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pointed executor, k is capable of taking as legatee, l or under a marriage settlement, m may take specifically under a general devise as a “child ; ”n and may obtain an injunction to stay waste. o Such, also, was the effect of a decision on the direct point in Pennsylvania in 1845.
•P $ 1221. Since the publication of the first edition of this work, the position taken in the text has been the subject of much discussion. In Massachusetts, the supreme court has again held, that at common law, unless there is quickness, there is no offence ; q and the result was the enactment by the legislature of a statute to cover the supposed deficiency. In Iowa, a similar view has been intimated. ql In New Jersey, the same view was taken by the supreme court, in a learned opinion. r recent American treatise upon criminal law,” says Green, C. J., - in the latter cases the proposition that the procuring of an abortion was indictable at common law, has been stated and advocated with much learning. Wharton's Amer. Crim. Law, 308; Whar. Prec. 108. The only direct authority in support of the doctrine is the case of the Commonwealth v. Demain, decided by the supreme court of Pennsylvannia, at January term, 1846, and reported in 6 Penn. Law Journal, 29. Although in this case the point appears to have been elaborately argued by counsel, it does not appear to have been decided by the court. We are of opinion that the procuring of an abortion by the mother, or by another with her assent, unless the mother be k Bac. Ab. tit. Infants.
66 In a
abortion on herself, but alleged no 1 2 Vernon, 710.
special damage. So the question m Swift v. Duffield, 5 Serg. & Rawle, came up whether the words were 38; Doe v. Clark, 2 H. Bl. 399 ; 2 Ves. actionable per se as imputing a crime. Jr. 673; Thellusson v. Woodford, 4 The supreme court held that to cause Vesey, Jr. 340.
or procure an abortion, before the n Fearne, 429.
child is quick, is not a crime at common o 2 Vernon, 710.
law, and also an infant in ventre sa p Com. v. Demain, &c., 6 Penn. mere is not a human being within the Law Jour. 29; Brightly, 441.
code of this state, hence the charge 9 Com. v. Parker, 9 Metc. 263. See was not imputing to her the crime of Com. v. Wood, 11 Gray, 85, to the murder, and hence judgment was reeffect that under statute quickening versed in favor of the defendant. is unnecessary.
Abrams v. Foshee and Wife, 3 Clarke q This was in an action of slander, (Iowa), 274. See also Hatfield v. Gano, where the declaration stated that the i5 Iowa, 177; and in New York, Evans defendant charged the wife of the v. People, 49 N. Y. 386. plaintiff with having procured an r State v. Cooper, 2 Zabriskie, 57.
quick with child, is not an indictable offence at common law, and, consequently, that the mere attempt to procure the act is not indictable." It must be admitted that the criticism thus made on the precise effect of Com. v. Demain has great force; and perhaps on the record it may be doubted whether, in sustaining the indictment, the supreme court of Pennsylvania can be said to have decided the direct point. & The fact that it was regarded as so doing may be attributed to the oral expression of opinion by the learned judge (Sergeant, J.), who subsequently tried the case at nisi prius, and who certainly entertained no doubt as to the law being such as is stated. But in Pennsylvania the question has been put to rest in a more recent case, t where the position in the text was broadly sustained, and in which the court held that to produce an abortion on a woman pregnant but not quick, was indictable at common law.
§ 1222. In Maine, it has been judicially considered whether to procure an abortion, as to a female pregnant but not quick with child, is at the common law an offence, u though by the Maine statute, the procuring of abortion is an offence, whether the child had quickened or not, and whether with or without the consent of the mother. 6. The third count in the indictment,” said the court, “alleges the act to have been done with the intent to cause and procure the deceased to miscarry and bring forth the child of which she was then pregnant and quick ; and that by means of that act, she brought forth the child, dead. But there is no allegation that the act was done, with the intention that she should bring forth her child dead, or with an intent to destroy it, unless the words, miscarry, and bring forth the child, necessarily include its destruction. The expulsion of the ovum or embryo, within the first six weeks after conception, is technically miscarriage ; between that time and the expiration of the sixth month, when the child may by possibility live, it is termed abortion ; if the delivery be soon after the sixth month, it is termed premature labor. But the criminal attempt to destroy the fætus, at any time before birth, is termed in law a miscarriage, varying as we have seen in degree of offence and punishment, whether the attempt was before or after the child had quickened. v Other writers on the subject give a similar definition of the term 'miscarriage.'w The converse of this last proposition cannot be true, as there are undoubtedly many miscarriages involving no moral wrong. If the term miscarriage were to be understood in the indictment in its most limited sense, it cannot be denied that, in effect, it must be identical with the destruction of the fetus. But this indictment itself has given to the word miscarriage' the more general signification. It charges that the miscarriage was of the woman who was pregnant, and quick with child. The term quick with child' is a term known to the law, and courts are presumed to understand its meaning; a woman cannot be quick with child until a period much later than six weeks from the commencement of the term of gestation. The more general meaning of the term miscarriage must therefore be applied. The indictment charges no time after the quickening, when the miscarriage took place. It may have been at any period when the birth would have been premature. The language of the indictment, when taken together, construed in its ordinary, or in its technical and legal signification, does not forbid this. And labor is premature, if it take place at any period before the completion of the natural time. It is admitted by Dr. Paris, a writer of high repute on medical jurisprudence, from the number of established cases, it is possible that the fætus may survive and be reared to maturity, though born at very early periods ; many ancient instances are stated of births even at four months and a half with continued life, even to the age of twenty-four years, and the Parliament of Paris decreed, that an infant at five months possessed the capability of living to the ordinary period of human existence; and it has been asserted that a child delivered at the age only of five months and eight days may live, or, according to Beck and others, if born at six months after conception. x Many of the facts upon which the opinions of writers upon medical jurisprudence are founded may be erroneous, and the opinions incorrect. We cannot take judicial notice of either. But it is not too much to say, that a child may be born living, when its birth may be soon after conception, that is, premature. The fætus may be expelled by unlawful means, so soon after conception, that extra-uterine life cannot continue for any considerable length of time, and yet after birth it may once exercise all the functions of a living child. We have found no authority that this may not be termed a miscarriage, if the word is not confined to its most limited meaning. And if it be so, it is not perceived that it ceases to be correct if the life of the child prematurely born is further prolonged. It is quite clear, therefore, that the word miscarriage, in its legal acceptation, and as used in this indictment, does not necessarily include the destruction of the child before its birth; and a design to cause its miscarriage is not the same thing as a design to destroy the child. The other term used in the indictment, to bring forth the said child, does not imply even a premature birth. Consequently it gives no additional strength to the charge.”
