Chapter XXII: Part III (4)

As this trial has excited very extraordinary interest, and presents illustrations of several points connected with Medico-legal investigations, we shall offer to our readers a brief outline of the case, and introduce the ingenious defence which the prisoner composed and read at his trial. In the year 1745, Clarke, a shoemaker, at Knaresborough, in Yorkshire, was induced by Eugene Aram and Richard Houseman, to purchase a variety of valuable articles of plate and jewellery, in consequence of having married a woman who had many rich relations, and who, by an ostentatious display of this kind, might conclude that Clarke was rich, and in consequence of such belief make him their heir. No sooner had Clarke yielded to the persuasion of these men, and became in consequence possessed of many valuable goods, than Eugene Aram and Houseman murdered him, in February 1745, and buried his body in a field near the town, and having shared Clarke’s treasure, they decamped.—Clarke being at the time very much in debt, was supposed to have gone abroad, and every inquiry ceased until the year 1758, when a person, as he was digging for lime-stone near St. Robert’s cave, found the bones of a human body, upon which a conjecture arose that they were the remains of Daniel Clarke, who it was presumed might have been murdered; and as Houseman was seen in the company of Clarke a short time before his disappearance, he was immediately apprehended on suspicion, when having lost his self-possession he imprudently exclaimed that _those_ were not the bones of Clarke, for they were buried in a different place! and subsequently he stated the exact place where they were deposited, and which were found accordingly. Soon after Houseman was committed to the castle of York, it was discovered that Aram resided in the character of a respectable school-master at Lynn, in Norfolk, on which he was taken into custody, and conveyed to York castle, where at the following summer assizes they were tried; after Houseman had given his evidence, and all such collateral testimony had been received as could be adduced on such an occasion, Aram delivered the following ingenious defence.

“_My Lord_,

“I know not whether it is of right, or through some indulgence of your Lordship, that I am allowed the liberty at this bar, and at this time to attempt a defence, incapable and uninstructed as I am to speak. Since, while I see so many eyes upon me, so numerous and awful a concourse, fixed with attention, and filled with, I know not what expectations, I labour not with guilt, my Lord, but with perplexity. For having never seen a court but this, being wholly unacquainted with law, the customs of the bar, and all judicial proceedings, I fear I shall be so little capable of speaking with propriety in this place, that it exceeds my hope if I shall be able to speak at all.

“I have heard, my Lord, the indictment read; wherein I find myself charged with the highest crime, with an enormity I am altogether incapable of, a fact, on the commission of which there goes far more insensibility of heart, more profligacy of morals, than ever fell to my lot. And nothing possibly could have admitted a presumption of this nature, but a depravity not inferior to that imputed to me. However, as I stand indicted at your Lordship’s bar, and have heard what is called evidence adduced in support of such a charge, I very humbly solicit your Lordship’s patience, and beg the hearing of this respectable audience, while I, single and unskilful, destitute of friends, and unassisted by counsel, say something perhaps like argument in my defence. I shall consume but little of your Lordship’s time, what I have to say will be short, and this brevity probably will be the best part of it; however, it is offered with all possible regard, and the greatest submission to your Lordship’s consideration, and that of this honourable court. First, my Lord, the whole tenor of my conduct in life contradicts every particular of this indictment. Yet had I never said this, did not my present circumstances extort it from me, and seem to make it necessary. Permit me here, my Lord, to call upon malignity itself, so long and so cruelly busied in this prosecution, to charge upon me any immorality, of which prejudice was not the author. No, my Lord, I concerted no schemes of fraud; projected no violence; injured no man’s person or property; my days were honestly laborious; my nights intensely studious. And I humbly conceive my notice of this, especially at this time, will not be thought impertinent or unseasonable, but at least deserving some attention, because, my Lord, that any person, after a temperate use of life, a sense of thinking and acting regularly, and without one single deviation from sobriety, should plunge into the very depth of profligacy, precipitately and at once, is altogether improbable and unprecedented, and absolutely inconsistent with the course of things. Mankind is never corrupted at once, villany is always progressive, and declines from right, step after step, till every regard of probity is lost, and every sense of moral obligation totally perishes.

