Although a child _in ventre sa mere_ has for certain purposes civil rights from the earliest period of conception, yet it was long undetermined in what rank of crime the killing of a fœtus should be placed. “It was anciently holden, says _Hawkins_, (_1 P. C._ 121) that the causing an abortion, by giving a potion to, or striking a woman big with child, was murder.” But at this day it is said to be a great misprision only, and not murder, unless the child be born alive, and die thereof, in which case it seems clearly to be murder, notwithstanding some opinions to the contrary.[46] And in this respect the common law[47] seems to be agreeable to the _Mosaical_,[48] which as to this purpose is thus expressed. “If men strive and hurt a woman with child, so that her fruit depart from her, and yet no mischief follow, he shall surely be punished, according as the woman’s husband will lay upon him, and he shall pay as the judges determine; and if any mischief follow, then thou shalt give life for life.” “It seems also agreed, that where one counsels a woman to kill her child when it shall be born, who afterwards does kill it in pursuance of such advice, he is an accessary to the murder.” _1 Hawk. P. C._ 121, and authorities there cited. By the old law[49] there was this difference between ordinary murder, and the murder of _bastard_ children, that in the latter case the _onus probandi_ was in some measure thrown upon the supposed criminal, a practice totally at variance with our general principles of justice; and though many fictions and judicial evasions were resorted to for the purpose of softening the extreme rigor of this statute,[50] as by supposing that very slight circumstances, as knocking for help when in labour, providing linen, &c. took away the concealment,[51] yet the law remained in nominal force till the passing of the stat. 43 _Geo._ 3, _c._ 58, by which it is enacted that trials of women for the murder of bastard children should proceed on the same rules of evidence as trials for murder.[52] This part of our subject, therefore, might have been considered under the general head of murder; but though the legal distinctions which marked the crime of infanticide are thus removed, there are yet so many peculiarities in the physiological mode of collecting the evidence of its commission, that we have reserved it for separate consideration, in conjunction with the offence of procuring abortion to which it bears a close affinity. The case of the _King_ v. _Phillips_, 3 _Campb. R._ _p._ 73, appears to have been the first that was tried under the new law. This was an indictment on the 2d sect. of _Lord Ellenborough’s_ act, 43 _Geo._ 3, _c._ 58, for administering _savin_ to a woman _not_ quick with child, for the purpose of procuring abortion.[53]