oddy, as reported in 4 Eng. Law & Eq. Rep. 574. 
4 Carter v. The State, 2 Carter, 617 (1851). 204 
CRIMINAL ABORTION. 
nant with child, shall," etc. Under this statute, the act 
would seem to be malicious if it had no lawful justification. 
But it would clearly be malicious if done from any wicked or 
base motive; and the consent of the woman, or the desire 
to screen her from exposure or disgrace, is no justification.1 
On an indictment for procuring a miscarriage, the judge 
instructed the jury, that the woman was not technically an 
accomplice, and therefore, strictly speaking, the rule in 
relation to the corroboration of an accomplice did not apply; 
but, inasmuch as she in a moral point of view was im- 
plicated, it would be proper for the jury to consider that 
circumstance in its bearing upon her credibility ; that it 
was also their duty to consider all the evidence in the case 
tending to contradict her, as affecting the credit they would 
give to her, her credibility being entirely a question for 
them; and declined to instruct them, that, if she swore 
falsely upon any material point in the case, it so far dis- 
credited her whole testimony that they should not place 
any reliance upon it. Held, that the defendant had no 
ground of exception.2 
On an indictment for procuring a miscarriage, the Com- 
monwealth may introduce evidence of the health and spirits 
of the patient, and of stains and marks upon her bedclothes, 
a month afterwards.3 
On an indictment for procuring a miscarriage, after evi- 
dence introduced by the defendant that the patient was preg- 
nant some months after the operation is alleged to have been 
performed, the Commonwealth may prove by her that she 
had sexual intercourse with the defendant between the times 
of the alleged operation and of the subsequent pregnancy.4 
On an indictment for using instruments to procure a 
miscarriage, thereby causing death, injured parts of the 
1 Commonwealth v. Wood, 11 Gray, 86 (1858). 
2 Commonwealth v. Wood, 11 Gray, 85 (1858). 
3 Commonwealth v. Wood, 11 Gray, (1858). 
4 Commonwealth v. Wood, 11 Gray, (1858). EVIDENCE. 
205 
body of the deceased woman, preserved in spirits, may be 
exhibited to the jury in connection with the testimony of 
the physician who made the post-mortem examination.1 
The fact of the secretion of a foetus about the building 
where the offence is alleged to have been committed, is ad- 
missible in evidence as tending to prove the corpus delicti.2 
On an indictment for advising and procuring one Susanna 
Guyer, a pregnant woman, to take a certain medicine, with 
intent to procure her miscarriage, the counsel for the de- 
fendant having avowed their intention to insist that one 
Hodge was the father of the child, and not the defendant, 
it was decided that it was competent for the government to 
prove by the testimony of Hodge that he had never had 
sexual intercourse with Susanna Guyer.3 " In such a case, 
the woman does not stand legally in the situation of an 
accomplice; for, although she no doubt participated in the 
moral offence imputed to the defendant, she could not have 
been indicted for that offence. The law regards her rather 
as the victim than the perpetrator of the crime." 
Certain declarations and acts are admitted as original 
evidence, being distinguished from hearsay by their con- 
nection with the principal fact under investigation. Thus, 
where a person changes his actual residence, or domicile, or 
leaves his home, or returns thither, or remains abroad, his 
declarations made at the time of the transaction, and ex- 
pressive of its character, motive, or object, are regarded as 
"verbal acts, indicating a present purpose and intention," 
and are therefore admitted in evidence, like any other 
material facts.4 Where the fact, that a person since deceased 
1 Commonwealth v. Brown, 14 Gray, 419 (1860). 
2 The State v. Howard, 32 Vermont, 405 (1850). 
3 Dunn v. The People, 2 Tiffany, 523 (1864). 
4 Greenl. Ev. I. § 108. Taylor Ev. I. § 521. Purcell Crim. Pl. & Ev. 
289. This rule was well stated by Chief Justice Hosmer : "Declarations, to 
become part of the res gestae, must have been made at the time of the act 
done, which they are supposed to characterize, and have been well calculated 
to unfold the nature and quality of the facts they were intended to explain, 
and so to harmonize with them as obviously to constitute one transaction." 
