CHAPTER XVIII

202Grimm,Deutsche Rechtsalterthümer, i. 457.

203Schoemann,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.204They 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.205The 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.206According 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 abaptised child.207In 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.”208This statute—to which there is a counterpart in England in the statute 21 Jac. I. c. 27,209and in the Scotch law of 1690, c. 21210—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

204See Terme and Monfalcon,Histoire des enfans trouvés, p. 67sqq.

205Justin Martyr,Apologia I. pro Christianis, 29, 27 (Migne,Patrologiæ cursus, Ser. Graeca, vi. 373sq., 369sqq.).

206Cf.Spangenberg, inNeues Archiv des Criminalrechts, iii. 20; Lecky,History of European Morals, ii. 23.

207Canon Hludowici regis, 9 (Pertz,Monum. Germaniæ historica, iii. 413).

208Isambert, Decrusy, and Armet,Recueil général des anciennes lois françaises, xiii. 472sq.

209Blackstone,Commentaries on the Laws of England, iv. 198.

210Erskine,Principles of the Law of Scotland, p. 560.

211Lecky,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.212According to the Coutume de Loudunois, a mother who killed her child was burned.213In Germany and Switzerland she was buried alive with a pale thrust through her body;214this punishment was prescribed by the criminal code of Charles V., side by side with drowning.215Until the end of the eighteenth, or the beginning of the nineteenth, century, infanticide was a capital crime everywhere in Europe, except in Russia.216Then, under the influence of that rationalistic movement which compelled men to rectify so many preconceived opinions,217it became manifest that an unmarried womanwho destroyed her illegitimate child was not in the same category as an ordinary murderess.218It 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.219In France the law which regards infanticide as an aggravated form ofmeurtre220has become a dead letter;221and 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

212Codex Theodosianus, ix. 14. 1.Institutiones, ix. 16, 7.

213Tissot,Le droit pénal, ii. 40.

214Osenbrüggen,Das alamannische Strafrecht im deutschen Mittelalter, p. 229sq.Idem,Studien zur deutschen und schweizerischen Rechtsgeschichte, p. 358.

215Charles V.’sPeinliche Gerichts Ordnung, art. 131.

216de Feyfer,Verhandeling over den Kindermoord, p. 225. von Fabrice,Die Lehre von der Kindsabtreibung und vom Kindsmord, p. 251.

217Berner,Lehrbuch des Deutschen Strafrechtes, p. 497.

218Bentham maintained (Theory of Legislation, p. 264sq.) 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.”

219de Feyfer,op. cit.p. 228. For modern legislation on infanticide, see also Spangenberg, inNeues Archiv des Criminalrechts, iii. 360sqq.; von Fabrice,op. cit.p. 254sqq.

220Code Pénal, art. 300, 302.

221Garraud,Traité théoretique et pratique du droit pénal français, iv. 251.

222Stephen,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.223The 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.224Considering 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 bysome 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.225Among the Dacotahs, who only occasionally killed infants, abortion procured by artificial means was not held objectionable.226On the other hand there are savages who consider it a crime. Some Indian tribes in North America abhor the practice.227The natives of Tenimber and Timor-laut punish it with heavy fines.228Regarding 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

223Ploss,Das Weib, i. 842sqq.

224Ibid.i. 851sq.

225Turner,Samoa, pp. 79, 280.

226Schoolcraft,Indian Tribes of the United States, iii. 243. Keating,op. cit.i. 394.

227Ploss,Das Weib, i. 848.

228Riedel,De sluik- en kroesharige rassen tusschen Selebes en Papua, p. 302.

229Warner, 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.230It 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 ofalmost daily commission, and should have become a trade among certain of the lower midwives.”231In Persia every illegitimate pregnancy ends with abortion; the act is done almost publicly, and no obstacle is put in its way.232In 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.233In 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.234During 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.”236Seneca 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.”237The Romans drew a broad line between feticide and infanticide. An unborn child was not regarded by them as a human being; it was aspes animantis, not aninfans.238It 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

230Laws of Manu, v. 90;Vishńu Puráńa, p. 207sq.

231Chevers,op. cit.p. 712.

232Polak,Persien, i. 217.

233Ploss,Das Weib, i. 846sq.

234Digesta, xlvii. 11. 4.Cf.Rein,Criminalrecht der Römer, p. 447.

