It is not to be understood, however, from this that very grave and even capital offences may not be involved in such an act as that referred to even at common law; for in such a case, as Chief Justice Shaw remarked, if the woman's death ensued, the party making the attempt would be guilty of murder, and this whether the woman consented or not; for the act is done without lawful purpose, is dangerous to life, and the consent of the woman no more annuls the legal imputation of malice than it does in the case of a duel. And furthermore, as to the child produced by a criminal abortion, if it fairly live after birth and then die from injuries received in the body of the mother before its birth, it is clearly a case of homicide. In Pennsylvania the courts dissent from' the view as to the common law which is taken in the states first mentioned. It was there declared that miscarriage, both in law and in physiology, means the bringing forth of the foetus before it is perfectly formed and capable of living, and that it was of itself a flagrant crime at common law to attempt to procure the miscarriage or abortion of a woman; that it was a crime against nature which obstructed the fountain of life, and therefore it was punishable.

To the objection on the part of the prisoner that the indictment was defective, because it ought to and did not allege that the woman was quick with child, it was answered by the court that that was not the law in Pennsylvania, and ought not to have been anywhere; that it was not the murder of a living child which constituted the offence, but the destruction of gestation by wicked means and against nature; and that the moment the womb is instinct with embryo life and gestation has begun, the crime may be committed. - But practically the actual law on the subject exists only in the statutes. The principal English acts of modern times are those of 48 George III., ch. 58, § 2; 9 George IV., ch. 81, § 14; 7 William IV.; and 1 Victoria, ch. 85, § 6; all of which are displaced by the present law of 24 and 25 Victoria, ch. 100, §§ 58, 59. The first of these acts, known as Lord Ellenborough's act, provided that any person who should wilfully, maliciously, and unlawfully use means . . . with intent to cause and procure the miscarriage of any woman being quick with child was a felon, and should sutler death; and the act further provided that in any such case, if the woman was not found to be quick with child at the time of the commission of the act, the offender should be guilty of a felony and liable to tine, imprisonment, pillory, transportation, etc.

The statute of 9 George IV., ch. 31, known as Lord Lansdowne's act, did not differ substantially from the former, but further provided against the use of instruments. The next statute provided that whosoever, with intent to procure the miscarriage of any woman, should use unlawful means, etc, should be guilty of felony and liable to transportation for life or not less than 15 years. The present statute provides that every woman being with child who, with intent to procure her own miscarriage, shall unlawfully administer to herself drugs, or use instruments, and whosoever with similar intent, whether the woman be or be not with child, shall use the like unlawful means, shall be guilty of felony, and liable on conviction to penal servitude for life or not less than three years, or to imprisonment. Supplying or procuring anything knowing that it is to be used with intent to procure the miscarriage of any woman, whether she be or be not with child, is a misdemeanor. - Of the more recent statutes in the United States, that of Maine (revision of 1871) provides that whoever administers, etc, to any woman pregnant with child, whether such child be quick or not, etc, if the act is done with intent to destroy the child, and the child is destroyed before birth, shall be punished by imprisonment not more than five years or by line not exceeding $1,000; and if done with intent to produce the miscarriage of such woman, by imprisanment not more than one year and by line of not more than $1,000. The statute of Illinois of 1869 enacts that any person who by any means shall cause any pregnant woman to miscarry, or shall attempt to procure or produce such miscarriage, shall be liable to imprisonment not less than two nor more than ten years; and if by any such attempt the death of the woman shall be caused, the party offending shall be guilty of murder, and be punished as the law requires for that offence.

But this crime may be committed, as has already been shown by the opinion of Chief Justice Shaw, independently of any statutory provision to that effect. In Missouri (revision of 1870) the wilful killing of an unborn quick child by any injury to the mother which would be murder if it resulted in the death of the mother, is manslaughter in the first degree; and every person who shall use means, etc, on a woman pregnant with a quick child, with intent thereby to destroy such child, unless the act is necessary to preserve life, etc, shall, if the death of such child or mother ensue from the means so employed, be guilty of manslaughter in the second degree; and every person who shall wilfully administer to or use means on any pregnant woman with intent thereby to procure an abortion, unless necessary to save life, or advised by physicians to be so necessary, is guilty of a misdemeanor, and is punishable by imprisonment for one year or by fine of $500, or by both. In Pennsylvania the statute (1860) provides that if any person shall unlawfully use means on any woman pregnant or quick with child, or supposed to be so, with intent to procure the miscarriage of the woman, and she, or any child of which she may be quick, shall die in consequence of such unlawful acts, the offender is guilty of a felony, and is liable to fine not exceeding $500 or to be imprisoned not exceeding seven years; and it is further provided that if any person, with intent to procure the miscarriage of any woman, shall use unlawful means upon her, he shall also be guilty of felony and subject to a fine not exceeding $500 and to imprisonment for not more than three years.