“Again, my Lord, a suspicion of this kind, which nothing but malevolence could entertain, and ignorance propagate, is violently opposed by my very situation at that time with respect to health: for but a little space before I had been confined to my bed, and suffered under a very long and severe disorder, and was not able for half a year together so much as to walk. The distemper left me indeed, yet slowly and in part, but so macerated, so enfeebled that I was reduced to crutches; and so far from being well about the time I am charged with this fact, that I never to this day perfectly recovered. Could then a person in this condition take any thing into his head so unlikely, so extravagant? I, past the vigour of my age, feeble and valetudinary, with no inducement to engage, no ability to accomplish, no weapon wherewith to perpetrate such a fact, without interest, without power, without motive, without means.

“Besides, it must needs occur to every one, that an action of this atrocious nature is never heard of, but, when its springs are laid open, it appears that it was to support some indolence, or supply some luxury; to satisfy some avarice, or oblige some malice; to prevent some real, or some imaginary want; yet I lay not under the influence of any one of these. Surely, my Lord, I may consistent with both truth and modesty affirm thus much; and none who have any veracity and knew me, will ever question this. In the second place, the disappearance of Clarke is suggested as an argument of his being dead; but the uncertainty of such an inference from that, and the fallibility of all conclusions of such a sort, from such a circumstance, are too obvious and too notorious to require instances; yet superseding many, permit me to procure a very recent one, and that afforded by this castle. In June 1757, William Thompson, for all the vigilance of this place in open daylight and double ironed, made his escape; and notwithstanding an immediate enquiry set on foot, the strictest search and all advertisement, was never heard of since. If then Thompson got off unseen through all these difficulties, how very easy was it for Clarke, when none of them opposed him? But what would be thought of a prosecution commenced against any one seen last with Thompson. Permit me next, my Lord, to observe a little upon the bones which have been discovered. It is said, which perhaps is saying very far, that these are the skeleton of a man. It is possible indeed it may: but is there any certain known criterion, which incontestably distinguishes the sex in human bones? Let it be considered, my Lord, whether the ascertaining of this point, ought not to precede any attempt to identify them. The place of their depositum too claims much more attention than is commonly bestowed upon it; for, of all places in the world, none could have mentioned any one, wherein there was greater certainty of finding human bones than a hermitage, except he should point out a church-yard; hermitages, in times past, being not only places of religious retirement, but of burial too. And it has scarce or never been heard of, but that every cell now known contains or contained the relicts of humanity, some mutilated and some entire. I do not inform, but give me leave to remind your Lordship, that here sat solitary sanctity, and here the hermit or the anchoress, hoped that repose for their bones, when dead, they here enjoyed when living. All the while, my Lord, I am sensible this is known to your Lordship, and many in this court, better than to me. But it seems necessary to my case that others, who have not at all perhaps adverted to things of this nature, and may have concern in my trial, should be made acquainted with it. Suffer me then, my Lord, to produce a few of many evidences, that these cells were used as repositories of the dead, and to enumerate a few in which human bones have been found as it happened in this question; lest to some, that accident might seem extraordinary, and consequently occasion prejudice.

1st. The bones, as was supposed, of the Saxon St. Dubritius were discovered buried in his cell at Guy’s Cliff near Warwick, as appears from the authority of Sir. W. Dugdale.

2d. The bones, thought to be those of the anchoress Rosia, were but lately discovered in a cell at Royston, entire, fair, and undecayed, though they must have lain interred for several centuries, as is proved by Dr. Stukely.

3d. But my own country, nay almost this neighbourhood, supplies another instance, for in Jan. 1747 were found by Mr. Stovin, accompanied by a rev. gentleman, the bones, in part, of some recluse, in the cell at Lindholm near Hatfield. They were believed to be those of William of Lindholm, a hermit, who had long made this cave his habitation.

4th. In Feb. 1744 part of Hoburn Abbey being pulled down, a large portion of a corpse appeared, even with the flesh on, which bore cutting with a knife; though it is certain this had lain above 200 years, and how much longer is doubtful, for this Abbey was founded in 1145, and dissolved in 1538 or 9.

