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Title: Medical Jurisprudence, Volume 1 (of 3)
Author: Fonblanque, John Samuel Martin, Paris, John Ayrton
Language: English
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Transcriber’s Note
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been surrounded by _underscores_.
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a second transcriber’s note at the end of the text.
MEDICAL
JURISPRUDENCE.
---------------------
J. A. PARIS, M.D. F.R.S. F.L.S.
FELLOW OF THE ROYAL COLLEGE OF PHYSICIANS;
AND
J. S. M. FONBLANQUE, ESQ.
BARRISTER AT LAW.
---------------------
“Hæc est illa amica Imperantium atque Medentium conspiratio, qua
effectum est, ut aliquo veluti connubio Medicina ac Jurisprudentia inter
se jungerentur.”
_Hebenstreit Anthropolog: Forens:_
---------------------
IN THREE VOLUMES.
VOL. I.
---------------------
LONDON:
PRINTED & PUBLISHED BY W. PHILLIPS, GEORGE YARD, LOMBARD STREET;
SOLD ALSO BY T. & G. UNDERWOOD, AND S. HIGHLEY, FLEET STREET;
AND W. & C. TAIT, EDINBURGH.
1823.
TO
THE RIGHT HONOURABLE
JOHN EARL OF ELDON,
LORD HIGH CHANCELLOR OF GREAT BRITAIN;
AND TO
SIR HENRY HALFORD, BART.
PRESIDENT OF THE ROYAL COLLEGE OF PHYSICIANS;
THIS WORK
IS, WITH THEIR PERMISSION,
MOST RESPECTFULLY DEDICATED BY
THE AUTHORS.
TABLE OF CONTENTS.
PART I.
VOL. I.
Of the College of Physicians 1
Its powers and privileges 23
Of the College of Surgeons 54
Of the Society of Apothecaries 59
Of the exemptions and liabilities of Medical practitioners 72
Of actions by Medical practitioners 77
Of actions against Medical practitioners 80
Midwifery 82
Of the preservation of Public Health 85
Burial of the dead 92
Of Quarantine, Lazarettos, and other establishments of
Plague Police 104
I. Are all epidemic Fevers contagious? 115
II. Does the matter of contagion require the aid of a
certain state of the air (“Pestilential constitution of
the Atmosphere”) to give effect to its powers and
propagation; and to what causes are the decline and
cessation of a contagious pestilence to be attributed? 120
III. Can filth and animal putrefaction generate contagion? 122
IV. Can a fever produced by fatigue, unwholesome food, &c.
be rendered contagious in its career by animal filth,
impure air, &c.? 126
Medical Police 138
Bills of Mortality 143
PART II.
Introduction 151
Of Medical Evidence generally 153
Of Marriage 168
Of Divorce or Nullity 176
Various questions connected with the foregoing subjects,
elucidated by Physiological remarks 179
I. Of Ages, especially that of puberty 179
II. Of Impotence and Sterility 197
1. Of Impotence 197
1. Organic Causes of Impotence 197
In Males 197
In Females 206
2. Functional causes of Impotence 208
3. Moral causes of Impotence 210
2. Of Sterility 212
1. Organic causes 212
2. Functional causes 212
III. Of the Legitimacy of Children 215
Supposititious Children 219
Tenant to the Courtesey 223
Of Monsters and Hermaphrodites legally considered 227
Physiological illustrations connected with the foregoing
subjects 230
Of Conception and Utero-gestation 230
Of Parturition or Delivery 241
1. Whether a woman can be delivered during a state of
insensibility, and remain unconscious of the event? 243
2. How far the term of Utero-gestation can be shortened,
to be compatible with the life (viabilité) of the
offspring? 243
3. Whether to any, and to what probable extent, the
natural term of Utero-gestation can be protracted? 245
4. What is the value of those signs by which we seek to
establish the fact of a recent delivery? 249
5. Are there any, and what diseases, whose effects may
be mistaken for traces of a recent delivery? 254
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? 256
7. What are the earliest and latest periods of life, at
which women are capable of child-bearing? 256
8. What is the possible number of children that can be
produced at one birth? 259
9. Is super-fœtation possible, and under what
circumstances, and at what period of gestation can a
second conception take place? 260
10. What are the causes of Abortion 269
11. Under what circumstances, and by what means, is it
morally, legally, and medically proper, to induce
premature labour? 271
12. What circumstances will justify the Cæsarean
operation, and of what value is the section of the
Symphysis Pubis, or Sigaultian operation? 274
Of Extra-uterine Conception 281
Of Hermaphrodites 283
Of Idiots and Lunatics 289
Of Lunatic Asylums 304
Medical and Physiological Illustrations of Insanity 307
1. Whether the person is actually insane, and if so, what
are the proofs of his derangement? 317
2. Whether the proofs are of such a nature as to suffer
the individual, with propriety, to retain his liberty, and
enjoy his property? 321
3. Whether there has been any lucid interval, and of what
duration? 322
4. Whether there is any probable chance of recovery; and
in case of convalescence, whether the cure is likely to be
permanent? 323
Of Nuisances, legally, medically, and chemically considered 330
1. Of those manufactories, during whose operation gaseous
effluvia, the products of _fermentation_, or
_putrefaction_, escape into the atmosphere, and are either
noxious from their effects on animals, or insufferable
from the noisomeness of their smell. 330
2. Of those in which, _by the action of fire_, various
noxious principles are evolved. 330
3. Of those which yield waste liquids that poison the
neighbouring springs and streams. 330
4. Of those trades, whose pursuit is necessarily
accompanied with great noise. 330
Of Impositions 355
Feigned or Simulated diseases 355
Insanity 359
Somnolency 359
Syncope 360
Epilepsy 361
Hysteria 362
Shaking Palsy 362
Fever 364
Dropsy 364
Jaundice 365
Hæmophthysis 365
Vomiting of Blood 365
Vomiting of Urine 365
Bloody Urine 365
Incontinence of Urine 366
Gravel and Stone 366
Alvine Concretions 367
Abstinence from Food 368
Deafness and Dumbness 370
Blindness 371
Ophthalmia 372
Ulcers, &c. 372
Hernia 373
Of the Adulteration of Food 374
Bread 375
Beer 377
Milk 378
Policy of Insurance on Lives 381
Survivorship 388
PART III.
Introduction 399
Arson 402
1. Spontaneous Combustion by friction 403
2. Spontaneous Combustion by the fermentation of Vegetable
and Animal substances 404
3. Spontaneous Combustion by Chemical action 406
Human Combustion 412
Rape 416
Of Homicide generally VOL. II.—1
Of Real and Apparent Death 3
Of the Physiological causes and Phenomena of Sudden Death 16
Syncope 25
Suffocation 32
1. By Drowning 35
2. By Hanging 42
1. By pressure on the Vessels 43
2. By pressure on the Nerves of the Neck 44
3. By pressure on the Fracture of the Spine, and
Dislocation of the Neck 44
3. By Manual Strangulation 46
4. By Smothering 48
5. By the Inhalation of Air deprived of Oxygen 48
6. By other modes 55
Death by Exposure to Cold 59
Death by the Agency of Heat 63
Death by Lightning 63
Death by Starvation 67
Application of the physiological facts established in the
preceding Chapters, to the general treatment of Asphyxia 75
On the manner of producing Artificial Respiration 78
By the Application of Heat 81
By the Internal Exhibition of Stimulants 82
By Electricity 82
Treatment of particular cases of Asphyxia 84
Case 1. Wherein the action of the heart fails before that
of the respiratory organs 84
Case 2. Wherein the function of respiration ceases, while
the heart continues to circulate black blood 86
Of the Coroner’s Inquest 93
Suicide 104
Of Murder generally 110
1. By exposing a sick or weak person, or infant, to the
cold 110
2. By exposing an impotent person abroad, so that he may
receive mortal harm 110
3. By Imprisoning a man so strictly that he dies 111
4. By Wounding or Blows 116
_a._ Incised wounds, or cuts 119
_b._ Punctures 120
_c._ Bruises 121
_d._ Lacerations 123
_e._ Gun-shot wounds 124
5. By Poisoning 128
Of Poisons, chemically, physiologically, and pathologically
considered 131
Their literary history 131
Of slow, consecutive, and accumulative Poisons 143
1. Of slow Poisons 143
2. Of consecutive Poisons 147
3. Of accumulative Poisoning 148
General remarks on the Medical Evidence required to
substantiate an accusation of Poisoning 153
1. Whether all, or most of the symptoms, characteristic of
the action of Corrosive and Narcotic Poisons, may not
arise from morbid causes of spontaneous origin? 155
2. Whether organic lesions similar to those produced by
poisoning, may not occasionally result from natural
causes? 162
3. Whether the rapid progress of putrefaction in the body,
generally, or in any particular part, is to be considered
as affording presumptive evidence, in support of an
accusation of poisoning? 182
4. How far the absence of poison, or the inability of the
Chemist to detect it, in the body, or in the fluid ejected
from it, is to be received as a negative to an accusation
of poisoning 182
5. What degree of information can be derived from
administering the contents of the stomach of a person
supposed to have been poisoned, to dogs, or other animals? 193
On the Classification of Poisons 199
A classification of the different modes by which Poisons
produce their effects 207
Mineral Poisons 209
Class I. CORROSIVE POISONS 210
_Arsenic_ 210
Arsenious acid, or white oxide of arsenic 212
1. Symptoms of poisoning by the Arsenious acid 216
Symptoms of the first degree 216
Symptoms of the second degree 217
Different modes of poisoning by the Arsenious acid 220
Physiological action of Arsenious acid 223
Organic lesions discovered on dissection 225
Of the Chemical processes by which the presence of
Arsenious acid may be detected 232
1. The Arsenic is in a solid form 232
A. By its reduction to the metallic state 233
B. By the application of certain re-agents, or
tests, to its solution 240
2. The arsenious acid is mixed with various
alimentary and other substances 252
Arsenic acid, and its salts 256
The sulphurets of arsenic 257
_Mercury_ 257
Corrosive sublimate 257
Symptoms of poisoning by corrosive sublimate 259
1. Symptoms which follow a large dose 260
2. Symptoms which are produced by the repetition of
small doses 260
Physiological action of Corrosive Sublimate 262
Antidotes to Corrosive Sublimate 263
Organic lesions discovered on dissection 266
Of the Chemical processes for its detection 267
_a._ By its metallization through the agency of
Galvanism 268
_b._ By precipitating metallic mercury from its
solution, by the contact of a single metal 269
3. It is dissolved in various coloured liquids 272
4. It is mixed or combined with some medicinal body
in a solid form 273
5. It is united with alimentary substances which
have effected its decomposition 274
6. It is decomposed, and a part exists in intimate
combination with the membranes of the alimentary canal 274
Red Oxide of Mercury 275
Red Precipitate 276
Other preparations of Mercury 276
_Antimony_ 277
Emetic Tartar, Tartarized Antimony 279
Symptoms of poisoning by it 280
Antidotes 280
Physiological action of Emetic Tartar 282
Organic lesions discovered by dissection 283
Tests for the detection of Emetic Tartar 284
1. The poison is in a solid form 284
2. It is mixed with various alimentary
substances 285
_Copper_ 285
Oxide of Copper 287
Green Carbonate of Copper, Natural Verdegris 288
Verdegris 290
Blue Vitriol 291
Symptoms of poisoning by the Salts of Copper 291
Organic lesions discovered on dissection 291
Chemical detection of their presence 291
A. By their reduction to a metallic state 292
B. By the application of certain tests to their
solutions 293
The suspected poison is mixed with alimentary
substances 294
_Tin, and its Muriates_ 295
_Zinc_ 296
White Vitriol, Sulphate of Zinc 297
Symptoms of poisoning by it 297
Organic lesions 298
Chemical processes for its detection 297
_Silver_ 299
Lunar Caustic, Nitrate of Silver 299
Chemical processes for its detection 300
_The Concentrated Acids_ 301
Oil of Vitriol, Sulphuric Acid 302
Symptoms of poisoning by it 303
Organic lesions 304
Antidotes 304
Chemical processes for its detection 305
Nitric Acid 305
Symptoms of poisoning by it 306
Organic lesions 309
Chemical processes for its detection 312
Spirit of Salt, Muriatic Acid 313
Symptoms of poisoning by it 313
Chemical processes for its detection 314
Oxalic Acid 315
Symptoms of poisoning by it 316
Antidotes 316
Chemical tests for its detection 316
_Boiling Water_ 316
_Melted Lead_ 317
_The Caustic Alkalies_ 318
Potass or Potash 319
Liquor Potassæ 320
Chemical tests for its detection 320
Potassa Fusa, or Kali Causticum 321
Potassa eum Calce 321
Sub-carbonate of Potash, Pearl Ash 322
Symptoms of poisoning by any of the above 322
Preparations 322
Antidotes 323
Organic lesions 323
Soda 323
Ammonia and its Carbonate 323
Symptoms of poisoning by Ammonia 324
_The Caustic Alkaline Earths_ 325
Quick Lime 325
Symptoms of poisoning by Lime 325
Organic lesions 326
Tests for its detection 326
Baryta, and its Salts 327
Symptoms of poisoning by Baryta 327
Physiological action of it 328
Antidotes 328
Chemical tests for its detection 329
_Cantharides_ 330
Symptoms of poisoning by it 331
Organic lesions 332
Methods of detecting its presence 333
_Phosphorus_ 333
Symptoms of poisoning by it 333
_Mechanical Poisons, Powdered Glass, &c._ 334
Class II. ASTRINGENT POISONS 336
_Lead_ 336
Sugar of Lead, Plumbi super acetas 349
Goulard’s Extract, Liquor Plumbi sub-acetatis 350
White Lead, Sub-carbonate of Lead, Cerusse 350
Litharge, semi-vitrified Oxide of Lead 351
Red Lead, Minium 352
Symptoms of poisoning by the different preparations
of Lead 353
By small and repeated doses 355
Organic lesions 357
Physiological action of Lead poisons 358
Chemical processes for their detection 361
1. When it exists in some unknown state of
combination 361
2. Is dissolved in Wine 363
3. Is dissolved in Oils 364
4. Is mixed with alimentary matter 365
_Vegetable Poisons_ 366
Class III. ACRID OR RUBEFACIENT POISONS 371
Camboge or Gamboge 371
White Hellebore, Veratrum Album 372
Black Hellebore, Melampodium 374
Fœtid Hellebore, Helleborus fœtidus 375
Elaterium, Wild Cucumber 375
Colocynth, Coloquintida. Bitter Apple 377
Euphorbium 377
Savine, Juniperus Sabina 378
Aconite, Monks-hood 379
Nitre, Nitrate of Potass 381
Symptoms of poisoning by Nitre 381
Organic lesions 382
Chemical processes for its detection 382
Class IV. NARCOTIC POISONS 382
Opium, and its preparations 383
Symptoms of poisoning by Opium 388
Physiological action of Opium 390
Treatment in cases of poisoning by it 391
Organic lesions 393
Of the detection of Opium 394
Black Henbane, Hyoscyamus Niger 395
Prussic Acid, Hydro-cyanic acid 396
The Laurel (Prunus lauro-cerasus) and its distilled
water 396
Bitter Almonds 396
Action of Hydro-cyanic acid as a poison 396
Physiological action of Prussic acid 404
Antidotes 406
Organic lesions 407
Chemical processes for its detection 408
Class V. NARCOTICO-ACRID POISONS 410
Deadly Night-shade, Atropa Belladonna 410
Symptoms of poisoning by it 411
Physiological action 412
Organic lesions 412
Modes of detecting its presence 413
Stramonium, Thorn Apple 413
Tobacco, Nicotiana Tabacum 414
Symptoms of poisoning by it 418
Its physiological action 419
Hemlock, Cicuta 420
Nux Vomica 421
Cocculus Indicus 423
Poisonous Mushrooms 425
Symptoms of poisoning by them 428
Organic lesions 433
Antidotes 434
Alcohol 434
Symptoms of poisoning by it 436
Its physiological action 437
Treatment of persons in a state of Inebriety 439
Animal poisons 440
Class VI. SEPTIC POISONS 440
The Bites of Venomous Animals 440
Symptoms of the bite of a Viper 441
Physiological action of its poison 442
Putrescent Animal matter 443
Poisonous Fishes 449
Symptoms of Fish poisoning 451
Its origin 452
Aërial Poisons 456
Mercurial vapours 458
Sulphuretted hydrogen gas 462
Carburetted hydrogen gas 464
Chlorine; oxymuriatic acid gas 464
Sulphurous acid gas 465
Of Homicide, by Misadventure or Accident 466
A Synopsis of the objects of inquiry in cases of sudden and
mysterious sickness and death VOL. III.—1
Case I. The patient is living, and medical assistance is
required 1
Case II. The patient is dead—the attendants can furnish
only an imperfect account of his dissolution 2
Case III. The body is found dead—its history is unknown 2
1. Inspection of the dead body 2
2. Circumstances to be learnt by an examination of
surrounding and collateral objects 3
3. Circumstances to be learnt by the interrogation of
competent witnesses 3
4. Circumstances to be learnt by anatomical dissection 3
A Commentary on the preceding objects of Inquiry 6
Case I. The patient is living, and medical assistance is
required 6
Previous state of the patient, with respect to bodily
health and strength, 8
Age and occupation 8
Present symptoms of the patient 8
Whether any, and what remedies have been used; by whom
recommended; and by whom administered? 12
Appearance of the evacuations 13
Case II. The patient is dead—the attendants can furnish
only an imperfect account of his dissolution 17
How soon is the deceased supposed to have died after the
alleged cause of his dissolution? 17
Case III. The person is found dead, and the history of his
dissolution is unknown 18
1. Circumstances to be learnt by inspection of the body 19
Situation and attitude of the body 20
General appearance of the countenance, as to colour,
vascular turgescence, or congestion, and morbid
physiognomy 21
Whether any discharge issues from the mouth, nostrils,
ears, or any other orifice? 21
Apparent age of the deceased 22
Description of person, as to bulk, stature, obesity,
muscular powers, &c. 22
Conformation of the neck as to shortness, thickness,
&c. 22
Probable period that has elapsed since the extinction
of life 23
Whether any, and what marks, punctures, contusions,
ecchymoses, dislocations, or other injuries, are to be
observed about the face, neck, chest, or any other parts
of the body; and how far their appearance and character
demonstrate the nature of the operation, or instrument by
which they were inflicted? 26
Whether the wounds observed on the body were
necessarily of a mortal nature, or sufficiently severe to
have caused immediate death? 30
Whether they were inflicted during life? 31
Whether they resulted from an act of suicide, or
otherwise, or whether from accident or design? 32
Whether the cloaths of the deceased betray any odour
of spirit, tobacco, sourness, or putridity? 34
Whether any articles have been broken or injured in
the pockets? 34
Whether there is reason to believe that the deceased
has been robbed? 34
If the deceased be a female, whether there be any
marks or bruises that would indicate the commission of a
rape? 35
2. Circumstances to be learnt by an examination of
surrounding and collateral objects 36
Whether the spot in question be of a description to
explain the cause of the deceased having been found there,
or how far its retired situation excites the suspicion
that the body had been conveyed thither for concealment,
or some other purpose? 36
Whether any indications of a struggle having happened
on the spot are visible on the ground, or herbage near the
deceased, and whether any footsteps can be traced near the
body? 37
Has there been a thunder storm? 38
Whether any, and what weapons, are lying near the
body; and what is their position in relation to it? 38
If the body be found in the water, are there any, and
what reasons for supposing that it was killed by other
means, and subsequently thrown into the water? 39
If the deceased be found hanging by the neck, whether
he was suspended during life, or hung up after death?
whether it was an act of suicide or of murder? 42
If the deceased be found in an apartment, whether it
be in a house of ill-fame? 44
3. Circumstances to be learnt by the interrogation of
competent witnesses 45
4. Circumstances to be learnt by anatomical dissection 45
Dissection of the brain and its membranes 46
Dissection of the contents of the thorax 52
Examination of the abdomen 60
Examination of the uterus and its appendages 67
Examination of the skeleton 73
Case of Thomas Bowerman 80
Abortion and Infanticide 84
Physiological Illustrations—Abortion 93
Physiological Illustrations—Infanticide 98
I. To ascertain whether the child was born alive? 100
A. Inspection of the body of the Infant 98
B. Phœnomena displayed on the dissection of the
internal parts 107
Cavities of the mouth, œsophagus, larynx, and
trachea 107
Thoracic cavity 108
1. A fœtus may breathe as soon as its head is
without the vagina, and immediately die 113
2. The lungs may have been artificially inflated 115
3. The lungs may float, in consequence of
putrefaction 116
The cranial cavity 121
C. The character of the spot on which the body was
found 122
II. Whether, supposing the child to have been alive, its
death was the result of natural causes, of wilful
violence, or of negligence and abandonment? 122
Death by omission 123
A new-born child may perish by exposure to cold 127
Death by commission 127
Of Criminal Responsibility, and Pleas in bar of Execution 131
Of Punishments 147
Postscript 153
APPENDIX. PART I.
Statute 9 _Hen._ 5 1
Lordinance encontre les entremettours de fysyk et de
Surgerie 3
Statute 3 _Hen._ 8, _c._ 11. An act for the appointing of
Physicians and Surgeons 3
Statute 5 _Hen._ 8, _c._ 6. An act concerning Surgeons to be
discharged of Quests and other things 5
Statute 14 and 15 _Hen._ 8, _c._ 5. The privileges and
authority of Physicians in London 7
The Charter of Incorporation 7
32 _Hen._ 8, _c._ 40. For Physicians and their privilege 14
Statute 32 _Hen._ 8, _c._ 42. For Barbers and Surgeons 17
34 and 35 _Hen._ 8, _c._ 8. A bill that no common
Surgeons, may minister medicines notwithstanding the
Statute 23
1 _Mary_, _c._ 9. An act touching the Corporation of the
Physicians in London 25
6 and 7 _Will._ 3, _c._ 4. An act for exempting
Apothecaries from serving the offices of constable,
scavenger, and other parish and ward offices, and from
serving upon juries 27
Continued by 1 _Ann_, st. 1, _c._ 11 27
Made perpetual by 9 _Geo._ 1, _c._ 8, § 1 29
10 _Geo._ 1, _c._ 20. An act for the better viewing,
searching, and examining of all drugs, medicines, waters,
oils, compositions, used, or to be used, for medicines, in
all places where the same shall be exposed to sale, or
kept for that purpose, within the city of London and
suburbs thereof, or within seven miles circuit of the said
city 30
[This act has not expired.]
18 _Geo._ 2, _c._ 15. An act for making the Surgeons of
London, and the Barbers of London, two separate and
distinct corporations 30
55 _Geo._ 3, _c._ 194. An act for better regulating the
practice of Apothecaries throughout England and Wales 52
A Royal Charter granted to the Apothecaries of London, 30
Maii, 13 Jacobi 71
Royal Letter to the College of Physicians. _Charles R._ 92
To our trusty and well-beloved the Lord Mayor of our city of
London for the time being, and to the Deputy Lieutenants
and Commissioners of the Militia of London and Westminster
that now are and hereafter shall be, and to all other
Officers and Ministers whom it may concern. _Charles R._ 93
College Questions resolved by the Lord Chancellor and Judges
in the 5th of King _James_, his reign, An. Dom. 1607, 94
Concerning punishment and correction against offenders 96
Cases 98
Dr. _Bonham’s_ case 96
Dr. _Groenvelt_, versus Dr. _Burwell_ and others, Censors
of the College of Physicians 119
_William Rose’s_ case 127
Dr. _Stanger’s_ case 131
Habeas Corpus, and Censors Warrant for commitment of
Empirics 145
Dr. _Burgess’_ case 147
Dr. _Winterton’s_ Letter to the President 147
_Lilly’s_ Diploma. The license of _Dr. Sheldon_,
Archbishop of Canterbury, granted to _William Lilly_, the
Astrologer, to practice Physic, dated A. D. 1670 150
Order in Council, 26th July, 1809 151
_King_, _v._ College of Surgeons 153
Midwife’s Oath 160
Certificate of the College of Physicians concerning
the Midwives of London 162
59 _Geo._ 3, _c._ 41. An act to establish regulations for
preventing contagious diseases in Ireland. 14 June, 1819 164
14 _Geo._ 3, _c._ 49. An act for regulating Mad-houses 170
Report of the Select Committee appointed to consider the
validity of the doctrine of contagion in the Plague, 14th
June, 1809 185
_Chorley_, M.D. _v._ _Bolcot_, executor 187
_Lipscombe_, _v._ _Holmes_, Esq. 189
_Slater_, _v._ _Baker_ and _Stapleton_, C. B. 189
_Seare_ against _Prentice_ 194
APPENDIX. PART II.
_Severn, v. Olive_ 201
Two notes on the legal time for Human Birth, (from
_Hargrave’s_ Jurisconsult Exercitations) 209
APPENDIX. PART III.
The determination of the College concerning the questions
proposed to them by the King’s Majestie about the death of
_Joseph Lane_ 225
Case of _Standsfield_. Edin. Dec. 1, 1687 227
Report of the Chirurgeons of Edinburgh on the same case 228
Report of the College of Physicians 229
Extract of the medical evidence in the case of _Spencer
Cowper, Esq._ for the murder of _Sarah Stout_ 230
Extract from the evidence of Doctor _Anthony Addington_,
on the trial of _Mary Blandy_, at Oxford, 1752, for the
murder of her father by Arsenic 236
Extracts from the evidence delivered on the trial of _John
Donellan, Esq._ for the wilful murder, by poison, of _Sir
Theodosius Edward Allesley Boughton, Bart._ at the Assizes
of Warwick, March 30, 1781 243
Extracts from the evidence delivered on the trial of
_Robert Sawle Donnall_, Surgeon and Apothecary, for the
wilful murder, by poison, of his mother-in-law, Mrs.
_Elizabeth Downing_, widow, at the Assizes at Launceston,
March 31, 1817 277
The defence of _Eugene Aram_ for the murder of _Daniel
Clarke_ 311
ERRATA. VOL. I.
Page 176, note (_a_) after _Greenstreet_ and, insert _Greenstreet_.
Page 177, note (_a_) for _majorum_ read _magorum_.
Page 235, note (_b_) for _primes_ read _primis_.
Page 437, line 21, for _violation_ read _volition_.
VOL. II.
Page 188, line 2, for _Nicholls_ read _Mitchell_.
Page 362, line 16, for 301 read 303.
Page 347, line 19, for _portable_ read _potable_.
VOL. III.
Index, for p. 156-184, read 320-348.
INTRODUCTION.
MEDICAL JURISPRUDENCE[1] may be defined, a science by which medicine,
and its collateral branches, are made subservient to the construction,
elucidation, and administration of the laws; and to the preservation of
the public health.
It accordingly resolves itself into two great divisions—into _Forensic
Medicine_, comprehending the evidence and opinions necessary to be
delivered in courts of justice; and into _Medical Police_, embracing the
consideration of the policy and efficiency of legal enactments for the
purpose of preserving the general health, and physical welfare of the
community.
Under no circumstances does medical science assume so imposing and
dignified an attitude, as when regarded as a branch of legislation.
Disentangled from the web with which worldly caprice, credulity, and
empiricism, are ever seeking to embarrass the more ordinary path of her
labours, she at once displays her pride and strength in the number and
variety of her resources, and in the extent and importance of their
applications; while the professor of our art is thus enabled to support
additional claims upon the respect of the learned, the confidence of the
oppressed, and the gratitude of the public. In the active exercise of
his duties as a medical jurist, how exalted and honourable is the
occupation of the physician!—there is scarcely a circle of natural
science, upon the boundaries of which he does not impinge in some point
or other, of his extensive orbit. Trace his progress, for instance,
through the subject of poisons, and we shall soon perceive that it
involves within its range the departments of anatomy, physiology,
botany, mineralogy, zoology, and chemistry. If, again, we follow his
steps through the deviating and perplexing course of homicide, in how
many new and interesting forms will the principles of physiology present
themselves; how frequently shall we find ourselves engaged in the
solution of problems connected with the knowledge of pneumatics,
hydrostatics, and mechanics? If we attend him in the investigation of
nuisances, as affecting the health and comfort of the surrounding
inhabitants, we shall perceive that an acquaintance with the various
branches of natural philosophy, can alone enable him to appreciate the
nature and extent of the evil, or the value of the different plans that
may be proposed for its removal. While the intricate and perplexing
subjects of quarantine and plague police, will require for their
elucidation, the energies of a peculiarly constructed and well
disciplined mind, to concentrate the genuine lights into a focus, and to
dissipate the many specious, but false appearances, with which the
question of contagion has been distorted.
The institution of medicine and jurisprudence, necessarily arose as the
consequence of the physical and moral infirmities of our nature, and
must, therefore, have been nearly coeval with the origin of society. In
the earlier periods, however, of the world, the connection between these
sciences could only have been slight, and scarcely, perhaps,
perceptible; although we are strongly inclined to believe that _Medical
Jurisprudence_ has an origin far more ancient, and an influence far more
extensive, than modern writers have been willing to concede; an opinion
which we are prepared to support by the authorities of profane as well
as sacred writers, and by the history of civilized as well as barbarous
communities. It must be admitted, that no inconsiderable a part of the
institutions of the great law-giver of Israel, was a wise system of
medical police, well adapted for the preservation of the health, and the
amelioration of those evils to which the inhabitants of a tropical
climate must have been exposed; and we read, that Moses was skilled in
all the learning of the Egyptians. In Leviticus,[2] commands are given
to the priests to visit the houses infected with the plague of leprosy,
or with any contagious disease; to examine the inhabitants; to establish
quarantine; to scrape and white-wash the houses; to shut them up, and,
in bad cases, to pull them down. If we descend into later times, we
shall discover the same policy of associating the institutions of
medical police with religious ceremonials; by which the performance of
duties, essential to the preservation of the health, was more
effectually enforced. The author has observed, in the historical
introduction of his “_Pharmacologia_,” that bathing, which at one period
of the world was essentially necessary to prevent the diffusion of
leprosy, and other infectious diseases, was wisely converted into an act
of religion, and the priests persuaded the people that they could only
obtain absolution by washing away their sins by frequent ablution;[3]
but, since the use of linen shirts has become general, and every one has
provided for the cleanliness of his own person, the frequent bath ceases
to be so essential; and, therefore, no evil has arisen from the change
of religious belief respecting its connection with the welfare and
purity of the soul. Among the religious impurities, and rules of
purification of the Hindus, we shall be able to discern the same
principle, although distorted by superstition.[4] So, again, it is easy
to perceive, that the dangers consequent upon vinous inebriation in a
hot climate, suggested the Mahometan prohibition of wine. The religious
ceremonial observed by the ancients, whenever they proposed to build a
town, or to pitch a camp, was evidently an act of legislation, founded
on a just principle of physiology; they offered a sacrifice to the gods,
when the Soothsayer declared, _from the appearance of the entrails_,
whether they were propitious or not to the design. What was such an
inspection but a philosophical inquiry into the salubrity of the
district, and the purity of the waters by which it was supplied?—for it
is well known that in unwholesome situations, especially if swampy, the
viscera of the cattle will universally present an appearance of disease,
which an eye experienced in such dissections, would easily distinguish.
But, in order to shew the universality, as well as the antiquity, of the
policy which we are endeavouring to establish, we propose to furnish the
reader with an illustration, afforded by the superstitions of an
uncivilized race of modern times. The pearl-diver in the East-Indian
fisheries is constantly exposed, during his dangerous occupation, to the
attack of the _Ground-Shark_, a common and terrible inhabitant of all
the seas in those latitudes. In order to avoid falling in with this foe,
the adventurous Indian seeks for safety in supernatural means. Before he
begins diving, the priest, or conjurer, or, as he is termed in the
Malabar language, the _Pillal Karras_, or _Binder of Sharks_, is always
consulted, whose directions upon these occasions are received with
confidence, and followed with the most implicit obedience. The advice
which is given them, under the imposing weight of a religious ordinance,
has, for its sole object, the maintenance of the health of the diver,
and the adaptation of his body for the arduous occupation in which he is
engaged; and it is not a little curious to observe that in the
performance of this duty, the _Pillal Karras_ appears to display a
judgment, which the most enlightened views of modern physiology could
not improve. The diver, for instance, is enjoined to abstain from all
food for some time previous to his descent; a practice, the value of
which will be duly appreciated by those who read our chapter on the
physiology of Suffocation, vol. ii. p. 34.
In those countries, where it becomes necessary to check the increase of
population, we again find that ecclesiastical institutes are made
subservient to state policy; thus the religion of the Island of
Formosa[5] prohibits women becoming mothers before the age of
thirty-five years; and, should they become pregnant before that time,
the priestess procures abortion by violence[6].
In the book of sacred law of the Hindus,[7] the rules for the choice of
a wife are formally and minutely detailed, and will be found remarkably
conformable with our physiological notions respecting the transmission
of disease and deformity.
The knowledge of _Forensic Medicine_, if not as ancient and universal as
the Institutes of Medical Police, may still boast of an early origin,
and a very extensive influence; thus in _Deuteronomy_[8] in cases of
doubtful virginity, the Elders are to be consulted, in order that they
may deliver their judgment from the physiological evidence of the case.
In ancient nations the assistance of the philosopher and physician was
universally required for the prevention, as well as detection of crime;
thus was _Archimedes_ consulted by the king of Sicily, when a workman
was suspected to have fraudulently alloyed the gold in his crown. The
Romans, especially in the reign of _Severus_, _Antonine_, _Adrian_, and
_Aurelius_, constructed several laws, and reformed some others, in
conformity with the sentiments inculcated in the works of _Hippocrates_
and _Aristotle_; the capital crime of procuring abortion was accordingly
limited to those cases wherein the fœtus exceeded forty days; and the
_Emperor Adrian_ passed a decree upon the subject of legitimacy, as
connected with the period of utero-gestation, according to the
physiological opinions with respect to the possibility of retarded
delivery;[9] while _Numa Pompilius_ prohibited the burial of a pregnant
woman, or of one supposed to be pregnant, until the fœtus should have
been extracted, or the state of the uterus ascertained by
dissection.[10].
The trials by ordeal in the dark ages of modern Europe, when the
decision of the most important questions was abandoned to chance or to
fraud, when carrying in the hand a piece of red hot iron, or plunging
the arm in boiling water,[11] was deemed a test of innocence, and a
painful or fraudulent experiment, supplanting a righteous award, might
consign to punishment the most innocent, or save from it the most
criminal of men, have ever been deemed a shocking singularity in the
institutions of our barbarous ancestors. We are ready to admit the
justice of this charge generally; and yet we fancy that, upon some
occasions we are enabled to discern through the dim mist of credulity
and ignorance, a ray of policy that may have been derived from the
dawning of a rude philosophy. Trials by ordeal, as we are informed by
Mr. _Mill_, hold a high rank in the institutes of the Hindus. It appears
that there are no less than nine different modes of trial, but that _by
water in which an idol has been washed_, and the one _by rice_, are
those which we shall select as well calculated to illustrate the
observations which we shall venture to offer. The first of these trials
consists in obliging the accused person to drink three draughts of the
water in which the images of the Sun and other deities have been washed;
and if within fourteen days he has any indisposition, his crime is
considered as proved. In the other species of ordeal alluded to, the
persons suspected of theft are each made to chew a quantity of dried
rice, and to throw it upon some leaves or bark of a tree; they, from
whose mouth it comes dry, or stained with blood, are deemed guilty,
while those who are capable of returning it in a pulpy form, are at once
pronounced innocent. When we reflect upon the superstitious state of
these people, and at the same time, consider the influence which the
mind, under such circumstances, is capable of producing upon the
functions of the body, it is impossible not to admit that the ordeals
above described are capable of assisting the ends of justice, and of
leading to the detection of guilt. The accused, conscious of his own
innocence, will fear no ill effects from the magical potation, but will
cheerfully acquiesce in the ordeal; whereas the guilty person, from the
mere uneasiness and dread of his own mind, will, if narrowly watched,
most probably discover some symptoms of bodily indisposition, before the
expiration of the period of his probation. In the case of the ordeal by
_rice_, a result, in correspondence with the justice of the case, may be
fairly anticipated on the soundest principle of physiology. There is
perhaps no secretion that is more immediately influenced by the passions
than that of saliva. The sight of a delicious repast to a hungry man is
not more effectual in exciting the salivary secretion, than is the
operation of fear and anxiety in repressing and suspending it. If the
reader be a medical practitioner, we refer him for an illustration to
the feelings which he experienced during his examination before the
medical colleges; and if he be a barrister, he may remember with what a
parched lip he gave utterance to his first address to the jury. Is it
then unreasonable to believe that a person under the influence of
conscious guilt, will be unable, from the dryness of his mouth, to
surrender the rice in that soft state, which an innocent individual,
with an undiminished supply of saliva, will so easily accomplish?
These few examples will suffice to shew that Medical Jurisprudence had
an early origin; and yet we are ready to admit that its applications
were extremely desultory, and often, from the infant state of the
sciences upon which it rested, not only imperfect but erroneous; indeed
the question may be very fairly maintained, whether on many occasions
the evidence of the physician has not embarrassed where it should have
enlightened, and misled where it was called upon to direct the steps of
justice. Forensic medicine, however, could scarcely be considered as
constituting a branch of legislation, until its utility was publicly
recognised, and its assistance legally required. This admission will
compel us to assign to Germany the honour of its origin, for the Medical
jurist is first acknowledged, and his services formally required, in the
celebrated criminal code framed by _Charles_ the Fifth, at the Diet of
Ratisbon, in the year 1532, known by the name of the “_Constitutio
Criminalis Carolina_,” and which still constitutes the basis of the
criminal proceedings of the German courts. In the code it is enacted,
that medical men shall be consulted whenever death has been occasioned
by violent means, whether criminal or accidental, by wounds, poisons,
hanging, drowning, or the like; as well as in cases of concealed
pregnancy, procured abortion, child-murder, &c. The publication of such
a code very naturally awakened the attention of the medical profession,
and summoned numerous writers from its ranks. The first of whom were
_Bohn_[12], _Valentini_[13], _Boerner_[14], _Kannegeiser_[15], and
_Struppe_; _Alberti_[16], _Zittman_[17], _Richter_[18],
_Teichmeyer_[19], and _Stark_[20]; some years after whom came
_Hebenstreit_[21], _Ludwig_[22], and _Fazellius_[23].
The first German work of any authority is that of _John Bohn_, published
in 1689, and entitled “_De Renunciatione Vulnerum_,” in which the author
attempts to shew what wounds are necessarily fatal. In 1704, the same
Professor presented to the profession a forensic work of greater range,
for the purpose of giving rules for the conduct of physicians in
attending the sick, and in delivering evidence before a court of
judicature; it is entitled “_De Officio Medici, duplici, clinico et
forensi_.” At about, or rather previous to the publication of this
latter work, the celebrated Pandects of _Valentini_ appeared, which form
a compendious retrospect of the opinions and decisions of preceding
writers on Juridical Medicine. In his preface _Valentini_ endeavours to
enforce the necessity of cultivating this branch of Medical Science; and
although more than a hundred and twenty years have elapsed, how aptly
will his rebuke apply to the medical witnesses of the present
age—“_Evenit sæpe ut etiam illi qui magno Archiatrorum Practicorumque
felicissimorum titulo superbiunt, in publicis hujuscemodi occasionibus
facultatibus, ut Mus in pice, hæreant, ineptisque relationibus
facultatibus Academicis non tantum risum moveant, sed et omnem, qua
prius gaudebant estimationem protinus amittant._” This was followed by
the works of _Kannegeiser_, and of _Frederic Boerner_, medical professor
of Wirtemburg, on various subjects connected with Legal Medicine. The
system of _Alberti_ of Halle, in six volumes quarto, appeared in 1725.
Amongst the numerous questions elucidated by this laborious author, we
may particularize those relating to conception and utero-gestation; and
the reader will perceive that we have frequently availed ourselves of
his opinion upon these points. Nearly cotemporary with _Alberti_, were
_Zittman_, _Richter_, and _Teichmeyer_, from whose writings we have also
had frequent occasion to extract some valuable observations. In 1730 the
progress of Medical Jurisprudence was very considerably advanced by the
publication of the argumentative work of _Storck_, in which the utility
of medical knowledge in assisting the operation of the laws, is very
ably and warmly advocated. The _Anthropologia Forensis_ of
_Hebenstreit_, from which we have so frequently derived useful
information, did not appear until 1753, and was followed by the
_Institutes of Ludwig_, and the _Elements of Fazellius_. In 1781,
_Plenck_[24] published his Elementary work on Forensic Medicine and
Surgery; and in the following year the first volume of _Haller_’s[25]
celebrated Lectures on Juridical Medicine, in the execution of which he
takes the Institutes of _Teichmeyer_ as his text, correcting his errors,
and amplifying his opinions. This work was subsequently completed in
three volumes. In 1784, _Daniel_, by the title of his work[26] published
at Halle, first introduced the term of STATE MEDICINE, as expressive of
that branch of medical science of which we are now treating. The annals
of the close of the eighteenth century are enriched by several important
productions; amongst which may be particularized _Conspectus of
Sikora_[27], the _First Lines of Loder_[28], the _System of Metzer_[29],
and the _Delineations of Muller_[30]. If the reader be desirous of
further information respecting the German literature of State Medicine,
at this period, we must refer him to the great works of _Schlegel_[31]
and _Plouquet_[32]; _Struvius_ likewise in his _Bibliotheca Juris_,
(vol. i. p. 172) refers to the work of _Andreas Otto Goellicke_,
Frankfort, 1723, for an enumeration of the numerous medico-legal writers
of the earlier part of this age.
During the present century we have received two volumes from the pen of
_Metzger_; and in the year 1806, _Knappe_ and _Hecker_ commenced at
Berlin, a periodical publication, under the title of “_Critical Annals
of State Medicine_;” some years after which a similar work appeared
under the superintendance of _Professor Kopp_ of Hanau. In speaking of
the periodical works of Germany, we must not omit to mention that
conducted by _Dr. Scherf_, Aulic Counsellor at Detmold, under the title
of “_Contributions to the Archives of Medical Police_,” which extended
to eight volumes, and was afterwards continued under the appellation of
“_Isis_,” or “_Journal of Medical Jurisprudence and Police_.” To the
catalogue of writers already enumerated, we might add many more; but
having cited the most celebrated works we consider it unnecessary to
adduce farther demonstration of the indefatigable and laborious industry
of the German literati.
The middle of the sixteenth century may be stated as the epoch at which
the subjects of Medical Jurisprudence first excited much attention in
the schools of Italy. The earlier writers, however, would appear to have
studied the science rather with casuistical, than physiological views.
_Fortunatus Fidelis_, who has been regarded as the father of the
Medico-legal literature of Italy, first published his work “_De
Relationibus Medicorum_,” at Palermo, about the period above stated; it
was afterwards republished at Venice, and lastly at Leipsic, under the
care of _Paul Amman_, Professor of Botany and Physiology in that
University. It consists of four books, of which the following may be
received as an outline of the contents, _viz._ I. On Public Food; the
Salubrity of the Air; Pestilence. II. Wounds; Pretended Diseases;
Torture; Injuries of the Muscles; Medical Errors. III. Virginity;
Impotence; Hereditary Diseases; Pregnancy; Moles; the Vitality of the
Fœtus; On Birth; Monsters. IV. Life and Death; Mortality of Wounds;
Suffocation; Death by Lightning and Poisoning.
Amongst the earliest dissertations which appeared on questions connected
with the subject of Jurisprudence, and which merits notice on this
occasion, is one by _Frederic Bonaventura_, an eminent scholar and
physician of Urbino, in Italy, who flourished in the early part of the
seventeenth century, entitled, “_De Natura partus octomestris, adversus
vulgarem opinionem, libri decem._” Francof. 1601; an enormous folio
volume, containing upwards of one thousand pages, on this uninteresting
subject; in which he has introduced the opinions of different writers,
and an account of all the controversies that have been held on the
legitimate period of utero-gestation. The most celebrated however of all
the Italian works which have descended to us, is that of _Paul
Zacchias_,[33] physician to Pope Innocent the Tenth, who was long
considered as the only arbiter of questions relating to any of the
subjects of Juridical Medicine. The estimation in which this work was
universally held may be easily discovered, from the expressions with
which it is mentioned by all cotemporary writers. _Zacutus Lusitanus_,
in alluding to its value, exclaims “Emi,—vidi—legi—obstupui”! When we
consider the period at which it was written, it must certainly be
acknowledged as a very extraordinary work; that it should be overrun
with casuistical subtleties cannot be a matter of surprise; the style
too is entirely scholastic, full of digression, and prolix passages of
erudition, but such was the taste of the age in which it was composed.
We are also to remember that at this period, the philosophy of
_Aristotle_ alone directed the schools, and the doctrines of _Galen_,
illustrated by a thousand servile commentators were, according to the
judgment of that æra, the only sources from which medical opinions could
be legitimately deduced. The study of Anatomy had only then commenced
under the guidance of _Vesalius_, _Columbus_, _Fallopius_, and
_Eustachius_; while Surgery, notwithstanding the labours of _Paré_,
_Arceus_, _Andrew Dalla Croce_, _Aqua Pendente_, and other masters, was
in its mere infancy. Chemistry too was as yet full of conceit and
uncertainty; and Pharmacy was absolutely without any acknowledged
principles. As the great work of _Zacchias_ was composed at different
periods, with considerable intervals between each, we find numerous
repetitions, and contradictions. It is therefore evident, that although
the “_Quæstiones Medico-legales_” may afford much instruction to the
learned physician, it can be of no service to the student; this opinion
is justly expressed by “_Camerarius_[34]—_Quisquis Pauli Zacchiæ opus
legere cum fructu voluerit, insigni jam rerum medicarum notitia
instructus sit oportet; eo magis quod alia sit modernæ Medicinæ facies;
ditissimus enim thesaurus est liber iste, supplendus tamen subinde ex
aliis fontibus recentioribus._”
_Barnardin Ramazzini_, having been struck with the numerous accidents
which had occurred to Nightmen, was induced to direct his attention to
the causes and nature of the asphyxia by which they perished, and to
extend his investigation to the maladies to which the artisans in every
profession were more peculiarly subjected. He accordingly, in the year
1700, published at Padua, an excellent treatise on these affections,
entitled “_De Morbis Artificum Diatriba_,” a work which has retained its
credit as a standard production, and to which all subsequent works on
the same subject have been very largely indebted. It was translated by
_Fourcroy_, who also enriched it with many valuable notes in 1777. It
has also been presented to the public in many other countries, at
different periods, and under various forms; as by _M. Hecquet_, 1740;
_Skragge_, in 1764; _Bertrand_, in 1804; _Gosse_ of Geneva, in 1516; and
_Patissier_, in 1822.
In 1749, Professor _Beccaria_, of Bononia, published his work entitled
_Scriptura Medico-Legalis_, and _Bononi_ in his _Istruzioni Teorico
pratiche di Chirurg_: entered with considerable minuteness into the
subject of Forensic Surgery, especially in its relations to wounds. The
later production however, of _Giuseppe Tortosa_[35], the disciple of
_Caldani_, must be considered as the most elaborate and scientific of
all the Italian works on Medical Jurisprudence. The reader will find
that we have frequently referred to this author; and it is just to
state, that during the progress of our labours we have derived from him
no inconsiderable assistance, in ascertaining the sentiments of the
Medical Jurists of the Italian school, upon various casuistical as well
as physiological doctrines. The work is professed to have been written
with the sanction of his master, _Caldani_, and under the auspices of
_Franck_ of Pavia, and of _Plouquet_ of Turin. He includes in his plan
such subjects only as relate to Forensic Medicine, excluding those which
belong more correctly to the department of Medical Police. The work is
divided into three parts, _viz._ 1. Comprehending all the
principal objects of _Ecclesiastical_ jurisdiction. 2. Subjects
relating to the _Civil_ courts. 3. Those which relate to the
_Criminal_ courts. The subdivisions of each part are arranged in
the following order. PART I.—Conjugal Impotence.—Conjugal
Rites.—Monstrous Births.—Hermaphrodites.—Magic.—Of Persons
possessed of Spirits.—Miracles.—Ecclesiastical Fasting. PART II.
Age.—Pregnancy.—Birth.—Superfœtation.—Cæsarean Operation.—Simulated and
Dissimulated Diseases. PART III. Of Deflowering.—Sodomy.—Torture.—Legal
Examination of Wounds, and Dead Bodies.—Poisoning.—Infanticide.—Homicide
by wounding.—Fœticide.—Accidental Death.
The application of Medical science to jurisprudence may, practically
considered, be said to have commenced in France about the time of
Francis I; but it was not until after the publication of the
_Constitutio Criminalis Carolina_, that the French government, unwilling
to allow their criminal code to remain less perfect and refined than
that of their continental neighbours, decreed that the assistance of
physicians and surgeons should be legally required; and which was at
length rendered still more peremptory by letters patent granted by Henry
IV, in 1606, conferring upon his first physician the privilege of
nominating surgeons in every town to the exclusive exercise of this
important duty; and Louis XIV. in 1667, after having formally declared,
that all Reports which had not received the sanction of such an officer
should be invalid, ordered by a decree, in 1692, that a physician shall
always be present with the surgeon, at the examination of a body[36];
the surgeons, however, of those times were not distinguished by the
knowledge which they now possess; hence, in every thing that did not
directly involve surgical discussion and practice, their reports were
frequently defective. Magistrates were consequently induced to summon
the more learned physician to the assistance of the Juridical Surgeon,
long before it was enforced by the law; a practice, which like many
others, acquired force and regularity from repetition.
_Ambrose Paré_ is acknowledged as the first French writer on the subject
of Juridical Medicine, and his treatise on Reports, published in 1575,
was, for nearly a century, regarded as the only standard authority upon
these occasions; it was, however, at length, to a great degree,
superseded by the more accomplished treatises of _Gendri_ of Angers, in
1650, of _Blegni_ of Lyons, in 1684, and of _Deveaux_ of Paris, in 1693.
This latter work is one of very considerable merit, especially as it
regards the diagnosis and prognosis of wounds.
The eighteenth century, says _Foderé_[37], an æra remarkable for the
conversion of the human mind from the enthusiasm of poetry and the fine
arts, to the cultivation and study of the exact sciences, must be
considered as the auspicious dawn of medico-legal knowledge in France.
The spirit of emulation which animated the rival schools of Surgery and
Medicine, produced men, who enlightened by their talents every
department of the science of Medicine. Professor _Louis_, Secretary to
the Academy of Surgery, taught publicly in the schools the art of
resolving different questions in medical jurisprudence, which previous
to his time had never been practised. Numerous memoirs on its various
branches appeared in succession; eloquence allied itself to science, and
their combined efforts were displayed in this novel mode of benefiting
mankind. Upon the great principles of justice and humanity which
presided at the reform of the penal code, chairs of medical
jurisprudence were established in all the faculties of medicine. In
1788, _Louis_ published at Paris his letters on the certainty of the
signs of death, in answer to the dissertations of _Winslow_ and
_Bruhier_; and of whose judicious remarks we have availed ourselves in
the discussion of the subjects of “Real and Apparent Death.” (_Vol. II.
p. 15_). To the same author we are also indebted for memoirs on
Drowning, and on the means of distinguishing Suicide from Assassination
in cases of death by suspension. His Consultations on the celebrated
causes of _Monbailly_, _Syrven_, _Calas_, _Cassagneux_, and _Baronet_,
which are recorded in the “_Causes Célébres_,” must serve to exalt him
still higher in our estimation. _Winslow_ engaged his talents in the
investigation of the Cæsarean Operation, including its moral, political,
and religious relations. _Petit_ and _Bouvart_ entered the field as
controversialists, and disputed the opinions of _Louis_ on protracted
pregnancy, with considerable ability. The former of these philosophers
wrote also several memoirs on the phenomena of suspension and
strangulation; he, moreover, examined the question relative to the signs
of death from abstinence. _Lorry_ discussed the question of survivorship
with great acuteness and judgment. _Salin_ attempted to deduce from the
character of the organic lesions, an inference with respect to the
nature of the poison that inflicted them; and he illustrated this
opinion in an elaborate memoir on the research of the traces of poison
on the body of _Lamotte_, sixty-seven days after it had been deposited
in the earth; in which he decides that the death was occasioned by
_corrosive sublimate_.[38] And although the nice distinctions which this
ingenious writer laboured to establish never had any existence but in
his own imagination, yet the agitation of so important a question was by
no means unprofitable; it directed the attention of the physician to the
state of the organic lesions, and has ultimately led to some useful
conclusions. While _Salin_ was thus engaged on the subject of poisoning,
_Lafosse_ sought to distinguish the phenomena produced by death, from
the traces of violence inflicted during life upon the body. He,
moreover, developed the unequivocal signs of pregnancy and parturition.
_Professor Chaussier_, in the year 1789, by a memoir, to the Academy of
Sciences at Dijon, on the great importance of the study of juridical
medicine, excited a spirit of emulation which was productive of the
highest advantage. At about this period also the memorable
“_Encyclopédie Méthodique_,” was undertaken, in which the celebrated
authors already named contributed their powerful assistance, in
conjunction with _Professor Mahon_, in compiling the elaborate articles
upon Medical Jurisprudence. Such were the materials, says _M. Foderé_,
which enabled me to publish my first systematic work[39] on this science
in the year 1796.
In the first few years of the present century the science of juridical
medicine received numerous contributions from the French physicians. _M.
Vigné_, of Rouen, published in 1805 his humane and enlightened
reflections upon its practical applications; a work which bears internal
evidence of the science as well as the judgment of its author. In the
year 1807, the system of _Professor Mahon_ appeared, not, however, until
after the death of its author; _M. Fautrel_ having undertaken the charge
of arranging the manuscript, of illustrating it with notes, and of
giving it to the world.[40] Nearly at the same time the small, but
useful work of _Belloc_[41] was published; and in the following year
_Marc_[42] translated the German manual of _Rose_ on juridical
dissection, and enriched it with original observations; to which he also
subjoined two memoirs on the obscure subject of the “_Docimasia
Pulmonaris_.” We have deemed it necessary to introduce to our readers
this slight sketch of the literary history of Medical Jurisprudence in
relation to its progress in the several countries of Germany, Italy, and
France; for much of the information thus afforded we are indebted to the
elaborate system of _Professor Foderé_,[43] published in six volumes, in
the year 1813, and which must be regarded as a new work, rather than the
republication of that already noticed, as having appeared in 1796. From
this voluminous treatise we have frequently, in the progress of our
present undertaking, made copious extracts. It becomes our duty
therefore to present our reader with some account of the extent of its
objects, and the order of their arrangement. The author divides his work
into three parts, viz. the _First_ comprehending subjects of a mixed
nature, or those which admit of application to civil as well as criminal
cases, “_Médecine Légale mixte_.” The _Second_ exclusively relating to
criminal jurisprudence, “_Médecine Légale Criminelle_;” and the _Third_,
to medical police, “_Médecine Légale Sanitaire_.”
The work opens with a learned introduction, in which the importance of
the science is fairly examined, and its history pursued with much
detail, from its origin, to the period at which the author wrote. The
qualifications of the forensic physician are also considered, and the
different circumstances opposed to the success of his labours,
enumerated and appreciated. Then follow in succession the subjects of
the first division, viz. the different ages of human life, puberty,
minority, majority, with the anomalies to which the natural growth and
developement of the body are liable. Personal identity and resemblance.
The relative and absolute duration of life. The grounds of prohibition
in testatorship, such as habitual, periodical, and temporary insanity;
suicide; deaf and dumb state; somnambulism; intoxication. The
qualifications of testators and witnesses. Marriage and divorce.
Pregnancy, true and false. Parturition, and the signs denoting the death
of the fœtus in utero. Paternity and filiation. Premature and retarded
births. Monsters. Hermaphrodites. Survivorship. Signs of real and
apparent death. Treatment of the different varieties of Asphyxia.
Certificates of exemption, and diseases which exempt. Feigned,
dissimulated, and imputed maladies.
The _Second_ division commences with the third volume, and includes, in
their respective order, chapters on the examination of bodies found
dead. The distinction of assassination from suicide. Wounds. Poisoning.
Rape. Abortion. Concealment and substitution of the offspring; and
Infanticide.
The _Third_ division, with which the fifth volume commences,
successively treats of the preservation of the human species, and of the
means of remedying its physical degeneracy. Contagious, hereditary, and
epidemic diseases, and the precautions to be adopted against them. The
medical police of cities, with regard to aliment, arts, manufactures,
and attention to the sick. Military and naval hygiène; and, lastly, the
medical police of hospitals and prisons.
No work of similar calibre had been previously published, and its
execution is a sufficient proof of the profound erudition and sterling
ability of its author; but it is by no means calculated to assist the
inquiries of the English physician. It is often unnecessarily prolix and
minute, and is adapted only to the judicial courts of the continent.
Since its publication numerous writers on detached questions have sprung
up, and thrown much additional light on their obscurer points. The
subject of poisons has been very ably elucidated by the researches of
_Professor Orfila_[44], and in a work[45] still more recently published
by that distinguished professor, the applications of Toxicological
Science to Forensic inquiries have been more minutely considered.
The subjects of conception and delivery, with the various questions to
which they have given origin, have been very ably discussed by _M.
Capuron_;[46] from whose work it will be perceived we have derived much
satisfactory information.
After the historical view which we have taken of the continental
literature of the subject, we fear that the labours of our own
countrymen, in this department of science, will suffer a disparaging
comparison; and yet we trust that any temporary feeling of inferiority
and humiliation thus excited, will easily yield to the just conception
of the circumstances to which the neglect of the subject is to be
attributed.
Although numerous questions connected with objects of forensic
inquiry had been discussed and illustrated in the various periodical
journals of Great Britain, yet no work, professing to treat of
Medical Jurisprudence, appeared previous to the small and imperfect
production of _Dr. Farre_ in 1788, entitled “_Elements of Medical
Jurisprudence_,”[47] and which was rather an abstract of a foreign
work, than an original essay. The next in succession was a
“_Treatise on Medical Police_,” by _Dr. Robertson_, in two volumes,
published in 1808. In 1815 _Dr. Bartley_, of Bristol, presented us
with “_A Treatise on Forensic Medicine_,” than which it is
impossible to conceive any production more meagre or imperfect. _Dr.
Male_[48] is undoubtedly entitled to the grateful notice of the
medical historian, as the author of the first respectable English
book on forensic medicine.
The last, and by far the most comprehensive and instructive work that
has appeared in this country, is by _Dr. Gordon Smith_, entitled “_The
Principles of Forensic Medicine, systematically arranged, and applied to
British Practice_.” London, 1821.
In addition to the above writings, we may record the “_Medical Ethics_”
of _Dr. Percival_; which, although not intended, nor indeed calculated
for practical instruction, contains some interesting allusions to our
subject. Nor must we omit to enumerate the several valuable monographs
with which different English physicians have sought to advance the
progress of medico-legal inquiry; as, for instance, the celebrated paper
of _Dr. Hunter_, “_On the Uncertainty of the Signs of Murder in the case
of Bastard Children_;” _Dr. Haslam’s_ intelligent and judicious essay
“_On Medical Jurisprudence, as it relates to Insanity, according to the
Law of England_;” and _Dr. Hutchinson’s_ laborious “_Dissertation on
Infanticide_.”
Some of the more important subjects of Public Health, received also
early notice, and were very ably investigated by our physicians. The
plan of ventilating the holds and lower decks of ships, as proposed by
_Sutton_ in 1739, must have fallen into total neglect, through the
unaccountable prejudice of the Admiralty, had it not received the
powerful support of _Dr. Mead_, by whose advice experiments were
publicly made, the success of which was, in the year 1741, acknowledged
in an order of his Majesty that all vessels belonging to the Navy should
be provided with ventilators. About the same period _Hales_ published
his celebrated memoir on the various causes which influence the health
of seafaring men, and on the precautions necessary to be taken to
prevent those maladies which frequently display themselves in ships and
other confined situations; among which modes of safety the most
important was a plan of ventilation by means of very ingenious bellows,
and which were used with much success in the prisons of Porchester
castle, Winchester, and Newgate;[49] and in the several hospitals of
London, Bristol, and Northampton.
In the year 1803, on the presentation of a memorial to his late
Majesty’s ministers, urging the expediency of a Professorship of Medical
Jurisprudence, in the University of Edinburgh, a Chair was endowed, and
_Dr. Duncan, junior_, appointed to fulfil its duties; which, for many
years he has continued to perform, with infinite credit to himself, and
with equal advantage to the University and to the public. In the schools
of England we continue to suffer from the want of such an establishment;
_Dr. Harrison_, a few years since, read some lectures on the subject in
the Medical Theatre of Windmill street; and _Dr. Gordon Smith_, has
announced his intention of devoting himself to the duties of a public
lecturer on Medical Jurisprudence. _Dr. Elliotson_ has also lately
published his “Introductory Lecture of a Course upon State Medicine,”
which he proposes to deliver in the Anatomical Theatre in Southwark.
But it has been demanded, and in a tone, as it would seem, suggested by
the feelings of mortified pride and disappointment, how it can have
happened that in Britain, a country distinguished above all others for
the unceasing jealousy and circumspection with which every thing that
even remotely interests the life and comfort of the subject is
scrupulously regarded, a science so peculiarly calculated to control the
disorders of the social system, to rescue innocence from infamy or
death, and to lead to the detection and punishment of crime, should for
so long a period have been imperfectly appreciated, and utterly
neglected?
The answer to the charge is obvious, and, we trust, satisfactory. The
progress of medical knowledge, including its collateral branches of
science, can only within a few years be said to have rendered its
applications available to the laws; while the spirit of British liberty
and independence not only resists the perpetual intrusion of
authorities, so necessary in other countries for the preservation of the
public health, but insures, without the aid of legal enactments, all the
benefits which can accrue from domestic cleanliness and attention.[50]
But upon each of these points it will be necessary to offer some farther
remarks.
That the evidence afforded by an improving, but still precarious and
imperfect physiology, should have been indiscriminately received at the
tribunals of those countries where the decision of questions of justice
is too often influenced, and even directed by the subtleties of
casuistry, may be regarded as a subject of regret, but can scarcely
excite the feeling of astonishment. Nor can we, on the other hand, be
surprised to find, that the extreme jealously of the British courts of
judicature should have resisted testimony which admits of being
depreciated, or in any degree rendered questionable, by the doubtful
controversies of science. So rapid, however, has been the progress of
the leading branches of medical knowledge during the last ten years; and
so successfully have they disentangled themselves from the many fatal
fallacies with which they were encompassed, that the general prejudice
against their practical utility, in advancing the administration of
justice, must gradually subside, and the study of forensic medicine
become universally popular. To strengthen our conviction upon this point
we have only to compare the evidence of medical men, as delivered in the
courts of justice during the last, and present century. Even so late as
the period of _Sir Thomas Browne_, we find that learned physician
bearing public testimony to the reality of diabolical illusions, and
occasioning, by his evidence, the conviction and condemnation of two
unfortunate persons, who were tried at Bury St. Edmonds before the Lord
Chief Baron _Sir Mathew Hale_, on the capital charge of bewitching the
children of a _Mr. Pacey_, and causing them to have fits![51] In
examining the chemical evidence in cases of poisoning, let us only
compare that which was given by _Dr. Addington_ on the trial of _Mary
Blandy_, at Oxford in 1752, (_see Appendix, p. 236_) with that which has
been delivered on any of the trials of the present day. Compare again
the nature of the physiological evidence which has been received as
satisfactory and conclusive, in cases of infanticide, with that which is
acknowledged by the most distinguished physicians of our own times to be
wholly inadequate to establish even a presumption of guilt.
With regard to the next point under consideration, viz. the expediency
of an extended system of medical police in a free country like Great
Britain, we have only to observe that, if we examine the extent of such
institutions in the different states of Europe, we shall find it
universally conformable with the genius, circumstances, and necessities
of each government. Sweden, for instance, a country which from position,
climate, and population, is relatively feeble, has found it necessary,
for its very existence, to cultivate with assiduity the few resources
which nature has bestowed upon it; and, hence, by a well digested system
of medical statistics,[52] it has been enabled to achieve extraordinary
and brilliant actions, and to repair immense losses which it would
otherwise have been unable to survive.
In Paris there exists a complete system of “_Assainissement_,” or police
for the preservation of the public health. Its administration devolves
upon _M. le Préfet de Police_, who for some years resorted to chemists
and physicians for advice upon the different questions that might arise;
upon such occasions, however, it is evident that he could only obtain
that isolated advice, which, for want of having been properly discussed,
was frequently arbitrary and weak; he had indeed sometimes temporary
commissions, which were formed when any important problem was to be
solved. In the year 1802 a council of health was, on the recommendation
of _M. Cadet de Gassicourt_, permanently established. At first it only
consisted of four members; but the new avocations required day by day,
so multiplied their labours, that they were compelled in 1807 to
increase the number of members composing it to seven; and the particular
attention necessary to be paid to epidemical diseases determined _M. le
Préfet_ to add to it two physicians. The duties of this council of
health were, to watch over all insalubrious manufactories and workshops;
to collect observations on epidemics, and on the sources from whence
they arose. They had, moreover, the charge of superintending the
cleansing of the markets, rivers, slaughter-houses, butchers offal,
burying-places, sewers, &c. and also of inspecting the public baths; the
manufactories of the artificial, and the depots of the natural mineral
waters; the amphitheatres for dissection; of making statistical
researches on the bills of mortality; on the means of rendering the
theatres, hospitals, and other public places more salubrious; on the
best system for heating and lighting; on the composition of secret
remedies; suspected vessels, &c. When this council received its definite
organization, it was composed of the following persons, whose names are
a sufficient guarantee of the ability with which the duties of the
establishment must have been performed—_M. D’Arcet_, _M. Le Chevalier
Cadet de Gassicourt_, _MM. Deyeux_, _Berard_, _Huzard_, _Leroux_,
_Dupuytren_, _Pariset_, _Petit_, _Marc_, and _Girard_.
An establishment similarly constituted in this country, that should from
time to time report its labours to the home department, would without
doubt be attended with much advantage, and might suggest many police
regulations highly conducive to the health and welfare of the community.
Of the severity of the French system of police, “Pharmaco-legale,” the
reader may form some idea, when we inform him that, during the progress
of the present work through the press, an apothecary of Verdun has been
fined three thousand francs, for selling sulphuric acid to a woman who
had poisoned herself with it. We are very far from objecting to such a
system, especially where the respectability and knowledge of the vender
are not guaranteed by an adequate power vested in some medical
corporation. In Germany a mistaken policy exists of regulating every
thing connected with health by the law, and which has led to the
formation of a cumbrous code of contradictory, and often, injurious
enactments.
The legislature of Britain has been accused of apathy upon all subjects
in which the prosperity of commerce is not involved, and upon such
occasions it is said to display a morbid vigilance and activity; “so
truly mercantile are the English,” observes _Professor Raynal_, “that
they mix up commerce with their philosophy, and even with their
religion;” as a proof of this, he instances _Mr. Locke_, who, amongst
his arguments for converting the Indians, adds that, “by being thus
induced to cover their naked bodies, they would add to the consumption
of British manufactures.” We do not admit the allegation, and may be
allowed to ask, in what country the fruits of commerce are more
liberally devoted to the encouragement of science, or to the promotion
of religion? In truth, the benefits which are enforced by the legal
enactments of other countries, are in England the spontaneous
consequence of individual liberality; and what is that repose which the
jealousy of our rival neighbours has denominated apathy, but the placid
expression of satisfaction experienced by the whole community at the
active liberality of the numerous individuals of which it is composed?
