[52]. III. “And whereas doubts have been entertained respecting the true sense and meaning of a certain Act of Parliament made in England, in the twenty-first year of the reign of his late Majesty King James the first, intituled, an act to prevent the destroying and murthering of bastard children, and also of a certain Act of Parliament, made in Ireland in the sixth year of the reign of her late Majesty Queen Anne, intituled, an act to prevent the destroying and murthering of bastard children; and the same have been found in sundry cases, difficult and inconvenient to be put in practice;” for remedy whereof, be it enacted by the authority aforesaid, that, from and after the first day of July in the year of our Lord one thousand eight hundred and three, the said two several acts, and every thing therein contained, shall be, and the same are hereby repealed; and that, from and after the said first day of July, in the said year of our Lord one thousand eight hundred and three, the trials in England and Ireland respectively of women charged with the murder of any issue of their bodies, male or female, which being born alive would by law be bastard, shall proceed and be governed by such and the like rules of evidence and of presumption as are by law used and allowed to take place in respect to other trials for murder, and as if the said two several acts had never been made.
IV. Provided always, and be it enacted, that it shall and may be lawful for the jury by whose verdict any prisoner charged with such murder as aforesaid shall be acquitted, to find, in case it shall so appear in evidence, that the prisoner was delivered of issue of her body, male or female, which, if born alive, would have been bastard, and that she did, by secret burying, or otherwise, endeavour to conceal the birth thereof, and thereupon it shall be lawful for the court before which such prisoner shall have been tried, to adjudge that the prisoner shall be committed to the common gaol, or house of correction, for any time not exceeding two years.
[53]. The act provides that if any person or persons shall wilfully and maliciously administer to, or cause to be administered to or taken by any woman any medicines, drug or other substance or thing whatsoever, or shall use or employ or cause or procure to be used or employed, any instrument or other means whatsoever with intent thereby to cause or procure the miscarriage of any woman not being or not being proved to be quick with child at the time of administering such things, or using such means, that then and in every such case, the person or persons so offending, their counsellors, aiders, and abettors, knowing of and privy to such offence, shall be and are hereby declared to be guilty of felony, and shall be liable to be fined, imprisoned, set in and upon the pillory, publicly or privately whipped, or to suffer one or more of the said punishments, or to be transported beyond the seas for any term not exceeding fourteen years, at the discretion of the court before which such offender shall be tried and convicted.
[54]. At the Chelmsford Assizes. Aug 1820, Robin Collins was indicted for administering steel filings and penny-royal water to a woman, with the intent to procure abortion. Mr. Baron Wood told the jury, in point of law, that if they were satisfied that the prisoner had administered the drugs with intent to procure miscarriage, though they were incapable of producing such effect, and though the young woman had willingly consented to take them, the case was within the statute, and they were bound to find the prisoner guilty. The jury immediately found the prisoner guilty. The learned judge expressed himself perfectly satisfied with the verdict, and animadverted in strong terms on the enormity and cruelty of the prisoner’s crime; public example required the severest visitation of punishment that the law authorised, in order to warn others against committing a similar crime, which unhappily was too prevalent. The sentence of the Court was that the prisoner should be transported for the term of fourteen years.
[55]. Whereby it is enacted that “if any person shall wilfully, maliciously and unlawfully administer to, or cause to be administered to or taken by any of His Majesty’s subjects, any deadly poison or other noxious and destructive substance or thing, with intent thereby to cause and procure the miscarriage of any woman then being quick with child, the offender shall suffer death as in cases of felony without benefit of clergy.”
[56]. By the law of most countries this crime is punished with more severity if committed after the quickening of the child, than before. The Roman Penal Code made the same distinction. By the decretals of the canon law (p. ii, causs. 32, p. ii, c. 8), “Non est homicida, quæ abortum procurat, antequam anima corporis sit infusa.”
[57]. On this subject see “Physiological Illustrations of Utero-gestation”, vol. i, p. 239.
[58]. Wm. Pizzy and Mary Codd were tried at Bury St. Edmonds, Aug. 11, 1808, for feloniously administering a certain noxious and destructive substance to Ann Cheney, with intent to produce a miscarriage. The trial, taken in short hand by Wm. Notcutt, was published at Ipswich in 1808; but we have not been able to procure a copy; we must therefore content ourselves with observing, on the authority of the Med. Journ. that the Counsel for the prisoners objected to receiving that part of the evidence which related to Pizzy’s manual operations upon Ann Cheney, as not relevant to the administration of the medicines which alone constituted the capital crime; the objection was over-ruled by the court, and the evidence was admitted for the purpose of proving the intention with which the medicines were administered. The examination of Ann Cheney before the magistrates was as follows:
“Saith that she is about the age of 27 years; that she has lived as servant with Mr. Simon Codd, of Haughley, about 12 years last past; that she is an unmarried woman, and was so in the month of February 1806. That in the said month of February 1806, she was delivered of a female bastard child; that she was alone when she was delivered, but that she called out for assistance, but no one came for some minutes; the child was born dead; she never saw it move, or heard it make a noise. That soon after she found herself with child, she acknowledged it to her mistress, Codd, and told her who was the father of the child. Her mistress said, if she would take that which she would get for her, she thought she could order it better than letting any body know it. Soon after that, she saw Mr. Pizzy of Middlesham, the farrier; she told him what was the matter with her; he then gave her some more medicines, and told her they were to make her miscarry. They had not that effect; that she continued to take medicines from him during her whole remaining time of pregnancy; she sometimes received them from her mistress, and sometimes from Pizzy; that her mistress knew what they were for, because she (her mistress) had told her what they were for; that the medicines did not answer the intended purpose; that about a week or ten days before she was delivered, Mr. Pizzy came, and upon her informing him that his medicines had not answered the purpose, he said she must go up stairs with him, which she did; they were alone; he laid her on the floor, on a great coat, upon her back; she put the coat over her head, so that she could not see; she then felt him put some instrument up into her body, which was very cold, like iron; but she did not see it; that, in consequence, she lost some blood, not very much nor very little—suppose about half a pint; did not feel much pain. Pizzy told her it was for the purpose of making her miscarry. Her mistress was at home, and knew for what purpose they went up stairs, but was not present. Pizzy came again the day before she was brought to bed. Examinant told him she had not miscarried; he then said he must try something further; her mistress was present, and heard this. Pizzy and examinant went up stairs again, but her mistress was not present. Pizzy laid her down, as he did before, on her back, and passed his hand three times up into her body half way of his arm, which was naked, which gave her a great deal of pain; and this examinant felt herself very wet, and never felt the child move afterwards. Examinant thinks she had not gone her time by six or seven weeks. She felt the child move after she was so first treated by Pizzy, and till within a day or two before the second time. She thinks she did not go her full time, from the treatment she received from Pizzy.”
[59]. It is said that a surgeon and midwife have been since tried for this crime before the Supreme Court of Justiciary, and sentenced to fourteen years transportation. Ibid.