“What would have been said, what believed, if this had been an accident to the bones in question? Farther, my Lord, it is not yet out of living memory, that a little distance from Knaresborough in a field, part of the manor of the worthy and patriot baronet, who does that borough the honor to represent it in Parliament, were found in digging for gravel, not one human skeleton only, but five or six, deposited side by side, with each an urn placed at its head, as your Lordship knows was usual in ancient interments. About the same time, in another field, almost close to this borough, was discovered also, in searching for gravel, another human skeleton; but the piety of the same worthy gentleman ordered both pits to be filled up again, commendably, unwilling to disturb the dead. Is the invention of these bones forgotten, then, or industriously concealed, that the discovery of those in question may appear the more singular and extraordinary? whereas, in fact, there is nothing extraordinary in it. My Lord, almost every place conceals such remains. In fields, in hills, in highway sides, in commons, lie frequent and unsuspected bones. And our present allotments for rest for the departed is but of some centuries.

“Another particular seems not to claim a little of your Lordship’s notice, and that of the gentlemen of the jury, which is that perhaps no example occurs of more than one skeleton being found in one cell; and in the cell in question was found but one, agreeable in this to the peculiarity of every other known cell in Britain. Not the invention of one skeleton, but of two, would have appeared suspicious and uncommon. But it seems another skeleton has been discovered by some labourer, which was full as confidently asserted to be Clarke’s as this. My Lord, must some of the living, if it promotes some interest, be made answerable for all the bones which earth has concealed and chance exposed? and might not a place where bones lay, be mentioned by a person by chance, as well as found by a labourer by chance? or is it more criminal accidentally to name where bones lie, than accidentally to find where they lie? Here too is a human skull produced, which is fractured; but was this the cause, or was it the consequence of death? was it owing to violence, or was it the effect of natural decay? if it was violence, was that violence before or after death? My Lord, in May 1732 the remains of William Lord Archbishop of this province, were taken up by permission, in this cathedral, and the bones of the skull were broken, yet certainly he died by no violence offered to him alive, that could occasion that fracture there. Let it be considered, my Lord, that upon the dissolution of religious houses, and the commencement of the reformation, the ravages of those times affected both the living and the dead. In search after imaginary treasures, coffins were broken up, graves and vaults dug open, monuments ransacked, and shrines demolished; and it ceased about the beginning of the reign of Queen Elizabeth. I entreat your Lordship, suffer not the violence, the depredations, and the iniquities of those times to be imputed to this. Moreover, what gentleman here is ignorant that Knaresborough had a castle, which though now a ruin, was once considerable both for its strength and garrison? All know it was vigorously besieged by the arms of Parliament, at which siege in sallies, conflicts, flights, pursuits, many fell in the places round it, and where they fell were buried, for every place, my Lord, is burial earth in war; and many questionless of these, rest yet unknown, whose bones futurity shall discover. I hope, with all imaginable submission, that what has been said will not be thought impertinent to this indictment; and that it will be farther from the wisdom, the learning, and the integrity of this place, to impute to the living, what fury in its zeal may have done; what nature may have taken off and piety interred; or what war alone may have destroyed, alone deposited. As to the circumstances that have been raked together I have nothing to observe, but that all circumstances whatever are precarious, and have been but too frequently found lamentably fallible; even the strongest have failed. They may rise to the utmost degree of probability, yet they are but probability still. Why need I name to your Lordship the two Harrisons recorded by Dr. Howel, who both suffered upon circumstances, because of the sudden disappearance of their lodger, who was in credit, had contracted debts, borrowed money, and went off unseen, and returned a great many years after their execution? Why name the intricate affair of Jaques du Moulin under King Charles 2d, related by a gentleman who was counsel for the crown? and why the unhappy Coleman who suffered innocent, though convicted upon positive evidence, and whose children perished for want, because the world uncharitably believed the father guilty? Why mention the perjury of Smith, incautiously admitted king’s evidence, who to screen himself equally accused Faircloth and Loveday of the murder of Dun, the first of whom in 1749 was executed at Winchester, and Loveday was about to suffer at Reading, had not Smith been proved perjured to the satisfaction of the court, by the Surgeon of Gosport hospital. Now, my Lord, having endeavoured to shew that the whole of this process is altogether repugnant to every part of my life, that it is inconsistent with my condition of health about that time, that no rational inference can be drawn, that a person is dead who suddenly disappears, that hermitages were the constant repositories of the bones of the recluse, that the revolutions in religion or the fortune of war, has mangled or buried the dead; the conclusion remains perhaps no less reasonably than impatiently wished for. I at last, after a year’s confinement equal to either fortune, put myself upon the candour, the justice, and the humanity of your Lordship, and upon yours, my countrymen, gentlemen of the jury.”

