28 ABORTION This mere incident of progressive development appears at no absolutely certain time, but usu- ally between the 1 15th and 130th days after con- ception. Viability of the foetus does not depend necessarily on its age, though it is usually not ; viable, or capable of living, before the lapse of ( seven months after conception ; yet it may be j at undeterminable periods before that time. ] Though the legal offences relating to abortion ' depend almost entirely upon positive statutes, yet it is sometimes material to determine whether an act of this character is criminal at common law, as the phrase is ; or, in other i words, by the general, customary, and un- written law. It is said by some of the best writers that there can be no doubt that at common law the wrongful destruction of an unborn child was a high misdemeanor, and t hat at an early period in England it was ! deemed murder. There are no reported cases confirming this view, but two passages of Brae- ton and Fleta ought not to be overlooked. Though they are in some respects of obscure meaning, yet they are noteworthy, not only as ' being the earliest declarations on the subject contained in English law books, but because the rules they lay down are so far advanced be- yond those of the English law even of to-day. Both books were written in Latin, the former in the reign of Henry III. (121t>-1272), the lat- ter in that of Edward I. (1272-1807). Bracton says : " If any one shall have given blows or drugs to a pregnant woman, in consequence of which she shall have aborted, if the child were already formed and animate, and especially if animate, he is guilty of homicide." The author of Fleta says: u Whoever shall have done vio- j lenco to a pregnant woman, or shall have given i her drugs or blows so as to produce an abor- 1 tion, or to prevent conception (ut non eonci- ' piat), if the foetus was already formed and ; animate, is a homicide; and likewise, whoever ; shall have given or taken drugs with the in- tent to prevent generation or conception (con- j ceptio). So, too, the woman is guilty of a homicide who has destroyed her animate child ; in her womb, by potions or things of that sort." These passages, it will be' noticed, pro- nounce the mother's destruction of her unborn ' quick child a homicide. The present law of England declares that any woman being with child, and whether quick or not is indifferent, who uses drugs or any other means to procure I her miscarriage, is guilty of a felony, and is j punishable by imprisonment only. Coke, who I lived in the 16th century, says in his third In- stitute that "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 of a dead child, this is a great misprision and no murder." In this passage occurs the reference to the ' quickening of the child, which has always j down to a very recent period been made an i essential element in the degree of criminality in English acts relating to abortion. With reference to the common law on the subject, it has been held in Massachusetts, Maine, and New Jersey, that it is not, apart from statutes, an indictable offence to use means upon a preg- nant woman, with her consent, for the purpose and with the effect of procuring an abortion, unless the mother were quick with child. It is not to be understood, however, from this that, very grave and even capital offence may not be involved in such an act as that referred to even at common law ; for in such a case, as Chief Justice Shaw remarked, if the woman's death ensued, the party making the attempt would be guilty of murder, and this whether the woman consented or not ; for the act is done without lawful purpose, is dangerous to life, and the consent of the wo- man no more annuls the legal imputation of malice than it does in the case of a duel. And furthermore, as to the child produced by a criminal abortion, if it fairly live after birth and then die from injuries received in the body of the mother before its birth, it is clearly a case of homicide. In Pennsylvania the courts dissent from the view as to the common law which is taken in the states first mentioned. It was there declared that miscarriage, both in law and in physiology, means the bringing forth of the foetus before it is perfectly formed and capable of living, and that it was of itself a flagrant crime at common law to attempt to procure the miscarriage or abortion of a wo- man ; that it was a crime against nature which obstructed the fountain of life, and therefore it was punishable. To the objection on the part of the prisoner that the indictment was de- fective, because it ought to and did not allege that the woman was quick with child, it was answered by the court that that was not the law in Pennsylvania, and ought not to have been anywhere ; that it was not the murder of a living child which constituted the offence, but the destruction of gestation by wicked means and against nature ; and that the mo- ment the womb is instinct with embryo life and gestation has begun, the crime may be committed. But practically the actual law on the subject exists only in the statutes. The principal English acts of modern times are those of 43 George III., ch. 58, 2 ; 9 George IV., ch. 31, 14; 7 William IV.; and 1 Vic- toria, ch. 85, 6 ; all of which are displaced by the present law of 24 and 25 Victoria, ch. 100, 58, 59. The first of these acts, known as Lord Ellenborough's act, provided that any person who should wilfully, maliciously, and unlawfully use means . . . with intent to cause and procure the miscarriage of any wo- man being quick with child was a felon, and should suffer death ; and the act further pro- vided that in any such case, if the woman was not found to be quick with child at the time of the commission of the act, the offender should be guilty of a felony and liable to fine, impri* onment, pillory, transportation, &c. The stat ute of 9 George IV., ch. 31, known as Lord
