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"% 
ELEMENTS
OF
MEDICAL  JURISPRUDENCE.
BY
THEODRIC ROMEYN BECK, "M.D
I'ROKESSOR OF MATERIA MED1CA AND MEDICAL JURISPRUDENCE IN THE COLLEGE ( »
     PHYSICIANS AND SURGEONS OF THE WESTERN DISTRICT OF THE
            STATE OF NEW YORK, ETC. ETC         /
AND
JOHN B. BECK. M. D.
/
PROFESSOR OF MATERIA MEDICA ANI> MEDICAL JURISPRUDENCE IN THE COLLEGE OP
    PHYSICIANS AND SURGEONS, NEW YORK! ONE OF THE PHYSICIANS
          TO THE NEW YORK HOSPITAL, ETC. ETC
            SIXTH  EDITION.     V

        IX  TWO  VOLUMES         A~% f    y
               VOL. I.

          PHILADELPHIA:
THOMAS. COWPERTHWAIT. <fe CO.
1838. 
w
 (oOO
2>3<i3e

   v.  I
  Entered according to the Act of Congress, in the year 1838 by T. Romeyn Beck ;
in the Clerk's Office of the District Court for the Northern District of the State of
New York. 
TO THE
MEDICAL  AND  LEGAL  PROFESSIONS
               THROUGHOUT  THE  UNION,
*o J-
  J1SC



                         THIS WORK
IS RESPECTFULLY INSCRIBED. 
 
ADVERTISEMENT.
  The present edition, which owes its early appearance to the
continued partiality of the public, has been carefully revised and
amended.  Many important additions will be found, particularly
in the part relating to Persons Found Dead.   And throughout,
every exertion has been made, to render it a complete summary
of the rapidly advancing state of the science of Legal Medi-
cine.
  June, 15. 1838.
a "2 
 
PREFACE TO THE FIFTH EDITION.
  In preparing  the present edition of this work for the press, I
have found that an amount of labour was required, equal to that
originally bestowed  on it.  This has arisen from the numerous
and important additions made to the science of  Medical Juris-
prudence during the last ten years.  It has hence  been necessary
to revise every chapter,  and several indeed have been nearly
rewritten.  I have also added essays on two subjects, not pre-
viously noticed, viz. Insurance  upon Lives, and Medical Evi-
dence.   In its present extended, and, as I trust, improved form,
I can only ask for it a portion of the favour with which my first
efforts were so  kindly received.
   Besides the numerous  printed works, from which I have de-
rived most of my materials, and to which I have always given
due credit, I  must not omit acknowledging the use of the Manu-
script  Lectures of  the  late Professor  Stringham,  and of Dr.
William Dunlop.   For the former, I am indebted to the kind-
ness of  his surviving relatives, M. Hunt and Jos. Stringham,
Esquires; and for the latter, as delivered at Edinburgh, to their
author.
   Drs. Dunlop and Darwall, the successive editors of the Eng-
lish editions,  also enriched the work with numerous  and valua- 
viii                       preface.
ble notes.  These I have preserved in the present edition, not
only for their intrinsic worth, but as a  mark of respect and gra-
titude for their labours.
   I have continued to  derive  much assistance from the  New
York State Library, and the Libraries of the Western Medical
College and the Albany Institute; while many of my legal and
medical  friends  have  allowed me the freest  access to  their
private collections.
   The  chapter  on  Infanticide,  originally contributed by my
brother, has been again furnished  by him in an enlarged and
greatly improved form.   I have considered it a bare act of jus-
tice, that the author of so important a portion of the work should
be associated with me on the title page.
                                                T.  R.  B.
  Albany, November, 1835 
CONTENTS OF VOL. I.
Introduction,   -      -       -       -       -       -11
Chap. I.  Feigned Diseases,       ...       25
     II.  Disqualifying Diseases,      -      -       -    73
    III.  Impotence and Sterility,    «                   89
    IV.  Doubtful Sex,       -       -      -       -   117
     V.  Rape,    -----      134
    VI.  Pregnancy,   -       -       -       -       -   173
    VII.  Delivery,                                   233
   VIII.  Infanticide, (by Dr. J. B. Beck,)            -   300
    IX.  Legitimacy,     ....      464
     X.  Presumption  of Survivorship,        -       -   503
    XI.  Age and Identity,       -      -       -      518
    XII.  Insurance upon Lives,       -      -       -   532
   XIII.  Mental Alienation,                           547 
 
INTRODUCTION.
   Medical Jurisprudence, Legal Medicine, or Forensic Medi-
 cine, as it is variously termed, is that science which applies the
 principles and practice of the different  branches of medicine to
 the  elucidation of doubtful  questions in courts of justice.  By
 some authors, it is used in a more extensive sense, and also com-
 prehends  Medical Police, or those medical precepts which may
 prove useful to the legislature or the magistracy.  I shall employ
 it at this time in its restricted meaning.1-
   Traces of this science are to be  found as early as the institu-
 tion of civil society.  Thus in the Jewish law, indications of it
 may  be observed in the  distinction established between mortal
 wounds, and those not so, and in the inquiries prescribed in cases
 of doubtful virginity.  Among the Egyptians, according to Plu-
 tarch, it was ordained,  that no pregnant woman should suffer
 afflictive punishment—while the Romans, even from that early
 period in  which Numa  Pompilius nourished, grounded many of
 their laws on the authority of ancient physicians and philosophers.
 Propter auctoritatem doctissimi Hippocratis is a phrase frequently
 met with  in their decisions,! and the Emperor Adrian, in extend-
 ing the term of legitimacy from ten months, (the period fixed by
 the Decemvirs, to eleven, was influenced,  in  so doing,  by the
 prevailing sentiments of the physiologists of that  day.J   Some
 detached, but striking medico-legal facts, are also mentioned by
 the  Roman historians.   Thus,  the  bloody remains  of  Julius
 Cassar, when exposed to public view, were examined by one An-
tistius, who declared, that out of twenty-three wounds which had
been received, but one was mortal, and that had penetrated the
thorax,  between the  first and second ribs.   The body of Germa-

  * If a general term be necessary to include both these sciences, I should prefer
that used by the Germans, viz. State Medicine.
  t Belloc, p. 6.                      t Fodere.  Introduction, p. xiv. 
Xll
introduction.
nicus was
          also inspected, and by indications comformable to the
superstitions of the age, it was decided that he had been poisoned.*
  The code of Justinian  contains many provisions appertaining
to this science, which we shall have frequent  occasion to  quote
in the subsequent pages.  Some of these indeed are incorporated
into the laws of almost every civilized country at the present day.
  All the laws of the ancients, however, and all the facts drawn
from their history, are to be considered as merely the first glim-
merings  of knowledge  on this  subject—and  knowledge too,
founded on the imperfect diagnostics which medicine afforded at
that early period.  It was never ordained that physicians should
be examined on  any  trial, until after the middle ages, and we are
indebted to the Emperor Charles  the Fifth of Germany, for the
first public enactment, prescribing it as necessary, and thereby
recognizing its value and importance.  In the celebrated crimi-
nal code which  was framed by him  at  Ratisbon, in  1532, and
which is known  by the name of the " Constitutio Criminalis Caro-
lina," or the Caroline Code,  it is  ordained, that the  opinion of
medical  men shall be formally taken in every case where death
has been occasioned by violent means—such as child-murder,
poisoning, wounds, hanging, drowning, the procuring of abortion,
and the like.f
  " The publication  of such a code very naturally awakened the
attention of the  medical profession,  and summoned  numerous
writers from  its ranks."J  It was  the first regular commence-
ment and origin  of legal medicine, and it required only such an
enactment to apprehend  the utility of which it was susceptible.
   The kings of France soon became aware of the value of similar
institutions.   In  1556, Henry the II. promulgated a law, by  virtue
of which,  death was inflicted on the female who should conceal
her pregnancy, and  destroy her offspring.  In 1606, Henry the
IV. presented letters patent  to his  first physician, by which he
conferred on him the privilege  of nominating two surgeons in
every city and important town, whose duty it should exclusively
be to  examine all wounded or murdered persons, and to make

  * Fodere.  Introduction, p. xxx.
  t "George Bishop of Bamberg in 1507, proclaimed a penal code, drawn up for his
States by Baron Schwartzemberg, in which  the  necessity of medical evidence in
certain cases, was recognized."  The Caroline Code was founded on this. Dr. Traill
in Encyclopedia Brittanica, 7th edit. vol. 14, p. 490.
  t Paris' Med. Jurisprudence, vol. 1, p. x. 
introduction.
Xlll
 reports thereon; and in 1667, Louis the XIV. formally declared,
 that no report should be valid  unless it had received the sanction
 of at least one of these surgeons.*   At a subsequent period (1692,)
 physicians were by law associated with surgeons in these exami-
 nations.
   The writers who have investigated the science of medical ju-
 risprudence, are numerous, and  many of them have  displayed
 great talent and acuteness.   Some have  noticed it as  a system,
 while others have examined detached parts.  I shall content my-
 self with mentioning  the more distinguished, as a catalogue of all
 these authors, with the  titles of their works, would uselessly fill
 several pages.
   Fortunatus Fidelis is  probably the earliest writer on the sci-
 ence.  He was an Italian, and his work, " De Relationibus  Medi-
 corum," was published in 1598, at  Palermo.f  Paulus  Zacchias
 soon followed him, in his great work, entitled, " Questiones Me-
 dico-Legales," which appeared at Rome between 1621 and 1635.|
 This distinguished man rose to great eminence in his profession,
• and was physician to Pope Innocent the X.   He died in 1659, in
 the 75th year of his age.  His treatise on legal medicine, although
 partaking of the superstition of the age in which he lived,  is still
 a most valuable record of facts, and  a permanent monument of
 the talents of the author.  The following is a general  outline of
 the contents of the first volume.  First book.  Age: Legitimacy:
 Pregnancy: Superfcetation and Moles: Death during  Delivery:
 Resemblance  of children to their  parents.   Second book. Demen-
 tia : Poisoning.   Third book. Impotence: Feigned diseases: The
 plague and contagion.  Fourth book. Miracles: Rape.  Fifth book.
 Fasting :  Wounds: Mutilation: Salubrity of the air, &c.   The
 second volume is principally filled with a discussion of casuistical
 questions.
   In later  times, no very distinguished authors have appeared in
 this  country, although its  physicians  have not been deficient in
 the   investigation of  particular subjects.   Tortosa, is spoken of,
 by Dr. Paris,  as the best Italian systematic writer of the present
 century.
   * Foder6, vol. 1. Introduction, p. xxxii.
   t Dr.  Cummin considers Condronchus as an earlier writer on Legal Medicine
 than Fidelis.  He published in 1597, at Frankfort, his tract Methodu* Testificandi.
 According to Dr. Cummin, Fidelis published in 1602. London Med. Gazette, vol,
 19, p. 3.
   t Life of Zacchias, prefixed to his  Questiones Medico-Legales^
      VOL. I.                     B 
XI v
introduction.
  In Germany, Bohn was among the earliest writers, but his trea-
tise is confined  to a consideration of wounds.  The Pandects of
Valentini, which appeared in 1702, and which were shortly fol-
lowed by his NovellcE, form a very complete and extensive retro-
spect of the opinions and decisions of preceding writers on legal
medicine.   They consist  indeed of medico-legal cases, and  the
consultations of distinguished  physicians, and  of medical and
legal faculties on them.  Alberti, Zittman, Teichmeyer, Fazelius,
Goelicke,  Hebenstreit, Plenck,  Daniel,  Sikora,  Ludwig, and"
Metzger, are also German authors of eminence in this branch of
learning.  But one of the most  valuable and comprehensive col-
lections that has ever appeared, is that edited by Schlegel.  It
consists of upwards of forty dissertations on various parts of me-
dical jurisprudence, written by his countrymen at different periods
during the eighteenth century, and is alike honourable to the na-
tional character, and the individuals whose investigations appear
in it.
  In our own days, the indefatigable industry and great learning
of the  Germans have furnished important contributions  to  the
science. From  a host of names,  I will only select those of Henke,
Bernt,  Gmelin, Emmert,  Jaeger,  Kopp, Hecker,  Hoffbauer,
Remer and Wagner.
  Fodere, in his sketch of the history of  the science in France,
considered Ambrose Pare as the earliest writer on it in that coun-
try.  His  chapter  on  Reports,  and his observations on feigned
diseases, indicate  the  talents for which he is still  famous at  the
present day, and in such estimation were his works  held  in his
native  country, that for more  than a century, they formed  the
sole guide of the French surgeon.  To him, succeeded Gendri in
1650;  Blegni in 1684, and Deveaux in 1693 and  1701.   Their
works were particularly intended for the benefit of surgeons, from
whom, as I have already stated, the examiners in medico-legal
cases were selected.
  Louis is, however, considered, and with  great  justice, as the
individual who  first promulgated a  just idea of the  science to his
countrymen.  He investigated several important points with great
ability—such as the certainty of the  signs of death, protracted
gestation,  drowning,  and the  proofs  that distinguish hanging
through suicide, from hanging as an act of murder.   His consult-
ations  also  in  various cases, and  which are preserved  in  the 
introduction.
XV
Causes  ( elebres,  abound  in  various and  instructive learning.
Some of his opinions gave rise to animated discussions, and thus
excited  public  attention to these subjects  generally.  Winslow,
Lorry,  Lafosse and Chaussier, also  deserve notice among the
French writers, while  towards  the conclusion of the  eighteenth
century, Professor Mahon, with several others, published in the
" Encyclopedic Methodique,"  copious dissertations  on Medical
Jurisprudence.*
  In 1796, Fodere published the first edition of his work in three
octavo  volumes, under the title of " Les his eclairees par les sci-
ences physiques, ou  Traite de medecine legale et  dliygiene pub-
lique."  This learned physician was a resident of Strasburg, and
the author of several other treatises of deserved reputation.  In
1807, the system  of Mahon, late  Professor of Legal Medicine,
and the History of Medicine in the school of Medicine at Paris.
appeared, with notes, by M.  Fautrel, and  about the same time,
Belloc,  a surgeon at Agen, published  his sensible  and useful trea-
tise in one volume.  Marc, in 1808, presented a translation from
the German, of the Manual of Rose on Medico-Legal Dissection,
and enriched it with valuable notes, besides adding  two most in-
structive dissertations—one on the docimasia  pulmonum, and the
other on death by drowning. In 1812, Ballard published a transla-
tion, also from  the German,  of Metzger.'s Principles of Legal
Medicine.   This work is peculiarly valuable for  the great learn-
ing displayed in its notes, and  the opportunity thus afforded, of
becoming acquainted with the sentiments of authors whose writ-
ings are either inaccessible, or in some degree antiquated.
  After bestowing great labour during several  years, a second
edition of his treatise was published by Fodere in 1813.  It was
now extended to six volumes—four on legal  medicine, and two
on medical police, and was undoubtedly, at the time of its publi-
cation, the most valuable systematic work on the science in the
French language.f
  After a few years there appeared in Paris, one of the most
original publications that the present age has yet afforded.  I refer
to the system of Toxicology by Orfila, a Spaniard  by birth, but
naturalised and permanently resident in France.   This is copi-

  * Fodere, vol. 1, Introduction, p. xxxvii., etc.
  t Professor Fodere died at Strasburg in February of the present year, (1835,) in
the 72d year of his age. 
XVI
introduction.
ous, beyond all former treatises, in original experiments, and it
has done much to increase our knowledge of the action  and the
tests of individual poisons.  The career of Orfila, so splendidly
commenced, has been successfully  and ardently pursued;  and
his lectures on  Legal Medicine, his work on Juridical Disin-
terments, and his numerous essays on detached subjects,  have all
served to improve and advance his  favourite science.
   In  1821,  Professor Capuron published on legal medicine, so
far as  it relates to midwifery.  Briand, Biessy, Esquirol, Geor-
get, Falret,  Marc, and many others, have either written regular
treatises, or published on  some one or other of the subjects in-
cluded in the range of legal medicine. The most valuable French
work, however, of the present day, is the Annales D'Hygiene et
de Medecine Legale.   This is issued quarterly, and is conducted
by some of the  ablest medical men in the kingdom.   In 1836,
Dr. Devergie published an elaborate and able  treatise on Legal
Medicine.   It is peculiarly interesting on the  subject of persons
found dead.
   The first  work, professing to treat of Medical Jurisprudence,
that appeared in England, was the production of Dr. Farr.  T h
was in 1788, and in  his preface he mentions  that it is derived
from Fazelius' Elements of Forensic Medicine.  It is brief and
imperfect, extending  only  to one  hundred and forty duodecimo
pages.  It arrived at a second edition in 1814.  The "  Medical
Ethics," of Percival, contain some useful facts, and Dr. William
Hunter, in his essay " on the uncertainty of the signs of murder in
the case of bastard  children,"  examined a  most  important and
leading subject in medical jurisprudence.   In 1815, Dr.  Bartley
of Bristol, published a few essays on some points connected with
midwifery.
   Dr. Male  of Birmingham, in 1816, presented the first  English
original work of any magnitude or value, on medical jurispru-
dence.  A second edition  appeared  in  1818.   In 1821, Dr John
Gordon Smith published his excellent treatise, entitled " The Prin-
ciples of Forensic Medicine, systematically arranged and applied
to  British practice."    This work  has passed through  several
editions.  Dr. Smith also published separate  treatises on Medical
Evidence, and  on the examination of witnesses, and was much
engaged as a lecturer on the science.*
  * Dr. Smith died not long since.  "To him," I may say, in the language of Dr.
Conolly, "the science of Medical Jurisprudence will always remain indebted, and 
introduction.
XVII
   In 1823, an elaborate  and able  work on  " Medical Jurispru-
dence," in three octavo volumes, was offered to the British public
by the eminent Dr. Paris and Mr. Fonblanque, a barrister.  Sin
that time, the Manual of Dr.  Ryan,  the valuable and copious
Treatise  of  Professor Christison  on  Poisons,  undoubtedly  the
best in the language, and the contributions of the writers  in  the
Cyclopedia of Practical Medicine, are among the most impor-
tant additions to our knowledge  of  the subject.  I  must now
(1838,) subjoin to these, the  treatises of Dr. Montgomery, Mr.
Taylor  and  Mr.  Watson, and  the  lectures of Drs. Cummin, A.
T. Thomson and Southwood Smith.
   I  must  not, however,  omit to mention the many  valuable  as
well as original communications on the science,  contained in the
British Medical  Periodicals, and   particularly in the  Edinburgh
Medical and Surgical Journal.  Here  the  productions of Drs.
Andrew Duncan, jun.  and Christison are to be found, illustrating
every subject on which they touch.
   Dr. Andrew Duncan, jun. was the first professor of Medical Ju-
risprudence in any British University.   His venerable father had,
for  some years previous, urged its  importance on the public,  and
even delivered, I  believe, a course of private lectures,* but it was
not until 1806, that Dr.  Duncan, jun.  received his appointment.f
   On the  removal of Dr. Duncan to the chair of Materia Medica,
he was succeeded by  Dr. Christison, who again, on the death of

it ought never to be forgotten, that he was one of the first to show, and zealously to
advocate, what  all now acknowledge,  its usefulness and dignity."  Transactions
Provincial Med. and Surg. Association, vol. 3, p. 40.
   *  A sketch of the subjects included in the sciences of Medical Jurisprudence and
 Medical Police, may be found in an Analysis of Dr. Duncan, Senr's Memorial, pre-
 sented  to the patrons of the University at  Edinburgh, in 1798.  (Coxe's Medical
 Museum, vol. 5, Appendix, p. 74.)
   t  Dr. Gordon Smith, in the Introduction to his second  edition, (p. 18,) says, that
 Dr.  Duncan received the appointment in 1806.  Dr. Paris, (Introduction, p. xxvi.)
 on the contrary, mentions 1803, as the period.  It was for this appointment, that the
 Fox Ministry of that day were so much reviled.   The following extract from a con-
 temporary publication, will explain the  nature of the attacks.  In the house of Com-
 mons, June 30, 1807, Mr. Percival, in moving for the renewal of the Finance com-
 mittee, took occasion  to attack the abolition  ministry, which had just been turned
 out. Among other things, he said, " He should not dwell in detail upon all the acts
 of the  late  administration, but he confessed himself at a loss to understand  what
 they could mean by the appointment of a professor of Medical Jurisprudence.  He
 acknowledge^ that he was ignorant of the duty of that professor, and could not com-
 prehend what was meant by the science he professed."  On the same day, Mr. Can-
 ning said, " He could alone account for such a nomination, by supposing, that after
 some long debate, in the swell of insolence, and to show how far they could go, they
 had said,' we will show them what we can do—we will create a professor of Medi-
 cal Jurisprudence.'"  (Stookdale's Nevy Annual Register, 1807, p. 206, 210.) 
XV111
INTRODUCTION.
 the former, succeeded his teacher and friend.   Dr. Traill, is the
 present professor of Medical Jurisprudence at Edinburgh.
   Among the earlier lecturers  on this science  in  Great Britain,
 may be named  Dr.  George Pearson, W.  T.  Brande, Esq.,  Dr.
 Harrison, Dr. Elliotson, Dr. Gordon  Smith, and Dr. Ryan.  By
 a regulation of  the  Society of Apothecaries,  adopted a few years
 since, an attendance on a course of lectures on Forensic  Medi-
 cine was  made  a  requisite  for examination, and  the  result  has
been a large increase in the number of teachers. I have prepared
from various  sources, a list of  these  during the Medical sessions
of 1833-34, and 1834-35, which  will be  found in  the subjoined
note.*
University of Edinburgh,  -
London University,
King's College, London,
Guy's Hospital, -
St. Bartholomew's  Hospital,

St. George's Hospital,

St. Thomas's Hospital,

London Hospital,
Westminster Hospital,
Theatre of Anatomy, Webb-street, Maze I
  Pond.......(
Theatre of  Anatomy, Little Windmill- )
  street,   -    -    .     -    -    - \
Central School of Medicine, St. George i
  and St. James's Dispensary,  -     \
Western Dispensary,          .
Medical School, Aldersgate-street,
Westminster School of Medicine,

School of Anatomy and Medicine, Gilt- )
  spur-street,.....\
Charing Cross Hospital,
* Session 1833-34.    Session 1834-35.
Dr. Traill.         Dr. Traill.
Dr. A. T. Thomson.  Dr. A. T. Thomson.
Dr. T. Watson.     Dr. T. Watson.
Mr. A. Taylor.     Mr. A. Taylor.
Dr. Roupell and Dr.  Dr. G. Burrows.
  George Burrows.
Dr. Seymour and Mr. Dr. H. Davies.
  C. Hawkins.
Dr. Lister and Mr.  Dr.  Lister  and Mr.
  R. Phillips.        R. Phillips.
Dr. Cobb, Dr. F. H.  The same.
  Ramsbotham and
  Mr. Pereira.
                .  Dr. R. H. Graham.
Dr. Southwood Smith The same.
  and Mr. Cooper.
Dr. Sigmond, Dr. Jew- Dr. Jewell and Mr.
  ell and  Mr. Everett.   Everett.

Dr. Wyatt Crane.
Dr. Clendenning.
Dr. W. Cummin.    Dr. W. Cummin.
Dr. Ryan and  Mr.
  Crump.
Mr. Barnes and Mr.
  Wheeler.
Medical School, Westminster Dipensary,
Theatre of Anatomy and Medicine, ad- f
  joining St. George's Hospital,  .     i
School of Medicine, Medical Dispensa- i
  ry, 13 Fore-street, Cripplegate,      \
Practical School of Medicine, founded \
  by J. Brookes, Blenheim-street,     \
Medical School, Brown sqr. Edinburgh,   Dr. Fletcher.
Lecturer in Edinburgh,.....
Royal College of Surgeons, Ireland,
Dublin  School of  Anatomy, Surgery >
  and Medicine, Digges-strcet,        ^
Dr. T. Beatty.

Dr. G. C. Watson,
Mr. Hemming and
  Mr. Barnes.
Dr. Sigmond,  Dr.
  Chowne and Mr.
  Maugham.
Dr. Ryan.
S. D.  Broughton,
  medical, and J. W.
  Willcock, legal.
Dr. Venables and Dr.
  Blundell.

Dr. Litchfield.
Dr. Fletcher.
Dr. Howison.
Dr. T. Beatly. 
INTRODUCTION.
XIX
   This brief outline may suffice to give some idea of the ardour
with which medical jurisprudence is investigated in Europe. Un-
doubtedly it  has made the most rapid progress during the last
twenty years, but its benefits to the community and to the profes-
sion are but just developing.*
   In  turning to my native country, I must premise,  that as our
literature has been in a  great degree derived from that of Great
Britain, so the objects of study will frequently be those which are
there the most popular.   Hence, probably, the reason why medi-
cal jurisprudence attracted but little attention  until of late years.
In 1810, the  venerable and distinguished  Dr. Rush delivered an
introductory lecture in  the University  of Pennsylvania, (and
which was published in  1811,) in which he dwelt in  an eloquent
and impressive  manner on the importance of the study.   In the
conclusion, he thus forcibly establishes the utility of  the science.
" To animate you to  apply to the study of all the subjects enu-
merated in the introduction to our lecture, I beg you to recollect
the extent of the services you  will thereby be enabled  to render
to individuals and the public : fraud and violence may be detected
and punished; unmerited infamy  and death  may be prevented;
the widow and the orphan may be saved from ruin; virgin purity
and innocence may be vindicated; conjugal harmony and happi-
ness may be  restored;  unjust and oppressive demands upon the
services of your fellow citizens may be obviated; and the sources

                                  Session 1833-34.   Session 1834-35.
School of Medicine, Anatomy and Sur- i Dr. Thomas  G.
  gery, Park-street, Dublin,     -    (   Geogliegan.
Leeds School of Medicine, -    -   -  Dr. Disney Thorp.   Dr. Disney Thorp.
Manchester School of Medicine  -   -  Mr. Oilier.          Mr. Oilier.
Birmingham School of Medicine,    -  Dr. Birt Davies.     Dr. Birt Davies.
Sheffield  Medical School, -    -   -  Mr. Palfieyman and  The same.
                                   Mr. Thomas.
Bristol Medical School,    -    -   -  Dr. J.  A. Symonds  Dr. Symonds.
                                   and Mr. Herepath.
Newcastle-upon-Tyne,    -    -   -  Dr. George Fife.
Andersonian University, Glasgow,   -  Mr. Watt.          Mr. Watt.
Medical School, Portland-street Glasgow, Dr. Pagan.
Sheffield School of Anatomy and Medicine,   ...    -   Dr. Thompson and
                                                   Mr. Law.
Liverpool Royal Institution,......F. R. Philip, M. B.,
                                                   and Dr. Malins.
Nottingham,.........C. Attenburrow.
  The Lecturers on Medical Jurisprudence in London, during the Sessions of 1831-
32, and 1832-33, are mentioned in the Lancet, N. S. vol. 9, p. 16, and vol. 11, p. 1.
  * A copious list of authors on the science may be found in the notes to Metzger,
p. 285 to  306; in Brendel, p. 61; but above all, in Wiidberg's Bibliotheca Medicinal
Forensis.  Berlin, 1819. 
XX
INTRODUCTION.
of public misery in epidemic  diseases may be removed, by your
testimony in courts of justice."*
   In 1819, Dr. Thomas Cooper, formerly a judge in Pennsylva-
nia, and lately president of the college of South Carolina, repub-
lished in one volume, several English tracts on medical jurispru-
dence, viz: Farr, Dease, Male, together with Haslam on Insanity.
To these he added copious notes, and a digest of the law relative
to Insanity and Nuisance.   This compilation  has  proved a very
useful introduction to the study of the science.  If to these be add-
ed the publication of the different editions of the present work, the
reprints of Ryan and Chitty, the former with notes by Dr. Grif-
fiths, Professor Ducatel's Manual of Toxicology, and the manual
of Dr. Williams, I shall have noticed  the principal  American
publications on the  science.  Several valuable inaugural disser-
tations, with numerous  cases and essays in the medical journals
must, however, be also  mentioned, in order to complete the enu-
meration of what has been done in the United States.
   The individual  who first delivered a course of lectures on
Medical  Jurisprudence in this country, was  the  late James  S.
Stringham, M. D.  of New York.   Having been  a pupil of this
gentleman, and thus derived my first impulse to the study, I may
be indulged in adding a few particulars of his  life.
  Dr. Stringham was a native of the city of New York, and re-
ceived there the elements of a classical education.  He graduated
at Columbia College in  1793.   Having  selected Medicine as his
profession, he became a pupil  of the late Dr. Samuel Bard and
Dr. Hosack, and diligently attended to all the  branches of Medi-
cine then taught in New York.   He subsequently repaired  to
Edinburgh, became a  student in the University, and in  1799
received from it the degree of M. D.
   Shortly after his  return  to his native  country, he was elected
Professor of Chemistry  in Columbia College, and for several years
delivered lectures on that science.  In 1804, he voluntarily added
to these a course  on legal medicine.   The  popularity of this
secured  its repetition during  each succeeding  session  until his
resignation.
   In 1813, he was appointed Professor of Medical Jurisprudence
in the College of Physicians and Surgeons of New York, but his
* Rush's Introductory Lectures, p. 392. 
INTRODUCTION.
XXI
 health shortly thereafter became  impaired, and  he died at the
 island of St Croix (whither he had gone under the hope of im-
 provement,) on the 29th of June, 1817.
   Besides his inaugural dissertation, " de absorbentium systemate"
 Dr. Stringham  was the author of several  essays and papers in
 the medical journals of the day.   He published in the New  York
 Medical Repository an account of the efficacy of Digitalis purpurea
 in allaying excessive action of the sanguiferous  system; a de-
 scription of a remarkable  species of intestinal vermes; an  ac-
 count of the violent effects  of corrosive sublimate, and a case of
 hydrocephalus: in the  Philadelphia Medical Museum, a paper on
 the  diuretic effects of  mercury in  a case of syphilis, and in  the
 Edinburgh Medical and Surgical Journal, a paper on the yellow
 fever of America.
   A syllabus of the Lectures of Professor Stringham is contained
 in the American Medical and Philosophical Register.*  The  sub-
 jects noticed by him  were  as follows:  Age,  propriety of  the
 cassarean  operation, virginity and rape, concealed  pregnancy,
 pretended  pregnancy,  quickening,  abortion, superfoetation, mon-
 strosity, hermaphrodites, impotence and sterility, feigned diseases,
 concealed  diseases, poisons, medico-legal dissection, wounds, in-
 fanticide, death  from hanging and drowning, medical etiquette,
 effects of particular manufactories on health, salubrity of water.
   In 1812-13, Dr. Charles Caldwell (now of the Louisville Medi-
 cal College, Kentucky,) delivered a course of lectures on Medical
 Jurisprudence at Philadelphia.   In  1815,1 was appointed to  this
 duty in the Western Medical College.   Not long after, Dr. Walter
 Channing was appointed Professor of Midwifery and Medical
 Jurisprudence in Harvard University.   Dr. Williams, late Pro-
 fessor in the Berkshire  Medical Institution, and Dr. Hale of Bos-
 ton,  each lectured on the science in the winter  of 1823.   Since
 that  period, all our  medical schools have more or  less made it a
 subject of instruction.
   It  only remains to offer some observations on the arrangement
that  has been adopted in the present work.
   Some writers endeavour to divide the subjects,  according to  the
courts before  which they may arise, and thus  devote separate
chapters to civil and criminal cases. It will, however, be readily
Vol. 4, p. 614. 
XX11
INTRODUCTION.
perceived that this must render the study confused.  Pregnane}",
for example, may be a subject of inquiry on a plea for a delay of
execution, or on the application of an heir for  his property.  In
both instances its signs require examination.   So also with insa-
nity and several other  topics.   It will hence  only lead to repeti-
tion to adopt this division.  Fodere  has  escaped from  the diffi-
culty by  including these  subjects  under  the title of " Medecine
Legale Mixte," applicable both to civil  and  criminal cases, but
this is evidently an evasion.   Dr. Gordon  Smith  arranges his
subjects  into three parts.   1.  Questions  that regard the extinc-
tion of human life.   2. Questions  arising from injuries done to
the person, not leading to the extinction of life; and 3.  Disquali-
fications  for the discharge of social or civil functions.
   I must confess that I have found a difficulty to attend all these
attempts at arrangement, which is probably insurmountable. The
subjects  comprehended under the science are not of a nature  to
admit of a division similar to  that proposed by either of the above
writers.   I have preferred noticing each head of discussion sepa-
rately and independently.   Before a legal tribunal  they must be
thus investigated, and  the nearer we approach  in our  studies  to
this, the  easier will be their application to practice.*
   The general arrangement is thus,  I apprehend, not a  matter of
great moment, but on taking up a distinct topic, the first question
which I  have proposed to myself has been  the following: How
 can the examination of this point come before  a judicial tribunal ?
 Having ascertained and  stated this, I proceed  to notice the phy-
 siological, pathological, or chemical  facts, that are necessary to
 be known in  the supposed case—advert to the difficulties to  be
 encountered in the  investigation—and  offer, if necessary, some
 observations on the conformity of the law to the present state of
   * I subjoin some of the latest divisions proposed, from which the reader can select
 such as appear most comprehensive, as well as discriminating.  Dr. Elliotson's divi-
 sion is into three parts.  1. Those subjects which respect the human body in health.
 2. Those which respect it, when labouring under disease.  3. Those which respect
 it, when deprived of its life, or suffering from violence calculated  to destroy its life.
 Dr. Elliotson supposed this  original, but subsequently found in Valentini a similar
 division into  physiological and pathological, (Introductory Lecture, p. 5.)  Dr.
 Thomson's and Professor Amos' division is as follows:  1. Subjects connected with
 social relationship.  2. Connected with the constitution of society, and under  this
 are arranged, legitimacy, insurance and insanity. 3. Subjects connected with personal
 safety and life.  (London University Calendar, 1832, p.  176.)  Lastly, Dr. George
 Burrows divides the subject into two parts.  1. All questions relating to the death or
 injury of individuals, whether arising from violence, accidents, or any  other sudden
 cause.  2. All questions relating to the social condition of individuals, and which
 may become the subject of legal inquiry. (Introductory Lecture, p. 13.) 
INTRODUCTION.
XX111
medical knowledge.  A collection of detached essays of this de-
scription (for  they evidently are detached in their  subjects and
in their application,) must prove in a great degree useful, both to
the lawyer and the physician, since it enables them, in their re-
spective capacities, to review the information that is immediately
applicable to a particular instance before them.   That my former
imperfect attempt has met in some  degree with  the  approbation
of the learned and wise  in both professions, is  my best reward
for the labour bestowed on it.
  Memorandum. A catalogue of books consulted, will be found at the end of the
second volume. 
 
MEDICAL  JURISPRUDENCE.
                           CHAPTER I.


                         FEIGNED  DISEASES.

 Objects for which diseases arc feigned.  Diseases most readily feigned.  General
   rules for their detection. Various divisions that have been proposed. Diseases
   that have been feigned :  Fevers, diseases of the heart, including alterations of the
   pulse—consumption—hepatitis—rheumatism—lumbago—sciatica—pain in the hip
   and knee—tic  douloureux—hfemoptysis—hrematemesis—bloody' urine—haemor-
   rhoids—menstruation—jaundice—paleness of the skin—cachexia—diarrhoea—dy-
   sentery—involuntary stools—vomiting—apoplexy—vertigo—paralysis—epilepsy—
   convulsions—chorea—catalepsy—syncope—hysteria—somnolency—hydrophobia
   —tetanus—nostalgia—scrofula—scurvy—cutaneous  affections—incontinence of
   urine—gonorrhoea—stricture—excretion of calculi—near-sightedness—ophthalmia
   amaurosis—night-blindness—deafness—deaf and dumb—stuttering and stammer-
   ing—tumours—hydrocephalus—emphysema—dropsy—tympanitis—physconia—
   prolapsus of rectum and  uterus—polypus of the nose—hydatids—Barbadoes leg—
   hydrocele—hernia—contractions and deformity—lameness—distortions—ulcers—
   cancers—petechias—ozcena—fistula in ano—wounds, fictitious and  factitious—
   fractures—maiming.  Of impostors—feigned abstinence.


   Diseases are generally feigned from one of three causes—fear,

 shame, or the hope of gain.  Thus the individual ordered on ser-

 vice, will pretend being afflicted with various maladies, to escape

 the  performance of military duty;  the  mendicant, to  avoid  la-

 bour, and to impose on public  or private  beneficence; and the

 criminal, to prevent the infliction  of punishment.   The spirit of

 revenge, and the hope of receiving exorbitant damages, have also

 induced some to  magnify slight ailments into serious  and alarm-

 ing  illness.

   The extent and finish to which the art of feigning diseases is

 carried, are various, and differ in different countries.  Of his own

 nation, Fodere observed, at the time when the conscription was

 in full force  in France, " that it is  at present brought to such

 perfection as to render it as difficult to detect a feigned disease, as

to cure a real one."*   So also  in England, from the efforts  re-
                     * Fodere, vol. ii. p. 452.

VOL. I.                        3 
26
FEIGNED DISEASES.
quired to carry  on her wars with Napoleon, cases  of feigned
diseases greatly multiplied in her armies and navies. A favourite
object with  many was  to  obtain a discharge from the service,
either with or without a pension.*
  Against such impositions,  the police  of every well-regulated
country should direct its energies.  A severe injury may not only
be inflicted on individuals through them, but the public morals
may be deteriorated. In almost every age, impostors have sprung
up, who affect various maladies, and operate on  the  superstition
or the curiosity of  the  vulgar.  And  even the higher  ranks of
society, from motives  as unworthy, have occasionally, like the
courtiers of Dionysius and Lewis XIV. given a sanction to such
practices.
  It will readily be  observed, that  a  knowledge of this subject
may frequently be necessary both in civil and criminal cases, and
also in the due administration of medical police.  To prevent the
necessity of repetition, I shall consider it at length under the pre-
sent division of our  subject.
  All maladies are not equally capable  of being feigned.   It is
difficult to pretend those, whose diagnostic symptoms are certain
and established, and whose natural course it is to effect a  great
change in the system, and to alter the various secretions and ex-
cretions in a perceptible manner-:  But such, on the contrary, as
are variable and uncertain in their symptoms, and characterized
by little  or  no change in  the external appearance, or where the
correctness of an opinion depends much on  the statement which
the patient may give, are  most liable to be feigned.  Of the  first
class may  be named inflammations, continued  fevers, purulent
expectoration, &c.; and of  the last, insanity, epilepsy, and  pain.
Not unfrequently, however,  various substances are used to  aid in
misleading the examiner;  and thus the entire skill of a medical
man is often called into exercise, to  ascertain the real state of
the patient.

   Zacchias, in his  elaborate  and  learned work, has given five

  * Mr. Lane in his account of the Modern  Egyptians observes, " There is  now (in
1834) seldom to be found in any of the villages, an able bodied youth or  young man,
who has not one or more of his teeth broken out, (that he may not be able to bite a
cartridge)  or a finger cut off, or  an  eye  put out or blinded, to prevent his bein<r
taken for a recruit.  Old women and others make a regular trade of going about
from village to village to  perform these operations upon the boys, and  the  parents
themselves are sometimes the operators."  Vol. i. p. 270. 
                       FEIGNED DISEASES.                     27

general rules for the detection of feigned diseases, which are so
discriminating as to have received the sanction of most succeed-
ing writers.   A detail of these will illustrate their universality of
application, and  the ingenuity of their author.*
   1. The first is, that the physician must, in all suspected cases,
inquire of the relatives and friends of the  suspected  individual,
what are his physical and moral habits.   He  must ascertain the
state of his affairs, and inquire what may possibly be  the motive
for feigning disease—particularly whether he is not in immediate
danger of some punishment, from which this sickness may excuse
him.   It was on  this principle, he observes, that Galen detected
the imposture of his servant, who, when ordered to attend his
master for a long journey, complained of an inflammation of the
knee.   He  inquired into the  habits and character of the slave,
and ascertained  that he  was much attached to a female, whom
this journey would  compel him to leave.   This, combined with
the little alteration that  so painful an  affection as the one named
induced, led him to examine the  part, and  at last ascertain that
the  swelling  was occasioned by the  application  of  the  thapsia
or bastard turbith, and  which being  prevented, the tumour dis-
appeared.
   2. Compare the disease under examination,  with  the causes
capable of producing it; such  as the  age,  temperament, and
mode of life  of the patient.   Thus  artifice might be suspected,
if a person  in high  health, and correct  in his diet, should sud-
denly fall into dropsy or cachexia; and again, if insanity should
suddenly supervene, without  any of  its premonitory  symptoms.
It  is contrary to experience to find such diseases occur without
some previous indications.
   3. The third rule is derived from the aversion of persons feign-
ing disease to take proper remedies.   This indeed will occur in
real sickness; but it rarely happens when severe pain is present.
Anv thing that  promises relief, is generally acceptable in  such
eases:  Those, on the  contrary, who feign, delay  the  use of
   * A writer in the London Medical Gazette  (vol. xvii. p. 989) has shown by a
translation of Galen's Observations "how to detect those who feign disease" that he,
instead of Zacchias, deserves the honour of first proposing these rules, " It is the
 oldest treatise extant, expressly devoted to a medico-legal subject."
   The remarks of Galen relate to feigned hcemoptisis, insanity and pain, and their
symptoms. One observation deserves mention.   " When a feigner is asked about
the pain  he feels, he always  describes it as settled in the part which he says  is
affected." This is not always  the case.  The pain is sometimes fixed and confined
to one part, and sometimes felt extensively over  adjoining and even distant parts. 
28
FEIGNED DISEASES.
means.   Galen (says Mahon*) thus ascertained deceit in another
case.   An  individual complained of a violent colic, on being
summoned to attend an  assembly  of  the  people.  Suspecting
artifice, he prescribed only  a few  fomentations, although this
same person  had not long before been cured  of the same com-
plaint by the  use of philonium. Of this, however, he never spake,
nor indeed seemed the least anxious  for medical aid.
  4. Particular attention  should  be  paid  to the symptoms pre-
sent, and whether they necessarily belong  to  the disease.  An
expert physician may thus cause  a patient to fall into contradic-
tion, and lead him to a statement  which is incompatible with the
nature of the complaint.   To effect  this, it  is necessary to visit
him frequently and unexpectedly.
  5. The last direction is to follow the course of the complaint,
and  attend to the  circumstances which  successively  occur.
Thus the inflammation of the knee above noticed should have
produced fever, and increased in violence, according to the com-
mon course, when no remedies are applied-!
  Before proceeding to  notice separately the various diseases
that may be feigned, it will be proper to  advert to a species  of
simulation mentioned by Zacchias, under the name of simulatio
latens.   By this  he understands  a case in which disease  is ac-
tually present, but where the symptoms are falsely aggravated,
and greater sickness is pretended  than really exists.  This may
be more difficult of detection in some respects;  and it requires,
like the cases above  noticed,  the  skill of the physician, and that
too of one experienced in the history of disease, to guide aright.
Generally speaking,  it will be his duty to steer  a middle  course
between  too great  incredulity and  too great  confidence, and
where the interests of a third person  are not liable to be affected,
to lean towards the patient.   I can, however, imagine that cases
have occurred in which disease has  been magnified in order to
increase  damages, or to revenge insult.  Here  the conduct of the
medical  examiner  must  be cautious, and  he  should carefully
apply the rules already laid down.J
  Several  divisions  of feigned diseases  have  been suggested.
Thus  Marc proposes  to arrange them under the  heads  of imi-
tated  and produced diseases;  {par imitation et par provocation.)

  * Mahon, vol.  i. p. 332.                  t Zacchias, torn. i. p. 289.
  \ " Flagrantior equo.
   "Non debet  dolor esse viri, ncc vulnere major,"  Juvenal, Sat. 13, 
FEIGNED DISEASES.
29
 The authors  of the  article on this  subject in the Cyclopedia of
 Practical Medicine,  say that  they are referable to four groups:
feigned,  or altogether  fictitious;  exaggerated; factitious, being
 wholly  produced by the  patient, or with  his  concurrence; and
 lastly, aggravated, or  real possibly at  first, but intentionally in-
 creased by artificial means.
   It is not necessary to notice them under either of these divi-
 sions at the present time.   I propose to mention the principal dis-
 eases that have been feigned,  somewhat in the usual nosological
 order, although it will hardly be possible to preserve this strictly;
 and shall then state under  each the most approved mode  of de-
 tection.*

   Fever may be induced  by the use of various stimulants, such
 as wine, brandy, cantharides,  &c.   It is  often assumed, when  a
 disease is suddenly necessary to  avoid military requisitions, or
 the performance of work  in prisons.  Fodere states that he has
 observed a feverish state of the  system thus induced by violent
 exercise, and then calling for  the physician, has noticed the  pa-
 tient imitating the cold fit to admiration.  Dr. Cheyne was  sent
 for to a soldier, who was said to be in the chill of an intermittent.
 He found  him  shaking violently; but on  throwing off  the bed-
 clothes, he was seen, not in the cold, but in the sweating  stage,
 produced by his exertions.  Of all cases of feigned fever, it may
 be remarked  that they are ephemeral.   A day  or  two's exami-
 nation generally developes the deceit, as a frequent  repetition of
 the use of  stimulants  is too  hazardous, and  real disease might
 then be the consequence.  In doubtful cases, the remarks of Dr.
 Hennen should be remembered:  " Neither the  quickness  of the
   * The greatest difficulty in noticing this subject, is to select properly from the
 great mass of information that has of late years been afforded on it.  The principal
 English authorities to which I have referred, in addition to systematic works, are,
     Hennen's Military Surgery.
     Dr. Copland Hutchison, Surgeon to the Royal Naval Hospital at Deal, in the
       London Medical and Physical Journal, vol. 51, p. 87; and in his Observations
       on Surgery, p. 141 to  193.
     Medical Report on the Feigned Diseases of Soldiers, in a letter to George Renny,
       M. D. Director General of Military Hospitals in Ireland, by John  Cheyne,
       M. D. Physician General.  Dublin Hospital Reports, vol. 4, p. 123 to 181.
     Marshall's Hints to Young Medical Officers, &c.
     The article,  " Feigned Diseases,"  in the Cyclopedia of Practical Medicine, by
      Drs. Scott, Forbes and Marshall. And
     Sir George BallingaWs Military Surgery.
   Professor Dunglison, in his Medical Dictionary, vol. 1, Art. Feigned Diseases, has
 given a tabular view of them, with the  mode of excitation and detection.
                                3* 
30
FEIGNED DISEASES.
pulse, nor the heat of the skin, are infallibly indicative of the pre-
sence of fever;  and therefore it is that the state of the tongue,
stomach, and stools, and of the senses, should be most particularly
attended to."*  And even these require close examination.  In a
soldier under  Dr. Cheyne, where  great complaint was  made of
pain in the chest, &c. the tongue was of a dry white appearance,
made so by rubbing it with whiting from the wall.  When wash-
ed with tepid water, it was clean  and  moist.  Dr. Hutchison
saw a French prisoner with an  extremely small and rapid pulse ;
his  tongue was covered with a brown  coating, the eighth of an
inch thick, and withal he was vomiting.  The smell alone of the
ejections proved that  he had swallowed  tobacco;  and  on re-
moving the matter from the tongue,  it  was found to be  common
brown soap.  After this, he recovered in  a  few hours.  Chalk,
pipe clay, brick dust, flour, have all been used for  this  purpose.
I may also add, that  those  feigning  intermittents often pretend
that the chill comes on during the night.   This is a very uncom-
mon circumstance in ordinary practice.f

  Diseases of the heart.  The pulse is sometimes found extremely
weak, and occasionally none is  perceived at  the wrist.  Should
deceit be  suspected, the physician may examine whether liga-
tures have not been applied  to interrupt the  pulsation, and  he
should also ascertain whether the arteries beat at the correspond-
ing extremity.   I am indebted to  my late worthy preceptor, Dr.
M'Clelland, of Albany, for a case illustrating  this point.   During
the period of his attendance at the Royal Infirmary in Edinburgh,
a person applied for and obtained admission  on the score of ill
health, who had formerly been  a  patient  there.  The attending
physician examined the pulse at the right wrist, but found none;
he then tried the left, but with  similar  success.  The trick was
carried on for several days; at the end of  which  time, it was
discovered that  the patient  was in sound health,  but  that when-
ever the pulse was to be examined, he  pressed his finger on the
artery under the armpit.J
  *Hennen p 198  "Scrubbing the skin with a  hard brush, gives a flush difficult
to distinguish from the colour caused by fever, and only to be detected  bv wS,
patiently by the bedside until it subsides."—Dunlop         muscled  by waiting
  t Marshall, p. 110.
  t"I have seen a gentleman, who, by the exertion of the muscles of tho nrm   a
thorax, could stop the action of the pulse at the wrist; but in so doimr  LJIH -j
to call into action all the muscles of the arm; so that sliol™ nZ^rlZlt
this, the cheat would easily be  d.scovered by feeling the arm  above the elbow
There was a preparation in the museum  of Mr. Allan Burns, and which I believe 
FEIGNED DISEASES.
31
  Ligatures have sometimes been applied, to produce the appear-
ance of aneurism of the heart or great vessels.   In two cases in
France, they were found tightly bound round the neck, and one
indeed was so fine  that it was almost hid by the folds of the skin.
The countenance was terribly swollen and livid; but on  remov-
ing the ligatures from the  neck, and in  one  instance also from
the top of each arm, this purple  and swollen  state of the face dis-
appeared, and the irregular action of the heart  ceased.*
  Internal remedies have also been  used to produce palpitation
and derangement of the functions of the heart.  The powder of
white hellebore was thus  applied',  at first, by  a man  who had
lived with a veterinary surgeon.  He not only produced the dis-
order in himself, but sold his secret and  his drugs  to others,  so
that many in the same corps (the marine artillery) were affected
with it, and in consequence invalided, before the deception was
discovered.! Dr. Quarrier, who has given us this account, states
that suspicion was at length excited, and the secret was disco-
vered by  the confession of the  individual.  When a sudden and
decisive result was sought for,  as much  as a drachm was given,
and it caused vomiting,  purging,  syncope,' tremors, and great
nervous irritability, which  were followed by great and inordinate
action of the heart and arteries; and this  in its turn  was suc-
ceeded by great debility, or a disposition to  paralysis.  In smaller
doses,  and repeated, it caused  disorder  of the stomach, and vio-
lent and continued palpitations, &c.  It was fortunate, according
to Dr. Quarrier, that this  article  was frequently adulterated, as
the effects in  several  instances were nearly fatal.J  Garlic,  to-
is at present in the possession of my friend Mr. G. S. Pattison of Baltimore, U. S.
where a slip of muscle passed across the  humeral  artery, and impeded its action.
On inquiry being made, it was found that the subject had been a servant girl;  and
though strong and healthy in other respects, she  could never, for any length of
time, pump a well or switch a carpet.
  " In the army hospital, where I have  been accustomed  to  skulkers of all kinds,
whenever I suspected a man of deceiving me as to  his pulse, I felt it at the  tem-
poral or carotid artery, under the pretext of saving him  from the trouble  of taking
his arm from under the bedclothes." Dunlop.
  * Scott. Cyclop. Pract. Med. vol. 2, p.  138.
  t " At the General Hospital at Chatham, this was lately practised to a great ex-
tent.  The mode employed was, to take fifteen grains of hellebore, which produced
great excitement, and  which was maintained by  taking four grains daily.  The
practice was introduced by a man who had been servant to a veterinary surgeon.
One man took an overdose, and died in  consequence." Dunlop.
  t Hutchison, p. 151 to  161.  Dr. Cheyne  expresses his conviction that many
soldiers have the power of quickening their pulse, when they expect a visit.  Thus
he has found the beats as frequent as 120 or 130 in  a minute, and on returning un-
expectedly in a quarter of an hour, they  were reduced to 30  or 40. Seamen some-
times produce this temporary quickness, by knocking their elbows  against a beam. 
32
FEIGNED  DISEASES.
bacco, and other irritating substances introduced into the rectum,
have been known to cause violent palpitations and fever.

   Consumption.   This is sometimes feigned by men desirous of
obtaining a discharge.  They complain of pain in the chest, and
cough; produce emaciation by abstinence and drinking vinegar;
and  mix up the expectoration, it may be of catarrh, with pus ob-
tained from others,  and tinge it with blood from the gums.*  It
requires, however, only a  proper acquaintance with the pheno-
mena of the real disease, and a sufficiently prolonged examination
of the case, to detect it.

   Hepatitis was often pretended by those who had been long in
the East or West Indies;  and they were  often able to enumerate
most of the symptoms correctly.   One recruit, however, was  so
unfortunate as to refer his pain in the liver  to the  left side, and
was  cured by the mistura diabolica  regularly exhibited.f   The
case however requires close examination, as  to the pulse, local
enlargement, secretions and excretions;  and,  above all, mercury
(says Dr. Cheyne)  should  never be  given  in any the slightest
doubtful  case.  The course of salivation is what is most desired
by the malingerer.J

   Pain, under all its forms of rheumatism, lumbago, sciatica,  or
in the hip and knee joints, &c. is one of the most frequently simu-
lated diseases; and  in proportion to the  facility of assuming  it,
must be the  vigilance of those whose  duty it  is to  detect  the
fraud.  The inquiry  should be made in all suspicious cases, where
the  disease  is  seated—what  is probably its  cause—the nature
of the pain—its duration—its symptoms and effects, and  what
remedies have been already used 1
   The seat of pain  is either the external or the internal parts.
Patients  will  not so readily  feign the former, since the deceit
is liable  to be soon detected; and in addition to this, it is gene-
rally of  that  kind which is deemed a slight disease.   Pain in the
external parts  is, moreover, often  accompanied with  heat, red-

  * Marshall, p.  120.
  t Marshall, p.  114.  This consists of Glauber's salts, infusion of tobacco assa-
fcetida, &c. given in small quantities, but so frequently repeated as to keep the taste
in the mouth.
  t Cheyne, p. 173. 
FEIGNED DISEASES.
33
ness, change of colour, or tumour.  Gout is sometimes pretended,
and above all rheumatism, for which the soldier is always ready
to assign sleeping on the ground as a cause.  Both  of these dis-
eases have diagnostic symptoms—redness, &c. in the one;  and
tumefaction, or diminution of size, with retraction or loss of mo-
tion, in the other.  But  it is equally true, that there are  species
of severe pain in which the  physician can find  no external ap-
pearances to found an opinion: and of this description are scor-
butic and venereal pains.  Internal pain is  accompanied with
symptoms which it is impossible  to assume, and their absence
will  of course lead to suspicion.  Thus  pain in the head is at-
tended with loss of sleep, vertigo,  fever, and  sometimes with de-
lirium ; in  the thorax, with cough and difficult  respiration; so
also in the bowels and kidneys. Each has its peculiar symptoms;
which, if the disease be real, are not periodical or occasional in
their attack, but incessant, and  their severity is generally greater
during the night.  Inquiry ought also to be made concerning the
cause  of sickness, and a comparison drawn between it and the
violence of  the  malady.  With respect to the species of pain,
we should examine whether it be sharp, heavy  or darting, and
then  compare this with the  symptoms.   It is,  moreover,  im-
portant to know the duration of the pain complained of;  since it
is very rare that it is prolonged for any length of time, without
exhibiting manifest and unequivocal signs.  If  violent  pain  is
stated to be present, and the  patient  notwithstanding enjoys a
good appetite, and sleeps well,  we have reason to doubt its seve-
rity.   Much may also be learned from the  remedies employed.
Powerful ones are  indicated if the disease be real, and  the pa-
tient will not object to their application.   It may also be  proper
to mix a little opium in the food of the patient;  and if sleep be
thus readily induced, we may form an opinion as to the magni-
tude of the disease.
  Notwithstanding the above directions, instances have occurred
of physicians mistaking real pain for feigned,  and feigned for
real.   " I refused," says Fodere, " for fifteen years, a certificate
of exemption to  a young soldier, who complained of violent pain,
sometimes in one limb, and sometimes in another, and occasion-
ally in the thorax or pericranium, without  any external  sign to
indicate its existence.  He died at last in  the hospital, from the
effects of the malady, which he always insisted was a species of 
34
FEIGNED DISEASES.
rheumatism.   I examined the body after death, viewed all  the
former  seats  of disease, but  discovered nothing  either  in  the
membranes, muscles, nerves, or viscera; and was hence  led to
believe  that life  was  destroyed solely from the repetition and
duration of these pains."*  This case induced  a determination
in our author to be more lenient in future.  Its  success will  be
seen in  the following instances.  An artillerist from the garrison
of Fort de Bouc, was brought to the hospital at Martigues, with
a violent pain in the left leg, and which was attributed to sleep-
ing on  the damp ground.   During  the space of eight months,
a  variety of antimonial preparations,  together with  mercurials
and tonics when indicated, were administered, along with local
remedies, but without  any relief.   The leg, from the  repeated
use of epispastics and cauteries, became thin, and rather shorter
than  the  other; while from  the low  diet ordered, there was a
general paleness and lankness of the  system.  Under these cir-
cumstances, Fodere could not refuse him a certificate as a real
invalid. With the aid of a crutch, he dragged himself to Mar-
seilles,  where he obtained the  promise of a  discharge.  He was
ordered to return to the fort to await its arrival; but  on his way
thither, being too overjoyed, he was  met  by his commander,
walking without his crutch.  On being put in prison, he avowed
the fraud.
   Another  case was  that of a deserter, a Piedmontese, con-
demned to hard labour.  He was  conducted from  prison to the
workshops, marching on two  crutches, as being paralytic in the
lower part of the body ; and  from thence to the hospital, where
 he remained  thirteen months.  He supported during that time,
 with the  greatest fortitude, the  application  of epispastics, moxa,
 and cupping; asked earnestly for the  trial of new remedies, and
 excited the commiseration of  all  who saw him.   At the end
 of the  above period he was dismissed.  In a short time he aban-

   * Fodere, vol. 2, p. 471.  Dr. James Johnson relates of a man who complained of
 inability to move his shoulder joint without much pain, and yet nothing could be
 seen externally for a month or six weeks, during which time he was excused from
 duty. At length the surgeon became suspicious, and finding that he still made the
 same complaint, reported him, and he was flogged as a skulker. Shortly, however,
 a deep-seated abscess was discovered in  the shoulder joint, from which large quan-
 tities of pus were evacuated. Anchylosis of the joint followed. Medico-Chirurgical
 Review, vol. 4, p. 596. Probably the same case is  given in the Cyclopedia of Praotical
 Medicine, vol. 2, p. 250. 
FEIGNED DISEASES.
35
doned the use of his crutches, and  never employed them except
when he expected to be observed.*
  It is evident from these cases, that the difficulty of detection is
often great.  " The imposition is more frequently discovered  by
the inconsistencies and contradictions which a patient  makes in
the history of his  complaint,  than by diagnostic symptoms."!
There is also often a great aversion to  the  proper modes  of
eure.J
   Internal pain, the existence of which it is difficult positively to
deny, may be  discovered to be  feigned  by examination during
sleep.  Thus, a soldier complained of severe pain in the abdomen,
and screamed on the slightest touch to that part.   He was bled,
and afterwards an  anodyne  exhibited.  About midnight he was
visited by the medical  officer, and found sound  asleep.   Pressure
was made on the abdomen, and  afterwards considerable knead-
ing, before he awoke.§
   Lumbago, where the  body has  been bent nearly double, has
been repeatedly  removed in  a moment, by  Baron Percy, holding
the individual  in an interesting conversation, whilst an assistant
approached  insidiously  and  pierced  him  behind with a long
needle.
   Chronic rheumatism, according to Dr. Cheyne, is distinguished
by some disorder  of the digestive organs, impaired appetite, a
degree of pyrexia  in  the evening, yielding during the night  to
perspiration.   There   is also some emaciation, wasting of  the
muscles of the  affected limbs, and puffiness of the joint.  The
feigned, on the contrary, do not lose their  healthy appearance—
have no fever—do not become worse with damp weather,  but
are complaining at all  times—and even  allege that they have
entirely lost the  use of the part  affected, which seldom happens
in real  rheumatism.||

  * Fodere, vol. ii, p. 437, 474.                T Marshall, p. 115.
  t In the case of a deserter, who feigned rheumatism of the legs, and  on whom,
blisters, and moxa produced no effect, a cure was speedily effected by resorting to
the prescription of Cadet De  Vaux, viz. drinking large quantities of warm water. In
a few days he declared himself well. Fallot, p. 37.
  Dr. Coche relates the case of a French soldier who feigned lumbago.  Six moxas
were in succession applied during the ten months that he was in the hospital; and he
only yielded when he saw the physician was about recommencing the use of that
substance.  Annalcs d'Hygiene, vol. iv, p. 44G.  Great caution is however necessary
in these cases, lest we mistake a real disease, psoas abscess for example, for a feigned
one.
  § Marshall, p. 118.
  || Cheyne, p. 170.  A female presented herself, some years since, at Mr. Wardrop's 
36
FEIGNED DISEASES.
    An interesting case of feigned tic  douloureux, or neuralgia, is
 mentioned  by Dr. A. T. Thomson in his Lectures.  It occurred
 in the person of a young girl aged fifteen, who pretended to suf-
 fer great pain just back of the symphysis of the lower jaw.   It
 produced her removal  from school, the object she had  in view.
 On a subsequent attack, Dr. Thomson resolved  to try the effect
 of a strong  mental impression;  and  understanding that  she  en-
 tertained great  antipathy against a dog, informed her that  the
 only remedy remaining was to rub  the affected  part over  the
 back  of the dog.   It produced  an  immediate  removal of  the
 disease, and it continued absent for eighteen months.   This case,
 according to Dr. Thomson, has been published in the  medical
 journals as an  illustration of the  effect of mental impressions on
 the nervous system.   Yet, eight years afterwards,  when  this
 female had become  a wife and mother, she wrote to him, stating
 that the whole course of the disease had been a  deception.*

   It is easy to  feign  hcemoptysis, by  pretending to cough, and
 then spitting out the blood which  comes from pricking the gums;
 or it may be assumed by constantly holding some armenian bole
 or vermilion paint under the tongue, which  tinges the saliva of a
 red colour.   Periodical  attacks of this disease  are most com-
 monly simulated; but it is difficult to  counterfeit the  accompa-
 nying marks of disease—such  as the cough, flushed cheek, and
 even the florid and coagulated state of the blood.   Orfila recom-
 mends that they should be made  to spit without  coughing, when
 the bloody saliva will be seen.