FINIS.

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Footnotes

Footnote 1:

In cases of attempted suicide we shall neither be surprised nor
deceived by any extravagant statements.

Footnote 2:

Dict. des Sciences Med. Art. Folie.

Footnote 3:

See vol. 2. page 155 of the present work, where this subject is very
fully considered.

Footnote 4:

See note at page 269 of vol. 2.

Footnote 5:

_Aretæus_ asserts that immoderate perturbation of mind, consternation,
fear, despondency, sudden and violent joy, immoderate laughter, &c.
have produced apoplexy, (_De Signis et Caus: Diut: Morb: Lib. 1, c.
7_.) _Forestus_ (p. 509) relates the case of a gentleman of plethoric
habit, and hereditarily disposed to the disease, who, on receiving
information of the sudden death of an intimate friend, was instantly
seized with a tremor of the left foot, and soon afterwards with
apoplexy. We beg to refer the reader to _Dr. Cooke’s_ valuable and
learned work on Nervous Disorders, vol. 1, p. 217, where the author
has collected with much industry a variety of cases in illustration of
this subject.

Footnote 6:

A Manual for the Student of Anatomy, containing rules for displaying
the structure of the body, so as to exhibit the elementary views of
anatomy, and their application to pathology and surgery, by _J. Shaw_;
being an outline of the demonstrations delivered by him to the school
of Great Windmill-street. 8vo. p. 342. London, 1821. We have been much
pleased with this useful little work.

Footnote 7:

_Cooke_ on Nervous Disease, vol. 1, p. 176. In some few instances,
however, death takes place immediately in this disease. _Dr. Kirkland_
speaking of apoplexy, in which there is an instantaneous extinction of
the vital principle, relates the case of a mantua-maker, who being at
work, was talking cheerfully with some of her friends about her, when
her hands dropped down upon her lap, and she was perfectly dead.
_Forestus_ relates several similar cases, but hesitates in pronouncing
them apoplexy. We have no doubt but that the greater proportion of
sudden deaths depend upon diseases of the heart.

Footnote 8:

See the trial of _Lawrence Braddon_ and _Hugh Spake_, for a
misdemeanour, in suborning witnesses to prove the Earl of Essex was
murdered by his keepers. Feb. 7, 1683. _Sta. Tri._ vol. iii.

Footnote 9:

See our observations upon this phenomenon at page 13 of the present
volume.

Footnote 10:

_Dr. Badenoch_, in a work on the diseases of India, ascertained by
repeated and accurate experiments, that the heat of those who die
apoplectic from a “_coup de soleil_,” or “_insolation_,” as it is
termed, continues for a considerable time several degrees higher than
the natural standard; in one case, the heart felt to his hand as if it
had been five or six degrees higher than in life and health,
notwithstanding the body had been dead twenty-four hours.

Footnote 11:

Elements of Juridical or Forensic Medicine. Edit. 2, p. 101.

Footnote 12:

See experiments by _Dr. Gibbs_, on Adipocire, in the Philosophical
Transactions for 1794, part ii, and for 1795.

Footnote 13:

See “Genuine Memoirs of the life of _Sir John Dinely Goodere, Bt._”
_&c._ by _Samuel Foote_. Also State Trials.

Footnote 14:

“Genuine trial of _Margery Beddingfield_ and _Richard Ringe_, for
petty treason and murder. London 1762.”

Footnote 15:

See State Trials, vol. ii, p. 756; see also _Burnett’s_ Hist. of his
own times, vol. 1, p. 445.

Footnote 16:

The whole proceedings before the Coroner’s inquest at Oldham, &c. on
the body of _John Lees_, who died of sabre wounds at Manchester; taken
in short hand by _A. Dowling_. London, _Hone_, 1820.

Footnote 17:

Vol. x, _Appendix_, p. 29.

Footnote 18:

In the case of _Patch_, who was left-handed, it was clearly shown by
the relative position of the deceased, and the door from which he was
shot, that the murderer must have exposed his person to the view of
the deceased, unless he fired with the left hand. The guilt of _Patch_
was for some time doubted, but the discovery of the pistol in the
neighbouring dock a few years ago, has supplied the only link which
was wanting to make the evidence against him complete.

