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ABORTION AND INFANTICIDE.

Alhough a child in ventre sa mere has for certain purposes civil rights from the earliest period of conception, yet it was long undetermined in what rank of crime the killing of a fœtus should be placed. "It was anciently holden, says Hawkins, (1 P. C. 121) that the causing 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, in which case it seems clearly to be murder, notwithstanding some opinions to the contrary.^[1] And in this respect the common law^[2] seems to be agreeable to the Mosaical,^[3] which as to this purpose is thus expressed. "If men strive and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow, he shall surely be punished, according as the woman's husband will lay upon him, and he shall pay as the judges determine; and if any mischief follow, then thou shalt give life for life."

"It seems also agreed, that where one counsels a woman to kill her child when it shall be born, who afterwards does kill it in pursuance of such advice, he

↑ Sir M. Hale (1 P. C. 433) says, it cannot be legally known whether it were killed or not; and adds, "so it is if after such child were born alive and baptized, and after dies of the stroke given to the mother, this is not homicide." It is difficult to conceive why the term baptized was introduced in this dictum: for whether it were the child of Jew, Turk, or Anabaptist, it is equally entitled to the protection of the law.
↑ The Roman Emperor, at a congress held at Constantinople in 692, ordained, that it should be punished with the same rigour as homicide; and severe statutes were enacted against it by Antonine, as early as the 161st year of the christian era.
↑ Exodus, c. xxi. A case illustrative of this law occured at Stafford in the year 1811; when a man was executed for the murder of his wife, whose death he occasioned by inducing abortion, through extreme violence, as by elbowing her in bed, rolling over her, &c.

[1] Sir M. Hale (1 P. C. 433) says, it cannot be legally known whether it were killed or not; and adds, "so it is if after such child were born alive and baptized, and after dies of the stroke given to the mother, this is not homicide." It is difficult to conceive why the term baptized was introduced in this dictum: for whether it were the child of Jew, Turk, or Anabaptist, it is equally entitled to the protection of the law.

[2] The Roman Emperor, at a congress held at Constantinople in 692, ordained, that it should be punished with the same rigour as homicide; and severe statutes were enacted against it by Antonine, as early as the 161st year of the christian era.

[3] Exodus, c. xxi. A case illustrative of this law occured at Stafford in the year 1811; when a man was executed for the murder of his wife, whose death he occasioned by inducing abortion, through extreme violence, as by elbowing her in bed, rolling over her, &c.

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