   There  are  other  persons who pretend to  be afflicted with

 Hospital of Surgery in London.  She complained of most excruciating pain at the
 inner part of the right arm, in the situation of the biceps muscle; and this she said
 extended in every direction.  The sensibility of the skin was such, that she could
 not bear to have it touched. The biceps was kept in a state of continual contraction,
 from the arm being constantly bent, and  thus gave the appearance  of a tumour.  She
 spoke to Mr. Wardrop about amputation at the shoulder joint, and professed her
 willingness to undergo any thing in order to be rid of this complaint, under which
 she had laboured for five  years.  It was ascertained that she  had already been in
 four hospitals on a similarstory .There was no fever, and her health and appearance
 were good.—Lancet, vol. 12, p. 603.
  Another illustration is given by Sir Benjamin Brodie, in the case of a young lady
of  distinction who complained of pain in the knee of an hysterical character, but
yet with  such swelling, that it induced  him to suppose that there must be some
structural mischief.  It was, however, found that a ligature had been tied around the
thigh every night, in order to produce the effect.   Medico-Chirurgical  Review, vol.
  * London Medical and Surgical Journal, vol. vii, p. 101. 
FEIGNED DISEASES.
37
hcematemesis, or vomiting of  blood ; and for  this purpose, drink
the blood of some animal, or use some coloured liquid, and then
throw it up in the presence of spectators.  Sauvages, in his No-
sology, mentions of a young lady, who, being  unwilling  to re-
main in a convent, had some blood of  an ox  brought to  her,
which she drank, and then vomited in the presence of her physi-
cian.  As no deceit was suspected, he stated that she was really
ill, and she thus obtained her liberty.*  A similar case is related
of a female, who accused a person  of having  maltreated  her.
She went to bed, and brought up large quantities of blood with-
out any effort.   She  could however sing, cry, and put herself in
a  passion, without the disease recurring;  and it ceased when she
found that the deceit would prove useless.f

   Bloody urine has  been  frequently  feigned, either  by adding
blood to the excretion, or by  using substances that  have  the
quality of reddening it, such as the prickly pear  (Indian fig,)J
the beet root, madder, &c.   The Spaniards, on their  discovery
of America, ate largely of the Indian fig, and were much alarm-
ed at the consequence.  It only  requires cautious examination to
detect deceit.   The individual should be made to urinate in  the
presence of the physician,  and the vessel used  should be care-
fully examined both before and during the process.   The blood
in real cases, when subjected to heat, furnishes a brown coagu-
lum.   The attendant symptoms, also, can  hardly be mistaken.§
High  coloured  urine may be produced by various stimulants,
such as  wine, cantharides,  &c.  The experiment, however, is
often  hazardous,  and foreign substances  are hence  more  fre-
quently used to give it the appearance of disease.||

   * Mahon, vol. 1, p. 361.
   t Metzger, p. 462. Hutchison mentions a case where a man had blood brought
to him from the butcher's, and which he swallowed, (p. 178.) The  slaves in the
West Indies have been known to swallow their own blood. Scott, vol. 2, p. 143.
   % Zacchias, lib. 3, tit. 2, p. 290.
  § Dr. Watson on Hematuria, in the Medico-Chirurgical Review, vol. 21, p. 491.
   || A boy at Bilson, (Staffordshire,) A. D. 1617, accused a woman of having be-
witched him, and succeeded so well in feigning convulsions, etc. that she was tried
and condemned to die.  Dr. Morton, the bishop of the diocess, suspected imposture,
and caused him  to be confined and watched.  He grew apparently worse, and the
urine which he openly  voided was black.  The good  bishop almost despaired of
saving the life of the female, in consequence of this dangerous situation of the boy.
A  vigilant spy, however, detected him in dipping a small piece of cotton in an ink
bottle placed at the side of his bed. This he put inside of the prepuce, in order to
give the urine its colour when he excreted in public.  Memoirs of Literature, vol. 4,
p. 357.
   VOL. I.                       4 
38
FEIGNED DISEASES.
   Hcemorrhoids  have  been  imitated,  like  other hemorrhagic
complaints.  So also has  menstruation, by staining  the clothes
and body with borrowed blood.  Baron Percy says that haemor-
rhoidal tumours  have been very artfully constructed, by means
of small bladders inflated and tinged with blood, and attached to
a substance introduced into the rectum.*

   Jaundice, when  real, is  known  by  the  discoloration of the
adnata, and of the urine.   Clay coloured stools are also another
indication;  yet it is  stated that individuals  in France have imi-
tated these to perfection, by taking  daily a small quantity of mu-
riatic acid.   There are  several substances, as  curcuma or rhu-
barb, which, on being taken  internally, produce a yellowness of
the skin; but in such cases it  is proper to  recollect  that real
jaundice is frequently accompanied with vomiting, pain and sleep-
lessness.  The  most  unequivocal symptom, and  therefore  the
most to  be relied  on, is the colour of the  adnata.  If yellow,
jaundice is present, originating either from disease or some arti-
ficial  cause.  A French conscript, however, always put snuff in
his eyes before  the  surgeon's visit,  to prevent  their  examina-
tion.f

   Paleness of the Skin, on  the  other hand,  has been caused  by
burning sulphur, by the use of digitalis—the abuse of emetics and
purgatives; but  watchfulness,  and  preventing  their  use,  check
the effects.  The general state of the system does not  correspond
with the appearance.J

   Cachexia and great weakness are also often feigned,  by using
substances to make the face appear pale and livid.   In  these  in-
stances, inquire whether there is a loss of appetite, or of strength,
or swelling of  the  legs,   Examine  also the pulse and  the skin,
whether the first be strong, and the latter hot.§

  * Scott, vol. 2, p. 143.
  t Percy quoted by Scott, fee.  " In jaundice, the urine colours linen  dipped in it.
This is observed in no other disease." Quarterly Journal of Foreign Medicine and
Surgery, vol. 4, p. 340.
  t Orfila, Lecons, vol. i. p. 422.
  § A very curious work was published at New Haven  in 1817, under the title of
" The Mysterious Stranger, or Memoirs of Henry More Smith."  It purports to be
written by the Sheriff of King's county, New Brunswick; and I  have repeatedly
understood that there is no doubt of the authenticity of all the material facts. The 
FEIGNED DISEASES.
39
   Diarrhoea and Dysentery.  The former of these has been ex-
cited,  in naval hospitals,  by  a mixture of vinegar and burnt
cork ;  or a solution of sulphate of iron, obtained from the shoe-
makers, to whom  it is furnished for  blackening leather.   Suppo-
sitories  of  soap or other  irritating substances have been intro-
duced into the rectum, to imitate  the mucous  discharges in dy-
sentery ; and  with such persons, of course  it  is not difficult  to
procure  the  addition of blood.   The stools have  been broken
down with their own urine.   It requires watchfulness to detect
these,  and particularly  they should be  obliged  to  use a night
chair.   Many fine young men are said to have lost their lives  in
consequence of the use of the above substances.*

   Involuntary stools. If these be solid, and the sphincter contracts
on the finger, opium and solid food  should be given, and a careful
watch preserved.   Such individuals are  generally subjects for a
court-martial.  On one of these, (who  also pretended  sciatica
and loss of the use of his lower extremities,) in the General Hos-
pital at Lisbon, it was determined to apply  the  actual  cautery.
He was laid on his face,  and  held by  three men.  When the
surgeon applied the red hot spatula  to his hip, he  kicked down
one of the  men who held him, and declared  that  he had been
shamming.^

    Vomiting.   Some persons  possess the power of expelling the
contents of the stomach by pressure on  the abdomen ; others by
swallowing air.   It appears that nature  or habit has given this
to a few individuals.   In many, however, frequent vomiting  is a

hero of the story  was a most accomplished villain. While in the prison at Kingston
{New Brunswick,) he began to spit blood, had a violent cough and fever, and gra-
dually wasted away, so that those  who visited him supposed that his death was ra-
pidly approaching. This continued for a fortnight,  and his weakness was so great
that he had to be lifted up in order to take medicine or nutriment.   A turnkey un-
fortunately, however, left the door of the prison open for a few moments, in order to
warm a brick for his cold extremities:  On his return, Smith had disappeared. After
many adventures and  hair-breadth escapes, he is now a prisoner in the Newgate of
Connecticut.  There also he has  feigned cachexia,  haemoptysis, and epilepsy, but
with no success.  He confessed that he pretended to  raise blood by pounding a brick
into powder, putting it in a small  rag, and chewing  it in his mouth. He contrived
to vary his pulse  by striking his elbows ; and said  he had taken the flesh  off  his
body in ten days, by sucking a copper cent in  his mouth all night, and  swallowing
the saliva.
   * Hutchison, p. 181.  Cheyne, p. 171.
   f Cheyne, p. 147. 
40
FEIGNED  DISEASES.
 symptom of organic disease.  Dr. Hutchison had  a case in the
 Baltic, where it occurred so frequently  as  to  become alarming.
 It was soon observed, however, that the vomiting was periodical,
 occurring when the physician paid his morning or evening visit;
 and in the interval, the patient ate his usual allowance of food,
 without any injurious effect. He was watched, and it was found
 that he  made pressure on  the region  of  the stomach with his
 hands, applied under the bedclothes.   Whenever these were se-
 cured, the vomiting ceased.*
   Dr. Cheyne remarks that the  vomiting  of undigested food is
 suspicious, and particularly advises that the  case should be
 watched, to  avoid mistakes.  The stomach  may be diseased.
 The absence of emaciation, and the continuance of a good appe-
 tite, are,  however, -circumstances indicating a healthy state of
that organ.f   To  vomiting,  some, according  to Orfila, have
 added the complaint of difficult deglutition.

   Apoplexy will only be feigned by those who hope for immediate
escape from some impending punishment.  From  the nature  of
the disease, it cannot be long dissembled.   If it be necessary to
ascertain the  truth at the first moment of the attack, powerful
remedies, such indeed as are indicated in the real disease, should
be employed.  Zacchias observes that feigned apoplectics cannot
resist the action of sternutatories.

   In vertigo  and  headache,  the malingerers  generally  overact.
The giddiness is  too violent,  and  the  state  of the stomach is
not  noticed.   The pulse and  the   eye  should  be particularly
examined: The former is  slow and irregular, and the latter in-
expressive.J

   Paralysis, in many respects, requires  the same  treatment as
rheumatism.   It is frequently feigned  to extend  to  the  superior
or inferior extremities; in other instances,  a single limb only is
stated to be affected by it.   This last is  a rare occurrence; and
  * Hutchison, p. 168.
  T Cheyne, p. 167.  A remarkable case of voluntary vomiting occurred some years
since in this country, in a distinguished public individual. I forbear relatin/ anv
of the particulars, lest I might unwittingly trench on the sacred privacy of domestir
affections and sorrows.  " Non sibi, sed patriae vixit."        v   *  aoraestlc
  t Chevne. o. 150. 
FEIGNED DISEASES.
41
the existence of the disease is to be doubted, if the general health
be otherwise good.
  CEdema of an extremity, in these cases, is sometimes excited
by the continued use of ligatures.   Among  the  remedies  most
efficient, are electricity, and the actual cautery.   Dr. Blatchford
gave a pretended paralytic in the New York State  Prison, and
whose case resisted every description of medicine, a  severe elec-
tric shock.  He  started up, ran  into the hall, and asked for  his
dismission from  the hospital.  Where powerful means  like  these
have failed, finesse or accident  has succeeded in developing  the
fraud.   Dr. Davies, at Chatham,  (England,)  knocked gently, at
the dusk  of the evening, on the window  of one  who could  not
move, and had lain in bed  for a month.   On calling him gently
by name, he was at the window in an instant.*
   Dr. Hutchison gave to one, who said he had a paralysis of the
right  arm,  fifty drops of  laudanum  in his  tea.   When sound
asleep, the doctor went into his apartment, and tickled  his right
ear with a feather, when instantly the lame  hand  was raised. A
repetition of this, caused  more active exertion.   In another in-
stance, the  right hand was said  to be  powerless.   The patient
was brought before a board of medical officers,  for the purpose
of being invalided if found  diseased.   It was winter,  and the sur-
geon  proposed that  the  hand, in its  relaxed and useless  state,
might be placed over the edge  of  the table round which they
were sitting, while assistants should keep the arm and shoulder
firmly fixed.  In this situation, a  red  hot poker was  gradually
brought under the hand.   As  it came nearer and  nearer,  the
hand  gradually rose to the full extent of  the powders of the  ex-
tensor  muscles.  A half-witted  fellow  brought out  another, by
saying that he had seen him use his arms  as well as  any one.f
   A most obstinate case,  however, according to Mr. Marshall,
was that of a private, who for two years  endured  every thing
that medical skill and suspicion could  suggest.   His  complaint
was paralysis of the lower extremities. He was finally sent  home
from  the Mediterranean, to be invalided.  While in the harbour,
an alarm of fire was given on  board ship.  All  hurried to the
boat  alongside,  and on reaching the quay, the passengers were

      * Scott, vol. 2, p. 134,                     t Hutchison, p. 164.
                             4* 
42
FEIGNED DISEASES.
mustered.   It  was found that  the invalid  had  saved  not  only

himself, but his trunk and clothes.*
   In these and similar cases, it is remarkable how parts  of the

body can be  kept for so  long  a  time (two or three years) in a

state of inactivity, with hardly any diminution of muscular power.

Dr.  Cheyne  relates  some  laughable instances  of agility imme-

diately consequent on successful deception.   When the malinge-

rers  were sure- of their  discharge,  they  threw  their crutches

before  them, and disappeared in a moment.f
   In only one case (says Mr. Marshall)  has he  seen palsy of  the

upper  eyelid attempted; and  here  the muscular  resistance to

every effort to raise it, showed the deception.


   It is remarkable that a disease  so much dreaded by the real

sufferer as epilepsy,  should be so often feigned; yet this is really

the  case, and the  cause  probably  is, the  affright and pity that

may be inspired; or else the short exhibition of disease that is

necessary, leaving the patient to act as he pleases during the in-

terval.   In all  suspicious cases, it is proper to notice whether the

sick person is suddenly affected—whether the  face is livid, the

pupil fixed, the lips pale, the mouth distorted and frothy, and the

pulse  altered.J  The  physician  ought also  to observe  whether


   * Marshall, p. 124.  In another long protracted case, where the individual asserted
 that he had lost the power of using  his lower extremities, and  every attempt at de-
 lection had failed, the fraud was discovered by rubbing cowhage (Dolichos pruriens)
 on the soles of the feet at bedtime.  He walked  and groaned  all night, and the next
 morning reported himself fit for duty.  Page 104.
   t  I cannot forbear adding the following American case,  extracted from  a New
 Jersey newspaper.  A dexterous deception was recently practised upon the court of
 sessions at Hackensack.   A fellow who had been a long while in prison awaiting
 trial on an indictment for perjury, a few days prior  to the time appointed, had a
 severe paralytic stroke, which rendered one side entirely powerless.  In this helpless
 condition, he was carried from the prison into court on a bed.  The spectacle of an
 infirm fellow-being, trembling into the grave, on a trial for perjury, had  a visible
 influence upon the sympathies of court and jury.  The evidence, however, was so
 unequivocal, that the jury convicted him.  During the progress of the trial, he be-
 came so faint that a recess was granted, to enable him to be reconveyed to his apart-
 ment in the prison for revival, the  prosecuting attorney kindly lending assistance.
 The court, in view of the prospect of his being speedily  called to a higher tribunal,
 instead of sentencing him to the state prison, simply imposed  a fine of five dollars,
 which his brother, who manifested the most fraternal solicitude, paid, and conveyed
 him away on a bed in  a wagon.   The next day, the prosecuting attorney encoun-
 tered the fellow at the foot of Courtlandt street in  New York, who told him laugh-
 ingly that he had recovered; and then dropping his arm and contracting his leg, in
 true paralytic style, hopped off, leaving the learned counsel  to  his own reflections!
   X Fallot remarks (p. 28) that in the real epileptic,  the pulse is often small and
 hard, and sometimes slow in the midst of the most horrid convulsions, while in the
 dissembler, it necessarily, from his violent efforts, is  always full and quick.  The 
FEIGNED  DISEASES.
43
sleep follows the paroxysm, and also if the patient complains of
dulness of sensation, vertigo, and great weakness.  All or most
of these symptoms accompany real epilepsy.  But the surest sign
of this disease is a loss of feeling, so that sternutatories, and even
the actual cautery, produce no effect during the paroxysm. This
immediately gives us a mode of detecting  artifice.  An artillerist
at Martigues had acquired, from frequent  practice, such skill in
feigning this disease as almost to deceive Fodere, and this indeed
would have been the case had he been also able to resist the ap-
plication of fire. This always recovered him, though he lay appa-
rently without sense, his eyes starting from their orbits, and his
mouth foaming.  He afterwards confessed, that he  never coun-
terfeited a paroxysm without  feeling for several days a  violent
pain in the head.*
   De  Haen was consulted by a mother,  whose  daughter, after
being  cured of deafness, became epileptic.  He directed her to
be brought to the hospital at  Vienna, where he  attended.   The
 fit, which at first did not occur more than once or twice a  day,
 now recurred every hour.   It resembled a real one, as the hands
 were  violently clenched, and the  eyes disordered ; but he  sus-
 pected deception, for the following  reasons:  She did not open
 her eyes during the paroxysm with a  wink, but  in the  natural
 manner ;  her pulse was natural; when the curtains were drawn,
 the pupil of the eye was dilated,  and when opened, it was  con-
 tracted, and this last occurred very violently when a candle was
 presented.  Convinced that the disorder was  pretended,  he or-
 dered her to be taken out  of bed, and directed the attendants to
 keep  her  in an erect posture.  If she fell, they were  to chastise
 her severely.   A cure was thus effected,  and  she confessed that
 both the deafness and epilepsy were feigned,  to avoid going to
 service.  In another case, a female, aged twenty, was  confined
 in prison for a murder, who had on her the marks of three suc-

 heart, however, beats rapidly and violently in real cases, and this is with great diffi-
 CUil Fode'Jf^ol. 2, p, 464.  « A case is related of a country boy who feigned epi-
 lepsy to avoid work   A surgeon was called, who suspected  the deceit, and observed
 toPoneofTe bystanders, that if it was a true fit, as he thought it was  the patient
 would turn round  on his face and bite the grass; this he did, and so  betrayed urn-
 87f  On occasions of this kind, it is proper to examine the mouth for soap, which
  seasily done by  pressing the cheeks against the  grinder teeth   I once  saw a
 pseuSpilcptic in Edinburgh, recovered by the simple expedient of calling a police
 officer."  Dunlop. 
44
FEIGNED DISEASES.
cessive burnings, which she resisted without  confessing the  de-
ceit.   De Haen, and many others, saw  her imitate a  paroxysm
of epilepsy with such  horrible  accuracy, that the feigned was
supposed to be real, until in the  midst of it, being  ordered to rise,
she got up and walked  away.   In such  an instance, our author
recommends  the  remedy used at Paris.  A beggar there often
fell into fits in the street.  A bed of straw, through  compassion,
was prepared, on which he might be laid to  prevent  injury to
himself.   When next attacked,  he was  laid  on it,  and the four
corners set on fire.   He sprang up and fled.*
   Various substances have been successfully applied to detect the
imposition, as snuff blown into the  nostrils, (and Dr.  Hutchison
remarks  that  he had tried this on the real without any effect;)
flannel dipped into hot water,  and applied to the side;  a drop of
alcohol poured into the  eye, and pouring a small stream of water
on the face.  Aloes and  salt insinuated into the mouth, have broken
up a feigned paroxysm.f
   It  is  denied  that the peculiar appearance of the eye is al-
ways  present  in epileptics: It has been  said to  contract.J   At
all events, it is frequently difficult to ascertain its state correct-
ly, and we must attend to  other circumstances.   If the hands of
the  real  epileptic be forced  open, they  remain  expanded; but
the  feigned will immediately close them again.§  The contrac-
tions also of various parts of  the body  always come on simulta-
neously in the real;  nor is there any regular period in the return
of the fits.   Thus Vaidy, a French  surgeon,  detected a case by
stating to the individual that the real disease always came on  in
the  morning.  He  swallowed  the bait,  and  the attack always

   * De Haen's Ratio Medendi, vol. 2,  p. 56, &c.  The following case should not be
omitted: " Maturam virginem procorum penuria torquet, angitque. Forte casu audit
a garrientibus inter sese matronis epilepsiam matrimonio nonnunquam curari. Ergo
earn  artificiose fingere discit, quo cogat parentes se viro  jungere."  (Ibid. p. 55.)
The following is a case in point, with respect to the aura epileptica.  Sauvages was
 called to visit a female, who imitated  the fit to perfection.  He was,  however, sus-
 picious concerning its reality, and therefore inquired whether, on  the access of the
disease, she felt pain extending from her arm to her shoulder,  and from thence to
 the opposite thigh ? She replied that she did, and thus led to her detection.  (Belloc,
 p. 243.) There are also some instructive cases of feigned epilepsy in Blatchford's
 Dissertation, already referred to.
   | In a late work of Mr. Marshall,  which I have not been able to  procure, it is
 stated that a few drops of croton oil were introduced through an opening left by the
 loss  of two teeth, and in a  few minutes the pretended epileptic started on his feet,
 and  ran to the water closet.   Medico-Chirurgical Review, vol. 21, p. 263.
   t Medico-Chirurgical Review, vol. 4, p. 598.
   § Marc.  Orfila's Lec^ns, vol. 1, p.  414. 
FEIGNED DISEASES.
45
occurred  before noon.*   It  is  also  asserted,  that  in  the  real,
warmth and perspiration are  present during the fit;  while in the
feigned, they succeed it.f
   One  fact  should be kept in mind respecting  this disease:  The
real epileptic is desirous of concealing his  situation,  and ataches
to it a kind of false shame; while the feigned talks about the dis-
ease, and takes no precaution to avoid publicity.J

   Convulsions, when  feigned, do not present that stiffness of the
muscles, or that resistance and rapidity of action, which appear
in the real.   The treatment  must be similar to that of epilepsy.
Twenty years ago, says Fodere, I proved, by the aid of fire and
force applied to  the antagonist muscles, that a woman, who had
imposed on a good curate in the Alps, was an  impostor.   She
was  supposed to be possessed—fell down apparently without
sense, and  made frightful  contortions.   She could not,  however,
withstand the above  tests, and rose up, to her great confusion,
and the astonishment of the spectators.^   In feigned cases, the
muscles do not stiffen and contract as in real ones.  Hence con-
tinued action of the antagonist ones will develope the fraud.
   The following is a ludicrous feigned case of a minor form of
convulsive action, confined to a particular part.  A  seaman pre-
tended  to  have  a convulsive motion of the muscles about  the
neck and upper part of the trunk, so as to produce an involuntary
and incessant shrugging of the shoulders.  The surgeon under
pretence of being very  desirous to ascertain how often  the alter-
nate elevation and depression of the scapula occurred in the day,
set some of  his comrades to watch him; one of whom made, a
mark upon a board with a piece of chalk,  for every  shrug of the
impostor.  He held out nearly twenty-four hours, and then  ex-
claiming, " You have done me !" offered to return to duty.||
  * Marshall, p. 178.
  t Dictionnaire des Sciences  Medicates, Art. Epilepsie simulee, (by Marc.)  In a
real and most severe case of epilepsy  occurring in  a criminal at Paris, Vareliaud,
the medical examiner, found the teeth worn at every point  where the  upper had
come in contact with the lower jaw.   The lower incisives, in particular, were worn
extremely at their fronts; and yet the individual was only twenty-two years of age.
The appearance of the teeth is hence  worthy of examination in all doubtful cases.
Annales D'Hygiene, vol. 3, p.  429.
  t Dumas of Montpelier, in his work on the Physiognomy peculiar to some chronic
diseases, mentions, that in constitutional epileptics, the facial angle  is always under
80°, and recedes from that to 70°.  He found this to be the case in many instances,
at the hospital in Toulouse. (London Medical and Physical Journal, vol. 27, p. 38.)
  § Fodere, vol. 2, p.  468.
  || Edinburgh Medical and Surgical Journal, vol. 30, p. 179.  A somewhat similar
case occurred to Dr. Elliotson. Lancet, N. S. vol. 7, p. 273. 
46
FEIGNED DISEASES.
  Chorea is sometimes attempted by our mendicants.  It would
tend to discover the reality of the disease, if we applied the sug-
gestion of Darwin—forcing them to make perpetual and repeated
efforts to move  the limb in the designed direction.  They should
be secretly watched.

  Catalepsy would most probably seem to be a form  of hysteria:
At least, this will best explain most of the cases now  occurring.*
Its peculiar characteristics are, that the patient becomes  sudden-
ly motionless, while the joints remain  flexible, and yet external
objects make no impression.  In so mysterious a disease, if there
be any cause for suspicion, the remedies already indicated should
be  applied.  Dr.  Gooch quotes the following feigned case from
Mr. Abernethy's Hunterian Oration:
  " A patient in  the  hospital feigned  to be afflicted with cata-
lepsy ; in which disorder  it is said a person loses all conscious-
ness and volition, yet remains in the very attitude in which they
were suddenly  seized with this temporary suspension of the in-
tellectual faculties.  Mr. John Hunter began to comment before
the surrounding students on the strangeness of the latter  circum-
stance ; and as  the man stood with his hand a little elevated and
extended, he said, ' You  see, gentlemen, that  the hand is sup-
ported merely in consequence of the muscles persevering in that
action to which volition had excited them prior to the  cataleptic
seizure.  I wonder,' continued he,  ' what additional weight they
would  support;' and so saying, he slipped  the  noose  of a cord
round the wrist, and hung to the other end a small weight, which
produced no alteration in the position of the hand.  Then, after a
short time, with a pair of scissors, he  imperceptibly snipped the
cord.  The weight fell to  the ground, and the hand was suddenly
raised in the air, bv the increased effort which volition had  excit-
* The following references to some cases may assist in forming an opinion :
 Memoirs of Literature, vol. 3, p. 100, 194.  Cases by Deidier.
 Medical Commentaries, vol. 10, p. 242.
 American Medical and Philosophical Register, vol. 1, p. 47. Case by Dr. Stearns.
 Cyclopedia of Practical Medicine, Art. Catalepsy, by Dr. Joy.
 Edinburgh Medical and Surgical Journal, vol. 39, p. 409.
 Medico-Chirurgical Review, vol. 8, p. 201.
 Lancet N. S. vol. 6, p. 277.  A case treated by Dr. Duncan, junior, in the Edin.
   burgh Royal Infirmary.
 Copland's Dictionary of Medicine, Art. Catalepsy.
 Lancet, N. S. vol. 11, p. 532. Vol. 16, p. 129,443.  Vol. 17, p. 23. Cases by Mr G
   Burnett, Mr. Ellis, Dr. Hannay, and Dr. Kelso. 
FEIGNED DISEASES.
47
 ed for the support of the increased weight.   Thus was it mani-
 fested that the man possessed consciousness and volition, and the
 imposture stood revealed."*

    Feigned syncope or hysteria  cannot resist the  action of  sternu-
 tatories.   In the former, it is difficult to dissemble a small, feeble
 and languishing  pulse,  an almost  suppressed  respiration, cold
 sweats,  coldness of the extremities  and paleness of the counte-
 nance.   Cases  are however mentioned, where  individuals have
 possessed the power of suspending, or at least moderating the
 action of the heart; as, on the contrary, some have been able to
 increase  it at will.  Dr. Cleghorn  of Glasgow mentions  in his
 lectures, of a person whom he knew, who could feign death, and
 had so completely the power of moderating the action  of the
 heart, that its pulsation could  not be felt.   This man, however,
 some years after, died suddenly.f

    Somnolency.  There are several cases on record, of the long
 continuance  of this state;  some of which  were  feigned, and
 others, to say the least,  doubtful in  their nature.  Dr. G.  Smith
 makes mention of a soldier named  Drake, who assumed an ap-
 pearance of total  insensibility, and resisted for months every sort
 of treatment—even the  shower  bath and  electricity; but on a
 proposal being  uttered in his hearing, to apply red hot iron, his
 pulse rose, and an amendment shortly took place.J
    The case of Phineas Adams, which lately occurred in England,
 shows to what individuals will submit, in order to escape punish-
 ment.  He was a soldier in the  Somerset militia, aged eighteen
 years, and confined  in  gaol for desertion.   From the  26th of
 April to  the  8th of July 1811, he lay in a state of insensibility,
 resisting  every remedy, such as  thrusting snuff  up the nostrils,

  * Transactions of the London College of Physicians, vol. 6,  p. 272.
  t Paris's Medical  Jurisprudence, vol. 1, p. 360.  See also Male, p. 267; Hennen,
 p. 466.
  i Smith, p. 471.  Edinburgh Annual  Register, vol. 9, part 2, p. 49.  Dr. James
 Johnson says that he detected the imposture of Drake on the day he was  landed
 at Portsmouth, by attempting to introduce a piece of aloes into his mouth : he felt
 the  resistance of the muscles.   Medico-Chirurgical Review, vol. 4, p. 598.
  "So well did this man acquit himself, that after he was removed to the York Hos-
 pital, many of the medical men were then, and still are of opinion, that the disease
 was real.  I attended him at Hillsea, along with Dr. Hennen  and Dr. Knox, now
 of Edinburgh, who had the immediate charge of him; and from every thing I saw,
and  many experiments I made, I have not the slightest doubt that he was an  impos-
tor."  Dunlop. 
48
FEIGNED DISEASES.
 electric  shocks,  powerful medicines, &c.   When  any  of his
 limbs were raised, they fell with the leaden weight of total inani-
 mation.  His eyes were  closed, and  his countenance extremely
 pale; but his respiration continued free, and  his pulse was of a
 healthy tone.   The sustenance he received was eggs diluted with
 wine, and occasionally tea, which he sucked in through his teeth,
 as all attempts to open  his  mouth were  fruitless.   Pins were
 thrust under his finger nails to excite sensation, but in vain.  It
 was  conjectured that the present illness might be owing to a fall;
 and a proposal was consequently made by the surgeon to perform
 the operation of  scalping, in order to ascertain whether there
 was not a depression of the brain.   The operation was described
 by him to the parents at the bedside of their  son, and  it was
 performed; the incisions were  made, the  scalp  drawn up,  and
 the head examined.  During all this time he manifested no audible
 sign of pain or sensibility, except when the instrument with which
 the head was  scraped, was  applied.  He  then,  but  only once,
 uttered a groan.  As no  beneficial  result  appeared, and as  the
 case  seemed  hopeless, a  discharge  was obtained, and he was
 taken to  the house of his father.  The next day he was seen
 sitting at  the door, talking to his parent;  and  the day after, was
 observed  at two miles from home, cutting spars, carrying  reeds
 up a ladder, and assisting his father in thatching a rick.*
   Mr. Dease states a case where  a female  servant, on receiving
 a slight injury from her master, ran to the door—said she had
 been  almost murdered,  and to corroborate it,  fell into a  fit.   She
 was carried to a hospital, and lay for ten or twelve days without
 showing the least sign of sense or recollection.  Mr.  Dease, on
 being called into  consultation, soon detected the imposture, and
 the woman almost immediately disappeared :  But popular indig-
nation had nearly  ruined the individual in property, and consign-
 ed him for a time  to a jail.

   Even hydrophobia  has  been attempted to  be  feigned both in
England and France, but  with little success.f   And I have seen
it stated in an extract from the United  Service Journal,  that a
 beggar  once attempted tetanus at  St. Bartholomew's  Hospital.

  * Edinburgh Annual Register, vol. 4, part 2, p. 159.  A remarkable case, about
 which there  appears to be some doubt, is related by Dr. Hennen, p. 458. The ap-
proach  (not the touch) of a hot iron, caused abundant marks of sensibility
  t Orfila, Lesons, vol. 1, p. 425.   Medico-Chirurgical Review, vol. 9  p  261 
FEIGNED DISEASES.
49
Mr. Abernethy, however, suspected the imposition; and  turning
to one of the surgeons, as if in consultation, remarked what a re-
markable symptom, in the last stage of this  disease, incessant
winking of the eyes was.  The patient immediately began to wink
with both his eyes.

   Nostalgia, or maladie du pays, is a disease common in military
hospitals.  This mental affection, if carried  to excess, soon pro-
duces a physical one, and  a mixed state is produced, in which
all the marks of melancholy  and hypochondriasis are visible,
Young men are more subject to it than persons advanced in life,
villagers more than citizens; and among nations, it is found to
prevail most in the Swiss, the  Savoyards, the inhabitants of the
Pyrenees, the  Flemings, &c.  Besides the above considerations,
and that alteration of countenance which it is impossible  to feign,
it may be added, that " pretenders generally express a great de-
sire to revisit their  native country, whilst those who are really
diseased, are taciturn, express themselves obscurely on the sub-
ject of their malady, dare  not  make an avowal, and are little af-
fected by the consolations which hope or promises offer to them."*
The  healthy colour,  the  strength and regularity of the pulse, and
the aversion to low  diet and setons, also serve to distinguish the
one from the other, f

   It  has been attempted to imitate scrofula, by exciting ulcers in
the neck and lips with  euphorbium  or  other  acrid substances.
Cicatrices from these have been exhibited.  The scrofulous ulcer
cannot, however, be imitated.   Scurvy also was feigned by the
French conscripts;   but they  could not advance farther than a
bleeding state of the gums, induced by potash, &c.J  Various
cutaneous affections, as tinea capitis,  pompholyx, &c.  have been
produced by the application  of nitric acid or blisters.

   * Fodere, vol. 2, p. 463.
   \ Orfila, Lecons, vol. 1, p. 412.
   " The only two cases of nostalgia I ever happened to meet with, do not bear out
 the general remark, that an inhabitant of a hill country, or a village, exclusively, is
 liable to this disease.  The first was a recruit, a country lad, from the fens of Lin-
 colnshire, who died under my charge,  on his passage to Canada in 1813; and the
 other, a London  pickpocket, whom I saw this year (1824) in the hulks at Sheer-
 ness." Dunlop.
   X Orfila, Lecons, vol. 1, p. 426.
      VOL. I.                   5 
50
FEIGNED DISEASES.
  Incontinence of urine.  Two deserters were brought to the hos-
pital at Martigues, on account of this disease.   Fodere was the
attending physician, and applied epispastics to the penneeum—a
remedy which he in previous cases had found useful—but without
success.   They were discharged ;  but it was shortly discovered
that they had feigned the disease.  The consequence was an epi-
demic incontinence of urine  among their  companions that re-
mained.   This awakened the suspicion of our author; and above
all surprised that his remedy produced no effect in any case, he
ordered that the penis of every patient should be tied, and on the
knot a seal placed, which none but the gendarme who guarded
them should have power to break, at such times  as they wished
to urinate.  He  charged the  guard to visit them  from time to
time, to observe whether the penis was inflated, and also whether
the urine was not discharged guttatim.  He did this from having
observed, that  in real  incontinence of urine, the penis becomes
enlarged, so as to render it necessary to remove the ligature in a
very  short  time.   The  expedient succeeded;  it  was removed
only at the  ordinary period, and in twenty-four hours  the epide-
mic vanished.*
   Dr. Hennen observes.that  this  disease  is almost always de-
tected by giving a full dose of opium at night, without  the know-
ledge of the individual, and introducing the  catheter during sleep;
or by taking him by surprise during the day, and introducing the
same instrument, when it will be  found  that  the urine has not
drained off guttatim as it was secreted, but that the bladder pos-
sesses the power of retention.-)-   Dr. Comyns  cured its epidemic
appearance in an Irish regiment, by prescribing a cold  bath every
morning and evening in Lough Neagh.J  In ordinary practice,
it is a very rare disease.  The prepuce and glans penis are found
to be pale from its continuance, and the clothes exhale an ammo-
niacal odour.

   * Fodere, vol. 2, p. 481.
   t Hennen's  Principles of Military Surgery, p. 455.  In a very interesting inau-
 gural dissertation on feigned diseases, published by Dr. Blatchford  in 1817,  it  is
 stated that suppression of urine was a frequent disease among the female convicts  at
 the New York State Prison.  The author, who was the resident physician there for
 some time, relates two cases, in which the frequent use of the  catheter obviated all
 the evil effects that a voluntary suppression might have produced, and also indicated
 when the complaints of pain and distress were groundless.  (Pages 71 and 74.) By
 a reference to old registers, he found that  this was a common complaint  immedi-
 ately after the initiation of every "Resident Physician."
   | Cheyne, p. 150. 
FEIGNED DISEASES.
51
   Gonorrhcea  has been imitated  by soldiers, with  caustics ap-
plied to the prepuce.*  Stricture  also would seem to be a com-
plaint with naval officers  who wrish to leave their ship.   Dr.
Hutchison detected  several, by engaging them in conversation,
while he  succeeded  in introducing the bougie.

   Chemistry supplies us with  the means of ascertaining deceit
when the excretion  of calculi is feigned.   It teaches the charac-
ters  wrhich designate  their animal  origin.-f   A  physician  was
consulted by the friends of a  young lady of high respectability,
concerning a very painful  disease  to which she  was subjected.
She  was said to be frequently ill, and during the  attack to  void,
with agonizing pain, concretions in her  urine.  A  certain  num-
ber of these being discharged, she felt relief.   A  parcel of  these
urinary concretions  was handed  to  a physician, who  instituted
experiments on them, and found, what indeed was obvious on in-
spection, that  they were  nothing but common sand and pebble
stones.   Of these, it was asserted, she had excreted not less than
several pint measures in the course of two or three  years.   No
 motives  were assigned for this lady's extraordinary conduct %
    Mr. James Wilson mentions  a case where pieces of slate had
been introduced into the urethra of a  boy, and a request was
 then made to perform the operation of  lithotomy.   The object,
 he imagines,  was  to  excite  commiseration, and thus  obtain
 money,  or possibly to extort it from the surgeon, had he seriously
 attempted any operation.§
    Dr.  Elliotson speaks of a woman, who showed sundry concre-

   * Dr. De Brus.  American Journal of Medical Sciences, vol. 1, p. 378.
   t " Dr. Thomson of Edinburgh, while a young man, as  a chemical experiment,
 examined some of  the sand which a woman alleged she had passed from her blad-
 der, and found micaceous particles in it, which put an end to the imposture. A poor
 woman in the Glasgow Infirmary, who was less of a geologist than her compeer,
 used pounded coals for a similar purpose."—Dunlop.
    t Edinburgh Medical and Surgical Journal, vol. 7, p. 488.
    § Wilson's Lectures on the Urinary and Genital Organs, p. 183. There are many
 similar cases: One by Dr. Livingstone of Aberdeen, where stones were found stick-
 ing in the vagina.  Medical Commentaries, vol. 4, p. 452.—By Dr. Thomas Thom-
 son, where he detected micaceous particles in the alleged gravel.   Annals of Philo-
 sophy, vol 4. p. 76.—By Sir Astley Cooper, of Mr. Cline, who  was about operating
 on a female, but discovered that the body had not the hardness of stone, and finally
 drew from the vagina several pieces of coal. Lectures, vol.  2, p. 129.—By Dr Elliot-
 son, Lancet, N. S. vol. 10, p. 135.—Pebbles have for a time been passed off as gallstones.
 Medico-Chirurgical Review, vol. 22, p. 231. By Dr. F. H. Ramsbotham, of a female
 pretending to discharge pieces of common chalk by the urethra.  London Medical
 Gazette 16. 615. 
52
FEIGNED DISEASES.
 tions which she stated had been passed with the urine, and gave
 her great pain.  They were found to be solely carbonate of lime,
 (a rare constituent of urinary calculi;) and  on being shown  to
 Dr. Wollaston, he ascertained, by a  lens, that  they were the
 backbones of sprats.*   Soldiers have frequently taken scrapings
 from the wall, or a stone, and mixed it with their urine.

   " It  is curious to observe," says Fodere, " how many young
 men have, during the last twenty years, worn  convex glasses,  in
 order to acquire myopia or near-sightedness;  which, however, is
 not the  certain  consequence, but more commonly this practice
 leaves  a weakened and defective  sight,  differing from it,  and
 also from that which is  the effect of old age.  It is not from an
 inspection  of the eye, nor from the account  of the  individual,
 that we can judge concerning the reality of the complaint; but it
 may be ascertained by  presenting  an  open book, and  applying
 the leaf close to the nose, or by putting  on  glasses  proper for
 near-sighted  persons.  If  the individual  cannot  read the book
 distinctly when placed thus, or when the above glasses are used,
 we may feel  confident that his disease is feigned."f  This  mode
 of examination  should be strictly adhered to ;  since, as far as my
 observation has extended, no complaint  is more frequently urged
 by those who wish to avoid military duty, than near-sightedness.

   Ophthalmia has often  been artificially excited  by the applica-
 tion of various stimulant remedies.  It is, however, detected by
 the rapidity of its progress.  It arrives  at its acme within a few
 hours after the  application of the acrid substance.  Some infor-
 mation  may also be derived  from noticing which eye  is affected.
 A few years since, when an extensive system of deception pre-
 vailed in the British 28th regiment of foot,  Dr. Vetch observed
 that the counterfeit inflammation was almost solely confined to

  * London Medical Gazette, vol. 7, p. 239.  Siliceous matter, in very minute quan-
tities, appears to have been found in gravel by Dr. Venables. Journal of the Royal
Institution, vol. 2, p. 256.—The most remarkable  case, however, is that given in a
recent number of the Edinburgh Medical and Surgical Journal, (vol. 41, p. 127) by
Dr. Hill of Greenock. Several minute calculi were passed, which Dr. Wm. Gregory
ascertained by chemical experiment to consist of silica solely.          '
  t Fodert. vol. 2 p. 480.  « There was a young French Surgeon in Edinburgh in
the year 1819, who was naturally short-sighted, but not sufficiently so to excuse him
fn»m military duty.  He avoided the conscription, however, by  habituatine himself
to read with a book close to his eyes," Dunlop.           '   »«uu«iung mmseii 
FEIGNED DISEASES.
53
the right eye.*   A left-handed man would probably inflict the
injury on the left eye.f
   No disease  has been more extensively feigned than  this, both
in the English and French armies.   Twelve per cent of the in-
efficient conscripts belonging  to the department  of the Seine,
were rejected from this  cause ;J and  several hundred men, in
various British regiments, have been afflicted at one time.§  The
articles principally used have been salt, sulphate of copper, cor-
rosive sublimate,  cantharides,  alum, tobacco juice, lime,  and
nitric acid.||   Sometimes  the progress of the epidemic was stop-
ped by removing numbers,  in a state of nudity, to a new  ward.
They  could not carry these articles with  them.   But the most
efficient remedy appears  to have been the alteration of the pen-
sion regulations.  They ordained that no soldier should be dis-
charged for the loss of one eye only.  Dr. Hutchison  found it
necessary, in some instances, to put on the  strait waistcoat, and
thus prevent the hands from doing  injury.

   That species  of blindness which originates from amaurosis, is
strongly characterized by the dilated and fixed pupil.  There are,
however, cases in  which  the pupil retains  some contractile
power, although we know  the  sight to be lost.   In such an in-
stance, epispastics and setons are proper;  and if suspicion exists,
the patient should be watched, to see whether he does not avoid
 obstacles put in his way.   If this be carefully pursued, the deceit
 is  often  detected.  The  following case, however, occurred to
 Mahon:  A young conscript was  sent to the corps blockading
 Luxemburg.  Having passed the night at the advanced posts, he,
 on the next morning, declared himself blind, and was sent to the
 hospital.  The  surgeons  used  the  most powerful  remedies, and
 were convinced that the  disease was feigned,  as the pupil con-
 tracted perfectly.  He assured them, however, that he could not
 see ; thanked them for their care of him, and asked for the appli-
 cation of new  remedies.   He was  sent to the superior medical
 officers at  Thionville.  They  also were convinced that it was a
' fraud; but having learnt the course that had been pursued, they

   * Edinburgh Medical and Surgical Journal, vol. 4, p. 158.
   t Hennen, p. 465.
   t Edlnburg^Medical and Surgical Journal, vol. 38, p. 139.  Scott, Cheyne, etc.
   J) Cheyne, p. 130.
                              u 
54
FEIGNED DISEASES.
determined on  a last trial.  He was put on the bank of a river,
and  ordered to  walk  forward.   He did  so, and  fell into  the
water: from which, however, he was immediately taken by two
boatmen  stationed for that purpose.  Convinced of his blindness,
but unable to explain the dilatation and contraction of the pupil,
the surgeon gave him a discharge, but warned him, at the same
time, that if his  disease was feigned, it would prove of no avail,
as it would sooner or later be ascertained that he was not blind.
They offered him another, if  he would  confess the fraud.  He
hesitated at first; but being at length  assured that they would
keep their word, he took up a book and  read.*   " The proof in
this case," says Fodere,  " would have been complete, if, instead
of a river, he had been put on the  edge of a precipice, where he
might see that nothing could prevent his destruction—but what if
he had been really blind ?"
  A dilated pupil and inactive iris, the  common  characteristics
of amaurosis, have been produced  by the application of the  ex-
tract of belladonna or hyoscyamus to the skin around  the eye;
and above two hundred conscripts in France  succeeded, by  this
means, in being declared amaurotic.  Dr. Marshall has also seen
these effects  temporarily produced by  infusing  the leaf of the
Datura metel into a man's food.  The eye is, however, more or
less red from local applications, and we should  also remember
that their effects are  temporary.-}- But in  real amaurosis, the dila-
tation seldom totally  disappears.;};

   Nyctalopia (night-blindness) was much feigned  by the soldiers
in the expedition to Egypt under Sir Ralph Abercrombie. It was
difficult to detect it, as the disease in that  country  is epidemic.
All inconvenience was, however, obviated by joining a blind man
with a seeing  one  in the works;  and  when the sentries were
doubled,  a similar arrangement was made—hearing being often
more important on an outpost than seeing.^

   Pretended deafness may be detected by  making  a noise at  a
moment least expected.  This excites a sensation which it is dif-
  * Mahon, vol. 1, p. 360.
  t Marshall, p. 112. The effects of henbane do  not last, according to Orfila,
beyond twenty-four hours; and those of belladonna, beyond six.
  X Devergie, vol. 2. p. 914.
  § Cheyne, p. 146. 
FEIGNED DISEASES.
55
 ficult to conceal. Acute persons will also always find some mode
 of ascertaining the truth.   A deserter, condemned to labour on
 the  canal at Aries, said he was deaf, and passed for such with
 his comrades and guards.   Being brought before the inspector to
 be examined, he appeared such as he  stated, until Fodere spoke
 to him in a low tone of voice, saying, " You cannot persuade me
 that you are  deaf;  but if you will confess the truth, you shall
 have your discharge."  To  the astonishment of all, he answered,
 " Very well; I  am not deaf."*  Again, a conscript stated that he
 was deaf.   The general who visited for the purpose of examina-
 tion, let fall a piece of silver behind him. The deaf person turned
 his  head round towards the place from which  the noise pro-
 ceeded, and by  this means was detected.f
   " Who would believe," says Baron  Percy, " that  by exercise,
 some young men have  so  successfully affected deafness,  that a
 fire  of musquetry exploding suddenly at their side could not draw
 from them the least mark of fear or  surprise 1"  " I knew one,
 however,"  he adds, " who  betrayed  himself at last before  his
 judges, at the sound of a small piece of money designedly dropped
 on his foot, while  it was whispered in  his hearing, that Jie was
 surely going to  be discharged.''^
   Deafness cannot long be present, without producing a peculiar
 cast of countenance.  It  also, in real cases, comes on  vastly
 slower than with the simulated.^
   Some of the French  conscripts excited diseases of the ear, and
 particularly foetid discharges, by introducing blistering plasters,
 peas and other substances into it.

   Those who pretend to be deaf and dumb, have a still more ar-
 duous  part to play, and need an art and perseverance of which
 few  are capable. Such who  are really in that unhappy situation,
 acquire a physiognomy and certain gestures which it is  difficult
 to assume, and which it is impossible to prepare for  every exa-
 mination that may be made.   In reviewing the histories of those
pretending deafness  and dumbness,  it has  been found,  says

  * Fodere, vol. 2, p. 475.
  t Belloc, p. 252.
  X New York Medical Repository, vol. 17, p. 359.
 § " In the York Hospital, we had  a soldier who feigned deafness so  well, that
firing a pistol at his ear produced no effect.  We tried the experiment after he had
been put to sleep by opium, and he started out of bed." Dunlop. 
56
FEIGNED DISEASES.
 Fodere, that women have been the most successful; and the sex
 fondest of talking, are the most capable of feigning dumbness.
   The Abbe De L'Epee was deceived by a pretended  deaf and
 dumb person, who  feigned to be the son of Count De Solar.
 Sicard, however, his successor, was more  fortunate in  detecting
 the villany of another, whose ingenuity resisted,  for four years,
 an infinite number of investigations made on him in France,  Ger-
 many, Switzerland, Spain  and Italy.  This young  man  was
 named Victor Foy,  and was from Luzarche, six  leagues  from
 Paris; but  called himself Victor Travanait—travelling, as he
 said, in search of his father, but in reality to avoid military duty.
   He was imprisoned in various countries, watched closely, and
 examined niost  rigidly, without being detected.  So  perfectly
 indeed had he accustomed himself to his part, that  when he
 avowed the fraud, to use  his own expression, he  had unlearnt
how to hear.  In Switzerland, he was tempted by  a young and
beautiful woman, who offered him her hand,  but without effect.
In the prison at Rochelle, the turnkey was ordered to sleep  with
him, to watch,  and never  to quit  him.   He was repeatedly
awakened in a violent manner, but his fright was expressed  by a
plaintive  noise, and in his dreams  guttural sounds alone were
heard; and the hundred prisoners, who were  all  ordered to de-
tect  him  if possible, could  discover nothing from which  they
could imagine deceit.  At last the officer charged with the police
of the prison of Rochelle, became satisfied, after many examina-
tions, that he was really deaf and dumb, and declared this in the
public journals, so as to obtain his liberty.   Victor  unhappily, at
this  period, went beyond his capacity.   He stated himself in
writing to be an eleve of the Abbe Sicard.  This ingenious and
worthy individual denied the fact without seeing him, and proved
it from the  writing.   " I cannot tell," said he in  a letter to the
counsellor of state, Real, " whether this person, confined at  Ro-
chelle, be really  Victor  Travanait,  or not; but I  can  say posi-
tively that he was not born deaf and  dumb."  The reason which
he assigned for this opinion,  was,  that  he wrote from sound,
while the deaf and dumb write only as they see.   In his letters
he appeared so ignorant  as to divide some  words, and annex
prepositions to others as  if they were constituent  parts.   The
following extract will serve  as  a specimen: " Je jur de  van-
dieux; ma  mer et ne en  Nautriche; quhonduit  (pour  conduit;) 
FEIGNED DISEASES.
57
essepoise (pour espoir;)  torre (pour  tort;)  ru S. Honor et; jai  tas
present (pour fetais present;) jean porte en core les marque (pour
fen porte encore les marques")  It will be observed,  that in this
letter, Victor uses q instead of c;  and from this  Sicard inferred
that he had heard, and knew that the sound of these gutturals
was similar. He concluded by  stating his conviction that Victor
was not born deaf, and of course was not dumb.
   The criminal was now brought to the institution for the deaf
and dumb  at Paris,  and placed  before the black board.  He was
ordered to write answers to questions put to  him  by Sicard,
which he did in so able a manner, and eluded the most  embar-
rassing questions so ingeniously, that nothing but his orthography
could yet be adduced against him.  Sicard had taught his pupils
to  articulate sounds, and he had done this by showing them  the
words, as  it were, by the apparent effects of touches on a musical
instrument, and then pressing their  arms more or less strongly.
During  this operation, he  obtains at pleasure  the hard or soft
consonant, which serves as a sign for  the  required  articulation.
Victor, when put to this proof,  instead of  the syllable pa, pro-
nounced only the vowel a, and never uttered the labial consonant,
which all the deaf and dumb easily  articulate.   He was then  put
to  the last test.  When asked  how he had been  instructed, he
answered by signs,  and promised  to explain by them such words
as  they might write on the black board, but could  not do so.  He
was then placed among those who were  really deaf and dumb,
but understood nothing from  them,  nor could they comprehend
him.   Frightened at this detection, and still more so at the threat
he  had heard, that he would be confronted with the pastry cook,
to  whom he had been an apprentice, he at last took up  a  book
and read.*
   It  is  an observation of the author from whom I have taken
this case, that  it was Victor's  folly alone which  detected him.
Had he not asserted that  he was  a pupil of Sicard, he might
have  escaped.   But  he was ignorant that all were educated
alike, and  of course should express  their ideas in a similar man-
ner.f
   If  the tongue retains its  muscular  power and  is otherwise

  * Fodere\ vol. 2. p. 478-9.  When Mr.Clerc, the distinguished teacher of the  deaf
and dumb at Hartford, visited Albany, he informed me that ho was one of the pupils
who assisted in detecting Victor.
  t A case of pretended deafness and dumbness in this  country, by a person named 
58                     FEIGNED DISEASES.

healthy, and deafness is not present, the person pretending to be
dumb is doubtless an impostor.   Orfila recommends  that such
should  be  made to sneeze  and the sonorousness of the  sound
noticed.

  Stuttering and stammering, if the organs of speech were sound,
were treated by  the French  surgeons on the  starvation plan,
until the subjects of it called for their food without any hesitation
in articulating.*
  Fallot advises that they  be made to repeat any thing which
they know by heart, as their prayers for example, or that they be
requested to sing.   The real  sufferer will go  through this with-
out stammering; the person feigning stutters on with many gri-
maces and distortions of the countenance.f

  The  number  and  variety of feigned diseases connected with
tumours and enlargements, are  really remarkable.   The following
can hardly be characterized, but it shows how much we ought to
distrust  that  affectation of  modesty  which will not permit a
complete investigation.   A  young female  at Strasburg, from
the enlargement of her abdomen,  had led the public to doubt the
purity of her character.  The distension continued so long as to
dissipate the  suspicion; and for thirty-nine years she continued
to  increase in bulk,  and excited the commiseration and charity
of all who saw her, in such a manner as to lead a highly com-
fortable life.  Her case  excited  the  attention of the physicians
and surgeons; and  they waited with'some impatience, until her
death  should develope the  nature of this  extraordinary disease.
No tumour was found; but in her wardrobe was a sack or cushion
weighing nineteen pounds, and so  made as to fit the shape  of the
abdomen.   This female  would never  allow  a medical  man to
examine the seat of her pretended disease.J

James Stilwell, was  detected by Mr. Gere in 1822.  The imposture in this instance
was, however, more clumsy than in the one in the text. (See the National Gazette,
September 14,1822.)  Other cases of  pretended deafness and dumbness are related
by Marshall, p. 156; and Cheyne, p. 143.
  "Fodere says, that a good way to detect  pretended deafness and dumbness, is to
say something deeply interesting to the patient in  his presence, and mark the effect
it produces on his countenance. Whether the Great Unknown has studied Fodere
or not, it is impossible to determine, but he illustrates this admirably in Peveril of
the  Peak, where Fenella betrays herself on hearing that  Julian is assassinated."
Dunlop.
  * Marshall, p. 130.                  t Fallot, p. 76.
  j: Mahon, vol. 1, p. 362, from the Acta Natures Curiosorum. 
FEIGNED DISEASES.
59
  Sauvages, in his Nosology, makes mention of  a mendicant
who gave to his child all the appearances of hydrocephalus, by
opening the integuments of the head near the vertex, and then intro-
ducing air between them and the muscles.  This infamous fraud
was discovered by removing the patch which covered  the hole,
and prevented the air from passing out.  A mountebank at Brest
produced similar inflations, together with the appearance of the
most hideous deformity, in a child, by means of the introduction
of air, and the application  of ligatures  on various  parts of the
body;* and not long since, a female in France by the same mode,
caused an emphysema of the abdominal  parietes, so as to resem-
ble dropsy .-J-  Tumours of this nature are readily produced, since
the cellular texture is spread over the whole  surface of the body,
and the  air may  be introduced through the  smallest  possible
aperture.   We must, however, recollect that  dropsy,  hydroce-
phalus and emphysema are marked  by stronger and more con-
clusive symptoms than the mere existence of tumour. A French
conscript  is said  by Beaupre to have excited ascites, by injecting
water into the cavity of the abdomen.J   Anasarca of the lower
extremities has been pretended by means of ligatures.
   In  1811, thirty or forty soldiers were admitted  into the hos-
pital at Dublin, for, as was stated, dropsy and intermittent fever.
The abdomen was greatly distended and tympanitic, and  they
complained of great  thirst; but  the tongue  was  clean, pulse
regular, and urine natural.   They were soon cured by the mix-
tura diabolica.^   Tympanites of the  stomach and enormous dis-
tension of the abdomen, may also be induced by swallowing air.
A French conscript had the  power of thus  inducing it, and Dr.
Thomson in his  lectures relates the following instance.   "A
young boy about ten years  of age was apparently attacked with
tympanites, which recurred at intervals of nearly two years.
He had  been seen by several  physicians and been treated in
various ways, without any beneficial result.   At the period which
I have mentioned, I was called to see him and attended him for a
month, without being able to form  any idea  of the  nature of the
attack.  When, one day, sitting in conversation with his mother,
the boy being opposite to me, I perceived him making efforts of

  * Fodere, vol. 2, p. 485, quoted from the Bulletin  of the Society of Emulation.
  f Fodere, ibid,         X Marshall, p. 153.        § Cheyne, p. 169. 
60
FEIGNED DISEASES.
deglutition and in a short time,  the  abdomen became distended
and tympanitic.  These circumstances led me to suspect a fraud,
and I accordingly watched him again on two separate occasions
and I became convinced that he filled  his stomach and bowels
with common air, by swallowing it  in  mouthfuls.  I communi-
cated the fact to his father, who soon cured the disease, by giving
the young impostor a severe flogging.  The  boy afterwards ex-
plained  to me the mode in which he effected his object, and he
acknowledged that he suffered  great pain from  the distension
which followed."*

  Physconia  was  also at one time  very prevalent as a feigned
disease  in India, and supposed to have been caused by swallow-
ing toddy, with large quantities of rice water. Smart purgatives
would often remove the disease in the afternoon, but in the morn-
ing it frequently returned. Some would  appear to have the power
of simulating it, by elevating the spine at the loins, when placed
on the back for examination.!

  A prolapsed rectum  and uterus have each been imitated by
means of  a portion of  animal intestine, in which a sponge filled
with a mixture of blood and milk was placed.  It was fixed into
the vagina or rectum, in such a manner that one of its extremities
was left hanging out.J   Polypus of the  nose  was  simulated, ac-
cording to Percy, by introducing the testes of cocks, and hares'
kidneys, into the nostrils :§ Hydatids of the uterus, by  means of
vesicles prepared from the intestines of a pig, and constructed so
as to resemble  a string of beads :||  A malignant tumour of the
same organ, by introducing a sponge.TI

   Even the Barbadoes leg has been imitated by the long continued
use of ligatures. In a man sent home from India for a discharge,
the thigh  measured in circumference 22| inches, the calf of the
leg 17^, and the ancle 15 inches.  In six days after the removal
of the ligature, the thigh had decreased  to 20 inches, and the
other parts in proportion.**

  * Lancet, N. S. vol. 19. 804.          f  Marshall, p. 151, 152.
  \ Mahon, vol 1, p. 357.             §  Scott, p. 151.
  || Ibid. p. 142.  Detected by Professor John  Thomson in Edinburgh
  IT Medico Chirurgical Review, vol. 21, p.  153. Detected by  Mr. Lawrence in
London.
  ** Scott, p. 154. 
FEIGNED DISEASES.
61
    Hydrocele. This disease is imitated by introducing air through
 a  small  incision,  or it  has been  actually  excited by injecting
 fluids.   Some surgeons in the  French  army were convicted of
 doing this  and severely punished.   In the first case,  the  fraud
 may be detected by the lightness of the tumour, its sonorousness
 and the crepitation on pressure, but an accurate discrimination
 is more difficult in the case of injected fluid.  It will however be
 more generally diffused than in the real disease,  and if the  pa-
 tient be  secluded and attentively  watched, early absorption is
 found to occur.*   The appearance of hernia has been produced
 in the same way, or its sac imitated with  the bladder of an  ox.
 A receipt for producing hernia by inflation, seems to  have been
 current in  the British army.f
   Some  men have, however, the power of retaining the testes in
 the groin, by the voluntary action of the cremaster muscles; and
 the swellings thus resulting, have been mistaken for hernia.   An
 individual  of this  description  was  detected by Mr. Hutchison.
 He, to  use  his own language, soon proved  an alibi of the testicles
 from their proper domicile in the scrotum, and caught them peep-
 ing through the pope's eyes.   The  scrotum was an empty bag.
 The man, on being detected, acted like a philosopher,  and  " see-
 ing no longer any chance of eluding the king's service, displayed
 several remarkable feats of the power he  possessed  over these
 organs.   He pulled both testes from the bottom of the scrotum
 up to the external abdominal rings, with considerable force, and
 again dropped them into their proper places with incredible faci-
 lity.  He then  pulled  up  one testis,  and  after some pause the
 other followed, as the word of command was given; he then  let
 them both drop into the scrotum simultaneously.   He also pulled
 one gradually up, whilst  the other was as  gently descending;
 and he  repeated this latter experiment as  rapidly as the eye
 could well  follow the elevation and descent of the  organs,  so
 that my assistant and myself were not only surprised, but so ex-
 ceedingly amused that we could hardly believe  the evidence  of
 our senses."{

  * Devergie, vol. 2, p. 919.
  t Sir A. Cooper's Lectures, vol.  1. p. 75.  Cheyne, p.  129.
  X Hutchison, p. 187.  In Vidocq's Memoirs, (which I presume are  to be taken
with a grain of allowance,) frequent allusions are made to the talents of French
rogues and villains, in counterfeiting diseases. Tobacco juice was swallowed  by
them to produce fever ; and at the Bicetre, they taught one another how to produce
  VOL. I.                  6 
62
FEIGNED DISEASES.
   Every writer on feigned diseases, notices contractions  and de-
formity,  and  their  consequence, lameness.  The  subjects wilr
 maintain particular  joints for so long a time in one position, that
 they assume the appearance, on a superficial examination, of be-
 ing  anchylosed.  In consequence of inaction also, and the use of
 ligatures, these parts often become thin.  Patient and long con-
 tinued watching, combined with the use of appropriate remedies,
 and at the same time disguising the appearance of suspicion, will
 often succeed in detecting the real nature of the case. An emetic
 has been given, and during the sickness produced by it, the con-
 tracted  limb has been found to yield  to a very slight force.
 Electricity has been effectual with  some ;  a pulley with others.
 The French surgeons  attached a weight  to a riband placed
 around  contracted fingers, and in a few minutes (not exceeding
 ten) the disease was removed.   They also made  those who com-
 plained  of contraction  of the lower extremities, support them-
 selves for some time on  the healthy leg alone.   The trembling
 and elongation of the other,  soon manifested the deceit.*  " A
 tourniquet may be placed on the limb above the  joint,  by which
 the muscles are prevented from acting, and the joint becomes in
 consequence moveable."f
   Again, feigned cases have been detected by an examination of
 the part during  sleep ;  or by engaging the person in interesting
 conversation;  or by making continued flexion of the healthy ex-
 tremity.  The diseased one has thus been forgotten,  and it insen-
 sibly  returns to its natural state.  Yet with all the keenness that
 long  experience  may be expected to produce,  there are  many
 who succeed in deceiving the examiner.  " A convict  who was
 confined on board the Retribution hulk at Woolwich during the
 period of his sentence, which was seven years, kept his right knee
 bent so as not to touch the ground with his foot all that time:  and
 he was, on that account, not sent to hard labour with the other
 convicts.  He wTas  commonly employed in executing light jobs,
 which he could do in a sitting posture.   When  he  moved from

  wounds and sores. Vidocq himself made his head to swell like a bushel; and he
 says, " it gave no pain, and all traces of it could be removed by the day following."
  A murderer who  had suffered a long confinement,  in order to obtain a moment's
  sunshine, counterfeited death so well and so often, " that when he actually breathed
  his last sigh, two days passed before they took off his iron collar."
    * Orfila, Le?ons, vol 1, p. 408.  t Scott, vol. 2, p. 139. 
FEIGNED DISEASES.
63
place to place, he used  to  hop upon the left foot with the assist-
ance of  a stick.  At the end of the seven  years, he was  dis-
charged ; and upon going  away,  he very coolly observed, ' I will
try to put down  my leg—it may  be of  use to me now.'   He did
so;  and walked  off with a firm step, without his stick, which he
had previously thrown  away."*

   Some  of the best formed men  in the British army feigned va-
rious distortions—as of the spine, the chest, or  the  limbs.   It  is
hardly necessary to say, that  nothing but  careful  and  repeated
examination will detect the fraud.   Wry neck  was also not un-
common  in  France.   In real cases of this disease, according  to
Orfila, the sterno-cleido-mastoideus of  the opposite side is not
tense;  but  in feigned ones  it is.  The  impostor, also,  cannot
readily turn his  eyes  to the side opposite to the  contraction.f

   Ulcers are frequently induced by the use of epispastics, acetate
of copper, quicklime,  the  juice  of  euphorbium or other acrid
plants; and  real ones are often prevented from healing by similar
means.  Some again cause them by rubbing the part, and they
have been known to keep  up irritation  by thrusting pins through
the bandages.   Besides  noticing the  nature of the discharge,
whether it be pus or sanies, and also attending to the habit of the
patient, it is sufficient to mention, that ulcers caused intentionally
are readily distinguished from real ones, since  their borders are
 less  callous, their surfaces  more superficial, and  generally less
painful; and by the use of lukewarm water, and covering  them
with lint, they are readily  healed; and the reason for this is, that
 they do not originate  from or accompany a disease of the system.

   * Scott, vol. 2, p. 138.  A writer in the Boston Medical and Surgical Journal, (vol.
8, p. 284,) suggests the idea, that the sudden recovery of lost powers is not a positive
 proof of malingering. To a certain extent, this may be true; but these cases it will
not be so difficult to  decide, as those  of an opposite description.  A man is struck
 with a stick or  hammer, about the hip joint.  He recovers from the external bruises.
but continues lame.  Nothing that indicates injury can be discovered on examina-
tion ; but remedies produce little or no effect, and the individual walks with a crutch.
 A case of this kind  became  the subject of a lawsuit in Glasgow some years since.
The injured  thigh had sensibly diminished in size ; but this was attributed, by the
 witnesses on one side, to the prosecutor not giving the limb its due share of motion.
 It is however well put, that if this was a case of feigned disease, the inactivity being
only for the public eye, would have been so trifling as not to cause this extenuation.
The probability was therefore in favour of its reality.  (Lancet, N. S. vol. 8, p. 740,
from Glasgow Medical Journal.)
   f Orfila, Lecons, vol. 1. p. 409. 
64
FEIGNED DISEASES.
  Frauds of this description are frequently attempted  in hospitals,
  or to avoid the performance of labour of every kind.  In 1810, a
  fellow enlisted in the marines at Portsmouth, (England,) and re-
  ceived his full bounty.   In a few days, it was discovered that he
  had a very bad leg.  On investigation, it was proved by his wife
  and others, that to  avoid going on duty, he had made an incision
  in the flesh just upon the shin  bone, and  put a copper halfpenny
  on the wound, which almost  immediately caused a violent  in-
  flammation.  He ultimately, however, paid most dearly for  his
  speculation ; as a mortification  followed, and it was found neces-
 sary to amputate the limb.*
    Mr. Hutchison amputated the leg of  a man at Deal Hospital,
 for a caries of the  tibia,  extending  from  the  ancle joint  to the
 knee.  The patient  persisted in denying that he had ever " played
 any tricks" with his leg;  yet  on dissection, a piece of copper
 coin was discovered, imbedded between the gastrocnemius and
 soleus muscles, nearly three inches from the margin of the ulcer.
 He then confessed that he had  thrust it into the ulcer about nine
 months  before, with a view of obtaining his discharge by invalid-
 ing.f  To  prevent  all injury,   Mr.  Hutchison was  obliged, in
 many instances, to secure the leg in wooden boxes, made like a
 boot, and closed with a lock.