Footnote 19:

See “An account of the symptoms and death of the sailors who were
affected in consequence of a fire having been kindled in the hold of
their vessel, and their neglecting to leave the hatches open, by _Dr.
King_.” Edinb. Med. and Surg. Journ. no. 26, April, 1811.

Footnote 20:

If in addition to the presence of water in the stomach any weeds be
found, the presumption is strengthened that the person had been
drowned. This occurred in the case of _Mary Ashford_, the vegetable
matter discovered in the stomach corresponded with that with which the
pool was covered.

Footnote 21:

Teichmeyer Inst. Med. Leg. p. 176.

Footnote 22:

De Morb. Vulg. lib. v, sect. vii, 27.

Footnote 23:

Recherches Anatomico-Pathologiques sur l’Encephale et Ses Dependances,
par _F. Lallemand_. Paris 1820-21.

Footnote 24:

In three cases in which these deposits were found in contact with the
olfactory nerve, the patients had suffered much for a considerable
time, previous to death, from the sensation of unpleasant odours.

Footnote 25:

See cases illustrative of the Pathology of the Brain, by _R. Powell_,
M.D. Med. Trans. vol. 5. _Dr. Martinet_ describes a well marked case
of _Arachnitis_, complicated with fracture of the cranium. Bulletin de
l’Athenée de Med. de Paris.

Footnote 26:

_Baillie’s_ Morbid Anatomy.

Footnote 27:

The reader will also be very much amused by the account of the
dissection of _Charles_ II, and of the appearances which supported the
idea of his having died from poison. _Burnett’s Hist. of his own
times_, vol. ii, p. 230.

Footnote 28:

The case of _John Lees_, which formed the subject of the Oldham
inquest, appears in this respect to have borne some analogy; see also
the case related by _Baron Larey_, p. 15.

Footnote 29:

_Surgical Observat._

Footnote 30:

_Cobbett’s_ State Trials, vol. ii, p. 503.

Footnote 31:

We have already alluded to such a cause of suffocation, (see p. 58 and
438.) The following instructive case has been transmitted to us by
_Mr. Alcock_, whose zeal and acumen in anatomical researches are as
honourable to himself, as they are useful to the profession of which
he is so active a member.

“_Wm. Thompson_, æt. 36, formerly a soldier of the 27th regt. late a
watchman of St. James’s parish, had had three fits, stated to be
epileptic, within the last two years.

“Dec. 9th 1821, he was attacked by another fit, having the usual
character of epilepsy, which terminated fatally. In the morning he
appeared in his usual health, and had remarked to his wife that “he
was as well as ever he had been in his life.” He ate largely of pork,
with sage and onions, for dinner, about one o’clock. About five he was
rather unwell, and a little before six “went off in a fit.” He had
frequent convulsions “as rapidly as he could have them,” (his wife’s
statement) from the time he was taken ill till he died. There was no
sickness—no vomiting. He had lain upon his back for some time; he was
turned upon his side and suddenly expired. He never spoke from the
time of the attack till his death, A week previously he had complained
of head-ache, but not on the day of his illness. He was extremely
subject to flatulence. He did not cough at any time during the attack
which immediately preceded his death. For some years past he had been
unable to lie upon his right side.

“He was largely bled from the arm; cold applications were freely
applied to the head, with some temporary mitigation of the
convulsions. Some medicines were directed, but as the state of
insensibility in which he was, precluded swallowing, it may be doubted
whether they ever reached his stomach. His pulse was full and
frequent, but he was too unsteady to allow it to be counted. The
pupils were contracted to points; but on the recurrence of the
convulsions became widely dilated. After the cold affusion over the
head, and as the convulsions abated, they gradually contracted.

“The examination of the morbid appearances was made, four days after
death, by _Mr. Alcock_, in the presence of _Mr. C. T. Haden_, surgeon,
and others.

“_External appearances_, those of a very athletic, muscular subject.
No external appearance of injury. Slight shew of putrefaction on the
abdominal parietes.