Enos v. Tuttle, 3 Connecticut, 250. 206 
CRIMINAL ABORTION. 
went to the house of the defendant for the purpose of hav- 
ing him procure an abortion upon her person, was material, 
it was held? that the declarations of such person, indicating 
her purpose and intention of going there, made at the time 
of her departure for his house, were admissible in evidence 
as part of the res gestse.1 
The acts and declarations of one of a company of con- 
spirators, in regard to the common design, are evidence 
against his fellows. Here a foundation should first be laid 
by proof, sufficient, in the opinion of the judge, to establish 
prima facie the fact of conspiracy between the parties, or, at 
least, proper to be laid before the jury, as tending to estab- 
lish such fact. The connection of the individuals in the 
unlawful enterprise being thus shown, every act and decla- 
ration of each member of the confederacy, in pursuance of 
the original concerted plan, and with reference to the com- 
mon object, is, in contemplation of law, the act and declara- 
tion of them all; and is, therefore, original evidence against 
each of them.2 
On the trial of an indictment against a physician for 
administering ergot, with intent to procure a miscarriage, 
whereby the woman died, evidence, that the defendant was 
in the habit of receiving patients at his house for medical 
treatment, and that two young women, inmates of his family, 
were in the habit of attending them under the defendant's 
direction, and of carrying them their meals, and that they 
both so attended the woman whose death was alleged in the 
1 The State v. Howard, 32 Vermont, 380 (1859). 
2 Taylor Ev. I. § 527, 3d ed. Purcell Crim. Pl. 290. Commonwealth v. 
Brown, 14 Gray, 419 (1860). In Rex v. M'Kenna, Irish Cir. Rep. 461 (1840), 
Pennefather C.J. thus stated the law: "It is necessary to prove the exist- 
ence of a conspiracy, and to connect the prisoner with it in the first instance, 
where you seek to give, in evidence against him, the declaration of a conspir- 
ator ; and, having done so, you are then at liberty to give, in evidence against 
the prisoner, acts done by any of the parties whom you have connected 
with the conspiracy; but when a party's own declarations are to be given in 
evidence, such preliminary proof is not requisite, and you may, as in other 
offence, prove the whole case against him by his own admissions." EVIDENCE. 
207 
indictment, and did her chamber-work, and under the de- 
fendant's directions administered her medicines and gave 
her food ; that they were present when the child was born, 
and told the defendant that they had got rid of her child, 
and that, after her death, the defendant directed them to 
say they gave her opium and camphor,, not opium and 
calomel, and to say nothing about the ergot; and that he 
urged them to leave the house, which they did, - is sufficient 
proof of a common purpose, to render evidence of other acts 
and declarations of the same persons, not in the defendant's 
presence; tending to show that they gave ergot to her, 
admissible against him, with instructions that it is to affect 
the defendant only, if the jury should be satisfied that the 
parties had a common purpose and design, and that the acts 
and declarations were done and made in pursuance thereof.1 
In the trial of an indictment for murder by poison, in 
which one count alleges that the deceased was pregnant, 
and was induced to take the poison by assurances of the 
defendant that it was a medicinal preparation which would 
produce a miscarriage, evidence of a conversation two or 
three years before the time of the acts charged, in which the 
defendant applied to a witness for information upon the sub- 
ject of procuring abortions, is inadmissible.2 
If a medical witness on cross-examination has identified 
certain medical advertisements as his, they may be read to 
the jury as a portion of the cross-examination, for the pur- 
pose of affecting his credit; but the newspaper in which they 
are contained cannot be laid before the jury.3 
In criminal cases, the opinions of medical men of science 
are very frequently employed as evidence. A physician 
who has not seen the patient, may, after hearing the evi- 
dence of others, be called to prove, on his oath, the general 
1 Commonwealth v. Brown, 14 Gray, 419 (1860). 
2 Commonwealth v. Hersey, 2 Allen, 173 (1861). 
3 Commonwealth v. Hersey, 2 Allen, 173 (1861). 208 
CRIMINAL ABORTION. 