   Nor is  deception confined  to common  ulcers.   Even  that
 dreadful disease, cancer,  has been feigned.  " I have  seen," says
 Pierre  Pigray, " a woman present   herself to the  late  king  of
 France, to  be touched by him," (as  the former kings of France

  * Edinburgh Annual  Register, 1810, part 2, p. 105.
  f Hutchison, p. 143.
  " During the war, ulcers were feigned to a prodigious extent in the army, for the
sake of procuring discharge, and getting a fresh bounty for enlisting.  A scoundrel
of the name of Noble, in the neighbourhood of Glasgow, who used  to carry my bae
a partridge shooting, often boasted to me, that he had been discharged from six dif-
ferent regiments by the very means mentioned in the text. In the York Hosnital
VhlT? l812"i3, Tehad many,CaS6S °f this kind from the Penin-nh; and wire
obliged to  ock up the leg ,„ a wooden box, prepared for the purpose, in order to se-
cure ourselves against the  patient tampering with the sore
  "On a late visit to Sheerness  my friend Mr. Robertson, surgeon to the convict
hulks to d me  that the number of patients with ulcers on the legs was, some months
prior to this, so alarm.ng,  that he was afraid that the Secretary for the Home De
partment would take ,t up.  But suspecting some fraud, he employed spies, v.henhe"
lound that all this disease was occasioned by a process termed, in  the flash lananLp
 ox hunting; that is, rubbing the  sand used for scouring the deck  whh t£. ?h. ^K
to the thigh bone  He cured half a dozen of them convfeted rf iiTl^Sd
them flogged, and never had an ulcer in his hospital since." Dun^p. pracuce^Ma 
FEIGNED DISEASES.
65
were said to perform miracles in this way,) " who  appeared to
have a very large and ill-looking cancer of the breast.  It seemed
so extremely natural, that it might have deceived the spectators;
but when I  observed that she was young,  of  a good habit, well
formed, and without any symptom of cachexia, t was led.  to sus-
pect  deceit.  On  touching the ulcer, I ascertained, though with
some difficulty, that a  part  of a  spleen had  been glued  on its
smooth side to the nipple, which left on  the outside a serous and
reddish kind of matter, similar to that of cancer.  When this was
removed, the nipple remained white, healthy,  and well formed."*
   A  false eruption of petechice  or pustules, may be detected by
examining the patient perfectly naked.

   Ozosna has been  imitated by introducing cantharides or blis-
tering plaster into the part.  Fistula in ano, in the same manner.
It is only necessary to cleanse the parts, and examine their con-
dition, in order to ascertain the real nature of the disease.

   Wounds,  with  reference to this  subject,  are very  properly
divided  by Drs.  Scott, Marshall and  Forbes, into fictitious and
factitious.   Of the first, or those which have no existence,  or are
very slight, it would seem that they are most commonly feigned
during action, to avoid danger.   Contusions may be intentionally
given, but  their  appearance  seldom equals  the • impinging of
musket or cannon balls.  One case is mentioned, where the part
was  stained, to imitate the purplish yellow hue of  ecchymosis
when on the  decrease.  It  was alleged that the contusion  had
been received some time previous.-)-

   Fractures of the thigh have been feigned;  but it is found, on
examination, that the muscles of the injured  leg are hard  and in
full  action,  while those  of the other are  inactive and  soft.  A
piece of metal has also been inserted into the head, to  indicate
previous fracture of some  part of the  skull.   Mr. Marshall men-
tions a case where a soldier thus succeeded  in procuring a dis-
charge.   He was, however, afterwards detected.^

   Under slight a-ouiids, I may as well notice the insertion of
needles  into  various parts  of  the  body,—as the arms,  hands,

  * Quoted from his Surgery.  Mahon, vol. 1, p. 358.  Fodere, vol. 2, p.  486.
  t Scott, vol.  2, p. 156.               X Marshall, p.  173.
                              6* 
66
FEIGNED DISEASES.
breasts, &c.  Two cases are related of females doing this.  One
happened at the Richmond Hospital, Dublin;  and the irritation
and inflammation ran so high, as to render amputation near the
shoulder joint necessary.   The other was at Copenhagen.  As
the needles were extracted, others  were  inserted in different
places—so  that no less than  four hundred  were  removed  from
various abscesses in about three years.  In the first instance, the
individual made a confession; in the second, she was seen intro-
ducing them under the skin.*

  Factitious wounds, or mutilations produced voluntarily, present
some  points of greater difficulty.  It  will always be a question
whether they were  not caused accidentally.  The practice  itself
is  of  ancient date.  Among the conscripts of Ancient Rome  a
common species  of mutilation  was  cutting off  the thumb, and
from this (pollicem truncando) it would appear, that our modern
word  poltroon is derived.-f   It was common during the last  war,
both in England and in France, and  the injuries were inflicted
either by fire arms  or cutting  instruments,  and generally on the
upper or lower extremities.  In one  regiment,  at the Cape of
Good  Hope, nine disabled themselves in six weeks, for the pur-
pose of being discharged. J
  Nothing  is  more  common, in modern Egypt, than the  mutila-
tion of male children, in order to avoid the  conscription, accord-
ing to Mr. Lane, a resident there for several years; and referring
particularly to the year 1834 "there is now seldom to be found
in  any of the  villages, an able-bodied youth or young man, who
has not one or more of his teeth broken out, that he may not  be
able to bite a cartridge, or a finger cut off, or an eye pulled out
or blinded,  to prevent his being taken as a recruit."
  Each case  demands a separate investigation.  A dragoon said
that his horse had bitten off his finger, but  he forgot to wipe his
bloody sword which lay in the manger.  Another came running
with two amputated  fingers, produced, as  he said, by the  colli-
sion of water casks.  The cuts were clean and  the amputation
complete.  Another lost his thumb by falling on broken glass, but
there  was not the mark even of abrasion, -beyond this single se-
vere  excision.^   The French soldiers sometimes caused their

  * Scott, vol. 2,  p.-148.        f Scott, vol. 2, p. 156.        | Marshall, p. 177.
  § Marshall,  p. 179.  It is now provided that in all cases of maiming, whether the 
FEIGNED DISEASES.
67
teeth to be filed off, or  extracted, so as to be unable  to  bite off
the end of the cartridge.
  After the bloody battles fought by Napoleon, at Lutzen, Baut-
zen, and Wurchen, it was insinuated to him that some of his sol-
diers had voluntarily mutilated themselves, particularly in  the
hands  and fingers.  On investigation, nearly three thousand were
found thus injured.  They were collected together, and  a medi-
cal  jury  was appointed, over which  Larrey presided.   On  ex-
amination, it was found that nearly all the wounds had been in-
flicted  by contusing bodies, propelled by fire  arms, and but  a
few, by polished weapons.  Again, a majority of them, presented
other wounds on various parts of their bodies.
   The verdict was favourable to the  gallant  soldiers.   Larrey
ascribes the great predominance of this  kind of injury—to  the
fact that they fired in  three  ranks, and those in the  second and
third involuntarily rested the barrels of their guns on the hands
of those in the first rank; and again, the enemy occupied the
summits  of several hills, and of course fired  down upon the
French, who in return, would have their hands constantly raised
to  their guns.*
   A case in civil life was investigated by Dr. Marc.  The indi-
vidual under the idea,  as  it would seem,  of rendering himself  of
importance to a relative,  or to secure his gratitude, pretended  to
 have had a murderous conflict with some assassins, although no
 dead  bodies could be found.  His head was wounded, longitudi-
 nally, to the extent of  about an inch, and in direction from left  to
 right.  The integuments only were divided.  The hat of soft felt,
 was cut  for nearly three  inches and in a direction from right  to
 left.  A  cotton bonnet and a silk handkerchief, which  he wore
 under  his  hat, were also divided.   Dr.  Marc observes, that  a
 blow  so  powerful as to divide all these, should have inflicted  a
 less superficial lesion.
    As collateral evidence, the  appearance of  the knife used  in
 killing the assassin, was  adduced.   It had a  thick  covering of

 injury occurred on or off duty, whether  accidentally or  intentionally, the soldiers
 shall be tried by a district court martial, as soon after the event as possible. Bal-
 lingall's Military Surgery, p. 587.  No pensions are granted except the injuries  oc
 cur in the performance of military duty.
   *Larrey's Surgical Memoirs,  translated by Dr. Mercer, p. 107.  Chaussier,
   The reader of French history will find an instance of factitious wound in  the
 case of Joly, during the quarrels of the Fronde. 
68
FEIGNED DISEASES.
blood.   Now  this was hardly consistent with the idea of stab-
bing, since on drawing it out, the  flesh and  the clothes would
both rub off a portion, and what remained  would be in longitu-
dinal striae.  Dr. Marc was of opinion, that it  had been daubed
on.  He deemed  the  whole case pretended, the effect not corre-
sponding with  the force of the ascribed cause.*
   Similar cases have been recently detected at Paris, principally
from the slightness of the  wounds.   They were not such as  a
robber or a murderer would inflict.   The celebrated Dupuytren
was called as  an examiner in one of them, and he related before
the detected individual the following circumstance.
   As  Napoleon was  one evening in the park  of St.  Cloud,  a
young  man rushed towards him, with the  cry  of  " assassins!
save the First Consul!"  He fell  near the group  which  sur-
rounded Bonaparte, and on examination two wounds were dis-
covered, -from which blood flowed.   He represented that he had
been studying in the park, when he overheard  concealed con-
spirators waiting  the favourable moment for an attack, and on
being discovered, was thus wounded by them.   The gates were
instantly closed, but  no conspirators could  be found.  During
many examinations, he persisted in this  story, and it  was only at
the end of fifteen  years, that he confessed that he had inflicted
the wounds with his own hands.f
 •  From the enumeration now made, it is evident, that without
due vigilance, the military strength of a country may be seriously
impaired, by deceptions among  its soldiers  and  sailors, and the
duty of the  medical officer thus becomes  a  highly responsible
one.  He is to guard against fraud on the one hand, and severity
on the  other.   Nothing can compensate for the reflection that he
has unjustly condemned, or caused to be punished, a man who,
it is subsequently proved, laboured under disease. I have already
mentioned  instances where mistakes have  been made.  Many
others  are enumerated by writers, and particularly of that class,
where  deep seated pain is  the principal symptom.   Dr. Cheyne
speaks of one, who was treated as a malingerer and  sent to drill,

  * Annales D'Hygiene, vol. 1, p. 257.  There is another doubtful case of assassina-
tion in vol. 9, p. 417, although the Physician, Dr. Breschet, inclines  in favour of the
wounded person.  All the wounds were extremely superficial, yet  evidently made
with a cutting instrument.
  i Annales D'Hygiene, vol. 11, p. 188.  Devergie, vol. ii, p. 159. 
FEIGNED DISEASES.
69
 until a lumbar abscess appeared, of which he died.* In reflecting

 on these circumstances,  and the many obstacles to a full  detec-

 tion, I am very ready to withdraw a somewhat rash  assertion

 which I  made in  a previous edition, that it  is disgraceful for  a

 surgeon  to be deceived by an individual who feigns his maladies.

 I am  convinced that  the remark was  altogether too strong and

 too broad.

   Much may be  done to detect, by conversing with the indivi-

 dual alone—by  a  patient investigation of the nature of the dis-

 ease—by concealing  all doubts concerning  its  reality, and by

 neglecting  the individual, if we are satisfied  of his fraud,  rather

 than consigning him  to  punishment.   No harsh  means, beyond

 those  proper for  the  real disease, should ever be  used by the

 surgeon.f   It may  be well  also  to remember,  that a general

 disposition  to feign disease often has its  origin  in  the severity

 of  the service, or the inhumanity of some, who are  clothed with

 authority.


   Pretended pregnancy  and delivery,  and feigned insanity, will

 be  noticed in subsequent  chapters.  And I  shall conclude the con-

 sideration of the present  topic, by remarking, that physicians are

 not unfrequently called upon to examine impostors, or those who

 feign diseases which can have  no existence.   The full considera-

  * Cheyne, p. 137.  " I received (says a writer  in the Glasgow Medical Journal,
 August, 1831,) an impressive lesson of caution in these matters, by my acquaintance
 with a case which occurred in the Infirmary  of Edinburgh nearly thirty years ago.
 A street porter, after a fall, began to complain of pain stretching along the whole
 outside of the  thigh.  The pain was much aggravated by motion, so that he could
 not walk across the ward without a crutch.  The case being supposed to be sciatica,
 he was under the care of the late Dr. Duncan, assisted by my lamented friend Dr.
 Bateman, who acted as clinical clerk.  The most attentive examination, scrupulously
 and laboriously made, could discover nothing  deviating from  the ordinary structure
 and appearance; nor was there any general affection  of the  system.  Our  patient,
 too, was the object of suspicion.  It was a severe winter; employment for porters
 was said to be scarce; the lodging and food of the infirmary were comfortable, and
 the aliment from a benefit society was accumulating in his favour.   He readily sub-
 mitted to the  most violent counter-irritants, but without acknowledging any relief.
 Perkins's metallic tractors, then in high vogue, were applied with due solemnity;
 and this  was the only application which  relieved the pain.  This admission on the
 part' of the patient, however, only served to confirm our  suspicions.  He was dis-
missed from the hospital, with simulation affixed to his name in the records;  and, as
we understood, he was struck off from the roll of the Friendly Society. But about two
weeks after his dismissal, he died of an apoplectic attack.  The thigh complained of
was inspected.  The cartilage covering the  head of  the  femur, was partially de-
stroyed ;  and purulent matter, to the amount of two ounces, was found in the cavity
of the joint."   Lancet, N. S. vol. 8, p. 737.
  f Cheyne, p. 179. 
70
FEIGNED DISEASES.
tion  of these, however, belongs strictly to medical police;  since
they are seldom subjects of legal investigation.

  It has  generally been the case, that the hope of exciting public
curiosity, and of course,  commiseration  and charity,  has been
the moving principle of impostors ; and they have justly imagined
that the feigning  of ailments contrary to the course  of nature
and  the experience of  mankind, would most readily answer the
purpose.

  Abstinence for a great length of time, is the most frequent,  as
well as the most successful of  these deceptions; and the reason
is obvious.  It is  practicable to a certain extent,  and the most
constant and minute attention is requisite to detect the falsehood.
The most noted, because it is the most modern case, is that of
Ann Moore, the  fasting woman of  Tutbury, (England.)  Ac-
cording  to her account, she  commenced in March  1807, and
continued fasting for six years.  At the  end of that period the
imposture was discovered, in consequence of a watch placed over
her; and it was ascertained  that her daughter secretly gave her
food and  drink.   The cui  bono is  readily  explained from  the
statement  of Dr.  Henderson,  who observes  that  she made so
much by the exhibition of her person, as to place £400 in the
stocks.  She had, however, the power of abstaining from food for
a considerable length  of time.   During  the  last watch, she re-
ceived none for nine days and nine  nights.*

   I  will add only one  case to the preceding.   Cicely De Rydge-
way, in the 31st year of Edward III. was indicted, and con-
demned for  the  murder  of her husband.   It is stated that she
fasted in prison forty days.   A record, lodged in  the  Tower of
London, contains an account of this remarkable abstinence ;  at-
tributes  it to a miraculous power, and adds,  " Nos ea de  causa
pietate moti ad laudem Dei, et gloriosse  Virginis Mariae, matris
suae, unde dictum miraculum processit, ut creditur." It concludes
with a full pardon of the  criminal.f

  * Observations on this case may be found in the 5th and 9th volumes of the
Edinburgh Medical and Surgical Journal; and also in the London Medical and
Physical Journal, vols. 21, 24, 29 and 30.
  t London Medical  and Physical Journal, vol. 31, p. 50. I add the following re-
ferences for the use of those who may be desirous of examining the subject of ab.
stinence: 
FEIGNED  DISEASES.
71
A female in Germany, who imposed on the public for two years.  London Medi-
  cal and Physical Journal, vol. 7, p.  190.
Mary Thomas.  London Medical and Physical Journal, vols. 21 and 30.
Hildanus, Ramazzini, Block, Doebel, Fontenelle, and Dr. Willan, are quoted by
  Mr. Granger and Dr. Henderson, in their papers on Ann Moore's case in the
  Edinburgh Medical and Surgical Journal, vols. 5 and 9.
Cases are also recorded in Stalpart Van Der Wiel, vol. 2, observ. 15—Holler's
  Physiology, vol. 5,  p.  168—Schurigius's Chylologia, chap.  4—Edinburgh
  Medical Essays and Observations, vol. 5, part 2, p. 1 arid 6.
State Trials, Emlyn's edition, vol. 5,  p. 482. Trial of Richard Hatheway, for a
  cheat and impostor, at Surrey assizes, March 24, 1702. Among other things*
  he said that he had been bewitched by one  Sarah Murdock; and in conse-
  quence of this, he  could not eat, but fasted ten weeks.
Harleian Miscellany, vol. 4. p. 41.   A discourse upon abstinence, occasioned by
  the twelve months' fasting of Martha Taylor, the  famed Derbyshire damsel:
  by John Reynolds, surgeon.
Memoirs of Literature, vol. 3, p. 112.   Account of a Swedish damsel, who  has
  lived  six  years  without  food : attested  by  the Bishop of Skara, (West
  Gothland.)
Republic of Letters, vol. 2, p. 439.  History of a singular and extraordinary dis-
  temper in a woman, by Dr. Michelletti.
Philosophical Transactions,  vol. 14, p. 577 ; vol. 28, p. 265; vol. 31, p. 28 ;  vol.
  42, p. 240; vol. 67, p.  1.
Medical Commentaries, vol. 14, p. 360.
Medical Communications, vol. 2, p. 113.  Dr. Willan's case.
Quarterly Journal of Foreign Medicine and Surgery, vol. 5, p. 190.
References in Elliotson's Blumenbach, p. 301-3.
Two cases of females, one in Holland, and the other in Italy.  Medico-Chirur-
  gical Review, vol. 23, p. 204.
A case, supervening on Chlorosis, by Dr. Forry of Maryland.  North American
   Archives, vol. 2, p. 365.
                                   NOTE.
   Dr. Beck has noticed mental alienation as a feigned disease, in the  ninth chapter.
In  this view, however, it is intimately connected with the first section, and the fol-
lowing cases, taken from  Mr. Marshall's Hints to Medical Officers, will well illus-
trate the difficulty of detecting imposture, and the necessity of extreme caution in
coming to a decision.
  "Some time ago a man enlisted in a regiment at present (December 1827) quar-
tered in the garrison (Dublin,) who, after  being at drill an unusually long period,
could not be taught his duty.  Every exertion was made by the adjutant and drill-
sergeant to  make him comprehend the manual and platoon  exercise, but apparently
without success.  In consequence of this corps having been joined by another regi-
ment,  the  presumed idiot  was  discovered to be  a deserter, and  a very clever
fellow."
  The following, however, is a more melancholy instance of imposition being sus-
pected where it was not practised, and will show with what anxious caution a deci-
sion should be made  that may render an individual liable to punishment.  It is copied
from the same work.
  " Private Charles Louis, aged 31,------regiment of foot, complained, during the
month of December, 1825, of pain in the loins, occasioned, as he said, by a sprain,
received the preceding July, while drawing water from a well, but which he did not
mention when the accident happened.   As the ailment was considered very slight,
he was not admitted into the hospital.  He continued, however, to complain of pain in
the loins, and about the site of the caecum.  On the 26th of January, 1826, he went
on furlough, and returned  to the regiment  on the 26th of February. From this period
he obstinately refused to do any duty, assigning as a reason  that he was unable. He
was then admitted into hospital, where he was kindly treated, but carefully observed. 
72
FEIGNED  DISEASES.
His  appetite and other functions of the body were natural, and no trace of disease
could be detected. He sometimes complained of uneasiness in the region ot the liver,
but never represented the pain as urgent; and, indeed, seldom said any thing respect-
ing his  ailments, unless in reply to direct queries.   He was in  general  remarkably
taciturn; and his manner appeared to be more indicative of moroseness than or mere
lowness of spirits.  Eventually he was discharged from hospital, but still persistea m
refusing to do his duty.  He was tried by a regimental court-martial, for disobedience
of orders, which sentenced him to undergo corporeal punishment; and on the loth
of March he received 175 lashes, in the usual manner, without making the slightest
complaint.   He still,  however, declined doing duty ;  and was a second time tried by
a court-martial, and sentenced to be confined for one month in a solitary cell.  When
released from confinement, he was ordered to pull up the grass between the stones in
the barrack-yard—an employment which annoyed  him more than any other punish-
ment.  His case was now brought to the notice of Lieutenant-Gcneral Sir George
Murray, commander  of the forces in Ireland, with  a recommendation that he  should
be transferred  to the  General  Military  Hospital,  Dublin.  This suggestion being
adopted, Louis was admitted into the General Hospital on the  30th of May, where
he remained under the care of Dr. Cheyne,  until the 12th of July, when he rejoined
his  regiment.   During the time he was in Dublin, he preserved his usual gloomy,
discontented manner.   The greatest care was taken to investigate his case,  but no
trace of disease, either  physical or mental, could  be satisfactorily observed;  and a
certificate to that purpose, signed bv Dr. Peile, deputy-inspector of hospitals, Dr.
Brown,  surgeon to the forces,  Dr/Crampton,  surgeon-general, and staff surgeon
Stringer, was transmitted to the regiment upon his being discharged.  Shortly after
Louis had joined the regiment, he evinced  decided symptoms of aberration of mind,
which were for a considerable time supposed to be feigned ;  but after close observa-
tion  for several months, the surgeon of the  regiment deemed his intellect to  be un-
sound.  In July 1827, he was again admitted into  the General Hospital, Dublin, in
consequence of mental alienation; and it is the opinion of Dr. Cheyne and the other
officers of that establishment, that there can be no  doubt of the reality of the mental
affection.  He is  still (December 1828) in hospital: his manner is much less gloomy
than formerly ; and he shows no reluctance to discuss topics connected with his present
hallucination.  He, however, artfully eludes every attempt to extract any information
from him respecting his family or early life. Among many other incoherent notions
which have entered his mind, he  conceives  that he  is colonel of the 15th regiment,
and that he is abounding in wealth, but that he is deprived of the use of it by undue
means.  His bodily health continues good."
  The work above quoted may be consulted with great advantage on the subject of
feigned diseases.  It  is entitled, " Hints to Young Medical Officers of the  Army,
&c." By Henry Marshall, Surgeon to the Forces.                    Darwall. 
CHAPTER II.
                     DISQUALIFYING  DISEASES.

Disqualifications in civil  cases—in criminal cases.  Disqualifications for military
  service.  Classes exempted by the law of the United States.  Law of the State of
  New-York on exemption from military duty.  Regulations  for exemption  in
  France—in Prussia. Rules for the inspection of recruits in England.  Diseases
  that exempt or disqualify—statistical results.  Law decisions on pleas for exemp-
  tion.  Certificates of exemption and discharge.  Laws respecting these.

  This chapter, and the one preceding it, are intended  princi-
pally for  the  use of the military physician and surgeon.   But
although  the  subject of disqualifying diseases falls peculiarly un-
der  their notice, yet there may be numerous instances in civil
life,  where the opinion of the medical man is required concerning
them.   He may be directed, for example, to ascertain whether
an individual is fit  to serve on a jury, whether  he is able  to
attend as a witness, or whether he is  competent to take  on him
certain offices or duties.  Again, a physician may be ordered  to
investigate the condition of a criminal, and to report whether he
is capable  of undergoing  hard  labour,  or of  suffering other
severe punishments  that are inflicted by the justice of his country.
  I  shall accordingly consider this subject as follows:
  1. As to the disqualifications in civil  and criminal cases.
  2. As to the disqualifications for military service.

     I.  Of disqualifying diseases in civil and criminal cases.

  In civil cases, the presence of acute diseases should undoubt-
edly  exempt  from  the performance of most of  the  offices or
duties to which an individual can be  called.  The imminent dan-
ger  which  may follow from muscular exertion,  together  with
the weakened state of the  mental faculties, which generally ac-
companies these ailments, renders  a demand for such  perform-
ance cruel and oppressive.  And accordingly, in all  countries,
where the law governs, the proof of this is deemed a sufficient
exemption.   But there may be diseases, on which a doubt exists,
  vol. i.                        7 
74
DISQUALIFYING DISEASES.
whether the required exertion would prove injurious; as, for ex-
ample, rheumatism, asthma, and particularly epilepsy.  Concern-
ing such, it would be idle to give any specific rules, farther than
to observe, that it  behooves the examining physician to inquire
into the nature  of the particular case, and from his knowledge of
it, to be guided  in his testimony.  Should there be a patient liable
to convulsive affections, and who is only preserved from frequent
attacks by  being kept calm and sequestered, he certainly would
not be a proper person  to  serve on  a jury, or to be kept for  a
length of time as a witness  before a crowded  court.  The same
remark applies  to those who are labouring under infirm health,
or a predisposition to consumption, who have symptoms of aneu-
rism, of stone in the bladder, &c, or who suffer from periodical
or continued attacks of pain in one or  the other organs.  The
humane, and therefore the just  rule in all these cases,  is to ex-
empt the subjects  of such  maladies from  all duties that are not
indispensable.
  The distinction, however, should  be kept in view, that many
who are unable to travel  without great danger, may  still be
examined at  their own houses, and that thus  the ends of justice
can, in a great  degree, be answered.
  In elucidation of these remarks, and as showing that they are
practically observed, I will  quote only two cases.
  In Andrews v. Palmer (1812) depositions taken, de bene esse,
were presented upon the incapacity of a witness,  from bodily
injury, to attend a trial.  Lord  Eldon remarked,  " this  affidavit
is too loose, that the witness will not be able to travel for a con-
siderable time.   The  surgeon ought to have  made  an  affidavit,
with reference to the time when the trial is to come  on, pledging
his professional judgment to the probability, that the witness will
not be able to attend.   If the affidavit was  more  precise in that
respect, I think I ought to make  such an order as  I have  men-
tioned," viz: for the officer to attend with  the  original depo-
sition.
  An affidavit was afterwards produced, more precisely worded,
and the order was made accordingly.*
  On the trial of Mary Elder or Smith, for poisoning with arsenic
(and which will be hereafter noticed) a juryman was taken sud-
* 1 Vesey and Beames' Chancery Reports, p. 21. 
DISQUALIFYING DISEASES.
75
 denly ill.  Drs. Christison and Mackintosh, who were in attend-
 ance as witnesses, immediately visited him in an adjoining room,
 and on their return, being sworn, stated that he had been seized
 with a fit of epilepsy—that the convulsions had  ceased, but that
 his memory was, as yet, only partially restored.  Both agreed,
 that he might be able to return to his duty that night, but  it was
 not likely.  A relapse might be the consequence.
    " Lord  Gillies had no doubt.  They could not, with propriety,
 with any regard to decency and humanity, insist upon his resum-
 ing his place in the jury box."  The  other judges concurred,
 and subsequently a new  jury was chosen.*
    As to criminal cases, it is equally unnecessary for  me,  to en-
 large, since the well known  humanity of our country renders it
 superfluous.   I may, however, remark, that while acute diseases
 deserve' commiseration and attention, as much as in the preced-
 ing instances, there are also some affections which should  pre-
 vent or delay the  execution of the  higher  punishments.f   We
 can readily imagine a state of body in the criminal, that would
 make the  application of irons to his  limbs, or the condemnation
 to hard labour, a sentence more dreadful than death itself.
    In all cases, whether of a civil or criminal nature, every thing
 must  depend  on the skill of the physician, and  the correctness
 of his testimony concerning the diseased person.   As it is impos-
 sible to suggest  specific rules, applicable to  every instance that
 may occur,  so it will be his duty to study the peculiar symptoms
 and indications with great attention, and while he  leans to the
 side of mercy, avoid being deceived by feigned  representations
 of imaginary maladies.J

           II.  Of disqualifications for military service.

   In every state,  however despotic, there are certain classes of
 individuals exempted from military duty.   This is in fact deemed
 indispensable, even with those who consider the male population
 merely as  the material for armies.  There must remain some to
 renew the waste of war—some to support the females and chil-
dren of the nation, and others to protect them from injury.

  * Syme's Justiciary Reports, p. 72.
  t Two of these  are so important, to be ascertained with certainty, that I shall
treat of them under their respective titles, viz: pregnancy and insanity.
  t See on this subject Fodere, vol. 2, p. 431, &c. 
76
DISQUALIFYING DISEASES.
   The  Jewish lawgiver, in his statutes, mentions several classes
who were exempted from this duty, and in particular, all married
persons during the  first year of their marriage.*  And similar
provisions are to  be traced in the laws or customs of all  coun-
tries.
   In the United States, by a law  of congress, all persons  under
eighteen years of age and above forty-five, are  exempted.   The
importance of this regulation in time of war is incalculable, since
it prevents the destruction of such whose strength is not yet ma-
tured, as well as  those who are already feeling  the advances of
age.f   It is also understood, that  there are many diseases which
disqualify or  exempt from military duty.  In this state, the law
formerly directed that  the age and ability of  a person  enrolled to
bear arms, should be determined by the commandant of the com-
pany, with the right of appeal to the  commanding officer of the
regiment, and it  added " that the certificate  of  a surgeon or sur-
geon's mate, shall  not be conclusive evidence of the inability of any
person to bear arms."\   In the Revised Statutes, the phraseology
on this  subject is somewhat altered.  The enactment stands thus,
" Persons claiming  to be exempted from enrolment, by reason of
inability to bear arms, may produce the certificate  of a surgeon
or surgeon's mate, as evidence of such inability, but such certifi-
cate shall not be conclusive, nor shall it be lawful for the person
giving the same to  take any fee or reward therefor."§
   If there  be any difference between these,  of  which I  am not
very positive, it must be that by the former law, the  commanding
officer of the regiment had the power of rejecting the surgeon's
certificate, while  in the latter, this would rather seem to  be re-
ferred  to a court martial.   However this may be, both equally

  * Deuteronomy c. 20, v. 5. 6, 7 ; c. 24, v. 5.  See Michaelis vol. 3, p. 34, for an
enumeration of the classes that were exempted.
  t "After the battle of Leipsic, Napoleon made great exertions to recruit his army,
and called upon  the legislative senate to  give him their assistance,  to which they
showed some reluctance.  ' Shame on you,' cried the emperor, ' I demand a levy of
300,000 men.  But I must have grown men; boys serve only to encumber the hospi-
tals and road sides.'"—Edin. Med. and Surg. Journal, vol. 36, p. 137.
  In an English  regiment, employed in the Burmese territories in 1824, the ratio of
mortality among  the young men was 38 per cent., or 1 in every 2£; while among
those who were considerably older, the mortality was 17  per cent., or 1 in 6.  (Dr.
Burke, Inspector  General of hospitals, quoted in Medico-Chirurgical Review, vol. 21,
p. 261.)
  tSee the "act to organise the militia," passed April 23, 1823.
  § Revised Statutes of the State of New-York, part 1, chap, x, title 3. 
DISQUALIFYING DISEASES.
77
show the  necessity of the surgeon's being  acquainted with dis-
qualifying diseases.
   The military system of France  being more  perfect than that
of any other nation, it might be expected that rules on this sub-
ject would there be formed; and accordingly we find  that such
were promulgated at an early period after  the revolution.   A
number of the inspector  generals, (viz:  Coste, Biron, Heurteloup,
Villars, Parmentier, Bruhy, Imbert, and Kanens,) were constituted
a council  of health of the armies;  and they prepared  certain
tables of diseases, which partially or totally exempted from mili-
tary duty.  This was done during the reign of the directory,
(year 7 of the republic;) but they were incorporated into the
Code de la conscription by Bonaparte.
   Among the  preliminaries necessary to obtain  an exemption,
are  the following:  Every conscript who pleads  bad  health or
bodily inability, must appeal in the first instance to his municipal
administration; and  he is not entitled to present himself for this
purpose, unless he bring a certificate from a health officer, that
he is really affected with a disease which appears to him to au-
thorise an application.  He is then to be examined by a health
officer in  presence of the administration, if he be capable of at-
tending, or in presence of a delegate from it,  if he be totally un-
able  to attend in person.  Before any  dispensation  be granted,
the commissioner of the executive directory must be heard ; and
he may, if any doubts be entertained, require  a counter-examina-
tion.   When the municipal administration consider any appeal to
be without foundation, the conscript  is obliged to join the army
without delay.  When they consider themselves incompetent  to
decide upon the appeal, the conscript is  allowed to present him-
self immediately before the central administration, for their deci*
sion.  And the municipal administration can only grant definitive
dispensations in cases of palpable and notorious infirmities. They
may allow provisional ones, not  exceeding three months, when
acute diseases or accidents prevent the conscript from presenting
himself.
   All the  decisions of the municipal, must  be sent to the central
administration, for their approbation or rejection; and if they re-
fuse to ratify them, the conscript must again  be examined.  LasU
ly, when they confirm a  dispensation, it is sent to the minister
                             7* 
78
DISQUALIFYING DISEASES.
of war, who forwards an exemption to the conscript, or annuls
the dispensation.
   A distinction is also made as to the diseases  to  be judged  of
by the respective administrations.  The municipal  can only take
cognizance of palpable and notorious infirmities; while every ap-
plication for  a dispensation, definite or provisional, for diseases
not obvious, or which do not prevent the applicant from attending
at the capital of the department in person, must be  judged by the
central administration.*
   The officers of health, in giving their opinion, are directed  to
regulate themselves by the following tables:

Table I.  Evident  infirmities, implying absolute incapability  of
   military service, and which are left to the decision of the munici-
   pal administrations of the canton.

   1.  Total privation of sight.  2. The total loss of the nose.  3.
Dumbness; permanent loss of voice; complete deafness.  If there
be any  doubt of the existence of these infirmities, or if they
do not exist in a great degree, the decision is to be reserved for
the central administration.  4. Voluminous and incurable goitres,
habitually impeding respiration.  5.  Scrophulous ulcers.  6. Con-
firmed phthisis pulmonalis, i. e.  in  the second or  third  degrees.
Care  should  be taken to report the  symptoms  characterizing
this state; and as they are but too evident they ought to procure
 an absolute dispensation.   But  for  commencing phthisis, asthma
 and  haemoptysis, the municipal  administration ought to grant
 only a provisional  dispensation, if the person be incapable of pre-
 senting  himself before the central administration;  the decision in
 these different cases being reserved  to the latter.   7.  The loss
 of the penis, or of both testicles.  8. The total loss  of  an arm,
 leg,  foot or hand;  the incurable loss of motion of these parts.  9.
 An aneurism of the principal arteries.   10.  The curvature of the
 long bones; rickets and nodosities sufficient evidently to impede
 the motion of the limbs.  Other diseases of the bones,  although
 great and palpable, are sometimes liable to doubt, and  therefore
 are reserved for the judgment of the central administration.   11.
 Lameness  (claudication)  well marked,  whatever be the  cause;
» Edin. Med. and Surg. Journal, vol. 6, p. 138, 139. 
DISQUALIFYING DISEASES.                 79
this must be  precisely stated.  The same is the case with consi-
derable and permanent retraction of the flexor or extensor mus-
cles of a limb, or paralysis of these,  or a state of relaxation impe-
ding the free  exercise of the muscular movements.  12. Atrophy
of a  limb, or  decided marasmus, characterised by marks of hec-
tic and wasting, which should be stated in the report.

Table II. Infirmities or diseases which occasion absolute or relative
   incapacity for military service, and which are reserved for the
   examination and opinion  of the central administrations of the de-
   partment.

   1. Great injuries of the skull, arising from considerable wounds,
or depression, exfoliation  or  extraction of  the  bones.  These
sometimes occasion all, but commonly several  of the  following
symptoms: Affection of the intellectual faculties, giddiness, swim-
ming in the  head, drowsiness, nervous or spasmodic symptoms,
frequent pains of the head.  2. The loss of the right eye, or of
its use.  This defect  disqualifies a man for serving in the  line,
but  does not prevent him  from being useful to the army in other
services, or in the marine.   3. Fistula lacrymalis ; chronic  oph-
thalmia, or  frequent  rheums  in the eyes, as well  as habitual
 diseases of the eyelids or  lachrymal passages,  of such a nature
 as  obviously to  injure  the powers of  sight.  4. Weakness  of
 sight;  permanent defects  of vision, which prevent objects from
 being  distinguished at the distance necessary for the service  of
 the army; short-sightedness; night-blindness;  confusion of vision.
 In a note it is observed, that these affections of the sight are often
 difficult of decision;  and  it is recommended to the surgeon  to
 ascertain  the effect of glasses  on the persons  complaining  of
 near-sightedness.*  Nyctalopia,  it  adds, is rare  in youth, and
 often  only temporary; while  amblyopia, or confusion of vision,
 may be known with some certainty, when we  perceive that the
 pupils have  changed their diameter,  or when  they  have lost
 somewhat of their mobility or regularity.  This, however, is not
 always present;  and in doubtful  cases, it is directed that the
 testimony of ten individuals, not relatives of the appellants, should
 be  brought, affirming the existence of these  defects.  5. Defor-
* See Chapter 1, p. 29. 
80
disqualifying diseases.
mity of the nose, capable of impeding respiration to a considera-
ble  degree; ozcena, and every obstinate  ulcer of the nasal pas-
sages or palate; caries of the  bones, and  incurable polypi.  6.
Stinking breath from  an  incurable cause, as well as  foetid dis-
charges from the  ears; and habitual transpiration of the same
character,  when  incurable.   Soldiers  who emit  these  foetid
exhalations are rejected by the  corps, and repulsed by their com-
rades.   7. Loss of the incisive or canine  teeth of the upper  or
under jaw;  fistulas of the maxillary sinuses;  incurable deformity
of either jaw by  loss of  substance, necrosis,  or other cause,
hindering the biting of the cartridge, or impeding  mastication,
and injuring the speech.   A person without canine or incisive
teeth, cannot be a soldier of the line, but  may be employed in
other services.  8. Salivary fistulas, and the involuntary flux of
saliva, when incurable.  9.  Difficulty of  deglutition, arising  from
paralysis, or some other permanent injury  or incurable lesion of
the organs employed in that function.  10.  Permanent and well-
established diseases of the organs of hearing, voice or speech,
considerable in degree, and capable of impeding their  use consi-
derably. As these diseases are very doubtful, and may  frequently
be simulated, it is advised that  testimony proving their existence
should be obtained, and the examination  also should  be repeated
for several  months at stated periods.   An  absolute or definite
exemption need not be given, as they yield  to time and skill.  11.
Ulcers  and tumours  of a  decidedly scrophulous nature.   The
symptoms, if any be  present, of a scrophulous  cachexy, should
be  stated.   12. Deformity of  the chest, or  crookedness of the
spine, sufficient to impede respiration, and  to prevent  the carry-
ing of  arms and  military  accoutrements.  13.  Phthisis in the
first • degree;  confirmed  asthma;  and  habitual, frequent, and
periodical spitting of blood.  The state of  patients attacked with
these diseases  is often evidently bad, and  accompanied by cir-
cumstances which leave no doubt; they then admit of an abso-
lute dispensation.  Sometimes  they are  less  decided, when only
a provisional judgment is to be given.   14.  Irreducible hernias,
and those which cannot be reduced without  danger.   15.  Stone
in the bladder; gravel; habitual incontinence or frequent reten-
tion of urine, as well  as severe diseases or  lesions of the urinary
passages; fistulas of these parts, whether incurable,  or requiring
constant medical assistance.  In a note, it is remarked, that re- 
DISQUALIFYING DISEASES.
81
tention  of urine produces well  known symptoms, which will
guide to a knowledge of the true state of the case.   Incontinence
may be simulated with less danger of detection; and apparently
in order to avoid the advantage that might be taken of this, it is
directed, that if the  young man has, in other respects, a'healthy
and vigorous look, he may be sent to the army without any incon-
venience.   16.  The permanent retraction of a testicle; its stran-
gulation in the  ring; sarcocele; hydrocele; varicocele; all severe
affections of the scrotum, testicles or spermatic cords, known to
be incurable.   17. Ulcerated haemorrhoids; incurable fistula in
ano;  periodical and incurable haemorrhoidal flux;  habitual and
chronic flux of blood from the intestines;  habitual incontinence
of faeces; habitual prolapsus ani.  These ought to be stated by
able health  officers,  who have for a length of time, treated and
observed the patient; and a provisional dispensation is only to be
given, until their incurability  is established.  18. The total loss
of a thumb or  great toe, of the forefinger of the right hand, or
two other fingers of one hand, or two toes of one foot; the mutila-
tion of the last joints of one or several toes or fingers; the irreme-
diable loss of motion of these parts.  These, although they inter-
fere in different degrees with several parts of the infantry service,
do not unfit for other duties, such as miners, sappers, pioneers, or
even for cavalry duty, if the mutilation of the toes or right hand
be not considerable.  If, therefore, the  petitioner,  on account of
any other mutilation than the loss of  the  thumb,  is in other re-
spects strong and of a robust  constitution, he ought to be sent to
the army.   19. Incurable deformities of the feet, hands, limbs or
other parts, which impede  marching, or handling of the arms,
or carrying the accoutrements, or the free motion of any weapon.
These  may produce only a  relative  invalidity, and hence  the
physical effects arising from  them should be stated.  20. Large
and numerous  varices.   21. Cancers and ulcers, which are inve-
terate, of a bad character, incurable, or whose cure it would  be
imprudent to attempt.  The  state of body accompanying them
should be mentioned.  22. Large and old cicatrices badly con-
solidated, especially if they have adhesions, and are accompanied
by the loss  of  substance, covered with crusts, or  attended with
varices.  23. Severe diseases of the bones, such as diastasis  or
separation,  anchylosis, caries  or necrosis, spina ventosa;  osseous
tumours, and those of the periosteum, when considerable,, or situ- 
82
DISQUALIFYING DISEASES.
 ated so as to impede motion, and which have been treated with-
 out success.  24.  Diseases of the skin, when they are capable of
 communication; when they are old, hereditary or  obstinate, as
 tinea; acute, moist and extensive  herpes; obstinate and compli-
 cated itch ; elephantiasis; lepra.  In all these cases, a definitive
 dispensation cannot be granted, until after methodical treatment
 by very intelligent officers of health has been continued in vain,
 or unless  the  constitution of the patient be  obviously injured.
 25.  Decided cachexy, of a scorbutic, glandular or other nature,
 known to be incurable, and characterised by evident  symptoms
 of long standing;  dropsies known to be incurable.   26.  Debility
 and extreme extenuation, joined to a diminutive stature, or to a
 very tall one, out of the ordinary proportions.  This case requires
 great judgment in deciding on it;  and it is  advised to adjourn
 the decision from quarter to quarter.   " When  a conscript  has
 grown very rapidly;  when he  is tall, lean, and slender made;
 when he has a long neck, arms  and legs; and when his breath-
 ing is difficult from the least exercise: such an individual is out
 of the question, until nature  has added  in  strength what it  has
 hitherto  confined  to stature."   27.  Gout;  sciatica;  inveterate
 arthritic and rheumatic pains, impeding the motions of the limbs
 and trunk.  If  these are present in an acute form, the conscript
 has a right to a provisional dispensation; but if they be  chronic,
 particular attention should be  paid to the condition of the parts.
 Gout seldom arrives to a high degree of obstinacy, without leav-
 ing nodosities  and sensible contractions; while protracted rheu-
 matism alters the form of the muscles and colour of the skin, and
 causes a wasting of the part affected.   The surgeon is  warned,
 in cases where no sensible  appearances  prove  the existence of
 rheumatism, not to mistake a feigned for a real disease; and the
 following acute remark is added: " As it is but just that in some
 other equivocal cases, such  as those respecting  the diseases of
 the  breast, humanity should  incline to the conscript's side; so
 with respect to pains and rheumatism which  are not  proven, it
 is equally proper to prefer  severity to indulgence; as  military
 exercise, far from aggravating the  predisposition, if it exist, will
only contribute to remove it."  28. Epilepsy ;  convulsions ; gene-
 ral or partial  convulsive motions;  habitual  trembling of the
 whole body, or of a limb; general  or partial palsy; madness, 
DISQUALIFYING DISEASES.
83
and imbecility.  The surgeon, in this class of cases, is to be par-
ticularly careful not to be deceived by a simulated disease.*

  Such were the rules, devised for the conduct of the inspecting
military surgeon, in the days  of Napoleon.   They have been fol-
lowed, though  with greatly diminished  severity,  under the suc-
ceeding governments of France.
  Dr. Marshall informs us, on  the  authority of  Kirckhoff, that
these regulations  are very closely imitated  in  the  army of the
King of the Netherlands.  In Prussia, the army is also recruit-
ed by involuntary levies, and every man, upon his reaching the
age of twenty, becomes available for the services of the state, as
a soldier.   He is, however, exempted, (among other causes,) if
he is furnished with a medical certificate,  stating  that he labours
tinder an infirmity, either permanent or temporary, disabling him
from military  service.  A list of diseases  that  disqualify, was
transmitted in  1817, to the various military surgeons, by Goercke,
physician-general, and chief of the military medical department
of the Prussian army.  I  have compared this  with  the French
tables, and  find them very similar.   A distinction is, however,
taken between the infantry and cavalry service, and  it is stated
that in the latter, the following  do not disqualify for  service;—
being considerably in-kneed, cicatrices of ulcers on the legs, loss
of a great toe—moderately  deformed feet  and  flatness of the
soles of the feet.   In garrison service also, hydrocele, if not very
large—varices of the legs, if not very severe—a slight degree of
contraction of the elbow joint—shortness of one of the lower ex-
tremities, provided  the defect can be remedied  by means of a
high-heeled shoe—inguinal or femoral hernia, if the intestine can
be retained in its place by a truss—loss of any  finger, except the
thumb,  and slight traces of scrofula do not disqualify.!
  In France and Prussia,  armies are raised by conscription; in
England, by recruiting.   It is, therefore, well remarked by Dr.
Marshall, that in the former countries, the regulations are calcu-
lated to obviate the simulation of defects, wThile in the  latter, they

  * These regulations are published in Belloc, p. 344  to 362; and a translation  of
them, which I have used, is contained in the Edinburgh Medical and Surgical Jour-
nal, vol. 6, p. 138, etc.
  t Marshall's Hints on the Examination of Recruits, <fec, p. 49. 
84
DISQUALIFYING DISEASES.
are intended to prevent  fraud, through  the  dissimulation of in-
firmities.
  Orders on this subject, have, at various times, been issued by
the medical department of the British army.*  The latest that I
have seen, and which are, probably, still  in force, are dated July
30, 1S30, and  signed by Sir James  McGrigor, M. D. director-
general of the army medical department.   The  following  are
enumerated as the  more common causes, for whcih a recruit
should be rejected:—feeble  constitution, unsound health, from
whatever cause—indications of former disease—nodes, glandular
swellings, or other symptoms of scrofula—weak  or disordered
intellect—chronic cutaneous affections, especially of the scalp—
severe injuries of the bones of the head—impaired vision, from
whatever cause—inflammatory affections of  the eyelids—immo-
bility or  irregularity of the iris—fistula  lacrymalis—deafness—
copious  discharge from  the ears—loss  of many  teeth, or the
teeth generally unsound—impediment of speech—want of due
capacity of the chest, and any other indication of a liability to
pulmonic disease—impaired, or inadequate  efficiency of one or
both of the  superior extremities, on  account of palsy, old frac-
tures, especially of the clavicle, contraction of a joint, mutilation,
extenuation, deformity, ganglions,  &c.—an  unnatural  excurva-
ture or incurvature of the spine—hernia, or a tendency to it from
preternatural  enlargement of the  abdominal ring—a varicose
state of the veins of the scrotum or  spermatic cord;  sarcocele,
hydrocele, haemorrhoids—fistula in perineo—impaired or  inade-
quate  efficiency  of  one  or  both of the  inferior  extremities, on
account of varicose veins, old fractures,  malformation (flat feet,
&c.) palsy or lameness, contraction, extenuation, unequal length,
bunions,  overlying or supernumerary toes, ganglions—ulcers, or
unsound  cicatrices  of  ulcers,  likely  to  break out afresh—dis-
eases,  whether acute or  chronic, for which medical treatment is
required; and  lastly,  traces of corporal punishment,  which  is
declared to be an unqualified cause of rejection.f
   The medical officer is also directed to attend  to all  the  cir-
cumstances that indicate vigorous health, a capacity for exertion

  * Copies  of several of these will be found in Marshall, pages 5 and 12.  See also
Hennen's Military Surgery, Amer. edit, p. 354.
  t " Instructions for the guidance of Staff and Regimental officers belonging to the
medical department in the duty of examining recruits who may be brought before
them for inspection," in Edin. Med. and Surg. Journal, v.  36, p. 370. 
DISQUALIFYING DISEASES.
85
and general efficiency, such as a proper proportion between the

trunk and  limbs—a  firm  and elastic  skin—a  healthy  counte-

nance—a  lively eye—chest capacious  and well formed ;  belly

lank—limbs muscular; feet arched, and of a moderate length—

hands  rather  large  than small—teeth in  good condition—voice

strong.

   The  recruit  is  to be undressed before  inspection, and is to

perform before the medical officer, a certain routine of actions,

such as walking—extending the  arms—coughing while  in that

position—standing upon one foot, kneeling, &c, &c.   A  proper

manual  examination is, of  course, made  during  these exercises,

It is, also, to be ascertained, whether he has  had the small pox,

or has been vaccinated.

   " The certificate of surgeons or  assistant surgeons, when they

approve  of recruits  for the  corps to  which they  themselves

belong, will be considered final ;"* but in other cases, they  are to

be re-examined by a district staff surgeon, or the medical officer

of the regiment to which they are sent.f

   Dr. Marshall^  mentions  some curious facts illustrative of  the

   *" Final approval" refers to the  time when the recruit joins his corps.  He may
 be enlisted in some distant part of the  country and approved, but, on reaching the
 place where he is to be formed into  a soldier, he must be examined anew by the com-
 manding officer and surgeon.
   "In our army, the commandant never interferes except when, from general debili-
 ty, or obvious bodily infirmity, a recruit is not equal to the duties of a military life.
 The recruit is first examined by the surgeon of the  district where he is enlisted, then
 by the regimental surgeon on joining: and should  any difference of opinion take
 place, the case is referred, if near London, to the medical board, or if at a distance,
 to a board specially called together  for  that purpose." Dunlop.
   f" These causes of incapacity are and always have been understood. During the
 heat of the war, when levies of recruits to the amount of 100 or 150 often joined a
 regimental dep6t at a time, a halfwitted fellow might sometimes be slipped through,
 particularly when the officers wished to show a strong paper muster, in order to es-
 cape disagreeable duty at home, and be sent on a dashing service abroad, where there
 were some hopes of promotion from that great desideratum of an officer, 'a bloody
 war or  a sickly season;' but these gentry were got quit of as speedily as possible,
 whenever they had served  the purpose for which they were enlisted. At present,
 we are a great deal too nice as to our recruits, in my opinion,  as symmetry of form
 is now an indispensable requisite for a soldier.  Large, broad, or splay feet, for in-
 stance, are at present inadmissible; a  regulation which amounts almost to a virtual
 exclusion of the inhabitants of the highlands of Scotland from  his majesty's service;
 a service, of which, according to themselves and Col. David Steward of Garth, they
 are so exclusively the ornaments."  Dunlop.
   Those  who are curious on the subject of splay  or flat foot, and the disability
 caused by it, for military life, will see extracts from Marshall's last work, (including
 observations by Goercke, the  head of  the Prussian military  medical department,)
 in Edinburgh Med. and Surg. Journal, vol. 38, p. 178.
   X Besides Dr. Marshall's "Hints," he has published another work entitled " On
 the Enlisting, the Discharging, and the Pensioning of Soldiers, with the Official Doc-
 uments on these branches of Military Duty."  This, I have not been able to procure,
 but there is a review of it in the Edin.  Med. and Surg. Journal, vol. 38, p. 136.
    VOL. I.                          8 
86
DISQUALIFYING DISEASES.
necessity  of great  caution and acuteness in these inspections.
Thus, recruits in order to obtain the required height, have  been
known to  glue pieces of buff to the naked soles of the feet,  or to
rub cobbler's wax among the hair.   On the contrary, in France
where the object of the conscript is a discharge, he has endea-
voured to  diminish his height by cutting off all his hair, and paring
off the thick cuticle under the soles of his feet.
   It is recommended by our author, as the most certain mode of
ascertaining  the  exact  height  of individuals, to measure  them
extended  on their backs.  In 52 cases, thus examined, the per-
pendicular was found  less than the  horizontal  height, by  an
average of T\- of an inch.*
   Of 57,894 recruits examined in the Centre Recruiting District,
Dublin, from  Sept. 26th, 1804, to Dec. 24th, 1827, 44,166 were
approved  and 13,728 rejected, being a proportion of 23.7 per
cent.
   Of 11,735 men drawn for military duty in the department of
the Seine, from 1816 to  1823 inclusive, 5,905 were rejected for
the following causes,
          Low stature,...............1,483
          Deformity,............... .  1,021
          Infirmities or diseases,..........3,401
                                               5,905
  If we take the per centage of the two last, we  shall find it to
be at the rate of 43.1, being considerably larger than the other.
  I will only add a few of the diseases which produced rejection
at Dublin, during the years  1825, 26 and 1827.  (Total rejected
in those years, 2,747;)
Varicose veins of one or both legs,..............   340
Ulcers, cicatrices of ulcers, wounds,.............   252
Hernia of various kinds, or laxity  or enlargement of one or
  both rings,...........................   249
Unsound  health, emaciation, &c, sottish intemperance,
  worn out,...........................277f
  Of our own country, I may remark that the French and Prus-
sian rules are most applicable to our militia, and the English  to

  * Hints, p. 62.
  tlbid p. 187 to 195.  Additional tables will be found in Edin. Med. and Surg.
Journal, vol. 42, p. 46.  London Med. and Phys. Journal, vols. 50 and 52. 
DISQUALIFYING DISEASES.
87
our regular army.  I am not aware that the general government
has adopted any rules respecting the latter, but I am certain that
militia surgeons have no directions on the subject.  The only
American publication with which I am acquainted, is a report
made by the late Dr. Samuel L. Mitchill, then surgeon-general
of the militia of  this state,  to his excellency, governor  Clinton,
and communicated to the legislature at their  session in 1819.*
The bodily disabilities for  military service are  arranged by Dr.
Mitchill into classes, with reference to various parts of the body.
The diseases enumerated  by him are  however, all included in
the tables that have been quoted, and it is therefore not necessary
to repeat them.
   I have met with some adjudications under the militia law of
Massachusetts, which it may be proper to mention.   They were
made in consequence of appeals from justices of the peace to the
supreme court.   In one, the individual was fined because he had
not a surgeon's  certificate, countersigned by the commanding
officer,—although  he offered to prove then by  the surgeon of
the regiment, that he was infirm and not capable of doing mili-
tary duty.  The  court  held that he should have been  allowed
to prove his disability, although he had no certificate.  The law
has reference to an exemption for a term of time and not for one
day.f
   In  another, the surgeon  gave a certificate in 1807, that the
soldier, by a wound in the left hand, had his thumb and fingers
rendered  useless, and is unable to perform military service. The
captain on  this discharged  him for life.  He was now (1808)
nearly two years subsequent, fined for not appearing.   The court
determined  that  this was not necessarily  an excuse for  life, but
that the justice before whom he is sued may inquire whether the
disability  continues.|
   I cannot  conclude this  section, without recommending that
tables founded on those which  I have given, should be prepared
for the use of surgeons, and that they should be enjoined  to grant
certificates  according to their  specifications, and be obliged to
report to a superior authority, all cases not coming within them.

  * Assembly Journal for 1819, p. 25.
  t Howe v. Gregory, 1  Massachusetts Reports, 81.
  X Commonwealth v. Bliss, 9 Massachusetts Reports, 322.  See also the same vol.
p. 11, 456, 540. 
88
DISQUALIFYING DISEASES.
  As to certificates, I have already stated that in this state, " no
fee or reward is to be taken for them."
  By the French  Law,  " all officers of health and others con-
victed  of  having  given  a false certificate  of infirmities or dis-
abilities, or  of having  received presents or  gratifications, shall
be punished by not less  than one, or more than two years' im-
prisonment ; or by a fine of not  less than 300, nor more than
1000 francs."*
  In cases  of discharges for various disabilities, and where the
possession of these entitles the holder to pensions or gratuities, it
is evident, that much care  must be  taken to prevent imposition.
Here, however, the directions given  in  the remarks on feigned
diseases, are more particularly applicable.f

  * Edin. Med. and Surg. Journal, vol. 6, p. 139.
  t  The reader will find in every page of Marshall, the great caution that it is requi-
site  to pursue in the English service, previous to granting these.  In the Austrian
service, several medical boards sit in succession, in judgment on each other, before
the soldier is discharged, and they are held responsible for errors, and may be called
upon to refund the amount of any expenses that have thereby been incurred.  Mar-,
Bhall, quoted in Medico-Chirurgical Review, vol. 21, p. 260, 
CHAPTER III.
                    IMPOTENCE AND STERILITY.

Laws of various countries concerning impotence as a cause of divorce—Roman law
  —Canon law—Ancient French law—Napoleon code—English law.  Causes of
  impotence in the male—absolute—curable—accidental or temporary.  English,
  French, and Scotch law on accidental causes as affecting paternity.  Banbury
  peerage case.  Diseases that may produce temporary impotence.  Causes of im-
  potence in the female—incurable and curable.  Causes of sterility—incurable
  and curable.  Notice of English law cases, where impotence was presented as a
  case of divorce. Law of the State of New York on this subject—cases—in other
  States.

   A  knowledge of this  subject may become necessary in va-
rious ways before judicial tribunals.  An individual  accused  of
committing rape, has been known to plead that he was physically
incapacitated; while the legitimacy  of children has been  con-
tested on a similar  plea.  These examples are sufficient to  show
the necessity of a brief notice of the physical signs  of impotence.
even were they not connected with the subject of divorce.
   The  laws of Moses, and afterwards the Roman law, permitted
divoice at the pleasure  of  either party.   The Christian  law,
however,  declares  marriage  to be indissoluble; and Justinian
legislating on this principle, was the first monarch who prescribed
the mode of obtaining divorce by law, and  at the same time pro-
mulgated statutes  as to impotence.*  He ordained  that if the
imbecility continued for two years after marriage, (which period
was afterwards  enlarged to three  years,) the female should be
entitled to a divorce.f
  We are informed, that it was not until the twelfth century that
this jurisprudence came into general use.  The canon law, under
which these cases were judged, always desired (at  least  in prac-

  • Gibbon's Rome, vol. 8, chap. 44, p. 64.    t Code Justinian, lib. 5, tit. 17.
                                 8* 
90
IMPOTENCE AND STERILITY.
tice) that the defect should be shown to have existed before mar-
riage; and that after its  celebration, a certain period  of time
should have elapsed before a complaint was entertained, in order
to ascertain whether the impotence was absolute, or only acci-
dental.   These dispositions of the canon law were adopted into
the civil law of ancient France; and many arrets of parliament
have  admitted the plea of impotence, and dissolved marriages of
eight, twelve, and even  fourteen  years'  standing.  Accidental
impotence, howTever,  in the  sense I  shall hereafter define it, was
never deemed a just  cause of divorce by any of these tribunals.
In 1759, the parliament of France  refused the application of a
female, whose  husband had been declared impotent  during  his
first  marriage, on the  principle,  that  at  his  second  nuptials,
several years after, the physicians declared that he appeared to
be cured of his disease.*
  The  Napoleon  code does not expressly declare that absolute
and incurable  impotence is a dissolving cause of marriage; but
the course of legal proceedings under it leads to this conclusion.
The court of appeals at Treves in 1808, in the case of a female,
directed that she  should be visited by medical men, who were to
report  to that tribunal, whether the  supposed injury occurred
before or after marriage, and whether it was remediable.-)-
   The law of England, as laid down by Blackstone and his editor,
is as  follows: a total divorce is given whenever it is proved that
corporeal imbecility  existed before the marriage.  In this case,
the connexion  is  declared to have been null and void, ab initio.
Imbecility may, however,  arise after marriage;  but it  will  not
vacate it, because there was no fraud  in  the  original  contract,

  * Fodere, vol. 1, p. 361.   It will astonish those who have not attended to this sub-
ject, to learn that there was a period in French jurisprudence when actual congress
was a judicial proof in cases of impotence.  At first it was conducted in a private
manner, but afterwards became shamelessly public. This prevailed from the thir-
teenth century until the year 1677, when it was solemnly abolished, in consequence,
as it would seem, of the case of the Marquis De Langley.  His wife declared him
impotent; the congress was ordered, but without  success; and his marriage was
annulled in 1659.  He married  again,  and had seven  children.  (Dictionnaire des
Sciences Medicales, Art. Congres, by Marc.  Mahon, vol. 1, p. 70.)
  f Fodere, vol. 1, p. 362, 363.   Devergie, and with him are several lawyers and
physicians, is of opinion, that  impotence is not a legal cause of divorce by the
French code, and that the  court have not the power to  make the above decree.  The
intention of this omission,  according to him, was to avoid a repetition of the scan-
dalous scenes of former times.   The article of the code 180, is at best  equivocal.
 I give it in the original.  "Lorsqu'il y  a en erreur dans la personne, le marriage ne
 peut etre attaque que  par celui des deux cpoux que a ete induit en erreur.'r  De-
 vergie, vol. 1, p. 384. 
IMPOTENCE AND STERILITY.
91
and one of the ends of marriage, the procreation of children, may
have been answered.*
   There is, however, one case on record, which was decided on
very different principles.   I refer to that of the Earl of Essex, in
the reign of James the First.   His countess transferred her affec-
tions  to  the  royal favourite,  Viscount  Rochester, (afterwards
Earl of Somerset;) and being desirous of a divorce, complained
that her husband was impotent.  She deposed, that for the space
of three  years, they had lain together; and during that time, he
had repeatedly attempted to  have connexion with her, without
success.   She also stated that she was still a virgin ; and several
peeresses and matrons, who were directed to examine her, corro-
borated this statement, although it is mentioned that she substi-
tuted a  young female of her own age and stature in her place
during the examination.   She was  also  pronounced to be well
fitted for having children.   The earl, in his answer, admitted his
inability  to know her; while  he denies his impotence  as to other
females,  and insinuates his belief of her incompetency for copu-
lation.    After the examination of numerous witnesses, objections
were raised by Abbot, the archbishop of Canterbury, and one of
the king's delegates on this trial, on the  propriety of dissolving
the marriage on such grounds: to which the king vouchsafed an
 angry reply.  It was finally  decided,  by the vote of  seven dele-
 gates, (five being absent,  and not consenting,) that the  marriage
 should be dissolved, and  the parties  allowed  to  contract new
 marriage ties.f

   The causes of  impotence  have been variously divided by dif-
 ferent writers; but I conceive that I shall be best enabled to give
 a comprehensive  view of them, by adopting the arrangement of
 Fodere,  into absolute, curable, and accidental or temporary.