We are, nevertheless, willing to admit that occasions do exist in which
the interference of the legislature might be made subservient to the
preservation of the public health; and, in the course of our work, we
have not felt any hesitation in directing the attention of the reader to
their several merits. We have, in particular, recommended some
enactments in cases of epidemic disease. Under such circumstances of
public calamity the people naturally look for the sympathy and support
of their government; and the general confidence inspired by a public
act, however unimportant in itself, will always be attended with
advantage; it will have the tendency to diminish the susceptibility of
the people, and to limit the ravages of disease. The sages of ancient
Rome were deeply sensible of this important fact in the œconomy of the
people; whenever, therefore, their city was threatened with pestilence,
a dictator was elected with great solemnity, for the sole purpose of
driving a nail into the wall of the temple of Jupiter; and thus, while
they imagined that they propitiated an offended deity, they diminished
the susceptibility to disease, by appeasing their own fears.
Much benefit might also be conferred on the operative classes of
society, by some judicious enactments that should ensure the adoption of
the various plans of safety and protection, which science has from time
to time discovered for the advantage of those who are engaged in the
more dangerous occupations and manufactories; but which, from the apathy
of some, and the prejudice of others, have been either heedlessly
neglected, or illiberally and insolently repulsed. The blind opposition,
which such inventions meet with, is well illustrated in the history of
the _safety lamp_ of _Sir Humphry Davy_, an instrument which has
completely succeeded in use, and yet such is the obstinacy of the
miners, that many of them continue to expose their own lives, and those
of their companions, by carrying open lanterns about the galleries of
the mines. The author of the present work has personally experienced the
same mortifying insensibility and opposition, in his attempts to prevent
the awful accidents that so frequently occur in the mines of Cornwall,
from the premature explosion of gunpowder,[53] in the operation of
blasting rocks.
In the processes of _needle-pointing_ and _dry-grinding_, the artisans
rarely live many years, in consequence of the organic mischief produced
in the pulmonary organs, from the fine metallic particles that are
inhaled during the operation; to obviate such a source of danger, the
Society of Arts offered a premium for any invention that might afford
security, and their gold medal was, in consequence, presented to _Mr.
Abraham_, of Sheffield, for his “_magnetic guard_.” Notwithstanding the
expediency of this apparatus, we understand that the greatest opposition
has been manifested by the workmen to its introduction. From the extreme
danger of the process their wages are very high, and they fear that the
adaption of any system that may diminish the risk will be followed by a
corresponding reduction in their pay.
Surely such a subject well deserves the attention of the legislature. In
France the _Prefet de Police_ would prohibit the carrying on of such
arts, unless every means of safety were applied. Such a measure was
adopted in the case of the _water-gilders_ in Paris, who hesitated to
employ the means of ventilation suggested by _M. d’Arcet_ for their
security. It is not our intention to recommend a jurisdiction so
absolute and summary, but some enactments should be framed that might
secure the safety of the artisan, without infringing upon the liberty of
the subject.
Wherever governments have interfered for the purpose of encouraging and
rewarding, or of prohibiting and restraining, particular medical
opinions or practices, the inexpediency of such interference has
generally been soon discovered and demonstrated. What could have been
more absurd than the attempt of the French parliament to proscribe the
use of antimony,[54] or the sale of poppy oil;[55] or the enactments of
the different governments of Europe to restrain the custom of smoking
tobacco.[56] The pension conferred by the French government upon _M.
Sigault_[57] for the invention of a new mode of facilitating delivery,
in cases of difficult parturition; and the medal which was struck to
commemorate it, were measures not less inconsiderate and absurd than the
vote, by our own parliament, of five thousand pounds to _Mrs. Stephens_
for the supposed discovery of a medicine that could dissolve a calculus
in the bladder. But it may be said that we are reasoning against the
propriety of a practice from its abuse—That may be very true; but our
object is to shew that such a practice is pre-eminently exposed to
fallacy and abuse. We profess ourselves, generally, hostile to the
policy of remunerating medical discoveries, as they have been termed, by
grants of money; although we cheerfully tender our homage and thanks for
the great service rendered this country and the world, by the liberal
support which the government has afforded to the cause of vaccination;
and were the minister even now to withdraw the necessary supplies for
the continuance of the vaccine board, the consequences that would, under
such circumstances, ensue, afford a subject of the most awful
consideration.
According to the view which we have taken of the subject of medical
police, as necessary to the welfare of this country, our attention is
necessarily directed to the Royal College of Physicians, as the only
legitimate source from which the government is to derive its
information, and the public their protection. No apology therefore can
be necessary for the minute research by which we have endeavoured to
ascertain and establish their existing rights and privileges. Under any
circumstances it must be an object of the first importance to the
profession, but at the present period the inquiry would seem to be
marked with a more than ordinary degree of interest, as the anticipated
removal of the College, and the increased attention which has been
recently drawn to the subject, appear to promise considerable
improvements not only in the interior arrangement of that learned body,
but also in their public relations.
His present Majesty has afforded an early instance of his regard for our
principal medical corporation, by an act of favour no less important to
the institution, than honourable to the learned and distinguished
physician who presides over its rights and interests, as will appear by
the following
ROYAL LETTER.
“THE KING desires SIR HENRY HALFORD, as President of the Royal College
of Physicians, to announce to the College assembled, that it is the
King’s pleasure in future, that the President for the time being, should
always hold the office of Physician in Ordinary to His Majesty. The King
has great pleasure in making this communication during Sir Henry’s
Presidency, from the sincere regard He entertains for him, and the very
high estimation in which He holds his character and abilities.
“Signed. G. R.
“_Carlton House,
Jan. 18th, 1822._”
_To which the College voted the following Address._
‘TO THE KING’S MOST EXCELLENT MAJESTY.
‘SIRE,
‘We, the President, Elects, and Fellows of the Royal College of
Physicians, humbly approach your Majesty with our most grateful
acknowledgments for the mark of Royal favour with which your Majesty has
been pleased to distinguish us by an order written and signed by your
Royal hand, addressed to SIR HENRY HALFORD, Bart. our President,
commanding him to declare to the College assembled your Majesty’s Royal
will and pleasure that every future President of the College of
Physicians, for the time being, shall hold the office of one of your
Majesty’s Physicians in Ordinary.
‘We associate, SIRE, with this mark of your Royal kindness the pleasing
remembrance of the circumstances of our original foundation by your
Majesty’s illustrious predecessor King _Henry_ the VIII, and dare to
presume from so gracious a proof of your confidence in us, that your
Majesty entertains a favourable opinion of our institutions and
discipline, as calculated to make our profession respected in this
country, above what it is in any other part of Europe, and most capable
of forming a Physician worthy to be placed near the sacred person of the
King.
‘To our President, SIRE, we entrust this expression of our dutiful
thanks, our loyalty, our attachment, and devotion to your Majesty, and
we pray that no weight of cares which your Majesty’s great office
imposes upon you may prove injurious to your health; and that Providence
in His infinite goodness, may continue to watch over a life so highly
important to the welfare, and happiness of your kingdoms.’
--------------
It now only remains for us to offer some observations upon the plan and
execution of the work before us.
The classification of the various topics of forensic medicine has ever
been a fertile source of controversy; and we will venture to assert
that, from the diversity, as well as versatility of the numerous
subjects involved in the study of medical jurisprudence, no arrangement
can ever be constructed which shall vie, in perspicuity and precision,
with that of most branches of natural science, the objects of which,
however numerous, maintain a mutual relationship, and admit of being
displayed in a striking and natural order of connection. If an
arrangement be attempted to meet the legal view of the subject, such,
for instance as that proposed by _Professor Plenck_, of Vienna, and
adopted by _Tortosa_ and many others, viz. of distributing the subjects
according as they relate to the _criminal_, _civil_, or _ecclesiastical_
court, we shall immediately perceive that the same subject will
frequently belong with as much propriety to one division, as to another,
and may require to be considered under all; thus, insanity must come
before a _civil_ court when the person is supposed incapable of managing
his own affairs; and before a _criminal_ tribunal, when the soundness of
a murderer’s intellect is disputed. _Professor Foderé_, it must be
admitted, escapes from this difficulty by creating, under the term
“_Medecine Lègale mixte_,” a division that comprehends subjects
appertaining at once to the civil and criminal law; but it will be
immediately perceived that such a scheme is far too general and
indefinite to ensure the advantages of systematic arrangement, or even
to merit the appellation of a classification. If, on the other hand, an
arrangement be projected upon purely physiological and pathological
principles, such as that adopted by _Valentini_, in his “_Corpus juris
Medico-legale_,” and which was followed by _Roose_, and very lately
preferred by _Dr. Elliotson_,[58] we shall find that similar
embarrassments will arise, with respect to their legal relations, as we
have just stated must attend their physiological bearings, where the
basis of the classification has an exclusive reference to the law. The
same objections will apply to the divisions of our respected cotemporary
_Dr. Gordon Smith_, who appears to have appreciated all the difficulties
of the subject, and, like ourselves, to have despaired of the success of
any attempt to surmount them. He arranges the subjects of forensic
medicine into three parts, viz. 1. _Those which regard the extinction of
human life_; particularly by unusual or violent means; such are many
kinds of sudden death, and all cases of homicide. 2. _Injuries done to
the person, not leading to the extinction of life_; such are disfiguring
and maiming, causing diseases, the violation of females, &c. 3.
_Circumstances connected with the physical system, that disqualify for
the discharge of civil offices, or the exercise of social functions_;
such are mental alienation, the existence of certain diseases, the want
of certain organs, &c.
After mature consideration, the arrangement which has been followed on
the present occasion, although greatly liable to the many objections
which we have so strongly urged against that of other writers, appears
to the authors to be the one best calculated to accomplish the mixed
objects of the publication. The ample synopsis of this arrangement, as
presented in the table of contents prefixed to the present volume, would
render any detailed account, in this place, superfluous. We have only to
observe that the work is divided into three parts, the _first_
comprehending the enumeration of the different medical corporations,
with an account of their charters, powers, and privileges, together with
the subjects of medical police. The _second_, all those subjects
connected with medical evidence, as applicable to _civil_ and
_ecclesiastical_ suits, in which the order of the subject corresponds
with that of the progress of human life from infancy to old age. The
_third_, the inquiries which are necessary to medical evidence, as
applicable to _criminal_ cases.
In limiting the boundaries of each division, it will be perceived that
we have strictly adhered to the general principle of excluding every
topic that had not some direct or constructive relation to the health,
life, and physical welfare of the subject. Had we regarded chemistry as
synonimous with medicine, and pursued the numerous subjects in which it
might be rendered available in the construction, elucidation, and
administration of the laws, we should have far exceeded the scope of our
labours, and have wandered into a rich and imperfectly explored region,
as boundless in its extent, as it is interesting in the novelty and
utility of its productions. In this case the subject of patents would
have formed a prominent feature in the second division of our work; for
so rapid is the progress of chemical science, and so precarious the
language by which its growing objects and phenomena are expressed, that,
in the present state of the law, it becomes an extremely delicate task
to draw the specification of a chemical patent in such terms as to
escape the snares which ingenuity is ever ready to invent for its
destruction. We cannot, perhaps, better exemplify the truth of this
position than by the relation of a case that has lately excited a
considerable share of public interest. A patent was granted to _Messrs.
Hall_ and _Urling_, for a new mode of manufacturing lace. The merit of
the improvement turned upon the mode of singeing or burning off the raw
ends of the cotton by a flame of gas, which was made to play rapidly
through the meshes of the lace, instead of the red hot cylinder, over
which it is commonly passed. The infringement of this patent by _Boote_
formed the grounds of the action. The defendant stated that he had
employed the flame of burning alcohol for this purpose, which not being
a _gas_, but a _vapour_, could not be said to fall within the meaning of
the plaintiff’s specification. Fortunately for the justice of the case,
an additional apparatus was required to draw the flame through the
meshes of the lace, and, without such a contrivance, the operation
whatever might be the nature of the combustible _gas_, or _vapour_,
employed, could not succeed; and since it is an acknowledged principle
that an adoption of any part is an infringement of the whole, a verdict
was returned for the plaintiff. But suppose the merits of the case had
wholly rested, as had been expected, upon the distinction between _gas_
and _vapour_; the chemical evidence would no doubt have urged that the
one being permanently elastic and incapable of condensation, must be
considered as very distinct in its nature from the other which admitted
of being condensed into a liquid. Under such a conviction the plaintiff
might probably have lost his verdict. But had the same trial, under the
same circumstances, been deferred only for a few weeks, the effect of
the chemical evidence must have been widely different, _Mr. Faraday_
having, within the last month, succeeded in condensing no less than
nine[59] of these gaseous bodies that were universally acknowledged to
be permanently elastic! and thus has this ingenious and indefatigable
chemist, by a happy generalization, annulled the supposed characteristic
distinction between _gas_ and _vapour_.
The subject of forgery, and of frauds upon banker’s checques,
accomplished by the well-known agency of acids in discharging ordinary
writing, would upon the same grounds have been considered as a
legitimate object of medical jurisprudence; and we should have proceeded
to inquire into the different chemical means by which such frauds might
be prevented.[60] The subject of nuisances would also have received a
more extended notice; and we should not have deemed it necessary to
limit our observations upon the detection of fraudulent adulteration to
those substances, the purity of which is essential to the health of the
community. But it is unnecessary to multiply examples in proof of the
latitude of the subject, or of the utter impracticability of any attempt
to pursue its ramifications in the present work.
In our physiological illustrations we have, upon all occasions, sought
to establish general principles for the solution of the various problems
of forensic medicine. It has been said that “it is not so much the
knowledge of the laws of physiology, as that of the exceptions to which
they are liable, that is required in elucidation of abstruse
medico-legal questions.” If this were admitted, the propriety of such
scientific applications might be altogether doubted. “_Leges fiunt de
his quæ vulgo, non de his quæ raro eveniunt_”; but, in truth, the
exceptions of Nature are but apparent—the mere illusions arising from
our imperfect view of her phenomena; and will diminish as our knowledge
increases, just as the motions of the heavenly bodies cease to appear
irregular as soon as their orbits are submitted to a more extended field
of observation.
The second volume of our work commences with a physiological research
into the “Causes and Phenomena of Sudden Death.” To the views developed
in this chapter we are the more particularly anxious to direct the
attention of the student, as they may be said to constitute the centre,
and master-key of forensic physiology; while the obvious importance of
their applications, in directing the treatment of asphyxia and cases of
poisoning, will convey a striking rebuke to those who still deny the
_practical_ utility of such researches. We might even extend this remark
to the more ordinary duties of the surgical practitioner, and in support
of its truth, maintain, that he can neither fully comprehend, nor
successfully treat the more important symptoms which attend injuries of
the head, without an acquaintance with those mutual relations which
subsist between the functions of the brain and heart, and those of the
organs of respiration. To an ignorance of such views we may trace the
origin of those discordant opinions which have existed with regard to
the proper mode of treating concussion, or compression of the brain.
Some practitioners, from having observed that the action of the heart
frequently becomes enfeebled on these occasions, have unconditionally
insisted upon the necessity of cordials; while others, reasoning upon
the state of the brain, have with equal confidence advocated the
propriety of immediate and copious depletion by the lancet. Let us see
how far a knowledge of the physiological doctrines to which we have
alluded will reconcile such conflicting opinions, and point out the
proper plan which ought to be pursued in such cases of difficulty.
It has been stated,[61] that the first violent impression upon the
brain, whether occasioned by an external force, or a “_coup de sang_,”
from hemorrhage within the skull, will be very liable to produce
syncope. This effect, when it occurs, ought of course to be
distinguished from the more ordinary symptoms of concussion and
compression, and which may be said to approach the nature of
suffocation, rather than that of syncope, as they depend upon impeded
respiration, from a failure in the action of the muscles which are
essential to it. In the former case it would be highly injudicious to
resort to the lancet, until the action of the heart shall have been
restored by cordials; whereas in the latter, prompt and copious
blood-letting must be considered as the most effectual of all the
resources of art.
For much of the novelty contained in this part of our work, the reader
will find that we are greatly indebted to the liberality and friendship
of _Mr. Brodie_, who afforded us the assistance of his _Manuscript
Notes_, from which he delivered his lectures from the anatomical chair
of the College of Surgeons.
With regard to the manner in which the subjects have been individually
elucidated, we may venture to hope that, in a work of such extensive
range, the reader will scarcely expect to find every department equally
elaborate in execution; our discretion on this point has been, in great
measure, directed by the degree of importance attached to each subject,
and the extent and nature of the popular fallacies with which it is
surrounded. In dealing with subjects thus embarrassed we have ever
deemed it a great point to clear away every adventitious incumbrance, so
as to make a naked circle around the object in dispute, and to afford an
uninterrupted view of it on every side. We have, therefore, in pursuance
of such a principle, endeavoured to bring the leading points of
controversy within the scope of a few prominent questions, that we might
discuss the merits of each with a share of attention commensurate with
our idea of its importance. The advantages of such a plan will receive,
we trust, a favourable exemplification in our history of poisons.
For our numerous quotations, if any apology be necessary, we may offer
that of the learned _Tortosa_, deeming it more expedient to incur the
charge of scholastic affectation, than to leave our readers in the dark,
as to the sources from which we have derived our information, and
particularly as we are thus enabled to furnish the student with various
references to which he may advantageously apply for more extended
information.
Some writers have objected altogether to the science of Medical
Jurisprudence, alleging that it is an unnecessary addition to the
already too numerous pursuits of the medical student; to their doctrine
we cannot assent, even though so high an authority as a dictum of _Sir
Wm. Blackstone_ is adduced in its support; the learned commentator says,
“for the gentlemen of the faculty of physic, I must frankly own that I
see no special reason why they in particular should apply themselves to
the study of the law; unless in common with other gentlemen, and to
complete the character of general and extensive knowledge—a character
which their profession beyond others has remarkably deserved. They will
give me leave, however, to suggest, and that not ludicrously, that it
might frequently be of use to families upon sudden emergencies, if the
physician were acquainted with the doctrine of last wills and
testaments, at least so far as relates to the formal part of their
execution.” It is not merely our object to show that, in common with
other gentlemen, medical practitioners should have some general
knowledge of the law, without which they cannot in any scene of life
discharge properly their duty either to the public or themselves; but to
demonstrate, that there are many and intricate branches of law, in which
the physician or surgeon, by competent knowledge, may not only
materially serve himself in reputation, and his patients by advice, but
also render important benefit to the community.
It is true that medical practitioners, for reasons hereafter stated, are
exempt from serving on juries, and are seldom charged with magisterial
duties, at least till they have retired from the more active employment
of their profession; it must be remembered, however, that they are
charged with important and peculiar jurisdictions; and it is impossible
to look at the various litigations which we have enumerated in the first
part of our work, without feeling that every member of the medical
colleges ought to possess some legal knowledge. Can the President and
Censors of the College of Physicians execute their power of fine and
imprisonment; can they restrain unlicensed intruders, or punish the bad
practices of ignorant pretenders, without some study of the law? can
they vindicate their rights without reference to the numerous acts of
parliament on which they are founded? can they prove the guardians of
the public health, without knowing the enactments by which it is
protected? can they advise the legislative or executive power on
numerous points submitted to their consideration, (as vaccine
inoculation, quarantine, &c.) without understanding the bearings of the
question referred to them? can they in fine do or advise any public act,
without considering either the existing law as it may stand, or the
policy and mode of future enactment? they may indeed state as much of
the medical, chemical, or physiological facts of each case as their
imperfect view may enable them to take; leaving it to the lawyer, who
knows no physic, to correct the errors of the physician who knows no
law. That acts of parliament have been framed on this principle of the
mutual independence of law and science, it were vain to deny; but that
they would have been better framed, if the parties employed in drawing
them up had possessed some understanding in common on the subject before
them, is equally indisputable. Let us therefore hope that, when our
reader shall have considered the many points in which medicine and its
branches may become auxiliary to legislation or government, he will feel
convinced that legal studies are not useless to medical practitioners in
their public capacity.
In considering the use of legal knowledge as applicable to private
practice, _Sir William Blackstone_ has mentioned one of many instances;
it would be useful if the medical attendant were acquainted with at
least the formal part of executing wills; in the moment of danger and
distress, when all around the bed of death are confused with fear, or
overwhelmed in affliction, the physician, probably a confidential
friend, whose duty and habit ensures self-possession, may be the only
person competent to advise. How many estates have been lost to the
intended heir, by the want of a third witness to a devise of real
property? or by an attestation informally signed, because the curtains
of the bed were drawn, and the testator could not see the witnesses?
From considering the last, let us turn back and enquire whether medical
observation may not be necessary in the first scene of life. A midwife,
unacquainted with the law of tenant by the courtesey, will scarcely note
whether a child, certainly dead within a minute of its birth, did in
that period move a limb or open an eye; he will not consider whether a
momentary quivering of the lip was a sign of independent vitality, or
the expiring remains of uterine life. If after a lapse of ten or twenty
years he should be examined in a court of justice on this point in order
to determine the right of the father to his estate for life, he will be
unable to satisfy his own conscience, or the ends of justice; but once
acquainted with the importance of these observations, he will never fail
to note the occurrence, whenever he has reason to believe that the
circumstances of the case may give rise to legal question.
In cases of impotence, sterility, idiotcy, and lunacy, the confidential
medical attendant is the first person consulted on the subject; how
often may he refute a groundless accusation, remove a causeless fear,
and prevent a public exposure, by forming and demonstrating correct
views of the subject? how often too may he aid the oppressed, defeat the
guilty, and protect the innocent, by a knowledge of the legal remedies
against fraud or coercion?
In many criminal cases too the surgeon is of necessity among the first
witnesses of the deed; is it not important that he should know what
evidence will be required to prove its perpetration? surrounded by
ignorant or prejudiced persons, his calm and accurate view, not only of
medical, but of general points, becomes of peculiar importance; yet if
he be unacquainted with the forms of judicial enquiry, unversed in the
history of criminal courts, he will be as little able to direct his
attention to the proper objects, or to divest his mind of undue bias, as
the most ignorant of the by-standers.
As we shall have frequent occasion in the course of this work to revert
to these points, we do not now dwell on them more minutely, than to
repeat our opinion, that a general knowledge of the law is not only
becoming to the medical practitioner in his character of a gentleman,
but highly useful and necessary to his professional career. We do not
expect that medical students shall become special pleaders, or that the
bar shall vie in chemistry and physiology with the professors of those
sciences; but we shall endeavour to point out to each the sources from
which they may draw information if they are desirous of acquiring it; we
are of necessity confined within narrow bounds; but if within those
limits we enable the two professions of law and physic to understand and
appreciate each other, our object is accomplished.
Medical Jurisprudence.
PART I.
1. _Of the College of Physicians._—2. _College of Surgeons._—3. _Society
of Apothecaries._—4. _Medical Liabilities and Exemptions._—5. _Public
Health._—6. _Quarantine Laws._—7. _Medical Police._
1. OF THE COLLEGE OF PHYSICIANS.
IT does not appear that the Professors of Physic were in any way
classed, or incorporated, in England, until the year 1522, although we
learn from the preamble of the Charter of Henry the Eighth, as well as
from the petition of the 9th of Henry the Fifth, that other countries
had long before that period established Medical Colleges, having
considered such a measure not only as necessary for the encouragement of
science, but as highly politic for the preservation of the public
health.
England, although destined to take the lead in research and discovery at
a later period, was in the sixteenth century far behind her continental
neighbours in the field of Science. And with respect to the study and
practice of physic, it seems probable that, until after the foundation
of the College of Physicians, it had not even assumed the character and
dignity of a regular profession; for we find that the very few learned
men in that branch, which the annals of the period can furnish, had
acquired their knowledge in the foreign universities.
Until the auspicious period of the Reformation, various circumstances
contributed to retard the progress of medical science; the first and
most considerable of which may be traced to the many monastic
establishments[62] with which the country was infested; the Monks are
known to have practised physic very extensively, and when the
superstitious character of these ages is considered, we shall not feel
surprised at the vulgar, and perhaps not the lower order alone, having
preferred, to every other medical assistance, the aid of those who
arrogated to themselves the immediate assistance of heaven in the
preparation and administration of their medicines.
The Alchemists[63] were another, and very numerous class to whom we may
justly refer the temporary degradation of the science of medicine. Like
their lineal descendants, the Empirics of modern times, their attention
was directed to the discovery of an universal specific which should be
equally applicable to every disease; and as presumption is ever
proportionate to incapacity, we need not be surprised that they should
have been eagerly followed by the ignorant of their day, as their
successors are by the vulgar of our own; under such circumstances there
could have been but little encouragement to men of real learning, and as
we find by the recital of the act of 5 _Hen._ 8. c. 6. that there were
but twelve regular Surgeons practising in all London, we may safely
conclude that the number of legitimate physicians must have been
proportionally smaller. The Universities of Oxford and Cambridge had
probably from the time of their foundation conferred degrees in
medicine, but these do not appear to have carried with them any general
privilege or authority; their rights indeed were reserved by the
concluding section of the 3d _Hen._ 8, _c._ 11, but in what those rights
consisted has not been judicially determined, even though the litigation
to which the Act and the subsequent Charter of the College gave rise,
would naturally have produced some decision on this point, had the
extent of those ancient rights ever been legally defined[64]. We shall
not consume any farther time upon this question, for although it might
be a subject of some antiquarian curiosity, it would furnish but little
matter of professional interest, or practical utility. In the present
age the Universities of Oxford and Cambridge are firmly united by a
communion of sentiment and interest to the College of Physicians, and
physicians are rarely admitted as Fellows[65] of this learned body,
unless they have previously graduated in one of the English
Universities, or at Trinity College, Dublin, but even in this latter
case, it is required that the candidate for admission should have been
previously incorporated either into the University of Cambridge or
Oxford. That a distinction founded on such a basis should have excited
an angry and jealous feeling in the excluded party is not extraordinary;
and the authors of the present work hope that they shall stand excused
for offering a few remarks upon a subject which they consider vitally
interwoven with the best interests of the profession. The arguments
which have been so repeatedly urged against the justice, as well as
policy, of the Bye-law[66] which thus excludes all, but the graduates of
an English University, from the honours of the Fellowship, may be easily
refuted, and its salutary tendency, in relation to the interests of the
public, as well as to the dignity of the profession, very satisfactorily
demonstrated. For the complete knowledge of medicine, as a science, all
the collateral lights of natural philosophy and erudition, are required;
while for its successful practice as an art, the physician should
possess those high qualifications of mind, and have received that moral
cultivation which a mere technical education can never bestow. We are
willing to admit that “the curative art cannot be learnt on the
sequestered banks of the Cam or the Isis, as well as amid the distress
and sickness of a great city;” but we assert with equal confidence, that
the liberal pursuits, and wholesome discipline of an English university,
can best prepare the mind for the full and extensive benefits, which the
pupil is afterwards to derive from his professional studies in the
metropolis; and if it be essential to encourage a liberal education
amongst those who are destined to move in the higher walks of physic, we
would ask whether any plan could be derived more likely to ensure our
object, than that fair and honourable reward which is held out by this
unjustly reviled bye-law of the College of Physicians. It has been
urged, that the education of a physician is thus rendered materially and
unnecessarily expensive; and that the delay of twelve years, which are
required for the full completion of the highest medical degree, proves
another great and vexatious hardship;—to all this we reply, that we
should politically resist any measure that had the least tendency to
divest medical education of its pecuniary sacrifices, and to open the
temple to a crowd of needy and half-educated adventurers. Tissot seems
to have entertained the same sentiment, and he observes that, for these
reasons, no person ought to be allowed to study physic in his native
city: the operation of this bye-law will therefore furnish the surest
guarantee of professional respectability, and the College of Physicians
will continue to enroll names distinguished for science and erudition,
men who will cast a lustre on the profession, over which they preside:
let then the practitioner in medicine beware how he attempts to
depreciate the dignity and importance of this ancient institution, or to
deny the rights and privileges to which the corporate body is legally
and morally entitled, for to the College of Physicians, as it regards
the whole profession of physic, we may address the same emphatic words
that Cicero applied to Torquatus with reference to the state, “TIBI,
NULLUM PERICULUM ESSE PERSPICIO, QUOD QUIDEM SEJUNCTUM SIT AB OMNIUM
INTERITU.”
Nor is the College singular or invidious, as may at first sight appear,
in adopting this rule; by far the greater number, if not all, of the
Bishops require a similar qualification for the Church; and the Inns of
Court, though they do not exclude others, grant some indulgence to
members of the University on entering their respective societies, and
remit two years of the usual term of probation to those who have taken
the degree of Master of Arts or Bachelor of Laws previously to their
call to the Bar.
The College of Physicians in London owes its foundation to _Dr. Thomas
Linacre_ of All Soul’s, Oxford, one of the physicians to king _Henry_
the 8th, a man of profound learning and most devotedly attached to his
profession; having studied at Rome, Bologna, and Florence, (then under
the government of _Lorenzo de Medici_, by whom he was encouraged), he
naturally imbibed an admiration of the medical schools with which Italy
then abounded, and appears to have distinguished himself so much both by
his general learning and particular science that he was called to Court
as physician to the king, and entrusted by _Henry_ the 7th both with the
health and education of his son prince _Arthur_.
The practice of Medicine was about that time, as we have before
observed, chiefly engrossed by empirics and monks, who, and especially
the latter, easily obtained licences from the bishops in their several
dioceses, to whom was committed the authority of examining practitioners
in an art of which they could not be competent judges. _Linacre_,
through his interest with Cardinal Wolsey, a man most highly and
honorably distinguished for his munificent encouragement of learning,
obtained in 1518 Letters Patent (_see Appendix_, p. 5,) from _Henry_ the
8th,[67], constituting a Corporate Body of regular Physicians in London,
with peculiar privileges hereafter to be specified. _Linacre_[68]
(though his name is second in the Letters Patent) was elected the first
President of the College, which held its meetings at his house in Knight
Rider Street; he was continued in the office during his life, and
bequeathed his house to the College at his death; he was distinguished
both by his learning and his friendship with learned men, among whom he
enjoyed the commendations of _Erasmus_ and _Melancthon_. He died in
1524, in the sixty-fourth year of his age, and was buried in St. Paul’s,
where a monument was erected to his memory by _Dr. Caius_, one of the
most learned and munificent of his successors. _See Preface to Goodall’s
Proceedings of the College: Biog. Britan.: Aikin’s Biog. Mem. of
Medicine_: & 6 _Aikin’s General Biography_.
As it cannot be uninteresting to trace the progress of a society through
the medium of its principal ornaments, and as the authors owe to _Dr.
Caius_ the foundation of that institution in which they commenced those
joint chemical studies which have indirectly induced their present
undertaking, they do not apologize to the reader for adding a short
notice of his life, and of that of _Dr. Harvey_, another considerable
benefactor to the College of Physicians.
_Dr. John Caius_, _Kaye_, or _Key_, of Gonville-hall, Cambridge,
succeeded _Linacre_ in the Presidency; like him he had travelled in
Italy for his improvement in the study of Medicine, and having resided
in Padua and Bologna, where he took his Doctor’s degree, and was for
some years Greek lecturer, he pursued his travels through Germany and
France. After his return to England, he was called to Court as Physician
to king _Edward_ the 6th; in 1547 he was made a Fellow of the College of
Physicians, the rights and privileges of which he most strenuously
asserted and augmented. In 1557 and 1558 he obtained from queen _Mary_,
with whom he was a favourite, a licence to advance Gonville-hall into a
College, under the name of _Gonville & Caius College_, on the condition
of enlarging the institution at his own expense. Of this college he
accepted the mastership in 1569, and in order that he might devote his
undivided attention to his favourite project, he resigned the Presidency
of the College of Physicians in 1565, and completed his new buildings at
Cambridge in 1570, at an expense which was very considerable in those
days. The mansion of learning, thus raised by his liberality, became the
retreat of his old age, and having resigned the mastership, with a
disinterestedness equalled only by his munificence, he continued to
reside as a Fellow Commoner until the period of his death, which
happened in 1573, in the sixty-third year of his age. The laconic
epitaph on his monument in Caius College Chapel, FUI CAIUS, is well
known. For an account of his many learned works _see Aikin’s Biog.
Memoirs of Medicine: 2 Aikin’s General Biog._ and _Goodall’s Proceedings
of the College_.
_Dr. William Harvey_, of Gonville and Caius College, Cambridge, to whom
we are indebted for the important discovery of the circulation of the
blood, was another ornament and benefactor of the College. Like his
predecessors he visited France, Germany, and Italy, in order to perfect
himself in the science of Medicine; at Padua he studied under the most
celebrated Professors of that University, then at the height of its
reputation, and in the anatomical school of _Fabricius_ caught the first
idea of his great discovery, by attributing their true office to the
valves of the veins, exhibited, but not explained, by his master. From
this circumstance, the envious of his own time and some foreigners to
this day, have attempted to deprive our countryman of the honor of his
invention[69]. In 1602 _Harvey_ took his Doctor’s degree at Padua,
shortly after which he graduated at Cambridge; in 1616 or 1619 he
published his discovery in his Lectures before the College, and like
many others suffered in his practice from the reputation of his
learning, for men would not then believe that the labours of the closet
and dissecting-room were the truest roads to professional skill.
He was however appointed Physician extraordinary to _James_, and
subsequently Physician in ordinary to king _Charles_ the 1st; by the
latter he was highly esteemed and favoured, having been appointed during
the residence of the king at Oxford to the Mastership of Merton College,
vacant by the secession of the Warden, _Dr. Brent_, to the Parliamentary
party; this appointment however, he did not hold long, being in turn
displaced by his predecessor.
Some time about 1652, the College having removed from their ancient
house in Knight Rider Street to one at Amen Corner, _Dr. Harvey_ built
them a library and public hall, which he granted for ever to the
College, with his library and a valuable collection of instruments. _See
1 Stowe’s London_, 131.
In 1654 _Harvey_ was unanimously elected President of the College of
Physicians, but he excused himself on account of his age and
infirmities; such however was his attachment to that body, best evinced
by _donationes inter vivos_, that in 1656 he made over his personal
estate in perpetuity for its use. He died in 1658, in the eightieth year
of his age; his works were published by the College in 1766, in quarto,
to which edition his life is prefixed, to which we refer, as also to
_Aikin’s Biog. Mem. of Med._; _Halleri Bibl. Anat._; _Aikin’s Gen.
Biog._ and the _Preface to Goodall’s Proceedings_.
We should exceed our limits and wander from our purpose if we entered
more fully into the biography of the many celebrated men who have since
graced the College[70]; it is enough for us to have directed the
reader’s attention by the preceding memoirs to the very rapid
improvement which the science of Physic appears to have undergone
immediately after its institution. The profession gained much in
respectability by their incorporation, which afforded a unity of
interest among its legitimate professors, at the same time that it armed
them with extraordinary powers against their opponents: it also gave
additional means to the learned of mutually communicating their
researches and discoveries, at a time when the comparative scarcity of
printed books rendered such intercourse doubly valuable. The dissolution
of the monasteries, and the consequent dispersion of a host of
ecclesiastical empirics, with the destruction of their prejudices and
superstitions, as inconsistent with the progress of liberal science, as
degrading to religious principle, completed the triumph which the
foundation of the College had begun. The consequence is evident.
England, which in the beginning of the sixteenth century had been behind
all the then civilized world in medical knowledge, finds herself in the
commencement of the nineteenth inferior to none in any branch, superior
to most in some, and taking a decided lead in all the ramifications into
which the science of physic and the sister arts have divided themselves.
This effect however was not produced by the College, without some severe
struggles on the part of those who were, or supposed themselves to be,
aggrieved by the extraordinary powers granted to the Corporation by the
Charter of _Henry_ the 8th; it does not appear whether any of these
disputes arose between the granting of the Letters Patent and their
confirmation by the statute 14 and 15 _Hen._ 8. _c._ 5. at least no
cases remain recorded by any sufficient authorities; it is therefore
probable that the College did not attempt any exercise of their new
powers until they had received the sanction of Parliament; even the
king, (and no one will suspect _Henry_ the 8th of any diffidence of
royal prerogative) by using the terms “_quantum in nobis est_,” (see
Charter) seems to have been conscious that the powers of fine and
imprisonment which he professed to grant, _suo jure_, could only become
effective by the ratification of a superior authority.
The restriction of practice to persons examined and licenced by some
supposed competent authority was not new. Sir _Wm. Brown_ in his
Vindication of the College from the imputation and misrepresentation of
their adversary in the case of Dr. _Schomberg_, mentions an Act of
Parliament or Ordinance of the 9th _Hen._ 5. (_see Appendix_, _p._ 1.)
by which the licencing of physicians is confined to the Universities,
and of surgeons to persons duly qualified: and the 3d _Hen._ 8. c. 11.
(_see Appendix_, _p._ 3.) somewhat strangely confers on the Bishop of
London, and in his absence on the Dean of St. Paul’s, the exclusive
power or privilege of licencing physicians and surgeons in the City of
London, and within seven miles in compass. It can scarcely be doubted
that the provisions of this act as relating to physicians, were repealed
by the Act 14 and 15 _Hen._ 8. _c._ 5. confirming the incorporation of
the College, for where a power to do a specific thing is given to two
distinct persons or bodies by separate Acts, it is a general rule that
the last repeals the former, _Quia Leges posteriores Leges priores
contrarias abrogant_; yet it is said that a Bishop of London has within
a few years professed to grant a licence to practise physic in London
and within seven miles thereof. Now, independent of the objection before
mentioned, it is evident, even on the construction of the 3. _Hen._ 8.
_c._ 11. from which alone the power is derivable, that such licence, if
any such were granted, is bad; for the words of the statute are,
“calling to him or them (the Bishop and Dean) four Doctors of Physick,
and for Surgery other expert Persons in that Faculty, and for the first
Examination such as they shall think convenient, and _afterward alway
four of them that have been so approved_:” Now if the Bishop cannot find
four assessors _so approved_, his authority must cease, for he cannot
exercise it without them.
The power of the Archbishop of Canterbury[71] to confer degrees of all
kinds (a relic of Papal usurpation transferred to him by statute 25
_Hen._ 8. _c._ 21) has induced a belief that the Archbishop has a power
of granting licences to practise physic, and several have been granted
accordingly; among others _Wm. Lilly_, the astrologer, was licenced to
practise physic, except in London and within seven miles; for his
diploma, the wording of which is curious, _see the Appendix_. Now though
the Pope may have had the power of granting degrees and licences in
physic, the concluding words of the 14th and 15th _Hen._ 8. confirmed by
1st _Mary_, are sufficient to exclude the authority either of the Pope
or of the Archbishop, “that no person from henceforth be suffered to
exercise or practise in Physic through all England until such time as he
be examined at London by the said President and three of the said
Elects, and to have from the said President or Elects Letters
Testimonials of their approving and examination, except he be a Graduate
of Oxford or Cambridge, which hath accomplished all things for his Form
without any Grace.” Then as it cannot be pretended that the Archbishop’s
licentiate, though he may be a graduate of Oxford or Cambridge, is one
who has accomplished all things for his form (_subaudi_ in physic)
without any grace, it follows that such degree or licence is void as
respects the authority of the College of Physicians.
The provisions of the Act of the 3d _Hen._ 8. could produce no permanent
benefit, and we therefore find within seven years, that the continuance
of the abuses which it was intended to remedy, was made the foundation
of granting its powers to a Corporation better calculated to exercise
them; what these powers are we must now investigate somewhat minutely,
for it is an essential branch of Medical Jurisprudence to regulate and
define the privileges and office of those who are best able to give
effect to its institutions.
It may be necessary to premise that though several subsequent
Charters[72] have been prepared for or offered to the acceptance of the
College of Physicians (as 15 _James_ and 15 _Charles_ 2. for which _see_
Sir _Wm._ _Brown’s_ Vindication, Dr. _Chas. Goodall’s_ Collection, and
other works, most of which are enumerated in _Gough’s_ Topography of
London), yet the Charter and Statute of _Henry_ the 8th is still the
subsisting ground of the rights, privileges, and powers of the
Corporation. By their Charter recited in, and confirmed by the 14th and
15th _Hen._ 8. (_see Appendix_, _p._ 7) _John Chambre_, _Thomas
Linacre_, _Ferdinando de Victoria_,[73] physicians to the king, and
_Nicholas Halsewel_, _John Francis_, and _Robert Yaxley_, physicians,
and the rest of the faculty in and of London, are constituted a
perpetual college or community, with power annually to choose a
President, who is to govern and superintend the College, and all men of
the faculty and their practice (_omnes homines ejusdem facultatis et
negotia eorundem_,) they are to have perpetual succession and a common
seal, with power to hold lands to an amount therein limited (but which
has since been enlarged by other Charters) notwithstanding the statute
of Mortmain. They may sue and be sued by the name of the President and
College or Community of the Faculty of Physic in London (_per nomina
Presidentis et collegii seu communitatis facultatis medicinæ Lond’_);
they may hold meetings (_congregationes licitas et honestas_) and make
bye-laws (_stat’ et ordinationes_) for the good government,
superintendance, and correction (_pro salubri gubernatione, supervisu,
et correctione_) not only of the College but of all persons exercising
the faculty in the city, or within seven miles thereof, (_omnium hominum
eandem facultatem in dicta civitate seu per septem miliaria in circuitu
ejusdem civitatis exercen’_). And it was granted to the College that
none should exercise the faculty of physic within the city, or seven
miles thereof, unless they had been admitted by the President and
College by letters under their common seal, under the penalty of five
pounds (_centum solidorum_) for every month during which such unlicenced
person (_non admissus_) should practice; one half of the said penalty to
the King, and one half to the President and College. The Charter further
directs that the President and College should every year elect four
(censors) who should have the superintendance, correction, and
government of all persons exercising the faculty of medicine in any
manner (_aliquo modo frequentantium et utentium_) in the city, or within
seven miles thereof; with powers to punish for mal-practice (_ac
punitionem eorund’ pro delictis suis in non bene exequendo, faciendo, et
utendo illa_) and with power of superintendance and scrutiny of all
medicines and their administration, provided that the punishment should
be by fines, amercements, imprisonment, and other reasonable modes (_per
fines, amerciamenta, & imprisonamenta, corpor’ suor’ et per alias vias
rationab’ et congruas_.) The Charter then directs (_quantum in nobis
est_) that the president and fellows of the College, and their
successors, should be exempt from and should not be summoned to Assizes,
Juries, Inquests, Attaints, _et aliis recognitionibus_, by the Mayor,
Sheriffs, or Coroners of the City, even by the king’s writ. It was
provided however by the concluding clause that nothing contained in the
Charter should prejudice the City of London.
After the recital of the Charter the Statute proceeds to confirm the
same “in as ample and large manner as may be taken, thought, and
construed,” and directs the election of eight elects, from among whom
the president is to be annually chosen.
The concluding section of this act is important, as it evidently repeals
so much of the 3 _H._ 8. as refers to physicians, enacting, “that no
person from henceforth be suffered to exercise or practise in physic
through _England_[74] until such time as he be examined at London, by
the said President and Three of the said Elects; and to have from the
said President or Elects Letters Testimonials of their approving and
examination, except he be a Graduate of Oxford or Cambridge, which hath
accomplished all Things for his Form without any Grace.”[75]
The next Act which concerns the College is the 32d _Hen._ 8. _c._ 40.
(_see Appendix, p._ 14) by which it is enacted that the President,
Fellows, and Commons of the College, should be discharged from keeping
Watch and Ward in the City or its Suburbs, and that they shall not be
chosen to the office of Constable, or to any other office in the City or
Suburbs, any Order, Custom, or Law, to the contrary notwithstanding; By
the second section of this Act the power and office of the Censors,
which had been left somewhat undefined by the 14 & 15 _Hen._ 8. is more
accurately and fully determined. They are empowered to enter the houses
of all Apothecaries in the City, for the purpose _only_ of searching and
viewing their wares, drugs, and stuffs, and if any be found defective or
corrupted, they may cause them to be burnt, or otherwise destroyed, and
a penalty of five pounds,[76] to be recovered by any that will sue for
it, is inflicted on apothecaries who obstinately or willingly refuse or
deny the four Censors to enter into their houses; a penalty of forty
shillings is also inflicted on any Censor, who being elected, shall
refuse the oath directed to be taken, or neglect the execution of his
office. The oath of the censor, is by this act, directed to be
administered by the President of the College. The censors are also
obliged to take the oaths of allegiance, supremacy, and abjuration in
the Court of Exchequer at Westminster, hence the impropriety, if not
illegality, of any Papist or Recusant being elected a Fellow of the
College.
By the third and concluding section it is declared, that “forasmuch as
the Science of Physick, doth comprehend and contain the knowledge of
Surgery,” “any of the said Company or Fellowship of Physicians, being
able, chosen, and admitted, by the said President and Fellowship of
Physicians,” may practice the Science of Physic in all its members, both
in London and elsewhere.
The Statute 34 and 35 _Hen._ 8. _c._ 8, entitled “A Bill that Persons
being no common Surgeons, may minister medicines, notwithstanding the
Statute,” refers to the 3d _H._ 8. _c._ 11. omitting all mention of the
subsequent acts of the 14th, 15th and 32d, which were for the regulation
of the Physicians of London, and as this Statute appears to have been
directed against the then Surgeons of London, and for the relief of
charitable persons, who had ministered to poor people, not taking any
thing for their pains and cunning in certain diseases,[77] principally
outward, and therefore (in its limited sense) objects of surgery rather
than medicine; we shall treat of this act more at large when we enter
upon the Charters and Statutes relating to the College of Surgeons. By
this act, however, inward medicines are permitted to be administered by
persons having knowledge and experience of the nature of herbs, roots
and waters, for the stone, strangury or agues.[78] The latter clearly do
not come within the description of what would now be called Surgical
cases, and therefore so far the exclusive privileges of the physicians
are affected by this Statute, yet it appears by the context and
interpretation of the act, (_See Butler v. Coll. of Phys._) that such
administration must be of herbs, roots or waters only, to poor persons,
(_R. Litt. 351,_) and without fee or reward.
The acts of _Henry the 8th_ having been found insufficient in their
provisions for the search of apothecaries wares, and other matters, the
Statute 1st _Mary_, _sess._ 2. c. 9, (_See Appx. p._ 25,) was enacted,
whereby the 14th and 15th _Hen._ 8. _c._ 5, is confirmed and declared to
be in full force, any Act, Statute, Law, Custom, or other thing made to
the contrary notwithstanding; it was further enacted, that whensoever
the President of the College, or such (the Censors) as the President and
College shall yearly authorise to search, examine, correct, and punish,
all offenders and transgressors in the said faculty, within the said
city and precinct, shall commit any such offender to prison, (the Tower
of London excepted), the warden or gaoler of such prison is to receive
and keep such person or persons at the charges of such person or
persons, till discharged by the President and such persons as by the
said College shall be authorised; under penalty of double the fine[79]
such offender be assessed to pay, so that the same fine do not exceed
twenty pounds. By the fifth section, it is provided, that it shall be
lawful for the wardens of the grocers (now apothecaries) company, or one
of them, to go with the Physicians in their search and view of
apothecaries wares; but if the wardens refuse or delay to come, the
Physicians may proceed without them; and the penalty of resisting such
search is raised to ten pounds; By the concluding section, all Justices,
Mayors, Sheriffs, Bailiffs, Constables, and other ministers and
officers, shall assist the execution of the said acts, upon pain of
running in contempt of her majesty.[80]
By these acts of Parliament, the College of Physicians is regulated to
the present day; we have before stated that several Charters, some for
limited and some for general purposes, have been granted to the College.
In 1520, Queen _Elizabeth_ granted by letters patent the bodies of four
malefactors who had been executed for felony, to be taken by the College
every year for dissection.[81] Charles the second granted six more
“provided they be afterwards buried.” Charter 15 _Char._ 2. _Goodall’s_
Coll. p. 62. This privilege we believe has not lately been claimed,
though the present scarcity of bodies for the purposes of instruction
would fully justify its revival: nor is there any doubt but that the
judges in the exercise of their sound discretion might select some of
the more atrocious criminals as proper objects for this additional
severity.
In 1562 _King James_, by letters patent, granted to the College, for the
sum of six pounds a year, that moiety of the fines to be inflicted by
them to which the crown was entitled according to the several acts which
we have before cited. Charter 15 _Ja. Goodall’s_ Coll. p. 37.
We do not think it necessary to trouble the reader with the Statutes and
Bye Law[82] which the College have made for their own internal
Government, pursuant to the power which all Corporations have of making
proper regulations to bind their own members, and according to the
Statute 14 _and_ 15 _Hen._ 8. by which they are specially authorised so
to do; these Statutes have been printed, though not under the sanction
of the College.
OF THE POWERS OF THE COLLEGE.
One of the first and most material of the powers and privileges granted
to the College by the Acts and Charter to which we have referred (and
which the reader will find recited in the Appendix,) is that of
recovering from all persons who practise physic in London and within
seven miles circuit, without their Licence, or Admission, the sum of
five pounds for every month during which they have so practised. This
power has been most minutely investigated and determined in the case of
_Dr. Bonham_.[83] _Coke’s Reports_, 123, (_see Appendix_, p. 62,) which
was an action of false imprisonment brought by _Thomas Bonham_, a Doctor
of Physic, of the University of Cambridge,[84] against the then
President, Censors and some servants of the College; the Defendants
justified under the Statute, (14 and 15 H. 8.) setting forth; that the
plaintiff practised physic in London, and within seven miles circuit,
not being admitted, &c. that being examined he was found insufficient,
and forbid to practise,[85] but notwithstanding such prohibition, he
afterwards practised for a month or more, whereupon they amerced him
five pounds, to be paid to them at their next assembly, &c.[86] and
likewise injoined him to forbear practising any more until he be found
sufficient, &c. upon pain of imprisonment; that he continuing still to
practise was further fined and ordered to be committed; that being
questioned if he would submit to the College, he replied, that he had
practised and would practise without leave of the College, and denied
that by the Statute they had any authority over him, as having taken his
degree of Doctor of Physic within the University regularly, and so
thought himself protected by that Clause in the Act; whereupon the
Censors ordered him to prison, which was executed accordingly, and for
this imprisonment this action was brought. In this case, Mr. _Justice
Daniel_, thought a Doctor of Physic of either University was not within
the body of the act, but suppose him to be within the body, yet he was
excepted by the last clause. But _Mr. Justice Warburton_ held the
contrary upon both points.[87] _Chief Justice Coke_, (for whose
judgment, _see Appendix_, 26,) said nothing as to either of those
points, because all three (who were all the judges present,) agreed,
that this action was clearly maintainable for two other points; and they
resolved,
1. That the Censors had no power to commit the Plaintiff for any of the
causes mentioned in the Bar, because the said clause which gives power
to the said Censors to fine and imprison, does not extend to the said
clause, viz. _That none in the said City, &c. exercise the said
faculty_, &c. which prohibits every one from practising Physic in
London, &c. without licence of the President and College; but extends
only to punish those who practise in London, _Pro delictis suis in non
bene exequendo faciendo et utendo Facultate Medicinæ_, so that their
power (of fine and imprisonment) is limited to the ill and not to the
good use and practice.[88]
2. Admitting that the Censors had power, yet they have not pursued it.
1. Because the Censors alone have power to fine and imprison, whereas
here the President and Censors imposed this fine of five pounds. 2. The
plaintiff was summoned to appear before the President and Censors, and
for not appearing was fined five pounds, whereas the President had no
authority.
3. The fines imposed by them by virtue of this act belong to the king
and not to them,[89] and yet the fine is limited to be paid to
themselves, &c. and for nonpayment they have imprisoned him.
4. They ought to have committed the Plaintiff immediately, though no
time be limited in this act.
5. Their proceedings ought not to be by parol, inasmuch as their
authority is by patent and act of parliament, and especially it being to
fine and imprison.
6. The Act giving a power to imprison until he be delivered by the
President and Censors or their successors, shall be taken strictly, or
otherwise the liberty of the subject is at their pleasure. And this is
well proved by a judgment in Parliament in the same case; for when this
act of 14. _Hen._ 8. had given the Censors power to imprison, yet it was
taken so literally, that the gaoler was not bound to receive such as
they should commit to him, because they had authority to imprison
without any Court; and thereupon the Statute 1 _Mary_, _cap._ 9, was
made to compel the gaoler to receive them under a penalty, and yet none
can commit to prison unless the gaoler receives him; but the 14 _Hen._
8, was taken so literally that no necessary incident was implied.
And it being objected, the 1 _Mar. Cap._ 9. had enlarged the power of
the Censors, as appeared by the words of the act; it was clearly
resolved, that it does not enlarge their power to fine and imprison for
any matter not within the 14th _Hen._ 8. the words of the act of _Queen
Mary_, being “_according to the tenor and meaning of the said act_.” And
further, “_shall commit any offender, &c. for his, &c. offence or
disobedience, contrary to any article or clause contained in the said
grant or act to any ward, gaol, &c._” And in this case, it does not
appear by the record, that the plaintiff has done any thing contrary to
any article or clause within the grant or act of 14th _Hen._ 8. and for
the two last points judgment was given for the plaintiff, _Nullo
contradicente_ as to them. _Michss. Term._ 6 _James._
The Lord _Chief Justice_, _Sir Edward Coke_, in the conclusion of his
argument, observes these seven rules for the better direction of the
President and Commonalty of the said College for the future.
1. That none can be punished for practising Physic within London, but by
forfeiture of five pounds a month, which is to be recovered by law.
2. If any practise Physic there for less time than a month that he shall
forfeit nothing.
3. If any person, prohibited by the Statute, offend in _non bene
exequendo, &c._ they may punish him according to the Statute within the
month.
4. Those whom they commit to prison by the Statute ought to be committed
immediately.
5. The fines which they assess according to the Statute belong to the
king.
6. They cannot impose fine or imprisonment without making a record
thereof.
7. The cause for which they impose a fine and imprisonment ought to be
certain, for this is traversable.[90] For though they have Letters
Patents and an Act of Parliament, yet inasmuch as the party grieved has
no other remedy, neither by writ of error or otherwise, and they are not
made judges, nor a court given to them, but have authority only to do
it, the cause of their commitment is traversable in action of false
imprisonment brought against them.
_Chief Justice Holt_, in delivering the opinion of the Court, said that
notwithstanding the opinion in _Dr. Bonham’s_ case, the charge of male
administration of physic is not traversable, and that my _Lord Coke’s_
opinion in that case was but _Obiter_, and no judicial opinion: besides
that he seemed to have been under some transport, because _Dr. Bonham_
was a graduate of Cambridge, his own mother university. And he himself
after in the same case says, that if the Censors do convict a man for
such offence, they ought to make a record of it; and that, they cannot
do unless they are Judges of Record: and then we say their proceedings
are untraversable, and they unpunishable for what they do as judges. 12
_Mod._ 388. _Pasc._ 12 _Will._ 3. in the case of _Doctor Grenville
against the College of Physicians_.
That Graduates of the two Universities have no privilege to practise in
London, and within seven miles circuit,[91] has been repeatedly decided;
see Doctor _Levet’s_ case, Lord _Raymond’s Rep._ 472; _The Coll. of
Physicians against West 10, Modd 353 and Appx._ That by Graduates is
meant Graduates in Physic only. _See College Questions. Appx._
The case of _Doctor Bonham_,[92] which we have been the more particular
in citing as it contains much learning on the subject of our enquiries,
and is reported by the first authority of his time, having shown that
the College cannot fine or imprison for unlicenced practice, but must
proceed by action in the ordinary Courts for the statutable penalty of
five pounds a month, we must next show by what name the College ought to
sue, for upon this point much difference of opinion and practice appears
to have prevailed. In the case of _The President and College of
Physicians v. Talbois_, exceptions were taken that the action should be
by the President alone. But _per curiam_, “being a Corporation, it is
natural for them to sue by their name of creation.” 1 _Lord Raymond_, p.
153. _Hil. Term_ 8 & 9, _Will._ 3. See also _The President and College
of Physicians v. Salmon_, B. R. _Trin. Term_ 13 _Will._ 3. 1. _Ld.
Raym_, p. 680; 5 _Mod._ 327; and this appears to be the best rule. In
the previous case of _The President of the College v. Tenant. Hill.
Term._ 11 _James_, _Bulstrode’s Rep. Part._ 2, _p._ 185, the action was
brought by the President alone, on which the Judges were divided in
opinion, _Haughton_ Justice saying, “he may here well bring the action
alone in his own name,” but the Declaration being bad in other respects,
the rule of the Court was, _Quod querens nil capiat per Billam_. The
Entry in _Rastal_, _p._ 426, is in favour of the doctrine that the
President may sue alone, as is also the case of Doctor _Laughton v.
Gardner_, 4 _Croke_, _p._ 121. _Trin. Term._ 4 _James_, and more
especially the consequent case of Doctor _Atkins v. Gardner_, 2 _Croke_,
169 _Pasc_ 5 _James_, where Dr. _Laughton_ having brought an action of
debt on the Statute, as President of the College obtained judgment
_Nisi_, but dying before execution, his successor _Doctor Atkins_,
brought a _scire facias_ against the defendant to have execution, it was
therefore demurred because the _scire facias_ ought to be brought by the
executor or administrator of him who recovered and not by his successor;
but the Court held that the successor might well maintain the action,
for the suit is given to the College by a private Statute, and the suit
is to be brought by the President for the time being, and he having
recovered in right of the Corporation, the law shall transfer that duty
to the successor of him who recovered and not to his executors. 1 _Rolle
Abr._ 515.
The penalties are to be recovered by action of debt in _the President
and College v. Salmon_; I _Ld._ _Raym_, _p._ 680.[93] an exception was
taken that the proceeding should be by information at the suit of the
king, but the Court decided that where a certain penalty is given by a
statute the person to whom, &c. shall have debt by construction of law.
Another exception was taken in the same case, that the action ought not
to be brought _tam quam_, no action being given to the king. _Sed non
allocatur._ For _per curiam_, the precedents are the one way and the
other. See _Butler v the President Cro. Car._ 256. and cases there
cited.[94]
The words of the Statute of _Henry_ being strongly prohibitory, none may
practise physic under any authority, in London and within seven miles
without licence of the College; in _the College of Physicians v. Bush._
4 _Mod._ _p._ 47. the defendant pleaded letters patents of king Charles
the second, by which free liberty is given to French protestants to
exercise the faculty of Physic in London and Westminster, &c. and that
he was a French protestant. Upon demurrer the plea was held ill. For a
Charter or Letters Patent cannot vary an act of Parliament.
The next material point to be considered is, what is a practising of
Physic within the meaning of the statutes; this would at first sight
appear to be a very simple question, but the act of the 34th _Hen._ 8.
which gives liberty to persons not being Surgeons, to administer outward
medicines in certain cases, and drinks for the Stone, Strangury, and
Ague, created some difficulties; it was pleaded in the case of Doctor
_Butler against the President of the College_, (_Cro. Car._ 256,) to
which plea the President replied by showing the Statute of the 1 _Mary_,
_c._ 9. which confirms the Charter and Statute of the 14th _Hen._ 8. and
appoints that it shall be in force notwithstanding any Statute or
Ordinance to the contrary; on this several questions arose; those which
relate to the special pleading of the case we omit, but the
interpretation of the Statutes is material; it was doubted first whether
the 34th _Hen._ 8. did repeal any part of the 14th as to Physicians, or
whether as the preamble recites, it was directed against Surgeons, and
next whether if it were in any degree repealed, the Statute 1st _Mary_
did not revive the 14th and repeal the 34th. “_Richardson_, chief
Justice, conceived it was repealed by _primo Mariæ_, by the general
words, any act or Statute to the contrary, of the act of _decimo quarto
Henrici Octavi_, notwithstanding. But I (“_loquitur Croke_,”) conceived
that the act of _tricessimo quarto Henrici Octavi_, not mentioning the
Statute of _decimo quarto Henrici Octavi_, was for Physicians; but the
part of the act of _tricessimo quarto Henrici octavi_, was concerning
Chirurgions and their applying outward medicines to outward sores and
diseases, and drinks only for the Stone, Strangury and Ague; that
Statute was never intended to be taken away by _primo Mariæ_. But to
this point, _Jones_ and _Whitlock_, would not deliver their opinions;
but admitting the Statute 34 _Hen._ 8. be in force, yet they all
resolved, the defendant’s[95] plea was naught, and not warranted by the
Statute; for he pleads, that he applied and ministered medicines,
plaisters, drinks, _Ulceribus Morbis et Maladiis, Calculo Strangurio,
Febribus et aliis in Statuto mentionatis_; so he leaves out the
principal word in the Statute (_Externis_), and doth not refer and shew
that he ministered potions for the Stone, Strangulation or Ague, as the
Statute appoints to these three diseases only and to no other; and by
his plea his potions may be ministered to any other sickness; wherefore
they all held his plea was naught for this cause, and that judgment was
well given against him; whereupon judgment was affirmed.” This case is
reported more fully in _Brownlow_, p. 126. See also _Goodall_, p. 221 to
p. 259.
But though this statute 34 _Hen._ 8th gave a very considerable latitude
to unlicensed practice, the decision of the House of Lords in the case
of _Rose_ has rendered it yet more difficult to determine what is a
practising of Physic within the statute 14 _Hen._ 8th.
This case arose on an action in the King’s Bench for practising Physic
within seven miles of London without licence; the case upon a special
verdict was, that the Defendant being an Apothecary by trade was sent to
by _John Seale_[96], then sick of a certain distemper, and he having
seen him, and being informed of the said distemper, did without
prescription or advice of a Doctor and without any fee for advice,
compound and send the said _John Seale_ several parcels of physic as
proper for his said distemper, only taking the price of his drugs; and
if this were a practising of physic, such as is prohibited by the
Statute was the question: and after several arguments the Court at last
unanimously agreed, That practising of Physic within this statute
consists, 1st, In judging of the disease and its nature, constitution of
the patient, and many other circumstances. 2ndly, In judging of the
fittest and properest remedy for the disease. And 3dly, In directing and
ordering the application of the remedy to the diseased. And that the
proper business of an Apothecary is to make and compound, or prepare the
prescriptions of the doctor pursuant to his directions. It was also
agreed, That the Defendant’s taking upon himself to send physic to a
patient as proper for his distemper without taking ought for his pains,
is plainly a taking upon himself to judge of the disease and fitness of
the remedy, as also the executive or directing part. _Et per tot. Cur._
The Plaintiff had judgment. 6 _Mod._ 44. 16 _Vin. Abr._ 341. Against
this judgment the Defendant _Rose_ brought a Writ of Error to the House
of Lords, “That judgment having been given in the Queen’s Bench against
the now Plaintiff on a special verdict, he humbly hopes the same shall
be reversed for these reasons:
“That the consequence of this judgment will entirely ruin the Plaintiff
in his trade, and indeed all other Apothecaries, since they can’t (if
this judgment be affirmed) use their professions without the prescript
or license of a Physician.
“That the constant use and practice[97] which has always been with the
Apothecary, shall as we humbly hope be judged the best expounder of this
Charter: and that selling a few lozenges, or a small electuary, to any
asking a remedy for a cold, or in other ordinary or common cases, or
where the medicine has known and certain effects, may not be deemed
unlawful, or practising as a Physician, when no fee is taken or demanded
for the same.
“That the Physicians by straining an Act made so long ago, may not be
able to monopolize all manner of Physic solely to themselves; and the
rather, for that such a construction will not only be the undoing of the
Apothecaries, but also,
“1. A tax on the Nobility and Gentry, who in the slightest cases, even
for their servants, can’t then have any kind of medicines, without
consulting and giving a fee to one of the College.
“2. An oppression to the poorer families not able to go to the charge of
a fee; the suppressing of the Apothecaries being to deprive such poor
people and families of all manner of assistance in their necessities.
“3. A certain prejudice to all sick persons on sudden accidents, and new
symptoms arising, especially in acute diseases, and in the night,
wherein if the Apothecary is called, and shall dare to apply the least
remedy, he runs the hazard of being ruined, or the Patient the danger of
being lost.”
“For all which, and several other errors in the Record, it is humbly
prayed,” &c. &c.
It must be observed that these reasons turn on the policy and not on the
law of the question, and would have been better addressed to the House
of Peers in their legislative, than in their judicial capacity; the
hardship of depriving the Apothecaries of all practice, and the
inexpediency of too strictly enforcing the statute of _Henry_ 8th, might
have justified an application to the Legislature for an alteration of
the law, but they could not warrant even the highest tribunal in the
land in departing from the law established by Act of Parliament, and
gravely decided by the judges; we must therefore conclude that some
better arguments were adduced on the hearing than have been handed down
to us by the reporters; for if seeing the patient, judging of the
complaint, and administering the proper remedies for it, be not a
practising of Physic within the meaning of the statute, we must confess
ourselves utterly at a loss to define the practice which is. It is a
futile and unworthy subterfuge to allege that no fee is taken for
advice, and that the sum charged is only the price of the drugs, for the
contrary is evident; the poacher might as well pretend (as has been
done) that he sells the basket at his own price, and throws the hare
into the bargain, as a compliment to the purchaser,—or the vender of
nostrums might attempt to avoid the stamp duty by selling the bottles
and giving the physic. We are very far indeed from wishing to put unfair
restraints on trade, or to deprive any class of men of the free exercise
of their professional abilities, but as the Legislature has deemed it
necessary to guard the corporeal health of the people, by enacting that
only persons who on examination by a competent authority have been found
of sufficient ability shall practise, we have thought it our duty to
point out the law as it stands, and if in doing so we are occasionally
obliged to hint at defects, we do it in the hope that by drawing abler
attention to a neglected subject, we may incidentally give rise to some
improvements, beneficial not only to the public at large, but ultimately
profitable to those who, at the first glance might think themselves
injuriously affected by them.
We have noticed that the reasons alleged by Writ of Error against the
judgment of the Court of King’s Bench in the case of _The College of
Physicians against Rose_, do not appear to us to have been legally
satisfactory, the judgment of the King’s Bench[98] however was reversed,
(_see_ 1 _Brown’s Parl. Ca._ 78. _and Appendix_, 126), and consequently
the greater portion of the practice of Physic has been transferred to
the Apothecaries. This was for some time a very serious evil; they who
had been educated as mere compounders, suddenly became prescribers of
medicine; it is easy to conceive how large a portion of ignorance and
empiricism was thus let loose upon the public: the mischief has indeed
gradually decreased, as many men of liberal education have entered the
field thus enlarged for them, and the natural effect of competition has
induced improvement; still something is wanting. In large towns and
among the higher and middle classes of society, talent and mediocrity
soon find their proper levels; but at a distance in the country,
ignorance and imposture may erect their stages at least with impunity,
and more than probably with success; we have ourselves heard most
lamentable accounts of the mal-practice to which the poor and ignorant
have been subjected by low country practitioners and their assistants;
for the interpretation of the law which let in the Apothecary to
unrestrained practice, could not exclude the apprentice, and we
therefore find the shop-boy in cases of emergency visiting and
prescribing for his master’s poorer patients.
For these, among other reasons, the Apothecaries’ Company have obtained
an Act of Parliament to alter and enlarge the powers of their Charter.
“And whereas much mischief and inconvenience has arisen from great
numbers of persons in many parts of England and Wales exercising the
functions of an Apothecary who are wholly ignorant, and utterly
incompetent to the exercise of such functions, whereby the health and
lives of the community are greatly endangered; and it is become
necessary that provision should be made for remedying such evils; Be it
therefore, &c.” This passage, from a Statute solicited by the
Apothecaries themselves, will exonerate us from any imputation of
illiberal remark; we sincerely hope that the Act will produce the
intended benefit, though when we have occasion to treat of it more at
large under the head of the _Apothecaries Company_, we may have occasion
to point out some particulars in which we think it might be amended.
We have thus cited the leading cases on unlicensed practice, and the
authorities which we have quoted will enable the medical reader desirous
of better information, to pursue the enquiry to the fountain head.
