ABORTION AND INFANTICIDE.
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]]
The first count of the indictment charged that the prisoner on the 10th day of January 1811, and on divers other days and times between that day and the 20th of March in the year aforesaid, at the parish of St. Mary’s in the county of Monmouth, wilfully, maliciously, unlawfully and feloniously did administer to and cause to be administered to and taken by one Hannah Mary Goldsmith, single woman, divers large quantities, that is to say, 6 ounces of the decoction of a certain shrub called savin, then and there being a noxious and destructive thing, the said H. M. G. on the said 10th day of January in the year aforesaid, and continually from thence until the said 20th day of March in the year aforesaid, at &c. aforesaid, being with child, but not quick with child, to wit, at the respective times of administering such divers large quantities of the decoction of the said shrub called savin as aforesaid, with intent thereby to cause and procure the miscarriage of the said H. M. G., against the form of the statute, &c.
It appeared that the prisoner prepared the medicine which he administered to Miss Goldsmith by pouring boiling water on the leaves of a shrub: and the medical men examined, stated that such a preparation is called an infusion not a decoction,—which is made by boiling the substance in the water.
The prisoner’s counsel insisted that he was entitled to an acquittal on the ground that the medicine was misdescribed.
Lawrence, J. This objection will not hold. The infusion and decoction are ejusdem generis, and the variance is immaterial. The question is, whether the prisoner administered any matter or thing to this woman with intent to procure abortion.
Witnesses were called for the prisoner to prove that the shrub he used was not savin.
The counsel for the prosecution, insisted, that even in that case the prisoner might be found guilty upon the last count of the indictment, which charged that he administered a large quantity “of a certain mixture to the jurors unknown, then and there being a noxious and destructive thing.”
The prisoner’s counsel objected that unless the shrub was savin, there was no evidence that the mixture was “noxious and destructive.”
Lawrence, J. In an indictment on this clause of the statute, it was improper to introduce these words; and although they are introduced, there is no necessity to prove them. It is immaterial whether the shrub was savin or not, or whether or not it was capable of procuring abortion,[[54]] or even whether the woman was actually with child. If the prisoner believed at the time that it would procure abortion, and administered it with that intent, the case is within the statute, and he is guilty of the offence laid to his charge.
The prisoner urged that he had given the young woman an innocent draught for the purpose of amusing her, as she had threatened to destroy herself, unless enabled to conceal her shame; and the Jury returned a verdict of not guilty.
The prisoner had been previously tried on the first section of the statute[[55]] for the capital charge, in administering savin to Miss Goldsmith to procure abortion, she being then quick with child.[[56]] In point of fact, she was in the fourth month of her pregnancy. She swore, however, that she had not felt the child move within her before taking the medicine, and that she was not then quick with child. The medical men in their examinations, differed as to the time when the fœtus may be stated to be quick, and to have a distinct existence; but they all agreed that in common understanding, a woman is not considered to be quick with child till she has herself felt the child alive and quick within her, which happens with different women in different stages of pregnancy, although most usually about the sixteenth or eighteenth week after conception.
Lawrence, J. said, this was the interpretation that must be put upon the words quick with child in the statute; and as the woman in this case had not felt the child alive within her before taking the medicine,—he directed an acquittal.
It cannot be necessary here to repeat that the popular idea of quick or not quick with child is founded in error;[[57]] yet as Acts of Parliament are not often drawn, and seldom even reviewed previous to their passing, by those whose profession, science, trade, or business, would best enable them to convey their meaning with distinctness; and as penal statutes must be construed strictly, and according to the ordinary and obvious meaning of the words, we must be content to recognise a distinction in law which does not exist in nature. There is, however, another peculiarity in the two sections which are founded on this distinction of quick or not quick, which calls for immediate attention; in the first of these, that which applies to women quick with child, and in which the offence is made a capital felony, there is no mention of using any instrument or other means whatever, but the crime is confined to administering any deadly poison, or other noxious and destructive substance or thing; while in the clause against the minor offence the use of instruments or other means whatsoever is expressly included. Now we shall have occasion hereafter to show that medicines internally administered can seldom produce abortion, but that the effect can be infallibly secured by instruments; the most probable mode therefore of committing the crime appears to be protected by the most penal clause.
A case[[58]] on this point is inserted in the Edinburgh Medical Journal for April, 1810; we entirely concur in the sentiment of the editors; “we cannot,” they say, “avoid remarking the apparent inconsistency of the law of England, in having no statute to punish its actual perpetration by the only certain means of effecting it, while it punishes by death, without benefit of clergy, the attempting it by means which are very seldom effectual. Thus Pizzy was tried for attempting to cause Ann Cheney to abort, by giving her medicines, which had no effect; and his having actually perpetrated the crime by mechanical violence, was only brought forward as proving the intention with which the medicines were given.”[[59]] The act therefore requires amendment, framed however with such care, that the necessary practice of procuring premature labour by qualified practitioners may be defended, while the immoral and criminal use of instrumental abortion may be adequately punished.
PHYSIOLOGICAL ILLUSTRATIONS.
Abortion.
