Supplement to the Fourth, Fifth, and Sixth Editions of the Encyclopædia Britannica/Abortion
Abortion.ABORTION. The reader will find some historical remarks, in the body of the work, in regard to the practice of procuring abortion, with a view to the destruction of the fœtus; and we resume the subject in this place, partly to notice some recent discussions of a similar kind, and partly to state in what manner the offence is viewed in the laws of our own and the neighbouring country. It has sometimes been doubted, whether this unnatural practice was ranked as a crime in the laws of Greece and Rome; and we find, from the last report of the proceedings of the literary class of the French Institute, that the question has been revived, and elaborately discussed by some members of that learned body. The subject, it seems, had been incidentally alluded to, in a discourse of Count Gregoire’s upon the influence of Christianity on the condition of the female sex, read in the early part of last year. (1814.) This produced two dissertations, one by M. Clavier, and the other by M. Boissonade; the first maintaining the impunity of the practice among the ancients, the last, that it was on the contrary viewed as a penal offence.
We find, says M. Clavier, that in one of Plato’s dialogues, (Theæt.) Socrates is made to speak of artificial abortion, as a practice not only common, but allowable; and Plato himself authorizes it in his Republic, (Lib. v.) Aristotle (Polit. Lib. vii. c. 17,) gives it as his opinion that no child ought to be suffered to come into the world, the mother being above forty, or the father above fifty-five years of age. Lysias maintained, in one of his pleadings quoted by Harpocration, that forced abortion could not be considered homicide, because a child in utero was not an animal, or separate existence. M. Clavier admits, that, in a treatise ascribed to Galen, (An animal sit quod in utero est?) there is mention made of enactments by Solon and Lycurgus against this crime; but he maintains that this is a spurious production, and that at any rate, his testimony cannot be opposed to that of so many writers, who lived long before his age. Among the Romans, Ovid (Amor. Lib. ii.), Juvenal (Sat. vi. v. 594), and Seneca (Consol. ad. Helv. 16.), though they lament in strong terms the frequency of this enormity, yet they never allude to any laws by which it might be suppressed. Various other writers, it is said, preserve the same silence on this point, whilst joining in general reprobation of the crime.
On the other hand, M. Boissonade appeals not only to the authority of Galen, but of Cicero, (Pro Cluentio,) as placing it beyond a doubt, that, so far from being allowed to pass with impunity, the offence in question was sometimes punished with death. With regard to the authority of Lysias, he states, that the pleading referred to is quoted by Harpocration himself as of dubious authenticity; and, as to Plato and Aristotle, he observes, that their speculative reasonings, in matters of legislation, ought not to be confounded with the actual state of the laws. And he adds, that Stobæus (Serm. 73.) has preserved a passage from Musonius, in which that philosopher expressly states, that the ancient lawgivers inflicted punishments on females who caused themselves to abort.
It seems indeed difficult to believe, that the practice in question should have been allowed to prevail without being denounced as criminal by the lawgivers of Greece and Rome; but it is not so clear that there was any law which punished it with death. Those readers who have any curiosity to enter more deeply into the inquiry, will be enabled to do so, by consulting the various authorities to which M. Clavier and M. Boissonade have appealed, in support of their respective views of the question. The notorious frequency of the practice forms an odious feature in the manners of ancient times. Seneca makes it a ground of distinction for Helvia, that she had never, like others of her countrywomen, destroyed the child in her womb, in order to preserve her shape.
By the law of England till very lately, the only party held to be guilty of murder in forcing abortion was the woman, when she was proved to have taken means to destroy a child quick in the womb, and actually to have thereby destroyed it. But in 1805, an act was passed, inflicting the punishment of death upon all concerned in administering any noxious substance with the intent to procure the miscarriage of any woman quick with child. The procuring or attempting it before the child has quickened, is punishable only with imprisonment or transportation. This law is evidently grounded upon a false hypothesis—that the fœtus is not quick or alive till its motion in the womb becomes perceptible to the mother; and, what is of more importance, it makes no provision against the attempt to procure abortion by manual application. The reader will find a curious illustration of this defect, in a trial which occurred at the assizes held at Bury St Edmunds, in 1808. See Trial of William Pizzy, &c. Ipswich, 1808.
The case of John Fenton, tried at Perth in 1763, was the first instance of a criminal prosecution for this offence in Scotland; and here the public prosecutor restricted the libel to an arbitrary punishment. Our writers indeed agree, that, by the law of Scotland, the forcing of abortion is not homicide, whether the child be quick or not, except where the mother is killed in the process. Imprisonment or transportation may, and is all that can, in any case, be inflicted; and in a recent instance, a surgeon and midwife were, upon conviction for the offence, sent to Botany Bay for fourteen years.