   * Blackstone's Commentaries, with notes  by Christian, vol 1, p. 440.
   ■(• Hargrave's State Trials, vol. 1, p. 315.   See also No. 1 in the Appendix to Vol.
8; being a narrative of the proceedings on the trial, drawn up by the Archbishop of
Canterbury.  In the speech which he intended to have delivered on giving his opi-
nion, he relates the case of one Bury, tried in 1561.  His wife cited  him before the
ecclesiastical court on the ground of impotence;  and the physicians deposed that he
had but one testicle, and that no larger than a bean.  The want of access was also
proved.  A sentence of divorce accordingly passed.  After some time, Bury married
again, and had a son by his second wife.  A question arose, after the lapse of some
years, whether the offspring was legitimate; and it was decided that the second mar-
riage was utterly void, because the ecclesiastical  court had been deceived in the opi-
nion they had given on the impotency of Bury.  (Page 23 of the Appendix.) 
92                    IMPOTENCE AND STERILITY.
   We shall first notice those in the male.
   The absolute causes of impotence, or those for which there is

no known relief, principally originate  in some mal-conformation

or defect in the genital organs; and these may be  either natural

or artificial.   To this class  we refer the following—an absolute

want of the  penis.   Cases  are  frequently met with in medical

works, where it is stated that the ureters were found terminating

in the perinaeum,  or above  the  os pubis.   Fodere observes that

he cured a young soldier of incontinence of urine, in whom there

was  a fleshy excrescence, like a button, in the place of the penis,

and  at  which the  ureters  terminated: the testicles were  well

formed.   Many cases  are also on record of the penis  being im-

pervious.*


  * A most valuable and learned essay on this subject may be found in the Edin.
Med. and Surg. Journal, vol. 1, p. 43 and 132, entitled, " An attempt towards a sys-
tematic account of the appearances connected with that mal-conformation of the uri-
nary organs, in which the ureters, instead of terminating in a perfect bladder, open
externally on the surface of the abdomen—by Andrew Duncan,  jun. M. D."   See
particularly Matthew  Ussem's  case, and page 54, on the genital  organs of  the
male.
  Dr. Duncan enumerates 49 cases, of which 41 are of the male and 8 of the female.
The following may be added to  his  catalogue.  1,2. Two cases by Dr. Maitland of
Blackburn, (Lancashire.)  In one, the ureters terminate in a fungoid tumour, at the
lower part of the abdomen—testicles in each groin, penis an inch long and imper-
forate.—In the other, the ureters end in a tumour in the pubic region—penis imper-
forate—testicles natural.  (Edinburgh Med. and Surg. Journal, vol. 25, p. 31.) 3. By
Dr. Vernon, in a child—the usual tumour. (Ibid. vol. 27, p. 81.)
  4. By  Dr. Palmer of Lanesborough  (Mass.)  The child was living,  aged two
months in November, 1836.   (Boston Med. and Surg. Journal, vol. 15, 377.)  5. A
case quoted from the Gazette Medicale  of  May,  1835.  Pierre L. Vallee aged 10
years.  (London Med. and Surg. Journal, vol. 7, p. 534.   6. A case by Velpeau, in
Memoirs of the Royal Academy of Medicine, vol. 3. Edin. Med. and Surg. Journal,
vol. 48, p. 445.
  Additional cases are given by Dr. Schmitt, of Wurzburg, in his  essay on Congeni-
tal Deficiency of the Urinary Bladder.  1836.  (Amer. Journal  Medical Sciences,
vol. 20, p. 183.)
  There are three American cases which have been described and figured. One was
seen at New-York, where the individual died in the State Prison in 1826, aged 52
years. There was a fleshy mass in the pubic region, and the ureters terminated in
this.  The penis was imperforate and about an  inch long, the testicles  large  and
well formed.  The individual repeatedly stated that his venerea] desires were vio-
lent.  Plates of this case with descriptions are given by Drs. Ducachet and Charles
Drake.  (Medical Recorder, 3, 515, and New York Med. and Phys. J., vol. 5, 443.)
Another has been very recently described and figured by Dr. Hayward of Boston.
This individual came into the Massachusetts General Hospital in June, 1832.  He
was a native of  the State of Maine, aged 21,  and in good health.  There was an
oval fungous tumour, six inches in circumference at the base, and projecting  one
inch and a quarter from  the abdomen, directly over the ordinary place  of the sym-
physis pubis.  The  ureters terminated in this, and the urine passed  out in drops.
The penis was short, only two inches long,—measuring five inches in circumference
at its  root, partly divided and united at the under surface  only.  The testes were per-
fect.  He has  sexual desire, and when under the influence of it, the penis becomes
erect, and sometimes a discharge of seminal fluid  takes place from the ureters.   Dr. 
IMPOTENCE AND STERILITY.
93
   In addition to  this, have been  enumerated, an amputation of

the virile organ—a schirrous or paralytic state, induced by injury

to the nerves or muscles of the parts—and an unnatural  perfora-

tion of the penis, or in other words, the extremity of the  canal of

the urethra, terminating at some place other than its natural situ-

ation.  When this happens on the upper part, it is styled Epispa-

dias, when below, Hypospadias.   We shall  however see that  it

would be unsafe to  consider  all or  most of these  as  absolute

causes of impotence.  Thus, Piazzoni relates a case where both

the corpora  cavernosa were  destroyed, but as  the canal  of the

urethra was preserved, the  act could be performed.*   So also

with the varieties in  the termination of the urethra.   Belloc says

that he knew  a  person at Agen, in whom the orifice was  at the

bottom of the fraenum, and who had four  children resembling

their parent, and what is still more remarkable, two of them had

the same mal-conformation. The possibility of impregnation may

therefore  depend on  the distance  to which the orifice is thrown
back.f


Hay ward states that one other case of this kind has come under his observation, but
he had not an opportunity of examining him minutely.   (Boston Med.  Magazine,
vol. 1, p. 91.)
  The  third occurred to.  Dr. Dunglison in Philadelphia, and is figured  by Dr.
Duffee.  It  resembles in most of its  characters the cases above recorded.   The
individual was  about eight years old,  and dressed in female attire.  (American
Med. Intelligencer, vol. 1, p. 138.)  Another case is mentioned by Dr. Pancoast.
(Ibid. vol. 1, p. 147.)
  * Paris' Med. Jurisprudence, vol. 1, 205.  A case is related  by Mr. Hurd in the
London Med. and Surg. Journal, vol. 4, 323, in which the patient, after suffering
severe disease, such  as phagedenic inflammation, with the formation of excrescences,
was relieved by complete amputation.   There was only a very small protrusion of
the organ on pressure, yet he had subsequent to this two children.
  t Belloc, p. 50. I will mention in this place the cases I have noticed, and whether
they were impotent or not.
  Hypospadias,—a case is mentioned by Zacchias, fruitful.
  Dr. Hosack—the same.  (New York Med. and Phys. Journal, vol. 2, p.  12.)
  Dr. Dewees—the same.  (Coxe's Medical Museum, vol. 1, p. 165.)
  Mr. Syme—the same. (Edinburgh Medical and Surgical Journal, 33, 243.)
  Frank has seen a case transmitted through three generations.  Kopp saw a pea-
sant near Hanau with five children, in whom the opening was 11£ lines from the
extremity of the glans.  (Diet. Des Sciences Med. vol. 23, Art. Hypospadias, where
other cases are cited, also vol. 24, Art. Impuissance.)
  The case of Dr. Schweikard in the same work, Art. Hermaphrodisme, doubtless
belongs here.  " At the root of the glans was an oval opening;  this was the  urethral
orifice through which the urine passed.  This man had several children." (Ibid vol.
21, p. 96.)
  Dr. Gunther—two cases—fruitful.  (London Medical Repository, vol. 25, p. 185.)
  " I know an individual, the father of a very fine child, marked strongly with the
paternal resemblance, and in this  person, the urethra opens in  the corpus spongio-
sum, between one or two inches from the glans." Dr. Blundell in Lancet N. S., vol..
2, p. 771. 
94
IMPOTENCE AND STERILITY.
   The inability to  propel  the semen out  of its  vessels, is  fre-

quently to  be considered as an absolute  cause; but generally it

is a curable  one.*   I mention it, however,  in  this place, for the

purpose of stating, that in  several instances of this nature, there

have  been found, after death, a  diseased  state of the  prostate

gland, or extensive strictures of the urethra.
   The natural want of both testes, provided that ever occurs, or

their  artificial  loss, is another cause.  The removal of  them by

excision, and the frequency of  this practice in some countries, is

well  understood.  I may add, that there have been instances in

which these  organs  have suddenly diminished  and disappeared,

as  a consequence of disease  or  external  injury/)-   The  point,

however, which excited most discussion in former  times, was,

whether individuals  born without  any appearance of testes, but

who in other respects have the activity and strength  that belong

to the male sex, are to be considered impotent.  It is generally

believed  not; since it has been well ascertained, that in  many

instances  these  organs  have  not descended from the abdomen,

and yet  the  individual has exhibited every  proof of  virility.J

  For other cases, in persons below the age of puberty, see Edin. Med. and Surg.
Journal, vol. 32, 246 ; Littel's Monthly J. Foreign Med, 1, 189.
  London Med. Gazette, vol. 13, p. 878, a case of hypospadias, cured by Dupuytren.
  On the same page is the notice of a case of epispadias, related by Dr. Cramer in
Hecker's Journal.
  * Morgagni declared a case, where the patient was thirty years old, and all the
parts were properly formed, to be incurable.  This opinion was founded on the idea
that some of the internal organs were diseased.   Opuscula Miscellanea, p. 34.  Res-
ponsum Medico-Legale super seminis emittendi Impotentia.
  t Fodere, vol. 1, p. 369.   He observes, that he has witnessed several cases of this
kind in deserters, condemned to labour  on the  canal at Aries.  Larrey  also states,
that many soldiers of the army in Egypt  were attacked with a similar complaint.
The testes  lost  their sensibility, became soft, and diminished in size until they were
no larger than a white French bean.  No venereal disease had preceded these attacks.
When both testes were affected with this atrophy, the patient became impotent—the
beard grew thin, and the intellect weak. He attributes it to the use of the brandy of
dates.  Larrey, vol. 1,  p. 260.
  Severe blows, fractures, &c, on the back of the head would also seem to cause im-
potence, see case in Hennen's Military Surgery, 2nd edition, p. 303; also one from
Hildanus, quoted in Medico-Chirurgical Review, 4, 969, and Larrey's Clinique Chir-
rurgicale analysed in the same, vol. 19, p. 16.
  " The reverse is sometimes the  case—the patient being occasionally extremely
salacious.  In a case reported by Dr. Donne, of Louisville, Kentucky, in which the
cerebellum was wounded  by a musket ball, the  individual laboured under constant
priapism, until  the very  moment he  expired."  Prof.  Gross in Western  Journal
Med. and Phys. Sciences, vol. 10, p. 45.
  X " During  the examination of 10,800 recruits, I have found five in whom the right,
and six in whom the left testicle was  not apparent. In two of those cases, there
was inguinal hernia at the side where  the  testicle had not descended.  I have met
with but one instance where both testicles had not  descended."  Dr. Marshall's
Hints, &c, pages 83, 207. 
IMPOTENCE AND STERILITY.                  95
Considerable attention should be directed to the external appear-
ance of the  person—his muscular  system—the  strength of his
voice—the presence of  the  beard, &c.  The medical examiner
should  also  examine whether any cicatrix is to be found in  the
scrotum, indicating castration; or whether, in  the room of the
testes, there  do not exist some  hard knots or lumps, proving  the
existence  of  former  disease.   If these are  wanting, and  the
general appearance is virile, we are not justified in considering
the individual as impotent.
   A different opinion, however, prevailed in former times.   Pope
Sixtus  the Fifth declared, in 1587,  in  a letter  to his nuncio in
Spain,  that all those who were  destitute of them, should be  un-
married ;  and Philip II. accordingly executed  this order, which
affected many in that kingdom.   The parliament of Paris, also,
in 1665, decreed that they should  be apparent, in order to permit
a person to contract marriage.*   These, however, are the relics
of barbarous ages.  Unquestionable facts and anatomical exami-
nations have  proved that the  conformation in question may be
present, without injury to the generative power. Rolfinck relates
the  case of an  individual distinguished for libertinism, who was
executed for some crime.  He was, after death, consigned to the
dissecting knife;  and on examination, the testes were found in
the abdomen.f  The parents of a young man in a similar situa-
tion, consulted the physician as to the propriety of allowing him
to marry.   He recommended it,  and  a numerous  offspring de-
monstrated the propriety of his  advice.J

  * Mahon, vol. 1, p. 55, 57.
  t Mcebius, quoted by Mahon utantea.  It is stated by Bichat, on the authority of
Roux, that very commonly among the inhabitants of Hungary, the testes do not de-
scend till some months, or even years after birth.  (Brewster's Edinburgh Encyclo-
paedia, Art. Anatomy, vol. 1, p. 825.)
  t Mahon, vol. 1, p. 55.  Additional cases of fruitful  marriages, under these cir-
cumstances, are mentioned by Dr. Geddings.  (Chapman's Journal, N. S. vol. 4,
p. 34.)
  It is, however, proper to subjoin the remarks of Mr. Jas. Wilson on this subject.
" When both testicles have remained in the  cavity of the abdomen, it has been sup-
posed by  John Hunter that they are exceedingly  imperfect, and incapable of per-
forming their natural functions." He had met with two cases, one of which seemed
to confirm this remark, while the other makes against it, although it does not alto-
gether refute it.  "The first  is  a  young  gentleman  of very  large fortune, now
twenty-five years of age.  He has some beard, and not an unmanly appearance ; but
although  an imprudent, and in some respects a dissipated  person, he has  never
shown the least desire for women, or disposition for sexual intercourse. The second
is between thirty and forty years of age, who has one testicle forming a tumour
within the ring; and the other, which descended at puberty, lying immediately on 
96
IMPOTENCE AND STERILITY.
  I may also add, in this place, a cause of impotence, concerning
which there has existed a considerable diversity of opinion;  and
that is, the loss of one of the testicles only.  If this deprivation be
compensated by the healthy size and condition of the other, we
have no reason to  dread  the  effects.  This  actually occurs in
some cases of cynanche parotidea, where there has been a trans-
lation of the complaint from the neck to  the testes.  Dr. Robert
Hamilton, in one of the best histories which we have of that disease,
mentions, that when it was epidemic at Norfolk in England, a
patient was  seized with swelling of both the  testicles.   One of
them wasted away, until  nothing but its  coats was left.  This
occurred in  1762, and in 1769 he had a child,  and in 1772 ano-
ther ;  both  of whom were  healthy.*   Mahon also mentions that
he was acquainted with a young man, in whom one of  these or-
gans gradually diminished and withered away, whilst the other
increased proportionably in size ;  and after  this had taken place,
he became  the father of five  children.f  Sir  Astley Cooper re-
moved a testis for an enlargement and great  hardness, in Janu-
ary, 1821.   The wife, by whom he had already hadfone child,
nursed the  patient, and  in March she proved pregnantj  If,
however, the remaining testicle be small and extenuated, or have
become scirrhous or carcinomatous, or even if the epididymis be
tumefied and hard,  we have just reason to dread the presence  of
impotence.
  There also occasionally occur cases in which the  smallness of
the testicles  throw doubts on their powers.    Dr. Baillie  knew a
person of middle age, in whom their size did not exceed that  of
the extremity of the finger.  This was congenital, and accompa-

the outside of it.  He is a married man, and has children.  Before his marriage, he
describes himself as having great desire, and not being deficient in power. He
formerly had a venereal gonorrhoea;" and it was from  a swelling of the testicles,
consequent on this, that Mr. Wilson came to witness his case.  One testicle is of
full natural size, and the other also appears to  be so, as far as can be judged by
feeling it through the tendon of the external oblique muscle.  (Wilson's Lectures on
the Urinary and Genital  Organs, p. 408.)
  Mr. Lawrence has also seen two cases—in which the  testes remained, and the in-
dividuals were impotent.   On dissection, the body of the glans was not more than
half its natural size ; and the epididymis, which was very imperfect, did not join the
b»dy°f^ testes.  In a third instance, however, it exactly resembled the last case
of Mr.  Wilson.  It appears then, says Mr. Samuel Cooper, that more depends on
the size and structure of these organs  being natural, than upon their natural situa-
tion.   (Note to Good's Study of Medicine, vol. 5, p. 7.)
  * Transactions of the Royal Society of Edinburgh,  vol. 2. art. 9.
  t Mahon, vol. 1, p. 52.        + Medico-Chirurgical  Review, vol. 18  p 389 
IMPOTENCE AND STERILITY.
97
nied with a total want of sexual desire.  Mr. Wilson, however,
relates the following:  " I was some years ago, consulted by  a
gentleman on the point of marriage, respecting the propriety of
his entering into that state, as his penis and testicles very little
exceeded in size those of a youth of eight years of age.  He was
26, but had never felt desire, until he became acquainted with his
present wife.  Since that, he had experienced repeated erections,
with nocturnal emissions.   He married, became the father of a
family, and those parts which at 26 were  so small,  at 28, had
increased to the usual size of those  of an adult man.*
   A question, connected with the  subject under  consideration,
was agitated  some years since, in Germany.   It was, whether a
person castrated after he arrives at the  age of puberty, is capa-
ble of impregnating, for  some days after  the operation.  Marc,
a  high authority in  all  such  cases, supposed that he  must be
deemed  impotent, as the time needed for  curing  the wound, is
sufficient to carry the semen into the blood, and even if capable
of two or three emissions, yet he would afterwards be impotent.
Orfila states  it, as his opinion, that there  may  be  temporary
power in such cases, where the  extirpated testicles are healthy,
but not  if tuberculous  or schirrous.f  Sir Astley  Cooper, in his
recent work on the structure and diseases of the  testis, gives  a
very apposite case:—
   He performed the second operation of castration in 1801, on  a
person, for chronic abscess in the testis. On visiting him four days
after, he  informed Sir A. C. that he had,  during the  last night,
an emission.  He was a married man previous to the first  opera-
tion. For nearly the first twelve months after the complete castra-
tion, he stated that he had emissions in coitu,  or that he had the
sensations of emission.   After  that, he had erections and  coitus,
at distant intervals, but without the sensation of emission.   After
two years,  he  had erections very rarely and very imperfectly;
and ten years after the operation, he said he had, during the past
year, been  once connected.  In 1829, Sir A. C. saw him, as a
patient.  The erections were very  seldom, and very imperfect,
and the penis  was shrivelled and wasted.J

 * Lectures, p. 424.
 t Orfila's Lecons, vol. 1, p. 127.
 X Medico-Chirurgical Review, vol. 18, p. 390.  Sedillot mentions that he has heard
Boyer relate the case of a man from whom both testicles had been successively re-
  VOL. I.                       9 
98
IMPOTENCE AND STERILITY.
   To the above, Fodere adds the following, which may possibly

in some  cases produce the consequence in question, viz. conge-

nital tumours of a large size; such, for example, as scrotal hernia.

This,¥ he  supposes, may produce a hardness  of the  parts, and

prevent a secretion of the seminal fluid, by its continued pressure

on the  spermatic vessels.*   The  medical  college  of  Western

Prussia, declared  a voluminous  and irreducible  hernia, a  suffi-

cient cause of divorce.f
   Among the curable causes of impotence  may be enumerated

the following: An atony of  the  parts, arising  sometimes  from

local disease or external injury,  and  at others  from masturba-

tion—a retraction of the penis, originating from stone in  the

bladder, or some  other  urinary  diseases;  a  natural phymosis,

which sometimes confines  the glans in such a  manner as  to pre-

vent the  emission of  semen;J obliteration  of the canal of the

urethra, from stricture or other causes ;§ and lastly, the malcon-

formation, of which we have spoken, as to the place of the  aper-

ture of the  urethral canal.   All these  have  been successfully

obviated by modern surgery.||

moved, on account of sarcocele.  After the second operation his wife became preg-
nant.  He consulted Boyer, who told him that the child was no doubt his own, but
that it would be his last. P. 17.
  Similar results have occurred with animals recently castrated.  American Med.
Intelligencer, vol. 1, pp. 146, 244.
  * Fodere, vol. 1, p. 373.  " In Italy, double hernia by pressing on the spermatic
chords, sometimes causes as complete emasculation as if the testicles were actually
removed; so that many of the fine singers of that country are so by the visitation
of God."   Dunlop.
  We should not forget that extreme youth is an absolute  cause.  It has been dc
cided, as far back  as the reign of Henry the 6th in England, that the issue was a
bastard, when the husband was within the age of fourteen.  See The King v. Luffe,
8th, East's Reports, p. 205.
  t Metzger, p. 494.  The following is also an incurable cause, but not discoverable
until after death.  "A malformation of the epididymis—instead of passing on to the
vas deferens, that tube has terminated in a cul-de-sac.  I have preserved one of this
kind in the collection of Windmill street."  Wilson's Lectures, p. 423.
  X Observations on Natural Phymosis and  its effects, by  Dr. Houston, in Edin.
Med. and Surg. Journal, vol. 38, p. 266.
  In Sir George Lee's Ecclesiastical Reports, in a case (Welde v. Welde, 1731,)
where the husband pleaded capacity, in answer to a charge of impotency, and one
Williams, a surgeon, swore that Mr. Welde had an external  impediment,  arising
from the shortness of his frsenum, which prevented an erection, but that it was now
removed, he having cut the  same, and that he believed he was now capable.  (Re-
ports, appendix, vol. 2, p. 580.)
  § Cases of this description will be found in  Edin. Med. and Surg. Journal,  vol. 21,
p. 315, by Mr. Maclure of Glasgow—Medico-Chirurgical Transactions, vol. 12, by
Mr. Arnott.
  || Bushe's Medico-Chirurgical Bulletin,  vol. 2, p. 1.  The Editor gives  several
cases of hypospadias successfully treated.  I  subjoin the following uncommon case, 
IMPOTENCE AND STERILITY.
99
    " Ossification  or a cartilaginous  condition  of the  septum of

  the penis, may become a cause of temporary or incurable impo-

  tence, by preventing  copulation.   A case of this kind once oc-

  curred  to Dr.  McClellan,  of  Philadelphia.    The  individual,

  already  considerably advanced in  life, but with sexual  powers

  unusually vigorous,  was unable to  cohabit, in consequence of

  the virile organ being so much arched  towards the  perineum,

  as  to render it impracticable, to  introduce  it  into  the  vagina.

  On making an incision  along the dorsal surface of the penis, the

  pectiniform septum was found  to be converted into a plate of

  cartilage, the removal  of which was  soon  followed by  a  com-

  plete restoration of the functions of the organ."*

    The third  class of causes, the  accidental  or  temporary ones,

  is  the  most  important, since  they are frequently the  subject of

  legal investigation.   They are those which  affect an  individual

 -during his marriage, and of course, have to  be considered  in

 cases of contested paternity.f  The law  presumes, that the  hus-

  band is the  father of every child conceived  during  the  term of

  wedlock, yet it allows an investigation as to the chastity of the

  female.   That such is law in our own  and  other countries, the

 following extract  will  prove: " In  the  case of Lomax  versus

  Holmden, tried  before  the  court  of King's bench  in England,

 the question at the trial was, whether  the plaintiff was the  son

  and heir of Caleb Lomax, Esq. deceased, and  this depended on

 the question  of  his mother's marriage.   And   that  being  fully


 as an illustration of the trophies of modern surgery.  In 1830, a patient  aged 26 was
 admitted into the Edin. Infirmary, under the care of Mr. Liston. The whole extent
 of the urethra anterior to the  pubes was exposed superiorly,  there being a  wide fis-
 sure through the corpora cavernosa and glans.  The penis was retracted consider-
 ably, so that the posterior part of the fissure lay behind the symphysis pubis. When
 he urinated, the urine after emerging from beneath the symphysis, divided into nu-
 merous streams,  some of which spread over the sides of the penis, whilst others
 passed along the exposed urethra. This malconformation was congenital| and he
 was  impotent. It was remedied by paring off the callous edges of the margin of the
 fissure, introducing a catheter and uniting the  edges by sutures.   The penis ob-
 tained its natural appearance.  London Med. Gazette, vol. 6, p. 252.
   * Dr. Gross in Western Journal Med. and Phys. Sciences, vol. 10, p. 46.
   11 may mention in this place, a rare case given  by Mr.  Callaway, of  an indi-
 vidual, who, returning home intoxicated, had several connexions with his wife dur-
 ing the night.  The penis continued in a state of permanent  erection after this for
 sixteen days, resisting all medical and surgical means. An  incision with  a lancet
 at the end of this time, produced a copious discharge of dark, grumous blood, and
a solution of the erection.  The individual is impotent, most  probably occasioned,
says Mr. C. " by a deposition of coagulable lymph in the cells of the corpora cavernosa,
preventing the admission of blood, and consequent distention of the organ."  London
Med.  Repository, vol. 21, 286. 
100
IMPOTENCE AND STERILITY.
proved,  and evidence  given of the  husband's  being frequently
at London, where the mother lived, access was of course pre-
sumed.  The defendants were then admitted to give evidence of
his inability from a bad habit of body.   But their evidence, not
going to an  impossibility, but  an improbability only, this was  not
thought sufficient, and there was a verdict for the plaintiff."*
   The proofs  of  bastardy may  be thus, 1. impotence,  and 2.
proof of non-access, so conclusive, that it is impossible that  the
husband  could  have been the father of the child.  This subject,
in all its  bearings, has of late years been minutely canvassed, in
consequence of what is usually  styled the Banbury peerage case.
Lord Banbury died in  1632, aged 85.   In 1627, Lady B. had a
son,  and in 1630, another.  They both lived at the house of Lord
Vaux, with whom it was  said, she was in habits of adultery.
In an inquisition  held after  his death, it was held that he  died
without  heirs male of his body.  The son claimed the title in
1646, and his descendants also,  from time to time, but the House
of Lords either passed  resolutions denying the claim, or had  no
proceedings.   In  1806, the lineal descendant of the son  suc-
ceeded in  bringing it to a solemn adjudication.   Lord Erskine
advocated  his  cause, and quoted the case of Sir Stephen Fox,
who was married at  77 and had four children, the last, when he
was  81.   Lord Banbury was  proved to have  been hale and
hearty at the time of his death.   The house, however, decided
in 1813,  that the claim had not been made  out.  The author,
from whom I draw this narrative, observes, that the concealment
(which was  the  fact in  this case) under circumstances which
could  leave  no doubt  that  the adultery  was  the cause of  it,
appears  to  have  formed the point on which  the  decision was
grounded.f
   The French or Napoleon code, although it does  not permit a
husband  to disavow his child, by alleging his natural impotence,

  * Strange's Reports, vol.  2, p. 940.  I am indebted to Dr. Male for the reference to
this case.
  t Edinburgh Review, vol. 49, p. 190, an elaborate article on the law of legitimacy.
See also London Law Magazine, vol. 4, p. 32 ; also Head v. Head.  (1 Simons and
Stuart, 150) in Peters' Condensed Chancery Reports, vol. 1, where the answers of
the Judges in the Banbury cause are given.  The same case, before Lord Eldon
in 1 Turner and Russell's Reports, 138.  Le Marchant's Report of the  Gardner
Peerage case, Appendix, p. 389.  On the subject of non-access, the following Ame-
rican cases may be quoted, Commonwealth v. Strieker ; 1 Browne's Pennsylvania
Reports, app. p. 47; Commonwealth v. Shepherd, 6 Binney's Pennsylvania Rpnnrt*
283 ;  2 Paige's Chancery Reports, 130, Cross v. Cross.          *     KeP°rM> 
IMPOTENCE AND STERILITY.
101
yet contains a regulation, which, in its effects, operates similarly
to  the principles contained in the English  case  above  quoted.
The 312th article says, that  the infant  conceived during mar-
riage, has the husband for its father, but  he may notwithstanding
disavow it,  if he can prove, that  from  the  300th  to  the  180th
day before its birth, there was, either on account of absence, or
from the effect of some accident, a physical impossibility of coha-
biting with his wife.*
   In discussing  this subject, it will readily occur, that there is a
class of diseases, during the progress  of which, virility may be
preserved;  while there  is another in which  it is destroyed.   It
is not possible, nor indeed would  it be proper, to state these ex-
 cept in a general way;  since, it is difficult to foresee what may
hereafter be adduced in contested cases, as a cause of impotence.
We  shall therefore be   understood  to mention  the  diseases, as
causing a probability on one or the other side, and not as positive
proof.
    The  diseases  that  are considered compatible with  connexion,
 are those which do not affect the head and  sensitive system pri-
 marily, and are  not accompanied with great debility.  Inflamma-
 tory and catarrhal fevers  are of this  class.  So also in asthma
 and  the  early stages of phthisis pulmonalis, the power is pre-
 served.f   Some diseases appear  to stimulate the generative or-
 gans ; and others,  although accompanied with pain, are said  to
 excite desire.  Of  the first, may be named a calculus in the kid-
 neys or bladder; and to the last belong  gout and rheumatism.|

   * Fodere, vol. 1, p. 375.  " In Scotland it is only  necessary that a mar. should be
 in a situation, where a possibility exists of his cohabiting with his wife, in  order to
 constitute him the father of her children, or as the law correctly and  beautifully ex-
 presses it, within the four seas  of the realm. There is a case  at issue in the Court
 of  Session at  this moment, where a Miss McNeil, an  heiress, is claimed by two
 husbands.  The one asserts that  he married many years ago and cohabited with
 her, one night only; the other  married her since and has by her a family; but it
 seems to be the general opinion that if the first husband proves her to be his wife, the
 children must be his as  a matter of course."  Dunlop.
  This case was decided, I believe, as Dr. Dunlop supposed it would be, in favour
 of the first husband.  See, McNeil, or Jolly, v. McGregor, 1825, cases in the Court
 of Session. Vol. 4,  p. 259.
  t Orfila's Lecons, vol. 1, p. 136.  Louis, a late writer on consumption, denies the
 truth of this opinion, so far as to limit it only to the earliest periods.  In more ad-
 vanced stages, he is convinced that it decreases with declining strength.  The Editor
 of the London Medical Repository (vol. 25, p. 106,) remarks  on this :  " We have no
doubt, that in some examples of phthisis, both the propensity and the power to gratify
it, have existed up to the very day of the patient's death,"
  X" A friend of mine, who studied in the hospital of New York, informed  me, that
                                 9* 
102
IMPOTENCE AND STERILITY.
  A man named Aurelius Lingius, aged sixty years, had been
affected, during the two last years of his life, with occasional at-
tacks of fever, accompanied with gouty pains, which at intervals
made him extremely ill. For the space of two months, however,
he appeared on the recovery;  when, being seized with a fever
and ague, he died.  His wife declared herself pregnant, and six
months after his death, was delivered of a healthy child.  Its le-
gitimacy was contested, on the ground that the husband, before
his last illness, had been incapable; and this opinion was corro-
borrated by his own confession to the physicians attending him.
His wife allowed the truth of this statement, but asserted that his
powers had returned some time  before his disease.  In this state
of the case, Zacchias was  consulted; and  he decided in favour
of the chastity of the wife,  for the following reasons: Aurelius
had  been twice married, and  by each wife  has had several chil-
dren.  The disease under which he laboured was  a heating one,
and  his powers were probably perfect during the period of con-
valescence.  His age does not prevent the possibility of his pro-
ducing pregnancy in the female.  Symptoms of this were present
during his lifetime; and although he was known to be extremely
jealous, yet  his affection remained undiminished  towards her.
And finally, the intervals of ease  that  accompany articular pains,
together with the fact that she always reposed in the same bed
with  him, were, in the mind of Zacchias, conclusive arguments.
The judges decided in favour of the female.*
  In connection with the facts already stated, it may be proper
to add a circumstance suggested by the author just quoted.  He
deems it  possible  that certain diseases may so change the state
of the system, as to produce an alteration in the generative power.
He quotes the testimony of Avenzoar, who had no children during
the whole period of youth, but became a father shortly after re-
covering  from  a violent fever.   And also the case, which came
under his own  observation, of an artificer, who lived twenty-four
years with his wife without issue: shortly after his convalescence
from illness, he became  a father, and  afterwards  had  many
children.^

after recovering from the yellow fever, the patients displayed  most furious sexual
passion, to the great inconvenience of the nurses and other female attendants."
  * Zacchias, Quest. Med. Leg. Consilium, 23.   t Zacchias, vol. 1, p. 271. 
IMPOTENCE AND STERILITY.
103
  The diseases which we may rationally suppose will prevent coha-
bitation, are the following: A  mutilation, or severe wounds of the
sexual organs—carcinoma of the testicles or penis—gangrene of
the lower extremities—immoderate evacuations of blood or bile, or
of the faeces—scorbutic cachexia—marasmus—peripneumony and
hydrothorax—anasarca in its perfect state, particularly if accom-
panied with an  infiltration into the sexual organs—nervous and
malignant  fevers, particularly if they affect the brain, and  are ac-
companied with great debility and loss of memory—all affections
of the head and spinal marrow, whether from a fall, blow, wound
or poison ;* or from  internal causes, as apoplexy, palsy, or other
comatose diseases.   If the infant is conceived whilst the husband
has been known to have laboured under either of these maladies,
the  presumption is certainly against its legitimacy.  So  also,  if
he  be affected  with leprosy, venereal  ozoena,  severe  cutaneous
diseases, or insanity, we may  reasonably doubt the fact of coha-
bitation, from the fear that we may suppose the female has expe-
rienced, lest she should  be contaminated, or from the dread that
she has entertained of having communication with the individual.f

   We come now to  the consideration of impotence in the  female.
And here it is to be observed,  that  even if the causes of it be
removed, yet sterility, or an inability to conceive, may still exist.
 It will, therefore, be proper to notice the causes  of impotence
 and  sterility in succession.   They  may each be divided  into in-
 curable and curable.
   The incurable causes of impotence are, 1. An  obliteration or
 thickening of the sexual organs, so as to  prevent any introduction.
   The vagina  and  womb  have thus been  found  closed with a
 dense  fleshy substance.   Morgagni  mentions  cases in which
 there was a continuity of parts, without any aperture.   A recent
 case related by Dr.  Mott, as occurring  in this country, deserves
to be mentioned in detail.   The individual was aged 23, and had

  * Fodere mentions the case of a person, aged forty, who laboured under temporary
 impotence during the space of six months, from exposure to charcoal vapours.  This
state of the system  was left after the recovery from the immediate danger.  Vol. 1,
p. 382.
  f I have not noticed the moral causes of impotence, which involve the inquiry as to
the influence of the mind  on the generative function, because I can hardly suppose
how any proof on this point can be brought before a court of justice.   It is however
unquestionable  that they may exist, through  the influence of the imagination, the
fear of incompetency, dislike of the individual, &c. The " Evil Eye" of the Greeks
 is an apt illustration. 
104
IMPOTENCE AND STERILITY.
been married upwards of two years.   Her health was extremely
good, but  she had  not seen the least indication of the  menses.
About every  twenty-eight days, she feels some slight  uneasiness
about  the pelvis, which is followed for a day or two  by  an
active diarrhoea.  This occurrence she has noticed, since about
the age of seventeen or eighteen.
  As  no  connexion  could be  effected by her husband, she at
length consented to an  examination.  The external parts were
fully formed, but no vagina could be discovered.   On a plane
with the meatus  urinarius, or  about the  situation of the hymen,
there is  a complete septum or partition.   It  has a firm appear-
ance, though  it yields somewhat to the finger.  There is not the
least opening into it in  any part.   Imagining  that it might possi-
bly be an  imperforated hymen, Dr. Mott made an incision into it
about an inch in depth—but without success.   After this closed,
he made a second attempt, until he had proceeded between two
and three  inches.  No marks of a  vagina could however be dis-
covered.   Dr.  Mott  is  of opinion that both  vagina and  uterus
are  wanting.  She  has  never  experienced the  least sexual
desire.*
  Fodere  also relates the following case  from the Causes Cele-
bres.   In 1722, a young woman aged twenty-five, in good health,
was married at  Paris.   Six  years  elapsed without consummat-
ing the nuptials;  at the end of which she consented to be visited
by  a  midwife.   This person  declared that she could  find none
of the sexual organs,  and that their  place was  occupied by a
solid body.   The female stated at this time, that though in good

  * New-York Med. and Phys. Journal, vol. 2, p. 19.  A case probably of the same
nature, is mentioned in the Lond. Med. Repository, vol. 8, p. 347.
  Other cases are referred to in Davis' Obstetric Medicine, p. 112.  "Richerand
mentions a similar case, in which nature was periodically relieved by a discharge
of bloody urine."  Dunlop.
  Dr. Lee (Cyclop. Pract. Med., Art. Diseases of the Ovaria,) states the following as
communicated to him by Prof Elliotson. A young married female had never men-
struated, yet had  violent pains  every month.  Connexion went on, yet with severe
pain. On examination, which was finally consented to, no vagina could be disco-
vered, " the part,  on opening the labia being as flat as the palm of my hand."   Mr.
Cline attempted twice to remove the difficulty by an operation, within  the labia, but
without success.  It is justly supposed that the uterus was here wanting, but from
the appearance of the  breasts and other circumstances, that  the ovaria had been fully
developed.
  Sucli was actually found to  be the case in an instance of imperforate vagina, (as it
is called, but where that organ was found closed  by a thick, muscular-looking sub-
stance,) operated  on by Dr. Macfarlane, of Glasgow.   The  patient died, and on dis-
section, no uterus was found, but the ovaries were large and well formed. In this
female, the breasts were fully developed. Medico-Chirurgical Review, vol. 22, p. 450. 
IMPOTENCE AND STERILITY.
105
health, she had never been subject to the menses.   A surgeon
named Dejours was afterwards called in;  and  on examination,
he  supposed  that  an incision into this solid mass might remedy
the inconvenience;  and he  accordingly performed it in  1734,
but without success; as after cutting down two inches, he still
found the mass in equal quantity, and the hope of its being a
superficial  obstruction was  destroyed.  He  contented  himself
with  keeping the wound open, and  an aperture  was  thus pre-
served.   In the year  1742, the husband applied to the court to
annul the marriage.  Levret and Saumet, on  being consulted,
stated that they had found  an aperture of two or three inches in
length; that  the cicatrix of the former operation still remained;
and that either through fear, or the  prudence of the surgeon, it
had not been sufficiently extensive to remove the obstacles.  Fer-
rin, Petit, and Morand, on the other hand, deposed, that the ope-
ration had been properly performed, and that it was not probable
that the parts necessary  for  generation had ever been present,
either before  or after marriage.   The court, however, refused to
annul the connexion, from an idea that a cure  was practicable.
The  female died at Lyons about ten years after; and on dis-
section, the vagina and uterus were found to constitute one solid
mass, without any cavity in either.*
  In  other cases the  vagina  is entirely wanting, and yet on dis-
section or by operations  during life, the uterus  is found present.
Thus, in one by M. Villaume, the hymen was present, but there
was merely a mass of cellular tissue in the place of the vagina,
and by an  operation, an  opening  was  made to  the uterus.f   In
another, by Dr, Moulon of Trieste, there was no  exterior trace of
the external organs, but on dissection, the uterus with its appen-
dages, were seen of their natural size and well formed.J   Profes-

  * Fodere, vol. 1, p. 385. Still more remarkable cases are on  record. In the article
Cas rares, in the Dictionnaire des Sciences Medicales, vol, 4, p. 166, it is asserted on
the authority of Hufeland, that the body of a child three years  old was lately opened
at Berlin, in which there was not the slightest trace, either externally or internally,
of any  part of the genital organs peculiar to either sex. (Medico-Chirurgical Review,
vol. 4, p. 300.) Another resembling the above, and occurring in a girl fourteen years
old, is quoted from the Journal de Medecine, in the American  Journal of the Medi-
cal Sciences, vol.  2, p. 412. This individual enjoys good health.
 t Littel's Monthly Jour, of For. Medicine, vol. 1, p. 376, from Archives Generates.
 X American fJournal of Medical Sciences, vol. 2, p. 193, from Journal de Progres.
Sometimes the vagina is found ending in a cul de sac, as in case of Agatha Me-
lassene, who died, aged 27, at the  Hotel Dieu in 1823.  The  external organs were
well formed, and  the breasts full; yet on dissection, no uterus could be found, but the
broad ligaments were present, containing in their folds the fallopian tubes and well 
106
IMPOTENCE AND  STERILITY.
sor Warren of Boston recently operated in a case, where the va-
gina was wanting, although the aperture of the urethra was well
formed, and the clitoris and nymphae appeared as usual.  The fe-
male was  23  years old.   The breasts were natural.  No uterus
could be discovered  on examination.   The  operation  ended fa-
vourably, a sanguineous discharge resembling the catamenia oc-
curred,  and Dr. Hayward supposed that he  could  distinguish
something like an uterus.*
   2. Another  cause,  (as assigned by systematic writers,) both of
impotence and  sterility, is a natural or fistulous communication
of the  vagina with  the  bladder  or rectum.  Fodere  mentions
cases of this nature, where the female menstruated by the rectum,
and every possible remedy failed  of success.  There  are, how-
ever, exceptions to this; since we have accounts of impregnation
in one or two  instances, and where delivery  was affected by the
malformed passages.   Louis' famous case was of this description.
The thesis that he wrote on this subject, " In uxore sic  disposita,
uti fas  sit, vel non?  judicent theologi morales:" was  made the
subject of a prosecution by the Parliament of Paris, and the Doc-
tors of the Sorbonne  interdicted him from addressing the casuists.
The Pope, however allowed him to publish it in 1754.f
  3. A prolapsus or retroversion of the uterus, or a prolapsus  of
the vagina.  These are of course curable during their first stages;
but instances have occured where they are of long standing, and
cannot be reduced, since the introduction of the fingers causes the
most vivid pain. J
  4. A cancer of the vagina or uterus, from  the  pain that ac-
companies it,  may be considered  as an absolute cause.§  With-

developed ovaries.  (Littel's Journal of Foreign Medicine, vol. 1, p. 114.)  A small
orifice leading to the bladder, unaccompanied with a vagina, occurred at Mr. Syme's
Edinburgh Surgical Hospital.  (Edinburgh Med. and Surg. Journal, vol. 37, p. 337.)
  * American Journal of Medical Science, vol. 13, p. 79.  A similar case is related
by Mr. Edwards, in the Edinburgh Medical and Surgical Journal, vol. 41, p. 403.
The editor, in commenting on this, remarks that cases of congenital  deficiency of
the vagina are very rare, and quotes three,  from Meyer, Oberteufer, and Howship.
  t Medico-Chirurgical Review, vol. 5, p. 229.  A  late case of the same nature oc-
curred to Prof. Rossi in Piedmont.  (Dictionnaire des Sciences Medicales, vol 24,
Art. Impuissance.)  Two other cases are related by Davis, (Obstetric Medicine, p.
121,) on the authority of Puzos and Portal.
  X Pregnancy is however possible, even with an external prolapsus of the uterus.
See cases quoted in the Cyclopedia of Practical Medicine, vol. 3, p. 493.
  Mr. Guillemot has collected " from various  sources, nine cases of the kind, the
first two of which are particularly remarkable, as examples of gestation accomplished
where the prolapse was complete."  Montgomery, Signs of Pregnancy  p 194
  § In the New England Journal, vol. 9, p.  161, is a case by M. Lassere, which evi-
dently proves the position in the text. 
IMPOTENCE AND STERILITY.
107
out this, however, it would seem to be incompatible with impreg-
nation.  Dr. Beatty of Dublin had a pregnant female labouring
under the disease, and Dr.  F. H. Ramsbotham observes  in his
lectures, that in one case at  least, which he attended, he had an
opportunity of knowing  that the disease existed before impreg-
nation.*
  5. Extreme brevity of the vagina (congenital) would seem to
be occasionally an incurable cause, so  far as  relates  to the pain
caused by connexion, although possibly it may not be accompa-
nied with sterility.  Dr.  Gooch says that he  once met with a
case of this kind, and relates that Dr.  Hunter was consulted  by
a lady in a mask, labouring under this.  He told her that she
was the most  unfortunate partner that a man could have, as there
was no cure.f  Dr. Dewees  appears to have met with two cases
—in one, the whole distance to which the finger could be passed,
did not exceed one inch or  an inch and a half; in the other it
was apparently connected with  an  absence of the  uterus,  as the
vagina terminated in a cul de sac.  This female had  never men-
struated ;  yet  she had all the marks of  womanhood, and enjoyed
sexual intercourse.!

  The curable causes  are,  1. A dense substance  covering the
orifice of the vagina.   Pare, Ruysch, Fabricius, and many  others
relate cases of this kind;  in  some of which the membrane,  which
is generally the hymen, was so  strong that the menstrual  blood
was accumulated behind it in large quantities.   Fodere quotes a
case from Fabricius, where  the  husband demanded a dissolution
of the marriage, from the  impossibility of having perfect con-
nexion.  The female, however, declared  herself pregnant;  and
by an incision into the membrane, the obstacle was removed, and
the pregnancy completed at  the time indicated.^  Dr. Physick is
also stated to have operated with  success in a case where the
vagina was entirely closed up to a considerable distance within
the os externum.||

  *  London Med. Gazette,  vol. 16, p. 466.     t Gooch's Midwifery, p. 45.
  X Dewees on the Diseases of Females.
  § Fodere, vol. 1, p. 389.  I shall notice this more in detail in the Chapter on Rape.
  || Dorsey's Surgery, vol. 2, p. 368. A  remarkable case of a married woman, in
whom the fossa magna were closed up to the orifice of the uterus, is quoted from Flet-
cher's Medico-Chirurgical Notes and Illustrations.  She was relieved by an opera-
tion.  A passage  had, however, previously been effected  into the bladder by the
urethra, which was greatly  enlarged.  (Lancet, N. S. vol. 8, p. 613.)
  Dr. Coste, of Marseilles, gives a case where the  imperforate vagina was  covered 
108
IMPOTENCE AND STERILITY.
  2.  An extreme narrowness of the vagina.   Should pregnancy

intervene, no apprehension needs be entertained of the result in

this case, as  it has been  repeatedly observed  that a dilatation

gradually takes place before the period of delivery.   It may be

remarked, however,  that this  occurs more readily  in  young

females, than in those of  advanced years.*
   Sometimes, however, there is a degree of irritability combined

with the narrowness, as to cause extreme pain and  fainting, on

attempting coition.   Dr. A.  T. Thomson mentions an instance of

this nature, where he and Sir Charles  M.  Clarke, in consultation,

attempted  every means  to  allay it and  dilate, but without suc-

cess.
  3.  Independent of the natural  narrowness just mentioned, there

is a similar affection that occasionally originates from accidental

causes;  such  as tumours and  callosities, cicatrices remaining

after the cure of ulcers, or from lacerations after difficult labour.f


with an integument.  The clitoris was greatly enlarged.   The malconformation
was removed by an operation.   Medico-Chirurgical Review,  vol. 29, 526.
  * Dr. Davis mentions a case in which  the narrowness returned after the first deli-
very, and was only completely relieved after the second birth.  Obstetric Medicine,
p. 102.  See also the subsequent pages of his work for additional cases.  M. Amusat
lately removed a congenital occlusion of  the vagina, in a female fifteen years of age,
and brought from Germany, by  gradual  dilatation with a blunt instrument.  There
was nothing now to prevent conception, but from the state  of the parts, he consi-
dered the danger imminent, should gestation occur.  Medico-Chirurgical Review,
vol. 29, p. 522.
  t These are so numerous and various, that I will only refer to some of the more
remarkable:
  Davis's Obstetric Medicine, p. 116 to 120.
  On obliteration of the vagina, by  Ceesar Hawkins.  (London Medical Gazette.)
  Cyclopedia of Practical Medicine, vol. 2, p. 601, Art. Impotence, by Dr. Beatty.
  Dr. Williams in the American Journal of Medical Sciences, vol. 11, p. 408.  He
refers to several cases.—Dr. Hoillemin in the same, vol. 15, p. 407.
  A case  by Dr. Barret of Kentucky, where death  followed from rupture of the
uterus in a second delivery, having been maltreated in the first.  On examination,
there was found a complete adhesion of the vagina, leaving only a septum of* one
or two lines at the lowest part. Through this, impregnation must have been effected.
(Drake's Western Medical and Physical Journal, vol. 3, p. 206.)
  A case also by Prof. McNaughton, in the New York Medical and Physical Journal,
vol. 6, p. 252.
  A case by Dr. Stedman, in the Edinburgh Medical and Surgical Journal, vol. 37,
p. 26.—By Dr. Turnbull, in ibid. vol. 39, p. 128.
  By Mr. Ingleby, in do. vol. 45, p. 111.
  Dr. Fish, in Boston Med. and Surg. Journal, vol. 15, p. 268.
  A case related by Dr. White of St. Louis.  Here (1833) a high state of inflamma-
tion of the mucous membrane of the vagina, and adhesion of its parietes were in-
duced by a steam doctor, who  injected by mistake, some seven or eight times, an
infusion of red pepper, into the vagina, instead of the rectum.  This heroic remedy
was used to prevent an attack of cholera.  Dr. White was obliged to make an ex-
tensive  incision.  Baltimore Med. and Surg. Journal, vol. 2,  p. 314.
   A case by Professor Mussey, Amer. Journal Med. Sciences, vol. 21, p. 383.
  In the Medico-Chirurgical Transactions, vol. 11, p. 445, a  case  is related of a ne- 
IMPOTENCE AND STERILITY.
109
A dilatation of these may be made according to the rules of mo-

dern surgery.*

   4.  We may  add long continued haemorrhage, recent prolapsus

of the uterus or vagina, and even protracted fluor  albus, to the

above.   They  prevent connexion from  the  pain that occurs, or

the diseased state that is present.

   5.  Mr. Ingleby suggests an additional cause  in a protrusion  of

the bladder into the vagina.  He has met with one case of this de-

scription, where this impediment arose several  years after  mar-

riage.-)-

   The causes  of sterility, of an incurable nature, and sensible to

the sight or touch during life,  may be  stated thus: A  schirrous

or cartilaginous uterus; stricture  in the cavity of that organ;J

a polypus in the interior of the uterus; enlarged  and  schirrous

ovaria.  The want of the uterus, should that occur, is seldom po-

sitively known till  after death.§

 gress in Jamaica, in whom there was a complete adhesion of the labia; and she
 asserted that  it was owing to an operation  performed in Africa, for the purpose of
 preserving the chastity of the female.  This  appears indeed  to have been an ancient
 custom, as it is mentioned  by Strabo.  That it is  the practice, is proved by the ob-
 servations of Burckhardt, who says that the daughters of the Arabs, Ababde and
 Djaafeere, who are of Arabian origin, and who inhabit the western banks of the
 Nile from Thebes as high  as the cataracts, and generally those of all  the people to
 the south of Kenne and Esne, as far as  Sennaar, undergo excision of the clitoris at
 the age of from three to six years.  The healing of the wound.is contrived to close
 the parts, except at one place for the passage of the urine and menses; and  the ad-
 hesions are not broken through until the day before  marriage, and in  the presence
 of the  intended bridegroom.  Some have the parts sown  up,  and, like eunuchs,
 become more valuable on account of their unfitness for sexual connexion.  (Elliotson's
 Blumenbach, p. 456.)  See also Browne and Legh's Travels.
   *  Dupuytren, in his  Essay on Laceration of the Perineum during Labour, men-
 tions two cases, which I extract, for the purpose of caution to  the medical jurist.
 He delivered a young woman secretly.  The  perineum was  ruptured; but by the
 use of the suture, it again united.  Several years afterwards,  a man and woman
 visited him.   The husband was unable to consummate his marriage.  On examina-
 tion, the aperture of the vagina was found very narrow, and a cicatrix was  on the
 perineum.  It was his old patient.  He advised patience;  and  in a short time the
 female became pregnant, and was safely delivered.—In a parallel case, the husband
 deemed it a most unequivocal proof of previous purity.  (London Medical Gazette,
  vol. 11, p. 128.)
   t Edin. Med. and Surg. Journal, vol. 44, p. 432.
   X Baillie's  Morbid Anatomy, p.  371.  "Slight  inflammation  (he observes) may
 induce this, and the obliteration particularly occurs in that part where the cavity is
 narrowest."
   § Memoirs of the Medical Society of London, vol. 4,  p. 94.  See also Burns' Mid-
 wifery, chapter 4, note 47 for references—Morgagni, letter 46; and Cooke's  edition
 of the  same, vol. 2,.p. 450.  A case by Dr. Stein of Berlin,  illustrates the variety of
 external conformation that occurs.  She was married, aged 24, well formed, slender,
 and delicate, with full breasts.  The vagina  was imperforate and on operating, no-
 thing but a mass of cellular tissue could be  found.   She  had  never menstruated.
 Dr. Stein supposes, with probability, that the uterus is  wanting and infers that it is
 the ovaria and not the uterus which, by their influence, give to  the female her cha-
    VOL.  I.                          10 
110
IMPOTENCE AND STERILITY.
   The causes which may be curable, are, obliquity in the posi-

tion  of the  uterus; too great irritability of  that  organ;  exces-

sive menstruation ; leUcorrhea ;  retention of  the menses.*   This

last,  however, is not by any means a  certain cause  of  sterility,

as women have become  pregnant without  the  menses  ever oc-

curring.-j-
   We should readily suppose that  an imperforate uterus must be

productive of sterility,  were not an opposite case related on the

highest authority.  A female  in London, in labour with  her first

child, (November, 1836) was found by Mr. Tweedie, the reporter,


racteristics. Annals of Philosophy, vol. 16, p. 114.  This last opinion is corroborated
by known facts, such as the case of Mr. Pears, in the Philos. Trans, for 1805.  The
woman died at the age of twenty-nine.  Her stature was about four feet six inches,
having ceased to grow at ten years of age.  She never menstruated; her breasts and
nipples never enlarged more than in the male subject; there was  no appearance of
hair on the pubes, and she never showed any passion for the male sex. On dissection,
the os tincBB and uterus were found  of the usual form, but they had never increased
beyond their size in the infant state; the passage into the uterus through  the cervix,
was oblique; the cavity of the uterus of the common shape, and the fallopian tubes
were pervious to the fimbriae;  the coats of the uterus  were membranous;  and the
ovaria were so indistinct, as rather to show the rudiments which ought to have formed
them, than any part of their natural structure.  Edin. Med. and Surg. Journal, vol.
3, p. 105.  Mr. Pott removed the ovaria in a case of inguinal  hernia, by  a  surgical
operation.  (Works, vol. 2, p. 210.)  Before this period, the  female (aged twenty-
three) was stout, large-breasted, and menstruated regularly: afterwards, although
she enjoyed good health, she became thinner, her breasts were gone, and she never
menstruated.
  Additional cases of the absence or imperfect state of the uterus or ovaria may be
found in the London Med. Repository, vol. 26, p. 78,  by Dr. Renauldin; Lancet,  N.
S. vol. 10, p. 624, by Dr. Macfarlane ; Davis's Obstetric Medicine, p. 513 ; Andral's
Pathological  Anatomy, vol. 2, p. 414; Gooch's Midwifery, p. 8.  By Dr. Albers
(from Kleinert's Repeitorium, September,  1835.)   This case was examined  after
death, which occurred at the age of 47.  Lancet, N. S. vol. 17, p. 570.  Other recent
cases are referred to.  A  case of a female aged 19, in the Birmingham Infirmary,
August, 1835.   The uterus was wanting, and there was no trace of a vagina, but
the ovaries were of the natural size, and the breasts were small, but decidedly formed.
Transactions Provincial Med. and Surg. Association, vol. 3, p. 399.
  * Fodere and Mahon  mention dropsy (hydatids) and tympany of the womb, as
causes.  Denman, however, observes, that  according to his  experience, they have
not prevented conception.   (Denman, p. 148 and 149.)
  t I have already referred to Dr. Duncan's  Essay ;  and will  only add, that it con-
tains a notice of mal-conformations in -the  genital organs of both sexes, as con-
nected with deficiency of the  urinary bladder.  Copious references are given to  all
preceding cases on record.  See Edin. Med. and Surg. Journal, vol. 1, p. 132.  Ad-
ditional cases of female mal-conformations  are also contained  in Edin. Med. and
Surg. Journal, vol. 1, p. 39, by Mr. Coates, vol. 1, p. 128, by  Astlcy Cooper, Esq.;
and vol. 7, p. 23, by Mr. Conquest;  in London Med. Gazette,  vol. 10, p. 8, by Mr.
Earle.  This last writer 'observes, that there are but seven or eight recorded cases of
such mal-conformations in the female, while there are at least sixty related of its
occurrence in the  male.   It is not  incompatible with impregnation.  See  the case
of the Cornish woman, by  Dr. Huxham, Phil. Trans, vol. 32, p. 408 ; also, vol. 20, p.
56; and Mr. Earle's  Clinical Lecture on  this subject, as above.  A  very curious
American case, where the caesarean operation was successfully performed, and the
parts generally resembled the cases above enumerated, is related by Dr. Hamilton,
of Enfield, Connecticut, in Boston Med. and  Surg.  Journal, vol. 11, p. 93. 
IMPOTENCE AND STERILITY.
Ill
 and Dr. Ashwell, to have no orifice into the uterus,  nor was de-
 livery accomplished until after an operation.*  In this, and similar
 cases, it is supposed, that the orifice of the  uterus  being  exceed-
 ingly minute, may  be obliterated by slight  local inflammation
 after  conception.
    In  concluding this subject, it is proper to add,  that  there are
 many cases of constitutional sterility, which we cannot  explain.
 Ashwell in his Treatise on Parturition, ascribes it  to four princi-
 pal causes;  too early marriage—general ill health—too frequent
 sexual intercourse and dysmenorrhcea.f   It is obvious,  however,
 that these are far from  being invariable,  yet  the frequency of
 barrenness among prostitutes, has led to some examinations, and
 afforded us several interesting facts.  Some have referred it to a
 state  of exhaustion of the uterine system, produced by excessive
 excitement,  and in  illustration, it  is  asserted that some of the
 most  abandoned, on going to  Botany  Bay  and  marrying there,
 become the  mothers of large families.  An  anatomical  change
 would, however, seem to cause  it  in  certain instances.   Thus,
 Mr. Langstaff in several dissections, found  the fimbriated extre-
 mities of the fallopian tubes on one or  both sides,  adherent to
 some  of the neighbouring parts, and it is evident, that the  con-
 stant  state of inflammatory turgesence in the generative organs
 must  lead to this.J
    From a review of the causes of  impotence in both the sexes,
 it is evident that the absolute ones are  few in number—that they
 are mostly palpable to the senses, and that the number  formerly

   * London Med. Gazette, vol. 20, p. 202, from the Guy's Hospital  Reports for
 April, 1837.  Ibid. vol. 20, p. 392, 585.
   A case successfully operated on, in an unmarried female, by  Professor Delpech, is
 given in the Medico-Chirurgical Review, vol. 17, p. 553.
   t Review of his work in Amer. J. Med. Sciences, vol. 4, p. 149. Sterility is consi-
 dered by the laws of various countries, a legal  ground of separation. It is so among
 the Hindoos.  By the laws of China, barrenness  and talkativeness are  two among
 the seven causes of divorce.  The Koran also permits it.  By the  English and Scots
 law, sterility is a ground  for divorce, a mensa et thoro.  Edinburgh Encyclopedia,
 Art. Barrenness.
  X Medico-Chirurgical Review, vol. 4, p. 405;  Paris' Med. Jurisp., vol. 1, p. 215.
 See also Dr. Elliotson's Clinical Lectures,, in Lancet, N. S., vol. 8, p. 55; Eberle's
 Med. Review, vol. 2, p. 394; Medico-Chirurgical Transactions, vol. 8,  p. 505, vol.
 13, p. 55.
  It would appear from the observations of Parent Duchatelet (De la Prostitution,
vol. 1, p. 230,) that prostitutes are far from being absolutely sterile.  According to
him, about twenty-two in the thousand bring forth children, but  these seldom  sur-
vive. Abortions also are common. Prostitutes are hence evidently much less prolific
than virtuous females. 
112
IMPOTENCE AND STERILITY.
assigned to this class, has been greatly reduced by the improve-
ments in surgery.  The medical witness must of course regulate
his testimony by these facts.
  I have already stated the  English  law on  this subject,  and
will here  add a few of the decisions made under  its general
provisions.
  In the case of Briggs v. Morgan, the suit  was brought 16
months after marriage.  The female had been a widow, and had
lived eighteen years with a former husband.   She was now  fifty
years old.  Sir William Scott, (Lord Stowell)  denied the appli-
cation.  It  was brought too  late.   The  female also, is beyond
the ordinary time of child-bearing; and she further  swore,  that
she had constant connexion with her first husband until near his
death.*
  In the case of Greenstreet v. Cumyns, the husband admitted
the charge, and two physicians and two surgeons duly appointed,
testified, that though the disease and imperfection of the parts
were not such as to imply impotence, yet having heard his  own
history, they put faith in his  account, and  as  he was  in good
health, they could hold out no hope of his weakness being reme-
died.  The marriage was annulled on these grounds—the  hus-
band (Sir Wm. Scott observed) being  in utter  ignorance of his
constitutional defects at the time of marriage.f
  In Norton v.  Seton,  the husband instituted a suit for divorce
after having been seven years married, on the ground of his  own
impotency  and  defect  in his generative organs.  It was  with
great justice denied by Sir John Nichol.  " Here," says he, " has
been seven years' cohabitation.  Cur tamdiu tacuit ?"J
  The  doctrine that  the impediment must  have existed at the
time of marriage and must be incurable, and that  even if the
last be proved, it must  not have been a  merely supervening de-
fect, is  decisively  affirmed by Sir John Nichol  in  the case of
Brown v. Brown. §
  In Pollard v. Wybourn, it was proved by medical certificates,
that the female, twelve years after marriage, was virgo intacta
and apta viro.   The husband had made several confessions of

  * 3 Phillimore's Ecclesiastical Reports, p. 425.    t 2 Phillimore, p. 10
  X 3 Phillimore, p. 147.           § 1 Haggard's Ecclesiastical Reports, p. 523. 
IMPOTENCE AND STERILITY.
113
  his incapacity, and refused, being in France,  to answer  to  the

  complaint.  The marriage was dissolved.*

     I  find that  I  was  mistaken in  stating, as  I  did,  in the  pre-

  vious edition, that the  English law was in  force in  this state.

  This point was solemnly  adjudicated by Chancellor  Sanford in

  1825,  in the case of  Burtis v.  Burtis.   Here the wife filed a bill

  against her husband,  and stated that  he was impotent, and  had

  been so from his birth.  She, therefore, asked for a  dissolution

  of the marriage.   The defendant demurred, on the ground, that

  the complainant was  not entitled to any relief, and that he  ought

  not to be compelled to make any discovery.   His counsel further

  urged,  that impotence was a  mere canonical cause  of divorce,

  and  that the English Chancery never claimed nor exercised any

  jurisdiction on that subject; while, in our own state, jurisdiction

  was  given by statute.  On  the other  hand, the counsel  insisted

  that  the  jurisdiction of the ecclesiastical courts  of England, in

  granting divorces and annulling marriages, had devolved  upon,

  and appertained to, the Court of Chancery in  this state.

    The  Chancellor, in his  opinion,  mentioned, that New  York

  when a  colony, was  ruled for  some years  by governors, w7ho

  either alone or with the council, assumed executive and judicial

  powers.  During that period,  one  of the  governors,  Lovelace,

  granted four divorces, one  in 1670, and three in  1672.f  These


   * 1 Haggard, p. 725.  It would  seem  that the canon law in England required
  three years' cohabitation, before the party could be declared incapable.  Such at
  least is asserted by Sir George Lee, (Ecclesiastical Reports, edited by Dr.  Philli-
  more, vol. 2, p. 580,) in the  case of Welde v. Welde. Here, the surgeon, as  I have
 already stated, deposed to the removal of a natural phymosis, and he now believed
 the defendant  capable.  The wife  was declared pure on the examination of mid-
  wives.   Sir George Lee, however, refused to dissolve the marriage.
   t For one of these I am indebted to the kindness of John V. N. Yates, Esq., late _
 secretary of state; and as it has never been published, I prefer giving the proceedings
 at full length, as copied from the records.
   " Nicholas W----, of Oysterbay, on  behalf of Rebekah his daughter, wife of
 Elcazer L------, of Huntington, made  complaint unto me of the uncomfortable
 condition wherein his said daughter hath, for divers years past, lived with her said
 husband; and there having been formerly several complaints made, both on the part
 of the relations of the husband, as well as those of the wife, suggesting some noto-
 rious fault or impediment on the one side  or the other, which hitherto hath not been
 fully or clearly made appear, so that mutual discords and differences do still con-
 tinue.  To the end a fair composure of the same may be affected, or some  other
 lawful course taken therein,  I have, by and with the advice and consent of my
 council, thought fit  to ordain  and appoint, and by these presents do ordain and ap-
 point, that Eleazer L------and Rebekah his wife do appear now in this city, upon
 Wednesday the fourth of May next,  before a special court appointed to examine into
and determine  the matter in  difference between them; and all persons concerned,
or that can  give in  evidence on either part, are hereby required  to make their ap.
pearance before the said court, for the better clearing of the truth, so that the con-
                                10* 
114
IMPOTENCE AND STERILITY.
were the only cases that occurred, during and through  the long

period of  more  than one  hundred  years, down to the revolution.

Subsequent to that period, no provision on this  subject had been

made by the legislature.

troversy may be decided according to law and  good conscience.  Given under my
hand  at Fort James  in New York, this 1st day of April, 1670.
                                      " FRANCIS LOVELACE, Governor."
  Volume marked "Court of Assize, 1665 to 1672"—vol. 2, p.  139.
                             A Commission, SfC
  " Whereas complaint hath been made unto me by Nicholas W----, on the behalf
of Rebekah  his daughter, against Eleazer L------, her husband, and also by the
said Rebekah against him the said Eleazer,  that having been joined in  matrimony
for the space of seven years  and a half or thereabouts, he the said husband hath not
performed conjugal  rights unto his wife, but on the contrary hath caused her to lead
a very uncomfortable life with  him; and the said father  and daughter upon suppo-
sition of impotency  and insufficiency in the said Eleazer L------, having sued for
a divorce, the hearing  and examination into  which matter I do not judge meet
should come on before a public court,  I have therefore thought fit to nominate and
appoint, and by  these  presents do hereby nominate  and appoint Thomas Love-
lace,  Esq., Mr, Samuel Maverick, Mr. Matthias  Nicolls, Capt. John Manning, and
Mr. Humphrey Davenport, to be commissioners, to meet at some convenient place
this afternoon, then  and there to hear and examine into this matter in difference be-
tween the said Eleazer L------and Rebekah  his wife.  To which  end, you are to
call both parties before you, or whosoever also can give evidence or testimony in the
matter; to whom you may administer an oath, for the better clearing of the truth;
which oath  you are  hereby  empowered to give ;  as also to employ any other person
or persons skilful in such matters, to make inquiry into the defect and impediments
alleged; whereupon you are to give judgment, and render an account, that I may
make some final  determination thereupon.  Given under  my hand and  seal, this
sixth day of May, in the 22d year of his majesty's reign, A. D. 1670.—Ibid. p. 175.

