NOTES. 209 the executive, who must apply the law, this superiority extends no farther. It is a concession necessary for the consistency of government. The judicial is really the weakest of the three departments, and depends upon the executive for its backbone. Deprived of this source of strength the court is powerless against any one, not to speak of the executive itself. Any disregard of a mandamus by the chief executive the court could not punish, and the result of issuing the mandamus could be only to bring the court into contempt. The State v. T/ie Governor^ 25 N. J. L. 331. This reason applies as fully to the governor of a State, within his own sphere, as to the President of the United States. Each in his way is supreme. It is idle, moreover, to draw distinctions between ministerial and dis- cretionary acts. Every act involves a certain exercise of judgment, and the distinction can be only one of degree. The chief executive of any State in the matters intrusted to him is his own judge, and claims upon him for the performance of his official duty are beyond the cognizance of the courts of his State. If he ignores the law, impeachment, not man- damus, is the remedy. The Rights of Unborn Children. — The question whether an un- born child has civil rights, — whether an infant may recover damages for injuries received before birth, — is a rare one in the law. It was squarely raised, and decided against the child, in Dietrich v. Northampton, 138 Mass. 14, and discussed in Walker v. Gt. Northern Ry. Co., 28 L. R. (Ireland), 69. It has now been brought up again in Allaire v. St. Luke's Hospital, Appellate Court, First District of Illinois, 30 Chic. Leg. News, 333. There the plaintiffs mother was received by the defendants, a lying-in-hospital, for treatment during child-birth. The defendant's neg- lect, — which was clearly tortious as to the mother; — was the direct cause of an injury to the plaintiff while still in the womb. It is hard to imagine a case in which the facts would be more favorable to the child and more likely to prejudice a court, but it was held that the child could not recover for his injury. The position of a child en ventre sa mere in the other departments of the law gives Httle sanction to a proposition for granting them civil rights. They are considered in the law of property, but their rights do not come into existence until birth and then relate back. This fiction of relation does not involve any idea of a child en ventre sa mere as a separate entity, and at best is a special equitable provision. The criminal law is harder to understand. It is murder or manslaughter if one injures a child en ventre sa mere., and that child be born alive, and later dies of the injury. 3 Inst. 50. Rex v. Senior, i Moo. C. C 346. It is argued that every murder must of necessity be a tort, and that therefore there has been a tort against the child in the womb. The answer to this contention prob- ably is that the criminal law has made an error, though a very natural one, in placing this crime against the child in the category of murder; that the fundamental conception of homicide is the application of some force to a human being, a member of society; that this crime properly belongs in the category with the offence of procuring an abortion. The cases that have called the crime murder or manslaughter have stated no reasons, and the suspicious principle clearly forms no sound basis for analogy. And not only would it be without precedent in law to allow the child to recover damages for an injury sustained before birth, but it would create