“_Melius est petere fontes quam sectare rivulos._”
The next branch of the jurisdiction of the College is yet more
important, as it extends to the control and punishment of _Mala
Praxis_[99], whether by persons licensed or unlicensed. On this head the
leading case is that of _Groenvelt and Burwell_[100], (1 _Comyns_ 76: 1
_Salk_ 396; _see Appendix_). A complaint having been made to the College
of Physicians, informing them that Dr. _Groenvelt_ had administered
Cantharides in powder, he was summoned before the Censors and by them
committed for _mala Praxis_; for this imprisonment he brought his action
in the King’s Bench, _Trin._ 12 _Will._ 3. from which it appears that
“The Censors of the College of Physicians in London are impowered to
inspect, govern, and censure all Practisers of Physic in _Civitate_
London and seven miles round, so as to punish by fine, amerciament, and
imprisonment. Per _Holt_ Ch. J. the Censors _have a judicial Power_; for
a power to examine, convict, and punish, is judicial, and they are
judges of record because they can fine and imprison, and being judges of
the matter, what they have adjudged is not traversable.”
In _mala Praxis_ it matters not whether the party offending be a member
of the College, a Licenciate, or an unlicensed Practitioner, for the
Statute gives jurisdiction over all Physicians whatsoever, “_habeant
supervisum et scrutinium, correctionem et gubernationem omnium et
singulorum dictæ civitatis medicorum utentium facultate Medicinæ in
eadem civitate ac aliorum medicorum forensicorum quorumcunque facultatem
illam medicinæ aliquo modo frequentantium et utentium infra eandem
civitatem et suburbia ejusdem sive infra septem miliaria in circuitu
ejusdem civitatis_,” and Ch. J. _Holt_ says, “Though a person be not one
of the College, yet if he practise Physic within their jurisdiction, he
ought to subject himself to the law as well as any other.” 12 _Mod_ 393.
And for those who are not Physicians but have assumed the character,
they must take it _cum onere_, and will be estopped from pleading the
illegality of their practice when punished for the irregularity of their
prescriptions: it is to be wished however that the words of the Charter
were more explicit in this particular.
Nor are the Censors liable to any action for error in judgment, for
“though the Pills and Medicines were really _Salubres Pilulæ et bona
Medicamenta_, yet no action lies against the Censors; because it is a
wrong judgment in a matter within the limits of their jurisdiction, and
a judge is not answerable, either to the king or the party, for the
mistakes or errors of his judgment, in a matter of which he has
jurisdiction: it would expose the justice of the nation, and no man
would execute the office upon peril of being arraigned by action or
indictment for every judgment he pronounces.” (1 _Salk_, 397).
“_Holt_ Ch. J. said, it seemed to him that the Censors may tender an
oath as a necessary consequence of their judicial power; but said he
would give no positive opinion.” _Dr. Grenville_ v _Coll. of Phys._ 12
_Mod._ 392. 16 _Vin. Ab._ 345. the general rule is, that where a statute
confers a power, the law supplies all necessary incidents required for
its execution.
By the 10th _Geo._ 1. _cap._ 20. _s._ 7. Where any person is condemned
by the Censors for not well executing, practising, or using the faculty
of Physic, he may within fourteen days after notice appeal to the
College, and the judgment given on such appeal shall be final. Sect. 3.
of the same act gives a similar right of appeal to Apothecaries. But
this Act, as we have before observed, has expired; should its enactments
ever be revived, this right of appeal should not be omitted, for it is
expedient that some control should be exercised over all summary
jurisdictions. To the policy of the 3d and 6th sections we cannot so
readily give our assent; the one exempts drugs in merchants warehouses
from search, and the other enacts that Patentees for the sole making any
medicine shall not be prejudiced thereby. By the first of these the
Censors are excluded from some known manufactories of factitious drugs,
and an important security is taken away from our export trade, for it is
evident that foreigners would more readily buy the drugs which have
passed through our hands, if they were assured that their quality had
been subjected to strict and competent scrutiny. To Patent Medicines we
may be allowed to avow our most decided hostility, and as it is
notorious that the greater part of them are not made up according to
their specifications, we may without charge of illiberal prejudice claim
for the public some security that the preparations which they buy as
“_mild vegetable extracts_,” may not be clandestinely poisoned with
Antimony, Mercury, and Arsenic. It may be said that the public have a
remedy by the forfeiture of the Patent consequent on the falsehood of
the specification, but this can only be effected by an expensive process
to which the mere purchaser of a phial of trash may not choose to
subject himself, even if he have skill enough to detect the fraud
practised upon him.[101]
We have thus shown by repeated precedents that none can legally practise
Physic in London, or within seven miles circuit of the city, who are not
either Fellows or Licenciates of the College, nor can any, except
Graduates in Physic of Oxford and Cambridge, lawfully practise in the
country, without a similar license; yet, as the Act of Parliament has
annexed no specific penalty to the transgression, the only remedy in
such case is by indictment for a misdemeanor: for where there is no
punishment attached by statute to the violation of a prohibitory clause
in an Act of Parliament, this indictment lies. (See 4 _Term Rep._ 202.)
Unfortunately the history of the College litigations does not cease with
their proceedings against unlicensed practitioners; they have also had
to contend, on the defensive, with their own Licenciates, who have
claimed a full participation in the rights and privileges of the
Fellows:[102] we hope most earnestly that the question is now at rest,
and that the cases we are about to cite may serve as beacons to avoid
past errors, not as precedents for future proceedings.
“It would require a volume,” says Sir _James Burrows_, vol. 4. p. 2186,
“to give a full and particular detail of this long contest between the
Fellows and the Licenciates; which was litigated with great spirit and
eagerness between several very learned and respectable gentlemen of the
faculty on both sides. It must not therefore be attempted within the
compass of a collection, already perhaps too faulty in this
respect[103], as being in many instances more minute and circumstantial
than may appear absolutely necessary, or at all agreeable to some
readers.”
“The substance of it ought not however to be omitted, which was as
follows.”
“A rule had been obtained upon the application of Doctor _Letch_ for the
College of Physicians to shew cause why a mandamus should not issue,
directed to them, commanding them to admit _John Letch_, Doctor of
Physic, to be a member of the College.”
“This Rule was made upon the whole body of the College or Community of
the Faculty of Physic of the city of London; and also on the President
and Censors of the said College.”
“Mr. _Yorke_ against the Rule, Sir _Fletcher Norton_ for it.”
“The short state of the material facts, with respect to this mandamus,
was, that Doctor _Letch_, who practised as a Man-Midwife,[104] was
summoned by the College to be examined. He thereupon came in, and was
examined thrice at the _comitia minora_: And after the third of these
examinations, he was there balloted for ‘Whether he should be _approved
of by them_ or not.’ A dispute arose upon this ballot. The majority of
the number of balls _appeared_ to be for approving him: but one of the
Censors declared ‘that he had by mistake put in his ball for
approbation; which he meant and intended to be against approving him.’
It was proposed to ballot over again, but the President declared this to
be an approbation by a majority of votes on the ballot. On Doctor
_Letch_ being proposed to the _comitia majora_, nineteen to three of the
members present were against putting the College Seal to his letters
testimonial. And he was informed that he was not elected.”
“His Counsel insisted that having been returned sufficient by the
_comitia minora_, he had already acquired an inchoate right to
admission, which the Court would enforce the completion of, by
mandamus.”[105] For the argument and authorities vide _Rex_ v. _Askew_
_ubi supra_ and _Appendix_.
“Lord _Mansfield_ in his judgment laid down the following among other
rules.”
“The Court (i. e. of King’s Bench) has jurisdiction over Corporate
Bodies to see that they act agreeably to the end of their institution.”
“Where a party who has a right has no other specific legal remedy, the
Court will assist him by issuing this prerogative writ (i. e.
_mandamus_) in order to his obtaining such right.”
“But it is not a writ that is to issue of course, or to be granted
merely for asking.”
“The College are obliged in conformity to the trust and confidence
placed in them by the Crown and the public, to admit all that are fit;
and to reject all that are unfit.”
“The judgment and discretion in determining on skill, learning, and
sufficiency to practise physic, is trusted to the College, and the Court
will not interrupt them in the due and proper exercise of it. But their
conduct in the exercise of this trust thus committed to them ought to be
fair, candid and unprejudiced; not arbitrary, capricious or biassed;
much less warped by resentment or personal dislike.”
“It is possible that other causes of rejection than insufficiency of
skill may occur, as _badness of morals_, for instance; of these the
Court will judge.”
“If they should refuse to examine the candidate at all, the Court will
oblige them to do it.”
“The power (of admission) remains with the body; and the examination by
the President and four Censors is only preparatory, and for the ease of
the body at large.”
“Every Fellow may examine and argue with the candidate in the _comitia
minora_ though he has no vote _there_.”
“The delegation to the _comitia minora_ to examine is good.”
“Mr. Justice _Aston_ followed Mr. Justice _Yates_ in saying that Doctor
_Letch_ should rather have applied for a mandamus requiring the College
to grant him a license to practise within London and seven miles of it,
than for a mandamus to admit him as a member.”
“The _comitia majora_ acted with great moderation in admitting him to
another examination.
“Mr. Justice _Hewit_ declined giving any opinion (on a point started in
argument) whether London Licenciates are _members_ of the College or
not; though he hinted, that the more he thought of it, the more he
doubted it.”
“We should go a great way if we should say ‘that a Licenciate to
practise within _London_ and seven miles round is a _member_ of the
College’.”
The Rule was accordingly discharged by the unanimous opinion of the
Court.
But the matter did not rest here; the notion that the Licenciates were
entitled to be considered as Members of the College, under the term
Commonalty or otherwise, gained ground; and accordingly two terms after
the original argument and judgment, Sir _Fletcher Norton_ (afterwards
Lord _Eardly_) moved for a Rule upon Dr. _Askew_ and others (the four
then Censors), for them to shew cause why an information in nature of a
_quo warranto_ should not be granted against them, to shew by what
authority they acted as Censors of the College of Physicians.
The objection was, that whereas the election ought to be by the _whole_
body, these gentlemen had been elected only by a _select_ body; namely
by the Fellows, _exclusive_ of the Licenciates, who _demanded
admittance_; which was refused them by the Fellows, on pretence of their
having no business there, upon that occasion.
After an argument on three several days, during which Sir _Fletcher
Norton_, Mr. _Morton_, Mr. _Wedderburn_ (afterwards Lord _Roslyn_,)[106]
Serjeant _Glynn_, Mr. _Walker_, and Mr. _Mansfield_ (afterwards Chief
Justice of the Common Pleas), were heard for the Licenciates, and Mr.
_Yorke_ (afterwards Lord _Chancellor_), Mr. _Dunning_ (afterwards Lord
_Ashburnham_), Serjeant _Davy_, Mr. _Ashurst_ (afterwards a Judge), and
Mr. _Wallace_ for the College, Lord _Mansfield_ delivered his
opinion.[107] “The question now before us is singly this, Whether the
persons applying for the information _are Fellows_ and _entitled to
vote_ in the election of Censors. If they are, the election of these
Censors, being made in _exclusion_ of their votes, is _not good_. If
they are not Fellows, and have no right to vote in the election of
Censors, then this election stands unimpeached.”
The question is, “Whether these _Licenciates_ are Socii, or Collegæ, or
Fellows,” which are synonimous terms.
The facts are not disputed: and there is no doubt about the law. It has
been admitted on both sides that there has been a great number of
_by-laws_ and _long-usages_; and the permission of these Licenciates _to
practise_ is not disputed. But I doubt whether this _permission to
practise_, and these _letters testimonial_, can amount to an admission
into the Fellowship of the Corporation or College. Nothing can make a
man a Fellow of the College without the _Act of the College_. The power
of examining, and admitting after examination, was not an arbitrary
power, _but a power coupled with a trust_. They are bound to admit every
person whom upon examination they think to be fit to be admitted, within
the description of the Charter and the Act of Parliament which confirms
it. The person who comes within that description has a _right_ to be
admitted into the _Fellowship_; he has a claim to several exemptions,
privileges, and advantages, attendant upon admission into the
_Fellowship_; and not only the candidate himself, if found fit, has a
personal right, but the _public_ has also a right to his service; and
that not only as a physician, but as a censor, as an elect, as an
_officer_ in the offices to which he will upon admission become
eligible.[108] They have power not only by their charter, but by the law
of the land, to make fit and reasonable by-laws, subject to certain
qualifications. It appears from the Charter and the Act of Parliament,
that the Charter had an idea of persons who might practise physic in
_London_ and yet not be Fellows of the College. The President was to
overlook _not only_ the College, but also “_omnes homines ejusdem
facultatis_.” So when the College or Corporation were to make by-laws,
these by-laws were to relate _not only_ to the Fellows, but to _all
others_ practising physic within _London_ or seven miles of it.
Then let us see how the usage was.
In 1555 they must have had a probationary license before admission into
the College. Afterwards it was to be a probation for four years before
admission. The College might grant such probationary licenses, with some
reason, and agreeably to their Institution. This shews that some
licenses were granted to persons not Fellows of the College. The 3 H. 8
takes away all former privileges.[109] In 1561, a _partial_ license was
granted to an occulist. A person may be fit to practise in _one_ branch
who is _not_ fit to practise in _another_. Licenses have also been
granted to _women_.[110] _Partial_ licenses have been given for above
200 years.[111] In 1581 notice is taken of _three classes_: Fellows,
Candidates, and Licenciates. The licenses probably took their rise from
that illegal by-law (now at an end) which restrained the number of
Fellows to twenty.
This being premised, let us inquire “Who these gentlemen are that are
now applying to the Court.”
They are persons who set up a title directly contrary to the _sense_ in
which their license is given _to_ them and received by them. They cannot
avail themselves of their instruments in this way: it would be a _cheat_
upon the College. And they have acquiesced many years under this license
given them by the College, as merely a license to practise.
But even supposing them to have a right to be Fellows, yet, as it is
clear that the license does not make them _ipso facto_ Fellows, they
could not vote _in the election_ of Censors _before their_ admission to
the Fellowship; and therefore the exclusion of their votes cannot
impeach this election.
I am of opinion “that this rule ought to be discharged.”
His Lordship (but this was _obiter_) then made some comment on the
statutes and by-laws of the College; and recommended their revisal under
the best advice, saying, “I see a source of great dispute and litigation
in them as they now stand.”[112]
Mr. Justice _Yates_ concurred with the Chief, as did Mr. Justice _Aston_
on some points; but upon the construction of the Charter and Act of
Parliament, he thought that in grants of this kind, the construction
ought to be made in a _liberal_ manner; and this grant includes “_Omnes
homines ejusdem facultatis de et in civitate prædictâ_,” and the
application to Parliament for the Act of 14 and 15 H. 8. to confirm the
Charter is made by the six persons particularly named in it, “_and all
other men of the same faculty_ within the City of London and seven miles
about.” It seemed to him that the idea was “that all persons duly
qualified, who took testimonials under the College seal, were to be of
the community.” He should, however, give no opinion, he said, how it
might turn out upon a _mandamus_.
Mr. Justice _Willes_, confining himself to the subject in question,
concluded, “they cannot before their admission maintain this rule.”
Lord _Mansfield_ and Mr. Justice _Yates_ said they gave no opinion how
it might be upon a _mandamus_.
The Court were unanimous in discharging the rule.
The hint thrown out by three of the Judges was followed up by the
Licenciates. On Thursday, 17th Nov. 1768, Sir _F. Norton_ and Mr.
_Norton_ moved the Court on behalf of Doctor _Edward Archer_, and Mr.
_Walker_ on behalf of Dr. _Fothergill_, for writs of _mandamus_, to
oblige the College to admit these two Licenciates, with an intention to
try the question “whether the Licenciates had a right to be admitted
Fellows;” and that litigation lasted till June 1771. But they only came
round to the same point which had been already determined, as above; for
these two gentlemen had accepted licenses _under the by-law_ of 1737,
and the Court were of opinion “that they ought not afterwards to desert
it, and treat it as null and void; and set up a right of admission under
the Charter, upon the foundation of this very license which they had
accepted _under the by-law_, upon the supposition that the by-law was a
bad one.” So that the return was allowed, upon that objection to their
claim. And the intended question remained unsettled. See 5 Burr. 2740,
where also will be found the form of the mandamus and the return.[113]
The last case on this subject is that of Doctor _Stanger_. (7 Term Rep.
282, which as the most recent decision, and for the luminous judgment of
Lord _Kenyon_, we have inserted in the appendix.) This, like the cases
in _Burrows_, was argued by the most celebrated lawyers of the day, Mr.
Serjeant _Adair_, Mr. _Law_, (afterward Lord _Ellenborough_) Mr.
_Chambre_, (afterward a Judge) Mr. _Christian_, (now Chief Justice of
_Ely_) having argued in support of the rule; and Mr. _Erskine_,
(afterward Chancellor) Mr. _Gibbs_, (Chief Justice C. P.) Mr. _Dampier_,
(a Judge) and Mr. _Warren_, (now Chief Justice of _Chester_) against it.
The rule for a _mandamus_ was discharged;[114] it may therefore now be
considered as a resolved point of law, that a Doctor of Physic, who has
been licensed by the College of Physicians to practise physic in
_London_ and within seven miles, cannot claim as a matter of right to be
examined in order to his being admitted a Fellow of the College. The
College, who have power by their Charter (confirmed by Act of
Parliament) to make by-laws, have made by-laws respecting the
qualifications of persons to be admitted; by them it is ordained that no
person shall be admitted into the class of candidates before admission
into the College, unless he has taken a degree of M. D. at Oxford,
Cambridge, or Dublin, except in two cases: in one of those cases the
President may propose in every other year a Doctor of Physic of a
certain standing, and if he be approved by the College, he may be
admitted a Fellow; in the other, any Fellow may propose a Doctor of
Physic of a certain age and standing, and if approved at certain
meetings he may be admitted a Fellow. And it was ruled that these were
reasonable by-laws.
The following may now be considered as the legal classes of Physicians.
1st. The actual members of the College of Physicians, divided into their
several denominations of President, Elects, and Fellows.
2d. Those who, being graduates of the universities of Oxford and
Cambridge, are licensed to practise by the College in London and within
seven miles during their respective periods of probation, previous to
becoming Fellows; these are Candidates who, being Doctors of Physic,
have undergone their examination for the Fellowship, and at the end of
one year are capable of becoming members or Fellows of the College; and
inceptor Candidates,[115] who being Bachelors of Physic aspire to the
Fellowship.
3d. The medical graduates of our two Universities.
4th. The Licenciates who are admitted by the College to practise in
London and within seven miles, and the extra Licenciates who are
admitted to practise in the country but not within the privileged
district of the College.
These are the laws respecting Physicians as a body Corporate; we have
not added their Statutes as they are separately printed, although they
have never been published by the authority of the College. It now
remains for us to notice their rights as individuals, the exemptions to
which they are entitled, and the actions to which they are liable.[116]
2. OF THE COLLEGE OF SURGEONS.
THE present College of Surgeons owes its existence to the Act of the
18th _Geo._ 2. _c._ 15. (_see Appendix_, p. 30), by which the Surgeons
of London are separated from the Barbers, with whom they had been made
one Company and Body Corporate, by the 32nd _Hen._ 8. _c._ 40. (_see
Appendix_, p. 14),[117] previous to which period (A. D. 1540) the
Surgeons had no incorporation; they had indeed petitioned for and
obtained an Act of Parliament under the name of the Wardens and
Fellowship of the craft and mystery of Surgeons enfranchised in London,
stating their number not to exceed twelve persons, to which number the
relief from “quests and other things” granted by the Act (5th _Hen._ 8.
_c._ 6. _see Appendix_, p. 5), is limited; but it is evident by the
preamble to the 32nd _Hen._ 8. that they, though called a Company, “be
not incorporate nor have any manner of corporation” previous to that
period. The examination of Surgeons, as that of Physicians also, had
been confided to the bishops (3 _Hen._ 8. _c._ 11.), nor does it appear
that the subsequent Act of _Henry_ remedied this defect. By the 18th
_Geo._ 2. however they have been made a separate and distinct Body
Corporate and Commonalty, under the name of _Masters, Governors, and
Commonalty of the art and science of Surgeons of LONDON_, by which name
they may sue and be sued; (_Appendix_, p. 39). All liberties,
privileges, franchises, powers, and authorities, which they might have
enjoyed under the united Company and their Act of Parliament, or under
the Letters Patent of _Charles_ the 1st, or the other Royal Grants,
Charters, and Patents, therein mentioned and referred to, so far as they
relate to the science of Surgery, are confirmed to them (§ 8.
_Appendix_, p. 43). Now the Charter of _Charles_ the 1st, as recited in
the preamble of this Act, grants that “no person or persons whatsoever,
whether a freeman of the said society or a foreigner, or a native of
England, or an alien, should use or exercise the said art or science of
Surgery within the said cities of _London_ and _Westminster_ or either
of them, or within the distance of seven miles of the said city of
London, for his or their private lucre or profit, (except such
Physicians as are therein mentioned) unless the said person or persons
were first tried and examined in the presence of two or more of the
Masters or Governors of the mystery and commonalty aforesaid for the
time being, by four or more of the said examiners so to be elected and
constituted as aforesaid and by the publick Letters Testimonial of the
same Masters or Governors under their common seal approved of and
admitted to exercise the said art or science of Surgery, according to
the laws and statutes of the kingdom of _England_, under the penalty in
the said Letters Patent mentioned.”[118]. (_see Appendix_, p. 36). The
same Charter provides “That no one, whether a freeman of the mystery or
commonalty aforesaid, or a foreigner, whether a native of England, or an
alien, exercising the art of Surgery within the cities of _London_ and
_Westminster_ or the suburbs or liberties thereof, or within seven miles
of the said city of _London_, should go out from the port of _London_,
or send out any apprentice, servant, or other person whomsoever, from
the said port, to execute or undertake the place or office of a Surgeon
for any ship, whether in the service of the Crown, or of any merchant or
others, unless they and their medicines, instruments and chests
respectively, were first examined, inspected, and allowed by two such
Masters or Governors of the mystery and commonalty aforesaid for the
time being, as were skilled, knowing and professors in the same art of
Surgery, under the penalty therein mentioned;” (_see Appendix_, p. 37).
And the Act (§ 9. _Appendix_, p. 44,) following the same principle,
enacts “That from and after the said first day of July, One thousand
seven hundred and forty-five, the Examiners of the Company of Surgeons
established by this Act shall, and they are hereby required, from time
to time upon request to them made, to examine every person who shall be
a candidate to be appointed to serve as a Surgeon or a Surgeon’s mate,
of any regiment, troop, company, hospital or garrison of soldiers in the
service of his Majesty, his heirs or successors, in like manner as they
do or shall examine any Surgeon or Surgeons to be appointed to serve on
board any ship or vessel in the service of his Majesty, his heirs or
successors.”
By section 3, (_see Appendix_, p. 39,) the College is empowered to hold
Courts and Assemblies and to make By-laws, Ordinances, Rules, and
Constitutions for the government of the Corporation, and those of the
united Company concerning Surgery are declared to be in force till
repealed. (§ 4. p. 40). By section 11 (_see Appendix_, p. 45,) it is
provided that nothing contained in the Act shall abridge or infringe any
of the privileges, authorities, &c. of the College of Physicians.
These are the Acts of Parliament which at present regulate the
profession of a Surgeon; it is evident that they are imperfect, as they
do not give any power to restrain and punish ignorant pretenders, who
without the slightest qualification assume this dangerous and difficult
branch of practice, and most especially in the country. We are aware
that any attempt of the medical Corporations to obtain an increase of
their power, would create much outcry among those who are interested in
the perpetuation of existing abuses; but we will hope that the public
safety will be preferred to the private views of empirics; and that a
due system of examination, license, and restriction of surgical practice
throughout England, will shortly receive the sanction of the
legislature.
We have only found one reported case of any consequence in which the
College of Surgeons have been parties. In _Rex v. the Master and Wardens
of the Company of Surgeons in London_, it was determined that a By-law
requiring apprentices to have a competent knowledge of the Latin
language, is good and reasonable; (_see_ 2 _Bur._ 892. _and Appendix_).
Continual attempts have been made to decry the value of classical
attainment in the medical professor; the legal authorities however agree
that the Corporations have the right of prescribing a due course of
education as a necessary preliminary to admission; and we sincerely hope
that these learned bodies will never abandon this principle, that none
shall be admitted to the higher honors of their profession, who are not
possessed of the ordinary acquirements of gentlemen.
In the year 1800 the Surgeons of London obtained a new Charter from his
late Majesty, which after reciting the previous Charters and Acts of
Parliament which we have noticed, proceeds thus: “And whereas we are
informed that the said Corporation of Master Governors and Commonalty of
the art and science of Surgeons of London, hath become and now is
dissolved,” &c. therefore His Majesty was pleased to incorporate the
members of the late Company, and all such persons who, since the
dissolution thereof, have obtained Letters Testimonial, &c. and
confirmed to such new Corporation all gifts, grants, liberties,
privileges, and immunities, possessions real and personal, &c. granted
or confirmed by any previous Charter or Act of Parliament.
We confess ourselves at a loss to trace either the mode or date of the
alleged dissolution; the Act of the 18th _Geo._ 2. is explicit as to the
creation of a College of Surgeons, and we consequently find them
recognised in the character of a Corporation in the cited case _Rex v.
the Master and Wardens_ (_Appendix_ p. 153), which was tried in the 33d
of _Geo._ 2.; but as the College have themselves admitted the fact, we
must take it for granted that the recital is correct; how far the
Charter of _Geo._ 3. unconfirmed by an Act of Parliament can revive
their ancient rights may be a most material question; but as we are of
opinion that the rights of this body should rather be increased than
diminished we do not at present enter into it, in the hope that the
defect, if it exist, will be shortly remedied by the Legislature.[119].
3. OF THE SOCIETY OF APOTHECARIES.[120]
In 1666 the Apothecaries and Grocers were united in one Company by
Charter of the 4th of _James_ the First, but this union did not long
continue, for in 1615, by Charter of the 13th of the same king,[121] the
Companies were again separated (see _Goodall_’s collect. p. 119.
_Appendix_ 71.) This was done upon the representation of some of the
Apothecaries, backed by the approval of Doctors _Mayerne_ and _Atkins_,
then the King’s physicians, by whose interest and solicitation this new
Charter appears to have been obtained. The Letters Patent, after
reciting the Charter of the 4th of the King, and that many empirics and
ignorant persons had taken upon themselves the art and mystery of
Pharmacoplists, compounding hurtful, corrupt and pernicious drugs,
declared that the Apothecaries of and within seven miles compass of the
City of London should thenceforth be separated from the Grocers, and be
made a Corporation, under the names of the Master, Wardens and Society
of the art and mystery of Pharmacopolists in London, to sue and be sued
as other Corporations; to have a common seal, and power to purchase and
hold lands in fee simple or for years. To be subject however to the
magistracy of the City of London, as other City companies. None but
natural born subjects to be members. The Company or Society is enabled
to elect a Master, two Wardens, and twenty-one Assistants, in the manner
prescribed, to have a hall or council house, to keep a court or
convocation to consult on statutes, laws, articles, &c. The power of
making By-Laws for the government of the society is vested in the
Master, Wardens and Assistants, or thirteen of them (of whom the Master
must be one), on public summons; provided however that in all orders
concerning medicines and their composition they should consult with the
President and Censors of the College of Physicians, or with some other
physicians named for that purpose by the President. They have power to
punish by fines and amercements to the use of the Company, without
giving account, but such fines must be moderate and not contrary to law.
The first Master (_Edm. Phillips_), Wardens and Assistants[122] are
named in the Letters Patents, with special direction as to the manner in
which they are to take their respective oaths of office, and the future
election of Master and Wardens is vested in the Assistants, who have
also the sole power of filling up vacancies in their own number, whether
caused by death, removal or otherwise; with power to administer the oath
of office, as well to every Master and Warden as to every newly elected
Assistant. No Grocer or other person whatsoever may keep an Apothecaries
shop for the compounding medicines, &c. till he have served seven years
apprenticeship to some Apothecary, nor can such Apprentice be made free
unless allowed by the President of the College of Physicians,[123] or
some Physician or Physicians deputed by him, who is or are to be present
at the examination by the Master and Wardens (if upon notice such
Physician or Physicians shall be unwilling to attend.) The Company have
power to enter the shops and houses of all persons following the mystery
of Apothecaries, both in the City and suburbs, to search and try
medicines, and to burn all unwholesome and hurtful medicines before the
doors of the delinquents, in which all civil officers are to give them
all necessary assistance; this power is however to be without prejudice
to the rights and privileges of the President of the College of
Physicians, who are to enjoy all powers and authorities as before[124],
and especially to have the same power in their searches to call the
Master and Wardens of the Apothecaries Company as of the Grocers.
Lastly, the practice of Surgeons is confirmed, so that they do not vend
medicines after the manner of Apothecaries.
This Charter was lately confirmed (except as therein altered) by Act of
Parliament, 55 _Geo._ 3. _c._ 194. By this Statute the Company’s former
power of search for unwholesome medicines is repealed, and in lieu
thereof the Master, Wardens and Society of Apothecaries, or any of the
Assistants, or any other person or persons properly qualified to be by
the Master and Wardens assigned, not being fewer in number than two,
shall, as often as to the said Master and Wardens may seem expedient,
enter in the day time, any shop of any person using the art and mystery
of an Apothecary in any part of _England_ or _Wales_, and search if the
medicines, simple or compound, Wares, Drugs, or any thing whatsoever
therein contained and belonging to the art or mystery of Apothecaries,
be wholsome, meet and fit for the cure, health, and ease of his
Majesty’s subjects; and all and every such medicines, wares, drugs, and
all other things belonging to the aforesaid art, which they shall find
false, unlawful, deceitful, stale, unwholsome, corrupt, pernicious or
hurtful, shall and may burn, or otherwise destroy, reporting the name of
the offender to the Master, Warden and Assistants, who may impose and
levy on such person the following fines; for the first offence five
pounds, for the second offence ten pounds, and for the third and every
other offence the sum of twenty pounds. No person to be nominated to
search drugs, or chosen to the Court of Examiners within the City of
London, or thirty miles of the same, unless he be a member of the
Society of Apothecaries, of not less than ten years standing; nor in any
other part of England and Wales, or to be one of the five Apothecaries
hereinafter mentioned, except he shall have been an Apothecary in actual
practice for not less than ten years previously to his being so
nominated or appointed. “And whereas, it is the duty of every Person
using or exercising the art and mystery of an apothecary, to prepare
with exactness and to dispense such medicines as may be directed for the
sick by any Physician, lawfully licensed to practise Physic by the
President and Commonalty of the Faculty of Physic in London, or by
either of the two Universities of Oxford or Cambridge; therefore” if any
person using the mystery of an Apothecary shall refuse to compound or
administer or deliberately or negligently, falsely or unfaithfully mix,
compound, or administer any medicines ordered by any lawful Physician by
any prescription signed with his initials, such person on complaint made
within twenty-one days by such Physician,[125] and upon conviction of
such offence before any of his Majesty’s Justices of the Peace, unless
such offender can shew some satisfactory reason, excuse, or
justification in this behalf, forfeit for the first offence five pounds,
for the second offence ten pounds, and for the third offence he shall
forfeit his certificate, and be rendered incapable in future of using
the art and mystery of an apothecary and shall be deemed incapable of
receiving any fresh certificate until he shall faithfully promise and
undertake and give good and sufficient security, that he will not in
future be guilty of the like offence.[126] The Master and Wardens may
from time to time appoint deputies to act for them. The Master, Wardens,
and Society of Apothecaries are appointed to carry this act into
execution throughout England and Wales, but no act of the Master,
Wardens, &c. shall be valid (except the search of drugs, &c. as before
mentioned, the acts of the Court of Examiners, and of the five
Apothecaries hereinafter mentioned) unless the same be done at some
meeting to be holden in the hall of the Society. The powers granted to
the Master, Wardens and Society, to be exercised by the Master, Wardens
and Assistants for the time being, or the major part of them present;
the number present at such assemblies not to be less than thirteen, of
which the Master must be one. Twelve persons properly qualified shall be
chosen and appointed by the Master, Wardens and Assistants (who may also
remove or displace them from time to time as they may deem advisable)
and such twelve persons, or any seven of them, shall be and be called
the Court of Examiners of the Society of Apothecaries and shall have
full power to examine all Apothecaries and Assistants to Apothecaries
throughout England and Wales, and to grant or refuse certificates; this
Court is to meet once a week at the Halls, a chairman to be appointed
who in case of equality (his own vote included) shall have a casting
vote. The Master, Wardens or Court of Assistants are to administer a
prescribed oath of office[127] to the Examiners. The Examiners remain in
office one year (except in cases of removal) and may be reappointed; in
case of death the successor remains in office only to such time as his
predecessor would have done. After the fifth of August, 1815, it shall
not be lawful for any person (except persons already in practice) to
practise as an Apothecary in any part of England or Wales, unless he
shall have been examined by the said Court of Examiners and have
received a certificate of his being duly qualified to practise as such;
no person to be admitted to examination until he shall have attained the
full age of twenty-one years, nor unless he shall have served an
apprenticeship of not less than five years to an Apothecary and shall
produce testimonials to the satisfaction of the Court of Examiners, of a
sufficient medical education and of a good moral conduct. Persons
intending to qualify are to give notice to the Clerk. It shall not be
lawful for any person (except persons then acting as Assistants and
except persons who have actually served an apprenticeship of five
years[128] to an Apothecary) to act as Assistant to any Apothecary in
compounding or dispensing medicines without undergoing an examination by
the Court of Examiners (or by five Apothecaries hereinafter mentioned)
and obtaining a certificate of his qualifications. The Master and
Wardens or Court of Examiners may from time to time appoint Five
Apothecaries[129] in any county throughout England and Wales (except
within the city of London and thirty miles circuit) to act for such
county in examining Apothecaries and their Assistants, for which purpose
they shall hold monthly meetings in the county town, three to be a
quorum and the Chairman in case of equality to have a casting vote. The
sums to be paid for Certificates to be as follows; Ten pounds ten
shillings to be paid to the Master, Wardens, &c. for Certificate to
practise within London or ten miles circuit, and Six pounds six
shillings for any other part of England or Wales, in which case the
Certificate may be afterwards enlarged to London, &c. on payment of Four
pounds four shillings. Any person practising (except persons in actual
practice as before mentioned) without a Certificate shall for every such
offence forfeit Twenty pounds, and Assistants (except as aforesaid) Five
pounds. And no Apothecary shall be allowed to recover any charges
claimed by him in any court of law, unless he shall prove that he was in
practice on or before the first of August 1815, or that he has obtained
his Certificate. Persons refused a Certificate to practise may apply
again.[130] The Master, Wardens, &c. are to publish an annual list of
all persons who in that year have obtained Certificates. The monies
arising from Certificates to be at the disposal of the Master, Wardens,
&c.; the penalties, one half to the informer and one half to the Master,
Wardens, &c. Fines and penalties above Five pounds to be recovered by
action at law in the name of the Master, Wardens and Society of the art
and mystery of Apothecaries of the city of London; and if the fine or
penalty be less than Five pounds, then the same shall be levied by
distress warrant under the hand and seal of any Justice of the Peace
acting for the city, county, town, or place where the offence was
committed; and the distress is not to be held unlawful for want of
forms. But this act is not to affect chemists or druggists,[131] nor in
any way to interfere with, lessen, prejudice or defeat any of the
rights, authorities, privileges and immunities of the two Universities
of Oxford and Cambridge, the Royal College of Physicians, the Royal
College of Surgeons, or the said Society of Apothecaries. Actions
against any Corporation for any thing done under this act to be brought
within six months, and in the county in which the dispute shall arise;
defendants may plead the general issue. The jury shall find for the
defendants if such action have been brought without twenty-one days
notice, and on verdict for the defendants or the plaintiff suffering
discontinuance or nonsuit, they the defendants shall have double costs.
This act to be deemed a public act.
Such is the general outline of the act under which the Society of
Apothecaries have obtained a very considerable addition to their ancient
powers (for the act itself we refer the reader to the _Appendix_); we
are convinced that much public benefit may arise from a diligent use and
exertion of these authorities, and from what we know of the parties now
entrusted with them, we do not anticipate any evil from the mode or
motives of their execution.
We do not think it necessary to enter into the details of the By-laws of
this Society, nor into their character as a trading Corporation; we may
however remark that the quality of the medicines supplied by them to the
Navy and East India Company, has been very generally approved; too much
care cannot be taken to secure the purity and propriety of the
assortments exported for the use of our gallant defenders; nor is there
any good reason why the army should not be supplied under the same or a
similar system; we do not mean that the Apothecaries Company should have
an absolute monopoly of medicines for the public service, for such a
grant would defeat the end proposed, but if under a fair and open
competition they can furnish the necessary supplies of an equal quality
and price with their rivals in trade, there are reasons of public
expediency which would turn the scale in favor of a fixed and permanent
Corporation, in preference to the individuals however respectable, whose
trading may be more subject to accidents and vacillations.
We must not conclude our account of the Society of Apothecaries, without
noticing the splendid botanic garden at Chelsea, which, for a period of
a century and a half, they have possessed and carefully maintained: and
it is worthy of remark, that this is the only depository of exotic and
indigenous plants, in the vicinity of the metropolis, which belongs to
any public body. From the account of this establishment by Mr.
Field,[132] its early history appears to be involved in considerable
obscurity; the company however were mere lessees of the ground, until
the fee and inheritance of the estate, together with the manor of
Chelsea, was purchased from Lord Cheyne by Sir Hans Sloane; when this
distinguished naturalist and physician, by deed, containing certain
covenants[133] hereafter mentioned, gave the society full possession of,
and a permanent interest in, the garden. The society do not appear to
have been insensible to the liberal conduct of Sir Hans Sloane; a marble
statue of their benefactor, executed by Michael Ryebrach, at the cost of
£250, was erected by them in 1737, and it remains as a lasting memorial
of his munificence, and of their gratitude.
4 OF THE EXEMPTIONS AND LIABILITIES OF MEDICAL PRACTITIONERS.
Physicians, Surgeons, and Apothecaries have been exempted from the
performance of various civil duties by several Acts and Charters, and
those exemptions which were at first limited, have by custom become so
general, that they may now be considered as legally established.
By the 14 and 15 _Hen._ 8. _c._ 5. that part of the Charter of the
College of Physicians, which exempts them from being summoned to or
placed on any assizes, juries, inquests, inquisitions, attaints, _et
aliis recognitionibus_, even in pursuance of the King’s writ, is
confirmed by Statute; and by the 32 _Hen._ 8. _c._ 40. they, and as it
may appear the Licenciates also, (under the name of Commons,) are
discharged from keeping watch and ward, from serving the office of
constable,[135] or any other office within the city of London and the
suburbs, any order, custom or law to the contrary notwithstanding.[136]
The Corporation of the city of London, however, appear to have been
unwilling to acquiesce in these exemptions, grounding themselves
probably on their own Charters and Privileges, and on the reservation of
their rights in the concluding clause of the Charter of the College. We
find, therefore, that the members of the College were frequently
harassed by being elected to parochial offices, and being called upon to
find arms, and to keep watch and ward.
In 1588, “Being then a time of most imminent and public danger, the Lord
Mayor of _London_ and Court of Aldermen charged the College with arms,
whereupon they applied themselves to Queen _Elizabeth_ and her Council;
upon which Secretary _Walsingham_ wrote a letter to the Lord Mayor and
Aldermen of London, that they should no more trouble the College, but
permit them to live quietly, and free from that charge. After this they
met with no further trouble or molestation till the reign of King
_James_; at which time the College being charged with arms, Sir _William
Paddy_ pleaded their privilege before Sir _Thomas Middleton_, Lord
Mayor, and a full Court of Aldermen, and Sir _Henry Montague_,
Recorder.” “The Recorder then perusing every branch of the Statutes
recited by Sir _William Paddy_, with the reasons by him urged; and
opening every part thereof at large, did conclude, that the Act of
Parliament did extend to give the College as much immunity as in any
sort to the Chirurgeons. Hereupon the Court desired a list of the
members of the College, which was immediately given them, and an order
entered for a dispensation to the College from bearing of arms; and also
a precept was then awarded by the Mayor and Court, to commit all other
Physicians or Surgeons, refusing to bear or find arms, who were not of
the College allowed, or Chirurgeons licensed according to form.”
“About three years after this debate, King _James_ granted the College
his Royal Charter, wherein he confirms all former statutes and patents
given them by his royal progenitors, and therein granted, To all and
every Physician of the College to be wholly and absolutely free from
providing or bearing of any armour or other munition, &c. any act or
statute to the contrary notwithstanding.”
_Charles_ the Second also by his Charter granted the same exemptions in
very full terms, and sent a letter to the Lord Mayor of London (for
which see _Appendix_) commanding the observance of these privileges.
“Thus by the especial grace and favour of the Kings and Queens of
_England_, the College of Physicians have been freed from bearing and
providing arms: and though some particular member may of late have been
summoned upon that account by the Lieutenancy, yet upon producing his
Majesty’s patent and asserting his Sovereign’s natural right in
dispensing with a Corporation of men from bearing and providing arms,
which was an inherent prerogative in the Crown; and therefore an Act of
Parliament was made in 13 _Car._ 2. 6. positively declaring, That the
sole and supreme power, government, command and disposition of all the
Militia, and of all forces by sea and land, &c. is, and by the laws of
_England_ ever was, the undoubted right of his Majesty and his royal
predecessors, they were freed from any further trouble. An instance of
which we lately had in the case of Dr. _Newell_, then candidate of the
College of Physicians; who, anno 1680, was summoned to appear before the
Lieutenancy of _London_ for not bearing and providing arms. Upon which
summons, attending with the Patent 15 _Car. Secundi Regis nunc_.” The
Lieutenancy on debate desired a copy of the exempting part of the
patent, that they might consult with their counsel. On the next
committee-day they told him they were satisfied that the words of the
Patent were sufficient to exempt the members of the College from bearing
and providing arms, and desired that a list of them might be given in
under the College Seal, which was accordingly done.
Sir _Francis Pemberton_, Sir _Edmund Saunders_, and Mr. _Holt_, lawyers
of whose celebrity it is unnecessary to speak, being consulted on the
same point, answered.
Sir _F. P._ I conceive his Majesty may, by his Patent, excuse the
College from finding arms if he think fit.
Sir _E. S._ The Patent doth discharge the Physicians from bearing or
providing of arms, notwithstanding the Militia Act.
Mr. _H._ I conceive by the Patent all the members of the College are
exempted from being at any charge towards the Militia.
But in the case of _Sir Hans Sloane_ against Lord _William Pawlett_,
Lord Chief Justice _Parker_ was of opinion, that the King by his
prerogative could not dispense with an Act of Parliament which was made
for the public good of the whole nation; “but admitting that he could
exempt them (the Physicians) from personal duties, yet it cannot be
inferred from thence, that he might exempt them from being contributory
to others to perform those duties which are required by an Act of
Parliament, especially where the subject has an interest that such
duties should be performed, or a loss if they should not; and the better
opinion seemed to be that the King could not exempt in such cases. That
in the principal case, the contribution to be made to the finding a man
with arms to serve in THE MILITIA, is a charge upon the lands, as well
as on the persons of the owners; and if this charter of exemption should
be good, it would encrease the charge on all the lands of persons not
exempted, which would be a very great damage to such persons, because
the physicians who are exempted are a considerable body of men in every
county, for which reason it would be very hard if the King had power to
lessen the tax imposed upon one man, and charge it on another. Besides
the King cannot exempt in any case where the subject has an interest.”
(See 8 _Mod._ p. 11.) Therefore when it is intended to exempt Medical
practitioners from the burthen of any Militia Act, it is necessary that
they should be specifically mentioned.
OF ACTIONS BY MEDICAL PRACTITIONERS.
A Physician cannot maintain an action for his fees, for they are
honorary, and not demandable of right; “and it is much more for the
credit and rank of that body, (the physicians) and perhaps for their
benefit also that they should be so considered; and I much doubt, says
Lord _Kenyon_, whether they themselves would not altogether disclaim
such a right, as would place them upon a less respectable footing in
society, than that which they at present hold.” _Chorley_ against
_Bolcot_, 4 T. R. 317, _see Appendix_. It was contended in this case,
that there was no authority in the books for placing physicians and
barristers fees[137] on the same footing; the regulation with regard to
barristers being founded on grounds of public policy, as appears by a
passage in Tacitus to which Mr. Justice _Blackstone_ refers; in which
passage it is taken for granted that Medici[138] were entitled to a
remuneration, because their situation was dissimilar to that of
advocates.[139]
But though a physician cannot recover his fees by process of law, yet
_pro concilio impenso et impendendo_ is a good and valuable
consideration for an annuity; (9 Co. Rep. 50: 7 Co. Rep. 10. 28.) And
this was formerly a very frequent mode of remuneration for professional
services both in law and physic, though at the present day it does not
frequently occur.
If a bond, bill, or note were given for medical attendance, the
consideration would be good, though the original fees could not have
been recovered. A distinction might we think be drawn between the fees
of a physician and his travelling expenses, which are frequently
considerable; but the case of _Chorley_ and _Bolcot_, before cited, is
against it.
If a medical practitioner passes himself off as a physician, (by no
means an unfrequent practice in distant parts of the country) although
he has no diploma, and no right to assume that character, he cannot
maintain an action for his fees. _Lipscombe v. Holmes_, 2 _Camp._ 441.
_see Appendix_. Though as a surgeon he might have recovered
compensation: and even if he were no regular surgeon, the doctrine in
_Gremare v. Le Clerc Bois Valor_, 2 _Camp._ 144. would entitle him to
recover in an action of assumpsit. But query the authority of this
case.[140]
If there be any promise, a physician may receive on a _quantum meruit,
Shepherd v. Edwards_; _Hill_ 11. _Jac._ 2. _Croke_ 370. In this case the
plaintiff declared that he being a professor of physic and surgery had
cured the defendant of a fistula and he had judgment. All physicians may
practise surgery; (32 _Hen._ 8.) though surgeons may not encroach in
physic; therefore query whether in this case the plaintiff did not sue
as a surgeon; and the disease was one which in this day would clearly be
classed as a surgical case. It was not so however in _Dale_ against
_Copping_, (_Bulst. part_ 1. _p._ 39) when the promise of an infant to
pay a certain sum to the defendant for curing him of the falling
sickness was held binding, “for that this shall be taken as a contract,
and that to be for a thing in the nature of necessity to be done for
him, and the same as necessary as if it had been a promise by him made
for his meat, drink, or apparel, and in all such cases his promise is
good and shall bind him.”
OF ACTIONS AGAINST MEDICAL PRACTITIONERS.
If a Physician, Surgeon, Apothecary, or other medical practitioner,
undertakes the cure of any wound or disease, and by neglect or ignorance
the party is not cured, or suffers materially in his health, such
medical attendant is liable to damages in an action of trespass on the
case: but the person must be a _common Surgeon_[141], or one who makes
public profession of such business, as surgeon, apothecary, &c. for
otherwise it was the plaintiff’s own folly to trust to an unskilful
person, unless such person _expressly_ undertook the cure, and then the
action may be maintained against him also. _See Bull. N. P. p._ 73; 2
_Esp. N. P. p._ 601.
“And it seems that any deviation from the established mode of practice,
shall be deemed sufficient to charge the Surgeon, &c. in case of any
injury arising to the patient.” _See Slater_ v. _Baker and Stapleton_. 2
_Wils._ 359. which was a special action on the case against a Surgeon
and an Apothecary, for unskilfully disuniting the callous of the
plaintiff’s leg after it was set, (_see Appendix, p._ 189) which it
appears was done for the purpose of trying a new instrument. The
Plaintiff recovered 500_l._ against the Defendants jointly, and the
Chief Justice said he was well satisfied with the verdict. On a motion
for a new trial, the judgment was affirmed by the whole Court.
In _Seare_ against _Prentice_, 8 _East. R._ 348. it was determined that
this action lies against a Surgeon for gross ignorance and want of skill
in his profession, as well as for negligence and carelessness, to the
detriment of a patient; though if the evidence be of negligence only,
which was properly left to the jury, and negatived by them; the Court
will not grant a new trial, because the jury were directed that want of
skill alone would not sustain the action. _See Appendix, p._ 194.
In the case of _Neale_ v. _Pettigrew_, a Surgeon was held responsible in
damages for the negligence and unskilfulness of his apprentice or
servant[142].
Though the cited cases are surgical, there is no doubt that similar
actions would be maintainable against Physicians or other medical
practitioners; but as internal injuries are less demonstrable than
external, there might be some difficulty in obtaining the necessary
evidence. We shall treat in another place of the criminal responsibility
of persons undertaking cures in cases where death ensues from their
mal-practice.
MIDWIFERY.
“In former times the necessity of Baptism to new born infants was so
rigorously taught, that for this reason they allowed lay people and even
women, to baptize the declining child, where a priest could not be
immediately found; so fondly superstitious in this matter, that in hard
labours the head of the infant was sometimes baptized before the whole
delivery; this office of baptizing in such cases of necessity was
commonly performed by the midwife; and tis very probable, this gave
first occasion to midwives being licensed by the bishop, because they
were to be first examined by the bishop or his delegated officer,
whether they could repeat the form of baptism which they were in haste
to administer upon such extraordinary occasions. But we thank God our
times are reformed in sense and in religion.” (_Watson’s Cler. Law, c._
31, _p._ 318.) The concluding sentence appears to be somewhat ill
placed, for a few lines before the reverend author says, “And _Note_,
that a child baptized with water in the name of the Father and of the
Son, and of the Holy Ghost, is sufficiently baptized, although not
baptized by a lawful priest, as may be collected from the Rubrick; and
so it is if the child be baptized by other form, yet the person
baptizing not being a lawful priest is punishable, like as a lawful
priest baptizing by other form than is set down by the Book of Common
Prayer is punishable;” and a few lines after, he says, that a Clergyman
“ought not to bury the corps of any person dying unbaptized:” surely if
the baptism of a child by a lay person is good, and the body cannot have
Christian Burial without it, there is nothing senseless or irreligious,
and we will venture to add nothing morally or legally wrong, in the
performance of this provisional ceremony. If there were no other object
than to satisfy the anxiety of the mother at a moment when the calmness
of her feelings is vitally important, it ought not to be omitted
whenever the danger of the child and the absence of a priest appear to
render it necessary.
_Burn_ says, “By several constitutions, the minister was required
frequently to instruct the people, in the form of words to be used in
such cases of necessity,” (2 _Burn’s Ecc. Law_, p. 469,) and the oath
administered by the bishops to licensed midwives, (_See Appx._ 160,)
though, it does not command, implies that baptism may be administered by
other than a priest. “You shall not be privy, or consent that any priest
or _other_ party shall in your absence or in your company, or of your
knowledge or sufferance baptize any child by any mass, latin service or
prayers, than such as are appointed by the laws of the Church of
England:” here the prohibition is to the form not the person.
Whatever may have been the origin of the bishop’s license, his
jurisdiction does not appear to have been sanctioned by the law. “If
there be a suit in the Spiritual Court against a woman for exercising
the trade of a midwife without license of the Ordinary, against the
Canons, a prohibition lieth: for this is not any spiritual function, of
which they have cognisance. _Buskin_ and _Cripes_, Tr. 9, Ch. BR and a
prohibition was granted accordingly.” (2 _Roll Abr._ 286. 2 _Burn, Ecc.
Law, Tit. Midwife_.)
In the reign of Charles the first, a Doctor of Physic attempted a
project to procure the sole and absolute power, either to license or
approve of all the midwives practising in and about _London_, before
their admittance; they presented a petition to the President and College
of Physicians, (for which see Goodall’s Pro. 463,) in which it appears
that a petition on the same subject having been presented to the King,
his Majesty referred the same to the Lord Archbishop of Canterbury and
Bishop of London, in whose jurisdictions and by whose authority, it is
stated, that they had always been licensed; the object of the petition
to the College, was to obtain their certificate of the competent skill
of the petitioners, for which purpose they alleged that other practisers
in midwifery had been examined upon the like occasion, by command from
King James; the physicians by their answer, (_for which see Appendix_)
discouraged the scheme of the would-be licencer, and the matter
thereupon appears to have been dropped.
We have before noticed, that there is some probability that both the
College of Physicians and the College of Surgeons will decline all
future interference with this branch; if so, it will be necessary that
some new authority should be instituted for the purpose of examining and
licensing candidates for practice; the duty to be performed is by far
too dangerous and delicate to be left to the hands of any who would
assume it; yet such is at present the case, and not without fatal
examples of the errors and imperfections of our lego-medical system.
We do not of course include in this censure, the private Institutions
for the instruction of midwives, in which the want of a public provision
is endeavoured to be compensated; but the operation of such societies
must be of necessity very limited and utterly inadequate, not only to
the demands of the empire, but to the magnitude of the metropolis.
OF THE PRESERVATION OF PUBLIC HEALTH.
There is not in England, as in most countries of the continent, a
separate code or system of laws for the preservation of the public
health; actual nuisances, of which we shall treat under a separate head,
are provided against by liability to indictment or action at the
information or suit of the parties immediately interested; but except in
the enforcement of the Quarantine laws for the prevention of foreign
infection, the executive government takes little or no part in securing
the bodily health of its subjects. The habits of order and cleanliness,
for which the inhabitants of our island are celebrated, and the general
salubrity of our climate, may have rendered such care less necessary;
while our spirit of liberty and independence might have resisted the
encroachments on domestic privacy, and the perpetual intrusion of local
authorities, to which our neighbours are subjected. Except in extreme
cases we are far from wishing any change; but as there are situations
and circumstances, in populous towns, among the lowest order of the
people, and in times of contagious or epidemic sickness, in which
absolute apathy may be attended with danger, we may be allowed to hint
that some prospective enactment would be more politic, than to be
obliged to legislate for the evil when its mischiefs had been
accomplished. This has been already done as respects Ireland by the
statute 59th _Geo._ 3. _c._ 41. (_see Appendix_,) by which it is enacted
that Officers of Health should be appointed annually, at vestries of the
inhabitants in every city and large town, where the Lord Lieutenant or
chief Governor shall think fit to direct.[143] Something of this kind
might be advantageously extended to the whole of the United Kingdom.
In former times, however, when from the comparatively uncultivated state
of the people, contagious diseases were more common, there were several
laws and regulations on this head, which have now fallen into disuse.
Many cities have still some relics of their Lazar-house, situated at
some distance without the walls;[144] and there was also an ancient writ
_De Leproso amovendo_, to remove a leper or lazar who thrust himself
into the company of his neighbours in any parish, either in the church,
or at other public meetings, to their annoyance. _Reg. Orig._ 237. By
the 1st _James, c._ 31. (now expired) it was made felony if any one
having a Plague sore running upon him goes abroad, 1 _Hale, P. C._
432.[145] And to this day it is an indictable offence for any person to
pass through the streets, or cause others to pass through the streets,
even for medical advice, while they have the Smallpox upon them.[146]
Previous to the important discovery of Vaccination, this law would have
been attended with very considerable hardship; as it precluded the
patient from the best remedy for the disorder—exposure to fresh air; yet
there can be no doubt that in this as in all other cases, individual
interest must yield to general policy. Had the rule been more carefully
attended to, many of the pests to which human nature is subject, might
have been checked or even extirpated in the commencement of their
progress.
There is one disorder, to check the propagation of which has been
singularly neglected, under the curious pretence that any regulation
would be an encouragement to immorality; we cannot assent to the
validity of this objection, and think that we should find little
difficulty in refuting it. But the disease is undoubtedly on the decline
both as to its frequency and its virulence.[147] The superior mode of
medical treatment, by which many cases are arrested in the earliest
stage, may have tended greatly to this effect; but we are inclined to
attach yet greater importance to a change of habit in the upper and
middle classes of society. The mode of life handed down to us by the
poets, dramatists, novelists, and essayists from _Charles_ to _George_
the second, unhappily confirmed by the criminal records of the same
period, has no existence in modern manners: drunkenness is no longer a
fashionable vice; the tavern parties, which even _Addison_ did not blush
to describe, no longer disgrace us. From these social improvements, and
from increased habits of cleanliness, we may deduce the milder form and
more unfrequent occurrence of the disease, which poisons human life at
its source. Still we feel some astonishment that the change has not been
forwarded by a measure of the police; for though a Parisian system might
savour somewhat too much of our own ancient abuses,[148] yet it would
neither be difficult or immoral for the magistrates, when they
occasionally clear the streets for the night, to order the detention of
those whose liberty might, on surgical examination, prove dangerous to
the unwary; _obsta principiis_ is as good a maxim in law as in physic.
One Surgeon attached to each police office, for this, and other evident
purposes, would be materially useful and not considerably expensive.
We have observed in another place[149] on the attention necessary to be
directed to prison discipline, as it respects the health of criminal or
unfortunate prisoners; but the subject is so much before the public on
this and other points, that we do not think it necessary to enlarge upon
it here. It is not so, however, in other cases to which legislative
attention might be advantageously directed. Sir _Robert Peel’s_ Bill for
regulating the working hours of children in the cotton factories, might
in some of its enactments be safely extended to many other branches of
trade, more especially when contagious diseases are found to exist in
large collections of people confined to a very small space. This
observation applies also to infectious diseases breaking out in schools;
at present the discretion of the master is the only security to the
public: in the higher class we have no doubt that this discretion is
well exercised; but there are others where, gain being the only object,
the speculator will rather risk the lives of the unfortunate children
committed to his charge, than the chance of their being permanently
removed from his precarious protection.[150]
We are well aware that any adequate remedy for these evils would require
the most serious attention of the most experienced ability; but because
the task is difficult, we do not think it impracticable; and where human
life, in its most interesting and useful forms is at stake, we are
assured that labour, however thankless in its outset, will ultimately
meet its reward in the approval of society.
Having thus ventured to suggest some measures which seem calculated to
secure and promote the public health, we may be allowed to glance at the
impolicy of any tax which has a tendency to deprive the lower orders of
those articles which are essential to it; the salt duties immediately
suggest themselves as a lamentable instance of such impolicy: salt is to
the poor an indispensable part of their diet; it is essential to their
bodily health, to the preservation or composition of bread, butter,
cheese, meat, fish, and almost every article of their food, and its
utility is always greater in proportion to the scantiness, and nutritive
deficiency of their diet.[151]
The importance of cleanliness in cities, and of purity in the waters by
which they are supplied, will more properly fall under consideration in
another division of our subject; but we may here generally observe, that
no circumstance contributes in a greater degree to the public health
than an attention to this branch of medical jurisprudence. The
deleterious influence of stagnant waters is too apparent to admit
controversy, in which are to be included moats, where the water has no
motion, and meadows which are occasionally overflowed; it has
accordingly been the policy of every enlightened country to provide
adequate resources for its drainage, and those liberal individuals who
have encouraged the plans for its accomplishment have ever been
distinguished by the gratitude of the people. It has been conjectured,
and not without probability, that the patriotism of _Marcus Curtius_ is
thus handed down to us in a figurative allusion, and that he probably
filled up, at his own cost, some stagnant pools which affected the
health of his fellow citizens. _Empedocles_, a disciple of _Pythagoras_,
delivered the Salentines from the dangerous exhalations with which they
were infested, by conducting two neighbouring rivers through their
marshes, by which the stagnant waters were carried off; the air was
therefore no longer infected, and the diseases which had flowed from
this source immediately subsided. In ancient Rome, the physical evils
which have since so materially contributed to deprive it of its former
salubrity and splendour, were obviated by magnificent aqueducts.
The slaughtering of cattle is another very important object in relation
to the public health of a great city, and we cannot but wish that some
police regulations were established that might mitigate the serious
evils so often experienced from this circumstance, in most of the large
towns of the British empire.
There still remains to be noticed one practice connected with the public
health, that requires some animadversion from the medical jurist—THE
BURIAL OF THE DEAD IN THE MIDST OF POPULOUS TOWNS AND CITIES.—It is
certainly extraordinary that a country which has long abjured the errors
of the church of Rome, should still retain one of its most absurd
superstitions, yet such is the fact in England, as it respects the
Burial of the Dead in churches, and church-yards, and in cemeteries,
situated in the very heart of our most populous cities.[152] If the
health of the people be a primary object of legislation, there is no
point which in the present advanced state of population calls more
imperiously for its interference; the cemeteries of the metropolis are
so crowded[153] that it becomes more difficult to find room for the dead
than the living, and yet free as we boast ourselves to be from the
prejudices and superstitions of our ancestors, we question whether there
is any point upon which more popular clamour would be raised than that
of changing the system of burial. It is difficult, in the first place,
to overcome those feelings which originate in a principle amiable and
useful in itself, however mistaken it may be in its practical
applications. Nature appears to have implanted in all mankind a
sentiment of veneration for the mortal remains of those whom living we
have loved or respected; every nation, whether civilized or barbarous,
has accordingly invented and practised some ceremony,[154] generally of
a religious character, in the final disposal of the human corpse; it is
however the duty of the state to guard the living from those evils to
which an ill applied respect for the dead may be likely to subject them.
Although we are disposed to admit with _Diemerbroeck_[155] and Dr.
_Bancroft_,[156] that the effluvia which issue from putrefying human
bodies are not capable of generating the specific contagious matter of
Plague, Typhus, or any true pestilential fever, yet, but little
reflection is necessary to lead any reasoning mind to the conclusion,
that in the decomposition of the human body various noxious principles
are developed highly injurious to human life. Dr. _Bancroft_, in order
to establish his position respecting the non-pestilential nature of
these effluvia, relates two instances of extensive exhumations, which he
says furnish facts on so large a scale as completely, in his opinion, to
decide the question. The first relates to those made in the church-yard
of _St. Eloi_, at Dunkirk, in the year 1783; and the other to those made
three years afterwards, in the famous cemetrie of the _Saint Innocens_,
at Paris. As the operations and results were similar in both instances,
it will be sufficient if we describe only the latter. The church-yard of
the Saint Innocens, situated in one of the most populous quarters of the
city of Paris, had been made the depository of so many bodies, that,
although its area enclosed near two acres of ground, yet the soil had
been raised by them eight or ten feet higher than the level of the
adjoining streets: and upon the most moderate calculation, considerably
more than six hundred thousand bodies had been buried in it, during the
last six centuries: previous to which date, it was already a very
ancient burial ground;[157] numerous complaints having been made
concerning the offensive smells which arose from this spot, and had
penetrated into the houses, and the deleterious effects which such
emanations produced, having been described in a memoir read before the
Royal Academy of Sciences[158] in 1783, by _M. Cadet de Vaux_, who held
the useful office of _Inspecteur Général des objects de Salubrité_, the
Council of State decreed in 1785 that so much of the superstratum should
be removed as would reduce the surface to the level of the streets. This
work was accordingly undertaken in 1786, under the superintendance of
_M. Thouret_, a Physician of eminence in Paris,[159] and in two years he
accomplished it. It does not appear that any epidemic evils were
experienced from these extensive exhumations, but it must be remembered
that the great mass of bodies had been converted into a harmless and
inoffensive substance resembling spermaceti, to which the name of
_Adipocire_[160] has been given; had this change not occurred, it is
more than probable that worse consequences would have been experienced
from this horrible accumulation: sufficient instances however occurred
to prove the dangerous tendency of the mephitic vapours[161] which were
emitted; grave-diggers were thrown down suddenly, and deprived of sense
and motion, upon breaking open, by their spades, the abdominal viscera;
these vapours also, in a more diffused state, produced nausea, loss of
appetite, and in the course of time, paleness of countenance, debility,
tremors, &c. If farther evidence be required upon this subject, we have
only to direct the reader’s attention to the effects occasioned by
opening the graves in St. Dennis, and to which no allusion is made by
_Dr. Bancroft_: the National Convention in the year 1793, in the true
spirit of revolutionary ferocity, passed a decree upon the motion of
_Barrère_, that the monuments of the Kings in this, as well as in all
other places throughout France, should be destroyed. In carrying this
decree into effect, the bodies of many of the latter Bourbons were found
in a state of decomposition, and when the coffins were opened they are
said to have emitted a thick black vapour, which, although vinegar and
gunpowder were burnt to prevent ill consequences, affected the wretches
employed in this inhuman work with fevers and diarrhæas: so again when
the ground of the church of St. Benoit was dug up a few years ago, a
nauseous vapour was emitted, and several of the neighbours were affected
by it.[162]
We are nevertheless far from believing that such cadaverous impurities,
however unwholesome, are capable of generating the specific contagions
of Typhus, &c.; nor are we even inclined to assent to that general
opinion which supposes that putrid emanations from the bodies of persons
who have died of a pestilential disorder are capable of re-exciting the
disease, and we are fortified in this conclusion by the powerful
testimony of _Mr. Howard_.[163] We ought not, however, to omit to state,
that instances are on record, where the small-pox has suddenly appeared
in a village, after opening the grave of a person who had a few months
before fell a sacrifice to that disorder.
From the experiments and observations which have been made with respect
to the decomposition of animal bodies that are interred in
burying-grounds, it appears that they are, in such situations, subjected
to very different laws of decomposition, from those which take place in
bodies exposed to the open air. In the former case no danger can attend
the operation provided the body be buried at a sufficient depth, and
that the grave be not opened before its entire and complete
decomposition. The depth of the grave ought to be such that the external
air cannot penetrate it; that the juices with which the earth is
impregnated may be conveyed to its surface, and that the exhalations,
vapours, or gases, which are developed or formed by decomposition,
should not be capable of forcing the earthy covering which detains them.
The nature of the earth in which the grave is dug, influences all its
effects. If the stratum which covers the body be argillaceous, the depth
of the grave may be less, as this earth affords with difficulty a
passage to any gas or vapour; but, as a general rule it may be admitted,
that bodies should be buried at the depth of five feet, to prevent any
unpleasant consequences. It is also important to remember that the
decomposition of the soft parts, according to _Mr. Petit_, is not
terminated until the expiration of three years, in graves of four feet
deep; or four years when their depth is six feet. This term, of course,
is stated as a medium; it must necessarily vary according to the nature
of the soil, and the constitution of the subjects buried in it.
A knowledge of these facts ought to lead to a more rational system of
interment. We can scarcely expect to see the fulfilment of the wish
expressed by Evelyn in his _Sylva_, the establishment of a _Necropolis_
without the walls; but much may be effected by judicious regulations;
and the law will uphold any parochial officer in the conscientious
discharge of the requisite duties; in certain cases it invests him with
a considerable latitude of discretion; thus when a body is brought to be
buried “it seemeth to be discretionary in the minister whether the
corpse shall be carried into the church or not, and there may be good
reason for this, especially in cases of infection.”[164] A curious
controversy has lately taken place upon the introduction of iron
coffins, and chemists have differed widely upon the subject of their
relative durability, when compared with those of wood. Sir _William
Scott_ (now Lord _Stowell_) decided, and we think very justly, that
under ordinary circumstances the former appear less perishable, and
therefore when admitted into burying-grounds, that the parties are to be
held liable to extraordinary fees.
Burial must not be delayed or denied, (_Lindwood_ 278) nor hindered for
debt,[165] (_Burn Ec. L._ 238) nor disturbed for purposes of dissection
(_King v. Lynn, vide Post._) Formerly by 30 C. 2, st. 1, c. 3, all
bodies were directed to be buried in woollen, under the penalty of £10;
this enactment, which was made with the idea of encouraging the woollen
trade, is now repealed.
