PART II.

_Introduction—1. Of Medical Evidence generally—2. Of Marriage and Divorce—Various Questions connected with the foregoing subjects elucidated by Physiological Researches—3. Of Legitimacy—Suppositious Children—Tenant by the Courtesy—Monsters—Hermaphrodites—Physiological Illustrations—4. Of Idiots and Lunatics—Medical and Physiological Illustrations—5. Of Nuisances, legally, medically, and chemically considered—6. Of Impositions—7. Of Life Insurance and Survivorship._

INTRODUCTION.

HAVING thus considered, as far as the limits of our work will allow, the Charters, Statutes, Laws and Privileges which regulate the several Public and Corporate Bodies instituted for securing the more regular practice of Medicine[229] in all its branches: and having commented also on the Rights, Immunities, and Liabilities, to which Medical Practitioners are entitled, or subjected, in their several individual capacities, and enumerated the prominent subjects relating to public health, it now remains for us to enter into the discussion of the most important branch of our subject; the most important because, though questions affecting corporate or individual privileges may be and occasionally are of great interest to the public, yet the general administration of justice, as affecting all classes of men in the enjoyment of their natural and acquired rights, stands on higher ground, and demands the best attention of all those who either as principals or assistants; who as judges, advocates, witnesses, or even spectators, are concerned in its due execution. For this reason, we are about to draw the attention of Medical practitioners to the nature and importance of the evidence, which they may be required to give in Courts of Law, on various subjects in which their science is not merely ancillary, but in the highest degree essential to the ends of justice. Nor are these subjects limited, as might at a first and superficial view appear, to the testimony required of physicians and surgeons in criminal cases, but extends in a greater or less degree through every branch of jurisprudence; nor can we yet assert that we have anticipated every point on which medical, chemical, and surgical questions may arise; as recent examples have evinced, that the rapid progress of science which has marked the last half century above all others, is daily eliciting new points both for scientific and judicial enquiry. We must therefore for the present content ourselves with following that arrangement of our subject which is afforded by a natural and immutable scale,—the life and propagation of the human species, from its commencement to its close:—prefacing the subject with some short remarks on the nature of evidence; not indeed as a legal guide to the medical witness, but to point out to him the sources of higher and more general information.

OF MEDICAL EVIDENCE GENERALLY.

As Physicians, Surgeons, and others conversant in medicine and chemistry, are constantly called upon to give testimony in Courts of Justice, it is necessary for us to enter upon this subject of the law of evidence, so far as it immediately affects the medical witness; it is proper that he should understand when he is bound to appear, and on what terms, and it may be useful for him to be prepared, by some previous knowledge of the usual course of examination, for the difficulties and objections which may arise in the progress of it. A scientific witness, fully acquainted with the subject in dispute, and by his particular knowledge well qualified to inform the Court on the most important points, is too frequently rendered miserable in himself, and absolutely ineffective to the ends of justice, by the diffidence which a man of real acquirement generally feels, when impressed at once with the novelty of his situation, a sense of the importance of the duty which he is about to perform, and a consciousness that the truths which he is about to utter, may be obscured, suppressed, or perverted, by technicalities for which he is unprepared with any defence; we do not mean to arraign the present forms of examination in general, when we assert that some abuse in practice too frequently places the witness in as painful a situation, as if he were himself a criminal.

Some knowledge of the law of evidence is the best security against this inconvenience; we propose therefore to lay down a few general rules on the points most likely to occur, and to refer our readers for more particular information to those works which expressly or incidentally treat on this subject.[230]

It is necessary in the first place to consider how the attendance of witnesses is to be compelled by process, under what terms they must appear, their liabilities if they fail to appear, and their duties when in Court.

The writ of Subpœna _ad testificandum_, is the ordinary process of the Courts for compelling the attendance of witnesses; by this the intended witness is required to appear at the trial at a fixed time and place, to testify what he knows in the cause, under the penalty of £100 to be forfeited to the king.

Four witnesses may be included in one subpœna, but a ticket containing the substance of the writ (which is to be shewn at the same time) is as effectual service as the writ itself, (5 _Mod._ 355). The service must be upon the witness in person, (_Cro. Eliz._ 130) and within reasonable time, before the trial, respect being always had to the residence and circumstances of the party.

In Civil suits, the reasonable expense of the witness in going to, staying at, and returning from the place of trial, must be tendered at the time of serving the subpœna: (5 _Eliz._ c. 10, f. 12): if this is not done, the Court will not grant an attachment against the witness (_Fuller v. Prentice_, 1 _H Bl. Rep_. 49) not even if he be present in Court, and refuse to be sworn; (_Bowles v. Johnson_, 1 _Bl. Rep._ 36). But where a witness lives within the weekly Bills of Mortality, it is usual to leave only one shilling with the subpœna: this limitation is not created by the statute of _Elizabeth_, nor have we been able to trace its origin.

The Judge will not compel a witness to be sworn till his reasonable expenses are paid him. (_ubi supra._)

If a witness fail to attend on subpœna, without sufficient excuse, he is liable to be proceeded against in one of three ways. 1. By attachment for a contempt of the process of the Court, from which even a Peer is not exempt. 2. By a special action on the case for damages at common law. 3. By an action on the Statute of _Elizabeth_ for the penalty of ten pounds (5 _Mod._ 355), and for the further recompense recoverable under the Statute; but this must be by the party _aggrieved_, and where the further damage has been assessed by the Court, out of which the process issued. Formerly no remuneration was given to witnesses attending the trial of criminal causes, yet they were bound to appear unconditionally, for “Criminal prosecutions are of public concern, and a witness summoned to appear on a criminal trial has a public duty to perform; and he ought not to be at liberty to make a bargain for his appearance, as he may in the case of a civil suit, where only private interests are involved.” (_Phill. on Evid._). But as such attendance must frequently have been productive of considerable hardship, especially to poor persons, the Statute 22 _Geo._ 2. _c._ 3. _s._ 3. enacts, that when any poor person shall appear on recognizance to give evidence in cases of larceny or felony, the Court may order the Treasurer of the County to pay such person, such sum as to the Court may seem reasonable: as this Statute extended only to poor persons who appeared on recognizance, and not to such as appeared on subpœna, it was afterwards deemed reasonable by the Legislature, that every person so appearing on recognizance, or subpœna, should be allowed his reasonable expenses, and also in case of poverty, a satisfaction for his trouble and loss of time. (_Phill. on Evid._). The Statute 18 _Geo._ 3. _c._ 19. _s._ 8. therefore enacts, that “Where any person shall appear on recognizance or subpœna to give evidence as to any grand or petit larceny or other felony, whether any bill or indictment be preferred or not to the Grand Jury, it shall be in the power of the Court (provided the person shall, in the opinion of the Court, have _bonâ fide_ attended in obedience to such recognizance or subpœna,) to order the Treasurer of the County or Division, in which the offence shall have been committed, to pay him such sum as to the Court shall seem reasonable, not exceeding the expenses, which it shall appear to the Court the said person was _bonâ fide_ put unto by reason of the said recognizance and subpœna, making a reasonable allowance, in case he shall appear to be in poor circumstances, for trouble and loss of time.” These Statutes apply only to cases of felony; on prosecutions therefore for misdemeanors, and in other cases not specially provided for by Act of Parliament, the Court is not authorized to order a compensation to witnesses for their attendance; (7 _T. R._ 377: see also _Burn’s Justice_, _tit. County Rate_). As these Acts, and the 45th _Geo._ 3. _c._ 92. which compels the attendance of witnesses in any part of the United Kingdoms, their expenses being first tendered, do not meet many possible and probable cases of extreme hardship, it is to be wished that some further enactments may be made on this subject: it has indeed been doubted whether the obligation on witnesses in criminal causes is as peremptory as we have stated, (1 _Chitty on Criminal Law_, p. 612), but the weight of authority appears to be on the other side. Mr. Serjeant _Hawkins_, 2 P. C. p. 620, observes that “to persons of opulence and public spirit this obligation cannot be either hard or injurious; but indigent witnesses grow weary of attendance, and frequently bore their own charges to their great hindrance and loss;” and Sir _Mathew Hale_ (2 P. C. 282) complains of the want of power in Judges to allow witnesses their charges, as a great defect in this part of judicial administration.

Our present object is to show that whatever hardship may exist in this point in general, it presses with peculiar severity on medical practitioners,[231] to whom time is most valuable, and the nature of whose profession requires that they should be continually within reasonable distance of their ordinary place of residence; to them therefore the tender of mere traveling expenses becomes a very insufficient compensation: the same policy which exempts them from attendance on other public duties may suggest the propriety of allowing them some adequate indemnity when their assistance becomes indispensable, and this not only for their private and immediate advantage, but ultimately for the public benefit; for if properly remunerated for their attendance, practitioners of a superior class would not be unwilling to devote some portion of their time to the assistance of public justice; whereas under the existing system it is notorious, that all who can, will avoid the burthen; and the duty therefore devolves on those who are least competent to its execution: this evil is particularly apparent on Coroner’s Inquests, where the opinion of a shop-boy has often been allowed to determine a question _in limine_, which properly investigated, might have required the first science to obtain a satisfactory result.

As attendance is more burthensome on a professional man than on others, so also it is more frequently called for; men in general can only be summoned as witnesses when they have, or are reasonably supposed to have, cognisance of the particular facts in question; and he may therefore deem himself peculiarly unfortunate or imprudent, who is often present at such scenes as give rise to criminal investigation; but the medical practitioner, in addition to his liability of being called in for his assistance, and so becoming acquainted with facts, may also be summoned on matters of opinion; those therefore who stand highest in public estimation as men of science and research, will be most frequently burthened with the execution of painful and unprofitable duties; we do not believe that they will shrink from the performance of them when necessary, but we may express a hope that they may be rendered as little burthensome as their nature will allow.

Great difficulties must always arise in the examination of a medical or chemical witness, where the examining party is uninformed or at least very partially acquainted with the science in question; for it is next to impossible for Counsel so to frame their examination of a scientific witness, as to elicit the whole truth unless they are, by previously acquired knowledge, acquainted with the bearings of each answer upon the case which they are maintaining; and though there are a few instances of persons of such superior talent, that they can collect from the mere information of their briefs, so much knowledge as will enable them to perform this duty, with credit to themselves and satisfaction to their clients and the public; yet such instances are rare, and even those most gifted will admit that there is a most material difference between examining a witness on matters of fact of which all persons who have applied themselves to the laws and nature of evidence may be competent judges, and the examination of abstract opinions, and speculations of philosophy or physics, where the examiner can as little follow the reasoning of a witness as if he spoke some foreign and unknown language. For it is impossible within the compass of any ordinary _viva voce_ examination to elicit all the points on which explanation may be necessary, or to remove all the doubts which may give occasion to future controversy; hence questions of this kind are seldom determined at the first hearing, but are repeatedly brought before the Courts in the form of new trials; the cases of _Severn, King & Co._ against several Fire Insurances Offices, which in part suggested the undertaking of the present work, may serve as an elucidation of this point. The causes were conducted by professional men of the first eminence, the Judge who presided well known for his love of science, and from having attained more knowledge in several branches of natural philosophy, than can usually be acquired by those whose time is engrossed by severer studies; the witnesses were among the best Chemists of the day, yet the question (simple as it might at first appear) whether oil or sugar at certain temperatures, and under certain circumstances, should be considered the more inflammable substance, occupied three days on the first and six days on the second trial. Notwithstanding which, a third trial took place involving the same question, and controversial pamphlets were published on both sides on the nature and supposed contradictions of the evidence.

It has been supposed that medical practitioners may avail themselves of the privilege enjoyed by legal advisers,[232] and that they are not bound to divulge the secrets of their patients, reposed in them in the course of professional confidence;[233] undoubtedly this confidence ought not to be violated on any ordinary occasion, but when the ends of justice absolutely require the disclosure, there is no doubt that the medical witness is not only bound, but compellable to give evidence; ever bearing in mind that the examination should not be carried further than may be relevant to the point in question; of this the Court will judge, and protect the witness accordingly. In the celebrated trial of the Duchess of _Kingston_, before the House of Peers, (11 _Harg._ St. Tri. 243) this point of medical liability was raised by Mr. _Cæsar Hawkins_, and determined by Lord _Mansfield_ in the following words: “I suppose Mr. _Hawkins_ means to demur to the question upon the ground, that it came to his knowledge some way from his being employed as a surgeon for one or both parties; and I take for granted, if Mr. _Hawkins_ understands that it is your Lordships opinion that he has no privilege on that account to excuse himself from giving the answer, that then, under the authority of your Lordships judgment, he will submit to answer it: therefore to save your Lordships the trouble of an adjournment, if no Lord differs in opinion, but thinks that a Surgeon has no privilege to avoid giving evidence in a Court of Justice, but bound by the law of the land to do it; if any of your Lordships think he has such a privilege it will be a matter to be debated elsewhere, but if all your Lordships acquiesce, Mr. _Hawkins_ will understand that it is your judgment and opinion, that a Surgeon has no privilege, where it is a material question, in a civil or criminal cause, to know whether parties were married, or whether a child was born, to say that his introduction to the parties was in the course of his profession, and in that way he came to the knowledge of it. I take it for granted, that if Mr. _Hawkins_ understands that, it is a satisfaction to him, and a clear justification to all the world. If a Surgeon was voluntarily to reveal these secrets, to be sure he would be guilty of a breach of honour, and of great indiscretion; but, to give that information in a Court of Justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever.” The examination consequently proceeded.

The observations of Mr. _Haslam_, in his work on _Medical Jurisprudence_ as it relates to Insanity, (London 1817) are so pertinent to our present subject that we shall give them in his own words: “The important duty which the medical practitioner has to perform, when he delivers his testimony before a Court of Justice, should be closely defined, conscientiously felt, and thoroughly understood,—his opinion ought to be conveyed in a perspicuous manner; he should be solemnly impressed that he speaks upon oath, the most sacred pledge before God between man and man—and that the life of a human being depends upon the clearness and truth of his deposition: he is not to palm on the Court the trash of medical hypothesis as the apology for crime; neither should the lunatic receive his cure at the gallows by the infirmity of his evidence; but above all, his opinion should be so thoroughly understood by himself, so founded by experience and fortified by reason, that it may resist the blandishments of eloquence and the subtil underminings of cross examination. The Physician should not come into Court merely to give his opinion—he should be able to explain it, and able to afford the reasons which influenced his decision—without such elucidation opinion becomes a bare dictum.”

“It is to be regretted that on many occasions, where several medical practitioners have deposed, there has been a direct opposition of opinion:—this difference has sometimes prevailed respecting insanity, but more frequently in cases of poison. It is not intended to account for this contrariety of evidence; much will depend on the sagacity of the Counsel to institute the proper enquiries, and still more will be incumbent on the medical evidence, in order to explain and establish his testimony.

“The lawyer’s object is the interest of his employer, and for the fulfilment of his duty he is frequently compelled to resort to a severity of investigation which perplexes the theories, but more frequently kindles the irritable feelings of the medical practitioner. This distrust on the part of the lawyer, however unpalatable, is fully justified, most witnesses going into Court with the preconcerted intention of _proving_ to a certain extent:—and those most conversant in the history of human testimony, have been extremely scrupulous of admitting it as uniform truth until it has been carefully sifted. Guarded with these precautions, and armed with professional experience, the medical practitioner may approach the tribunal of justice with confidence and advantage to the cause of Truth. However dexterous he may shew himself in fencing with the advocate, he should be aware that his evidence ought to impress the judge and be convincing to the jury.” Their belief must be “the test by which his scientific opinion is to be established. That which may be deemed by the medical evidence clear and unequivocal, may not hit the sense of the gentlemen of the long robe, nor carry conviction to the jury.”

There is a natural propensity in human nature, from which the most honorable minds are not free, to view all questions through the medium of some preconceived opinion; in law and politics it is every day evident, in physic and in science it is too often apparent. Hence our law has wisely contrived its modes of _vivâ voce_ examination, in which the judge, the jury, and the counsel, on both sides, are equally empowered to sift the truth, and thus counteract the leaning which any witness may be supposed to have towards the party producing him: a foreign writer of celebrity objects to this method, and prefers the mode adopted generally on the continent of requiring written reports or depositions; we leave our readers to conclude how liable such documents are, especially with a people of lively imagination, to become controversial pamphlets, straining on either side for victory, and not for truth.

As to the mode in which a medical witness should deliver his evidence, very different advice appears to have been given by different authorities; while some impatient of delay, and dreading the arts of examination, recommend their pupils or readers to open at once all the stores of their reasoning and information; others, fearing the effect which cross-examination may have on nervous or embarrassed witnesses, advise that no more shall be disclosed than categorically meets the question of the counsel; and to this we incline, with this difference, that, as we should deem too costive a retention of the truth as blamable as the flow of garrulity with which we have sometimes seen a court overwhelmed, we recommend the witness to steer a middle course, first answering patiently, distinctly, and tersely, the questions put by the Counsel on both sides, the Court and the jury; and if none of these elicit the whole truth, and any material point remains to be disclosed, the presiding judge will always admit and gratefully receive the additions or explanations which may be necessary to the ends of justice.

The witness is next to consider, what is and what is not evidence: we cannot follow this subject in all its bearings, nor indeed is it here necessary, a few points must however be remembered; and first of notes; these if taken upon the spot or immediately after a transaction, may be used by the witness to refresh his memory; and as to dates, numbers, or quantities, it is generally expedient to have them; the notes should be original, not copies; if there be any point in them which the witness does not recollect except that he finds it there, such point is not evidence, for the notes are only to assist recollection not to convey information.

The witness must relate only that which he himself has seen or observed; that which he has heard from others is not evidence as coming from him; except indeed where some expressions or declarations of the parties concerned have become a part of the _res gesta_. but the declarations of a dying man are evidence when related by a third person on oath, though the party making them was not sworn, for the law presumes that the solemnity of the occasion may dispense with the form, and that a man, trembling on the brink of eternity, will never risk salvation by falsehood. To give this weight to a declaration, it is necessary that the party should believe himself to be dying; Mr. Justice _Bailey_, is reported to have said, that the party must be satisfied that recovery was impossible: we think the reporter must have been mistaken; for such a rule would exclude all such declarations; hope is the latest faculty of the human mind. “I am better,” has not unfrequently been the last articulation of expiring nature.

How far and in what cases opinion is evidence, is next to be considered; in ordinary matters where, from a statement of facts, the jury, in the exercise of sound and ordinary understanding, are capable of arriving at a just conclusion, the opinion of a witness is neither requisite or admissible; but in matters of science it is otherwise, provided that he backs his opinion by such reason as may be satisfactory to the understanding of his hearers; and this is the principal qualification of a medical witness, that he make himself _intelligible to ordinary comprehensions_.

No man is bound to give any evidence by which he may render himself liable to any criminal prosecution. At the Old Bailey Sessions, in June, 1821, Mr. _George Patmore_ was tried for the murder of _John Scott_, in a duel. Mr. _Pettigrew_, (a surgeon,) was the first witness called.

Mr. Justice _Bailey_.—Mr. _Pettigrew_, I think it necessary to give you this caution, if you think the evidence, which you are about to give likely to expose you to a criminal prosecution, you are not bound to give it.

Mr. _Pettigrew_. My Lord, I am not competent to form any opinion of my legal guilt; I have not taken the part of principal or second. The part which I have taken was merely to exercise my professional duty; in that I do not think there is any moral guilt.

Mr. Justice _Bailey_. If you went (knowing a duel was to take place) for the purpose of giving surgical assistance, I apprehend that you are liable to a criminal prosecution.

Mr. _Pettigrew_. Then, my Lord, I must decline answering any questions.

Mr. Justice _Bailey_. I recollect having seen a surgeon of eminence tried in this court, on a similar occasion.

Neither Mr. _Pettigrew_, nor his assistant, were examined.

Dr. _Darling_, who had attended the deceased after he had received his wound, deposed that he heard Mr. _Scott_ on his death bed say——

Mr. Justice _Bailey_. Did Mr. _Scott_ at that time think himself in danger: did he give up all hopes of recovery?

Dr. _Darling_. No. To the last he entertained hopes of recovery.

Mr. Justice _Bailey_. The declaration made by a dying man cannot be received as evidence, unless the party at the time of making it were satisfied that recovery was impossible.

We have before noticed the limitation with which we believe this supposed rule must be taken.

With the exception of dying declarations, all evidence in criminal matters, must be upon oath, therefore the affirmation of a quaker cannot be received on a coroners inquest.[234] In the too celebrated case of the Oldham Inquest on the body of John Lees, Mr. _Earnshaw_, a quaker surgeon,[235] who had attended the deceased, though much urged refused to be sworn, and his testimony was consequently rejected; a paper was subsequently delivered to the jury, containing the matter of his observation; this was very properly resented by the Coroner, as an illegal attempt to influence the jury, who by their oaths were bound to admit no information which wanted that legal sanction. While we were writing this article we were surprised to find that a Coroner for the County of Surry had permitted the letter of a Physician to be read to the jury, as evidence that a person deceased was of unsound mind; and on this evidence, (for we can scarcely suppose that the servants deposition to rheumatic headaches, was allowed to weigh,) a verdict of insanity was returned: we shall have subsequent occasion to comment on this _mala miserecordia_.

OF MARRIAGE.

As both our civil and religious institutions consider the matrimonial union as a necessary preliminary[236] to the legal propagation of our species, this as far as it is connected with medical science, will form the first subject of enquiry, in which we are to investigate who are and who are not capable of contracting this relation.[237] And this being a point originally of ecclesiastical jurisdiction, we shall in its examination, follow the order of the civilians, so far as it is necessary to our purpose; we shall accordingly consider the capacity of persons to contract marriage in respect of age, mental capacity, and corporeal fitness. Another question arises from consanguinity; and this though neither founded in nor determinable by medical evidence, may deserve a moment’s attention, since it is evident that the prohibition of marriage to certain degrees of kindred, though it may not have been suggested by physiological reasoning, is well warranted by it. Experience demonstrates both in the human and brute creation,[238] that a race continually bred through the same blood without admixture of a foreign stock, becomes small, weak, and degenerate; this is a fact too well known to the agriculturist in breeding cattle to require further observation. And it is fatally displayed in the royal and noble families of some foreign countries, whose policy has been supposed to require frequent intermarriages, and whose princes and nobles are thence distinguished from their countrymen by their animal, and frequently by their mental inferiority. Those who have travelled in the south of Europe will not be at a loss for examples in elucidation of this principle.

Many questions may arise on the first point; for, though the Act of the 26th of _George_ 2. _cap._ 33. commonly called the Marriage Act, has fixed the age of twenty-one years[239] as the period in both sexes before which this contract cannot legally take effect by the mere act of the parties. Other points may still arise as to the age at which marriage may take place, the statuable precautions of banns or licence having been complied with.

According to the canon law and the doctrines of precontracts (now exploded)[240] or rather from the abuse of both, infants of the most tender age were formerly betrothed to each other; and this precontract they were considered as bound to complete and perform when they should arrive at a sufficient age; the civil law indeed says,[241] “though spousals are not limited to any age, yet infancy is not esteemed in the calculation: _id est si non sint minores quam septem annis_”[242]. Our law however appears, and with good reason, to have fixed upon the supposed age of puberty, fourteen for boys, and twelve for girls, as the earliest period at which marriage should be contracted. Yet even these relative ages, though somewhat too tender either for public policy or domestic happiness, are not invariably the times of puberty; in some instances it is anticipated, in many delayed. If therefore the law of England, in this as in most other matters of Ecclesiastical jurisdiction, follows the Canon law, which “pays a greater regard to the constitution than the age of the parties; for if they are _habiles ad matrimonium_ it is a good marriage, whatever their age may be,” it becomes an important medical question to consider who are and who are not _habiles ad matrimonium_ in respect of nonage.

It is equally, or perhaps more important, that the parties be _habiles ad consensus_, in respect of mental capacity; for though in an old case _Style_ and _West_, 3 _James_ 1. _Roll. Ab._ 357, it was held that an idiot _a nativitate_, might consent to marriage[243], by later resolutions it has been determined otherwise, because consent is necessary to marriage, and idiots are not capable of consenting to any thing, so also of a lunatic, unless the marriage was in a lucid interval. But as it may be difficult to prove the exact state of the party’s mind at the actual celebration of the nuptials, therefore the statute 15 _Geo._ 2. _c._ 30. has provided that the marriage of lunatics and persons under phrenzies, (if found[244] lunatics under a commission, or committed to trustees by any Act of Parliament) before they are declared of sound mind by the Lord Chancellor or the majority of such trustees, shall be totally void. 2 _Burn. Eccl. Law_ 416. 1 _Bl. Com._ 439. _Collinson on Lunatics_, 554.

Persons deaf and dumb may contract marriage, for they can give their consent by signs: 2 _Burn. Eccl. Law_, 415. _Swinb. s._ 15. 3 _Potier_, 165.[245] but it is essential, that they should be competent in all other respects, for there must always be a _prima facie_ suspicion that a person born deaf and dumb, by absence of the ordinary means of instruction, must be of imperfect capacity.[246]

The third consideration is whether the parties are _habiles ad procreandos liberos_ in respect of corporeal ability, for that being the ultimate use and intention of marriage, the contract cannot be good unless the parties are in the condition of performing it;[247] except indeed where the incapacity arises from old age; _volenti non fit injuria_, and though neither the law of the land, nor the law of nature has, as far as it is known to us, prescribed any well-defined limit to the generative capacity,[248] yet after a certain period it may at least be so far doubtful as to create an implied waiver between the contracting parties.[249]

Some foreign jurists and schoolmen have maintained, that the institution being solely _ad procreandos liberos_, it is a profanation of the rite to celebrate it between parties incapable;[250] but this doctrine is repelled by our liturgy, which even prescribes the omission of the prayer for procreation where the woman is past the age of childbearing;[251] how the priest is to ascertain this point we leave the civilians to determine.

But a much more material question of medico-legal policy arises, as to the marriages of those who are afflicted with some serious hereditary disorder, or predisposition to disorder,[252] as _Scrofula_, _Mania_, &c.[253] in such cases public policy might induce an absolute prohibition,[254] but humanity would pause before it added this bann of excommunication to the misfortunes of its object; a middle course might be adopted: Mahon[255] says that the Protestant church admits epilepsy as a good cause of divorce, and that _Alberti_ has handed down a decision of the faculty of Halle on this subject; we do not know any English case on the point, and very much doubt whether our ecclesiastical courts would admit the principle; unless indeed it were made out, that the disorder constituted a moral impotence, or that one of the parties could not perform the contract but at the risk of life.

FERNELIUS is of opinion that old people beget weak and diseased children, “_Senes et Valetudinarii imbecilles filios vitiosa constitutione gignunt_.” PORTAL supports the same opinion, and thinks that the older people are when they have children, the more likely they are to have acquired imbecillity or disease, and to transmit the same to their children, from whom they may become hereditary, (_Portal_, “_Sur la nature et traitement de quelques maladies hereditaires ou de famille_”). This is altogether a popular error; what innumerable instances, says Dr. Adams, might be cited, in which the younger branch of a family has revived its splendour, which had been decaying for a succession of ages: the late Mr. Pitt was the youngest son, born when his illustrious father was in the fifty-first year of his age.

OF DIVORCE OR NULLITY.

If either of the parties professing to contract marriage be at the time defective in the points enumerated in the preceding section, it is a good ground of divorce; but to establish such defect, and especially the defect of corporeal ability, the strongest evidence must be adduced,[256] not merely on the general maxim that the best possible evidence which the case will allow must always be produced, but also as the particular fact to be proved is or may be contrary to the general order of nature, and therefore requires more than ordinary proof for its establishment: to such points therefore the medical practitioner is required to give his most sedulous attention, first to the question in the abstract, contrasting his own experience with the opinions and traditions which he may find upon the subject, and divesting his mind of all speculative and theoretical doctrines which he does not find supported by well authenticated facts; thus prepared his second object will be an attentive, accurate, and scientific examination of the immediate case in question. The defect may be mental[257] or corporeal; thus it may proceed from antipathy to a particular woman, when it has been called _impotentiam_ or _maleficium erga hanc_; this was the alleged case of the Earl of Essex, in the time of _James_ the 1st; for which see 1 _Harg. St. Tri._ 315: 2 _How. St. Tri._ 786.; and for the very curious argument and narative of _Abbot_, Archbishop of Canterbury, see 10 _Harg. St. Tri. Appendix_, p. 4. How far this case may be depended on, except as a beacon to show us what we ought to avoid, may be exceedingly doubtful. The character of the Lady Essex, afterward infamous as Countess of Somerset for the murder of Sir _Thomas Overbury_, may lead us to suspect every species of imposition and falsehood. The Judges, according to the testimony of their coadjutor the Archbishop, had predetermined to decide in favor of the divorce; no sufficient evidence appears to have been required or received, and the king, making himself at once the advocate and partisan of his unworthy favourite, urged the business with an indecent and arbitrary heat. From the worst of the _Stuarts_, and the pedantic believer in witchcraft (for _maleficium_[258] was then used in this sense) such conduct was not extraordinary; in the present day we may boast with confidence that similar interference would be impossible. With these defects, the case of the Earl of Essex can be of little or no use to the medical jurist; and unfortunately we have no other which is reported with sufficient accuracy or authenticity; we say unfortunately, because though there may be much of good policy and correct feeling in the determination of our Civilians to conceal the detail of such cases from the public eye,[259] yet by drawing their line too strictly, they run no inconsiderable risk of totally excluding those lights of science, of which in so dark and intricate a subject they must necessarily stand in need. It is true that the ecclesiastical courts may have the benefit of medical evidence in every case which is brought before them, but this evidence will be necessarily imperfect, unless founded on previous study, and some knowledge of the points, to which the practice of the Court will require the witness to direct his attention. In France, where causes of this kind may perhaps have been more frequent, and where less reserve is used than suits our national character, several cases have been published, for which see the _Collection des Causes celebres_, and _Bayle’s Dictionary, tit. Quellenec & Parthenai_, with the references there given.

We have stated that the defect of corporeal ability[260] may proceed from mental or bodily causes; of the former the instances must be exceedingly rare, and the latter are certainly not numerous: but the reader will find the information which he may require upon this subject in the following physiological illustrations.

VARIOUS QUESTIONS CONNECTED WITH THE FOREGOING SUBJECTS, ELUCIDATED BY PHYSIOLOGICAL RESEARCHES.

1. OF AGES, ESPECIALLY THAT OF PUBERTY.

As the period of puberty is intimately connected with the subject of Marriage, and as the age of an individual has many other important relations with civil and criminal transactions, we shall take this occasion to consider the several physiological points which the subject necessarily comprehends.

The age of man is estimated, as it was in the days of David, at _three score years and ten_—not more, however, than one in eighty reaches the tottering confines of mortality, and it has been correctly stated, that one half who come into life, leave it again before the expiration of their _eighth_ year; of a _thousand_ children born in London, _six hundred and fifty_ die before the age of _ten_. It has been computed by Herodotus, and acknowledged as correct by our ablest authors on political arithmetic, that three generations of men pass away in a century, and consequently the whole human species cannot be said to divide one with another more than _thirty-four_ years of existence. The astonishing longevity of the Antediluvians[261] has given rise to much discussion, but neither the researches of the learned, nor the reasonings of the ingenious, have hitherto thrown any light upon the subject; nor is the question of any importance in relation to the objects of the present work; the medical jurist is alone interested in the existing laws of mortality, and in those exceptions which may occur in their general dispensation.

