GANS, &C.

CHAP. X. ries.(i) It has been supposed that there is not any change in the fœtus exTHE FE- cept that of position, though it is favourable to the mother, because whatMALE OR- ever complaint she before suffered, after the time of quickening usually declines or is wholly removed.(k) The foetus being now stronger, and its members more perfect, the motions, previously made feebly and imperceptibly, now become of sufficient strength to communicate a sensible impulse to the adjacent parts of the mother, and to furnish evidence to others whose business it may be to ascertain the fact of pregnancy.(!) And it has been supposed that a woman is not to be considered quick with child till she has herself felt the child alive and quick within her;(7) but of course on a plea of pregnancy and quick with child, &c., other evidence than the mother's sensations must be resorted to.

Fifth

month.

If a woman be convicted of a capital offence, she may plead, or by her counsel, move a stay of execution, on the ground of her pregnancy, and being quick with child, upon which a jury of twelve married women de circumstantibus will be empannelled and sworn to try "whether the prisoner be with child of a quick child or not;" when they will retire from the jury box along with the prisoner into a private room, and be sworn, to be without meat, drink, or fire, except that of a candle, until they agree upon their verdict. If they bring in their verdict "that the pri soner is not pregnant of a quick child," then execution will immediately proceed, unless the judge, of his own accord, should respite the sentence, as was recently happily ordered by an excellent and learned judge, and the result of which was, that though the jury of matrons had found such verdict on the 22d March, 1833, the woman was delivered of a living, perfect, and mature child within the next four following months, viz. on the 11th July, thereby establishing the error of such verdict.(m) Quickening, therefore, instead of marking the period at which the future individual becomes endued with humanity or vitality, or elevated to distinct personal identity, is but the sign of a certain advance in the development and aggrandizement of the growing body to a certain pitch, and of its now possessing a greater degree of force; and hence it has been contended that there is no ground for the great distinction in criminal punishment, whether or not the child has quickened.(n) It is laid down that about the fourth month after conception, that stage of utero gestation arrives which enables the medical practitioner, by means of an external examination, to ascertain whether or not a woman be pregnant; for at this stage the uterus may be distinctly felt through the integument of the abdomen.(0)

At the fifth month the abdominal seems to predominate over the thoracic part of the frame of the foetus. At this time also the abdomen of the mother swells like a ball with the skin tense; the fundus uteri now extends about half way between the pubes and umbilicus, and the cervix is sensibly shortened.(p)

(i) Denman, Prac. Mid. 175; James' Burns, 174, probably occasioned by some rupture or laceration in the vessels, occasioned by the change of position.

(k) Denman, Prac. Mid. 148; Dewees, Dis. Fem. 137.

(1) This is the legal evidence of quickening, per Lawrence, J.; 3 Par. & Fonb. 89, 90; 1 Par. & Fonb. 239, 240; but see doubts as to the time, 1 Beck, Med. Jur. 115; as to the discovery by touch, id. 116. And a jury of matrons have brought in a verdict of not quick, the fallacy of which has been established by the subsequent delivery at maturity within the time. If a woman be found guilty of a capital of

fence, and be quick, but not otherwise, she may plead her pregnancy in delay of execution, favorem proli, 3 Par. & F. 142.

(m) Rex v. Mary Wright, Norwich. 22d March, 1832. By certain correct information obtained from the counsel, Mr. S. Taylor, and from the accoucheur, it is clear that the child, when born, was a perfect and mature child.

(n) Smith, 315, 316; 1 Par. & Fonb. 239, n. (b;) 1 Beck, Med. Jur. 200 to 203; post, as to causing miscarriage.

(0) 1 Par. & Fonb. 236, where the process of examination is stated. (p) 1 Par. & Fonb. 240; 2 Dungl. Phy. 354.

In the sixth month the upper edge of the fundus is a little below the CHAP. X. umbilicus, and the foetus acquires a considerable degree of vigour, and it THE FEthen measures about nine inches in length. And from the fifth to the MALE ORseventh the foetus, it is supposed, may be born alive, though still incapa- GANS, &c. ble of being reared.(g)

Sixth to

month.

