“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.
* * * * *
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,[173] 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.[174]
* * * * *
“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.
* * * * *
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.
* * * * *
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.