The several ages, or stages of man’s existence, have been differently determined, according to the particular views which have suggested the division, especially as they relate to legal or physiological objects; on the present occasion it is to the latter of these that we have more particularly to direct our attention. _Aristotle_ marked three grand and obvious divisions in our existence, that of GROWTH—that during which we remain apparently STATIONARY—and that of DECLINE; each of which has been subdivided by subsequent authors,[262] so as to constitute seven ages: thus the stage of Growth includes _Infancy_, _Second Infancy_, or _Boyhood_ (_Pueritia_) and _Adolescence_; the stage, during which we appear to remain stationary, consists of _Youth_ (_Juventus_) and _Manhood_ (_Ætas Virilis_). The last division—DECLINE, embraces _Old Age_, and _Decrepitude_. The philosophers and physicians of Greece were led to adopt several divisions corresponding with their superstitious reliance on the powers of certain numbers; _Varro_ divided life into five portions; _Solon_ into ten; but Hippocrates, Proclus, and the greater number of the ancient writers acknowledged SEVEN AGES, a division which has been very generally adopted by the poets and philosophers of later times; in proof of the opinion of the former, we may adduce the testimony of Hippocrates,[263] who says, εν ανθρωπου φυσει επτα εισιν ωραι, and in confirmation of the truth of our remark upon those of the latter, we may remind the reader of the celebrated passage in Shakspeare,[264] in which the progress of human life is so beautifully illustrated. The duration of each of these stages has moreover been considered as under the influence of the same mystical numbers, and will generally be found to be a multiple of _seven_, for the ancient physicians were persuaded that every period of seven years effected some material alteration in the human system; thus _Solon_, although he divided life into ten stages, considered each stage as a _Septenary_;[265] so with the Canonists there are _six_ ages, but the duration of each is _seven years_, or some multiple of that number; thus, INFANTIA from _one_ to _seven_; PUERITIA from _seven_ to _fourteen_;—ADOLESCENTIA from fourteen to _twenty-eight_;[266]—JUVENTUS from _twenty-eight_ to _fifty_; (Quere, _Forty-nine_?)—ÆTAS SENILIS from _fifty_ to _seventy_;—SENECTUS from Seventy.[267]—Before we quit the conceits of the Numerists, we may state that in their notions the number _Nine_ was supposed to possess some mystic power in relation to our ages; and for this reason, superstition has attached considerable apprehension to the age of _sixty-three_, in as much as being the multiple of both the numbers so important to our existence, viz. 9 × 7[268]. This period of life has accordingly been anticipated with fear, and passed with exultation; a conceit, which has been perpetuated in our own times, under the imposing title of the _Grand Climacteric of Life_, while its antiquity is shewn by the memorable letter of AUGUSTUS to his nephew CAIUS, in which he encourages him to celebrate his nativity as he had escaped _sixty-three_.

We shall now proceed to consider the SEVEN AGES of man in detail.

INFANCY—_Infantia_—(from _Infari_, not able to speak) commences at birth, and terminates at the _seventh_ year. The signs by which the age of an infant may be computed, are derived from its moral as well as physical characters; and as circumstances connected with medico-judicial inquiries may render the problem of importance, we shall proceed to offer some data that may assist its solution. The feebleness and size of the infant; its epidermis yet reddish, and wrinkled; its face covered with down; its head soft, and the _fontanelles_ greatly extended; the eye but little sensible to light, and lastly the appearance of the navel, are circumstances which will at once lead the medical practitioner to the conclusion of its not being many days old; while its smiles and tears, its upright posture in the nurses arms, the thickness and whiteness of the skin, the plumpness of its thighs and buttocks, the eagerness with which its eyes seek and follow brilliant objects, its agitation on the occurrence of noisy sounds, and its eager desire for the breast, are occurrences which will, according to the force and degree of each, announce the child’s progress towards the _third_, _fourth_, or _fifth_ month. The pleasure which it testifies at the sight of its nurse, its jealousies, and other passions, the habit of carrying its fingers and different objects to its mouth, the facility and pleasure with which it chews bread, and the copious discharge of saliva, announce the approach of dentition, and assure us that the infant must be in its seventh month. The progress of dentition will at this period afford some farther data; towards the end of the _seventh_ month the middle INCISOR teeth of the inferior jaw perforate the texture of the gums; and soon afterwards the corresponding INCISORS of the upper maxilla make their appearance; then the lateral INCISORS of the inferior, and subsequently those of the superior jaw; about the _twelfth_ or _fourteenth_ month, sometimes sooner, the first of the MOLARES of the under, then the corresponding teeth of the upper jaw appear; the four CUSPIDATI are usually protruded through the gum the last; thus the CUSPIDATI and the second MOLARES will sometimes appear at the same time, and this is usually between the _twentieth_ and _twenty-fifth_ month; so that at, or soon after _two years_ of age, the twenty temporary or _milk_ teeth[269] are to be found in situ. It must however be remembered that the formation and appearance of the _milk_ teeth are subject to considerable variety, and there are some examples on record, though very uncommon, of children born with two Incisors in the upper maxilla, but such teeth have been found to be imperfect in their structure, and without fangs, and they have consequently soon been detached; in other cases, children, although enjoying perfect health, have not cut a single tooth until the end of their second year. Nor are the other signs to which we have alluded, as affording indications of the age, to be considered as immutable; the infant may have been more or less retarded, or accelerated in its march of developement by its state of health and vigour, and it deserves remark, that scrophulous and _rickety_ children very commonly present an aspect of intellectual precocity, by no means commensurate with their age; and hence the popular notion has arisen, that very intelligent children rarely continue to live. The fact of this premature expansion of the mind is too apparent to be doubted; but philosophers have endeavoured to explain it upon very different principles; the physiologist has sought the cause from some peculiarity in the organization of the body, while the moralist has attempted to account for it by supposing that in consequence of the inability of these subjects to partake of the sports and exercises suitable to their years, they necessarily enjoy more of the instructive society of their parents and preceptors.

PUERITIA—_Second Infancy_—_Boy-hood_. At about the age of _Seven_ years, _Detentition_, or the shedding of the temporary or milk teeth commonly commences, in order to make room for the adult set; and this event is considered as marking the arrival of the second epoch, and which, in its turn, is terminated at _fourteen_ or _fifteen_ in boys, and at _twelve_ or _thirteen_ in girls, by that peculiar change which the constitution undergoes, and which we have hereafter to consider under the head of Puberty. Persons of this second age are called _Pueri_, or _Impuberes_, not being considered as yet in possession of the complete powers of reason, although they may be allowed to possess some faint ideas with regard to the customs and habits of society; their memory is also most clear and comprehensive, but it soon becomes governed by the imagination.

ADOLESCENCE or _Puberty_.—This important and tumultuous epoch of our existence commences at about fourteen in males, and at twelve in females, and ends at twenty-one, or later according to constitution, habit, and climate. The body having nearly completed its stature, its powers of growth are directed into other channels; and in the male, the beard begins to sprout; the voice becomes fuller, deeper, and more sonorous;[270] the parts of generation acquire the magnitude which they afterwards preserve, and become shaded with hair; the whole volume of the body augments, and at the same time assumes a character so decidedly masculine, as at once to proclaim the sex of the individual in whom it appears; in addition to these general changes, the secretion of the seminal liquor by the testicles commences, and the individual thus irritated by new desires, soon distinguishes the means of gratifying them, and the _life of the species_ may be said to commence its existence. Nor are the moral changes which take place less remarkable, or less characteristic of the period of puberty than those which appertain to his physical condition; his mind acquires increased tone, and his manners and habits assume a more manly character; these changes however do not immediately succeed, and we are much inclined to admit with _Zacchias_[271] the existence of three gradations in Adolescence, _Incipient_ Puberty (at about _fourteen_), Puberty (from _seventeen_ to _twenty_), and _Perfect Puberty_ (from _twenty_ to _twenty-five_). These distinctions are undoubtedly founded in nature, and are admissible both in relation to sexual and intellectual maturity. Important changes likewise occur at this critical age, with respect to the extinction or kindling of disease; in cases of hereditary predisposition, the particular malady will frequently remain dormant until the age of puberty; this is particularly evinced in maniacal affections,[272] in consumption, and other scrophulous diseases. The phenomena which attend the accession of puberty in females are not less remarkable than those which we have described as occurring in males; and although there is neither the change of voice, nor the production of hair on the face, so remarkable in the other sex, yet the body enlarges in volume, the breasts swell with exuberance, and the excess of vitality no longer required for general growth, invests her limbs with those rounded and graceful forms, which have so universally constituted the theme of the poet, and the admiration and study of the artist: but the most remarkable change which the female system undergoes at this period is indicated by the commencement of a periodical sanguineous discharge[273] from the vessels of the uterus, and which from the monthly interval that it observes has received the name of _Menses_. The period of life at which this change takes place is under the control of various moral and physical circumstances, as climate, temperament of the individual, habits of living,[274] &c. In tropical climates puberty takes place at an earlier period than in northern latitudes; in Greece, the Corea, Indostan, and Java, girls begin to menstruate at eight, nine, or ten; in Spain, Sicily, and the Southern part of Europe, at twelve; but advancing to the northern climes, there is a gradual protraction of the time until we come to Lapland, where women do not menstruate till they arrive at a maturer age, and then in small quantities, at long intervals, and sometimes only in summer.[275] This difference in the time of life at which puberty takes place, has been ingeniously assigned by _David Hume_ as the reason why women in hot climates are almost universally treated as slaves; and why, on the contrary, their influence is so powerful and extensive in colder regions; for in the former, woman may be said to be in the zenith of her beauty while she is yet a child in understanding, and long before her intellect is matured she ceases to be an object of love; but in temperate countries her personal charms and intellectual endowments are simultaneous in their progress to perfection; the united force of her beauty and mental qualities is irresistible, and man voluntarily pays to her the homage which her powers are so well calculated to command[276].

There are, moreover, many cases on record[277], in which both males and females have prematurely arrived at the stage of puberty; a most remarkable instance of this precocity is recorded[278] by Mr. Anthony White, in the history of Philip Howorth, and the author of the present work can bear testimony to the correctness of the statement, for he had frequent opportunities of seeing him, and of tracing from time to time the constitutional changes which so rapidly succeeded each other in the first two years of his existence. Dr. Wall has presented us with a similar instance of precocity in a female infant, in whom the menstrual flux appeared at the age of nine months[279].

Various methods have, at different times, been adopted for determining the age of puberty. One sect of ancient Roman lawyers, called _Cassiani_, fixed it by the state of the body, which _Justinian_ and others after him suppose to have been done by a personal examination, at least in the male sex; for as to the female it is pretended that the twelfth year was the only guide; though others allege that the eruption of the menses served instead of it. The _Proculiari_, on the contrary determined the puberty of males by the expiration of the fourteenth year. _Javolenus_ pursued a middle course, and made use of both methods.[280].

The phenomena of puberty depend, in both sexes, upon the developement of the generative organs; for whenever this is prevented, or only imperfectly produced, a corresponding character is impressed upon the individual, as we see so well exemplified in the appearance of eunuchs[281]. In females, however, the uterus does not appear to be the essential organ which impresses the sex with its distinctive peculiarities: _Van Helmont_ has said “_Propter solum uterum mulier est, id quod est_”——but Dr. _Caillot_ has shewn in the second volume of the _Medical Society of Paris_ that a woman may grow up with all the external appearances and attributes of her sex, and yet have no uterus; numerous cases of a similar kind are upon record, to some of which we shall have occasion hereafter to allude: the same facts do not hold good in relation to the _Ovaria_; their developement, like that of the testicles in the male, seems to be absolutely essential to the perfection of the sex. A very interesting case,[282] in illustration of this truth, is afforded by Mr. _C. Pears_; in which account all the characters belonging to the female after puberty were absent; her breasts never enlarged, she never menstruated, no hair appeared on the pubes, and she died at the age of twenty-nine; when upon dissection the _Ovaries_ were found wanting; the _os tincæ_ and uterus had their usual form, but never increased beyond their size in the infant state.

JUVENTUS—_Youth_.—This succeeds to adolescence, and in its turn is replaced by manhood. If the law does not acknowledge this stage of life, it at least tacitly allows it, as being the one best adapted for the vigorous discharge of public duties; it is the age at which the greatest enterprizes have been achieved, and the most brilliant efforts of human genius fulfilled; the developement of the body having been accomplished, its powers are expanded in the production and support of intellectual energies. The action of the arterial system may be said to predominate over every other, and hence the diseases to which man is exposed in this stage of his existence are of an acute and inflammatory character. To the common observer his march of life would seem to be arrested, little material change, either of a moral or physical nature, is discernible from the age of twenty-five to thirty-five; and this period may therefore be said to occupy a part of the second great division of Aristotle to which we have alluded (the period of _Perennity_.)

ÆTAS VIRILIS—_Manhood_. Youth passes into manhood by such insensible shades of gradation, that it has been considered as only a continuation of the same stage of perennity; and yet we shall find that the change from one to the other is sufficiently striking to entitle them to distinct places in the scale. Hippocrates and Galen have compared youth to the summer, and manhood to the autumn, thus insinuating that if one be less fervent, it is yet more mature than the other; and this is certainly morally and physiologically true; for although the imagination loses much of its glowing fervour, its dominion is succeeded by that of a maturer judgment; the arterial system no longer predominates over every other, its energies have been reduced, and a juster equipoise established; the diseases, therefore, to which he is liable assume a different aspect,[283] and maladies of a chronic character prevail, and thus while in the apparent plenitude of his existence is he fast journeying to his destined goal;[284] man never stands still, he is either progressing to the zenith of his strength and vigour, or he is declining from it; in vain shall we attempt to cast our anchor in the stream of life, it will alike carry away those who struggle against it, and those who yield quietly to the force of the current; the panaceas and boasted elixirs, and the many other means which have been proposed to renovate the body, are as chimerical, says Buffon, as the fountain of youth is fabulous.

SENECTUS—_Old Age_. The system has now undergone a considerable change; its bony framework has acquired increased solidity and density; the vascular system is greatly abridged in the extent and subtlety of its ramifications; the muscles become less irritable, their fatty matter is absorbed, the cellular structure collapses, and the whole volume of the body diminishing.

“—The sixth age shifts Into the lean and slippered pantaloon;”

The skin also wrinkles, particularly in the forehead and face; the hair turns grey, and afterwards white; all the senses lose their acuteness, the heart and arterial system are diminished in force; while the venous system is in a state of plethora; and hence this stage of life is exposed to diseases of a peculiar cast: the blood-vessels are also liable to ossific depositions, from which apoplexy, and various affections of the heart and other organs, arise; the faculty of reproducing the species ceases long before the natural termination of his existence, although the period at which his organs fail is more precarious and less definite than that at which they commenced their functions.

Woman, in relation to her powers of propagation, may be said to anticipate the male sex in her advancement to old age; at the period of forty-five or fifty, the menstrual discharge ceases, and a change is produced in the system, called the _turn of life_, which renders women at this age subject to many diseases to which a great number fall victims; but when this dangerous time has passed, their life is even more secure, and a probability exists of its being protracted beyond that of a man of equal age; and although the breasts become flaccid, the fleshy contour of the body diminishes, and the skin forms wrinkles, yet her mental powers retain their full vigour for a considerable period, and her decline into the vale of years is distinguished by a steady cheerfulness which contributes, in no small degree, to divest the path of its thorns, if not to prolong its duration.

DECREPITUDO—_Advanced Age_. At length the limbs fail under the burthen which for so many years they had sustained with ease; the exterior muscles gradually return to that state of debility in which they were during infancy, and being unable to sustain a continued state of contraction, relieve themselves by alternate intervals of relaxation, from which arise the tremors[285] so characteristic of old persons; upon the same principle is to be explained the _Vacillatio Senilis_, (see-saw) for by these motions the muscles which preserve the perpendicularity of the body, are alternately quiescent, and exerted; and are thus less liable to fatigue or exhaustion.[286] The teeth having successively dropped out of their sockets, the alveolar processes are absorbed, and the projection of the lower beyond the upper jaw, imparts a very peculiar physiognomy to the countenance.

“Last scene of all, That ends this strange eventful history, Is second childishness, and mere oblivion, Sans teeth, sans eyes, sans taste, sans everything.”

2. OF IMPOTENCE AND STERILITY.

1. _IMPOTENCE._

IMPOTENCE, or the incapacity of sexual intercourse, and STERILITY, or the inability of procreation, are subjects which frequently become questions in the Ecclesiastical Courts, as relating to the performance and dissolution of the marriage contract; and as medical evidence is generally required upon such occasions, the subjects necessarily present themselves for discussion in the present work.

IMPOTENCE may exist either in the male or female. STERILITY is confined to the female, for if the male be proved capable of accomplishing the act of coition, no farther question can arise as to his virility.

Impotence may be _Absolute_ or _Relative_, that is to say, the parties may be incapable of cohabiting with each other, and yet they may each accomplish the venereal congress, and enjoy a fruitful intercourse with others; it may also be _functional_ or _organic_, and depend either upon _physical_ or _moral_ causes; and hence in some cases it may be _temporary_, in others _permanent_, and upon this point the evidence of the medical practitioner will be always very essential. It is therefore important that we should proceed to investigate the subject in its various relations to those different causes.

1. _Organic Causes of Impotence._

IN MALES.

There was a period in the history of physiology, when the testicles were not considered essential to virility. Aristotle was led to such a conclusion from having observed that a bull was capable of impregnating the female after castration; a fact which depended upon the quantity of semen, retained in the _vesiculæ seminales_, conferring fertility upon a _coitus_ which took place immediately after the operation. The true theory of the functions of the testicles having been thus abandoned, it was necessary to substitute some other explanation of their use, and the Naturalist of Stagira has accordingly asserted, that they merely serve as weights to hinder the spermatic vessels from being folded up; an hypothesis which, absurd as it is, has found advocates in the later schools; and in its support we shall find many experiments and cases related by _Marchetti_ of Padua.[287] _Sabbatier_[288] observes, that subjects have been found who have only possessed one testicle, and what is more extraordinary, that there are others who although entirely destitute of these organs, have exhibited the other parts of generation in their natural state; in proof of which _Cabrolio_ mentions the case of a soldier addicted to sexual pleasures, in whose body no testicles were found, although the _vesiculæ seminales_ were distended with semen. _Scurigio_[289] and _Lieutaud_[290] refer to the same case; upon which _Portal_[291] very justly observes, that the soldier was doubtless furnished with testicles, but which, from their unnatural situation, probably escaped the notice of _Cabrolio_. The extraordinary situations in which the testicles may be found are fully detailed by _Rinlaender_;[292] their absence from the scrotum does not necessarily imply impotence; they are formed in the cavity of the abdomen, and until the sixth month, lie immediately below the kidneys on the fore part of the Psoæ muscles, after which period they gradually descend towards the abdominal ring, through which they generally pass into the scrotum before birth; but it occasionally happens that this descent, in regard to one or both testicles, does not take place until a late period, and in some instances they remain within the cavity of the abdomen during life;[293] in such a case, a question has arisen as to the virility or impotence of the individual so situated, and upon which medical opinion would seem to be still unsettled. _Foderé_ states that such persons have even been remarkable for their vigour; for these organs, says he, appear to derive greater power of secretion from the warm bath in which they lie, than when they have descended into their natural situation. Mr. _John Hunter_ has given a very different opinion, and one which appears to be more compatible with the sound doctrines of physiology; he believes that when both testicles remain through life in the belly, they are exceedingly imperfect, and incapable of performing the natural functions of these organs; and that it is such imperfection in structure which prevents the disposition for their descent taking place; an opinion in which _Zacchias_ and _Riolan_ entirely concur. Mr. _Wilson_[294] observes that he is acquainted with one case that confirms, and another that would to a certain degree refute this opinion; and this is probably the true state of the question; each case must rest upon its individual merits, and the practitioner, whose opinion is desired upon such an occasion, must carefully inquire into every moral and physical circumstance that can, collaterally, assist his judgment; such as the general appearance, _soprano_ voice, and effeminate physiognomy, of the individual, “_frustra enim ætas advenit, si testes defuerint; manebit enim etiam virili ætate fæminæ similis_.”[295] But the absence of the testicles in the scrotum may depend upon other and less equivocal circumstances, they may have been removed by excision (_Eunuchs_), in which case there will be no difficulty in ascertaining the fact by the appearance of the cicatrix: or they may have been actually absorbed by an operation of Nature, after considerable inflammatory action. Mr. John _Hunter_[296] has given an account of three cases in which such a result occurred.

It does not appear that _two_ testicles are essential to virility, although the Parliament of Paris in 1665 decreed that the matrimonial contract should not be deemed valid unless _two_ testicles were evident; it is now generally admitted that persons with only one (_Monorchides_) are fully capable of procreation.

It has occurred to Dr. _Baillie_,[297] and other anatomists, to observe the testicles exceedingly small, “I have known,” says this distinguished pathologist, “one case in a person of middle age, where each of them was not larger than the extremity of the finger of an adult; this, as appeared from its history, arose from a fault in the original formation, and was attended with a total want of the natural propensities.” Mr. _Wilson_,[298] on the other hand, relates a case that would induce us to pause before we pronounced judgment on such an occasion: “I was,” says he, “some years ago consulted by a gentleman, on the point of marriage, respecting the propriety of his entering that state, as his penis and testicles very little exceeded in size those of a youth of eight years of age. He was then six and twenty, but never had felt the desire for sexual intercourse until he became acquainted with his intended wife; since that period, he had experienced repeated erections, attended with nocturnal emissions; he married, became the father of a family, and these parts which at six and twenty years of age were so much smaller than usual, at twenty-eight had increased nearly to the usual size of those of an adult man.”

The structure of the testicle may be defective; Mr. _John Hunter_ has given a representation,[299] in his work on the Animal Œconomy, of a case in which the _Epididymis_, instead of passing to a _Vas deferens_, terminated in a cul-de-sac; with such a structure it is evident that the semen cannot be evacuated by the urethra, and that the individual must therefore be incurably impotent.

The structure of these organs may be so destroyed by a bruise, as to occasion impotence. This was formerly the mode adopted in the oriental courts for destroying masculine efficiency in the attendants of the Haram; and it is said that the Algerines, who are unwilling to castrate their horses, have recourse to this process, in order to render them incapable of procreation;[300] while it is well known that Park-keepers, who have the management of deer, annul the power of generating in bucks, by squeezing the testicles forcibly, and thus destroying their organization and secerning faculty.[301] Atrophy and wasting of the testicles may also result from local injury; Dr. _Pihorel_[302] relates an interesting case of this kind that occurred to an old soldier.

The body of the testicle is liable to many diseases, by which its structure becomes so changed, and its delicate organization so obliterated, that its secreting powers are entirely lost, such as schirrus, cancer, scrofula, &c. but we are to remember that such affections, if confined to one testicle, are not to be considered as affecting the virility of the party. M. _Larry_, Inspector General of the French Army, informs us that a disease which he calls _Atrophy of the Testicles_ seized many of the troops in their return from Egypt; by which these organs became soft to the touch, and gradually diminished in size, without any pain; and it is well known that persons who are afflicted with _Elephantiasis_ lose all sexual appetite, and that their genitals waste.

An organic fault similar to that which we have described, as relating to the _Epididymis_ of the testicle, sometimes occurs in the _Vesiculæ Seminales_, where instead of entering the urethra, they terminate, after being joined by the _Vasa Deferentia_, in imperforated pouches, or cul-de-sacs, producing incurable impotence. In some cases the spermatic chord becomes varicose, and is followed by loss of power.

The most common malformation connected with the penis is the unnatural situation of the orifice of the urethra; sometimes it opens in the perinæum, occasionally on the dorsum of the penis, and frequently underneath. Mr. _John Hunter_ was consulted by a person, who expressed great anxiety to have children, but whose urethra opened into the perineum, he therefore recommended him to inject by means of a syringe, previously warmed, the semen into the vagina, _post coitum_, and during the existence of the orgasmus venereus; the wife, it is said, became pregnant, and Sir E. _Home_ observes, that no doubt was entertained by Mr. _Hunter_, or the husband, that the impregnation was entirely the effect of the experiment. It would appear that _emissio seminis in vaginam_ is in some cases all that is required for impregnation, and therefore provided the orifice of the urethra be situated in a part of the penis that enters the vagina, any unusual deviation in its direction may not be material; nay farther, in some instances _emissio sine penetratione_ has appeared sufficient;[303] many cases are recorded in which the hymen was entire at the time of delivery;[304] and Dr. _Huxham_[305] relates an instance of pregnancy, where from the preternatural formation of the female genital organs, it was impossible that the act of copulation should ever have been completed. A contracted state of the Prepuce, or _Phymosis_, may so interfere with the discharge of the seminal liquor, as to constitute a cause of impotence, (_Dyspermatismus Præputialis_, Culleni) an operation, however, will always in such cases remove the impediment.[306] By some authors the undue dimensions of the penis have been classed under the causes of impotence, but upon this point we would observe that the case already cited from Mr. _Wilson_, p. 201, clearly shews that exception ought not to be taken against mere diminutiveness[307] of structure; extraordinary dimensions in length and thickness may certainly prove a cause of _relative_ impotence; there are besides certain enlargements in the neighbouring organs which may afford obstacles to the venereal congress, as remarkable obesity,[308] scrotal hernia, and hydrocele.

It has been a question to what extent the penis might be mutilated, without the extinction of virility: repeated instances have occurred where the _glans_ has been lost, and yet the individual has retained his faculty of procreation. _Piazzoni_[309] relates a case where both the _corpora cavernosa_ were destroyed, but as the canal of the urethra was preserved, the person could perform the act of coition without difficulty. _Franck_[310] also states an instance in which so considerable a portion of the penis had been carried away by a musket shot, that when the wound healed, the organ remained curved, and yet it proved adequate to the performance of its functions.

A Paralysis affecting the muscles of the penis is not a disease of very rare occurrence; it may depend upon various injuries of the nervous system, and while it remains, it is unnecessary to say that the penis is incapable of performing those sexual functions for which it is constructed, constituting the _Anaphrodisia Paralytica_ of Dr. _Cullen_. The continued erection of the penis (_priapism_) is sometimes the result of morbid irritation,[311] and occasions a temporary impotence, (the _Dyspermatismus Hypertonicus_ of _Cullen_) in consequence of the urethra being so closely shut up by the vigour of the erection, that the powers which throw the semen from the _vesiculæ seminales_ are unable to overcome it; gentle evacuations and a slender diet are the best remedies in such a case. Strictures in the urethra, or morbid affections of the prostate glands, may occasion a similar inconvenience, (_Dyspermatismus Urethralis_) and we perhaps ought to enumerate extreme costiveness under the same division of the subject.

IN FEMALES.

Adhesion of the Labia may take place in adult women from inflammation; in consequence of which the due secretion of mucus with which these parts are naturally clothed on their internal surface is prevented; or it may arise from the neglect of accidental excoriation. In children the labia frequently cohere in such a manner as to leave no vestige of a passage into the vagina, except at the anterior part for the discharge of urine; the disease, whenever it may occur, is easily and safely removed by the knife.[312] In some cases hard labour has given rise to preternatural union of the labia.[313]

In cases of ulceration, where due care has not been taken to prevent the surfaces from remaining in contact with each other, the opposite sides have adhered so as to obliterate the passage; Schirrous and steatomatous tumours,[314] and polypi may also occupy the cavity of the vagina: in certain cases these may be removed with safety,[315] in others some hazard[316] will attend the operation. There is sometimes a faulty organization of the vagina itself, it may be too short, and too narrow,[317] (_Arctitudo_.) Inversion or Prolapsus is perhaps one of its most common diseases;[318] in some rare instances the passage has been obliterated by the _Clitoris_, elongated and enlarged in such a manner as to equal the size of the penis, when it constitutes one of those many peculiarities which have been mistaken for an Hermaphrodite.

The membrane called the _Hymen_ has been found of so strong and ligamentous a texture, that it cannot be ruptured, and consequently prevents venereal congress. Ambrose _Paré_ relates the case of a young woman, whose hymen was as strong as parchment, which he was obliged to cut with the scissars, before coition could be effected; a more recent case is recorded in which the density of the membrane was so considerable as to require the application of a trocar.[319]

With respect to the incompatible locality of the vagina, a malformation which occasionally occurs, it is only necessary to allude;[320] the medical judgment upon it must be directed by the circumstances of each particular case.

Where irritability of the sexual organs exists to such a degree as to occasion insufferable pain at the moment of coition, it must be regarded as a source of impotence.[321] It may depend upon various causes; Dr. _Cockburn_[322] relates a case of this kind which depended upon internal piles, and which was cured by their removal. Mr. Anthony _White_[323] has published three very interesting cases, in which the pain which accompanied the attempt at coitus was so acute, that the women rarely escaped fainting; upon examination he discovered in each of them a small fistulous opening, leading into a sinus of at least two inches and a half in length; the disease was attributed in each instance to a local injury having some years previously occasioned an abscess in those parts; the painful state of the vagina was entirely and permanently cured by dividing the sinus.

2. _Functional Causes of Impotence._

Repeated intoxication, and vicious indulgences, may so debilitate the constitution in general, and the organs of generation in particular, as to render the debauchee wholly incapable of venereal congress; such impotence however is not to be regarded as permanent; bark, steel, the cold-bath, and above all, a change of habits may restore the patient to the full possession of his powers. There is a peculiar species arising from debility which deserves some notice in this place; it depends upon a want of consent between the immediate and secondary organs of generation; thus the penis acts without the testicles, and becomes erected when there is no semen to be evacuated; while the testicles secrete too quickly, and an evacuation takes place without any erection of the penis. Under the consideration of constitutional causes, we must not omit to enumerate the occurrence of Epilepsy: there can be little doubt, but that in certain cases, the venereal orgasm has excited an attack of this disease, and prevented the consummation of the act; we are therefore bound to recognise it as an occasional cause of impotence, and Dr. _Cullen_ has accordingly considered it as forming a distinct species, under the title of DYSPERMATISMUS _Epilepticus_.

The operation of certain powerful narcotics may be likewise regarded as capable of producing impotence, and cases are recorded where impotence, so occasioned, has become permanent;[324] much credulity, however, has existed upon this subject; the anaphrodisiac powers of Camphor were long believed, and is one of the vulgar errors noticed by Sir Thomas _Brown_;[325] and Amurath the IVth published an edict which made smoking tobacco a capital offence: a measure which was founded on an opinion that it rendered the people infertile;[326] equally gratuitous are the different opinions which have been advanced respecting the aphrodisiac virtues of particular substances; one of which, from the extent to which it is believed, and the authority by which it is countenanced, deserves to be noticed on this occasion; we allude to the popular notion that a fish diet contributes to increase fecundity; and we are not a little surprised to see it sanctioned by such a writer as _Montesquieu_, who observes, that “the regimen of certain monks seems to be wholly repugnant to the intention of their founders.” The same belief is very generally entertained in fishing towns, in consequence of the great population of such places, but surely the fact admits of easy explanation upon that general principle in political economy, which no one will attempt to deny, that the number of marriages will be in proportion to the facility with which children can be supported.

A blow on the head may also deprive a man of his virility; a case of this kind is related by _Hennen_, in his Military Surgery, where a soldier became so affected in consequence of a fracture of the occipital bone, by the fragment of a shell.

3. _Moral Causes of Impotence._

A temporary impotence from certain emotions of the mind is by no means so rare an occurrence as may be supposed; and in times of superstition was generally attributed to the influence of some magical incantation; an opinion which was even maintained by _Zacchias_, _Teichmeyer_, and _Schurigio_, but which it is hardly necessary to add, has been reprobated by _Vogel_, _Cullen_, and all modern authorities. Where this occurs it is often productive of the greatest distress of mind, and has not unfrequently led the unfortunate sufferer to the commission of suicide. Mr. _Hunter_[327] has treated this subject with his accustomed sagacity, and relates a successful mode of treatment; he prevailed on a person in this situation to promise on his honour to pass six nights in bed with a young woman without attempting to have any connection with her, whatever might be his power or inclination; he afterwards assured _Mr. Hunter_ that his resolution had produced such a total alteration in the state of his mind, that the power of connection soon recurred, for instead of going to bed with the fear of inability, he went with fears that he should be possessed with so much desire, and so much power, as to become uneasy to him, which really happened; and having once broken the spell, his mind and powers went on together, and they never relapsed into their former state of imbecillity.