235Paulus, quoted inDigesta, xxv. 3, 4.

236Lecky,History of European Morals, ii. 21sq.

237Seneca,Ad Helviam, 16.

238Spangenberg, ‘Verbrechen der Abtreibung der Leibesfrucht,’ inNeues Archiv des Criminalrechts, ii. 23.

239Ibid.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 aform 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.”240St. 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 anembryo informatus, and its artificial abortion is to be punished with a fine only; but theembryo formatusis an animate being, and to destroy it is nothing less than murder, a crime punishable with death.241This distinction between an animate and inanimate fetus was embodied both in Canon242and Justinian law,243and passed subsequently into various lawbooks.244And a woman who destroyed her animate embryo was punished with death.245

240Tertullian,Apologeticus, 9 (Migneop. cit.i. 319sq.).

241St. Augustine,Questiones in Exodum, 80;Idem,Questiones Veteris et Novi Testamenti, 23 (Migne,op. cit.xxxiv.-xxxv. 626, 2229).

242Gratian,Decretum, ii. 32. 2. 8sq.

243As 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 asanimatusforty days after its conception, the latter eighty days. This theory, however—which was derived, as it seems, either from an absurd misinterpretation ofLeviticus, 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, inNeues Archiv des Criminalrechts, ii. 37sqq.).

244von Fabrice,op. cit.p. 202sq.Berner,op. cit.p. 501. Wilda,op. cit.p. 720sqq.

245Fleta, i. 23. 12 (England). Charles V’sPeinliche Gerichts Ordnung, art. 133. Spangenberg inNeues Archiv des Criminalrechts, ii. 16.

The criminality of artificial abortion was increased by the belief that anembryo 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,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.”246And 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.247Subsequently, 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.248Apart 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,249punishes criminal abortion less severely than infanticide.250And the very frequent occurrence of this crime251is an evidence of the comparative indifference with which it is practically looked upon by large numbers of people in Christian countries.

246St. Fulgentius,De fide, 27 (Migne,op. cit.lxv. 701).

247Lex Bajuwariorum, viii. 21 (vii. 20).

248Lecky,History of the Rise and Influence of the Spirit of Rationalism in Europe, i. 360, n. 2.

249Henke,Lehrbuch der gerichtlichen Medicin, 99, p. 75. Berner,op. cit.p. 502.

250von Fabrice,op. cit.p. 199. For modern laws referring to criminal abortion, seeibid.p. 206sqq., and Spangenberg, inNeues Archiv des Criminalrechts, ii. 178sqq.

251See Ploss,Das Weib, i. 848sqq.; Schmidt’sJahrbücher der in- und ausländischen Gesammten Medicin, xciii. 97.

AMONGmany of the lower races a husband is said to possess the power of life and death over his wife; but what this actually means is not always obvious. It is quite probable that, in some cases, the husband may put his wife to death whenever he pleases, without having to fear any disagreeable consequences. In other instances he, by doing so, at all events exposes himself to the vengeance of her family. Among the Bangerang tribe of Victoria, for instance, “he might ill-treat her, give her away, do as he liked with her, or kill her, and no one in the tribe interfered; though, had he proceeded to the last extremity, her death would have been avenged by her brothers or kindred.”1So, also, among the aborigines of North-West-Central Queensland, “a wife has always her ‘brothers’ to look after her interests,” and if a man kills his wife he has to deliver up one of his own sisters for his late wife’s friends to put to death.2We shall see in a subsequent chapter that many statements in which absolute marital power is ascribed to savage husbands are not to be interpreted too literally. I venture to believe that the husband's so-called power of life and death is generallyrestricted by custom to cases where the wife has committed some offence, and, especially, where she has been guilty of unfaithfulness.

1Curr,Recollections of Squatting in Victoria, p. 248.

2Roth,Ethnological Studies among the North-West-Central Queensland Aborigines, p. 141.Cf.Fison and Howitt,Kamilaroi and Kurnai, p. 281 (Geawe-gal tribe).

The right of punishing the wife capitally, however, is by no means universally granted to the husband in uncivilised communities. Among the Gaika tribe of the Kafirs, “if he puts her to death, he is punished as a murderer.”3Among the Bakwiri he has to suffer death himself if he kills his wife; if she is unfaithful to him he is only permitted to beat her.4From the information we possess of the lower races it does not seem to be the general rule that husbands punish their adulterous wives with death; but whether they have the right of doing so is a question seldom touched upon by our authorities.5We shall see that savage custom often gives to the husband only very limited rights over his wife, and requires that he should treat her with respect.

