CHAPTER V.

ABDUCTION-KIDNAPPING.

Misdemeanor in Massachusetts in kidnappiug a slave.(a)

THAT S. and T., &c., at, &c., on, &c., unlawfully, fraudulently and wickedly, without any lawful warrant or authority whatever, did seize, take, steal and kidnap one S. O. F., of said W., the minor child and son of J. F. F., of said W., a free citizen of said commonwealth, with intent the said S. O. F. to send and transport, and to cause and procure the said S. O. F. to be sent and transported from and out of the said commonwealth, without the consent of said S. O. F., and against his will, and against the will and without the consent of said J. F. F., the said father of said S. O. F., to sell and transfer the said S. O. F. as a slave, against, &c., and contrary, &c.

Misdemeanor in Pennsylvania in seducing away a negro from the state, &c.(b)

That S. R., late, &c., on, &c., with force and arms, &c., at the city aforesaid, and within the jurisdiction of this court, unlawfully and by fraud, did seduce a certain negro named T., from the said city into the State of New Jersey, with a design and intention of carrying the said negro T. to be kept and detained a slave for life, contrary to the form of the act of assembly in such case made and provided, and against the peace and dignity, &c.

Second count. Causing such negro to be seduced, &c.

And the grand inquest aforesaid, upon their oaths and affirmations aforesaid, do further present, that the said S. R. afterwards, to wit, on, &c., at the city aforesaid, and within the jurisdiction of this court, with force and arms, &c., the said negro named T., then and there unlawfully and by fraud did cause to be seduced from the said city to the State of New Jersey, with a design and intention of causing the said negro named T. to be kept and detained as a slave for life, contrary, &c., and against, &c.

Abduction under New York Rev. Stat., vol. 2, p. 553, s. 25.

That T. M., late of the First Ward of the City of New York, in the County of New York, aforesaid, labourer, on, &c., at the ward, city

(a) This was the second count of the indictment in Com. v. Turner, 3 Met. 19. "The second count in this indictment," says Dewey J., in giving the opinion of the court, "being unquestionably good and sufficient, the court have not thought it necessary to consider the question raised as to the sufficiency of the first count."

(b) This indictment was found in 1794.

and county aforesaid, with force and arms, in and upon one J. T., in the peace of God and of the said people then and there being, feloniously did make an assault, and her the said J. T. then and there feloniously did take against her will, with the intent to compel her by force, menace and duress to be defiled, and other wrongs to the said J. T. then and there did, to the great damage of the said J. T., against, &c., and contrary, &c.

CHAPTER VI.

ABORTION.

Production of abortion at common law. (a)

First count. By assault and thrusting an instrument in the prosecutor's womb, she being big, quick and pregnant.

THAT W. B. T., late of the said county, yeoman, A. D. alias A. F., late of the said county, single woman, and F., late of the said county,

(a) This indictment, containing besides two counts for assault and battery, and two for conspiracy, was removed to the Supreme Court of Pennsylvania, by allocatur, in May, 1845, and was there met with a special demurrer as follows:

"And now, July 8, 1845, the above named defendants respectively, to wit, William B. Taylor and Ann Ford come into court, and for a plea in this behalf say, the said Ann Ford protesting that she is not and never was known by the name of Ann Demain, that she is a married woman, and that her true and only name is Ann Ford; that they ought not and cannot be called upon in law to plead or answer to the above bill of indictment, because they in fact say,

The said bill of indictment is informal and insufficient, and cannot be supported in law.

"Because they state and set forth the following reasons and grounds for demurrer, specially to the said bill of indictinent, to wit:

"1st. The name of Ford is connected with that of said Taylor and Ann Ford, without other name, qualification, or addition to designate the man intended.

"2d. The said indictment does not sufficiently aver the fact that the said Susannah R. Schoch, therein mentioned, was at the time and place therein stated, pregnant and quick with child, which said child was destroyed and killed in its mother's womb, or attempted by said defendants to be so destroyed and killed.

"3d. The said indictment contains two counts, to wit, the 6th and 8th, which are without proper conclusion, and are therefore nugatory.

