Chapter XVII: The Killing of Parents, Sick Persons, Children--Feticide (2)

The custom of infanticide in most cases requires that the child should be killed immediately or soon after its birth. Among certain North American Indians "the right of destroying a child lasted only till it was a month old," after which time the feeling of the tribe was against its death.[153] Ellis says of the Society Islanders:--"The horrid act, if not committed at the time the infant entered the world, was not perpetrated at any subsequent period . . . . If the little stranger was, from irresolution, the mingled emotions that struggled for mastery in its mother's bosom, or any other cause, suffered to live ten minutes or half an hour, it was safe; instead of a monster's grasp, it received a mother's caress and a mother's smile, and was afterwards nursed with solicitude and tenderness."[154] Almost the same is said of other South Sea Islanders[155] and of tribes inhabiting the Australian continent.[156] That the custom of infanticide is generally {405} restricted to the destruction of new-born babies also appears from various statements as to the parental love of those peoples who are addicted to this practice.[157] In Fiji "such children as are allowed to live are treated with a foolish fondness."[158] Among the Narrinyeri, "only let it be determined that an infant's life shall be saved, and there are no bounds to the fondness and indulgence with which it is treated";[159] and with reference to other Australian tribes we are told that it is brought up with greater care than generally falls to the lot of children belonging to the poorer classes in Europe.[160] Among the Indians of the Pampas and other Indians of that neighbourhood, who abandon deformed or sickly-looking children to the wild dogs and birds of prey, an infant becomes, from the moment it is considered worthy to live, "the object of the whole love of its parents, who, if necessary, will submit themselves to the greatest privations to satisfy its least wants or exactions."[161] In Madagascar, according to Ellis, "nothing can exceed the affection with which the infant is treated by its parents and other members of the family; the indulgence is more frequently carried to excess than otherwise."[162] From these and similar facts, as also from the general absence of statements to the contrary, I conclude that murders of children who have been allowed to survive their earliest infancy are very rare, though not quite unknown,[163] among the lower races.

[Footnote 153: Schoolcraft, quoted by Sutherland, _op. cit._ i. 119.]

[Footnote 154: Ellis, _Polynesian Researches_, i. 255.]

[Footnote 155: Waitz-Gerland, _op. cit._ vi. 138, 139, 638. Angas, _Savage Life and Scenes in Australia and New Zealand_, i. 313.]

[Footnote 156: Ploss, _Das Kind_, ii. 255. Spencer and Gillen, _Native Tribes of Central Australia_, p. 51. _Iidem_, _Northern Tribes of Central Australia_, p. 608.]

[Footnote 157: See _infra_, p. 529 _sqq._; also Haberland, _loc. cit._ p. 29, and Sutherland, _op. cit._ i. 115 _sqq._]

[Footnote 158: Williams and Calvert, _op. cit._ p. 142.]

[Footnote 159: Taplin, in Woods, _Native Tribes of South Australia_, p. 15.]

[Footnote 160: Brough Smyth, _op. cit._ i. 51. Meyer, 'Manners and Customs of the Aborigines of the Encounter Bay Tribe,' in Woods, _Native Tribes of South Australia_, p. 186.]

[Footnote 161: Guinnard, _op. cit._ p. 144.]

[Footnote 162: Ellis, _History of Madagascar_, i. 161.]

[Footnote 163: Among the Sandwich Islanders "the infant, after living a week, a month, or even a year, was still insecure, as some were destroyed when able to walk" (Ellis, _Tour through Hawaii_, p. 325). Among the Eskimo about Behring Strait, "girls were often killed when from 4 to 6 years of age" (Nelson, in _Ann. Rep. Bur. Ethn._ xviii. 289).]