Disgust is also a frequent cause of temporary impotence “Morositas, Contemptus, Iræ, Tristitia, Corporis immundities ac fætor, venerem primario supprimunt.”[328] The imagination[329] is sometimes the cause of temporary impotence, with regard to particular females, as exemplified in the famous case of the _Earl of Essex_ and _Lady Frances Howard_, in 1613, in which the marriage was declared void, because the Earl, on his own confession, was impotent with regard to his lady, (_erga hanc_) although he had no defect or impediment, and was able to copulate with other women.

We have thus related the principal causes of Impotence in the sexes; it would be as idle to dwell upon the absurdity of the opinions which attach any weight to astral influence, as it would to refute the idea, that suggested the custom so universally observed by the Scythians, and which is even followed at this day by the natives of some of the South sea islands, of cutting the veins behind the ears, in order to render the males impotent, and the females sterile.

2. _STERILITY._

Sterility occurs more frequently in the female, than impotence does in the male sex.

Its causes may be distinguished into those that arise from imperfect structure, and into those that entirely depend upon a morbid performance of certain functions.

1. _Organic Causes._

_Absence of the uterus._ We have before alluded to this occasional defect; it has sometimes occurred, where the vagina has been wholly impervious.[330] _Columbus_ dissected a woman who had always complained of great pain _in coitu_, in whom he found the vagina very short, and no uterus at its termination. In _Hufeland’s_ German Journal[331] for May 1819, a case is related of a total deficiency of the uterus, which was discovered by Professor _Stein_ during an operation undertaken to remedy a supposed contraction; in this paper the author quotes several analogous cases from the writings of _Engel_, _Schmuker_, and _Theden_.

_Imperforated uterus._ The os uteri, says Dr. Baillie, has been found to be so contracted as to have its passage in a great measure obliterated; and it has even been known to be closed up by the growth of an adventitious membrane. The _os tincæ_ may be also shut up, either originally, or by cicatrix, in consequence of suppuration, laceration, ulceration, or the like, when the case may be considered as incurable, unless the menstrual discharge force a passage by its pressure, or the introduction of a trochar is able to afford an opening[332]. Original conformations of this kind seldom admit of any cure, for besides the impervious state of the _os tincæ_ it not unfrequently occurs that the uterus itself appears as a solid body, without any cavity in its centre.[333] _Morgagni_ states that he was consulted by a barren woman, whose vagina was only a third part of the usual length, and that its termination felt firm and fleshy, in which case he advised a dissolution of the marriage. _Marchetti_, on the contrary, has given a case where the vagina ran downwards beyond the internal orifice of the uterus, and terminated in a kind of cul de sac.

_Polypus in utero._ This may be sometimes removed by exsection; a valuable paper upon this subject by _M. Deguise_ is to be found in the _Nouveau Journal de Medicine_, entitled “Observations des Polypes Uterines,” in which the author relates many successful cases, and controverts the common opinion, that after the operation for an uterine polypus, the organ is incapable of being impregnated.

_Ovaria, absence of, or diseased condition of._ There is a specimen in Dr. Hunter’s museum, in which one ovarium is wanting; other instances have been recorded in which no vestige of an ovarium could be observed on either side.[334]. The case of this kind published by Mr. _Pears_ in the Philosophical Transactions for 1805, we have before described: to this may be added another instance from the writings of _Morgagni_. Instances of diseased ovaria are very common, and may arise from a variety of causes: the _Fallopian tubes_ may also, in consequence of peritoneal inflammation, become obliterated, and lose the power of conveying the ovum from the ovarium to the uterus; they may besides be originally defective in structure; Dr. _Baillie_ has seen them, without any aperture, or _fimbriated_ extremity, terminate in a cul-de-sac. _Morgagni_ noticed these tubes in some courtesans having been entirely obliterated by the thickening of their parietes; an evident consequence of the habitual orgasm in which they had been kept by too frequent excitement. _Richerand_ on dissecting a subject at La Charité that had been sterile, found the fringed margins, or expanded extremities of the tubes, adhering to the lateral and superior parts of the pelvis, so that it had been impossible for them to perform the motions necessary for fecundation.

2. _Functional Causes._

These are constitutional debility, leucorrhœa, or an excess, or deficiency of the menstrual discharge. Observation has fully established the fact, that women who do not menstruate cannot conceive; this discharge appears to be essentially necessary for the due and healthy state of the uterus, and Dr. _Denman_[335] has also observed that in cases of painful menstruation, a membranous substance is often discharged, and that no woman, in the habit of forming such a membrane has been known to conceive, although, he adds, that as it is not uninterruptedly formed at each period of menstruation, the capability of conceiving may exist at any interval of freedom from its formation.

Women who are very corpulent are often barren, for their corpulence either exists as a mark of weakness of the system, or it depends upon a want of activity in the ovaria; thus spayed, or castrated animals generally become fat.

A state of exhaustion of the uterine system, occasioned by frequent and promiscuous intercourse with the other sex, is also a very common cause of barrenness in women, and hence few prostitutes conceive.

In some cases the uterine system is capable of being acted on by the semen of one individual, but not by that of another, for many instances are on record where persons have lived in wedlock without offspring, and being, after divorce, re-married, have each had families.

3. OF THE LEGITIMACY OF CHILDREN.

The validity of Marriage considered on medical grounds being established, the next point to be considered in the same light is the legitimacy and illegitimacy of children, as it may legally affect their rights to succession and property[336]. On this point the laws of England are most indulgently favourable to the child, for provided “it be born though not begotten in lawful wedlock,” (1 _Bl. Com._ 454.) the law will presume its legitimacy, (5 _Rep._ 98.) (_præsumitur pro legitimatione_). But this presumption may be rebutted by evidence. “As if the husband be out of the kingdom of England (or as the law somewhat loosely phrases it, _extra quatuor maria_[337]) for above _nine_ months, so that no access to his wife can be presumed, her issue during that period shall be bastards.” (1 _Bl. Com._ 454. 457. _Co. Litt._ 244.) but it was held that if the husband was in England during any part of the time between the conception and the birth (without any reference to the physiological impossibility of the fact) the child would be deemed legitimate (_Rex v. Alberton._ 1 _Raym._ 395.) If the husband be proved castrate the issue are bastards (1 _Ba. Ab._ 310. _Rolle Ab. tit. Bastard_, 356.) But though the husband were divorced from his first wife _causa frigiditatis_, yet his issue by his second were adjudged legitimate, (5 _Rep._ 98.) and this is reasonable, for there may be an _impotentia erga hanc_, from various causes; (_vide post._) If a man marries a woman who is pregnant, he is generally to be supposed cognisant of the fact, and that he is the father of the child; and the law which regards the time of birth, and not of conception, pronounces it legitimate. But the husband may have been imposed upon, and utterly ignorant[338] of his wife’s state. A man returning from abroad (to put the case of non access more strongly) marries immediately on his arrival; within four or five months his wife is delivered of a perfect child which lives, shall such child inherit? on the one hand _Præsumitur pro patre quem nuptiæ demonstrant_, on the other, the ordinary course of nature prohibits the supposition that the child can be the offspring of the husband. But see _Rolle Ab. tit. Bastard_, p. 358, where the woman was _grossement enseint_ the issue was held _un mulier_, and contrary decisions cited there: see also _Foxcroft’s Case, Rolle_, 359, & _sec._ 45. So also a man may purposely marry a pregnant woman to disappoint his supposed heir at law; on the other hand a woman may for some purpose of malignity bastardize her offspring, as was the case of _Savage_ the poet.[339]. But none can be legitimate who are born out of wedlock; in which our law differs materially from the Roman or Canon law, and it is somewhat singular that the celebrated[340] “_quod nolunt Leges Angliæ mutare_” of the Barons, at the Parliament of Merton, in the 20th of _Henry_ the 3d, should have been induced by an attempt on the part of the bishops, (_omnes episcopi magnates_) to introduce this novelty,—that children born before marriage should be legitimised by the subsequent performance of the ceremony between their reputed parents. There may indeed be a few instances where illegitimate children have been legitimised by Act of Parliament[341], but though such legislative interference might in some cases of extreme doubt and hardship be deemed not only excusable, but desirable, the present feeling appears to be so strong against such Acts, that the rule of Law may be considered as among the most fixed; yet there are some points which may yet receive considerable elucidation from the studies of the physiologist, and these will resolve themselves into several questions, (_vide post._)

For the legal authorities on this subject we cannot do better than refer the reader to the very learned note of Mr. _Hargrave_ in his valuable edition of _Coke Littleton_, and to the same subject in his _Jurisconsult Exercitations_, vol. 3. p. 411; but as these may not be of easy access to our medical readers we have added a full extract of them in the _Appendix_, p. 209.

SUPPOSITITIOUS CHILDREN.

But there is yet another question which may, and in truth frequently does occur; where either a pretended pregnancy is followed by the grosser fraud of imposing a strange child upon the husband, either for the purpose of fixing his affection, or securing his estate; or where a living and healthy child is substituted for one either dead, or too sickly to give reasonable hope of prolonged existence. To this crime our laws assign no specific punishment; the parties can only be indicted for a conspiracy as they might have been for any ordinary misdemeanor; the real punishment falls on the unconscious instrument of the wrong,[342] the child, who having been educated in every indulgence that affection and affluence could bestow, finds itself on the exposure of a vindictive menial, without name, hope, or fortune; abandoned by its assumed, it may be unable to trace its real parents, yet the authors of this irreparable wrong have generally escaped even the inadequate punishment to which their crime had subjected them. Those who are curious to inform themselves of the doubts and difficulties with which such questions are entangled, will do well to consult the proceedings in the celebrated Douglas case,[343] than which few have ever excited so much difference of opinion on the bench, or so much intensity of interest in the public mind. The Anglesea case also, with the several trials connected with it,[344] is well worthy of perusal by those whom interest or curiosity may lead to this species of investigation.

We should not have alluded to personal resemblance[345] between parents and children, as a mode of proof in these cases, first, as we have doubted whether such proof can be satisfactory, and secondly, as it may not be considered a point of medical evidence; but as to our first doubt, we find that so high an authority as Lord _Mansfield_ thought that a family likeness was a material proof that a child was the genuine offspring of the parents through whom he claimed. His lordship in delivering his judgment in the House of Lords on the Douglas cause, is reported to have said, “I have always considered likeness as an argument of a child’s being the son of a parent; and the rather, as the distinction between individuals in the human species is more discernible than other animals[346]: a man may survey ten thousand people before he sees two faces perfectly alike; and in an army of a hundred thousand men every one may be known from another. If there should be a likeness of feature, there may be a discriminancy of voice, a difference in the gesture, the smile, and various other characters; whereas a family likeness runs generally through all these, for in every thing there is a resemblance, as of features, size, attitude, and action. And here it is a question, whether the appellant most resembled his father Sir _John_, or the younger _Sholto_ resembled his mother Lady _Jane_? Many witnesses have sworn to Mr. _Douglas_ being of the same form and make of body as his father; he has been known to be the son of Colonel _Stewart_, by persons who had never seen him before; and is so like his elder brother, the present Sir _John Stewart_, that except by their age, it would be hard to distinguish the one from the other.”

“If Sir _John Stewart_, the most artless of mankind, was actor in the _enlevement_ of _Mignon_ and _Saury’s_ children, he did in a few days what the acutest genius could not accomplish for years; he found two children, the one the finished model of himself, and the other the exact picture in miniature of Lady _Jane_[347]. It seems nature had implanted in the children what is not in the parents; for it appears in proof that in size, complexion, stature, attitude, colour of the hair, and eyes, nay in every other thing, _Mignon_ and his wife, and _Saury_ and his spouse were, _toto cœlo_, different from and unlike to Sir _John Stewart_ and Lady _Jane Douglas_.” 2 _Collec. Jurid. p._ 402.

A painter or a sculptor would be more competent to decide a question of this nature than a physician or surgeon, but in their absence there is none on whose testimony we can more safely rely than on the medical witness, whose habits of observing the formation, changes, and peculiarities of the human body, naturally prepare him for such examination.

It has been supposed that an experienced surgeon or midwife might be able to determine whether a newly born infant was the child of a particular woman, both being submitted to their examination; but this mode of proof, fallacious as it must always be, can be of no possible value, unless the investigation take place within a very few days of the supposed delivery; and even then it goes no further than to determine that the birth and delivery have been nearly cotemporaneous, a result not inconsistent with the supposition that the infant is the child of some other woman, and substituted for one dead, unhealthy, or of the sex incapable of succession.

In ordinary cases this early inspection is not likely to take place, as in the lifetime of both parents the heir presumptive seldom has a summons to view proceedings; but in the case of a pregnant widow, and especially where there has been a question _de ventre inspiciendo_, it is otherwise, and it then becomes a point of duty in all parties, to obtain the most satisfactory evidence.

A yet more important occasion occurs at the birth of princes; whose entrances and exits are equally subject to question, whenever a disputed succession or an impatient heir give rise to speculation. In England and elsewhere precautions are taken which are as offensive to female delicacy as they are ineffective to the demonstration of truth. The chamber of a pregnant princess, at the moment when quiet is most necessary, is crowded with officers of state and lords of the household; yet we need not remind the reader of all the questions which have, however foolishly, been raised on the supposititious births of princes; for the evidence on the birth of Prince _Charles Edward_, see 12 _Howel. St. Tri._ 123. We need only observe that imposition is best practised by skilful jugglers in a crowd, and without disrespect to those learned and reverend personages, we may doubt whether the Archbishop of Canterbury, or the Lord High Chancellor, can be as effective at an _Accouchement_, as the President of the College of Physicians, or the Master of the College of Surgeons.

TENANT TO THE COURTESEY.

Whether a child, born under certain circumstances, was or was not born alive, is a frequent and important question on the right of the father to the tenant of the courtesey; and as it is naturally connected with the doctrine of gestation, will be partly considered here, though the external signs of incipient and independent vitality will be more fully treated of under the head of Infanticide.

[348]“Tenant by the courtesie of England is where a man taketh a wife seized in fee simple or in fee taile general, or seized as heir in taile especial, and hath issue by the same wife, male or female, born alive (_oyes ou vife_), albeit the issue after dieth or liveth, yet if the wife dies the husband shall hold the land during his life by the law of England, and he is called tenant by the courtesie of England, because is this used in no other realme but in England onely.[349] And some have said that he shall not be tenant to the courtesie unless the childe which he hath by his wife be heard crie[350]; for by the crie it proved[351] that the child was borne alive. Therefore Quære.”[352] _Co. Litt._ 29. 30.—Here therefore is another occasion[353] where Medical Evidence may be useful or necessary, and it cannot be too often forced on the attention of practitioners, who at the expiration of many years may be called upon to give testimony, very frequently affecting property of considerable magnitude, that they should on all occasions make sufficient notes of the births which they attend, the circumstances which they have observed, and the number and descriptions of the persons present, who may at a future period be called to corroborate their testimony. We have known an instance where the books of a surgeon attending a then obscure individual, became necessary evidence before the highest tribunal of the land towards determining the right of peerage.

Foreign jurists have doubted whether a child extricated by the Cæsarian operation[354] is capable of succession. “Illud autem valde controversum est inter jurisconsultos, an is qui editus est execto matris ventre reputetur partus naturalis et legitimus et successionis capax.” (_Caranza de partu naturali et legitimo._ _p._ 427). And though the question is now decided in the affirmative, some nice points may yet arise,[355] if not for the instruction of the jurist at least for the amusement of the casuist.

OF MONSTERS AND HERMAPHRODITES, LEGALLY CONSIDERED.

It will be seen by the note from _Co Litt_, quoted under the preceding head, that by the law of England a monster cannot inherit; but the question as to what constitutes a monster is left vague and undetermined. It can seldom have been necessary to agitate this point, since few well attested instances are recorded of any monster, which has materially deviated from the human form,[356] having long survived its birth. Some curious instances, however, have occurred of twins who, having become united in the womb by an obvious operation of nature,[357] have lived for several years.[358] Whether each body should possess separate legal rights would probably be determined by the question whether each possessed the vital organs necessary for a separate existence, if, bating the danger of the operation, they could be corporeally severed. Is it necessary to inform the midwife that he is not authorised to destroy any production however monstrous![359]

The case of Hermaphrodites, or rather of those who may have been deemed such, stands on different grounds; in the physiological illustrations of this subject, the circumstances will be investigated which have led to erroneous conclusions upon this point. In a legal view, it is only necessary to caution the medical attendants to be more careful in the investigation of such cases of doubt, especially where succession to property may depend on the sex of the child. The case of the celebrated _Chevalier D’Eon_, may long serve as a warning to those who would judge of the doubtful sex of a party by any ordinary and external distinctions;[360] while that related in the _causes celèbres_ of a female[361] who, on account of a _prolapsus uteri_, was pronounced by the sagacious physician at the Hotel Dieu to be an hermaphrodite, is sufficient to shew the futility of any personal examination, unless conducted by a skilful anatomist.

PHYSIOLOGICAL ILLUSTRATIONS CONNECTED WITH THE FOREGOING SUBJECTS.

The investigation of the preceding subjects necessarily comprehends within its range a series of physiological questions of great importance, the solution of which is essential to the establishment of just and satisfactory conclusions; we therefore now proceed to the consideration of _Conception_: a subject which in relation to Legitimacy, and the various legal questions dependant on it, may be considered as the basis upon which the superstructure rests, or the trunk from which the various ramifications of inquiry must proceed.

OF CONCEPTION AND UTERO-GESTATION.

The different theories which the ingenuity of the physiologist has invented for the elucidation of this mysterious and wonderful process, have been supported with so much zeal and argument by the disciples of one school, and disputed with so much warmth and plausibility by those of another,[362] that to recite the merits and defects of each system would be a task as laborious in its execution, as it must be unsatisfactory and unprofitable in its results; we shall therefore not attempt to ascend into the scale of causes, but rest on the phenomenon of conception, as an ultimate fact, and confine our researches to the history of its œconomy. The series of changes which constitute the phenomena of conception and gestation are clearly proved by the experiments of _De Graaf_ to originate in the ovaries, and not in the uterus, as former physiologists had supposed. One or more of the vesicles, or _ova_, contained in the former of these organs, no sooner receive the vivifying impression communicated by the _coitus_ than they are loosened from their connection, and grasped by the fimbriæ of the Fallopian tube, by whose peristaltic contractions they are, in due time, conveyed into the uterus; the spot in the ovarium from which the ovum has been thus separated, when examined after death, exhibits a slightly lacerated appearance, as if the germ had been detached from a vesicle at the moment of conception, by the rupture of its parietes; to this structure, which from the colour that it assumes has been called by physiologists _corpus luteum_, we shall have frequent occasion to allude during the course of the present inquiry. While these actions are proceeding, the uterus passes through several contemporary changes, in order to prepare it for the reception of the _ovum_; its blood-vessels are increased in size, as seen in slight cases of inflammation; the texture of its internal surface becomes softer, and more spongy, and a white mucus is secreted, which, from the extreme delicacy of its arrangement, has been compared by _Harvey_[363] to the web of the spider; it soon, however, assumes a more solid form, becomes vascular, and adheres so as to form a lining to the whole cavity of the uterus, except at the orifices which lead to the Fallopian tubes, and the os uteri. _Dr. William Hunter_ considered it as the inner lamina of the uterus cast off, like the _exuviæ_ of some animals, after every conception, and he accordingly called it the _Decidua_, and from the manner of its passing over the ovum, the Decidua _Reflexa_.[364] It is not known what exact interval is required for the fœtal primordia to pass through the Fallopian tube, and descend into the cavity of the uterus. _Valisnieri_ and _Haller_ have never been able to find it distinctly in the latter viscus before the seventeenth day. As the mouth of the pregnant uterus is sealed up with gelatinous matter from the moment of conception, it is, under ordinary circumstances, incapable of allowing any passage for the Catamenia, although exceptions to this law are frequently mentioned by men of science,[365] which have probably arisen from the observation of an occasional sanguineous discharge from the vessels of the vagina; and which, says _Burns_,[366] are neither regular as to the monthly period, nor of the same quality as that of the menses, and he concludes by remarking, that he has never known any instance where menstruation was perfect and regular during the whole of pregnancy. _Dr. Denman_[367], whose authority upon such a question must carry with it very considerable weight, says, “a suppression of the _Menses_ is one of the never-failing consequences of conception, at least I have not met with a single instance to the contrary.”

Conception is succeeded by many important changes in the constitution, that are indicated by affections of various parts, and which, therefore, to a certain degree, afford _signs_ of a woman having conceived; and indeed in the earlier periods of pregnancy, they afford us the only means of judging of the fact; and although they are necessarily ambiguous and uncertain, yet _Dr. Denman_ observes, that from the common occurrence of the case, and the particular attention which is paid to it, a faculty of discrimination is acquired which generally prevents error. The medical jurist, however, can never receive such testimony as satisfactory, and it is fortunate that the law rarely requires elucidation upon this point, for in those cases of violent death in which it may be important to ascertain the fact, the light of dissection will assist our decision; and in cases where the plea of pregnancy has been set up, in bar of punishment, it will not avail, unless it be so far advanced as to render our investigation easy and satisfactory. The following symptoms may be said to afford the earliest indications of pregnancy: the disappearance of the catamenia; nauseating sickness, or vomiting, chiefly occurring in the morning, and after meals, and which in some cases is almost coeval with conception, and often resembles sea-sickness, both in the violence of its symptoms, and the obstinacy with which it resists every measure of relief; vertigo and drowsiness; heart-burn and diarrhæa, frequently supervene; the appetite becomes depraved; there is a feverish diathesis; the breasts swell, and the nipples are surrounded by an areola, or brown circle, which is more or less dark according to the complexion of the woman; the countenance becomes altered, the eyes appearing larger, and the mouth wider; and a peculiar sharpness is given to every feature; the temper also becomes unnaturally peevish, and the sleep is broken and disturbed. Subsidence, or falling in of the abdomen is recorded by the old French proverb as another sign of pregnancy,

“Dans une ventre plat Un enfant il y a.”

In some instances, particular sympathies occur, and hence tooth-ache has been considered as affording some evidence upon such an occasion. Some midwives have supposed that the appearance of blood drawn from the veins would indicate the state of pregnancy; the blood undoubtedly becomes sizy very shortly after conception, and it differs from that of a person affected with inflammation; “in the latter case,” says _Burns_,[368] “the surface of the crassamentum is dense, firm, and of a buff colour, and more or less depressed in the centre; but in pregnancy, the surface is not depressed, the coagulum is of a softer texture, of a yellow and more oily appearance.”

It is not, however, possible to determine positively, from the inspection of the blood; for a pregnant woman may labour under some local disease, which will impart to it a truly inflammatory character, while, on the other hand, it is possible for the suppression of the menses, if accompanied with a febrile diathesis, to give the crassamentum the same appearance which it would present during pregnancy; and, in truth, the same remark will apply to all those signs to which we have before alluded; and even the swelling of the breasts, upon which so much stress has been laid, as a presumptive sign of pregnancy, cannot be considered unexceptionable, for so great a sympathy subsists between the mammæ and the uterine system, that any disturbance of the latter is not unfrequently attended with an enlargement of the former: such an occurrence is by no means uncommon in Amenorrhæa. _Belloc_,[369] however, has made an observation respecting them which merits our regard; he says, that when a woman has a suppression of the menstrual flux, with the other concomitant signs of pregnancy, we may consider her situation as yet doubtful, because these signs are common both to pregnancy and amenorrhæa; but if about the third month, while the suppression still continues, she suddenly recovers her health, and the incidental circumstances disappear, her appetite, plumpness, and colour returning, nothing can better prove the existence of pregnancy; for had the impaired health, and the accompanying symptoms been the simple effect of suppression, the derangement would have continued, and even increased during the continuance of the cause; to this observation, however, of _Belloc_, we have one important objection to offer: in every case of clandestine pregnancy, (and it is on such occasions that our diagnosis is principally useful) the anxiety and distress of the woman’s mind, and her desire to appear as if labouring under some serious complaint, will render her returning health at the period mentioned by _Belloc_ as unlikely, or very equivocal; in short, we do but adopt the sentiments of the most experienced midwives,[370] when we assert, that it is impossible to arrive at any conclusion beyond that of suspicion; and in delivering a confident opinion upon it, the practitioner must take care that he does not compromise his character for skill and knowledge. “Notandum est magna hic prudentia opus esse medico ne facile graviditatem vel affirmet, vel neget; peritissimi enim decepti fuerunt toties; nunquam magis periclitatur fama medici, quam ubi agitur de graviditate determinanda.”[371] History informs us, says _Capuron_,[372] and it is attested by _Ambrose Paré_, _Moriceau_, _Riolan_, _Devaux_, and others, that pregnant women have been brought to the scaffold, after an examination by medical men and matrons, who have declared the absence of pregnancy.

At about the _Fourth_ month after conception, that stage of utero-gestation arrives, which enables us, by means of an external examination, to place the fact beyond the reach of conjecture; for at this stage the uterus may be distinctly felt through the integuments of the abdomen; nor are we able before this period to determine the question by any examination _per vaginam_, for the _fundus_ uteri is the portion first distended in consequence of conception; while the _cervix_, the only part that we can feel, does not begin to shorten to any appreciable extent, before the period just stated.[373]

The following method of examining the uterus, in order to ascertain whether it be gravid, is proposed by _Tortosa_,[374] and is well calculated to accomplish the object. The woman, being fasting, and her bowels and bladder having been previously evacuated, should be directed to lie down, with the loins low, and with the head and buttocks elevated; the knees are then to be raised and bent, so as to bring the thighs to the belly, and the heels to the buttocks, by which position the abdominal integuments will be relaxed; the midwife is then to place the hand upon the epigastric region in such a manner that the little finger may rest on the pubes, and the thumb on the navel, and ordering the woman to breathe hard, he must press the belly gently during the expiration: if the uterus be gravid, and is more than three months advanced, he will at this moment feel above the pubes an equal, hard, globular body; and if the same examination be made after the fifth month of gestation, he will probably feel at the same time the motions of the fœtus; but, in cases where no tumour can be distinctly felt, the operator must be very careful not to be deceived by motion, for the action of flatus may mislead him, and even where an obvious enlargement exists, the pulsations of the aorta may lend to it a deceptive motion; this is particularly striking where the ovarium is extensively diseased, or the uterus is distended with tumours, an occurrence which has not unfrequently induced the patient to consider herself pregnant;[375] in such a case the ovarium may be felt through the parietes of the abdomen, sometimes pretty high, like the uterus, or like a prominent part of a child, but the round and circumscribed nature of the tumour can never deceive an experienced midwife. _Avenzoar_, however, has left a confession that he was deceived about his own wife, whom he had treated as dropsical, though she had passed her fourth month of pregnancy.[376] We ought also to state that dropsy and utero-gestation may be coexistent, and there are unfortunate cases on record where, on such occasions, women have been sacrificed by the mistaken application of the trocar.

In order to ascertain the exact state of the _os uteri_, an examination must be made _per vaginam_, which may be conveniently effected while the woman remains in the same position, by introducing the fore and middle fingers of the right hand. For the first three months the _os tincæ_ feels smooth and even, and its orifice is nearly as small as in the virgin state; when any difference can be perceived, it will consist in the increased length of the projecting tubercle of the uterus, and the shortening of the vagina from the descent of the fundus uteri through the pelvis: this change in the position of the uterus, by which the projecting tubercle appears to be lengthened, and the vagina proportionally shortened, chiefly happens from the third to the fifth month. The following is another mode of examination proposed by the anatomist _Petit_,[377] and sanctioned by _Puzoff_,[378] and which, with some slight and unimportant difference, coincides with that recommended by _Morand_[379] and _Baudelocque_.[380] The woman having been placed in the position above described, two fingers are to be introduced into the vagina, so far as to touch the orifice of the uterus; and at the same time, the other hand is to be applied to the abdomen; the operator is then to press internally with his fingers, so as to raise the uterus, and then lower it again by pressing on the abdomen with the other hand; if by such alternate movements a solid resistance is felt, without fluctuation, we may be assured that the uterus is gravid.

As utero-gestation advances, the question of pregnancy becomes, of course, less equivocal; for the progressive increase of the abdominal tumour, from the stretching of the fundus uteri, affords a mark too decisive to be easily mistaken. About the _sixteenth_ or _eighteenth_ week after conception, the uterus suddenly ascends from the pelvis into the abdomen, a change which is attended with a very peculiar sensation to the woman, and is erroneously called _Quickening_,[381] from its having been supposed to arise from the first motions of the fætus in utero, which was imagined at this period to receive the essence of vitality; the law of England still sanctions this hypothesis as a principle by which the degree of criminality[382] in cases of _Abortus procuratus_ is determined, and according to which the plea of pregnancy in bar of punishment is either admitted or rejected.[383]

The physiologist is now satisfied that the sensation has no relation either to the life, or to the motions of the fætus, but is solely attributable to the _sudden_ change in the position of the uterus; nor is there any difference between the aboriginal life of the child, and that which it possesses at any period of pregnancy, though there may be an alteration in the proofs of its existence by the enlargement of its size, and the acquisition of greater strength. The feeling of _Quickening_ is very different from any that is excited by the subsequent motions of the child; it more nearly resembles that which is occasioned by terror or agitation from any other cause, and is often followed by Syncope, or Hysteria; we shall indeed cease to be surprised at this effect when we consider that from the uterus thus changing its situation, a very considerable pressure is suddenly removed from the Iliac vessels, in consequence of which the blood rushes to the lower extremities, and a temporary exhaustion of the vessels of the brain, and a general loss of balance in the circulating system, are the results. In some women the motion is so obscure as not to occasion any distress, and where the ascent of the uterus is gradual, it is often not felt at all. In the _fifth_ month, the abdomen 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; in the _sixth_, the upper edge of the fundus is a little below the umbilicus; and in the _seventh_ the fundus, or superior part of the uterine tumour, advances just above the umbilicus, and the cervix is then nearly three-fourths distended; in the _eighth_ it reaches midway between the navel and _scrobiculus cordis_ itself, the neck being then entirely distended: thus at full time the uterus occupies all the umbilical and hypogastric regions, although a short time before delivery it subsides to where it was between the _seventh_ and _eighth_ month.

Of PARTURITION, or _Delivery_.

The term of utero-gestation is limited by nature to nine calendar months, or _forty weeks_, at the expiration of which, the process of labour usually commences; ingenious theorists have endeavoured to discover the principle of the expulsatory action of the uterus, and to assign the reason of its taking place at a stated period, but after all the subtle ingenuity which has been displayed upon this occasion, it is doubtful whether we are prepared with a better solution of the problem than that furnished by the physiologist in the time of _Avicenna_, who declared that labour came on at the appointed season, _by the command of GOD_. We shall therefore pass over the question without farther discussion, and proceed to the investigation of those practical parts of the subject, which are highly interesting on account of their numerous and important relations to medical jurisprudence; we propose, therefore, to discuss the following questions in succession:

1. Whether a woman can be delivered during a state of insensibility, and remain unconscious of the event?

2. How far the term of utero-gestation can be shortened, to be compatible with the life of the offspring?

3. Whether to any, and to what probable or possible extent, the natural term of utero-gestation can be protracted?

4. What is the value of those signs by which we seek to establish the fact of a recent delivery?

5. Are there any, and what diseases, whose effects may be mistaken for the traces of a recent delivery?

6. Can we determine by any signs, whether a woman has ever borne a child, although at a period remote from that of the examination?