"4th. Counts are joined in said indictment for producing the abortion of the child therein mentioned, and for attempting to produce it, and for assault and battery, and for attempt to commit said assault and battery, and for conspiring to perpetrate all the said

offences.

"5th. The said indictment includes but two of the alleged partics to the conspiracy charged, to wit, the said Taylor and Ann Ford, the name of Ford following it, being a nullity; and omits the name of Susannah R. Schoch, the alleged third party, through

yeoman, on, &c., with force and arms, &c., at the county aforesaid, and within the jurisdiction of the said court, in and upon one S. R. S., then and there being big, pregnant and quick with child, did make a violent assault, and her the said S., then and there did violently bruise; wound and ill-treat, so that her life was thereby despaired of; and a whom, and by sole means of whose agency in the transaction, the alleged conspiracy was entered into, arranged and carried into effect, or attempted to be carried into effect by the other parties, the said Susannah R. Schoch being, if such conspiracy existed, one of the parties concerned, and the only medium of communication and combination between them, and as such an indispensable party to be charged and embraced with the other defendants in said indictment."

Judgment was entered for the commonwealth, Sergeant J. delivering the following opinion: "We see nothing in any of the points taken by the defendants in demurrer.

"1. This exception is only pleadable in abatement, in which the defendant must give a better name. It is not cause of demurrer.

"2. The indictment is in proper form, and sufficiently avers that she (the party injured) was pregnant and quick with child, which was destroyed and killed, &c.

"3. This exception is not true in fact. The indictment contains but seven counts, with the usual conclusions.

"4. This exception is not cause of demurrer. If the counts are improperly joined, the court may be asked to interfere before the trial, and put the commonwealth to its election. "5. The name Ford alone, there being no plea in abatement, is not a nullity; and as to inserting Susannah Schoch as a party, that rests with the prosecution. Two or more may be indicted for a conspiracy with others not parties." See Com. v. Demain, 6 Pa. L. J. 29. It will be observed that there is ambiguity in the language of the court in overruling the exception as to quickness. The second count avers merely that the prosecutor is "big and pregnant" the court, on a demurrer pointing particularly at this feature, says that it is sufficiently charged that the prosecutor was "big and quick" with child. When it is recollected, however, that the case was one of those which under the act of April 11, 1845, was not certified by the court to the reporter for publication, the apparent incongruity may be explained by treating Judge Sergeant's opinion as indicating the conclusions of the court on the points submitted, rather than their reasoning on the questions involved. One thing is clear, and that is that the defendants were compelled to answer to the second count, where no averment of quickness was introduced; and as far as they were concerned, the question was settled. Notwithstanding the ingenious commentary on this case by Judge Lewis, in his late valuable and instructive treatise on criminal law (Lewis' C. L. 13), I cannot withhold my concurrence from the marginal abstract given by the editors of the Law Journal in reporting it, viz. that it is not necessary to aver quickness on the part of the mother, but that it is sufficient to set forth that she was big and pregnant. That such is the common law, both on ground of principle and analogy, there is strong reason to maintain. It is true that the Supreme Court of Massachusetts ruled differently in two instances; in Com. v. Bangs, 9 Mass. 387, and in Com. v. Parker, Met. 263; and that in the latter case the grave and anxious examination of the question entitles the judgment of the court to the greatest weight. But the positions taken at a former period still appear to me to have a preponderating influence. "There is no doubt that at common law the destruction of an infant unborn is a high misdemeanor, and at an early period it seems to have been deemed murder; 1 Russ. on Cr. 671; 1 Ves. 86; 3 Coke's Inst. 50; 1 Hawk. c. 13, s. 16; 1 Hale 434; 1 East P. C. 90; 3 Chit. C. L. 798. If the child dies subsequently to birth, from wounds received in the womb, it is clearly homicide; R. v. Senior, 1 Mood. C. C. 346; 3 Inst.50; (see Wh. C. L. 225). It has been said that it is not an indictable offence to administer a drug to a woman and thereby to procure an abortion, unless the mother is quick with child; Com. o. Bangs, 9 Mass. 387, though such a distinction, it is submitted, is neither in accordance with the result of medical experience; Guy's Med. Juris. tit. Abortion; 1 Beck 172; nor with the principles of common law; 1 Russ. on Cr. 671; 1 Ves. 86; 3 Coke's Inst. 50; 1 Hawk. c. 13, s. 16; Bracton, 1. 3, c. 21. The civil rights of an infant in ventre sa mere, are equally respected at every period of gestation; and it is clear that no matter at how early a stage he may be appointed executor, Bac. Ab. tit. Infants, is capable of taking as legatee, 2 Vern. 710; or under a marriage settlement, Doe v. Clark, 2 H. Bl. 399; 2 Ves. jr. 673; Thelluson v. Woodford, 4 Ves. 227; may take speci. fically under a devise, Fearne 429; and may obtain an injunction to stay waste, Smith. Duffield, 5 S. & R. 33; 2 Vern. 710;" Wh. C. L. 308. This view is strengthened by the precedents of Mr. Chitty; Chit. C. L. 799, 800; in which the allegation of quickness is omitted.