“_The head_ was carefully and minutely examined. The vessels of the
brain were distended with blood, but in no degree sufficient to
explain the cause of death. The brain was firm and natural in every
part. The choroid plexus of the right side was studded with a few
small hydatid-like vesicles. The spinal marrow, as far as could be
seen through the foramen magnum, was free from disease. The ventricles
contained about two fluid drachms of liquid, and about the same
quantity was found in the base of the skull when the brain was
removed.

“_The chest._ The right lung adhered universally, but its structure
was natural; the left lung was somewhat gorged with blood; no
preternatural adhesions. About from four to eight ounces of bloody
fluid in the left cavity of the chest. The heart was loaded with fat,
and had on the outer surface of the right ventricle a patch of lymph
like a thin layer of coagulated albumen. Several smaller spots of the
same kind on the right auricle; but none of them penetrated into the
substance.

“_Abdomen._ The liver adhered in numerous parts, and very extensively
to the peritoneum. The stomach was enormously large and distended with
food and air; the small intestines were also somewhat more distended
than usual, but exhibited no appearance of disease sufficient to
account for the death of the patient. The spleen was small and
unhealthy, having several white patches on its surface.

“Thus far no satisfactory explanation of the cause of death appeared.
And here, according to the usual mode of conducting examinations, the
investigation would have terminated, but I consider it essential in
every case to examine the air-passages. On examining the bronchiæ of
the left side, the principal ramifications and some of the smaller
were filled with a pultaceous substance of a dirty greenish hue and
heterogenous texture, resembling food which had undergone some degree
of digestion: it completely filled the left bronchia. The right
bronchia and its ramifications were quite filled with similar matter,
and the trachea was also completely filled at the lower part, so that
breathing in such a state must have been impossible. That the matter
filling up the air passages consisted of chyme from the stomach became
evident, from its perfect similarity to that which remained in the
stomach.”

Since the receipt of the above interesting communication from _Mr.
Alcock_, we have found upon an inquiry amongst the carcase butchers,
that the presence of food in the pulmonary passages is by no means a
rare occurrence in those animals that have been struck on the head.

Footnote 32:

Morbid Anatomy, p. 37.—Med. Observ. vol. iv, p. 380—Memoirs of Med.
Soc. vol. i, p. 228.

Footnote 33:

Medico-Chirurg. Trans, vol. i; and the present work vol. ii, p. 30.

Footnote 34:

Feb. 1822, vol. xvii.

Footnote 35:

Vol. iii, p. 577.

Footnote 36:

See also “Cases of Ruptured Spleen and Liver from external injury,” by
_Dr. Chisholm_. Edinb. Med. and Surg. Journ. for July, 1811.

Footnote 37:

See the case of _Bartholomew Quain_, vol. ii, p. 123.

In the year 1801 _Richard Starke_ was executed at Newgate for the
wilful murder of _Mary_, his wife, in Clement’s Lane, by dragging her
on the floor by the hair of her head, and inhumanly kicking her. _Mr.
Crowther_ and _Mr. Andre_, surgeons, were of opinion that she died in
consequence of the rupture of the spleen, which appeared to them to
have been occasioned by bruises.

Footnote 38:

_Lieutaud._ T. I, p. 319 and 333.

Footnote 39:

Principles of Midwifery, edit. 4, page 451.

Footnote 40:

See a paper in the Philosophical Transactions, no. 309, p. 2387,
entitled “Balls of hair taken from the uterus and ovaria of several
women, by _Mr. James Yonge_.”

Footnote 41:

See our Physiological History of Conception and Utero-gestation, vol.
i, p. 230.—_Dr. Blundell’s_ Memoir, entitled “Experiments on a few
controverted points respecting the Physiology of Generation.”
_Medico-Chirurg. Trans._ _vol._ x, _p._ 245.

Footnote 42:

In the year 1788, _Blumenbach_ shewed that _corpora lutea_ may exist
in the ovaries of virgins (Comment. Soc. Reg. Scient. Gotting. vol.
ix.) _Cuvier_ has also noticed the appearance of cicatrices in the
ovaria of women who had never known any intercourse with the male.

Footnote 43:

Wilson on the Bones and Joints, p. 110.