7. What are the earliest and latest periods of life at which women are capable of child-bearing?

8. What is the possible number of children that may be produced at one birth?

9. Is _Superfœtation_ possible, and under what circumstances, and at what period of gestation can a second conception take place?

10. What are the causes of _Abortion_?

11. Under what circumstances, and by what means, is it _morally_, _legally_, and _medically_ proper, to induce premature _labour_?

12. What circumstances will justify the _Cæsarean operation_, and of what value is the section of the Symphysis Pubis, or _Sigaultian_ operation?

Q. 1. _Whether a woman can be delivered during a state of insensibility, and remain unconscious of the event?_

In certain comatose states of the brain, as those produced by depression of bone, the operation of narcotic substances, or the violence of fever, we must admit the possibility of such an occurrence; _Hippocrates_[384] relates the case of a woman who was delivered during a state of insensibility, in the last stage of fever, from which she never recovered, and therefore died unconscious of the event. In the _Causes Celèbres_,[385] the case of the _Comtesse de Saint Geran_ is recorded, who having been plunged into a profound sleep, by a medicated draught prepared for that purpose, brought forth a son without being in the least conscious of the act that gave it birth; and when she awoke, on the following day, bathed in her blood, and exhausted in strength, and demanded her infant, the artful attendants denied the fact of her delivery. Women have moreover given birth to an offspring in _articulo mortis_; and many instances have occurred where the infant has escaped from the womb during the exertions of the mother to evacuate the contents of the bowels.

Q. 2. _How far the term of Utero-gestation can be shortened, to be compatible with the life (viabilité) of the offspring._

If this question could be decided by the number of recorded cases, we should be called upon to acknowledge the possibility of the fœtus surviving at extremely early periods; _Capuron_[386] relates the case of _Fortunio Liceti_, who, it is said, was born at the end of four months and a half, and that he lived to complete his twenty-fourth year! In the case of _Marechal de Richelieu_ the parliament of Paris decreed that the infant at five months possessed that capability of living to the ordinary period of human existence,[387] (_viabilité_) which the law of France required for establishing its title of inheritance. The Roman law[388] “_de suis et legitimis hœredibus_” establishes, upon the authority of Hippocrates, that an infant may be born _six months and two days_ after the term of conception; while a second law, sanctioned also by the same high authority, requires an interval of _seven months_ between the conception and delivery; this discrepancy receives explanation from the fact that the ancients fell into many contradictions from indiscriminately using in their calculations lunar and solar months; thus, for instance, _Hippocrates_ uses the former in his books “_de Septimestri et Octomestri partu_,” while in those _de Alimento_, _de Carnibus_, _de Epidemicis_, the latter uniformly constitute the basis of computation. Physiologists of the present day consider that a fœtus born before the completion of the seventh month has a very slender chance of surviving, although instances have occurred where the life has been preserved after a birth still more premature. _Hippocrates_ and other ancient physicians entertained a conceit, which has even prevailed in the more modern schools of physic, that an infant could live at _seven_, but rarely or never at _eight_ months; it is hardly necessary to observe with _Haller_, that the capability of living in an infant increases in the ratio of its maturity, or in proportion as it advances towards the natural period of delivery; the child, therefore, that is born at the expiration of _eight_ months has of necessity a greater aptitude for living than the one which is produced at seven; and nothing could have suggested or upheld a contrary opinion but that overwhelming belief in the harmony and powers of certain numbers with which the philosophers of ancient days were infected, and of which the Pythagorean number SEVEN was deemed the most perfect and efficient,[389] as we have before had occasion to remark, while treating of the subject of Ages.

Q. 3. _Whether to any, and to what probable extent, the natural term of Utero-gestation can be protracted?_

Although the period of gestation is usually limited to nine calendar months, or _forty weeks_,[390] yet the term does not appear to be so arbitrarily established, but that Nature may occasionally transgress her usual law; and, as we have just stated that many circumstances may occur to anticipate delivery, so are we bound to admit that in some instances it may be retarded; 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 upon this occasion, that if the character of the woman be unexceptionable, a favourable report should 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. The question is one of the greatest importance in its moral and legal relations, for it may involve the honour and happiness of families, the legitimacy of offspring, and the succession of property.[391] We cannot, therefore, feel surprised that it should have occupied so great a portion of the attention of our most able physiologists, and have given origin to considerable controversy. Each side is supported by an equally respectable list of partisans, and we perceive that upon this occasion the two celebrated medico-jurisconsults of France are opposed to each other; _Mahon_ having associated his name with those of _Bohn_, _Hebenstreit_, _Astruc_, _Mauriceau_, _Da La Motte_, _Rœderer_, and _Baudelocque_, who reject the belief in _retarded delivery_ as impossible, and contrary to the immutable law of nature; while the name of _Foderé_ ranges with those who support the contrary opinion, as _Teichmeyer_, _Heister_, _Albert_, _Vallentini_, _Bartholin_, _Haller_, _Antoine Petit_, _Lietaud_, _Vicq d’Azyr_, and _Capuron_, who may boast of the support of _Hippocrates_, _Aristotle_, and _Pliny_.

_Pliny_ tells us that the Prætor _L. Papirius_ was declared entitled to succeed an infant born after thirteen months, but he adds, this was _because_ no time appeared by law “_quoniam nullum certum tempus pariendi statum videretur_.” We read in Aulus Gellius of an edict by the Emperor Adrian in favour of a woman of irreproachable character, who was delivered eleven months after the decease of her husband; and the parliament of Paris, in the case of a widow, decided in favour of the legitimacy of an infant born in the fourteenth month of pregnancy. _Bartholin_ relates the case of a young woman at Leipsic who was delivered in the sixteenth month; and, if we may credit it, the account would appear to have been as unexceptionable as any case on record, for during her pregnancy she was in custody by order of the magistrates. The civil code of France has placed a limit to our credulity respecting retarded births, and decrees _three hundred_ days, or ten months, to be the most distant period at which the legitimacy of a birth shall be allowed.[392] Were we called upon to deliver an opinion upon this momentous question, we should certainly consider such a law as rather inclining on the side of mercy, than on that of stern justice. For any farther information upon this question, we must refer the reader to the learned notes of Mr. _Hargrave_, printed in our _Appendix, page_ 209; but before we quit the subject, we shall notice the opinion of _Joubert_, if it be only for the purpose of animadverting upon its absurdity; he supposes that the duration of gravidity may be influenced by sexual indulgence; supposing that excessive venery will accelerate, while abstinence may so far retard the time of delivery, that it shall not take place until after the expiration of eleven months.

Q. 4. _What is the value of those Signs by which we seek to establish the fact of a recent delivery?_

There are circumstances which may induce a woman to conceal the event of parturition, or to simulate a delivery which had never taken place; in either of such cases the importance of medical testimony is sufficiently obvious. In cases of alleged Infanticide the practitioner is always required to examine the supposed mother, and to give his opinion as to the fact of her having been recently delivered: and his report has not only very frequently acquitted the prisoner, but in some cases has rescued the innocent but unfortunate female from the horror and disgrace of a public trial. _Capuron_ cites a curious case which we shall relate in this place as well adapted to exemplify the serious importance of medical evidence on such occasions:—A young woman having granted her favours to a lover who had seduced her, under the promise of wedlock, feigned pregnancy in the hope of hastening the celebration of her marriage, but the lover refused to ratify the solemn engagement into which he had entered, and she therefore determined to carry on the imposition, with a view to conciliate his affections, and to secure his future protection and support; for this purpose, after a proper interval had elapsed, she confined herself for several days to her bed-chamber, and having stained her linen and bed with bullock’s blood, she openly declared that she had been delivered, and that the infant had been committed to the care of a nurse; the young man, however, notwithstanding this supposed new pledge of affection, remained obdurate, and persisted in his refusal to complete his engagement; in consequence of which all intercourse between the parties ceased, until after the lapse of two years, when the alleged father claimed his child; in answer to this application the young woman confessed the deception which she had been induced to practise; but the criminal department of the Seine, before whom she was summoned, hesitated in giving credence to her tale; upon which a personal inspection was instituted by _Capuron_, _Maigrier_, and _Louyer Villermay_, in order to decide whether the woman in question had ever been delivered; and as the result of this inspection enabled the professors to decide in the negative, the prisoner was immediately discharged. A similar instance of pretended delivery has recently appeared in a _Berlin Journal_, as having occurred at Sirakovo in the circle of Posen, where a young woman, anxious to fulfil the ardent desire of her husband to have an heir, pretended to have been suddenly and unexpectedly delivered, and stole an infant in order to support the fiction; the case was rendered more atrocious from the real mother having, in consequence of the theft, been subjected to the accusation of infanticide; the fact was, however, happily discovered, and the culprit has been delivered to the punishment due to her crime. Such cases of pretended delivery are by no means so rare as the reader may at first be led to imagine; and the medical practitioner should be on his guard lest he become the dupe of such an imposition. _Dr. Male_[393] relates a case which occurred not long since in his own town; a surgeon was called to a pretended labour, when a dead child was presented to him, but there was no placenta; he therefore proceeded immediately to examine the woman, when he found the _os tincæ_ in its natural state, nearly closed, and the vagina so much contracted as not to admit the hand; astonished at this circumstance he went to consult a medical friend; but before any farther steps were taken, it was discovered that he had been imposed upon; the woman, in fact, had never been pregnant, and the dead child was the borrowed offspring of another; it appears that she was induced to practise the artifice to appease the wrath of her husband, who frequently reproached her for her sterility.

The signs from which the judgment of the midwife is to be deduced may be comprised under the following general and particular heads, to each of which we shall successively direct our attention, and endeavour to establish the degree of validity to which they are singly or jointly entitled.

1. The face is pale, the eye sunken, and surrounded by a purplish or dark brown coloured ring; the pulse is full and undulating; the skin soft, supple, rather warmer than ordinary, and covered with a moisture which has a peculiar and somewhat acid odour.

2. The breasts are swelled, are harder than usual, and painful; and, in some cases, lumpy to the touch, and emit, by pressure or suction, a lactiform fluid; the nipples are thicker, and the areola, by which they are surrounded, is widened in extent, and darkened in colour.

3. The abdomen is flaccid, and its skin lies in folds, and is traversed in various directions with shining, reddish, and whitish lines, and light-coloured broken streaks, which especially extend from the groins and the pubes towards the navel.

4. There is an extraordinary swelling and tumefaction of the external parts of generation; sometimes the anterior margin of the perineum is lacerated, or it is very lax, from the distention which it has undergone.

5. The vagina is preternaturally distended; the orifice of the uterus is soft and open, and capable of admitting the point of the finger without difficulty, as if a late discharge had been made from it; the womb itself, not having properly collapsed, and resumed its natural shape and dimensions, may be felt through the parietes of the abdomen, voluminous, firm, and globular, contracting and expanding under the hand, on pressure.

6. A discharge of serous fluid mingled with blood from the vagina, called the _Lochia_, continues from five to thirty-five days after delivery: it differs from the common menstrual flux in being paler, but more particularly in its peculiar and characteristic sour odour; at first this discharge is decidedly sanious, but in a few days it becomes of a much paler and of a brownish, or a dirty green hue, so as to acquire the common term of _green waters_.

In addition to these signs, _Michael Albertus_ mentions the hair falling off from the pubes as a sign of delivery; it is hardly necessary to caution the practitioner against relying upon any sign so extremely uncertain and precarious.

Although the period during which the consecutive signs of delivery remain evident, will vary in each case, yet as a general position we must admit with _Zacchias_,[394] _Albert_, _Bohn_, _Foderé_, _Mahon_, and _Belloc_, that after ten or twelve days, they may become too obscure to afford unexceptionable evidence. This conclusion was sanctioned by the _arrêt_ of the parliament of Paris, in the case of a woman of Mantes accused of infanticide, who, in consequence of a conference with _Antoine Petit_ and _Louis_[395] was pronounced innocent, upon the ground of the woman not having been examined as to the fact of her delivery, until after the expiration of a month. The criminal department of the Seine acquitted a woman cook of the name of _Aimée Perdriat_, charged with the perpetration of a similar crime, and of whose guilt no reasonable doubt could be entertained, in consequence of the same defect in the medical testimony.[396]

The relative value which each of the signs possesses, will be better appreciated after we have considered the diseases whose effects may resemble them; but as a general principle we are anxious to enforce the necessity of always considering the consecutive signs of parturition collectively, and not individually; under such circumstances the practitioner can never be betrayed into an erroneous conclusion; for, as _Professor Chaussier_ has remarked, “_no disease, or affection, besides parturition, can possibly produce the whole series of signs above described_.”

The secretion of milk, upon which such considerable stress has been laid in ancient as well as in modern times, it is now admitted may take place independently of pregnancy, and we are accordingly bound to reject the aphorism of Aristotle, “_Lac habet, ergo peperit_.” In the _Causes Celèbres_[397] there is an account of a girl, who, although a virgin, suckled an infant; and in the _Sloane_ collection of manuscripts in the British Museum, a case of a woman is related, who, although she had not borne children for more than twenty years, actually suckled her grand-children, one after the other, at the age of 68! but, what is still more extraordinary, instances have occurred where men have been able to perform this duty. The BISHOP OF CORK[398] has related a case in which a man suckled his child after the loss of his wife; and in the personal narrative of _Humboldt_ we have an analogous instance.[399]

Q. 5. _Are there any, and what Diseases, whose effects may be mistaken for the traces of a recent delivery?_

Dropsical discharges from the uterus, uterine hæmorrhage, the expulsion of a mole, hydatid,[400] or polypus; or the removal of any of those diseases which constitute what has been termed a _false conception_, have been said to occasion effects which simulate the signs of parturition. It must be admitted that there are some signs which are common both to the diseases in question, and to the delivery, but there are at the same time others that exclusively indicate the occurrence of the latter; the irruption of fluids from the womb, menorrhagia, and leucorrhæa, may mimic the _lochial_ discharge, but they will not remain, nor will they present that characteristic odour by which the latter is so preeminently distinguished; so again, the relaxation of the soft parts may be the consequence of disease as well as of delivery, while the paleness of the visage is the usual concomitant of profuse evacuation; but then the distention of the vagina, and the state of the neck of the uterus, and the absence of all contusions, lacerations, and discolourations will obviate the possibility of deducing any erroneous conclusion from these phenomena; the wrinkles and marks upon the abdomen may certainly follow any considerable change in the reduction of its bulk, whether it be the result of parturition, ascitic discharges, or the absorption of fat; but we may easily disarm such signs of their treachery by a previous inquiry into the state of the woman’s health, and into that of her robustness and general strength. _Burns_ also remarks that other circumstances may concur in confirming the opinion of the practitioner, “as for instance, if the patient give an absurd account of the way in which her bulk suddenly left her, ascribing it to a perspiration, which never in a single night can carry off the size of the abdomen in the end of a supposed pregnancy.”[401]

Q. 6. _Can we determine by any signs whether a woman has ever borne a child, although at a period remote from that of the examination?_

The following are the principal indications of a woman having been delivered at a distant period, but in offering them to the attention of the practitioner, it is necessary to observe, that _singly_ they can furnish but very slender evidence, and should they even all occur, they must be regarded as affording only a strong presumption of the fact.

1. The orifice of the womb has not its conic figure; its lips are unequal; and it is more open than in those who have never borne children.

2. There is a roughness of the abdomen, the parietes of which are also more expanded and pensile.

3. There are small white and shining lines running on the surface of the abdomen.

4. The breasts are more flaccid, and pendulous, and the lines on their surface are white and splendid.

5. The nipples are prominent, and the colour of their disks brown.

Q. 7. _What are the earliest and latest periods of life, at which women are capable of child-bearing?_

_Zacchias_ and other authors have considered the commencement and cessation of menstruation as the two extreme points, beyond which the female is incapable of conception; they have very justly considered the menstrual flux as indispensably necessary for the healthy action of the uterine system. It must be also admitted that no female can conceive until her system has undergone that revolution which we have already described under the head of _Puberty_, although we then stated, that the period of life at which it takes place is liable to be controlled by several physical as well as moral circumstances, we have accordingly many instances upon record of very young females having borne children: during the year 1816 some girls were admitted into the _Maternité_ at Paris as young as _thirteen years_; and during the revolution one or two instances occurred of females at _eleven_, and even below that age, being received in a pregnant state into that hospital. _Schurigius_[402] states the case of a Flemish girl, who was delivered of a son at the age of _nine_ years; and in the notes to _Metzger_ several instances are related where conception had occurred under the age of _ten_. It has been attempted to ascertain what age, and what season was most prolific: from an accurate register kept by _Dr. Bland_, it would appear, that more women, between the age of twenty-six and thirty years, bear children, than at any other period; of 2102 women, who bore children, 85 were from fifteen to twenty years of age, 578 from twenty-one to twenty-five, 699 from twenty-six to thirty, 407 from thirty-one to thirty-five, 291 from thirty-six to forty, 36 from forty-one to forty-five, and 6 from forty-six to forty-nine.

The time at which menstruation, and consequently child-bearing ceases, will be materially influenced by that at which it commenced; with those who commenced at ten or twelve, the discharge often ceases before the age of forty; but where the first appearance has been protracted to sixteen or eighteen, such women may continue to menstruate until they have passed the fiftieth year; but in this climate the most usual period of cessation is between the age of forty-four and fifty,[403] after which women never bear children, although we have in ancient[404] as well as in modern times, many extraordinary examples of protracted fecundity, to which but little credit ought, in general, to be attached. _Marsa_, a Venetian physician, relates a case of a woman who at the age of sixty brought forth a daughter, and suckled her, and whom he had previously treated for what he had considered to be ovarian dropsy; the annals of our own country[405] would furnish some extraordinary instances of a similar kind. _Dr. Gordon Smith_ illustrates the subject by the case of the wife of a peruke-maker in Poland-street, in the year 1775, who at the age of fifty-four produced two sons and a daughter, although she had been married for thirty years, and had never before been pregnant.

It is probable that many of those “well authenticated instances” of old women having menstruated, like those recorded of children, are merely sanguineous discharges from the vagina, or from a diseased uterus; this we have no doubt is the true explanation of the case related by _Richerand_,[406] of a woman, who at the age of seventy had not ceased to menstruate.

Q. 8. _What is the possible number of Children that can be produced at one birth?_

According to the most accurate estimates, _Twin_ cases, on an average, occur about once in ninety labours; _Triplets_ are considerably more rare, they are stated not to take place more than once in three thousand times; and the occurrence of four at a birth is so rare an event, that no calculation has been formed upon the subject. The reader will find a very interesting paper on the “_Plurality of Births_,” by _Dr. Garthshore_, in the 77th volume of the Philosophical Transactions, to which we beg to refer him. _Dr. Osborne_ states that he has distinctly traced as many as six fœtuses in an abortion.

It is a curious fact that the relative number of males and females born is nearly equal, there being only a small majority in favour of the former, in the proportion of 21 to 20; in consequence of which both sexes are equal at the age of 14, since more male children are still-born, or die in infancy, than females, owing, as _Dr. Clarke_[407] has supposed, to the relative size of the head, being greater in the former. _Hufeland_[408] has collected the relative number of the two sexes in all parts of the world, and has found them every where the same. “It seems very singular,” says Sir _Gilbert Blane_,[409] “and at the same time most admirable in the institution of Nature, that this relative number of the sexes should be maintained, though the primordial germs are mixed in different proportions in the ovaria of different females; for it is well known that many women produce such a number of children in succession, of the same sex, as is utterly irreconcileable with the laws of blind chance, another word for mathematical necessity.” The reader will also derive much pleasure by the perusal of a memoir[410] upon this subject by _Dr. Arbuthnot_, entitled “_An Argument for Divine Providence, taken from the constant regularity observed in the birth of both Sexes_” from which the learned author deduces as a scholium, that polygamy is contrary to the law of Nature and justice, and to the propagation of the human species.

Q. 9. _Is Super-fœtation possible, and under what circumstances, and at what period of Gestation can a second conception take place?_

The term _Super-fœtation_ implies that a second impregnation may take place, whilst a child is in utero.

There are perhaps few questions relating to the subject of conception, that have given origin to more rigorous controversy; and indeed its important judicial bearings render it a subject of greater interest than it could ever have become intrinsically as a mere object of abstract speculation. Let us, for the sake of illustration, suppose the following case:—A woman loses her husband suddenly, _tenant in tail male_, a month after marriage, and at a little more than eight months after his decease she is delivered of a perfect female child, and at nine months, she declares that she is delivered of another infant, which is a male. The heir at law, who has entered, contests the fact of this latter birth; the question therefore to be determined is, whether such an event is compatible with the known laws of utero-gestation.

The ancient physicians and philosophers undoubtedly believed in the possibility of super-fœtation; and the Mythology contains a well characterised example in the instance of Iphicles and Hercules, who were begat upon Alcmæna, the former by Jupiter, and the latter by Amphitryon. _Hippocrates_,[411] _Aristotle_,[412] and _Pliny_,[413] entertained no doubt respecting the fact, and in later times we find that the most eminent physiologists have sanctioned the same belief, and have been engaged in recording facts in its support. _Gasper Bauhuin_[414] relates a case in which a woman at the end of nine months brought forth a dead child, with a deformed head, and that six weeks afterwards she was delivered of a well formed child which lived. _Buffon_[415] presents us with a still more striking example; a woman of Charles-town, in South Carolina, was delivered in 1714 of twins, which came into the world one directly after the other, but to the great surprise of the midwife, one was black and the other white; the woman herself, considering this proof of her infidelity too obvious to be denied, admitted the truth without hesitation,—that shortly after having enjoyed the embraces of her husband, a black servant entered her room, and by threats accomplished his purpose. _Aristotle_[416] speaks of an adultress who produced at the same birth two sons, the one of which resembled the husband, and the other the lover; _Pliny_[417] also relates several cases of super-fœtation, some of which are certainly no other than twin cases, and the others are merely copied from Aristotle. _Musa Brassavolus_[418] has the following remarkable observation upon the subject. “_Nos vidimus super-fœtationem quandoque fuisse epidemicam affectionem._” _Zacchias_[419] also believes in the phenomenon; and in the case of one _Laurette Polymnie_, his testimony secured for her child the rights of inheritance; _Harvey_[420] likewise relates a case of super-fœtation, to which we beg to refer the reader; _Haller_[421] expresses his opinion in the following words: “_Os uteri nunquam clausum est; ideoque potest super-fœtari non solum a die sexto ad trigessimum, aut primis duobus mensibus, sed omni omnino tempore._” _Zacchias_[422] however, thinks that it can only take place in the first two months of pregnancy, for that after this period, the developement of the fœtus renders it impossible. _Plouquet_ observes, that immediately after a first conception, a second may easily take place, but that after a few months it can only occur under the most extraordinary circumstances. If time and space would allow we might adduce a considerable mass of similar testimony, but we shall conclude this part of the subject with the opinion of _Kannegeiser_, “_De super-fœtationis existentia rationis quippe principiis, atque infinitis hominum et brutorum exemplis abunde comprobatu, Medicis atque jurisconsultis mens vix amplius hæret in ambiguo._”[423] The best authenticated case of super-fœtation that has occurred in our own times is that communicated to the College of Physicians by _Dr. Maton_:[424] Mrs. T—— an Italian lady, remarkable for her fecundity, was delivered of a male child at Palermo, on the 12th of November, 1807, under very distressing circumstances, having been dropt on a bundle of straw in an uninhabited room at midnight, and although the infant at the time of his birth had every appearance of health, he lived only nine days; on February the 2d, 1808, (not quite three calendar months from the preceding _accouchement_) Mrs. T—— was delivered of another male infant, completely formed, and apparently in perfect health; the child however fell a victim to the measles at the age of three months. _Dr. Granville_, in a paper entitled “On the Mal-formation of the Uterine System,”[425] takes occasion to observe with respect to the above case, that “it merely goes to prove the occasional co-existence of separate ova in utero, and proves nothing farther; the lady, whose prolific disposition is much descanted upon in that paper, and with whom twin cases were a common occurrence,” continues Dr. Granville, “was delivered of a male child sometime in November, 1807, ‘_under circumstances very distressing to the parents, and on a bundle of straw_,’ and again in February, 1808, of another male infant, ‘_completely formed_!’—mark the expression, for it was not made use of in describing the first. The former died ‘_without any apparent cause_’ when nine days old; the other lived longer. Now can we consider this otherwise than as a common case of twins, in which one of the fœtuses came into the world at the sixth, and the other at the ninth month of pregnancy, owing to the ova being quite distinct and separate? Had this not been the case, the _distressing circumstances_, which brought on the premature contraction of the womb, so as to expel _part_ of its contents in November, as in the simplest cases of premature labour, would have caused the expulsion of the whole, or in other words, of both ova, in that same month; and we should not have heard of the second _accouchement_ in the following February; which led the author of the paper in question to bring the case forward as one of superfœtation, in opposition to what he has called ‘the scepticism of modern physiologists.’ Had it been proved that the child, of which the body in question was delivered, had _reached its full term_ of utero-gestation in November, and that she had brought forth another child one, two, or three months afterwards, of equally full growth, then a case something like superfœtation would have really occurred, and scepticism would have been staggered.” In consequence of the doubts thus expressed by _Dr. Granville_, the author of the present work, actuated only by a desire after truth, applied to _Dr. Maton_ for a farther explanation of those particular points upon which the merits of the case would seem to turn; and he is thus enabled to clear up the doubts which might be supposed to embarrass its history; the fact is, that _both the children were born perfect_, the first therefore _could not_ have been a six month’s child; and with respect to the _distressing circumstances_ which attended the delivery, _Dr. Granville_ appears to have fallen into an important error; he speaks of them as having “brought on the premature contraction of the womb, so as to expel _part_ of its contents in November,” whereas upon referring to the particular expressions used by _Dr. Maton_ in the paper alluded to, we shall soon perceive that they by no means support the assumption of the labour having been _premature_, nor that it was _brought on_ by distressing circumstances; on the contrary, we find upon farther inquiry that the distressing circumstances to which the author alludes were the natural consequence, not the active cause of the labour; indeed the fact, as we learn from _Dr. Maton_, stood thus,—the lady could not obtain better accommodation at the time; that the labour, although quick, was not sudden, for the accoucheur was already in attendance; and that it was not premature, for the natural period of utero-gestation was supposed to have been completed. We must not omit to state that all the particular circumstances of the case were communicated to _Dr. Maton_ by the husband of the lady, and as he could not have had any particular theory to maintain, or any private interest to serve, there cannot exist any good reason for questioning the veracity of his testimony, or the justness of our conclusions.

Several physiologists who have attempted to explain the cause of superfœtation have supposed that in such cases the uterus is virtually _double_; _Morgagni_ informs us, that _Catti_, the Neapolitan anatomist, was the first to observe this phenomenon, and that it is owing to a strong membrane which so divides the uterus, that the mouth of a fallopian tube corresponds with each of its cavities; and he farther states, that this strange structure was found combined with a corresponding division of the vagina; _Valisnieri_[426] also met with a double uterus, and a double vulva; the same malformation has been noticed by _Littre_,[427] _Bauhuin_,[428] _Eissenmann_,[429] _Haller_,[430] and by _Rhoederer_; this latter physiologist in a letter, from Strasburgh, preserved among the Sloane manuscripts, says, “We have got here a great curiosity, viz. a woman body of eighteen years of age, who has the natural parts externally well formed, but internally two vaginæ, each with its _hymen_, to which responds also an uterus duplex having two orificia, each of ’em hanging in its proper vagina, that in such a manner there is quite a double system of generation, and if she had been living a superfœtation could have been formed.” _Sabbatier_ says that he believes in the possibility of superfœtation, and that the above formation will explain its occurrence; an opinion which is sanctioned by _Gravel_[431] and _Teichmeyer_;[432] _Duffien_ also observes, “_Cette double matrice sert très bien a expliquer la superfœtation_.”[433] In quadrupeds superfœtation very commonly occurs, and it has been explained by supposing that the uterus of these animals is divided into different cells, and that their ova do not attach themselves to the uterus so early as in the human subject, but are supposed to receive their nourishment for some time by absorption; hence the os uteri does not close immediately after conception; for a bitch will admit a variety of dogs while she is in season, and will bring forth puppies of these different species; thus, it is common for a greyhound to have in the same litter, one of the greyhound kind, a pointer, and a third or more, different from both.[434]

Those physiologists who deny the possibility of superfœtation, among whom we find some of the most celebrated names, assert that one conception can never supervene another in the same woman, because _the os uteri is closed by coaguable lymph, and the entrance to the fallopian tubes is obstructed by the Decidua Uteri, soon after conception_, and therefore that the semen can never find its way to the internal organs of generation, so as to impregnate a second ovum; this opinion is fortified by the well known aphorism of _Hippocrates_,[435] “οκοσαὶ εν γαστρὶ εχουσὶ; τουτεων δε στομα των υστερων ξυμμεμυκεν.” _Galen_[436] also quoting _Herophilus_ says, “_Ne specilli quidem mucronem admittere uteros antequam mulier pariat; prœterea ne vel minimum quidem hiscere ubi conceperint_.” Neither _Galen_, however, nor _Ætius_, nor _Paulus Ægineta_, make any mention of superfœtation, a circumstance upon which the opponents of the doctrine lay considerable stress. _Avicenna_ alludes to it, but for the purpose of expressing his disbelief in its possibility. _Hebenstreit_[437] and _Ludwig_,[438] have also expressed very strong opinions upon the subject; the former of whom observes, “_Nullæ fere observationes extra omnem dubitationem positæ superfœtationem confirmant_.” _Baudelocque_[439] is equally hostile to such a belief. But it may be said that the argument founded on the entire closure of the uterus is quite gratuitous, many authorities might be cited who disavow the fact, we have already adduced the opinion of _Haller_ upon this point; besides, are we sufficiently acquainted with the manner in which impregnation is effected to authorise any deductions from our hypothesis? We are completely ignorant in what way the male semen arrives at the internal organs,[440] nay, we are not even convinced that its direct transmission to the ovaria is essential to fecundation; it is possible that these organs may be stimulated by sympathy with the vagina. _Parsons_ opposes another argument to the doctrine of superfœtation; it is, says he, impossible, because the fallopian tubes become after conception too short to embrace the ovaria, but this opinion is successfully combated by _Haller_. The cases which have been cited to illustrate the phenomenon of superfœtation, are regarded by those who oppose the doctrine as instances in which a plurality of children has existed, and in which one of the following circumstances have occurred, viz.

1. The fœtus has prematurely died, but has remained in utero with the living child, to the full period of utero-gestation.

2. The descent of the ova into the uterus from the ovarium, has not observed the same order of time, one being more slowly evolved than another, although both might have been fecundated by the same coitus.

This latter was the favourite idea of _Celoni_:[441] “I am therefore decidedly of opinion,” says he, “that this superfœtation is no other than a later developement of a fœtus contemporaneously generated.”