The custom of infanticide prevails, or has prevailed, not only in the savage world, but among semi-civilised and {406} civilised races. In the poorest districts of China female infants are often destroyed by their parents immediately after their birth, chiefly on account of poverty.[164] Though disapproved of by educated Chinese, the practice is treated with forbearance or indifference by the mass of the people, and is acquiesced in by the mandarins.[165] "When seriously appealed to on the subject," says the Rev. J. Doolittle, "though all deprecate it as contrary to the dictates of reason and the instincts of nature, many are ready boldly to apologise for it, and declare it to be necessary, especially in the families of the excessively poor."[166] However, infanticide is neither directly sanctioned by the government, nor agreeable to the general spirit of the laws and institutions of the Empire;[167] and it is prohibited both by Buddhism and Taouism.[168] According to Dr. de Groot, the belief that the spirits of the dead may, with authorisation of Heaven, take vengeance on the living, has a very salutary effect on female infanticide in China. "The fear that the souls of the murdered little ones may bring misfortune, induces many a father or mother to lay the girls they are unwilling to bring up in the street for adoption into some family, or into a foundling-hospital."[169]

[Footnote 164: Gutzlaff, _Sketch of Chinese History_, i. 59. Wells Williams, _Middle Kingdom_, ii. 240 _sqq._ Douglas, _Society in China_, p. 354 _sqq._ Doolittle, _Social Life of the Chinese_, ii. 206.]

[Footnote 165: Doolittle, _op. cit._ ii. 203, 208 _sq._ Wells Williams, _op. cit._ i. 836; ii. 242. Douglas, _Society in China_, p. 354. Ploss, _Das Kind_, ii. 262.]

[Footnote 166: Doolittle, _op. cit._ ii. 208.]

[Footnote 167: Staunton, in his translation of _Ta Tsing Leu Lee_, p. 347 n. *]

[Footnote 168: _Thâi Shang_, 4. Giles, _Strange Stories from a Chinese Studio_, ii. 377. Douglas, _Confucianism and Taouism_, p. 267. _Indo-Chinese Gleaner_, iii. 164.]

[Footnote 169: de Groot, _Religions System of China_, (vol. iv. book) ii. 457 _sqq._]

In ancient times the Semites, or at least some of them, not only practised infanticide, but, under certain circumstances, approved of it or regarded it as a duty. According to an ancient Arabic proverb, it was a generous deed to bury a female child;[170] and we read of [(]O[s.]aim the Fazarite who did not dare to save alive his daughter Lacî[t.]a, without concealing her from the people, although she was his only child.[171] Considering that among the {407} nomads of Arabia, who suffer constantly from hunger during a great part of the year, a daughter is a burden to the poor, we may suppose, with Professor Robertson Smith, that "infanticide was as natural to them as to other savage peoples in the hard struggle for life."[172] It was condemned, however, by the Prophet:--"Slay not your children for fear of poverty: we will provide for them; beware! for to slay them is ever a great sin."[173] In the Mosaic Law, on the other hand, infanticide is never touched upon, and, in all probability, it hardly occurred among the Hebrews in historic times. But we have reason to believe that, at an earlier period, among them as also among other branches of the Semitic race, child-murder was frequently practised as a sacrificial rite.[174]

[Footnote 170: Freytag, _Arabum Proverbia_, i. 229.]

[Footnote 171: Robertson Smith, _Kinship and Marriage in Early Arabia_, p. 293.]

[Footnote 172: _Ibid._ p. 294.]

[Footnote 173: _Koran_, xvii. 33; also, _ibid._ vi. 141, 152, and lxxxi. 8 _sq._]

[Footnote 174: See _infra_, on Human Sacrifice.]

The murder of female infants, whether by the direct employment of homicidal means, or by exposure to privation and neglect, has for ages been a common practice, or even a genuine custom, among various Hindu castes.[175] Yet they are well aware that it is prohibited by their sacred books; according to the Laws of Manu, the King shall put to death "those who slay women, infants, or Brâhmanas."[176] Even the Rajputs, who--out of family pride and owing to the expenses connected with the marriage ceremony--were particularly addicted to infanticide, considered that a family in which such a deed had been perpetrated was, in consequence, an object of divine displeasure. On the twelfth day, therefore, the family priest was sent for, and, by suitable gratuities, absolution was obtained. In the room where the infant was born and destroyed, he also prepared and ate some food with which the family provided him; this was considered a _hom_, or burnt offering, and, by eating it in that place, the priest was supposed to take the whole _hutteea_, or sin, upon himself, and to cleanse the family from it.[177]

[Footnote 175: Wilkins, _Modern Hinduism_, 431. Chevers, _Manual of Medical Jurisprudence for India_, p. 750 _sqq._]

[Footnote 176: _Laws of Manu_, ix. 232.]

