Part 30

Revised Statutes of Wisconsin, 1858, chap. 169, sect. 58. It will be noticed that the second section of the above statute differs from the first, in not requiring the proof of pregnancy.

Code of Virginia, 1849, chap. 191, p. 724.

Revised Statutes of Missouri, 1856, i. chap. 50, p. 567.

Code of Alabama, 1852, sect. 3230, p. 582.

Revised Statutes of Louisiana, 1856, p. 138. By its wording, this statute might be forced into the next division.

I insert this clause not merely for its relation to the points we are now considering, but for its important bearing on the broad question of infanticide during labor; concerning which it stands in bold and direct antagonism to all the rulings of the common law in this country and abroad. In other respects also, though not faultless, the Texas statute is rationally and admirably drawn.

Penal Code of Texas, 1857, p. 103.

Digest of Laws of California, 1857, art. 1905, p. 334. The statute of the Territory of KANSAS, similar to the above, is as follows:—

“Every physician or other person who shall willfully administer to any pregnant woman, any medicine, drug, or substance whatever, or shall use or employ any instrument or means whatsoever, with intent thereby to procure abortion, or the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, or shall have been advised by a physician to be necessary for that purpose, shall, upon conviction, be adjudged guilty of a misdemeanor, and punished by imprisonment in a county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment.” Statutes of Kansas, 1855, chap. 48, p. 243.

We have already commented upon the phraseology of the Louisiana statute. The latitude of its first clause is shown by the context to have been unintentional, and therefore hardly justifies a change in its classification. The second section of the Statute of Washington Territory, however, is closely analogous to that now given; while the final sections of the statutes both of New York and Wisconsin, which make it penal for a woman voluntarily to effect or submit to the unjustifiable induction of abortion, are equally silent regarding proof of the existence of pregnancy.

Revised Statutes of Indiana, 1852, p. 437.

Rex vs. Phillips, 3 CAMPBELL, 77; RUSSELL, Crim. Law, 553-4; 1 GABBETT, Crim. Law, 522; 1 BISHOP, Crim. Law, 386.

State vs. Cooper, 2 ZABRISKIE, 52, 57; Rex vs. Russell, 1 MOODY, 356, 360.

Regina vs. Wycherley, 8 CARRINGTON and PAYNE, 265.

The People vs. Jackson, 3 HILL, N. Y. Reports, 92; WHARTON, Criminal Law, 98.

DAVIS, Crim. Justice, 484.

WHARTON, Amer. Crim. Law, 424.

WHARTON, Amer. Crim. Law, 75.

The State vs. Vawter, 7 BLACKFORD, 592.

1 GABBETT, Crim. Law, 523; ARCHBOLD, P. A., lxx, 2.

ROSCOE, L. E., 242; Eng. Com. L. Rep., xxv. 453; Rex vs. Coe, 6 CAR. & P., 403; Vaughan, 13.

1 BISHOP, Crim. Law, 527.

In Massachusetts, though the statute is silent on these points, it is asserted that whenever a potion is given, or other means are used, by “a surgeon,” for the purpose of saving the life of the woman, the case is free of malice, and has a lawful justification. DAVIS, Crim. Justice, 282; Report of the Criminal Law Commissioners, 1844, Causing Abortion, I., note a.

After a little reflection, it will be seen that this word is not so open to objection as might at first be supposed.

1 RUSSELL, Crimes, 671; 1 VESEY, 86; 3 COKE, Inst., 50; 1 HAWKINS, C. B., s. 16; 1 HALE, 434; 1 EAST, P. C., 90; 3 CHITTY, Crim. Law, 798; WHARTON, Crim. Law, 537.

DAVIS, Crim. Justice, 486.

ARCHBOLD, Crim. Pleading, 490.

Regina vs. Trilloe, 2 MOODY, C. C., 260, 413.