2

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. Among the Dacotahs, who only occasionally killed infants, abortion procured by artificial means was not held objectionable. On the other hand there are savages who consider it a crime. Some Indian tribes in North America abhor the practice. The natives of Tenimber and Timor-laut punish it with heavy fines.* 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."

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. 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

Turner, Samoa, pp. 79, 280.

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

3 Ploss, Das Weib, i. 848.

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

302.

5 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. See Laws of Manu, v. 90; Vishnu Purána, p. 207 sq.

almost daily commission, and should have become a trade among certain of the lower midwives." 1 In Persia every illegitimate pregnancy ends with abortion; the act is done almost publicly, and no obstacle is put in its way.2 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. 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. During the Pagan Empire, abortion was extensively practised, either from poverty, or licentiousness, or vanity; and, although severely disapproved of by some," "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. 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.” 7 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. 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."

"6

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

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."1 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. This distinction between an animate and inanimate fetus was embodied both in Canon and Justinian law, and passed subsequently into various lawbooks.5 And a woman who destroyed her animate embryo was punished with death."

3

4

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,

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." 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. 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. 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, punishes criminal abortion less severely than infanticide. And the very frequent occurrence of this crime is an evidence of the comparative indifference with which it is practically looked upon by large numbers of people in Christian countries.

CHAPTER XVIII

THE KILLING OF WOMEN, AND OF SLAVES

THE CRIMINALITY OF HOMICIDE INFLUENCED

BY DISTINCTIONS OF CLASS

AMONG many 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." So, also, among the aborigines of North-WestCentral 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. We 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 generally

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

2 Roth, Ethnological Studies among the North-West-Central Queensland

Aborigines, p. 141. Cf. Fison and Howitt, Kamilaroi and Kurnai, p. 281 (Geawe-gal tribe).