We have thus presented the reader with a review of the different arguments which have been adopted by the partisans and opponents of this celebrated doctrine, and we have cited copious authorities with a view to enable the student to pursue the investigation to any extent which may be commensurate with his notions of its importance. We shall now conclude by observing that the following occurrences are essential to constitute a case of superfœtation.[442]

1. The pregnant woman must bear two children, each of a distinct age.

2. The delivery of these children must take place at different times, with a considerable interval between each.

3. The woman must be pregnant and a nurse at the same time.

Q. 10. _What are the causes of Abortion?_

A gratuitous assumption on the part of some writers respecting the _viability_ of the fœtus, has led them to adopt a division into _abortion_ and _premature labour_, according as the exclusion from the uterus takes place before, or after, the sixth month of conception; and the distinction is now generally adopted. Natural abortion may be considered as arising either from accidental or constitutional causes; we shall hereafter consider the different modes by which the premature ejectment of a fœtus may be occasioned by art. The exciting causes of accidental abortion may, in general, be easily detected[443]; those giving rise to the constitutional kind are often more obscure, and without great attention, the woman will go on to miscarry until either sterility or some fatal disease be induced. In many cases there can be no peculiar pre-disposing cause; as, for instance, when it is produced by blows, rupture of the membranes, or accidental separation of the decidua; but where it occurs without any very perceptible exciting cause, it is allowable to infer that some pre-disposing state exists, and this frequently consists in an imperfect mode of uterine action, induced by age, former miscarriages, and other causes. It is well known that women can only bear children until a certain age, after which the uterus is no longer capable of performing the action of gestation, or of performing it properly; now it is observable, that this incapability or imperfection takes place sooner in those who are advanced in life before they marry, than in those who have married and begun to bear children earlier; thus we find, that a woman who marries at forty shall be very apt to miscarry; whereas, had she married at thirty, she might have borne children when older than forty, from which it may be inferred, that the organs of generation lose their power of acting properly sooner, if not employed, than in the connubial state.[444] We also find that one miscarriage renders the woman liable to the accident at the same period of utero-gestation in subsequent labours, and to such an extent is this susceptibility carried, that it is often difficult with every precaution, for a woman to go to the full time, after she has miscarried frequently. These are circumstances which the juridical physician is, for obvious reasons, to keep in mind; females of disreputable character have been frequently known to miscarry repeatedly in succession; and in such cases we ought not, without very cogent reasons, to draw an inference that may subject them to accusation. We do not consider that any farther observations are required upon this subject, as the numerous works upon midwifery are ready to supply the practitioner with a solution of any problem which may present itself.

Q. 11. _Under what circumstances, and by what means, is it morally, legally, and medically proper, to induce premature labour?_

That premature labour may be induced by a mechanical operation, is too well known to the practitioner in midwifery to require any explanation in this place, while, in a work calculated for circulation beyond the confines of the profession, it would be obviously imprudent to enter into any minute details. It becomes our duty, however, to state, that in those cases of distorted pelvis, through which a full grown fœtus cannot pass without mutilation, the operation may be performed with perfect safety, and with equal advantage both to the child and to the mother. We are informed by _Dr. Denman_[445] that there was in 1756 a consultation of the most eminent men in London at that time, to consider of the moral rectitude of, and advantages which might be expected from, this practice, which met with their general approbation; the morality of this mode of practice, however, says _Dr. Merriman_,[446] has been doubted by many other persons, but probably for want of considering the question in a proper point of view; for the proposal was, that labour should be prematurely induced, _in those cases only_, where it had been _decidedly proved_ that the pelvis was so much contracted in its dimensions, as to render it impossible for a full sized fœtus to pass undiminished; and it is supposed, that this proceeding, while it affords a chance of preserving the child, does not much implicate the life of the mother. _Mr. J. Barlow_[447] has given us the result of an extensive practice in inducing premature labour in cases of distorted pelvis, from which it appears that he has had recourse to this method of delivery _eighteen_ times, in five women, all of whom had been previously delivered once, or oftener, by the crotchet, and that premature labour occurred spontaneously once in two of this number. All the women recovered, a circumstance which adds a further confirmation to the opinion, that the life of the parent is exposed to very little hazard in this way; of the children thus brought into the world, _six_ were dead and _twelve_ were born alive, of which some died soon after birth, _one_ lived ten months, and _five_ were living at the time the account was published. _Mr. Barlow’s_ method consists in exciting premature labour _early_ in the _seventh_ month of pregnancy. _Dr. Hull_, well known for his controversial zeal on these subjects, has offered some remarks so judicious and important, that it would be an act of injustice to withhold them from the reader. “The propriety of inducing premature labour,” says he, “in any deformed woman, can rarely, if ever, be determined upon before the crotchet has been found indispensably necessary, and actually employed in a previous labour; indeed, unless the contraction of the tube or canal of the pelvis be very considerable and pretty accurately ascertained, it will scarcely be justifiable in any case to have recourse to this practice in all the subsequent pregnancies, until the woman has been delivered a second, or third time, by the crotchet; for it has happened in a very great number of instances, that a woman who has been delivered of her first child by the perforator and crotchet, has been afterwards delivered of one or more living children, at the full time; this observation is made not to discountenance the inducing of premature labour, but to prevent the abuse of it.” _Dr. Merriman_, whose extensive practice, and generally acknowledged judgment, stamp a peculiar value upon his opinions, has also pointed out the limitations and cautions which he deems necessary to be observed, to render this operation safe and eligible,[448] and he concludes by observing that “_a regard to his own character should determine the accoucheur, not to perform this operation, unless some other respectable practitioner has seen the patient, and has acknowledged that the operation is advisable_.”

Q. 12. _What circumstances will justify the Cesarean Operation, and of what value is the section of the Symphysis Pubis, or Sigaultian operation?_

Where the size of the pelvis[449] will not admit the passage of the child, surgical aid is indispensably necessary; but, says _Dr. Merriman_,[450] it becomes every man to set out with a determination that he will not hastily, nor without due cause, have recourse to instrumental assistance;[451] for he may assure himself that if he were easily to yield to his own apprehensions, or to the expressions of alarm by the attendants in the lying-in chamber, and in consequence were to try to expedite the delivery by his instruments, he would, on very many occasions, do irreparable injury to the parent or her child.

Instrumental delivery resolves itself into three classes,—

1. _Where neither the mother nor the child is of necessity injured_, as by the use of the FORCEPS[452] and LEVER.[453]

2. _Where the mutilation of the child is the principal object_, as by the PERFORATOR and CROTCHET.

3. _Where the mother is wounded_, as in the CÆSAREAN and SIGAULTIAN operations.

It is of the latter class we have now to speak.

_Of the Cæsarean Operation_:

By which a fœtus is extracted from the uterus of the mother through a wound, made for that purpose, in the abdomen. The term _Cæsarean_, according to some authors, is derived from the operation “_cæso matris utero_,” while others have supposed that it owes its origin to the fact, recorded by _Suidas_, of Julius Cæsar having been cut from the womb of his dead mother in the ninth month. Although _Hippocrates_, _Celsus_, _Paulus_, _Ægineta_, and _Albucasis_, all treat upon the subject of instrumental labours, not the slightest allusion is made to the _cæsarean_ section. The _Chirurgia Guidonis Cauliaci_ is the first work in which any mention is made of the operation; and this was published about the middle of the fourteenth century, but the author only describes it as a resource to save the child after the death of the mother, as, says he, happened at the birth of _Julius Cæsar_. _Parè_ also considered the operation as one that ought never to be attempted on the living subject; _Rousset_, however, his cotemporary, published a work[454] in its favour, which becoming popular, was, through the medium of a latin translation by _Caspar Bauhine_ in 1601, quickly circulated throughout Europe; from this period, the cæsarean section acquired a certain degree of vogue, and began to be performed in cases of extreme difficulty, particularly on the continent, where it has not unfrequently proved successful. In this country the operation has been generally fatal: a very extraordinary case[455] is, however, stated to have occurred in Ireland, and however incredible the story may appear, says _Dr. Merriman_,[456] there seems no reason to doubt its truth; it is related by _Mr. Duncan Stewart_, surgeon, in Dungannon, who saw the patient some days after the operation; and the account is confirmed by _Dr. Gabriel King_ of Armagh, who says, that he drew out the needles, which the midwife had left to keep the lips of the wound together. The patient’s name was _Alice O’Neil_, and the operator was an illiterate midwife, one _Mary Dunally_; the instrument used was a razor, with which she first cut through the containing parts of the abdomen, and then the uterus. “She held the lips of the wound together with her hand, till some one went a mile and returned with silk and the common needles which tailors use; with these she joined the lips in the manner of the stitch employed ordinarily for the hare-lip, and dressed the wound with whites of eggs.” The woman recovered in twenty-seven days. It has often been an object of inquiry, why this operation[457] should have been more successful upon the continent than in this country? the answer to this question is obvious and satisfactory. In this country we have only had recourse to it as an operation of necessity, where we can neither accomplish the delivery by diminishing the bulk of the child, nor by any of the other resources already explained; whereas the practitioners of France, and the other states on the continent of Europe, perform it not only as an operation of necessity, but as one of election, in cases where the mother may confessedly be delivered with safety, by sacrificing the life of the fœtus; it would also appear that in general they have recourse to the operation, before the patient has suffered very much from the continuance of labour. How greatly this circumstance is capable of influencing the success of a surgical operation, we have a satisfactory demonstration in the history of that for _Hernia_, and in which _Mr. Bell_[458] informs us, the French were formerly more fortunate, because they proceeded more early to the operation than the surgeons of almost any other nation. It deserves notice that the religious tenets of different countries appear to have influenced the popularity of the cæsarean section; it is easy to suppose that in those catholic nations where, a belief exists of the necessity of baptism to secure the eternal happiness of the infant, the mother would become a willing sacrifice to make her offspring a christian.[459].

In delivering our opinion upon the propriety of performing the cæsarean section in this kingdom, we should say that there are cases in which it is the bounden duty of the accoucheur to proceed without delay, and such appears to have been that described by _Dr. Merriman_, of which the pelvis in the museum of _Mr. Charles Bell_ is a sufficient proof; for so extreme is the distortion, that a marble measuring less than one inch in diameter, cannot be made to pass through it in any direction; in this case, and some others of a similar nature, the _Cæsarean_ section was the only means of preserving the child. We are of opinion, however, that the operation ought never to be performed where by _Embryulcia_ the child can be extricated; and although circumstances of inheritance should induce the husband to entertain a feeling like that which animated Henry VIII, the practitioner has but one broad line of duty to observe, to save if possible the mother and child, but where this is impossible, to feel no hesitation in sacrificing the life of the latter. In the event of a woman, near the full time of pregnancy, dying undelivered, the _Cæsarean_ operation ought always to be performed with as little loss of time as possible; since by this measure a chance of preserving the child will be afforded, and _Dr. Merriman_ states that several cases of such an operation, after the death of the mother, have been recorded, with the desired effect of saving the infant.[460] _Numa Pompilius_ prohibited the burial of a pregnant woman until the fœtus shall have been extracted.[461] We have already stated, upon the authority of _Suidas_, that to such an interposition Rome owed the life of _Julius Cæsar_; and it has been maintained that _Edward_ VI was thus taken from his mother after death, while others have endeavoured to render it probable, that the cæsarean operation was performed while she was yet living. How long after the death of the mother the child may survive _in utero_, is a question which cannot be readily answered; some authors[462] mention twenty-four or even forty-eight hours; and in relating this fact, _Dr. Merriman_ adds an accompaniment which we also feel a great inclination to adopt—_a note of admiration_! In the late _Dr. S. H. Jackson’s Cautions to Women_ (1798) mention is made of a child extracted by the _forceps_, which was restored to life, though the mother had been dead full half an hour before it was taken from the womb.

It must be admitted, that a child taken from the womb of its mother by the cæsarean section, cannot in philological strictness be said to have been _born_. The ingenious purpose to which _Shakspeare_ has applied this quibble has no doubt suggested itself to the reader.

_App._ Macbeth! Macbeth! Macbeth! * * * * * * * Be bloody, bold, and resolute: laugh to scorn The power of man; for _none of woman born_ Shall harm Macbeth.

_Act_ iv, _sc._ 1

_Macd._ * * Despair thy charm; And let the angel, whom thou still has serv’d, Tell thee, _Macduff was from his mother’s womb Untimely ripp’d_.

_Act_ v, _sc._ viii.

The circumstance merits our observation, in as much as it has furnished a subtlety for disputation, as we have already noticed at page 225.

OF EXTRA-UTERINE CONCEPTION.

It sometimes happens, that instead of the impregnated ovum passing into the womb, it is either retained in the ovarium,[463] or it stops in the fallopian tube, or it misses the tube and falls amongst the bowels. Of these, the _tubal_ is by far more frequent than the _ventral_ conception. We learn from the numerous cases which are recorded of extra-uterine pregnancy, that it may terminate in several different ways; in some cases sudden death occurs from hemorrhage;[464] in others, the unfortunate woman survives for a long period; and it has occurred that the fœtus has been converted into a substance somewhat analogous to the _gras de cimetières_,[465] in which case very little inconvenience is felt beyond that which must attend the tumour of the belly for so many years. Nature, however, more generally institutes a process to get rid of the extraneous body; the sac adheres to the peritoneum or intestines, and, after an uncertain period, varying from a few weeks to several years, it either opens externally, or communicates with the abdominal viscera, and highly offensive matter, together with putrid flesh, bones, and coaguli, are discharged through the abdominal integuments, or by the rectum,[466] vagina, or bladder.[467]

The most extraordinary circumstance in the history of these conceptions is the sympathetic enlargement of the uterus, and even in some cases, the formation of the _Membrana Decidua_.[468] _Riolanus_[469] was the first person who noticed these conceptions. _Vesalius_ observed a _tubal_ conception at Paris in 1669; the fœtus was four months old, and the tube was so enlarged, that he mistook it for a second uterus, and actually published an account of it, under the title of “_Demonstration d’une double Matrice_.” _De Graaf_, and afterwards a learned German by the name of _Elshotius_ commented upon this case in a tract entitled “_De Conceptione Tubaria, qua humani fœtus extra uteri cavitatem in tubis quandoque concipiuntur_,” in which is given the figure of the two supposed _uteri_, and the fœtus in the distended tube. In the _Journal des Sçavans_, A. D. 1678, a case is recorded of a woman at Paris who carried an _extra-uterine_ fœtus in the omentum for twenty years; and in the _Philosophical Transactions_ there is an account of a fœtus of this description, by _Dr. Steigerthal_, that remained in the body of the mother for upwards of _forty_ years. In the present state of our physiological knowledge it is impossible to offer any explanation of the cause of these anomalies in the law of Nature, but we recommend to the attention of the student a paper by _Dr. Blundell_, on the Physiology of Generation, to which we have before taken occasion to allude[470] in terms of high commendation.

OF HERMAPHRODITES.

The term _Hermaphrodite_[471] signifies an animal in which there exists a mixture of the male and female organs, and which is therefore capable of begetting or conceiving. There can be no doubt but that some of the lower orders of animals[472] are, in the strict sense of the term, Hermaphrodites; but it is now universally admitted that, in the human species, no such phenomenon ever existed; indeed, if we only consider the osteology of the pelvis, to the bones of which the organs of generation are connected, it is impossible to imagine how the complete parts of the male and female could be placed distinct from each other; nor is there upon record a single case which can be considered authentic;[473] numerous are the instances of preternatural structure, which gives the appearance of a double sex, and it is on the nature of such monstrous productions, that the medical man is frequently called upon to decide. _Baron Haller_ has industriously collected in one point of view, the histories of reputed hermaphrodites, from almost every author that has preceded him; and from this memoir,[474] and the interesting paper by _Sir E. Home_, entitled “An account of the Dissection of an Hermaphrodite Dog, to which are prefixed some observations on Hermaphrodites in general,”[475] we acknowledge ourselves principally indebted for the following remarks.

_Sir E. Home_ considers that all the monstrous productions, hitherto noticed and described as Hermaphrodites, may be reduced to one of the _four_ following classes, viz:

1. _Malformations of the Male._ 2. _Malformations of the Female._ 3. _Males with such a deficiency in their organs, that they have not the character and general properties of the male, and may be called_ NEUTERS. 4. _Where there exists a real mixture of the organs of both sexes, although not sufficiently complete to constitute double organs._

To illustrate the first case, we may refer to that of a negro described by _Cheselden_,[476] who would appear to have possessed the organs of the male exclusively, only in a state of great distortion, owing to the imperfection of the _scrotum_, which was divided into two separate bags with a deep slit between them, resembling very much the _labia pudendi_, and the opening into the vagina; over these hung down the penis; the imperfection of the septum of the _scrotum_ extended to the canal of the _urethra_; this is not unlike the fissure of the hare-lip being continued through the bony palate, a circumstance often met with. The under surface of the _penis_ was attached, through its whole length, to the two bags containing the testicles, looking like a preternatural _clitoris_; to which it bore a more perfect resemblance from the absence of the _urethra_. The urine passed through a preternatural termination of the _urethra_ in the _perineum_, and came out externally in the space between the testicles, which formed an enlarged aperture that had been mistaken for a narrow vagina, in consequence of its allowing an instrument to pass to some distance, by conducting it to the bladder. Such mal-formation of the male organs[477] is particularly worthy attention, for it is that, more than any other, which has given origin[478] to mistakes respecting the mixture of the sexes. The _lusus_ often occurs in different degrees of imperfection, and may in some instances be materially diminished by art. In the _second_ case, it may be observed that there are two mal-formations of the female organs of generation, which may give to the external parts a doubtful character; one is an enlargement of the _clitoris_; the other, a protrusion of the internal parts. It has been already stated that enlargements of the _clitoris_ are not of rare occurrence, especially in hot climates; and that at birth it is often larger than the penis, and has frequently given rise to mistakes; so that females have been baptised as males.[479] The following remarks may serve to lead to a correct decision upon these occasions:—If the subject be a female, the labia are well formed, and when handled no round bodies are felt in them like testicles; the fissure at the extremity of the glans does not communicate with any canal of the urethra; but under the glans, and at the posterior extremity of the fissure, there is an opening which leads immediately to the bladder.[480]

The other mal-formation of the female genital organs consists in a protrusion of the internal parts, of which we have already given an example (_see page_ 28); the womb when thus displaced, has assumed so close a resemblance to the penis, that it has been actually mistaken for one by medical men of the highest character, as in the instance related by _Sir. E. Home_ in his paper upon Hermaphrodites; another case is also published in the _fifteenth_ volume of the _Philosophical Transactions_, in which the menses periodically flowed through the orifice of the supposed penis. With respect to the third order of imagined hermaphrodites, which _Sir E. Home_ has called _neuters_, and where the subject, although a male, has not, in consequence of organic defects, the characters of his sex, has been said to be more common than is generally supposed, especially in early life, and that by farther developement the anomalies have sometimes disappeared; it is, probably, as _Sir E. Home_ very justly observes, only those whose form is very like females, that have attracted the notice of common observers, so as to have their defects discovered. _Ambrose Paré_ mentions a case, where by violent exertion, the male organs of generation became suddenly developed, and the person who had before been considered as a female, was admitted to the rights of manhood; and a similar case is recorded by _M. Veay_, as having happened at Thoulouse, (_see also Montaigne’s Essay, chap._ xx.) The examples which fall under the fourth order are very uncommon in occurrence,—where there is a real mixture of the organs of both sexes, although not sufficiently complete to constitute double organs; indeed we are very much inclined to question whether a real participation of the nature of both sexes ever takes place; in almost every case where due examination has been made, such persons have been found to belong decidedly to the one sex or to the other. _Petit_[481] has reported the dissection of a soldier, aged twenty-two, who had not only the testes in the abdomen, but also a womb, and nearly the whole apparatus of the female genitals; in this, as well as similar stories, we are disposed to think with _Dr. Gordon Smith_,[482] that things have been called by wrong names.[483]

OF IDIOTS AND LUNATICS.

ALTHOUGH the right of a child to succession and property be established by proving its legitimacy, such right may be suspended or controlled by various incapacities. Idiotism and Lunacy alone require our immediate notice; for though non-age be another impediment to the exercise of a child’s rights, and the fact may sometimes admit of medical elucidation, yet the instances must be rare, and the question will more properly belong to the head of Criminal responsibility; “Idiocy or not is a question triable by jury”[484]; “and sometimes by inspection;” it is distinguished in law from madness[485] & lunacy, being _dementia naturalis vel a nativitate_[486], depending generally on a defective organization, whereas madness and lunacy are _dementia accidentalis_, the former continual, the latter intermittent,[487] both varying in degree, danger, and resistance to cure, yet both capable of cure or palliation by medical treatment, and pre-eminently subjects of medical jurisprudence.[488].

An idiot[489] or natural fool is one that hath had no understanding from his nativity, and is therefore by law, presumed never likely to attain any;[490] 1st. _Blackstone’s Commentaries, c._ 1, _p._ 302. It has been held that an inquisition finding that a person has not had any lucid intervals _per spatium octo annorum_, was a good finding of idiocy; _Prodgers and Phrazier_, 3 _Mod. Rep._ 43, _Skinner’s Reports_, p. 177, and Lord _Donegall’s Case_, 2 _Vesey’s Reports_, p. 408,[491] _contra Prodgers and Phrazier_, 1st _Vernon’s Reports_, p. 12. _see_ 1st _Fonblanque’s Treatise of Equity_, p. 63; but as a person may not have been mentally incapable _a nativitate_, and therefore not an idiot, and yet be affected with madness without lucid intervals, and therefore not legally or logically a lunatic; the better general distinction appears to be, whether the party is _compos_ or _non compos mentis_,[492] but see 1st _Blackstone’s Commentaries_, p. 304, 1st _Fonblanque’s Treatise of Equity_, p. 63, and cases cited there; Lord _Hardwick’s_ Judgment in _Ex parte Barnsley_, 3d _Atkyn’s Reports_, 168,[493] Lord _Eldon’s Judgment in Rigeway and Darwin_, 8th _Vesey’s Reports_, 65; Lord _Erskine’s Judgment in Ex parte Cranmer_; 12th, _Vesey’s Reports_ 445; and _Collinson on Lunatics_. By which authorities it will appear that the jurisdiction of the Court of Chancery[494] over the persons and estates of lunatics extends to those who, being of infirm mind by reason of grief, accident, old age, disease or other cause, are incapable of managing their own affairs.[495]

A person born deaf and dumb is not of necessity an idiot, for he may have received instruction by signs, _Dickenson and Blissett_, 1st _Dicken’s Reports_, 268, but if he be also blind, the presumption is that he is an idiot; Lord _Coke_ indeed says that those who become so, being also deaf and dumb, are idiots, _Coke’s Littleton_, 42; 1st _Blackstone’s Commentaries_, 304, and they are, so far as the jurisdiction of the Court of Chancery extends; for though they may have some mental faculty it is impossible that they can exercise it for the management and protection of their property.

Habitual drunkenness[496] will not alone support a commission of lunacy, _Cory and Cory_, 1st _Vesey_, _Senr._ 19, but in _Ridgeway and Darwin_, 8th _Vesey_ 66, Lord _Eldon_ stated that a commission had been supported on this ground.

Among the legal disabilities under which persons, non compos, labour, one of the most material to the medical adviser is connected with the disposal of property by will,[497] and it is most peculiarly his duty to observe, as in most cases his situation will enable him to do, whether the testator was or was not of sound mind, memory, and understanding, at the time of making his will; for it can scarcely be necessary to observe, that many, who during the greater part of their lives have been of sound mind, gradually lose their faculties towards its close, and become liable to the impositions, restraints, and in some cases even to duress, accompanied with cruelty of those about them, to the disgrace of humanity, and the injury of their lawful kindred; in such cases the medical attendant alone obtains access, it is to him therefore that the law will look for the detection, exposure, and defeat of frauds. An idiot cannot make a will, but a lunatic may, during a lucid interval; and subsequent lunacy does not operate as a revocation of a will. _Forse and Hembling’s_ case, 4 _Co._

If a person be improperly confined under pretence that he is a lunatic, the remedy is by habeas corpus, directing the keeper to bring the party into court; but if it appears on affidavit of some competent person that the party is actually lunatic, and in such a state of mind that he is not fit to be brought into court[498], and more especially if a commission of lunacy is about to be issued, the court will enlarge the time for the return of the writ according to the nature of the case, (_Rex v. Clarke_, 3 _Burr R._ 1363.) And if liberty to have access and inspection of such lunatic be applied for, it must be on behalf of some person who has pretension to demand it, or the Court will reject the request (ibid.)[499].

But though no commission has issued, the Court of Chancery will interpose, as where the Lord Chancellor stopped a lunatic from being carried out of the jurisdiction of the Court (into Scotland), Lady _Marr’s case_, cited in Lady _Annadale’s case_. _Amb._ 82. The Court also retains some jurisdiction after the death of the lunatic, _Ex parte Grimstone, Ambler._ 706; _Ex parte Armstrong_, 3 _Bro. Ch. Ca._ 238; _Fitz-gerald’s Case_, 2 _Sch. and Lef._ 439.[500].

Formerly the inquiry respecting idiots and lunatics was made by Writs to the Escheator or Sheriff as an officer to enquire of the revenues of the Crown, (_F. N. B._ p. 531: 1 _Collinson_, 117: _Ex parte Southcote_, 2 _Ves._ 401:) but these being very strict as to the wording, and as no person could be found idiot or lunatic under them, except those who came under the strict definition of either denomination, the Writs have been superseded by Commissions[501] of a more comprehensive character under the great seal[502]. These Commissions are directed to five Commissioners,[503] who, or any three or more of them, are openly to enquire on the oaths of twelve or more good and lawful men, whether the person be or not an idiot, lunatic, or _non compos_: 1 _Collinson_, 120. And they have power to issue their warrant to any person to produce the _non compos_[504], _ib._ 143; which, if not obeyed, will be enforced by the Lord Chancellor, and costs decreed, if required against the persons having the custody of the party. _Ex parte Southcote_, 2 _Ves._ 401. 405: see also Lord _Wenman’s_ case[505] _ubi supra_. The Commissioners have also power to summon witnesses as incident to their office. _Ex parte Lund_, 6 _Ves._ 784.[506]

Where there is any misbehaviour in the execution of a Commission, whether by the Commissioners, or Jury, (_Ex parte Roberts_, 3 _Atk._ 6.) the Chancellor will quash it, and direct a new Commission.

If there has been a finding against the king, there may be _a melius inquirendum_, but this is for the Crown only (3 _Atk._ 6.), which cannot traverse as the subject can.

The remedy of the subject is by traversing the inquisition, or by bringing the question to an issue at law. The right of traverse has been disputed; Sir _John Cutt’s_ case, _Ley._ 26. 3 _Atk._ 6.; and it was held that permission to traverse was a favour granted by the Court, and not a right; _ibid._ but it is now established to be _de jure_ under the 2 _Ed._ 6. c. 8. § 6. _Ex parte Wragg_, and _ex parte Ferne_, 5 _Ves._ 450. 832. But the petition of a stranger for this purpose will be dismissed with costs: _Ex parte Ward._ 6 _Ves._ 579.

The manner of pleading a traverse is very short, (5 _Ves._ 452). An idiot must traverse in person. _Smithson’s_ case was on motion to be permitted to traverse by attorney, which was opposed; it was agreed that a traverse was given by 2 _Ed._ 6, but it must be _in propriâ personâ_: precedents were shown, but there was no case where an idiot had traversed by attorney, though many where a lunatic had: 3 _Atk._ 7. Vide _Stone’s_ case in _Tremaine’s Pleas of the Crown_, 653, a precedent of a traverse, and for the doctrine of traversing an inquisition, vide 4 _Co._ 54. _b_; (the case of the Commonalty of the Sadlers), and 8 _Co._ 168. _Xaris Storeghtors’_ case. Sir _T. Jones_, 198. _Show._ 199. _Skinner_, 45. _Moseley_, 71. 1 _Collinson_, 171. But though a lunatic may by permission of the Lord Chancellor traverse by attorney, the better rule is that he attend in person. _Amb._ 112.

The appeal in lunacy is to the King in Council, and not to the House of Lords. _Ex parte Pitt_, 3 _P. Wms._ 108: _Rochfort and Ely_, 6. _Bro. Par. Ca._ 329; _Sheldon v. Aland_, 3 _P. Wms._ 107.

If the party be found lunatic the next consideration is as to the disposal of his person and estate. “To prevent sinister practices, the next heir is seldom permitted to be this committee of the person; because it is his interest that the party should die. But it hath been said there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic’s life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy. The heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable however to the Court of Chancery, and to the _Non compos_ himself if he recovers; or otherwise to his administrators, 1 _Bl. Comm._ 305. But this rule is not in all cases adhered to, _Ex parte Cockayne_, 7 _Ves._ 591: _Neal’s case_, 2 _P. Wms._ 544, and _ex parte Ludlow_, _ibid._ 635.” The Court will not give the custody of a lunatic to one who may make a gain of it, Lady _Cope’s_ case, _Cha. Ca._ 239, or allow the committee any thing for his trouble, whether as to the person (_In re Annesley. Amb._ 78) or as to the estate, 10 _Ves._ 103.

A stranger may have the custody of a lunatic, _Ch. Ca._ 239. And where no one could be procured to act as committee of a lunatic, a receiver was appointed with a salary, but nevertheless to be considered and give security as a committee. _Ex parte Warren_, 10 _Ves._ 622.

A committee may be removed on sufficient cause, as bankruptcy, but the Court will not change the custody, if the Master finds it proper with regard to the comfort of the lunatic. _Ex parte Mildmay_, 3 _Ves._ 2.

Where there are sufficient funds, a liberal application of the property of a lunatic ought to be made, in order to afford him every comfort his situation will admit, _Ex parte Baker_, 6 _Ves._ 8. _ex parte Chumley_, 1 _Ves. jun._ 296. _Dormer’s Case_, 2 _P. Wms._ 265. 3 _P. Wms._ 104. His comfort, where no creditor complains, is the first object, not the heaping up of riches for his next of kin, _ib._ The Chancellor will not make an order, even for creditors, the effect of which would be to put the lunatic in a state of absolute want, _Ex parte Dikes_, 8 _Ves._ 79; nor unless it is clear that he will have a sufficient maintenance, _Ex parte Hastings_, 14 _Ves._ 182.

We are next to consider how a party once found lunatic, can, upon recovery, resume his natural and civil rights;[507] for this purpose the strongest medical as well as general evidence will be necessary, not only as to absolute recovery, but temporary remissions or lucid intervals, for if a party be once found non compos, the finding is conclusive, till evidence be shown to the contrary, see _Hall_ v. _Warren_, 9 _Ves._ 605: _Attorn. Gen._ v. _Parnther_, 3 _Bro. Ch. Ca._ 441: and if as to a lucid interval there must be this severity of proof, much more must the onus of proving an absolute recovery rest with the party seeking to set aside the former finding of a competent tribunal, or even to negative an established presumption;—“When the party has ever been subject to a commission, or to any restraint permitted by law, even a domestic restraint, clearly and plainly upon him in consequence of undisputed insanity, the proof shewing sanity is thrown upon him; on the other hand, where insanity has not been imputed by relations or friends, or even by common law, the proof of insanity, (which does not appear ever to have existed) is thrown upon the other side; which is not to be made out by rambling through the whole life of the party; but must be applied to the particular date of the transaction. A deviation from that rule will produce great uncertainty.” Lord _Eldon_ in _White and Wilson_, 13 _Ves._ 88; see also 3 _Bro. Ch. Ca._ 241. On motion that a recovered lunatic might settle his estate, Lord Keeper _North_ refused the motion, but directed an issue in the Common Pleas to try the fact of the recovery, 1 _Vern._ 155. so also Lord _Eldon_ in _ex parte Holylands_, 11 _Ves._ 10; but the commission may sometimes be superceded on inspection, when it is usual for the physician to attend. 1 _Fonb. Tr. Eq._ 65. or to make affidavit; but the former mode is the best.

It has been said that there are no degrees of defect of understanding save idiotcy and lunacy, _Hume_ v. _Burton, Ridgw. Par. Ca._ 211; this may be true as relates to commissions of idiotcy or lunacy, and their consequences, but it is neither legally or medically correct in any more extended sense.