          A Divorce granted to Rebekah W----,from Eleazer L------.
   " Whereas Nicholas W----of Oysterbay, on the behalf of his daughter  Rebekah,
the wife of Eleazer  L------, and the said Rebekah for herself, did make their com-
plaint unto me against the said Eleazer L------, her husband;  that she having been
his reputed  wife for the space of seven years and a half, she hath not in all  that time
received any due  benevolence from her said husband, according to the true intention
of matrimony, the great end of which  is not only to extinguish those fleshly desires
and appetites incident to human nature, but likewise for the well ordering and con-
 firmation of the right of meum and tuum, to be devolved  upon the posterity lawfully
 begotten betwixt  man and wife, according to the laws of the land and practice of all
Christian nations, in that case provided;  and did therefore sue for a divorce. Where-
 upon, having appointed commissioners to call  both parties before them,  and strictly
 to examine  into the affair, and to make report  of their judgment thereupon; the
 which, after serious inquiry made by them, with the advice of chirurgeons well
 skilled, and sober matrons, who privily examined both the man and the woman, they
 made report of their judgment and opinion, that the defect was in the husband, and
 not in the wife, and there was  a sufficient ground for a divorce.   All which being
 afterwards  represented to my council, and they having declared themselves in the
 same opinion.  For the reasons afore specified, the pretended marriage between the
 said  Eleazer L------and Rebekah W----is hereby adjudged and declared to be
 void, null and invalid, together with all  the consequences thereof;  and the said Re-
 bekah W----is hereby acquitted,  made free, and divorced  from all pretences of
 marriage, or matrimonial  ties and obligations between her and the said Eleazer;
 and the said Rebekah hath  likewise free liberty to dispose  of herself in lawful mar-
 riage with any other person, as if the  ties and obligations between  her and the  said
 Eleazer had never  been.  Given  under my hand, and sealed with the seal of  the
 province, this 22d day of October, in  the  22d year of his  maiestv's reiffn. A. D.
 1670."-Ib.p.260.                                        J   /      S • 
IMPOTENCE AND STERILITY.                115
  " The  law of England concerning divorces, is,  chiefly, the
ecclesiastical law and not the common law of that country, and
it has never been adopted in this state.  Our statutes concerning
divorces  are original regulations, and they do not adopt or intro-
duce the  English law of divorces.  We  have no  judicature au-
thorised to adjudge by a substantive and effectual sentence, that
a marriage is illegal, and to separate the parties.   This court
cannot, therefore, dissolve a marriage or decree a divorce for
the cause of corporeal impotence."*
  In  our Revised Statutes, however, passed in 1828, the omis-
sion, if it may be so styled, was rectified.  The  chancellor has
now  the power of declaring  the marriage contract void, for
(among  other  causes)  physical  incompetency  in either of the
parties, existing at the time of marriage.  It is further enacted,
that a suit to annul a marriage on  this ground, shall only be
maintained by the injured party against the party whose incapa-
city is alleged; and shall in all  cases, be brought within two
years from the solemnization of the marriage.f
   The present chancellor of this state (Walworth) has also de-
cided that a sentence of nullity on the ground of impotence, can-
not be pronounced upon a bill  of confession; but that the defen-
dant must be examined on oath before the master, and who must
also take proof of the facts and circumstances stated in the com-
plainant's bill.   In the present case, which was that of a female,
charged by her husband with  impotence, he  declared that' the
court would not decree the marriage void, until a  surgical exa-
mination had been had in order to ascertain whether the alleged
incapacity is incurable.  The master was directed to  select sur-
geons and matrons for this purpose, and in the  choice  to have
due regard to  the feelings and wishes of the defendant^
   In Pennsylvania, by an act  passed March 13, 1815,  it is en-
acted, " that if either party, at the time of the contract, was and
still is naturally impotent, or incapable of  procreation,  it shall
and may be lawful for the innocent and injured person to obtain
a divorce."§
   Impotence  is made a cause of divorce, by the  laws of New

  * Hopkins' Chancery Reports, vol. 1, p. 557.
   t Revised Statutes, vol. 2, pp. 142, 143.
  X 5 Paige's Chancery Reports, 554.  Devanbagh v. Devanbagh.
  § Griffith's Ryan, p. 111. 
116
IMPOTENCE AND STERILITY.
 Hampshire, Illinois, Indiana, Tennessee, and Missouri.*  And the
 following case shows that the law is similar in Ohio.
   In the case of Keith v. Keith, the wife plaintiff, and  about 28
 years of age, had been married about a year and a half to the de-
 fendant, who was about 35 years old, of common size, but with-
 out  beard,  and with a fine feminine voice.  They lived  together
 about a year, when she left him, and went to her mother's, with
 whom she  has  since  resided.  Three  respectable witnesses de-
 posed that they had examined the defendant a few days  previous
 to the sitting of the court, and that  he was destitute  of virile
 organs.   " He had no testicle, only a little loose skin, as large as
 that containing  the  testicle of  a' squirrel.    He  had no penis.
 Between the place of one and the navel, there was a teat, about
 three-fourths of an  inch  long, with a black spot in the centre,
 out of which  he  discharged urine."
  By the Court.  Take a decree for a divorce.  Let each  keep
 the property they have, and order the defendant to pay the costs,
 or be subject to execution for them.f
  I do not find it mentioned in the laws  of New Jersey, Georgia,
 and Michigan.

  * Digest of Laws of N. Hampshire, 1830, p. 157.  Revised Laws of Illinois, 1833,
p. 233.   Revised Laws of Indiana, 1831, p. 213. Digest of Laws of Tennessee, 1831,
p. 74.   Laws of Missouri, 1825, p. 329.
  t Wright's Ohio Supreme Court Reports, p. 518. 
CHAPTER  IV.
                        DOUBTFUL SEX.

Denial of the existence of hermaphrodites, in the ancient sense of the term.  Notice
  of the various mal-conformations that have been observed.  1. Individuals exhibit-
  ing a mixture of the sexual organs, but neither of them entire.  2. Males with un-
  usual formations of the urinary and generative organs.  3. Females with  unusual
  formations of the generative organs.  Ancient laws concerning hermaphrodites—
  English common law concerning them.  Notice of Geoffroy St. Hilaire's late re.
  searches on hermaphrodism.

  The ancients have  several fables founded on the  idea  of the
union of the qualities of the male and female in the same indi-
vidual.   One of the personages who was supposed to be thus en-
dowed, was named  Hermaphroditus; and from  him  the term
hermaphrodite has come into  general use,  as  applicable to this
class  of  beings.  Although  formerly credited,  yet it is now
agreed that no such individual of the human  species  has ever
existed; but it is equally well established, that  many cases of
extraordinary mal-conformations have occurred.  I conceive that
the most useful notice of this subject, will  be, to relate  the more
remarkable cases according to the  arrangement usually adopted
by writers of the present day.
  Considering, therefore, the subject  of proper hermaphrodites,
or those  endowed with the sexual  organs of both sexes  entire,
and capable of performing the generative  functions, as fabulous,
we shall examine  those to whom  the above term is at present
commonly applied, under three classes.

  1. Individuals exhibiting a mixture of the  sexual organs, but
neither of them entire.  Examples  of  this  class  are rare; and
even  these, when closely examined, show the predominance of
one or other sex.   Dr. Baillie mentions a case which was  com-
municated to him by Dr. Storer of Nottingham.  " The person," 
118                    DOUBTFUL SEX.
he observes, " bears a woman's name, and wears the dress of a
woman.   She has a remarkable masculine look, with plain fea-
tures, but no beard.  She  has never menstruated;  on this ac-
count, she was desired by the lady with whom she lived as a ser-
vant, to become an out patient in the Nottingham hospital.  At
this time she was twenty-four years of age, and had not been sen-
sible of any bad health, but only came to the hospital in order to
comply with  the  wishes of her mistress.   Various medicines
were tried without effect; which led to the suspicion of the hy-
men being imperforated, and the menstrual blood having accu-
mulated  behind it.   She  was,  therefore,  examined  by Mr.
Wright, one of the surgeons to the  hospital, and by Dr. Storer.
The vagina was found to  terminate in a cul-de-sac, two inches
from the external surface of the labia.  The head of the clitoris,
and  the external orifice of  the meatus urinse, appeared as in the
natural structure of a female ; but there were  no nymphas.   The
labia were more pendulous than usual, and  contained each  of
them a body  resembling a testicle of moderate size, with its
cord.  The mamma? resembled those of a woman.   The person
had no desire or partiality whatever for either sex."*
  The Memoirs of the Academy of Dijon contain the following
case, communicated by M. Maret.  Hubert J. Pierre died at the hos-
pital in October,  1767, aged seventeen years. Particular circum-
stances had led to  a suspicion of his sex, and these induced an ex-
amination after death.  His general appearance was more delicate
than that of the male; and there was no down on his chin or upper
lip.  The breasts were of the middle size, and had each a large are-
ola.  The bust resembled a female; but the lower part of the body
had not that  enlargement about  the hips, which is  usually ob-
served at his age.  On examining the sexual organs, a body four
inches in length, and of proportionate thickness,  resembling the
penis, was found at the symphysis pubis.  It was furnished with
a prepuce to cover the glans; and at its extremity, where the
urethra usually opens,  was an indentation.  On raising this penis,
it was observed to  cover a  large fissure, the sides of which re-
sembled the labia of a female.  At the left side of this opening,
there was a small  round body like a testicle, but none  on the
* Morbid Anatomy, third edition, p. 410. 
DOUBTFUL SEX.
119
right; however, if the abdomen was pressed, a similar body de-
scended through the ring.   When the labia were pushed aside,
spongy bodies resembling the nymphas were seen; and between
these, and at their upper part, the urethra opened as in the  fe-
male, while  below these was  a very narrow aperture, covered
with a semilunar  membrane.   A small excrescence, placed late-
rally, and having the appearance of a  caruncula myrtiformis,
completed the similarity of  this fissure to the orifice of the va-
gina.   On further examination, the penis was found to be imper-
forate ; the testicle of the left side had its spermatic vessels and
vas deferens, which led  to the vesiculae  seminales. By making
an incision into  the  semilunar membrane, a canal one  inch in
length, and half an inch in diameter, was seen, situated between
the rectum and bladder.  Its identity with a vagina was however
destroyed, by finding at its lower part the verumontanum and
the seminal orifices;  from which, by pressure, a fluid, resembling
•semen in all its properties, flowed.   The most astonishing disco-
very was, however,  yet to  be  made.  The supposed  vagina,  to-
gether with the bladder and  testicles, was removed. An incision
was made down to the body noticed on the right side.  It was
contained in a sac, filled with  a limpid and red coloured  liquor.
From its upper part on the right side, a fallopian tube passed off,
which was prepared  to embrace an ovarium placed near it.  It
seemed thus proved that the  body  in  question  was a uterus,
though a very small  and imperfect one; and on blowing into it,
air passed through to the tube.*
  Giraud dissected a subject at the Hotel Dieu, who, during life,
had been received in society as a woman, and was connected by
a voluntary association with a  man, who had for a long time per-
formed the duties of  a husband towards her.  The bust had a
masculine appearance;  the  chin was covered with firm hairs,
very analogous to a beard;  the neck was thick, the chest broad,
the bosom slightly swollen, and the nipples exactly like those of
a man.  The lower half of the body presented a contrast to these
characters.   The soft and  delicate contour of the lower limbs,
the rounded hips,  the broad pelvis, and the greater separation of
the thighs, approximated decidedly to the female  form.   An im-
perforate penis, two testicles, and an  appearance  of vulva, wrere
* Mahon, vol. 1, p. 100. 
120
DOUBTFUL SEX.
the external generative organs.  The  testes were well  formed;
the vesiculae seminales imperfect;  and the urethra opened at the
cul-de-sac which represented the vagina.*
   The following is a very recent case, exhibited in July, 1834, at
Liverpool.  The individual is a native of Saxony, with the voice
and features of  a  man, a light  beard on the upper  lip, and the
breasts not developed.  He is thirty-four years old, and was con-
sidered at birth  as a female, and  dressed as such until about a
year  since, when Blumenbach and Tiedemann told him that he
was a man.  He then assumed the male attire.  The scrotum is
divided along the  median line, resembling the female labia;  and
each  of these contains a testis.   On  separating them, the glans
penis, resembling a clitoris, is seen; it is covered with a prepuce,
and has a fissure,  but is imperforate.   About an  inch below, and
nearly  half an inch to each side of the raphe, are two very small
orifices, through which, at periods of excitement, the semen flows.
Still lower is a  canal three inches long, impervious except at a
narrow orifice  through which the urine flows.   He  had strong
sexual  desires.t
   The case of  the child examined by Professor Ackermann of
Jena, probably  belongs to this division.  It was born  at Mentz on
the 14th of June, 1803, and died on the 25th of the month follow-
 ing.  Dr. Ackermann viewed the body during life, and also dis-
 sected it after death.  The penis was  little more than an  inch
 long; the glans was distinct about one-third of its whole length,
 but imperforated;  there was, however, a  depression where the
 urethra should  have opened.  On  raising this cliteroid penis, as he
 calls it,  an opening was observed, which was  the  orifice of a
 canal one inch in length.  The uterus and urethra opened into
 the posterior part of this  canal;  and the testicles, with their tu-
 nicas vaginales, were found in the labia.   As to  the internal or-
 gans, the urinary bladder occupied  its usual place;  one  of the
 testicles  had descended into the  scrotum, and the other had ad-
 vanced no farther than  the  groin;  both were  perfect, and had
 their usual appendages complete.  In the place usually occupied

   * Rees's Cyclopedia, Art. Generation. The case is quoted  from the Journal de
 Medecine, par Sedillot.
   t American Journal of Medical Sciences, vol. 15, p. 191, from the Liverpool Me-
 dical Journal.  A more accurate account, by Dr. Handyside, with a plate, will be
 found in the Edinburgh Medical and Surgical Journal, vol. 43, p. 313.  This indivi-
 dual has constant connexion with the male sex. 
DOUBTFUL SEX.
121
by the  female uterus, there was found  an organ closely resem-
bling it.  Its figure was pyriform, and  it opened by a round ori-
fice in the vagina urethralis, as he styles the canal, a little before
the orifice of the urethra.  The vasa  deferentia penetrated the
substance of the uterus at the points where the fallopian tubes are
usually placed, but  without opening here, passed on, and at length
terminated by very small orifices in the vagina urethralis.*
   Other cases are  mentioned by various authors, but  the  simi-
larity between them is so  great as to render a farther detail unne-
cessary.   The examples now given, show the greatest deviations
from the perfect structure that have been observed;  and it will
lead  to clearer views concerning them, if we adopt the opinions
of the  reviewer of Ackermann, in  the journal already quoted.
" In  the  two sexes, there are organs which correspond to  each
other, and which may be called  analogous organs—the penis to
the clitoris, the scrotum to the labia, the testes to the ovaria, and
the prostate to the  uterus;  and it farther appears, that of  these
analogous organs, no two were ever found together in  the  same
individual.   No monster  has  baen  described, having both a  penis
and clitoris; nor with a testis  and ovarium of  the same side—we
may venture to say,  with testes and ovaria; nor one having a pros-
tate and  uterus."  This  distinction will invalidate the account
given by Maret, so  far as it relates to the presence of an ovarium
and a fallopian  tube; but I suggest whether it  is not  probable
that the organ in question was a testicle, and its  appendages mal-
formed.  The idea of our author is also no doubt correct, that
in repeated instances the  part deemed  to  be  a  uterus  is  a mal-
formed prostate.  " The proof rises almost to certainty,  when we
recollect  that the prostate is  the only male organ not accounted
for in the hermaphrodite."f  If these  views  be adopted, it will
follow as a result, that beings of this class are  to be considered
as males; and it need hardly be added that they are impotent.^
   There  are, however, two  cases  on  record, which we  cannot

  * Edinburgh Medical and Surgical Journal, vol. 3, p. 202.  Review ofu Jnfantis
Androgyni Historia et Ichnographia," &c. Auctore I. F. Ackermann.
  t Edinburgh Medical and Surgical Journal, vol.  3, p. 208.
  t To this division, among recent cases, probably belongs  that at Guy's Hospital,
of a person aged twenty, in January 1828.  Lancet, N. S. vol.  1, p. 593; and Ame-
rican Journal of Medical Sciences, vol. 2, p. 412.   A case much resembling  that of
H. J. Pierre, is said to have recently  occurred in  Sicily, in an individual dead at
the age of eighty, and who had been  married as a female.  London Med. Gaz. vol.
10, p. 64.
   VOL. I.                        11 
122
DOUBTFUL SEX.
explain  in conformity to the above opinions.  Even if the first
be deemed, and it doubtless is, imperfect; yet the last is vouch-
ed for by one of the most emminent anatomists of the present
day.
  The late Dr. Handy  of New York, in a letter to Dr. Edward
Miller, dated at Lisbon in 1807, states that he saw at that place,
a Portuguese, twenty-eight years old, of a tall and slender but
masculine figure.  " The penis and testicles with their common
covering, the scrotum, are in the usual situation, of the form and
appearance  and very  nearly  of  the  size of those of an adult.
The preputium covers the glans completely, and admits of being
partially retracted.  On  the introduction of  a probe, the  male
urethra appeared to be pervious  about a third of its length, be-
yond which the resistance to its passage wras insuperable by any
ordinary justifiable  force.  There is a tendency to the growth of
a beard, which is kept  short by clipping with scissors.  The fe-
male parts do not  differ from those of the more  perfect sex,
except in the size of the  labia, which are not  so prominent, and
also that the whole  of  the external  organs appear to be situated
nearer the rectum, and are not surrounded with the usual quan-
tity  of  hair.  The  thighs do  not possess the tapering fullness
common to the exquisitely formed female;  the ossa ilia are less
expanded, and the breasts are very small.  In voice and manners
the female predominates.   She menstruates regularly, was twice
pregnant, and miscarried in the third and fifth months of gesta-
tion.  During  copulation, the  penis becomes erect.  There has
never existed an  inclination for commerce with the female, under
any circumstances  of excitement of the venereal passion.  She
at present labours under the venereal disease, and has warts  on
the labia."*
  Orfila and Marc  both notice this case, and urge that a perfect
anatomical  examination  of  the supposed  testicles w7as wanting.
They incline to the idea that the partially perforated penis was of
a cliteroid nature.   They agree however in deeming the subject
a female.
  In the following case however, the dissection was ample.  It
was related to the  Academy of Sciences of Berlin in 1825, by
Rudolphi.   The  body was that of  a  child, who had died, as it
was said, seven  days  after birth;  but  from  the developement
* New York Medical Repository, vol. 12, p. 86. 
DOUBTFUL SEX.
123
present, it was probably several weeks old. " The penis was divided

inferiorly;  the right side of the scrotum contained a testicle, the

left side was small and empty.   There was a uterus which com-

municated  at its superior and  left portion with a fallopian tube,

behind which was  an ovary destitute of its ligament.  On the

right side, there was neither fallopian tube, nor ovary, nor  liga-

ment, but a  true testicle  from the  epididymis of  which there

arose a vas deferens.  Below the uterus, there was a  hard,  flat-

tened, ovoid body,  which when divided, exhibited a cavity with

thick parietes.   The uterus  terminated  above  in the parietes  of

this  body, and at the right, the  vas deferens, without however

penetrating  into  its cavity.   Finally, at its  inferior  part, there

was  a  true  vagina,  which terminated in  a  cul-de-sac.    The

urethra opened into the  bladder, which was natural.   The anus,

rectum and  the other  organs were  naturally formed.   Professor

Rudolphi  considered the ovoid body, situated beneath the uterus,

as the prostate and vesiculae seminales in a rudimental state."*


   2.  Male individuals with unusual formations of the urinary and

generative organs, (androgyni.)   " The ambiguity in these cases

depends  commonly on  the  testes  being  contained in separate

parallel folds of the  skin; the penis being imperforate, and the

urethra opening in  the perinaeum, on the surface of  a blind aper-

ture, having  a red and tender appearance, and easily mistaken


   * American Journal of Medical Sciences, vol. 9, p. 499.
   The jcase of Maria Derrier, (Carl Durrge) which in the last edition, I referred
with srimc-iiesitation to the  second class, must now be arranged under this.
   Durrge died  at Bonn in  March 1835, of apoplexy, aged 55 years.   He was  ex-
amined by Professor Mayer, and from his account, I take the following facts:
  Osiander,  Kopp, Sommering, Cooper, Lawrence, Green, and the Medical Faculty
of Paris, pronounced him  during life, a malformed  male.  Hufeland,  Gall and
Brookes, a female, while some considered him to belong to neither sex.  In his 20th
year,  he had discharges of blood from the genital organs three times, but none since.
His beard grew sparingly and  the breasts were large.
  The penis (imperforate) was about two inches long, and retracted beneath the skin of
the mons veneris, and immediately at its lowe"r surface, was a small opening of  the
size of a large quill. A septum divided this from a large canal, which represents the va-
gina.   The urethra is thus at the root of the penis, and immediately surrounded by
the prostate gland.  Immediately back of the vagina, is the uterus.   The fallopian
tubes open regularly into the fundus uteri and upon the left side behind and without
the corresponding ostium abdominale  of the fallopian tube, is a small, flat, round
body, resembling an ovarium.   On the right side, close to the abdominal end of the
fallopian tube, there is a small  flat body, to which a string of vessels and  muscular
fibre is attached.
  Dr. Mayer thus supposes this  case to present characteristics of both sexes—the
withered testicle—the penis and the prostate gland; and on the other hand,  the
uterus, vagina,  fallopian tubes  and  ovariuuirlike body.   London Med. Gazette, vol.
18, p.  217. 
124
DOUBTFUL SEX.
for the vagina.  In such an individual, the penis being imperfo-
rate, and probably smaller than usual, is considered as a large
clitoris; the folds of  the skin holding the testes, very much  re-
semble the female labia, and the red slit behind which the urethra
ends, is tolerably analogous to the vagina."*   A marine, answer-
ing perfectly to this description, was sent to the hospital at Toulon
in  1799, as a hermaphrodite.   He was  about twenty years of
age, with little beard, and breasts resembling those  of a girl at
sixteen.  A discharge from the  service  was  procured for him.f
Individuals of this  class, appear to have the  testes and vesiculae
seminales perfect, but they must evidently be impotent from the
imperforation  of the penis, and the opening of the  ejaculatory
ducts  near the  perinaeum.   Here the  semen is of  course  ex-
pelled.
   Deviations  less marked, have  also been observed, and  among
others, a confinement of the penis to the  scrotum, by  a particular
formation of the integuments, has occasioned persons to  be re-
puted hermaphrodites.   In these, the urine passes in the direction
downwards, and the confinement of the organ will  not allow of
its performing the sexual functions.  Mr. Brand relates, that be-
ing consulted in  1779, on occasion of some complaint in the groin
about  a child,  seven years of age, he found a vicious  structure of
the sexual organs, consisting in the presence of such an unna-
tural integument.   This child had been baptized and brought up
a  girl, but it was evident to him erroneously, as the male organs
were  present.  By a slight incision, he  liberated  the restricted
parts,  and proved  to the parents, that they had mistaken a boy
for a girl.J
   * Rees' Cyclopedia, art. Generation.
   + Fodere, vol. 1, p. 357.  An instructive case, accompanied with a plate, is related
by J. S. Soden, surgeon at  Coventry.  The individual resided at that place, and wore
the attire of a female.  The beard was strong, the breasts flat, and the hips straight.
The genital organs generally resembled the above description. The scrotum contained
the testicles, but it was divided, and resembled the labia.   The urine was evacuated
at the perinaeum.  (Edinburgh Med. and Surg. Journal, vol. 4, p. 32.)  There cer-
tainly can be no doubt of this person being a male.
   The Saxon case, that I have described on a previous page, might with propriety
he arranged under this  division, were it not for some circumstances, mentioned in
Dr. Handyside's Narrative.
   X Brand, quoted in Brewster's Edinburgh Encyclopedia, art. Hermaphrodites.
   " Myself passing  by Vitny  le Francois, a town  in Champagne, saw a man, the
Bishop of Soissons had  in confirmation, called German, whom all the inhabitants
of the place had known to be  a girl till  two and twenty years of age, called Mary.
He was at the time of my being there very full of beard, old and not married, who
told us, that by straining himself in a leap, his male instruments came out."—Mon*
taigne's Essays.  Ambrose Pare also mentions this  case. 
DOUBTFUL SEX.
125
   Lastly, males  are  supposed to be hermaphrodites, when  the

 urinary bladder is deficient, together with the lower and anterior

 portion of the abdominal muscles, and  integuments, while a red

 and  sensitive  mass of an  irregular and fungous like  substance,

 with the ureters opening on it, is placed at  the lower part of the

 abdomen.   I have  already  referred to the elaborate essay of Dr.

 Duncan, jun. on this subject.   He has collected a great number

 of cases, and from his deductions, it appears that important alter-

 ations  in the generative organs are generally observed, in conse-

 quence of this  deformity.   The  urethra  is  deficient, and  the

 penis consequently imperforate.   It is also very short—never ex-

 ceeding two inches, even in the  adult.   The vesiculae seminales

 open near the  fungous mass  above mentioned, or in the urethra,

 or in a small tubercle at the root of the penis.  The  testicles are

 generally natural, either contained in the scrotum, or  they have

 not descended.   The sexual appetite in some of these individuals

 has been weak;  in  others strong; in others altogether wanting.*

   They are not capable of procreating the species, in  conse-

 quence of the  shortness and imperforation  of the penis, and  the
 seminal ducts  opening externally.f


   * Edinburgh Medical and Surgical Journal, vol. 1, p. 54 to 58.  The following is
 an exception of the general rule, unless we suppose  the mal-conformation  to have
 been slight, and the prevalent opinion to have been drawn from the appearance. " In
 the year preceding (1459) there was a bairn which had the kinds of male and fe-
 male, called in our language a scarcht, in whom man's nature did prevail: But  be-
 cause  his disposition and  portraiture of body represented a woman, in a man's house
 of Linlithgow, he  associated in bedding with the goodman's daughter of the house,
 and made her to conceive a child ;  which being divulgate through the country, and
 the matrons understanding this damsel deceived on in this manner, and being of-
 fended that the monstrous beast should set himself forth as a woman, being a very
 man, they got him accused and convicted in judgment for to be burnt quick, for
 this shameful behaviour."  (Piscottie's History of Scotland.  Edinburgh, 1778,
 p. 104.)
  t Under this head, I apprehend, must be arranged the  case of Sarah Tibbert, aged
 six, admitted into St. George's Hospital, London, 1825.  (Lancet, vol. 8, p. 95.)
  That of a negro  child, aged six,  described by Dr. Heustis of Alabama, in whom
 the penis is perforated, but the urethra opens externally  at its root.   The rudiments
 of testicles are felt in the sacculi on each side  of the scrotum.  (American  Journal
 of Medical Sciences, vol. 7, p. 557.)
  One By Dr. Hervey, of an individual who died at  the Hospital  of Bourg in
 France, aged  seventeen.  (American Journal  of Medical Sciences, vol. 3, p. 185,
 from the Journal General.)
  Mary Cannon, who died at Guy's Hospital in 1829, aged fifty-five or sixty.  This
hybrid formerly wore man's dress, had worked as a labourer, and had been engaged
in pugilistic combats.  For the last seven or eight years, she appeared as a female.
(Lancet,  N. S. vol.  5, p. 181; and London Medical Gazette.)
  Marie  Marguerite, whose history  was given  by Dr. Worbe to the Faculty of Medi-
cine in Paris in 1815.  (Dictionnaire des Sciences Medicales, Art. Hermaphrodite.)
  The case by Gendrin, where the  person was considered a female until the age of
                                 11* 
126
DOUBTFUL SEX.
  3. Females with unusual formations  of the generative organs,

(androgynae.)   An enlargement of the clitoris  is  probably  the

most common  cause that  has  led to  mistakes concerning this

sex.  It  seldom occurs in Europe, but  is quite frequent in  warm

climates, insomuch that excision of  it  is  said to be  sometimes

practised.
  Sir Everard Home relates  an instance in a Mandingo negress,

aged twenty-four  years.   Her breasts were very flat; her voice

was  rough,  and her  countenance masculine.   The  clitoris was

two inches  long,  and in thickness resembling a  common-sized

thumb; when viewed at some distance, the end appeared  round,

and of a red colour;  but on a closer inspection, was found to be

more pointed than that  of a  penis—not flat below, and  having

neither prepuce nor perforation.   When handled, it became half

erected,  and was  then three  inches long, and  much larger  than

before; and on voiding her  urine, she was obliged to lift it up,


nineteen, (in 1831,) when, on examination, the  registry of baptism was ordered to
be altered, and the surname changed to that of a male.  (Medico-Chirurgical Review,
vol. 21, p. 172, from the Revue Medicale.)
  And probably the two cases described by Dupuytren to the Royal Academy of
Medicine at Paris in 1830.  (North American Medical and Surgical Journal, v. 12,
p. 224.)
  A German recently exhibited to the  Royal Academy of Medicine, by M. Bally.
The scrotum had  a deep furrow, on each side of which was contained a testicle.
There was an imperforate penis, an inch and a half long and below it a passage
leading to the bladder and through which the urine flows. The urethra had become
thus enormously distended in consequence of repeated acts of copulation,  to which
he had submitted in consequence of supposing himself a female.  His appearance
is of that sex and he states that the enlargement was gradually made. When in-
formed that he was a  male, he assumed  the proper dress, but found himself Impo-
tent.  Amer, Journal Med. Sciences, vol. 20, p. 479, from Gazette Des Hopitaux.
  Nor can I, in concluding these references, avoid giving an abridged detail of the
following case from Dr. Davis. A person in London was baptized as a  female—
dressed as such, and during the years of childhood and adolescence, believed herself
belonging  to that sex. Her passions became so far developed as to cause her to
make advances to a gentleman ; who being disappointed, committed a furious breach
of the peace.  The police took both into custody, and this finally led to an  examina-
tion, at which  Dr. Davis, Prof. Pattison and several others, were present.  A sub-
stance resembling the clitoris, but a little larger, was seen, having about half an
inch of its gland, uncovered by its prepuce.  Below the root of this cliteroid body,
on raising it a  little, a small orifice was observed communicating with the bladder.
Precisely at the usual locality of the opening into the vagina, there was a round
aperture of scarcely half an inch in diameter.  This aperture was surrounded by a
cameo-membranous structure of no great thickness, but  of considerable firmness
and tenacily.  Dr. D. experienced so much resistance on attempting to pass the
finger, that he did not dare to continue it; but on introducing a bougie, a cul-de-sac
 was found at about an inch beyond.  On each side of this opening were two full
. developed  pendulous  bodies, evidently  testes, which communicated by  spermatic
 cords, of the usual bulk and feel, with the abdominal cavity.  The breasts were not
 developed, and the voice was rough.   Dr. Davis very justly considers the sex of this
 person as masculine.  (Obstetric Medicine, p. 63.) 
DOUBTFUL SEX.                     127
as it completely covered the orifice  of the urethra.  The other
parts of the female organs were found to be  in  a natural state.*
It is proper to observe in this place, that in new-born  children
the clitoris is proportionably very large.
  In 1814, a female named Mary Madeline Lefort, excited great
attention in Paris, and subsequently in London, as a reputed  her-
maphrodite.   She was examined  by a committee  of  the Faculte
de Medicine of that city, (consisting of Chaussier, Petit-Radel and
Beclard;)  and  from their report and the  remarks of other ob-
servers, the following  particulars are drawn.  The breasts were
sufficiently developed, and there were perfect areolae on the nip-
ples.   The upper lip and  chin were covered with a beard.   The
clitoris resembling much  a small penis, an inch  and a half long
and invested with a moveable prepuce, emerged from under the
symphysis pubis, and  shooting out  from  between the  superior
part of the labia, terminafed by an imperforated glans.  At the
root of the clitoris is  an opening, through which  the  urine  and
menses flowed.   On separating the labia, a thick membrane  was
seen to extend  from one to the other,  and from  the lower angle
formed by their union, upwards as far as the prominent clitoris
already described.  Dr. Granville supposed that this membranous
partition covers the orifice of  the vagina, and  that an incision
made into it would at once expose that cavity in  its natural state.
Mr. Brookes, the anatomist, proposed to  effect  an enlargement
of the opening  of the vagina, but  the subject of the malformation
refused, calculating no doubt that such an operation might  have
injured the interests of her gainful vocation. An incomplete urethra
was in this case produced under the clitoris,  and it was this cir-
cumstance which constituted its resemblance to  a penis.  But the

  * See Home  on  Hermaphrodites.  (Philos. Trans, vol. 89, p. 157.)  Many other
cases are said to be collected in the work of Dr. Parsons on Hermaphrodites.  (See
a case by him of a French girl, in Philosophical Transactions, vol. 47, p. 142.)
  I have stated in the text, that this malconformation seldom occurs in temperate
climates; but I may add, that a sufficiency of cases are related.  " An entire quarto
thickly printed page of references to cases of monstrous clitorides, is given in the
Ephem. Germ."  (Davis' Obstetric Medicine, p. 60.)  This author refers to a case
of extirpation by Mr. Richard Simmons, of London, in which the length was nine
inches, and the circumference of the largest part of the stem five inches.  Its general
appearance was very smooth and fleshy, and its upper surface covered with cuticle.
(Ibidem, p. 61.)  My colleague, Professor Delamater, has mentioned to me a case
within his own observation, where the husband  became extremely dissatisfied, and
indeed thought of applying for a divorce, on account of the impediments he met with
from what proved to be an enlarged clitoris.  Its removal obviated his objections. 
 128                     DOUBTFUL SEX.

presence of organs essential to the female, such as the uterus and
vagina, leave no doubt of her sex.*
  A prolapsus  of the uterus is another circumstance which  has
occasioned females  to be  deemed  hermaphrodites.  Margaret
Malaure came to Paris in  1693,  dressed as a man.  She consi-
dered herself as possessing the organs of both sexes, and stated
that she was able  to  employ  both.   Her  person  was exhibited ;
and several physicians  and  surgeons agreed with the  common
opinion so much, as to give certificates that she was an herma-
phrodite.   Saviard, an eminent surgeon, was, however,  incredu-
lous.   He  examined  her in  the  presence of his brother practi-
tioners,  and  found  that she had a prolapsus  uteri, which  he
reduced.f
  Sir Everard Home mentions a similar case of  a French wo-
man, whom he himself examined. She was shown as a curiosity;
and in the course  of  a few weeks, made £400.   The prolapsus
was evident on inspection.  She, however, pretended to  have the
power of a male.J

  It will readily be observed  from the above illustrations, that all
the cases of supposed hermaphrodites are referable to the classes
now described.   They are  either males, with some unusual orga-
nization or position  of  the urinary  or generative organs;  or
females with an enlarged clitoris, or prolapsed uterus ; or indivi-
duals in whom  the generative  organs have  not  produced their
usual effect in influencing the developement of the body.§   Thus
it is evident, that instead of combining the powers of both sexes,
they are for the  most part incapable of exerting any sexual func-
tion. ||

  * London  Medical Repository,  vol. 4, p. 414.  Orfila's Lecons, vol. 1,  p. 153.
Davis's Obstetric Medicine, p. 62.  Elliotson's  Blumenbach, p. 420, 422. Cyclope-
dia of Practical Medicine, Art. Sex, (doubtful,) by Dr. Beatty.  Medico-Chirurgical
Review, vol. 31, p. 120.
  Parent-Duchatelet, speaks of a large clitoris occurring in a prostitute in Paris.  It
was three inches long and of the  thickness of the ring finger, with a well-formed
glans and covered with a prepuce—" c'etait, a s'y meprendre, la verge d'unenfant de
douze a quatorze  ans, peu  avant sa  puberte."  De La  Prostitution, vol. 1, p. 220.
This female had never menstruated and the uterus was probably wanting.
  t Mahon, vol. 1, p. 96.
  X Home ut antea.  A  case similar to the above is related in Valentini Pan-
dectae, vol. 1, p. 38.
  § In a  recent discussion  at the  Academy of Medicine at Paris, Adelon, a very
high authority, maintained  that all the cases were referable to one or other of the
above classes; and that there never  was "a coexistence of the parts belonging to,
or characteristic of either sex, in one being.'* (Med. Chir. Review, vol. 24, p. 237.)
  || Velpeau, in his  Midwifery, (American edition,  p. 81,) has suggested  that in 
                        DOUBTFUL SEX.                      129

  Yet the prejudices of ancient nations seem to have marked
these unfortunate individuals  as objects of persecution,  and to
have subjected  them to the  operation  of the most absurd and1
cruel laws. Diodorus mentions that they had been burned by the
Athenians and Romans.  At an early period of Roman history,
a law was enacted, that every child of this description should be
shut up in a chest,  and  thrown into the sea; and Livy  gives  an
instance, where, on some difficulty with respect to the  sex  of a
newly born infant,  it was directed  to  be thrown into the sea—
tanquam fcedum et  turpe prodigium.*  The  Jewish Talmud, we
are  told, contains many ordinances founded on the apparent pre-
dominance of sex.
   The canon and civil  law have also many enactments concern-
ing  them.  Among other questions vigorously debated, was that
whether they should be allowed  to marry;  and it appears that
they were even not prevented ;  but if the two sexes were equal,
a choice of the object was left.   Some learned  opinions on  this
subject may be  found in Valentini.f
   Hermaphrodites  could not,  however, be promoted to holy or-
ders, on account of their  deformity  or  monstrosity; nor  could
they be appointed judges, " because they  are ranked with  in-
famous persons, to whom the  gates of dignity  should  not be
opened."
   An old French law allowed them  great latitude.  It enacted
that hermaphrodites should choose one sex,  and keep to it.J
   These  absurd notions and  practices  have  now disappeared;
but  the subject is, notwithstanding, important on many accounts,
as these unusual deviations often render the sex of an individual
doubtful, and impose  even on professional persons. The decision
may be important in deciding the employment in life of an  indi-
vidual, the descent  of property,  and the judicial decisions  con-
cerning impotence or  sterility.  Thus,  Mr. Ferrein, a modern
physician, informs  us, that he was consulted by the relatives of a
young nobleman labouring under a dubious conformation, who, if

some of the supposed cases  of hermaphrodism, congenital hernia of the ovaries
may be mistaken for testicles.  He refers to this the case of Prof. Mayer of Bonn,
and also one examined by Marjolin. In the former, (a child six months old,) there
were  a uterus, vagina and fallopian tubes;  while on the sides, there were folds
of the skin like a split scrotum, with oval bodies in each. The clitoris was separated
at its glans by a fissure.  (Lancet, vol. 9, p. 169, from Graefe's Journal.)
  * Livy, 27, 37.  Eutropius, 4, 36.
  t Novcllae Cas. 10, de matrimonio hermaphroditi.      X Male, p. 278. 
130
DOUBTFUL SEX.
a male, as was commonly believed by them, would inherit a con-
siderable estate, but to which he could have no right if he be-
longed to the other sex.  The whole external mien resembled
that of girls of twelve years of age ;  the breasts were quite  flat,
and the voice masculine. An external sexual organ of small size
was present, but without a urethra.  In the scrotum was a deep
fissure, through  which  the  urine was  discharged.   He was in-
duced to declare her a female, and thus she would consequently
lose the expected inheritance.   This decision is, however,  incor-
rect, at least if we adopt the views already laid down.
   The following circumstances are worthy of notice, in forming
our opinions on contested cases.  The beard, the hair on various
parts of the body—the desires excited by the presence of women—
the testes and  their cords, and the comparatively greater breadth
of the shoulders than of the pelvis and  hips,  show us that the in-
dividual  is a man.  The smoothness and softness of the body in
general—the absence of the beard, and of hair on the body—the
menstrual discharge—the want of testes, and the superior breadth
of the hips, prove the individual to be a woman.
   On proceeding to the sexual organs, a male with a fissure in
the perinaeum, and an imperforate penis,  may be ascertained by
the size of the penis; by the different organization of the prepuce
from that which covers the clitoris;  by the absence of nymphae
and hymen, and probably by the presence of testes. The different
relation of the fissure in the perinaeum  to the penis, from that of
the meatus urinarius to the clitoris in the female, will assist the
decision; as also the want  of power  to pass an instrument to-
wards the situation of the uterus.
   On the other hand, a female is indicated by the size of the cli-
toris, and  its  different shape;  by the  connexion of its prepuce
with the nymphae, and the presence of the latter parts;  by  the
separate opening of  the vagina and meatus urinarius, and by the
presence of the hymen, and the absence of the testicles.
   All these circumstances  now enumerated, tend to assist us in
viewing the adult; but the difficulty is  much increased with new-
born children.  In such instances, a close and accurate examina-
tion is required, founded on the distinctions already laid down, so
far as they are applicable.*

  * I am much indebted, on this subject, to the articles Generation in Rees' Cyclo- 
DOUBTFUL SEX.
131
  The English common law on this subject, and which of course
is binding in this country, is thus  laid down by Blackstone and
Coke.  " A  monster having deformity in  any part of its body,
yet if it hath human shape, may inherit."*  And  " every heir is
either a male or a female, or an hermaphrodite, that is both male
and female.   And an hermaphrodite (which  is also called andro-
gynus) shall be heir either as a male or female, according to that
kind of sex  which doth prevail; and accordingly  it ought to be
baptized."!  The same rule,  he observes,  (hermaphrodita tarn
masculo quam  femince comparatum secundum prcevalescentiam
sextis incalescentis,) guides in cases  concerning  tenant by  the
curtesy.J
   I prefer subjoining the views of Mr. J. G. St. Hilaire on Her-
maphrodism, to incorporating them in the body of this chapter.
They are taken from an analysis of his work in  the New Edin-
burgh Philosophical Journal, vol.  15, p. 298;  and the Lancet, N.
S. vol. 12, p. 48.§
   M. St.  Hilaire divides the generative  apparatus into six dif-
ferent portions or segments, three on a side, which in several re-
spects are independent of each other.   1 and 2. The deep-seated
organs, testicles and ovaries.   3, 4. The  middle  organs ; womb
or prostate, and  vesiculae seminales.  5, 6. The external organs,
penis and scrotum, clitoris and vulva.
   When the number of these parts is not changed, and there is
simply a  modification in  their developement, we have the first
class, or hermaphrodism without excess.  This again is subdivided
into four  orders:  1. Male  hermaphrodism, when the  generative
apparatus,  essentially  male,  presents in  some one portion the
form of a female organ—as a scrotal  fissure, resembling in some
respects a vulva.   2. Female H.  where the apparatus, though es-
sentially female, yet offers in some  one  portion the  form of a
male organ, as  in  the excessive developement  of the clitoris.
3. Neutral  H. when the portions of the  sexual apparatus are so
mixed up, and so ambiguous,  that it is impossible to ascertain to

nedia, and Hermaphrodites in Brewster's.   The former is an elaborate and able pro-
duction, from the pen of Mr. William Lawrence. See  also the article on this subject
by Marc, in the Dictionnaire des Sciences Medicales,  vol. 21; and for some discus-
sions on the Theory of Hermaphrodism, by Dr. Knox,  of Edinburgh; see Dr. Brew-
ster's Journal of Science, N. S. vol. 2, p. 323.
  * Blackstone, 2, 247.         t Coke Littleton, 8, a.          X Do. 29, b.
  § See also-Medico-Chirurg. Review, vol. 31, p.  114. 
132
DOUBTFUL SEX.
what sex the individual belongs.  4. Mixed H. when the organs
of the two  sexes are actually united and mixed in the same indi-
vidual.  Of this there are  several species:  Alternate, when the
deep organs belong to one sex, and the middle to the other, while
the external present a mixture of both.  Lateral. In this, the deep
and middle organs, when viewed on one side of the median line,
appear to belong to the male sex, while on the other they are fe-
male ; the  external organs, as in the former  species, are partly
male and partly female.  Hemilateral.  Interchanging.
  The second class includes all anomalies with excess of parts,
and is divided into three orders : 1. Complex Male H. where we
find, with  an  apparatus essentially male,  some supernumerary
female organ, as a uterus, &c.   2.  Complex Female H. with the
addition of a male organ, as a testicle, &c. to a*n  apparatus es-
sentially female.   3. Bisexual H. where a male  and female ap-
paratus  exist  in  the  same  individual.  M. St. Hilaire  allows,
however, unequivocally, that the external organs (as a penis and
clitoris) have  never  been  found perfectly double.  " The  re-
searches of modern anatomists have completely set  at  rest the
long debated question of hermaphrodism, in the vulgar accepta-
tion of the word.  It is anatomically and physiologically im-
possible."
  " With respect to legal medicine, it is sufficient for me to point
out  here,"  says  the author, " the insufficiency of the precepts
given by authors for the determination of the  sex in  doubtful
cases—precepts  which have appeared  exact, only because there
had been but a very few of the  combinations distinguished which
nature presents.   This difficulty in distinguishing  the sex, is the
consequence of the general fact, that while the internal organs
vary almost to  infinity in number, structure  and  arrangement,
(being either internal male—internal female—a double set of or-
gans, which are  male and  female—or finally ambiguous, being
neither male nor female,) the external ones preserve their normal
number ; and  the modifications which they present in other re-
spects, being intermediate between the male and female sexes, are
included within  limits sufficiently narrow.   It is then impossible
that a particular arrangement of the external organs could corre-
spond to each of the special combinations of the internal  organs."
  Lastly,  the  author remarks, that legislation, admitting only
two grand classes of individuals, on  whom  it imposes  duties, 
DOUBTFUL SEX.
133
and grants  different and almost opposite  rights,  according to

their sex, does  not  truly embrace the entire of the cases; for

there are subjects who have really no sex, such  as neuter herma-

phrodites, and  hermaphrodites mixed  by superposition; and  on

the other hand,  certain individuals, the bisexual  hermaphrodites'

who present the two sexes united in the same degree.*


   If the reader will  compare  this analysis with the accompany-

ing chapter, he  will  readily observe in what respects the obser-

vations of M. St. Hilaire are to be deemed  original.  So  far  as

they relate to legal medicine, distinct from  the mere enunciation

of facts, we may presume  that little or no improvement  can be

made  in our existing law, unless  the mixed  class be  actually

precluded from the power of inheriting.

  * A remarkable case of this description, which occurred in Paris, to Prof. Bouil-
laud, the editor of the Journal Hebdomedaire, is given from that journal  in the Lan-
cet, N. S. vol. 12, p.  60; and Medico-Chir. Review, vol. 23, p. 237.  The  subject,
aged sixty-two, and a widower, who  died of cholera, was apparently a male; yet
on dissection, a womb with its  ovaries was found.  There was a perfect prostate
gland.  The testicles, vesiculae seminales, and vasa deferentia were wanting. The
penis had a well formed glans and prepuce. A vagina of about two inches long,
connected the uterus with the urethra.  The external genital organs of the  female
were entirely absent;  but the general conformation (except a thick but  soft  beard)
inclined to that sex.
  Geoffroy St. Hilaire and Manec observe on this case, that " We must distinguish
the organs of reproduction, and those of mere  copulation ; there  may be an amal-
gamation or co-existence of the latter, but not of the former."
VOL. I.
12 
CHAPTER V.
                              RAPE.


1. Signs of virginity—opinion of anatomists concerning them.  2. Signs of deflo-
  ration and rape; diseases that may be mistaken for the effects of violence; value
  to be attached to external injuries as proof.  Possibility of consummating a rape.
  False accusations.  Appearances when death has followed violation. Case of Mary
  Ashford. 3. Laws of various countries as to the violation of children under ten
  years of age. Credibility of witnesses in these cases.  Laws of various countries
  concerning  the  punishment of rape.  Discussion as to the circumstances which
  constitute the crime in law.  Diversity of decisions in England and this country.
  Late English law defining them, with decisions under the same. 4.  Whether the
  presence of the  venereal in the female should invalidate her accusation.  Of rape
  during sleep, without the female's knowledge. Of pregnancy following rape.  Law
  on this point.  Of pregnancy following defloration.


  No case  can occur, in which public feeling is more warmly or

justly excited,  than where  an attempt is made to injure or destroy

the purity of the female.  According  to  our system of laws, the

testimony of the insulted individual is sufficient  to condemn the

criminal; yet  notwithstanding this correct disposition, it not un-

frequently occurs, that  the opinion of the physician is required,

in order to elucidate various difficulties connected with the accu-

sation.  I shall,  therefore, follow the plan pursued by all syste-

matic writers  on this  subject, and  commence with a notice of

the signs of virginity.  A knowledge of these is generally required

in cases where children of a tender age  have been abused;  and

again, they need to be  known in those  instances, where malicious

charges  have  been made  by abandoned females.   No  remark

can be more correct than that of  Sir Matthew Hale, concerning

this  crime: "• It  is  an  accusation,"  says  he,  " easy to be made

and harder to  be proved, but harder to be defended by the party

accused  though  innocent."   The  signs of rape will necessarily

form  the second division; thirdly, the laws  of various countries

on that crime, and  lastly,  an examination of some  medico-legal

questions connected with the subject. 
RAPE.
135
   1. The  physical signs of virginity have been the subject of
keen discussion among anatomists and physiologists, and none of
them has led to greater  inquiry, than the existence of the hymen.
This is understood to be a membrane of a semilunar,  or  occa-
sionally of a circular form, which closes the orifice of the vagina,
leaving  however'  an  aperture  sufficiently large to permit the
menses to pass.*   A great difference of opinion has existed con-
cerning  its  presence.  Some distinguished  physiologists  have
denied its existence altogether, or in the cases where it is found,
consider it a non-natural or morbid  occurrence.  Among  these,
may be  enumerated,  Ambrose  Pare, Palfyn, Pinaeus, Columbus,
Dionis, and  Buffon.   " Columbus," says  Zacchias, " did not ob-
serve  it in more than one or two instances;  and  Fallopius, in
not more than three  females out of  thousands whom he dissect-
ed, "f  " Pare," says Mahon, " considers the presence of the hymen
as contrary  to nature; and states, that he searched  for it in vain
in females from three to twelve  years of age."J  Those on the
contrary,  who,  from  dissection, have believed in  its  presence
previous to sexual intercourse, or some other cause destroying it,
are Fabricius, Albinus, Ruysch, Morgagni, Haller, Diemerbroek,
Hiester, Riolan, Sabatier, Cuvier, Blumenbach, and I may add
Denman.  Haller  appears to have observed it in persons  of all
ages.§   Cuvier has not only found it in females, but has also ob-
served a fold answering to it in mammiferous animals  and thus
gives  strong  evidence of its existence  by analogy.||   Gavard,
who appears to have  dissected a great number of subjects at the
Hospital  de  la Salpetriere, and  also at  the  dissecting  room of
Desault,  states that he  constantly found this  membrane in the
foetus,  and in children  newly born.  In others of a more advanced
age  he also observed  it;  and in particular in a female fifty  years

  * Dr. Gross states, that in the majority of cases  observed by him, it was of an
oblong oval shape.  Western Journal Med. and Phys. Sciences, vol. 10, p. 56.
  t Zacchias, vol. 1, p. 376.                X Mahon, vol. 1, p. 118.
  § li Ego quidem in omnibus virginibus reperi, quarum aliquse adultse erant aetatis,
neque unquam desideravi, neque credo a puravirgine abesse.  Vidi hymenem bis in
foetu,  sexies in recens nata,  bis in puella aliquot septimanarum, ter  in annua, semel
mense 18, semel in bimula, bis  in sexenni, semel in decenni, semel  in 14 annorum
puella, semel in alia 17 annorum, semel in vetula."  (Elementa Physiologim, torn. 7,
pars 2, p. 95 and 97.)  Some satirical remarks  by Michaelis on the German anato-
mists finding this membrane, and the French  denying its existence, may be found
in his Commentaries, vol. 1, p.  482.  He quotes also the opinion of Roederer and
Wrisberg in favour of its presence, and also of its being a sign of virginity.
  || See on this point, Godman's Anatomical Investigations, p. 72, &c.; Lawrence's
Lectures on Physiology, London edition, p. 174. 
136
RAPE.
 old, whom he was called to sound, he found it untouched;  so also,
 in another, whom he attended with Professor Dubois.*
    The weight of testimony is  thus evidently  in favour of the
 affirmative of this question;  and the general sense of the profes-
 sion is certainly decidedly opposed to  considering  it  as a non-
 natural appearance.  The following circumstances, however, re-
 quire to be noted, before we form an opinion concerning  it as a
 sign of virginity.   It may be wanting from original mal-conforma-
 tion, or it may be destroyed by disease or some other cause,  and yet
 the female be pure.  Thus the first menstrual flux, if the aperture
 be small, may destroy  it—or  an accident,  as a fallf—or disease*
 as for example, an ulcer, may totally  obliterate it.  There have
 certainly  occurred instances, where  the  pressure of the con-
 fined menstrual fluid has  produced its  destruction.   Again, in
 the place of the  hymen,  are  sometimes found  the earunculse
 myrtiformes.   Tolberg,  according to Fodere, and also  Belloc,,
 have made this observation on dissection.  They were,  however,
 round, and without a cicatrix, and  in  this respect very distinct
 from the  organs  usually so termed.J   This membrane may, on
 the other hand, be present, and yet the female be unchaste ; nay
 she may become pregnant without having it destroyed.    Zacchias
 remarks, that it will not be ruptured when  it is thick and hard.
 A  disproportion between the organs,  or  connexion  during the
 presence of menstruation, or fluor albus, are also mentioned  by
 him.   Gavard, whom I have already mentioned, found it perfect
 in a female of thirteen years of age, who was labouring under the
 venereal.^
   In  those cases where this membrane  is found thiekened,  an

  * Fodere, vol. 4, p. 339. In a report by L. Senn, of La Maternite at Paris, on the
condition of the genital organs at birth, he states that in examining between three
and four hundred children from two to four years of age, he did not fail in a single
instance to find the hymen. Dewees' Midwifery, 3d edition, p. 48.
  " Nous ajouterons que tous les anatomistes modernes ne mettent plus en doute
existence de 1'hymen."   Devergie, vol. 1, p. 340.
  + Or as in the following case of a young woman admitted into St. Thomas' hospi-
tal, in July, 1828, under the care of Dr. Elliotson. She stated, that about six months
previous, she was lifting a person out of a coach, when she suddenly felt intense pain
in the back, and the uterus descended and protruded beyond the os externum   The
descent was accompanied by profuse hemorrhage.  She recovered and was married
and now came in for prolapsus uteri.   She declared, that before  her marriage she
was intact, and Dr. E. remarked on this, that a lesion of the hymen may result from
internal, as well as from external causes.  (Lancet, N. S. vol 2 d 734 \
  X Fodere, vol. 4. p. 343.  Belloc, p. 45.                   P    *
  § Fodere, vol. 4, p. 340.  Ricord, Surgeon to the Venereal Hospital at Paris, men-
tions a similar case. (Monthly Journal  Medico-Chirurgical Knowledge, No. 2, p. 37.) 
RAPE.                             137
operation has often  been necessary.  Pare  relates of a mother

who applied  to him  to examine it; and on dividing it, it was

seen to be of the thickness of parchment.*   A similar case hap-

pened to Ruysch, of a female during labour, in whom  he had not

only to divide the  hymen,  but  also another non-natural  mem-

brane placed farther back.  Immediately after the operation, the

child was born.f  Baudelocque,  Mauriceau, Denman, and other

waiters on midwifery,  adduce  many  instances illustrating  the

same fact.J

   These  observations  certainly  lead us to  doubt  whether  the

presence  or absence of the hymen deserves much, attention ; and

I  believe  the opinion of  physiologists  generally is,  that it is an

extremely equivocal sign.  I am, however, unwilling to go as far

as most of the later writers on legal medicine, who virtually re-

ject it altogether. While it must be allowed that it can very often

be destroyed by causes which do not impair  the chastity of the

   * Mahon, vol. 1, p. 118.
   t Fodere, vol. 4, p. 340.  See also vol. 1, p. 389, 390,  for similar and even more
extraordinary cases.
   X Capuron states, that  a  few years ago, he divided this membrane  in a female
during labour, and in a short period she was delivered of living twins.  (P. 32.)
   The following extract from so experienced a practitioner as Baudelocque, has some
incidental interest: " It is well known that the hymen is not always torn in the first
connexion, and that it has been found entire in some women at the time of labour.
I  can myself adduce two examples."  The first was in a young lady, who assured
him that she had merely  permitted the semen to  be shed on the interior parts of
the vulva, and did not allow the complete act. Here the hymen bound the vagina
 very closely, and  left but a  very small  opening.  She notwithstanding became
 pregnant, and the parts were found thus at labour.—In the other, the membrane alone
 resisted, for half an hour, all the efforts of the last periods of delivery.  Midwifery,
 v. 1, p. 217.)
   Additional cases are recorded, by Mr. Brennard, (London Medical Repository,
vol. 21, p. 398.)
   By Dr. Blundell, an eminent lecturer on midwifery in London.  " Four impregna-
tions," (says he,) "in which the  hymen remained unbroken, have fallen under my
notice; the diameter of the vaginal orifice not exceeding that of the  smaller finger,
 and this too though the  male  organ was  of ordinary  dimensions.  And again,
" I know of three cases in which the male organ was  not suffered to enter the
vagina at all, and where nevertheless, I  suppose from  the mere deposition of the
semen upon the vulva, impregnation took place."   See his Lectures in the Lancet,
N. S. vol. 3, p. 259, 260; vol. 4, p. 708.
   By Dr. Davis, particularly a case of cribriform,  hymen, Obstetric Medicine, p.
104, 105, 110.—By Dr. Kennedy, p. 31.
   By Dr. Montgomery, Cyclopedia of Practical Medicine, vol. 3, p. 495, Art. Preg.
nancy.  He quotes two cases, which deserve mention at least in this  place.  One
is from Marc, (Art. Violation, in  the Dictionnaire des Sciences Medicales.) A young
female,  severely  afflicted with syphilis, was brought to La Pitie.  The  hymen
was altogether wanting ; the vagina greatly dilated, and the external  genitals dis-
eased. She was cured ; and to the  astonishment of the medical observers,  a well-
formed semilunar hymen was found.—The other is from Nysten:  A young girl,
aged thirteen, had ovarian pregnancy, but had never menstruated: the vagina was
much contracted, and the hymen was perfect!!
                                  12* 
138
RAPE.
female, we are justified, I think, in attaching considerable import-

ance to its presence.*   It would be difficult to  support an accu-

sation of rape, where the hymen is  found entire.f I feel therefore

justified in retaining it among the signs  of virginity,  although ii

should always be considered in connexion  with other physical

proofs.;};
   2.  Narroivness of the vagina.  In children, this  part is extremely

small; but it  increases  in  size  as  they approach to the age of

puberty.  At that period, the developement produced by the  de-

termination of blood to the sexual  organs, causes a turgescence

and enlargement, which naturally  place the parts in closer con-

tact.  In  chaste females, also, rugae are  observed on  the  inner

surface of the vagina; and these are removed  by frequent con-

nexions, and destroyed by  one or two deliveries.