[Footnote 177: 'Oude as it was before the Annexation,' in _Church Missionary Intelligencer_, xi. 81 _sq._]

{408} Exposure of new-born children was practised by the people of the Vedic age,[178] as also by other so-called Aryan peoples in ancient times.[179] The Teutonic father had to decide whether the child, whilst still lying on the ground, should be accepted as a member of the family, or whether it should be exposed. If he lifted it up, and some water was poured over it, or a drop of milk or honey passed its lips, it was generally safe. But apart from these restrictions, custom seems to have been in favour of exposure only under certain circumstances, exactly similar to those in which infanticide is practised among many modern savages: if the child was born out of wedlock, or if it was deformed or sickly, or if it was born on an unlucky day, or in case of twins--one of whom was always supposed to be illegitimate--or if the parents were very poor. The exposed infant, however, was not necessarily destined to die, but was, in many cases, adopted by somebody who could afford to rear it.[180]

[Footnote 178: Kaegi, _Rigveda_, p. 16.]

[Footnote 179: Strieker, 'Ethnographische Notizen über den Kindermord und die künstliche Fruchtabtreibung,' in _Archiv für Anthropologie_, v. 451 (Celts and Slavs).]

[Footnote 180: Grimm, _Deutsche Rechtsalterthümer_, p. 455 _sq._ Wilda, _Strafrecht der Germanen_, pp. 704, 725. Maurer, _Bekehrung des Norwegischen Stammes_ ii. 181. Weinhold, _Altnordisches Leben_, p. 261. Nordström, _Bidrag till den svenska samhälls-författningens historia_, ii. 44. Stemann, _Den danske Retshistorie indtil Christian V.'s Lov_, p. 359.]

The exposure of deformed or sickly infants was undoubtedly an ancient custom in Greece; in Sparta, at least, it was enjoined by law. It was also approved of by the most enlightened among the Greek philosophers. Plato condemns all those children who are imperfect in limbs, as also those who are born from depraved citizens, to be buried in some obscure and unknown place; he maintains, moreover, that when both sexes have passed the age assigned for presenting children to the State, no child is to be brought to light, and that any infant which is by accident born alive, shall be done away with.[181] Aristotle not only lays down the law with respect to the exposing or bringing up of children, that "nothing imperfect or maimed shall be brought up," but proposes that {409} the number of children allowed to each marriage shall be regulated by the State, and that, if any woman be pregnant after she has produced the prescribed number, an abortion shall be procured before the fetus has life.[182] These views were in perfect harmony with the general tendency of the Greeks to subordinate the feelings of the individual to the interest of the State. Confined as they were to a very limited territory, they were naturally afraid of being burdened with the maintenance of persons whose lives could be of no use. It is necessary, says Aristotle, to take care that the increase of the people should not exceed a certain number, in order to avoid poverty and its concomitants, sedition and other evils.[183] Yet the exposure of healthy infants, which was frequently practised in Greece, was hardly approved of by public opinion, although tolerated,[184] except at Thebes, where it was a crime punishable with death.[185]

[Footnote 181: Plato, _Respublica_, v. 460 _sq._]

[Footnote 182: Aristotle, _Politica_, vii. 16, p. 1335.]

[Footnote 183: _Ibid._ ii. 6, p. 1265.]

[Footnote 184: Schmidt, _Ethik der alten Griechen_, ii. 138, 463. Hermann-Blumner, _Lehrbuch der griechischen Privatalterthümer_, p. 77.]

[Footnote 185: Aelian, _Varia Historiæ_, ii. 7.]