effect of the disease described by them, and its probable 
consequences in the particular case. The testimony of 
medical men is constantly admitted with respect to the 
cause of disease, or of death, in order to connect them with 
particular acts, and as to the general sane or insane state of 
the mind of the patient, as collected from a number of cir- 
cumstances. Such opinions are admissible in evidence, 
although the professional witnesses found them entirely on 
the facts, circumstances, and symptoms established by 
others, and without being personally acquainted with the 
facts. Thus, in prosecutions for murder, medical men 
have been allowed to state their opinion, whether the 
wounds described by witnesses Were likely to be the cause 
of death.1 
An experienced physician, after having made a post- 
mortem examination of the body of a female, may, as an 
expert, give his opinion whether she had been pregnant, 
and describe the appearances of the body which led to that 
opinion. He may also give his opinion as to what was the 
cause of her death.2 
An exception to the rule rejecting hearsay evidence is 
allowed in the case of dying declarations. It is now settled 
law, both in England and America, that evidence of this 
description is admissible in no civil case, and, in criminal 
cases, only in the single instance of homicide, " where the 
death of the deceased is the subject of the charge, and the 
circumstances of the death are the subject of the dying 
declaration."3 Thus where a prisoner was indicted for 
administering drugs to a woman, with intent to procure 
abortion, her statements in extremis were held to be inad- 
missible.4 
1 Russell on Crimes, III. 537. 
2 The State v. Smith, 32 Maine, 370 (1851). 
3 Rex v. Mead, 2 B. & C. 608, and ID. & R. 120. Regina v. Hind, Bell 
C. C. 253. Taylor Ev. I. § 644, 3d ed. 
4 Rex v. Hutchinson, 2 B. & C. 608, note (1822), per Bayley J. APPENDIX. APPENDIX. 
1. Indictment at common law for an assault and administering, etc., 
to cause a miscarriage.1 
The jurors etc. upon their oath present, that E. F. late 
of etc., on etc. with force and arms at etc., in and upon 
one A. E. the wife of E. F. then and there being big and 
pregnant with child, did make a violent assault, and that 
the said E. F. then and on divers other days and times, 
between that day and the day of the taking of this inquisi- 
tion, with force and arms, at, etc. aforesaid, knowingly, 
unlawfully, wilfully, wickedly, maliciously and injuriously, 
did give and administer, and cause and procure to be given 
and administered to the said A. E., so being big and preg- 
nant with child as aforesaid, divers deadly, dangerous, un- 
wholesome and pernicious pills, herbs, drugs, potions and 
mixtures, with intent feloniously, wilfully, and of his the 
said E. F.'s malice aforethought, to kill and murder the 
said child, with which the said A. E. was so then big and 
pregnant as aforesaid, by reason and means whereof, not 
only the said child, whereof the said A. E. was afterwards 
delivered, and which, by the providence of God was born 
alive, became and was rendered weak, sick, diseased and 
distempered in body, but also the said A. E. as well before 
as at the time of her said delivery, and for a long time, to 
wit, for the space of six months then next following, became 
1 3 Chitty Crim. Law, 798. From the Crown Office Mich. T. 42 Geo. 
III. See ante, p. 160. CRIMINAL ABORTION. 
212 
and was rendered weak, sick, diseased and distempered in 
body, and during all that time, underwent and suffered 
great and excruciating pains, anguish and torture, both of 
body and mind, and other wrongs to the said A. E., the 
said E. F. then and there unlawfully, wilfully, wickedly, 
maliciously and injuriously did to the grievous damage of 
the said A. E., and against the peace of etc. 
And the jurors, etc. do further present, that the said E. 
F. afterwards, to wit, on the said etc. with force and arms, 
at, etc. aforesaid, in and upon the said A. E. then and there 
being big and pregnant with a certain other child, did 
make another violent assault, and that the said E. F. then 
and on divers other days and times, between that day and 
the day of the taking of this inquisition, with force and 
arms, at, etc. aforesaid, knowingly, unlawfully, wilfully, 
wickedly, maliciously and injuriously, did give and admin- 
ister, and cause and procure to be given and administered 
to the said A. E., so being big and pregnant with child as 
last aforesaid, divers other deadly, dangerous, unwholesome 
and pernicious pills, herbs, drugs, potions and mixtures, by 
reason and means whereof, etc. as before. 
And the jurors, etc. do further present that the said 
E. F. afterwards, to wit, on the said, etc. with force and 
arms, at, etc. aforesaid, in and upon the said A. E. then 
and there being big and pregnant with a certain other child, 
did make another violent assault; and that the said E. F. 
then and on divers other days and times between that day 
and the day of the taking of this inquisition, with force and 
arms, at, etc. aforesaid, knowingly, unlawfully, wilfully, 
wickedly, maliciously and injuriously, did give and admin- 
ister, and cause and procure to be given and administered 
to the said A. E. so being big and pregnant with child as 
last aforesaid, divers other deadly, dangerous, unwholesome 
and pernicious pills, herbs, drugs, potions and mixtures, 
with a wicked intent to cause and procure the said A. E. 
to miscarry and to bring forth the said last mentioned APPENDIX. 
213 
child, with which she was so big and pregnant as last afore- 
said, dead, by reason and means whereof, the said A. E. 
became and was rendered weak, sick, diseased and distem- 
pered in body, and remained and continued so weak, sick, 
diseased and distempered in body for a long time, to wit, 
for the space of six months then next following, and during 
all the time last mentioned underwent and suffered great 
and excruciating pains, anguish and torture, both of body 
and mind; and other wrongs to the said A. E., the said 
E. F. then and there unlawfully, wilfully, wickedly, mali- 
ciously and injuriously did, to the grievous damage of the 
said A. E. and against the peace, etc. 
