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gestation the child possesses that degree of life, the destruction of 

 which can be considered as infanticide ? A difference in the degree 

 of punishment is made in consideration of the child being quick 

 or not. 



A conscientious physician may, with no little concern, ask 

 himself the question where the line is to be drawn. If natural life 

 and legal life are different, in what does the difference consist ? Is 

 muscular motion the only, or the most important, sign of life? If 

 not, why should quickening be the period from which infanticide is 

 to date? Yet such, we believe, has been the law in New York. 



A case singularly in opposition to this view is related by Lord 

 Campbell in his Life of the Lord Chancellors, vol. iv. p. 524. The 

 will of an ancestor of the late Sir Francis Burdett left his estate 

 to a cousin, "in case he should leave no son at the time of his death." 

 At the time of his death, his wife was pregnant without his know- 

 ledge, and a son was born. The devisee contended that the testator 

 "left no son at the time of his death." It was decided, that though 

 not actually born at the death of his father, yet, in the eye of the 

 law, he had an existence in his mother's womb. An unborn child 

 may, therefore, take as heir or devisee. 



In the case of Luceba Parker, charged with procuring miscar- 

 riage by thrusting a sharp instrument into the womb and body of 

 a married woman, with consent of the woman, the jury found a ver- 

 dict of guilty; but her counsel moved an arrest of judgment because 

 it was not set forth that the woman was quick with child. The Judge 

 instructed the jury, that it was not necessary to prove this fact; but 

 the question being important, was reported to the Supreme Court. 

 The Chief Justice stated the question to be, "Whether it is an in- 

 dictable offence, at common law, to administer a drug or perform an 

 operation upon a pregnant woman, with her consent, with intention 

 and for the purpose of causing abortion and premature birth of the 

 foetus ; by means of which abortion is, in fact, caused, without prov- 

 ing that at the time of the administration of such drug, or perform- 

 ance of such operation, such woman was quick with child." 



There is a different case where the attempt is made without the 

 consent of the woman. This is a highly aggravated assault, and 

 indictable at common law. And if the woman die when the attempt 

 is made, with or without her consent, the party making the attempt 

 is guilty of her death, on the ground that it is an act done without 

 lawful purpose. But at common law, the court were of opinion, that 

 no indictment would lie for attempts to procure abortion, with con- 