In Rome custom or law enjoined the destruction of deformed infants. According to a law of the Twelve Tables, referred to by Cicero, monstrous abortions were not suffered to live.[186] With reference to a much later period Seneca writes, "We destroy monstrous births, and we also drown our children if they are born weakly or unnaturally formed"; he adds that it is an act of reason thus to separate what is useless from what is sound.[187] But there was no tendency in Rome to encourage infanticide beyond these limits. It has been observed that, whilst the Greek policy was rather to restrain, the Roman policy was always to encourage, population.[188] Being engaged in incessant wars of conquest, Rome was never afraid of being over-populated, but, on the contrary, tried to increase the number of its citizens by according special privileges to the fathers of many children, and exempting poor parents from most {410} of the burden of taxation.[189] The power of life and death which the Roman father possessed over his children undoubtedly involved the legal right of destroying or exposing new-born infants; but it is equally certain that the act was frequently disapproved of.[190] An ancient "law," ascribed to Romulus--which, as Mommsen suggests, could have been merely a priestly direction[191]--enjoined the father to bring up all his sons and at least his eldest daughter, and forbade him to destroy any well-formed child till it had completed its third year, when the affections of the parent might be supposed to be developed.[192] In later times we find the exposure of children condemned by poets, historians, philosophers, jurists. Among nefarious acts committed in sign of grief on the day when Germanicus died, Suetonius mentions the exposure of new-born babes.[193] Epictetus indignantly opposes the saying of Epicurus that men should not rear their children:--"Even a sheep will not desert its young, nor a wolf; and shall a man? 'What! will you have us to be silly creatures, like the sheep?' Yet they desert not their young. 'Or savage, like wolves?' Yet even they desert them not. Come, then, who would obey you if he saw his little child fall on the ground and cry?"[194] Julius Paulus, the jurist, pronounced him who refused nourishment to his child, or exposed it in a public place, to be guilty of murder[195]--a statement which is to be understood, not as a legal prohibition of exposure, but only as the expression of a moral opinion.[196] On the other hand, though the exposure of healthy infants was disapproved of in Pagan Rome, it was not generally regarded as an offence of very great magnitude, especially if the parents were destitute.[197] {411} During the Empire it was practised on an extensive scale, and in the literature of the time it is spoken of with frigid indifference. Since the life of the victim was frequently saved by some benevolent person or with a view to profit,[198] it was not regarded in the same light as downright infanticide, which, in the case of a healthy infant, seems to have been strictly prohibited by custom.[199]

[Footnote 186: Cicero, _De legibus_, iii. 8.]

[Footnote 187: Seneca, _De ira_, i. 15.]

[Footnote 188: Lecky, _History of European Morals_, ii. 27.]

[Footnote 189: Montesquieu, _De l'esprit des lois_, 20 _sqq._ (_[OE]uvres_, p. 398 _sqq._). Lecky, _History of European Morals_, ii. 27.]

[Footnote 190: Denis, _Histoire des théories et des idées morales dans l'antiquité_, ii. 110.]

[Footnote 191: Mommsen, _Römisches Strafrecht_, p. 619.]

[Footnote 192: Dionysius of Halicarnassus, _Antiquitates Romanæ_, ii. 15.]

[Footnote 193: Suetonius, _Caligula_, 5.]

[Footnote 194: Epictetus, _Dissertationes_, i. 23.]

[Footnote 195: _Digesta_, xxv. 3. 4.]

[Footnote 196: Noodt, 'Julius Paulus, sive de partus expositione et nece apud veteres,' in _Opera omnia_, i. 465 _sqq._ Walter, _Geschichte des Römischen Rechts_, § 538, vol. ii. 148 _sq._ Spangenberg, 'Verbrechen des Kindermords und der Aussetzung der Kinder,' in _Neues Archiv des Criminalrechts_, iii. 10 _sqq._ Mommsen, _Römisches Strafrecht_, p. 620, n. 1.]

[Footnote 197: Quintilian, _Declamationes_, 506. Plutarch, _De amore prolis_, 5.]

[Footnote 198: Lecky, _History of European Morals_, ii. 28. Lallemand, _Histoire des enfants abandonnés et délaissés_, p. 59.]

