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Alexander Hamilton and Infanticide:

A blogger for a weekly local community insert the Denver Post/Rocky Mountain News wrote:

If you look hard enough you can find the transcript of a young State Senator Alexander Hamilton of New York arguing eloquently and effectively against a bill that would require a witness be present at birth to ensure the mother did not kill her baby. His reasoning? Her fundamental right to privacy.

Do any readers have more information on this? Hamilton never served in the New York State Senate, but he did serve in the N.Y. Assembly in 1787, before joining the Continental Congress in 1788. The author claims that Roe v. Wade based itself on the Fourth Amendment (rather than 14th), so I am not confident about his factual meticulousness.

Thomas Alan (mail):
Even if it is true, I'm not sure what importance it has. We're not talking about abortion here. We're talking about murdering an already born infant which I'm pretty sure President Madison (and most sane people) would never call a right to privacy.

If Madison truly did say this, his protest would be that the mandate of the witness was the violation of privacy and not the law against killing a newborn.
5.1.2007 8:09pm
CollegeProf:
Given the sheer nonsense in most of that post, the chances that this guy is right about Hamilton seems pretty much zero.
5.1.2007 8:20pm
James Fulford (mail):
I've got nothing to prove he ever said anything on the subject. There was contemporary Scottish doctor named Alexander Hamilton who wrote Outlines of Theory and Practice of Midwifery and A Treatise on the Management of Female Complaints. [Midwifery:Rare Book and Special Collections Division]

He sounds more likely as a source, but I have no way of knowing.
5.1.2007 8:22pm
rlb:
Remember the 1L torts case where a man misrepresented himself as a medical professional and was sued for holding a woman's hand while she gave birth [battery]? Sure, it was a 19th century case, but I think the same motivation would have been present in the founding era as well. No doubt that "privacy" was a big deal for women at the time.

But does "privacy" include the privilege to kill your children? Of course not- maybe a "right to [a layman's definition of] privacy" would be a practical impediment to prosecuting infanticide, but the idea that this kind of "privacy" would have been seen as a defense once the crime is proved is absurd.
5.1.2007 8:52pm
ReaderY:
If there's anything to the story at all, one suspects what's involved is nonething more than traditional concerns of modesty and discretion involved in not being forced to have some potentially lecherous outsider able to view ones private parts while one is indisposed, and the problems of such a requirement (in terms of indecencies and perhaps rapes) would outweigh any benefits from the slight chance that a mother would be murderous. One also suspects such reasoning represents a form of balancing regarded as part of legislative discretion.

To argue that support for such a proposition even correlates with, let alone implies, support for abortion as a constitutional right, seems ludicrous.
5.1.2007 9:16pm
Steve:
New York presently has a law that mandates a second doctor to be present for any post-viability abortion, whose purpose is to use best efforts to ensure the baby's survival in the event a live birth somehow occurs. However, I rather doubt this law has colonial origins.
5.1.2007 9:17pm
Student:
You folks are missing the point: it's not about a right to abortion or to infanticide, it's about a right to privacy. Nobody is saying Hamilton supported abortion, but if he did in fact invoke a right to privacy that would have some bearing on modern debates over the existence of such a constitutional right. (The fact that it relates to Griswold and Roe is secondary.)
5.1.2007 9:50pm
2L:
Student-- Assuming that this transcript even exists (which I doubt), arguing against a law on privacy grounds does not mean that one thinks it has constitutional dimensions. Example: I'd rather not have laws against smoking pot, and I think privacy is part of that, but banning pot is plainly constitutional.
5.1.2007 10:14pm
Bruce Hayden (mail) (www):
It reminds me a bit of a fantasy novel I was reading yesterday. The wife of the king is getting ready to give birth. A number of people in the court want to be present. One, in particular, is bringing his own doctor along, in case he can help, and therefore make sure that the baby doesn't live. The wife is quite upset, and only wants two other women present. The king asks her if only those other two woment present is what she really wants. She says yes, and he relievedly grants her wish.

Yes, it was fiction. But the point is that there is a real desire on the part of some/many women to minimize the number of unnecessary people present when giving birth. I would guess that a distinct majority of the women I know fairly well would have insisted on only essential medical personel and the father (or coach) being present. Women are invariably not at their best at that time, and it isn't the least bit surprising that they would prefer not to have unnecessary people present.
5.1.2007 10:29pm
cathyf:
I'm somewhat amused that no one has commented on privacy &modern childbirth. The horde of people who materialize in your room when the baby starts crowning is truly amazing. (As Dave Barry cracked, "and then the bus from Cleveland pulls up...") And that's if you give birth in a birthing room -- in the traditional setup of separate labor and delivery rooms, many a birthing mother has wheeled down the hallway, perhaps taken an elevator ride, with a baby crowning and the sheets propped up for all to see, or with a doctor or nurse with hand shoved up her birth canal.