The heart is formed before the brain, and the first indication of life in seventh a fœtus is a small beating point, the punctulum saliens, and which afterwards becomes the muscular substance of the ventricles, and from this the large vessels expand; and it is not until some time after that the brain becomes organized.(r) But Sir E. Home has established that the rudiments of the brain and spinal cord are visible before the heart. At the end of the sixth month the testicles in the male foetus begin to descend to the scrotum, though they are not found there till after the eighth.(s) In the sixth month the placenta and membranes weigh seven or eight ounces, the fœtus twelve or thirteen, and is then eight or nine inches in length, and perfect in all its external parts (1) From the sixth to the ninth month the progress is more rapid.

In the seventh month the fundus, or superior part of the swelling, ad- Seventh vances just above the umbilicus, and the cervix is then nearly three-fourths month. distended. After the end of the seventh month the infant is perfectly formed, being deficient only in size and weight, and about, or perhaps rather before, this period the membrana pupillaris, (upon the use of which there have been many observations,) disappears.(u) It is then capable of being, and frequently is, reared, and of reaching maturity, so that it has been observed that we cannot carry the consideration of abortion beyond the seventh month of pregnancy, the child being then on the same footing with one mature;(x) and, therefore, between the seventh and the end of the ninth month the too early production is to be termed premature birth. It has been observed, that no child born after the termination of the seventh month of pregnancy should weigh less than five pounds avoirdupois, or be less than fifteen inches in length;(y) but, according to Chaussier and other physiologists, the length is a more certain indication of the age than weight, and the former has, therefore, given a scale of admeasurement for the more certain ascertainment of the age.(z) However, as the length also varies, it seems that no great stress should be laid either on weight or length, in endeavouring to ascertain the age of seven months.(a)

In the eighth month the swelling of the uterus reaches midway between Eighth the navel and scrobiculus cordis, the neck itself, being then entirely dis- month and tended, and at full time the uterus occupies all the umbilical and hypo- upwards. gastric regions, although a short time before delivery it subsides to where it was between the seventh and eighth months.(b) As the abdominal tumour advances it assumes a peculiarity; the umbilicus is drawn down, and a flatness is perceptible, or imagined to be so, in the abdomen. The tumour is longer concealed in tall women than in those who are short; and it has been remarked, that the pregnant uterus does not rise directly upwards, but generally inclines to one side, most commonly to the right.(c) The size and appearance of the foetus in its different stages

CHAP. X. during gestation is well exemplified in different plates by Lizars and THE FE- other authors.(d)

MALE ORGANS, &c.

of fœtus from con

It will be observed that the human foetus, during the progress of deGeneral re- velopment, runs through a series of phases or changes, each of which is sult of pro- found to correspond with permanent conditions of organization in the gress of deanimal series. At first the embryo is a mere bud or germ, placed in a velopment small vesicle, resembling one of the simplest worms; it soon becomes a small vermiform body, without apparent head or limbs, which is the chaception racter of the annelides, in the centre of which the small appearance of the until birth. heart is at an early stage visible; in the next step of the change two sets of limbs of the same length are produced, which, with a caudal prolongation, constitute a resemblance to quadrupeds. If the development of the osseous system be examined, it will be found at first mucilaginous, then cartilaginous, and finally it passes into the state of true bone; but with sutures in the head, providentially rendering it pliant, or capable of a degree of compression in birth. Again, at the earliest period of fœtal life, the nervous system is limited to the nervous cords and their ganglia; at the next step of its progress, the medulla spinalis is first formed, and afterwards the medulla oblongata, together with the tubercula-quadrigemina are distinctly marked, though the brain and cerebellum are still rudimentary, and which are established after the spine. The cerebral organs then soon begin to predominate over the tubercula, and their development proceeds until finally the lobes of the cerebrum and cerebellum attain that degree of conformation, which is characteristic of man.(e) Dr. Denman has observed, that as regards the practice of midwifery, any attempt to determine the weight, length and dimensions at different periods of utero gestation, varying so greatly in different children, would be of little utility.(f) But they may become exceedingly important as regards judicial inquiry.