In relation to their effects upon the public health, the arrangement and
cleansing of privies deserve some notice in this place. It has been long
admitted that the effluvia which issue from these receptacles of human
ordure are highly deleterious, and have been known to occasion a species
of ophthalmia, diarrhæa, and dysentery, while in a more concentrated
form these emanations have proved suddenly fatal,[166] by producing an
affection named by the French Nosologists[167] the _Plomb_, or the
Asphyxia of privies. _M. Dupuytren_ has given us many particulars
respecting this affection; sometimes the patients are strongly
asphyxied, and death takes place in a very short period; at others, the
symptoms are less intense, and if the patients be carried into the open
air, after a short interval, they make deep inspirations, and the
breathing is gradually restored, although it continues laborious; the
motion of the heart becomes perceptible, nevertheless the pulse is weak
and small; the digestive and loco-motive apparatus have lost their
contractile force; the functions of the brain are suspended; and if the
patient finally recovers, he is a long time in re-establishing his
strength. An emetic appears to be the remedy upon which the _nightmen_
rely for relief.
The above observations are sufficient to shew the propriety of placing
these establishments under police regulations, especially where the
deleterious influence of their emanations are more decidedly remarkable,
as in hospitals, prisons, and barracks. The governments of different
countries have sought to prevent the evil, by various laws, edicts, and
ordinances.[168]
In this country, we apprehend their supervision belongs to the very
ancient and extensive jurisdiction of the Commissioners of Sewers,[169]
who although not engaged like the Œdiles of ancient Rome, in
superintending magnificent aqueducts, are occupied in directing the far
more stupendous and wonderful works which extend beneath the foundations
of our mighty city, and dispense to its inhabitants the essential
requisites for comfort, cleanliness, and health.
OF QUARANTINE, LAZARETTOS, AND OTHER ESTABLISHMENTS OF PLAGUE POLICE.
The histories of different ages and countries furnish numerous records
of the occasional prevalence of certain diseases, generally of the
febrile class, which at one period have occasioned the most destructive
mortality, while at others, they have assumed so mild a form as to have
affected only few, and to have destroyed scarcely any of the population.
Such diseases, when they attack a great number of individuals about the
same time, or in rapid succession, are very properly designated by the
term EPIDEMIC (from επὶ _upon_ and δημος _the people_) and whenever
their course is attended with considerable mortality, they are moreover
said to be _Pestilential_. No fact in the history of medicine has been
the subject of more general and anxious enquiry, or of more keen
controversy, than that of the origin of Epidemic diseases, and of the
immediate cause of their propagation and decline; and although the field
has been industriously explored by the most able and experienced
philosophers and physicians, the subject still remains involved in
considerable obscurity; indeed, such different and even opposite views
have been entertained upon the question, that writers have not even
agreed upon the exact import of the terms employed in their
descriptions, but each author appears to have acknowledged a latitude of
acceptation according to the particular theory which he has been anxious
to support. The term EPIDEMIC ought in strictness to signify a disease
which, as we have before stated, attacks numbers at or nearly the same
time, without any reference to the cause from which it may have
originated, or be diffused; but this construction has been considerably
limited by many writers, who have applied it, exclusively, to denote
those maladies which derive their origin solely from a noxious state of
the atmosphere, and which are incapable of being communicated from one
person to another; distinguishing diseases of the latter kind by the
epithet _Contagious_.[170]
A similar ambiguity involves the terms CONTAGION and INFECTION, which
are regarded by many authors as synonymous and convertible expressions,
signifying the matter or medium by which certain diseases are
communicated from one individual to another; while others, on the
contrary, confine the term _Contagion_, as its etymology would suggest
(_con_ and _tango_) to the communication of those diseases, which can
only be transferred by actual contact of the sick, or of the palpable
matter from their bodies; and apply the term INFECTION to the
communication of those other diseases which spread by means of invisible
effluvia. Now we would observe in the first place, that according to the
most correct rules of philology, the import of words is not necessarily
to be deduced from their derivation, but frequently to be either assumed
conventionally according to a definition, or to be adhered to in the
sense affixed to it by established usage; in the next place, the
distinction which the etymologist would thus establish between the terms
_Contagion_ and _Infection_ is not accurate, for in every case of
infection, there is an actual contact of morbific matter, whether
visible or not, and some diseases, as the _Small-pox_, are communicated
both by palpable matter and by imperceptible effluvia.[171] Our best
writers[172] have therefore agreed to consider the word _Contagion_ as
expressing the morbid poison, or the means of transferring a disease,
and _Infection_ as denoting the operation of the poison, or the act of
communication of the disease. Dr. _Hancock_[173] very justly observes
that in almost all the best Latin writers on medicine, _Contagium_, and
_Contagio_ are the only words used to denote the effluvia, or emanations
arising in disease, which are capable of infecting the sound, whether
_mediately_ by the air, or by infected goods called _Fomites_, or
_immediately_ by the touch: to limit contagion therefore to the
propagation of disease by contact only, would be to disallow the more
comprehensive use of the term in our best authors.
Those diseases which occur among the inhabitants of a particular region
or place, are said to be ENDEMIC, or ENDEMIAL; thus _Intermittent_, and
_Remittent_ fevers, which are occasioned by the miasmata of marshy
grounds are _Endemic_ in low countries: the _Goitre_, or bronchocele,
connected with that peculiar intellectual imbecility which characterises
the CRETIN, is ENDEMIC among the Alps; in these instances, some _local_
cause obviously exists which produces the disease in the respective
districts: the disease therefore belongs to the districts, and affects
those that reside there, but extends no farther; and hence the
distinction between _Endemic_ and _Epidemic_ diseases is obvious and
important.
Having thus determined the value and signification of the terms, as used
by different authors, and which must necessarily be introduced on the
present occasion, we come to the consideration of that momentous
question, which has excited so keen an interest in the political,
mercantile, and medical circles of the present age, and which has been
farther heightened by the late reference of the subject to the
Legislature—WHETHER EPIDEMICAL DISEASES BE EVER PROPAGATED BY
CONTAGION?——It is impossible to imagine a question of deeper importance;
it not only involves the general safety of mankind, but is intimately
connected with the commercial welfare of nations; for, as it has been
truly observed, if these diseases be not contagious, Quarantine laws are
absurd, and commerce needlessly burthened: the establishment of lines of
circumvallation, guarded by cordons of troops, and the appointment of
armed police to confine the diseased to their habitations, among their
yet uninjured friends and relatives, are perverse and barbarous
regulations, and the fears thus unnecessarily induced are as dangerous
to the community as they are pernicious in their effects to the common
feelings of humanity. But, on the other hand, if the doctrine be true to
the extent our most accurate observers have deliberately reported,
municipal restraints cannot be too rigidly enforced, nor can the conduct
of those speculative theorists be too severely reprehended, who, by
lulling the ignorant and unwary into false notions of security, not only
deprive them of the obvious means of safety, but render them even the
intermediate agents of disease and death, to their families and
neighbours.
The term PLAGUE has been applied to various epidemical diseases attended
with great mortality; and we find in the Hebrew, Arabic, Greek, Latin,
and in all the other ancient languages with which we are acquainted,
words having a corresponding import, and signifying, generally, an
extensive and destroying malady. It appears, however, that these raging
epidemics have consisted of different maladies in different instances,
having been sometimes the _Remittent Fever_ originating from marsh
effluvia, and sometimes the true _Plague_, modified by circumstances and
situations: even in our own times some doubt has existed respecting the
true nature of the different pestilences which have raged in
Europe.[174] The term PLAGUE is now more correctly limited in its
acceptation, and it is exclusively understood to denote “_a contagious
and malignant fever, which is accompanied by buboes and
carbuncles_.”[175] As the nature of maladies of high degree virtually
includes that of all minor affections, the Plague, in its relations to
the doctrine of Contagion, may on this occasion be considered as the
representative of every species of Typhus; while for the same reason the
Pestilential Epidemic which is generally known by the name of the YELLOW
FEVER may be regarded as including in its history all the subordinate
varieties of _Bilious Remittents_.
It is scarcely necessary to observe that it would be as foreign to the
object of this work, as incompatible with the plan of its execution, to
enter into any historical details upon the subject of Pestilence, or
upon the controversies which have been carried on respecting the manner
in which Epidemics are propagated; nor is such a review now required to
complete the medical literature of the subject; for Dr. _Hancock_[176]
has lately supplied the chasm by a very able critical examination of the
principal writers which have appeared at different times on the subject
of Epidemic and Pestilential diseases, and to this work we beg to direct
the reader’s attention, although as medical Jurists we are not disposed
to concur in those half measures of _Quarantine_ which the result of his
researches might incline some to adopt. We may state in general terms,
that the concurrent testimony of different ages and countries sanctions
the opinion that Plague arises from specific contagion—is communicated
_immediately_ by contact,[177] or _mediately_ by the agency of infected
goods[178] (_Fomites_); and that its progress may be arrested by a
vigilant system of Police, cutting off every communication between the
infected and the healthy. The contagious nature of Plague has however
been denied, and many thousand lives have paid the forfeit of the
delusion; it was thus during the Plague of Marseilles in 1720, that in
consequence of the physicians in Paris having decided against its
contagious nature, a plan, in conformity with that opinion was adopted
in the treatment of the sick, and _Sixty Thousand_ people fell victims
to the disease in the space of seven months. A similar prepossession
induced the faculty of Sicily to declare the Plague which ravaged
Messina in 1743, _not_ to be contagious, but the loss of _Forty-three
Thousand_ lives gave a practical refutation to the hypothesis.
In our own times, a work characterised by singular arrogance and
sophistry, has appeared from the pen of Dr. _Charles Maclean_,[179] the
object of which is to shew that “a belief in the contagious nature of
the Plague constitutes one of the most destructive errors in the whole
circle of human opinions;” in the very commencement of this work he
betrays an ignorance which is not uncommonly associated with that
species of unbecoming confidence, which so strikingly characterises the
writings of this author. “It is unequivocally ascertained,” says he,
“that the doctrine of contagion, as the cause of epidemic diseases, was
unknown to the ancient physicians; by whom these maladies were expressly
attributed to the air:” and he then proceeds to state that the prevalent
notion of contagion being an inherent quality of pestilential fever, is
derived from a Popish plot of the sixteenth century; an assertion which
has not even the merit of originality[180]. _Hippocrates_ and _Celsus_
do not certainly take any notice of the subject of contagion; but
_Aristotle_, _Thucydides_, _Livy_, _Virgil_, _Lucretius_, _Ovid_,
_Galen_, and _Arctæus_ all contain passages which prove most
unequivocally their belief in the contagious nature of Epidemics; the
limits of this work will not allow us to be prodigal in illustrations,
we must therefore refer the reader to a very interesting memoir upon the
subject by Dr. _Yeats_. (_Journal of Science and the Arts._) With
respect to the work of Dr. _Maclean_ we would further observe, that he
has artfully brought together all those facts which are calculated to
afford any support to his doctrine, while he has so ingeniously tortured
those that make against it, as to disguise their force and true
bearings. Mr. _Tully_[181] has lately furnished the public with some
striking instances of the total want of candour with which Dr. _Maclean_
pursued his researches, but the fact is that he determined on the Plague
being _non_-contagious long before he ever visited those countries where
it prevails; and hence all the advantages which he possessed, and the
opportunities of investigation which his residence in the Levant
afforded, have not contributed one fact to the elucidation of the
subject, but have, on the contrary, thrown additional obstacles in the
path of the honest inquirer.—What can be the organization of that man’s
mind, who goes into the Greek Pest Hospital at Constantinople, and,
according to his own statement, is attacked on the fifth day after he
entered it, with the Plague, and yet continues to assert that the malady
is _non-contagious_?
To Dr. _Maclean_, however, the medical world are certainly greatly
indebted, for had not his _Researches_ been published, it is more than
probable that the question of Contagion would not have received the many
able elucidations which the experience and science of this country has
since afforded it:[182] nor would an opportunity have occurred by which
the most eminent physicians, and those practically acquainted with the
malady, could have delivered a _viva voce_ opinion before a Committee of
the House of Commons.[183] It may be thought extraordinary that a work,
so unphilosophical as that to which we allude, should have created so
strong a public sensation; but when we consider the eagerness with which
mankind seize any circumstance, however weak, that points towards the
removal of burdens under which they are suffering, we shall cease to
feel surprised that a work of such bold, and promising assertions,
should have soon found its way, through commercial channels, to the
table of the Privy Council; nor is it strange that government, naturally
anxious to relieve commerce of unnecessary burdens, should have
instituted an inquiry to ascertain whether Quarantine regulations were
actually necessary, and how far they might be relaxed with safety to the
country. A report was accordingly requested from the College of
Physicians; who, in order to meet the wishes of the government,
appointed a committee from their own body to undertake the requisite
examination; it is almost unnecessary to state the conclusion at which
they arrived; their report is virtually included in that of the
Committee of the House of Commons (for which _see Appendix, p. 185_.)
With respect to the contagious nature of those fevers which have lately
committed their ravages in these dominions, especially in Ireland, the
proofs appear to be so satisfactory and evident, that we question the
stability of that man’s mind who can doubt, and still more who can deny
it. But although the question of contagion as relating to certain
epidemics appears to be firmly established, we are by no means
insensible to the difficulties and anomalies with which the subject is
embarrassed; several of which are so important in relation to Police
legislation, that we feel it necessary to offer a few observations upon
each of the following questions, and which appear to include all the
leading points of controversy.
I. _Are all Epidemic Fevers contagious?_
II. _Does the matter of Contagion require the aid of a certain state
of the air (Pestilential constitution) to give effect to its powers,
and propagation; and to what causes is the decline and cessation of a
contagious pestilence to be attributed?_
III. _Can filth and animal putrefaction generate contagion?_
IV. _Can a Fever produced by fatigue, unwholesome food, &c. be
rendered contagious in its career by animal filth, impure air, &c._
I. _Are all Epidemic Fevers contagious?_
It has been maintained by Cleghorn[184], Hamilton[185], Clark[186], and
Fordyce[187], that _all_ fevers are naturally contagious; a position
which, if less mischievous in its tendency, is equally erroneous in
principle, as that which rejects the doctrine of contagion altogether.
It is most probable that none of those fevers which are produced by
marsh _miasmata_ are ever propagated from one individual to another by
contagion; ample evidence of this truth is afforded by the writings of
Dr. James _Lind_[188], where it appears that the most malignant and
fatal species of fever have been contracted on shore, but which had
never been communicated to the ship’s company. Dr. Trotter[189] also
says, “in a voyage down the coast of Guinea, in the Assistance, in the
year 1762, we had scarcely a man indisposed. We wooded and watered at
the island of St. Thomas, and with a view to expedition, a tent was
erected on shore, in which the people employed on these services were
lodged during the night. On the middle passage every man who slept on
shore died, and the rest of the ship’s company remained remarkably
healthy.” For similar facts see _Medical Observations and Inquiries,
vol._ iv, _p. 156_; _Clarke’s Observations on the Diseases which prevail
in long Voyages to Hot Countries, p. 124_; and _Dr. Robertson’s
Meterological and Physical Observations, &c. 4to, p. 32, 33, and 98_.
And in connection with this subject, it becomes our duty to offer a few
remarks upon the nature of that peculiar Epidemic, called THE YELLOW
FEVER.[190] Its doubtful affinity with bilious intermittent and
remittent fevers, has furnished a subject for keen controversy; and
while its contagious quality has been pertinaciously maintained by one
set of Physicians,[191] it has been as warmly denied by others. The
malady has raged repeatedly as an Epidemic in the United States, and was
considered for some time as _Endemic_ to that country. “The interests of
humanity,” says Dr. Rush,[192] “are deeply concerned in the admission of
the rare and feeble contagion of the yellow fever, and Philadelphia must
admit the unwelcome truth sooner or later that the yellow fever is
engendered in her own bowels; or she must renounce her character for
knowledge and policy, and perhaps with it, her existence, as a
commercial city.” In the year 1811, one of the most acute and learned
works[193] that has graced the literary annals of our country, appeared
from the pen of Dr. _Bancroft_, in order to prove that the yellow fever
is no other than an aggravated form of that multifarious disease, which
is well known to result from the action of those exhalations commonly
denominated _marsh miasmata_, and that, like all fevers from that cause,
it possesses _no contagious_ quality; but he adds, “it is indeed
probable that the _miasmata_ of particular towns, mostly either
sea-ports, or accessible to shipping, in which the aggravated forms of
yellow fever have almost exclusively prevailed in the West Indies, the
United States of America, and the Southern parts of Europe, differ from
the common exhalations of marshes, in _quality_, as well as degrees of
concentration: but whether this difference be occasioned merely by the
greater heat which, at such times, commonly exists in these towns than
in the surrounding country, and which may exalt the powers of such
_miasmata_, by perfecting the decompositions which produce them, or
whether it be partly the result of a difference in the organized matters
decomposed by that excessive temperature, I am unable to determine.” We
must refer the reader to Dr. _Bancroft’s_[194] work for farther
information upon the subject; and we have little doubt but that, after
an attentive consideration of the rich store of facts and observations
which this author has presented to us, he will be led to a conclusion in
favour of the general non-contagious nature of this malady, although we
by no means intend to deny that it never assumes the character of a
contagious Epidemic. Sir Gilbert _Blane_, whose testimony upon this
subject must necessarily have great weight, has made the following
observations. “In that district of the globe in which are situated the
islands called the Great and Little Antilles, also in the continental
regions round the gulph of Mexico, and along the coast of South America,
the fevers which prevail there have certain symptoms peculiar to
themselves, and not occurring in any other part of the globe, except
when carried from thence, which they sometimes have been, particularly
to the sea-port towns of North America, and the South of Europe.
The peculiarities alluded to, consist in a universal yellowness of the
skin, and the vomiting of a dark coloured fluid, resembling the grounds
of coffee.
Sir Gilbert _Blane_ considers, that the yellow fever may proceed from
three remote causes, very distinct in their nature. The _First_, is that
which consists in the exhalations of the soil, such as produce the
endemic fevers in other countries and climates, and prevailing chiefly
in autumn. The _Second_, is that which consists in foul air engendered
on board of ships on long voyages, in circumstances of personal filth,
and want of ventilation, frequently combined with hardships and
privations, and is the same with those stagnated and corrupted effluvia
of the living human body, which produce typhus fever. The _Third_ cause
is that in which there is no suspicion of foul air, either from the
soil, or from the living human body, but merely from circumstances of
intemperance, fatigue, and insolation, affecting chiefly, and almost
exclusively, new comers from temperate and cold climates.[195] The first
of these, he says, may be distinguished by the appellation of the
_Endemic_; the second, by that of the _Pestilential_, _Malignant_, or
_Typhus Icterodes_; the third, by that of _Sporadic_.[196] And Sir
Gilbert adds, that it has been for want of making this distinction, and
from classing all these three under one head, that the endless and
acrimonious controversies regarding contagion have arisen. There is not
the least suspicion in any rational mind, that the endemic and sporadic
species are contagious, this is only alleged with regard to the
pestilential or typhus species; but it may be asked what proof there is
that this last is specifically different from the other two? To this Sir
Gilbert answers, that it is a matter of history; that besides the
endemic and sporadic fevers prevailing at all times in the
above-mentioned regions, there has occurred at various intervals of
time, a raging epidemic,[197] which could be traced to the arrival of a
ship or ships in the circumstances above recited, and at a season in
which the ordinary malignant fevers do not prevail. To those engaged in
researches upon this obscure subject we would farther recommend the
perusal of a work lately published by that veteran in the cause, DR.
JACKSON, on the subject of the Andalusian Fevers[198]; in which he
examines the evidence in support of the supposed introduction of the
yellow fever into Spain, and of its real or supposed propagation by
contagion. The importation of the disease from a foreign country is
credited by the authorities and mass of people in Spain, though the
author thinks it has never been proved by evidence, or even brought to
reasonable probability; the events of the year 1820 stripping the
assumption of every claim to credence, as no attempt has been made to
trace the disease, in that instance, to foreign origin. The belief
universally obtains through Spain, that the disease is personally
contagious; that is, capable of propagation from individual to
individual, by contact or proximity; Dr. Jackson, however, considers
that this opinion, confidently as it is maintained, is invalidated by
authentic facts and records; but we must proceed to the consideration of
our second problem, viz:
II. _Does the matter of Contagion require the aid of a certain state of
the air, (“Pestilential Constitution of the atmosphere.”) to give effect
to its powers, and propagation; and to what causes are the decline and
cessation of a contagious Pestilence to be attributed?_
It was laid down as a fundamental principle by Dr. _Mead_, that a
“_corrupt_” state of the air is indispensable to the diffusion of a
plague; and although we are at this day unable to ascertain in what this
vitiated state of the air consists, yet there are too many stubborn
facts on record to allow us to deny, or even to doubt the necessity of
its existence for the propagation of a contagious fever. How are we
otherwise to explain the fact of a malady like the plague, which,
although it shall never be entirely absent from a city, rages only
epidemically and fatally at particular times? Thus it is collected from
the bills of mortality of London, that, although there were but four
great plagues in this metropolis during the seventeenth century, _viz._
the years 1603, 1625, 1636, and 1665, (in the two first of which about
35,000, and in the last 68,000 died) yet that there were but three
years, from the commencement of the bills of mortality in 1603 until
1670, which were entirely free from the plague.[199] _Diemerbroeck_ also
remarks, that whenever the plague has been excited out of its proper
season it has not spread; a fact corroborated by _Russel_ and
_Hodges_.[200] It seems probable that a particular state of the
atmosphere, in its relation to temperature and humidity, is one of the
conditions, subordinate perhaps, of this “pestilential constitution.”
Dr. _Russel_ has observed that, in _winter_, when infected persons have
come to places about Aleppo, some of whom have died of the disease in
the families where they lodged, the distemper was not by such means
propagated. Dr. _Pugnet_ says that the susceptibility of a person for
the contagion of plague is greatly increased by a moderately warm and
moist atmosphere; and Dr. _Bancroft_[201] has adduced some observations
made by himself in proof of the influence of atmospheric heat and cold,
in both their extremes, in rendering the contagion dormant. The singular
career which a pestilential epidemic runs, having a beginning, height,
and decline, can only be explained on the idea of the pestilential
constitution of the air undergoing corresponding changes; and it is
probable that the return of a plague is a revival of infection that has
been latent, or dormant, until a particular state of atmosphere rouses
it to action.
III. _Can Filth and Animal Putrefaction generate Contagion?_
We have already made an allusion to some of those facts that must assist
us in the solution of this problem, under the head of Public Health
(_see page 98_.) “The putrefaction of animal matter,” says Dr.
_Bancroft_,[202] “is but a natural separation of organized bodies,
previously held together by animal or vegetable life, by which there can
be no chance, nor even possibility of thus generating any thing so
wonderful, and so immutable as contagion; which resembling animals and
vegetables in the faculty of propagating itself, must, like them, have
been the original work of our common creator, and must have been
continued in existence by the energies of a living principle, exerted
successively in the different bodies, through which it has been
transmitted from one generation to another; as well might we revive the
forever exploded doctrine of equivocal generation, and believe, as
formerly, that insects and reptiles are the offsprings of mere
corruption, as to believe that a substance so analogous to them, in that
most mysterious and essential function of self-propagation, could
originate from that cause, or from any operation of chemical agencies
alone.” We are not disposed to believe that the specific contagion of
typhus can thus be directly generated, but may not typhus be excited by
causes independent of contagion, and having been once generated become
contagious? If, says Dr. _O’Brien_, the opinion that contagion is the
_only_ source of typhus be true, we are at once reduced to the necessity
of supposing that all contagious diseases were derived from Adam
himself. It is an indubitable fact that the plague has always first
appeared, and established its head quarters, in the filthiest parts of
crowded, ill constructed, and large cities. _Blackmore_ remarks that the
impurity and filth, connected with the galleys and slaves at Marseilles,
filled the air with offensive smells easily perceivable by those who
passed along the adjoining shore; and in 1720 the plague broke out
there; in London, Dr. _Heberden_ also observes, that the plagues of 1626
and 1636 broke out at Whitechapel, a part of the town which abounded
with poor, and with slaughter-houses. The importance of cleanliness is
also shewn by the exemption of Oxford[203] and other places from
pestilential diseases, as recorded by different authorities, in
consequence of regulations for ensuring it; while the late dreadful
increase of contagious fever in Cork sufficiently demonstrates the evils
which arise from deficient ventilation and accumulated filth, and to
which causes Dr. _Barry_, in his report, ascribes the awful afflictions
to which we allude. _Erasmus_, in a letter to _Franciscus_, Cardinal
_Wolsey’s_ physician, ascribes the sweating sickness, which was a
species of plague, in a great measure to the incommodious form, and bad
exposition of their houses, to the filthiness of the streets, and to the
sluttishness within doors.[204] That particular species of typhus, which
is called from its origin the _Jail Fever_, is evidently the offspring
of filth and deficient ventilation. The Lord Chancellor _Bacon_ has made
the following observation upon this subject: “The most pernicious
infection next to the plague is the smell of the jail, where prisoners
have been long, close, and nastily kept; whereof we have had, in our
time, experience twice or thrice, when both the judges that sat upon the
jail, and numbers of those who attended the business, or were present,
sickened upon it, and died.”[205] Dr. Bancroft, who has dwelt very fully
upon the subject of jail fever,[206] considers it as a species of
typhus, the contagious essence of which is not generated, but merely
lighted up by the filth of prisons.
IV. _Can a Fever produced by fatigue, unwholsome food, &c. be rendered
contagious in its career by animal filth, impure air, &c.?_
We have no hesitation in answering this question in the affirmative, and
our opinion will receive ample support from the history of the different
epidemic fevers which have raged in our own times. Dr. _Prichard_[207]
is persuaded that a contagious fever may have a spontaneous origin, that
is, that the ordinary sources of derangement may occasion such a kind of
disordered action, that the excretions or effluvia from the subject of
it shall, under certain circumstances, produce a specific effect upon
another. The truth of this position is amply confirmed by comparing the
different phenomena which, according to Dr. _Prichard_,[207] are
displayed by the epidemic in St. Peter’s Hospital, and the Bristol
Infirmary; in the former house the medical wards are very small, having
been originally destined, not for the accommodation of the sick, but for
the abode of paupers; in consequence of which it became necessary to
place the beds very near to each other, and to crowd the rooms with
patients; under these circumstances the disease was manifestly
contagious, while in the well-ventilated Bristol Infirmary,
notwithstanding the indiscriminate manner in which the patients with
fever were scattered through the wards, not a single instance occurred
of its propagation. The Dublin Reports of Drs. _Grattan_[208] and
_Crampton_[209] are equally satisfactory upon this question; atmospheric
vicissitudes, intemperance, fatigue, suppressed perspiration, the
depressing passions, &c. when excessive, will induce fever; and under
these circumstances, the accumulation of animal effluvia, in filthy,
crowded, and ill-ventilated dwellings, will generate contagion, which of
course accelerates the march of the epidemic.
Having thus, as briefly as the nature of the subject would allow,
enumerated the several questions to which the doctrine of contagion has
given rise, we now proceed to the consideration of those legislative
enactments, by which different nations are enabled to ward off the
calamities of Plague. It is generally admitted, that the plague has not
originated in this country; and therefore, from its insular situation,
the infection can only be introduced through the medium of ships. Egypt,
the Levant, and other parts of the Mediterranean are seldom free from
it, and hence it is chiefly through the medium of the commerce with
these countries that the importation of the contagion is to be
apprehended. To guard against this danger, the different governments
require all ships sailing from any of these parts, to bring certificates
from the magistracy of the port they last came from, declaring their
country free from any contagious distemper: these are called “BILLS OF
HEALTH,” and are distinguished as _clean_ or _foul_, as the place they
come from may be healthy or infected. On the production of these bills
it is determined by the Guardians of Health (in England, Custom-house
officers) whether the vessel shall be permitted to trade or communicate,
or, as it is technically expressed, be permitted to _pratique_ till she
has performed a QUARANTINE[210] of as many days as the superintendants
may in their judgment or caprice be pleased to direct. A period of
_forty_ days (hence the term _Quarantine_) has been generally fixed upon
as the maximum of this seclusion, on the expiration of which it is
customary abroad for physicians, accompanied by some members of the
board of health, who are frequently merchants of the place, to examine
the ship’s crew; and strict search is made on board, by persons
appointed to see whether the number of sailors and passengers
corresponds with those mentioned in the bills of health, and if any
difference appears it will be difficult in any country to obtain
admission to _pratique_, or at least it will be necessary to perform a
full quarantine from the time of such detection.
Such commodities however as are _deemed_ incapable of retaining or
communicating the infectious taint, as corn, &c. are permitted to be
landed immediately by the mariners themselves, at proper places provided
for that purpose, which are generally called LAZARETTOS, some of which
in the principal ports of the Mediterranean are of very considerable
extent, and as to division and appropriation appear so well calculated
for their intended purposes as to be worthy of imitation. The best
praise of their regulation is indeed to be found in their success; for
though twelve months never elapse but that the plague rages in some part
of the Levant and of the coasts of Barbary, the infection has seldom
reached the coasts of Italy, France, or Spain. Terrible exceptions may
be adduced to this remark, yet they may generally be traced to some
clandestine violation of the Quarantine laws, rather than to their
imperfect execution, as in the recent instance of the plague[211] at
Malta in 1813, when the cupidity of a poor cobler in smuggling some
materials from a Greek or Turkish vessel in the harbour of Valetta,
introduced the pest into the island, to which he and his family fell the
first victims.
The objections to the Quarantine laws, as executed in the Mediterranean,
arise more from the indiscriminate and vexatious application of them to
cases for which they were not provided, than from any general relaxation
or want of vigilance in the officers appointed to enforce them:
occasionally indeed the courtesy of these gentlemen will deem a governor
or wealthy noble to be incapable of communicating infection, though from
the most suspected port, while a whole fleet of merchantmen, arriving
with clean bills from the Atlantic, will be detained for some weeks, _ex
abundanti cautela_, without admission to _pratique_; from such instances
travellers who have been annoyed, and merchants who have been injured,
have imbibed a very general prejudice against these laws; nor have they
wanted learned authorities to contend with them for their abolition, on
the grounds of their abstract inutility in preventing infection
(admitting the contagious nature of the disease which some have denied),
and the injurious tendency to the general interests of commerce.
We have drawn the readers attention to the regulations of the
Mediterranean, because we are convinced that if there be any value in
the system it must be made complete in all its parts, and ought to be as
much the subject of international as of local legislation; unless all
countries, and more particularly those in more immediate contact or
communication with the infected regions, concur in the restrictions, it
will be vain to enforce them in Great Britain. In the instance of the
plague, the want of precaution among the Mahomedans allows the disorder
to spread from Constantinople to every part of Greece, from Smyrna to
the whole African coast of the Mediterranean, while the European shores
are free from its calamitous progress.
By the statute 26 _Geo._ 2, all vessels, persons, and goods, coming from
places from whence the plague may be brought, were subject to perform
Quarantine in such places as shall be appointed by his Majesty in
Council,[212] and notified by proclamation in the London Gazette; this
and all other acts relating to Quarantine were repealed by the 45th
_Geo._ 3, _c._ 10, by which these laws were more extensively regulated,
certain duties are levied for the maintenance of the system, and until
they are paid according to the tonnage (see 26 _Geo._ 3, _c._ 60) of the
vessel, she cannot be permitted to clear inwards; it is enacted that all
ships and vessels, as well his Majesty’s ships of war as all others,
coming from or having touched at any place, from whence his Majesty in
Council shall have adjudged and declared it probable that the plague or
any other infectious disease highly dangerous to the health of his
Majesty’s subjects, may be brought; and all ships, vessels, or boats,
which may have received any person, goods, letters, &c. from such
vessels, &c. shall be considered liable to Quarantine within the meaning
of the Act, and to any order of the King in Council, published by
Proclamation in the London Gazette. “And whereas certain goods and
merchandize are more especially liable to retain infection, and may be
brought from places infected into other countries, and from thence
imported into Great Britain or the islands aforesaid,” his Majesty is
enabled to make special orders as to any particular goods or vessels
liable to any alarming or suspicious circumstances. In cases of
emergency, the privy council, or any three of them, may make such orders
as they shall think necessary; and this not only as to ships and
merchandize, but generally in case of infectious disease appearing in
Great Britain. This clause deserves very particular attention, for
though we have been happily free from any very severe visitation of
contagious disease, yet there are instances where local regulations
would have been highly expedient, at least to the extent of directing
the destruction of the clothes and beddings of persons dying of highly
infectious disorders, and securing the purification, fumigation, and
ventilation of their rooms or houses; some doubt may indeed arise
whether the words of the clause are sufficiently strong to warrant such
measures, “and in case of any infectious disease or distemper appearing
or breaking out in Great Britain or the islands aforesaid, to make such
orders, and give such directions, in order to cut off all communication
between any persons infected with any such disease or distemper and the
rest of his Majesty’s subjects, as shall appear to the said Lords of his
Majesty’s privy council, or any three or more of them, to be necessary
or expedient;” nothing is here said of goods.
The Quarantine Laws may also from time to time be mitigated if necessary
by the Privy Council. Sec. 12.
Ships liable to quarantine must make signals on meeting other ships
within four leagues of the United Kingdoms, or the Islands of Guernsey,
&c. under penalty of £200. Sec. 14.[213]
Masters of vessels coming from abroad must give an account to the pilot
of the places at which they have laden or touched. Sec. 16. And must
answer inquiries made by an appointed officer of the customs, on oath or
not as he may be required. Sec. 18.
Pilots are bound to take vessels liable to quarantine into appointed
places. Sec. 17. And if the vessel arrive at any other place, she may be
forced to repair to that appointed. Sec. 19.
Any Master having touched at infected places, &c. and omitting to
disclose the same, or to hoist prescribed signals,[214] shall be guilty
of felony without clergy. Sec. 19.
Commanders must deliver up bills of health, manifest log book and
journal, under penalty of £100. Sec. 20.
Masters quitting vessels or permitting others to quit them, or for not
conveying vessels to the appointed places, subject to a penalty of £500.
Persons leaving vessels before they are discharged are subject to a
penalty of £200, and six months imprisonment; and any person may use
necessary force to compel them to return on board, on their attempting
to quit such vessel. Sec. 21.
A penalty of £200 on improperly landing goods from a vessel which has
performed quarantine in any foreign Lazaret. Sec. 22.
Disobedience or refractory behaviour in persons under or liable to
quarantine, or persons having intercourse with them, may be punished by
force, and persons escaping from, or refusing to repair to, a lazaret
vessel or place appointed, are guilty of felony, without benefit of
clergy. Sec. 23. Persons so escaping may be seized by any one for the
purpose of being carried before a Justice of the Peace, who by warrant
may direct their conveyance to the vessel or lazaret from which they
have escaped, or confine them in such place of custody, (not being any
public jail,) and under such restrictions as to having any communication
with any other persons, as may in the discretion of such Justice of the
Peace or Magistrate, (_calling to his aid, if he shall see fit, any
Medical person_,) appear to be proper. Sec. 25.
Goods liable to quarantine shall be opened and aired, as directed by
order in council. Sec. 29, 31.
Forging certificates is felony without benefit of clergy. Sec. 30.
In case it shall happen that any part of _Great Britain_, _Ireland_, or
the Isles of _Guernsey_, _Jersey_, _Alderney_, _Sark_ or _Man_,
_France_, _Spain_, or _Portugal_, or the _Low Countries_, shall at any
time be infected with the plague or any other such infectious disease or
distemper as aforesaid, it shall be lawful for his Majesty to prohibit
and restrain all small boats and vessels under twenty tons, from sailing
out of any port until security be first given by the Master in a bond of
three hundred pounds, conditioned not to touch at such places; penalty
for sailing without giving such security, forfeiture and twenty pounds
per man. Sec. 32.
Publication in the London Gazette to be sufficient notice. Sec. 33.
Offences, not being felonies or subject to specific punishments, may be
determined before two Justices, who may fine not exceeding fifty pounds,
or imprison not exceeding three months. Sec. 38. Offences may be tried
in any county. Sec. 42. The general issue may be pleaded to actions
brought against persons for any thing done in execution of this act,
which action must be commenced within two months, and treble cost shall
be recovered on judgment for the defendant. Sec. 43.
For other points see the act itself, which is further extended by the
44th Geo. 3. c. 98; by this act the signal for the plague being actually
on board, is appointed to be a flag of eight breadths, divided quarterly
of black and yellow by day and two large lanthorns one over the other at
the main-topmast-head by night. Sec. 1.
The Privy Council may order ships coming from America or the West Indies
when the Yellow Fever, &c. prevails there, to go to certain places
without being liable to quarantine, unless it shall be afterwards
specially ordered. Sec. 6. For other regulations, see the Stat.
In Ireland the system of quarantine is regulated by the 40th Geo. 3. c.
79, the general outline of which is the same as in the English acts, but
with some additional severity towards health officers neglecting their
duty, the infliction of which may occasionally be necessary.[215]
It now only remains for us to offer a few remarks upon the practical
question to which all our preceeding researches have naturally tended:
Whether the regulations of Quarantine might not be relaxed and modified
without increasing the hazard of infection? Before this subject can be
seriously entertained, or any concessions safely granted in favour of
the mercantile interests, it must be upon the perfect understanding, and
unreserved admission, that the maladies against which they are directed,
are in the most extensive signification of the term, CONTAGIOUS. No
claim to indulgence or exemption can be admitted, on the ground of
professional scepticism, as it relates to the subject of infection, for
notwithstanding the remarks of Dr. _Adams_,[216] and the _male sedula
nutrix_ of Ovid, of which he so sarcastically reminds us, we are still
unphilosophical enough to maintain that “_one cannot be too cautious_.”
To those who consider our long immunity from plague a sufficient
guarantee for our future security, it may be observed, that although the
Island of Malta is, from many causes, much more exposed to this
infection than Great Britain, yet it was free from plague for _one
hundred and thirty-eight_ years, a period which we must remember has
been exceeded in our own case by only sixteen years; at the same time we
are ready to admit with a periodical writer, that Quarantine regulations
might be amended, and rendered less inconvenient to commerce; they might
for instance be modified as to the required period of segregation. Dr.
_Harrison_, in his examination before the select committee of the house,
stated a fact in connection with this subject, that deserves particular
notice: that while passengers, who have made a long voyage, are liable
to perform quarantine, couriers, who come in the least possible time,
are not under such restrictions.
MEDICAL POLICE.
With the exception of the Quarantine laws, which on account of their
superior importance have been treated in a separate chapter, and some
incidental, rather than direct, aids which the subject receives from the
law of nuisances, &c. there is but little of that regulation in England
which can be strictly denominated MEDICAL POLICE.[217] We have already
expressed our opinion upon the apparent inattention of our Government to
this branch of legislation, and have considered it as the necessary
consequence of the cleanliness and good order by which this nation is so
pre-eminently distinguished; there are, however, some very material
points, the value of which is acknowledged by local adoption, while no
good reason has been adduced against their general extension; these are
the examination of drugs and medicines by the Censors of the College of
Physicians; the Irish Health Act; and the weekly Bills of Mortality.
It has been remarked from the Bench, that there might be particular
reasons for taking especial care of the health of the Capital; granting
this to be true, it still appears extraordinary that no measures of
precaution should have been adopted to prevent or restrain the sale of
factitious, impure, spoilt, or deleterious drugs or medicines, in any
part of England, excepting only the city of London; while it is evident
that from various causes, such as greater and more rapid sale, general
competition, superiority of purchasers, and facility of detection,
frauds or negligences are less likely to happen in the metropolis than
in the provinces; where the slowness and uncertainty of demand may in
some degree excuse the purchase of originally inferior articles from the
wholesale dealers, and will generally account for the subsequent
deterioration of the best drugs. It would occupy too much of our
reader’s time and attention, and very possibly be considered as
irrelevant to the object of the present work, if we were to enter into
any details upon this occasion, and to enumerate the different medicinal
substances which, although originally genuine, become in a short space
of time worse than useless, or whose properties by the operation of
local causes are changed or destroyed.[218] This is a loss upon which
the country practitioner must calculate; but that the inconvenience and
danger may not fall upon his patients, it is surely expedient that some
authority should be established to examine and destroy, as in London,
all spoilt or deteriorated medicines; for this purpose, provincial
censors might be nominated by the College of Physicians, either from
among their own members, or from the most eminent Licenciates, whose
duty it would be to make frequent visits for the purpose of examination,
in market towns; and in all other places, whenever they were called upon
by any sufficient occasion, or requisition.
Another equally important restriction is requisite as well in London as
in the provinces, against the sale of poisonous, or highly dangerous
drugs, to unknown persons. A week scarcely elapses without the relation
in the public journals, of some awful case of murder, suicide, or fatal
accident; surely this is sufficient to shew the necessity of some new
enactment on the subject. We are willing to admit that it would be
difficult to frame an act which should comprehend and class all the
several articles that negligence, folly, or malice might pervert to the
destruction of human life: the desired effect would, however be best
attained by giving to some competent authority the power of publishing
and enforcing, from time to time, such regulations and restrictions as
might be found practically necessary. _Arsenic_, for example, is of all
others, the poison most easy to procure, under various pretences; while
from its exceeding virulence, insipidity, and other qualities, it is
most fatally adapted to the horrible purposes of murder. The general
pretext for its purchase is that of the intended destruction of vermin;
now if mixed with one hundred times its weight of tallow it would be
equally, if not better adapted to the avowed object, while at the same
time it would be thus rendered an inapplicable instrument for the
perpetration of crime. On other occasions it might be combined with some
highly nauseous and colouring material; but it ought never to be sold in
a pure form, except to persons who are well known, and whose ordinary
trades and occupations justify their application for a supply.
_Laudanum_, or _Opium_, from its nauseous taste and smell, is seldom
applied to the purpose of murder, except by suicides; against the sale
of these drugs it would be most difficult to guard, although many fatal
results might have been averted by vigilance and judicious precaution;
the Chemist or Apothecary cannot with propriety refuse it, but he is not
bound to supply more than a single dose to a stranger, and that should
be mixed with some appropriate vehicle, in order to prevent the
designing applicant collecting from shop to shop a quantity sufficient
for any criminal purpose. And we are of opinion that the master, or
principal assistant, should be alone allowed to dispense dangerous
medicines. The careless substitution of one drug for another must be
also considered as a prolific source of mischief; this frequently
happens in the shop of the chemist or druggist, where it is least
excusable; at other times it occurs from the negligence of some
individual, who leaves a poisonous substance in company with articles
that are intended for ordinary use. _Oxalic acid_, to which so many
deaths have been lately attributed, may serve as an instance; in its
external characters it bears such a resemblance to those of common
_Epsom salts_, as readily to deceive the ordinary observer; and as both
substances very frequently become articles of retail custom, they are
usually kept ready for sale, in parcels of an ounce each, a practice
which renders a careless substitution an error of common occurrence; the
employment of a particularly coloured paper, that of _yellow_ for
instance, if used universally as a wrapper for poisonous articles, upon
which also the word _poison_, or _dangerous_, might be legibly printed,
would to a certain degree guarantee the safety of the purchaser; but as
danger might notwithstanding be apprehended in the night, a paper of a
distinct texture might afford additional security; the peculiar
roughness of the Dutch filtering paper which is manufactured from
woollen would answer such a purpose. The labels of phials should in this
particular correspond with the wrappers of dry substances; if the
distinction were once generally adopted by the various dealers, it would
soon become notorious to indifferent individuals, and many fatal
accidents might be prevented, without the aid of legislative
enactment.[219]
The College of Physicians, or a mixed Committee of the Medical Bodies,
might be best entrusted with the powers of regulation to which we have
alluded; while to obviate the jealousy to which such an extension of
their authority would be likely to give rise, a clause might be
introduced, that no regulation should be binding, until sanctioned by a
certain number of the judges, as is done in some other cases of inferior
jurisdictions.
It would be also expedient to establish some summary jurisdiction by
which fumigation, whitewashing, and other cleansing operations, and the
burning of infected clothes, might be effected without delay, whenever
the prevalence of a contagious disease required it. The Irish Health Act
(59 _Geo._ 3. _c._ 41, _see_ APPENDIX, _p._ 164) might also be extended
to such places in England as by authority should be, from time to time,
declared infected.
BILLS OF MORTALITY.
Bills of Mortality were instituted in the city of London in the year
1592, in order to collect and exhibit the number of deaths, and to
record the progress, diffusion, and decline of the epidemic malady, with
which the city was at that time infested; but upon the cessation of the
plague, the bills were discontinued. It appears, however, in consequence
of the recurrence of the sickness, that they were reestablished by
public order in 1603, and on the 29th of October in the same year, being
the first of the reign of King James, the establishment of a regular
series of weekly bills of death commenced. In 1606 the number of
christenings, as well as that of burials, appeared in the returns, and
although diseases and casualties were recorded as early as 1604, no
public notice was made of either before the year 1629, when another
important improvement took place—that of distinguishing between the
sexes. In 1728 the ages[220] of all who died from under two years of age
and upwards were regularly specified, and this may be considered as the
last[221] improvement which the bills of mortality have received; for
notwithstanding the rapid march of those arts and sciences with which
every branch of statistics is so intimately connected, the contents,
arrangement, and language of these bills have remained unchanged. The
collating, printing, and publishing these documents, as far as they
relate to the metropolis, are placed under the superintendance and
jurisdiction of the ancient corporation of parish clerks:[222] a power
which it is hardly necessary to observe is wholly inadequate to the
accomplishment of the medical, political, and moral objects which these
bills are calculated to promote. As to the nature of the diseases of
which persons die, much error must necessarily arise from the absurd
manner in which the investigation is conducted, as the following
statement will clearly demonstrate.—The churchwardens of each parish
within the bills of mortality, appoint two old women to the office of
_Searchers_, who, on hearing the knell for the dead, repair to the
sexton of the parish, to learn the name and residence of the deceased.
They demand admittance into the house to examine the body, in order that
they may see that there is nothing suspicious about it, and _judge_ of
what disease the person died, which they report to the parish clerk. The
regular charge for the performance of this office is _fourpence_ to each
_searcher_; but if an extra gratuity be tendered, they seldom trouble
the domestics with any examination. We entirely agree with Dr.
_Burrows_[223] in thinking that the office, as at present filled, should
be entirely suppressed; and the attestation of a properly qualified
medical practitioner, upon actual knowledge of the disease of which the
person died, or upon inquiry and examination of the body, should be
substituted. Were competent persons only appointed to report, the
nomenclature[224] and classification of diseases, in which there has
been little variation since the origin of the bills, would consequently
be reformed; and we should then derive from them the elucidation of many
important and dubious medical points, as 1. _The causes of many
diseases, and their affinity to one another._ 2. _The rise, situation,
increase, decrease, and cessation of epidemic and contagious diseases._
3. _The means of guarding against their extension and effects._ 4. _The
comparative healthiness of different countries and places, climates, and
seasons._ 5. _The influence of particular trades and manufactures on the
human constitution._ Such are the medical advantages which would arise
from correct and enlarged bills of mortality. Dr. William
_Heberden_[225] has made the following observations upon this subject:
“People have fallen into two opposite errors concerning the Bills of
Mortality; some have considered their authority as too vague to be made
the foundation of any certain conclusions; and others have built upon
this foundation, without sufficiently considering its real defects. Both
parties are equally wrong. The agreement of the bills with each other
does alone carry with it a strong proof that the numbers under the
several articles are by no means set down at random, but must be taken
from the uniform operation of some permanent cause. While the gradual
changes they exhibit in particular diseases, correspond to the
alterations which in time are known to take place in the channels
through which the great stream of mortality is constantly flowing. That
there are, however, many and very great imperfections in these bills
cannot be doubted; for, _First_, the births include only those who are
baptized according to the rites of the church of England, by which means
all Jews, Quakers, and the very numerous body of dissenters are omitted.
_Secondly_, of those who are of the church of England, a very large
proportion are either buried in the country, or in burial grounds
adjacent to London, but without the bills; the burials also in St.
Paul’s Cathedral, in Westminster Abbey, the Temple, the Rolls, Lincoln’s
Inn, St. Peters in the Tower, the Charter-house, the several hospitals
of the metropolis, and other places which are not parochial cemeteries,
are for that reason omitted; besides which, the great parishes of
Mary-le-bone, and Pancras, have never yet had a place in the bills of
mortality. _Thirdly_, many abortives and still-born are noticed in the
deaths, but not in the births.” Dr. _Heberden_ proceeds to examine the
fluctuation observable in certain diseases, and which he considers under
two distinct points of view; the first comprehending their variations in
different years; the second those which take place in different parts of
the same year; we must refer the reader for much curious matter, and
useful information, to his work above cited. Many of the provincial
bills of mortality are more perfect than those of London, a superiority
for which we are indebted to the eminent physicians who have resided in
those districts, in example of which we have only to refer to those of
Chester by Dr. _Haygarth_,[226] of York by Dr. _White_,[227] while from
the returns of Northampton Dr. _Price_ computed his celebrated tables of
the probabilities of life, and in a curious memoir read before the Royal
Society he advances strong reasons for believing that there is a
prodigious preponderancy in favour of the country above the most healthy
cities.[228] We shall conclude this subject with observing, that the
metropolitan bills establish beyond all doubt the gratifying fact of the
superior healthiness of London, notwithstanding its increase of
population, in the present day to what it was during the seventeenth
century, when the deaths exceeded the births, by more than one half of
the whole number; while in the present age, the sum total of births
exceeds that of deaths; the same improvements have taken place also in
the provinces, and we are borne out by the concurrent testimony of our
best political arithmeticians, in the assertion that the value of human
life is increasing in Great Britain, while the diminution in the number
of certain diseases, and the total extinction of others, offer the
surest proofs of the general amelioration that has taken place in our
national habits and manners.
Medical Jurisprudence.
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PART II.
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Medical Jurisprudence.
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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.
PART III.
INTRODUCTION.
WE have at length arrived at the third, and most important division of
our work, comprehending the consideration of the principal pleas of the
crown, three of which, RAPE, ARSON, and MURDER, are pre-eminently the
subjects of Medical Jurisprudence.
It is in the investigation of these crimes that the law derives its
greatest support from the lights of science, and that the profession of
physic demonstrates the value and extent of her judicial utility. Let
the physician then, who approaches the tribunal of justice in order that
he may promote by his science the due execution of the laws, fully
appreciate the heavy responsibility of his situation; let his evidence
be so distinguished by its dispassionate and inflexible character, and
his opinions be so matured by study, and fortified by experiment, as not
only to ensure for himself the respectful attention of the court, but to
afford a practical illustration of the just pretensions and importance
of the liberal profession which he represents. The observations which we
have already offered on the subject of medical evidence (page 153)
render it unnecessary for us to enlarge on this occasion upon the
various duties it involves; and yet we cannot forbear from again
pressing upon the attention of all those, who are likely to be called
upon to assist the ends of justice, the great importance of preparing
their minds by preliminary studies; let it be remembered, that it is not
during the hurry and anxiety of a coroner’s inquest, nor amid the tumult
of popular prejudice and execration, that a medical practitioner should,
for the first time, adopt the physiological or chemical opinions by
which he is ultimately to decide upon the life of a fellow creature; and
yet it would be folly to conceal the unwelcome truth, that such a fact
has not unfrequently occurred on several of the more interesting trials,
upon which the medical witness has evinced any thing rather than a well
grounded acquaintance with the philosophical bearings of the question;
and while he has endeavoured to conceal his ignorance under the veil of
technical phraseology, he has artfully sought to shun the embarrassments
it might create by a display of bold and sweeping assertions, alike
hostile to the discovery of truth, and the administration of justice.
There is yet another evil to which those who are but imperfectly
informed on the question at issue are peculiarly exposed; their opinion
is always liable to be warped by extraneous circumstances, and they are
in consequence involuntarily apt to bend facts to their first view of
the case under consideration, to seize on a few circumstances which suit
their preconception, and to neglect or distort those which have a
contrary tendency; while, on the other hand, the practitioner who has
prepared his mind by study and experience, will, with equal diligence,
seek every avenue to truth, and will suspend his conclusions, until the
result of each investigation be fairly before him; in delivering to the
Court the opinion to which his researches have led him, he will be ever
careful to distinguish between the duties of an advocate, and those of
an unbiassed witness; he will state whether the conclusion at which he
has arrived amounts to certainty, or only to high probability, and will
separate the doubts and difficulties with which the question has been
encompassed by the sophistry of counsel, from those that belong
intrinsically to the subject, and are inseparable from it. And it may be
proper on this occasion to observe that the medical practitioner is not
to withhold an opinion because it may be involved in doubt; he is to
furnish the best evidence which the nature of the case will allow, and
when he duly performs this task, he may feel proud in the consciousness
that he occupies an important station in the administration of justice;
and that he conscientiously discharges a duty, without the due
performance of which, the laws of his country would be inoperative.
ARSON.
The charge of _Arson_[602] may occasionally become the subject of
scientific research, and the accused individual receive an honourable
acquittal at the hands of the chemical philosopher; by whose
interposition, the conflagration, unjustly imputed to malice, may be
proved to have originated from a spontaneous process of decomposition.
_Spontaneous Combustion_ may be defined, _an inflammation occasioned by
the re-action of different bodies upon each other, at the ordinary heat
of the atmosphere, without the contact or approach of any other body
previously raised to a high temperature_. This definition necessarily
excludes that class of substances which evolve gaseous matter of a
highly inflammable nature, but which requires the approach of an ignited
body to kindle it.
The subject of _spontaneous combustion_ has attracted the attention of
many very eminent chemists, and an extensive series of experiments has
been instituted in several different countries for its complete
investigation, the results of which have thrown considerable light upon
the causes which operate in the production of the phenomenon, as well as
upon the nature of the substances most liable to such an accension, and
the particular circumstances which are essential to its occurrence. The
following may be considered as the principal sources from which it may
originate, viz.
I. FRICTION.
II. FERMENTATION OF VEGETABLE AND ANIMAL SUBSTANCES, as that of _hay_,
_oatmeal_, _roasted bran_, _coffee_, _&c._ _rags in paper-mills_,
_&c._
III. CHEMICAL ACTION. _Accension of oils, by various animal, vegetable,
and mineral substances; accension of vegetable matter by concentrated
acids; ignition of lime by the affusion of water; ignition of
pyrites._
We shall proceed to consider these subjects more in detail.
1. FRICTION. The kindling of machinery, when not sufficiently greased,
from the friction of its various parts, has occurred too frequently to
require much illustration, although the immediate cause of the
phenomenon involves in its consideration so many recondite points in the
theory of Caloric, as at present to elude our attempts at explanation;
we must therefore rest upon it as an ultimate fact, and be satisfied
with availing ourselves of the advantages to which a knowledge of it may
conduce. The original inhabitants of the New World, throughout the whole
extent from Patagonia to Greenland, procured fire by rubbing pieces of
hard and dry wood against each other, until they emitted sparks, or
kindled into flame; some of the people to the north of California
produced the same effect by inserting a kind of pivot in the hole of a
very thick plank, and causing it to revolve with extreme rapidity: this
fact will explain how immense forests have been consumed, from the
violent friction of the branches against each other by the wind.
II. FERMENTATION OF VEGETABLE AND ANIMAL SUBSTANCES. In order to
establish the process of fermentation, the presence of water appears
indispensable; we accordingly find that in all the cases of spontaneous
combustion which have originated from this source, the substances have
either been in themselves imbued with moisture, or they have possessed
the power of absorbing a considerable portion of water from the
atmosphere. The firing of hay, when stacked in too moist a condition, is
a striking exemplification of this fact; the same circumstance occurs
from great accumulations of turf, flax, and hemp, heaps of linen rags in
paper-mills, &c. provided a sufficient portion of moisture be present to
excite the process of fermentation, and the consequent evolution of
heat. _Oatmeal_, from the extreme avidity with which it imbibes
water,[603] and the heat which is generated by the absorption of it, is
necessarily liable to spontaneous combustion; the following well
authenticated case[604] may serve as an illustration of this fact: “A
gentleman removed with his family from Glasgow to Largs, in May last,
and shut up his house, which was not re-opened until the end of August;
the house stands on the side of a steep declivity, so that the kitchen
which is in the back part, though sunk considerably below the level of
the street, is entirely above ground, and is well lighted and
ventilated. In an opening of the wall, near the kitchen fire-place,
originally intended it is supposed for an oven, there was placed a
wooden barrel bound with iron hoops, and filled with _oatmeal_. This
meal, which had heated during the absence of the family, at last caught
fire, and was totally consumed, together with the barrel which contained
it, nothing remaining but the iron hoops and a few pieces of charcoal.”
In some cases torrefaction increases the propensity of vegetable
substances to spontaneous combustion; _coffee_, roasted _French beans_,
_lentils_, &c. are of this description. Some years ago a great fire
broke out in the village of _Nauslitz_, which is said to have been
occasioned by the application of _roasted_ bran to the necks of some
cattle in a wooden cow-house; in consequence of which, _M. Rude_ an
apothecary at _Bautzen_, instituted some experiments, by which he found
that if rye-bran, roasted until it acquires the colour of coffee, be
wrapped up in a linen cloth, it will in a short time take fire. _Montet_
relates[605] that animal substances may also, under certain
circumstances of decomposition, kindle into flame; and he tells us that
he had himself witnessed the spontaneous accension of a dunghill. We do
not believe that the phosphoric appearances that so frequently accompany
the process of putrefaction, especially that of fish, are ever connected
with actual combustion. Woollen stuffs are said to have taken fire
spontaneously; it is related for instance that the article manufactured
at Cevennes, and which bears the name of “_Emperor’s Stuff_,” has thus
kindled of itself, and burnt to coal; we are, however, very doubtful
whether such a material is liable to this process, unless it be
impregnated with oily matter; and this doubt will receive considerable
strength from the facts which we shall hereafter enumerate.
III. CHEMICAL ACTION. This proves a very frequent cause of _spontaneous
combustion_; and there is perhaps no substance that has so frequently
performed the part of an incendiary as _fixed oil_, especially when of a
drying nature, which with its various accomplices from the animal,
vegetable, and mineral kingdoms, has in darkness and secresy consigned
ships, houses, and manufactories to the flames. The following
interesting occurrence is related in the _Edinburgh Philosophical
Journal_: About twenty-five pieces of cloth, each of which contained
nearly thirty ells, were deposited upon wooden planks in a cellar at
Lyons, on the eighth of July, 1815, in order to conceal them from the
armies which then over-ran France; _in the manufacture of the cloth
25lbs of oil were used for a quintal of wool, and the cloth was quite
greasy_, each piece weighing from 80lbs to 90lbs; the cellar had an
opening to the north, which was carefully shut up with dung, and the
door was concealed by bundles of vine-props, which freely admitted the
air; on the morning of the 4th of August an intolerable stench was
perceived, and the person who entered the cellar was surrounded by a
thick smoke, which he could not support; a short time afterwards he
re-entered with precaution, holding a stable lanthorn in his hand, and
he was astonished to perceive a shapeless glutinous mass, apparently in
a state of putrefaction; he then removed the dung from the openings, and
as soon as a circulation of air was established, the cloth instantly
took fire. In another corner of the cellar lay a heap of stuffs which
had been _ungreased_ and prepared for the fuller, _but they had suffered
no change_. In this case the agency of the oil was sufficiently evident.
In June, 1781, a similar occurrence happened at a wool-combers in a
manufacturing town in Germany, where a heap of wool-combings, piled up
in a close warehouse seldom aired, took fire spontaneously; this wool
had been, by little and little, brought into the warehouse, and from
want of room, been piled up very high and trodden down; that this combed
wool, to which rape oil mixed with butter had been added in the combing,
burnt of itself, was sworn to by many witnesses; one of whom affirmed
that ten years preceding a similar fire had happened among the flocks of
wool at a clothiers, who had put them into a cask, where they were
rammed down hard for facility of carriage, and that this wool burnt from
within outwards, and became quite a cinder. Cotton goods, in which
linseed oil had been spilt, have burnt in a similar manner, and there is
reason to attribute to an accident of this kind the recent loss of a
merchant-vessel homeward bound from the East Indies. Many years since,
several fires broke out at very short intervals, in a rope-walk, and in
some wooden houses in St. Petersburgh; in none of which instances could
the slightest suspicion of wilful firing be entertained; there was lying
in the rope-walk, where the cables for the navy are made, a great
quantity of hemp, amongst which a considerable portion of oil had been
carelessly spilt, and the article was accordingly declared to have been
spoilt; in consequence of which it was purchased at a low price, and
being heaped up together, it had given rise to the conflagration; the
inferior inhabitants had also purchased parcels of this spoilt hemp, for
closing the chinks, and caulking the windows of their houses, a fact
which offered an easy explanation of the origin of the fires that
occurred amongst the houses. It was moreover reported that at the
above-mentioned rope-walk coils of cable had been frequently discovered
so hot, that the people were obliged to separate them to prevent farther
danger. In the year 1757, as _Montet_ reports, sail-cloth, _smeared with
oil and ochre_, took fire in a magazine at Brest. In the spring of 1780,
a fire was discovered on board a frigate lying in the road off
Cronstadt, which, had it not been timely extinguished, would have
endangered the whole fleet. After the most severe scrutiny no cause of
the fire was to be found, and strong surmises existed that some wicked
incendiary had occasioned it. In the month of August in the same year, a
fire broke out at the hemp magazine in St. Petersburgh, by which several
hundred thousand _poods_[606] of hemp and flax were consumed; the walls
of this magazine are of brick, the floors of stone, and the rafters and
covering of iron; it moreover stands alone on an island in the Neva, on
which, as well as on board the ships lying in the river, no fire is
permitted. In the same year a fire was discovered in a vaulted shop of a
furrier; it merits notice that in these shops, which are all vaulted,
neither fire nor candle are ever allowed, and the doors are all composed
of iron: at length the cause of the conflagration was discovered; it
appeared that on the evening previous to the fire the furrier had
purchased a roll of new cere cloth, (an article much in use for covering
tables, counters, &c.) and had left it in his vault, where it was
discovered almost consumed. After these several instances of spontaneous
combustion, we shall relate the celebrated case which led to a
satisfactory explanation of their origin, and induced the philosophers
of different countries to confirm the Russian Report by an extensive
series of well devised experiments. In the night of the 21st of April,
1781, a fire was seen on board the frigate _Maria_ which lay at anchor,
with several other ships, in the road off the island of Cronstadt; the
fire was, however, soon extinguished, but the severest examination
failed in extorting any satisfactory explanation of the manner in which
it had arisen; the garrison were threatened with a scrutiny that should
cost them dear, and were placed under circumstances of the most cruel
suspense; in the midst of this confusion, the wisdom of the Empress gave
a turn to the affair, and, in the following order to _Count Chernichet_,
pointed out an effectual method to be pursued by the Commissioners of
Inquiry. “When we perceived, by the report you have delivered in of the
examination into the accident that happened on board the frigate
_Maria_, that, in the cabin where the fire broke out, there were found
parcels of matting tied together with packthread, in which the soot of
burnt fir-wood had been mixed with oil, for the purpose of painting the
ship’s bottom, it came into our mind that at the fire which happened
last year at the hemp warehouses, the following cause, amongst others,
was assigned; that _the fire might have proceeded from the hemp being
bound up in greasy mats, or even from such mats having lain near the
hemp_; therefore neglect not to guide your farther inquiries by this
remark.”
As it appeared upon juridical inquiry that, in the ship’s cabin where
the smoke first appeared, there lay a bundle of matting containing
Russian lamp-black prepared from fir-soot, moistened with hemp-oil
varnish, which was perceived to have ignited sparks at the time of the
extinction of the fire, the Russian Admiralty gave orders to institute
various experiments with a view to discover whether such a mixture,
folded up in a mat, would kindle spontaneously; a number of experiments
was accordingly performed, and the result established the fact beyond
the reach of controversy. The Russian Admiralty having thus satisfied
the public with respect to the self-enkindling property of this
compound, transmitted an account of their investigation to the Imperial
Academy of Sciences, at whose desire _M. Georgi_ repeated the
experiments, by which he not only confirmed the report of the Admiralty,
but extended the information which it contained, and deduced an
important generalization of its views.
It sometimes happens that in boiling flowers and herbs in oil, which
occurs in several pharmaceutic operations, these herbs after being taken
out, dried, and pressed, inflame spontaneously; care therefore should be
taken, when such substances are thrown aside, that they are not heaped
up near other combustible bodies.
Amongst the mineral substances capable of exciting the inflammation of
oils, an ore of Manganese, known by the name of the _Black Wad of
Derbyshire_, holds a distinguished place; when this substance is
pulverised, and moistened with a little linseed oil, it will in the
space of an hour take fire, and become red hot, like burning small-coal;
it is supposed that the Pantheon, in Oxford-street, was destroyed by the
inflammation of a compound of _Derbyshire wad_ and oil, used in painting
the scenery.
In these cases of combustion, oxygen seems to act an important part, and
by combining with the hydrogen of oil to excite a chemical action which
may be considered the immediate cause of the phenomenon. Saw-dust, and
other vegetable matter, has been occasionally excited into flame by the
action of the concentrated mineral acids; we have been lately informed
by _Mr. Parkes_, that a fire took place some years since in his chemical
manufactory, in consequence of the leakage from a carboy of nitric acid.
Several instances are also on record of fires having been occasioned by
the sudden slacking of quicklime; _Theophrastus_ relates an instance of
a ship which was loaded in part with linen, and in part with quicklime,
having been set on fire by water that was accidentally thrown over the
latter, and that the vessel was in consequence entirely consumed. In the
_Journal de la Haute Saone_ there is an account of the burning of a
barn, one of the partitions of which being wood had caught fire from a
quantity of quicklime, intended for the repair of the premises, having
been carelessly thrown against it. In this country a similar accident
happened in the last winter at Edmonton, near London; the flood,
consequent upon a heavy fall of rain, made its way among the quicklime
in a bricklayer’s premises, which took fire and were burnt.
There still remains for notice another source of spontaneous
burning,—the ignition of _Pyrites_, and that of cinders from the
furnaces of glass-works, from exposure to air and moisture; it was in
this manner that the ship _Ajax_ was supposed to have been consumed,
from the spontaneous combustion of coal, abounding in _Pyrites_.
HUMAN COMBUSTION.
BEFORE we quit the consideration of _spontaneous combustion_, it becomes
our duty to offer a few observations upon a subject which appears to be
nearly allied to it, and which certainly belongs to medico-judicial
inquiry,—_the combustion of human beings_; the phenomenon, however, has
been erroneously designated as _spontaneous_, for in every recorded
instance, the approach of some burning body, as that of the flame of a
candle, or an ignited pipe, appears to have been necessary for its
occurrence. “It can no longer be doubted,” says _Dr. Gordon Smith_,
“that persons have retired to their chambers in the usual manner, and in
place of the individual, a few cinders, and perhaps part of his bones,
were found.” Upon this occasion we confess ourselves more sceptical; the
phenomenon is contrary to all our preconceived views, and must therefore
require more than ordinary testimony for its support, although we are
ready to admit, that upon any other less miraculous subject, evidence
even less powerful than that produced on the present occasion, would be
deemed amply sufficient. _Plouquet_, in his _Literatura Medica_,
enumerates twenty-eight cases. _Dr. Trotter_, in his Essay on
Drunkenness, adduces a considerable number of instances of persons
addicted to the immoderate use of spirits, having undergone such
combustion. In Paris, an essay written exclusively on this subject was
published by _Pierre Aimée Lair_, entitled “_Essai sur les combustions
humaines, produites par l’abus des liq. spirit: Paris 1808_;” and the
journals of various nations[607] present us with a great variety of
examples, all of which, with some slight shades of difference, appear to
have been attended with the same phenomena: a fact which we freely admit
affords internal evidence of their authenticity. On the other hand it
deserves notice, that amidst all these cases, _only one_[608] is related
where the person survived for a short time, and gave an account of the
manner in which he was _struck_ with the fire; in none of the others has
it ever been known in what way the fire commenced, or proceeded. The
following are the circumstances in which all the recorded cases so
singularly concur.