The notion that a man is not accountable for destroying a child before it quickens,

certain instrument made of silver or other metal, in the shape and form of a hook, up and into the womb and body of the said S., then and there violently, wickedly and inhumanly did force and thrust, with a wicked intent, to cause and procure the said S. R. S. to mis

arose from the hypothesis that quickening was the commencement of vitality with it, before which it could not be considered as existing. This "absurd distinction," as it is called by Dr. Guy (Med. Jur. 133), is now exploded in medicine, the fact being considered indisputable, that “quickening" is the incident, not the inception of vitality. This view is clearly expounded by Dr. Beck, in his Med. Jurisp. vol. 1, p. 173. "The motion of the foetus," he says, "when felt by the mother, is called QUICKENING. It is important to understand the sense attached to this word formerly, and at the present day. The ancient opinion, and on which indeed the laws of some countries have been founded was, that the fœtus became animated at this period-that it acquired a new mode of existence. This is altogether abandoned. The fœtus is certainly, if we speak physiologically, as much a liv. ing being immediately after conception, as at any other time before delivery; and its future progress is but the development and increase of those constituent principles which it then received. The next theory attached to the term, and which is yet to be found in many standard works, is, that from the incre se of the fœtus, its motions, which hitherto had been feeble and imperfect, now are of sufficient strength to communicate a sensible impulse to the adjacent parts of the mother. In this sense, then, quickening implies the first sensation which the mother has of the motion of the child which she had conceived.

"A far more rational, and undoubtedly more correct opinion, is that which considers quickening to be produced by the impregnated uterus starting suddenly out of the pelvis into the abdominal cavity. This explains several peculiarities attendant on the phenomenon in question-the variety in the period of its occurrence-the faintness which usually ac companies it, owing to the pressure being removed from the iliac vessels, and the blood suddenly rushing to them; and the distinctness of its character, differing, as all mothers assert, from any subsequent motions of the fœtus. Its occasional absence in some females is readily accounted for, from the ascent being gradual and unobserved."

The true meaning of quickening, and the absurdity of the doctrine that it is the inception of life, is pointedly shown by Örfila, in the recent edition of his very authoritative treatise-Traité de Médecine Legale-Paris, 1848 (vol i. p. 226):

Chez la plupart des femmes le fœtus exerce des mouvemens que l'on a appelés actifs: c'est particulièrement vers la fin du quatrième mois, lorsque les organes de la locomotion jouissent déjà d'une certaine énergie, que ces mouvemens sont sensibles; ils deviennent quelquefois si forts par la suite, qu'on les apercoit même à travers les vêtemens, et que la femme en est réveillée pendant la nuit : l'homme de l'art parvient souvent à les provoquer en appliquant sur les parois du ventre la main préalablement trempée dans l'eau froide. Ce signe qui paraîtrait au premier abord devoir permettre d'affirmer que la femnie est ou n'est pas enceinte, présente pourtant beaucoup d'incertitude; non seulement il y a des femines qui n'ont senti de pareils mouvemens à aucune époque de la grossesse, mais il en est beaucoup d'autres chez lesquelles des contractions spasmodiques de l'utérus et des intestins simulaient tellement les mouvemens du fœtus qu'elles se disaient enceintes."

