On the uncertainty of the signs of murder in the case of bastard children

by William Hunter

Thirdly, If the air in the lungs be found to be contained in the natural air-vesicles, and to have the appearance of air received into them by breathing, let us next find out if that air was not perhaps blown into the lungs after the death of the infant. It is so generally known that a child, born apparently dead, may be brought to life by inflating its lungs, that the mother herself, or some other person, might have tried the experiment. It might even have been done with a most diabolical intention of bringing about the condemnation of the mother.

But the most dangerous and the most common error into which we are apt to fall, is this, viz. supposing the experiment to have been fairly made, and that we have guarded against every deception above mentioned, we may rashly conclude that the child was born alive, and therefore must probably have been murdered; especially in a case where the mother had taken pains, by secreting the child, to conceal the birth. As this last circumstance has generally great weight with a jury, I will only observe, that in fair equity, it cannot amount to more than a ground of suspicion, and therefore should not determine a question, otherwise doubtful between an acquittal, or an ignominous death.

Here let us suppose a case which every body will allow to be very possible. An unmarried woman, becoming pregnant, is striving to conceal her shame, and laying the best scheme that she can devise, for saving her own life, and that of the child, and at the same time concealing the secret—but her plan is at once disconcerted, by her being unexpectedly and suddenly taken ill by herself, and delivered of a dead child. If the law punishes such a woman with death for not publishing her shame, does it not require more from human nature than weak human nature can bear? In a case so circumstanced, surely the only crime is the having been pregnant, which the law does not mean to punish with death; and the attempt to conceal it by fair means should not be punishable by death, as that attempt seems to arise from a principle of virtuous shame.

Having shewn that the secreting of the child amounts at most to suspicion only, let us return to the most important question of all, viz. If in case of a concealed birth, it be clearly made out that the child had breathed, may we infer that it was murdered? Certainly not. It is certainly a circumstance like the last, which amounts only to suspicion. To prove this important truth to the satisfaction of the reader, it may be thought fit to assert the following facts, which I know from experience to be true, and which will be confirmed by every person who has been much employed in midwifery.

1. If a child makes but one gasp, and instantly dies, the lungs will swim in water as readily as if it breathed longer, and had then been strangled.

2. A child will very commonly breathe as soon as its mouth is born, or protruded from the mother, and in that case may lose its life before its body be born; especially when there happens to be a considerable interval of time between what we may call the birth of the child's head, and the protrusion of its body. And if this may happen where the best assistance is at hand, it is still more likely to happen when there is none; that is, where the woman is delivered by herself.

3. We frequently see children born, who from circumstances in their constitution, or in the nature of the labour, are but barely alive; and after breathing a minute or two, or an hour or two, die in spite of all our attention. And why may not that misfortune happen to a woman who is brought to bed by herself?

4. Sometimes a child is born so weak, that if it be left to itself, after breathing or sobbing, it might probably die, yet may be roused to life by blowing into its lungs applying warmth and volatiles, rubbing it, &c. &c. But in the cases which we have been considering such means of saving life are not to be expected.

5. When a woman is delivered by herself, a strong child may be born perfectly alive, and die in a very few minutes for want of breath; either by being upon its face in a pool made by the natural discharges, or upon wet cloaths; or by the wet things over it collapsing and excluding air, or drawn close to its mouth and nose by the suction of breathing. An unhappy woman delivered by herself, distracted in her mind, and exhausted in her body, will not have strength or recollection enough to fly instantly to the relief of the child. To illustrate this important truth, I shall give a short case.

A lady, at a pretty distant quarter of the town, was taken with labour pains in the night-time. Her nurse, who slept in the house, and her servants, were called up, and I was sent for. Her labour proved hasty, and the child was born before my arrival. The child cried instantly, and she felt it moving strongly. Expecting every moment to see me come into her bedchamber, and being afraid that the child might be someway injured, if an unskilful person should take upon her the office of a midwife upon the occasion, she would not permit the nurse to touch the child, but kept herself in a very fatiguing posture, that the child might not be pressed upon, or smothered. I found it lying on its face, in a pool which was made by the discharges; and so completely dead, that all my endeavours to rouze it to life proved vain.