committed. It is, however, enough to decide that this conviction can not be sustained. It is true the jury found that, but for the fraud, the relatives would have required the bodies to be interred without dissection; but they did not in fact so require. The result of this inquiry will probably be that in future, the relatives of the deceased paupers will in all cases require the interment to take place without dissection, but they did not do so here, and although they were influenced by the fraud of the defendant, that does not make him liable to be convicted upon this indictment.

WILLES, J. I am of the same opinion. It is clear that at common law it is a misdemeanor to take up a corpse out of a burial ground and sell it even for the purpose of dissection; but in modern times the requirements of science are larger than formerly, and when they are so extensive, it seems to me that we ought not to entertain any prejudice against the obtaining of dead bodies for the laudable purposes of dissection, but we ought rather to look at the matter with a view to utility and that we should not suffer ourselves to be prejudiced by the unfeeling and indecent nature of the defendant's conduct. Now the Anatomy Act has altered the common law, and has rendered the selling of a dead body for the purpose of dissecting lawful under certain circumstances. It is true, this person was guilty of a trick, but nevertheless, he does not come within the exception in the section of the act. Whether or not an indictment could be framed for this fraud in preventing the requirement, is not for me to say; it would be extrajudicial for me to express an opinion upon that; but the very case which here presents itself is provided for by the Legislature by section 31 of the 7th & 8th Victoria,1 which enacts that it shall not be lawful for any officer connected with the relief of the poor to receive any money from any dissecting school or school of anatomy, or hospital, or from any person or persons to whom any dead body may be delivered, or to derive any personal emolument whatever for, or in respect of the disposal of such body; and every offender on conviction is made liable to a penalty not exceeding £5. We are asked to say that the defendant has been guilty of a misdemeanor at common law, and not of any offense under the Anatomy Act; and looking at that act, it seems to me that, in disposing of the dead bodies, he was not guilty of an unlawful act, and that he was not rightly convicted.

BRAMWELL, B. I am the same opinion. I assume that, except for the statute, this indictment would be good at common law. Then, it is the defendant protected by the statute? He was justified by the statute in what he did, unless some relative required the body to be

1 ch. 101.

buried without dissection. Mr. Robinson admits that none of the relatives did this in terms, and that in fact the idea of dissection never entered their minds; but he contends that their conduct with respect to the burial, and the defendant's fraud in concealing the intention to dissect, are equivalent to a requirement; but this is not so. I think the act means that there must be an affirmative requirement. The only doubt I have had has been this- the act seems to mean that the relatives shall have an opportunity of requiring, and for this purpose they must have a reasonable time to do so; and I have had a doubt whether this reasonable time had been afforded them; but I think it had; a reasonable time could not be longer than that which ought to intervene between the death and the burial. The relatives had the whole of this period to make the requirement, and during a portion of this time there had been no fraud. The truth is, a wrong has been done to the relatives by the concealing from them by fraud what they ought to have been made acquainted with. It may be that this would afford a cause of action, but I can not think that it forms a ground for this indictment.

BYLES, J. I agree with the rest of the court.

Conviction quashed.

CONSENT AS A DEFENCE-ABORTION.

STATE v. COOPER.

[22 N. J. (L.) 52].

In the Supreme Court of New Jersey, April Term, 1849.

Consent, Except in Cases of High Crimes, relieves an act otherwise criminal of its criminal nature. Therefore it is not an assault to cause an abortion on a woman not quick with child, if done with her consent.

This case was upon an indictment found in the Oyer and Terminer of Morris County. On a motion to quash the indictment, that court had reserved the question of the sufficiency of the indictment for the advisory opinion of this court, and the argument was had upon a case stated and certified to this court. The offenses charged in the indiotment appear in the opinion of the Court.

Argued before the CHIEF JUSTICE, and RANDOLPH and OGDEN, Justices, by Scofield and Attorney-General for the State, Whelplay for defendant. The CHIEF JUSTICE delivered the opinion of the court.

The only point reserved, and submitted for the opinion of this court, is whether an attempt to procure an abortion, the mother not being quick

with child, is an indictable offense at the common law. It may simplify the inquiry to consider whether the procuring an abortion under such circumstances constitutes a crime. If the character of the act itself, when accomplished, be clearly ascertained, we shall be enabled with more certainty to decide upon the character of a mere attempt to commit the act.

Is, then, the procuring of an abortion, either by means of potions or of an operation used by the mother herself, or by another with her consent, an indictable offense at the common law, unless the mother be quick with child?

Undoubtedly the commission of such an act without the consent of the mother is indictable, as an assault upon the mother. The indictment in this case, charging as it does in one count, that the defendant assaulted the mother and administered the potions, and in the other, that he made the assault and used violence to procure an abortion, is clearly good, and the court was right in refusing the quash. The indictment charges an assault with circumstances of aggravation. The offense charged is against the person of the mother, and is presumed to be, as in all other cases of assault, without her consent.

But when no assault is alleged or proved, when the act is done by the mother herself or with her assent, a very different question is presented. It was insisted, indeed, upon the argument, that the assent of the mother was null; that the offense was of so high a nature that no assent of hers could purge its criminality. But this, it is obvious, is begging the question. The charge of assault, of an offense against the person of the mother, is clearly purged of criminality by her assent. The ingredient which, according to the argument, gives character to the offense, and takes away the power of the mother to consent, is the attempt to procure abortion, which it is alleged is an offense against the person of the child. But the very point of inquiry is, whether that be an offense or not, and whether the child be in esse, so that any crime can be committed against its person.

