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.
The Ellenborough act,[172] 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.
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.