The circumstances of this case excited the attention of the late Mr. Sheldon, then living in Exeter. He obtained access to the skull, and on viewing it declared his opinion that the hole in the skull, supposed to have been made by an awl, was a natural perforation, and had not been effected by an awl or any other instrument; and as proofs of his position, he pointed out a small bed or channel leading from the hole, which he said was made by the passage of a vein, and a sort of enamel round the hole, which could not have been there if made by force or art. In further illustration of this truth, he produced a dozen or more human skulls having on them similar perforations variously situated, and each hole having a small channel, and the rim or edge of the hole smooth and polished.
Mr. Sheldon attended the Grand Jury at the said assizes on the investigation of this charge: before whom it is presumed he gave the same testimony. The Grand Jury returned “No Bill” against Thomas Bowerman for the murder of Mary Gollop.
Another question of forensic interest has arisen upon this subject that requires some notice. Whether there are not bones in the structures of inferior animals, that so nearly approach those of the human species in figure and appearance as to admit the possibility of their being mistaken for them, by the superficial anatomist? It must be admitted that there does exist a similitude in the skeletons of different animals, of which the common observer cannot derive the least notion from the shape of the parts they sustain, or from the general aspect of their external form. Bats, for instance, appear to have wings, but an attentive examination demonstrates that they are real hands, the fingers of which are merely somewhat lengthened; still, however, it is the bones of quadrupeds that can alone be mistaken for those of man, and of these the cylindrical ones are the most likely to mislead us; for example, the Humerus varies little in its form, except perhaps in the proportional length of the bone, and the elevation of its spines: the Ruminantia, in general, have the great tuberosity very high, and the linea aspera very prominent. To Cuvier we are much indebted for the marks of discrimination by which we may determine to what genus of animal the isolated parts of a skeleton belong; and his researches have changed the opinion regarding the character of many organic remains. Most of the labourers in the Gypsum quarries about Paris are firmly persuaded that the bones which they contain are, in a great part, human remains; but, after having seen and carefully examined many thousands of them, Cuvier unequivocally declares that not a single fragment has ever belonged to our species. Another similar discovery has been made by this illustrious anatomist, in the history of the extraneous fossil bones from the island of Cerigo, and deposited by Spallanzani at Pavia as human remains, but of which he affirms there is not one that ever formed a part of the human skeleton; the same tact, if we may so express this peculiar merit of Cuvier, enabled him to decypher the “Homo Diluvii Testis” of Scheutzer, and to restore it to its true genus, the Proteus.
We shall close our remarks upon the fallacies by which the bones of quadrupeds have been mistaken for those of man, by the interesting account of the remains which were found by Belzoni in a sarcophagus in the second pyramid of Egypt, and for a detailed relation of which we are indebted to Captain Fitzclarence, in his overland route from India. These bones were believed to be no other than the remains of King Cephrenes, who, according to Herodotus, is supposed to have built the pyramid, and to have been buried in its cavern; unfortunately, however, for the antiquarian’s conjecture, Mr. Clift, of the College of Surgeons, has satisfactorily proved that the bones in question are not human, but belong to an animal of the genus Bos.
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]]