1. The persons who have suffered this species of combustion have been
long accustomed to drink spirtuous liquors.
2. These persons have been generally females, and advanced in years.
3. The body has not burned _spontaneously_, but accidentally, in as much
as it required for its inflammation the contact or approach of some
burning body, or that of electric matter.
4. The extremities of the body, such as the feet and hands, have in
general escaped.
5. The fire has little injured, and sometimes not at all, those
combustible things that were in contact with the body when it was
burning.[609]
6. The combustion of these bodies has left a residue of greasy and fœtid
ashes and fat, that were unctuous, and extremely offensive and
penetrating.
Various theories have been proposed for the explanation of this singular
phenomenon; and we may here observe, that if the bodies in question were
actually found consumed, in the manner described, it is quite impossible
to suppose that they were burnt by ordinary means; nor, even admitting
that they had been rubbed over with a highly combustible substance, is
the explanation less difficult; at a period when criminals were
condemned to expiate their crimes in the flames, it is well known what a
large quantity of combustible materials was required for burning their
bodies. A baker’s boy, named _Renaud_, being several years ago condemned
to be burnt at Caen, two large cart loads of faggots were required to
consume the body; and at the end of more than ten hours some remains
were still visible. In this country the extreme incombustibility of the
human body was exemplified in the case of Mrs. King, who having been
murdered by a Foreigner, was afterwards burnt by him; but in the
execution of this plan he was engaged for several weeks, and after all
did not succeed in its completion.
2. RAPE.
RAPE is the unlawful and carnal knowledge of a woman by force and
against her will: a ravishment of the body and violent deflowering her,
which is felony by the common and statute law. _Co. Litt._ 190,
124.[610] Formerly it was the law (especially in case of appeals of
rape) in order to prevent malicious accusations, that the woman should
immediately after, “_dum recens fuerit maleficium_,” go to the next
town, and there make discovery to some credible persons of the injury
she had received: and afterwards acquaint the high constable of the
hundred, the coroners and the sheriff with the outrage. _Glanv. l._ 14.
_c._ 6: _Bract. l._ 3. _c._ 28. 1 _Hales P. C._ 632. Afterwards by
statute _Westm._ 1. 3. _Ed._ 1. _c._ 13. the time of limitation was
extended to forty days. At present there is no time of limitation fixed,
for it is punished at the suit of the king, and the maxim of law takes
place, that, _nullum tempus occurrit Regi_. The appeal of Rape (for
there were formerly several appeals beside that of murder) has been long
obsolete; see _Jac. Law Dic. tit. Appeal_, and is now abolished by the
statute 59 _Geo._ 3, _c._ 46:[611]. But though there is no time limited,
a jury will seldom give credit to a stale complaint. In Scotland it is
said the limit was twenty-four hours; the King against Colonel
_Charteris, Maclaurin’s Crim. Cases, p._ 66. 69. And in a medical point
of view it is yet more necessary that examination should be immediate,
many collateral proofs might be observed on an early enquiry, all signs
of which would be obliterated in a few hours.[612] This remark applies
as well to the supposed criminal as to the sufferer; both should in all
possible cases be subjected to immediate surgical examination; the case
related by Sir _Matthew Hale_, (_P.C._) furnishes an instance where an
innocent man might have been saved from a malicious prosecution, to the
hazard of his life, by this precaution. _Foderè_, in his work on Medical
Jurisprudence, vol. 4, p. 363, mentions two cases from _Zacchias_, where
the falsehood of an accusation was determined by a comparative
inspection of both parties. See also the same work, and vol. 4, p. 365.
370.[613]
As this is a crime of which the accusation is peculiarly easy, and the
disproof proportionably difficult, more than ordinary acuteness is
necessary for its investigation; and this can be best exercised while
the event is recent, and before one or other of the parties can have
time, deliberately, to frame the account of their injuries or innocence:
here, as in some cases of murder, to which we shall have occasion to
allude, the medical practitioner is likely to be one of the earliest
witnesses to the conduct of the accuser (if not also, of the accused),
immediately after the alleged transaction; to him therefore the Court
will look, not only for surgical, but also for general observations. The
following are among the first that will occur.
1st. What is the age, strength of body and mind, situation in life, and
general character of the accuser?
2d. The same of the accused.
3d. Had the parties any, and what previous acquaintance and intimacy?
4th. What external and obvious signs are there of violence?
5th. What surgical proof of coition, whether voluntary or violent?
6th. Is either party tainted by any, and what disease?
Time, place, and circumstances of the alleged offence.
A female infant, under twelve years of age, is in law deemed incapable
of consenting to any act, much less to her dishonor; the carnal
knowledge of such infant, whether she yield or not, is therefore
virtually a rape; but whether, if the child be above ten years of age,
it be also a felony, has been questioned: Sir _Matthew Hale_, 1 _P. C._
631, was of opinion that such profligate actions, either with or without
consent, amount to rape and felony, as well since as before the statute
of _Queen Elizabeth_; but in his Summary, the learned judge appears to
have altered his opinion. And the present practice is, that if the child
be under ten years of age, then it is felony by the statute; but if she
be above ten and under twelve, then it is no rape if she consented, but
only a misdemeanour; _Stat. West._ 1 _c._ 13, see 1 _East’s P. C._ 435.
The abominable wickedness of carnally knowing and abusing any woman
child under the age of ten years, in which case the _apparent_ consent
or non-consent is immaterial, as by reason of her tender years she is
incapable of judgment and discretion, is felony without benefit of
Clergy, 18 _Eliz. c._ 7. It is lamentable to reflect that this crime
should have been of very constant occurrence, and that it should not
unfrequently have been committed by hypocrites, who had been entrusted
with the education of their victims. In 1758, _John Forbes_, chaplain
and schoolmaster of Dalkeith,[614] was convicted of a variety of
libidinous acts, and also several rapes; and of his having carnal
knowledge of a girl (one of his pupils) under twelve years of age. He
was sentenced to be whipped and banished: the king’s advocate having “in
respect it is known to him, that the evidence of the rape and carnal
copulation will be proven only by girls under age,” restricted the
indictment to an arbitrary punishment. _Maclaurin’s Crim. Ca. p._ 186.
755.
In 1777, the Rev. _Benjamin Russen_, a puritanical schoolmaster, was
convicted and executed for a similar offence, on a girl under ten years
of age. See 1 _East._ 438. _Ann Reg._ Many other instances might be
cited, if it were necessary here to enforce upon the minds of parents,
the expediency of minute enquiry into the habits of those to whom they
entrust the custody of their children; and that they should not be
deceived by professions of extraordinary sanctity.[615] Nature has this
revenge against those who pretend exemption from her frailties, that to
sustain their hypocricies, they fall into greater crimes than those
which they profess to avoid; assuming to be more than man, they degrade
themselves to beasts. See case of _Thomas Weir_ and _Jane_ his sister.
_Maclaurin, C. C. p._ 1[616].
The crime of violating a child, under the age of consent, is the more
scrupulously to be investigated, as one mode of proof is too frequently
excluded; the testimony of the sufferer, if she be of very tender age,
is not evidence; the greater therefore the atrocity of the offence, the
greater is the difficulty of conviction; “If the rape be charged to have
been committed on an infant under twelve years of age, she may still be
a competent witness, if she hath sense and understanding to know the
nature and obligations of an oath, or even to be sensible of the
wickedness of telling a deliberate lie; nay, though she hath not, it is
thought by Sir _Mathew Hale_,” (1 _P.C._ 634) “that she ought to be
heard without oath, to give the Court information; and others have held,
that what the child told her mother or other relations, may be given in
evidence; since the nature of the case admits frequently of no better
proof. But it is now settled, by a solemn determination of the twelve
Judges; that no hearsay evidence can be given of the declarations of a
child, who hath not capacity to be sworn; nor can such child be examined
in Court without oath: and there can be no determinate age at which the
oath of a child ought either to be admitted or rejected;” but their
admissibility depends upon the sense and reason they entertain of the
danger and impiety of falsehood, which is to be collected from their
answers to questions propounded to them by the Court. _Brazier’s case_,
1 _Leach’s Crown Law_, 237. _Powell’s case, ib._ 128. _Rex v. Travers_,
2 _Strange_, 700.[617]
A female may suffer violation at any age beyond absolute infancy; and
the criminal records also furnish examples of brutality towards women of
a very advanced period of life. As to the other sex, it may frequently
be necessary to consider, at what age a boy may be capable, or an old
man incapable, of committing the offence[618]. No determinate line can
be drawn in either case, every instance must therefore rest upon its
peculiar circumstances; this may however be allowed as a general rule,
an attempt at violation is as extraordinary on the part of extreme
youth, as its completion is improbable in advanced old age. Sir _M.
Hale_ says (1 _P.C._ 631), “A male infant under the age of fourteen, is
presumed by law incapable to commit a rape, and therefore it seems
cannot be found guilty of it. For though in other felonies _malitia
supplet ætatem_; yet as to this particular species of felony, the law
supposes an imbecility of body as well as of mind.” (4 _Bl. Com. c._
15). This imbecility however is not universal, as we have previously
shewn when treating of the age of Puberty.
After having determined the age, the most material examination is as to
the relative bodily strength of the parties. It is at all times
difficult to believe that in a mere conflict of strength, any woman of
moderate power of body and mind, could suffer violation, so long at
least as she retained her self possession,[619] All accusation therefore
must be viewed with suspicion, if there be not a great disparity of
strength in favour of the assailant. But this remark must not be
construed to extend to cases, where by long continued violence,
intimidation, or other circumstances, the woman is ultimately overcome;
for her mental suffering may very considerably exhaust her power of
resistance; “and it is no excuse or mitigation of the crime, that the
woman at last yielded to the violence; and consented either after the
fact, or before, if such consent was forced, by fear of death, or
duress,” 1 _Hawk. Pl. c._ 41. _s._ 2. _Co. Lit._ 123. 1 _Hale’s Pl._
629. The mental power of the sufferer is also to be regarded; if it were
considerable, greater power of resistance is to be expected; the
contrary, if the woman were weak and timid; and if she were actually
imbecile, “A poor innocent that could not say him nay;” the crime varies
little or nothing in atrocity from the violation of an infant. We are
not aware that any such case is on record, though the late
investigations into the conduct of some keepers of mad-houses leave
reason to fear that such crimes have been committed.
The external signs of violence ought to be enquired into upon the spot
on which the crime is said to have taken place, and that as soon after
the alleged commission as possible; that the state of surrounding
objects may be determined, as well as the incidental injuries, as
bruises, strains, &c. which either of the parties may have received in
the struggle; the state of their clothes must be examined, and every
circumstance, however minute, carefully noted. The case of _Abraham
Thornton_, Warwick assizes, 1817, and the subsequent proceedings on the
appeal in the King’s Bench, _Easter T._ 1818, 1 _Bar. & Ald._ 405, will
shew how material such examination may prove. Many of the observations
to be made on cases of murder equally apply to those of rape; to them we
must refer.
It is not necessary that the party violated should be proved a
virgin[620] up to the period of the alleged crime; for it may be
committed on the person of a married woman, or of a widow; nay more, the
law extends its protection against violence to those who have been
notoriously unchaste; even a common strumpet is still under the
protection of the law, and may not be forced, (1 _Hawk. Pl._ 108.) and
it is not certain that she had not repented, and determined to reform.
Yet in the case of a person of notoriously bad reputation the strongest
possible evidence would be required to warrant a conviction.
“A very considerable doubt having arisen as to what shall be considered
sufficient evidence of the actual commission of this offence, it is
necessary to enter into an enquiry which would otherwise be offensive to
decency. Considering the nature of the crime, that it is a brutal and
violent attack upon the honor and chastity of the weaker sex, it seems
more natural and consonant to those sentiments of laudable indignation
which induced our ancient lawgivers to rank this offence among felonies,
if all further enquiry were unnecessary after satisfactory proof of the
violence having been perpetrated by the actual penetration of the
unhappy sufferer’s body. The quick sense of honor, the pride of virtue,
which nature, to render the sex amiable, hath implanted in the female
heart, as Mr. Justice _Foster_ has expressed himself, is already
violated past redemption, and the injurious consequences to society are
in every respect complete. Upon what principle, or for what rational
purpose, any further investigation came to be supposed necessary, the
books which record the dicta to that effect, do not furnish a trace.” 1
_East. P. C._ 436.
But on the other hand it must be allowed, that as this is a crime
peculiarly easy in accusation, and difficult in defence; and as
experience has shewn that prosecutions for this offence are very
frequently resorted to from motives of revenge, malignity,
disappointment, or extortion; the law has done well to extend its best
protection to the possibly innocent, while it reserves its severest
punishment for the truly guilty. It has occurred that there has not been
the slightest ground for the accusation, that coition has never taken
place, or been attempted by the party charged; the ordinary details are
easily invented, and very colourable circumstantial evidence is soon
obtained by the designing accuser; it is only in the minuter points of
examination, to which the present practice gives occasion, that she will
trip in her evidence; it is to that only that the accused can look for
safety when a well forged tale, artfully compounded of truth and
falsehood, is prepared for his destruction. Nor is it uncommon that a
woman, who has actually consented to her own dishonor, should, on fear
of discovery, or on disappointment, or from jealousy, prefer an
accusation of rape against her seducer; here the main fact being true,
the coition having taken place, and under the usual circumstances of
secresy, the life of a prisoner depends on the mere question of consent
or violence; the prosecutrix being the principal, or more generally, the
only witness, it is essential that her testimony should be subjected to
the most rigid examination, and that all external circumstances should
be sought which might tend to confirm or destroy it.
The first and most material point to be proved is, that the venereal
congress or coition has actually taken place; but as to the exact legal
definition of this act, much difference of opinion has existed; for
while some learned authorities have held, that penetration alone is
necessary, others have maintained that the crime is not perfected
without _emissio seminis_ also. Lord _Coke_, defining “_carnal
knowledge_,” says, there must be _penetratio_, that is _res in re_; but
the least penetration maketh it carnal knowledge.[621] So in the case of
_Russen_ the schoolmaster, it was proved by two surgeons on behalf of
the prisoner, and corroborated by four others who had examined the girl,
that the Hymen (which _they_ considered an indubitable mark of
virginity[622]) was whole and unbroken, and that the passage was so
narrow that a finger could not be introduced. But it was admitted that
this membrane, the existence or non-existence of which has been strongly
controverted,[623] was in some instances situated an inch or an inch and
a half beyond the Vagina;[624] and Mr. Justice _Ashhurst_, who tried the
prisoner, left it to the jury whether any penetration were proved, for
if there were any, however small, the rape was complete in law. The jury
found him guilty, and he received judgment of death. But before the time
of execution, the matter being much discussed, the learned judge
reported the case to the other judges for their opinions, whether his
direction were proper. And upon a conference, it was unanimously agreed
by all assembled (in the absence of _De Grey_, C. J. and _Eyre_ B.) that
the direction of the judge were perfectly right. They held that in such
cases, the least degree of penetration is sufficient, though it may not
be attended with the deprivation of the marks of virginity. It was
therefore properly left to the jury by the judge; and accordingly the
prisoner was executed. This decision appears to be well warranted by
physiological observation, for as it is evident from the concurrent
testimony of the highest medical authorities, that penetration _in
vaginam_, is not necessary to conception, (_vide ante, p._ 203.) it
would be absurd to contend that more were necessary to constitute Rape
in law, than Generation in nature[625]. The utmost wrong to the one
party, and the malignant intent of the other, have been complete; and
the injury on the one hand, and malice on the other, are truer criteria
for the administration of justice, than the dicta of lawyers, or the
etymologies of schoolmen.
Lord _Coke_, (12 _Rep._ 37.) Sir _M. Hale_ in his Summary,[626] and
_Hawkins P. C._ say that there must be both _penetratio_ and _emissio
seminis_, and this appears to be the law of the present day, as decided
by _Skynner_, C. B. _Gould_, _Willis_, _Ashhurst_, _Nares_, _Eyre_, and
_Hotham_, against Lord _Loughborough_, _Buller_, and _Heath_, Lord
_Mansfield_, though present, having given no opinion of his own; (a
circumstance from which we might infer that he agreed with the
minority). The argument is stated to have turned on the words _carnal
knowledge_, to which the majority contended that _emissio seminis_ was
absolutely necessary; if therefore it be true that certain Eunuchs[627]
have power of erection, and consequently of penetration, they may
morally ravish without incurring the punishment of Rape; for it is
certain that they can have no _emissio seminis_;[628] or a man may have
perpetrated all the more atrocious parts of his crime, and yet being
interrupted in the least voluntary constituent of it, (_Hill’s_
case)[629] escape the well-merited vengeance of the law; while it is
evident on the other hand, that the innocent victim has suffered, in
body, mind, and reputation, as much, as if the crime had been legally
completed.
But admitting the fact of emission to be necessary to the constitution
of this crime, it remains to enquire whether the proof of this fact must
be specifically made out in evidence, or whether it shall be presumed.
In _Matthew Cave’s_ case (Oct. 1747) Chief Justice _Willes_ directed the
prisoner to be acquitted for want of proof; but on the other hand, Mr.
Justice _Foster_, _Clive_, J. (in _Blomfield’s_ case, A.D. 1758)
_Bathurst_, J. and Baron _Smythe_ (in _Sheridan’s_ case, 8 _Geo._ 3) and
_Buller_, J. (in _Harmwood’s_ case, Winchester Spring assizes, A.D.
1787) held the contrary; the latter case is the more worthy of
consideration, as it was subsequent to the decision in _Hill’s_ case,
and tried by one of the judges present at the discussion: “He said, in
giving judgment, that he recollected a case where a man had been
indicted for a Rape, and the woman had sworn that she did not perceive
any thing come from him; but she had had many children, and was never in
her life sensible of emission from a man:[630] and that was ruled not to
invalidate the evidence which she gave of a Rape having been committed
upon her.” 1 _East. P. C._ 440.
A Rape may have been committed on a child too young, or rather too
incompetent, to be sworn; yet all the circumstances except this, may be
proved by other witnesses; the infant alone could prove _emissio in
vaginam_, for no subsequent examination, however immediate, would
demonstrate the fact; or when a woman has fainted from the violence
committed on her, or has been dishonoured in her sleep,[631] and through
the agency of soporific drugs, or has died before the trial,[632] or
been murdered by her ravisher, or has been driven to suicide by mental
distraction; in all these cases of increased atrocity, this mode of
proof becomes impossible.
But emission, it is said, may be presumed from penetration, _Duffin’s_
case, _June_, 1821,[633] but this is not physiologically true in all
cases, and as we have stated, that it may be prevented by accident or
interruption, so also emission is said to be evidence of penetration;
but this is still less reasonable; for it is obvious that it may easily
occur in the mere attempt; yet if reliance can be placed on the
authorities already quoted,[634] emission alone without any material
penetration, but only by injection _inter labia_, will be sufficient to
impregnate, and therefore ought in reason to be considered sufficient to
constitute the crime of Rape.
When it has been clearly proved that coition has actually taken place
between the parties charged[635], the next point to be determined is,
whether the woman consented or not. It is not necessary that we should
here enter into a detail of all the circumstances which may throw light
on this question; but one extraordinary dictum of the more ancient
lawyers is worthy of observation, though there is little fear that the
error will ever be sanctioned by any tribunal; yet as it is one of the
evils of this crime that an unmerited stigma too frequently attaches to
the sufferer by it, we are the more anxious to expose the vulgar idea,
from which some ignorant persons might still infer that a woman had
consented, because she had proved pregnant. “It is said by Mr. _Dalton_,
that if a woman at the time of the supposed Rape do conceive with child
by the ravisher, this is no rape; for (he says) a woman cannot conceive
unless she doth consent. And this he hath from _Stamford_ and _Britton_,
and _Finch. Dalt. c._ 160. see also 2 _Inst._ 190.[636] But Mr.
_Hawkins_ (_P. C. c._ 41. _s._ 2), observes that this opinion seems very
questionable: not only because the previous violence is in no way
extenuated by such a subsequent consent; but also, because if it were
necessary to shew that the woman did not conceive,[637] the offender
could not be tried till such time as it might appear whether she did or
not; and likewise because the philosophy of this notion may be very well
doubted of. 1 _Hawk._ 108. And Lord _Hale_ says this opinion in _Dalton_
seems to be no law. 1 _H.H._ 131. (see also _Mss. Sum._ 334). That so
absurd a notion as that conception evidenced consent, should in modern
times have obtained amongst any whose education and intellect were
superior to those of an old nurse is indeed surprising: at this day,
however, facts and theory concur to prove that the assentation of nature
in this respect, is no ways connected with volition of mind.” _Burn’s
Just. tit._ Rape.
It is not necessary that the quantum of violence be extreme; it is
sufficient that the offence is committed without consent; as where a
woman is violated in her sleep, or during a fit, and query if she have
been intoxicated for that special purpose, so that in truth she should
have no rational power to consent or deny; or if the ravisher imposed
himself in the night, on a married woman as her husband.
If a woman be compelled by violence to marry, and carnal knowledge be
had by force, it is a rape, 1 _Hale_, 629; but as there is another
remedy by _statute_ 3 _Hen._ 7. _c._ 2. for the forcible abduction, it
is not necessary to enquire whether an indictment will lie, until the
marriage be dissolved.
Nor will a subsequent marriage purge the offence: formerly “it was held
for law, that the woman (by consent of the judge and her parents) might
redeem the offender from the execution of his sentence, by accepting him
for her husband, if he also was willing to agree to the exchange, but
not otherwise.” _Glanv. l._ 14. _c._ 6. _Bract. l._ 3. _c._ 28.; and
this was reasonable while the prosecution was at the suit of the party
by appeal, for as the king could not pardon, the power of remission
might be properly left to the person injured; but that outrages might
not be too readily compromised to the injury of public justice, the
statue 6 _Rich._ 2 _st._ 1. _c._ 6. enacts, that the woman consenting,
and the ravisher, be “disabled to challenge all inheritance, dower, or
joint feoffment, after the death of their husbands and ancestors,” and
the husband, or if she have none, the father or next of blood shall have
the appeal[638]. But Rape having been made felony by _Stat. West._ 2.
_c._ 34. and a new appeal given, the option of the woman is now taken
away. It would have been unnecessary to have dwelt on this point if a
vulgar error did not to this day prevail among the lower orders, that
the punishment of Rape might be escaped by the connivance of the nominal
prosecutrix, even after judgement.
The party grieved is so much considered as a witness of necessity in
this, as in other personal injuries, that in Lord _Castlehaven’s_ case,
who assisted[639] another man in ravishing his own wife, she was
admitted as a witness against him. The same testimony was received in
Lord _Audley’s_ case[640], 1 _East. P.C._ 444. 1 _Hall_, 629: 1 _St._
Tri. 387. 1 _Stra._ 633. _Hutt._ 116.[641]
And if the party be dead “_the deposition_ of the girl taken before the
committing magistrate and _signed by him_, may after her death, be
read[642] in evidence at the trial of the prisoner, although it was not
_signed by her_, and she was under twelve years of age; provided she was
sworn, and appeared competent to take _an oath_, and all the facts
necessary to complete the crime may be collected from the testimony so
given in evidence.” _The King against Fleming and Windham_, A.D. 1779.
_Leach’s C.L. p._ 996. But if the declaration be made _in articulo
mortis_, the party knowing herself to be dying, then it is not necessary
that she be sworn, for the solemnity of the occasion is more than
equivalent to the form of an oath, yet it is necessary that the party
should have so much sense and discretion, that, if in sound health, she
might have been sworn; for if she have not, then even the fear of death
and judgment may not have a sufficient impression on her mind. The
melancholy case of _Coleman_ will impress every reader with the
importance of carefully noticing the circumstances of dying
declarations, lest, by receiving as evidence the ravings of delirium, or
at least the imperfect impression of impaired faculties, the innocent
should be sacrificed to the errors of the dying; and this is the more
necessary in those cases where the atrocity of the crime committed
creates an immediate prejudice against every party charged or suspected.
END OF VOL. I.
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William Phillips, Printer.
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Footnotes
Footnote 1:
We have preferred this term, as best calculated to express, in the
most comprehensive manner, the application of Medical Science to the
purposes of the law. Different writers, however, upon this branch of
knowledge, have employed various other terms for the same object, such
as _Legal_, _Judiciary_, or _Juridical Medicine_; _State Medicine_,
_Forensic Medicine_, _Medical Police_. The two latter terms, evidently
cannot with propriety be considered synonimous with the former, for
they are, strictly speaking, subordinate divisions. Some authors have
objected to the term _Medical Jurisprudence_, as implying a knowledge
of the laws relating to medical topics, rather than an acquaintance
with the medical science necessary for the elucidation of legal
subjects. As it is our peculiar object to unite the sciences, and to
shew their mutual relevance, the title becomes most applicable to
this, although it may have been improperly affixed to former works.
Footnote 2:
Chap. xiii. xiv.
Footnote 3:
So important was this act in the climates of Asia and Africa, that the
Mahometan, if unable to obtain water in the Desert, was directed to
cleanse his person by frictions with the sand.
Footnote 4:
See _Mill’s_ History of British India.
Footnote 5:
Collection of Voyages, that contributed to the establishment of the
East India Company. Vol. i. part i. p. 182.
Footnote 6:
Aristotle proposed the same means of checking the increase of
population. _Aristot._ de Republica. lib. vii. c. 16.
Footnote 7:
Institutes of Menu. ch. iii. 6 to 10.
Footnote 8:
Chap. xxii. verse 15.
Footnote 9:
See our Physiological Illustrations of Parturition, vol. i. p. 246.
Footnote 10:
Vol. i. p. 280.
Footnote 11:
Priests were among the earlier chemists, and it is asserted that they
frequently instructed the accused, either from a conviction of his
innocence, or from less disinterested motives, in some of those means
of resisting the action of fire, by which modern jugglers are still
enabled to amuse and astonish the vulgar.
Footnote 12:
_Bohn, John._ De Renunciatione Vulnerum, 1689, 4to. Amsterdam.
Footnote 13:
_Valentini._ Pandectæ Medico-Legales, 4to. Francof. 1702.
Footnote 14:
_Boerner, Fred._ Prof. Med. Wirtemburg, 1723. Several Dissertations.
Footnote 15:
_Kannegeiser._ Inst. Med. Leg.
Footnote 16:
_Alberti, Michael._ Prof. Med. Hall.—Systema Jurisprudentiæ Medicæ
Schneeberg 4to. 1725. tom. vi.
Footnote 17:
_Zittman._ Medicina Forensis, 4to. Francofurti.
Footnote 18:
_Richter._ Decisiones Medico-Forenses.
Footnote 19:
_Teichmeyer._ Institutiones Med. Leg. 4to. Jenæ 1740.
Footnote 20:
_Stark._ De Medicinæ Utilitate in Jurisprudentia, 4to. Helmont, 1730.
Footnote 21:
_Hebenstreit._ Anthropologia Forensis, 8vo. Lipsiæ, 1753.
Footnote 22:
_Ludwig._ Institutiones Medicinæ Forensis.
Footnote 23:
_Fazellius._ Elementa Medicinæ Forensis.
Footnote 24:
_Plenck._ Elementa Medicinæ et Chirurgiæ Forensis.
Footnote 25:
Vorlesungen über die gerichtliche Arneywissenchaft, 3 v. 8.
Footnote 26:
Bibliothek der Staatsaryneikunde, _i. e._ Bibliotheca of State
Medicine.
Footnote 27:
_Sikora._ Conspectus Medicinæ Legalis. Pragæ et Dresdæ, 1792.
Footnote 28:
_Loder._ Anfangsgründe der Medicinischen Anthropologie und der
Staatsarzneykunde 8. Werm. 1793.
Footnote 29:
_Metzer._ System der gerichtlichen arzneywissenchaft. 8 Koningsb.
1793. Latin by _Keup._ 8 Stend. 1794.
Footnote 30:
_Muller._ Entwurf der gerichtlichen Arzneywissenchaft 2 vol. 8. Frank.
Footnote 31:
Collectio Opusculorum selectorum ad Medicinam forensem spectanium,
curante. F. C. T. Schlegel, Leipsic 1789-1800.
Footnote 32:
Bibliothèque Medicale.
Footnote 33:
Quæstiones Medico-Legales, in quibus omnes materiæ medicæ quæ ad
legales facultates videntur pertenere, proponuntur, pertractantur,
resolvuntur. Tom. ix. Romæ 1621.
Footnote 34:
Systema Cautel. Medicar. p. 579.
Footnote 35:
“Istituzioni di Medicina Forense di _Giuseppe Tortosa_, Professore
Medico della Commissione Dipartimentale di Sanita del Bacchiglione.”
Vol. ii. Vicenza, 1809.
Footnote 36:
Traité de Med. Leg. par _Foderé_ Vol. I.
Footnote 37:
Traité de Med. Leg. T. i. Introduct. xxxiv.
Footnote 38:
Recueil periodique de la Société de Médecine, tom. vii, p. 343.
Footnote 39:
Les Lois eclairées par les Sciences Physiques; ou Traité de Médecine
Légale, et d’Hygiène Publique, tom. iii. 8vo, Paris.
Footnote 40:
Médecine Légale, et Police Médicale, de _P. A. O. Mahon_, Professeur
de Med. Leg. etc. avec quelques notes de _M. Fautrel_.
Footnote 41:
Cours de Médecine Légale, Theoretique et Pratique, de _J. J. Belloc_,
Chirurgien à Agen, 1 vol. in 12mo.
Footnote 42:
Manuel d’Autopsie cadaverique Medico-Legale, &c. 2 vol.
Footnote 43:
Traité de Médecine Légale et d’Hygiène Publique, ou de Police de
Santé, par _F. E. Foderé_, Docteur en Médecine.
Footnote 44:
Toxocologie Générale considérée, sous les Rapports de la Physiologie,
de la Pathologie, et de la Medicine Légale.
Footnote 45:
Leçons faisant Partie du Cours de Médecine Legale, de _M. Orfila_. A
Paris, 1821.
Footnote 46:
La Médecine Légale, relative a l’Art des Accouchemens, par _J.
Capuron_, Docteur en Médecine, &c. Paris, 1821.
Footnote 47:
“Elements of Medical Jurisprudence, or a succinct and compendious
description of such tokens in the human body as are requisite to
determine the judgment of a Coroner and Courts of Law, in cases of
Divorce, Rape, Murder, &c.; to which are added Directions for
preserving the Public Health; by _Samuel Farre_, M.D.” 12mo. p.p. 139.
Footnote 48:
“Elements of Juridical or Forensic Medicine; for the use of medical
men, coroners, and barristers,” by _George Edward Male_, M.D. Second
edition. London, 1818. The first edition of the above work was
published under the title of “Epitome,” in the earlier part of 1816.
Footnote 49:
See Vol. i. p. 125. _Note._
Footnote 50:
For a striking illustration of this truth we have only to refer the
reader to the facts detailed in the note at page 102, in the first
volume of the present work.
Footnote 51:
_Sir Thomas Browne_ was, upon this occasion, called upon by _Sir
Matthew Hale_ to give his judgment; upon which he declared, that “he
was clearly of opinion that the fits were natural, but heightened by
the devil, co-operating with the malice of the witches, at whose
instance he did the villainies,” and he added, “that in Denmark there
had been lately a great discovery of witches who used the very same
way of afflicting persons by conveying pins into them.” This relation
of _Sir Thomas Browne_, says the historian of the case, made that good
and great man, _Sir Matthew Hale_, doubtful; but he would not so much
as sum up the evidence, but left it to the jury with prayers that the
great God of Heaven would direct their hearts in that weighty matter.
The jury accordingly returned a verdict of guilty; and their execution
was amongst the latest instances of the kind that disgrace the English
annals.
Footnote 52:
Sweden is particularly distinguished for the accuracy of its bills of
mortality. Exact accounts have been taken of the births, marriages,
and burials, and of the numbers of both sexes that died at all ages in
every town and district; and also at the end of every period of five
years, of the numbers living at every age. At Stockholm a society was
established whose business it was to superintend and regulate the
enumeration, and to collect from the different parts of the kingdom
the registers, in order to digest them into tables of observation.
Footnote 53:
See a memoir in the first volume of the Royal Geological Society of
Cornwall, entitled “On the Accidents which occur in the Mines of
Cornwall, in consequence of the premature explosion of gunpowder in
blasting rocks, and on the methods to be adopted for preventing it, by
the introduction of safety bars, by _J. A. Paris_, M.D. &c.”
Footnote 54:
See the author’s Pharmacologia, edit. v. _Hist. Introd._ vol. i, p.
92.
Footnote 55:
Ibid. vol. ii, p. 830. art. _Papaveris Capsulæ_.
Footnote 56:
Ibid. vol i, p. 53, note.
Footnote 57:
See vol. i, p. 260, _note_.
Footnote 58:
The Introductory Lecture of a Course upon State Medicines London,
1821.
Footnote 59:
Chlorine—Eu-chlorine—Muriatic acid—Sulphurous acid—Nitrous
oxide—Carbonic acid—Sulphuretted hydrogen—Ammonia—Cyanogen.
Footnote 60:
See the plan proposed by the author, in the Journal of Science and the
Arts, no. xxviii, p. 436.
Footnote 61:
The reader must refer to our chapter “on the Physiological Causes of
Sudden Death,” p. 23; and to that “on Syncope,” p. 25.
Footnote 62:
The imposition of Urine-casting owed its origin to monastic practice,
where the inspection of the urine in the monastery obviated the
trouble of a personal communication with the patient.
Footnote 63:
In 1500, _Francis Anthony_ was charged with killing several persons by
a medicine, said to have been compounded of Gold and Mercury, which he
called his _Aurum Potabile_.—_Goodall, Pro_ 349.
Footnote 64:
See however on this subject a pamphlet published at Oxford in 1721,
occasioned by the case of the King _v._ the Bishop of Chester.
Footnote 65:
The exclusion of persons, not being graduates of an English
University, formed the subject of a royal letter, for which see
Appendix, page 92.
Footnote 66:
See Lord Kenyon’s judgment, 7 Term Rep. 288, and Appendix page 134.
Footnote 67:
_Henry_ himself appears to have added some study of Physic to his
other pursuits; among the _Sloane MSS._ in the British Museum there
are several receipts invented by the king in conjunction with Doctors
_Butt_ and _Chambers_; the familiarity of the former with _Henry_ is
shown by _Shakspeare_, _Hen. 8th_, _Act._ 4. _Scene_ 2.
Footnote 68:
_Chambre_ and _Linacre_ were in holy orders, a circumstance which has
been cited against the present bye-law of the College, that no priest
can be admitted; it must be remembered that it is the policy of the
present day to restrain the clerical encroachments, which constituted
a leading feature of the Papal usurpation; our Inns of Court observe
the same rule.
Footnote 69:
_Jo. Alph. Borellus_, in speaking of the pretensions of _Honoratus
Faber_ to this discovery, concludes _Omnes enim sciunt Harveium Anno
Dom 1628 Fancofurti typis Gual. Fitzeri suam exertationem primum
edidisse_; _scilicet decem annos antequam Fabri sanguinis
circulationem docuisset_. _See Goodall’s Proceedings of the College._
His work de _Generatione Animalium_, although eclipsed by his superior
discovery, must be considered as a valuable acquisition to the science
of Physiology; its luminous reasonings overturned the doctrine of
_Equivocal Generation_, that had been maintained in the schools since
the days of Aristotle, and established the universal principle “OMNIA
EX OVO.”
Footnote 70:
_Henry Marquis_, of Dorchester, who was admitted a Fellow in 1658,
left at his death in 1680, a collection of medical and other books to
the College which were valued at £4000.
Footnote 71:
This power has however been questioned; the words of the Act 25 _Hen._
8. are, “All manner of Licences, Dispensations, Faculties, &c. as
heretofore hath been used and accustomed to be had at the See of
Rome.” The term Degree does not occur in the act, yet in _The King v.
the Bishop of Chester_, a degree of Bachelor of Divinity granted by
the Archbishop was held a good qualification. 8 _Mod._ 364: _Strange_
797. This judgment was ably controverted in a pamphlet published at
Oxford in 1791; we may say with the author, “As to the Archbishop of
Canterbury I have no design to rob his See of any privileges belonging
to it. He may give as many titles, and bestow as many honours as the
POPE himself does, provided they are not admitted into the same rank
with those conferred by the favour of the Crown, and they do not
challenge any place in the construction of Charters and Acts of
Parliament.” See Serj. _Hill’s_ Law Pamphlets in fol vol. 1. in
Lincoln’s Inn, Lib. A recent Act of Parliament, 55th _Geo._ 3.
recognises only Physicians licenced by the College and by the
Universities of Oxford and Cambridge.
Footnote 72:
Such subsequent Charters would not however annul the original Letters
Patent. “A new Charter doth not merge or extinguish any of the ancient
privileges of the old Charter. And if an ancient corporation is
incorporated by a new name, yet their new body shall enjoy all the
privileges that the old corporation had.” _Raym._ 439: 4 _Rep._ 37.
For other points as to renewed or substituted Charters, see _The King
v. Amery and Monk_, by information in the nature of a _quo warranto_,
1 T.R. 575. _Newling against Francis_ (the election of Mayor of
Cambridge) 3 T. R. 189. _The King against Miller_, 6 T. R. 268. And
more particularly _Rex v. the Vice-Chancellor &c. of Cambridge_, 3
_Burr._ 1656. “A Corporation already existing are not obliged to
accept the new Charter in toto, and to receive either all or none of
it. They may act partly under it and partly under their old Charter or
Prescription. Whatever might be the notion in former times, it is now
most certain, that the Corporations of the Universities are
Lay-Corporations; and that the Crown cannot take away from them any
rights that have been formerly subsisting in them under old Charters
or prescriptive usage.”
Footnote 73:
An alien cannot now be a Fellow of the College, and there is good
reason for this, as he may have judicial authority when elected to
serve as Censor, &c.
By 9 _J._ 1. _c._ 5. _s._ 8. no Popish Recusant shall practice Law or
Physic, or exercise any public office, or the trade of an Apothecary;
but this Act is in part repealed by 31 _Geo._ 3. _c._ 32. There is
also a considerable distinction in law between a person who is merely
a Papist and one who is a Recusant.
Footnote 74:
It is true that the College has no means of punishing the disobedient
in the country, because the Statute is not supported by penalties; but
it must be remembered that the acting in defiance of a Statute is in
itself a misdemeanour. According to the opinion of Chief Justice
_Mansfield_, a Doctor’s Diploma does not itself entitle the possessor
to practise in the country parts (provinces) of England. He must be an
Extra-Licentiate of the Royal College of Physicians, or Medical
Graduate of an English University. The provincial physician, unless
thus protected, is placed under very humiliating circumstances; he is
only a doctor by _courtesy_, and therefore cannot claim rank, or
defend himself in courts of law. In a cause tried at Stafford before
Judge _Mansfield_, a physician who had graduated in Scotland, having
been grossly abused in his professional capacity, sued for redress,
but could obtain none, because he had not complied with the act of
_Henry_ the 8th. _Middleton v. Hughes. See Harrison’s Address._ 62.
Footnote 75:
To this Act it has been objected that it wants the Royal confirmation,
and it was suggested that Cardinal Wolsey for a sum of money,
interpolated this among other Acts without the King’s assent. The
story, sufficiently improbable in itself, rests on no evidence, and
the plea founded on it was overuled by C. Justice _Pemberton_, 2
_Show_ 166. _See also College of Physicians against Huybert. Goodall’s
Collect._ 267, where the circumstances are more fully related.
Footnote 76:
This fine is raised to ten pounds by _Stat._ 1 _Mary_, _Ses._ 2. _c._
9. § 5.
Footnote 77:
Such as “Women’s breasts being sore; a Pin and Web in the Eye;
Uncombes of Hands; Burns; Scaldings; sore Mouths; the Stone;
Strangury; Saucelim; and Morphew, and such other like diseases.”
The pin and web in the eye is alluded to by Shakespeare in Lear, Act
iii. Sc. iv. “_he gives the web and the pin_,” and again, “_wishing
all eyes blind with the pin and web_,” Winter’s Tale, Act. i. Sc. ii.
With respect to the precise meaning of this expression some doubts
have arisen. Hanmer says _the pin_ is a horny induration of the
membranes of the eye. Skinner seems likewise to say the same, but Dr.
Johnson thinks that it is an inflammation, which causes a pain like
that of a pointed body piercing the eye: _Web_ in the eye, is defined
by Johnson “a kind of dusky film that hinders the sight.” _Uncombes of
Hands_ is an expression still used in the North for _Whitlows_.
_Morphew_ signifies a cutaneous eruption in the face, _Saucclim_?
Footnote 78:
See _Cro. Car._ 257.
Footnote 79:
Such penalty has been recovered from the warden of the Fleet.
_Goodall’s Pro._ 421.
Footnote 80:
By Statute 10 Geo. 1. c. 20, the College was empowered to examine
drugs within seven miles circuit, as well as within the City of
London, to which the wording, though probably not the intention, of
former acts had confined them; but this Statute, though continued by
13 G. 1. c. 27, has now expired; we shall in another place suggest the
policy of reviving and extending its enactments.
Footnote 81:
The punishment of dissection is now added by Act of Parliament to the
execution for murder only, but this does not exclude the right of the
Crown to the disposal of the bodies of all executed traitors and
felons. The words of the grant of Elizabeth, are “_quod jure publico
hujus regni furti homioidii vel cujuscumque feloniæ condamnatum et
mortuum fuerit_.” Charter 7 Eliz. Goodall’s Collection, p. 35.
Footnote 82:
For the power of Corporations to make reasonable Bye Laws, See _Kyd_
on Corporations; how far they may bind Strangers. ib. 103. _Cowper_,
269; they must not be in diminution of the King’s prerogative, or to
restrain suits in the King’s Courts; 19 _Hen._ 7. c. 7. nor to extend
to imprisonment or forfeiture of goods. Magna Charta. 2 _Inst._ 47,
54. _Kyd_, 156. But see also 5 _Mod._ 320; but they may inflict a
penalty to be recovered by action or distress; 5 _Co._ 64. _Kyd_, 156.
And this power to make Bye Laws, is incident to all Corporations,
though it be not given by any special clause. _Co. Lit._ 264. _Ld.
Hob._ 211. _Carth_ 482. 3 _Leon_ 39. A bye-law, giving a casting vote
to the senior, if the charter requires a majority, is bad. _King v.
Ginever._ 6 T. R. 732. As to the other points, respecting elections,
see _the King against the Mayor of Durham_, in Lord _Kenyon’s
Reports_, by _Hanmer_, _p._ 112. And generally, 1 T R 118: 2 T R 2: 6
T R 732, 736: 7 T R 543: 8 T R 356: 1 _H. Blackstone_ 370: 12 _East_
22: 3 _East._ 186: 3 _Bos and Pull_ 434. A bye law must be reasonable,
if not it is bad, 1 _Salk_ 143: 11 _Co. R._ 53: _Moore_ 412, 576: _Ld.
Kenyon by Hanm._ 500. As to the mode of making bye Laws _Ld. Raym._
496: 2 _P Wms._ 209: _Comb._ 269: 1 _Str._ 385, we have been
particular in citing authorities on this subject, as it is a continual
source of litigation with all Corporations: as respects the College of
Physicians, we shall have occasion in another place to refer more
particularly to the case of _the King_, (at the instance of Dr.
_Stanger_) _against the Coll. of Phys._ T. R. 282, in which this power
was very ably argued and determined.
Footnote 83:
The name of Thomas Bonham also occurs about the same period among the
signatures of several Surgeons. See Goodall.
Footnote 84:
A degree in either of the Universities is a good addition in pleading
within the Statute of Additions. 1 _Hen._ 5. _c._ 5. See 2 _Inst._
668. 1 _Bl. Com._ 405.
Footnote 85:
This forbidding is not absolutely necessary, but _ex abundanti
cautela_ is expedient.
Footnote 86:
This custom of amercing for unlicenced practice appears to have been
very commonly adopted by the College: (see Goodall’s Proceedings,) it
was undoubtedly erroneous, but as it was less expensive to the parties
so fined than a suit for five pounds a month, according to the
Statute, of which the defendant must have paid the costs, it was very
generally acquiesced in till 1622, when the above trial took place.
Footnote 87:
And this has been determined by subsequent authorities, that the
exception of Graduates of the two Universities of Oxford and
Cambridge, in the concluding clause, applies to persons practising in
all England, except the privileged district of the City of London, and
seven miles circuit, which is in the peculiar and exclusive
jurisdiction of the College of Physicians, in which no person
whatsoever may practise under any pretence whatsoever except by their
licence. See _Coll. v. West._ 10 _Mod._ _p._ 353.
Footnote 88:
For the power of punishment for Mala Praxis, Vide Post.
Footnote 89:
The King is _Creditor Penæ_, and therefore all fines for offences
belong to him. _Viner. tit_ action _Qui Tam_ (A) 10. The fines are
however granted to the College by the Charter of _James_. Vide Supra.
Footnote 90:
But contra, see the opinion of Chief Justice _Holt_.
Footnote 91:
This must be strictly laid in the declaration, for in the case of the
College against Bush, 4 Mod. 47, an exception was taken to the
Declaration, “that the defendant practised Physic in Westminster,”
without stating that Westminster is within seven miles, &c. and the
defendant had judgment. See also 12 Mod. 10.
Footnote 92:
For the same case see also Brownlow, part 2. Merrett’s Collec. p. 79.
Footnote 93:
See same case, 5 _Mod._ 327: 2 _Salk._ 451, and cases there cited.
Footnote 94:
See also _the King and the President and College of Physicians against
Marchmont Neadham_. _Trin. Ter._ 28 _Car._ 2. B. R. _Goodalls Pro._
273. _Coll. of Phys. v. Bugge_, 15 _Car._ 1. _Scacc. Mag. Rot._ 23,
_Car._ 1; _Goodall_ 259. _Coll. v Bourne_, 24 _Car._ 2: _Coll. v
Harder_: _Coll. v Merry_: _Coll. v Stone_, 35 _Car._ 2: _Goodall_ 275.
_Coll. v Levett_, 1 _Ld. Raym._ 472: _v Salmon, ib._ 680: _v Talbois.
ib._ 153: _v West. ib._ 472: _Coll. v Tenant. Jones_ 262. _Dr. Trigg v
the Coll. Stiles Rep._ 329.
Footnote 95:
Doctor Butler was defendant, though first mentioned in this Report,
the decision being in the King’s Bench, on error of a judgment in the
Common Pleas for the original cause. _Coll. of Phys. v Butler_, See
_Sir W. Jones, Rep._ 261: _Littl. R._ 168, 212, 244, 349.
Footnote 96:
The letter of _John Seale_, which induced the College to bring this
action, was as follows. “_May_ the _5th_, 1704. These are to certify,
that _I, John Seale_, being sick and applying myself to this _Mr.
Rose_ the Apothecary for his directions and medicines, in order for my
cure; had his advice and medicines from him a year together: But was
so far from being the better for them that I was in a worse condition
than when he first undertook me; and after a very expensive bill of
near £50. was forced to apply myself to the Dispensary at the College
of Physicians where I received my cure in about six weeks time, for
under forty shillings charge in medicines.” _See a Pamphlet published
on this case, London 1704, and other works mentioned in Gough’s
Topography._
Footnote 97:
It does not appear to have been made out in evidence that the constant
use and practice had been with the Apothecary, on the contrary, they
did not commence practice (except indeed the occasional sale of some
simple lozenge or electuary which was never objected to) till after
the great fire, when the known residences of the Physicians having
been destroyed, their patients were unable to find them, and
consequently resorted to the Apothecaries, whose open shops were a
sufficient guide to those who needed medical assistance. It is
probable also that some laxity arose during the preceding years in
which the Plague raged in London, for in times of emergency it would
be unreasonable to insist on restrictions which it might be impossible
and inhuman to enforce. (_Merett’s Short view of Frauds & Abuses,
A.D._ 1699).
Footnote 98:
The trial having taken place in the reign of Queen Anne we should have
written Queen’s Bench, but the title of the Court in common use is
perhaps best adapted to general comprehension.
Footnote 99:
It has been solemnly resolved, that _Mala Praxis_ is a great
misdemeanor and offence at common law. 3 _Bl. Com._ 122: 1 Lord
_Raym._ 214.; an act of grace will include _Mala Praxis_; for the
remedy of the injured party by Action on the Case, _vide post_.
Footnote 100:
See also 1 Lord _Raym_ 454. same Case: _Carth_ 421. 491: _Salk_ 144.
200. 263.
Footnote 101:
But query, as this protecting section has expired, are Patent
Medicines now exempted from the examination of the Censors?
Footnote 102:
Modes of election, unless specially pointed out by Statute or Charter,
must depend on Bye-laws and usage. See _the King and the
Vice-Chancellor of Cambridge_, _ubi supra_, and many other cases of
Corporations. The Power of amotion or expulsion is also incident to
most Corporate Bodies. See _Rex_ v. _the Mayor, Burgesses and Common
Council of Liverpool_, 2 _Burr. R._ 724: _Rex_ v. _Richardson_, 1
_Burr. R._ 517. We do not find that the College has ever been
compelled to execute this painful duty.
Footnote 103:
We adopt the apology of the learned reporter both in words and
substance; for we are well aware that many of our readers must be
heartily tired of this long detail of litigations, which, as we hope,
are not again to be required as precedents; yet we have deemed it
necessary to give this account of the powers and privileges of those
Corporate Bodies, to whom we must at least look for the elucidation of
the medical branches of jurisprudence, and from whom we might expect
the best execution of the laws respecting the public health, should
they ever be in this, as they have been in most other countries,
reduced to a regular system of Medical Police.
Footnote 104:
It is said that the College have determined not to interfere for the
future with the licensing of Midwives; the policy of this resolution
is very questionable, for the examination and licensing of persons in
all branches of medicine is a public duty imposed upon them, which
they are not at liberty to abandon or execute at their pleasure. It
may be urged that this branch is rather Surgery than Physic; but as
the College have once assumed the jurisdiction, it is doubtful whether
they ought to relinquish it. The Surgeons might also disavow their
obstetric brethren, and then the matter must revert, as of old, to the
Bishops, who cannot be supposed to be the most competent judges of the
necessary qualifications. Archbishop _Abbot_, a very conscientious
divine, on a somewhat similar occasion, said “he knew not well how
children were made,” and begged time to inform himself on the subject.
Footnote 105:
A writ of certiorari will also be granted on occasion directed to the
College. 2 _Hawk._ 406.
Footnote 106:
The unprofessional reader will infer from the rank of the Counsel the
importance which was attached to the case; and from their proved
ability, that its merits were fully before the Court.
Footnote 107:
For which, at greater length, as also for the arguments of the other
Judges, see 4 _Burr._ 2195.
Footnote 108:
A Fellowship is not in itself an office. _Carth._ 478.
Footnote 109:
Query of the Pope and Archbishop of Canterbury _inter alia_? _Vide
ante._
Footnote 110:
And in midwifery it is desirable that the practice may be revived.
Footnote 111:
A limited license had been granted to one _Shepheard_ to practise upon
Madmen, but with a proviso that a physician should also be called.
Being summoned to answer a breach of this limitation, he appeared and
submitted to the College censure. _Goodall_ 466.
Footnote 112:
This prophesy, like many others, was the cause of its own fulfilment,
as will be seen in the sequel. Lord _Kenyon_ in Doctor _Stanger’s_
case took occasion to lament that it had been made.
Footnote 113:
At the conclusion of all these arguments Lord _Mansfield_ was at great
pains to impress upon the College the propriety of enlarging their
rules for admission; some alterations consequently were made; but it
is more than doubtful whether they have yet satisfied the views of
those who would have placed all the colleges of the empire on the same
footing as the universities of Oxford and Cambridge, in respect of
their prior claims to the honours of the College of Physicians.
Footnote 114:
For some controversial observations on this case see Doctor _Wells’_
letter to Lord _Kenyon_ in his published works.
Footnote 115:
This class was very properly introduced to place the bachelors of
Oxford and Cambridge on an equal footing, in certain respects, with
the doctors of foreign universities. At Edinburgh a doctor’s degree
may be attained in three years, while in England the bachelor’s degree
requires five, and the Doctor’s twelve years standing.
We have purposely avoided any discussion on the subject of the
Pharmacopœias which have from time to time been published by the
authority of the College; the propriety of forming one standard for
medical preparations cannot be doubted, and it is equally indisputable
that the College have, both by Charter and acts of Parliament, full
power to enforce their regulations; in order to give greater publicity
to which, His late Majesty in Council was pleased to issue a Royal
Proclamation (for which see Appendix) commanding all persons to
observe and obey the directions contained in the _Pharmacopœia
Londinensis_ of 1819. Technical objections from time to time have been
raised against some of the directions of this work; as it would not
fall within our limits or intention to canvass these questions, we
shall content ourselves for the present with hinting that an extension
rather than a diminution of this power is to be wished, and that the
three kingdoms should be united in one general form of medical
practice.
Footnote 116:
_Vide Post._ p. 72.
Footnote 117:
The Statute of 32nd _Hen._ 8. _c._ 42. continues in force as to the
Barbers, notwithstanding that of 18 _Geo._ 2. _c._ 15. which separates
them from the Surgeons. See _Sharpe qui tam agst. Law_ 4. _Burr._
2133.
Footnote 118:
This prohibition under the Letters Patent could have no force till
confirmed by Act of Parliament.
Footnote 119:
The munificence of Parliament has been displayed towards this
Corporation in the purchase and grant of the Hunterian Collection at
the price of £15,000; and in the vote of £25,000 more towards the
building of the College and Museum in Lincoln’s-inn-fields.
Footnote 120:
The reader will find much curious and learned research upon the origin
and history of Apothecaries, in _Beckmann’s History of Inventions_,
_vol._ 2. p. 127.
The word _Apothecary_ originally signified any proprietor, or keeper
of store, magazine, or warehouse, (απο τίθημι, _to put off_.) See
_Glossarium Manuale_, _vol._ 1. p. 298. From the word _Apotheca_, the
Italians have made _Boteca_, and the French _Boutique_. It would
therefore be a great error to consider the term _Apothecarius_, as it
is met with in the writings of the thirteenth and fourteenth
centuries, as denoting a character similar to the Apothecary of the
present day. As we learn from the writings of Hippocrates,
Theophrastus, Galen, and other authors, that the Greek and Roman
Physicians prepared their own medicines, it is evident that in those
times the office of the Apothecary was quite unnecessary; the
medicinal herbs were purchased of dealers, who after a time very
naturally professed a knowledge of the medical properties of the
articles which they sold, and accordingly began to deal in compound
remedies, and to boast of various nostrums; such were the PIGMENTARII,
SEPLASIARII, PHARMACOPOLÆ, and MEDICAMENTARII, of whom we read in
ancient authors. That the Pigmentarii dealt in medicines is proved by
the law which established a punishment for such as sold poison, to any
person, through mistake, viz. “_Alio Senatus consulto effectum est, ut
PIGMENTARII, si cui temere Cicutam, Salamandram, Aconitum —— —— —— et
id quod lustramenti causa dederint Cantharidas pœna teneantur hujus
legis._” Digest. Lib. xlviii. Tit. 8.33. These Seplasiarii appear to
have latterly assumed the office of Apothecary, for Pliny (Lib. xxxiv.
c. 11.) reproaches the Physicians for not making up their own
medicines instead of trusting to these persons. That the PHARMACOPOLÆ
carried on the same trade appears evident from their name; but no one
seems to have placed any confidence in them; on the contrary, they
were despised for their impudent boasting, and the extravagant praise
which they bestowed upon their commodities. Μειμειταὶ που καὶ
φαρμακοπωλης ἰατρον. “_Pharmacopola imitatur Medicum, Sophista
Philosophum, Sycophanta Oratorem._” (_Maximus Tyrius, Dissert. x._ p.
121.) and again, “_Itaque auditis, non auscultatis, tanquam
Pharmacopolam; nam ejus verba audiuntur, verum ei se nemo committit,
si æger est._” (_Cato in Aulum Gellium_, _Lib._ 1. _c._ 15.) From
these words it appears that the _Pharmacopolæ_, even in those days,
attempted to practise Physic. Dr. Mohsen, quoting from Anderson
(_Geschichte des Handels_ ii. p. 365.) says, that king Edward III. in
the year 1345, gave a pension of Sixpence per diem, to one Coursus de
Gangeland, an Apothecary in London, _for taking care of, and attending
his Majesty, during his illness in Scotland_, and this is the first
mention of an Apothecary in the Fœdera. The first legal establishment,
however, of such a class as Apothecaries, may be dated from the well
known Medicine Edict (see _Lindenbrogii Codex Legum Antiquarum_.
_Francof._ 1613. _Fol._ p. 809.) of the Emperor Frederic II, issued
for the kingdom of Naples, by which it is required that the
CONFECTIONARII should take an oath to keep by them fresh and
sufficient drugs, and to make up medicines according to the
prescriptions of the Physicians.
Footnote 121:
This Charter is stated in the preamble of the 55th _Geo_ 3, c. 194, to
have been in the 15th of _James_.
Footnote 122:
As are also 114 persons who were the first members.
Footnote 123:
See _Goodall_, 439. 466.
Footnote 124:
This proviso was not necessary, for the Charter could in no way alter
the authority given by an Act of Parliament.
Certain Apothecaries, and with some reason, object to this power; for
as the Apothecaries Company have erected an extensive establishment
for the sale and preparation of drugs and medicines, the private
Apothecaries deem it unjust, that their competitors in Trade should be
made the judges of the quality of the very articles in which both
deal; the public, on the contrary, derive considerable benefit from
the circumstance, as the lynx-eyed jealousy of rivals is added to
other inducements of the public body to do its duty, and of the
private individuals to expose their errors if they deviate from it:
under such circumstances however the Society of Apothecaries ought not
to have an absolute power of condemnation; an appeal should be allowed
to the Censors of the College of Physicians, or some other authority
competent to the decision of such cases.
Footnote 125:
The words, or party agrieved, might have been properly inserted: as
the act stands the patient has no remedy, if the Physician refuse to
complain.
Footnote 126:
The latitude of the conclusion as to renewal of certificates, in some
degree cures and compensates the otherwise extreme severity of this
clause, yet the jurisdiction might have been better given than to any
Justice of the Peace; how such Magistrate, ignorant of medicine or
chemistry, is to judge of the improper mixing or compounding of
medicines, we do not pretend to anticipate, still less how he is to
determine what shall be taken as a satisfactory reason, excuse, or
justification. The most probable offence, to be committed in the
country against this clause, will be, by substitution of cheap for
expensive drugs; this is a very ordinary mal-practice which ought to
be checked, but if the apothecary have not the expensive drug by some
excusable accident, and then substitute another of equal efficacy, he
would be held excusable in a case of emergency, by any medical
authority competent to judge of the merits of the case; this an
ordinary Justice of the Peace evidently cannot be.
Footnote 127:
Quakers to affirm.
Footnote 128:
Query whether the better policy would not have been, to have subjected
_all_ persons to examination; a lad may be very stupid and dangerously
ignorant even after five years practice in a remote village.
Footnote 129:
These five should also have had the power of searching drugs, &c.
under certain restriction, as calling to their assistance one member
at least of the College of Physicians, or any Licentiate or regular
Graduate being a justice of the peace. It is in the country that the
worst drugs, &c. are most likely to be found.
Footnote 130:
An appeal to the President and Censors of the College of Physicians
might have been a salutary check on this power of rejection.
Footnote 131:
We do not understand the policy of the exemption: it is surely as
necessary to defend the public from unwholesome drugs, &c. whether
sold by wholesale or retail, whether bought of a chemist or an
apothecary. The censors of the college of physicians may search
chemists and druggists wares in London, but as they have no power in
the country, this point requires future consideration; for as
prescriptions are now very generally prepared by persons who are
nominally chemists, though in fact they exercise the ancient business
of apothecaries, the public are as deeply interested in the goodness
of the drugs kept by the one as by the other.
Footnote 132:
“Memoirs historical and illustrative of the botanic garden at Chelsea,
belonging to the Society of Apothecaries of London.”—London, 1820.
This memoir was printed at the expense of the society, for
distribution amongst its members.
Footnote 133:
The most important covenants contained in this conveyance, are the
following, viz.
The release is dated on the 20th of February, 1721, and is made
between the Honorable Sir Hans Sloane Baronet, President of the Royal
College of Physicians, on the one part, and the Master, Wardens and
Society of the art and mystery of Apothecaries of the City of London,
on the other part. It recites the original lease from Lord Cheyne, and
also the great expense which the society had incurred, in furnishing
and carrying on the garden, as a physic garden, ever since that lease
was granted. It states, that the fee and inheritance of the ground and
premises were then vested in Sir Hans Sloane and his heirs. It further
declares, that to the end the said garden may at all times hereafter
be continued as a physic garden, and for the better encouraging and
enabling the said Society to support the charge thereof, for the
manifestation of the power, wisdom, and glory of God in the works of
the creation, and that their apprentices and others may better
distinguish good and useful plants, from those that bear resemblance
to them, yet are hurtful, and other the like good purposes; the said
Sir Hans Sloane, grants, releases and confirms unto the said Master,
Wardens and Society, and their successors, all that piece or parcel of
arable and pasture ground, situate at Chelsea in the County of
Middlesex, at that time in their possession, containing three acres,
one rood, and thirty-five perches, with the green-house, stores,
barge-houses, and other erections thereon, to have and to hold the
same for ever, paying to Sir Hans Sloane, his heirs and assigns, the
yearly rent of £5, and rendering yearly to the President, Council and
Fellows of the Royal Society of London, fifty specimens of distinct
plants, well dried and preserved, which grew in their garden the same
year, with their names or reputed names; and those presented in each
year to be specifically different from every former year, until the
number of two thousand shall have been delivered.[134] It is further
provided, that if these conditions be not fulfilled, or if the society
shall at any time convert the garden into buildings for habitations,
or to any other uses, save such as are necessary for a physic garden,
for the culture, planting and preserving of trees, plants and flowers,
and such like purposes; then it shall be lawful for Sir Hans Sloane,
his heirs and assigns, to enter upon the premises, and to hold the
same for the use and benefit, and in trust for the said President,
Council, and Fellows of the Royal Society, subject to the same rent,
and to the delivery of specimens of plants, as above mentioned to the
President of the College, or Commonalty or Faculty of Physic in
London; and in case the Royal Society shall refuse to comply with
these conditions, then in trust for the President and College of
Physicians of London, subject to the same conditions as the Society of
Apothecaries were originally charged with.
Power is also reserved for the President, or Vice President of the
Royal College of Physicians, once or oftener in every year, to visit
the said garden, and examine if the conditions above specified are
duly observed and complied with.
Footnote 134:
This condition has been long since fulfilled. By an extract from the
minutes of the Royal Society, it would appear that the last
presentation of Plants took place on the 17th of February, 1774, being
the 51st annual presentation, amounting in all to 2550 plants.
Footnote 135:
If however a gentleman of quality, or a physician, officer, &c. be
chosen constable, where there are sufficient persons beside, and no
special custom concerning it; it is said such person may be relieved
in B. R. 2 _Hawk. P. C._ 100. _Jac. L. Dict. tit._ Constable. As to
Surgeons see _The King v. Pond. Comyns R._ 312: 2 _Kebl._ 578. 1
_Syd._ 431: 1 _Mod._ 22.
Footnote 136:
But a Physician in the country, though a Fellow of the College, may be
chosen, 2 _Keb._ 578; 1 _Mod._, 22.; 1 _Keb._ 439; 2 _Hawk._ 100; 1
_Sid._ 431; 2 _Keb._ 578; 2 _Hale_ 100; _Com. Dig. tit._ Physician.
For Surgeons see 18 _Geo._ 2. _c._ 15. §. 10; 2 _Hawk. Pl._ 101; 5
_Hen._ 8. _c._ 6; 1 _Burn._ 387. For Apothecaries 6 _Will._ 3. _c._ 4;
9 _Geo._ 1. _c._ 8. §. 1. See also the Charters. _Comyns_ Rep. 312.
Footnote 137:
In one point counsel have an advantage over physicians in respect of
their fees; the attorney or solicitor who can recover his costs at
law, is an intermediate agent and he is held professionally liable to
the counsel for their payment; and if the attorney have received his
costs from his client (including fees) it would appear that the
counsel might recover in an action for money had and received to his
use. It is to the honor of the profession that we should find no
decided case on the subject.
Footnote 138:
A barrister cannot maintain an action for his fees. Chan. Rep. 38.
Footnote 139:
3 Bl. Com. 28. Taciti An. 1. 11.
Footnote 140:
See _Law_ v. _Hodgson_, 2 _Camp._ 147. _Johnson and others_ v.
_Hudson_, 11 _East_ 180, and cases cited there. The unprofessional
reader must observe that there is considerable difference between the
authority of cases determined at _Nisi Prius_, which are decided by a
single Judge, and those argued in banco, which are resolved by all the
four Justices of that Court in which the action may have been brought.
Footnote 141:
So also if a Farrier kills a horse or pricks him in shoeing; or if he
refuse to shoe him whereby he is lamed, _Bull. N. P._ 73, and of
trades generally, as, action against a Barber for barbing the
plaintiff, _negligenter et inartificialiter_. 2 _Bulst._ 333; I _Danv.
Ab._ 177; see also 2 _Bl. Com._ 163.
Footnote 142:
This case is recent, but we believe not reported. The plaintiff was a
respectable artisan, and had been employed as engineer and
brass-founder in a large manufactory in the city, and by his industry
was enabled to earn about four guineas per week; the plaintiff’s right
arm was dislocated by a fall from a gig. Mr. _Pettigrew_, the
defendant, was sent for, but being unable to attend from illness, his
assistant undertook the case, but conducted it so unskilfully, that
the plaintiff lost the use of his arm—DAMAGES £800.
Footnote 143:
For other provisions see the act itself. See also two reports from the
Select Committee of the House of Commons, on the state of disease and
condition of the labouring poor in Ireland. May 17 and June 7, 1819.
Footnote 144:
There is among the _Sloane_ manuscripts in the British Museum, a
complaint or remonstrance that the buildings had been appropriated to
other purposes than those intended by their pious and benevolent
founder.
Footnote 145:
For the regulations in the time of the Plague during the reign of
_Elizabeth_, see 2 _Stowe b._ 5. _p._ 450.
Footnote 146:
The case of the _King v. Taunton_, in the King’s Bench, was to this
effect. Mr. _Taunton_ vaccinated his own children, was one of the
first subscribers to the London Vaccine Institution, and has been
constantly on the Board of Managers of that charity. At the same time
he felt it his duty to inoculate such for the Smallpox, who through
prejudice, or otherwise, refused vaccination. Many of the poor who
applied for gratuitous advice, applied also for inoculation for the
Cowpox, and some for the Smallpox.
On the 19th June, Mr. _Taunton_ was arrested on the Lord Chief
Justice’s warrant. He gave bail, and directed his attorneys to defend
the cause, which was to have been tried on Friday, December 8th, in
the Court of King’s Bench, where Mr. _Taunton_ attended with his
witnesses. Sir _William Garrow_, the Attorney General, and counsel for
the plaintiff, stated to the Court, that he should not proceed in the
present case, as he learnt that the defendant had given notice, with
every inoculation, not to expose their children while the disease was
out.
“God forbid,” said he, “that those who have the Smallpox should not be
attended in their own houses by any person they choose; but they must
not be carried about the street to the destruction of others.”
Mr. _Justice Bayley_.—“I hope it is sufficiently notorious, that the
causing persons to pass through the streets, who may have that
disorder upon them, although they are going for medical advice to some
person in whom they may have confidence, is an indictable offence; and
if that person, instead of attending them at their own houses, as he
might do, chooses to direct that they shall, from time to time, be
brought, or come to him, there is no question that he is liable to an
indictment.”