Delirium,[508] in the ordinary acceptation of the word, is the temporary derangement of intellect consequent on acute disease; it may be distinguished from lunacy or madness by the invariable presence of fever, and it ceases as its exciting causes subside; this therefore operates no permanent incapacity; for though the patient cannot be permitted to do any act, or execute any instrument to bind his property or estate, and would not be held responsible for any crime committed during such temporary alienation of intellect, yet he becomes competent to act, and responsible for his actions as soon as the paroxysm and its consequences are clearly over.

But there is yet another species of mental disorder which, since it does not incapacitate the patient from performing the ordinary duties and offices of life, does not subject him to the inconveniences of commission of lunacy, or exempt him from criminal responsibility; we mean those partial insanities which are marked by peculiar and unaccountable dislikes, fancies, and apprehensions, a mental idiocyncrasy on some one particular subject.[509]

* * * Fuit haud ignobilis Argus Qui se credebat miros audire tragædos,[510] In vacuo lætus sessor plausorque theatro; Cætera qui vitæ servaret munia recto More; * * * * * * * * * * *

Hic ubi cognatorum opibus curisque refectus Expulit elleboro morbum bilemque meraco, Et redit ad sese: Pol me occidistis, amici, Non servastis, ait; cui sic extorta voluptas, Et demptus per vim mentis gratissimus error.

_Hor. Epis._ 2, _L. ii. v._ 128.

To take out a commission of lunacy against such a man would be a greater cruelty than to cure him, and yet occasionally some legal interference may be necessary.

When a man suffers under a partial derangement of intellect, and on one point only, it would be unjust to invalidate acts which were totally distinct from, and uninfluenced by, this limited insanity; but if the act done bears a strict and evident reference to the existing mental delusion, we cannot see why the law should not also interpose a limited protection, and still less why Courts of Equity, which, in their ordinary jurisdiction relieve against mistake, should deny their aid in such cases.

Mr. _Greenwood_ was bred to the bar and acted as “Chairman at the Quarter Sessions, but, becoming diseased, and receiving in a fever a draught from the hand of his brother, the delirium taking its ground then, connected itself with that idea; and he considered his brother as having given him a potion, with a view to destroy him[511]. He recovered in all other respects, but that morbid image never departed; and that idea appeared connected with the will, by which he disinherited his brother. Nevertheless it was considered so necessary to have some precise rule, that, though a verdict had been obtained in the Common Pleas against the will, the judge strongly advised the jury to find the other way, and they did accordingly find in favour of the will. Farther proceedings took place afterwards, and concluded in a compromise.” Lord _Eldon ubi supra_.

The records of Bedlam and Saint Lukes are full of similar instances of persons insane on only one point; where that point may lead to mischief, it is proper that the party should be placed under restraint; where the aberration is harmless, it would be cruel to add imprisonment to the evil of the disorder, running also the risk of producing an augmentation of the disease; for it may safely be taken as a rule, that persons labouring under limited, will be predisposed to general insanity, and therefore it is at least necessary to watch them minutely, lest some less harmless derangement should seize them at the moment when it is least expected.

LUNATIC ASYLUMS.

The very gross abuses which were formerly practised in Lunatic Asylums, long required legislative interference, till by the _14th Geo._ 3, _c._ 49,[512] many of the most glaring evils were remedied. As the act itself is copied in the _Appendix, p._ 170, we do not now repeat all its provisions; on a few points however some comment is necessary, and more especially as an attempt has been lately made, and is likely to be renewed, to alter the law on this subject. It is proposed that, instead of confiding the choice of licensing and visiting commissioners to the College of Physicians in London, a permanent officer (and the name of the individual intended has been even mentioned) should be appointed by government to execute those duties: however high the authority of the officer of State to whom this selection is to be given, we must doubt whether he can be so competent a judge of medical proficiency as the learned body to whom the trust is now confided; and if he be not, the interest of the public is compromised, that the patronage of the minister may be increased; for, admitting that a permanent officer should be appointed, there is no good reason why his selection should not remain with a competent authority, which has not yet been found unworthy of the trust reposed in them. Our principal objection, however, is to the permanence of the appointment; under the present system much benefit arises from the occasional change of visitors, by which means the unfortunate patients are brought under the view of a greater number of medical observers than could be otherwise obtained for them. A permanent officer may soon be reconciled to abuses, and become callous to suffering; while under the visitation of a temporary Committee the subject is kept fresh and vivid with all the interest of novelty, at least in the minds of the members last elected. The period for which each member serves on the committee, (three years) and the extent of the pecuniary emolument, hold out no inducement to jobbing or canvas, even if the learned and honourable body would allow it, and a consequent security is afforded, that none will be elected from undue motives; there is always a risk of a contrary result when a well paid and permanent office is made the object of patronage; an improper person is frequently selected, and when those who have been originally well appointed become incapable by age, infirmity, or other incapacity, there is always a delicacy and difficulty in their removal.

Hitherto we have confined our observations to the Commissioners for the London district[513], but our objections acquire additional weight when we consider that if the proposed alteration be necessary on principle, it must extend to the country, and consequently that above fifty salaried officers must be appointed to the counties of England and Wales alone.

The bill introduced and passed through the House of Commons was thrown out in the House of Lords; and when we reflect upon the legal acumen which presides there, we feel confident that any future similar attempt would meet a similar fate.[514]

The _14th Geo._ 3 exempts houses where only one patient is kept, from license and inspection; they should at any rate be registered, and some limited power of visitation be allowed to prevent abuses; the exemption may be construed at present into a license for illegal imprisonment, provided the jailor can afford a whole house to his victim.[515]

The custody of pauper and criminal lunatics,[516] and the erection of asylums for their reception, is provided for by _Statute_ 48, _Geo._ 3, _c._ 96, and 59 _Geo._ 3, _c._ 127;[517] but no provision has yet been made for lunatic debtors; when it is considered how frequently the calamity of lunacy is induced by pecuniary difficulty, it is not easy to account for this omission. The observation of _Mr. Collinson_ on this point may be applied to more subjects than are at present under our consideration.

MEDICAL AND PHYSIOLOGICAL ILLUSTRATIONS OF INSANITY.

As the duties of the Jurist and Physiologist in the investigation of mental derangement are distinct in their nature, if not different in their object, so shall we find that the abstract terms used to denote the form or degree of the malady have received from the two professions a somewhat different latitude of acceptation. For legal purposes the adoption of the term “_Non Compos Mentis_,” from the amplitude of its construction, gets rid of those nicer distinctions and difficulties which the pathologist is bound to encounter and investigate; the lawyer only inquires whether such a state of mind exists, as actually disqualifies the person in question from conducting himself with propriety, or managing his affairs; but the medical evidence is bound not only to give his opinion upon the case, but to state the reasons which may have influenced his decision; and hence the necessity of his becoming practically acquainted with those physiological distinctions to which we have alluded. It has been stated that there are two conditions of the human mind, either of which very justly deprives the subject of the control of his person and property, and takes away from him all criminal responsibility, viz. IDIOTCY, (_Amentia_) or a total deficiency of intellectual power; and MADNESS, or a morbid perversion of it. Between these two states we shall not have much difficulty in discriminating; the idiot cannot reason at all; the madman reasons falsely; the idiot acts from animal appetency, he has no will; the madman wills, but his reason being disturbed, his actions are not compatible with the usual relations of society.[518]

Idiotcy may exist from birth,[519] (_Amentia Congenita_ Cull. Syn. LXV, 1,) or it may be the effect of Old Age, _Dotage_ (_Amentia Senilis_ Cull. Syn. LXV, 2,) or it may arise at any period of life from the operation of various causes affecting the functions of the brain, such as epileptic fits,[520] intense study, intemperance, the depressing passions, especially grief, fevers, paralysis, and mania, (_Amentia acquisita_ Cull. Syn. LXV, 3.) In some cases fatuity is symptomatic of another disease.

The law, as we have already stated, makes an important distinction between that species of idiotcy which is congenital, _de nativitate_, and that which may occur in after life; and upon this point, as well as upon the extent of the malady, and the probability of its cure, the medical practitioner may be called upon to give an opinion. In cases of congenital idiotcy there will not be much difficulty in pronouncing judgment, for as it arises from malformation of the cerebral organ, the prognosis must be adverse to every hope of recovery; while the characteristic physiognomy of the unfortunate individual is generally so striking as to enable the common observer at once to ascertain the existence of idiotcy. The vague expression of his countenance is commonly associated with an awkwardness in the gait, which would seem to depend upon a defect in the muscular powers; there is, moreover, a degree of incontinence with respect to the excretory discharges of his body; and owing to a carelessness in not swallowing the saliva, there is a constant drivelling from the mouth; the speech is imperfect, and the extent of this deficiency may, in general, be considered as a good indication of the degree of fatuity, for it is necessary to state, that all idiots are not of the same degree of intellectual depravity; some possess more memory than others, and display a talent for imitation; they will whistle tunes correctly, and repeat passages from books, which they have been taught by ear, but they are incapable of comprehending what they repeat; under such circumstances medical evidence may be required for the purpose of obtaining an estimate of the capacity of such an individual, and upon this subject _Dr. Haslam_[521] has offered the following judicious remarks: “It has occurred to me, in many instances, to be consulted concerning persons whose minds have been naturally weak, or enfeebled by disease, and it always appeared that by patient enquiry, a satisfactory estimate of their capacity might be instituted: the person exercising his judgment upon this question ought particularly to ascertain the power of the idiot’s attention; since his knowledge of objects, and his memory of them, will depend on the duration of his attention; it will also be indispensably necessary to investigate his comprehension of numbers, without which the nature of property cannot be understood; if a person were capable of enumerating progressively to the number ten, and knew the force and value of the separate units, he would be fully competent to the management of property; if he could comprehend that twice two composed four, he could find no difficulty in understanding that twice, or twain ten, constituted twenty. This _numeration_ also presumes he comprehended that so many taken from ten, or subtracted, which is the converse, would leave so many as the remainder. Without such capacity, no man, in my own opinion, could understand the nature of property, which is represented by numbers of pounds, shillings, and pence. The same imbecility of mind is often produced in adults, and in those of advanced age, by paralytic or epileptic attacks, and from various affections of the brain, and requires the same accurate investigation to determine on the competency of such persons to be entrusted with the management of themselves and affairs.”

In cases of _Amentia acquisita_, our prognosis must be directed by different circumstances: the faculties of a person may only be in abeyance, and may revert to a state of sanity, either spontaneously, or from judicious treatment, or they may be only partially affected.[522] It however deserves notice that, in extent of mortality, the most fatal of all the states of mental disorder is _Amentia acquisita_; it has been computed that in the French hospitals a full moiety of the fatuous die; at the same time, it appears from the reports of lunatic asylums, that this disorder is sometimes cured.

Idiots are, in general, harmless; their deportment being characterised by a timidity that guards them from any mischievous attempts, either upon themselves or upon other persons; to this general rule, however, exceptions not unfrequently occur; as, for instance, in the unfortunate case of the idiot in Cornwall who strangled, and afterwards burnt the body of, an old woman who had for some years superintended his person. In some cases of accidental fatuity, a considerable disposition to obesity manifests itself, and the subject becomes lethargic.

Authors who have treated on the subject of _Insanity_ have anxiously attempted to frame a definition of the malady; and, by compressing into a short sentence its prominent and distinguishing phenomena, to establish a fixed and essential character. In this attempt each author has fundamentally differed, and to enumerate their plans would be only to expose their failures; the truth is, that the varied and mutable phenomena of insanity will ever mock the grasp of the nosologist; instead therefore of endeavouring to discover an infallible definition, it will be of much greater importance to investigate the circumstances which should guide the medical witness in a decision that may annul a man’s dominion over property, involve his contracts and other acts which otherwise would be binding, and take away his responsibility for crimes. Modern authors, according to the system of the Grecian writers, have generally divided mental derangement into two classes—_Mania_[523] and _Melancholia_;[524] the former being distinguished by a state of extraordinary excitement, the latter by great depression; although they are frequently convertible affections.

_Mania_ may be said to be a state of mental alienation, accompanied by an unusual ferocity in language and deportment, and by a comparative insensibility to ordinary stimuli.

_Melancholia_ is a form of insanity which is always attended with some seemingly groundless, but very anxious fear, by which the person is plunged into a gloomy and desponding state, that not unfrequently leads to the commission of suicide.

The approaches of insanity have been as variously described by different authors, as the characters by which the malady itself is to be distinguished; indeed the precursory symptoms of mania are extremely indefinite and variable. _Dr. Haslam_ observes, that “the attack is almost imperceptible; some months usually elapse before it becomes the subject of particular notice, and fond relatives are frequently deceived by the hope, that it is only an abatement of excessive vivacity conducing to a prudent reserve and steadiness of character; a degree of apparent thoughtfulness and inactivity precedes, together with a diminution of the ordinary curiosity concerning that which is passing before them; and they therefore neglect those objects and pursuits which formerly proved sources of delight and instruction; the sensibility appears to be considerably blunted; they do not bear the same affection towards their parents and relations; they become unfeeling to kindness, and careless of reproof; if they read a book, they are unable to give any account of its contents; sometimes, with stedfast eyes, they will dwell for an hour on one page, and then turn over a number in a few minutes; their sleep is disturbed, and they awake in the morning in a state of great disquietude and anxiety; as the malady becomes farther developed, the symptoms are less equivocal, the unhappy objects become loquacious and disposed to harangue, and decide promptly and positively upon every subject that may be started; soon after, they are divested of all restraint in the declaration of their opinions of those with whom they are acquainted; their friendships are expressed with fervency and extravagance, their enmities with intolerance and disgust. They now become impatient of contradiction, and scorn reproof; for supposed injuries they are inclined to quarrel and fight with those about them; at length suspicion creeps upon the mind, they are aware of plots which had never been contrived, and detect motives that were never entertained.”

This picture, however, must be only regarded as displaying the ordinary occurrences which precede the attack; its approaches are sometimes distinguished by a very different train of symptoms; the late _Dr. John Monro_[525] has remarked that “high spirits, as they are generally termed, are the first symptoms of this kind of disorder; these excite a man to take a larger quantity of wine than usual; and the person thus affected, from being abstemious, reserved, and modest, shall become quite the contrary; drink freely, talk boldly, obscenely, swear, sit up till midnight, sleep little, rise suddenly from bed, go out a hunting, return again immediately, set all his servants to work, and employ five times the number that is necessary; in short, every thing he says or does betrays the most violent agitation of mind, which it is not in his power to correct; and yet, in the midst of all this hurry, he will not misplace one word, or give the least reason for any one to think he _imagines_ things to exist that really do not, or that they appear to him different from what they do to other people. They who see him but seldom, admire his vivacity, are pleased with his sallies of wit, and the sagacity of his remarks; nay, his own family are with difficulty persuaded to take proper care of him, until it becomes absolutely necessary, from the apparent ruin of his health and fortune.”

The patient under the influence of the depressing passions will exhibit a train of symptoms altogether different; the countenance wears an anxious and gloomy aspect, he is little disposed to speak, he retires from the company of those with whom he formerly associated, secludes himself in obscure places, or lies in bed the greater part of his time; frequently he will keep his eyes fixed on some object for hours together, or continue them an equal time ‘bent on vacuity;’ he next becomes fearful, and conceives a thousand fancies, often recurs to some immoral act which he has committed, or imagines himself guilty of crimes which he never perpetrated; believes that God has abandoned him, and with trembling awaits his punishment;[526] frequently he becomes desperate and endeavours by his own hands to terminate an existence which appears to be an afflicting and hateful incumbrance.[527]

The approaches of Insanity, are, however, not always slow and progressive: the unhappy victim is sometimes seized without any warning, and where crimes have been perpetrated under such circumstances, it becomes extremely embarrassing both to the judgment of the physician and to the decision of the court; each case, however, must rest upon its own particular merits duly to be weighed and considered both by the judge and jury, lest, to use the expressions of _Sir Matthew Hale_, “there be on the one side a kind of inhumanity towards the defects of human nature, or, on the other side too great an indulgence given to great crimes.”

Before we proceed to consider the several questions which may arise for the consideration of the medical witness, in the discharge of his forensic duties, we shall offer a few observations upon a point which has frequently given rise to discussion—Whether the existence of insanity cannot be equally, or in some cases, more satisfactorily established, or disproved, by witnesses who are not of the medical profession? by persons, for instance, who have had opportunities of observing the individual, where the same advantages have not been in the power of the practitioner. To this we may reply, that the opinions of the generality of persons on the subject of insanity are extremely vague, and frequently very erroneous,[528] and are commonly the result of those glaring exhibitions, those caricatures of disease which the stage represents, or romances propagate; the ordinary observer can hardly be convinced of the existence of insanity, without some turbulent expression, extravagant gesture, or phantastic decoration; while on the other hand he is too apt to infer a state of insanity from those whims and eccentric habits between which the medical practitioner, from daily communication with deranged persons, can alone know how to discriminate; thus was _Democritus_ accused by the people of insanity, but when _Hippocrates_, by public request, had a conference with the philosopher, he declared that not _Democritus_, but his enemies were insane. There is moreover a class of maniacs who are so cunning as to deceive those who are not acquainted with the peculiar hallucinations under which they labour; _Lord Erskine_ was thus unable to detect the insanity of a lunatic who fancied himself to be Jesus Christ, until he had received the medical assistance which the presence of _Dr. Sims_ afforded him.[529] It is unnecessary to urge any farther the necessity of medical testimony upon such occasions, we shall therefore proceed to consider the different points to which it will be more usefully directed.

Q. 1. Whether the person be actually insane? and what are the proofs of his derangement?

Q. 2. Whether the symptoms are of such a nature as to suffer the individual, with propriety, to retain his liberty, and enjoy his property?

Q. 3. Whether there has been any lucid interval, and of what duration?

Q. 4. Whether there is a probable chance of recovery; and in case of convalescence, whether the cure is likely to be permanent?

Q. 1. _Whether the person be actually insane—and if so, what are the proofs of his derangement?_

It has been very justly observed, that to constitute insanity it is not necessary to exhibit the ferocity of a wild beast, nor to perform the antics of a buffoon; the most ordinary observer can tell when a person is furiously mad,[530] but, in many cases, “_such thin partitions do the hounds divide_,” that all the skill and discernment of a medical practitioner is required to establish the fact of insanity. It is to such cases as are more likely to become subjects of legal investigation, that the following observations particularly apply. _Sir Matthew Hale_ says, “there is a _partial_ insanity, and a _total_ insanity; the former is either in respect to things, _quoad hoc vel illud insanine_, where persons are perfectly rational, except on some one particular subject.” This fact is universally admitted, constituting a form of mental alienation to which _M. Esquirol_[531] has bestowed the name of _Monomania_, and of which every work on insanity abounds with examples. It is in such cases that the value of medical sagacity and experience becomes apparent, and the full developement of the real state of the patient’s mind and opinions will, in some instances, require considerable time and patience. “It is nearly impossible,” says _Dr. Haslam_, “to give any specific directions for conducting such an examination as shall inevitably disclose the delusions existing in the mind of a crafty lunatic; but in my own opinion it is always to be accomplished, provided sufficient time be allowed, and the examiner be not interrupted. It is not to be effected by directly selecting the subjects of his delusion, for he will immediately perceive the drift of such enquiries, and endeavour to evade, or pretend to disown them; the purpose is more effectually answered by leading him to the origin of his distemper and tracing down the consecutive series of his actions and association of ideas; _in going over the road where he has stumbled, he will infallibly trip again_.” There is, says _Dr. Male_,[532] a madness which shews itself in words, and another in actions; a lunatic may be coherent in conversation, but insane in conduct; he may be rational when under the restraint of a mad-house, but when released, and at liberty to act according to the impulse of his hallucination, will shew by his conduct that he is really insane.

Although it cannot be difficult to form a diagnosis between the ebullitions of passion, the extravagance of intoxication, or the delirium of fever, and the violence of deportment arising from insanity, yet it may in some cases be not easy to discriminate between this latter condition and that which is associated with excessive enthusiasm; nor is it always easy to discriminate between eccentricity and insanity; do we not, says _Dr. Male_, see a wretch disinherit his own children, who have committed no fault, and bestow his wealth upon a stranger? another who prefers poverty and rags, and communion with vagabonds, to the social intercourse and proffered kindness of his friends and relations? yet who shall pronounce them to be insane? that they are so, there can be no doubt, and their disease is perhaps of the most unfortunate character, for all their other actions being consistent with sound reason, it is difficult to convince a jury of their insanity, and to divest them of the power of heaping ruin upon their families, and disgrace upon themselves.

The bodily marks which distinguish the insane are, a peculiar cast of countenance, familiar to those versed in the malady; a quick, oftentimes protruded and glistening eye; the body is generally costive; in some cases the insane person is enabled to sustain cold with impunity, and he is insensible to the agency of ordinary stimuli; and the stomach and bowels, from deficiency of irritability, require large doses of medicine to move them; among the physical phenomena of insanity, _M. Esquirol_ observes that few are more constant or remarkable than want of sleep, and that peculiarly disagreeable odour from the body, as well as the excretions of the patients, which impregnates the clothes and bedding. They are devoured with a burning internal heat; and generally have a voracious appetite, and are afflicted with pain in some organ or part, especially the head, the chest, or the abdomen, which the unhappy sufferers are ready to attribute to the malevolence of their enemies.

In deciding upon that species of insanity which is termed _Melancholia_, we must be cautious in not confounding its symptoms with those of _Hypochondriasis_, which is to be regarded as strictly a bodily malady; the following remarks of _Dr. Cullen_ may tend to direct our judgment upon this interesting subject.

“Hypochondriasis I would consider as being always attended with dyspeptic symptoms; and though there may be, at the same time, an anxious melancholic fear, arising from these symptoms, yet while this fear is only a mistaken judgment with respect to the state of the person’s own health, and to the danger to be from thence apprehended, I would still consider the disease as hypochondriasis, and as distinct from the proper melancholia. But when an anxious fear and despondency arise from a mistaken judgment with respect to other circumstances than those of health, and more especially when the person is at the same time without any dyspeptic symptoms, every one will readily allow this to be a disease widely different from both dyspepsia and hypochondriasis.”

With respect to the phantoms[533] which occasionally appear to the hypochondriac, and are described by him as having all the semblance of reality, _Dr. Haslam_ remarks, that although a person may labour under a delusion, by seeing and hearing those things which do not exist, yet if his belief in their reality is not subscribed, but, on the contrary, he knows them to be delusions,

“A false creation, proceeding from the heat-oppressed brain,”

and he is persuaded that his perception is beguiled, no inference in favour of the existence of insanity ought to be deduced; if, however, he should believe in their reality, and commit an act in consequence of such a conviction, he may be justly considered insane—_it is the belief that, physiologically, constitutes the disorder_.

Q. 2. _Whether the symptoms are of such a nature as to suffer the individual, with propriety, to retain his liberty, and enjoy his property?_

We have already offered some observations upon this point, (_page_ 302); the medical practitioner in delivering an opinion that may involve the liberty of the person, cannot well be too guarded in his evidence. As each case must rest upon its own merits, the subject scarcely admits of any general elucidation beyond that which we have already endeavoured to bestow, and the plan of our work must of necessity preclude the more minute details. We must, however, here observe, that coercion should never be employed but as a protecting restraint—to guard the patient from doing mischief to himself, or offering violence to others; and for this purpose the straight-waistcoat is generally sufficient: formerly, coercion was employed with a degree of severity that amounted to vindictive punishment, recourse was even had to the whip, and stripes were actually inflicted by medical direction; while asylums for the reception of the insane, were considered as prisons for safe custody and punishment, rather than as hospitals for the treatment and cure of this most dreadful malady.

Q. 3. _Whether there has been any lucid interval, and of what duration?_

This is a question which a medical witness is always called upon to answer. By the term _lucid interval_, we are not to understand a _remission_ of the malady, but a total suspension of it—a complete, although only a temporary, restoration of reason. The question is generally beset with difficulties, and requires all the penetration and experience of the physician to arrive at a safe conclusion; for in many cases the patient is enabled for a limited period to converse rationally, and where he is desirous of carrying any particular plan into execution, to dissemble so completely as to impose with success upon his attendants; of which the following case, related by Dr. _Haslam_,[534] may serve as an excellent illustration. “A lunatic having received, or fancied he had received, an injury from his keeper, at the lunatic asylum at Manchester, threatened to be revenged, for which he was punished by confinement; he was afterwards a patient in Bethlem hospital, and gave _Dr. Haslam_ an account of the transaction, of which the following is an abbreviation. ‘Not liking this situation, I was induced to play the hypocrite; I pretended extreme sorrow for having threatened him, and, by an affectation of repentance, induced him to release me; for several days I paid him great attention, and lent him every assistance; he seemed much pleased with the flattery, and became very friendly in his behaviour towards me; going one day into the kitchen, where his wife was busied, I saw a knife; this was too great a temptation to be resisted; I concealed it, and carried it about with me; for some time afterwards the same friendly intercourse was maintained between us, but as he was one day unlocking his garden door, I seized the opportunity and plunged this knife, up to the hilt, in his back.’” There is a species of insanity which has been called _intermittent_, in which the patient is perfectly rational for a considerable interval; the malady often recurs two or three times in a year, and lasts several weeks, the subject of the hallucination being always the same.[535]

Q. 4. _Whether there is a probable chance of recovery; and in case of convalescence, whether the cure is likely to be permanent?_

The _prognosis_, or means of ascertaining the probable event of mental derangement, is founded on the consideration of many different circumstances, such as the particular modification of the malady; the violence of the symptoms; the duration and frequency of the attack; its causes; the age, sex, constitutional temperament, and hereditary dispositions of the affected individual; the general state of his health; and the particular nature of his bodily maladies; upon each of which we shall offer a few observations.[536] It has been remarked that those affected with furious mania recover in a larger proportion than those who suffer under the depressing influence of melancholy, but that when the maniacal and melancholic states alternate, the hope of recovery is farther diminished. The probability of cure is also more or less, according to the duration of the disease; when, however, it has acquired a systematic character, it becomes very difficult to remove it, so that after it has continued upwards of a year, patients at public asylums, as in Bethlem and Saint Luke’s, are pronounced incurable, and treated accordingly. In considering the causes of mania, we must class them in two divisions—_Predisposing_, and _Exciting_. Among the former of these causes stand _hereditary predisposition_; _injuries of the brain_; (these also belong to the class of exciting causes); _certain bodily diseases_; and a _peculiar temperament_. Among the latter we may first enumerate those of a PHYSICAL nature, as _frequent intoxication_; _fever_; _mercurial medicines_, largely administered; _the suppression of periodical or occasional discharges and secretions_; _parturition_; _injuries to the head from external violence_, _&c._ The MORAL causes include those emotions which are conceived to originate from the mind itself, and which, from their excess, tend to distort the natural feelings; or, from their repeated accessions, and unrestrained indulgence, at length overthrow the barriers of reason and established opinion; such are the _gusts of violent passion_, and the _protracted indulgence of grief_; the _terror_ impressed by erroneous views of religion; the _degradation of pride_; _disappointment in love_; and _sudden fright_.

Of Hereditary disposition we may observe, that there does not appear to be any malady more obviously dependant upon its influence than that of madness[537]; for even if one generation escape, the taint is presumed to cling to the succeeding branches until, either by admixture with a purer stock, or by education or management, it is neutralized or drained away. In forming a prognosis it therefore becomes the first object of inquiry, whether any branch of the patient’s family has ever manifested any symptoms of the disease; for where this is made out, our expectations of permanent recovery must be slender; and even should the patient become convalescent, he will be liable to a relapse from every fresh exposure to the exciting causes. Injuries about the head may be considered as both the predisposing and exciting causes of insanity; for a fracture of the cranium has been known to produce disorder in persons who had never betrayed the least obliquity previous to the accident, and whose families had never manifested the slightest disposition to the malady. Although mental derangement has been observed in persons of every habit and temperament, yet there is certainly a complexion which may be said to predominate in these cases; _Dr. Haslam_, for instance, has stated, that out of 265 patients in Bethlem hospital, 205 were found to be of a swarthy complexion, with dark or black hair; the remaining 60 having a fair skin, and light brown or red hair. Among the most powerful exciting causes of derangement of intellect in those predisposed to the malady are to be classed the moral causes which produce mental distress and uneasiness; at the eventful era of the French revolution, and for some years after, the lunatic establishments of France were inundated by its victims; and _Dr. Burrows_ observes, that the annals of insanity will satisfactorily shew that there never was, in any country, a sudden increment of insane persons, without some powerful and evident excitation, physical, moral, theological, or political.[538] I have, says _Zimmerman_,[539] had occasion to see all the great hospitals in Paris, and have distinguished in them three kinds of maniacs: the men who had become so through pride; the girls through love; and the women through jealousy.

The use of ardent spirits or wine to a person predisposed to insanity, is always dangerous; under the same circumstances a long course of mercurial remedies has been found mischievous. The suppression of accustomed evacuations is also a frequent cause of mania, and the restoration of them not unfrequently removes the mental affection. Where there is in women an hereditary disposition to mania, it is frequently called into action immediately after parturition; in such cases, the prognosis is favourable;[540] on the other hand, it has been remarked that in our climate, women are more frequently affected with insanity than men; and it has been considered very unfavourable to recovery, if they should be worse at the period of menstruation, or have their catamenia in very small or immoderate quantities. We have already noticed local injuries of the head among the predisposing causes; we may also observe in this place, that they not unfrequently prove an exciting one; in the case of _Hadfield_ the insanity was occasioned by a blow on the skull. DISSECTION has thrown little or no light on the pathology of insanity; it must be admitted that a peculiar structure of the brain will predispose to madness, but there may exist many alterations in the structure of these parts too minute for the eye to observe, or the scalpel to expose. In some cases, however, the brain of the maniac displays an obvious deviation from the healthy appearances, as we learn from the testimonies of _Chiarugi_ in Italy, _Greding_ in Germany, and from _Dr. Haslam’s_ work in this country. The more general appearances would seem to consist in excessive determination of blood to the brain, with enlargement of its vessels; and effusion of fluids into its cavities; the membranes of the brain have also been found variously altered from their healthy state; ossifications have been observed on the _dura mater_; the _tunica arachnoidea_ has appeared thickened, and more or less opaque; and the _pia mater_ has not unfrequently appeared inflamed and turgid with blood; besides which _Dr. Haslam_ has recorded an appearance of air in the vessels of this membrane; nor is it uncommon to discover effusions of a watery fluid between these membranes. The medullary substance, when cut into, has seemed to contain more blood than usual; the consistence of the branular mass has moreover been stated, by different anatomists, to recede from its natural state in cases of insanity. _Bonetus_, in his _Sepulchret. Anatom._ has asserted that the brain of maniacs is so dry and friable that it may almost be rubbed into powder; but with respect to this we are disposed to doubt. _Morgagni_,[541] however, tells us that he has generally found the brain of such persons of considerable hardness; and _Mr. John Hunter_ has found it so tough as even to exhibit some degree of elasticity; _Dr. Baillie_ has also remarked, that when these changes take place in the brain, the mind is at the same time deranged, there being either mania, or lethargy, or the person is much subject to convulsive paroxysms. Other cases might be adduced in which the brain was found on dissection to have a consistence preternaturally soft. With regard to these phenomena, the experienced anatomist will readily coincide with _Pinel_, that although they may occur in the brain of the maniac, yet that they have frequently been found where no mental affection had ever betrayed itself; in addition to which we may remark that it does not necessarily follow that the morbid appearances disclosed by dissection had existed during the progress of the malady; it has been very truly observed by an intelligent reviewer,[542] that a person may have, for ten years, frequent attacks of epilepsy; he may become at last maniacal, and die comatose. Upon dissection, marks of inflammation and of serous effusion are observed in the brain and its membranes; but can we suppose that any such lesion of structure existed during even the latter half of the epileptic state?