3Brownlee, in Maclean,Compendium of Kafir Laws and Customs, p. 117.

4Schwarz, quoted by Post,Afrikanische Jurisprudenz, i. 401.

5See Steinmetz,Ethnologische Studien zur ersten Entwicklung der Strafe, ii. 303.

Among various peoples of a higher type the husband has, under certain circumstances, had the right of punishing his wife capitally; but this seems to be nearly all that is involved in that “power of life and death” which he is said to have possessed over her.6However, whilst custom or law forbade him to kill his wife without sufficient cause, such a deed was hardly looked upon with the same horror, or treated with the same severity, as the murder of a husband by his wife, owing to the former’s superior position in the family. Among the Langobardi, according to the laws of King Rothar, a husband who killed his wife had to pay the same compensation as anybody else would have had to pay for taking her life, but if a wife killed her husband, she was put to death, and her property forfeitedto the family of the dead.7In Russia, in the seventeenth century, whilst a husband who murdered his wife was, according to law, obnoxious to corporal punishment, a wife who murdered her husband was buried alive, with the head above the ground, and left to perish by hunger.8According to English law, a woman who killed her husband was guilty of “petit treason,” that is, murder in its most odious degree.9

6Rein,Japan, p. 424. Hommel,Die semitischen Völker und Sprachen, i. 417 (Babylonians). Leist,Altarisches Jus Civile, i. 196, 275 (“Aryan” peoples). Wilda,Strafrecht der Germanen, p. 705; Nordström,Bidrag till den svenska samhälls-författningens historia, ii. 61sq.; Weinhold,Altnordisches Leben, p. 250; KeyserEfterladte Skrifter, ii. pt. ii. 28sq.(Teutons).

7Edictus Rothari, 200sqq.

8Macieiowski,Slavische Rechtsgeschichte, iv. 292. For a Corsican law concerning matricide, see Cibrario,Economia politica del medio eve, i. 344; and for the punishment inflicted for the same crime on a woman in Nuremberg, in 1487, see Du Boys,Histoire du droit criminel des peuples modernes, ii. 607.

9Blackstone,Commentaries on the Laws of England, iv. 203.

Among many peoples the life of a woman is held cheaper than that of a man, independently of the relationship between the slayer and his victim. In Burma, if a woman was accidentally killed, less compensation had to be paid than for a man. A Burman explained this in the following words:—“A woman is worth less than a manin that way. A maidservant can be hired for less than a manservant, a daughter can claim less than a son. They cannot do so much work; they are not so strong. If they had been worth more, the law would have been the other way; of course they are worth less.”10Among Muhammedans the price of blood for a woman is half the sum which is the price of blood for a free man.11In ancient India the murder of a woman, unless she was with child, was in the eye of the law on a par with the murder of a Sûdra.12According to Cambrian law, thegalanas, or blood-price, of a woman was half thegalanasof her brother.13Among the Teutons thewergeldof a woman varied: sometimes it was the same as that for a man, sometimes only half as much, but sometimes twice as much, or, if she was pregnant,even more.14These variations depended upon the different points of view from which the offence was looked upon. By herself she was worth less than a man, as a mother she was worth more;15and, quite apart from her value, the natural helplessness of her sex tended to aggravate the crime.16Among modern savages and barbarians, also, the estimate of a woman’s life is in some instances lower than that of a man’s,17in some equal to it,18and in some higher.19Among the Gallas the killing of a free man can be atoned for only by one thousand cattle, whereas fifty are deemed sufficient for the killing of a woman.20On the other hand, among the Iroquois two hundred yards of wampum were paid for the murder of a woman, and only one hundred for that of a man.21Among the Rejangs of Sumatra, whilst the compensation for murder is eighty dollars if the victim was an ordinary man or boy, it is one hundred and fifty dollars if the person murdered was a woman or a girl.22Among the Agār, a Dinka tribe, the murder of a man must be atoned for by a fine of thirty cows, that of a woman by forty cows.23Where wives are purchased, the killing of a woman involves the destruction of valuable property, and is dealt with accordingly.

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