In many states it is, for all practical purposes, illegal to give birth in any other circumstances.
5.1.2007 10:30pm
Dave Hardy (mail) (www):
It does sound quite strange.

1. He refers to transcripts from a state legislature, but since shorthand had not yet been invented those were rare. Even the congressional debates are assembled from newspaper articles and appear only to approximate what was said.

2. Requiring witnesses to births seems an unlikely requirement in a then partially frontier NY state. No doubt women got assistance (and thus witnesses) when they could, but I'm sure a fair number were alone when labor came on. Also, with no birth certificate or other reporting of birth, how would the government have known if someone gave birth without a witness?
5.1.2007 10:46pm
Dave Hardy (mail) (www):
Yes, it was fiction. But the point is that there is a real desire on the part of some/many women to minimize the number of unnecessary people present when giving birth.

In the 18th century it went beyond that -- if a doctor attended, he wasn't expected to actually SEE the birth! The mother was draped in sheets and he reached under them. There was one case where a woman became famous for having given birth to a rabbit, as I recall. Of course she'd just padded her belly out and hidden a dead rabbit ("stillborn") in her dress, to be shoved to the gullible physician at the right moment.
5.1.2007 10:50pm
BruceM (mail) (www):
I don't buy it. Abortion was never an issue before the civil war. Only when black people were free and reproducing at high rates, while white women had the money to afford the luxury of abortion and family planning, did abortion become a political issue -- long after the days of Alexander Hamilton. Abortion is a race issue, and there were no race issues back in that day, slavery was a given and lasted for another century. Nobody worried about the black population growing faster than the white population, in fact, they probably wanted that back then--more slaves, more property.
5.1.2007 10:52pm
Dave Hardy (mail) (www):
Reminds me of when my late ex delivered our first.

At Fairfax Hospital (where she died almost exactly 18 yrs later), women in labor were put in a large room with draperies separating them, then moved into the delivery room next door when birth was well underway. The nurses instructed me that if I felt faint, common enough among fathers, I should sit or go to my knees before I passed out.

While in the former room I heard a loud "THONK!" just like a 2x4 hitting concrete. Nurses began to rush into the area next to us.

I asked what it was. They said it was the head of the father in the cubicle next door hitting the floor. He'd been a little slow to go to his knees.
5.1.2007 10:54pm
J. F. Thomas (mail):
Well of course infanticide was common. It just wasn't talked about. "Defective" children were left to die. Women who got pregnant out of wedlock had a remarkably high rate of "stillbirth" and it was accepted as normal. So many children died in infancy, nothing was thought of it.

Life was hard. Look it up. Even the Catholic Church's unshakable belief that life begins at the moment of conception is less than two hundred years old.
5.1.2007 11:23pm
Andrew Hyman (mail) (www):
I remember seeing the transcript of Hamilton's remarks on this subject in the N.Y. Assembly during 1787. I don't remember the transcript very well, since I was looking for other stuff. But, you can find this transcript in newspapers of that era.

Another legislator was proposing a bill regarding stillbirths. He wanted to make sure that it really was a stillbirth rather than infanticide, as I recall. Hamilton's argument was that the bill would have a stigmatizing effect. The transcript didn't seem complete enough to get a really good sense of the issues involved.
5.2.2007 12:02am
Andrew Hyman (mail) (www):
Here is the transcript.

[DK: U R awesome!]
5.2.2007 12:10am
arbitraryaardvark (mail) (www):
Student-- Assuming that this transcript even exists (which I doubt), arguing against a law on privacy grounds does not mean that one thinks it has constitutional dimensions. Example: I'd rather not have laws against smoking pot, and I think privacy is part of that, but banning pot is plainly constitutional.

You are right that not ever policy preference for privacy equals a constitutional argument - that would be a separate and further step. Still, they are related. If Hamilton (real or myth) thought there was a fundamental right of privacy in the birthing room, that would be relevant to Roe, which found a right to privacy implicit somewhere in the 1st, 4th, and 10th.