OF NUISANCES, LEGALLY, MEDICALLY, AND CHEMICALLY CONSIDERED.

There are in law many kinds of nuisance; but we shall confine ourselves to the consideration of those only which can be made the subject of medical or chemical investigation; these are such as are directly or indirectly detrimental to health, whether general or individual; or are destructive to comfort; or injurious to property: obstructions to the free course of air, light, and water, volumes of smoke, and noisome smells fall under the two first descriptions, while the fumes of some manufactures combine every species of annoyance.

The question, how far the salubrity of the atmosphere may be affected by the effluvia of particular manufactories, is one that the medical practitioner is often called upon to decide; and upon such an occasion let him beware that his judgment be not swayed by the fastidiousness of the surrounding inhabitants, nor warped by the clamours of invidious rivals or interested opponents; as a man of science and integrity he is called upon to decide between two parties equally valuable to the state,—between the health and comfort of the citizen, and the prosperity of the manufacturer.

The manufactories and occupations which have been considered exceptionable, for reasons to be hereafter enumerated, may be arranged under four divisions, viz.

1. _Those, during whose operation gaseous effluvia, the products of_ PUTREFACTION _or_ FERMENTATION, _escape into the atmosphere, and are either noxious from their effects upon animals, or insufferable from the noisomeness of their smell_: such as the steeping of flax, and hemp; (1) the manufacture of catgut; slaughter-houses; starch manufactories (2); tanneries (3); the feeding of swine; and the several occupations of horse slaughterers (4); skinners; fell-mongers; curriers, &c. &c.

II. _Those, where, by the_ ACTION OF FIRE, _various principles are evolved, and diffused in the form of vapour, or gas; the inhalation of which is not only disagreeable to the senses, but injurious to the health_; as the process of brewing (5); the formation of various acids (6); the incineration of animal substances, as practised by the manufacturers of hartshorn; Prussian blue (7) makers; roasters of horn for lanthorns (8); glue manufacturers; varnish makers (9); soap boilers(10), and renderers of tallow (11); smelting houses (12); gasworks; brick kilns; turpentine distillers, and rosin makers, &c. &c.

III. _Those, which are capable of yielding waste liquids, that poison the neighbouring springs and streams_, as gas works (13); starch manufactories; dying-houses, &c. &c.

IV. _Those trades, whose pursuit is necessarily accompanied with great noises_, as those of copper-smiths; anchor-makers; gold-beaters; tin-men; trunk-makers; proof-houses, (where cannons are proved); the tilting of steel; forging bar iron; flatting-mills;[543] &c. &c.

Against these nuisances there are various remedies: by action or indictment at law, by injunction in equity, and sometimes by the summary abatement of the party injured.

If the injury be general (_ad commune nocumentum omnium ligeorum_) the proper remedy is by indictment, 1 _Inst._ 56, 3 _Bl. Com._ 219, 4 _Bl. Com._ 167; and an indictment will lie even though there be another remedy or punishment by act of parliament, as for keeping swine in London, 2 _Will. and Ma. Sess._ 2, _c._ 8, § 20; _Regina v. Wigg_; 2 _Salk._ 460; _Ld. Raym._ 1163. But it is otherwise of an _offence created_ by statute, then the remedy must be in the form prescribed by the statute.

Though indictment is a suit of the crown, and a general pardon will excuse the fine inflicted on conviction for a nuisance, it will not prevent the abatement of it. _Rex et Regina_ v. _Wilcox_, 2 _Salk._ 458; see also _Dewell_ v. _Sanders_, cited 16 _Vin. Abr._ 42, 45.

But if the nuisance be not general, but particular, then an indictment will not lie; yet the individual aggrieved may have his action on the case, 3 _Bl. Com._ 220; _Bull. N.P._ 26; _Esp. N.P._ 635. Individuals also are in some cases permitted of themselves to abate a nuisance, 3 _Bl. Com._ 5; _Lodie_ v. _Arnold_; 2 _Salk._ 458; 16 _Vin._ 40. In _Rex_ v. _Rosewell_, only a small fine was set upon the defendant convicted on indictment of a riot, committed while pulling down some part of a house, it being a nuisance to his lights; see case 2 _Salk._ 459, and authorities there cited; also _Rosewell_ v. _Prior_, _ib._ 460; but contra, see cases where they may not; _Lord Mansfield’s_ judgment in _Cooper_ v. _Marshall_, 1 _Bur._ 259.

The old writs, the assize of nuisance, F. N. B. 183, and _Quod permittat prosternare_, F. N. B. 124, _Palmer_ v. _Poultney_, 2 _Salk._ 458, are now out of use, but might be resorted to on an extreme occasion, 3 _Bl. Com._ 220.

Courts of Equity will also interpose by injunction in cases of nuisance, to restrain and prevent an injury for which courts of law, in many cases, could not give an adequate compensation, 1 _Fonb. Tr. Eq._ 31; _Coulson_ v. _White_; 3 _Atk._ 21; _Atty. Gen._ v. _Doughty_, 2 _Ves._ 453. And though the Court of Chancery, on application to have an assumed nuisance (as a mill-dam which had been destroyed) restored to its original state, has refused an injunction; yet to accelerate the determination of the right it has directed the defendant to bring an action of trespass, and every thing to be admitted on both sides necessary for trying the mere right. _Birch_ v. _Sir Lyster Holt_; 3 _Atk._ 725; 2 _Ves._ 414; on this principle see also _Lord Teynham_ v. _Herbert_, 2 _Atk._ 483, and cases there.

Noxious, dangerous, or highly disagreeable trades and manufactures are nuisances, except when exercised in accustomed places;[546] thus an ancient brewery[547] though in the midst of a populous town, is no actionable nuisance, 2 _Lil. Abr._ 246; _Jones_ v. _Powell; Palm._ 536; _Hutt._ 153; because it shall be supposed to have been erected when there were no buildings near; but if a brewery or glass-house (_Rex et Regina_ v. _Wilcox_, 2 _Salk._ 458) be newly erected, it is a nuisance, 1 _Hawk. Pl._ 199; _Jones_ v. _Powell_, _Hutton_ 135, for the smoke is at least destructive of comfort and may be injurious to health; much more then is a smelting-house a nuisance when, in addition to dense and continued volumes of smoke, the poisonous fumes of sulphur, lead, antimony, and arsenic, not only taint the atmosphere, but so affect vegetation as either to destroy it altogether or poison the cattle that feed upon the adjacent herbage; or where the vapours injure fruit trees, 4 _Ed._ 3, and 4 _as. pla._ 3, cited in a pamphlet A. D. 1639 in Serjeant _Hill’s_ collection of law pamphlets, vol. 5; see also 1 _Roll. Abr._ 89; 1 _Burr. R._ 260. Now though the business of smelting is highly necessary, and it may appear hard to restrain a man from making the most profitable use of his lands and premises, yet public health is of primary importance,[548] and these maxims of law must ever be remembered: _Prohibetur ne quis faciat in suo, quod nocere possit alieno: et sic utere tuo ut alienum non lædas. Palm._ 536; 9 _Co. Rep._ 58.

Next to the fumes of metallic poisons we may rank the vapours of sulphuric, nitric, muriatic, and other acids, when carelessly prepared in large quantities, _Rex_ v. _White and Ward, Burr._ 333.

It was said to be no nuisance to a neighbourhood for a butcher or chandler (_Rankett’s_ case) to set up their trades among them; but it may be by such or other tradesmen (as a dyer, _Hutt._ 136) laying stinking heaps at their doors; in other cases the necessity of the thing shall dispense with the noisomeness of it.[549] _Jacobs’ Law Dict. tit._ Nuisance; 2 _Rolle’s Abr._ 139. But query, how the necessity is to be proved? for though the sale of meat and candles be necessary in a town, the one need not be slaughtered, nor the other manufactured among ordinary dwelling houses; the one is offensive to the feelings of humanity and disgusting to the senses, the other is so disagreeable to the olfactory nerves, that few persons can pass a tallow-chandlers on a melting-day without experiencing some degree of nausea.

In all the best regulated cities of Europe the slaughter-houses are confined to particular situations, generally without the walls;[550] the general neatness and propriety of English towns leave little to be derived from foreign example, but in this instance we are defective. Some years since, a pamphlet was published against the nuisance of street butchers, but evidently without effect; perhaps the mere vending of meat in open shops may not be attended with any evil sufficient to counter-balance the convenience; but where the beasts are also slaughtered in ordinary situations, the nuisance is very considerable, and in many instances likely to be injurious to the health of the neighbourhood; for though the nuisance is not so apparent in some of the streets as before the act of the _57th Geo._ 3,[551] yet the accumulation of filth behind the houses is likely to be the greater from the very circumstance of its being remote from public observation.

Though in making these observations we recommend general markets, and selected situations, for the exercise of particular trades, rather than that they should be dispersed throughout the town; yet we must observe, that unless these districts are made the subject of peculiar regulation, the public evil might be encreased in intensity by accumulation, much more than it had been diminished by segregation. In places for the sale of animal food cleanliness is very generally attended to, as a contrary practice would greatly increase the tendency to putrefaction; self-interest is here the best possible guard against nuisance, but this motive does not so immediately apply to other cases,[552] and we accordingly occasionally observe the utmost disregard of public convenience in the conduct of many disgusting manufactures.

The dictum of _Rolle_ that usefulness shall dispense with noisomness has, however, been broken in upon by many more modern decisions; in _Morley_ v. _Pragnel, Cro. Car._ 510, an innkeeper brought an action against the defendant for erecting a tallow-furnace so near his inn that many of his guests left the house, and he recovered damages for the injury; _Tohayle’s_ case was then quoted; he had erected a tallow-furnace in the Strand, which, on indictment, was ordered to be abated, (see also 1 _Hawk. P. C._ 463 where _Rolle’s_ doctrine is questioned.)

As to the physical effect of each particular species of bad smell, there may always be some doubt, and much contrariety of evidence is to be expected; this however is certain, that those stenches which may be innocuous to persons in full health, are by no means so to invalids or persons of irritable nerves or stomachs; and to pregnant women they are generally allowed to be dangerous.[553]

Habit has also a powerful operation in diminishing the deleterious effects of such effluvia; instances daily occur in which the fumes of certain manufactories affect strangers in the most violent degree, while the artisans engaged in the occupations which produce them; or the persons accustomed from their residence to the full force of their influence, scarcely experience any inconvenience; nay, in some cases, they would even seem to derive a degree of benefit from such an atmosphere, and to suffer whenever they quitted it;[554] like the criminal recorded by Sanctorius, who fell sick when taken out of an infected dungeon, and did not recover until he had been returned into the impure air to which he had been so long habituated. We apprehend that the history of the French bastile would furnish the physiologist with some extraordinary illustrations of the power of habit over the functions of the body. We introduce these remarks for the purpose of shewing, that persons immediately engaged in an indictable manufactory, are not only morally, but physically, incompetent to give evidence in proof of the extent of the mischief it may create: in addition to which it must not be forgotten, that in those works in which are carried on the fusion and volatilization of metals, the workmen employed in the interior of the building escape the deleterious fumes which pass up the flues, and spread desolation over the surrounding district. These views will moreover enable us on many occasions to reconcile the conflicting testimony which is so often given on trials of nuisance, without in the least impeaching the veracity or sincerity of the individual witnesses engaged in the contest.

But for the purposes of legal redress it is not necessary that the smell should be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable: see _Lord Mansfield’s_ judgment in _Rex_ v. _White and Ward_, 1 _Burr. R._ 333; so in _Aldred’s_ case, 9 _Co. Rep._ 57, which was for keeping hogs; _Regina_ v. _Wigg_, 2 _Salk._ 460, 2 _Lord Raym._ 1163. In _Street_ v. _Tugwell_, for keeping seven pointers close to the plaintiff’s house, whereby he was annoyed by the noise and smell, the jury found for the defendant; and though _Lord Kenyon_ would not grant a new trial, he said another action might be brought for the continuance. _Mic. Term_, 41 _Geo._ 3; 2 _Selw. Ab._ 1006.

Though the obstruction[555] of a fine prospect is no nuisance (_Aldred’s_ case, 9 _Pep._ 58; 3 _Salk._ 247, 459; _Attorney Gen._ at the relation of _Gray’s Inn Society_ v. _Doughty_, 2 _Ves._ 453) yet as an action lies for hindering the wholesome air, 9 _Rep._ 58, query whether building a house across the end of a street, whereby it becomes less wholesome, whether by want of air or by stagnation of damp vapours, is or is not a nuisance? and whether actionable or indictable. For though the rule originally laid down as to indictable nuisances is, that they must be _ad commune nocumentum omnium ligeorum_, yet if it be to the injury of a great many, as to the inhabitants of a whole street, that is enough; _Rex_ v. _Roupel_; K. B. Kingston Assizes, 59 _Geo._ 3; and _Sir Ed. Coke_ says, “there is a writ in the register necessary to be put in execution for the wholesomeness of the air in London, and all other cities.” _De vicis et venellis mutandis_, 4 _Inst._ 252.

The abatement of those nuisances which affect the atmosphere is of the highest importance, for it is not optional what air we shall breathe; and next to them we may rank those which affect running streams or other waters.

“Lourlulary, or lourgary, is an offence when any cast any corrupt thing appoisoning the waters in or about _London_, compounded of these two words _lour_ corruption, and _laron_ a thief or felon, and if any die by reason of such offence within a year after, it is felony; and extendeth to all other cities.” Burgs. &c. 4 _Inst._ 252; (see also 8 _Geo._ 1, _c._ 26, and several modern paving acts.) And by an old statute 12 R. 2, _c._ 13, which if it be (as asserted) obsolete, well deserves to be revived in some form, none shall cast any garbage, dung, or filth, into ditches, waters, or other places within or near any city or town, on pain of punishment by the _Lord Chancellor_!! at discretion!! as a nuisance. The jurisdiction has been rather strangely given according to modern notions, but the provision of the act appears to be wise, and might even now be useful.

To steep stinking sheep-skins (2 _Strange_ 686) or other noxious, noisome, or poisonous thing is indictable. It is a nuisance, for which an action will lie, to erect a lime-kiln[556] so near a fish-pond that it infects the water, and the fish die, or to make a drain which brings in unwholesome food to them, 16 _Vin. Abr._ 33;[557] and if it be on a navigable river it is indictable, as in the recent case of the _King_ at the relation of the city of _London_, conservators of the _Thames_ against _Munroe_ and _Evans_, proprietors of certain gass-works, the refuse from which being discharged into the river is said to have destroyed the fish;[558] the defendants were found guilty. _Croydon Assizes_, 1821.

Noises, whether by day (_Tenant_ v. _Jones_ K. B. Feb. 15, 1821) or by night (_Rex_ v. _Smith_, 2 Str. 704) are nuisances, for these not only render life uncomfortable, but are prejudicial to the health of invalids; there is a case in equity where an agreement not to toll a church-bell was enforced by injunction.

But it is said the fears of mankind, however reasonable, will not create a nuisance; therefore it is no nuisance to erect a building for the purposes of inoculation, (_Jac. Law Dict. Anon Dec._ 18, 1752; 3 _Atk._ 21, 720, 750.) In this case a motion was made for an injunction to stay the building of a house for the purpose of inoculating for the small-pox in Cold Bath Fields; for the motion the following cases and authorities were cited, 2 _Roll. Abr._ 139, (the case of _Browne_ for dividing a messuage) _Hawk. Pl. c._ 75, _s._ 11; 1 _Lutw._ 169. But _Lord Hardwicke_ said, that upon an indictment of that kind there had been lately an acquittal at Rye, and refused the injunction.

This decision does not appear to be reconcileable with the cases and statutes respecting the keeping of gunpowder,[559] which is a nuisance by the reasonable fears of possible danger, (_Rex_ v. _Taylor_, 2 _Str._ 1167, 1169.) So also it was a nuisance, indictable, to divide a house in a town for poor people to inhabit in, by reason whereof it will be more dangerous in the time of sickness and infection of the plague, (2 _Roll. Abr._ 139); and this possible evil has often been realised in the obscurer parts of _London_ in cases of typhus, and more frequently in the liberty of _Dublin_ where the narrowness of the streets, and the alleged operation of the window-tax have excluded the possibility of proper ventilation. It is therefore more reasonable to suppose that the utility of the establishment in question in the above cited case, and the comparative openness of the situation prevailed over the fear of possible risk, and that the principal objection was the exercise of the summary jurisdiction of a court of equity in a matter more properly triable at law, rather than from an opinion that a receptacle for highly infectious diseases in a populous neighbourhood was not a nuisance.

But if the disorders for which it is open be not highly infectious, an hospital is certainly no nuisance. In the case of _Rex_ v. _Mac Donald_, 3 _Burr. L._ 1645, it was moved that an indictment against the defendant, for converting his house into an hospital for taking in and delivering lewd, idle, and disorderly unmarried women, should be quashed; _Lord Mansfield_ took notice of the narrow principles of the prosecutors, (the parish, for that they were thereby burthened with bastards) and expressed his surprise how such a bill could ever be found, asking “by what law is it criminal to deliver a woman when she is with child.”

Whether a new comer can have an action for a nuisance has been doubted, for it was his own act that he came into the neighbourhood, and _volenti non fit injuria_; but on the other hand see _Westborn_ v. _Mordaunt, Cro. Eliz._ 191; 2 _Leon._ pl. 129, p. 103; Espin. N. P. 637; and if a man come into possession of the premises by descent, or operation of law, or a clergyman to his parsonage, it would appear that he may at any rate have his action.

It must be observed that every continuance of a nuisance is held to be a fresh one, and therefore a fresh action will lie; and very exemplary damages will probably be given, if after one verdict against him the defendant has the hardiness to continue it; (_Westborn_ v. _Mordaunt_, 2 _Leon. pl._ 121; _Beswick_ v. _Cunden Hill, Cro. Eliz._ 402; _Bull_, _N. P._ 75; _Espin, N. P._ 637). And it is a continuance, though the premises constituting the nuisance be let to an under-tenant subsequently to the verdict against the first tenant for years for the erection, for he transferred it with the original wrong, and his demise affirms the continuance of it; he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions. _Rosewell_ v. _Prior_, 2 _Salk._ 460, and cases there.

There are other things which may be called nuisances in transitu, such as the removal of night-soil, garbage, soap boilers-lees, (the waste lees are the residual liquor after soap-boiling), and other very stinking refuse; all these should be restrained (as some already are) to certain hours of the night.

OF IMPOSITIONS.

Under this head we shall comprehend the subject of _Feigned Diseases_, and that of the _Adulterations of Food_.

FEIGNED, or SIMULATED DISEASES.

There are several objects, for the accomplishment of which persons are induced to simulate the existence of disease; such as, for obtaining military exemptions and discharges; or certain civil disqualifications; for the purpose of deriving parochial relief, or pecuniary assistance from benefit societies; or the comfortable shelter and retreat of an hospital; for exciting compassion and obtaining alms; for creating public interest and curiosity; for procuring release from confinement, or exemption from punishment; and, lastly, for the dishonest intention of recovering unjust compensation from some person selected for accusation, as the author of the pretended calamity.

The subject has been very ably treated by different authors on Medical Jurisprudence, especially by _Mahon_ and _Foderé_, whose opportunities for observation during the severe operation of the conscription laws, must have been numerous and instructive; in our own country the work of _Dr. Hennen_, on the principles of Military Surgery, will be found to contain some very valuable information upon the detection of such impostures.

The diseases which have been selected for the accomplishment of any of the purposes above enumerated are extremely numerous, although there are some few which may be said to be more generally preferred on such occasions.

In general the medical enquirer will not have much difficulty in detecting such impositions; although there are cases where the investigation becomes a subject of extreme delicacy and importance, as in those of persons reporting themselves sick, and unfit for military service, or _Malingerers_, as they are technically called. It must be confessed that there is a degree of _eclat_ attending the detection of a fraud, which is very likely to lead the practitioner astray, by inducing him to attach undue importance to the supposed proofs of guilt; such cases have unfortunately occurred, and the innocence of the party has been compromised by the vanity of the inquisitor.

Whenever the suspicions of a medical person are excited with respect to the sincerity of a patient’s account, he should always endeavour to conceal them; he should become himself a dissembler, “_superare malitiam malitia_,” for while the impostor is persuaded that the medical attendant is his dupe, he will be less on his guard; he should then be desired to describe with minuteness every symptom and circumstance of his malady; he should be questioned as to its origin, progress, and duration, its seat, and intensity, and the effects produced upon it by remedies; few impostors will be able to withstand such interrogatories without tripping; they will soon betray some incongruity in their statements, and enable the pathologist to elicit the truth. A girl of seventeen counterfeited epilepsy so well in the general hospital of Montpellier, as to elude all suspicion, until _M. de Sauvages_ who being less credulous asked her whether she had not felt an air pass from the hand to the shoulder, and from the shoulder to the thigh, when, upon her replying in the affirmative, he ordered her to be whipped, after which she had never any return of the disease. If a patient complains of a long protracted disease, which has rendered his life uncomfortable, and we at the same time perceive that his body has not undergone emaciation, we are naturally led to suspect the truth of his statement; and we shall find little difficulty in verifying, or dispelling our suspicions; nor ought we to forget, in an inquiry of this nature, to learn whether the patient has in truth ever flown to any remedy for relief; for if he be an impostor, however cheerfully he may have appeared to submit to medical discipline, we shall find upon minute examination that he has uniformly neglected every plan proposed for his cure. _Galen_ was, from a circumstance of this kind, led to the detection of a person who feigned a fit of cholic, in order to avoid attending a public assembly, but he was observed to neglect the remedy (_Philonium_) which had uniformly relieved him, when labouring under the actual attack of the disease to which he was in reality subject. We should, moreover, be informed respecting the previous character, habits, constitution, and former complaints of the suspected invalid; and we should learn the ostensible reasons which the individual in question may have for feigning ill health, whether for temporary or permanent purposes. The inspections should be conducted in private, for it has been remarked by those most experienced in these subjects, that the number of spectators always increases the obstinacy of the impostor.

When the more ordinary modes of investigation have failed in leading to the detection of an imposture, of whose existence we entertain but little doubt, we may proceed to a system of intimidation, and to severe discipline; few impostors, however sturdy, can withstand the cravings of hunger, blistering, the affusions of cold water, and above all a continual nausea from the administration of divided doses of _Tartarized Antimony_; and yet exceptions of an extraordinary kind might be adduced; “I have seen an instance,” says _Dr. Hennen_,[560] “where the patient admitted of all the preparatory measures of amputation before he thought proper to relax his knee joint;” the same author also relates the case of a dragoon who bore very severe riding-school duty for some weeks, secured to his horse, before he could be brought to acknowledge that his chronic rheumatism was assumed. _Mahon_[561] records a very extraordinary instance of a conscript, who feigned blindness, and baffled every attempt to detect the imposition; he was even placed on the margin of a river, and desired to go forward, which he did, and fell into the stream; he was however, without doubt, aware that boats were provided for his safety, for after having received his discharge, he freely acknowledged the imposition which he had practised.

Having offered these general remarks, we shall proceed to consider the particular diseases more usually counterfeited, and the modes best calculated for their detection; although we must here observe, that after all that can be said upon the subject, each case will require an exertion of ingenuity for its detection, for which no previous instruction can ever provide.

INSANITY has in all ages been feigned for the accomplishment of particular objects; we read of its having been thus simulated by David, Ulysses, and Lucius Brutus; the observations which we have already made upon the subject of imputed insanity, will suggest to the medical inquirer a plan of examination most likely to lead to a just conclusion. In general the detection of such an imposture will not be difficult; the feigned maniac never willingly looks his examiner in the face, and if his eye can be fixed, the changes in his countenance, on being accused, will be strongly indicative of his real state of mind; it is moreover, very difficult to imitate the habits of a lunatic for any length of time, and to forego sleep; an insane person generally sleeps but little, and talks much during the night, but the pretender, if he thinks he is not watched, will sleep, and only act his part when he believes his conduct to be observed.

SOMNOLENCY. This is a state of body which the sturdy impostor has in several instances assumed; he pretends to be in a state incapable of any muscular motion; he is constantly in bed, retaining that posture in which his limbs are placed, or may happen to fall; his great aim is to appear unconscious of the external world; the interesting case of this kind related by _Dr. Hennen_[562] must be considered as the master-piece of imposture. A person of the name of _Drake_, in the Royal African Corps, assumed an appearance of total insensibility, under which he resisted every kind of treatment; he resisted the shower bath as well as shocks of electricity; but on a proposal being uttered in his presence to apply the actual cautery, his pulse rose; and on preparations being made to remove him to Bethlem hospital, an amendment soon manifested itself.

SYNCOPE. It seems probable that certain persons have possessed a controlling power over the action of the heart; _Dr. Cleghorn_, of Glasgow, mentions in his lectures the case of a person whom he knew, who could feign death, and had so completely the power of suspending, or at least, moderating the action of the heart, that its pulsation could not be felt; this man, it appears, some years afterwards, died suddenly. The story of _Colonel Townshend_ is well known, who, in the presence of _Dr. Cheyne_ and some other physicians, put on all the appearance of death, and was resuscitated of his own accord; in this instance it is said that neither pulse nor respiration could be perceived for more than half an hour; he, however, actually died on the same evening.

_Dr. Hennen_ relates a most interesting case of violent palpitation of the heart, which was produced by the man’s own efforts. _Dr. Hennen_ found that he could at any time render the affection very imperfect by throwing the patient’s head well back, so as to destroy that voluntary combination of muscular action, which he believes to have produced the palpitation; “we must suppose,” says he, “that this person had the power of throwing the muscles which narrow the chest into sudden and strong action, at the moment when the apex of the heart made its stroke upwards;” after a serious admonition, _Dr. Hennen_ sent the man back to his duty, and as he afterwards remained without any murmur or complaint, we must consider his obedience as a tacit acknowledgment of his guilt. Some persons have pretended that they have no pulsation at the wrist, and they occasion its cessation by pressure on the artery, or by taking a full inspiration, and continuing to retain the breath as long as possible.[563]

EPILEPSY. There is perhaps no disease that has been more frequently simulated with success; its characters, and mode of attack, offer great facilities for the impostor; it does not require the unremitting caution which other maladies exact for successful imitation, nor is it necessary, as _Dr. Smith_ observes, to assume it but at convenient times; it being perfectly consistent with the nature of the disorder to be quite well in the intervals, which may be longer or shorter at the impostor’s pleasure; during the feigned attack, the blood is generally sucked from the gums, and the mouth made to froth by chewing soap;[564] there is, however, one symptom of the disease which cannot be imitated—the incontractility of the pupil of the eye, on exposure to light, which in a real fit of epilepsy is always dilated and immoveable; nor is the patient affected by rubbing stimulants on the nose. During these feigned convulsions impostors have often suffered the most flagrant liberties to be taken with their persons, without betraying the least consciousness of what was going on, such as having pins and needles run into different parts of their bodies; this fact admits, in some degree, of physiological explanation; compression on the muscles, by acting on their nervous filaments, or by some unknown influence on the distribution of nervous energy, renders them less sensible in proportion as they become contracted; wounds are thus often inflicted in the field of battle which are scarcely felt during a desperate conflict, on account of the high muscular energy of the part which is in force at the time; indeed it may be satisfactorily shewn that convulsions, or inordinate muscular contractions, are in themselves instinctive efforts to diminish pain.

HYSTERIA. On account of the variety and mutability of the symptoms which characterise this affection, but little skill is required for its simulation. _Dr. Cullen_ is said[565] to have been deceived by a man who, pretending to be affected with this disease, was retained in the Edinburgh Infirmary as long as suited his convenience, and afterwards triumphantly acknowledged the deceit; affusion of cold water, low diet, and blisters, will generally furnish the means of detection.

The SHAKING PALSY is a frequent plea on the part of an idle beggar; and is always suspicious, especially where the person appears to be in other respects, in an ordinary state of vigour; this ingenious order of mendicants, however, says _Dr. Gordon Smith_,[566] understands the art of mimicking wretchedness too well not to have the details of their appearance in some degree of keeping.

Before we quit the subject of spasmodic diseases, it is essential to remark that, owing to circumstances and peculiarities of temperament, these diseases assume, on certain occasions, and in particular individuals, an extravagance of character which might create a suspicion of their being feigned. _Lord Monboddo_, in his “Ancient Metaphysics,” mentions an extraordinary case of what he calls “jumping ague,” in which the person affected would jump on chairs and tables, and run with great velocity during sleep. _Sir John Sinclair_, in his Statistical account of Scotland, relates also many well authenticated histories of the same disease, and in some parts of Forfarshire it is said to be extremely common; and there is reason to believe that it may be propagated by a species of sympathy; numerous are the instances[567] on record, where the accidental sight of a patient, suffering an epileptic attack, has immediately occasioned a similar attack on the spectator; so that epilepsy has been supposed to be sometimes communicable from one person to another, nearly in the same manner as has been observed of the action of yawning; and agreeably to a notion alluded to by the poet—

“Dum spectant oculi læsos, lædunter et ipsi.”

Similar spasmodic diseases have been occasioned by religious enthusiasm, and propagated by sympathy, have become in a very wonderful manner epidemic;[568] in such cases, although we must consider those in whom the affection originated as designing impostors, we are bound to acquit the general mass of sufferers of any blame, except that which may attach to excessive credulity.[569]

FEVER. The state of the system after a night’s debauch may deceive a person unaccustomed to such inspections. Emetics have also been taken with the same view, and the face has been exposed to the fumes of sulphur. _Foderé_ likewise states that paleness has been induced by smoking _Cummin seeds_;[570] and we have heard that a paroxysm of fever may be excited and kept up by the introduction of a clove of garlic into the rectum. _Dr. Hennen_ says that he has seen many attempts to simulate fever by whitening the tongue with chalk, &c. and he has often met with old soldiers profoundly versed in the history of a paroxysm of intermittent, and very skilful in imitating the rigors. The detection, however, of such artifices cannot be difficult.

DROPSY. This is more generally feigned by pregnant women, and for the means to be employed for the detection of the fraud, we must refer the reader to our section on utero-gestation. _Sauvages_ relates the case of a mendicant who gave to his child the appearance of hydrocephalus by piercing the integuments of the head, and gradually introducing air; and _Ambrose Paré_ mentions a similar practice for the purpose of counterfeiting hydrocele.

JAUNDICE. If any attempt should be made to colour the skin yellow, the whiteness of the tunica conjunctiva, as well as the appearance of the urine and fœces of the patient, will always detect the imposition.

HÆMOPTHYSIS. This disease has been frequently feigned by sucking blood from the cheeks, gums, &c. but the professional inspector can never be deceived by such artifices; the appearance of the sputa, the state of pulse, &c. will always indicate the truth; besides which detection must be insured by a careful examination of the mouth and fauces.

VOMITING OF BLOOD. _Sauvages_ relates the case of a young woman who, to avoid the confinement of a convent, swallowed a quantity of bullock’s blood, and vomited it up in the presence of a physician sent to examine her. Where such a trick is suspected, we have only to secure the patient from the necessary supplies, and the fraud is at once detected.

VOMITING OF URINE. Where this is asserted we may safely pronounce the patient an impostor, for the event is physiologically impossible.

BLOODY URINE. An appearance of this nature is often produced in India by eating the Indian fig (_Cactus Opuntia_), or the fruit of the prickly pear, which imparts to the urine a blood-red colour. It has been also simulated by clandestinely pouring real blood, or colouring matter, into the night utensils. There is an old story of a boy who imposed on many by pretending to pass black urine; but being confined, he was detected in an attempt to secrete an ink-bottle, which pointed out the mode of his imposture.

