Definition
MISCARRIAGE carries three distinct legal meanings that have operated largely independently across different areas of law. Researchers must identify context before treating any historical source as authoritative.
1. Medical jurisprudence (obstetric sense). The expulsion of the ovum or embryo from the uterus within the first six weeks after conception. Historical legal dictionaries sharply distinguished this from abortion (expulsion before the sixth month, when independent life became possible) and from premature labor (delivery after the sixth month). This three-part taxonomy — miscarriage, abortion, premature labor — was the operative framework in 19th-century medical jurisprudence and shaped how criminal statutes and indictments were drafted.
2. Criminal law. The unlawful procurement of the expulsion of a fetus at any stage of pregnancy, whether by the pregnant woman upon herself or by a third party acting upon her. In this usage, miscarriage functioned as a synonym for criminal abortion. Statutes criminalizing the act typically used both terms interchangeably, and indictments charging "procuring a miscarriage" were standard form in English and American courts through the 19th century.
3. General legal usage (erroneous conduct or failure of process). A wrongful act, erroneous doing, or faulty conduct that causes legal injury or produces an unjust result. Anderson's Dictionary captures this meaning most plainly. The phrase miscarriage of justice is the principal surviving form of this usage and refers to a fundamentally unjust outcome in legal proceedings — a conviction of the innocent, a procedurally corrupt verdict, or a sentence so disproportionate as to represent a failure of the justice system itself.
Common Language
Modern common usage (Wiktionary): A spontaneous natural termination of a pregnancy before viability; also, a failure, mistake, or error.
Historical common usage (Webster's 1913): An unfortunate event or failure to attain a desired result; ill conduct or improper behavior; also, bringing forth a child before the full term.
The common meaning and legal meaning share surface vocabulary but diverge in precision. Ordinary modern usage treats miscarriage as essentially synonymous with spontaneous pregnancy loss — an involuntary, non-criminal event. Historical legal usage, however, made no such implication of involuntariness: criminal statutes charging "procuring a miscarriage" were specifically directed at intentional acts. Researchers reading 19th-century indictments or statutes must not assume the modern medical connotation of spontaneous loss. The general sense (failure, error) survives legally almost exclusively in the compound miscarriage of justice.
Common Confusion
Three overlapping terms were not always used consistently even within legal sources:
MISCARRIAGE vs. ABORTION: In strict 19th-century medical jurisprudence, these were temporally distinct — miscarriage described only the first six weeks, abortion the period thereafter through viability. But criminal statutes routinely used the terms interchangeably, and many courts treated them as functional synonyms when charging an offense. Do not assume the technical distinction was observed in any particular jurisdiction or document.
MISCARRIAGE vs. PREMATURE LABOR: The distinction between criminal abortion and premature labor turned on viability — roughly the sixth month. This line was medically contested in the 19th century and is not equivalent to modern viability doctrine under constitutional law, which developed along entirely different lines.
PROCURING A MISCARRIAGE vs. MISCARRIAGE OF JUSTICE: These are etymologically related but legally unconnected. A researcher tracing "miscarriage" in an index must determine immediately which sense governs; conflating them will produce false corpus connections.
Recognized Forms
/SUBTYPES
Miscarriage of justice: The most durable legal compound. Refers to a fundamentally unjust outcome in judicial proceedings — most commonly the wrongful conviction of an innocent person, but also applicable to serious procedural failures, denial of fair trial, or grossly disproportionate punishment. Used as grounds for appellate relief, post-conviction remedies, and statutory compensation schemes in many jurisdictions.
Procuring a miscarriage: Historical criminal law formulation. The intentional termination of a pregnancy by any means, at any stage, by the pregnant woman or a third party. The dominant charging language in English-derived criminal codes through the 19th and into the 20th century.
Why It Matters in Research
The term's three meanings create genuine indexing traps. Historical legal dictionaries — including Black's, Bouvier's, and Rapalje & Lawrence — treat the medical jurisprudence and criminal law senses as primary without clearly flagging when they collapse into each other. Anderson's entry shifts to the general conduct sense without transition. A researcher working across multiple sources may find "miscarriage" cited in what appear to be contradictory ways, when in fact the sources are simply working from different primary senses.
The obstetric taxonomy in the historical dictionaries (miscarriage / abortion / premature labor) does not map onto modern legal or medical frameworks. Modern law and medicine use miscarriage almost exclusively to mean spontaneous pregnancy loss before viability, while abortion refers to intentional termination at any point. The reversal of these terms' scopes between 19th-century legal usage and modern usage is a significant research hazard. A statute or treatise using "miscarriage" in the criminal sense does not refer to what a modern reader would call a miscarriage.
For Statute of Frauds research: Rapalje & Lawrence flags a separate appearance of "miscarriage" in that context, derived from the original 1677 statute (29 Car. II, c. 3). There, miscarriage referred to erroneous or wrongful conduct by an agent — the general sense of Anderson's entry. This usage bears no connection to the obstetric sense and requires attention when reading Statute of Frauds commentary.
Corpus searches for "miscarriage" will return results across all three senses without differentiation. Filtering by surrounding vocabulary (medical terms, criminal charging language, procedural justice language) is necessary before drawing conclusions.
Historical Dictionary Support
Black's (1st and 2nd editions) and Bouvier agree closely on the medical jurisprudence definition, presenting the tripartite taxonomy of miscarriage, abortion, and premature labor as settled doctrine. The entries are nearly identical across editions, suggesting this was a stable formulation drawn from common medical jurisprudence sources of the period. Both entries then pivot — in language that the source material preserves only partially — to the criminal act of destroying the fetus "at any time," signaling that the criminal law sense subsumed all three obstetric distinctions: the crime was complete regardless of gestational stage.
Rapalje & Lawrence is the most useful source for the criminal law charging sense, citing Stephens' Commentaries for the proposition that both the woman acting on herself and any third party could be guilty of felony. This remained the structure of Anglo-American criminal abortion law through most of the 19th and early 20th centuries.
Anderson's Dictionary presents the general conduct sense (erroneous doing, wrongful act incurring liability) without connecting it to the obstetric or criminal senses. This is not an error but a reflection of the term's genuinely separate legal life in general civil and procedural contexts.
What the historical dictionaries collectively miss: they do not address miscarriage of justice as a developed legal concept with procedural consequences. That doctrine matured largely in 20th-century appellate and post-conviction law and is absent from these sources as a standalone entry.
Jurisdictional Note
The criminal law sense of procuring a miscarriage was substantially restructured following constitutional developments in U.S. law beginning in the 1970s, and again following subsequent Supreme Court decisions. English law followed a different statutory path. Researchers should not assume that historical criminal charging language remains operative in any jurisdiction without confirming the current statutory and constitutional framework.