As to your example, Alaska is one of the (10?)states with an explicit right to privacy,and has, at least at times, found that this requires legalization of personal use of pot. Other states have disagreed, but it's not as plain as you might think.
5.2.2007 12:14am
cathyf:
Well of course infanticide was common. It just wasn't talked about. "Defective" children were left to die. Women who got pregnant out of wedlock had a remarkably high rate of "stillbirth" and it was accepted as normal. So many children died in infancy, nothing was thought of it.
An even more common scenario from the turn of the 20th century was that rich women would hire an impovrished girl who had recently given birth out of wedlock as a wet nurse. The girl's child was not welcome in the employer's home, and so would be left as a "boarder" and fed formula. The death rate for those babies was quite high.
5.2.2007 12:45am
Andrew Hyman (mail) (www):
Yes, I am. :)

Note that Hamilton was not making a constitutional argument at all. He was only making a policy argument on behalf of women who clandestinely and accidentally give birth to a dead child. He wasn't in any way endorsing a right to infanticide, or a right to abortion.

Another framer of the Constitution, James Wilson, put it this way:

With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.


James Wilson, Of the Natural Rights of Individuals (1790-1792). We now know that the first movements occur during the first trimester.
5.2.2007 12:55am
Andrew Hyman (mail) (www):
Not to belabor the point, but New York's statutory bill of rights of 1787 said, "That no citizen of this State shall be taken or imprisoned or be disseised of his OR HER freehold or liberties of free customs or outlawed or exiled or condemned or otherwise destroyed, but by lawful judgment of his or her peers or by DUE PROCESS OF LAW" (emphasis added).

Hamilton did not argue that the proposed legislation would be a due process violation, even though he disagreed with the proposed legislation.
5.2.2007 1:24am
Dave Hardy (mail) (www):
interesting... I've heard of a few cases of the time when an undesired pregnancy was ended with infanticide, or suspected infanticide. Hamilton's remarks, as reported, are a bit unclear. He might be saying:

1. No one should intrude into the mother's misfortune of a stillborn chld (but then why speak of her re-admission into polite society, when that was a misfortune that can hardly be attributed to her?), or

2. not investigating too far into, well, outright infanticide (which would be a bit much now, and certainly an extreme argument in the 18th century); or

3. Given that this sounds like a summary, some combination of the above. If a woman, married or not, miscarries, it shouldn't be the subject of a public inquiry.
5.2.2007 2:03am
Andrew Hyman (mail) (www):
The subject of the legislation was "clandestine" delivery. In other words, a woman became pregnant otherwise than with a husband, and therefore she would have wished to keep everything hush-hush. For example, she might intend to quietly give the child up for adoption, or keep the child herself while calling minimal attention to the circumstances and to the paternity. In either case, her goal would be to re-enter polite society.

If she has the misfortune to have a child who is stillborn, then the legislation would have required her to publicly prove that it was a stillbirth. That would ruin the whole point of delivering clandestinely.
5.2.2007 2:27am
Bill Poser (mail) (www):

since shorthand had not yet been invented

Hunh? Shorthand was extensively used in the 18th century. Most of the records that we have of political speeches and sermons from this period and the early 19th century derive from the transcriptions made by stenographers. James Henry Lewis' book An Historical Account of the Rise and Progress of Short Hand. London: Sherwood, Neeley and Jones), published in 1816, lists dozens of shorthand systems, starting in the 17th century.

Shorthand systems are known to have been in use in Roman Times. Cicero's slave Tyro was famous for his system of shorthand, known as "Tyronian notes".
5.2.2007 4:27am
Brett Bellmore:

Abortion was never an issue before the civil war.


Remind me again when the Hipocratic oath was written. ;)
5.2.2007 7:27am
AppSocRes (mail):
Andrew Hyman: Thank you for proving that Hamilton did say this, but with an intent utterly different than that imputed by the original citation.
5.2.2007 9:57am
Latinist:
It's worth remembering that we tend to have a special exception for doctors in our concept of privacy, which comes from the place doctors have in our society, which they didn't always have. I don't know how things were in the 18th century, but in a much earlier time, Pliny railed against all doctors, partly because he thought it was terrible that they were allowed to see the private parts of respectable women they weren't married to.

And Brett Bellmore: I mentioned this in a comment to an earlier post, but the Hippocratic Oath may not really involve the abortion "issue," at least as we think of it: since it forbids abortifacient drugs, without mentioning mechanical methods, it may be concerned only with the unwanted side effects of those drugs on the mother. However, you're right that there are ancient discussions of the morality of abortion and when life begins: I think both Galen and Soranus have something to say about it, though I don't remember exactly what.
5.2.2007 11:56am
Milhouse (www):
In Hamilton's argument, "unfortunate woman" is a term of art. It means an unmarried woman who falls pregnant, and is therefore giving birth in secret.

