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diff --git a/old/63241-0.txt b/old/63241-0.txt deleted file mode 100644 index ba13cc7..0000000 --- a/old/63241-0.txt +++ /dev/null @@ -1,18494 +0,0 @@ -The Project Gutenberg EBook of Medical Jurisprudence, Volume 1 (of 3), by -John Ayrton Paris and John Samuel Martin Fonblanque - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: Medical Jurisprudence, Volume 1 (of 3) - -Author: John Ayrton Paris - John Samuel Martin Fonblanque - -Release Date: September 19, 2020 [EBook #63241] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK MEDICAL JURISPRUDENCE, VOLUME 1 *** - - - - -Produced by Sonya Schermann and the Online Distributed -Proofreading Team at https://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - - - - - - - - - - Transcriber’s Note - - -When italics were used in the original book, the corresponding text has -been surrounded by _underscores_. - -Some corrections have been made to the printed text. These are listed in -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. - - -------------- - - PART II. - - -------------- - - - - - Medical Jurisprudence. - - -------------- - - 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. - - - -------------- - - William Phillips, Printer. - - -------------- - - - - - 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_ - - - - - -End of the Project Gutenberg EBook of Medical Jurisprudence, Volume 1 (of 3), by -John Ayrton Paris and John Samuel Martin Fonblanque - -*** END OF THIS PROJECT GUTENBERG EBOOK MEDICAL JURISPRUDENCE, VOLUME 1 *** - -***** This file should be named 63241-0.txt or 63241-0.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/6/3/2/4/63241/ - -Produced by Sonya Schermann and the Online Distributed -Proofreading Team at https://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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