Part 16

In the case of the District of Columbia, all rulings are based on the common law, the old English statutes, from Elizabeth to George II., and the old colonial statutes of the Province of Maryland, down to 1800, the period of cession to the United States of that portion of Maryland lying on the north side of the Potomac, now included in the federal district.

The later English statutes, even those of George IV., being enacted subsequent to the separation from the mother country, are not recognized in the District. In the State courts, so far as the rules and principles of the common law are applicable to the administration of criminal law, and have not been altered or modified by acts of the colonial or provincial government, or by the State Legislature, they have the same force and effect as laws formally enacted. In the States referred to, therefore, as having no special statutes of their own, the later English statutes, though not of absolute force, are to a certain extent undoubtedly acknowledged.

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By the common law of England, as stated by Blackstone:—

“If a woman is quick with child, and by a potion or otherwise, killeth it in her womb, or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child, this, though not murder, was by the ancient law homicide, or manslaughter. But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemeanor.” “But if the child be born alive, and afterwards die in consequence of the potion or beating, it will be murder.”

By this law it is necessary to furnish proof not merely of pregnancy, but of quickening; no one besides the mother can be reached, save in the rare instance of beating; it is often impossible to prove that a child, born living, has died in consequence of means used upon itself or its mother before the birth.

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The Ellenborough act, passed in 1803, runs thus:—

“If any person shall willfully and maliciously administer to, or cause to be administered to, or take any medicine, drug, or other substance or thing whatsoever, or use, or cause to be used or employed, any instrument, etc., with intent to procure the miscarriage of any woman, not being, or not being proved to be, quick with child at the time of committing such thing, or using such means, then, and in every such case, the persons so offending, their counselors, aiders and abettors, shall be and are declared guilty of felony, and shall be liable,” etc. etc.; if before quickening, to fine, the pillory, stripes, or transportation; if after quickening, to death;—but in the clause providing for the latter case, mention of instruments was omitted.

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Punishment was thus extended to the crime prior to quickening; and besides the actual perpetrator, to those counseling and assisting therein. For its commission after quickening, capital punishment was restored; but by a strange oversight, no penalty was provided for the cases occurring at this period, where the abortion was induced by instrumental or other mechanical violence.

To remedy this defect another act, that of Lord Lansdowne, was substituted in 1828:—

“If any person, with intent to procure the miscarriage of any woman then being quick with child, unlawfully and maliciously shall administer to her, or cause to be taken by her, any poison or other noxious thing, or shall use any instrument, or other means whatever, with the like intent; every such offender, and every person counseling, aiding or abetting such offender, shall be guilty of felony, and being convicted thereof, shall suffer death as a felon;” if the woman were “not, or not proved to be, then quick with child,” the offence was still felony, and punished by transportation, or imprisonment and stripes.

By this enactment, the mistaken belief in a difference of guilt, according to the period of fœtal life, was still retained. For which reason, and in the false hope that by again abolishing capital punishment, juries would more frequently decide in accordance with fact, the English law has later, and during the present reign, still further been modified and rendered more just, simple, and comprehensive.

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“Whosoever, with the intent to procure the miscarriage of any woman, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument, or other means whatsoever, with the like intent, shall be guilty of felony, and being convicted thereof, shall be liable,” etc. etc., to transportation or imprisonment.

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By the present English statute, the woman herself can hardly yet be reached; many convictions must still be lost from failure to prove the agent either a poison or noxious thing; in other respects, however, it is well drawn. Attempts at the crime are covered, and proof is not required of pregnancy, or of actual injury to the mother.

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So far the instances in this country of an absence of special statutes. Where such exist, they may be variously classified. Reserving for a little all other considerations, we find them at once falling into four great divisions.

I. Those acknowledging the crime only after quickening has occurred:—

Connecticut, Mississippi, Arkansas, Minnesota, Oregon.

II. Those acknowledging the crime throughout pregnancy, but supposing its guilt to vary with the period to which this has advanced:—

Maine, New Hampshire, New York, Ohio, Michigan.

III. Those acknowledging the crime throughout pregnancy, unmitigated; but still requiring proof of the existence of this state:—

Vermont, Massachusetts, Illinois, Wisconsin, Virginia, Missouri, Alabama, Louisiana, Texas, California.

IV. That, like the present English statute, requiring no such proof, and punishing also the attempt, even though pregnancy do not exist:—

Indiana.