[Footnote 199: Mommsen, _Römisches Strafrecht_, p. 619.]

As is generally the case in the savage world, so among semi-civilised and civilised nations whose customs allow or tolerate infanticide, the child, if not suffered to live, has to be killed in its earliest infancy. Among the Chinese[200] and Rajputs[201] it is destroyed immediately after its birth. In the Scandinavian North the killing or exposure of an infant who had already been sprinkled with water was regarded as murder.[202] At Athens parents were punished for exposing children whom they had once begun to rear.[203]

[Footnote 200: Gutzlaff, _op. cit._ i. 59.]

[Footnote 201: _Church Missionary Intelligencer_, xi. 81. Chevers, _op. cit._ p. 752.]

[Footnote 202: Grimm, _Deutsche Rechtsalterthümer_, i. 457.]

[Footnote 203: Schoemann, _Griechische Alterthümer_, i. 503.]

The practice of exposing new-born infants, so common in the Pagan Empire, was vehemently denounced by the early Fathers of the Church.[204] They tried to convince men that, if the abandoned infant died, the unnatural parent was guilty of nothing less than murder, whilst the sinful purposes for which foundlings were often used formed another argument against exposure.[205] The enormity of the crime of causing an infant's death was enhanced by the notion that children who had died unbaptised were doomed to eternal perdition.[206] According to a decree of the Council of Mentz in 852, the penance imposed on the mother was heavier if she killed an unbaptised than if she killed a {412} baptised child.[207] In the year 1556, Henry II. of France made a law which punished as a child-murderer any woman who had concealed her pregnancy and delivery, and whose child was found dead, "privé, tant du saint sacrement de baptesme, que sépulture publique et accoustumée."[208] This statute--to which there is a counterpart in England in the statute 21 Jac. I. c. 27,[209] and in the Scotch law of 1690, c. 21[210]--thus went so far as to constitute a presumptive murder, avowedly under the influence of that Christian dogma to which Mr. Lecky attributes, in the first instance, "the healthy sense of the value and sanctity of infant life which so broadly distinguishes Christian from Pagan societies."[211]

[Footnote 204: See Terme and Monfalcon, _Histoire des enfans trouvés_, p. 67 _sqq._]

[Footnote 205: Justin Martyr, _Apologia I. pro Christianis_, 29, 27 (Migne, _Patrologiæ cursus_, Ser. Graeca, vi. 373 _sq._, 369 _sqq._).]

[Footnote 206: _Cf._ Spangenberg, in _Neues Archiv des Criminalrechts_, iii. 20; Lecky, _History of European Morals_, ii. 23.]

[Footnote 207: _Canon Hludowici regis_, 9 (Pertz, _Monum. Germaniæ historica_, iii. 413).]

[Footnote 208: Isambert, Decrusy, and Armet, _Recueil général des anciennes lois françaises_, xiii. 472 _sq._]

[Footnote 209: Blackstone, _Commentaries on the Laws of England_, iv. 198.]

[Footnote 210: Erskine, _Principles of the Law of Scotland_, p. 560.]

[Footnote 211: Lecky, _History of European Morals_, ii. 23.]

If the Pagans had been comparatively indifferent to the sufferings of the exposed infant, the Christians became all the more cruel to the unfortunate mother, who, perhaps in a fit of despair, had put to death her new-born child. The Christian emperor Valentinian I. made infanticide a capital offence.[212] According to the Coutume de Loudunois, a mother who killed her child was burned.[213] In Germany and Switzerland she was buried alive with a pale thrust through her body;[214] this punishment was prescribed by the criminal code of Charles V., side by side with drowning.[215] Until the end of the eighteenth, or the beginning of the nineteenth, century, infanticide was a capital crime everywhere in Europe, except in Russia.[216] Then, under the influence of that rationalistic movement which compelled men to rectify so many preconceived opinions,[217] it became manifest that an unmarried woman {413} who destroyed her illegitimate child was not in the same category as an ordinary murderess.[218] It was pointed out that shame and fear, the excitement of mind, and the difficulty in rearing the poor bastard, could induce the unfortunate mother to commit a crime which she herself abhorred. That no notice had been taken of all this, is explicable from the extreme severity with which female unchastity was looked upon by the Church. At present most European lawbooks do not punish infanticide committed by an unmarried woman even nominally with death.[219] In France the law which regards infanticide as an aggravated form of _meurtre_[220] has become a dead letter;[221] and in England no woman seems for a long time to have been executed for killing her new-born child under the distress of mind and fear of shame caused by child-birth.[222]

[Footnote 212: _Codex Theodosianus_, ix. 14. 1. _Institutiones_, ix. 16, 7.]

