This part of our subject, therefore, might have been considered under the general head of murder; but though the legal distinctions which marked the crime of infanticide are thus removed, there are yet so many peculiarities in the physiological mode of collecting the evidence of its commission, that we have reserved it for separate consideration, in conjunction with the offence of procuring abortion to which it bears a close affinity.
The case of the King v. Phillips, 3 Campb. R. p. 73, appears to have been the first that was tried under the new law.
This was an indictment on the 2d sect. of Lord Ellenborough's act, 43 Geo. 3, c. 58, for administering savin to a woman not quick with child, for the purpose of procuring abortion.[1]
- [Footnote: *tice;" for remedy whereof, be it enacted by the authority aforesaid,
that, from and after the first day of July in the year of our Lord one thousand eight hundred and three, the said two several acts, and every thing therein contained, shall be, and the same are hereby repealed; and that, from and after the said first day of July, in the said year of our Lord one thousand eight hundred and three, the trials in England and Ireland respectively of women charged with the murder of any issue of their bodies, male or female, which being born alive would by law be bastard, shall proceed and be governed by such and the like rules of evidence and of presumption as are by law used and allowed to take place in respect to other trials for murder, and as if the said two several acts had never been made.
IV. Provided always, and be it enacted, that it shall and may be lawful for the jury by whose verdict any prisoner charged with such murder as aforesaid shall be acquitted, to find, in case it shall so appear in evidence, that the prisoner was delivered of issue of her body, male or female, which, if born alive, would have been bastard, and that she did, by secret burying, or otherwise, endeavour to conceal the birth thereof, and thereupon it shall be lawful for the court before which such prisoner shall have been tried, to adjudge that the prisoner shall be committed to the common gaol, or house of correction, for any time not exceeding two years.]*
- ↑ The act provides that if any person or persons shall wilfully and