Abortion[[60]] may be procured by the administration of powerful medicines, or by the application of mechanical violence, such as blows, or pressure on the abdomen; or by the introduction of sharp instruments into the uterus, so as to rupture the membranes. We shall offer a few remarks upon each of these several modes of accomplishing the criminal object in question. From a very early period attempts have been made to devise means of procuring abortion by the administration of certain drugs, which were considered as capable of acting specifically upon the womb, and of occasioning the exclusion of its contents. It would be idle to enumerate the various substances which have, at different times, been employed for such a purpose, not a few of which were derived from the fertile sources of credulity and superstition; and yet we are bound to admit, that upon this occasion at least, credulity has proved a blessing to mankind, by suggesting the substitution of a harmless amulet, or an inefficacious drug, for an application of extreme violence and danger, and, perhaps of death. The physicians of the present age disclaim the existence of any specific class of abortives, but we are ready to admit that the administration of violent medicines, by involving the uterus in the general shock thus given to the system, will occasion abortion, provided there exist at the same time, a certain predisposition on the part of the female; should this latter condition, however, be wanting, the poculum abortionis may, by the violence of its operation, destroy the life of the unhappy mother, or very materially injure her, without accomplishing the object for which it was administered. In the case of Mrs. Robert Turner, one of the persons poisoned by Elizabeth Fenning, notwithstanding the long and violent sufferings she had experienced during her pregnancy, brought forth a living child at the natural period. On the other hand, a grocer’s wife in Edinburgh, having swallowed by mistake a handful of nitre, suffered abortion in less than half an hour; and in the case of Mrs. Atwood, of Mitcham, who with the rest of her family was poisoned by mushrooms, as already related, (vol. ii, p. 431) although rescued from death, miscarried in consequence of the violence which her general system had sustained.
The medicines more particularly employed for procuring abortion are savine,[[61]] and other irritating drugs, especially those which tend to excite a considerable degree of vascular action; such medicines, likewise, as exert a violent action on the stomach, or bowels, will be likely to produce miscarriage, and are often taken for such purpose in quantities sufficient to produce fatal results. Mr. Burns observes that it is an old remark that those purgatives which occasion much tenesmus, will be more likely to excite the expulsion of the ovum. The strong cathartics, however, which are sometimes taken to promote such an effect, not only act by exciting tenesmus, but likewise by inflaming the stomach and bowels, and thus affect the uterus in two ways. It cannot be too generally known, adds the last mentioned author, that when these medicines do produce abortion the mother will seldom survive their effect. It is a mistaken notion that abortion can be more readily excited by drastic purges, immediately after the woman discovers herself pregnant; on the contrary, the action of the uterus is then more independent of that of the other organs, and is therefore not so easily injured by changes in their condition. Upon the same principle that violent cathartics or emetics operate upon the pregnant uterus, any other sudden shock upon the body will occasion a similar effect on that organ; the extraction of a tooth, for example, has been known to produce abortion. A thunder-storm, or violent cannonade, has been supposed to occasion the same result by the concussion of the air; but Mr. Burns considers it more probable that such an effect is owing to mental trepidation. The influence of the passions upon these occasions, such as fear and joy, especially if suddenly produced, is too well known to require a comment, and it has been too often artfully excited for criminal purposes. The same observation will apply to other violent impressions upon the body, such as that occasioned by rapid and uneasy travelling, dancing,[[62]] walking, &c. Blood-letting also, if carried to any extent, will be liable to occasion miscarriage. Belloc relates a case in which these means were criminally used for such a purpose; the woman was bled by a medical practitioner, when, after his departure, the bandage was removed, and a farther quantity of blood taken. But all the modes above related were soon discovered not only to be highly dangerous to the woman, but extremely precarious in their results; and hence a practice appears to have early originated of ensuring the exclusion of the ovum by the more direct and certain method of introducing a stillet, or some sharp-pointed instrument into the uterus; an allusion to an instrument of this kind was made on the trial of Charles Angus (vol. ii, p. 177) and was described as a silver tube with a slide, at the end of which was a dart with three points. Ovid[[63]] appears to allude to this operation in the following passage.
——“sine crescere nata.
Est pretium parvæ non leve vita moræ.
Vestra quid effoditis subjectis viscera telis;
Et nondum natis dira venena datis.”?
The practice is also reprobated by Tertullian,[[64]] who has described the instrument with which the operation of penetrating the ovular membranes was performed, “est etiam æeneum spiculum quo jugulatio ipsa dirigitur, cæco latrocinio εμβρυοσφακτην appellant, utique viventis infantis peremptorium.”
It is hardly necessary to remark that such an operation, unless performed by a skilful surgeon, will be very liable to endanger the life of the female. Guy Patin relates the case of a midwife who was hanged at Paris for occasioning the death of a lady in that city, by an attempt to procure abortion by this method. On her trial she said she had frequently practised it with success; but, in this case it seems, the instrument had pierced the body of the uterus, instead of passing through the os internum. We have already noticed a parallel case which occurred at Durham, see page [72].
In cases of criminal abortion the medical practitioner may be called upon to deliver an opinion upon the circumstances of the case. The data from which he is to draw his conclusions have been already fully investigated in different parts of this work. We must therefore refer the reader to the Physiological Illustrations of Conception and Parturition, vol. i, p. 230, and to our directions for conducting the dissection of the uterus, vol. iii, p. [67], for the solution of the different problems to which the consideration of the subject may give origin.