[Footnote 213: Tissot, _Le droit pénal_, ii. 40.]

[Footnote 214: Osenbrüggen, _Das alamannische Strafrecht im deutschen Mittelalter_, p. 229 _sq._ _Idem_, _Studien zur deutschen und schweizerischen Rechtsgeschichte_, p. 358.]

[Footnote 215: Charles V.'s _Peinliche Gerichts Ordnung_, art. 131.]

[Footnote 216: de Feyfer, _Verhandeling over den Kindermoord_, p. 225. von Fabrice, _Die Lehre von der Kindsabtreibung und vom Kindsmord_, p. 251.]

[Footnote 217: Berner, _Lehrbuch des Deutschen Strafrechtes_, p. 497.]

[Footnote 218: Bentham maintained (_Theory of Legislation_, p. 264 _sq._) that infanticide ought not to be punished as a principal offence. "The offence," he says, "is what is improperly called the death of an infant, who has ceased to be, before knowing what existence is,--a result of a nature not to give the slightest inquietude to the most timid imagination; and which can cause no regrets but to the very person who, through a sentiment of shame and pity, has refused to prolong a life begun under the auspices of misery."]

[Footnote 219: de Feyfer, _op. cit._ p. 228. For modern legislation on infanticide, see also Spangenberg, in _Neues Archiv des Criminalrechts_, iii. 360 _sqq._; von Fabrice, _op. cit._ p. 254 _sqq._]

[Footnote 220: _Code Pénal_, art. 300, 302.]

[Footnote 221: Garraud, _Traité théoretique et pratique du droit pénal français_, iv. 251.]

[Footnote 222: Stephen, _History of the Criminal Law of England_, iii. 86.]

* * * * *

Hand in hand with the custom of infanticide goes feticide, which prevails extensively in the savage world.[223] The same considerations as induce savages to kill their new-born infants also induce them to destroy the fetus before it has proceeded into the world from the mother's body. Besides, women procure abortion with a view to avoiding the disagreeable incidents accompanying the state of pregnancy; or, very frequently, in order to conceal illicit intercourse.[224] Considering that the same degree of sympathy cannot be felt with regard to a child not yet born as with regard to an infant, it is not surprising to find that feticide is practised without objection even by {414} some peoples who never commit infanticide. Thus in Samoa, where the latter practice was perfectly unknown, the destruction of unborn children prevailed to a melancholy extent, and the same was the case in the Mitchell Group.[225] Among the Dacotahs, who only occasionally killed infants, abortion procured by artificial means was not held objectionable.[226] On the other hand there are savages who consider it a crime. Some Indian tribes in North America abhor the practice.[227] The natives of Tenimber and Timor-laut punish it with heavy fines.[228] Regarding the Kafirs, Mr. Warner states that "the procuring of abortion, although universally practised by all classes of females in Kafir society, is nevertheless a crime of considerable magnitude in the eye of the Law; and when brought to the notice of the Chief, a fine of four or five head of cattle is inflicted. The accomplices are equally guilty with the female herself."[229]

[Footnote 223: Ploss, _Das Weib_, i. 842 _sqq._]

[Footnote 224: _Ibid._ i. 851 _sq._]

[Footnote 225: Turner, _Samoa_, pp. 79, 280.]

[Footnote 226: Schoolcraft, _Indian Tribes of the United States_, iii. 243. Keating, _op. cit._ i. 394.]

[Footnote 227: Ploss, _Das Weib_, i. 848.]