   But we cannot place much  reliance on this as  a sign.  It is

evident, that it must vary with the age of the individual, the tem-

perament and the state of  health.    In those of a sanguine  habit,

the parts  will  be most  contracted, while  on the other hand, if

fluor albus  or menorrhagia be present, there will be great dilata-

tion.  Parent-Duchatelet informs   us, as the result of  actual  in-

spection, that  the genital organs of many prostitutes, some indeed


   * Dr. Thomson censures me for retaining this sign, but it must be understood,
that I go not farther, than to say, that its presence  should be regarded.  Such, if I
understand him, is also his own opinion.
   t Smith, p. 397. A case is, however, given in East's Crown Law, (1, 438,) where
two surgeons swore that the hymen was entire. " But as this membrane was admit-
ted to be in some  subjects an inch, in others  an inch and a half, beyond the orifice of
the vagina, Ashurst, J. left it to the jury, whether any penetration  was proved: for
if there were  any, however small, the rape  was complete in law.  The jury found
the prisoner guilty." In this case, the female was ten years of age, and the  parts
 were stated to be so narrow that a finger could not  be  introduced. This decision
 was, however, at variance with the evidence usually required in such cases in England;
 and according to  the present statute law of that country, (see section 3 of this chap-
 ter,)  it would hardly be again made.  On  the trial of Gammon,  for a rape on a
 child under ten years of age, Mr. Woollett, a surgeon, stated that he found considerable
 local inflammation about the parts of the child ; that the hymen  had  been  recently
 ruptured, and that he had no doubt that penetration had taken place. Baron  Gurney,
 who  presided, observed, " I think, that if the hymen is not ruptured, there  is not
 a sufficient penetration to constitute this offence.  I know that there have been cases
 in which a less degree of penetration has been held to be sufficient, but I have always
 doubted the authority of these cases; and I have always thought, and still think,
 that  if there  is not a sufficient penetration to rupture the hymen, it is not a suffi-
 cient penetration to constitute this offence."  (5 Carrington and Payne's  Reports,
 321.  Rex v. Gammon.)
    X " In examining for the hymen in cases of rape, or  for purposes  of profes-
 sional opinion or treatment in many other cases, it will be necessary to separate the
 k-bia, and even the thighs, to a considerable distance from each other, before the
 hymen, in the event of its being present,  can be distinctly seen.,r  (Davis's Obst.
 Med. p. 99.) 
RAPE.
139
of advanced years, cannot be > distinguished from those  of the
virgin state.  And the inference drawn is " that degrees of am-
plitude and straitness of the vagina are, to many women, a natu-
ral and congenital state."*
   3. I have already mentioned, that in the place of  the hymen,
certain fleshy tubercles, termed carunculce myrtiformes, have been
observed by anatomists; and shall now add, that  a variety in
their appearance has been considered indicative of chastity or
unchastity.  Zacchias remarks, that in the former they are red,
tumid, and connected together  by fleshy cords; but in married
women (being situated at  the entrance  of the vagina) they are
found pale, flaccid, and the cords torn asunder.f   They are ge-
nerally  considered as the  remains of the hymen, " et corruptee
adeo pudicitice indicia."  They are then  found thick, red, and ob-
tuse at  their extremities, somewhat resembling a  myrtle-berry;
and from this supposition their name is derived.  They generally
disappear after frequent connexions or deliveries.
   It has, however, of late years been asserted, with  positiveness,
that the carunculae  and the hymen may be co-existent.   Of this
opinion, are  Dr. Hamilton of Edinburgh, Dr. Blundell and Dr.
Conquest;  all, as it would seem, from actual observation.!
   In addition to  the above, various signs have been enumerated
by authors.  These  I will  barely state, and refer the inquirer for
more minute details  to works on anatomy and midwifery.  Pain
during the first connexion, is  deemed a proof; although the pre-
sence of menstruation or  of disease may prevent  this in many

   * Edinburgh Med. and Surg. Journal, vol. 47, p.  225.  " On m'a fait remarquer
un jour, dans la prison de madelonnettes, une fille  de 51 ans, qui, depuis l'age de
quinze ans, se livrait dans Paris a la prostitution, et dont les parties genitales aurai-
ent pu etre confondues avec celles d'une vierge sortant de la puberte." Parent-Du.
chatelet.  De la Prostitution, 1, 215.  .
   t Zacchias, vol. 1, p. 378.
   X Ramsbotham's Lectures in London Med. Gazette, vol. 13,  p. 182; Blundell's
 Lectures in Lancet, N. S. vol. 4,  p. 641;  Conquest's Outlines, p. 17; Merat (Diet.
 Des Sciences Med. vol. 35, p. 143) is  of the same opinion.  Orfila, however, states,
 that in more than two hundred dissections made by  him of females from two to four-
 teen years of age, and in whom, of course, the hymen was present, he could not de-
 tect the presence of the carunculee.
   Velpeau says that the difference of opinion that exists, may be settled by what he
 deems his own discovery : " Four carunculae are commonly observed at the entrance
 of the vulvo-uterine canal, and which correspond to the four extremities of the re-
 spective diameters of this opening. Two of these, viz. that which is near the meatus
 and that  which is near the fourchette belong to the middle columns of the vagina,
 while the other two only are the remains of the hymen.  They may thus co-exist."
 He calls these last lateral caruncles.  (Midwifery, p. 55.) 
140
RAPE.
cases: so also blood from the rupture of the hymen.*  The red
and tumid appearance of the labia and nymphae, and the rupture
of the fourchette, are each extremely  uncertain signs, since the
latter does  not  generally occur until  delivery, and the  former
may be present  in the unchaste.
  It should  be observed with respect  to the  signs last enume-
rated, that although they may be present notwithstanding  the un-
chastity of the female, yet  their  absence is a proof against her.
If the labia and  nymphae have the appearance which indicates
previous connexion; if the fourchette  be ruptured, and the fossa
navicularis obliterated, the only deduction we can draw, must be
an  unfavourable one.  Capuron, a disbeliever in the physical
signs, indeed  suggests, that  a foreign body, such  as a pessary,
introduced with  too much  violence into the vagina,  may have
ruptured the fourchette; or  the menstrual fluid, by becoming ac-
rimonious, may  have eroded it.f  Both  these suggestions are,
however, equally improbable,  and deserve  little  attention  in
forming a general rule.
  Systematic  writers have  added to these, other signs, but they
are generally equivocal.  The  bright red colour  of the nipples,
the hardness of  the breasts,  and in fine, the  general appearance
of the  female, all deserve  attention, but can seldom  be  of any
practical utility  in determining on the point under examination.
  From the above statement, an opinion may be formed concern-
ing the dependence that is to be placed on the physical signs of
virginity.  It is  not to be denied, that many may be equivocal;
but, notwithstanding, it is the duty of  the medical examiner  to
notice them, and that, in connexion with one another.   It  cannot
be possible that all those which we have mentioned as present
during the chaste state, can be wanting, without justifying  a
strong suspicion  against the female.   Midwives  should always
be associated with physicians in such cases; and they would  be
the  proper examiners, provided their information and knowledge
of the system  were sufficiently extensive.  It is also necessary to
recollect that these appearances are most striking in females of a
tender  age ; and as a general rule, guided  however by the cli-

  * This is indicated  in the Jewish law.  The curious will find some extraordinary
discussion on this  point in Zacchias, vol. 1, p. 376, and Michaelis, vol 4, p. 192 to
  f Capuron, p. 29. 
RAPE.                          141
 mate and  the habit of the body, they are found most perfect in
 females not  farther advanced in life than  twenty or twenty-five
 years of age.*

              II. Of the signs of defloration and rape.
   The  marks of defloration, i.  e. of connexion without violence,
 are of course the reverse of those which we have  stated in the
 preceding section.  It is not necessary to recapitulate  them in
 this place; but  it is proper to observe, that they will  most readily
 be seen, if the examination be  made within a very  short period
 after the  event complained of:  and again,  the most striking
 proofs will occur where it has  been the first  connexion on  the
 part of the female.  Here the parts are generally found bloody,
 inflamed  and painful, f  Marks of a rupture of the  hymen,  or a
 disunion of the carunculae, will also be present, together with an
 extreme sensibility to the touch,  a sensation of heat, and a difficulty
 in walking.   In  married women, or libidinous  females, the  de-
 tection is more difficult,  and in truth, in a great degree impos-
 sible, and that whether they accuse or are accused.   The reasons
 for this will  readily suggest themselves.
   By the term rape, however, is understood not only defloration,
 but a commission of it against the will of the female  ; and again,
 the commission of this  violence  against  a person  of a tender
 age, who has as yet, in the legal sense of the term, no will. Here
 not only the signs of defloration already enumerated will be  pre-
 sent, but also others indicative of the employment of force, such
 as contusions on various parts of the extremities and body.  These,
 however, are compatible with  final consent on the part of  the
 female.
   It also deserves attention, that disease has produced the  ap-
 pearance of  external injury,  and  led  to suspicions against inno-

  * The following remark of Fodere on  this subject, deserves quotation: " Having
often  been engaged in such examinations, and finding  the above named physical
signs of virginity wanting, I have declared the female unchaste ; and the pangs of
child-birth have in a few months confirmed my decisions although  they were con.
sidered harsh at the time."  (Vol. 4, p. 352.)  We must, however, add, that the
faculty of medicine at Leipsic declared, that there does not exist any true and  cer-
tain sign of  virginity, (Metzger—notes, p. 483,)  and Morgagni  is of a similar
opinion.  (Opuscula Miscellanea, p. 37.)
  t It is important not to mistake  the menstrual secretion, or blood placed on the
parts for  the effects of violence.  Dr. Campbell of Edinburgh, detected  a case of
pretended rape, by  finding a stocking wire, covered with blood in a dried state,
which had been  applied to the vagina. (Midwifery,  p. 53.) 
142
RAPE.
cent persons.  Dr. Percival relates a case of serious importance
in medico-legal  investigations.  Jane Hampson, aged four, was
admitted an out patient of the Manchester  Infirmary, Feb. 11,
1791.  The female organs were highly inflamed, sore, and pain-
ful ;  and it was stated by the mother, that  the child had been as
well as usual, till the preceding day, when she complained of
pain in making water.  This induced the mother to examine the
parts affected, when she was  surprised to  find the appearances
above described.  The child had slept two or three nights in the
same bed with a boy fourteen years old, and had complained of
being very much hurt by him during  the  night.   Leeches and
other external applications, together with appropriate  internal
remedies, were prescribed; but the debility increased, and on the
20th of February the child died.  The coroner's inquest was
taken; previous to which, the body was inspected, and the abdo-
minal and  thoracic viscera found free of disease.  From these
circumstances, Mr. Ward, the surgeon attending this case, was
induced to give it as his opinion, that the child's death was caused
by external violence; and a verdict  of murder was accordingly
returned against the boy with whom she had slept.  Not many
weeks elapsed, however, before several similar cases occurred,
in which there was  no reason to suspect that  external violence
had  been offered, and some in which it was absolutely certain
that no such injury could have taken place.  A few of these pa-
tients died.   Mr. Ward was now  convinced that he was under
a mistake  in attributing the death of Jane Hampson to  external
violence, and informed the coroner of the reasons  which  in-
duced this  change of opinion.  Accordingly, when the boy was
called to the bar at Lancaster, the judge informed the jury, that
the evidence adduced was not sufficient to convict; and that it
would give rise  to much indelicate discussion, if they proceeded
to the trial;  and that he hopedt therefore, they would  acquit him,
without calling  witnesses.  With this  request  the jury imme-
diately complied.  The disorder in these cases, says  Dr. Perci-
val,  had been a typhus fever, accompanied with a mortification
of the pudenda.*

  * Medical Ethics,  p. 103 and 231.  Capuron relates two cases of children, the one
aged  four, and the other six years; both of whom were affected with a white and very
acrid discharge from  the vagina, accompanied with swelling  of the external parts,
severe pain, and indeed ulceration; a high fever was also present. In one instance, 
RAPE.
143
   A complaint resembling the above in many respects, has also

 been lately described by Mr.  Kinder Wood.   It is  preceded by

 all the ordinary symptoms of fever for about  three days.   The

 patients then call the attention of parents to the  seat of the dis-

 ease,  by  complaints in voiding urine, &c.  When the genital

 organs are examined, one or  both  labia are found enlarged and

 inflamed.    The inflammation  is  of a dark tint, and  soon extends

 internally over the clitoris, nymphae and hymen.  Ulceration suc-

 ceeds, and  the  external  organs of  generation  are progressively

 destroyed.   This  affection has proved very fatal, and  seems  to

 constitute a peculiar kind of eruptive fever.*

   Mr. William Lawrence, in  his  Lectures on Surgery, when

 speaking  of this  disease, mentioned that he had been called  as

 a witness in such  a case at  the'Old Bailey, on  a capital indict-

 ment.   The idea was that  the complaint was  syphilis.  He re-

 marks, that " there is an excessively deep-coloured inflammation,

 with  great disturbance of  the health  of  the child, in  the very

 commencement of the affection;  and the ulceration that  succeeds

 is foul  and sloughing, and  of a tawny colour,  totally different

 from the character of any primary venereal sore."f

   It  is of  great importance  that  the  physician  understand the

 possibility of such  diseases occurring:  " but we  must  take care

 not  to run into the opposite error of ascribing inflammation,

 the parents loudly declared that violence must have been used towards their child.
 Prof. Capuron, however, ascribed both  to an epidemic catarrhal  affection then preva-
 lent in Paris, and considered the local complaint as entirely dependent on  it.  By
 the use of proper regimen, they readily recovered.  (Pages 41 and 42.)
  "Judging from my own experience in  a large town, cases like  those related by
 Capuron are by no means unfrequent.   I have met with at least a dozen during the
 last five or six years, principally in children four or five years  of age.  They have
 been various in the severity of the symptoms, and in their duration, but have always
 terminated favourably."  Darwall.
  * Medico-Chirurgical Transactions,  vol. 7, p. 84. Out  of twelve cases seen  by
 Mr. Wood, only two  appear to have recovered.  See also Quarterly Journal of
 Foreign Medicine, vol. 2, p. 224; Lancet, N. S. vol. 1, p. 874; American Journal of
 Med. Sciences, vol. 2, p. 468; North of England Medical and Surgical Journal, vol. 1,
 p. 479.  (Cases by  Mr. Dunn, of mumps combined with leucorrhoeal  discharge.)
 Sir Astley Cooper says that he has seen at least thirty cases of this discharge in one
year.   (London Medical and Surgical  Journal, vol. 4, p. 48.)  Additional cases are
mentioned by Dr. Beatty as occurring in Dublin, and where charges of rape were
about to be made.  (Cyclopedia of Practical Medicine, Art. Rape.)  Also  by Du-
puytren, Medico-Chirurgical Review,  vol. 25, p.  524; North American Archives,
vol. 1, p. 201.
  t London Medical Gazette, vol. 6, p.  828.  A similar case occurred in London in
1829, where the prisoner was convicted of an assault, and sentenced to six months'
imprisonment.   Dr. Gordon Smith and others interested themselves in the man's
behalf, and showed  that it was disease, instead of the result  of violence. (London
Medical and Surgical Journal, vol. 4, p. 48.) 
144                          RAPE.

ulceration  and  discharge, in cases where violence  has  been
alleged, to this  disease, without  sufficient grounds; for it is  ex-
tremely improbable that diseases which occur so rarely, should hap-
pen to appear in a child to whom violence was offered, unless that
violence had some effect in producing it."*  The proper distinction
to be made in these cases undoubtedly is, not to attribute lacera-
tion,  tumefaction, and consequent inflammation to  this disease.
It resembles gonorrhoea, and the examination of the person sus-
pected, if early made, will lead  to a definitive opinion-t  Marks
of external injury are hence to  be  considered as  corroborating,
but not as  certain proofs of the commission of  a rape.  The
weight which they deserve, depends on several  circumstances
which it is proper  to notice.
   1.  The age, strength, and state of mind of the respective parties.
However we may doubt whether a rape can be committed on a
grown female, in good health and strength, (and this point I shall
presently notice) yet  there can be no question  but  that it can be
perpetrated on  children of a tender  age.  Previous to the age of
sixteen, or  rather before the  period of menstruation, the female
is not only deficient in strength, but is also ignorant of  the conse-
quences of the  act; and fear may induce her to consent to libidi-
nous  desires.   Again,  should a female  accuse a  man  who  is
cachectic, or a valetudinarian, little credit is to be  given to  her
charges;  as  the respective  strength of the parties will  show
the improbability of the commission of the act.   For  a similar
reason, the probability is  increased when the  accused is vigor-
ous, and the  accuser infirm;  and above all,  should the female
labour under imbecility of mind to such a degree  as to render
her incapable of judging concerning the morality of her actions,
her age ought  not to be taken  into account.   An individual of
this description at  twenty-five, is less capable of resistance than

  * Edinburgh Medical and Surgical Journal, vol. 13, p. 491.
  f Beatty in Cyclopedia of Practical Medicine, Art. Rape.
  In cases of young children, supposed to have been violated, it will be well to re-
member an observation made by Devergie and verified in repeated examinations of
healthy subjects.  And this is, that at a tender age, the labia are at a much greater
distance from each other at the upper part, than in more advanced years. The open-
ing was in repeated instances found to  be triangular, and to expose the clitoris.
Devergie, vol. 1, p. 338.
  "II  est vrai que l'acte du coit est rarement  entierement  consomme chez les tres
jeunes enfans; nous avons vu dans plusieurs circonstances, des jeunes filles ayant
ete pendant assez long temps en but a des tentatives de viol, presenter le perinee en
entonnoir refoule en—dedans, c'est a dire, rentrant vers le vagin, son orifice un peu
enlargi et ecarte  en bas."  Leuret, in Annales d'Hygiene, 16, 446. 
                             RAPE.                          145

another of sound mind and body at fourteen.   We must also add,
that all  accusations against persons aged above sixty years of
age, should, as  a general  rule, be  rejected;  and if maintained,
the accuser should prove  the  presence of greater  strength and
virility than is the ordinary lot of that period of life.*
  2. A  comparison of the sexual organs may be  necessary;
since cases  have occurred in which the male has  proved  impo-
tency or defective organization, or has exhibited proofs of the de-
struction of parts by the venereal disease.  In the female, how-
ever, it  must be remembered, that  it  will be difficult to  find the
physical  marks  of  rape, provided she is subject to the  diseases
formerly enumerated, or has had  several children.  In opposite
cases, severe marks of the violence will  be more  evident; and
these have sometimes been of the  most striking kind, inducing, in
one instance, according to Teichmeyer, great inflammation, and
an incurable paralysis of the lower extremities.-j-
   3. A speedy examination of the parts is all important in disputed
cases.   The body of the male should also be inspected, whether
there be scratches  or bruises on it.J
   I have intimated, that doubts exist whether a  rape can be con-
summated  on a grown female in good health and strength.   It
has been  anxiously inquired, whether this  violence, if properly
resisted, (and this is included in the very  definition of  rape,) can
be completed 1   And in the consideration of this, it is needless to
observe, that those cases, in which  insensibility by violence or
soporifics,  has  been previously produced, or where  many are
engaged against one  female,  are  of  course excluded.^   Some
hesitation is doubtless proper  in  deciding on a question of this
magnitude.  The  opinion of medical jurists, generally is very
decisive against it.  " En un mot," says Mahon,  " d'apres la con-

  * I have known (says Prof. Amos) a person  aged sixty, left for execution for a
rape; and in 1803, a youth aged  seventeen, was convicted of it on a girl of nine
and executed.  (London Medical Gazette, vol. 8, p. 33.)
  t MS. Notes of Stringham's Lectures.
  X "The great points to be looked to" (says Mr. Alison) "are, 1.  Whether they
made resistance and cried out, before they were discovered.  2.  Whether they had
received blows and actual injury, it being quite certain, that at least that  violence
was inflicted against the will."  (Principles of the Criminal Law of Scotland, p.
187.)
  § We must  however  remember, that the administration of soporific  drugs, for
the purpose of the commission of the crime, will justify the charge of rape. This
was the case of Luke Dillon, at Dublin, 1830, who was convicted and exchanged
execution for transportation, only at the earnest solicitation of the female and  her
relations.  (Alison, p. 213.)
   VOL. I.                    13 
146
RAPE.
naissance  physique que  les medecins ont de  l'homme et de la
femme, relativement a cet attrait imperieux qui porte invincible-
ment les deux sexes l'un vers  l'autre, d'apres surtout l'impossi-
bilite presqu' entiere ou est un  homme seul de forcer une femme
a recevoir ses caresses, on doit  rarement ajouter foi a l'existence
du viol, je  crois meme qu'il seroit prudent de  ne 1'admettre  que
lorsque plusieurs  hommes armes se sont reunis pour commettre
ce crime."*  " An attempt,"  says Farr, " under which is to be
understood, a great force exercised over a woman to violate her
chastity, but where a complete coition is prevented,  may be pos-
sible.  But the  consummation  of a rape, by which is meant a
complete,  full, and entire coition, which is  made without  any
consent or permission of the  woman, seems to be impossible,
unless some very extraordinary circumstances  occur.   For a
woman always possesses sufficient  power, by drawing back her
limbs, and by the force of her  hands, to prevent  the insertion of
the penis, whilst she can keep her  resolution entire."f   " Inde-
pendamment de l'arme que la loi met dans la main de la femme
pour repousser l'injure, elle a infiniment plus des moyens pour se
defendre que l'homme n'en  a pour attaquer, ne fut  ce que le
mouvement continuel."   And again, " J'estime qu' une personne
du sexe, qui a atteint l'age de dix-huit a vingt ans, ne peut plus
etre prise par force par un homme seul, quel qu'il soit, a moins de la
menace d'une arme meurtriere, et que le  crainte de la mort ne
soit plus forte que celle de perdre l'honneur."J   Metzger only al-
lows of three cases In which the crime can be  consummated—
where narcotics have been administered—where many are en-
gaged against the female—and where a strong man attacks one
who is not arrived to the age of puberty.§
  Notwithstanding  these  united  authorities, it may with justice
be supposed, that  in addition to the cases allowed, fear or terror
may  operate on  a helpless female—she  may resist for a long

  * Mahon, vol. 1, p. 136.              f Farr, p. 41 and 42.
  X Fodere, vol. 4, p. 359, 3G0.   Capuron advances the same opinion, p. 54; and
Brendelius, p. 96.
  § Metzger, p.255. I must add to the above the following answer given by the medical
faculty of Leipsic, to the question, whether a single man  could  ravish a woman.
"Si circumstantiasquae in actu coeundi concurrunt, consideramus, non credibile,nee
possibile videtur, quod unus masculus nubilem virginem (excipe impubem teneram,
delicatam, aut simul ebriam puellarn) absque ipsius consensu, permissione, atque
voluntate vitiare, aut violento modo stuprare possit; dum foemina cuilibet facilius est,
si velit, penis immissionem recusare, vel multis aliis impedire, quam viro eidem in-
jvitse plane intrudent."  (Valentini Pandectee, vol. 1, p. 61.) 
RAPE.
147
lime, and then faint from fatigue, or the dread of instant murder

may lead to the abandonment of active resistance.*

   Cases  in which  false  accusations of  rape  have  been  made

against  individuals, are scattered through most of the works on

medical jurisprudence.f   I shall quote one, both from its having

happened not long since, and also as it shows the  course pursued

in such instances in France.   A female  at Martigues, in  1808,

accused  eight or ten of the principal persons in the place, of hav-

ing  violated her grand-daughter, aged  about  nine  years and a

half, at an inn.  She laid her complaint before the justice, (juge

de paix;) but  stated  that she would withdraw it,  provided the

accused  would accommodate  the matter with her.  She had pro-

cured a daughter of the innkeeper, aged sixteen, and an idiot, as

a  witness.  As the charge was obstinately  persisted  in, Fodere,

with two officers  of health, was ordered to examine the child in

the  presence  of the judge; and suspicion  was immediately ex-

cited, from the  delay  used  in admitting the  visiters.   On exa-

mining the parts, he found the hymen untouched, and the vagina


  * I am aware, that in the previous edition I spoke too strongly and exclusively, and
I fully recognise the correctness of Dr. Ryan's criticism. (Midwifery, p. 157.)  In a
trial  at Edinburgh, in 1828, where the counsel for the prisoner did me the  honour
to quote this work, and the opinion now under consideration, the Lord Justice Clerk,
in his charge to the jury, in reply to the argument, that there could be no rape with-
out assistance, blows, or drugs, showed that, a case had occurred in 1811, "where
the woman swore that she was overcome on  the sands,  there being no others near.
There was no proof of blows, but her evidence was confirmed by persons who had
been looking in that direction with a spy-glass, and the man suffered the last punish-
ment of the law."  (Syme's Justiciary Reports, p. 332.)  I presume, however, that'
there can be no doubt, in cases like that cited by Professor Amos,  of a woman, at
Derby, who proved the rape, but on examination, was positive as to  the time it had
lasted—exactly ten minutes.   How did you know it ?   She had counted.  How did
you count ?  One, two, three, &c. Did you  count sixty ten  times over. I did.
(London Medical Gazette, vol. 8, p. 35.)
  Dr. A. T. Thomson, in his lectures recently published, (London Medical and Sur-
gical Journal, vol. 6, p. 647, and Lancet, N. S. vol. 19, p. 449,) agrees in the main
with the authors that I have  quoted.  lie suggests, that in this struggle " with a
healthy female of adult age, who is really anxious to preserve her chastity unsullied,
the mind of the man must necessarily be so much abstracted from the act itself, in
overcoming the resistance offered to him, and in repelling the attacks of the female
upon him, that, independent of corporeal exhaustion, the state of his mind will render
it utterly impossible for him ever to effect that penetration which constitutes the
criminal intent,"
  t See the  case of one Stephen Nocetti, which was referred to Zacchias, and where
there was an actual deficiency of parts.  The accusation was made four months after
the supposed commission of the crime.  (Consilia, No. 34, vol. 3, p. 62.)—Also the
case of Erminio.  (Consilia, No. 41, vol. 3, p. 74.)—Fodere also quotes a case from
Deveaux, where there was nothing but a slight excoriation of the parts ; and of course
it was decided that there were no evidences of a rape having been  committed.  (4,
371.)—I will only add a caution, not to mistake menstruation for the effects of deflo-
ration. 
148
RAPE.
extremely narrow.  Around the pudenda, however, a red  circle

about the size of a crown, was observed, which appeared to have

been induced recently; and this was indeed the fact; for at the

end  of half an hour, the  circle had  decreased in size, and the

redness disappeared.  Had this been the effect of great violence,

it is  natural to suppose that it  would  have increased in intensity

of colour.   A report was prepared, stating the above facts ; and

the consequence was,  that the accuser was put  in  prison, and

finally ordered out of the city.*
  " It happened at an early period of the author's life, in a Welch

country town, that a child  of  about  eight  years  of  age, of low

connexions and mendacious habits, was induced to prefer against

a respectable minister of religion,  an accusation of an attempt to

violate  her person.  It was averred on the part of her friends,

that she became the subject of ulcerations  of the pudendum, in

consequence of the  imputed assault,  and the  gentleman in  ques-

tion was  committed  to  prison and confined there for several

weeks.  The grand jury ignored the bill on the ground that the

prisoner had proved himself free from  the disease which he had

been accused of communicating,  and  also from other and con-

clusive moral and circumstantial evidence.   The ulcerations on

the child's pudendum, were proved not  to have been derived from

a venereal source."!

   Instances  sometimes occur, in  which death has followed the

consummation of  a rape, from the violence employed.   Here, if

the physician be called on to  examine  the body, he should  parti-

cularly notice the condition of the  sexual organs, both internal

  * Fodere, vol. 2, p. 456; and vol. 4, p. 371. The distinction made in Deuteronomy
chap. 22, between the commission of the crime in the city or  in the field, deserves
attention in the consideration of this point.
  t Davis' Obstetric Medicine, p. 78.  Mr. Roberton, of Manchester, mentions a cu-
rious case, of a female, found in a field near Warrington, apparently dying in con-
sequence of a rape, as  she said, committed on her by two ruffians.  Mr. R. found
her in a paroxysm of hysteria.  She complained of severe pain in various parts of
her body, but excused herself, on account of exhaustion, from an examination. Two
men  were arrested on suspicion, and on being confronted, she immediately identified
one as the violator, and he was sent to jail. On further inquiry, however, the injury
on the body was found to be slight, while on the inner surface of the pudenda, were
simply two slight wounds, such as might have been inflicted by the finger nail. The
investigation ended in  proving her, on her own confession, to be an impostor, who
pretended these injuries, and also admirably imitated the paroxysms of hysteria, for
the sake of exciting charity. Whenever she was  hard pressed with unpleasant ques-
tions, a fit of hysteria came to her relief.
   She was tried and punished as an impostor, but succeeded for years afterwards in
 imposing on individuals.  Another of her  devices, was suddenly to fall down in la-
 bour. (London Medical Gazette, vol. 15, p. 506.) 
RAPE.
149
and external;  and also ascertain whether no proofs are present,
from  which the exertion of violence may  be presumed, such  as
the introduction of substances into the mouth to  prevent  crying
out, contusions, or dislocation or fracture of the extremities.  He
should notice whether the labia are dilated  and flaccid, the state
of the hymen, clitoris, nymphae  and vagina generally, and also
whether the fourchette is ruptured. The fluid, (if any be present,)
contained in the vagina, should be examined, whether sanguine-
ous, mucous or purulent, and the presence or  absence of tume-
faction and extraordinary dilatation, should be remarked.*
  The case of Mary  Ashford, which  occurred in England in
1817, is deserving of mention in this place.  She was at a ball
with  the individual (Abraham  Thornton) who was  accused of
first violating and then murdering her.  It appears  from his con-
fession, that she made an assignation with him.   They were seen
together in the night, and the next day  her dead body was found
in a pit of water.
  She had on a pair of white stockings at the ball.   On her re-
turn she changed them for black  ones.   The white  ones were
found bloody, in the bundle that she had made up before  leaving
the house.   It was hence  probable  that she had  the  menses on
her, and this was subsequently confirmed.   At the  place  where
the connexion took place, coagulated blood was observed.  (There
was an evident impression of a human figure  on the grass, and
this was in the middle of the impression.)   Thornton's shirt and
the flap of his pantaloons, were bloody.   Indeed,  he confessed
the connexion, but said it was with her consent.  Mr. Freer, the
surgeon who examined the body, found the parts of  generation
lacerated, and a quantity of coagulated blood  about  them.   On
opening the body, these marks were seen still more  manifest, and
it was  also evident that the menses  had  been present.   In  the
stomach, he found a portion of duck weed, and about  half a pint
of a thin fluid, apparently chiefly water.   The lacerations (two
in number) were quite fresh, and he had no hesitation in asserting,
that she was pure, until these occurred.  He also stated the dis-
tinction between  menstrual and non-menstrual blood, and ex-
plained that what was observed could not be the former, in con-
* Fodere, vol. 4, p. 372.
        13* 
150
RAPE.
sequence of its coagulation.  The lacerations might, he said, have
occurred with or without consent on the part of the female.
  Thornton escaped conviction by an alibi.*  There was a con-
siderable difference  as to the time  of the clocks  and watches,
and  they had not been sufficiently compared.  " Less  than an
hour  of additional time," (says Professor Amos,) " would have
put an end to the alibi."
  It may be considered an omission not to notice the chemical
investigations of Orfila, for the detection of semen, if its presence
should require to be proved, and I therefore add a brief notice of
them.
  Semen forms, when dry  on linen, irregular  spots  of a light
yellow  or grayish colour; but so indistinct, that frequently it is
necessary to hold them between the eye and the light to discover
their presence.  On pressing them with the fingers,  the linen ap-
pears as if starched.  When dry, they are inodorous; but as soon
as they are moistened, the spermatic odour is given out.  If the
linen be gently heated, they assume  a yellow fawn colour, and
this, indeed,  will indicate spots, which otherwise would  pass  un-
noticed.  This  property is  important in distinguishing the dis-
charge.   And it is  also found, if the  linen be left for some time
in distilled water, that the above result will not be reproduced on
heating it.   The semen has  become mixed with  the water—and
no change of colour is occasioned.
  In water, the spots  become completely moistened; which is
not the case, if they have been caused by grease:  and on being
rubbed, give out their peculiar odour.  The fluid itself is of a
flocculent, milky appearance, and on  being evaporated, is found
alkaline, and assumes a  mucilaginous  appearance;  and  if the
process be continued to dryness,  it leaves a semi-transparent re-
sidue, resembling gum arabic, and of a light fawn colour.   This
again is decomposable in distilled water, if the mixture be shaken,
into two parts;  one soluble, but the other  glutinous, insoluble in
water, but soluble in potash.  The soluble portion yields a white

  * 1 Barnewell and Alderson, p. 405, Ashford v.  Thornton. This case in all its
details is given by  Dr. Cummin in the London Med. Gazette, vol. 19, p. 386.  It
excited intense  interest in England.
  Mr. Holroyd (son of the judge who tried Thornton,) suggested in  a pamphlet
which he published, that her death may have been accidental.  Fatigued  and ex-
hausted, as she undoubtedly was, she passed before morning along the top of a bank
of a very sloping pit-side, and she may have turned faint or giddy and thus fallen
in.  Dr. Cummin does not think that there was either rape or murder. Ibid. p. 390. 
RAPE.
151
flocculent precipitate with alcohol, chlorine,  acetate of lead, or
corrosive sublimate.   Pure nitric acid gives it a slight yellowish
tint, but does not render it turbid.
  Alcohol dissolves but a very trifling portion, if the linen, spotted
as above, be left in it for twenty-four hours.
  When blenorrhagic matter, obtained from syphilitic  females,
was treated in a similar manner, the linen took a yellowish green
colour, but the spots  do not become yellow, when held to the fire.
The peculiar odour is wanting, but the solution is also  alkaline.
When evaporated, the product is of a white yellowish colour, opake
and decomposable by heat.  It dissolves with difficulty in distilled
water, but alcohol and the other re-agents already named, yield
a white precipitate; and nitric acid also a white one.  Leucorrheal
matter wants many of the characters of the spermatic fluid, and
the re-agents cause but a slight precipitate, if it be treated in the
same manner as already described.  Lastly, spots of saliva some-
times become yellowish, on exposure to the fire; and in some of the
experiments of Orfila,  the liquid solution that was obtained was
unaltered by nitric acid.  It is evident from  these results,  (says
Devergie) that we are still  in need of more characteristic tests
of semen.*

     III. The laws of various countries concerning this crime.
  There are two reflections which are of deep weight in all our
investigations on  this  subject, and which should  particularly be
kept in mind when noticing the  laws concerning it.   The nature
of the crime, being an offence against the weaker sex, and com-
mitted in  secrecy.   Being  of  so detestable a character, and so
difficult to be proved, the law has wisely ordained that  the tes-
timony of the injured person shall be sufficient, unless impeached,
to convict the criminal.  But  again, and  this is the second  re-
mark, false accusations are frequently made for the gratification
of malice and revenge.   The scriptures, and the records of courts
in all countries, bear testimony to this.f  In  this  point  of view,

  * Orfila Lecons, 2d  edit., vol. 2, p. 573, translated by Dr. Gross in the Western
Medical Gazette, vol. 2, p. 244.  Sedillot, p. 93.  Devergie, vol. 2, p. 903.
  For cases examined under the direction of the public  prosecutor in  France by
Chevallier, see Annales D'Hygiene, v. 11, p. 210. Medico-Chir. Review, v. 24, p. 516.
  f On the trial of Levi Weeks for the  murder of Miss Sands, held at New York,
March, 1800, the connsel  for the prisoner stated, that "in that very city, a young
man, not many years ago, had been charged with the crime of rape. The  public
mind was highly incensed, and even after the unfortunate man had been acquitted 
 152                         RAPE.

 the medical jurist may often aid the ends of justice in punishing
 the wicked, and absolving the innocent.*
   I have thought that a sketch of the laws of various  countries
 concerning this crime might prove interesting, and  in  some de-
 gree useful.   The materials for this purpose have been collected
 in a  great measure  by Blackstone and  Percival, and  I have
 added to these, the laws existing in various states throughout the
 union.   I shall notice, separately, the  laws respecting  the  com-
 mission of the  crime, on the  female of tender age, and  on  the
 female who has arrived at maturity.
   1. As this crime can be committed with the  greatest  facility
 on children under  the age of puberty, in consequence of their
want of strength, but  particularly from their ignorance of the
consequences of the act, the  law has  wisely directed that  the
 consent or non-consent of the  female under  age is immaterial,
 " as by  reason of her tender age, she is incapable of  judgment
 and discretion."
   In the 3d year of Edward I. by the  statute, Westminster, the
offence of ravishing a damsel  within  age,  (that  is, twelve years
old,) either with her consent or without, was reduced  to a tres-
pass,  if  not prosecuted  by appeal  within  forty days, and  the
offender was subjected to two years' imprisonment, and a fine at
the king's will.  This lenity, however, was in a short time found
very  injurious, and by statute 18 Elizabeth, chap. 7, carnally
knowing and  abusing a child  under the age of ten years, was
 made felony, without benefit of clergy.  Sir Matthew Hale, says
 Blackstone, is indeed of opinion, that such  actions committed on
 an infant under the age of twelve years, the  age of female  dis-
 cretion by the common law, either  with or  without consent,
 amount to  rape and  felony, as well  since as before the statute of
 Queen Elizabeth; but  that law, he adds, has  in  general been
 held only to extend to infants  under ten.\

 by the verdict of a jury, so irritated and inflamed were the people, that the magis-
trates were insulted, and  they threatened to pull down the house of the  prisoner's
counsel.  After that, a civil suit was instituted for  the  injury done the girl, and a
very enormous sum given in damages, and the defendant was ignominously confined
within the walls of a prison.  Now it has come out, that  the accusation was cer-
tainly false and malicious."—Report of the Trial, &c. p. 67.
  * A man named Stewart, was tried at the Old Bailey in 1704, for ravishing two
female children.  The evidence being at variance as to the fact of penetration, the
children were  sent out of court to be examined, and the  eldest was found to have
the signs of virginity."—Smith, p. 397.
  t Blackstone's Commentaries, vol. 4, p. 212. 
                            RAPE.                         153

   By a recent  act, however, (9 George IV. chap. 31.) passed in
1828, it is ordained, that any one unlawfully and carnally know-
ing and abusing any female under the  age of ten  years, shall
be guilty of felony and shall suffer death.  If the same be com-
mitted on a female above ten and under twelve, the offence shall
be deemed a misdemeanor and liable to imprisonment.
  In Scotland, it is held that consent  cannot be given below the
age of twelve years.*
  The French code of 1810, ordains, that if the crime has been
committed on a child under the age oi fifteen years, the offender
shall  be condemned to hard labour for a limited  time, (travaux
forces a temps.)!  But it would seem that consent  on the part
of the minor female modifies the nature of the crime in France.
At least such was the decision of the Court of Assizes at Stras-
burg in 1827.  An individual escaped from  the  punishment  of
rape for this reason.J
   In the state of New York, the statute of the 18th of Elizabeth,
appears to have been  copied.  By an act passed Feb. 14, 1787,
it was ordained, that if any person should unlawfully or carnally
know a woman child under  ten years of age, such unlawful  or
carnal  knowledge should be adjudged a felony, and the criminal
should suffer death.§   But by an act passed March 21, 1810, the
above punishment was changed to that of imprisonment  in the
state prison, and continues so at the present time.||   In Massa-
chusetts alone, so far as I am able to ascertain, the punishment
is death.H  In  Virginia, Connecticut,  New Hampshire, Maine,
New Jersey, Illinois, Ohio, Michigan and Tennessee, the punish-
ment is either imprisonment for life, or a term of years, or fine or
imprisonment, or both.  All these specify the period of ten years.**
The law in  Vermont varies from this.   It directs that whenever
any individual  over the age of fifteen, shall  abuse  any female
under eleven, with or without her will, he  shall  suffer fine and

  * Alison, Principles, p. 213.  f Code Penal, Art, 332.  X Briand, 2d Edit. p. 10.
  f Jones and Varick's edition of the Laws of New York, vol. 2, p. 47.
  || Revised Statutes, vol. 2, p. 663.
  IT General Laws of Massachusetts, 1807, vol. 3, p. 340.
  ** Revised Laws of Virginia, 1803, vol. 1, p. 356 ; Session Laws of Connecticut,
1830, p. 254; Laws of New Hampshire, 1830, p. 137;  Laws of Maine, 1829, p. 1190;
Digest of the Laws of New Jersey, 1833, p. 223; Revised Laws of Illinois, 1833, p.
179 ; Laws of Ohio, 1831, p. 136 ; Laws of Michigan, 1820, p. 193; Digest of Laws
of Tennessee, 1831, vol. 1, p. 245. 
154
RAPE.
imprisonment.*   In Indiana, the age of the female is extended to

twelve years, and the punishment is imprisonment for a term of

years.f   In Missouri, a rape  on a female under  the  age of ten

years is punished by castration.J   In  Delaware, the law directs

a fine, standing in the pillory for one hour, sixty lashes on the

back well laid  on, imprisonment for not more  than  two years,

and afterwards, to be sold as a servant for a term not exceeding

fourteen years.§
   A few remarks are here necessary as to the  credibility of wit-

nesses in these cases.   " If a rape," says Blackstone, " be com-

mitted on an infant under twelve years of age,  she may still be a

competent witness, if she hath sense and understanding to  know

the obligation of an oath, or  even to  be sensible of the wicked-

ness  of telling a deliberate lie.  Nay, though she hath not, it  is

thought by Sir Matthew Hale 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 relatives, may be given

in evidence, since the nature  of the case admits frequently of no

better proof.||  But  it is  now  settled," he adds,  (Brazier's case

before the twelve  judges, 19  George III.) " that  no hearsay evi-

dence can be given of the declaration of a child, who hath not a

capacity to be sworn; nor can such child be examined in court

without oath;  and  that there is no determinate age, at which the

oath of the child ought either to be  admitted or rejected.^   Yet,"


  * Laws of Vermont, 1825, p. 254.      t Revised Laws of Indiana, 1831, p. 136.
  X Revised Laws of Missouri, 1825, vol. 1, p. 283.
  § Revised Laws of Delaware,  1829, p. 129.
  i Formerly it was the practice in the English courts to refuse the evidence of chil-
dren. (See the King v. Travers, in 1 Strange, p. 700.) Lord Chief Baron Gilbert and
Chief Baron Raymond, at two different trials, refused the evidence of the injured
child, who was six years old, and the man was acquitted for the want of evidence.
  IT The case above mentioned was as follows: One Brazier was indicted at the as-
sizes for York, for a rape on an infant seven years of age.  The information of the
infant was received in evidence against the prisoner;  but as she had not attained the
years of presumed discretion, and did not appear to possess sufficient understanding
to be aware of the danger of perjury, she was not sworn.  The prisoner was con-
victed ; but the judgment was respited, on a doubt whether evidence, under any cir-
cumstances whatever, could be  legally admitted  in a criminal prosecution, except
upon oath.  Mr. Justice Gould accordingly reserved this point for the opinion of the
twelve judges; and they unanimously agreed, "that no testimony can be received
legally, except upon oath; and that an infant, though under the age of seven years,
may be sworn in a criminal prosecution, provided such infant appears, on strict ex-
amination by the  court, to possess sufficient knowledge of the nature and conse-
quences of an oath ; for there is no precise or fixed rule as to the time within which
infants are excluded from giving evidence, 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; but 
RAPE.
155
 he adds, " where the evidence of children is admitted, it is much
 to be wished, in order to render  their  testimony credible, that
 there should be  some concurrent testimony of time, place and
 circumstances, in order to make out the fact; and that the  con-
 viction should not be  grounded singly on the unsupported accu-
 sation of an infant under years of discretion."*
   2.  I shall now proceed  to give an enumeration of the laws of
 various  countries against the crime of rape, arranged, as much
 as possible,  in chronological order.  " If a man," says  the Jewish
 law,  " find a betrothed damsel in the field, and the  man force her
 and lie with her, then the man only that lay with  her shall  die:
 But unto the damsel thou  shalt do nothing; for he found  her  in
 the field, and the betrothed damsel cried, and there was  none  to
 save her."f  In case  the  female was not betrothed, then  a fine
 of fifty shekels was to be  paid to her father, and  she was to be
 the wife  of the ravisher,  without  permitting him the power  of
 divorce.
   Among the Athenians, rape was punished with death;  and by
 the Roman or civil law, with  death and confiscation of goods.J
 The  latter, however, ordained, " Rapta raptoris, aut mortem, aut
 indotatas nuptias optet;" and upon this,  says Dr. Percival, there
 arose what was thought a doubtful case.   " Una  nocta quidam
 duas rapuit, altera mortem  optat, altera  nuptias.'^   The Roman
 law also would not receive the complaint of a prostitute.||
   Among the Lombards, after their settlement in Italy, " Crimes
 against chastity were  visited  sometimes too mildly;  at  others,
 too severely.  He who forced his own female  slave, provided

 if they are found incompetent, their testimony cannot be received."  (East's Crown
 Law, vol. 1, p. 444.)
  * Blackstone, vol. 4, p. 214.  In South-Carolina, a case occurred in 1813, where
 the material witness was the female injured, of seven years of age. The prisoner was
 convicted; and on appeal, the judgment was held good.  The court remarked, that
 this testimony was sufficient, if corroborated by circumstances; and in this instance,
 both the prisoner and witness had the same disease.  (State v. Le Blanc.  2 South-
 Carolina Constitutional Reports, p. 354.)
  t Deuteronomy xxii. 25.  Michaelis, however, contends, that for rape, as  rape, no
 punishment is appointed by the Mosaic law ; and he explains the above passage by
 considering it only as rape committed on a bride.  In  either case, whether in the
city (verse 23) or in the field, the  perpetrator was to be punished—but not if the fe-
 male was not betrothed.  Our author proposes several reasons for this omission, and
 amongst others, the debasement which polygamy produces in the female sex, and the
law that whoever debauched a damsel should marry her. This last he deems a more
effectual preventive of rape,  than  capital punishment.   Michaelis's Commentaries,
vol. 4,  p. 169 to 174.)
  X Gibbon, vol. 2, p. 252. Law of Constantine.
  § Medical Ethics, note 17, p. 231.          || Fodere, vol. 4, p. 325. 
156                          RAPE.

she were  single, escaped  without punishment; but if she were
married, both she  and her husband were enfranchised.  If he
forced the bondwoman of another, he was subject to the penalty
of twelve, twenty or forty sols, according to her comparative
state.  The ravisher of a free woman was  mulcted at  a much
heavier sum—at nine hundred sols."*
  It would  appear that there was no punishment provided for
this  crime,  in the codes of several of the original  Germanic
tribes.  At  least, " the  code of the Bavarians had none, except
such as the  ecclesiastical law directed, for the freeman who vio-
lated a female unmarried slave.  The slave, however, who vio-
lated a free maiden,  was surrendered to her parents, to  do with
him what they pleased, even to put him  to death."f
  Charlemagne  punished  with  death,  whoever  violated  the
daughter  of his master.J   The  Burgundian laws provided that if
the young woman carried  off,  returned  to  her parents  actually
corrupted, the offender should pay six times her price  or legal
valuation, and also a mulct of twelve shillings.  If he  had not
wherewithal to pay these sums, he  should  be  given  up to her
parents or  near relatives,  to take their  revenge on him in what
way they pleased.
  By the  Welsh laws  of Prince Hoel Dha,  if two women were
walking together without other company, and violence was offered
to either or both of them, it was not punishable as a rape ; but if
they have a third person with  them, they might claim their full
legal redress.  If the perpetrator of a rape, being accused, con-
fessed the fact, besides full satisfaction to the woman, he was to
answer for  the crime to his sovereign, by the present of a silver
stand as  high as the king's  mouth,  and as  thick as his middle
finger, with a gold cup upon it, so large as to contain what he
could take off at one draught, and as thick as the nail  of a coun-
try fellow who  had worked at the plough seven years.  If the

  * Europe  during the Middle Ages,  in Lardner's Cyclopedia, vol. 1, p. 16.
  t Europe during the Middle Ages, in Lardner's Cyclopedia, vol. 2, p. 137.
  X " Si quis filiam domini sui rapuerit, morte moriatur." (See Memoirs of Litera-
ture, vol. 6,  p. 103. " A Notice of the Monumenta Paderbornensia, to which is added
the Capitulary  of Charlemagne, from a very* ancient Palatine manuscript in the
Vatican, published in 1713.") Hallam also  mentions, that under the feudal system,
it was considered a breach of faith in the vassal, to violate the sanctity of his mas-
ter's roof.  In  the Establishments of  St. Louis, chapter 51, 52, it is said, that a lord
seducing his vassal's daughter, entrusted to his custody, lost his seignory; and a
vassal  guilty of the  same crime  towards his  family of the suzerain, forfeited his
land.  (Hallam's Middle Ages, vol. 1, p. 187, American edition.) 
RAPE.
157
 offender was not able to  make  such a present,  virilia membra
 amittat.
   By the law  of ^Ethelbert, the first Christian  king of Kent, it
 was enacted, that if any person takes a young woman by force,
 he shall pay her parent or guardian fifty shillings, and shall make
 a further compensation for her ransom.  If she were  espoused,
 he shall compensate  the husband by an additional payment of
 twenty shillings, but if she were with child, the augmented  fine
 shall be five and thirty shillings, and fifteen more to the king.
   There  is  also an  ordinance of Alfred in existence, for the
 punishment of rapes committed on  country wenches who were
 servants; an offence (says Dr. Percival) which may be supposed
 to have been  prevalent at  that time.*  Rape, however,  by the
 Saxon laws, particularly those of king Athelstan, was  punished
 with death;  which was also agreeable to the old Gothic or Scan-
 dinavian constitutions.  Besides this, the horse, grayhound  and
 hawk of the offender were subjected to great corporal infamy.
 Instead of this, a new punishment was inflicted by William the
 Conqueror,  who probably  brought  the custom from Normandy,
 viz. castration, and loss of eyes.  During the period that this  was
 in force, the woman who was the sufferer might (by consent of
 the judge  and  her parents) redeem the  criminal from all the
 penalties, if, before judgment, she demanded him for her husband,
 and he also was willing to agree to this exchange.  This law of
 William continued in force in the reign of Henry the Third; but in
 order to prevent malicious accusations, it was then  law, (and, it
 seems, still continues to be so in appeals of  rape,)  says Black-
 stone, that the woman should immediately after,  " dum recens
fuerit maleficium" go to the next town, and  there  make  disco-
 very to some credible persons of the  injury she has suffered,  and
 afterwards should  acquaint the high constable  of the  hundred,
 the coroners and the sheriff, of the outrage.   This seems to cor-
 respond in  some degree with the ancient laws  of Scotland  and
 Arragon, which  require that complaint must be made  within
 twenty-four hours; though afterwards, by Statute Westminster,
 the time of limitation was extended to forty days.  This statute,

  * It is as follows: "Si quis coloni mancipium ad stuprum comminetur, 5 sol.
 Colono emendet  et 60 sol; mulctse loco.  Si servus servam ad  stuprum coegcrit,
 compenset hoc virga sua virili.  Si quis puellam tenerae aetatis ad illicitum concubi-
 tum comminetur, eodem niodo puniatur quo ille qui adults servte hoc facerit."
 (Percival, p. 228.)
   VOL. I.                      14 
158
RAPE.
passed in the 3d of Edward I. repealed the law of the Conqueror,
and greatly mitigated the punishment.  The offence of ravishing
a woman against her will, was reduced to a trespass, if not pro-
secuted by appeal in forty days;  and it subjected the offender to
only two years' imprisonment, and a fine at the king's will.  But this
lenity was found productive  of the most terrible consequences;
and in ten years after,  13th Edward I. it was found necessary to
make the offence of forcible rape, felony by  statute.*
  The constitution of Charles the Fifth enacted  the punishment
of death for rape;  and the edict of Francis the First, preserved
by Coquille, together with the  ordinances of Orleans  and Blois,
forbade the asking of pardon for this crime.  Henry the Second
of France, by an ordinance of 1557, condemned those who had
forced a woman or a girl, to be hung.  Such was also the edict
of Louis XV. in 1730;  and such are the laws of various states in
Italy.  The ancient parliaments of France,  during the sixteenth
and seventeenth centuries, enforced the law with great severity
on those accused of the crime.f
  The above gleanings will elucidate, in some degree, the laws
of former times concerning this crime.   I now proceed to men-
tion those which are, or lately have been, in force.   The follow-
ing maxims, says Fodere, (which he quotes from Boerius,) have
been adopted for thirty years in Neapolitan jurisprudence, viz.
that in accusations for rape, there be full proof of  the following
facts:  1. That there has been a constant  and equal resistance on
the part of the  person violated.  2. That there is an evident in-
equality of strength between the parties.  3. That she has raised
cries;  and 4. That there  be some marks  of  violence  present.
The French code of 1791, ordained that a simple rape should be
punished with six years' confinement in irons;  but if the rape be

  * Blackstone, vol. 4, pp. 210,211.  Percival, p. 100; and note 17, p. 228. Chitty's
Criminal Law, vol. 2, p. 813.
  t Fodere, vol. 4, p. 326.  " Among the familiar customs of the Isle of Man, are
the following:  If a man ravish a wife, he must die—if a maid, the deempsters (the
judges) deliver to  her a rope, a sword, and a ring; and she is then to have her
choice to hang, behead, or marry him."  See Review of a Tour through the Isle
of Man, by David  Robertson, Esquire, London, 1793, in the British Critic, vol. 3,
p. 408.
  In China, rape  is punished with  death.  (Edinburgh Review, vol. 16, p. 498.
Review of the Penal Code of China, translated by Sir George Staunton.)
  In modern Egypt, under the present Pacha, rape by a bachelor is punished with
one hundred blows, and banishment from six months to a year; but if by a married
man, he is stoned to death.  (Annales D'Hygiene, vol. 10, p. 204.) 
RAPE.
159
 committed on a child under fourteen years, or if the criminal had
 effected the crime by violence, or by the aid of accomplices, the
 punishment should be twelve years' confinement in irons.   The
 law of 2d Prarial  L'an 4, (1796) prescribed  the  same punish-
 ment for an attempt, if accompanied by violence.   All these ordi-
 nances were, however,  annulled  by the Napoleon  code, which
 prescribes imprisonment for the  crime, if consummated or at-
 tempted  with violence.   If,  however, the criminal  has any
 authority over the person injured, such as a guardian or a teacher,
 if he be a servant, public functionary, or clergyman, and finally,
 if the individual, whoever he be, is aided by one or more persons,
 the punishment  shall be imprisonment for life.*
   In Scotland, according to Baron Hume, the following facts are
 necessary to be proved on  a charge of rape.  1.  Penetration,
 but  there is  no distinct reference made to  emission.  2. Actual
 force in the consummation, but it is held to  be forcible knowledge
 if the female discontinue her resistance out of fear of death, or
 be rendered incapable of it, by the giving of narcotic  drugs, or
 be under the age of puberty.  So also if she faint during the
 struggle from terror or fatigue, or is incapable of opposition from
 natural infirmity.  Thus James Mackie was condemned in 1650,
 for a rape on a cripple, a lame lass sixteen years old, laying bed-
 ridden in her father's house alone.  No limitation as to the time
 of making the complaint exists at present,  although a long delay
 might doubtless prejudice a jury against the prosecutor.f
   The ravisher is exempted from the pains of death, only in case
 of the woman's subsequent consent, or her declaration, that  she
 went off with him of her own free will; and even then he is to
 suffer an arbitrary punishment, either by imprisonment, confisca-
 tion of goods, or a pecuniary fine.
   The law at present in force in England, is the  statute  18th
 Elizabeth, chap. 7, in which rape is made felony,  without benefit
 of clergy.  It is a necessary ingredient in the  English law, that
 the crime should be against the woman's will, and in this, it differs
 from the Roman, which prescribed the same punishment, whether
 the female consented or not.  The civil law also, (as we have
 already stated) does not  seem to suppose a prostitute capable of

  « Fodere, vol. 4, p. 328-329; Code Penal, art. 331-333.
  t Hume's Commentaries on  the Laws of Scotland, vol. 2, p. 3, 5, 6,14 • Brews-
ter's Edinburgh  Encyclopedia, vol. 11, p. 823; Law of Scotland. 
160
RAPE.
any injuries of this  kind, whilst the English  law holds it  felony
to force even a  concubine or  harlot, because  the woman may
have  forsaken that  course of life.   At present, also, no time of
limitation for making complaint is fixed, but the jury will  rarely
give credit to a stale accusation.   In addition  to these, we may
add, that the common  law considers a  male  infant, under  the
age of fourteen, as  incapable of committing a rape, and there-
fore cannot be found guilty of it.  For though,  (says Blackstone)
in some felonies, malitia supplet cetatem, yet  as to this particular
species, the law supposes an imbecility of body as well  as  mind.*
   In the state of New York, death was formerly the punish-
ment for committing a rape  on a  married  woman or a maid.
(Act  passed Feb. 14, 1787.)f  And it was  also ordained at  the
same time, that  if a woman had been ravished, and afterwards
consented to her ravisher, her husband, father, or next  of kin,
might sue by appeal against such offender.    These laws how-
ever, have been  repealed, the punishment altered, and appeals of
felony abolished.  The  acts  now in force  prescribe the punish-
ment of imprisonment for ten years in the  state prison,  on  the
offender and  his accomplices, if he have any, for ravishing by
force any woman child of the age of ten  years or upwards, or
any other woman.   An assault with an intent  to commit a rape,
may be punished by fine and imprisonment or both.
   The   following  enactment  has  also  been  recently  added.
" Every person  who shall have carnal  knowledge of any wo-
man  above  the  age of ten  years, without  her  consent, by ad-
ministering to her  any substance or  liquid, which shall produce
such  stupor, or such imbecility of mind or  weakness of body, as
to  prevent  effectual resistance, shall, upon conviction,  be pu-

  * Blackstone 4, chap. 15, sect. 3. A case bearing on the above point, was decided
some years since, in Massachusetts.  In 1823, a boy, under the age of fourteen, was
convicted of an assault with intent to commit a rape.  On a motion in arrest of judg-
ment, the law as above quoted was urged, showing that a person is deemed incapa-
ble, and consequently that it would be absurd to punish him for attempting, what the
law presumes him incapable of doing.  But the court decided that the judgment
must stand.  " The law which regards infants under fourteen as incapable of com-
mitting rape, was established in favorem vita, and ought not to be applied by analo-
gy to an inferior offence, the commission of which is not punished with death.  An
intention to do an act does not  necessarily imply an ability to  do it, and females
might be in as much danger from precocious boys as from men, if such boys are to
escape with impunity from felonious assaults, as well as  from the felony itself."
Commonwealth v. Green, 3 Pickering's Massachusetts Reports, p. 380.
  f Jones and Varick's edition of the Laws, vol. 2, p. 57. 
                              RAPE.                          161

 nished by imprisonment  in  a state prison not  exceeding five
 years."*
   In the  states of Massachusetts, Rhode-Island, Delaware and
 South Carolina, the punishment prescribed, is death.f   While  in
 Connecticut, Georgia, Illinois, Indiana, Ohio, Maine, New Hamp-
 shire, New Jersey, Vermont, Pennsylvania, Virginia and Michi-
 gan, imprisonment for a term of years, or for life, is directed.   In
 some few cases, fine or imprisonment, or both.J  In Louisiana,
 imprisonment and hard labour for life, is the punishment.^  In the
 state of  Missouri,  and also  in  the territory  of Arkansas, the
 punishment prescribed is castration.||
   The attempt to commit  this crime, or its  actual completion, by
 a negro or mulatto, is made a subject of special legislation in se-
 veral states.  Thus in Tennessee, Alabama and Louisiana, even
 the  attempt on a white woman, is  made a capital offence.1I   In
 Virginia  and Missouri, the same is punished by castration.**
   In a few of the states, some specific provisions are made as to
 the proof of rape.  In Illinois, it is  not necessary to  prove emis-
 sion, in order  to constitute it; and in  Indiana  and Tennessee,
 penetration is held sufficient.
   The  reasons  on  which  this change  is founded, may deserve
 some consideration at the  conclusion of the present section.
   Rape is the carnal knowledge of a female, forcibly and against
 her  will.   It has been a subject of some legal discussion, as  to
 what constitutes this  carnal knowledge.   Some judges have sup-
 posed  that penetration alone was  sufficient, while others have
 contended that penetration and emission are both necessary. All
 seem agreed that the latter without the former will  not  suffice.

  * Revised Statutes, vol. 2, p. 663-666.
  tLaws of Massachusetts, 1807,  vol. 3, p. 340. Revised Laws of Delaware, 1829,
 p. 128.  Public Laws of South-Carolina, edited by Judge Grimke, p. 30.  Fourth
 Report of American Prison Discipline Society.
  X In addition to the references on a former page, Prince's Digest of Laws of Geor-
 gia, 1817, p. 349.  Laws of Pennsylvania, 1803, vol. 5, p. 2. Revised Laws of Vir-
 ginia, 1803, vol. 1, p. 356. In New Jersey, a second offence is punished with death.
Laws 1828.
  § Digeste General des Actes de  la Legislature de la Louisiana, 1828, vol. 1, p. 441.
  || Revised Laws of Missouri, p. 125, vol. 1, p. 31.  Nuttal's Journey to the Arkan-
sas, p. 224.
  T Laws of Tennessee, 1833, p.  94.   Laws of Alabama, 1830.  Code Noir of the
Louisiana Digest, vol. 1, p. 234, 297.  Virginia punishes actual rape on a white wo-
man by a slave, with death.
  ** Mr. Jefferson, who was appointed a reviser of the  Laws of Virginia, in 1778,
proposed castration as the punishment in all cases of rape.  (Works, vol. 1, p. 126.)
This  was not however adopted.
                               14* 
162
RAPE.
The following  abstract,  taken from  Chitty's Treatise  on  the

Criminal Law, will give an idea of the fluctuating state of juris-

prudence on this subject.   " Lord  Coke, in his reports, supposes

both circumstances must concur, 12 Cok. 37, though he does not

express  himself  so  clearly in his  institutes.   Hawkins, without

citing  any authority, or hinting a  doubt, declares  the same opi-

nion.   Hale,  however, differs from both, and considers the case

in Coke's Reports as mistaken. In  more  modern times, prisoners

have been repeatedly acquitted, in consequence of the want of

proof of emission.   In  one instance, (Rex v. Russen,  14  Peters-

dorff, 116,) on the other hand, the  prisoner was found  guilty un-

der the direction of Justice  Bathurst, who did not consider this

fact as necessary to the consummation of the  guilt.  But in Hill's

case, which was argued in 1781, a large majority of  the judges

decided that both circumstances were  necessary, though  Buller,

Loughborough and Heath maintained a  contrary opinion.  This

then," he adds, " seems to  be the stronger  opinion, and at  the

present day, if no  emission  took  place, it  would be more  safe

to  indict for  an  attempt to commit, by which means a  severe

punishment might be inflicted."*

   Although the definition of  the crime seems thus to  be  settled,


  * Chilty*s Criminal Law, vol. 2, p. 810.  This abstract is for the most part taken
from East*s Pleas of the Crown, (vol. 1, p. 437 to 440.)  In this last,  a number of
cases are given, which very strikingly prove the diversity of opinion that has existed
amongst the English judges. The leading particulars in the case of Hill, cited above,
are also stated; and the great majority of the judges that deemed both necessary, to
constitute the crime, seem  to have settled the law in that country.  A decision con-
formable to it was made by Baron Richards at the Northumberland assizes in 1815 ;
and as the case is interesting, I shall detail its leading particulars.  The prosecutrix
was a married woman, apparently between thirty and forty years of age.  The de-
fendants were two brothers, by one of whom the act was alleged to have been  per-
petrated, while the other held the husband forcibly down at not more than two yards
distance from the spot where his wife was said to have been violated.  The woman
swore positively to the penetration, but could  not swear to the emission ; and she as-
signed as a cause, the agitation and syncope which supervened during the struggle.
She perfectly comprehended the import of the question put to her; and declared ex-
plicitly, that she had, on every previous  coition with her husband, been sensible of
the act of emission. Nor could  she say thut she was aware  of any unusual  humidity
of the parts immediately after  the commission of the crime.  This she ascribed to
having tumbled or waded through some water at the bottom of the dean where the
assault took place. On both these points, Baron Richards laid great stress; and told
the jury, that the fact of emission must be sworn to or proved, in order to constitute
the crime of rape, according to the law of England.   The  evidence of the husband
also went to prove, that the ravisher remained long enough on the body of the female
to complete his purpose.  The evidence for the prosecution, however, failed in cre-
dibility; as the prisoner's counsel, besides the above particulars, showed satisfacto-
rily, that the man and his wife were at the time in a state of intoxication,  sufficient
to destroy the validity of what they had sworn to. The prisoners were accordingly
found not guilty.  (Edinburgh Medical and Surgical Journal, vol. 12, p, 207.) 
RAPE.
163
yet if we proceed to notice the mode in which the emission is to
be proved, we shall find  some discordance.  East observes, that
penetration is prima facie evidence of it, unless the contrary ap-
pears probable from the  circumstances; and adds, that Hawkins
is express to that purpose.   " So where, upon an indictment for
an assault with an intent to ravish the prosecutrix, she swore that
the defendant had had his will with her, and  had  remained  on
her body as long as he pleased, though she could not speak as to
emission, Judge Buller said that this was a sufficient evidence to
be left to a jury of an actual rape;  and therefore ordered the de-
fendant to be acquitted under the present charge.   He said, 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: and that  was ruled
not  to invalidate the evidence which  she gave of a rape having
been committed  on her."*  Chitty observes, " It is certain that
no  direct evidence need be  given  to the emission; but that will
be presumed on  proof of penetration, until rebutted by the pri-
soner.  And it will suffice to prove the least degree of  penetra-
tion, so that it is not necessary that the marks of virginity  should
be taken from the sufferer."!   So  also Baron Richards,  in the
case cited below, although he deemed emission essential, and the
woman was not  sensible of  it, yet told the jury,  that it  was  for
them to deliberate whether, on a careful  examination of all the
other collateral circumstances of the case, they had reason to be
satisfied that this part of the crime, as well as every  other, had
been actually consummated/};
   If there be any truth  in the views already intimated concern-
ing  the possibility of committing this  crime, and the  cases in
which it may be completed, certainly the necessity of establishing
the fact of emission must prove an insuperable barrier to  any con-
viction.  We may divide females, with reference to this subject,
into two classes—the young, unmarried persons;  and the mar-

  * East, 2, p. 440.  This case was tried at the Winchester assizes, 1787.
  t Chitty, 2, p. 812.  I have already quoted the'case (p.'138,)  on which the latter
part of this dictum is founded.   This may probably be correct in children under ten
years of age; but in all others, it will be readily observed, that if it be allowed, all
possibility of the female's proving  the emission is in a great measure done away.
Surely such instances are rather to be considered as attempts to commit the crime,
than the consummation of it.
  X Edinburgh Medical and Surgical Journal, vol. 12, p. 208. 
164
RAPE.
 ried, or those accustomed to sexual intercourse.   As to the first,
 it may be considered very improbable  that they could  be con-
 scious of this, while labouring under the influence of terror, se-
 vere pain, faintness, or insensibility.  And to this class also be-
 long those of a very tender age, who are totally ignorant of the
 nature of the crime, and of what is necessary to complete  it.
   It is, however, urged, that there is great propriety in requiring
 this testimony from married females; and that if they are not
 sensible of that " which constitutes the very essence and climax
 of feeling," their declarations do not deserve much credit  as to
 the other parts, in which a less degree of poignancy of sensation
 is requisite.*  I confess, that language of this kind appears  to me
 misapplied.  If proper  resistance be made, where the contest is
 solely between two individuals of strength in any degree propor-
 tionate, the crime can scarcely be  completed without violent per-
 sonal injury to the female.  The exhaustion that must be present,
 superadded to mental  agitation,  leaves us  some reason to  doubt
 whether  this enjoyment can be realized.   And  it also  deserves
 consideration, that if the resistance has been complete throughout,
 such pain may  ensue from the repeated attempts  to effect the
 crime, as to dull  all sensation on this point.  I forbear pressing
 the case mentioned by Judge Buller, although it is  probable that
 other females, like the one mentioned by him, may not be  sensi-
 ble of it.f
   The diversity of  opinion that  I  have noticed, has extended to
 our  own country.   In  a case tried some years since at  the Al-
 bany Circuit, in this state, by the late Justice Piatt, he declared
 the law to be as laid down by the Judges in Hill's case.  But in
 Pennsylvania'emission is not deemed essential.   In  a  case  tried
 in 1793, when it  was urged that both penetration and  emission
 should be proved, the Judge  said—"We are inclined to the opi-
 nion, that  the crime  is sufficiently proved, when penetration is
 proved.   It is not to be expected that the woman especially agi-

  * Edinburgh Medical and Surgical Journal, vol. 12, p. 209.
  t "Considering the nature of the crime,  that it is a brutal and violent attack upon
 the honour and chastity of the weaker sex, it seems more natural and consonant to
 the sentiments of laudable indignation which induced our ancient lawgivers to rank
this offence among felonies, if all further inquiry were unnecessary, after satisfactory
proof of the violence having been perpetrated by actual penetration of the unhappy
sufferer's body.  Under what principle, and 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.  (East, 2, p. 436, 437.) 
RAPE.
165
tated by such outrage, should be able to give explicit proof of this
circumstance."*  So also in South Carolina, in 1813, Judge Nott
said he had strong doubts  whether it was  necessary to prove
emission, and the court refused to disturb the verdict.f
  The difficulties attending such conflicting decisions in England,
probably led to the enactment of a recent law there, by which it
is ordained, that  on trials for the crime of rape, and of carnally
abusing girls under the respective ages of ten or twelve years of
age, it is not necessary to prove actual emission in order to con-
stitute carnal knowledge, but this shall be  deemed proved, upon
testimony of penetration only .J  This  law was passed in 1828,
9th George IV,  and it is often  called Lord Lansdowne's act, as
that nobleman introduced it.
  Scarcely, however, had this become  the  statute  law  of the
realm, when difficulties occurred in its  construction.   In August,
1831, on a trial before Justice Taunton, the female proved pene-
tration, and also that she felt warmly in her private parts, but
could not prove emission.  The counsel for the  prosecution sub-
mitted that this was  a case  exactly coming within the late law.
The judge, however, said that all that constitutes carnal know-
ledge should have  happened.  The jury must be  satisfied  from
circumstances that emission took place, and  although it was not
necessary specifically to prove it, yet the circumstances should be
such as to infer it.  The prisoner was accordingly acquitted.^
  I must be permitted to agree with the reporter of the case, in
saying that this decision makes the statute  of George  IV, in-
operative.   Even before its enactment, it was  unnecessary to give
direct evidence of emission.   It was enough if the circumstances
were such  as  to satisfy that it had  taken place.  But how can
Judge  Taunton's opinion  be reconciled with  the statute, which
says, that it is  sufficient to prove penetration  only ?
  His  decision,  however, appears  to  have  been  subsequently

  * Commonwealth v. Sullivan, Addison's Pennsylvania Reports, p. 143.
  t State v. Le Blanc, 2 South Carolina Constitutional Reports, 351.  I have already
mentioned that in Illinois, the statute requiring  proof of emission was formally re-
pealed.  Acts passed in 1819, p. 219.
  X Professor Amos queries whether, under this law, an eunuch may not be found
guilty of a rape; and again he suggests the possible case, where no penetration is
proved, but emission only.  London Medical Gazette, vol. 8, p. 33—96.  In this last,
however, the jury would doubtless infer the one from the other, particularly as Lord
Hale has pronounced  emission an evidence of penetration.
  § 2 Moody, and Malkin p. 122 ; Rex v. Russel. 
166
RAPE.
overruled.   In Rex v. Cox, at the Worcester assizes, in 1832,
before Justice Littledale, the jury found that there had been pene-
tration, but no emission from  the prisoner, and the judge after
passing sentence  on the prisoner, reserved the case for the con-
sideration of the fifteen judges.  They held the conviction to be
right*
  In Scotland, after much diversity of opinion, the point now con-
sidered was settled in 1821, by Lord Gillies, who " laid it down,
with the concurrence of the court, that rape may be perpetrated
by complete penetration without emission, and that when the in-
jured party is below the age of puberty, it is enough if her body
has been entered, though  not  to  the  degree which  takes place
with a full grown woman.f
  By a recent enactment in the  state of  New York, a similar
provision has been adopted in the following words:  " Proof of
actual penetration into the body, shall be sufficient  to sustain an
indictment for rape, or for the  crime against nature."J

  IV. Of some Medico-Legal questions connected with this subject.

  Three questions  relating to the  subject before us, have  at va-
rious times been discussed, and they all deserve a brief notice.
  1.  Whether the presence of the venereal disease in the female vio-
lated, is a proof in favour or against her accusation ?  If on exami-
nation, the marks of this disease be found recent, it will be proper
to consider them as corroborating circumstances.   It is  neces-
sary, however, to remark, that the symptoms of venereal infection
do not commonly make their appearance  until three days after
receiving it, while  the  examination should be made within  that
time.   Should the appearances indicate any thing like a disease
of long standing, they must of course  tend to weaken the com-
plaint of the female.   The following are  cases which will illus-
trate  these observations.  On the  11th  of Dec. 1811, Fodere was
directed by the imperial attorney of the court of Trevoux, to visit
a female aged from eleven to twelve years, who accused  a  man

  * 5Carrington and Payne, p. 297; American Jurist, vol. 11, p. 459; Chitty's Med.
Jurisp. part 1, p. 379.
  } Alison's Principles of the Criminal Law of Scotland, p. 210.
  t Revised Statutes, vol. 2, p. 735. 
RAPE.
167
 aged fifty, and of large stature, of having committed a rape on her.
 The crime she stated was consummated on the 26th of Nov. pre-
 ceding.  On examination, our  author  found  that in this person,
 the menses had  not yet appeared, the nymphae were inflamed,
 and the  parts  surrounding the meatus  urinarius  discharged  an
 acrid gonorrhoeal fluid, the hymen was ruptured, and the entrance
 of the vagina enlarged, but the  fourchette was not ruptured nor
 were there any signs of  great violence, or such as might be ex-
 pected from the disproportion between the individuals.  Foder^
 reported that the  venereal disease in  this child was a proof of
 connexion, but he  did not consider it so of rape.   Her conduct,
 he  adds,  was  destitute  of all  modesty.   The accusation was,
 however, persisted in; but on the trial, it was proved that the
 parents had placed her with a woman who was a prostitute, and
 also that the  child had never complained  of violence, until after
 she discovered symptoms of the venereal.   The prisoner was ac-
 quitted.*
  A  somewhat opposite, but  very interesting case,  occurred a
 few years since at  Rome.  A young  man, of excellent family
 and high character, was  accused of a rape, by  a girl not yet ar-
 rived  at the  age of puberty.   He was arrested, and  a medical
 examination  of the  female was had  by  three physicians and
 two midwives. They reported  that  they found " the  sexual
 organs altered  and tumid,  and  at the  entrance of the vagina,
 the hymen  was entirely wanting;  the whole of the vagina
 was irritated,  inflamed,  and of a deep red colour, but particu-
 larly so at the  point of the fraenulum."  The vagina was dila-
 ted, so as to admit a finger with perfect facility; and finally, they
 observed a copious discharge of purulent and sanguinolent mat-
 ters.  The medical witnesses gave it, as their opinion, that the
 complainant had been  recently deflowered, and that the above
 mentioned flux, by its quantity and appearance, might be derived
 from a mechanical injury, or actually from a communicated go-
 norrhoea.
  The girl swore that the discharge commenced immediately after
the  rape.  It did not yield to the ordinary antiphlogistic treat-
ment,  and two  subsequent examinations by the same physicians
* Fodere, vol. 4, p. 365—366. 
168
RAPE.
induced them to lean still more strongly to the idea of its being
syphilitic.
   The accused  (named Crespi) was condemned.   His case was
reviewed by Metaxa, professor  of anatomy, at the Sapienza
college, and the argument resolved  itself into two points,—first,
to endeavour to set aside the charge of rape; and second, to de-
monstrate the pre-existence of leucorrhoea in the female.
   On the first, the usual objections were urged as to  the uncer-
tainty of the proof to be derived from the absence of the signs of
virginity, and it was argued that a rape thus committed on a fe-
male  under the age of puberty,  should have left more marked
and severe traces.
   His observations on  the second were more conclusive.   Con-
demning the insufficiency of the examinations, he asserts that the
actual nature of the affection might  have  been ascertained with
certainty.  Leucorrhoea is constantly  derived  from the uterus,
while gonorrhoea does not extend farther than the external organs.
If, therefore, these last be washed carefully, and inspected, no
mistake could occur.   Again, he  urged that gonorrhoea has its
regular  periods of high inflammation and  decline; whereas leu-
corrhoea is often chronic, and increases and diminishes at  inde-
terminate times.  The occurrence of the  discharge immediately
after the alleged violence, is also against the  idea of its syphilitic
origin.
   Some  criticisms  on  the depositions  of  the  examining physi-
cians, conclude this work of Prof. Metaxa;  such as their speak-
ing of most acute inflammation,  and yet  no pain appearing to
have  been present; the vagina was much inflamed, and  yet it
could be examined with perfect facility.  No haemorrhage, nor
inability to move, appears to have followed the crime: Further,
no mention was made  of the presence of  the carunculae myrti-
formes, which should have been seen from the laceration of the
hymen.
   Our author also brought testimony to prove that the accuser
was of a scrofulous habit, and  at a very early age had suffered
from leucorrhoea.
   On these grounds Prof. Metaxa, and twenty-eight  professors
and physicians at  Rome, who approved and signed his publica-
tion, gave an opinion in favour of  the convicted criminal.  It led
to a reversal of his sentence. 
RAPE.
169
  It is curious to remark, and the observation is a shrewd one of
the reviewer whom I quote below, that the very argument of
Prof.  Metaxa, while it certainly goes to prove that the physicians
were  wrong  in supposing gonorrhoea to be  present, strengthens
greatly the physical proofs of  rape.  We  should  not expect
marks of severe  injury or violent  inflammation in  parts previ-
ously relaxed by leucorrhoea, but appearances  corresponding to
what  was observed.  Such  indeed was probably the truth of the
case,  and the Illustrissimo  Signor Crespi escaped from a suffi-
cient  want of discrimination on a collateral  point of testimony.*
   I add the following, because it occurred  in  New York:—H.
Flynn was indicted in 1822, for an assault with intent to commit
a rape on a  child aged ten years.  She said that he had  taken
her into the  cellar, and kept her  there for half an hour between
one  and two, p. m.  At night, the mother found her linen disco-
loured and stained with blood; and in a short time, symptoms of
what Dr. Brown,  one of the witnesses,  considered gonorrhoea,
came on.  The prisoner was put  into Bridewell; and Dr. Walker,
the  attending physician, proposed  an examination, which he
resisted until forced thereto by the police.   His linen was found
discoloured,  and conclusive marks of disease appeared.  On the
trial,  these facts were proved.  Dr. Mott, for the prisoner, stated,
that  he had  been called upon two days  after the examination
made by Dr. Walker, and  found no marks  of  disease.   He had
also visited the child, and was uncertain whether it was  the vene-
real or not—he deemed it impossible to tell at that age, and under
the circumstances of the case.   Dr. Walker was again called,
and urged in explanation, that by using proper remedies, the most
skilful physician might be deceived by the patient, and the disease
be so far removed as not  to be visible in even much  less time
than  two  days.   This opinion was  concurred in by Dr.  Mott.
The  prisoner was found guilty.f

   2.  Can a female  be violated  during sleep, without her  know-
ledge ?  If the sleep has been caused by powerful  narcotics, by
intoxication, or if syncope or excessive  fatigue be present, it is

  * I  have obtained all my knowledge of this case from  a review of " Dissertazione
medico-forense  riguardante la causa della Illmo. Sig. Achille Crespi,  accusato di
stupro immaturo.  Autore Luigi Metaxa, publica professore, &c. Roma, 1824"__in
Chapman's Journal, vol. 9, p. 427.
   j- Wheeler's Criminal Cases, vol. 1, p. 74.
    VOL. I.                        15 
170
RAPE.
possible that this may occur;  and it ought then to be considered,
to all intents,  a rape.   In such cases, the quantity of stupifying
drugs administered  may be so great,  as to render her unable,
even if awakened by the violence, to  withdraw from it.  The
proof of the crime is to  be obtained from the injury sustained;
from the symptoms  attendant on the exhibition of narcotics, (if
they have been given,) and which will be noticed under the head of
Vegetable  Poisons .;  and finally, by (what may certainly happen)
pregnancy occurring, and its term corresponding to the above
era.   As to natural  sleep, I totally disbelieve its possibility with
a  pure  person.  The medical faculty of Leipsic, however, in
1669, decided that it might be accomplished.  I prefer, however,
the opinion of the juridical faculty of Jena, who in a similar case.
only allowed the exceptions  already stated.*  As to  females ac-
customed to sexual  intercourse, it has been supposed practicable;
but if we do  agree  to that opinion, the  circumstances certainlv
should be very corroborative.  Some degree of scepticism may,
I think, be permitted concerning it.f
   3. Does  pregnancy ever follow rape ?   On this question a great
diversity of opinion has existed.  It was formerly supposed that
a certain degree of enjoyment was necessary in order to cause
conception, and accordingly the presence of pregnancy was
deemed to exclude the idea  of a rape.   Late writers, however-
urge that the  functions of the uterine system are, in  a great  de-
gree, independent  of the will;  and that there may be physical
constraint  on  those organs, sufficient to induce the required state,
although the will itself is not consenting.   We do not know, nor
shall probably ever  know, what is necessary to cause conception ;
but if we reason from analogy, we shall certainly find cases where
females have conceived while under the  influence of narcotics, of
intoxication,  and even  of asphyxia,  and  consequently without
knowing or partaking  of the enjoyment that is  insisted on.   I
 should, therefore, consider that pregnancy  was not incompatible
 with the  idea of  rape, under the limitations already laid down.