And the jurors, etc. do further present, that the said 
E. F. afterwards, to wit, on etc. at etc. in and upon the 
said A. E. then and there being big and pregnant with a 
certain other child, did make another violent assault, and 
the said A. E. then and there did violently beat, bruise, 
wound and ill treat, so that her life was thereby greatly 
despaired of, and then and there violently, wickedly, and 
inhumanly, pinched and bruised the belly and private parts 
of the said A. E., and a certain instrument called a rule, 
which the said E. F. in his right hand then and there had 
and held, up and into the womb and body of the said A. E., 
then and there violently, wickedly and inhumanly, did 
force and thrust with a wicked intent to cause and procure 
the said A. E. to miscarry and to bring forth the said child, 
of which she was so big and pregnant, as last aforesaid, 
dead, by reason and means of which last mentioned premises, 
the said A. E. became and was rendered weak, sick, sore, 
lame, diseased and disordered in body, and remained and 
continued so weak, sick, sore, lame, diseased and disordered 
in body, as last aforesaid, for a long time, to wit, for the 
space of six months then next following, and during all the 
time last aforesaid, underwent and suffered great and ex- 
cruciating pains, anguish and torture, both of body and 
mind, and other wrongs to the said A. E. the said E. F. 214 
CRIMINAL ABORTION. 
then and there unlawfully, wilfully, wickedly, maliciously 
and injuriously did; to the grievous damage of the said 
A. E., and against the peace of, etc. 
Fifth count for common assault. 
2. For murder by causing premature birth.1 
The jurors, etc., upon their oath present, that before and 
at the time of the committing of the felony and murder 
hereinafter next mentioned, one Sarah Henson was then 
quick with a certain male child; and that Ann, the wife of 
Joseph West, late of, etc., well knowing the said Sarah 
Henson to be quick with the said male child as aforesaid, 
and feloniously, wilfully, and of her malice aforethought, 
devising, contriving, and intending, feloniously, unlawfully, 
wickedly, and wilfully to cause and procure the said Sarah 
Henson to bring forth from and out of her womb the said 
male child, with which she was so quick as aforesaid, and 
to cause and procure the said male child to be prematurely 
brought forth from and out of the womb of the said Sarah 
Henson, and thereby, and by means thereof, the said male 
child, feloniously, wilfully, and of her malice aforethought, 
to kill and murder, on, etc., with force and arms, at, etc., 
in and upon the said male child so quick in the womb of 
the said Sarah Henson as aforesaid then and there being, 
feloniously, wilfully, and of her malice aforethought, did 
make an assault, and that the said Ann West then and there 
feloniously, wilfully, and of her malice aforethought, did 
put, place, and force the right hand of the said Ann West 
into the private parts of the said Sarah Henson, and up- 
ward into the womb of the said Sarah Henson, and a certain 
pin into the private parts, and up into the womb of the 
said Sarah Henson then and there feloniously, wilfully, and 
of her malice aforethought, did put, place, and force, and 
the said Ann West, by such putting, placing, and for- 
1 Regina v. West, 2 C. & K. 784, and 2 Cox C. C. 500 (1848), ante, p. 155 APPENDIX. 
215 
cing the right hand of the said Ann West into the private 
parts of the said Sarah Henson as aforesaid, and np and 
into the womb of the said Sarah Henson as aforesaid, and 
by such putting, placing, and forcing the said pin into the 
private parts, and up into the womb of the said Sarah 
Henson as aforesaid, the said Ann West, afterwards, to wit, 
on, etc., with force and arms, at, etc., feloniously, wilfully, 
and of her malice aforethought, did cause and procure the 
said Sarah Henson to bring forth the said male child from 
and out of the womb of the said Sarah Henson as aforesaid, 
and did then and there feloniously, wilfully, and of her 
malice aforethought, cause and procure the said male child 
to be prematurely born and brought forth alive from and 
out of the womb of the said Sarah Henson as aforesaid, and 
that the said male child, by means of being so prematurely 
born and brought forth alive from and out of the womb of 
the said Sarah Henson as aforesaid, then and there became 
and was mortally weakened, debilitated, and emaciated in 
his body, of which said mortal weakness, debility, and 
emaciation of the body of the said male child, the said male 
child for the space of five hours, on, etc., at, etc., did 
languish, and languishing did live, and then, to wit, on the 
said last mentioned day, in the year aforesaid, the said male 
child, at, etc., of the said mortal weakness, debility, and 
emaciation of his body aforesaid, did die. And so the 
jurors aforesaid, upon their oath aforesaid, do say, that the 
said Ann West, the said male child, then and there in 
manner and form aforesaid, feloniously, wilfully, and of 
her malice aforethought, did kill and murder; against the 
peace, etc. 
There were three other counts, in two of which the state- 
ment of an assault upon the child was omitted. CAMBRIDGE : 
PRESS OF JOHN WILSON AND SON.