Mr. _Attorney General_.—“The few sentences that your lordship has
pronounced now, are of the last importance to the community.”
Mr. _Justice Bayley_.—“Mr. _Taunton_ should intimate that he is ready
to attend those persons at their own houses.”
Mr. _Pollock_.—“I understand that is part of the notice, that he is
willing to attend such patients at their own houses.”
Footnote 147:
The rise, progress, decline, and cessation, of particular diseases,
forms a curious and useful study to the medical jurist: since the laws
and habits of mankind will thereby be found to possess more
considerable influence on the health and physical strength of a
people, than is generally supposed. See _Observations on the Increase
and Decrease of different Diseases, by W. Heberden, jun. M.D. F.R.S.
London_ 1801. The gradual decline of the Dysentery in this country is
a remarkable proof of the benefits which have ensued from our
improvements with respect to diet, cleanliness, and ventilation.
The long list of chronic diseases with which our nosology abounds is
totally unknown to barbarous nations, and seem to be the natural
consequences of arts and civilization; as these again shoot up into
luxury and intemperance, their effects may well be expected to become
proportionally more conspicuous. Dr. _Rush_ of Philadelphia has
reported, with respect to the uncultivated nations of North America,
that Fevers, Inflammations, and Dysenteries make up the sum of their
complaints, and he remarks, in particular, that after much inquiry, he
had not been able to find a single instance of madness, melancholy, or
fatuity among them. (_Medical Enquiries and Observations by B. M.
Rush, vol. 1. p. 25._) In a subsequent part of his work, the same
author, speaking of the pulmonary consumption, declares it to be
unknown among the Indians of North America (_vol. 1. p. 159_). Mr.
_Park_, in his account of the interior of Africa, says, that
notwithstanding longevity is uncommon among the Negroes, their
diseases appear to be but few; fever and fluxes being the most common,
and the most fatal.
Footnote 148:
The curious reader will not be at a loss to trace the ancient
patronage and jurisdiction of the Bishop of Winchester; suppressed
among other ecclesiastical establishments, by _Henry_ the 8th.
Footnote 149:
_See part 3._ No sufficient provision is yet made for the speedy
removal of prisoners from infected jails; the case hereafter quoted
shows that the Crown has an authority on this subject.
Footnote 150:
During the progress of this work we have seen a fatal instance of a
child sacrificed to the dirty and penurious system of one of the
_very_ cheap schools of the north of England. The author was called in
to his assistance on the child’s arrival in town, but he expired a few
hours afterwards.
Footnote 151:
Case of the Salt Duties with proofs and illustrations, by _Sir Thomas
Bernard_, Bart. London, 1817.
Footnote 152:
In examining the history of Burial in remote ages, we shall find that
both among the Jews and Heathens, _the place of interment was usually
without the city_. Such was the case with the Athenians, the
Smyrnæans, the Sicyonians, the Corinthians, and the Syracusans. The
examples of _Numa_ and _Servius Tullus_ prove, that the Romans
deposited their dead _without_ the city before the introduction of the
twelve tables, which prohibited _burning_ as well as _burial_ within
its precincts. The _Lacedæmonians_ afford an exception to this general
custom; it had been a notion universally prevalent, that the touch of
a dead body conveyed pollution; and _Lycurgus_, the legislator of
Sparta, being anxious to remove the prejudice, introduced the custom
of burial within the city. Among the primitive Christians, burying in
cities and churches was not allowed for several centuries, and
_Theodosius_, after the triumph and establishment of Christianity,
renewed the prohibition upon the old and reasonable ground that graves
_within_ the city were detrimental to the health of the living, and it
was ordered that any person who should disobey this law was to forfeit
the third part of his patrimony; and that the undertaker who directed
a funeral contrary to the prohibition was to be fined forty pounds in
gold. The learned _Bingham_, in his _Antiquities of the Church_, has
traced the gradual introduction the odious custom of burying in
churches. It was from the idea of the protection which would be
afforded by consecrated ground, baptized bells, and relics, that
bodies were first interred in the vicinity of the church: to this
superstition we may ascribe the origin of church-yards, which took
place in the eighth century. The reason alleged by _Gregory_ the Great
for burying in churches, or in places adjoining to them, was that
their relations and friends, remembering those whose sepulchres they
beheld, might thereby be led to offer up prayers for them; and this
reason was afterwards transferred into the body of the canon law. The
practice thus introduced into the Romish church by _Gregory_, was
brought over here by _Cuthbert_, Archbishop of Canterbury, about the
year 750: and the practice of erecting vaults in chancels and under
the altars was begun by _Lanfranc_, Archbishop of Canterbury, when he
had rebuilt the cathedral about 1075. Since this period many
enactments have been made in different countries to abolish so foul a
custom.
Footnote 153:
It is notorious that there are many church-yards in which the soil has
been raised several feet above the level of the adjoining street, by
the accumulated remains of mortality; and there are others, in which
the ground is actually probed with a borer before a grave is opened.
The Commissioners for the improvements in Westminster, reported to
Parliament in 1814, that St. Margaret’s church-yard could not
consistently with the health of the neighbourhood be used much longer
as a burial ground, “_for that it was with the greatest difficulty a
vacant place could at any time be found for strangers; that the family
graves generally would not admit of more than one interment, and that
many of them were then too full for the reception of any member of the
family to which they belonged_.”
Many examples might be adduced of overloaded church-yards and burial
grounds, which have become if not serious nuisances to the health of
their neighbourhood, at least highly offensive to comfort and decency.
There is one instance in our sister kingdom so flagrant, that we
cannot omit noticing it, in the hope that attention may be drawn to
this and similar inconveniencies. There is a burial ground at the back
of Kilmainham hospital (and consequently under the immediate view of
the Commander and Adjutant-General of the Forces), so disproportioned
to the number interred in it, that the older coffins are frequently
broken and the undecomposed limbs constantly thrown on the surface, to
make room for new tenants of this human soil; yet after heavy showers,
the earth being washed away, the lids of coffins may be plainly
discerned, so slight is the covering which can be afforded them.
Immediately below the rising ground on which this cemetery is situated
are the Island Bridge Barracks for the Artillery, the wells of which
must of necessity be filled with the filtrations from the putrid mass
above them. One at least of the principal Tanks at Gibraltar was
similarly situated. The present Lieutenant Governor, Sir George _Don_,
among the numerous improvements in the regulation of cleanliness and
ventilation which he has introduced on the rock, has converted the
burial ground into a public garden; to this, among his other measures,
the garrison may owe some future exemptions from the diseases which
have so often afflicted them.
Footnote 154:
We learn from _Cicero_ (_De Leg._ ii. 22), that of the various modes
of disposing of the dead body, _inhumation_ was the most ancient:
_burning_ and inclosing the remains in urns, were perhaps never found
expedient until national animosities had given rise to inhuman
treatment of the dead. The Egyptians, as they held it unlawful to
expose the bodies of the dead to animals, embalmed them, lest after
interment they might become the prey of worms (_Herod. Thalia_, xvi.);
and their mummies remain to this day a lasting satire upon that folly
which “contends against corruption, and will not allow the grave its
victory.” The custom of _burning_ the dead is of higher antiquity than
we may have at first been led to suppose; _Saul_ was burnt at Jabesh,
and his bones afterwards buried; and _Asa_ was burnt in the bed which
he had made for himself, filled with sweet odours, and divers kinds of
spices: but this custom must of necessity have been limited by the
quantity of fuel required for the purpose. It may be worthy notice,
that according to Mr. _Ward_, the Missionary, who had opportunities of
ascertaining the fact in India, the smallest quantity of wood which is
sufficient to consume a human body is about three hundred weight.
Footnote 155:
_Tractatus de Peste, Lib._ i. _cap._ viii. _p._ 41.
Footnote 156:
_An Essay on the Disease called_ YELLOW FEVER. London 1811.
Footnote 157:
In less than 30 years, more than 90,000 corpses had been deposited
here by the last grave digger!
Footnote 158:
See _Mémoires de la Société Royale de Médecine, tom_ viii _p._ 242;
also _Annales de Chimie_, tom v p. 158.
Footnote 159:
_Journal de Physique_, 1791 p. 253.
Footnote 160:
See _Annales de Chimie_, vol. iii, p. 120-v, 154-vii, 146-viii, 17;
also _Phil. Trans._ vol. lxxxiv. p. 169.
Footnote 161:
The gases produced by putrefaction, are Carbonic acid, Carburetted
Hydrogen, Sulphuretted and Phosphuretted Hydrogen, and Ammonia; the
most deleterious of which are the compound gases of Hydrogen.
Footnote 162:
_Chaptal’s Elem. of Chem._ vol. iii.
Footnote 163:
_On Lazarettos_, p. 25.
Footnote 164:
See _Burns’s Ecclesiastical Law_. _Tit. Burial. Watson’s Clergyman’s
Law—Gibson—Lindwood._
Footnote 165:
A popular fallacy has long existed upon this point, and it certainly
receives a sanction from the usages of antiquity. At Athens those who
died in debt had no right to human burial, until satisfaction was
made; their bodies belonged to their creditors, whence it is said that
_Cimon_ had no other method to redeem the body of his father
_Miltiades_, but by taking his debts and fetters upon
himself.—_Potter’s Antiq._
Footnote 166:
The peculiar gas to which this destructive quality is owing, is
generally _Sulphuretted Hydrogen_, sometimes existing in combination
with Ammonia (_Hydro-Sulphuret of Ammonia_). _M. Dupuytren_ has also
shewn that the _Plomb_ is sometimes occasioned by _Nitrogen gas_.
_Hallé_ in his work entitled “_Recherches sur le Mephitisme des Fosses
d’Aisances_” has proposed various methods for securing the _nightmen_
from the dreadful effects of this gas, as by _ventilation_ and
_fumigation_. _M. Dupuytren_, however, has satisfactorily proved that
Chlorine, by decomposing it, is its true antidote, by which
_Hydro-Choloric_ acid (_Muriatic_,) is produced, and _Sulphur_
deposited.
In some cases the Sulphuretted Hydrogen has accumulated to such an
extent, that explosions have occurred in privies on the introduction
of a light. We have heard that dreadful ones have happened in the
_Fosses d’Aisances_ in the Rue St. Antoine, and in those of Gross
Caillou, and Petit Bourbon; and very lately in that of the House of
Correction at Clermont-oise, in which many lives were lost. A similar
accident has happened in London; we copy the following paragraph from
the _Morning Advertiser of Friday Feb. 5, 1819_.—“_Singular
Explosion_,—A few evenings ago, at the Two Brewers Tavern,
Redcross-street, Southwark, a person took a candle into the privy, and
laid it upon the seat, the air confined underneath caught fire from
the candle, and immediately exploded, the seat was forced up, and the
person was burned considerably, but not dangerously.”
Footnote 167:
The writings of Portal, Gériel, Laborie, Parmentier, Alibert,
Dupuytren, Cadet de Vaux, and Hallé, contain ample illustrations of
this subject. The reader is also particularly directed to an Essay by
Dr. Gerand, entitled “_Essai sur la suppression des Fosses d’Aisances.
Paris, 1786_.” See also _Dictionnaire de Police_—Art. “_Latrine_.”
Footnote 168:
In the year 1809 a decree was passed in Paris, containing numerous
rules to be observed in the future construction of privies, and which
fixed upon the householder a very heavy expense. In 1819 the French
King issued a Royal Ordinance relative to this subject; it contains
thirty-four clauses or articles, thirty of which revive _in their full
strictness_, all the statutes by which housekeepers are compelled to
undertake most expensive and troublesome building, or repairs of
privies. To relieve them, however, from vexatious costs, the 31st
article was framed upon the recommendation of the Privy Council, and
which liberates those from the obligation, who shall substitute their
old privies by a new apparatus invented by _M. Cazeneuve_, entitled
_Messrs. Fauche-Borel’s Patent Moveable Inodorous Conveniences_, of
whose advantages almost all the learned Societies of Europe have
reported most favourably. We have noticed this decree in order to shew
our reader what a degree of importance the French Government attaches
to the subject. And upon this occasion it is impossible to withhold
the expression of those feelings of national pride and exultation
which the contemplation of this subject must afford us; we have in our
metropolis no less than 200,000 privies, of which 10,000 only are
water closets. In Paris the number does not exceed 70,000, and yet
with all the cumbrous enactments which that government has passed for
their regulation, how far inferior they are in cleanliness, and how
far greater are the effects of their effluvia, when compared with
similar establishments in our city. The truth is, that the most
elaborate system of medical police will never be so effective as the
spirit of cleanliness which is so characteristic of this great and
free people; and in this truth, so forcibly illustrated by the subject
under discussion, we are to seek for the real explanation of that fact
which has been so frequently commented upon by medical writers—THE
APPARENT INDIFFERENCE OF OUR GOVERNMENT TO THE SUBJECT OF PUBLIC
HEALTH.
Footnote 169:
See _Calis on Sewers_.
Footnote 170:
Dr. Ratcliffe being asked the difference between a contagious and
epidemic disease, attempted to explain it by the following
illustration: “_If you and I are exposed to the rain we shall both get
wet, but it does not follow that we shall wet one another._”
Footnote 171:
See _Rees’s_ Cyclopædia, article _Contagion_.
Footnote 172:
Dr. _Wilson Phillip_’s Treatise on Febrile Diseases, vol. i. p. 433.
Footnote 173:
Researches into the Laws and Phenomena of Pestilence. London, 1821.
Footnote 174:
See _Rees’s Cyclopædia, article Plague_. _Hancock on the Laws of
Pestilence, London, 1821._ _Mercurialis on the Plague of Venice, in
1576._ _Diemerbroeck on the Plague of Nimeguen, in 1636._ _Mertens on
the Plague of Moscow, in 1771._ _Chenot on that of Transylvania, in
1756._ _Riverii Praxis Medica, vol. 2. p. 98._ _Glocenius de Peste,
1611._ _Mead on the Plague of London, 1744._ _Russel on the Plague,
London, 1791._ This learned Physician practised at Aleppo during the
Plague of 1760-1-2, and his work contains a minute account of the
disease with respect to its origin, progress, and decline: it is
considered the best medical account of any individual Plague extant.
_A History of all the most remarkable Plagues upon record, by Noah
Webster, of New York._ _Considerations on the nature of Pestilence,
published as periodical papers, by the Freethinker, 1721._ _The City
Remembrancer, compiled from the best sources, chiefly from the Papers
of Gideon Harvey._ This is the best account of the Plague of London.
_Kephale’s Medela Pestilentiæ, 1665._ _Echar’s History of Plagues._
_Gaetan Sotira, Mem. sur la Peste, observée en Egypt._ _Pappon’s
Epoques memorables de la Peste_, 1801.
Footnote 175:
_Cullen_ defines _Pestis_ to be “Typhus maxime contagiosa, cum summa
debilitate—Incerto morbi die eruptio Bubonum vel Anthracum.” _Nosolog.
Method. Gen._ 30.
Footnote 176:
Op. citat.
Footnote 177:
See _Sir Arthur Brooke Faulkener’s Treasise on the Plague_. The
remarkable fact, mentioned by Dr. _Samoilowitz_, that all the
assistant Surgeons in the hospitals at Moscow took the Plague, while
the Physicians who only walked among the sick, but carefully avoided
contact, generally escaped, affords a strong proof of the greater
facility with which _actual contact_ communicates the infection. This
work of Dr. _Samoilowitz_ (_sur la Peste_) has more than a hundred
pages filled with proofs of its _contagious_ influence; Dr. Granville
also, in his examination before the Committee of the House of Commons,
gave some very interesting instances, in which the poison could only
have been conveyed by _touch_.
Footnote 178:
_Fomites_, or substances imbued with the contagion from the bodies of
the sick, are supposed to retain their infectious quality an
indefinite length of time, and even to communicate the disease more
readily than the persons of the infected.
Footnote 179:
_Results of an investigation respecting Epidemic and Pestilential
Diseases, including Researches in the Levant concerning the Plague. By
Charles Maclean, M.D. London, 1817._
Footnote 180:
It is noticed by writers long before Dr. Maclean: see “_Distinct
notions of the Plague, 1722. Dale Ingram on the Plagues that have
appeared since 1346; and Plague no Contagious Disease._” The following
is the story to which these authors allude.—It appears that Pope Paul
III, about the year 1747, commissioned his legate, Cardinal Montè, to
fabricate some pretext for removing the celebrated Council of Trent,
which was then sitting in debate on the abuses of the ecclesiastical
power, to some town within the Papal territory. An epidemic fever, it
was said, then prevailed at Trent: many of the bishops became alarmed,
and fled; some, if not all, on the Emperor’s side, raised their voices
against the plot; but Fracastorius, Physician of the Council, aided
the imposition with all the zeal of a devoted Catholic, and the
Council was accordingly translated to Bologna. From this time, Dr.
Maclean asserts, it became almost heretical to doubt of the contagious
nature of Plague; and the error, chiefly because it was sanctioned by
the sovereign Pontiff’s authority in the first instance, has been
propagated in christendom, as a point of medical orthodoxy, and
continued down to the present time.—_Maclean, loco citato,—Hancock on
Pestilence_, p. 11.
Footnote 181:
_The history of the Plague, as it has lately appeared in the islands
of Malta, Gozo, Corfu, Cephalonia, &c. detailing important Facts,
illustrative of the Specific contagion of that disease, with
particulars of the means adopted for its eradication_,—By J. D. TULLY,
Esq. Surgeon to the Forces, late Inspector of Quarantine, and
President of the Board of Health of the interior of the Ionian
Islands. 8vo. London, 1821.
Footnote 182:
_A Treatise on the Plague, designed to prove it Contagious, from facts
collected during the Author’s residence in Malta, when visited by that
malady in 1818, with Observations on its prevention, character, and
treatment_,—By Sir ARTHUR BROOKE FAULKNER, M.D. London, 1820. This
work may be considered as one of the richest classical productions on
the subject of the Plague; and we strongly recommend it to the
attention of the medical reader on account of the important facts,
powerful arguments, and correct judgment, which distinguish it.
See also _Narrative of Facts relative to the repeated appearance,
propagation, and extinction of Plague among the British Troops in
Egypt, in the years 1801, 1802, & 1803_,—By JOHN WEBB, _Director
General of the Ordnance Medical Department_; published in the Medical
Transactions of the College of Physicians, vol. vi.
Footnote 183:
In the year 1819, Sir _John Jackson_ moved for a Committee in
Parliament to inquire into the expediency of abrogating or modifying
the restrictions imposed by the Quarantine laws; in which motion he
was supported by the Right Honourable _F. Robinson_, President of the
Board of Trade. The principal objects of inquiry on the subjects in
question were, _first_, Is the Plague capable of being communicated
from person to person, either by immediate contact with those
diseased, or intermediately, by contact with infected goods? or
_secondly_, Is it an Epidemic depending only on a peculiar state of
the atmosphere? The number of medical men examined upon this occasion
was nineteen, only two of whom, Dr. _Maclean_ and Dr. _Mitchell_,
denied the contagious nature of the Plague.
Footnote 184:
_Observations on the Epidemical Diseases of Minorca. Edit. 3, p. 132._
Footnote 185:
_Observations on Marsh Remittents, p. 39, &c._
Footnote 186:
_Observations on the Diseases which prevail in long voyages to hot
countries. Vol. 1, p. 151._
Footnote 187:
_On Simple Fever. Edit. 2, p. 113, and 114._
Footnote 188:
_Essay on the Diseases incidental to Europeans in hot climates. Edit.
5, p. 27, and 221._
Footnote 189:
_Medicina Nautica, vol. 1, p. 456._
Footnote 190:
_Typhus cum flavedine Cutis_ of Cullen. _Typhus Icterodes_ of
Sauvages.
Footnote 191:
The chief authorities on the side of its contagious nature are _An
Essay on the Malignant Pestilential Fever introduced into the West
India Islands from Boulam_, by Dr. C. CHISHOLM. London 1795. _Medical
Sketches_, by SIR JAMES MACGREGOR. London 1804. _The Report of the
French Commissioners at Cadiz, in 1804_. And the Works of SIR JAMES
FELLOWS, Dr. CAILLOT, and Dr. AREJULA of Cadiz. Much valuable matter
is also contained in a _Treatise_ by Dr. PYM, Inspector of Hospitals.
London 1818. To which may be added _The Travels of_ DON ANTONIO ULLOA
and DON JORGE JUAN.
Footnote 192:
RUSH _on Yellow Fever_.
Footnote 193:
_An Essay on the Disease called Yellow Fever_, by EDWARD NATHANIEL
BANCROFT, M.D. &c. London 1811.
Footnote 194:
In the year 1817 Dr. _Bancroft_ published a _Sequel_ to his work, in
order to shew that the _Bulam Fever_ has no existence as a distinct or
contagious disease. This malady _Dr. Chisholm_ supposed to be a
peculiar, original, and foreign pestilence, and to have been imported
from Bulam, on the coast of Africa, by the ship _Hankey_, to the
island of Grenada; an opinion which received the support of Dr. _Pym_.
Footnote 195:
_Medical Logic Edit. 2. p. 219._
Footnote 196:
SPORADIC.—An epithet used in opposition to that of _Epidemic_, and is
given to such diseases as have some special or particular cause, and
are dispersed here and there, affecting only particular constitutions,
ages, &c. σποραδικος, from σπορας, _dispersed_, of σπείρω _I strew_.
Footnote 197:
The most remarkable of these Epidemics on record, are, that of 1647 in
Barbadoes; that of 1686 in Martinique; that in the Spanish Main, in
1729, and 1740; and the most general and destructive of all, which
broke out at Grenada in the month of March, in 1793, which spread
rapidly to the whole Carribean Archipelago, and from thence to North
America, and the shores of Europe. The most remarkable, and perhaps
the only instances on record of its existence in North America, are
that of Boston in 1693, on the arrival of a squadron of English ships
of war from the West Indies; that in Carolina, in the years 1732,
1739, 1745, and 1748, all which, by the account of the physicians who
describe it, could be traced to importations from the sugar colonies;
that of Philadelphia, in 1751 and 1762; and that above-mentioned in
1793. It now remains to give the history of it as it appeared in
Europe. It may be chronologically stated as follows: at Lisbon, in
1723; at Cadiz, in 1732, 1733, 1744, 1746, 1764, 1800; at Malaga, in
1741 and 1803; at Gibralter, in 1804. It has since appeared at
different times in these cities, as well as at Carthagena, Alicant,
and Leghorn. _Extracted from Sir Gilbert Blane’s work._
Footnote 198:
_Remarks on the Epidemic Yellow Fever which has appeared at intervals
in the South Coasts of Spain, since the year 1800_, by ROBERT JACKSON,
M.D. 8vo. London, 1821.
Footnote 199:
It is probable that the Fomites of Plague are never extinct in Turkey,
although various circumstances may render it _Sporadic_, or entirely
dormant.
Footnote 200:
_Loimologia._
Footnote 201:
_Op. citat: p. 501._
Footnote 202:
_Page 159._
Footnote 203:
The following account is taken from Quincy: “Dr. _Plott_ observes, the
reasons why Oxford is now much more healthful than formerly, to be the
enlargement of the city, whereby the inhabitants, who are not
proportionally increased, are not so closely crowded together; and the
care of the magistrates in keeping the streets clear from filth: for
formerly, he says, they used to kill all manner of cattle within the
walls, and suffer their dung and offals to lie in the streets.
Moreover, about those times, the Isis and Cherwell, through the
carelessness of the townsmen, being filled with mud, and the common
shores by such means stopped, did cause the ascent of malignant
vapours whenever there happened to be a flood. But since that, by the
care and at the charge of Richard _Fox_, Bishop of Winchester, in the
year 1517, those rivers were cleansed, and more trenches cut for the
water’s free passage; _the town has continued in a very healthful
condition, and in a particular manner so free from pestilential
diseases, that the sickness in 1665, which raged in most parts of the
kingdom, never visited any person there, although the terms were there
kept, and the Court and both houses of Parliament did there
reside_.”—_Plott’s Hist. of Oxfordshire, chap._ ii.
Footnote 204:
See _Dr. Heberden’s Observ. on the Increase and Decrease of different
Diseases, and particularly the Plague, p. 71_.
Footnote 205:
The earliest instance of jail infection, communicated in a Court of
Justice, appears to be that mentioned by Mr. Anthony _Wood_, as having
happened “at the Assize kept in the Castle at Cambridge, at the time
of Lent, 13th _Henry_ viii. ann. dom. 1521-2, when the Justices there,
and all the gentlemen, bailives, and all resorting thither, took such
an infection, that many of them died; and almost all that were present
fell desperately sick, and narrowly escaped with their lives.” Then
comes the memorable _black assize_ at Oxford, in July 1577, the best
account of which is that given in “_The History and Antiquities of the
University of Oxford, by Anthony Wood, M. A. of Merton College_”,
first published in English from the original MS. in the Bodleian
library, by John _Gutch_, A. M. printed at Oxford in 1796. Another
instance is mentioned by _Holinshed_, (vol. ii, p. 1547) as occurring
at Exeter, during the assizes there in March 1586. From this period no
remarkable case of jail infection is recorded for a period of 150
years, when at the Lent assizes, some prisoners who had been removed
from Ilchester gaol, to take their trials at Taunton, were said to
have infected a part of the court, and produced a contagious disease,
of which the Chief Baron _Pengally_, with some of his officers and
servants, and Sir James _Sheppard_, knight, and Serjeant at Law, died
afterwards at Blandford in Dorsetshire. Twelve years after, viz. in
April, 1742, according to Dr. _Huxham_ (_De aëre, &c. vol._ ii, _p._
82) a putrid fever appeared at Launceston, and occasioned great
mortality; this fever, he adds, was generated in the prisons; and
widely disseminated by means of the county assize. The next remarkable
occurrence of this kind happened at the sessions of the Old Bailey, in
the spring of 1750, which proved fatal to the Lord Mayor, and two of
the Judges, with several eminent and other persons; this circumstance
induced the Magistrates of London to resolve upon attempting to render
Newgate more healthy; and they accordingly consulted Dr. _Hales_ and
Sir John _Pringle_ about the method which they should follow. Dr.
_Hales_ recommended the use of his _Ventilator_, a machine contrived
to pump out the air of any place, and thus to occasion a perpetual
renovation of it. The machine was accordingly erected, and its
salutary effects soon became apparent, the deaths in Newgate having
been reduced from 7 or 8 a week to about 2 in a month. Eleven men were
employed in erecting this ventilator, of which no fewer than 7 were
seized with the disease; a very interesting account of these men, and
of the mode of treatment, were drawn up by Sir John _Pringle_, and
published in the _Philosophical Transactions for 1753, vol._ xlviii,
_p._ 42.
Footnote 206:
_Page 144._
Footnote 207:
_A History of the Epidemic Fever which prevailed in Bristol during the
years 1817-18-19_, by J. PRICHARD, M. D.
Footnote 208:
_Medical Report of the Fever Hospital and House of Recovery, Cork
street, Dublin, for the year ending the 5th of Jan. 1819._ By RICHARD
GRATTAN, M.D. &c.
Footnote 209:
_Medical Report of the Fever department in Stevens’ Hospital,
containing a brief Account of the late Epidemic in Dublin, from Sep.
to Aug. 1819._ By JOHN CRAMPTON, M.D. &c. Dublin, 1819.
Footnote 210:
QUARANTINE, or Quarantain, a French word signifying the space of forty
days; why forty days should have been fixed upon as the period of
probation upon these occasions is not very evident. _Beckmann_
observes that it arose from the doctrine of the ancient physicians, in
regard to the critical days of many diseases, of which the fortieth
seems to have been considered the last, and most extreme, and on which
many astrological conceits were formerly maintained. (See _G. Wedelii
Exercitatio de Quadragesima die_, in his _Centuria Exercitationum
Medico-Philologicarum_, Jenæ 1701.) This explanation however is not
quite satisfactory; forty days appear to have been a period fixed upon
for various kinds of probation, (probably from the duration of Lent);
we have thus _Quarantain_ of the King in France, which denotes a truce
of forty days appointed by Saint Louis, during which time it was
expressly forbidden to take any revenge of the relations or friends of
people who had fought, wounded, or affronted each other in words. So
again in the law of England, the word _Quarantine_ denotes a benefit
allowed to the widow of a man dying seized of land; by which she may
challenge to continue in his capital messuage, or chief mansion house
(so it be not a castle) for the _space of forty days_ after his
decease; during which time her dower shall be assigned. _Coke upon
Lit._ 34, 35.
An account of the various establishments for preventing the plague in
different countries, with a reference to the best writers, may be
found in _Schleswig Holstein schen Blattern fur Polizey und Cultur_.
1800, 2 _p._ 341.
Legislative enactments for arresting the progress, and preventing the
diffusion, of contagious diseases are mentioned in the earliest
history: it is, for instance, commanded in the books of the law of
Moses, that the priests shall be desired to visit houses infected with
the plague of leprosy, which, if necessary, are to be closed, and even
pulled down; or the walls are to be scraped and white-washed, and the
infected persons to be shut up. (_Leviticus, chap._ xiii, xiv.) The
laws of QUARANTINE, however, as directed against the propagation of
Pestilential Epidemics have a later origin. In the first centuries of
the Christian era, it does not appear to have been known that
infection could be communicated by cloathing, and other things used by
infected persons. After the plague in the fourteenth century, which
continued longer than any other on record, and extended over the
greater part of Europe, the survivors found that it was possible to
guard against, or to prevent infection, and Governments then began to
order establishments to be formed for that purpose. The most ancient
of these appear to be those in Lombardy and Milan in the years 1374,
1383, 1399; an account of which may be seen in MURATORI _Scriptores
rerum Italic: T._ xvi, _p._ 560, & xviii _p._ 82, and from thence
copied into CHENOT, p. 147. See also BOCCACIO _Decam._ The Venetians
are entitled to the merit of having improved the establishments formed
to prevent infection, and that their example was followed in other
countries is generally admitted. MURATORI (_Lib._ i, _cap._ ii, _p._
65) says that Quarantine was first ordered to be performed by the
Venetians in 1484; and HOWARD (_An Account of the principal
Lazarettos; London_, 1789, 4_to p._ 12) states that the College of
Health was instituted in 1448—see BECKMANN’S _History of Inventions_,
vol. ii, p. 153—and _Considerations on the Means of Preventing the
communication of Pestilential contagion_, by W. BROWNRIGG, London,
1771. On the Turkish frontiers the period of Quarantine was reduced to
_twenty_ days, under the Emperor Joseph II. See MARTINI LANGE
_Rudimenta Doctrinæ de Peste_.
Footnote 211:
For an interesting account of the rise and progress of this disease,
see Sir A. _Faulkner’s_ work already quoted.
Footnote 212:
Though no punishment is annexed by the Act to any offence against the
Order of the King in Council, yet the disobedience of such an order
founded on Act of Parliament, is an indictable offence, and punishable
as a misdemeanor at common law; _King_ against _Harris_, 4 T. R. 202,
which was the case of a pilot who quitted a ship subject to Quarantine
contrary to the established regulations.
Footnote 213:
This rule should be extended to vessels meeting at Sea.
Footnote 214:
The signal by day is a yellow flag of six breadths of bunting at the
maintopmast-head, and if the vessel have not a clean bill of health,
then the flag must have in it a black circular mark or ball, whose
diameter must be equal to two breadths.
Footnote 215:
See also 59 Geo. 3. c. 41. which relates to infection in Ireland.
Footnote 216:
_On Hereditary Disease_, (Note 1, p. 46.)
Footnote 217:
The visitation of Lunatic Asylums and Mad-houses by Special
Commissioners (_see_ 14 _Geo._ 3, _c._ 49—_Appendix_ 170) may be
considered as a branch of Medical Police, for which see the subjects
of Idiots and Lunatics in Part II.
Footnote 218:
The local causes to which we would particularly refer, are those
connected with humidity of atmosphere, which so generally occurs in
the vicinity of the sea. The author speaks from experience, when he
ventures to assert that the most efficient extracts soon lose their
powers under such circumstances.
Footnote 219:
A bill was recently introduced in the House of Commons on this
subject, but did not pass into a law.
Footnote 220:
The first bills containing the ages of the dead were those for the
town of Breslaw in Silesia, from which Dr. HALLEY deduced a table of
the probabilities of the duration of human life, at every age, see
_Philosophical Transactions_ (Abridgement vol. iii, p. 669.) Similar
bills were established at Northampton in 1735.
Footnote 221:
We ought to mention that in consequence of the apprehension respecting
the plague having subsided, the company soon began to discover that
the weekly bills declined in sale; in order therefore to keep alive
the public interest, and to preserve for themselves the income which
arose from it, they printed on the same sheet, in the year 1735, the
regulated prices of bread and salt.—!
Footnote 222:
This society was incorporated by Letters Patent of the 17th Henry iii,
in 1239, by the style of the “_Fraternity of Saint Nicholas_;” and
they were re-incorporated by charter of the 9th of James i. In 1625,
they obtained a decree from the Star chamber, allowing them to keep a
press in their hall, for the printing of the weekly and general bills
of mortality of the city and liberties of London: and for this purpose
the Archbishop of Canterbury appoints a printer. All which privileges
were subsequently confirmed by a charter granted by Charles ii.
Footnote 223:
_Strictures on the Uses and Defects of Parish Registers and Bills of
Mortality, with suggestions for improving and extending the System of
Parochial Registry._ London, 1818.
Footnote 224:
Many of the diseases are absolutely unintelligible under their present
designation; such, for instance, as _Headmoldshot_; _horse-shoe head_;
_over-grown head_; _rising of the lights_, _&c._ others are barbarous,
as _liver-grown_; _twisting of the guts_, _&c._ others again are far
too indefinitely expressed to be admitted as specific diseases, of
which _aged_; _bed-ridden_; _bile_; _colds_; may serve as examples.
“_Fevers of all kinds_” is a little too sweeping and indiscriminate.
“_Abortives and still-born_” united, form a large number in the
general annual bill, the absurdity of which is apparent. _Child-bed_
is a formidable article in the bill, and is liable to much
misinterpretation and error; all women dying within the month after
delivery are indiscriminately classed under _child-bed_, whether they
die in actual labour, or subsequently of acute fever, consumption, or
any other disorder. Infants dying before baptism are not returned by
the parish clerks in the bills of mortality. In the old bills they
were entered under the denomination of _Chrysoms_, but this title has
been long disused. See _Burrows’s_ _Strictures_, p. 53.
Footnote 225:
_Observations on the Increase and Decrease of different Diseases, and
particularly of the Plague._ London, 1801.—See also STOWE’S _London_,
book 5, p. 448.—MORRIS’S _Observations on the past Growth, and Present
State of the City of London_.—JAMESON _on the Changes of the Human
Body_, 8vo. London, 1812.
Footnote 226:
PHIL. TRANS. 1774, vol. lxiv. p. 67; vol. lxv. p. 85; and vol. lxviii.
p. 131.
Footnote 227:
PHIL. TRANS. 1782, vol. lxxii. p. 35.
Footnote 228:
PHIL. TRANS. for 1775; see also THOMSON’S _Hist. of the Royal Society,
article Political Arithmetic_, p. 530.
Footnote 229:
The term Medicine (_Ars Medendi_) is used generally as including
Surgery.
Footnote 230:
For the Law of Evidence in general see Trials per pais; Gilbert’s Law
of Evidence; Viner’s Abr. tit Evidence; Bacon’s Abr. tit Evidence;
Comygn’s Digest. tit Testmoigne: Buller’s NP; Espinasse NP; Peake on
Evidence; Phillips on Evidence; 2 Tidd’s Practice 845.
Footnote 231:
See _Severn v. Olive_ (_Appendix_, p. 201), in which it is also
determined that the expense of experiments to elucidate or determine
points in dispute cannot be allowed in costs. We regret the decision,
as it may in future cases stand in the way of important and highly
useful investigations.
Footnote 232:
See Cutt v. Pickering 1 Vent, Lord Say & Sele’s Case; Macclesfield,
41. or Annesley & Anglesea, 9 St. Tri. 383, 392.
Footnote 233:
Lord Barrington’s objection to disclose confidential conversation was
also over-ruled in the case cited above.
Footnote 234:
It has been decided in civil cases, that declarations even of a dying
man, made _post litem motam_ are not admissible as evidence; this
appears to be rather a fine drawn distinction, and if it were extended
to criminal matters would be productive of some mischief; for then if
a man died of his wounds, after the assailant had been committed or
indicted, declarations made under circumstances of equal solemnity and
religious force, would be evidence or not according to the hour of the
day at which they were uttered. The distinction is not taken in the
law of Scotland, as appears by the stress laid by Lord Mansfield, on
such declarations in his judgment in the Douglas cause. 2 Collec.
Jurid.
Footnote 235:
Baptist or quaker surgeons should therefore, in cases likely to come
before the criminal tribunals, take care to have persons associated
with them who may supply their places in Court; we do not urge them to
be sworn, as we should place less reliance on an oath taken in breach
of conscientious scruples, than on the affirmation which is rejected
in obedience to the forms of law.
As a quaker if living could not be heard as a witness in a criminal
case, query his declarations when dying, does the solemnity of the
occasion dispense with the form of an oath?
Footnote 236:
For the medical dangers and advantages of celibacy and marriage, the
reader, if fond of such speculations, may consult _Mahon, vol._ 3,
_p._ 43, 80.
Footnote 237:
Œtas plena, or full age, regularly is one and twenty, _Co. Litt_ 79.
103. 1 _Hale Pl. c._ 17. The Roman law makes it twenty-five,
_Institut. lib._ 1. _tit._ 23. _De Curatoribus. Dig. lib._ 4. _tit._
4. _De Minoribus. Taylor’s Civil Law_, 255, 256. In France it was
thirty for males. _Potier._ In Holland 25.
Footnote 238:
Sir John Sebright informs us, that if a flock of sheep, in which there
is any defect, are permitted to breed _in and in_, the defect will
gradually increase among them; and Colonel Humphries, by selecting for
breeding a marked variety, has succeeded in procuring a flock, all of
them with deformed bones: upon these curious facts Dr. Adams makes the
following remarks; “If the same causes operate in man, may we not
impute to them many endemic peculiarities found in certain sequestered
districts, which have hitherto been imputed to the water, and other
localities? and may we not trace a provision against such a
deterioration of the race, in that revealed law, by which any sexual
intercourse between near relations is forbidden, on pain of death?”
Footnote 239:
If either of the parties be under the age of twenty-one, they cannot
by their own consent alone contract marriage; they must have either an
express consent in case of licence, or an implied consent by the banns
not having been forbidden; but as banns may be and frequently are
improperly published in churches far distant from the actual residence
of the parties, their parents, or guardians, this precaution of the
legislature offers but a precarious safeguard against clandestine
marriages.
Footnote 240:
32 _Hen_ 8. _c._ 38. in part repealed by 2 & 3 _Ed._ 6. _c._ 23. but
query how far revived by 26 _Geo._ 2. _c._ 33. See also 1 & 2 _Ph. &
M. c._ 8. §. 20: and 1 _Eliz. c._ 1. §. 11.
Footnote 241:
From the age of seven to the age of twelve, as to the woman, and
fourteen as to the man, they cannot contract marriage _de præsenti_,
but only _de futuro_. _Swinb. s._ 7.
Footnote 242:
As to matrimonial contracts, the full age of consent in males is
fourteen years, and of females, twelve; till that age they are said to
be _impuberes_, and are not bound by matrimonial contracts; and with
this also our law agrees; 1 _Hale Pl._ 17. _Instit. Lib._ 1. _tit._
10. _de nuptiis_. _Dig. Lib._ 23. _lit._ 2. _de ritu nuptiarum Co.
Litt._ 104. The statute of Merton, 20. _Hen._ 3. _c._ 6 (_Co. Litt._
30). inflicts the loss of wardship and its benefits on such Lords as
shall marry their wards within the age of fourteen years, _et talis
ætatis quod matrimonio consentire non possit_. Yet a widow who had
been married at seven, and at nine years old survived her husband, was
held entitled to dower. _Co. Litt._ 33.
Footnote 243:
This case was cited in argument in _Manby v. Scott. Siderf. p._ 112.
but it was allowed that the older writers _Bracton_, _l._ 5. 421. and
_Fleta_, 434, 58, had held the contrary, and so does the law of the
present day. See _Co. Litt._ 30. 80: _Brouwer de jure Connubiorum_.
Footnote 244:
15 _Geo._ 2. _c._ 30. _Co. Litt._ 80. _n._
Footnote 245:
Statutes. 32 _Hen._ 8. _c._ 38: 2 & 3 _Ed._ 6. _c._ 21: 5 & 6 _Ed._ 6.
_c._ 12: 7 & 8 _Wil._ 3. _c._ 35: 10 _Ann. c._ 19. 26 _G._ 2. _c._ 33.
Footnote 246:
For further authorities see 4 _Bacon Abr._ 523. 15 _Viner Abr._ 252.
_Rolle’s Abr. tit. Bastard._ 356.
Footnote 247:
“_De contracti matrimonii valore, per Sobolis necessariam
judicatur._”—_Hebenstreit Anthropolog: Forens. p._ 618.
Footnote 248:
Old _Parr_, who lived to the age of 152, did penance at 105, for lying
with _Katharine Milton_, and getting her with child. He married his
second wife in his 122d year.
Footnote 249:
The Romans interdicted marriages of extreme inequality in respect of
age, upon public policy; their law likewise restrained it between men
above 60 and women turned 50, because at these ages procreation was
improbable.
The Athenian laws are said once to have decreed that Males should not
marry till they were past 35 years of age. ARISTOTLE (_Polit. lib._
vii. _c._ xvi.) thought 37 the proper age; PLATO fixes 30, in which
opinion HESIOD coincides. With respect to Females, the old Athenian
laws allowed them to marry at 26; ARISTOTLE at 18, and HESIOD at 15.
LYCURGUS approved a marriage between men of 37, and women of 17; the
principal object of which was, says ZENOPHON (_De Republ. Lacedæm._)
to insure that perfect maturity, and complete sexual vigour which he
considered so eminently essential for the propagation of the human
species. ARISTOTLE wished the husband to be always 20 years older than
his wife, in order that they might both arrive, at the same time, to
the period when fertility ceases; and we learn from CÆSAR & TACITUS
that the ancient Germans maintained a similar sentiment.
Footnote 250:
In a celebrated German case, an affianced officer, by the misfortune
of war, was rendered incapable of performing his contract; the
marriage however took place, _uxore sciente et consentiente_, to the
great scandal of the more bigoted ecclesiastic authorities who sought
to annul it.
Footnote 251:
_Capuron_ relates several instances of women of sixty and upwards who
have borne children. _Pliny_ says that _Cornelia_, of the family of
the _Scipios_, bore a child at sixty, who was called _Volusius
Saturninus_. _Marsa_, a physician of Venice, records a similar
instance; _De la Mothe_, another at sixty-one; and there is in the
third volume of the Memoirs of the Academy, an account of a litigation
on the presumption that a woman of sixty-eight could not bear a child.
We shall treat this subject very fully under the head of Physiological
Illustrations.
Footnote 252:
To those who are anxious to pursue the subtleties of this curious
question, the following references may be acceptable—MERCATUS De
_Morbis Hereditariis_, a treatise published in the beginning of the
17th century; STAHL’S _Theoria Medica Vera_, published at Halle, in
1737, p. 377. There are besides in the collection of Dissertations
published by Stahl in 1707, several passages which refer to the
subject of Hereditary Diseases, and an Inaugural Dissertation, “_De
Hereditaria Dispositione ad varios Affectus_,” by Burchart; HALLER’S
_Elementa_, vol. 7, article _Similitudo Parentum_; M. PORTAL, “_Sur la
nature et traitement de quelques maladies hereditaires ou de
famille_,” published in the Memoirs of the French National Institute,
and a translation of which may be found in the 21st volume of the
London Medical & Physical Journal; it is principally valuable on
account of the number of facts and references which it contains; M.
FORESTER, _De Morbis aut Noxis puerorum in vitiatis depravatis que
parentibus_. M. Portal mentions this work as one of great
merit—certain opinions of Mr. JOHN HUNTER, upon the subject are
contained in the report of Donellan’s trial, _See Appendix_.—The most
important work which has been produced in our own times, is that by
Dr. ADAMS; entitled “_A Treatise on the supposed Hereditary Properties
of Diseases, containing Remarks on the unfounded Terrors and
ill-judged Cautions consequent on such Opinions_.”
Footnote 253:
See the ancient doctrine of disparagement, _Co. Litt._ 80, 81.
Footnote 254:
We are acquainted with but one instance of Legislative interference,
relative to hereditary diseases, and that is to be found in the
earlier history of our sister kingdom. The following quotation will
explain its nature: “Morbo comitiali, amentia, mania, aut simili tabe,
quæ facile in prolem transfunditur, laborantes, intereos ingenti facta
indagine inventos, ne genus fæda contagione ab iis qui ex illis
prognati, forent læderetur, castraverunt; mulieres hujusmodi morborum
quavis tabe leprave infectas procul a virorum consortio ablegaverunt.
Quod si harum aliqua concepisse inveniebatur, simul cum fætu nondum
edito defodiebatur viva—Voraces, manducones supra quam erat humanum,
helluonesque, et perpetuæ ebrietati indulgentes aut addictos, netam
fæda monstrain patriæ dedecus supressent flumine mergentes, prius
quantum libuit et cibi et potus vorare ac ingurgitare eis præbentes,
miti supplicio exterminarunt.”
_Scotorum Historiæ a prima Gentis Origine, cum aliarum et rerum et
gentium illustratione non vulgari, Libri_ xix—HECTORE BOETHIO
DEIDONANO _auctore_—Parisiis 1574, lib. 1, p. 12.
The ancient Greeks appear to have entertained a similar opinion,
although they did not ground any legislative enactments upon it; thus
Plato commends Esculapius for refusing to patch up persons habitually
complaining, lest they should beget children as useless as themselves;
being persuaded that it was an injury both to the community and to the
infirm person himself, that he should continue in the world, even
though he were richer than Midas. _De Republ. Lib._ III. Upon the same
principle Herodicus is censured by Plato as the inventor of an art of
teaching the infirm to regulate their exercise and diet in such a
manner as to prolong their lives for many years.
Footnote 255:
_Police Medicale_, p. 91. the author goes on to state, that by an
ordinance of the king of Denmark, if the husband or wife have before
marriage any secret malady, as leprosy, epilepsy, or other contagious
disorder calculated to inspire horror, and does not inform the other
of it, the party uninformed may have a divorce p. 92.
Footnote 256:
It must not be on the mere confession of parties, 2 _Burn._ 461. but
see _Greenstreet_ and _Greenstreet Phillimore’s Rep._ Divorce by
reason of impotence, 4 _Bacon. Ab._ 534, and cases there, and note, p.
555.
Authorities,—_Panormus_; _Targereau, Paris_, 1611; _Sylva Nuptialis_;
_Ambrose Parè, sixth edit._; _Sanchez de Matrimonio_; _Journal des
Sçavans, July_, 1677; _Johannes Saresberiensis in Policratico sive de
nugis curialium_; _Rouliard’s Capitulaire_; _Antony Hotman’s
Treatise_. _Bayle_ says that the _Divorce propter impotentiam_ was
first allowed by _Justinian_ at the instance of his wife the empress
_Theodora_; her life and character (7 _Gibbon’s Roman Empire_, p. 64)
will best explain the motives of her interference; the Canonists added
_propter arctitudinem_, which the empress had naturally omitted.
Footnote 257:
There is some philosophy as well as considerable humour in the
arguments of _Louvet_ in his celebrated novel, for it is well known
that persons of a sedentary and studious habit are seldom excited and
easily diverted.
Footnote 258:
_Maleficium, Magorum Ars. Maleficus, Incantator. Maleficare,
Incantare._ 4 _Ducange Gloss._ 363.
Footnote 259:
On the same principle the College of Physicians of Paris would have
suppressed the works of _Ambrose Parè_, the celebrated surgeon to
three kings; whom, though a Protestant, _Charles_ the ninth saved in
his own chamber, from the massacre of St. Bartholomew. His work _de
Generatione_, was considered too minute in its details, and too
explicit in its language, for general inspection.
Footnote 260:
The defect must exist at the time of the marriage; if it ensue
subsequently, it is no ground of divorce.
Footnote 261:
See DERHAM’S _Physico-Theology_, vol. 1. p. 260.
Footnote 262:
See _Traité de Medicine Légale_, par F. E. FODERE. tom. I. p. 9.
Footnote 263:
In JOHNSON and STEVENS’S edition by ISAAC REID, we have a long note
upon this passage, in which a quotation is introduced from “_The
Treasury of Ancient and Modern Times_,” in order to give an account of
the Septenary divisions of PROCLUS. According to this Greek
philosopher, the life of man is divided into seven ages, over each of
which one of the seven planets was supposed to preside. “THE FIRST AGE
is called Infancy, containing the space of foure yeares. THE SECOND
AGE continueth ten yeares, untile he attaine to the yeares of
fourteene: this age is called Childhood.—THE THIRD AGE consisteth of
eight yeares, being named by our auncients Adolescie, or Youth-hood;
and it lasteth from fourteene, till two-and-twenty yeares be fully
compleate. THE FOURTH AGE paceth on, till a man have accomplished two
and fortie yeares, and is tearmed Young Manhood.—THE FIFTH AGE, named
Mature Manhood, hath fifteene yeares of continuance, and therefore
makes his progress so far as six and fifty yeares. Afterwards in
adding twelve to fifty-six, you shall make up sixty-eight yeares,
which reach to the end of the SIXTH AGE, and is called Old Age.—THE
SEAVENTH, and last of these seaven ages, is limited from Sixty-eight
yeares, so far as four score and eight, being called weak, declining,
and decrepite age. If any man chance to goe beyond this age (which is
more admired than noted in many) you shall evidently perceive that he
will returne to his first condition of Infancy againe.”
Footnote 264:
AS YOU LIKE IT, Act 2. Sc. 7.
Footnote 265:
In every _Septenary_, says Solon, man receives some sensible mutation;
thus in the _First_ is DEDENTITION, or falling of teeth;—in the
_Second_, PUBESCENCE;—in the _Third_, THE BEARD GROWETH;—in the
_Fourth_, STRENGTH PREVAILS;—in the _Fifth_, MATURITY OF ISSUE;—in the
_Sixth_, MODERATION OF APPETITE;—in the _Seventh_, PRUDENCE.
Footnote 266:
By the Civil Law _Twenty-five_.
Footnote 267:
TAYLOR’s _Civil Law_, 254.
Footnote 268:
Sir WILLIAM BROWN’s _Vulgar Errors_. Folio, 1686. p. 173.
Footnote 269:
It appears therefore that the _Milk_ Teeth are divided into _Eight_
INCISORES—(The fore or cutting teeth) _Four_ CUSPIDATI (Canine or Eye
Teeth) and _Eight_ MOLARES (or Grinders).
Footnote 270:
RICHERAND has clearly shewn that this change of voice depends upon the
larynx undergoing an increase in capacity; he observes that in the
male, at the time of puberty, the aperture of the glottis augments in
the proportion of 5 to 10, in the course of twelve months; that its
extent is in fact doubled both in length and breadth: that these
changes are less strongly marked in woman, whose glottis only enlarges
in the proportion of 5 to 7.—_Elements of Physiology, translated from
the French of A. Richerand, by Robert Kerrison, London, p. 438._
Footnote 271:
_Quæst: Med: Leg._—_Q._ 6.
Footnote 272:
ADAMS on _Hereditary Diseases_. HASLAM on _Madness_.
Footnote 273:
A question has arisen whether this discharge be a secretion from the
internal surface of the uterus, or pure blood; it is now generally
admitted that the former is the true theory of its origin, and it is
important for the medical jurist to know that _it does not coagulate_;
in the celebrated case of the murder of MARY ASHFORD, this fact
furnished a useful feature in the evidence; and in other cases that
might be cited, the medical witness has been thus enabled to discredit
the explanation given by a woman, for the appearance of blood. The
average quantity in this country is about four ounces, which is
generally about four days in flowing, but this of course is liable to
great variation. An opinion has prevailed from the most remote
antiquity, that there is something peculiarly malignant and unclean in
the nature of this discharge. Haller thinks that this belief was
brought from Asia into Europe, by the Arabian physicians; that such an
idea should have originated in hot countries is not extraordinary,
when we consider how rapidly blood runs into putrefaction under such
circumstances. In Africa the women are obliged at these periods to
separate themselves from society, and to abstain from the performance
of their domestic duties, and even to carry about them some mark, by
which others may learn to avoid them. The Jews observed the same
practice, and the laws of Moses condemned to death the persons who
were discovered to have had sexual intercourse during this period.
(_Levit. Ch._ 20. _v._ 18.)
Footnote 274:
The use of the bath hastens puberty, as we find in the example of the
Turkish women.—The custom of dancing is said to be attended with a
similar effect.
Footnote 275:
LINNÆI _Flora Lapponica_.
Footnote 276:
It has been a question much agitated by the ancients, why females
arrive at puberty before males. HIPPOCRATES gives the following as a
reason, _propter corporis imbecillitatem id evenit puellis, ut citius
quam mares pubescant_. (Lib. de Sept. part. in fin. et in lib. de nat.
puer.) ARISTOTLE also entertained a similar opinion. (_De Generat._
animal: cap. 6) and GALEN also adopted it (De Usu part Corp. human).
Footnote 277:
PLINY the Elder, has recorded several histories of children who
prematurely arrived at puberty. “It is well known that there be some
that naturally are never but a foot and a half high; others again
somewhat longer, and to this height they came in three years, which is
the full course of their age, and then they die”—PHILEMON HOLLAND,
_book_ vii. _chap._ 16.—An account is also given by CRATERUS, the
brother of king Antigonus, the subject of which history was an
_Infant_, a _Young Man_, and an _Old Man_, was married and begat
children, and all in the space of _Seven_ years! In January, 1747, Dr.
MEAD presented to the Royal Society the history of a child born at
Willingham near Cambridge, which is recorded in the 43d _Volume of
Transactions, for the year 1745_. This child was not only remarkable
on account of his bulk and height, but also for the _external marks of
Puberty_, which were first observed at the age of twelve months; no
evidence however is offered in this case of the perfect developement
of the genital organs, their external appearance is alone described,
without any regard to the state of their functions. In an account
published after his death, it appears that he was attacked by a
disease resembling _Phthisis Pulmonalis_, and was attended by the late
Dr. Heberden, then at Cambridge, of which he died, and after death,
says his historian, he had the appearance of a venerable old man.
Footnote 278:
TRANSACTIONS OF THE MEDICO-CHIRURG. SOCIETY, vol. 1.
The following are the particulars of the case of PHILIP HOWORTH, as
related by Mr. WHITE—He was born in Quebec Mews, Portman Square, on
Feb. 21, 1806; his parents are middle aged, and poor, but industrious
people; the father being a coachman in a gentleman’s service, and the
mother employed in nursing and rearing a family of ten children, of
which Philip is the ninth: the father is a healthy and muscular man,
the mother a middle sized woman, and rather delicate; the rest of the
children are of the ordinary stature and appearance. During the
mother’s pregnancy with Philip, (which continued the usual length of
time) nothing occurred worthy of remark. At the birth, the head of the
child was covered with a profusion of hair of considerable length; the
sutures of the cranium were closed, not leaving the slightest vestige
of a Fontanelle, and he was at this period considered, in point of
size and appearance, as a large and healthy child; during the first
year he was remarkably healthy, and could at about the 12th month run
alone; shortly after this period, a very visible alteration took
place, his countenance, which, until now, had been marked with health
and infant beauty, lost its round and infantile form, and became long,
pale, and extremely ugly, as if affected by the ravages of some bodily
malady. These appearances seem to have been the preludes of those
remarkable changes which quickly succeeded; at this period Nature made
a sudden bound to puberty; the penis and testes were observed to
increase in size, and a small number of black, curling hairs, were
discovered on the pubes: an evident alteration also took place in the
tone of the voice, his cries becoming much hoarser, and more
interrupted; the peculiar organic changes which have been described as
commencing on the completion of his first year continued to be rapidly
increased, and the full developement of the sexual organs was attended
with signs of returning health; the features assumed a more manly
expression, and the rapid and successive growth of the body became the
wonder of all who knew him. Mr. White then proceeds to state that part
of his history which fell under his own notice; the first appearance
of the boy, says he, is very striking, on account of the manly
character so strongly impressed upon his countenance; the chin is
_without beard_, but the black headed points of steatomatous matter so
remarkable in young men previous to the growth of beard, is very
apparent. The Axilla is without hair, but the secretion has the
peculiar characteristic odour of the Adult; the pubes and scrotum are
covered with black curling hair; the penis and testes are as large as
has been seen in some adults, the _corpus spongiosum urethræ_ having
outgrown the _corpora cavernosa_, the penis is curved during erection;
the testes are firm and perfect in their appearance, and the chord may
be felt very distinctly; the prepuce is easily drawn back over the
glans, and the secretion of the _glandulæ odoriferæ_ is apparent; the
usual brown appearance of the integuments of these parts is also to be
observed. “_Minime prætereundum est, quod hic puer virilis
manstupratione gaudet, et semen ita eliminatum perfectum et bene
eleboratum se habet._”
This extraordinary subject is now (1822) fifteen years of age, but no
farther change has occurred in his habit; he is therefore like other
young men of his age, and attends very industriously to the trade of a
shoemaker, to which he is apprenticed.
Footnote 279:
IBID: vol. 2.
Footnote 280:
Pubertatem autem veteres quidem non solum ex annis sed etiam ex habitu
corporis in masculis æstimari volebant. Nostra autem Majestas dignum
esse castitate nostrorum temporum existimans, bene putavit: quod in
feminis etiam antiquis impudicum esse visum est, id est, inspectionem
habitudinis corporis hoc etiam in masculos extendere. Et ideo nostra
sancta Constitutione promulgata, pubertatem in masculis post decimum
quartum annum completum illico initium accipere disposuimus
antiquitatis normam in feminis bene positam, in suo ordine
relinquentes ut post duodecim annos completos viri potentes esse
credantur. _Inst. lib._ 1. _Tit._ 22. It is singular that the modern
Greeks should have retained the delicacy which this law implies; they
are perhaps the only nation of Europe in which male chastity is
practically ranked among the essential virtues; the surgeons of the
Greek Light Infantry might testify to the reluctance with which even
the common soldiers submitted to the established inspections.
Footnote 281:
MAHON, _Medicine Legale_, tom. iii. p. 54.
Footnote 282:
PHILOSOPHICAL TRANSACTIONS for 1805, vol. 95, p. 225. See MAHON, _Med.
Leg. tom._ ii. _p._ 54. Boerhaave relates the story of a Sow gelder in
Spain, who in a fit of passion removed the ovaries of his daughter,
and that she in consequence lost all her sexual characters and
propensities.
Footnote 283:
See Sir Henry _Halford’s_ Paper on the Climacteric Disease. Med.
Trans, vol. iv, p. 316.
Footnote 284:
“A proprement parler, nous vieillissons des l’instant que nous
commençons à cesser d’être jeunes; ou plutôt les memes causes qui
amènent notre dévelopement préparent notre destruction, dès l’instant
même de la naìssance.” _Foderé_ Trait de Medicine Legale, tom. 1, p.
26.
Footnote 285:
This is erroneously supposed to be paralytic, they evidently
originate, says Dr. Darwin, from the too quick exhaustion of the
lessened quantity of the spirit of animation, for they only exist when
the affected muscles are excited into action, as in lifting a glass to
the mouth, or in writing, or in keeping the body upright, and cease
again, when no voluntary exertion is attempted.
Footnote 286:
DARWIN’S Zoonomia. Class iii. 2. 1. 2.
Footnote 287:
See _Observations on a Course of Anatomy of MARCHETTI at Padua_ by Mr.
RAY. Phil. Trans. No. 307, p. 2283.
Footnote 288:
_Traite de Anatomie, Tom. iii. p. 29._
Footnote 289:
_Spermatol. p. 393._
Footnote 290:
_Histor. Anatom. Med. Tom. ii. p. 334._
Footnote 291:
_Cours d’Anat. Med. T. v. p. 429._
Footnote 292:
_De Situ Testic. alien._
Footnote 293:
HAXBY on retention of the testicles until the fourth year. Dunc. Ann.
1799.
Footnote 294:
_Lectures on the Structure and Physiology of the Genital Organs.
London, 1821._
Footnote 295:
_BOERHAAVE, in Prop. Institut. Med. T. v. p. 239._
Footnote 296:
_Treatise on the Venereal Disease._
Footnote 297:
_Morbid Anatomy, Edit. v, p. 371._
Footnote 298:
Lectures on the Genital organs.
Footnote 299:
_Page_ 47, _plate_ v.
Footnote 300:
SHAW’S _Travels, chap._ ii.
Footnote 301:
MALE’S _Juridical Medicine, p. 257._
Footnote 302:
_Univers. Journ. of Med. Scien. for October 1811._
Footnote 303:
We wish to be perfectly understood upon this point; no instance of
impregnation has ever occurred, where the virile member has not come
into actual contact with the Labia; we are not so credulous as to
believe with Averroes the case of the woman that conceived in a bath,
by attracting the sperm of a man admitted to bathe near her; nor the
story of the daughters of Lot, who were impregnated by their sleeping
father, or conceived by seminal pollution received at a distance from
him.
Footnote 304:
_See The case of a pregnant woman, in whom the hymen was found entire
at the time of her being seized with labour pains_, by N. TUCKER, M.
D. related in Dr. MERRIMAN’S _Synopsis of the various kinds of
difficult Parturition_, p. 218. See also ZACCEIÆ _Quest. Med. Leg.
vol._ 3, _Tit._ 1, _Q._ 1.—_Instituzioni di Medicina Forens, di_ G.
TORTOSA, vol. 1, p. 61. In the _Bulletin de la Societé Medicale
d’Emulation for 1819_, there is a very curious case related by Dr.
CHAMPION, of a woman who became pregnant of two children,
notwithstanding the presence of the hymen, and in whom _coitus_ during
gestation had taken place _per urethram_. The obstructing membrane
perforated with two minute orifices, which had allowed the escape of
the menstrual blood, was opened by a crucial incision; about an ounce
of bloody mucus was discharged, and the vagina being naturally
dilatable, the children were safely delivered. The first _coitus per
urethram_ is supposed to have taken place subsequently to conception;
the canal was so much dilated as to admit the fore-finger with
facility. The author relates many other instances of fecundation,
_sine penis intromissione_.
Footnote 305:
PHIL. TRANS. vol. xxxii, p. 408.
Footnote 306:
BERTRAND _Opera Chirurg. Tom._ I, _p._ 253.
Footnote 307:
“Minor Penis de reliquo apte conformatus, et qui in cunnum immissus,
rigidus manet, coitum fæcundum omnino exercere valet, licet forte inde
minus œstrum venereum in fœmina excitetur.” LUDWIG _Inst. Med. Leg.
p._ 159.
Footnote 308:
Martin, King of Aragon, is stated by historians to have been so
corpulent, that neither mechanical contrivances, nor medical treatment
could render him any assistance towards the accomplishment of venereal
congress.
Footnote 309:
_De Partib. Generat. inserv. p._ 85.
Footnote 310:
_Delect. Opuse. Medic. tom._ iv, _p._ 313.
Footnote 311:
_Edinb. Essays, vol._ I, _art._ 35, in which an interesting case of
this kind will be found, by Dr. Cockburn.
Footnote 312:
DENMAN’S Midwifery; _Isbrandus de Diemerbroeck_ Anatom. Lib. I, c. 26;
_Johannes Nicolaus Pecklinus_ Observat. Med. Phys. Lib. I, c. 25.
Footnote 313:
_Marcellus Donatus_, De Medica Historia Mirab. Lib. vi, cap. 2;
_Johannes Riolenus_, Art be medendi, sect. iv, tract 2, c. I; _Caspar
Bauhin_, Theatr. Anatom. lib. I, c. 39, et De Hermaphroditis, lib. I,
c. 38; _Felix Platerus_, Observat. lib. I, p. 259-259; _Hildanus_
Observat. cent vi, obs. 67; _Riolanus_ (Filius) Enchirid. Anatom. lib.
ii, c. 37; _Bartholin. Hist. Anatom._ cent ii, hist. 31; _Astruc_ on
the Diseases of Women, vol. i, p. 126.
Footnote 314:
_Nicolaus Tulpius._ Observat. lib. iii, cap. 33; _Christoph Vœlterus_.
Schol. Obstetric, part ii, c. 19; _Acta Berolinen_, dec. ii, vol. v,
p. 85; _Acta Erudit._ Lipsien. ann. 1726, Octob. p. 480; _Antonius
Benivenius_. De Abditis Morb. et sanet. causis, c. 79; _Johannes
Wierus_. Observat. lib. I.
Footnote 315:
_Walter._ Extirpatio Polyporum semper tentanda, atque curatio
eventusque felix sunt expectandi.
Footnote 316:
_Edinburgh Essays_, vol. 3, p. 321. _Morgagni_, de Sedibus et causis,
epist. 46, advised two women upon such an occasion “ut æquo animo
ferrent conjugium male initum potius dissolvi, quam se temere secandas
prœberent.” For a cause of Impotence caused by pressure on the vagina,
see _Edinburgh Essays_, vol. 2, p. 343.
Footnote 317:
_Zitman._ Med. Forens. p. 906.
Footnote 318:
_Zacchiæ._ Quæst. Med. Leg. lib. 9, T. 3, Q. 5: _Edinburgh Essays_,
vol. 3, p. 317; _Baillie’s_ Morbid Anatomy, p. 428.
Footnote 319:
_Edinburgh Med. Comm._ vol. ii, part 2, case 4.
Footnote 320:
Instit. di Med. For. di _Tortosa_, vol. I, p. 46; _Huxham_ de Febr. et
alia Opusc; _Durieu_. Diction d’Anatom.; _Plenck_. Obstetric, p. 137;
_Schener_. De Morbis Intestini Recti, c. iii, sect. 4, (_nota_ 5);
_Richter_. Element de Chir, vol. vi, p. 416.
Footnote 321:
_Palliani_ Epist. ad Hall, p. 268; _Monteggia_. Inst. Chirurg. p. iii,
p. 512.
Footnote 322:
_Edinburgh Medical Essays_, vol. ii, art. 27.
Footnote 323:
_Medical Repository._
Footnote 324:
_Sauvage._ Epist. ad Haller, vol. iii, p. 138; _Stalpart_. ii, 48,
from Opium.
Footnote 325:
_Brown’s_ Vulgar Errors, folio, 1686, p. 173.
Footnote 326:
_Murray’s_ Apparatus Medicaminum, vol. I, p. 395.
Footnote 327:
Treatise on the Venereal Disease, page 201 to 208.
Footnote 328:
_Baumer_, Medicin. Forens. p, 135.
Footnote 329:
_Montaigne’s_ Essay on Impotence, chap. xx.
Footnote 330:
MORGAGNI _De Causis et Sedibus Morborum_, Epist. xlvi.
Footnote 331:
_Journal des Practische Heilkunst._
MEMOIRES DE ACADEMIE DES SCIENCES. Ann. 1705. _Histori_, p. 52.
Footnote 332:
Dr. GORDON SMITH relates a case in which an operation of this kind was
performed with success. See his _Principles of Forensic Medicine_, p.
458.
Footnote 333:
HAMILTON’S _Outlines of Midwifery_, p. 119.
Footnote 334:
BAILLIE’S _Morbid Anatomy_. _Phil. Trans. vol._ 91.