   * The Faculty of Leipsic decided, " dormientem in sella virginem insciam deflo-
 rari posse."  (Valentini Novellas, p. 30, 31.)  In his Introduction, (p. 2,) our author
 sneers at the ridiculous decision in  this case: " Non omnes dormiunt, qui clausos
 et conniventes habent oculos."
   f Sec on this question, Fodere, vol. 4, p. 367; Capuron, p. 52; Smith, p. 401; and
 Brendelius, p. 96 and 98-9.  This last doubts its  possibility, even in the exceptions
 stated in the text. 
RAPE.
171
Several writers on this subject are,  however,  of a different opi-

nion, and particularly Dr. Bartley, who goes so far as to recom-

mend  that  pregnancy  shall   be  considered a  proof of  acqui-

escence ;  and that in order to  ascertain this,  the punishment of

the criminal be delayed till the requisite time.*

   The law  is in  accordance with the opinion advanced  above.

Fodere mentions that there is  a decree of the parliament of Tou-

louse, which decides in the affirmative and  that  on the opinion of

physicians who reported, " Posse quidem  voluntatem cogi, sed nan

naturam, qux semel irritata pensi voluntate fervescit,  rationis, et

voluntatis sensus amittens."\   The English law anciently appears

to have considered  pregnancy as destroying the  validity  of the

accusation. Dalton  quotes Stamford, Britton and Finch, in  favour

of this opinion; but later writers, and in particular Hawkins and

Hale, question its correctness, and deny its  being law.J   "  It was

formerly supposed," says East, " that  if a woman conceived, it

was no rape, because that showed her consent;  but it is now ad-

mitted on all hands, that such an opinion  has no sort of founda-

tion either in reason or law."§
   A few words are necessary on the  crime against  nature, and

they may be properly introduced  here.||   It may  be required to

  * Bartley, p. 43. The scope of his argument is, that the depressing passions, such
as fear, terror, &c. will prevent the necessary  orgasm from occurring.  Farr  inti-
mates a similar opinion, (p. 43 ;) and so does Meierius, the editor of Brendel, (Note,
p. 99.)  Those who entertain the belief maintained in the text, are Capuron, p. 57;
Fodere, vol. 4, p. 369 ; Metzger, p. 257, 486.
  " It is not perhaps altogether  impossible," says Dr. Good, " that impregnation
should take place in the case of a rape, or where there is a great  repugnancy on the
part of the female;  for there may be so high a tone of constitutional orgasm as to
be beyond the control of the individual who is  thus forced, and not to be repressed
even by a virtuous recoil, or a sense of horror at the time."  (Good's Study of Medi-
cine, vol. 4, p. 100.)|      t Fodere, vol. 4, p. 360.      X Burn's Justice, art. Rape.
  § East's Crown Law, vol. 1, p. 445.
  In connexion with this, it has been inquired whether pregnancy may follow deflo-
ration ?   I apprehend that this is to be  answered  in the  affirmative, although the in-
stances are comparatively rare. It is quite common, in  cases of seduction, to swear
that there has been only a single coitus ; and although  this may be doubted in some,
yet in others there is hardly just ground to disbelieve a solemn affirmation.  It also
has occasionally, I presume, occurred to most physicians, on comparing the term of
gestation with  the period of marriage, to render it probable that the pregnancy must
have happened at the earliest possible term.
  " Ce qui rend  un premier coit infructueux, (says Metzger, p.  486,) c'est, a. mon
avis, la precipitation de l'homme, bien  plutot que la douleur qui suit la defloration.
Knobel est egalement de cet avis."
  || The following extract  is curious, and for want of a better place, I subjoin it here  :
*' De tous les crimes contre les personnes, l'attentat k la pudeur est celui pour lequel
l'influence des saisons est le plus evidente. Sur 100  crimes de cet  espece, on en
compte en ete, 36; au printemps, 25 ; en automne, 21; et en hiver, 18 seulement."
(Guerry.  Essai sur la Statistique Morale de la France.   Paris, 1833.  Page 29.) 
172
RAPE.
examine the individual on whom it has been committed. If with-
out consent, inflammation,  excoriation, heat and contusion will
probably be present.  The  effects of a frequent repetition  of the
crime, are a dilatation of the sphincters, ulcerations on the parts,
or a  livid appearance, and thickening.  It  has been suggested,
that secondary symptoms of lues might be  mistaken for  these;
but I  am hardly of  this opinion.  No man, however, ought to be
condemned on medical proofs solely : The physician should only
deliver his opinion  in favour or against an accusation already
preferred.*
  The punishment of this crime has always been signal.  Death
was prescribed by the Jewish and Roman laws, and is still  by the
English; and  where both  consent, provided the one on whom
it is committed is above the age of fourteen, both  are punished.
In this  state,  it  was also  formerly made capital, but now is
changed to imprisonment for life.

   * Zacchias, vol. I, p. 382. Fodere, vol. 4, p. S74.  Mahon, vol. 1, p. 138> 
CHAPTER  VI.
                              PREGNANCY.


  1. Laws of various countries concerning the presence of pregnancy in civil and in
    criminal cases.  2. Signs of real pregnancy—reasons of the difficulty of ascer-
    taining it in medico-legal cases.  Notice of the principal signs :  Enlargement of
    the abdomen—diseases that may produce this: Appearance of the areola: sup-
    pression of the menses—circumstances that may mislead with this: Nausea, &c.:
    Motion of the foetus;  Quickening—explanation of this term—variety as to its oc-
    currence : Examination of the state of the uterus—of its neck by the speculum :
    examination  of the vagina; condition of the blood,  urine, and salivary  glands:
    Auscultation—directions for its application.  Impropriety of relying on any single
    proof of pregnancy—extra  uterine  pregnancy—pregnancy complicated  with
    dropsy.  Concealed pregnancy—pretended pregnancy : Circumstances to be no-
    ticed—the age of the individual—state of the menstrual function—variety in the
    period of its commencement and its return.  Diseases that may be mistaken for
    pregnancy—moles—hydatids—physometra, &c.  3. Superfcstation.  Cases that
    have been deemed instances of it: A blighted and  a perfect fetus—different
    coloured children—children born at considerable intervals.   Explanation of these
    cases by the opponents of the doctrine.  Double uteri. Application of superfoe-
    tation in legal medicine.  4.  Whether a female can become pregnant, and remain
   ignorant of it until the time of labour: Cases in  which this has  been deemed
    possible.


    Few  questions occur in legal medicine, of greater importance

 than the one we  are about considering.  On its proper decision

 may depend the  property, the honour, or the life of the  female.

 It will probably lead to a better understanding of this  subject, if

 we notice,

    1.  The laws of various countries relating  to  the presence of

 pregnancy.

    2.  The  signs of  real  pregnancy,  together with the best mode

 of ascertaining  concealed or pretended pregnancy.

    3. The arguments and proofs  in  favour and  against the doc-

 trine of superfoetation.  And,
   4. Some questions arising out of the previous examination.


 I.  Of the laws  of various countries which relate to the presence of

                             pregnancy.

   The Roman  law exempted a condemned  female  from  pu-

nishment, if  she was pregnant, until after her  delivery—" quod

prcegnantis mulieris  damnatce poena  differatur quoad pariat."
                                 15* 
174
PREGNANCY.
  There are two leading cases in the English or common law,
which may require a knowledge of the signs of pregnancy. One
is a proceeding  at common law, " where  a widow is suspected
to feign herself  with child, in order to produce a supposititious
heir  to the  estate.   In this instance, the  heir presumptive may
have a writ de ventre inspiciendo, to examine if she be with child
or not; and if she  be, to keep her under proper restraint until
delivered; but if the widow be, upon due examination, found not
pregnant, the presumptive heir shall be admitted to the inheritance,
though liable to  lose it again on the birth of a child within forty
weeks from the  death of a husband."
  The interest  that cases of this nature sometimes occasion,
and  the  precautions that have been taken in England, may be
learned from the following report.   Sir Francis Willoughby died,
seised of a large inheritance.  He left five daughters, (one of
whom was  married to Percival Willoughby,) but not any son.
His  widow at the  time of his death, stated that she was with
child by him.   This declaration was evidently one of great mo-
ment to. the daughters, since if a son should  be born,  all the five
sisters would  thereby lose  the inheritance descended to them.
Percival Willoughby prayed for a writ de ventre inspiciendo, to
have the widow examined; and the sheriff of  London was ac-
cordingly directed  to have  her searched  by twelve women, &c.
Having complied with this order, he returned that she was twenty
weeks gone with child, and that within twenty weeks, fuit pari-
tura.  " Whereupon another writ issued out of the common pleas,
commanding the sheriff safely to keep her in such an  house, and
that  the door should be  well guarded; and that every day he
should cause her to be viewed by some of the women named in
the writ, (wherein ten were named,) and when she should be de-
livered, that some of them should be with her to view her birth,
whether it be male or female, to the intent there should not  be
any  falsity."  And  upon  this  writ, the sheriff returned, that ac-
cordingly he had caused her to be kept, &c, and that  such a day
she was  delivered of a daughter.*

  * Croke's Elizabeth, p. 566.  See also, in the matter of Martha Brown, ex parte
Wallop, in Brown's  Chancery Cases, vol. 4, p. 90; ex parte Aiscough, Peere Wil-
liams' Reports, vol.  2, p. 591, ex parte Bellet, Coxe's Chancery Cases, vol. I, p.
297.  Another case of the same nature has very recently occurred in England.  Mr.
Fox of Uttoxeter, died aged 60, in May 1835, leaving a widow to whom he had been 
PREGNANCY.
175
    The other instance is evidently borrowed from the Roman law,
 as  quoted above.   When a woman  is  capitally convicted, and
 pleads her pregnancy, though this is no cause to  stay the  judg-
 ment, yet it is to respite the execution till she be delivered.  " In
 case this plea be made in stay of execution, the judge must direct
 a jury of twelve matrons, or discreet women, to ascertain the
 fact, and if they bring in their verdict, quick with child, (for barely,
 with child, unless it be alive in the womb, is not sufficient,) execu-
 tion shall  be  staid generally till the  next session, and so from
 session  to session, till either she is delivered, or  proves  by the
 course of nature not to have been with child at all."*
   " Here (says Dr. Paris) the law of the land  is at variance with
 what we  conceive the law of nature, and  it is at variance with
 itself;  for it is a strange  anomaly, that  by the law of real  pro-
 perty, an infant in ventre sa mere, may  take an estate from the
 moment of its conception, and  yet  be hanged four months after
 for  the  crime of its  mother."f   In the striking language of Dr.
 Kennedy,  " the maxim of British law is, that a child in the fif-
 teenth week of its foetal existence, is to be deprived of life, for its
 mother's crime, whilst a child in the sixteenth, is to be protected
 from such an unjust and unmerited fate."   Nor  is the evil confined
 to this.   The manner of administering the law, is  equally repug-
 nant to the dictates of humanity and justice.  " A  jury of twelve
 matrons or discreet women," are little  calculated to decide on
 the  presence or absence of pregnancy, at the very period when,
 (as  we shall  hereafter see,) there is often the greatest doubt.   A
 few examples will strikingly illustrate this. Ann Hurle, condemned
 for  forgery at the Old Bailey, in 1804,  as  a last  resource, pled
 pregnancy.   She  contrived so  to  baffle the skill  of the female

 married about six weeks.   Shortly afterwards, she  announced herself with child,
 and the presumptive legatee applied for the writ de ventre.  He did not ask for the.
 old writ of a mixed jury of matrons and men, but only that she should be examined
 by some professional man of his own selection.  The widow opposed it, but said
 she was willing to answer any questions.   The surgeon who had  attended Mr. Fox,
 swore that he had examined Mrs. Fox, and believed her to be pregnant.  He also
 expressed his apprehensions, if an additional examination was persisted in, of peril
 to her health, and to the life of the unborn infant.  The Vice Chancellor (in whose
 Court this case occurred) let it stand over for a month, but as there was then no
 arrangement between the parties, he directed the master to appoint two matrons,
 who with a medical man on each side, should visit Mrs. Fox once a fortnight, giving
 her two days notice of each visit.  At the end of the usual period she was delivered
of a son and heir.  London Med. Gazette, vol. 16, p. 697. Vol. 17, p. 191.
  *  Blackstone, vol. 4, p. 394, 395.       f Paris, vol. 3, p.  141. 
176
PREGNANCY.
 examiners, that they could not come to any decision.  The sheriff

 had recourse to the judgment and experience of Dr. Thynne, who

 declared that she was not pregnant, and she was executed.  In a

 case that happened in Ireland, where also the female jury could

 not decide, some of them were unmarried, and not  one of them

 ever attended a lying-in case.  (Kennedy, p.  195.)  But they are

 sometimes not  contented with the  confession of ignorance.   At

 Norwich, (Eng.) in  March, 1833, a murderess pled pregnancy.

 Twelve married women, after an hour's investigation, returned a

 verdict that she was not quick with child.  She was ordered for

 execution, when  three of the principal  surgeons in the place,

 fearing that there  might be a mistake, waited on  the convict,

 examined  her, and found her  not only pregnant, but quick with

 child.  They ascertained  this by  manual examination.   On a

 representation to the  judge, she was  respited; and on  the 11th

 of July, was safely delivered of  a living child.*

   In Scotland,  a pregnant  female  is entitled to have sentence

 delayed;  or if it has passed, to be respited, till her delivery takes

 place ; and that equally whether she be quick with child or not.-\

   Fodere and Capuron appear to have  examined every law in

 the French code, which has a  bearing on this subject.  The civil

 code, sect. 185, declares, that no female shall be allowed to con-


  * London Medical Gazette, vol. 12, p. 24,  585. Kennedy, p. 200.   Mr. Smith,
 who has added some legal notes to Dr. Kennedy's work, has  ingeniously argued
 that the above provision is not contained  in the ancient common law, and that all
 which it required, was the presence of pregnancy. I fear,  however, that the quota-
 tion from Blackstone gives the actual law of England.
  t Alison's Practice of the Criminal Law of  Scotland, p. 654.  The English courts
 will also interfere, when a pregnant female has been imprisoned.  Thus, in the case
 of Elizabeth  Slymbridge, (Croke's James, 358,) " upon suggestion that she had
 been imprisoned for divers weeks, and was with child, and would be in danger of
 death, if she should not be enlarged," Sir Edward Coke, the chief justice, admitted
 her to bail, to prevent the peril of death to her and her infant; and in giving  his
 opinion, he cites a similar case, which happened in the 40th of Edward III.  The
editor remarks, that these cases are cited as extraordinary instances.  The last case
 is mentioned in Coke Littleton, 289, a.  The record states, " Quia eadam Elena preg-
 nans fuit, et in periculo mortis, ipsa dimittitur  per manucaptionem, &c. ad habendum
 corpus, &c."  And recently, legal protection  has been extended to witnesses who
 may be pregnant. In an act, passed 1 William IV, (chap. 22,) and entitled " An  act
 to enable courts of law to order the examination of witnesses upon interrogatories
 and otherwise," it is directed, among other things, that no examination or deposition
 shall be read in evidence, unless it shall appear to the satisfaction of the judge, that
 the examinant or  deponent is unable, from permanent sickness, or other permanent
 infirmity, to attend the trial. In the case of Abraham v. Newton, (8 Bingham's Re-
 ports, 274,) the question came up, whether pregnancy and imminent delivery was a
cause for examination under this act.  It was  decided, that  it might be ; but it must
be  shown by the affidavits of competent persons, that the delivery will probably hap-
 pen about the time fixed for the trial of the cause. 
PREGNANCY.
177
tract marriage before the age of fifteen full years.  Nevertheless,
such marriage shall not be dissolved,  1,  when six months have
elapsed after the female,^or both of the parties, have attained the
required age; and 2, when the female,  although not of the required
age, has become pregnant before the expiration of six months.  The
penal code,  sect. 27, also declares, that if a female, condemned
to die, states that she is pregnant, and if it be proved that she is
so, she shall not suffer punishment until after her delivery. Seve-
ral other laws are mentioned, which, by  implication, may be re-
ferred to this subject, but it is not necessary to state them.  The
above are the important ones now in force in  France.*  I may,
however, add, that the law last  quoted, was in existence and has
been acted upon since the year  1670,  in that country.f
   The following is a recent enactment in the state of New York,
intended to  take the place of the common law.
   " If a female convict, sentenced to the punishment of death, be
pregnant, the sheriff shall summon a jury of six  physicians, and
shall give notice to the district attorney, who shall have power to
subpoena witnesses.   If on such inquisition,  it  shall  appear that
the female is quick with child, the sheriff shall  suspend  the  exe-
cution, and  transmit the inquisition to  the governor.   Whenever
the governor is satisfied that  she is no longer quick with child, he
shall issue his warrant for execution, or commute it, by imprison-
ment for life in the state prison."J

II. Of the signs of real  pregnancy, and of concealed and pre-
                        tended pregnancy.

   In the ordinary practice of medicine, but little difficulty ever
occurs in ascertaining the presence  of pregnancy.  The female,

  * Fodere, vol. 1, p. 421 to 432. A law, passed on the 23d Germinal, year 3, (1795)
was still more mild in its  provisions.  It  prescribed, that no woman accused of a
capital crime, should be brought to trial, until it was properly ascertained that she
was not pregnant. In conformity with this, the court of cassation  reversed several
decisions of inferior criminal courts, where it appeared that the female had not been
properly examined;  and it seems, indeed, that it demanded proof, that in such cases
the examination had always been made.  (Ibid.  p. 428 to 431.)  This is probably
abolished, as no mention is made of it in the code now in force.
  t I take the following from a newspaper:  " The supreme court of Massachusetts,
at its law session in Boston, in March, 1834, decided, that a grandchild born eight
months and a half after the death of his grandfather, is included in a bequest to
grandchildren '  living at his decease.'' "
  X Revised Statutes, vol. 2, p. 658. 
178
PREGNANCY.
 when she consults  a physician,  is frank in her  avowal  of the
 symptoms present; and from her narrative, an opinion sufficiently
 accurate can generally be formed.  The reverse, however, takes
 place in legal medicine.  Here, pregnancy may be concealed by
 unmarried women, and even by married ones under certain cir-
 cumstances, to avoid  disgrace, and  to enable them to destroy
 their offspring in  its mature or immature state.  It may also be
 pretended,  to gratify the  wishes of relatives—to deprive  the
 legal successor of his just claims—to extort money, or to delay
 the execution of punishment.
   Neither of these can be properly investigated, without recurring
 to the signs of real pregnancy, and this remark deserves particu-
 lar notice, since, with all the  light that modern science affords,
 serious errors have, notwithstanding, been committed.   The fe-
 male has an  interest, and a wish to  deceive the  examiner, and
 her  testimony, which, in  ordinary cases, is so much relied on, is
 here suspicious, or not  to be credited.
   Mahon has suggested  a useful division of the  signs of preg-
 nancy, viz. those  which affect the system generally, and those
 which affect the uterus.*
   The changes observed in the system from conception  and preg-
 nancy, are principally the  following:  increased irritability of
 temper, melancholy, a languid cast of countenance, nausea, heart-
 burn, loathing of food, vomiting  in the morning, an increased
 salivary discharge,  feverish heat, with  emaciation and costive-
 ness, occasionally depravity of appetite, a congestion in  the head,
 which gives rise to spots on the  face, to headache, and erratic
 pains in the face and  teeth.  The pressure  of increasing preg-
 nancy, occasions  protrusion of the  umbilicus, and sometimes
 varicose tumours, or anasarcous swellings of the lower extremi-
 ties.   The breasts also  enlarge, an areola, or  brown circle, is ob-
 served around the nipples,  and a secretion of lymph, composed
 of milk and water, takes place.
   All of these do not  occur in every pregnancy, but many of
 them in most cases.
  • Mahon, vol. 1, p. 142.  In considering this subject, I rely mainly on the opinion
of men skilled in the science of midwifery, and accordingly have particularly noticed
the works of Dr.  Kennedy,  (Obstetric Auscultation.)  Dr. Gooch, (Diseases of
Women, chap. 3, and Midwifery.)  Dr. Davis, (Obstet. Medicine.)  Dr. Blundell,
(Lectures.)  Dr. Denman.  Dr. Dewees. Mr. Ashwell.  Dr. Ryan.  Mr. Hogben.
Professor Capuron. Dr. Montgomery, (Cyclopedia of Practical  Medicine,  art.
Pregnancy.) 
PREGNANCY.
179
  The changes  that affect the uterus, are—a suppression of the
menses.  These cease returning at their accustomed period.  An
augmentation in the  size of the womb.  This is not perceptible
until between the  eighth  and tenth  weeks.  At that time, the
foetus, with the surrounding membranes, and the waters contained
in them, so enlarge it, that it may be felt lower down in the vagina
than formerly;  nor does it ascend, until it becomes so large as
to arise out of the pelvis; and this is accomplished at about the
fourth month.*   In the intermediate  space, an examination per
vaginam, will discover the uterus to be heavier and more resisting;
and by raising it on the finger, this indication will be particularly
remarked between the third and  fourth months.  " In general in
the fourth month, the  fundus of the uterus  may be felt, especially
in a thin person, above  the  anterior wall of the pelvis."  The
enlargement  continues,  and  becomes visible  during the fifth
month, it rises to half-way between the symphysis pubis and the
umbilicus; in the sixth month (seventh according to some au-
thors) it  is as high  as the umbilicus; at  the seventh, half-way
between the umbilicus and  scrobiculus cordis, and at the eighth, it
has reached  the latter—its highest elevation.f  A short  time be-
fore delivery, it somewhat subsides.J  About  the middle  of the
pregnancy, or between the seventeenth and twenty-second weeks,
the  female feels the motion of the child, and this is called quicken-
 ing.  Its  variations as to time will  be hereafter noticed.   The
 vagina is  also subject to alteration, as its  glands  throw out more
 mucus, and apparently prepare the parts  for the  passage of the
foetus.
   These, as now stated, are the  signs of pregnancy usually enu-
 merated.  It would not, however, be doing justice to the subject,
 if the reader were left to suppose that all  or most of them are the
 invariable attendants on pregnancy.   Some may accompany dis-
 eases : others may be altogether wanting in a  state of true preg-

   *  " In pregnancy, the  uterus does not rise out of the pelvis, before the third
 month."  (Gooch, Diseases of Women, p. 209.)
  f I have adopted the periods stated by Dr. Montgomery for these changes. It is
 proper, however, to add that some writers on midwifery postpone the three last to a
 month later in each case.
  X  " The uterus, at the end of the third month, generally measures from the mouth
 to the fundus, above five inches, one of which  belongs to the cervix; on the fourth,
 it measures five inches from the fundus to the beginning of the neck;  in the fifth,
 about six inches from the cervix to the fundus.  In two months more,  it measures
 eight inches, and at the ninth month, ten or twelve inches, and is oviform in its
 shape."  (Ashwell on Parturition, p. 137.) 
180                       PREGNANCY.

nancy.   It will, therefore,  be proper  to  examine the more im-
portant signs in detail.
  1. Of the expansion or enlargement of the abdomen.—This sign
is not visible during the first months; and  after that period, it
may be  concealed for a length  of time by various  means, such
as the peculiar disposition of  the  dress, and the confinement  of
the abdomen by  stays.  Formerly,  fashion lent its aid to this
deception.  As early as 1563, satires were written in France on
the articles of dress that were  used  to increase the size of the
female figure, both before and behind; and in 1579, in the reign
of Henry III. these were in general use.   Cotemporary writers
considered them, and not without great reason, as subservient to,
and productive of great  depravity in manners, and particularly
for the concealment of  pregnancy.*   Another circumstance that
may lead to error, is the variety that exists  with respect to cor-
pulence or peculiarity of form.   This, in  some instances, con-
duces to render the question doubtful;  so  much, indeed, as in
some  cases to exhibit hardly  any tumour.   Waiving these, how-
ever, we observe, that  this sign is generally observed at  the  end
of the fourth month.  It then remains to inquire whether the en-
largement is the result  of pregnancy or of disease. If the former,
it has generally some peculiarities, which serve  to distinguish it.
 The enlargement is progressive from the  fourth month to deli-
 very ;  and by the  fifth month,  it can  scarcely pass unnoticed,
 particularly if the female  be standing.  Recollect also,  that the
 uterus lays in front of the abdominal cavity, and  occupies the
 lower and middle parts.   It  grows from below  upwards, and re-
 mains for a long time flattened at its sides, and a little puffy be-
 neath the ribs, while in front, it is hard and prominent.-}-
    But the enlargement may originate from  disease—from sup-
 pression or  retention  of the  menses—tympanites—the various
 species of dropsy—or schirrosity of the liver and spleen.

   * British Critic, vol. 7, p. 539.
   t Gooch, Blundell, Velpeau. " I will give you a little advice as to the unmarried
  class.  Never give an opinion till six months have elapsed since the last menstrua-
  tion.  Do not believe one word they say.  Listen to them as you  would to a jockey
  praising his horse.  Never rely upon the evidence of their tongues, but on that of
  their ------."  (Gooch's Midwifery, p.  103.)  The uncertainty mentioned above,
  will be understood, by citing a case that occurred to Dr.  Montgomery,  of imperfo-
  rated hymen in a girl of 17.  All the symptoms allowed above were present, and
  along with them, the breasts were painful. (Cyclopedia of Pract. Med. vol. 3, p. 472.)
  Dr. Kennedy adds to the common symptoms, distention of the breasts, with darkened
  areola, p. 166. 
PREGNANCY.
181
     In retention of the  menses, and particularly if accompanied
  with imperforate hymen, the abdominal enlargement is remarka-
  bly similar to that of natural gravidity.  It occupies the anterior
  part of the abdomen, and presents the same character as to re-
  sistance and hardness, as is given by the pregnant uterus.  It also
  gradually ascends, and is accompanied by no distinct fluctuation,
  as in ascitic  dropsy.  Pain and vomiting  may also  be present.
  On the other hand, however, the uterus is found unaltered  in
  size;  no motion  can be felt by the examiner; and  above all, the
  fact  of retention will appear on inquiry, and the hymen generally
  be found distended.*  So also, if this last be not  present.  The
  symptoms  occurring  from  time to time  should be  carefully
  studied.f
    In tympanites, the abdomen is hard and elastic, and  sounds
  like a drum when pressed; and   there  are  irregular  elevations,
  which appear to roll under the finger. Continued pressure causes
  the air to yield  before  it, which may thus  be urged  from  one
  part to the other ; but the intumescence of pregnancy is firm and
  unyielding.
    Dropsy  also,  when  not  encysted,  is marked  by  its  pecu-
  liar characteristic and  local symptoms.  The  swelling appears
  general over the  abdomen, and is not confined to the space over
  the pubis.  " It is soft to the touch,  wanting the solid  and con-
  sistent feel observed in  pregnancy, and  diseased uterine, and
  sometimes ovarian structures."   There are also marked indica-
  tions  of disease in various organs, which serve to  establish the
  nature of the complaint.
   Frequent mistakes  have,  however,  been made, and  these

  * Davis' Obstetric Medicine, p. 106. He gives a long list of references to cases of
 imperforate hymen.
  Dr. Montgomery quotes others and mentions one that came under his own notice,
 in a girl of 17.  The abdomen  was enlarged, the uterus could be felt as high  as the
 umbilicus, the breasts were painful, there was occasional vomiting, with pain in the
 back and along the thighs.  On passing the catheter (there was an inability to pass
 the urine) an imperforate hymen was discovered.  (Signs of Pregnancy, p. 51.)
  f An instructive case, showing the doubts which envelope some cases of suppres-
 sion of the menses, and the equivocal symptoms to which it gives rise, is related by
 Dr. Dewees, in Chapman's Journal, vol. 4, p. 126.  The female had  not menstruated
 for a year—her breasts swelled—she had  nausea and vomiting in the morning,
 and Dr. D. thought, on examination, that  he perceived motion.  As the female was
 unmarried and  irreproachable, proper medicines were prescribed, which relieved
 her only for a time.  Finally, on treating it  as a case of ascites, there was manifest
 improvement, and the  disease ended with a sudden gush of fluid  blood from the
vagina.
  VOL. I.                      16 
182
PREGNANCY.
should  teach great  caution.   " I  was desired (says  Sir Astley
Cooper) to see a lady, who  I was told  laboured under dropsy.
When I entered the room, I saw a tall, delicate  female, writh an
immense abdominal  swelling, giving  a distinct sense of fluctua-
tion.  I requested the physician accoucheur, whom I met, to exa-
mine if the lady was not with child; he said, he thought it was
unnecessary, as  the  fluctuation was  very distinct; but that he
would do so, and let me know the result in a few days.  I heard
no more of her for a week,  and then I learned that she had been
put to bed on the morning following my visit."*
  Encysted dropsy  is often more difficult  to be understood; as
here  we are not  to expect fluctuation.   The symptoms should be
carefully noted,  as they  daily become more aggravated in this
disease, while the slighter affections of pregnancy generally wear
off.   The cervix uteri also, in  ovarian  dropsy,  is of its  natural
size and length;  and the tumefaction  is often distinct  in its cha-
racter from that of the gravid uterus.   But it may  be, that there
is an enlarged ovary with pregnancy in the same  person.   The
tumours, says Dr. Gooch, in such instances, go  on  growing side
by  side; and he has known instances where living and healthy
children were  born, leaving the abdomen still distended with the
ovary.  The  case  here  (he observes) is puzzling.   Suppressed
menstruation is common in  ovarian  dropsy; the enlargement of
the  uterus may  be mistaken for the  ovarian enlargement;  the
child may be  feeble or  dead,  and protrusion of the  umbilicus
attends each.   Patient  and assiduous examination is evidently
necessary, and a particular attention to all the  leading proofs of
pregnancy.f
  * Lectures, vol. 2, p. 163. A case, detected by the application of the stethoscope,
is quoted from Prof. Elliotson, in Lancet, N. S. vol. 7, p. 656.
  t Gooch, Diseases of Women, p. 239.  The  following are the remarks of Dr.
Francis H. Ramsbotham on this subject.  " A dropsical ovary may be confounded
with pregnancy, especially as milk is sometimes secreted in this disease, but the
menses most likely will not be suspended.  Besides, the tumour does not possess
the elastic springy feel which characterizes the gravid uterus when near the termi-
nation of pregnancy. The increase of swelling will be more or less rapid, than the
growth of the womb, and there will be no movement felt within it.  But one of the
best diagnostic marks by which it can be known from other  abdominal tumours is
the situation it occupied when first observed. An enlarged ovary invariably shows
itself above one or other groin—the gravid uterus in the centre."  It may be dis-
tinguished from ascites, in being circumscribed.  In ascites  also, there is a dimi-
nution of urine,—but not so in  an enlarged ovarium unless it has made great pro-
gress, and then in consequence of pressure. London Med. Gazette, vol. 16, p. 645.
" If there be enlargement of the ovary, independent of pregnancy,  the uterus will
 be found forced so low down into the  vagina,  that its actual condition cannot be
 misunderstood."  Prof. Hamilton's Practical Observations on Midwifery, p. 29. 
PREGNANCY.
183
   On schirrosity,  it  is  sufficient to remark,  that patience  and

judgment will generally teach us to distinguish its peculiarities,

particularly as it is accompanied with striking and chronic indica-

tions of disease.
   But even if we have settled that neither of the above diseases is

present, and that there is an actual tumour of the uterus, it is not

certain that it is caused by a foetus : It may arise from a mole—

from hydatids in  the uterus, and various other diseases of that

organ.   These  remarks sufficiently prove  that enlargement of

the abdomen  is an uncertain sign in determining the presence of

pregnancy.*  We have also to  remember that the foetus may die

at any period, and be retained.   Here, of course, there  will  be

no increased  enlargement noticed, and yet  there has  been  preg-

nancy.!


   2.  A  change  in the state of the breasts, has by many been con-

sidered as a sign.   They are said to grow larger and more  firm,

while the areolae  round the  nipples become of a brown  colour;

and this is accounted for on the principle of revulsion—the blood,

after the cessation of the menses, being determined upwards, in

consequence  of the  connexion  that subsists between the breasts

and  uterus, through  the anastomosis between the epigastric and

internal mammary arteries.   Milk also is  secreted.


   * Nor must we always suppose that a sudden reduction of size after enlargement,
 has been owing to pregnancy and its results.   Dr. Montgomery saw " an instance
 in a woman separated  from her husband, who became affected with what was con-
 sidered ovarian dropsy, and which  enlarged the abdomen to the size of six months'
 pregnancy, some of the other symptoms  of which state were also present.  After an
 attack of  inflammation, during which it is to be presumed the parietes of the tu-
 mour formed an  adhesion with the upper part of the vagina, there took  place sud.
 denly a discharge of gelatinous fluid from that cavity, and the abdomen completely
 subsided in the course of a day, and the previous entertained suspicion appeared to
 be confirmed beyond a doubt; but on examination, the woman had not about her
 one of the signs of delivery; yet, had not the case been at once investigated, loss of
 reputation at the least would have inevitably, though most undeservedly, followed."
 (Cyclopedia of Practical Medicine, vol. 3, p. 503, Art Pregnancy.)   A similar case
is given in Medico-Chirurgical Review, vol. 24, p. 206.
   ■j-If an examination at an early period of pregnancy be deemed necessary, the fol-
 lowing directions of Fodere and Mahon should be observed: Empty the intestinal
canal, and let the female lie on  her back, with her knees a little elevated, so as to
 prevent any tension of the abdomen.  If the woman be  not too fat or deformed, the
 uterus may be felt through the parietes of the abdomen, by applying the extended
 handover the middle of the hypogastrium, so that the thumb touches the navel, and
 the small finger the pubis.  On her making an expiration, the enlarged uterus may
 be felt, hard, and of a spherical form.  If these be present, they indicate an increase
 in size of the uterus, but not the cause of it.  (Fodere, vol. 1, p. 443.  Mahon, vol. 1,
 p. 149.)  See also Smith, p. 485. 
184
PREGNANCY.
   Now all these have been questioned or denied as proofs of the
 presence of pregnancy.  Enlargement of the  breasts occurs in
 suppressed menses, and sometimes at the period of the cessation
 of the menses.*   Occasionally they do not enlarge until after de-
 livery.  The most unequivocal state is where, during a first preg-
 nancy, they become full and tender,  and have an appearance ap-
 proaching to inflammation; and particularly if, previous to con-
 nexion, they have been small.   We must  not  mistake their en-
 largement from corpulence, as  this will be equally manifest in
 other parts of the body.  (Blundell.)
   A still greater diversity of opinion exists as to the appearance
 of the areola.  I will  quote  several of the  leading authors.   Dr.
 Gooch says that the dark colour is very distinct in women with
 dark  eyes and  hair; but it is often difficult to tell  whether it
 exists or not, in  those of a  light complexion.  In brunettes, it re-
 mains dark ever afterwards, and hence  is  no guide in future.
 He had,  however, recently seen two  young  and newly married
 women, who were not pregnant, in whom  the  areola was  dark.
 In chronic inflammation of the uterus, he had also known this co-
 lour produced, together with fulness and  pricking pains in the
 breast.   Notwithstanding these exceptions, he advances the opi-
 nion that this appearance rarely depends on other causes; and
 when it exists, deems it a sign either of present or previous preg-
 nancy.  He informs us, also, that Dr. Hunter relied greatly on it,
 and asserted that he could judge by it whether or not a woman
 was pregnant.   " A subject was brought to  him for anatomical
 purposes; but on looking at the breast, from the appearance of
 the areola, he declared that the female died  while pregnant.   One
 of his pupils examined, and found  that she had a hymen.   This
 seemed a  contradiction; but  the doctor still adhered to his
 opinion, and thought  more attention  due to the former than the
 latter appearance.  On opening the  body, his  assertion proved
just, for  the uterus was found  impregnated."   (Lowder.  M. S.
 Lectures.)
   Dr. Dewees deems it equivocal, except  in a  first pregnancy;
 and he also remarks, that sometimes it is not present.   Ashwell
 mentions three instances, in which there was no pregnancy.
   Dr. Denman was of opinion that the areola was  present in

  * John Pearson. (Medico-Chirurgical Review, vol. 4, p. 838.) Denman, p. 227. 
PREGNANCY.
185
 manv of  the  complaints which resemble  pregnancy, and  it is
 stated on high authority, that a completely formed areola has
 been seen in cases of dysmenorrhoea.*
   On the other hand, White {Regular Gradation of Man,) states
 that he one morning examined the breasts of twenty women in
 the Lying-in Hospital in Manchester, and found that nineteen
 of them had dark-coloured nipples—some of them might be said
 to be black; and the areola around the nipple, being from one
 inch  to two and a  half inches in diameter, was of the  same
 colour.
   Dr. Blundell  relies greatly on  it.  He  states that there  are
 three varieties of it,  numerically discriminated according to the
 degree of  change.  " When  the  alteration rises to  the highest
 point—when the areola becomes broad and  dark, and embrowned
 in fullest measure;  more especially when pale before, it changes
 to  a  deep  brown, so dark that it reminds one of the skin of the
 negro, the indication ought to have  great weight, at least in a
 first pregnancy."  In several  instances where  its existence was
 positively denied, he thus detected it; and  it has the advantage
 of  manifesting itself very early in gestation.   When the change
 is only in the first or second degree, or when it occurs in females
 who  have  been pregnant before,  less reliance is to be placed
 on it.
   Dr. Montgomery, in his elaborate and valuable article on the
 signs of pregnancy, remarks,  that much of the discrepancy that
 exists on this point, is owing to exclusive attention to one of the
 characters, viz. the colour, and which he conceives of all others
 the most liable to uncertainty.   He attaches,  however, great im-
 portance to the appearance of the areola as a result of pregnancy;
 and I shall therefore mention the circumstances deemed by him
 to be characteristic.
  As early as the  second  month, he has  noticed a change of
 colour; but in general it is then little more than a deeper shade
of rose or flesh colour, slightly  tinged with a yellowish or brown-
 ish  hue.  During the next two months it is  usually perfected, and
 varies in intensity with the peculiar complexion of the individual
 —being generally much  darker in persons with dark hair, dark

  * British and Foreign Medical Review, vol. 4, p. 184.  The reviewer adds, that
 Dr. Hugh Ley was of the some opinion.
                             16* 
186
PREGNANCY.
eyes and sallow skin, than in those  of fair hair, light-coloured
eyes, and  delicate complexion.  In negro women, the areola is
almost jet  black.   The extent of this  circle varies in diameter
from an inch to an  inch and a half, and increases in some as
pregnancy advances.  In a recent case, Dr. Montgomery found
it, at the time of labour, to exceed three inches in diameter.
   But  in connexion with  these changes, and as  confirmatory of
their cause, the following are also observed: The nipple partakes
of the altered colour  of the part, and appears turgid and promi-
nent ; and  the part of the aretola more immediately  around  its
base, has its surface rendered unequal by the prominence of the
glandular follicles, which,  varying in  number from  twelve  to
twenty, project from the sixteenth to the eighth of an inch; and
lastly, the  integument covering the part is observed to be  softer
and  more  moist  (sometimes  so as to  damp and colour the wo-
man's inner dress,) than that which surrounds it.  Such (he adds)
we believe to be the essential characters of the true areola, the
result  of  pregnancy; and  that  when found possessing these
distinctive  marks, it ought to be looked upon as the result of that
condition alone, no other cause being capable of  producing it.
   These appearances, says our author, are striking from the fifth
month to the end  of the pregnancy.  The breasts are generally
full and firm,  and venous  trunks  of  considerable size are  seen
ramifying  over the surface and sending branches toward  the
disk  of the areola which several of them traverse.  Along with
these vessels, the  breasts not unfrequently exhibit, about the sixth
month and afterwards, a number of shining, whitish, almost silvery
lines like cracks; these are most perceptible in women who, having
had  before conception very little mammary developement, have
the breasts much  and quickly enlarged after becoming pregnant.
   The  observer must, however, understand that  pregnancy may
be present, and the colour  be  wanting.  In  two cases mentioned
and  seen by Dr. Montgomery, the areola could hardly be dis-
tinguished in this respect from the  surrounding skin, yet all the
other changes just mentioned were  well developed.   Again, it
must be recollected, that  in  persons who have recently miscar-
ried, and in nurses, the characters of the areola are kept up, and
continue for some time.  It is also conceded by our author, that
in some cases the colour remains permanent after a  first preg-
nancy. 
PREGNANCY.
187
   Lastly, Dr. Hamilton of Edinburgh relies greatly on the per-
 ceptible change on  the  surface of  the  breasts surrounding the
 nipples as a sign of  pregnancy in the early months.  In fair wo-
 men, when in that state, the areola becomes marked towards the
 end of the third month, and it gradually grows  darker, so that
 after the fifth month, it is of a brownish tint.  But in those of a
 dark complexion, it  becomes after the third month, so deep as to
 resemble old  mahogany,  while in  swarthy  females, where the
 appearance in the virgin state  is mahogany coloured, the progress
 of pregnancy gradually converts it into a black purple.   He adds
 that for many years, " the mark on which he has placed his prin-
 cipal reliance for distinguishing the true areola consequent  on
 pregnancy, from the appearance of the surface  of the mammas
 peculiar to the individual in the unimpregnated state, is a certain
 degree  of  iurgescence on the  surface of the  discoloured  ring,
 which becomes more and more distinct towards the latter end of
 pregnancy."  Menstruation may indeed produce a certain degree
 of turgescence, but  it is merely temporary, and he  distinctly de-
 nies that the change in question takes place  in any of  the com-
 plaints resembling pregnancy.
   I  apprehend  that the authorities  which I  have  given on this
 sign, will incline the reader to attach considerable importance to
 its presence.*
   The secretion of a milky fluid may occur without the  presence
 of pregnancy.   Hebenstreit states that he has known females in
 whom this fluid was produced by repeated friction, suction, &c.f
 A servant girl, says Belloc, slept in  a room with a child whom it
 was wished to wean.  Being disturbed in her repose by its cries,

  * Gooch's Diseases of Women, p. 201, &c. and Midwifery, p. 100. Dewees's Mid-
 wifery. Ashwell, p. 171.  Lawrence's Lectures, p. 449. Blundell's Lectures. Lancet,
 N. S. vol. 3, p. 325.  Montgomery's Signs of Pregnancy, chap. 4.  Hamilton's Prac-
 tical Observations on Midwifery, p. 46.  In a subsequent publication (Letter to Dr.
 James Johnson,) Dr. Hamilton avows his full concurrence in the statements of Dr.
 Montgomery.
  In addition to the sign now considered, Mr.  Ingleby mentions two changes con-
nected with it, as indicative of pregnancy and which I may  state in this place.
"The first consists of a very scaly state of the cuticle covering the areola ; the  se-
cond, in a discoloration, not very unlike the areola and partially affecting the whole
surface of the breasts.  The breasts present a  curious mottled or chequered appear-
ance, of an irregularly brown hue, with intervening spaces, defined in extent, circu-
lar in form and as white  as the skin  over the body in  general. The last men-
tioned appearance is strongly presumptive of pregnancy."  Ingleby's facts and cases
in Obstetric Medicine, quoted in Amer. Journal Med. Sciences, vol. 20, p. 435.
  i Hebenstreit, p. 185. 
188
PREGNANCY.
 she imagined that by putting it to her breasts, it might be quieted.

 In a  short time she had milk sufficient to supply its wants.*  An

 account is also  given  in a  manuscript  in  the  collection of  Sir

 Hans Sloane, of a woman of the age of sixty-eight, who  had  not

 borne a child for more than twenty  years,  nursing  her grand-

 children  one  after  another.f   Similar cases  are  mentioned  by

 Fodere; and in  particular,  he relates an instance  of a  female,

 who,  on the point of being conducted to prison, declared  herself

 a nurse.   Although this was a falsehood, yet  in a  few moments

 she produced the  requisite  proof.   The  author  also  suggests,

 that immediately after the cessation of the menses,  milk  is often

 secreted.J


   * Belloc, p. 70.  Dr. Dewees witnessed its secretion in a female who had never
 been pregnant;  Baudelocque, in a girl eight years old in the village of Alencon,
 who was presented to the Royal Academy of Surgery, Oct. 1783.  (Midwifery, v. 1,
 p. 219.)
   t Smith, p. 484. There are several cases on record of grandmothers suckling:—
 One aged  60. (Philosophical Transactions, vol. 9, p. 100.)—One seen by Dr. Stack,
 and aged 68.  (Philosophical  Transactions, vol. 41, p. 140).—A negro grandmother
 aged 70, seen by Dr. Farquhar in the Island of Jamaica. (Coxe's Medical Museum,
 vol. 1, p. 267.)—A case by Dr. Montegre in France, female aged 65.   (Cas rares, in
 Dictionnaire des Sciences  Medicales.)—A  case by Mr. Semple in England.  The
 grandmother was 49 years old, and  continued to menstruate regularly during  the
 time of suckling.  (North of England Medical and Surgical Journal, vol. l,p. 230.)—
 A case by Dr. Kennedy in England, of a woman who gave suck uninterruptedly from
 the twenty-fifth to the seventy-second year of her age ; and now in her eighty-first
year, had still a regular secretion of milk. (Medico-Chir. Review, vol. 21, p. 202.)—
A case communicated to Dr. Campbell by Dr. Steintal of Berlin,  a grandmother of
 63 suckling a grandchild for seven months.  (Campbell's Midwifery, p. 493.)
   X Fodere, vol. 1, p. 440. The following case occurred to the late Professor Post of
New York : "A lady of this city (New York) was, almost fourteen years ago, deli-
vered of a healthy child, after a natural labour.  Since that period, her breasts have
regularly secreted milk in great abundance ; so that, to use her own language,  she
could at all times easily perform the office of a  nurse.  She has uniformly enjoyed
good health; is now about thirty-five years of age, and has never proved pregnant a
second  time, nor had any return of her menses."
  Dr. Shurtleff, in the Boston Medical and Surgical Journal, vol. 1, p. 462, gives a
case where the milk continued flowing for three years after delivery.  Dr. Blundell
mentions a similar instance in his Lectures.
  Even men have suckled children.   See the Bishop of Cork's case in Philosophical
Transactions, vol. 41, p. 810, where the father  had fed his child in this way. The
bishop examined the breasts, and found them very large.   Humboldt and  Bonpland
saw a similar case in South America.  The mother was sick, and the father, aged
32, put the child to his breast in order to quiet it; milk shortly came.  Another
well authenticated  case is  mentioned by Capt. Franklin in his Journey to  the
Polar Sea,  of a young Chippewyan whose wife died  in labour.  " Our informant,"
says Sir John Franklin, " had often seen this Indian in  his old age, and his  left
breast even then retained  the  unusual size  it had acquired in his  occupation of
nurse."
  A case  in Germany, of a  young  man, 22 years old, witnessed by Dr. Schmetzer
of Heilbroun.  The secretion of milk was constant.  London Med. Gazette, vol. 20,
p. 846.
  Blumenbach gives a very rational explanation of this occurrence. The connexion
between the uterus and breasts  seems to depend on the anastomosis between  the 
PREGNANCY.
189
    3. The suppression of the menses.   This may take place, as al-

  ready stated, from  disease, without the  presence of pregnancy;

  and  again, it is asserted that the menses have continued in cer-

  tain cases during pregnancy.

    It is important to understand the diversity of opinion that ex-

  ists on this last point.   Dr. Heberden knew a female who never

  ceased to have regular returns of the menses during  four preg-

  nancies, quite to the time of her  delivery.*  Deventer mentions

  of one who  became pregnant  before menstruating, and immedi-

  ately  after conception this discharge returned periodically until

  her delivery; and this was  the case during several  successive

  pregnancies—inverting, as it were, the  usual order of nature.f

  Dr. Hosack had a patient, who, during  her last  three pregnan-

  cies, menstruated until within  a few weeks of her delivery, and,

 notwithstanding, brought forth a healthy child  at each  labour.|

 Additional authorities are given below.

   On the  other hand, it is denied that this occurs.  Dr. Denman

 deems suppression to  be  a never-failing  consequence of concep-

 tion.   Dr. Davis is of opinion that  genuine menstruation has never

 existed during pregnancy.  The orifice of the uterus, he remarks,

 is then hermetically sealed, and it  is incompatible with the safety

 of its contents, as is seen in the occurrence of haemorrhage and

 premature discharge of the  ovum.   He is willing to allow  (and

 epigastric and internal mammary arteries, and this  anastomosis exists in men as
 well as in women.  (Medico-Chirurgical Review, vol. 13, p. 114.)
  * Commentaries.
  t Fodere, vol. 1, p. 437.  Similar cases are mentioned by Baudelocque, &c.
  J Haller refers to similar cases, (vol. 7, part 2, p. 142.)  Of authors and observers
 in favour of menstruation, or rather a  periodical discharge, during a part or the
 whole of pregnancy, I may mention  Baudelocque, vol. 1, p. 230; Capuron, p. 63;
 Belloc, p.  62 ; Gooch, Diseases of Women, p. 203; Prof. Carus,  American Medical
 Recorder, vol. 13, p. 421; Dr. Dewees; Dr. Blundell,  Lectures; Dr. Power, Medico-
 Chirurgical Review, vol. 2, p.  413; Dr. Montgomery, Cyclopedia of Practical Medi-
 cine, Art. Pregnancy; Dr. Kennedy, p. 12, (who also quotes a case from Mauri-
 ceau.)   Cases are related by Mr.  Mayo, (in  Middlesex Hospital,) London Medical
 and Surgical  Journal, vol. 4,  p. 179.  Instances similar to those of Deventer are
 mentioned by Dr. Dewees, and by Stein, a German accoucheur.   (American Medi-
 cal Review, vol. 1, p. 411.)
  Dr.  Maunsell of Dublin, in his report of the obstetric practice at the Wellesley
 Female Institution during 1832, remarks thus: " Three cases were noted, in which
 a species of menstruation occurred during pregnancy.  In one, a discharge of blood,
 which the woman could not distinguish from the menses, took place regularly every
 twenty-eight days."  (Edinburgh Medical and Surgical Journal,  vol. 40, p. 301.)
  Dr. Campbell (Midwifery, p. 44,) had a case in which  menstruation was regular
during six months after conception.
  I  subjoin the following as I find it: " Dr.  J. P. Frank had under his care a wo-
man who had three healthy children,  and yet had never had either catamenia or
lochia."  (Quarterly Journal of Foreign Medicine and Surgery, vol. 4, p. 324.) 
190
PREGNANCY.
this is the prevalent doctrine on  his side)  that cases of periodic

discharge of blood  occur, but not menstruous:  It has  an  extra-

uterine origin;  and as the parts  are in  a state of  plethora, the

vaginal branches of the uterine arteries may furnish it.*

   Probably  the last is the preferable explanation.   It  is most

consonant with our ideas of the phenomena of pregnancy.  When

applied, however,  in  medical jurisprudence, we  must recollect

the remark of  Dr.  Gooch, that  whether  it  be menstruation or

periodical haemorrhage, from the above  cause,  or  from partial

separation of the  ovum, the  female cannot discriminate; and I

may add, the examiner will often be in extreme doubt.


   Menstrual blood does not coagulate.  I feel justified in asserting

this on  the authority of  Burns,  Denman, Gooch, Charles  Mans-

field Clarke, Dewees,  and a host of others; although I am aware

that it  is doubted and opposed by some.f  Attention  must, of

course, be paid to this circumstance.   It  will be recollected that

it was noticed in the case  of Mary Ashford.

   Dr. Lavagna of Milan  ascertained  that the menstrual  secre-

tion differed principally from  blood, in  containing little  or no

fibrine.J  It is evident, however, on many accounts, that chemi-

   * Davis's Obstetric Medicine, p. 253.   Dr. Sims denied its  existence, except in
the form of manifest haemorrhage. (Ibid. p. 257.)
   John  Burns (edition of 1823)  says the  weight of authority is decidedly against
menstruation during pregnancy.  In several cases that came under his own obser-
vation, although the discharge had considerable periodical regularity, yet he always
found it to consist of pure coagulable blood.  (P. 139.)
   Hogben, Ashwell, and Ramsbotham entertain a similar opinion.  The latter, how-
ever, mentions in his lectures, that he has  a patient  who always menstruates once
after having conceived, though very  sparingly.  London Medical  Gazette, vol. 13,
 p. 268.
   Professor Hamilton, of Edinburgh,  asserts that suppression of the menses invaria-
bly attends  pregnancy during the early months and of course throughout its pro-
gress.  He admits, however, that in a few cases,  there are irregular  bloody dis-
charges during the first months.  The practitioner, he adds, may distinguish these
 last from the menstrual fluid, by attending to three circumstances—the  period of
 recurrence, the duration, and the quality  of the discharge.  Hamilton's  Practical
 Observations on Midwifery, p. 45, and his Letter to Dr. James Johnson.
   In the Boston Medical Magazine, vol. 2, p. 367, there is an interesting case given
 by Dr. Fisher, which I apprehend will assist in explaining this much discussed dis-
 charge.   The female, ten  weeks married, suffered under bloody discharges—at
 three weeks, and again at two weeks after that.  For some time  before her death,
 they were frequent.  She died at the end of the above period; and although no im-
 pregnation was suspected, yet the case was found to be one of tubular pregnancy,
 and haemorrhage from the placenta had been the cause of death.
   t Mr. Clarke exhibited some at his lectures, which had remained in a fluid state
 for years.  A very full and able statement in favour of the  opposite doctrine, by
 Doctor Manley, is contained in the New York Medical and Physical Journal, vol. 4,
 p. 67.
    f Anderson's Journal, vol. 1, p. 624.   See, also, Med. Chir. Review, vol. 24, p. 95 
                          PREGNANCY.                       191

cal tests are scarcely applicable in the present case.  Not unfre-
quently the two discharges are  blended  together—some of the
smaller vessels giving way at the  very time that  the  secretion is
going  on.
   I will add in this place, principally for the purpose of citing a
case from Belloc, that pregnant females may feign menstruation
by staining their linen with blood.   This deception was attempted
on him by a girl three months advanced.*  Dr.  Montgomery of
Dublin detected the pregnancy of a female, who for two months
had thus stained  her linen, by examining the areolae.  They ex-
hibited the characteristic appearance so perfectly, that he charged
her with the fact.   She was so completely taken by surprise, as
to confess it.f
   Notwithstanding the exceptions stated, we should attach great
importance to the absence of the menses as indicating  pregnancy ;
and the remarks of Belloc on this  point  are deserving of great
attention: " When  a female  experiences the suppression, along
with other symptoms of pregnancy, we  may consider her situa-
tion as yet uncertain, because these signs  are common to amenor-
rhcea  and pregnancy; but if, towards the third month, while the
suppression  continues, she recovers  her  health, and  if her appe-
tite and  colour return, we need  no better  proof of pregnancy.
Under other circumstances, her  health wrould  remain impaired,
and even become worse."J

   4.  I merely notice loss of  appetite, nausea, vomiting, &c. &c. to
state that they are equivocal.  They accompany many diseases
—are wanting in many pregnancies—and even if present, occur
in the early stages, the time precisely when no certain judgment
can be formed.   There are, however, some points worthy of  ob-
servation.   If the sickness and vomiting occur only in the morn-

   * Belloc, p. 65.  " II faut exiger alors que les parties soient lavees avec de l'eau
tiede; si le sang ne r^parait pas, le cas est suspect."  (Capuron, p. 81.)
   f Cyclopedia of Practical Medicine, vol. 3, p. 472.
   X Belloc, p. 60.  Smith, p. 485.
   Dr. Montgomery has, however, pointed  out an occasional variety of suppression,
which of all others is most likely to deceive. It is the case  of young and newly
married females, who in some instances have no return of the menses for two or
three months, and the breasts enlarge, and yet, at the end of this or a longer period,
ordinary menstruation recurs.  In some instances, a gush of sanguineous blood and
the ejection of flakes of membranes, resembling that'discharged in dysmenorrhoea,
terminate the above series of symptoms.  It is highly probable, according to our
author, that in some, at least, of these cases, conception has occurred, but the ovum
 perishing, no evidence is furnished of its existence.—Signs of Pregnancy, p. 44. 
192
PREGNANCY.
  ing, and the patient is well during the rest of the day, it is suspi-
  cious.  So also with anasarcous swellings of the  extremities : If
  this comes  on suddenly, and the patient is  otherwise in good
  health, it is  a sign of some importance, according  to Dr.
  Blundell.
    Dr. Denman was disposed to place much reliance on protrusion
  of the navel, in doubtful cases.  It emerges, he observes, in preg-
  nancy, until it comes to an even surface with the integuments of
  the abdomen.  Mahon, Gooch, and  Dewees, however, deny its
  infallibility.   It occurs from dropsy, or any chronic enlargement.
  The reverse, however, may assist in some cases.  If the umbili-
  cus is depressed, and the abdomen soft and yielding, the existence
  of pregnancy is doubtful.  It should be remembered that the pro-
  trusion seldom occurs before the  sixth month;  and the  further
  the pregnancy is advanced, the more distinct it will be.