Successive

of labour

pains.

The Uterus, or rather the fœtus it contains, in the progress of pregshape and nancy, changes its size and figure as well as position considerably: we situation of have seen the usual dimensions when unimpregnated.(g) Before the end uterus at of the third month it has a tendency to dip towards the pelvis, after which different period it may be felt to ascend. During the seventh month it forms a stages of line with the navel; in the eighth month, it ascends still higher, reaching gestation, and at time midway between that organ and the sternum; and in the nin:h month, it almost touches the ensiform cartilage; and then measures ten or twelve inches from top to bottom; at the close of which, as though overwhelmed by its own bulk, it begins again to descend, and shortly afterwards, from the irritation produced by the weight of the child, or more probably from the simple law of instinct, it becomes attacked with a series of spasmodic contractions, extending to the surrounding organs, and constituting the pains of labour, which gradually increase in strength, enlarge the orifice of the organ, and protrude and expel the child into the world.(h) In about ten minutes or a quarter of an hour after the birth, the uterus contracts very considerably, or the hemorrhage would be fatal; (i) but it does not return to near its original size under a month or six weeks; and indeed never returns to the smallness of the virgin state.(k) Dr. Paris

(d) Lizars, plate viii. and ix. p. 96, &c. and Dr. Granville's Graphic Illustrations of Abortion, &c.

(e) Meckel, vol. i. 50; Quain, 26. Denman, Prac. Mid. 130; see fully, Dewees, Midwif. 84 to 89.

(g) Ante, 392; 1 Par. & Fonb. 236,

256; 3 id. 67; 3 Bost. 33; Dewees, Midwif. 80 to 84; 1 James' Burns, 143.

(h) See fully, Dewees, Midwif, 143 to

165.

(i) 5 Good, 152.

(k) 3 Par. & Fonb. 67.

has given a full description of the appearance of the uterus in women who CHAP. X. have borne children.()

THE FEMALE OR

and the utmost pro

The natural duration of the time of pregnancy or gestation is thirty- GANS, &c. nine weeks and one day, or nine calendar months; (m) and the only diffi- The usual culty or uncertainty in general is the time from which this period begins to run. If there has only been a single coitus, then it is to be calculated tracted from that event; and some women, it is said, from peculiar sensations a time of few hours after intercourse, can tell when in fact impregnation has been gestation. accomplished; some reckon from the usual cessation, or rather non return of the catamenia, reckoning from its last appearance, and adding a fortnight; whilst others calculate from the time of quickening, reckoning five months after that event; but as that event does not uniformly take place at the sixteenth week, it has been deemed an uncertain period from which to calculate.(n) Dr. Denman observes, that in order to avoid any great error, it is customary to take the middle time, and to reckon fortytwo weeks from the last act of menstruation, by which method, if rightly informed as to that event, then no egregious mistake can arise. (o) It seems, from high authority, that in giving medical advice on this as upon other subjects to the patient, a degree of deception is admissible and laudable to prevent prejudicial anxiety; and that therefore it is advisable to induce an expectation that the time of labour will not arrive until after the probable period.(p) In this country the calculation rests solely on received opinions and a few decisions, but in other countries it is fixed; thus, by the law of Scotland, a child born six months after the marriage of the mother, or ten calendar months after the death of the father, is considered legitimate. In France the express civil code has placed a limit to our credulity respecting retarded births, and decrees three hundred days or ten calendar months to be the most distant period at which the legitimacy of births shall be allowed.(g) Dr. Paris observes, that the term does not appear to be so authoritively established, but that nature may occasionally transgress her usual law, and that in several tolerably well attested cases the birth appears to have been protracted several weeks beyond the common time of delivery; and Dr. Hamilton remarks, that if the character of the mother be unexceptionable, a favourable report ought to be given for the mother, though the child should not be produced till nearly ten calendar months after the absence or sudden death of her husband.(r) Dr. Smith states, that it is admitted that a woman may carry a child to the eleventh month;() and that although in this country the usual time of birth is considered to be 280 days after conception, making a period of nine months, of thirty days each, and ten days more; yet that a child may be born nine months and twenty days after the death of his father; but where the child was born eleven months after the death of the husband, and it was proved that the father could not have had intercourse with his wife within a month before his death, it was adjudged a bastard;(t) he states that real excess beyond nine months is by no means frequent, and certainly never

(1) 3 Paris & Fonb. 67, 68.