In regard to offenses against the person of the child, a distinction is well settled between its condition before and after its birth. Thus, it is not murder to kill a child before it be born, even though it be killed in the very process of delivery.1

There appears to be at the common law a distinction equally well settled between the condition of the child before and after the mother is quick. "Life," says Blackstone, "begins in contemplation of law as soon as an infant is able to stir in the mother's womb." 2

It is not material whether, speaking with physiological accuracy, life may be said to commence at the moment of quickening, or at the mo

1 Hale's P. C. 433.

2 1 Bla. Com. 129.

ment of conception, or at some intervening period. In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it first received it.

The offense of procuring an abortion seems, by the ancient commonlaw writers, to be treated only as an offense against life. Thus Coke says: "If a woman be quick with child, and by a potion or otherwise killeth it in her womb, or if a man beat her whereby the child dieth in her body, and she is delivered, this is a great misprision, but no murder." 1

"It was anciently holden that the causing of an abortion by giving a potion to, or striking a woman big with child, was murder; but at this day, it is said to be a great misprision only, and not murder, unless the child be born alive, and die thereof." 2

If a woman be quick or great with child, if she take, or another give her any potion to make an abortion, or if a man strike her whereby the child within her is killed, it is not murder or manslaughter by the law of England because it is not yet in rerum naturæ, though it be a great crime.3 If a woman be quick with child, and by a potion or otherwise killeth it in her womb, or if any one beat her whereby the child dieth in her body, and she is delivered of a dead child, this, though not murder, was by the ancient law homicide or manslaughter. But the modern law doth not look upon this offense in quite so atrocious a light, but merely as a heinous misdemeanor.4

In two of these authorities,5 the term "big" or "great" is obviously used as tantamount to "quick." In all of them, the authors are treating of the crime of murder, one of the offenses against human life; and they distinguish between the life of the infant before and after birth. There is in none of them a reference to the mere procuring of an abortion by the destruction of a fœtus unquickened, as a crime against the person or against God and religion. Abortion, as a crime is to be found only in modern treatises and in modern statutes. No trace of it is to be found in the ancient common-law writers. Bracton, indeed, uses language which at first view might seem to favor a different conclusion. He says, "Si aliquis, mulierem pregnantem percusserit, vel ei venenum dederit, per quod fecerit abortivum, si puerperium jam formatum fuerit, et maxime si animatum, facit homicidium. He is treating, however, of the crime of homicide, and it is perfectly certain, by the unanimous concurrence of all the authorities, that that offense could not be committed unless the child had quickened.

1 3 Inst. 50.

21 Hawk. B. 1, ch. 31, sec. 16.

1 Hale's P. C. 433.

41 Bla. Com. 129.

6 Hale and Hawkins.

6 Brac. L. 3, ch. 21.

So far as my researches have gone, I have found no precedent, no authority, nor even a dictum (prior to Lord Ellenborough's act1), which recognizes the mere procuring of an abortion as a crime known to the law.

There is a precedent,2 which has been frequently referred to in support of the principle that an attempt to procure an abortion was a crime at the common law. Properly considered, however, it is rather an authority the other way. It charges, in each of its counts, an assault by the defendant upon the mother; it is, indeed, a mere indictment for an assault with circumstances of aggravation. It contains no count for the mere procuring of an abortion, or for an attempt to commit the offense, thus affording a strong indication that the pleader deemed some other ingredient necessary to constitute crime. It has been well observed, moreover, that the indictment contains averments, which if not directly, yet by necessary or fair inplication, show that the child had quickened. It is remarkable, too, that this indictment was drawn at Trinity Term.3 The next year Lord Ellenborough's Act was passed, declaring the procuring of an abortion, though the mother be not quick with child, a felony. It seems not improbable that a supposed defect in the law, in the very particular now under consideration, led to the passing of the act.

The distinction thus clearly recognized in the ancient law, between the condition of the child and the consequent criminality of an act tending to its destruction, before and after quickening, has been fully recognized by the earlier legislation upon the subject. Thus the statute 4 makes it a capital offense to cause the miscarriage of a woman quick with child, and a felony of a mitigated character to cause a miscarriage before the quickening.

The earlier legislation in this country upon the subject recognizes the same distinction.5 It is only in very recent statutes that the distinction has been abolished.

By the laws of most countries this crime is punished with more severity if committed after the quickening, than before. The Roman penal code made the same distinction."

It is true that, for certain civil purposes the law regards an infant as in being from the time of conception, yet it seems nowhere to regard. it as in life, or to have respect to its preservation as a living being. So if the mother be convicted of a capital offense, the mere fact of pregnancy is of no avail to stay execution of the sentence of death.

1 43 Geo. III., ch. 58.

2 3 Chitty's Crim. Law, 557.

3 42 Geo. III.

4 43 Geo. III.

52 Rev. Stat. N. Y. (1829) 661, 38, 9; 694, sec. 21; Rev. Stat. Ohio (1804) 282; Rev. Stat. Conn. (1838) 145, sec. 15.

Male's Jur. Med. 112.