Footnote 44:

It was the custom of the ancients to exhibit in the same sculpture in
Bas relief, men of very different dimensions, of making kings and
conquerors gigantic in stature, while their subjects and vassals were
represented as only a fourth or fifth part of their size. This must
have given origin to the fable of Giants and Pigmies; while a belief
in such tales has been supported by the discovery of gigantic bones,
which have through ignorance been received as human remains, but
which, as SIR HANS SLOANE in an interesting paper in the PHILOSOPHICAL
TRANSACTIONS (No. 404, p. 497,) very truly observes, are nothing more
than the bones and teeth of Elephants or Whales: thus, says he, the
fore fin of a whale, stripped of its web and skin, was not long since
publicly shewn for the bones of a giant’s hand. The same explanation
applies to those pretended skeletons of Giants of 12, 20, and 30
cubits high, as mentioned by _Philostratus_. The skeleton of 46 cubits
which, according to Pliny (_Hist. Nat._ _Lib._ vii. _c._ 16,) was
found in the cavity of a mountain in Crete, upon its overthrow by an
earthquake. The skeleton 60 cubits high which _Strabo_ (Lib. 17) says
was found near Tangis (Tangier) in Mauritania, and supposed to be that
of Antæus. To which list maybe added the skeleton of Asterius, son of
Anactes—10 cubits. That of Orestes, dug up by special command of the
Oracle, 7 cubits, &c. &c.

Footnote 45:

In a lecture on “Mathematical Beauty,” delivered by _Professor Camper_
in the Academy of Drawing at Amsterdam, this celebrated physiologist
has shewn that in tracing the figures of the body of the male and
female in two imaginary ellipses of equal dimensions, a portion of the
pelvis of the latter would be out of the ellipse, and her shoulders
within it; whereas in the former, the shoulders would project beyond
the limits of the figure, and his pelvis, on the contrary, would be
entirely enclosed within it.

Footnote 46:

_Sir M. Hale_ (_1 P. C._ 433) says, it cannot be legally known whether
it were killed or not; and adds, “so it is if after such child were
born alive and _baptized_, and after dies of the stroke given to the
mother, this is not homicide.” It is difficult to conceive why the
term _baptized_ was introduced in this dictum: for whether it were the
child of Jew, Turk, or Anabaptist, it is equally entitled to the
protection of the law.

Footnote 47:

The Roman Emperor, at a congress held at Constantinople in 692,
ordained, that it should be punished with the same rigour as homicide;
and severe statutes were enacted against it by _Antonine_, as early as
the 161st year of the christian era.

Footnote 48:

_Exodus_, _c._ xxi. A case illustrative of this law occurred at
Stafford in the year 1811; when a man was executed for the murder of
his wife, whose death he occasioned by inducing abortion, through
extreme violence, as by elbowing her in bed, rolling over her, &c.

Footnote 49:

By the _Stat._ 21 _Jac._ _c._ 27. If a woman delivered of issue, which
being born alive would be a bastard, endeavour by burying, drowning,
&c. by herself or others, so as to conceal its death, that it may not
appear, whether born alive or not, it is _murder_, unless she prove by
one witness at least, that it was born dead. _Ba. Abr. tit. Bastard._

Footnote 50:

We are strongly inclined to believe the assertion, that where the
severity of a statute is excessive, judges, juries, and prosecutors,
enter into a league to defeat its rigor.

Footnote 51:

The law of Scotland was yet more severe; the mere fact of concealing
the pregnancy, whether the death of the child were proved or not, was
a capital felony. See 1 _Hume’s Com._ 287, and 1 _Burnet’s Crim. Law_,
tit. _Child-murder_, and many cases there cited. The child of
_Margaret Dickson_, to whose case we have alluded, _vol._ ii, _p._ 91,
was legitimate.

Footnote 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.

Footnote 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.

Footnote 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.

Footnote 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.”

Footnote 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_.”

Footnote 57:

On this subject see “Physiological Illustrations of Utero-gestation”,
vol. i, p. 239.

Footnote 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_.”

Footnote 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._

Footnote 60:

Abortio—Abortus, formed of _ab_ from, and _orior_ to be born. Among
the ancient physicians the term _Abactus_ or _Abigeatus_, was used for
a miscarriage procured by art, or force of medicines, in
contradistinction to _Abortus_, which is natural. But the moderns
acknowledge no such distinction.

Footnote 61:

See our history of the Juniperus Sabina, vol. ii, p. 578.

Footnote 62: