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.”?