s Such is also the view of a very t Mills v. Com. 1 Harris, 631. accomplished jurist, afterward of the u Smith v. State, 33 Maine (9 supreme court of Pennsylvania – Red.), 48. Lewis, J. Lewis C. L. 13.
v Chitty's Med. Juris. 410.
used in Medicine and other collateral w Hoblyn's Dictionary of Terms, sciences.
& Chitty's Medical Juris. 410, 411.
As, however, the point may be in some jurisdictions still unsettled, a recapitulation of the reasons formerly given may not be out of place.
$ 1223. The notion that a man is not accountable for destroying the child before it quickens, arose from the hypothesis that quickening was the commencement of vitality with it, before which it could not be considered as existing. This “ absurd distinction,” as it is called by Dr. Guy, y is now exploded in medicine, the fact being considered indisputable, that “ quickening' is the incident, not the inception of vitality. This view is clearly expounded by Dr. Beck. 2 “ The motion of the foetus,” he says, os when felt by the mother, is called QUICKENING.
It is important to understand the sense attached to this word formerly, and at the present day. The ancient opinion, and on which indeed the laws of some countries have been founded, was, that the fætus became animated at this period — that it acquired a new mode of existence. This is altogether abandoned. The fætus is certainly, if we speak physiologically, as much a living being immediately after conception as at any other time before delivery ; and its future progress is but the development and increase of those constituent principles which it then received. The next theory attached to the term, and which is yet to be found in many standard works, is, that from the increase of the fætus, its motions, which hitherto had been feeble and imperfect, now are of sufficient strength to communicate a sensible impulse to the adjacent parts of the mother. In this sense, then, quickening implies the first sensation which the mother has of the motion of the child which she has conceived.
y Med. Juris. 133. See, also, 2 W. 2 Med. Juris. vol. i. p. 173. & S. Med. Jur. § 84-5.
“A far more rational, and undoubtedly more correct opinion, is that which considers quickening to be produced by the impregnated uterus starting suddenly out of the pelvis into the abdominal cavity. This explains several peculiarities attendant upon the phenomenon in question: the variety in the period of its occurrence; the faintness which usually accompanies it, owing to the pressure being removed from the iliac vessels, and the blood suddenly rushing to them; and the distinctness of its character, differing, as all mothers assert, from any subsequent motions of the fætus. Its occasional absence in some females is readily accounted for, from the ascent being gradual and unobserved.”
§ 1224. The Roman law, accepting in this respect the philosophy of the Stoics, held that the fætus was a part of the mother, and was not capable of an independent existence. Partus nondum editus homo non recte fuisse dicitur. 21 Partus mulieris portio est vel viscerum. 22 Hence fæticide was regarded as penal only so far as it involved injury inflicted on the mother's health by a third person, or so far as it injured the father by injuring his prospects of offspring. To the canon law we are to trace the distinction as to quickening (num jam erat vivifactus conceptus). After quickening, fæticide was viewed as homicide. If quickening was not reached, the procurator abortus was not treated as homicida. It is curious to trace the scholastic processes by which this arbitrary distinction was reached. The proof text was Exodus xxi. 22–25, to which Augustine attached a gloss which crept into a decree of Gratian. 23 A sub-distinction was then started, between the destruction of a male and that of a female embryo. 24 From the canon law this distinction passed to the old Germanic and Saxon codes, yet never to such an extent
21 L. I. & 1. D. de inspic. vent. (25. 4.)
zCarrara, Parte speciale, vol. i. $ 1249.
28 C. XXXII. qu. 2. c. 8. cap. 20. X. de homic. 5. 12.
24 Dist. V. pr. “lege praecipiebatur, ut mulier si masculum pareret XL.