(m) 1 Beck, Med. Jur. 289; 1 James' Burns, 142, &c.; Dr. Blun. Lect. Mid. 256.

(n) Denman, Prac. Mid. 175; Dewees, Midwif. 125; 1 Paris & Fonb. 218, 230, 245 to 448; id. Appendix, vol. iii. 209 to 222; Smith, 492; 266 days according to Morgan, Mech. Prac. of Phy. 282; Farr, 18, the French law allows the probability of 300 days or ten months, 1 Par. & Fonb. 268; so in Scotland, id. note (a;) Beck, Med. Jur. ch. ix.

GANS, &C.

CHAP. X. great; and he suggests that, considering the fallacy of a woman's sensaTHE FE- tion, if any, as to the period of conception, and the very great probaMALE OR- bility of her having been mistaken in the first instance to the extent of about three weeks, by reckoning conception from sexual intercourse immediately after the last appearance of the catamenia, while in reality it may not have taken place until just before they should have appeared again, the erroneous supposition of ten months' pregnancy might be explained at once, added to which, it may occur that the catamenia may cease from other causes, and conception may take place during their influence.(u) Another author states, that the ordinary time of gestation is forty-two weeks, to be commenced in reckoning from the last menstruation, ascertaining the time it ceased;(x) but that even twelve months is a term allowed by some physicians as what may take place under peculiar weakness or delicacy of health; though he suggests that it is most probable that in all these cases the mother was mistaken as to the proper time of her conception, and has imagined herself to have conceived for some weeks or even months before it actually took place. In the Gardner peerage cause, tried before a Committee of the House of Lords in A. D. 1825, nine calendar months were admitted on both sides as constituting the ordinary ultimate range; though a few singular cases were adduced, in which the pregnancies were supposed to have been protracted at least a month longer.(y) But the decision in the Gardner peerage case has been questioned.(z) Several cases in our courts have occurred on this subject.(a)

How early

be deliver

The expulsion of the ovum or embryo within the first six weeks after a child may conception is technically called miscarriage; between that time and the ed so as to expiration of the sixth month, when the child may by possibility live, it live. (b) is termed abortion. If the delivery be soon after the sixth month, it is termed premature labour;(c) but the criminal attempt to destroy the foetus at any time before birth, is termed in law procuring miscarriage, varying as we have seen in degree of offence and punishment, whether the attempt were before or after the child had quickened.

It is admitted by Dr. Paris, contrary to the opinion of Dr. Smith, that from the number of established cases, it is possible that the foetus may survive and be reared to maturity, though born at very early periods after conception, and even under the period of seven months; (d) but generally in favour of the life of the mother, charged with the murder of so young a child, prematurely born, most medical men agree that offspring born under seven months from the time of conception cannot long survive, or at least attain maturity, and that therefore no conviction of murder or concealment of birth ought to take place.(e) We may all concur in the wish to save the life of a mother under such a charge; but in a strict judicial view, if there be a mere possibility of the child, born alive within seven months, being by extreme care or under any circumstances kept alive for any considerable time, it should seem that the culprit, who deprives the infant of all chance, ought to be held criminally responsible. Many ancient instances are stated of births even at four months and a half with continued life even till the age of twenty-four; and the parlia

Jur. 292 to 299; 2 Dungl. Phy. 330 to 332. (b) 14 Philad. Journ. Med. and Phys. Sci. 39 to 44; Farr, 16.

(c) 1 Paris & Fonb. 243, 244; 3 Paris & Fonb. 100, 101; 2 Dungl. Phy. 332.

(d) Smith, 336, 337; Paris & Fonb. 100, 101; Farr, 8, 16; Forsyth, 426, 427, in note, 428, 429.

(e) Copl. Dict. Prac. Med. tit. Abortion.