It appears, then, that quickening is a mere circumstance in the physiological history of the fœtus, which indicates neither the commencement of a new stage of existence, nor an advance from one stage to another-that it is uncertain in its periods, sometimes coming at three months, sometimes at five, sometimes not at all-and that it is dependent so entirely upon foreign influences as even to make it a very incorrect index, and one on which no practitioner can depend, of the progress of pregnancy. There is as much vitality in a physical point of view, on one side of quickening as on the other, and in a social and moral point of view, the infant is as much entitled to protection, and society is as likely to be injured by its destruction, a week before it quickens as a week afterwards. But if the common law in making fœticide penal, had in view the great mischiefs which would re. sult from even its qualified toleration, e. g. the removal of the chief restraint upon illicit intercourse, and the shock which would be sustained thereby by the institution of marriage and its incidents-we can have no authority now for withdrawing any epoch in gestation from the operation of the principle. Certainly the restraints upon illicit intercourse are equally removed-the inducements to marriage are equally diminished-the delicacy of the woman is as effectually destroyed-no matter what may be the period chosen for the operation. Acting under these views, the legislatures of Massachusetts and New York, in order to fill up the supposed gap, passed acts making ante-quickening-fœticide individually penal. If however, as has been argued, no such gap exists, it will be worth while for the courts of those states which have not legislated on the subject, to consider how far an exploded notion in physics is to be allowed to suspend the operation of one of the most conservative doctrines of the common law.

carry, abort and to bring forth the said child, of which she was big, quick and pregnant, as aforesaid, dead, and to kill and murder the said child, by reason and means of which said last mentioned premises, the said child was killed and its life destroyed and taken away in its mother's womb; and she, the said S. afterwards, to wit, on, &c., miscarried and was aborted and delivered of the said child, being a female child, and being at the time of its birth dead, to the great injury and detriment of the said S., to the evil example of all others in like manner offending, and against, &c. (Conclude as in book 1, chap. 3).

Second count, averring prosecutrix to be "big and pregnant." That the said W. B. T., A. D. alias A. F., and F., afterwards, to wit, on the day and year aforesaid, at the county aforesaid, and within the jurisdiction of the said court, in and upon the said S. R. S., then and there being big and pregnant with a certain other child, did make another violent assault, and a certain other instrument made of silver or other metal in the shape and form of a hook, up and into the womb and body of the said S. then and there violently, wickedly and inhumanly did force and thrust, with a wicked intent to cause and procure the said S. to miscarry, and to bring forth the said child of which she was big and pregnant, as last aforesaid, dead, by reason and means of which said last mentioned premises, she the said S., afterwards, to wit, on, &c., miscarried, and was delivered of the said child, being a female child, the said child being dead at the time of delivery, to the great injury and detriment of the said S., to the evil example of all others in like manner offending, and against, &c. (Conclude as in

book 1, chap. 3).

Third count, merely averring pregnancy in same.

That the said W. B. T., A. D. alias A. F., and F., afterwards, to wit, on the day and year aforesaid, at the county aforesaid, and within the jurisdiction of the said court, in and upon the said S. R. S., then and there being pregnant with a certain other child, did make another violent assault, and a certain other instrument made of silver or other metal, in the shape and form of a hook, up and into the womb and body of the said S., then and there violently, wickedly and inhumanly did force and thrust with a wicked intent, to wit, to cause and procure the said S. to miscarry and to bring forth the said child of which she was big and pregnant, as last aforesaid, dead, to the great injury and detriment of the said S., to the evil example of all others in like manner offending, and against, &c.(b) (Conclude as in book 1, chap. 3).

Assault on a woman with quick child, so that the child was brought forth dead. (At common law).(c)

That defendant, on, &c., at, &c., in and upon M., the wife of one

(b) By the act of 31st May, 1781, Purdon's Digest 531, it is provided, that "If any person or persons shall counsel, advise or direct such woman to kill the child she goes with, and after she is delivered of such child she kills it, every such person so advising or directing, shall be deemed accessary to such murder, and shall have the same punishment as the principal shall have." Of course in case of the child dying after birth, the misdemeanor merges; and this is so at common law; Wh. C. L. 225.

(c) Stark. C. P. 429.