INCONTINENCE OF URINE. The simulation of this affection may be detected by giving the patient a full dose of opium at night, without his knowledge, and introducing the catheter during sleep, or, by taking him by surprise during the day, and introducing the same instrument; when, if he be an impostor, it will be found that the urine has not drained off, _guttatim_, as it was secreted, but that the bladder possesses the power of retention. If the bed clothes are not found wet after a full dose of opium, during the operation of which the patient has been suddenly awoke, we may also be satisfied that there is no incontinence. _Foderé_ says that if the penis is secured by a ligature, it will swell considerably in the real incontinence, in consequence of the urine running into the urethra; but that no such effect will happen if the disease be feigned.

GRAVEL AND STONE. All impositions upon this subject may be detected by chemical analysis; in general, it will be sufficient to saw the pretended calculus into two parts, when the absence of the characteristic structure will establish the fraud; it will frequently be found that they are small pebbles, or coarse siliceous sand; _Mr. Wilson_[571] has related two instances of this kind in which an attempt was made to practise on his credulity; “many years ago,” says he, “when I resided in the house of _Mr. Cruikshank_, a person brought his son to that gentleman for surgical advice, asserting that the boy had long been cruelly afflicted with stone; in proof of which he produced several pieces of hard slaty substances, which he stated he had assisted the child in removing from the urethra; upon my expressing an opinion that these were not urinary concretions, he pretended to be angry, and indignantly left the house, declaring that he would seek for a surgeon to perform the operation for the removal of the stone, whose humanity would not let him doubt the assertion of a father, who, though in poverty, would gladly sacrifice his own existence to save that of his son: a few days after this he brought back the boy with a large piece of slate sticking in the urethra, which had torn the inner membrane, and from the swelling it had produced, was with much difficulty removed; wishing to detect the imposture, I persuaded him to leave the boy in _Mr. Cruikshank’s_ house, under the pretence that the operation of lithotomy should be performed, if necessary; and it was only after the forms of binding the boy and bandaging his eyes were gone through, that he could be prevailed upon to confess his father had taught him to introduce these substances, which he had procured from coals, for the purpose of exciting commisseration for his pretended sufferings, and obtaining money from the charitably disposed; and perhaps, in this instance, to have extorted money from the surgeon to conceal his ignorance, had he seriously attempted to perform any operation.”

ALVINE CONCRETIONS. It sometimes occurs that bodies of a very anomalous kind are passed from the intestines; but the medical practitioner by a careful examination of the substance, and a minute inquiry into the nature of all the ingesta, will frequently succeed in tracing their origin. _Dr. Marcet_, in his “Essay on Calculous Disorders,” relates some interesting instances of this kind, which we shall notice in this place, in order to put the medical man on his guard when called upon to deliver his opinion upon such occasions. The first case is that of some concretions put into _Dr. Marcet’s_ hands by _Sir Astley Cooper_, and which had been discharged by a female patient, under circumstances which made it questionable whether they had proceeded from the rectum, or from the urethra; they were, however, discovered to be pieces of undigested cheese formed into balls by the action of the intestines, or portions of caseous matter actually formed in the intestines from milk taken as nourishment by the person, and coagulated by the gastric juices into those undigestible masses. Another singular species of intestinal calculus was found by _Dr. Marcet_ and _Dr. Wollaston_ to be oat-seeds, derived from the oaten cake which the patient had eaten. _Dr. Marcet_ also describes a concretion which, by the assistance of _Dr. Wollaston_, he discovered to be those small woody knots which are often found in certain pears, and which the person had previously eaten. The last case which he relates is not less curious; a philosophical gentleman of delicate health, and disordered system, voided a number of small red globular bodies, each of which had in its centre two black opaque spots; they were supposed to be peculiar animals connected with his disorder, but _Dr. Wollaston_ soon satisfied himself that they were nothing but the spawn of lobsters, an extremely indigestible substance, of which the patient acknowledged to have eaten about the time he passed these bodies. The author has deemed it necessary to introduce this subject under the present article; for, strange as it may appear, it not unfrequently happens, as _Dr. Marcet_ has stated, that persons apparently respectable, produce bodies, as having been voided, which are wholly supposititious.

ABSTINENCE FROM FOOD. Long fasting, or the power of refraining altogether from food for years, has been frequently the subject of imposition. The case of _Anne Moore_, of Tetbury, must be in the recollection of all our readers[572]; and in the _Philosophical Transactions_ two cases are recorded, in one of which a man is said to have taken nothing but water for eighteen years, with now and then during a certain period of the year, a draught of clarified honey; but the case which has excited public interest in the greatest degree, is that of _Elizabeth Canning_, (_for whose trial, see_ 10 _Harg. St. Tri._ 205, _and_ 19 _Howel St. Tri._ 262) who, among other circumstances, pretended that she had been confined in a loft from Tuesday the 2d of January at four o’clock, A. M. until Monday the 29th, at four P. M. and that during this period she had had no sustenance, except about twenty-four pieces of bread to the amount of a quartern loaf, a penny mince-pye, and between three or four quarts of water; and yet that on the 28th day she made her escape by jumping out of the window, and walked twelve miles in six hours without taking food.[573] This story, incredible as it may appear, was actually believed by many persons, and popular clamour rose to a most indecent height; bills of indictment were preferred, and libels circulated without example either as to number or virulence; and _Mary Squires_, an unfortunate old gipsey, was condemned to death for the robbery charged to have been committed previous to this alleged, wanton imprisonment of the impostress _Canning_. One of the most interesting points in the evidence of these trials, (for there were several on different grounds,) was derived from the inspection of the linen of the impostress by an ingenious midwife, (19 _How. St. Tri._ 428) who observed that in twenty-eight days a menstrual period would probably have occurred, and yet there was no vestige of such an event to be traced on the linen; thus may physiological circumstances often elucidate points apparently remote from medical cognizance.

DEAFNESS AND DUMBNESS. Where the former of these maladies is alone simulated, the inspector will be able, with a little address, to detect the imposture; a sudden noise will frequently betray the patient, and an instance of this kind is related by _Ambrose Paré_; we may also contrive to communicate in his presence some circumstance in which he is greatly interested, and notice the effect of the intelligence upon his countenance, or upon his pulse. Where dumbness is only feigned, we should remember that the powers of articulation never leave a person without some cause, which medical inquiry must discover. It has been a question whether the absence of the tongue should be considered a sufficient reason for muteness; although we cannot dispute the validity of such a proof, it is necessary to know that cases are recorded[574] where persons did very well without that organ; but we are inclined to believe with Dr. Smith, that the muscles belonging to the tongue were, in such cases, not deficient. But these observations apply to instances of imposture, where deafness or dumbness have been singly simulated; suppose a medical practitioner is called upon to examine a patient who declares himself to labour under the misfortune of congenital deafness, and consequent dumbness, what plan of investigation is he to pursue upon such an occasion? It must be admitted that where this simulation is well performed, it becomes extremely difficult to detect it; but it requires so much art and perseverance that few persons will be found capable of the deception: _M. Sichard_ succeeded in the detection of a most accomplished impostor, by requiring him to answer a number of queries in writing; when, the Abbé soon found that he spelt several words in compliance with their sound, instead of according to their established orthography; by substituting for instance the _c_ for the _q_, which at once enabled the Abbé to declare that it was impossible that he should have been deaf and dumb from his birth, because he wrote as we _hear_, and not, as in the case of the real deaf and dumb, as we _see_.

BLINDNESS. In cases of alledged amaurosis, the practitioner has generally relied upon the contractility of the pupil, as a test of vision; but _Richter_ asserts that nothing positive can be drawn from the mobility or immobility of the iris, as sometimes the one and sometimes the other occurs; if however the pupil does not contract, we must think that the practitioner is authorised in concluding as to the existence of the disease. By unexpectedly reflecting the rays of the sun, by means of a mirror, upon the eye of the patient, we shall generally be able to discover any deception that may have been practised. Where short-sightedness is pleaded as a disqualification, the truth may be easily ascertained by inspection. The French adopted a very simple and ingenious mode of distinguishing the feigned myopes who endeavoured to escape the conscription laws; they placed spectacles of various powers upon the persons to be examined, and suddenly bringing before their eyes a printed paper, the subject of which was wholly unknown to them, the facility with which the person read pointed out with tolerable accuracy the state of his vision. A myope, for instance, and none but a myope, could read fluently a paper, brought close to his eyes, with concave glasses, and _vice versâ_.

OPHTHALMIA. This affection has been sometimes induced by the application of corrosive sublimate; if, says _Dr. Hennen_,[575] in any suspected corps we find that the right eye is universally affected, it gives a reasonable ground to suppose, that the deleterious substance has been put in preference into that eye, from design, or perhaps from the facility which the impostor derives from his right hand; a left-handed person will, for the same reason, inflict the injury on the left side.

ULCERS, &c. External sores are constantly feigned by mendicants to obtain relief, or by soldiers to procure their discharge; and for this purpose various acrid applications as well as pressure have been resorted to. _Galen_ detected an imposture of this kind, where a slave, in order to avoid accompanying his master on a long voyage, produced tumours in his knees by the application of _Thapsus_. Ulcers, says _Dr. Hennen_, were formerly extremely prevalent in the army, and were often produced by various acrid substances, but, by the adoption of _Mr. Baynton’s_ practice, they are now rendered much more manageable; where the ulcer is supposed to be excited by unfair means, surgeons are now in the habit of sealing the dressings, and so effectually preventing any improper tampering with them, without immediate discovery. _Dr. Hennen_ says, “I had some time ago a case in a recruit, reported to be _Pompholyx Diutinus_, and resembling that species of Bullæ in a very remarkable degree; after several weeks _Dr. Bartlett_ of the 88th regiment, into whose charge the man was at length transferred, detected a shining particle of the powder of cantharides adhering to an unctuous dressing, which had been purposely applied loosely to the limb, in order that the patient might not be prevented from managing his case in his own way.” On some occasions the _Ranunculus Flammula_ has been employed for these iniquitous purposes; in others, _Verdegris_, or a copper coin, has been bound tight on the sore.

HERNIA has been sometimes simulated by blowing air into the cellular membrane; and PROLAPSUS ANI has been successfully imitated by introducing a foreign gut into the rectum. We shall now dismiss the subject of simulated diseases, leaving such deceptions as that of _Miss M’Avoy_ of Liverpool, to the fate which must await them; and the professional men who have aided them by their credulity, to the contempt which they so richly merit, from the more enlightened part of their medical brethren.

OF THE ADULTERATION OF FOOD.

Although it is generally acknowledged that the representations of the ephemeral writer who lately excited so much public notice, were no less preposterous than the symbols which decorated his volume,[576] yet it cannot be denied that a great part of our daily food, and a still greater portion of our luxuries, are the constant objects of fraudulent adulteration; and what reasonable hope can be entertained of any amendment, while the temptations remain so excessive, the detection so difficult, and the punishment so inadequate to the crime; or, above all, while the trouble and expense of prosecution continue to be so disproportioned to the injury sustained by an individual, as to prevent his seeking redress through the ordinary channels of the law? these observations, perhaps, apply with greater force to the adulteration of articles not subject to the revenue duties of excise or customs, such as bread, milk, &c. Against the substitution or sophistication of those whose sale enriches the treasury, we have numerous enactments, and were we to form our judgment from them alone, we should conclude that fraudulent adulterations were rather deprecated as offences against the revenue, than against the health of the citizen. It is, however, important to remark, that if the health of any person be impaired in consequence of the act of another, as by selling him bad wine, which injures the party’s health, an action (viz. a trespass on the case) will lie. 2 _Espin N. P._ 601; 1 _Rolle Abr._ 90.

The adulteration of bread[577] is specially prohibited by several statutes; the 31 _Geo._ 2, _c._ 29, entitled “An act for the due making of bread, and to regulate the price and assize thereof, and to punish persons who shall adulterate meal, flour, or bread;” after reciting the[578] 51 _Hen._ 3, and 8 _Anne, c._ 18, and making various regulations as to the assize, enacts that bread made for sale shall be of meal or flour, and that no alum, or preparation or mixture in which alum shall be an ingredient, or any other mixture or ingredient whatsoever (except only the genuine meal or flour which ought to be put therein, and common salt, pure water, eggs, milk, yeast, and barm, or such leaven as shall at any time be allowed to be put therein by the court or magistrates.) And that no person shall knowingly put into any corn, meal, or flour, which shall be ground, dressed, bolted, or manufactured for sale, any ingredient, mixture, or thing whatsoever, or shall knowingly sell any thing which shall not be real and genuine meal or flour of the grain the same shall import to be.[579]

With respect to the manufacture of malt liquors, especially porter, it is wholly under the jurisdiction of the excise, and yet there is no article of diet which has so universally the credit of being adulterated, and that too with drugs of the most noxious quality; we have now lying before us “_Minutes taken_ (in Session 1818) _before the Committee of the House of Commons, to whom the petition of several inhabitants of London and its vicinity, complaining of the high price and inferior quality of_ BEER, _was referred, to examine the matter thereof and report the same, with their observations thereupon, to the house_.” _Ordered_, by the House of Commons, _to be printed_, 8 April, 1819. From this it very clearly appears that the illegal addition of various drugs is commonly practised in the breweries; but we are nevertheless inclined to believe that the more extensive and serious frauds of this description, are not carried on in the cauldrons of the brewer, but in the barrels of the publican.[580]

The adulteration of milk has furnished another object of popular clamour, but we are inclined to believe that its dilution with water is the only fraud ever committed with respect to it. _Chalk_, if added, would be so easily detected, and would answer the intended purpose so clumsily, that we may very safely consider such a charge against the London milk-venders as entirely groundless.

In order to assay the quality of milk several different instruments have been proposed; _Mr. Dicas_, mathematical instrument maker in Liverpool, invented for this purpose an instrument which he termed a _lactometer_, and which ascertains the richness of milk from its specific gravity compared with water. _Mr. Edmund Davy_, of Cork, has lately made a very interesting application of the hydrometer,[581] to ascertain the quality of skimmed milk; it appears that in Ireland, especially in its southern districts, skimmed milk forms an indispensable part of the subsistence of the lower orders, and it is stated that the sale of this article in the markets of Cork alone amounts to a thousand pounds per week; the necessity therefore of securing the public against the fraudulent adulteration of so important an article of diet, requires no comment; and it appears that a large proportion exposed for sale had been greatly diluted with water; and that for want of the means of detection, the fraud had been long practised with impunity, not only in Cork, but also in other parts of the country; an unsuccessful attempt had indeed been made to remedy the evil by the appointment of persons called _tasters_, who were empowered to inspect the milk-markets in Cork, and to detain such milk as they considered adulterated; the total incompetency however of these officers was soon discovered, and a committee of respectable farmers was formed, to devise, if possible, some means to prevent the commission of so serious a fraud; on this occasion _Professor Davy_ was consulted, and he accordingly constructed the instrument to which we have alluded, and which differs only from the hydrometer in its scale; so completely has it answered the object of its construction that the milk now brought to market is very rarely found to have been _watered_.

We might now proceed to the consideration of various other articles which are pre-eminently the objects of fraudulent adulteration, but neither our time, nor space, will allow the digression; nor indeed should we have entered into the discussion, but to preserve the order and uniformity of our subject, and to shew its relations to chemical as well as medical inquiry. With respect to the adulteration of our medicinal articles, we have already pointed out (p. 20) the law by which the College of Physicians is empowered to search apothecaries’ shops, and to destroy such drugs as may be spoilt or adulterated; we have only in this place to repeat our desire that its jurisdiction may be enlarged. Very few practitioners have an idea of the alarming extent to which the nefarious practice of medicinal adulteration is carried, nor of the systematic manner in which it is conducted; and it would perhaps have been deemed a duty to have entered into a few details upon the subject, had not the author already published in his PHARMACOLOGIA (_edit. 5th_) an account of the various modes in which our remedies are thus deprived of their most valuable properties, and described the tests by which such frauds may be discovered.

POLICY OF INSURANCE ON LIVES.

“An insurance upon life is a contract by which the underwriter for a certain sum, proportioned to the age, health, profession, and other circumstances of that person, whose life is the object of insurance, engages that the person shall not die within the time limited in the policy; or if he do, that he will pay a sum of money to him in whose favour the policy was granted. Thus, if _A_ lend £100 to _B_, who can give nothing but his personal security for repayment; in order to secure him in case of his death, _B_ applies to _C_ an insurer, to insure his life in favour of _A_, by which means, if _B_ die within the time limited in the policy, _A_ will have a demand upon _C_ for amount of his insurance.” 2 _Park on Insurance_, 636.

The insurance must be made by a party having an interest in the life insured, for by 14 _Geo._ 3, _c._ 48, _s._ 1, it is enacted, “That no insurance should be made by any person or persons, bodies politick or corporate, _on the life or lives_ of any person or persons, or on any other event or events whatsoever, wherein the person or persons for whose use, benefit, or on whose account, such policies should be made, _should have no interest_, or by way of gaming or wagering; and every insurance made contrary to the true intent and meaning thereof should be null and void to all intents and purposes.” And also “That it should not be lawful to make any policy or policies on the live or lives of any person or persons, or other event or events, without inserting in such policy or policies the person’s name interested therein, or for whose use, benefit, or on whose account such policy was to be made or underwrote. And that in all cases where the insured had had an interest in such life or lives, event or events, no greater sum should be recovered, or received from the insurer or insurers, than the amount or value of the interest insured, in such life or lives, or other event or events.”

A creditor has an interest in the life of his debtor, _Anderson_ v. _Edie, K. B. Trin. Term._ 1795, but it must be for a good and legal consideration, not for gaming, _Dwyer_ v. _Edie, Hill. Term._ 1788. If the creditor be paid by the executors, though from funds furnished _aliunde_, (their testator having died insolvent) he cannot recover against the insurers. _Godall and others_ v. _Boldero and others_, 9 _East_ 72.

Death by suicide, or the hands of justice, is generally excepted in all policies, and no premium is returned, though such event should happen on the day of insurance, by _Lord Mansfield_ in _Bermon_ v. _Woodbridge, Doug._ 789 and in _Tyrie_ v. _Fletcher, Cowp._ 669; and as this is a matter of contract, it appears to be unimportant whether the party dying by his own hands be found _felo de se_ or not.

And if there be any fraudulent concealment as to the state of the party’s health or age[582] the policy is void. But “even where there is an express warranty that the person is in good health, it is sufficient that he is in a reasonable good state of health; for it never can mean that the _cetui que vie_ is perfectly free from the seeds of disorder. Nay even if the person, whose life was insured, laboured under a particular infirmity, if it can be proved by medical men, that it did not at all, in their judgment, contribute to his death, the warranty of health has been fully complied with, and the insurer is liable. 2 _Park_ on Ins. 649.

“Thus in an action on a policy made on the life of _Sir James Ross_, for one year from _October 1759_ to _October 1760, warranted in good health at the time of making the policy_; the fact was, that _Sir James_ had received a wound at the battle of La Feldt in the year 1747, in his loins, which had occasioned a partial relaxation or palsy, so that he could not retain his urine or fœces, and which was not mentioned to the insurer. _Sir James_ died of a malignant fever within the time of the insurance. All the physicians and surgeons who were examined for the plaintiff, swore that the wound had no sort of connection with the fever; and that the want of retention was not a disorder that shortened life, but he might, notwithstanding that, have lived to the common age of man; and the surgeons who opened him said, that his intestines were all sound. There was one physician examined for the defendant, who said, the want of retention was paralytic; but being asked to explain, he said it was only a local palsy, arising from the wound, but did not affect life; but upon the whole he did not look upon him as a good life.

“_Lord Mansfield._—The question of fraud cannot exist in this case. When a man make insurance on a life generally, without any representation of the state of the life insured, the insurer takes all the risk, unless there was some fraud in the person insuring, either by his suppressing some circumstance which he knew, or by alleging what was false. But if the person insuring knew no more than the insurer, the latter takes the risk. In this case there is a warranty, and wherever that is the case, it must at all events be proved that the party was a good life, which makes the question on a warranty much larger than that on a fraud. Here it is proved that there was no representation at all, as to the state of life, &c. But where there is a warranty, then nothing need be told; but it must in general be proved, if litigated, _that the life was in fact a good one, and so it may be, though he have a particular infirmity_. The only question is, _Whether he was in a reasonable good state of health, and such a life as ought to be insured on common terms?_” The jury upon this direction, without going out of court, found a verdict for the plaintiff. _Ibid._ 1 _Black. Rep._ 312.

In _Willis_ v. _Poole_, which was on a case of gout,[583] the same learned judge said, “_Such a warranty can never mean that a man has not the seeds of disorder_. We are all born with the seeds of mortality in us. A man subject to the gout is a life capable of being insured, if he has no sickness at the time to make it an unequal contract. _Park_ 650.

“It is not to be concluded, that a disorder with which a person is afflicted before he effects an insurance on his life, is a disorder ‘tending to shorten life,’ within the meaning of a declaration of the insurance offices, from the mere circumstance that he afterwards dies of it, if it be not a disorder necessarily having that tendency. _Watson_ v. _Mainwaring_ (4 _Taunt_ 763). This case turned on the question whether the complaint with which the deceased was afflicted and ultimately died, was an ordinary, or an organic _dyspepsia_. The jury found that it was neither organic nor excessive (_i. e._ at the time of insurance.)”

_Chambre_ J.—“All disorders have more or less a tendency to shorten life, even the most trifling; as for instance, corns may end in a mortification; that is not the meaning of the clause: if _dyspepsia_ were a disorder tending to shorten life within this exception, the lives of half the members of the profession of the law would be uninsurable.”

If the insurance be for a year, the day of the date[584] is included, (thus a policy effected on the 3d of Sept. 1697 insures the whole of the 3d of Sept. 1698, being a year and a day) but the allowance of fifteen days or more usually given to pay up arrears of premium does not cover a death happening within them, (_Want, Exix_, v. _Blunt_, 12 _East._ 183,) for the contract is, that the _insured_ shall _himself_ pay during his life, not that his executors or administrators shall pay; and personal contracts shall be performed according to the words and apparent meaning of the parties, and not by a performance _cy-pres_; see also _Tarleton_ v. _Stainforth_, 5 _T. R._ 695. The death must happen within the time insured, for if a person, whose life is insured for one year, receive a mortal wound within the year, but does not die till after the year, the insurer would not be liable; _Mr. Justice Willes_, in _Lockyer_ v. _Offley_, 1 _T. R._ 252; but if the insurance were for life, he might pay up his arrears within the fifteen days.

It is evident that medical practitioners must have frequent occasion to give testimony on this subject; but it is only necessary for us here to observe, in addition to the general rules of evidence, that the declaration of a wife, whose life had been insured, has been admitted as evidence to prove the state of her health; her husband after her death having brought an action against the insurance company, _Avison_ v. _Lord Kinnaird_; this case is important to medical witnesses in several points. See 2 _Pr. Smith’s R._ 286, 6 _East_. 188.

This branch of the law is also important to the faculty, as they must frequently be called upon to justify the medical certificates which the insurance offices uniformly require before they issue a policy, and it continually involves the very nice question as to what shall or shall not be considered a disease tending to shorten, or endanger life.[585]

So also medical evidence is often required to ascertain the state of a life on which an annuity may have been granted; where either the gross inadequacy of the price paid, or the exorbitance of the annuity secured, becomes a question for legal determination.[586]

SURVIVORSHIP.

As the probable duration of human life, under ordinary circumstances, forms the foundation of the system of life insurance, so also does the comparative chance of duration between two or more lives. These contingencies have been made the subject of minute, and we believe accurate calculation.[587] One observation alone is necessary on this branch of the subject: the tables have been constructed on the basis of local mortalities, they must not therefore be considered as universally applicable to all changes of climate and circumstance.[588]

A more difficult problem however is presented when it is required to estimate the probable chance that one life had survived another, there being no evidence of the decease of either, though a moral presumption exists of the loss of both. The legal application of this question may arise from a variety of circumstances, as where two or more persons perishing by the same accident, as shipwreck, it is necessary to ascertain the survivor in order to determine the course of succession. This was the case of the representatives of _Gen. Stanwix_, A. D. 1772, (_Fearne’s Posthu. Works, p._ 37) “a case which,” according to the learned author, “seemed to mock every principle of judicial decision.” _Gen. Stanwix_, accompanied by his only child, a daughter by his first marriage, and by his second wife, set sail for Ireland; the vessel was lost and not a single person escaped. If _Gen. Stanwix_ had died a widower, and without issue living at the time of his death, that is to say, if his wife and daughter died before him, though but an instant, _his_ nephew became his representative, and entitled to his personal estate; if the daughter was the survivor, then her personal representative (an uncle) was entitled; and on these claims the principal litigation took place, for though it is evident that the second wife also might have a separate next of kin, and her representative did bring forward a distinct claim, the circumstance is not noticed by _Fearne_ (_see note l. c. p._ 39) “The court, finding the arguments on all sides equally solid and ingenious, waved giving any decision, and advised a compromise, to which the several claimants agreed.” So also in the case of _Col. James_ and his wife, who being passengers in the Grosvenor East Indiaman, were in 1782 cast away on the coast of Africa, and attempted with a great part of the crew and other passengers to make their way to some settlement, but in all human probability perished. In this case there was greater latitude for conjecture than in the preceding, as there was not the same presumption that the fate of both had been nearly cotemporaneous; one might have survived a very considerable time, or both may have been living at the moment of the suit; there was also some evidence of their comparative state when last seen, as three or four sailors, who parted from the main body and took a different route, ultimately escaped and arrived in England to relate the melancholy tale of their shipwreck and sufferings. In this case, one of the parties being an infant, it was ordered that it be referred to the master to enquire and report whether it would be for the benefit of the infant to consent to a compromise; and the master having reported in the affirmative, no final judgment was given.

If a man be seized in fee of land and tenements, though but for a moment, his wife is entitled to dower[589]; therefore if both father and son perish by a common accident, and the son survive, however short the period, his wife shall have dower, for the lands descended the instant the father died. (2 _Bl. Com._ 132.) “This doctrine was extended very far by a jury in Wales,[590] where the father and son were both hanged in one cart, but the son was supposed to have survived the father, by appearing to struggle longest; whereby he became seized of an estate in fee by survivorship,” (he and his father being joint-tenants) “in consequence of which seizing his widow had a verdict for her dower.” _Broughton_ v. _Randall_, _Cro. Eliz._ 502, _Noy._ 64.[591] Here there could be no dower till the termination of the joint-tenantcy; therefore, if it were possible that they could have died simultaneously, the widow of neither could have been entitled; but this we believe impossible, therefore query, if there had been two widows and no evidence, should the case have been decided on presumption?

So also of joint-tenants (as partners) where the interest of the first deceased passes to the survivor, and not to the heir at law or next of kin of the deceased; but the heir at law or next of kin of the last survivor is entitled, (and see above _Broughton_ v. _Randall_.)

Also as between testator and legatee, if the legatee die first, it is a lapsed legacy and falls into the residue; but if the legatee survive, his executor or administrator shall take it.[592]

According to the civil law, which generally regulates the administration of personalty, it is held that when parent, whether father[593] or mother,[594] and child perish together, as in shipwreck, if the child be of the age of puberty, he shall be presumed to have survived; but on the contrary that he died first if he were under that age: regard being also had to the relation of the party who is to benefit by the decision. (_Domat C. L. p._ 652, 653.) But “it may happen several ways, that the mother may perish under the ruins of a building sooner than the child whom she suckles. It may happen that a son may be killed in a battel before his father; and on the same occasions, and likewise on all others, it may so fall out, that they both die in the _same_[595] instant, or that even he who by reason of his age, or some other infirmity, might be presumed to die first does nevertheless die the last.” (_Domat._ 651).

By the _Code Napoleon, Art._ 721, 722, it is laid down that, of persons under fifteen, the eldest shall be presumed to have survived, above sixty the youngest; if some were under fifteen and others above sixty, the former are presumed to have survived; of persons between fifteen and sixty, males are presumed to have survived, the ages being equal or where the difference does not exceed one year.

The order of nature appears to afford the best general rule, and therefore, in the absence of all evidence to the contrary, it is to be wished that it were established, that the natural succession had taken place, as if no accident had occurred; that the child survived the parent; the nephew, the uncle; descendants, asscendants; legatees, testators; and generally that the younger had outlived the elder.

The decision in the following curious case appears to have been directed in conformity with such a principle. A father and son having perished at the battle of the Dunes, fought near Dunkirk in 1658, and the daughter and sister having at noon, on the very same day and hour, taken the vows in a nunnery, whereby she became _dead in law_[596], a question arose as to survivorship among these three persons, when it was decided that the Nun died first, since her death, being voluntary, was consummated in a moment; whereas that of the father and son, being violent, was probably not immediate. Between the father and son there did not appear to be any data for a just conclusion, and it was therefore decreed, according to the established rule above stated, that the son had survived the father.

But since it must be admitted that questions of _Survivorship_ will occasionally assume a form highly capable of physiological elucidation, we are bound to consider the subject as an article of Medical Jurisprudence. The physical proofs by which we can arrive at a conclusion upon the fact of _Survivorship_, are necessarily precarious and doubtful; but, in the absence of all other testimony, they may be occasionally admissible: a question, for instance, has arisen in a case where the mother and infant have both been found dead, after a clandestine delivery, whether any physiological investigation could determine which of the two survived the other, and upon this question there have been several curious decisions; _Valentini_, in his Pandects, relates an instance in which the mother and offspring both lost their lives during the pangs of a difficult and protracted labour; when the medical witnesses, having considered the extreme delicacy of the infant on the one hand, and the exhaustion of the parent on the other, arrived at the conclusion that the latter must have been the first to perish. The Imperial Chamber of Wetzlar[597] came to a similar decision, in a case somewhat analogous; but in opposition to such an opinion _Capuron_,[598] _Belloc_,[599] and _Sue_[600] have maintained the extreme uncertainty of any general conclusion deduced from so many uncertain data; a judgment in which we heartily concur. Let us, however, suppose a question of _Survivorship_ to have arisen in consequence of a party having perished by famine, on a barren rock; here the lights of science may assist the decision; for the physiologist will tell us that persons so situated will perish with a rapidity proportioned to their youth, and state of robust vigour; a fact which is no less correctly than beautifully illustrated by the poet, in the awful fate of Count Ugolino and his children; where the father perished by inanition on the eighth day of his imprisonment, after having seen his sons, unfortunate victims of the most execrable vengeance ever conceived by man, sink amidst the convulsions of exhausted nature.

In a plurality of deaths occasioned by some common accident, as the falling of a building, an idea of survivorship may be deduced from an examination of the bodies, and of the relative situation in which they were found; it has been also said that if two persons are found dead in the water, and it be clearly made out that they were drowned, that besides the circumstantial presumptions afforded by evidence of greater buoyancy in the one body than in the other, or the knowledge that the one was a swimmer and the other not, we may by careful dissection surmise that death had supervened earlier in the one than in the other, from the appearances presented in the organs immediately acted on by this manner of death, such as _the presence of frothy mucus in the lungs, generated by vain attempts to respire_.[601] With regard to this latter test, we confess that we place no reliance whatever upon its indication, for it will be found to depend upon so many extraneous circumstances as to be incapable of affording any just grounds for a conclusion: equally futile is that opinion which would attach any importance to the thoracic capacity of the individuals in question. Where a number of persons have perished from the inhalation of impure air, we may perhaps be allowed to conclude that those nearest the doors or windows, survived those who were found where the noxious air must have been in its highest state of concentration.

Medical Jurisprudence.