[Footnote 228: Riedel, _De sluik- en kroesharige rassen tusschen Selebes en Papua_, p. 302.]

[Footnote 229: Warner, in Maclean, _Compendium of Kafir Laws and Customs_, p. 62. _Cf._ Brownlee, _ibid._ p. 111; Holden, _Past and Future of the Kaffir Races_, p. 334.]

Passing to more civilised nations, we notice that, among Hindus and Muhammedans, artificial abortion is extremely common and is hardly reprobated by public opinion, whatever religion or law may have to say on the subject.[230] It is especially resorted to by unmarried women as a means of escaping punishment and shame. "In a country like India," says Dr. Chevers, "where true morality is almost unknown, but where the laws of society exercise the most rigorous and vigilant control imaginable over the conduct of females, and where six-sevenths of the widows, whatever their age or position in life may be, are absolutely debarred from re-marriage, and are compelled to rely upon the uncertain support of their relatives, it is scarcely surprising that great crimes should be frequently practised to conceal the results of immorality, and that the procuring of criminal abortion should, especially, be an act of {415} almost daily commission, and should have become a trade among certain of the lower midwives."[231] In Persia every illegitimate pregnancy ends with abortion; the act is done almost publicly, and no obstacle is put in its way.[232] In Turkey, both among the rich and poor, even married women very commonly procure abortion after they have given birth to two children, one of which is a boy; and the authorities regard the practice with indifference.[233] In ancient Greece, as we have seen, feticide was under certain circumstances recommended by Plato and Aristotle, in preference to infanticide. In Rome it was prohibited by Septimius Severus and Antoninus, but the prohibition seems to have referred only to those married women who, by procuring abortion, defrauded their husbands of children.[234] During the Pagan Empire, abortion was extensively practised, either from poverty, or licentiousness, or vanity; and, although severely disapproved of by some,[235] "it was probably regarded by the average Romans of the later days of Paganism much as Englishmen in the last century regarded convivial excesses, as certainly wrong, but so venial as scarcely to deserve censure."[236] Seneca thinks Helvia worthy of special praise because she had never destroyed her expected child within her womb, "after the fashion of many other women, whose attractions are to be found in their beauty alone."[237] The Romans drew a broad line between feticide and infanticide. An unborn child was not regarded by them as a human being; it was a _spes animantis_, not an _infans_.[238] It was said to be merely a part of the mother, as the fruit is a part of the tree till it becomes ripe and falls down.[239]

[Footnote 230: _Laws of Manu_, v. 90; _Vish['n]u Purá['n]a_, p. 207 _sq._]

[Footnote 231: Chevers, _op. cit._ p. 712.]

[Footnote 232: Polak, _Persien_, i. 217.]

[Footnote 233: Ploss, _Das Weib_, i. 846 _sq._]

[Footnote 234: _Digesta_, xlvii. 11. 4. _Cf._ Rein, _Criminalrecht der Römer_, p. 447.]

[Footnote 235: Paulus, quoted in _Digesta_, xxv. 3, 4.]

[Footnote 236: Lecky, _History of European Morals_, ii. 21 _sq._]

[Footnote 237: Seneca, _Ad Helviam_, 16.]

[Footnote 238: Spangenberg, 'Verbrechen der Abtreibung der Leibesfrucht,' in _Neues Archiv des Criminalrechts_, ii. 23.]

[Footnote 239: _Ibid._ ii. 22.]

Very different opinions were held by the Christians. A sanctity, previously unheard of, was attached to human life from the very beginning. Feticide was regarded as a {416} form of murder. "Prevention of birth," says Tertullian, "is a precipitation of murder; nor does it matter whether one take away a life when formed, or drive it away while forming. He also is a man who is about to be one. Even every fruit already exists in its seed."[240] St. Augustine, again, makes a distinction between an embryo which has already been formed, and an embryo as yet unformed. From the creation of Adam, he says, it appears that the body is made before the soul. Before the embryo has been endowed with a soul it is an _embryo informatus_, and its artificial abortion is to be punished with a fine only; but the _embryo formatus_ is an animate being, and to destroy it is nothing less than murder, a crime punishable with death.[241] This distinction between an animate and inanimate fetus was embodied both in Canon[242] and Justinian law,[243] and passed subsequently into various lawbooks.[244] And a woman who destroyed her animate embryo was punished with death.[245]

[Footnote 240: Tertullian, _Apologeticus_, 9 (Migne _op. cit._ i. 319 _sq._).]