The bill didn't require a special witness to be present; the midwife would have been a perfectly acceptable witness, and in the normal case of a stillbirth it would have been no burden at all for the mother to bring the midwife to court, to testify that the baby wasn't murdered. Or if the baby died in the night (remember the bill also covered deaths of young infants), she could have her husband or other household member testify.

Hamilton's problem was with the "unfortunate woman", whose hope to re-enter "virtuous society" depended on nobody knowing that she'd ever been pregnant. If the baby lived, she'd be OK; she could leave it with someone, or present it to the world as her poor orphaned nephew or something. But if the baby should happen to be born dead, suddenly she'd have to tell the whole world that she'd been pregnant, and her life would then be ruined.
5.2.2007 2:00pm
J. F. Thomas (mail):
Hamilton's problem was with the "unfortunate woman", whose hope to re-enter "virtuous society" depended on nobody knowing that she'd ever been pregnant. If the baby lived, she'd be OK; she could leave it with someone, or present it to the world as her poor orphaned nephew or something.

The unspoken, but hinted at, purpose of the bill was to reduce the shockingly high number of "stillbirths" among such "unfortunate" women. No one really believed that they were actually talking about stillbirths. They were trying to reduce the rate of infanticide without admitting it was a fairly common practice. Hamilton was saying, "don't mess with a woman's decision about whether she wants to keep her bastard child and screw up her chances for a normal life."

Another way to deal with an unwanted pregnancy (and the woman would hardly be OK if the baby lived, there would be all kinds of questions asked) was simply to kill the baby at birth and claim it was stillborn. Then the scandal of the out-of-wedlock pregnancy would be known only to the immediate family and there would be no little bastards running around to remind the family and the woman of her shame (and ruin her chances of landing a suitable husband). Of course, infant death was so common, no one blinked an eye at another "stillborn" infant. Hamilton was merely saying that the government shouldn't get involved in these family decisions.
5.2.2007 2:23pm
Andrew Hyman (mail) (www):
Like I said, "The transcript didn't seem complete enough to get a really good sense of the issues involved."
5.2.2007 2:35pm
Toby:
While there are many interesting points made on both sides above. I think it is a mistake to think that the word "Privacy" as used legal converasation in the 18th century and in the 21stt have much in common.
5.2.2007 3:19pm
Mr. Mandias (mail) (www):
I sincerely hope you are wrong, J.F. Thomas. I don't think my regard for Hamilton could survive him defending infanticide.
5.2.2007 8:31pm
J. F. Thomas (mail):
I sincerely hope you are wrong, J.F. Thomas. I don't think my regard for Hamilton could survive him defending infanticide.

Hamilton was willing to participate in a duel with deadly consequences over a statement at a dinner party and you don't think he would support infanticide to avoid besmirching a young lady's honor? Talk about moral relativism.

Well, that is because pro-life forces have managed to sell the myth that western society has always valued human life from the moment of conception. This of course in adulterated nonsense. Even the Catholic Church used to regard "ensoulment" as occurring well after conception until the middle of the 19th century. There is not a single mention of abortion in the bible and in fact Mosaic law makes it clear that the killing of a fetus is not the same as the killing of an adult. Infanticide (and euthanasia) has been common in all societies throughout history up until modern times. It might me shocking to you, but in many ways we are much more civilized than the founding fathers.

Madison lived in a society where human beings were bought, sold, owned and traded like cattle. If a slave owner raped a slave and a bastard child resulted, nobody, not even the man's wife, would say a thing. If he killed a slave, that was his right. Petty disputes and insults to honor could be solved with duels. Entire races of people were being systematically hunted down and exterminated all over the world and this was considered normal and just.

And you are surprised he would defend infanticide to protect a woman's honor?
5.3.2007 11:48am
Milhouse (www):
If he killed a slave, that was his right.
Now I know you haven't got a clue what you're talking about. There has never been a time or place in USA history when that has been the case.
5.3.2007 6:33pm
J. F. Thomas (mail):
There has never been a time or place in USA history when that has been the case.

Oh really? And can you find any evidence of any serious legal consequences suffered by a master killing his own slave in the entire history of slavery in the United States?
5.4.2007 1:46pm