—procuring of an abortion by the mother or by another with her assent, unless the mother be quick with child, is not an indictable offence at common law

In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it first received it "(emphasis added

—person of the child, and the court replied that "the very point of inquiry is, whether that be at all an offense or not, and whether the child be in esse, so that any crime can be committed against its person. In regard to offences against the person of the child, a distinction is well settled between its condition before and after its birth. Thus, it is not murder to kill a child before it …

—the termination of pregnancy before any quickening was held not to constitute a criminal offense at common law.

See also Lader 78–79, who notes that some scholars doubt that the common law ever was applied to abortion; that the English ecclesiastical courts seem to have lost interest in the problem after 1527; and that the preamble to the English legislation of 1803, 43 Geo. 3, c. 58, § 1, referred to in the text, infra, at 136, states that “no adequate means have been hitherto …

This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law

In 1848, a New Jersey court similarly concluded that the consent of the mother was a defense in a prosecution of Eliakim Cooper for abortion

McKee (Pa.) 1 Add. 1), and the same rule was reiterated on the eve of the first session of our Legislature

If the good of society requires that the evil [of abortion] should be suppressed by penal inflictions, "one state judiciary maintained," it is far better that it should be done by legislative enactments than that courts should, by judicial construction, extend the penal code or multiply the objects of criminal punishment.