[Footnote 241: St. Augustine, _Questiones in Exodum_, 80; _Idem_, _Questiones Veteris et Novi Testamenti_, 23 (Migne, _op. cit._ xxxiv.-xxxv. 626, 2229).]

[Footnote 242: Gratian, _Decretum_, ii. 32. 2. 8 _sq._]

[Footnote 243: As regards the time from which the fetus was considered to be animate a curious distinction was drawn between the male and the female fetus. The former was regarded as _animatus_ forty days after its conception, the latter eighty days. This theory, however--which was derived, as it seems, either from an absurd misinterpretation of _Leviticus_, xii. 2-5, or from the views of Aristotle (_De animalibus historiæ_, vii. 3; _cf._ Pliny, _Historia naturalis_, vii. 6)--was not accepted by the glossarist of the Justinian Code, who fixed the animation of the female, as well as of the male, fetus at forty days after its conception; and this view was adopted by later jurists (Spangenberg, in _Neues Archiv des Criminalrechts_, ii. 37 _sqq._).]

[Footnote 244: von Fabrice, _op. cit._ p. 202 _sq._ Berner, _op. cit._ p. 501. Wilda, _op. cit._ p. 720 _sqq._]

[Footnote 245: Fleta, i. 23. 12 (England). Charles V's _Peinliche Gerichts Ordnung_, art. 133. Spangenberg in _Neues Archiv des Criminalrechts_, ii. 16.]

The criminality of artificial abortion was increased by the belief that an _embryo formatus_, being a person endowed with an immortal soul, was in need of baptism for its salvation. In his highly esteemed treatise De fide, written in the sixth century, St. Fulgentius says, "It is to be believed beyond doubt, that not only men who are come to the use of reason, but infants, whether they die in their mother's womb, or after they are born, without baptism, {417} in the name of the Father, Son, and Holy Ghost, are punished with everlasting punishment in eternal fire, because though they have no actual sin of their own, yet they carry along with them the condemnation of original sin from their first conception and birth."[246] And in the Lex Bajuwariorum this doctrine is expressly referred to in a paragraph which prescribes a daily compensation for children killed in the womb on account of the daily suffering of those children in hell.[247] Subsequently, however, St. Fulgentius' dictum was called in question, and no less a person than Thomas Aquinas suggested the possibility of salvation for an infant who died before its birth.[248] Apart from this, the doctrine that the life of an embryo is equally sacred with the life of an infant was so much opposed to popular feelings, that the law concerning feticide had to be altered. Modern legislation, though treating the fetus as a distinct being from the moment of its conception,[249] punishes criminal abortion less severely than infanticide.[250] And the very frequent occurrence of this crime[251] is an evidence of the comparative indifference with which it is practically looked upon by large numbers of people in Christian countries.

[Footnote 246: St. Fulgentius, _De fide_, 27 (Migne, _op. cit._ lxv. 701).]

[Footnote 247: _Lex Bajuwariorum_, viii. 21 (vii. 20).]

[Footnote 248: Lecky, _History of the Rise and Influence of the Spirit of Rationalism in Europe_, i. 360, n. 2.]

[Footnote 249: Henke, _Lehrbuch der gerichtlichen Medicin_, 99, p. 75. Berner, _op. cit._ p. 502.]

[Footnote 250: von Fabrice, _op. cit._ p. 199. For modern laws referring to criminal abortion, see _ibid._ p. 206 _sqq._, and Spangenberg, in _Neues Archiv des Criminalrechts_, ii. 178 _sqq._]

[Footnote 251: See Ploss, _Das Weib_, i. 848 _sqq._; Schmidt's _Jahrbücher der in- und ausländischen Gesammten Medicin_, xciii. 97.]