Footnote 335:
DENMAN’S _Midwifery_.
Footnote 336:
For the ancient distinctions of natural, spurious, and illegitimate
children, see _Taylor’s Civil Law_, 270.
Footnote 337:
“It is now held that the husband’s being within the four seas, is not
conclusive evidence of the legitimacy of the child, and it is left to
a Jury to consider whether the husband had access to his wife. See 3
_P. W._ 275. 276; _Pendrell and Pendrell_, 2 _Stra._ 925. So evidence
may be given, that the husband’s habit of body was such, as to make
his having children an impossibility. _Lomax v. Holmden_, 2 _Stra_.
940: see also 1 _Roll. Abr._ 358; 1 _Salk._ 123. But the rule laid
down by Lord _Coke_, was once generally received. In _Jenk._ c. 10.
pl. 18. it is said “that if the husband be in Ireland for a year, and
the wife in England during that time has issue, it is a bastard; but
it seems otherwise now for Scotland, both being under one king, and
make but one continent of land.” (_Co. Litt._ 244.) and see also _Co.
Litt._ 126. _n._ 2. and authorities there quoted. Dr. _Ridley’s_ view
of the civil and ecclesiastical law, and the proceedings in the House
of Lords 1811, on the Banbury Peerage, where this point was much
discussed.”
Footnote 338:
In _Cuthbert & Brown_, Dublin C.P. 1821, an action was brought against
the defendant for deceit, by inducing the plaintiff to marry a woman
who was at that time pregnant.
Footnote 339:
In 1697 the Countess of Macclesfield declared the child with which she
was then pregnant to have been begotten by the Earl of Rivers; in
consequence of which confession, without any previous proceeding in
the ecclesiastical court, an Act of Parliament was passed annulling
the marriage and declaring the child with which she was enseint
illegitimate: 9 & 10 _Will._ 3. _c._ 11. private Act.
Footnote 340:
See note 1 _Bl. Com._ p. 456.
Footnote 341:
The children of _John of Gaunt_, Duke of Lancaster, by _Catherine
Swinford_, though born in adultery, he being then married, were
legitimised by Act of Parliament in 1397; the Duke having married his
mistress in the preceding year; see 9 _Froisard’s Chron._ 225.
Footnote 342:
See the case of Sergison & Sergison. 1820.
Footnote 343:
See the Journals of the House of Lords, and also Speeches and
arguments &c. of the Lords of Session in Scotland in the _Douglas_
trial. _London_, 1767.
Footnote 344:
For the _Annesley_ trials, see 17 & 18 _Howel. St. Tri._ and _Harg.
St. Tri._
Footnote 345:
See _Zacchii Questions Med. Leg. lib._ 1. _tit._ 5. _De similitudine
et dissimilitudine Natorum._
Dr. GREGORY, the late distinguished Professor of Edinburgh, used to
relate to his class, in order to convince them of the resemblance
which so generally exists between parents and children, that having
been once called to a distant part of Scotland, to visit a rich
nobleman, he discovered in the configuration of his nose, an exact
resemblance to that of the Grand Chancellor of Scotland, in the reign
of _Charles the First_, as represented in his portraits. On taking a
walk through the village after dinner, the Doctor recognised the same
form of nose in several individuals among the country people; and the
nobleman’s steward, who accompanied him, informed him that all the
persons he had seen were descended from the bastards of the Grand
Chancellor.
Footnote 346:
Yet it is said that shepherds and others accustomed to the continual
view and contemplation of animals, can discern as strong differences
in their forms and features as in the human species, and can
distinguish individuals accordingly.
Footnote 347:
It cannot however be denied that most astonishing likenesses sometimes
exist between persons utterly unconnected by blood or habit, of this
we shall have occasion to speak more fully when treating of personal
Identity. The name of _Douglas_ suggests a remarkable instance; Mr.
_Frank Douglas_, a well-known man of fashion, was committed for
highway robbery on the positive oath of one of the parties plundered,
and very narrowly escaped conviction. On the apprehension of the
notorious highwayman _Page_, the mystery was explained, the personal
resemblance being so great, as to deceive all ordinary observation.
See _Part_ 3. of _Personal Identity_.
Footnote 348:
_Harg. Coke Lit. p._ 29. _Chap._ 4. _Sec._ 35.
Footnote 349:
This law however prevails both in Scotland & Ireland. _Co. Litt._ 30.
Footnote 350:
But it has been doubted whether the child may not be heard to cry _in
utero_; Mr. DERHAM (PHIL. TRANS. vol. 26. p. 485) has given an account
of a case of _Vagitus Uterinus_, in which the child is said to have
cried for near five weeks before delivery, and what is equally
extraordinary, the author professes to credit the story! ETMULLER, in
his Dissertation “_De abstruso respirationis humanæ negotio_,” c. 9.
agrees with DIEMERBROECK in considering such a phenomenon as
impossible, and attributes the noise to flatulence. The learned
VERZASCHA of Basil gives a long catalogue of cases of _Vagitus
Uterinus_, in his third _Observ. Medic._ see also Dr. NEEDHAM’S work
“_De formato fœtu_.”—CHRISTIAN II. King of Denmark, is said to have
cried before he was born. We must, however require very powerful
testimony to shake our incredulity upon this subject, and we should
then be rather inclined to believe the event with Livy, as a prodigy
of Nature, than to consider it, with Derham, as a natural phenomenon.
Footnote 351:
The words _oyes ou vife_, do not warrant this doubt, (see Notes ibid),
for “the crying is but a proofe that the child was born alive, and so
is motion, stirring, and the like,” or indeed any other evidence to
shew that there was living issue born; such at least appears to be the
present law upon the subject, but it may be doubted whether the
ancient law did not contemplate not only a living child, but a child
born in due course, and therefore likely to live. A Fœtus of a few
months when extracted may move, yet such fœtus could not live, and
cannot be considered as possessing the principles of independent
vitality; so that it should survive its separation from the mother.
But when a child can cry, the lungs, which are to supply the
circulation, for which till then, the infant had been dependant, are
matured for their office, which once commenced the child becomes a
separate and independent being. LOUIS IX. decreed, that in order to
give a child the title of inheritance it should have cried—i.e.
completely respired.
Footnote 352:
And query also, why was a living child required? Foreign writers made
a distinction between vivum and vitale, “Hoc est qui vitam protrahere
hæreditatis particeps fieri, eamque ad alios transferre possit.”
_Ludwig. Ins. Med. For._ p. 42.
Footnote 353:
A cause in illustration of this subject was tried in 1806. FISH _v._
PALMER—and was as follows: _Fish_ had a still-born child by his wife,
and at her death, as no issue had been born alive, he resigned the
estate to his wife’s brother-in-law. He was, however, afterwards
induced to contest the fact of the child having been born dead. The
accoucheur, _Dr. Lyon_, had died before the trial, but it appeared in
evidence, that he had declared the child to be living an hour before
the delivery, and having directed a warm bath to be prepared, gave the
child to the nurse to be immersed in it. It neither cried, nor moved,
nor did it shew any signs of life; but two women swore, that while in
the hot water, there twice appeared a twitching and tremulous motion
of the lips: upon informing _Dr. Lyon_ of this, he desired them to
blow into its throat, but it never exhibited any other signs of
vitality. It was declared by _Drs. Babington_ and _Haighton_, that the
muscular motion of the lips could not have happened if the vital
principle had been quite extinct, and that, therefore, the child was
born alive. _Dr. Denman_, however, gave a contrary opinion, and
declared that the child was not born alive; and he attempted to
establish an important distinction between uterine and extra-uterine
life, and considered that the tremulous motion of the lips might arise
from some remains of the former. _Foderé_ in quoting the case
expresses a similar opinion, and pronounces that the slight convulsive
motions alluded to, ought not to have been received as evidence of the
child’s vitality. The Jury, however, found that the child was born
alive.
Footnote 354:
If a woman seized of lands in fee taketh husband, and by him is bigge
with childe, and in her travel dieth, and the childe is ripped out of
her body alive, yet shall he not be tenant by the curtesie; because
the childe was not born during the marriage, nor in the lifetime of
the wife, but in the meane time the land descended, and in pleading he
must alledge that he had issue during the marriage. _Co. Litt._ 30.
Footnote 355:
If the wife be delivered of a monster, which hath not the shape of
mankinde, this is no issue in the law; but although the issue hath
some deformity in any part of his body, yet if he hath humane shape
this satisfieth. “Hi qui contra formam humani generis converso more
procreantur, (ut si mulier monstrosum vel prodigiosum fuerit enixa
inter) liberos non computentur. Partus tamen cui natura aliquantulum
ampliaverit vel diminuerit non tamen superabundanter, ut si sex
digitos vel nisi quatuor habuerit, bene debet inter liberos
commemorari. Si inutilia natura reddidit membra, ut si curvus fuerit
aut gibbosus vel membra tortuosa habuerit, non tamen est partus
monstruosus. Item puerorum alii sunt masculi, alii hermaphroditæ.
Hermaphrodita tam masculo quam fœminæ comparatur secundum
prevalescentia sexus incalescentis.” _Co. Litt_ p. 30.
Footnote 356:
It is scarcely necessary to guard the reader against a belief in the
extraordinary instances of monstrosity which are to be found in the
periodical collections published during the seventeenth and beginning
of the eighteenth century, as in the _Ephemerides, Journal des
Sçavans, &c._ In one, there is mention made of a child born with a
pig’s head; in another a woman is delivered of an animal exactly like
a pike fish!
Footnote 357:
If two Embryos, contained in the same ovum, be placed back to back,
and the surfaces of contact should become inflamed, their mode of
union may be easily perceived. If we put the fecundated Ova of a
tench, or any other fish into a small vessel, the numerous young not
having sufficient space to grow, become jointed to each other, and
hence will arise monstrosities in fish.—_Richerand’s Physiology._
Footnote 358:
The most remarkable case of this kind upon record is that related by
BUFFON (_Hist. Naturells_, Supplement, tom. ii, p. 410), of a double
infant, joined at the loins and having a common anus, but being in all
other respects, morally as well as physically, separate beings. They
were born at Tzoni, in Hungary, on the 16th of October 1701, and died
in a convent at St. Petersburg, on the 23d of February 1723. Their
names were _Hélène_ and _Judith_; the one having been attacked with
fever, became lethargic and died, upon which the other was seized with
convulsions and survived her unhappy partner not more than three
minutes.
Footnote 359:
In writing a work which is calculated for the instruction of so wide a
range of readers, the authors have felt some difficulty in adjusting
their _Zero_; but when they assure their scientific friends that they
have heard a provincial attorney advocating the legality of smothering
a hydrophobic patient, they trust that they will stand excused, even
should their precautions be apparently trivial. Two women were tried
at the York Assizes in 1812, for drowning a child, which was born with
some mal-formation of the cranium, in consequence of which, it was
likely that it could not survive many hours. There did not appear to
have been any concealment on the part of the prisoners, who were not
aware of the illegality of the act.
Footnote 360:
See ROEBUCK and HAMERTON, _Cowp._ 737, and HAYES _v._ JAQUES, July 1,
1777. There is some account of this latter case in the _Annual
Register_, and in the _Gentleman’s Magazine_. The author of the
present work was present at the anatomical examination of the
_Chevalier D’Eon_, which took place in his lodgings in Milman-street,
Bedford-row. _Sir Anthony Carlisle_ examined the organs of generation,
and satisfied all present of the perfect condition of the testicles.
Footnote 361:
By a decree of the magistracy this unfortunate woman was compelled to
assume the dress of a male, and to change her name and character, in
spite of her own feelings and inclinations; some time, however, after
this event, she consulted _Helvetius_, who succeeded in completely
curing the disease, and she was in consequence actually restored to
her proper sex by a royal ordinance! So much for the value of that
_ultra medico-legal_ system which has distinguished some of the
continental governments.
Footnote 362:
See _An Experimental Inquiry concerning Impregnation, by_ John
Haighton, M.D. Phil. Trans. for 1797, vol. 87, p. 159.
Footnote 363:
_De Generatione Animalium._
Footnote 364:
_Hunter._ Anatomia Uteri Humani Gravidi, Tabulis Illustrata.
Footnote 365:
_Dr. Heberden_ relates a case in his _Commentaries_, (chap. 43) of a
woman who never ceased to have regular returns of the menstrual
discharge, during four pregnancies, quite to the time of her delivery.
Footnote 366:
_Burns’_ Midwifery, edit. v. p. 197.
Footnote 367:
_Denman’s_ Introduction to Midwifery.
Footnote 368:
Principles of Midwifery, edit. v.
Footnote 369:
Cours de Medicine Legale.
Footnote 370:
“Les symptomes qu’on appelle signes rationels de grossesse, ne la
caracterisent cependant, que d’une maniere tres incertaine.”
_Baudelocque_, L’Art de Accouchem. t. 1, p. 180.
“Omnes qui de graviditatis signis scripserunt, quamvis longo artis usu
celebres fuerint, unanimi ore fatentur, primis præcipue mensibus signa
graviditatis satis incerta esse.” (_Van Swieten_ Com. in Aphor Boer.
tom. vi, p. 331.)
Footnote 371:
_Van Swieten_ Com. in Boer. tom. vi, p. 330.
Footnote 372:
_La Medecine Légale, relative a l’Art des Accouchemens. Par J.
Capuron._ A. Paris, 1821. A work which we very strongly recommend to
those who are interested in the subject.
Footnote 373:
_Roeder._ Elem. Art. Obst. p. 52.
Footnote 374:
Instituzione di Med. For. vol. 1, p. 179—also _Plenck_, Art. Obst. p.
38.
Footnote 375:
We all remember the extraordinary instance of _Johanna Southcote_.
Footnote 376:
In the celebrated case of the _Demoiselle Famin_, published at Berlin
and Paris by Valentin, 1768, a charge of pregnancy and child-murder
was erroneously instituted, in consequence of an extreme case of
Ovarian dropsy.
Footnote 377:
_Dictionaire de Chirur. tom._ 1.
Footnote 378:
_Traité des Accouchemens._
Footnote 379:
_Trattato dei Parti, p._ 26.
Footnote 380:
_L’Art des Accouchemens._
Footnote 381:
QUICK, a word of Saxon origin, signifying _living_.
Footnote 382:
It is difficult to say why the embryon of one or two months should not
have the same protection of the law, as that which has been half its
time in the womb. _Mahon_ expressed a similar opinion—“et voilà le
tort immense que font quelquefois les systèmes et les opinions
scholastiques!”
Footnote 383:
The only immunity to which pregnant women are entitled by the law of
England is the suspension of capital punishment until after delivery.
The state of utero-gestation appears in all ages to have secured
certain privileges and honours to the female; the Athenians even
spared the murderer who took refuge in her dwelling; the ancient kings
of Persia made presents of pieces of gold to every woman in this
condition; and even the Jews relaxed the rigid ordinations of the
Mosaic law, and allowed prohibited viands to the pregnant female,
whose delicate and fastidious appetite might make them objects of
desire. In Egypt the woman condemned to die, was never executed until
after her delivery, and the tribunal of the Areopagus observed a
similar regulation, that the innocent infant might not suffer for the
crime of its mother.
Footnote 384:
De Epidem. Lib. 3.
Footnote 385:
Tome xxvi.
Footnote 386:
_La Medicine Legale relative a l’art des accouchemens, Quest._ “DE LA
VIABILITE,” p. 152.
Footnote 387:
“Cette distinction et cette interpretation sont evidemment conformes a
l’étymologie du mot _viabilité_, qui dérive, non du latin _vita_, vie
mais de _via_, voie, carrière, chemin; en sorte que, d’après la
grammaire seule, l’enfant pourrait vivre quelques heures, meme
quelques jours après sa naissance, comme il vivait dans le sein de sa
mère, sans etre pour celà _viable_, ou capable de parcourir la
carrière de la vie.”—CAPURON, p. 195.
Footnote 388:
Cap. iii, §. 12.
Footnote 389:
_Hippocrates_ Lib. de Septimest. et Octomest. Part. edit. _Halleri_.
See also _Aristot._ Metaphys. Lib. 1, c. 5.
Footnote 390:
It is generally computed from a single coitus, or from a fortnight
subsequent to the last menstrual period; in some cases the computation
has been made from the time of _Quickening_; in either of the two
first methods of calculating, _forty_ weeks are allowed, in the last
about _twenty-two_ weeks.
Footnote 391:
Independent of its obvious importance in determining questions of
legitimacy, it may often be important to determine the longest period
of utero-gestation, for the purpose of ascertaining a child’s right to
property. A child _in ventre sa mere_ is capable of taking by bequest
or devise, even from the earliest period after conception; in which
point our civil is more merciful, and more consonant to the course of
nature, than our criminal law, which regards only the time of
quickening. If therefore _A_ bequeath or devise to all the children of
_B_ living at the time of his death, and _B_ six or seven months after
his death is delivered of a child, that child was clearly _in esse_ at
the time of the testator’s death, and is entitled to its share; it is
equally clear at nine months, provided the child be of its full
growth; but after ten it may be made a question whether such child is
or is not entitled.
Si home morust feme ad issue nee 40 weekes & 8 jours puis son mort,
come sil morust 23 _Marcii_ & l’issue est nee 9 _Jan_ ensuant, cest
issue serra legitimate, car ceo poet estre legittimate par nature, &
la ley n’ad limitt ascun certain temps del nestre de legitimate
infants _Mich._ 17 _Ja. B. R._ —— —— —— sur evidence al barr que
concern leire dun _Androwes resolve per Curiam_, en quel case _Doctor
Paddy & Doctor Mumford_ deux _Physitians_ esteant jure informe le
Court, Que per nature tiel issue poet estre legitimate, car ils
disont, que lexact temps del nestre dun infant est le 280 jours del
conception, scilicet 9 moies & 10 jours apres le conception,
accountant ceo _per menses solares scilicet_ 30 jours al chescun mois;
mes est natural auci si le nestre soit ascun temps del 10 moies
_scilicet_ dans 40 semaignes, sont tout un; mes per accident un infant
poet estre nee apres les 40 semaignes on devant; Et en le case al barr
fuit prove que le feme longe pur choses en vie sa baron, & que le
baron morust del plague, issint que il fuit egrote forsque un jour
devant son mort, & que le _father in lawe_ del feme luy persecute &
use ove grand inhumanitie, & cause luy a demurrer en le streete per
divers nuits, & que le feme fuit en travell 6 semaignes devant el fuit
deliver, mes que ceo fuit interrupt per le dit usage del _sa pere in
lawe_, & que el fuit deliver deins 24 heures après que el fuit receive
en un mese & bien use que fuit bon proofe del legittimation, Coment
que fuit prove de l’auter parte, que le feme fuit un lewde femme de sa
corps. Et sur evidence le Jurie luy trove legitimate. _Nota_ que a la
triall un _Chamberlaine_ un home midwife informe le Court sur son
serement, Que il ad conus un feme destre deliver dun infant, & 2
semaignes apres destre deliver deu auter. Et les _Doctors_ disont que
le nestre est _citius_ on _plus tarde_ solonque le nutriment que le
mere ad purluy. 1 _Rolle Ab._ 156.
Footnote 392:
By the law of Scotland, a child born _six_ months after the marriage
of the mother, or _ten_ months after the death of the father is
considered as legitimate.
Footnote 393:
_Elements of Juridical Medicine, edit._ 2, p. 249.
Footnote 394:
Quæst. Med. Leg. Lib. vii, Q. 2.
Footnote 395:
This conference was held in consequence of the writings of BOHN,
Professor at Leipsic, and of ALBERT of Halde Magdebourg, who asserted
that after the first week, any personal examination was
unsatisfactory.
Footnote 396:
_Traité de Med. Leg. par_ FODERE, _tome_ 2, _p._ 18; and _Bulletin des
Sciences Med. de la Societé Med. d’Emulat. de Paris, tom._ 5, _no._
39, _p._ 105.
Footnote 397:
_Tome_ viii.
Footnote 398:
PHIL. TRANS. A.D. 1741.
Footnote 399:
In _Capuron’s_ work before cited many other cases are related, p. 126.
See also _Burn’s_ Midwifery, edition 4, p. 451. _Diemerbroeck_ Anat.
Lib. ii, c. 2. Cours de Medicine Legale, par J. J. _Belloc_.
_Blumenbach’s_ Institutions of Physiology, sect 42. (_Appendix, Note_
H.)
Footnote 400:
The appearances of the uterus, in the celebrated case of Miss Burns,
were explained by Dr. _Carson_, by supposing that a recent expulsion
of an hydatid had taken place; we shall have occasion hereafter to
dwell at considerable length upon the very extraordinary evidence
which was given upon the trial of _Charles Angus, esq. for the murder
of Margaret Burns_.
Footnote 401:
Principles of Midwifery. Edition 5, p. 557.
Footnote 402:
GYNÆCOLOGIA.
Footnote 403:
“Finis gignendi, ut plurimum, viris quidem septuagesimus annus est,
mulieribus autem quinquagesimus.” _Aristot._ Polit. Lib. 7, c. 16.
“Vidi Mares fertiles ad annum nonagesimum, et fæminas quæ ad annum
quinquagesimum secundum fertiles mansere puerperæ.” _Boerhaave_ Op.
Omu. p. 514.
Footnote 404:
_Plinii_ Hist. Nat. Lib. vi, c. 14.
Footnote 405:
_Plott’s_ Nat. Hist. of Staffordshire, chap. viii, section 3.
Footnote 406:
_Elements of Physiology_, translated by Kerrison.
Footnote 407:
Phil. Trans. for 1786. Vol. lxxxvi. p. 349.
Footnote 408:
Journal des Praktischen Heilkunst. Berlin, Jan. 1, 1820.
Footnote 409:
Medical Logic. Edit. 2. p. 35.
Footnote 410:
Phil. Trans.
Footnote 411:
_Hippocrates_ de Super-fœtat: also Epidem. Lib. vii.
Footnote 412:
_Aristotle_ De Generat. Animal. Lib. iv. c. 5.
Footnote 413:
_Plinii_ Hist. Nat. Lib. vii. c. 2.
Footnote 414:
_Gaspar Bauhuin._ App. ad Lib. de Part. Cæsar. Tit. de Superfœtat.
Footnote 415:
Histoir. Nat. de l’Homme—_Puberte_.
Footnote 416:
De Hist. Animal. p. 258.
Footnote 417:
Hist. Nat. Lib. vii. c. 11.
Footnote 418:
Comment. ad Aphorism 38. Lib. v. p. 817.
Footnote 419:
Quæst. Med. Leg. Tom ii. Consilium 76. See also L’Histoire de
l’Academie des Sciences, Ann. 1709.
Footnote 420:
De Partu Exercit. p. 547.
Footnote 421:
Element. Physiolog. Tom x. p. 218.
Footnote 422:
Quæst. Med. Leg. Lib. 1. Tit. 3. Q. 3 and 4.
Footnote 423:
Element. Physiolog. Tom x. p. 212.
Footnote 424:
Medical Transactions. Vol. iv. p. 161.
Footnote 425:
Phil. Trans. for the year 1818.
Footnote 426:
Opera. Tom. iii. p. 388.
Footnote 427:
Memoir de L’Academie, An. 1701.
Footnote 428:
Append. ad Rousset de P. C.
Footnote 429:
Tabul. Anat. Uteri dupl.
Footnote 430:
Element. Physiolog. T. x, p. 38. See also Memoirs of the Med. Soc.
Vol. iv. _Purcell_ in Phil. Trans. lxiv, p. 474. _Canestrini_, in Med.
Facts. Vol. iii. p. 171.
Footnote 431:
De Super-fœtatione.
Footnote 432:
Inst. Med. Leg. p. 77.
Footnote 433:
Dict. d’Anatom. T. ii. p. 537.
Footnote 434:
See _Hamilton’s_ Outlines of Midwifery, p. 105.
Footnote 435:
_Hippocrat._ Aphorism. Sect. v. 51.
Footnote 436:
Opera Omnia C. 1. p. 302.
Footnote 437:
Anthropologia Forensis, Leip. 1753, p. 208.
Footnote 438:
Institut. Med. For. p. 44.
Footnote 439:
L’Art des Accouchemens.
Footnote 440:
An Experimental Inquiry concerning Impregnation, by _Dr. Haighton_,
Phil. Trans. for 1797, Vol. lxxxvii, p. 159. See also Experiments on
recently impregnated Rabbits, by _W. Cruikshank_, Phil. Trans. Vol.
lxxxvii, p. 197; and more recently a paper, entitled “Experiments on a
few controverted points respecting the Physiology of Generation,” by
_James Blundell, M. D._ in the tenth volume of the Medico-Chirurgical
Transactions, p. 246. This memoir bears internal evidence of the
acuteness and experimental accuracy of its author.
Footnote 441:
Chirurg. Forens. T. ii. p. 44.
Footnote 442:
_Gravel_ de Superfœtatione—Leipsic Memoirs for 1725—and _Teischmeyer_
Inst. Med. Leg. p. 75.
Footnote 443:
_Burns’s_ Principles of Midwifery, edition 5, p. 250.
Footnote 444:
_Burns_ ibid.
Footnote 445:
_Introduction to the Practice of Midwifery, 4to p._ 395.
Footnote 446:
_A Synopsis of the various kinds of Difficult Parturition, with
Practical Remarks on the Management of Labours, by S. Merriman,
M.D.F.L.S. &c. p. 171._
Footnote 447:
_Medical Facts and Observations, vol. 8._
Footnote 448:
_Medico-Chirurgical Transactions, vol._ 3, _p._ 144; and _Synopsis of
the various kinds of Difficult Parturition, p._ 173.
Footnote 449:
No infant, at the full time, and of the usual size, can be born
naturally when the small diameter of the pelvis is not equal to _two
inches and a half_. See _Hull’s_ translation of _Baudelocque_.
Footnote 450:
Op. citat. p. 152.
Footnote 451:
Cases of such difficulty as to render the use of instruments
absolutely necessary are so rare as not to occur more than once in
_six_, or, at most, _five hundred_ labours. _Midwifery_, as a
practice, must have been nearly coeval with the creation, but during
the first ages it probably consisted in little else than a knowledge
of the method of dividing the navel string; as difficulties, however,
arose, this knowledge, of necessity, was gradually extended to that of
affording mechanical assistance in the exclusion of the fœtus; but it
would seem that for many ages those artificial means consisted almost
entirely in anointing the pudenda with oil, and in placing the women
in hot baths, as we learn from the writings of _Hippocrates_,
_Avicenna_, and other ancient writers, who appear to have attributed
the whole of the difficulty to a rigidity of the muscles, and to have
entirely overlooked that formidable obstacle to child-birth, the
mal-conformation of the pelvic basin. _Hippocrates_ and _Celsus_,
however advise, that upon the failure of the ordinary means above
alluded to, the head of the child should be opened with a scalpel, and
then extracted with strong iron pincers or hooks; but it appears that
the advice of _Hippocrates_ was rarely followed, and that, in such
cases, the child was mangled by the scalpel, and brought away
piece-meal. See _Albucasis_, Methodus Medendi Lib. ii, and _Ruett_ de
Conceptione et Generat. Hominis.
Footnote 452:
The FORCEPS were invented by _Chamberlen_ in 1672, and in his
translation of _Mauriceau’s_ Treatise on the Art of Midwifery, he
indirectly announces the discovery, but does not describe the
instrument.
Footnote 453:
The _Lever_ appears to have been invented at about the same time by
_Roonhuysen_, of Amsterdam, after his having purchased the secret of
the Forceps from their inventor _Chamberlen_.
Footnote 454:
“_Traité nouveau de l’Hysterotomotokie, ou Enfantement Cesarien, qui
ese l’extraction de l’enfant par incisione laterale du ventre, et de
la matrice de la femme grosse, ne pouvent autrement accoucher; et ce
sans prejudicier à la vie de l’un et de l’autre, ni empecher la
fecondité naturelle par après._”
Footnote 455:
_Edinburgh Medical Essays, vol._ v. _Baudelocque_ has published a
table of operations amounting to 64, 24 of which have been performed
with success to the mother, and all of them might have been attended
with success to the child, if they had been performed in time. See
_Hull’s_ Translation.
Footnote 456:
_Synopsis_, p. 164. In the Appendix _Dr. Merriman_ has given a _list
of cases in which the operation has been performed in the British
islands_. See also _Dr. Denman’s_ Introduction to Midwifery; and the
Defence of the Cæsarean Operation by _Dr. John Hull_, Physician at
Manchester, 8vo. 1798.
Footnote 457:
While correcting the present work, we have received a report of the
Cæsarean operation having been performed in Paris, by _M. Beclard_
with complete success. The incision was made in the direction of the
_Linea Alba_. See also, _A case of Cæsarean operation, in which the
lives of the mother and child were both saved_, by J. J. LOCKER, M. D.
in the 9th vol. of the Medico-Chirurg. Trans.; also _The History of a
Second Operation, performed on the same Patient_, together with an
Appendix by W. LAWRENCE, Esq. ibid. vol. II, p. 201.
Footnote 458:
_Bell’s_ Surgery, vol. 5, p. 300.
Footnote 459:
We have already alluded to this opinion, see _Midwifery_, p. 82. The
same superstition will explain the origin of the jurisdiction which
the priesthood have enjoyed in deciding upon the propriety of
performing the _cæsarean section_; the doctors of the _Sorbonne_, and
the heads of theological schools and colleges have freely given
decisions upon it, and have ruled, that it ought to be performed
whenever it is known that the child is living, and it is impossible by
other means to extract it alive; for they assert that it is a deadly
sin (_péché mortel_) to perforate the head of a living child in the
womb. The clergy are instructed, in the event of a mother refusing to
submit to the operation, to omit no means of persuading her; they are
to point out all its advantages, and to intimate, that the operation
is not so cruelly painful as might be thought; they are directed to
speak of submission to it, as an act of the greatest love to God, and
resignation to his will, that can possibly be shewn: it is even
suggested, that under some circumstances, the patient might be
forcibly confined, and the operation performed against her will. It is
further declared, that physicians or surgeons refusing to recommend or
to perform the operation, when they should think it necessary, would
thereby render themselves guilty of a deadly sin, and ought to be
reprimanded by the magistrates; and praise is given to an edict, in
force in Sicily, which declares that no person shall be admitted to
practise as a surgeon, until he has been carefully examined as to the
manner of performing the _cæsarean_ operation on the living mother.
See _Merriman’s_ work already cited; _Cangiamila_ Embryologia sacra
passim; _Raynaud_ de ortu Infantis contra Naturam.
Footnote 460:
Amongst these cases, the following appears as an interesting instance.
“Wednesday, July 15th, at Eddescastle, Staffordshire, the wife of Mr.
Prescott, an exciseman, being killed by a flash of lightning, was
opened, and a living male child taken out, which was immediately
christened _Jonah_, and is like to live.” _Gentleman’s Magazine_,
1747. See also _Spence’s Midwifery_, 1784, p. 495. _Viardel_ cxxiv.
_Embryologia sacra._ SCHURIGII _Embryologia_, p. 122.
Footnote 461:
_Digest._ Lib. 11, Tit. 8, L. 2.
Footnote 462:
_Van Swieten_ (Com. in Boerh. Aph. tom vi, p. 403) has the following
observation upon this subject, “_Non desperandum tamen est de fœtus
vita, licet post mortem matris notabile tempus effluxerit, uti
pluribus constat observatis_.”
Amongst the different proposals which have been submitted to the
profession with a view to supersede the necessity of the Cæsarean
section, that proposed by _M. Sigault_, a surgeon at Paris, in the
year 1768, deserves some notice. The operation, which from the name of
its inventor was called the _Sigaultian_, consisted in making a
section of the _Symphysis Pubis_; perhaps, says _Dr. Merriman_, there
never was a surgical operation more enthusiastically received and
commended than this. The operator was immediately honoured with a
pension from the French government, and a medal was struck to
commemorate the invention; at length, however, the ill success of the
practice occasioned it to sink into complete desuetude, and the
remembrance of it can now be beneficial only as it may serve to
caution us against the inconsiderate and hasty adoption of modes of
practice unsupported by just reasoning, and unsanctioned by
experience. _Merriman_, Op. citat. p. 168.
Footnote 463:
See a most interesting case of Ovario-gestation, by _Dr. Granville_,
published in the Phil. Trans. 1820.
Footnote 464:
_See a description of an Extra-Uterine Fœtus contained in the
Fallopian Tube_, by GEORGE LANGSTAFF, Esq. Medico-Chirurg. Trans. vol.
7, p. 437.
Footnote 465:
_Fourcroy_, Système, tom. x, p. 83. See also our observations and
references upon this subject at page 96.
Footnote 466:
See _the History of a Woman who bore a seven months Fœtus for seven
years, and was delivered of it per anum, and completely recovered_, by
Dr. ALBERS. Med-Chirurg. Trans. vol. 8, p. 507.
Footnote 467:
See _Burn’s_ Midwifery, edit. 4, p. 189.
Footnote 468:
_Baillie_ Phil. Trans. vol. 79.
Footnote 469:
Anthropolog. Lib. 2, c. 34.
Footnote 470:
_Medico-Chirurg. Trans._ vol. 10, p. 269.
Footnote 471:
The Greek word Ἑρμαφροδιτος is a compound of Ἑρμης, _Mercury_, and
Αφροδιτη, _Venus_—a mixture of Mercury and Venus, i. e. of Male and
Female. The Greeks also called Hermaphrodites Ανδρογυνοὶ, i.e.
_men-women_.
Footnote 472:
In the _Memoirs of the French Academy_, there is an account of
hermaphrodite animals, that not only have both sexes, but do the
office of both at the same time; such are _earth-worms_; _round-tailed
worms found in the intestines of men and horses_; _land snails, and
those of fresh waters_; _and all the species of leeches_. And as all
these are reptiles, and without bones, _M. Poupart_ concludes it
probable, that all other insects which have these two characters, are
also hermaphrodites. Monstrous productions, having a mixture of the
male and female organs, and which have been termed _hermaphrodites_,
(although the _ovaria_ and _testes_ are always too imperfect to
perform their functions) appear to arise most frequently in neat
cattle, and are known by the name of _Free Martins_. The reader will
find much curious information upon this subject in a paper by _Mr.
John Hunter_, in the 69th vol. of the Philosophical Transactions.
_Pliny_ tells us that the chariot of _Nero_ was drawn by four
hermaphrodite horses.
Footnote 473:
The doctrine of hermaphrodites has nevertheless been warmly maintained
by foreign writers, among whom we may notice _Aldrovandus_, _Licetus_,
_Schurigio_, _Paul Zacchias_, and _Bauhin_.
Footnote 474:
_Comment. Soc. Reg. Scient. Gottingen._ T. 1.
Footnote 475:
Phil. Trans. vol. 89, A. D. 1799.
Footnote 476:
Anatomy of the human body, p. 314, and the plate. A similar case is to
be found in the _Sloane M.S._ in the British Museum, no. 4432, 5.
“_Hoc non satis animadvertantes mulierculæ nativitate ejus adstantes,
in dijudicatione sexus erravere, et Infans Elizabethæ nomine
baptizabatur._”
Footnote 477:
This observation applies to the irregular structure of quadrupeds as
well as to that of man; _Haller_ dissected a ram, in which the parts
had been supposed to be those of an hermaphrodite, whereas he found
the animal with the imperfections above related.
Footnote 478:
This appears to have been the fact in the case related by _Mr. Pring_.
See London Medical Repository, vol. 18.
Footnote 479:
_M. Ferrien_ observes, an erroneous opinion prevailed in France that
the greater number of miscarriages between three and four months, were
males; the mistake, says he, evidently arose from the size of the
clitoris at this period—Mem. de l’Acad. Royal des Sciences de Paris,
1767, p. 330. See also _Arnaud_ on Hermaphrodites. _Parsons_, Phil.
Trans. 1751, 142.
Footnote 480:
_Male’s_ Juridical Medicine, edit. 2, p. 266. _Baillie’s_ Morbid
Anatomy.
Footnote 481:
Hist. de l’Academie Royal, &c, 1720.
Footnote 482:
Principles of Forensic Medicine, p. 498.
Footnote 483:
We omitted to state in page 286 that an enlarged Clitoris is almost
endemial in some countries, particularly Egypt and Darfur, where the
excision of it is very commonly practised, and the operation is
performed a little before the period of puberty, or at about the age
of 8 or 9 years; this custom is mentioned by _Strabo_, and also by
_Albucasis_, who in his 7th chapter observes, that every parent knows
when a child has those parts longer than ordinary, and cut and burn
them off while the girls are very young. _De Graaf_ was also
acquainted with the fact, and observes, “Estque hujus partis chirurgia
orientalibus tam necessaria quam decora.”
Footnote 484:
In which case the finding of the jury should follow the words of the
commission, or the inquisition may be quashed. _Ex parte Cranmer_, 12.
_Ves._ 455.
Footnote 485:
The word MAD has been derived by Dr. Haslam from the Gothic MOD, which
signifies _rage_; he observes, “it is true, we have now converted the
O into A, but MOD is the ancient word.”
Footnote 486:
_Ideocy_, or _fatuity a nativitate, vel dementia naturalis_. Such a
one is described by _Fitzherbert_, who knows not to tell 20s, nor
knows who is his father or mother, nor knows his age; but if he knows
letters, or can read by the instruction of another, then he is no
ideot. _F. N. B._ 233. new edit. 517. These, though they may be
evidences, yet they are too narrow, and conclude not always; for
_ideocy_ or not is a question of fact triable by jury, and sometimes
by inspection. _Hale Pl._ 29. _Bl. Comm._ 304.
Footnote 487:
Hence the term LUNACY, from the supposed regulation of the intellect
in certain states, by the influence of the moon; and the distinction
between Idiot and Lunatic was formerly of the greatest importance, as
the King had the custody of an Idiot to his _own use_, not so of a
Lunatic. F.N.B. 530, n. _Dyer_, 25.
Footnote 488:
_Igiter si de insania ejusque variis generibus judicium ferendum est,
hoc ab iis potissimum fierio portet, quibus omnia pertinent, quæ ad
omnem hominis naturam proprius perspecta sunt, atque cognita, medici
igitur de dignoscendis insanis audiendi sunt.—Platner de Insanis et
furiosis._
Footnote 489:
The word is originally Greek, ιδιωτης, a _private person_, or one who
leads a private life, without any share or concern in the government
of affairs.
Footnote 490:
Anciently the king could grant the care of an idiot’s person and the
profits of his estate during his life, without account, except for
necessaries; but since the Revolution the crown has always granted the
surplus to some of his family. _Ridgw. Pa. Ca._ 159. _App. n._ 1.
_Lysart v. Royse. Sch. and Lef._ 153. _Fitz-geralds Case ib._ 436.
Footnote 491:
See also Lord _Wenman’s case_, 1 _P. Wms._ 702, _Beverley’s Case_, 4
_Co. R._ 126; _Rochfort v. Ely, Ridgw. Parl. ca._ 515 _App. note_ 1.
Footnote 492:
This term is recognised by the 4th _Geo._ 2, _c._ 10. _Carew v.
Johnson_, 2 _Sch. and Lef._ 304, and Sir _Ed. Coke_ says it is the
most legal name, 1 _Inst._ 246: “Here _Littleton_ explaineth a man of
no sound memory to be _non compos mentis_. Many times (as it here
appeareth) the Latin word explaineth the true sense; and calleth him
not _amens_, _demens_, _furiosus_, _lunaticus_, _fatuus_, _stultus_,
or the like, for _non compos mentis_ is most sure and legal.” Lord
_Coke_ says, “_Non compos mentis_ is of four sorts: first _Idiota_,
which from his nativity, by a perpetual infirmity, is non compos
mentis; secondly, he that by sickness, grief, or other accident,
wholly loses his memory and understanding; thirdly, a lunatic that has
sometimes his understanding and sometimes not, “_aliquando gaudet
lucis intervallis_;” and therefore he is called _non compos mentis_,
so long as he hath not understanding.”
Footnote 493:
Where it is among other things laid down that mere weakness of mind
only is not a sufficient reason for granting the custody of the person
and of his estate. The cupidity of relations is too apt to magnify
indiscretion, eccentricity, and more particularly pecuniary
extravagance into signs of madness; juries and commissioners cannot be
too much on their guard against such modes of proof, lest one half of
the world should lock up the other. The Romans committed prodigals to
the custody of a guardian, as if they had been infants or madmen; but
this is not the law of England.
Footnote 494:
In common parlance it is called the jurisdiction of the Court of
Chancery; but in strictness, the care and regulation of ideots and
lunatics is a branch of the king’s prerogative (17 _Ed._ 2. _c._ 9.)
which is committed to the Lord Chancellor, not by delivery of the
great seal, as his general jurisdiction is, but by warrant under the
sign manual; therefore the appeal is to the King in Council, and not
to the House of Lords; and neither the Master of the Rolls nor the
Vice Chancellor can sit for the Chancellor, or make any orders in
matters of lunacy.
Footnote 495:
See _Beverley’s Case_, 4 _Co. Rep._ 123. So in the case of Miss
_Kendrick_, 8 _Ves._ 67; Lord _Eldon_ said, “No one can look at this
case without seeing, that every person about this lady is satisfied,
that some care should be thrown round her. If clearly it is fit to
protect her against executing powers of attorney, that she should not
decide where her person, or with what trustees her property ought to
be, all agreeing, that she should not choose the persons who are to
have the care of her property, it is fit for me to put a controul upon
those who may be proper persons to have the controul of her property.
I will not subject her to another commission; but will direct two
physicians, who have not been concerned nor consulted, to talk to
those who have been concerned and consulted, to see the evidence, and
afterwards in the most tender manner, to find the means of visiting
her without alarming her, for the purpose of determining, whether her
state of mind is competent to the management of her affairs. I am
pretty confident Lord _Hardwicke_ would not have gone so far: but
finding when I came here a course of cases establishing this
authority, and feeling a strong inclination to maintain it, or that
the legislature should take measures to preserve persons in a state of
imbecility, laying them as open to mischief as insanity; till these
decisions are reviewed, I will not alter them.”
An order was made accordingly, restraining Miss _Kendrick_ from
executing any instrument, except in the manner and with the
attestation directed by the order.—We have not been able to discover
this order in the Register’s books.
Footnote 496:
A broad distinction, however, is to be made between the immediate and
remote effects of intoxication: we shall have occasion to dwell at
greater length upon this subject, under the consideration of Criminal
Responsibility, in the third part of this work; upon the present
occasion, we shall only observe in the words of Dr. Haslam, that
although the usual effect of fermented liquors is temporary, yet that
a single debauch may produce a state of mind that may be continued
into a permanent insanity; and the person so affected may remain for
many months in a state of mental derangement, and during the
prevalence of his disorder may be compelled to forego all intoxicating
beverage.
Footnote 497:
_See Bl. Commen._ 497; _Hall v. Warren_, 9; _Ves._ 605; _White and
Wilson_; 13 _Ves._ 37; 1 _Fonb. Tr. Eq._ 51, and cases there; 1
_Collinson_, 608, & cases there.
Footnote 498:
A lunatic ought not to be brought before the Court of Commissioners
under any artificial excitement. In a recent instance, a lunatic, or
supposed lunatic, was brought before commissioners for a second
examination, his conduct at the first having been rational; in the
interval he had been permitted to drink a considerable quantity of
ale, spirits, and bottled porter, immediately after which he was again
produced, when his altered demeanor convinced the jury (ignorant of
his potations) that he was lunatic, and a verdict was found
accordingly. One of the commissioners being afterwards accidentally
informed of the circumstance, laid the case before the Lord
Chancellor, who immediately quashed the commission. The conduct of
these keepers could not be too severely reprobated, and we may take
this opportunity of hinting that the practice of holding any judicial
investigation in taverns and public houses (where it can be avoided)
is liable to many objections; at least the _Inquisitio post prandium_
should be abolished.
Footnote 499:
Access has also been denied to a party having an interest, _Ex parte
Littleton_, 6 _Ves._ 7; but query.
Footnote 500:
And when the lunatic’s estate is too small to bear the expense of a
commission, a reference has been directed to the Master, and an order
for the payment of dividends made on his report. This appeared to Lord
_Loughborough_ to be irregular; the precedent was only to be followed
in cases of necessity. _Eyre v. Wake, Ves._ 179. In 1799 the expense
of a commission was about £120. Lord _Talbot_ admitted a defendant who
had lost his memory by extreme age, to answer by guardian, the matter
in demand being but small. 2 _P. Wms._ 110, and Lord _Eldon_
restrained a supposed lunatic by injunction from doing certain acts,
vide ante, Miss _Kendrick’s case_.
Footnote 501:
A Commission must not be sued out to be held in terrorem; if a person
keep the Commission by him several years without executing it, he is
guilty of a contempt, and the Commission will be discharged with
costs. 2 _Atk._ 52.
An Inquisition in England is not sufficient to bind lands in Ireland;
there must be an Inquisition and finding under the Great Seal of
Ireland. _Duchess of Chandos’ Case_, 1 _Sch. and Lef._ 301.
Footnote 502:
A Commission of lunacy, in a proper case, will be granted on the
application of a stranger. _Ex parte Ogle._ 15 _Ves._ 112. _Ex parte
Ward._ 6 _Ves._ 579.
Footnote 503:
The Commissioners are selected by the Lord Chancellor, who generally
appoints experienced Barristers; some benefit might arise if two of
the Censors of the College of Physicians were added to the commission.
Footnote 504:
On foreign proceedings in the nature of Commissions of lunacy, see
_Sylva v. Da Costa_. 8 _Ves._ 316. _Ex p. Gillam_, 2 _Ves. jun._ 587.
Footnote 505:
In this case an Irish Peeress was committed for not producing her
husband.
Footnote 506:
The supposed lunatic should have due notice, and the Commission be
executed near the place of abode. _Ex parte Hall._ 7 _Ves._ 261, for
it is his privilege to be at the execution of it. _Ex parte Cranmer._
Footnote 507:
A lunatic who would have been convicted of a capital crime but for the
plea of lunacy, may recover, and claim his liberty, as was the case of
_Hadfield_, who shot at his late Majesty, and who presented a petition
for enlargement to the House of Commons. It is more than doubtful
whether such applications should ever be complied with; a man restored
to sanity under coercion may very quickly relapse when he becomes his
own master; a moderate quantity of spirits, or exposure to other
irritation, may readily produce a paroxysm which may be attended with
fatal consequences, either to the party himself, or, to some other.
Public policy therefore requires a continuance of the restraint,
however painful to the individual. If there be one case which admits
of relaxation less than another, it is where injuries of the head have
produced the insanity. For the trial of _Hadfield_, see 19 _How. St.
Tri._ 1281.
Footnote 508:
DELIRIUM, a word employed by the Romans, had its origin from the
process of ploughing; for when the oxen deviated from the line to be
pursued, they were said to be _de lira_, out of the track; and this
figure was transferred to the deviations of the human intellect, when
it erred from the established course. Delirium, says Dr. Cullen, may
be shortly defined,—“In a person awake, a false judgment arising from
perceptions of imagination, or from false recollection, and commonly
producing disproportionate emotions.” It is of two kinds; as it is
combined with pyrexia and comatose affections: or, as it is entirely
without such combination; in the latter case it is named _Insanity_.
Footnote 509:
There frequently exists an illusion as to particular things, to which,
says Dr. Male, men of genius are sometimes subject, which leads them
to indulge eccentric whimsies and extravagant fancies, whilst on every
other subject their perception is clear, and their conclusions
correct; instances of this kind abound in every treatise on insanity,
and may be traced from the earliest period of history. Pythagoras
believed that he had lived in prior ages, and inhabited different
bodies, and that in the shape of Euphorbus he had assisted in the
siege of Troy. Tasso fancied himself to be visited by a familiar
spirit, with whom he conversed aloud (_Hoole’s Life of Tasso_). The
hero of the celebrated romance of Cervantes, exhibits a well-drawn
picture of this species of insanity; and although in a less attractive
costume, how frequently do we recognise Don Quixote in every rank and
description of society? If, says a celebrated writer, the circle in
which this absurdity revolves is so very small as to touch nobody, a
man is only what is then called _singular_ in that respect; but if its
orbit is extended so as to run foul of other people, he is then called
a madman, and is confined.—ARMATA, Part II.
Footnote 510:
The admirers of modern Tragedy might be reasonably alarmed if their
approvals should be too strictly construed into symptoms of madness.
Footnote 511:
The case of Miss _Butterfield_, which we shall have other occasion to
refer to, is somewhat similar in effect to this. Mr. _Scawen_ had left
Miss B. a considerable legacy; but being impressed by his surgeon with
the idea that she had poisoned him with corrosive sublimate, he turned
her out of his house and altered his will. Mr. S. died, and so
evidently by mercurial poison, that Miss B. was tried for the murder,
but was acquitted, there being no evidence that she was the person by
whom the poison had been administered, and a considerable probability
that it had been contained in some quack medicines which Mr. S. had
taken. Under such circumstances a restoration of her legacy might have
been expected either from the liberality of the next of kin, or from
the interposition of a Court of Equity.
Footnote 512:
Continued by 19, and made perpetual by 26 _Geo._ 3, _c._ 91.
Footnote 513:
The Commissioners appointed by the College act within London and seven
miles compass, and within the county of Middlesex:—Query, why not in
the adjacent counties of Kent, Essex, and Surry, in which they have
but a limited jurisdiction?
Footnote 514:
If any alteration be necessary on this subject, we should suggest the
joining in Commission the legal Commissioners of Lunatics, named by
the Lord Chancellor, with the Medical Commissioners, elected by the
College; the former might acquire experience in judging of the ever
varying forms of lunacy, and the latter would gain legal assistance in
the execution of their duty.
Footnote 515:
The case of Mary Mills in 1806, (1 _Collinson_, 530, and Annual
Register, 1806) shews that some additional strictness is necessary in
comparing the number of registered lunatics with the number actually
confined.
Footnote 516:
Public Lunatic Asylums may be considered as divisible into three
classes, viz. 1. Those which are entirely eleemosynary, or are
supported partly by an income, funded or landed, but arising from
benevolence, and partly by voluntary contributions,
2. Those which are supported, partly by voluntary contributions, and
partly by pensionary patients, paying according to a certain gradation
of rank,
3. Pauper Lunatic Asylums founded under _Mr. Wynne’s_ act, at the
expense of the county, and where the patients are supported by their
parishes.
Most Eleemosynary Lunatic Asylums, either for want of sufficient
funds, or of room to accommodate all the lunatics who apply, exclude
epilepsy and idiotsy, making occasional exceptions, where the friends
of the patient can afford to pay the expense of maintenance. County
Pauper-lunatic Asylums are compelled to receive both these classes of
patients, if considered dangerous, but not otherwise.
Footnote 517:
In Scotland by 55 _Geo._ 3, _c._ 69. In Ireland by 57 _Geo._ 3, _c._
106; 1 _Geo._ 4, _c._ 98; 1 and 2 _Geo._ 4, _c._ 33.
Footnote 518:
See an Essay on Madness, by _Dr. Johnstone_.
Footnote 519:
_Reeve_ on Critinism; Phil. Trans. 1808, III; and Edinb. Med. Journ.
v. 31.
Footnote 520:
It has been calculated that the thirtieth part of the Epileptic
degenerate into a state of fatuity.
Footnote 521:
Medical Jurisprudence, as it relates to Insanity, by _John Haslam, M.
D._ London, 1817.
Footnote 522:
See _Burrows’s_ Inquiry into certain errors relative to Insanity, page
164.
Footnote 523:
μανία from μαίνομαι _I rage_.
Footnote 524:
μελαγχολία, from μελας, _black_, and χολὴ _bile_; black bile being
considered as the cause of the malady.
Footnote 525:
A Reply to _Dr. Battie’s_ Treatise on Madness, 8 Lond. 1785.
Footnote 526:
Religious fanaticism is so frequently attendant upon mania, that a
question has arisen respecting their relative dependance upon each
other, as to whether the former be the cause or the effect of the
latter? It seems probable that both these opinions are correct, for,
as _Dr. Burrows_ very justly observes that, as religion influences the
internal man more than all the passions collectively, so it may be a
_cause_ of insanity; while, on the other hand, there is no doubt, that
a lunatic may imbibe a religious as well as any other hallucination,
and yet be insane from a cause very contrary to religious.
Footnote 527:
_Haslam_—Op. citat.
Footnote 528:
_Dr. Haslam_ ventures an opinion upon this subject, which appears to
us so plausible that we shall introduce it to the notice of our
readers. “The ordinary class of persons, who are usually summoned to
act as jurymen, have in common with the mass of mankind, who have
wanted the means of direct information, adopted the popular and
floating opinions on the subject of insanity. That dramatic
representations have forcibly operated for this purpose there is
little reason to doubt: and some of the plays of _Shakspeare_ exhibit
many of the forms which this malady is supposed to assume. Among such
characters none have more strongly fastened on the general mind than
the outrageous _Lear_, and the distracted _Ophelia_; the subtile
crasiness of _Hamlet_ leaves it doubtful whether his alienation of
mind be real or conventionally assumed, and to the ordinary observer
conveys more of fiction than the avowed counterfeit of _Edgar_.
Romances, the literary food of the idle and thoughtless, abound in
descriptions of intellectual calamity; but these artificers of fancy,
like many unskilful performers, are too prone to strain the loftier
impressions of feeling, and distort the energies of passion into
mental derangement. Something of affecting interest may be excited by
the weaknesses and wanderings of _Maria_, but _Cervantes_ has
exhibited the happiest and most correct picture of systematic
insanity; although the vehicle of chivalry in which it is conveyed,
has, to our own countrymen, blunted its interest as a physiological
portrait of madness; his sallies have provoked mirth, and so keen is
the relish for the ridiculous, that in the luxury of laughter, the
reader has forgotten the tribute of commiseration.”
Footnote 529:
See _Erskine’s_ Speeches, vol. iv.
Footnote 530:
_Male’s_ Juridical Medicine, edit. 2, p. 208.
Footnote 531:
Dict. des Sciences Med. Art. _Folie._
Footnote 532:
Op. citat. p. 208.
Footnote 533:
This is well illustrated by the remarkable case of Nicolai of Berlin,
as cited by _Dr. Ferriar_ on Apparitions, p. 41, and also by _Dr.
Haslam_ in his “_Medical Jurisprudence, as it relates to Insanity_,”
p. 25.
Footnote 534:
_Haslam_ on Insanity.
Footnote 535:
See _Male’s_ Juridical Medicine, p. 220.
Footnote 536:
_Dr. Burrows_, in his “Inquiry into certain errors relative to
Insanity,” has taken a comprehensive view of this important question,
in which he attempts to prove that _a very large proportion of the
insane recover the perfect use of their understanding_, and in
elucidation he has submitted a comparative table of cures, comprising
returns from all the public lunatic asylums in England, and likewise
all the returns from Scotland that are accessible. To this work we
must refer the reader. The statistical branch of this subject has been
greatly elucidated by _Dr. Powell_, the Secretary to the Commissioners
for licensing mad-houses; and we are happy in being authorised to
state that the public may shortly expect an important publication from
the same author, in which the views of Dr. Burrows will probably be
duly examined.
Footnote 537:
_Dr. J. Johnstone_ on Madness.
Footnote 538:
An Inquiry, &c. p. 64.
Footnote 539:
A Treatise on experience in Physic, vol. 2, p. 292; see also _Dr.
Crichton’s_ valuable work on Mental Derangement.
Footnote 540:
During ten years 80 patients of this description were admitted into
Bethlem hospital, 50 of whom perfectly recovered.
Footnote 541:
De Sedibus et Causis, Epist. 1, 8, 6.
Footnote 542:
See a review of a work entitled “_A Treatise on the Diseases of the
Nervous System, Part I; comprising Convulsive and Maniacal
Affections,” by_ J. C. PRICHARD, M.D. &c. London, 1821, p. 426,
Medical Repository, Feb. 1, 1822.
Footnote 543:
On the manufactures and occupations above alluded to, we have make the
following observations.—
(1) As the vegetable matter undergoes the putrefactive process in
stagnant pools, the effluvia which arise are necessarily highly
pernicious; while the waters become so poisonous as to destroy the
fish contained in them, as well as to prove injurious to cattle that
drink of them. In Italy the process of steeping flax or hemp is only
permitted at the distance of some leagues from a town. ZIMMERMAN tells
us that the effluvia from this source have been known to occasion a
malignant fever, which proved fatal to the family in which it first
began, and afterwards spread its contagion through a whole country.
LANCISI observes, that dangerous fevers are often prevalent at
Constantinople, which owe their source to the hemp brought from Cairo,
and which is put wet into the public granaries, and suffered to
ferment during the summer. At Helmstedt there is annually in the
autumn, when the flax is steeped in the Aller, an epidemic dysentery
that prevails for several weeks.
(2) The manufacture of starch can scarcely be considered, in itself, a
nuisance, for although it be necessary to produce the acetous
fermentation, in order to remove from the fecula any colouring matter,
yet if sufficient attention be paid to the operation, and the water be
properly let off from the settling-vessels, no inconvenience can
arise. A nuisance, however, of considerable magnitude may incidentally
attend these manufactories, from the number of swine which are
constantly kept by the starch maker, and the profit of which forms a
part of his speculation, and which is so considerable that he can
generally afford to sell the starch at prime cost, relying wholly upon
the former trade for his profits.
(3) The process of tanning involves several operations of a very
nauseous description; the hides, for example, undergo incipient
putrefaction in order to loosen the epidermis, and to render the hair
and other extraneous matter easy of separation from the true skin.
(4) The peregrinations and vicissitudes of fate to which the horse is
doomed during life has repeatedly furnished subjects of reflection;
but few are aware to how many economical purposes his carcase is
converted after death, and to how many noisome processes it gives
rise. The dealers in dead horses, or _nackers_, as they are termed,
begin their mercantile anatomy by taking off the shoes and disposing
of them to the farrier; the skins are next stripped off, and sold to
the tanner; the carcase is then cut into pieces, and boiled in large
cauldrons of water, in order to extract the fatty matter, which, being
skimmed off from the surface of the liquor, is “_rendered down_” and
packed in cases for the soap-boiler, or the manufacturer of
cart-grease. Whatever remains after this operation supplies the
venders of dog’s and cat’s meat with a dainty article of sale; at
length the views of the greedy trader are directed to the bones of
this noble animal; a number of persons find employment in chopping
them into small fragments, from which the marrow is then extracted by
a boiling for several hours, and added to the fat already obtained
from the carcase; the dry remains are employed in the production of
hartshorn by distillation; and after this process is finished, they
are removed from the still, and calcined to whiteness, in order to be
mixed with clay for the manufacture of porcelaine; or they are
consumed for the formation of ivory-black.
(5) The intolerable nuisance of a public brewery arises from the
volumes of carbonaceous matter with which it overwhelms the
neighbourhood. We shall therefore take this occasion to offer the
remarks which we are prepared to make respecting the effects of smoke
on the inhabitants of the metropolis, and on the methods which have
been suggested for the mitigation of the evil. And upon this subject
we entirely agree with an intelligent reviewer, that, after all, it is
not a few chimneys attached to steam engines that infect the air of
London with smoke; every house is busy in the work of contamination,
although less observed, because administered by separate vents, and in
divided doses.
In the year 1661, a work was published by the celebrated JOHN EVELYN
on the subject of this grievance, entitled, “FUMIFUGIUM; _or the
Inconveniences of the Air and Smoake of London dissipated; together
with some remedies humbly proposed to his sacred Majestie, and to the
Parliament now assembled_.” The above “short discourse” has become
exceedingly scarce, but the reader will find an interesting account of
its contents in the Journal of Science and the Arts. It is certainly a
curious coincidence that the attention of John Evelyn should have been
first excited on this subject by “a presumptuous smoake issuing from
one or two tunnels near Northumberland house, and not far from
Scotland yard,”—the very seat of the plots of our modern fumifugists!
After adverting to the situation of the metropolis “built upon a sweet
and most agreeable eminency of ground at the north side of a goodly
and well conditioned river, toward which it has an aspect by a gentle
and easie declivity,” he proceeds to animadvert upon that “hellish and
dismall cloud of sea coale, which is not only perpetually imminent
over her head, but so universally mixed with the otherwise wholesome
and excellent air, that her inhabitants breathe nothing but an impure
thick mist, accompanied with a fuliginous and filthy vapour, which
renders them obnoxious to a thousand inconveniences, corrupting their
lungs, and disordering the entire habit of their bodies.” It appears
that in Evelyn’s time, brewers, dyers, lime-burners, and salt and
soap-boilers, were the principal nuisances; and “since then,” says the
editor of the new edition of the FUMIFUGIUM in 1772, “we have a great
increase of glass-houses, founderies, and sugar-bakers, to add to the
black catalogue, at the head of which must be placed the fire engines
of the water-works at London bridge and York-buildings, which leave
the astonished spectator at a loss to determine whether they do not
tend to poison and destroy more of the inhabitants by their smoke and
stench than they supply with water;” to which sooty list, says the
reviewer, in the Journal of Science and the Arts, above cited, “what
astonishing additions have been made, within the last thirty years, in
and about London? How many new water-companies, and smoke-producing
manufactories have been added to the catalogue? A newspaper cannot now
be printed, nor a pound of meat minced for sausages without a
steam-engine; to the same smoky servant the druggist resorts to grind
his rhubarb and to sift his magnesia,[544] and upon all possible
occasions the services of the other elements is superseded by that of
fire.” With respect to the deleterious effects of smoke upon the
health of the inhabitants of our mighty city, much difference of
opinion has existed; amongst Foreigners the air of London has the
reputation of being extremely unhealthy, on account of the exhalation
which arises from the use of coal; it excites in strangers, says
_Zimmerman_, a considerable heat in the stomach, and sometimes a
spitting of blood, and even nervous fevers which terminate in palsy.
(_Experience in Physic, vol._ 2, _p._ 137). It is hardly necessary for
us to make any observation upon a prejudice so absurd and unfounded;
_Evelyn_ also seems, in our opinion, to attribute more evils to the
smoke than can be well substantiated; “I report myself,” says he, “to
all those who have been compelled to breathe the air of other
countries for some years, if they do not now perceive a manifest
alteration in their appetite, and clearness of their spirits,
especially such as have lived long in France and the city of Paris.”
Although we are not disposed to consider the smoky atmosphere of
London as so destructive to health as some have imagined, we are not
prepared to state that it is entirely harmless. Children are certainly
less healthy in this city than in the country; and the superior
rapidity with which iron becomes oxidized, indicates the existence of
atmospheric impurities. The phenomena of vegetation also offers
another demonstration of the same fact; Evelyn has the following
curious remarks upon this circumstance: “That the smoake destroys our
vegetation is shewn by that which was by many observed in the year
1644, when Newcastle was besieged, and blocked up in our late wars, so
as through the great dearth and scarcity of coals, these fumous works
were either left off, or diminished, divers gardens and orchards
planted even in the very heart of London, (as in particular, my Lord
Marquis of Hertford in the Strand; my Lord Bridgewater’s, and some
others about Barbican) were observed to bear such plentiful and
infinite quantities of fruits, as they never produced the like before,
or since, to their great astonishment; but it was by the owners
rightly imputed to the penury of coales, and the little smoake which
they took notice to infest them that yeare.”
Although some difference of opinion may exist, as to the extent of the
evil, in a medical point of view, we must all concur in agreeing upon
the necessity of some plan by which it may be diminished; we shall,
therefore, proceed to offer some remarks upon the proposals which have
been made, at different times, for obtaining so desirable an object.
_Mr. Evelyn’s_ plan consisted in the removal of all smoking
manufactories from London, “five or six miles down the river Thames,
or at least, so far as to stand behind that promontory jutting out and
securing Greenwich from the pestilential air of Plumstead marshes.” He
then proposes gardens and plantations in and about the metropolis, and
enumerates a variety of fragrant plants, suited to our climate, and
calculated to sweeten and improve the air.[545]
In the year 1682, Mr. _Justell_ communicated to the Royal Society,
“_An account of an Engine that consumes smoke, shewn lately at St.
Germains Fair in Paris._” _Dr. Leutmann_, of Wirtemburgh, described in
his “Vulcanus Famulans,” a stove which draws downwards, so that the
contrivances of the _Marquis de Chabannes_, and others who have burnt
their smoke by a downward draught of air were not original. _Dr.
Franklin_ in 1785 (_Memoirs of the Life and Writings of Benjamin
Franklin, vol._ iv. _p._ 408) suggested a mode of burning smoke; but
to the illustrious _Mr. Watt_, we are more particularly indebted for
the first important hints upon this subject; his patent may be seen in
the _fourth volume of the Repertory of Arts_ for 1796, p. 226; and the
great engines at the Soho manufactory have all along been worked
without smoke; it is therefore not a little extraordinary, as a late
reviewer has justly observed, that in the Report from the Committee of
the House of Commons “to enquire how far it may be practicable to
compel persons using steam engines and furnaces in their different
works to erect them in a manner less prejudicial to public health and
public comfort,” and upon which report the bill of last session is
founded, no notice is taken of _Mr. Watt’s_ suggestions and inquiries.
In the Parliamentary Report, to which we have just alluded, there are
two inventions for the destruction of smoke, which appear to have
principally occupied the attention of the Committee, and which profess
to accomplish the object, with a very considerable saving of fuel,
viz:
_Mr. Brunton’s Fire Regulator._ In this patent a newly constructed
fire-place is applied to the engine boiler, containing a circular
grate, which is made to revolve slowly upon its axis; the fire upon
this grate is fed in front by a kind of hopper continually delivering
small coal, which, from the rotatory motion of the grate itself,
becomes equally spread upon its surface, so as to maintain a thin
fire, and a sharp draught; the coal is thus rapidly decomposed and
burned; the smoke at first produced having to pass across the grate,
and over the red hot, and already coaked fuel.
_Patent of Messrs. Parkes of Warwick._—The principal agent in this
improvement is a current of air, admitted just beyond the end of the
fire-place, by means of an aperture which may be increased, or closed
at pleasure, and which the patentee term an “_air valve_.” A small
fire is first made to burn brightly at the back of the grate; coals
are then filled in towards the front, in which direction the fire
gradually spreads; their smoke necessarily passes over the clear fire,
where it becomes sufficiently heated to constitute flame, as soon as
it meets with the current of air entering at the valve; and a striking
experiment with this apparatus consists in alternately shutting and
opening the air-valve, which is accompanied by the alternate
appearance and disappearance of the smoke.
Instead, however, of insisting upon any form of fire-place, greater
benefit would arise from an enactment respecting the height of
chimneys; our intelligent reviewer, of whose remarks we have so
frequently availed ourselves, observes, that by conveying black smoke,
and other pernicious fumes into a capacious and very lofty chimney,
much of the noxious matters that otherwise escape into the atmosphere
are decomposed and precipitated or condensed within; of the truth of
which, the chimney of the grand-junction engine, at Paddington, and
that of the West Middlesex water-works, at Hammersmith, offer striking
illustrations; when these machines are at work, the former produces
little smoke, while the latter inundates the neighbouring gardens with
perpetual showers of solid soot; and yet the only difference is in the
relative altitude of the two chimneys; the boilers being, in all
respects, set and constructed alike. A chimney from 150 to 200 feet
would in most cases prove effectual, and the expense might be
considerably lessened by making one shaft receive all the tributary
fumes of many flues. But to return to the nuisance of breweries, from
which we have made so long a digression; it is probable, that the
smoke from these chimneys could not be remedied either by Brunton’s or
Parkes’s patent, but the increasing the altitude of the chimney would
seem to promise a mode of relief; we are also to look to the
employment of steam as a substitute for fires; high pressure steam has
been very extensively employed for this purpose in Whitbread’s
brewery, and the smoke has in consequence sustained a very perceptible
diminution.
(6) Sulphuric acid makers are continually indicted; and it would
appear that by a scientific improvement in the process, the escape of
the sulphurous acid, which constitutes the grievance, might to a great
degree be obviated. How does it happen that, notwithstanding the cost
of the materials necessary for the production of sulphuric acid, is in
France at least double what it is in England, the French can afford to
sell the article 25 per cent. cheaper than the English? the answer is
obvious,—the great part of the materials are sent off into the air, in
the form of _sulphurous acid_, and _nitrous gas_, to the annoyance of
the neighbouring animals and vegetables, and the ruin, too often, of
the proprietor. See _Journal of Science and the Arts_. In a report
drawn up in the year 1806 by Guyton Morveau, and Chaptal, upon the
subject of injurious manufactories, by command of the minister of the
interior, it is declared that the distillation of acids can only prove
dangerous from want of due precaution.
(7) The manufacture of Prussian blue is necessarily attended with
highly offensive vapours. The first part of the process consists in
mixing hoofs and tup’s horns with Russian or American potass, in large
iron stills, to which heat is gradually applied, until the vessel
become red hot; the animal matter and alkali being thus fused into a
mass is laded out into iron pans, where it concretes into solid
blocks, technically called _metals_.
(8) The operation of unfolding the cow’s horns by the application of
heat is attended with a terrible stench; the trade in lanthorn leaves
was formerly very considerable with Russia; but it was nearly
annihilated by an edict of Catherine; the less flexible parts are made
into combs; and the tips of the horns are sent to Birmingham for the
manufacture of buttons.
(9) Owing to the viscid nature of the materials, it is impossible to
make varnish without burning the animal matter, which occasions a
stench of the most insufferable kind; and is so suffocating, that very
lately two workmen lost their lives in a manufactory of this article
in Gray’s-inn-lane.
(10) The animal matters employed in this process give rise to a stench
which has repeatedly formed the ground of indictment. The most
nauseous part of the trade, however, consists in concentrating the
waste lees, for the purpose of obtaining by fusion in a reverberatory
furnace, an article which is called BLACK ASH, and which contains,
amongst other salts, the _sulphuret of soda_.
(11) “Renderers of tallow” are persons who convert the butcher’s fat,
&c. into tallow.
(12) The process of smelting different ores is the most injurious of
all the operations of art, although to the senses it may be less
nauseous than those in which animal matter undergoes decomposition by
heat, or putrefaction. These evils, however, by the ingenious
application of various mechanical and chemical expedients, have in
many instances been very materially diminished, and in others,
entirely obviated; this is strikingly illustrated in several large
works for smelting lead ores; and the proprietors of the Hafod copper
works, at Swansea, are at present engaged in an experimental inquiry
into various plans which have been proposed for diminishing, or
preventing the ill effects which arise from the metallic fumes.
Acquainted as we are with the liberality and science of these
gentlemen, we have little doubt of the result; and we mention the
circumstance in this place in order to recommend similar efforts on
the part of persons engaged in other works; and at the same time for
the purpose of preparing the reader for some observations which we
shall take occasion to offer, on the subject of the law of nuisance,
in relation to its operation in stopping works of such national
importance. It would be premature to enter into any detailed account
of the chemical means which promise a successful resource on this
occasion; we shall only observe that the great mischief seems to arise
from the quantity of arsenic, so universally present in the ores of
copper; and there is reason to hope, from the experiments already made
by Mr. J. H. _Vivian_, that _Lime_ may be usefully employed in
preventing its volatilization. The author of the present note has had
ample opportunities of investigating the effects of arsenical fumes,
which arise from the burning-houses in Cornwall, and from the great
copper works carried on at Hayle in that county, and they appear to be
especially pernicious to graminivorous quadrupeds; horses and cows
lose their hoofs; and the latter animals are not unfrequently seen, in
the vicinity of the works, crawling along on their knees; they are
also subject to a cancerous affection in their tails; and milch cows
loose their milk. The herbage also suffers materially from the
poisonous smoke, especially in wet seasons; corn is blighted in the
ear, and never perfects its seed, unless care be taken to select at
that period such ore as will yield but little sublimate. Cabbages do
not appear to suffer in the least; nor are potatoes materially
injured; and it is not the least curious circumstance in the history
of these works, that the apple-trees in their vicinity grow and bear
fruit without sustaining any of those ill effects which we should have
anticipated, but, on the contrary, the arsenical fumes appear to
destroy all the insects which usually infest such trees, and their
trunks exhibit a cleanness which would delight the horticulturist. The
men employed in these works are occasionally affected with a cancerous
disease in the scrotum, similar to that which infests
chimney-sweepers; it is however probable that this arises from the
immediate application of the excoriating material made by the hand in
the act of rubbing the part. A similar affection was a short time
since observed in a manufactory, in which the workmen were engaged in
making an arsenical solution for a green dye, used in calico printing.
(13) Gas Works. We have lately learnt, that a method has been adopted
to get rid of the nuisance which has arisen from the residual liquor
from these works, by evaporating it in pans, placed in the ash-pit of
the furnace, and by which the iron bars of the fire-place are at the
same time kept cool, and are therefore much longer preserved. The
contrivance may be seen at the gas works in Worship-street.
Footnote 544:
By a visit to Apothecaries’ Hall, or to any of the great manufacturing
chemists, the stranger will be astonished at the number and utility of
the applications of steam to the processes of Pharmacy.
_M. Dupin_, when speaking of the immense mechanical force set in
action by the steam-engines of England, gives the following
illustration of its amount:—The great pyramid of Egypt required for
its erection the labour of above 100,000 men for twenty years; the
action of the steam-engines in England, which are, at most, all
managed by 36,000 men, would be sufficient to produce the same
quantity of work, in 18 hours!!!
Footnote 545:
It is supposed that the lime-trees in St. James’s Park owe their
existence to the suggestion of Evelyn.
Footnote 546:
There are certain districts so devoted to manufactories that, in the
general assemblage, it would be extremely difficult to identify the
noisome effects of any particular one. A curious illustration of this
fact lately occurred in two indictments; the one preferred against
Apple, the proprietor of a prussian blue manufactory; the other
against Moore, black-ash manufacturer; both of whose works were
situated in Seward-street, Goswell-street. The counsel for the
defendant, in his cross-examination of the witnesses for the former
prosecution, artfully drew from them an account of the noisome vapours
of the black-ash maker; while in the latter trial, the same barrister
made the witnesses declare the extreme stench of the prussian blue
manufactory; so that in both cases the defendants obtained a
verdict—because in neither case could the evidence for the crown
unequivocally prove from which of the manufactories the nuisance
complained of arose.
Footnote 547:
But query, whether the ancient existence of an inconsiderable brewery,
which from the small quantity of fuel consumed, was not a nuisance,
should have warranted the augmentation of those immense factories
which now obscure and suffocate some of the most populous districts in
London.
Footnote 548:
It is impossible to question the justice and policy of this maxim as a
general principle of legislation; “Salus Populi Suprema Lex,”—but
there are circumstances which ought to exempt certain establishments
from the operation of the common law of nuisances; we allude to those
grand national works for smelting ores, which could not be closed
without fatally affecting our national prosperity, and compromising
the fate of the Arts themselves. No consideration, however, ought to
admit them within the range of a great city, or a populous district;
but where they have acquired a kind of right to toleration by time and
necessity, in a remote place, they ought to continue in the enjoyment
of their advantages without disturbance; but in return for such an
immunity, the public has a right to expect every exertion on the part
of the proprietors, in order to obviate, as far as in them lies, the
diffusion of the fumes, throughout the neighbourhood, by improving the
construction of the furnaces, and by the adoption of such chemical and
mechanical expedients as may be capable of diminishing the evil. We
are led to these observations in consequence of learning with regret
that attempts have been frequently made to compel the proprietors of
the Hafod copper works, before alluded to, to abandon them; and while
the present sheet was in the press, we learnt that the Grand Jury had
found a true bill against one of these establishments. We shall in
consequence offer a few remarks, with a view of shewing the necessity
that exists of introducing a protecting clause into the law of
nuisances, in favour of certain established mining and smelting
districts; and we must here observe, that the inhabitants which
congregate in the vicinity of great manufactories of this description,
are always, in the first instance, allured to the spot, by the
prospect of gain; and it was not to be expected that persons who have
been thus aggrandised, should, as soon as their riches confer
independence and fastidiousness upon them, turn round and revile as
insufferable and dangerous, that very power to which alone they owe
any personal consequence to which they may now be entitled. But the
strongest arguments will be found in the great importance of these
works in a national and commercial point of view; and on this account
we shall present the reader with some statistical arguments of
considerable weight, viz: The quantity of coals consumed in the copper
works in South Wales, and exported in the vessels which convey the ore
from Cornwall to them, is calculated at 200,000 chaldrons annually;
and the amount paid for it to the collieries at from £100,000 to
£110,000. The number of persons employed in raising and delivering it
is not less than 1,500. The number of persons employed in the smelting
works is about 1,500, and the yearly amount of wages paid to them is
not less than £50,000. The value of the materials consumed annually in
these works may be taken at £20,000. The amount paid for the freight
of ore and materials may be stated at £25,000. The number of vessels
employed in the conveyance of the same may be about 150, and supposing
them to be manned by five seamen on the average, they give occupation
to 750 mariners. Thus a sum of not less than two hundred thousand
pounds sterling is annually circulated in Glamorganshire and the
adjoining county, and employment given to 3750 individuals.
If the families and dependants of these persons are taken into the
amount, a population of 12,000 souls at least derive their support
from the smelting establishments. The consequences which would result
from depriving so great a number of persons of the means of
subsistence may be more easily conceived than described. These
estimates refer only to the mere direct expenditure of the smelting
works and their immediate dependants—the consequences of the stoppage
of these works to the immense number of persons employed in the mines
in Cornwall—between 50 and 60,000 souls—would be completely ruinous.
These considerations it might be supposed are sufficiently apalling to
deter those who are engaged in the present measures carrying on
against one of the principal smelting companies by prosecution: an
object which is likely to be productive of consequences so destructive
of the welfare of thousands, in the annihilation of a trade of the
utmost general importance to the country, whether as relating to its
internal or external affairs, to its manufactories, its colonies, or
its ships: a trade in which upwards of two millions of pounds sterling
are embarked. That it ever should enter into the mind of any human
being to prosecute measures which could by any possibility lead to
consequences so disastrous, is almost inconceivable, and the only
excuse that can possibly be offered for them (if excuse it can be
called) is, that they are so entirely occupied by the consideration of
their personal convenience and fancied interest, as to be incapable of
forming a just conception of the momentous business they have
undertaken.
Footnote 549:
Si homme fait _Candells_ deins un vill, per que il cause un noysom
sent al inhabitants, uncore ceo nest ascun nusans, car le
_needfulness_ de eux dispensera ove le noisomness del _smell_. 2
_Rolle Abr._ 139.
Footnote 550:
A fine for every beast slaughtered within the walls of Exeter was held
good under a bye-law. _Cowp. R._ 269.
Footnote 551:
By this act, 57 _Geo._ 3, _c._ 22, §. 64, it is enacted that if any
person shall throw, or suffer to be thrown or remain, any ashes, dust,
dirt, rubbish, offal, dung, soil, blood, or other filth, or shall
kill, slaughter, scald, dress, or cut up any beast, &c. in or near any
street, (within the act) as that any blood or filth shall run or flow
over the pavements, such person, on conviction before any justice of
the peace, shall forfeit and pay not less than forty shillings, or
more than five pounds for each offence.
Footnote 552:
We are very sorry to instance the state of Covent Garden Market as an
exception to the rule of neatness and cleanliness, for which the
English have been celebrated; the quantity of putrescent vegetables
allowed to accumulate there is as disgraceful to the persons who have
the control of the market as it is disgusting to those who have
occasion to resort to, or even pass by it. _Dr. Rogers_ relates that a
very malignant fever having appeared at Wadham college in Oxford, and
carried off a considerable number of people, and that the physicians
ascribed it to the putrefaction of a considerable heap of cabbages,
which had been thrown from the neighbouring gardens, on a spot of
ground contiguous to the college.
Footnote 553:
Dr. Garthshore has observed that women, during the period of
utero-gestation, on account of the increased irritability of the
system at that period, are frequently affected by odours, that at any
other time would not have produced the slightest impression; and this
experienced practitioner was of opinion that the dangerous convulsions
which sometimes seize the patient towards the end of a tedious and
difficult labour, may arise from the long continued inspiration of the
air of a close and unventilated chamber crowded with attendants and
friends.
This observation suggests to us another circumstance which, though it
has never, we believe, been legally treated as a nuisance, well
deserves to be so considered; we allude to the public exposure of
disgusting objects for the purpose of exciting charity. The vagrant
laws are evidently ineffective for the purpose of removing them, nor
has the Society for the Suppression of Mendicity been much more
successful; those who have observed the pertinacity with which some
sturdy vagrants persecute pregnant females, obtruding on their view
some ulcerous sore, stump, or deformity, will agree in the necessity
of some more vigorous measures than have been yet employed for the
abatement of this species of nuisance.
Footnote 554:
The Author well remembers being sent for on a professional visit to
the great copper works at Hayle, in Cornwall, and being told by a man,
who had been a smelter for more than half a century, that the
occupation was remarkably healthy, and that those who were engaged in
it escaped the ordinary maladies of the season and country; “The
smoke,” said he, “kills all disorders, especially Fevers.” This
anecdote is at least sufficient to shew the force of their prejudice.
Footnote 555:
The increase of the metropolis may be deemed a medical, though it
cannot be restrained as a legal nuisance; this has been long felt but
is still without remedy. In 1580 Queen _Elizabeth_, by proclamation,
prohibited new buildings within three miles of the city of London, and
commanded the Lord Mayor and officers to regulate the number of
inmates in each house, which had become excessive. 2 _Stowe’s_ London,
436. About this time it was made matter of complaint that “Moorfields,
which formerly the citizens used for their health and pleasure to walk
in and take the air, began now to be enclosed, to the hinderance of
these healthful and useful walkings.” The limits of a Sabbath-days
journey will not afford the modern citizen a breathing place; what
effect this privation may have on the moral as well as physical state
of the poorer inhabitants of this overgrown capital we will not
attempt to discuss, and as the existing evil is without remedy, we
will content ourselves with a hope that some means may be found to
prevent its increase. An act of parliament limits the distance from
the new road within which no buildings may be erected; an extension of
this principle to all other roads five miles round London (_exceptis
excipiendis_) and the imposition of double taxes on all houses to be
erected after a certain date, within a limited circuit, (with a
decreasing ratio as the radius increases) might possibly obviate the
evil without very materially interfering with the value of property.
The capital is metaphorically called the heart of the empire; we wish
to provide it with sufficient lungs that it may circulate more florid
and healthy blood to the extremities.
Since this note was written we have seen, in a collection of the
statutes passed in the time of the commonwealth, an act for the
preventing of the multiplicity of buildings in and about the suburbs
of London and within ten miles thereof, _An. Dom._ 1656, the preamble
of which says, “Whereas the great and excessive number of houses,
edifices, outhouses, and cottages, erected and new built in and about
the suburbs of the city of _London_ and the part thereunto adjoining,
is found to be very mischievous and inconvenient, and a great
annoyance and nuisance to the commonwealth; and whereas,
notwithstanding divers prohibitions heretofore had and made to the
contrary, yet the said growing evil is of late so much multiplied and
increased that there is a necessity of taking some further and speedy
course for the redress thereof;” certain fines and penalties are
therefore directed to be levied on all new houses which have not _four
acres_ of land continually used with them, and commissioners are
appointed to carry the act into execution. The exceptions in this
statute may serve to elucidate the subject, Clare market, Lincoln’s
Inn Fields, Covent Garden, Shoe lane, and other places now in the
centre of the town are exempted from the penalties, on account of the
charges or covenants to which the owners had been or might be liable.
Footnote 556:
The Severn lately having overflown its banks into a lime-pit, a very
considerable number of salmon and other fish were killed by it.
Footnote 557:
Old Book of Entries, fol. 406, edit. 1595, action upon the case
brought for annoying a piscary with a gutter that came from a
dye-house. _Hutt._ 136.
Footnote 558:
The smelts and flounders have been thus destroyed in the immediate
vicinity of London.
Footnote 559:
By stat. 12, _Gec._ 3, _c._ 61, not more than 50lbs. may be kept in
any one place within London and Westminster, or three miles circuit,
nor within one mile of any city, borough, or market town, or within
two miles of any of the King’s palaces or magazines, or one half mile
of any parish church.
Footnote 560:
Principles of Military Surgery, by _J. Hennen, M. D._ edit. 2d,
Edinburgh, 1820. See also Transactions of the College of Physicians in
Dublin, vol. ii, p. 337.
Footnote 561:
Med. Leg. 1, 360.
Footnote 562:
Op. citat. p. 458.
Footnote 563:
See _Parry’s_ Elements of Physiology.
Footnote 564:
See the evidence before a Committee of the House of Commons, on the
subject of Mendicity.
Footnote 565:
_Male’s_ Elements of Juridical Medicine, edit. 2, p. 237.
Footnote 566:
Principles of Forensic Medicine, p. 470.
Footnote 567:
See a paper in the 3d vol. of the Medical Trans. of the Coll. of Phy.
p. 112, by _Sir George Baker_, entitled “_An account of a singular
disease, which prevailed among some poor children maintained by the
parish of St. James, in Westminster. A. D. 1784._”
Footnote 568:
_Haygarth_ on the Imagination.
Footnote 569:
The influence of sympathy in propagating a spasmodic paroxysm was
illustrated, in a very extraordinary manner, some years ago in the
county of Cornwall, when the methodists assembled in great numbers in
their meeting-houses, and continued for many hours, and even days, in
the agony of supplication, waiting for an assurance of divine mercy;
during which period many persons who attended as visitors became
convulsed. The author was at that time resident in the county, and
lost no opportunity of investigating a phenomenon so anomalous and
extraordinary. The visitation was called the REVIVAL, and the meetings
appear to have been very similar to the “CAMP MEETINGS” in America. It
was the author’s intention to have selected from the notes which he
had taken upon the occasion, some account of this REVIVAL, but he has
declined the task from the same feeling that induced the painter to
throw a veil over the face of Agamemnon, because he despaired of
giving it the expression which it required.
Footnote 570:
That CUMMIN possesses this property is a very ancient opinion; thus
_Pers. Sat._ v.
“Rugosum Piper, et _pallentis_ grana Cumini.”
_Dioscorides_ maintained that it had made those persons pale who drank
it, or washed themselves with it; and _Pliny_ says that it was
reported, that the disciples of Porcius Latro, a famous master of the
art of speaking, used it to imitate that paleness which he had
contracted by his studies; thus too _Horace_
“——Proh! si
Pallerem casu, biberent exsangue Cuminum,”
_Epist._ 19, _Lib._ 1, _c._ 12.
Footnote 571:
Lectures on the Structure and Physiology of the Urinary and Genital
Organs, p. 184.
Footnote 572:
The details and progress of the imposture may be seen in successive
volumes of the Medical and Physical Journal, viz. vol. xx, p. 402,
527; xxi, p. 60; xxiv, p. 309; xxix, p. 109, 409, 469; xxx, p. 21 103,
187.
Footnote 573:
She also swore that during the whole period she had no evacuations
except by urine.
Footnote 574:
JUSSIEU has given an account of a Portuguese girl, of fifteen years of
age, who had been born without a tongue, and he refers to a similar
case recorded eight years before by a surgeon of Saumur, where the
subject was a boy, who had lost his tongue by gangrene, and yet to a
certain degree, was able to perform the functions of it. A case of a
similar nature, together with a reference to several other instances,
stands recorded in the annals of our own country, and may be found in
the Philosophical Transactions.
Footnote 575:
OP. CITAT. See also a paper by Dr. VETCH, in the _Edinburgh Med. &
Surg. Journ._ Vol. iv. p. 157.
Footnote 576:
“A Treatise on Adulterations of Food, and Culinary Poisons, by
_Frederick Accum_.” A work which is perhaps better known by the title
of DEATH IN THE POT.
Footnote 577:
In this country, bread is chiefly divided into _white_, _wheaten_, and
_household_, differing only in degree of purity; in the first, all the
bran is separated; in the second, only the coarser; in the third, none
at all; so that _fine bread_ is made only of flour; _wheaten bread_ of
flour with a mixture of the finer bran; and _household_, of the whole
substance of the grain, without taking out either the coarse bran, or
fine flour. _Stat._ 8 _Ann, c._ 18. In the statute of assize of bread
and ale, to be hereafter noticed, (51 _Hen._ 3,) mention is made of
_wastel-bread_, _cocket-bread_, and _bread of treet_; which answer to
the three sorts of bread above mentioned, viz. _white_, _wheaten_, and
_household-bread_.
The bread of the London bakers maybe certainly considered as forming a
very distinct species, although by no means a definite one; there are
no less than six different kinds of flour brought into the London
market, which are designated by the following terms, viz. 1, _fine
flour_; 2, _seconds_; 3, _middlings_; 4, _fine middlings_; 5, _coarse
middlings_; 6, _twenty-penny flour_; besides which the London
bread-flour is not unfrequently deteriorated by having beans and peas
ground up with it: now it is a fact generally admitted that the very
best wheaten flour can alone produce beautifully white bread, unless
some bleaching substance be employed, in which case however inferior
flour may be made into bread equally specious to the eye; for such a
purpose _alum_ is universally employed by the London bakers, and it
has become a medical question whether the health of the community is
likely to be affected by the practice. We should say that, generally,
so small a proportion as ten or fifteen grains of alum in a quartern
loaf could hardly produce any mischief, although we are inclined to
think that certain constitutions may be sensible to its influence, and
that infants may occasionally suffer from it; these effects are of
course more likely to occur to persons who only visit London
occasionally, although upon this subject some important fallacies may
exist; and it is by no means satisfactorily established that the
costiveness, which is sometimes experienced by country residents on
their first coming to London, arises from the alum present in the
bread; for admitting even that it depends upon the bread, it may be
connected with the change in the relative coarseness of the flour
alone, for we have shewn in another work (PHARMACOLOGIA, edit. 5, page
160) that bran renders wheaten flour laxative from its mechanical
action upon the inner coats of the intestines. But a much more
iniquitous practice than that of adding alum to bread has been
detected: bakers have been convicted of using _gypsum_, _pipe-clay_,
and _chalk_, and not long since a very extensive fraud was carried on
in Cornwall, where a very considerable portion of the _Porcelain clay_
(decomposed felspar) from Saint Annes, was introduced into the bread;
and the author of this note was lately informed by Mr. Hume, of Long
Acre, that on examining some biscuits prepared for the use of the
navy, he found as much as eight per cent of _gypsum_. _Dr. Reines_
observes that this adulteration is very common in Germany, where the
same mills are employed to grind corn for the inhabitants, and gypsum
for the purpose of a mineral manure to the lands. It may be necessary
to remark, before quitting the subject of the adulteration of bread,
that we possess no summary and unexceptionable chemical test for the
detection of _alum_, since common salt, which necessarily enters into
the composition of the loaf, often contains saline impurities which
may occasion precipitates like those we might attribute to _alum_.
Footnote 578:
This act of the 51st _Hen._ 3, stat. 6, (entitled a Statute of the
Pillory and Tumbril) is worthy of notice, as it is we believe the
first in which the adulteration of human food is specially noticed and
prohibited. It is thereby enacted that six lawful men shall collect
the measures and weights of the town, as well of taverns as other
places, and one loaf of every sort of bread. Afterwards twelve lawful
men shall swear to make true answer of the price of wheat, first,
second, and third, of barley, and oats; and of the price of bread, and
for what default a baker ought to be amerced or to be judged unto the
pillory; also if any steward or bailiff for any bribe doth release
punishment of the pillory and tumbril. Also if they have in the town a
pillory of convenient strength; next of the price of wine, and if any
corrupted wine be in the town, or such as is not wholesome for man’s
body; also of the assize of ale, and what brewers have sold contrary
to the assize, and ought to be judged to the tumbril; also if there be
any that sell by one measure, and buy by another. Also if any butcher
do sell contagious flesh, or that died of the murrain. Also of cooks
that seethe flesh or fish with bread or water, or any otherwise that
is not wholesome for man’s body, or after that they have kept it so
long that it loseth its natural wholesomeness, and then seethe it
again and sell it. Also of forestallers and regrators. The statute
concludes by enacting that when a quarter of barley is sold for two
shillings, four quarts of ale shall be sold for a penny; when for two
and sixpence, the seven quarts for twopence; when for three shillings,
three quarts for a penny; when for three shillings and sixpence, five
quarts for twopence; when for four shillings, two quarts for one
penny, and so onward the prices shall increase and decrease after the
rate of sixpence.
Footnote 579:
For subsequent statutes see Jac. L. Dict., and Burn’s Justice by
Chetwynd: tit. bread.
Footnote 580:
The following are the more usual additions made by the publican;
_beer-heading_, which is intended to impart the “_cauliflower head_,”
and consists of sulphate of iron, common salt, and alum, for which
several convictions have taken place, (_Minutes of the Committee,
above cited_); it is necessary to observe that the addition of this
“_heading_” is made with a view to restore the property of frothing to
the porter, which has been destroyed by dilution with table beer. The
extract of the berries of the _Coculus Indicus_, possessing properties
eminently narcotic, is added for a purpose too obvious to require
explanation, and is regularly sold by the brewer’s druggists under the
technical appellation of “BLACK EXTRACT.” There is also another
preparation, for a similar object, sold under the name of “BITTERN,”
and which is a compound of _black extract_, _extract of quassia_,
_Spanish liquorice_, and calcined _sulphate of iron_. “MULTUM,” used
as a substitute for malt and hops, consists of _Extract of Quassia_,
and _Liquorice_. We must close this note by expressing our regret at
the little assistance to be derived from chemistry in the detection of
such frauds; mineral substances, as _sulphate of iron_, or any of the
mineral _acids_, can certainly be recognised in our laboratories; but
when we attempt to identify vegetable principles, the resources of
analysis completely fail.
Footnote 581:
_Hydrometer_ employed by the excise, act 58, _G._ 3, _c._ 28 and 56
_G._ 3, 140. _Acetometer_ 58 _G._ 3, _c._ 65, _s._ 8.
Footnote 582:
We cannot follow the foreign writers who speculate on the possibility
of determining age from physiological criteria. Unfortunately the
ordinary mode of proof from parish registers is often defective, as
the act only requires the date of the baptism, and not of the birth;
many clergymen refuse to insert the latter under the plea that birth
and baptism should be nearly cotemporaneous. Every day’s experience
shows the contrary; and as many nice points may arise as to the very
day on which a person (for instance) attains the age of twenty-one, we
hope this practice will be amended.
Footnote 583:
But to avoid these questions, it is the practice of the insurance
offices specially to name gout and some other disorders in their
enquiries of the usual medical attendant of the party insuring.
Footnote 584:
For the doctrine of day of date exclusive or inclusive, see _Lord
Mansfield_, in _Pugh_ v. _Duke of Leeds. Cowp. Rep._ 714.
Footnote 585:
There is another case in which it is important to ascertain whether a
person was in imminent danger, for if a contract for the purchase of a
presentation be entered into while the incumbent is known by the
parties to be in great danger, it is simoniacal. In _Fox_ v. _Bishop
of Chester, Spring Assizes_, 1821, after a long consultation the
following issues were agreed to be put to the jury.
1st. Whether Mr. T. and Mr. F. or either of them knew, that Mr. B.
(the incumbent) was in great danger at the time of the execution of
the deed?—Verdict. That they both knew of it.
2d. Whether Mr. B. was afflicted with a mortal disease and in great
danger?—Verdict. Yes.
3d. Whether Mr. T. and Mr. F. or either of them believed that Mr. B.’s
life was despaired of at the time of the execution of the
deed?—Verdict. That his life was despaired of by both of them.
4th. Whether the life of Mr. B. was actually despaired of at the time
of the execution of the deed.—Verdict. That it was.
Footnote 586:
In a work lately published in Paris, entitled “_Rapports et
Consultations de Medicine legale, recueilles et publiées par_ J.
RISTELHEUBER, D. M. _Médecin en chef à l’hospital Civil de
Strasbourg_”, 8 _vo. p. p._ 172, the subject of insurance on lives and
annuities, is amply considered; and the following case is fully
detailed, which excited so much interest, some years ago, at
Strasburgh. M. FRIERD sold, on the 11th of March, 1809, a large sum in
the funds for the purchase of an annuity on his own life. He was at
the time of the bargain, and had been for ten years, afflicted with
Hemiplegia, in consequence of an apoplectic seizure; and he died on
the second day after the signing of the document. The question
therefore is, whether M. Frierd, on the day on which he signed the
papers, was, or was not, already under the influence of the disease to
which he fell a victim thirty hours afterwards. The question was
debated with much talent and ingenuity on both sides; and the volume
before us contains the various reports, opinions, and arguments,
written on the occasion.
Footnote 587:
See _Price_ on Annuities, and _Bailey’s_ Doctrine of Life Annuities
and Assurances.
Footnote 588:
Residence in great cities is almost universally believed to be
prejudicial to the duration of human life: and that it may generally
be so in some slight degree we are not disposed to deny. The Life
Insurance Offices however, offer a practical proof that the difference
between residence in London and the country, is not so great as is
generally supposed; since these bodies, whose interest and experience
constitute them the best judges of the subject, do not make any
difference in the premiums required, from this change of circumstance.
Footnote 589:
See _Park_ on Dower.
Footnote 590:
This was afterwards brought into B. R. by writ of error, as to the
mode of returning the jury. _Cro. Eliz._
Footnote 591:
This case is variously reported, in _Cro. Eliz._ 502 the son is stated
to have survived; in _Noy._ 64, that the father moved his feet after
the death of the son.
Footnote 592:
See _Mason and Mason_, 1 _Meriv._ 308, and articles of the _Code
Napoleon_ there cited. In this case it was referred to the master to
enquire what children the testator (who with one of his sons had been
lost at sea) had at the time of his death; the master reported that he
was unable to state whether Francis, the son, survived his father or
not. Sir W. Grant, M. R. directed an issue at the request of the
plaintiff. See also _Taylor v. Deplock_, 2 _Phill._ 281.
Footnote 593:
Cum bello pater cum filio perisset, materque filii quasi postea mortui
bona vindicaret, agnati vero patris, quasi filius ante perisset, Divus
Hadrianus credidit patrem prius mortuum. _Dig. Lib._ 34, _T._ 5, 5, 9,
_S._ 1, _de rebus dubiis_.
Footnote 594:
Cum pubere filio mater naufragio periit: cum explorari non possit,
uter prior extinctus sit, humanius est credere filius diutius vixisse,
_l. c. lex_ 22.
Footnote 595:
_Contra Fearne, l. c. p._ 388.
Footnote 596:
The law of England recognises the same distinction between natural and
civil death, upon which the above case turns, as in cases of felons
after judgment of death; the question, however, can seldom, if ever,
arise, since the term _natural_ life is almost universally introduced
into assurances of property.
Footnote 597:
Recueil Periodique de la Société de Medecine de Paris.
Footnote 598:
La Medecine Legale relative a l’art des Accouchemens. A. Paris, 1821,
p. 135.
Footnote 599:
Medecine Legale.
Footnote 600:
Journal de la Société de Medecine de Paris, tom. viii.
Footnote 601:
Smith’s Principles of Forensic Medicine, p. 881.
Footnote 602:
The crime of arson, at common law, is the malicious and voluntary
burning of the house of another, by night or by day, whether in part
or entirely. 3 _Inst._ 66. This felony was without benefit of clergy;
but see _Poulter’s_ case, 11 _Rep._ 29, 2 _Hawk. P. C._ 503, 1 _Hale,
P. C._ 570. All doubts on this point are now taken away by _Stat._ 9,
_Geo._ 1, c. 22. _Britton_ saith, “Soit inquise de ceux que
feloniousment en temps de pace aient auters blees, au autres measons
arses, et ceux que serr de ceo attaint, soient arses, issint que its
soient punies per mesme le choz dont ilz pecherent.” But this mode of
punishment has been long changed, 1 _Hale, P. C._ 566; outhouses and
barns, parcel of the dwelling house and barns having corn in them were
included under the word house, for it was not necessary as in burglary
to say in the indictment _domum mansionale_ (1 _Hale, P. C._ 567,
_Barham’s case_, 4 _Co. Rep._ 20;) to take away clergy, these
distinctions are ended by 9 _Geo._ 1. See stats. 21 _H._ 8, _c._ 1; 23
_H._ 8, _c._ 1; 37 _H._ 8, _c._ 26; 1 _Ed._ 6, _c._ 12; 4 and 5 _P.
and M. c._ 4; 43 _Eliz. c._ 13; 22 and 23 _Car._ 2, _c._ 7; 9 _Geo._
1, _c._ 22, made perpetual by 31 _G._ 2, _c._ 42; 28 _G._ 2, _c._ 19;
1 _G._ 1, _c._ 48; 10 _G._ 2, _c._ 32; 9 _G._ 3, _c._ 29; see also
_Jac. L. dict._ tit. Burning, and _Hawk, P. C._ by _Leach_.
Footnote 603:
_Mr. Leslie_ has availed himself of this property in oatmeal, and has
applied the substance in the place of Sulphuric acid, in his ingenious
and beautiful experiment of freezing in the exhausted receiver of the
air pump.
Footnote 604:
Annals of Philosophy, vol. xvi, p. 390.
Footnote 605:
Memoires de l’Academie de Paris, 1743.
Footnote 606:
A _pood_ consists of 46 pounds Russian, or 36 English.
Footnote 607:
We also refer the reader to the article “_Combustions Humains
Spontanées_” in the _Dictionnaire des Sciences Medicales_; also to the
_Philosophical Transactions_ for 1745; and _Phil. Trans. Abr. v._ 10,
_p._ 1073.
Footnote 608:
This was the case of the priest _Bertholi_, described in one of the
Journals of Florence for October 1776, by _M. Battaglia_, the surgeon,
who attended him; we extract a short account of this extraordinary
event from _Foderé_ (tom. 8, p. 210) who to his own observations on
the subject adds those of _Fouquet_, _Marc_, _Koop_, and others. _Don
Gio Maria Bertholi_ having spent the day in travelling about the
country, arrived in the evening at the house of his brother-in-law; he
immediately requested to be shewn to his destined apartment, where he
had a handkerchief placed between his shirt and shoulders, and being
left alone, betook himself to his devotions. A few minutes had
scarcely elapsed when an extraordinary noise was heard from the
apartment, and the cries of the unfortunate priest were particularly
distinguished; the people of the house hastily entering the room,
found him extended on the floor, and surrounded by a light flame which
receded (_â measure_) as they approached, and finally vanished. On the
following morning, the patient was examined by _M. Battaglia_ who
found the integuments of the right arm almost entirely detached and
pendant from the flesh; from the shoulders to the thighs the
integuments were equally injured; and on the right hand, the part most
injured, mortification had already commenced, which notwithstanding
immediate sacrification rapidly extended itself. The patient
complained of burning thirst, and was horribly convulsed, he passed by
stool putrid and bilious matter, and was exhausted by continual
vomiting accompanied by fever and delirium. On the fourth day, after
two hours of comatose insensibility, he expired; during the whole
period of his suffering, it was impossible to trace any symptomatic
affection. A short time previous to his decease, _M. Battaglia_
observed, with astonishment, that putrefaction had made so much
progress that the body already exhaled an insufferable odour, worms
crawled from it on the bed, and the nails had become detached from the
left hand.
The account given by the unhappy patient was, that he felt a stroke
like the blow of a cudgel on the right hand, and at the same time he
saw a lambent flame (_bluette de feu_) attach itself to his shirt,
which was immediately reduced to ashes, his wristbands (_poignets_) at
the same time being utterly untouched. The handkerchief, which as
before mentioned, was placed between his shoulders and his shirt, was
entire, and free from any trace of burning; his breeches were equally
uninjured; but though not a hair of his head was burnt, his coif
(_calotte_) was totally consumed. The weather on the night of the
accident was calm, the air very pure; no empyreumatic or bituminous
odour was perceived in the room, which was also free from smoke; there
was no vestige of fire, except that the lamp, which had been full of
oil, was found dry, and the wick reduced to cinder.
_Maffei_ (says _M. Battaglia_) would have found in the case of the
Priest _Bertholi_ a confirmation of the opinion delivered by him
(_Journ. de med. tome_ 68, p. 436) that lightning is sometimes excited
in us, and destroys us.
See the works of the _Abbè Fontana_, entitled _Ricerche filos, sopra
la ficic. animale_.
_M. Foderè_ observes, that the inflamed hydrogen, occasionally
observed in church-yards, vanishes on the approach of the observer,
like the flame which consumed _P. Bertholi_; and as he, in common with
others, has remarked that this gas is developed in certain cases of
disease, even in the living body, he seems inclined to join _M. Marc_
in attributing this species of spontaneous combustion to the united
action of hydrogen and electricity in the first instance, favored by
the accumulation of animal oil and the impregnation of spirituous
liquors.
Footnote 609:
See case of _Marie-anne Jauffret_, A. D. 1779, (_Foderé_, vol. iii, p.
200) where also see other cases in illustration of this curious
subject. _Foderè_ alludes to some cases where in consequence of
combustion, possibly spontaneous, persons have been accused and
condemned for murder. _Tom._ 3, _p._ 204. See also _Maclaurin’s Crim.
Ca. p._ 177 _n._ and 754.
Footnote 610:
The law of England justifies a woman killing one who attempts to
ravish her. _Bac. Elem. p._ 34. 1 _Hawk. P.C. c._ 38. _s._ 21. and so
too the husband or father (query also a brother or guardian, _in loco
parentis_) may justify killing a man who attempts a rape upon his wife
or daughter; but not if he takes them in adultery by consent, for the
one is forcible and felonious, but not the other. 1 _Hales P.C._ 485.
(yet this homicide may be excusable though not justifiable. See 1
_Hawk. P. C. c._ 28. _s._ 3.) And there seems no doubt but the
forcibly attempting a crime of a still more detestable nature, may be
equally resisted by the death of the unnatural aggressor. For the one
uniform principle that runs through our own, and all other laws, seems
to be this; that where a crime, in itself capital, is endeavoured to
be committed by force, it is lawful to repel that force by the death
of the party attempting. _Bl. Comm. c._ 14.
Footnote 611:
This statute was passed in consequence of a Wager of Battle offered by
_Abraham Thornton_, appealed for the murder of _Mary Ashford_. The
decision of causes by combat was always absurd, and it was certainly
full time that it should be abolished; but it is not equally evident
that the appeal ought to have been taken away altogether, especially
in cases of murder. The preamble of the Act states the proceeding to
“have been found to be oppressive;” certainly it was also rare; in
above one hundred years there had been only one execution on appeal,
and when the case of the _Kennedies_ (see _Bigby v. Kennedy_, 5 _Bur._
2648) is considered, it may fairly be doubted whether some
constitutional check ought not to have been retained against the
misdirection of the Royal prerogative. See also the case of _M‘Quirk_
for the murder of Mr. _Clarke_.
Footnote 612:
The injuries thus occasioned, consist in rupture of the hymen,
swelling, contusion, inflammation, or laceration of the parts,
discharge of blood; and in persons of extreme youth, the laceration of
the perineum is said to have sometimes occurred; and as Rape cannot be
completed without considerable violence, we should also expect to find
marks of force in other parts of the body, such as bruises about the
arms and thighs; but in appreciating the value of such indications,
let the practitioner remember, that the greater part of them may occur
where the connexion has taken place with the consent of the female, or
they may even be the effect of disease. Dr. _Percival_ relates a case
where the inflammation of the pudenda, and symptoms of defloration
occurred in a child four years old, which occasioned her death; there
were strong reasons for suspecting that she had been injured by a boy
of fourteen years of age, and he was accordingly taken into custody;
but the case received elucidation from several others of a similar
nature having been shortly afterwards received into the same hospital,
and of whose nature no doubt could be entertained. When Rape has been
committed, gonorrhœa, or lues venera are sometimes communicated,
especially in cases of young children, in consequence of a very
general opinion among the lower libertines of the male sex, that the
best possible cure for this disease, is intercourse with a virgin; if
then the accused should be found free from disease, where the female
is contaminated, and vice versa, it affords a strong presumption of
his innocence; in conducting, however, such an investigation, there
are several sources of fallacy, with which it is the duty of the
medical enquirer to be fully acquainted; he should know, that purulent
discharges, from other causes, do take place in children; and on the
other hand that a person, in whom no appearance of existing venereal
infection can be discovered, may communicate disease to others; this
fact was ascertained by Mr. _John Hunter_, and its truth has been
satisfactorily confirmed by the repeated observations of succeding
surgeons. Women labouring under leucorrhœa may impart a discharge to
the male; and Dr. _Male_ observes, that the latter, affected by a
gleety discharge in consequence of strictures, and other irritations
in the urethra, may also affect the females.
Footnote 613:
Enfin il faut adjouter la comparison de l’organe offensant avec
l’organe offensé; car, ainsi que dans les autres blessures, il n’est
pas indifférent ici de présenter l’instrument à la plaie dont on le
suppose coupable, 4 _Fod. p._ 359.
Footnote 614:
In this case it was stated that the law of France did not make any
distinction between debauching a child under twelve, or a woman at
maturity. However this may have been, the cases afterwards quoted shew
that the breach of trust was severely visited on two priests. Arrêt du
Parliament de Grenoble, qui condamna un prêtre d’être pendu, puis
brulé, pour avoir abusé du sacrament de confession, porté ses mains
sur le sein et autres parties de plus de cent femmes, pendant qu’il
confessoit.
Footnote 615:
In France this crime is visited with additional severity when
committed by a person in trust, or by a Clergyman; _Penal Code, art._
333. This principle of apportioning punishment is recognised in our
laws of Petit-treason, and robbery by servants: it might be well
extended to Rape.
Footnote 616:
See also the case of _John Church_, convicted of an abominable attack.
On the expiration of two years imprisonment to which he was sentenced,
he resumed his methodistic (we cannot call them clerical) functions,
and is now attended by large congregations, especially of old women!!!
Footnote 617:
See also 1 _East. P.C._ 441. and cases there.
Footnote 618:
Vide ante. _p._ 185.
Footnote 619:
Elle a infiniment plus de moyens pour se defendre que l’homme n’en a
pour attaquer, ne fût ce que le movement continuel: Une Reine éluda
autrefois l’accusation d’une plaignante: elle prit un fourreau d’épée,
et le remuant toujours, elle fit voir à la dame qu’il n’etait pas
possible de mettre l’épée dans le fourreau. 4 _Foderè_, 358.
Footnote 620:
Virginity in females has been very differently estimated by different
nations; in the first ages of the Christian church so highly was it
honoured and esteemed, that women were admitted to make solemn vows of
it in public; and yet among the Jews it was held infamous for a woman
to die a maid. In Peru and several other provinces in South America,
we are assured by _Pedro de Cieca_, in the history of the Incas, &c.
that men never marry, but on condition that the next relation or
friend of the maid shall undertake to take away her virginity; and our
countryman, _Lawson_, relates the like of some of the Indian nations
of Carolina—So little is the _Flos Virginis_ valued in some places!
_De virginitatis signis._ This has been a very favourite subject with
the speculative writers of both ancient and modern times, but none
appear to have come to any very satisfactory result upon the question;
nor is it even yet agreed in what the quality consists; some will have
it a moral, others a purely corporeal qualification. “Porro
virginitas, dicit Zacchias, si magis materialiter sumatur, nihil aliud
est quam naturalis constitutio et cohœrentia vasorum mulibrium, quæ
sic accepta potest facillime amitti; destructa enim vel manibus, vel
alio quocumque instrumento naturali constitutione et cohœrentia earum
partium, illico destructa dicitur et ipsa virginitas.” 2 _M. L. 1._ 4.
_tit._ 2. If the words _culpa muliebri, aut coitu virili_, had been
added, we might have acceded to the latter part of this definition;
the matter however is rather one of etymological curiosity, than of
medical jurisprudence, and therefore we shall proceed to quote from
the best authorities we have been able to discover on the subject, the
various signs by which this state may be ascertained; with this
reservation always of our own opinion, that though the presence of all
the enumerated circumstances may be taken as sufficient proof of
virginity, the absence of some or many of them, especially if
explained by physical causes, is no evidence to the contrary. “Le
fanciulle sane ed intatte hanno le parte esterne della generazione
dure, sode, lucide, e di un colore incarnato; l’imene intero; le labra
della vulva bene unite; le nimfe picciole e coperte; la clitoride col
preperzio corto; le rughe della vagina eminenti, apparente e fra loro
contigue; i seni mucosi profondi; l’orifizio dell’ uretra
angustissimo. Lasciando a parte i ridicoli segni tolti dai peli del
petigone più o meno crespi, dalla sibilosa escrizione delle orine;
dalla voce; dalla grosseza del collo; dal odorato, come vien detto di
un bravo Religioso di Praga che al solo odore sapea distinguere una
vergine donna da una deflorata; dal resultato degli sperimenti fatti
colla polveri di agata, di succino, di ambra, che legonsi appresso
molte Scrittori, che se divertono con bagatelle: noi divideremo i
sobraesposti segni di virginità in primarj ed in secondarj. Tra i
primi, creduti i meno fallaci si contano le rugosità della vagina
lumide e spesse; l’oscula della medesima angusto; l’imene presente; ed
il frenulo alto e molto teso.” Such are the signs laid down by
_Tortosa_, vol. 2. p. 4.; following _Nessi_, _Zacchias_, and
_Rœderer_; the writer then proceeds to examine each of these
circumstances with considerable minuteness.
Footnote 621:
Many of the judges denied that carnal knowledge was necessary to be
laid in the indictment; but only that the defendant ravished the
party. _Hill’s_ case. _Tr. Term_, 1781.
Footnote 622:
_M. Capuron_, in his _Medicine Legale relative a l’art des
Accouchemens_, published at _Paris_, 1821, enters with some minuteness
into the discussion of these signs; and comes to the conclusion, that
we shall endeavour to impress upon the reader, that no one of the
signs is in itself sufficient to establish the fact; nor is the
absence of all, conclusive against its existence; all that the most
experienced medical observer can do, is to shew a strong probability,
which united to moral evidence of the character and conduct of the
party, will amount to proof. Χρη παντα θεασασθαι τα σημεῖα, και μη
πιστευειν ενι.
Respect for the Jewish ritual, _Deut._ c. 22. has led a great part of
mankind into an error on this subject, and as it is one which has too
often destroyed matrimonial confidence, by exciting unjust suspicions,
we think it worthy of notice here, though not immediately necessary to
our subject. “L’hymen a été considéré comme le sceau de la virginité
physique. Mais pour admettre un pareil signe, il faudroit qu’il
existât naturellement chez toutes les vierges sans exception, et qu’il
ne se recontrât jamais chez celles qui auraient été deflorées; en un
mot, qu’il ne pût être détruit ou effacé que par la copulation.
D’abord la membrane dont nous parlons n’est pas universelle. A la
vérité, on ne peut contester qu’elle exist chez la plûpart, même chez
le plus grande nombre des vierges; celà est confirmé par le temoignage
de _Morgagni_, _de Haller_, _de Diermerbroeck_, _de Riolan_, _de
Bartholin_, _de Heister_ _et de Ruisch_.—_Dulaurans_, _Bohn_,
_Dionis_, _de la Mothe_, _Buffon_, _Palfin_, _Fallope_, _Vesale_,
_Colomb_, _Mahon_, etc. en ont formellement nié l’existance. [Nous
pouvons certifier nous-même ne l’avoir point trouvée chez plusieurs
petites filles, immediatement après leur naissance, tandis que nous
l’avons recontrée, sous la forme d’un anneau qui bordait l’orifice du
vagin, chez une femme célibataire de soixante-cinq ans. * * on le peut
rencontrer, non seulement chez les filles deflorées, mais encore chez
des femmes enceintes, et pres d’être meres!! Gavard rapporte l’example
d’une fille de treize ans qui avait gagné la maladie vénérienne dans
un lieu public, et qui neanmoins conservait encore cette marque de
virginité. Severin Pineau assure aussi que deux jeunes personnes
reçurent, dans le temps des règles, les embrassemens d’un homme sans
éprouver la moindre dechirure de l’hymen. On conçoit en effet avec
_Teichmeier_ et _Brendel_ que celà est très possible dans le temps de
la menstruation; car alors l’orifice du vagin devenant plus souple et
plus large qu’à l’ordinaire, peut admettre plus facilement le membre
de l’homme qui peut être aussi fort petit: ajoutons à cela que
l’hymen, surtout quand il est de forme semi-lunaire, humecté et
remolli par l’ecoulement du sang menstruel, peut offrir moins de
resistance, ceder et s’appliquer à la surface interne du vagin, et
permettre la copulation sans se rompre. _Mauriceau_ a cité plusieurs
femmes enceintes dont l’hymen etait dans son intégrité. _Ruisch_ parle
d’une femme dont la delivrance était empêchée, non-seulement par
l’hymen, mais encore par une autre membrane non naturelle. On trouve
des faits analogues dans _Meckel_ et _Walter_. _Beaudelocque_ rapporte
l’observation d’une femme primipare, dont l’hymen fut déchiré
brusquement par la tête de l’infant. Nous avons vu nous-même, la
resistance de l’hymen, ou nous n’aperçumes qu’une tres petite
ouverture qui avait sans doute permis la fecondation. Nous incisâmes
cette membrane avec le bistouri, et la patiente mit au monde très peu
de temps après, deux jumeaux vivans et de grandeur ordinaire.”
_Capuron. P._ 2. _quest._ 1.
Footnote 623:
In entering upon a disquisition on the tests of virginity, it is
hardly necessary to enumerate the many absurd marks related by the
more credulous, as indicative of recent defloration, such as, swelling
of the neck, rings around the eyes, the colour of the skin and urine,
&c. nor is it necessary to enter into a refutation of the story,
credited by _Mahon_, of a monk at Prague who could tell a maid by the
smell. We shall therefore proceed at once to consider the value of
that test which most commonly passes among us as the least equivocal
mark of virginity, viz. the presence of a peculiar membrane termed the
_Hymen_.
THE HYMEN (so named from the Greek word ὑμην, a membrane) is formed by
four angular duplicatures of the membrane of the vagina, the union of
which may be discovered by corresponding lines on the hymen. At the
upper part there is a semilunar vacancy, intended for the transmission
of the menses, so that it assumes the form of a crescent: a
circumstance which affords the true explanation of the origin and
meaning of the symbol so characteristically assigned to _Diana_. (See
_J. G. F. Tolbeng, de varietate hymenum. Hal._ 1791, 4to.) In some
rare cases, the hymen is an imperforate circular membrane, attached to
the edge of the orifice of the vagina in every part, so as to close
the canal completely, (we have already noticed this fact under the
subject of Impotence, p. 207). The girls, in whom this fault of
conformation existed, were called by the Greeks ἁτρηταὶ; physicians
who have written in Latin amongst us, have given them the name of
_Imperforatæ_, _clausæ_, or _velatæ_; and the Italians that of
_Coperchiate_. The Romans had no appropriate word to denote this
malformation, and they were therefore obliged to express it by some
circumlocution; it is thus that CICERO (_De Divinat: Lib._ II.) speaks
of a dream, where a woman was seen, “_quæ obsignatam habebat
nuturam_;” and that PLINY (_Hist. Nat. Lib._ VII. _c._ 16) relates,
_Cornelius_, the mother of the _Gracchi_, “_concreta genitali nata
fuerat_.” In many cases the membrane appears never to have been
formed; while in others, its extreme tenacity has occasioned its
rupture and destruction in early life; it may, moreover, have been
destroyed by disease, by noxious habits, or by acrimonious discharges.
This extreme uncertainty has led many authors, of no inconsiderable
eminence, to deny its existence, while others have acknowledged its
occasional presence, but have attributed its formation to disease.
GRAAF, PENIUS, BUFFON, DIONIS, declare that, by dissection of girls of
all ages, they have never been able to discover it; on the other hand,
the reality of this membrane has been maintained by BERENGER DE CORPI
(_In Isagoge Anatomica_), VESALIUS (_De Corp. hum. fabric._ v. _c._
15.) FALLOPIUS (_In Observat. Anatom._) VOLCHERUS COITERUS (_In Tabul.
Anatom._) VAROLIUS (_Anatom. Lib._ iv. _c._ 4). RIOLANUS (_Anthropog.
Lib._ 1, _c._ 16). BARTHOLIN (_Anat. Lib._ 1. _c._ 31). WEIRUS
(_Observat. Lib._ 1. _et de Lamiis Lib._ iii. _c_ 20). SPIGELIUS (_De
Hum. Corp. fabrica Lib._ viii. _c._ 18). DIEMERBROECK (_Anatom. Lib._
1. _c._ 16). SWAMMERDAM (_De Uteri Mulieb. fabrici_). TECHMEYER
(_Institut. Medicin. Legal et Forens. c._ iv.) and all the more
learned and able anatomists of the sixteenth and seventeenth
centuries. HEISTER (_Compend. Anatom._ and _Ephem. Nat. Curios. Cent._
viii. _Observ._ 69). FREDERIC RUYSCH (_Thes. Anatom._ iii. _No._ 15;
vi. _No._ vii. _No._ 60.) MORGAGNI (_Adversaria Anatom._ i. 29-iv.
23.) and WINSLOW (_Exposit. Anatom. No._ 653), all describe this
membrane, and assert that they have found it in every young girl they
have had occasion to examine. _Astruc_ (_On the diseases of Women,
vol._ 1. _p._ 123), in referring to the above learned authorities,
observes that, “the inference must necessarily be, that those who deny
ever to have seen it, must either have examined only such girls as had
lost their virginity; or, prepossessed with the false notion that the
_hymen_ must always close the entrance to the _vagina_ entirely, they
have mistaken it at the time it was before their eyes, and have even
sometimes given the description of it, without mentioning the name.”
After this literary history of the question, we may very safely
conclude, that the _Hymen_ is a perfectly natural structure, occurring
in the virgin, and that by sexual intercourse it is ruptured; after
which it is shrivelled into several small excrescences at the orifice
of the urethra, called the _Carunculæ Myrtiformes_. But since it is
liable to such variations in appearance, and to accidental rupture
from the slightest causes, its absence can never be received as
evidence of defloration; nor can its presence be considered as an
unequivocal proof of virginity; for it has been asserted by
indisputable authority, that it is not always ruptured _in Coitú_.
RUYSCH has said, that if the coitus take place immediately after the
menstrual excretion, this membrane is often not ruptured, (_Observ.
Anat. Chirurg._ xxii). And we have already alluded to cases, wherein
the Hymen was actually entire at the time of delivery. (See p. 203,
and note.)
Some authors have talked of the renewal of the hymen after its
rupture; this we apprehend can never happen, although a spurious
reparation of certain local consequences, incident to the loss of
virginity, may certainly occur from the effects of adhesive
inflammation.
Having thus disposed of the subject of Hymen, we next come to consider
the state of the Vagina, as an indication of Virginity, upon which
some authors have attached considerable weight, especially the Italian
medico-jurist TORTOSA. In a healthy virgin it ought certainly to be
rigid and narrow, since the only function which it has to perform is
that of giving transit to the menstrual flux: the parts may however
become dilated, and their natural rugæ be obliterated from various
innocent causes. Certain mal-practices will likewise occasion the same
relaxation as sexual intercourse. Some authors have considered a
rigidity of the _frenum labiorum_, at the inferior, or _posterior
commissure_ of the _pudenda_, as a proof, if not of virginity, of a
rare indulgence in sexual intercourse. The Mosaic test of Virginity,
the effusion of blood, however conclusive it might have been among the
Jews, certainly cannot be received as unexceptionable in these
Northern climates. The Jews, it would seem, placed so much reliance
upon appearances, that the nuptial sheets were constantly viewed by
the relations on both sides; and the maid’s parents preserved them as
a token of her virginity, to be produced in case her husband should
ever reproach her upon that subject. In case the token of virginity
was not found on them, she was to be stoned to death at her father’s
door. This evidence is still required by some of the tribes inhabiting
the banks of the Indus.—_Pottinger’s Travels, p._ 70. In some cases
the effusion of blood during the first act of coition, is very
considerable, and is liable to be confounded with the _Catamenia_; we
have however already observed (p. 187, note) that the menstrual
excretion does not, in its natural state coagulate; and yet this
assertion requires some qualification; for it is well known, that when
the discharge is superabundant and attended with great pain, it often
comes away in coagula, in which case there is probably an admixture of
common blood.
From what has been here related, we are bound to conclude, that there
does not exist any anatomical sign, by which the virginity of a female
can be unequivocally determined. By midwives and matrons however, the
subject has been treated with less diffidence; in the statutes of the
sworn matrons, or midwives of Paris, containing likewise divers
formulæ of reports, and depositions made in court, upon their being
called to visit girls that made their complaint of being deflowered,
they laid down fourteen marks on which to form a judgment. _Laur.
Joubart_, a celebrated physician of Montpellier, has transcribed three
of these reports—one made to the Provost of Paris, another in
Languedoc, and a third in Berne.
Footnote 624:
_Mahon_ mentions an instance in which he found a membrane at a
finger’s breadth within the vagina, _Med. Leg._ tom. 1. p. 118.
Footnote 625:
“Qualis imperfectus tamen coitus, quo mentula vaginæ uterique orificio
quodammodo tantum applicatur, hoc sub illius affrictione titillatur
ipsique semen virile adspergitur, juxta diversorum Autorum
observationes Medicas, ad impregnationem Mulieris alicujus interdum
sufficit. Valentini Novella Medico legales,” vol. 1. p. 33.
Footnote 626:
But _contra_ see _Hale P. C._ 628 & 8 _Inst._ 58.
Footnote 627:
The period and manner of mutilation have considerable influence on the
effects of the process. The complete removal of all the external
organs is a much more decisive method of annihilating the propensities
connected with them, than any partial amputation, or compression, or
ligature of the spermatic cords—“Si soli testiculi abscissi fuerint,
non auferuntur desideria; imo sunt valde magna, in quibus peccare
possunt ... sed possunt deflorare quamcunque mulierem, nullam tamen
impregnare. 1. _Valent. Pand. p._ 136, vide etiam a p. 62, usque ad
222. _De Conjugio Eunuchi._”
The operation is also more effectual when performed in early infancy,
than after the period of puberty; venereal desires have been known to
subsist in considerable force, and with the usual external signs, even
after the removal of the testes in the adult; thus JUVENAL, in
satirising the vices of the Roman women, says—
“Sunt quas Eunuchi imbelles, ac mollia semper
“Oscula delectant,”——
Footnote 628:
An important question here arises as to what shall be legally called
_Semen_, for the secretion emitted is composed of parts, the smaller
portion of which only possesses the generative faculty.
It appears from the experiments and observations of our most accurate
physiologists, that the fluid expelled in copulation is furnished in a
small proportion only by the Testes; that to this a peculiar secretion
of the Vesiculæ Seminales is added, and that the chief bulk is made up
of the Prostatic liquor, or secretion from the prostate gland; so that
the fact of emission in Eunuchs is not extraordinary, although the
discharged fluid cannot be said to be _Seminal_.
Footnote 629:
_Aut. more alieno retrahat._
Footnote 630:
We should indeed be inclined to question the veracity of a witness,
who under circumstances of extreme pain, rage and terror, should
pretend to any very great sensibility to minuter accidents.
Footnote 631:
The Faculty of Leipsic decided “Dormientem in sella Virginem insciam
deflorari posse 1. _Valent. Pand. Med. Leg._ p. 31. vide etiam _ib._
p. 33. De stupris in Somno à Fœminis admissis.” In stating the above
authorities we are not to be considered as implicitly confiding in
their truth.
Footnote 632:
Yet if she live long enough to make a deposition upon oath, it is
admissible. Vide post _Fleming & Windham’s_ case.
Footnote 633:
This belongs to a class of cases of which we shall take no other
notice, than by referring the reader to the authorities. We do not
believe that medical evidence can ever materially elucidate the fact,
unless the crime be violent and accompanied by material bodily injury.
Footnote 634:
In the celebrated case of _Mary Ashford_, the prisoner _Abraham
Thornton_, admitted the carnal knowledge, adding that it was with her
own consent, but the whole of the evidence repelled the latter
assertion; the death of his unhappy victim (however caused) rendered
it impossible to convict him of Rape.
Footnote 635:
It is possible that a woman who has consented to her dishonor by one
person, may on fear of discovery, or for some malignant motive, charge
the crime on another; or as in the cases mentioned by _Capuron_, she
may have produced external appearances of injury for the same
nefarious purpose.
Footnote 636:
_Farr_ and _Faselius_ incline to the same opinion. The Parliament of
Thoulouse passed a decree upon this subject, deciding that a woman
violated might nevertheless conceive; the physicians having on that
occasion reported, “posse quidem voluntatem cogi, sed non naturam, quæ
semel irritata pensi voluptate fervescit, rationis et voluntatis
sensum amittens.”
Footnote 637:
Or if she be a married woman, how is it possible to fix the filiation?
Footnote 638:
Sir _W. Blackstone_ does not appear to have adverted to this statute.
4 _Comm._ 314. See _Jac. L.D._ by _Tomlins, tit._ Rape.
Footnote 639:
All persons, whether men or women, aiding in the perpetration of a
Rape, are guilty of felony. Lord _Baltimore’s_ case, 2 _Burr._ 2179.
Footnote 640:
It is somewhat singular that several eminent writers should have
fallen into the error of citing Lord _Castlehaven’s_ and Lord
_Audley’s_ as distinct cases; _Mervin Touchet_ was Earl of
_Castlehaven_ in Ireland, and Baron _Audley_ in England.
Footnote 641:
For the opinion of the Judges on the question of penetration, arising
out of this case, see _Hutt. R._ 115.
Footnote 642:
The doubt in this case arose on the construction of the Statute 2 & 3
_Ph. & M. c._ 10. See also _Lambe’s_ case, 2 _Leach’s C.L._ 626.
Transcriber’s Note
This print copy of the book had front matter labelled with small Roman
numerals followed by an Introduction also labelled with small Roman
numerals and beginning again with ‘i’. In this e-book version, the page
numbers of the front matter have been suffixed with _a (i.e. i_a) and
the page numbers of the Introduction have been suffixed with _b (i.e.
i_b), in order to differentiate them.
This book uses inconsistent spelling and hyphenation, which were
retained in the ebook version. Ditto marks and dashes used to represent
repeated text have been replaced with the text that they represent. Some
corrections have been made to the text, including correcting the errata
noted, normalizing punctuation and correcting page numbers in the table
of contents where errors were found. Further corrections are noted
below:
p. v_b: weight of a religious ordonannce -> weight of a religious
ordinance
Footnote 41: Cours de Médicine -> Cours de Médecine
p. xxxvi_b: Sir Henry’s Presidentcy -> Sir Henry’s Presidency
p. xlvii_b: a sign of independant vitality -> a sign of independent
vitality
Footnote 75: suggested that Cardinel Wolsey -> suggested that Cardinal
Wolsey
p. 2: were repeated by the Act 14 and 15 -> were repealed by the Act 14
and 15
p. 20: the warden or goaler -> the warden or gaoler
p. 31: the defendants,[95] plea was naught -> the defendant’s[95] plea
was naught
p. 42: beacons to avoid passed errors -> beacons to avoid past errors
p. 48: fit to pratise in _another_ -> fit to practise in _another_
p. 59: and the evstravagant praise which -> and the extravagent praise
which
Footnote 134: minutes of the Royal Soeiety -> minutes of the Royal
Society
Footnote 148: jurisdiction of the Bishop or Winchester -> jurisdiction
of the Bishop of Winchester
p. 92: its most absurd superstititions -> its most absurd superstitions
p. 95: health of the neigbourhood -> health of the neighbourhood
Footnote 153: ground on which this cemetry -> ground on which this
cemetery
Footnote 158: Mémoires de la Societe Royale -> Mémoires de la Société
Royale
Footnote 177: Treasise on the Plague -> Treatise on the Plague
Footnote 177: but carefuly avoived contact -> but carefully avoided
contact
Footnote 183: being communicated from person person -> being
communicated from person to person
p. 116: from the pen of Dr. _Brancoft_ -> from the pen of Dr. _Bancroft_
Footnote 195: _Medical Logic Eit. 2. p. 219._ -> _Medical Logic Edit. 2.
p. 219._
p. 123: substance so analagous to -> substance so analogous to
p. 131: from Symrna to the whole African coast -> from Smyrna to the
whole African coast
Anchor position Footnote 213 assumed
p. 141: leaves a poisonons substance -> leaves a poisonous substance
p. 152 witnssses, or even spectators -> witnesses or even spectators
p. 152: the attention of Medical practioners -> the attention of Medical
practitioners
Footnote 254: hujusmodi morbornm quavis -> hujusmodi morborum quavis
Footnote 263: the SIXT AGE -> the SIXTH AGE
Anchor position for Footnote 393 assumed
Footnote 347: See _Part_ 3. of _Personal Idendity_. -> See _Part_ 3. of
_Personal Identity_.
p. 223: we may doubt whether the Achbishop of Canterbury -> we may doubt
whether the Archbishop of Canterbury
Footnote 350: considering such a phecomenon as impossible -> considering
such a phenomenon as impossible
Footnote 351: shew that that there was living issue born -> shew that
there was living issue born
Anchor position for Footnote 401 assumed
Footnote 408: Journal des Pratisch Heilkunst. -> Journal des Praktischen
Heilkunst.
p. 263: in a paper entiled -> in a paper entitled
p. 281: he said to have been _born_ -> be said to have been _born_
Footnote 470: _Medico-Chirurg. Trans._ voi. 10 -> _Medico-Chirurg.
Trans._ vol. 10
p. 287: The following remaks -> The following remarks
Footnote 478: London Medical Repositoty -> London Medical Repository
p. 288: see also Montaigne’s Esssay -> see also Montaigne's ssay
p. 288: are very uncommon in occurence -> are very uncommon in
occurrence
p. 292: This succeeds to adolesence -> This succeeds to adolescence
p. 296: whether by the Commisioners -> whether by the Commissioners
Footnote 508: when is erred from -> when it erred from
p. 301: any instrumeut to bind his property -> any instrument to bind
his property
p. 301: and responsable for his actions -> and responsible for his
actions
p. 304: formerly practised in Lunatic Assylums -> formerly practised in
Lunatic Asylums
Footnote 513 anchor position assumed
p. 311: derangement into two classss -> derangement into two classes
p. 319: betow his wealth upon a stranger -> bestow his wealth upon a
stranger
p. 331: the inhabitants of the metroplis -> the inhabitants of the
metropolis
Footnote 552: putrefacfion of a considerable heap of cabbages ->
putrefaction of a considerable heap of cabbages
Footnote 561 anchor position assumed
Footnote 569: appear to be have been very similar -> appear to have been
very similar
p. 368: The last case which he rela tes -> The last case which he
relates
p. 372: brought close to his eyes, conclave glasses -> brought close to
his eyes, concave glasses
p. 377: if any butcher do sell contageous flesh -> if any butcher do
sell contagious flesh
p. 386: his life was depaired of by both of them -> his life was
despaired of by both of them
p. 389: if the daugther was the survivor -> if the daughter was the
survivor
p. 395: those who where found where -> those who were found where
p. 405: and filled with_o atmeal_ -> and filled with _oatmeal_
p. 408: the philosopers of different countries -> the philosophers of
different countries
p. 416: for there were formery several -> for there were formerly
several
Footnote 622: _Vesale_, _Colomb_, _Mahon_, ect. -> _Vesale_, _Colomb_,
_Mahon_, etc.
p. 434: Mr. Justise _Foster_ -> Mr. Justice _Foster_
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