   5. Another sign that has been depended on, is  the motion of the
fcetus  in the  womb of the mother.   It  is  wanting  in  the early
 months of pregnancy, but during the latter ones, may generally
 be ascertained.  This sensation,  however, which  in real preg-
 nancy, the  female  always mentions at  an early period, is of
 course not spoken of in concealed cases,'and it remains with the
 examiner  to discover it -by other  means.   To this end, he dips
 his hand in  cold water, and  applies it suddenly over the  region
 of the uterus.  If  the foetus is  alive, its motion  will  be felt,
 evidently  depending  on muscular power, except  according to
 authors where it is very feeble, or where the woman is dropsical.
 But unfortunately, this sign  is not infallible, the foetus may be
 dead, or there may be twins, in which case the  motion is some-
 times not felt  until a  late  period.   On  the  other hand, flatus in
 the bowels, nervous irritation,* or a mole in the uterus, has been
mistaken for it.  A case, showing the uncertainty of its  occur-
rence, is related by  Capuron.  A  female, with a  very large
abdomen, was received into one of the  hospitals of Paris.  She

  * Many of the French writers on midwifery speak of a "fausse grossesse nerveuse."
  " The name of simulated pregnancy has been given to some  cases of hysteria, in
which the abdomen enlarges gradually, sickness occurs, and so many signs of an
impregnated uterus are present, that  time alone can  solve the doubts they raise.
The catamenia are suppressed, the breasts are tumid, and there is pain in the back."
Mr. Tate says of these cases : " In what this  enlargement consists I am utterly
ignorant, that it is not merely a mere accumulation in the colon I know, that it is sub-
stantial I am equally sure."   It is, we apprehend, a mixed state of vascular fulness
and tympanitic distention.  Cyclopedia Pract. Med. Art. Hysteria, by Dr. Conolly. 
PREGNANCY.
193
was visited by  many distinguished  accoucheurs,  surgeons and
physicians.  Some declared that she laboured under ascites—
others, that a schirrous and  dropsical ovarium  was present.  An
abdominal  pregnancy was also suspected, but  no one believed it
to be real pregnancy, since no motion of the fcetus could be felt.
The woman was kept on light food, and  innocent remedies wrere
administered.   The volume  of the abdomen enlarged, and at last,
after three weeks of examinations and  consultations,  a  strong
and healthy child was born.*
   It may also be simulated.  Dr. Blundell  relates of a case, in
his  lectures, which was  examined by Lowder, Mackenzie and
other celebrated accoucheurs of their day, and w7here the female
had attained such skill in counterfeiting, that they  declared they
would have been deceived, if they had not by personal examina-
tion found the uterus unenlarged.
   The motion of the foetus, when felt  by the  mother, is called
quickening.  It  is important  to  understand the sense attached
to  this word  formerly,  and at the  present day.   The ancient
opinion, and on which indeed the laws of some countries have
been founded,  was,  that the fcetus  became  animated at this
period—that  it  acquired  a  new  mode  of  existence.  This  is
altogether  abandoned.  The foetus  is certainly,  if  we   speak
physiologically,  as much a living  being  immediately after  con-
ception,  as at  any other time  before delivery;  and  its future
progress is  but the  developement and  increase  of those  con-
stituent  principles which it then  received.  The  next theory
attached to the term, and which is yet  to  be  found in many of
our standard works, is, that  from the  increase of  the foetus, its

  * Capuron, p. 73, 74.  There  are cases " though  rare, where it does not occur
during the whole of pregnancy, although the child has been born alive and vigorous.
Of this I have known one instance and read of others."  Gooch; Diseases of Women,
p. 203.  A case that  occurred to Baudelocque and Vicq. D'Azyr is related in Diet.
des  Sciences Med. vol. 19, by Murat, Art.  Grossesse.   Dr.  Kennedy  corroborates
this by his own experience, and also gives some striking instances of self-deception.
Pages 25-27.
  Dr. Montgomery says that two instances have come under his own observation of
its total absence during the whole period of gestation, notwithstanding the subse-
quent birth of living and healthy children, and he quotes parallel cases from Levret,
Gardien, Dewees, and Campbell.  Signs of Pregnancy, p. 88.
  Prof. Hamilton  however  questions the  statement of Dr.  Gooch, most emphati-
cally.  " It is to be remarked," he says, " that Dr. Gooch does not say, that in that
instance, he made any attempts to excite the movements of the infant.  The author
holds all those alleged cases to be the offspring of prejudice and credulity."  Hamil-
ton's Practical Observations on Midwifery, p. 48.
  VOL. I.                       17 
194
PREGNANCY.
motions,  which  hitherto  had  been  feeble  and  imperfect, now
are of sufficient  strength to  communicate a sensible impulse to
the adjacent parts of the mother.   In this sense, then, quickening
implies the first sensation which the  mother has of the motion of
the child  which she had conceived.*
   A far more ration al, and  undoubtedly more  correct opinion
is that which considers quickening  to  be  produced by the im-
pregnated uterus  starting suddenly out of the pelvis  into the ab-
dominal cavity.   This explains several peculiarities attendant on
the phoenomenon  in question—the variety  in the  period of its
occurrence—the  faintness which usually accompanies  it, owing
to the  pressure being  removed  from the  iliac vessels, and the
blood  suddenly rushing to them;  and the distinctness of its cha-
racter,  differing, as all  mothers assert, from  any subsequent mo-
tions of the.  foetus.   Its occasional absence in some females is
also readily accounted  for, from  the ascent being  gradual and
unobserved.f
   This subject will again be noticed in  the chapter on Abortion.
At present, it will be sufficient to  remark, that considerable va-
riety occurs as to the time of quickening.
   The  extremes are probably from  the  tenth to the twenty-fifth
week.   Dr. Denman observes that it happens from the tenth to
the twelfth week, but  most commonly  about the  sixteenth, after
conception.  Dr.  Dewees and Blundell agree that it most gene-
rally occurs nearer the fourth than the  third month.  Roederer
kept a register of  100 women, as to  the period of  probable im-
pregnation, quickening  and delivery.  Of these 80 quickened at
the fourth month, a part of the rest at the third, and the remain-
der went  to the fifth.J   Dr Montgomery found the greatest num-
ber of instances to occur between the end of the twelfth and six-
teenth  weeks, or adopting another mode of calculating, between

  * See Denman, &c.
  t Mr. Royston appears to have been the first that satisfactorily developed this opi-
nion to the public, although he gives  the credit to Dr. H. S. Jackson, of originally
advancing the idea. See his paper copied from the London Med. and Phys. Journal,
in Eclectic Repertory, vol. 3, p. 25.
  Writers on Midwifery are embracing this opinion.  (See Conquest, p. 38, Hogben
in London Med. Repository, vol. 1, p. 146; Blundell and Burns;  Lancet, N. S. vol. 3,
p. 104 ; Dr. James in Burns' Midwifery, 1823, vol. 1, p. 208 ; Morley, p.  206; Camp-
bell, p. 489 ; Davis, p. 854.)  Dr. Dewees, however, is opposed  to it, as is  also Dr.
Montgomery.  The last distinctly felt the motions of a child  in utero, while the
mother had no perception of them.  Here the uterus could be distinctly felt in the
abdomen, and yet the mother did  not quicken for nearly three weeks after.  Dr.
Kennedy suggests, that it may arise from either cause, p. 23.
  X James' Burns, vol. 1, p. 208. 
PREGNANCY.
195
the fourteenth and  eighteenth weeks after the last menstruation.
The earliest cases that he has met with were one of eleven weeks
and two days  after conception,  and 201 before  delivery; and
another, of 198 days before delivery; while on .the other hand,
he has attended cases where the quickening did not occur until
the sixth and seventh months.  In one instance, a lady, in seven
successive pregnancies,  felt the  child for the  first  time in  the
sixth month and once in the seventh.  Dr. Ramsbotham observes
that " if the woman has quickened,  she has passed sixteen weeks
at least, and is probably  near eighteen.*  Again, Puzos, a cele-
brated  continental  accoucheur, says, that  it  takes  place at the
end of two months, but most commonly  at the expiration of
eighteen weeks.  Hydropic women, he  adds, do  not  observe it
until the sixth or seventh month.f   And in a late  trial for abor-
tion in England, the medical witness deposed, that it took place
at eighteen weeks, sometimes in fourteen, and sometimes not till
twenty weeks, but  mostly  at eighteen.   That he  never knew it
so late as twenty-five, though it might happen in some  cases, at
twenty-one or two.J
   The only writer, who  according to my knowledge speaks of
any thing like a positive  period is  Dr. Hamilton.   " More than
forty years (says he) have  elapsed, since I ascertained  that,  in
general, quickening takes place at the completion  of four calen-
der months after conception."^
   The discordance in the  observations of physicians  is readily
explained, by  recurring to the cause just now assigned.   And we
may reasonably suppose that the motion in question will be soon-
est felt when the developement has  been most rapid.  The prac-
tical deduction respecting it, in a case of supposed pregnancy, is
not to pronounce a female  unimpregnated, because it cannot at
once be felt.   The examination  should be  frequently repeated,
before a decisive opinion be given.
  6. Connected with the previous sign is an alteration in the state
of the uterus; and this is ascertained by what is called the touch.
It is founded on the following physiological  facts.   After con-
ception, the fundus and  body of the uterus both  increase, and
thus, from its becoming heavier, it  will naturally descend lower

 * London Med. Gazette, vol. 13, p. 551.           t Fodere, vol. 1, p. 446.
 X Edinburgh Med. and Surg. Journal, vol. 6, p. 248.
 4 Practical Observations on Midwifery, p. 43. 
196
PREGNANCY.
down in the  pelvis, and project farther into the vagina.*  The
uterus remains in this  situation until it becomes  so large as to
rise out of the pelvis;  and accordingly this temporary abbrevia-
tion of the vagina, is a  sign  of pregnancy, though, of course, an
equivocal one.   The body of the uterus enlarges.  The changes
in the neck are also striking.  In the unimpregnated state it pro-
jects  into  the vagina  about two-thirds of an inch, (from a quar-
ter to half an inch, Montgomery,) like a thick, firm and fleshy
nipple, having at its termination a transverse opening.  During
pregnancy, it is  felt fuller,  rounder, and softer;  the margins of
the orifice acquire a peculiar lubricity in  consequence of the in-
creased  secretion from  the  muciparous glands in that situation,
and the orifice itself feels as if it were circular,  because it has
become  more yielding.f   At  the  termination of  pregnancy, the
neck  is  completely obliterated; the portion of uterus  which lies
over  the top of the vagina, no  longer projecting into its cavity,
but forming a flat roof.
   This obliteration generally commences  in a first pregnancy,
about the fifth month, but in females who have had several chil-
dren, the neck yields more  readily, and accordingly with some,
it is as much altered at the fourth, as it is in the previous case at
the sixth month.J   The progressive changes will  be best shown
by copying the accompanying sketches from Dr. Gooch's work
on the diseases of women.
A. The neck of the uterus before the fifth month, when it has undergone no change
      in its length.
B. The neck at the sixth or seventh month, when it has begun to shorten.
  * This is the common explanation, but the Reviewer of Dr. Montgomery in the
British and Foreign Med. Review, (vol. 4, p. 454,) denies that the uterus actually de-
scends lower into the cavity of the pelvis. "The  os uteri being low in the pelvis,
does  not however arise from the descent  of the uterus itself, but simply, as
Madame La Chapelle has correctly shown, from its having increased in size and its
fundus not yet having ascended out of the pelvis."
  t Montgomery, Signs of Pregnancy, p. 100.
  X Gooch, p. 213. Velpeau corroborates this, and states expressly that repeated ob- 
PREGNANCY.
197
C. The neck at the eighth month, when it is nearly obliterated.
D. The neck at the end of the ninth month, when it is quite obliterated.
  During  the period of  these alterations, the vagina is  more
elongated, since the uterus rises farther up.  But towards delivery,
this viscus gradually re-descends.  The os uteri also varies with
the changes in the cervix.   The lips gradually flatten and disap-
pear, and towards delivery, a small rugous hole only is discover-
able.*
  Now with a knowledge of these facts, we may proceed to an
examination, to ascertain their presence.   Having evacuated the
bladder  and intestines, the female is laid in such  a position, that
the muscles of the abdomen may be in a state of relaxation.  The
fore and middle fingers of the right hand are then introduced into
the vagina, whilst the abdomen is to be  felt with  the left.   The
patient should then  be required to breathe deeply, and the exa-
miner should press gently with his hand during expiration.   If the
uterus be enlarged, he will feel a hard, globular,  resisting  mass
above the pubes.   The orifice and neck should also be examined,
and having hold of the  uterus it may be gently moved, until mo-
tion is perceived.f
  This investigation, it  will  be perceived, elucidates the state
both of the womb and the fcetus.   It is certainly one  of the most
unequivocal modes of ascertaining pregnancy.   But it requires
long habit to become expert at  it, and this, few practitioners will
have   an opportunity of  obtaining.   The  most distinguished
accoucheurs have been, and probably will continue to be deceived

servations and the most carefully conducted experiments have shown him that the
changes which the cervix uteri undergoes during pregnancy, vary almost as much
as its anatomical characters, in unimpregnated females. (London  Medical Quar-
terly Review, vol. 3, p. 92.)
  * Denman, W. Hunter, Burns. The os uteri is also found closed with a gelatin-
ous matter.
  t Fodere, v. 1, p. 450.   Smith, p. 485.   Hohl in British and Foreign Medical
Review, vol. 1, p. 108.  The examination may also be made in the standing position.
                                 17* 
198
PREGNANCY.
with it.  Of this, the works of Mauriceau and Baudelocque bear
testimony, and Fodere1 relates a case which should  make every
physician distrust his skill.  In a hospital where he attended, a
female  was detained on  suspicion of being pregnant.   Several
medical persons visited and examined her.  Some declared that
she was in the eighth  month of pregnancy, whilst others denied
that she had  ever conceived.  She was kept in  the  hospital
during a whole year, and was then dismissed as large as ever.*
  It has however been  asserted,  since the employment of the
speculum, that the occurrence  of previous or present pregnancy
or the contrary, may be detected through its means by an exami-
nation of the neck of the uterus.  Dr. Marc D'Espine of Geneva,
has published  his investigations on  this  subject,  of which the
following is a brief outline.
  The neck of the uterus in a healthy female who has never been
pregnant  has  the form of a small nipple, projecting more than it
is broad at the base, its colour is usually that of the vagina, and
varies between the  pale rose, the  rose or the violet rose shade.
It is never vivid in a state of health.  The orifice always has the
form  either of a  triangular  or round aperture, and is constantly
of very small diameter, not more than one or two lines.
  There were some exceptions to  this general result, since in a
few, the neck was but little prominent or entirely flat.
  If  one or two children have been born the neck is found  in-
creased in size, and more or less flattened. The orifice is almost
linear and not round, and it is dilatable.   The length of the ori-
fice is aways  three lines and frequently six or eight.
  In  those who have miscarried, an  approach to the nulliparous
has been observed, particularly as to the shape of the neck. The
orifice would  seem to become  sinuous or jagged, in proportion to
the number of previous labours.f  How far this mode of exami-
nation will be found generally applicable or correct, remains yet
to be determined.
   As to  the  investigation  already described by means of  the
touch, I will only add  that there are  some varieties in the confor-
  * Fodere, vol. 1, p. 451.  Capuron mentions another case in which both Corvisart
and Baudelocque were mistaken. One said it  was encysted dropsy with extra-ute.
rine pregnancy, and  the other that it was an enormous schirrus of the uterus, and
yet in  three weeks, a  large and healthy child was born. (London Medical Quarterly
Review, vol. 2, p. 274.)
  t Dunglison's American Intelligencer, vol. 1, p. 103, from the Archives Generates
 de Medecine, April, 1836, 
PREGNANCY.
199
mation of parts that render this sign useless, or unavailable.  The
neck of the uterus is oftentimes seated very low, both in married
and unmarried females, while in others, it is almost out  of reach.
The near approach of  menstruation and the accompanying irri-
tation of the uterus, may also, according to Dr.  Montgomery,
effect a change in the  form and texture of the os uteri, similar
to that occurring in pregnancy; this, however, is transitory. Moles
and hydatids with  several other affections, produce an increase
in the volume of the uterus, and  an examination  by the touch,
may give an impression very similar to that of a child contained
in it.   But above all, the value of it is diminished,  from the fact,
that it can be made with most readiness  at the early stages of
pregnancy, when the uterus is low  down, while at the seventh
month, the uterus has  risen high up, and can  be examined with
much greater difficulty.  It can  thus be  applied with greater
certainty of success only at periods when our opinions at the
best must be doubtful.
   7.  Several  recent announcements would seem  to  show that
we can derive  satisfactory  information  on this  subject, by an
examination of the vagina.   I shall  notice them in the order in
which they have presented themselves to my. notice.
   Dr. Kluge, Professor of Midwifery in Berlin, considers a bluish
tint of the vagina extending from the os externum to the os uteri
as a sure  test of pregnancy.  According  to him,  this  discolora-
tion commences with the fourth week of pregnancy, continues to
increase to the period of delivery, and ceases with the lochia*
The only condition considered as  likely to vitiate  this  test is the
existence of hasmorrhoids in a very marked  degree.   Dr. Som-
mer  of Copenhagen, convinced himself  of the presence of this
particular colour in pregnant women, under the direction of Pro-
fessor Kluge.*
   Parent-Duchatelet in his remarkable work on Prostitution in
the city of Paris, mentions that M. Jacquemin, had in examining
the public women at the dispensary, discovered a  peculiarity be-
longing to the pregnant state, viz. a change of colour in the lining
membrane of the vagina.  It becomes of a violet hue and some-
times purplish, like the lees of wine.  M. Jacquemin  has never

            * British and Foreign Med. Review, vol. 2, p. 275. 
200
PREGNANCY.
been deceived in this, although he has had 4500 cases passing
through his hands.*
  Dr. Montgomery, however, in the cases examined by him, did
not find  this peculiar appearance  always  present.   In some it
was so slight, as to be scarcely if at all  perceptible.  He also
suggests, that as  it is  evidently produced  by increased vascular
determination, other affections of the parts, as menstruation for
example, may induce it.   This he  actually witnessed  in one
case.
  Further  inquiries are  hence evidently necessary to  ascertain
the proper  value of this test.
  Lastly, Professor Osiander has announced a sign, to which he
is inclined  to attach great importance and which he calls the va-
ginal pulse.  " In pregnancy, he says, the arteria uterina and its
branch, the  arteria vaginalis, must be necessarily increased in
some,  and their  systole and  diastole in  some  degree affected
by the process going on in the  parts which they supply.   At that
time he has  felt the arteria vaginalis at the posterior border of
the columna  rugarum anterior, and has found its pulsation to be
stronger and harder, and its caliber greater than usual.   During
imminent abortion  and other morbid  conditions, he has observed
the vaginal pulse to be quicker than the radial."f
  8. I may add in this place  a brief notice of  some  equivocal
signs, but which  should  not be overlooked in a medico-legal in-
vestigation.  If present they assist in completing the mass of evi-
dence.
  One is drawn from the appearance  of the blood.  According to
Dr. Blundell it is generally sizy during pregnancy.   Dr. Mont-
gomery, however, denies this,  and it probably is far from  being a
constant occurrence.
  The  secretion from the  salivary glands is often viscid, of a
white and frothy  appearance, and sometimes so much increased in
quantity as to constitute salivation.   Dr.  Montgomery, besides
his own cases, quotes Hippocrates, Gardien, Burns, and Dewees
in confirmation of its occasional presence.
  A chemical test has lately been  announced by M.  Nauche of
Paris,  although it is not altogether  original with him. He asserts,

  * De  la Prostitution, vol. 1, p. 217.  The  author states that he has verified this
test under the direction of M. Jacquemin.
  t  British and Foreign Med. Review, vol. 3, p. 247. 
PREGNANCY.                       201
that by allowing the urine of pregnant women to stand for some
time,  there will form a white flaky pulverulent  matter, being the
caseum, or peculiar principle of milk formed in the breasts during
gestation.   In a case where the stethoscope and an examination
per vaginam failed, he was enabled, by it, it is said, to predict the
presence of pregnancy.   Dr. Montgomery repeated the experi-
ment with success in several cases; the peculiar deposit appear-
ing as if a  little milk had been thrown into the  urine,  and which
was partly deposited and partly floating.  Mr. Kane, at the re-
quest of Dr. Kennedy,  made a  similar examination, and  found
the white flocculent precipitate not only in the  urine of pregnant
women, but also in equal quantity from that of  a female of four-
teen,  and a woman nursing for two months.
   Mr. Pereira of London found caseum in  the urine of women
far advanced in  pregnancy, but not invariably in that voided
during the early months.*
   9. I have until  now,  omitted all mention of another  proof of
pregnancy, which I am  inclined to believe  will before  long be
deemed the most infallible one.  I allude  to  the  results  attained
from the application of Auscultation to the impregnated uterus.
   Dr. Kergaradec of Paris, directed by the brilliant  discoveries
of Laennec, was the first  who fully noticed  this  subject.-}-   In a
Memoir read before the Royal Academy of Medicine  in 1821,
and published in 1822, he developed the  leading facts,  and has
left scarcely any thing  to future  observers  than to verify  and
strengthen his references.
   The indications of the presence of a living foetus in the womb,
as derived from auscultation, are two:  1. The action of the foetal
heart.  This  is marked by double pulsations, and it  greatly ex-
ceeds in frequency the maternal pulse.   In the first case noticed
by Kergaradec, it varied  from 143 to 148 in a minute, while the
pulse of the  mother was not more than  70.   The pulsations may
be perceived as early as the fifth, or between  that and  the sixth
month.  Their situation varies with the position of the child, and,

   * Lancet, N. S. vol. 8, p, 676;  Kennedy, p. 57; Dr. Cummin's  Lectures  in Lon-
don Med. Gazette, vol. 19, p. 483.
   t Dr. Mayer of Geneva, stated in the Bibliotheque Uniyerselle, previous to the
publication of Kergaradec, that the fact of a foetus being alive near the termination
of pregnancy, might be ascertained by applying the ear to the abdomen of the
mother—the  pulsations of the heart being then very perceptible,  (Kergaradec'^
Memoir, p. 36.) 
202
PREGNANCY.
 accordingly  they are more distinct at one time than another, in
 the same place, and in different places at different times.  Their
 most general situation, however, is the lower part of the abdo-
 men.   The space over which they  are perceptible at the latter
 period of pregnancy  is about a foot long,  and  three  or  four
 inches broad, and their intensity of course, corresponds with the
 nearness of  the observer to the  source of the sounds.  In the
 early months they are necessarily less manifest in  each respect.
 The fcetal  circulation  does not  appear  to be affected,  in health,
 by  agitation in the maternal.  It varies from  120  to  160  in a
 minute, always far exceeding,  as  already stated,  that of the
 mother.   The only opposite case ever noticed, was  that by Dr.
 Ferguson, in which the fcetal heart was distinctly heard to  beat
 only 28,* and the mother's 100.   From its rareness it is possible
 that some peculiarity in structure may have been the cause.  Dr.
 Kennedy, however, relates instances in which  the mothers were
' labouring under disease; and the loss of blood either by haemorr-
 hage or venesection, produced striking  changes in the  foetal cir-
 culation.
   2. The second auscultatory sign of the presence of  the foetus
 has been variously termed the placental sound, the placental bel-
 lows-sound and the utero-placental soufflet.   Considerable  diversity
 of opinion exists as to its cause,f but  it is  accompanied  by a
 rushing noise, resembling  the  blast of a pair  of bellows.   The
 place which it  occupies is said  never to change, but it varies in
 different individuals, and is seldom so large in extent as the space
 in which the  fcetal  heart is perceptible.   The time at  which it
 commonly begins to be heard, is the fourth month or as soon as
 the fundus of the uterus has  risen  above the  upper brim of  the
 pelvis, so th^t it can be brought in contact with the abdominal

   * Dr. Hays, in his edition of the Select Med ico-chirurgical Transactions, gives the
 number as in the text.  Dr. Forbes, Art. Auscultation in Cyclopedia of Practical
 Medicine, mentions 20.  Not having the original I cannot say who is right.
   t Kergaradec considered it produced by the passage of the blood through the pla-
 cental vessels; Laennec placed it in the uterine  arteries; Paul Dubois in the  vas-
 cular system of the tissue of the uterus generally ; Kennedy in the uterine arteries,
 aided probably by the circulation  in the maternal placenta;  and a recent writer, in
 the enlarged uterine vessels corresponding to the portion immediately connected
 with the placenta.  " We prefer  the opinion of Bouillaud, who considers it  owing
 to the compression of one or more  of the large vessels of the abdomen,  as the
 hypogastric and external iliac arteries, by the uterus charged with the product of
 conception."  Bouillaud has succeeded in displacing the placental murmur by mak-
 ing the patient lie alternately on the right and left sides.  British and Foreign Med.
 Review, vol. 1, p. 485.  See  also Ibid, vol. 1, p. 91. 
PREGNANCY.
203
 parietes, by  the  pressure  of the  extremity of the stethoscope.*
 It is said to be even louder then, than at the full term.  Certainly
 at later periods the sound is duller, more diffused, and no longer
 gives  the sensation of being  confined to a single artery.  Dr.
 Ferguson observes that he has most frequently found the placen-
 tal sound in either iliac region, although he has detected it in al-
 most every part of the abdomen.
   " The noise of the placenta and the action of the  foetal heart
 are commonly found on opposite sides  of the body.   This, how-
 ever, is not constantly the case, for sometimes both  the phceno-
 mena are audible on the same side, and in one case Laennec and
 Kergaradec  perceived the heart's action behind that of the pla-
 centa—the place where they were examined, being the interior
 part of the hypogastric region."
   In a case  of twins, Laennec detected the  pulsations of  two
 foetal hearts by the  stethoscope, previous to delivery.
   It must not, however, be imagined that this investigation can
 be made without  attention, or that  it is not occasionally liable to
 doubt.   The  examiner should be a person well versed in the use
 of the  stethoscope—he should be cautious not to express a posi-
 tive opinion in medico-legal  cases  before the fifth  month  has
 passed, and he must recollect that in some,  the  foetal pulsations
 cannot  at once  be  observed.  In  other  instances  sometimes
 hours,  and even days elapse without detecting them, although
 they had been already noticed.  This is attributed to  feebleness
 in the child—to its removal from that side of the body over which
 its body rested—or to a very copious  secretion of liquor amnii.
 This last will, at  all  events, render the sounds  feebler.  They
 must not be confounded with the action of the  mother's heart,
 which is often distinctly  audible in the region of the uterusf—
 with intestinal motions—or with muscular contractions, produced
 by the pressure of the stethoscope.   Dr. Ferguson suggests, that
 possibly, pulsations in  the iliac arteries, accompanied with  the
 bellows sound might be mistaken for the placental souffle. These,
 however, he adds, would only be  noticed in the  groin, whereas

  * According to Dr. Kennedy, (p. 80, 82,) he distinctly detected it in the tenth,
eleventh and twelfth week.  Drs. Montgomery and Velpeau have never succeeded
until four months of pregnancy had been completed.
  \ In such cases, Dr.  Kennedy found the sound to become more audible as it was
traced from the fundus to the uterus into the maternal cardiac region, and the beats
correspond with the mother's pulse,  (p. 116.) 
204
PREGNANCY.
the  noise of the placenta  will  be  heard  over a  space of  some

inches in extent.  Again, if the placenta be attached to the pos-

terior part of the  uterus,  especially towards its  neck, the  thrill

may be beyond the reach of the instrument.

   The examination may be made either in  the standing, sitting,

or horizontal  position.  The two last,  are, however, preferred.

It has the advantage, that  it can be used without removing the

ordinary dress.  Every thing  in  the shape of stays or  corsets

should, however, be previously put aside.

   It is impossible to peruse the cases of Kergaradec, Laennec,

Ferguson, Kennedy, Elliotson and Dr. John D. Fisher, of Boston,

without attaching much faith to these combined signs.   In many

instances, the female strenuously and indignantly denied the pos-

sibility of pregnancy.  The fcetal  and  placental  actions were,

however, present;  and  in  a few months the presence of labour

satisfied every doubt.  Kergaradec examined a female near her

time, the simple souffle was very manifest, but  no  double pulsa-

tion could be discovered.   In a few days a fcetus far advanced  in

putrefaction was born.  May we not conclude with  Dr.  Forbes,

that although the absence of these signs is not an absolute test  of

the non-existence  of pregnancy,  yet  their presence is almost in-

fallible.*   They do  not accompany  any other known  state or

condition of the abdominal  organs.f


  * There is one circumstance, which it is necessary to remember when making
an examination during labour.  It is asserted by Dr. Hamilton, and confirmed  by
the observations of Dr. Moir and Mr. Syder, that the number of  foetal pulsations  di-
minish greatly (sometimes from  120 to between 60 and 70) whenever uterine con-
traction supervened and again increased, when the contraction  is over.  Dr. Cum-
min suggests whether this change is not owing to some preparation of the fcetus for
the respiratory process.  Lectures in London Med. Gazette, vol. 19, p. 439.
  t The  following authorities deserve perusal:—The original Memoir of Kergara-
dec, Paris, 1822.  American edition of Laennec, 1830, Appendix.  Cyclopedia of
Practical Medicine, Art. Auscultation, by Dr. Forbes.  Dr. Ferguson on Auscultation
as the only unequivocal evidence  of  pregnancy. (Dublin Med. Transactions,) in
Select Medico-Chirurgical Transactions, vol. 1, p. 172.  Dr. Kennedy on the Placen-
tal Soufflet. (Dub. Hosp. Reports, vol. 5,) in Ibid, p. 189.  Dr. Adams on Ausculta-
tion in Difficult Labour, from Dublin Medical Journal. (Boston Medical and Surgical
Journal, vol. 8, p. 277.)  Dr. Montgomery  in Cyclopedia of  Practical Medicine.
Medico-Chirurgical Review, vol. 9,  p. 607; vol. 21, p. 163.  A case is given where
the pulsations (supposed to be fcetal) were only 128 in a minute.  Deeming these too
few, the pulse of the mother was  examined, and found to be the same.   No other
sounds could be detected, and the female  (as the event proved) was declared not
pregnant.  Dr. John D. Fisher in Boston Medical and Surgical Journal, vol. 3, p. 97.
Mr. Probart in  London  Medical Repository, April, 1828. Dr. Elliotson in Lancet,
N. S. vol. 7, p. 656.  A supposed  case of dropsy, shown to be pregnancy by the
stethoscope.  Dr. Nagele,  cases of twins.  (Lancet, N. S. vol. 7, p. 232.)   This au-
thor denies that the placental sound is a  safe test  of the presence of  pregnan-
cy.   He states  that he  has met with it  when no placenta was present.  Dr. 
PREGNANCY.
205
   The  lengthened review that  has  been taken  of the signs  of

pregnancy,  sufficiently  indicates the difficulty that  attends the

subject.   I will not say, as in  a previous edition,  that there is no

invariable sign of pregnancy;  but I will repeat the  caution there

given, that the medical witness is  called  upon to  prove its ex-

istence on oath.   He is, accordingly, bound to weigh all  the pos-

sible causes that may produce  these  symptoms, and  he is to re-

collect  that most of  them have proved equivocal.*   Even the

last and the best will require frequent practice  to  enable the phy-

sician to speak with certainty.   The female also,  in most of the

cases, conceals her knowledge of symptoms.  It is evident, there-

fore, that nothing can be lost, but much may be gained by delay—

that the examinations should be frequently repeated,  and that an

opinion  should seldom  be hazarded before the end  of the sixth

month.  When it is  recollected that he may have the life  of a

fellow-being, or  her  property at his disposal,  surely he  will not

desire to be in haste  on so important a subject.f  At the  period


M'Keever on the information afforded by the stethoscope in detecting the  presence
of fcetal life.  Lancet, N. S. vol. 12, p. 715.  Review of Dr. Hohl on Obstetric Aus-
cultation in London Med. Quarterly Review, vol. 2,  p. 83, and in  British and Foreign
Med. Review, vol. 1, p. 85.  Dr.  Robert Collins' Treatise on Midwifery.  And last, but
among the most important, Dr. Kennedy's separate work on obstetric Auscultation.
For  some facts tending to weaken our confidence  in this mode  of examination, see
Dr. Maunsell in Edinburgh Med. and Surg. Journal, vol. 40, p. 302.   It would also
seem that Velpeau does not  agree in considering the souffle as peculiar to pregnancy;
" as  it has been heard in cases  where the uterus contained a simple tumour, or even
where the ovary was  the diseased part." (Lancet, N. S. vol. 14, p. 246.)   Capuron
is also a disbeliver in auscultation.
  * Mary Heath was tried  before the court of king's bench in  Ireland, for perjury
in the great Annesley cause.  The  object of this  cause was to ascertain whether
James Annesley was the son  of Lord Altham. On. the  trial of Mary Heath, Dr.
Samuel Jemmat, an aged and respectable practitioner, testified that he had formerly
been consulted by Lady Altham,  and found her with child.  She had all the usual
symptoms.  One of the counsel  asked him,  "Upon your oath, sir, are there any
rules in your profession, by which a pregnancy can be discerned  from a tympany,
or any other like disorder ? Answer.   By virtue  of my oath, that question would
puzzle not only the colleges of physicians of England and  Ireland, but the Royal
Society too.  Jury.  Is there such a thing as a false conception ?  A. Very often  ; a
mola, there is.  Q. Are the symptoms the same ?  Have women  grown  big with
a false conception ?  A. They have done it."  (Hargrave's State  Trials, vol.  9,
p. 463.)
  " Concludamus ergo, ex praedictis ; quod certa pregnantia? cognitioex nullis signis
indubitato haberi potest, sed bene conjecturalis ac dubia ; nullum enim signum tam
proprium pregnantiae habemus, quod ex aliqua praeternaturali causa originem  haberi
non possit."  (Zacchias, vol. 1, p. 90.)
  " Toute notre sagacite, mise en oeuvre, ne peut nous fournir aucun signe invariable
qui determine l'existence du fcetus dans la matrice."  (Mahon, vol. 1, p. 141.)
  " The verification of the pregnant  state cannot  depend on the importance due to
any particular sign : It must depend on the existence of several."  (Smith, p. 484.)
See, also, Foder6, vol. 1, p. 433.  Capuron, p. 81.
   t Cases are said to be mentioned by various writers, as Ambrose Pare, Mauriceau
      VOL. I.                       18 
206                        PREGNANCY.
mentioned, however, he may venture to  give  a nearly decisive

opinion, if it be founded on the presence  of most of the leading

signs that have been enumerated.
   A few remarks are here necessary with respect to  extra-uterine

pregnancy.   The early symptoms of it are  generally the same as

in  common  gestation—the  abdomen  and uterus   enlarge, the

menses  are suppressed, the breasts increase in size, and very often

the child quickens at the proper time, but is more felt on one side

than  the other.  The distention is also  unequal, not  occupying

the  front of the abdomen  as in  true  pregnancy,  but inclining

either to the left or right.   Severe pain, owing to the violent and

preternatural distention of the narrow  parts in which the  ovum

is confined, is also a common attendant.  The  body of the uterus

enlarges often in particular parts,  and  sometimes  throughout its

extent; but I do not find  alterations in  the cervix particularly

noticed.  At  the  end of eight, nine, or ten months of gestation,

appearances  of labour come on, and continue for a longer or

shorter  period of time ; the motions of the child cease, and milk

is secreted.  The  case terminates sometimes in death, from the

irritation produced; sometimes the fcetus is voided by the natural

passages, while  it  again will remain  in the  abdomen  for  years

without affecting the health.*


&c. where female criminals have been executed on the decision of examiners, that
pregnancy was not present; and notwithstanding a fcetus has been found after death.
The following, from Deveaux, is  a melancholy example :  In November, 1655, in
France, several midwives examined a female under sentence of death, and deposed
that no sign of pregnancy was present. She was executed; but on dissection, a fcetus
of the third or fourth month was discovered.  The midwives were severely admo-
nished by the magistrates; and it was decided, that whenever a female declared her-
self pregnant, her punishment should be delayed for asufficient length of time to de-
termine the certainty of the fact  (Fodere,  vol. 2, p. 444.)
   * A very full collection of references to cases of extra-uterine pregnancy will be
found in the Notes to Burns's Midwifery.  See also  the Philosophical Transactions,
passim;  and Fodere, vol. 1, p. 453.  Prof. James  on Extra-Uterine Pregnancy, in
the North American Medical and Surgical Journal, vol. 4, p. 277.   Dr. Ramsbotham
in Medico-Chirurgical Review, vol. 21, p. 310.  A  very remarkable case of preg-
 nancy  succeeding  to an extrauterine case? and in  which the latter was some
years after discharged by an opening at the  umbilicus, is given by Dr. Montgomery,
Cyclopedia of Practical Medicine, vol. 3, p. 492.
   Dr. Ramsbotham  mentions a case in his own, and father's practice, where three
children were successively born of a female, in whom an extra-uterine fcetus was un-
questionably present.  He refers to similar cases  recorded in the Medico-Chirur-
gical Review, vol. 24, p. 163 (at Dublin.)  Ibid, vol. 24, p. 239  (at Geneva.)  " It is a
curious circumstance, in the history of these cases, that if the child should  live till
the time of gestation is completed ; as soon as that time  has expired, the uterus
takes on itself expulsive action, which is attended with pain similar to the throes of
labour, and during these pains  the deciduous membrane is expelled from the cavity
with a slight sanguineous discharge, and the same occurs on the death of the ovum, 
PREGNANCY.
207
   Should the physician, as a medical jurist, suspect the presence
of a case of this  kind, he  can do nothing more than  desire a
delay until  the supposed  termination of the  gestation.   The
proofs are not so infallible, but that a foetus in utero may possibly
be present
   The most difficult case of  concealed pregnancy that probably
can occur,  is when it is accomanied with ascites.  The motion
of the fcetus cannot be perceived;  and it is also added by Fodere,
that the uterus does not take on its ordinary developement.  Yet
many cases are on record, where females, with this  disease  on
them, have been  delivered of healthy  children.   In suspected
cases, the practitioner should weigh  the  symptoms, and ascer-
tain whether they are all referable to the disease ; his medicines
should be mild, and patience  practised as  to the event.  In many
cases,  the difficulty  may  be solved  by  the application of the
stethoscope.*
   In the  sketch now given of the signs of real pregnancy, most
of the  remarks  are  directly  applicable  to  concealed   or  pre-
tended  cases.   With  respect to  the  latter, I may observe, that
in addition to the  circumstances already enumerated, the follow-
ing should also be noticed:
   1.  The age of the individual.   It is generally conceded  that
no female can be impregnated, in our  own  climate, under  the
age of thirteen, nor  above that of fifty, provided  she has been
previously barren.  This,  however, is only to  be taken as  a
general rule, subject to exceptions.f  The presence of menstrua-

provided that be premature." Lectures.  London Med. Gazette, vol. 16, p. 214.  See
also a case by  Dr. S. W. Williams, of Massachusetts, in which death succeeded a
week  after  the birth  of a healthy child.  On dissection, the parts of a fcetus were
found in the left ovarium.  Boston Med. and Surg. Journal, vol. 18, p. 28.
   * There are many cases on record of pregnancy complicated with ascites.  A Me-
moir of Scarpa in Quarterly Journal of Foreign Medicine and Surgery, vol. 1, p.
249 ; He operated with success, and twins were subsequently safely delivered; they
died, however, soon after.  See  Medico-Chirurgical  Review, vol.  5, p. 500; vol. 6
p.  265, 506; vol. 10, p. 234,270.  Edinburgh Medical Essays, vol. 6, p. 137. Lang.
staff in Medico-Chirurgical Transactions, vol. 12.   North American Medical and
Surgical Journal, vol. 4, p. 190.  Lancet, N. S. vol. 9, p. 117.—-In most of these, the
operation for paracentesis was performed, and living children born ; they did not,
however, usually survive any time.
  + Many oases of births in advanced age are on record.  (See Capuron, p. 93 and
98.)  The succession  to an estate was disputed in France, because the mother was
fifty-eight years old when the child was born.  It was decided in favour of the ap-
plicant, because similar instances are mentioned by ancient and modern writers.
Smith, p. 493, mentions cases of early and  late fecundity.  I quote  the following,
because it  happened lately : " May, 1816, Mrs. Ashley, wife of John Ashley, gra-
zier, of Firsby  near Spilsby, at the age of 64, was delivered of two female children, 
208
PREGNANCY.
tion, in every country, constitutes the state of puberty; and the

irregularity of its  occurrence is noticed  by most practitioners.

It is to be regretted, however, that so  few have given the result

of their observations.  Out  of  450  cases  investigated  at the

Manchester  Lying-in-Hospital in England, the  following  results

were obtained:

   The menstruation began
in the eleventh year, in 10                  sixteenth,.....   76

        twelfth,......  19                  seventeenth, ...   57

        thirteenth,___  53                  eighteenth,---   26

        fourteenth.....  85                  nineteenth,---   23

        fifteenth,.....  97                  twentieth,.....    4

Again, out of  10,000  pregnant  females  registered  at  the  same

hospital, 436 were upwards of 40 years of age;

                       397 from 40  to 46 ;

                         13 in their  47th year ;

                          8    ....  48

                          6    ....   49

                          9    ....   50

                          1    ....   52

                          1    ....   53

                          1    ....  54.

Mr. Roberton also adds, that  so far as  he  could  ascertain, and

particularly  in the three cases above fifty years, the  catamenia

continued up to the period of  conception.*

which, with the mother, were likely to do well."  (Edinburgh Annual Register, vol.
9, part 2, p. 508.)
   And  the following is an American case.  A woman al Whitehall, (State of New
York,) named Ann Cook, had a child at the age of 64.  She had not menstruated
for fifteen years, and her youngest  child is twenty-six years old.  The  child was
born in February, 1836, and was doing well.  (Boston Med. and Surg. Journal, vol.
14, p. 79.
   For several instances of menstruation at advanced periods of life, (between 70 and
87 years of age,) I refer to Mr. Semple's paper in the Lond. Med. Gaz, vol. 15, p. 467.
  * See Mr. Roberton's papers on the natural history  of the  menstrual  function, in
Edinburgh Medical and Surgical Journal, vol. 38, p. 227; and also on the period of
puberty, in North of England Medical and  Surgical Journal, p. 69.  Mr. Roberton
endeavours to combat the prevailing idea that climate has an effect on the period of
puberty.   His historical testimony goes  to show that it sometimes is as early in
northern as in southern countries ; and if any general cause is to be assigned for
precocity, certainly the one suggested by him, of early licentiousness, or even con-
nexion, is the most probable.  Mr. R. mentions the case of a girl who worked in a
cotton factory, becoming pregnant in  her eleventh year.  When in labour, she was
seized with convulsions;  but ultimately, without  unusual difficulty, was  deli-
vered of a full-grown child, still  born.  The fact was perfectly ascertained by a
reference to the church register, that at the time of her delivery, she was only a few
months advanced in her twelfth year.  She menstruated before she became pregnant. 
PREGNANCY.
209
   " In the statement sent to parliament by Bartholomew Mosse,
 when endeavouring to procure a grant  for the Dublin Lying-in-
 Hospital, he  mentions that  eighty-four of the women  delivered
 under  his care were between  the ages of forty-one  and  fifty-
four ;  four of  these were in their  fifty-first  year, and  one in her
fifty-fourth."*
   Osiander noticed at Gottingen, out of 137 females, that 9 men-
struated at 12, 8 at 13, 21  at 14, 32 at  15, 24 at 16, 11  at 17, 18
at 18, 10 at 19, 8 at 20, 1  at 21, and 1  at 24.   At Paris, accord-
ing  to Velpeau, the function  occasionally  commences  at 10, 11
or 12 years; but generally between 12 and 16.f
   Professor Hohl of Halle out of 195  cases, found that
       3 menstruated at      -        -         -         12 years.
     10       "           -         -        -       -    13    "
     27                       -       -        -        14    "
     33                  -        -        -       -    15    "
     41        "               -       -        .        16    "
   There are, however, some  facts contradicting the opinion of Dr. Roberton, as in
 the following:
   "The author has known the instance of an European child who went to the East
 Indies at the age of six, in whom menstruation took place at the ninth year, and con-
 tinued to occur regularly during three months; but the child then  returning to a
 more temperate climate, the secretion ceased, and has not yet returned.   The child is
 now twelve."   (C. M. Clarke, part 1, p. 12.)
   " Heat, whether natural or artificial, seems  to produce sexual maturity in the ani-
 mal body, in a way perhaps analogous to that  which it performs on the same prin-
 ciple in the vegetable kingdom.  Bruce mentions, that in Abyssinia, he has fre-
 quently seen mothers of eleven years of age. In Bengal, I have  seen many girls
 come to the age of puberty at that period, and sometimes a mother under the  age of
 twelve.  I formed  an opinion, though perhaps I had not a sufficient number of facts
 to bear me out  in it, that precocious  pubescence was to be found, more frequently
 among an  unfortunate class of females, who are  sold when very young by their
 parents, for the purpose of prostitution, and who being brought up in the  stews,
 their passions are daily excited by voluptuous  and licentious scenes.  In Manchester
 and Glasgow, the girls who work in the cotton mills, which are of necessity kept at
 a high temperature, and where morality is not at a much higher pitch than in a
 Rhindy Ghurr in India, the same  effect obtains."  Dunlop.
   See also Davis's Obstetric Medicine, p. 226, &c.  Dewees (Hays' Cyclopedia of
 Practical Medicine, vol. 1, p. 344,) denies the correctness of Mr. Roberton's opinion,
 from his own observations on this  continent;  and there certainly cannot be a better
 field  for examination.  Dr. Ramsbotham  also, I observe (London Medical Gazette,
 vol. 13, p. 269,) in  his  lectures, doubts it.
  Among extraordinary cases connected with the history of menstruation, I may
 refer to one occurring  in Italy, where the function  continued from the fifty-third to
the ninety-fourth  year, without injury to  health.  (American  Journal of Medical
 Sciences, vol. 7, p.  513.)
  * Cyclopedia  of Practical Medicine, vol. 3, p. 491.  Dr. Montgomery  adds a case,
on the authority of Dr. Labbat of Dublin, of  a female  marrying at forty, and con-
ceiving and bringing forth a living child for the first time when past the age of fifty.
  t Velpeau's Midwifery, p. 84. Osiander's numbers amount to 143, and it is hence
possible that there may be some misprint.
                                  18* 
210
PREGNANCY.
28 menstruated at
21       "
11
12       "^
 5
 2
 1
 1
 195
The menses returned in
    5  cases
  43   "
 138   "   -
    I   "
    2   "   -
    2  "
    1   "   -
    1   "
    1   "   -
    1  "
      195*
  Although impregnation is supposed to depend on menstruation,
yet there are cases on record, where females have become preg-
nant  without ever menstruating.   Sir E. Home, in the Philoso-
phical Transactions of 1817, mentions the case of a young woman
who  married before  she was  seventeen, and  although she had
never menstruated, became pregnant.   Four months  after her
delivery, she became  pregnant  a second time;  and four months
after the second delivery, she  was a third time  pregnant, but
miscarried.   After this, she  menstruated for  the  first time, and
continued to do so for  several  periods, and  again became  preg-
nantf

  * British and Foreign Medical Review, vol. 1, p. 103.
  t See Fodere, 1, p. 396; Capuron, p. 96, for similar cases.  Also Moseley  on
Tropical Diseases,  p. 103,  104.  " Ego habui  amicam laudabilis temperamenti et
complexionis, qua? octo Alios tulit consequenter, id est, omni anno unum, nunquam
tamen visa una gutta sanguinis menstrui."  (Low, p. 523.)—Impregnatio nullis  un-
quam prseviis menstruis.  (Stalpart, vol. 2, obs. 31.)
  " I knew a noble virgin, who being married before her menses, which had been
expected for many years, appeared, was  nevertheless, very fruitful, and that we may
17	years
18	a
19	a
20	a
21	a
22	a
23	a
24	a
	every		14 days. 3 weeks	
a			4 '	<
u			6	t
from 2		to	4 <	i
	' 3	to	4	i
	< 4	to	12	a
	< 4	to	18	a
	' 6	to	10	u
	8	to	12	a
 
PREGNANCY.
211
  2. We should ascertain whether any of the causes of sterility,

as already enumerated, be present.

  3. Women often fancy themselves pregnant when the menses

cease.  This great change in the system often produces enlarge-

ment of the abdomen,  nausea, and the breasts fill  with a  milky

fluid.  Caution is necessary  in  such  cases, in giving a decided

opinion ; and Van Sweiten mentions two, which teach a valuable

lesson.  A female had a son  when she was twenty-five years  of

age ; twenty years after, she  declared herself pregnant a second

time.   This was  disbelieved  by all, but it was verified in due

season.   Again, a female had been delivered of fourteen children,

and might hence  be supposed  to  be  well acquainted with the

signs of pregnancy.   After the birth of the last child, the menses

ceased for eight years; and at the end of this time, she supposed

herself again pregnant; but a few months  reduced her size, and

showed that  she was mistaken.  A torpid  state  of the uterus,

combined with intestinal flatulence, appears to be the principal

cause  of these sensations.   " At this time, (says Dr.  Gooch,)

menstruation will often cease for several months,  and the abdo-

men become distended with a flatulent tumour; the air moving

about the bowels  gives an inward  sensation, which is mistaken

for the child; there is often slight nausea, various nervous  feel-

ings and an  anxiety to believe in pregnancy as  a test of  youth-


 be  the less surprised  thereat, the very same thing had likewise happened to her
 mother." (Morgagni, Epistle 47.)  Velpeau also mentions a case at Tours.  Addi-
 tional cases are quoted in Cyclopedia of Practical Medicine, Art.  Pregnancy, by Dr,
 Montgomery.
  Dr. Dewees denies  that impregnation can take place  without menstruation, (p.
59.)  He attributes the rare cases noticed  to some imperfection of the genital or-
gans.  The discharge may also in some instances have been colourless.
  Cases of the absence of menstruation for several years previous to pregnancy, are
 given by Professor James of Philadelphia. (Hosack's Medical and Philosophical Re-
 gister, vol.4, p. 222;  by Dr. Hosack, Eclectic Repertory, vol. 2, p. 119; by  Dr. Mer-
 riman in Medico-Chirurgical Transactions, vol. 13, p.  347 ; by Dr. Campbell, Mid-
 wifery, p. 49.  He is acquainted with a female to whom eight children have been
 born, at the full time,  " without having any monthly indisposition between any of
 the births."
   By Mr. Reid of London, who mentions the case of a female, who "during the
 period of nine years, that she had been married, had never seen  the catamenia,  un-
 til she became pregnant with this last child, after which, up to the term of quicken-
 ing, they appeared regularly every month."  She had several children previous to
 the one whose delivery forms the subject of Mr. Reid's communication.  London
 Med. Gazette, vol. 16, p. 144.
   By Dr. Montgomery, (Signs of Pregnancy, p. 43,) a female labouring under dis-
 ease of the heart, which had induced dropsy, had had no menstrual discharge for
 two years previous to conception. Her  pregnancy was not even suspected till she
 miscarried of a foetus  of five months. 
212
PREGNANCY.
fulness.   About this age, also, the omentum and parietes of the
abdomen often grow very fat,  forming  what Dr.  Baillie  once
called " a double chin in the belly."   This assemblage of symp-
toms at  this age frequently leads  to the  supposition  of preg-
nancy.*  The  case of Joanna  Southcott  is  sufficient  to  show
the  delusions that  have  happened,  and  undoubtedly will  again
happen.f
  4. There are various substances or fluids formed in the uterus,
which cause the  female to imagine that she is in this state.   Of
this  description are moles and hydatids.   The term mole does not
appear to be very accurately defined.  I shall understand by it,
a fleshy substance contained within  the  cavity of the  uterus—
enveloped in a membrane, and generally  filled  with blood,  al-
though occasionally dry.   On cutting into  it, various parts, re-
sembling  an  imperfect fcetus, will be observed.  The symptoms
produced, are at first very similar to those of pregnancy.   The
stomach is affected, and the breasts and belly enlarge.  The lat-
ter,  however, increases much faster, and  is softer and more vari-
able in size  than  in real pregnancy.   It is sometimes as large at
the second month,  as in  the fifth of perfect conception.   The
duration of this is uncertain;  but the mole generally comes  away
at the third or fourth month, although in some cases it has not
been evacuated until the sixth or seventh, and it is even said to
have been retained for years.J
  This term has  also been applied to those coagula, which not
unfrequently accompany  the process  of menstruation, and which
appear to have remained so  long in the uterus, as to  have re-

  * Gooch's Diseases  of Women, p. 226.  He adds, that he has met with similar
cases in young  women, owing probably to obstructed menstruation, but aggravated
by mental agitation.
  t"  In such instances, the greater number of the rational signs must be consider-
ed as entitled to little  or no consideration, if not altogether disregarded, and our re-
liance should be placed on careful manual examination, by which the abdomen how-
ever enlarged, is found soft, puffy and compressible, the umbilicus sunk, no abdomi-
nal tumour, and the uterus per vaginam unaltered."
  Dr. Montgomery  however from whom I have just quoted, advises, that we should
not deny the existence of pregnancy, but treat the case for a time as if the female
were  pregnant,  and at the same time, exhibit such  medicines, as will improve the
general condition of the system.
  X A case  examined before the Parliament of Paris, in 1781,  in which the female
sued  for damages for seduction.  Twenty months after this was alleged to have been
committed,  she  brought, forth a mole. The parliament very properly decided against
her, on the score of character; but they added,  what may be questioned under the
present acceptation of the term, that unmarried females, and even nuns have diSr
charged moles, without any previous criminal connexion. (Fodere, p. 1, 477.) 
PREGNANCY.
213
tained  the fibrous  part of the blood only.   Many unmarried  fe-

males discharge these, and they should be accurately distinguished

from the former.    The one is to be deemed the product of con-

ception,*  and  the  other   not.    And  these bloody  coagula are


  * " True moles are distinguished from the false, and other growths of the  uterus,
by their not  deriving their origin  from the substance of the womb, or its membrane;
but by their being always the consequence of conception."  (Voigtel's  Pathological
Anatomy in  Edinburgh Medical  and Surgical Journal, vol. 11, p. 99.)—"It is  the
opinion of many, that these substances are never  formed in the virgin state, and no
case that I have yet met with contradicts the supposition."  (Burns, p. 79.)
  Madame Boivin divides all the  species  into three classes.  1. The false germ or
blighted ovum.  2. The fleshy mole.  3.  The vesicular mole (hydatids.)  Of fleshy
moles, tw« kinds are described—one hollow in the centre, the  other solid,  in both
cases a degeneration of the envelopes of the fetus. (Edinburgh Medical and Surgical
Journal,  vol. 39. p. 217.)
  Moles  are of three kinds. 1. A foetus so vicious in formation and imperfect in deve-
lopement, that it in no degree resembles a human being, but is an organized, though
shapeless mass of flesh. 2. The false germ of Madame Boivin, the membranes  appear
perfectly formed, but the embryo is wanting. 3. The embryo has died early, but the
ovum  has been retained and increased in size and solidity.  " I presume that each
of the three kinds I have specified is always the result of sexual intercourse."   Dr.
F. H. Ramsbotham.   London Med. Gazette, vol. 16, p. 609.
  Fleshy moles. " Though these  substances are  invariably the result of conception,
it is not certain that they are formed by the growth of the membranes subsequent to
the  death and expulsion of the embryo.  In several cases of this description,  no em-
bryo was at any time discharged." (Cyclopedia of Practical Medicine, Art. Abortion,
by Dr. Robert Lee.)
  " Le developpement des masses  d'hydatides (says Desormeaux) est le plussouvent,
sinon toujours,  la suite de la conception."  (Orfila, Le$ons, second edition, vol. 2,.p.
220.) He says that Velpeau entertains a similar opinion. Candour, however, obliges
me  to add,  that some observers  believo  that they may occur in  chaste females.
(Smith, p. 298.)
  Dr. Blundell  thinks, that fleshy substances are formed in the uterus  of pure fe-
males, which resemble  in structure the placentar part of the ovum in the  earlier
months.—"To my knowledge, they form  month after rhonth in unmarried females of
undoubted honour."   In some instances, however, he allows that they are blighted
ova, the result of intercourse.  (Lancet, N. S. vol. 4, p. 225.)
  Murat, Art. Grossesse, (Dictionnaire des Sciences Medicales,) appears undecided;
while in Art. Mole, he advocates the prevailing idea.
  The true distinction is, however,  undoubtedly taken by Mahon, (vol. 1,  p. 274.)
" The  existence of moles, properly so called, (says he,) is extremely doubtful, since
they may all be referred to some  one or  other of the  substances of which we have
spoken, viz. a placenta which had continued its growth, the fcetus having perished;
the  degenerated remains of the after birth; coagulated blood ;  sarcomatous tumours
or polypi of the uterus.  The two first cannot exist, except after sexual intercourse;
the  other three may  be  found independently of it."
  With Dr. Montgomery, to  whom I am indebted for the reference, I entirely con-
cur  in this view, and  add in his words, that  no medical jurist would be justifiable
in pronouncing  any such mass expelled  from the uterus, a proof of pregnancy,  ex-
cept he can detect in it  either the  foetus or a  part of it, or some other of the compo-
nent parts of the ovum.   But it must also be recollected, that in many of these cases,
no trace of a foetus can be discovered, it having been completely destroyed, and only
its membranes and the placenta  continuing to grow  for some  time, and becoming
thickened and fleshy or filled with fluid.
  Dr. Granville proposes a distinction in his work on Abortion in the following
words:   " What then is the distinction between a real mole  and  a coagulum, no
matter of what  species  or variety  the latter be ?  It is this : that the former has in-
variably a central cavity, whnlly enclosed, without any opening or aperture; whereas 
214
PREGNANCY.
wanting in  the  characteristics  of a  true mole,  viz: the  fleshy

texture, and the enveloping membrane.

   We have already remarked, that a true mole may be mistaken

for real pregnancy during some  months.  By, however, attending

to the following circumstances, the difficulty may in some degree

be solved.   The early and rapid increase in size of the uterus—

the  sensation of pressure,  which often produces pain, and the

want of motion when examining the uterus.  This last,  however,

is seldom applicable, since the investigation is usually made in the

early stages.   Fodere adds, that the breasts are not filled with a

milky, but with serous fluid, and that the female often experiences

violent  convulsive  motion  in her  abdomen.*  Occasional  dis-

charges of blood per vaginam during the gestation of  the mole,

are not uncommon.

   Hydatids,  or dropsy of  the uterus, which by many are  consi-

dered as  synonymous,f  are generally supposed to proceed from

the latter, let it be formed in any way you please, stratified, laminated, concentric,
membranaceous, solid, hollow, or with a regular cavity lined with a membrane, no
matter—will be found invariably to have at one of its extremities, an aperture, either
leading straight into the inner cavity, where such an one exists, or simply passing
from one membrane or  stratum of coagulated blood to the next, until it reaches the
innermost, which is also perforated like the rest.   This is a striking and important
distinction, and I am not aware that  it has been noticed or  made public by any au-
thor before me." p. 50.
   * Fodere, vol. 1, p. 469.
   t See Denman, p. 148, and the opinions of Drs. Baillie and Sprengel there quoted
in favour of this belief.  Dr.  James, Professor of Midwifery in the University of
Pennsylvania has advocated a similar opinion.  (Eclectic Repertory, vol. 1, p. 499.)
See also Cyclopedia of Practical  Medicine, Art. Hydatids, by Dr. Kerr, vol. 2, p.
449.
   " It is more than probable, that the cases described as dropsy of the uterus, have
belonged to the class of hydatids; or if there be any such disease in fact as dropsy
of the uterus, the author never has met with a case of it."   (C. M. Clarke, part 2, p.
126.)   Dr. Ramsbotham concurs in opinion with Sir Charles Clarke, and says he has
never met with a case.   (London Med. Gazette, vol. 16, p. 614.)
   John Burns, however, considers them  as distinct diseases, and the remarkable
ease of Dr. A. T. Thomson, (Medico-Chirurg. Transactions, vol. 13. p. 170,) shows
that hydrometra may exist  independent of hydatids; so also in the case examined
by Mr. Coley.   (Transactions Provincial Med. and Surg. Association, vol. 4, p. 357.)
There is certainly one  condition that is undoubtedly distinct from what we under-
stand by hydatids.  It  consists in an enormous collection of the liquor amnii, to the
 amount  sometimes of three or four gallons.  Here a fluctuation may be felt, as if
 the female were dropsical, and unless aware of the possibility of its occurrence, the
 operation might be rashly  hazarded. Dr. Blundell suggests as  a discriminating
 circumstance, that the enlargement here is often very sudden.   Its real  nature, how-
ever, must be ascertained by an examination of the parts.
   Dr. Haighton was sent for,  to a case where, in the middle months of gestation, a
 female laboured under great swelling of the abdomen, which fluctuated distinctly.
 The surgeon associated with him proposed an operation.  It was delayed, and during
 the night " the membranes which contained all this water burst of themselves, a
 flood of fluid was discharged, the abdomen rapidly collapsed, a fetus issued not larger
 than the first joint of the finger, and the patient did  well."  Blundell's Lectures,
 Lancet, N. S. vol. 3, p. 98. 
PREGNANCY.
215
coagula of  blood, or from  portions of the placenta, degenerated

during the process of pregnancy.*   There is, however, an opinion


  Cases resembling  the above, are  related by Mr.  Wildsmith, of Leeds; Lancet,
N. S. vol. 4,  p. 740; by Mr. Ingleby, in  his Work  on  Uterine  Haemorrhage;
Medico-Chir. Review, vol.  21, p. 218; by Dr. Ramsbotham, in his Observations on
Midwifery ;  Ibid. p. 312-314; by'Mr. Fell,  in Edin. Phys. and Literary Essays, vol.
2, p. 374.
  * " As in other parts of the body we find hydatids without there having been a con-
nexion between the sexes, so in the uterus, I presume they  may be formed without
intercourse; but in general, they are the result of impregnation."  (Blundell, Lancet,
vol. 4, p. 226.)  It is probable that the existence of pregnancy is  not necessary for
the  production of the disease.  (C. M. Clarke, part 2, p.  115.)  Dewees (Diseases of
Females, p. 298,) is of the same opinion.
  Madame Boivin, however, in  her Essay  on  the Vesicular Mole, opposes the idea
of its consisting of hydatids, and deems it a degeneration of the impregnated ovum.
In proof of  this, she refers to the mass of vesicles being enveloped in a membran-
ous sac, consisting of two layers, one resembling the decidua reflexa, and the other
the amnios.   Of course, she considers it invariably the result of sexual intercourse.
(See her " Nouvelles Recherches," &c. and Edinburgh Med. and Surg. Jour. vol. 34,
p. 382.)  To the question put in a  former edition, Whether there, was any case in
which an examination had been made on the virgin female labouring under this dis-
ease ; and if so  whether the  parietes of the uterus enlarged as in real pergnancy ?
Madame Boivin at least gives an unequivocal answer: " En effet, il nous paraitra tou-
jours tres difficile de determiner d'une maniere absolue Tetat de virginite d'une fille,
doitree ou non, chez laquelle s'est developpe 1'uterus comme dans une grossesse fee*
tale de neuf mois."   Not  only  the uterus, but all  the organs sympathizing with it,
develope themselves; and whatever  may  have been the antecedent circumstances
of the individual, these combined, say little in favour of  her chastity.   (Recherches,
p. 20.)
  Velpeau, in  his recent work observes, as  the result of  his  numerous examination^
that "les hydatides en grappe de 1'uterus  n'etaient pas  de vers vesiculates, comme
on croit generalement; mais bien le produit d'un  ceuf avorte, dont les petits corps
gangliformes ont pris un accroissement qui  ne leur est pas ordinaire." (Embryologie,

  To this testimony, I add the decided opinion of Dr. Montgomery, who, after quot-
ing Baudelocque, Voigtel, Desormeaux, Velpeau, and Madame Boivin to the same
effect,  remarks, " Our own belief  is,  that uterine  hydatids do  not occur  except
after sexual intercourse, and as a consequence of impregnation.   We never  met or
heard of a case in which their presence was not  accompanied or preceded  by the
usual symptoms of pregnancy ; and in every instance under our immediate obser-
vation, the women supposed themselves with child;  and when the contents of the
uterus were expelled, there was found either a blighted  fetus, or some other part of
the ovum."  To the argument  from analogy, and  which may be  seen above in the
observations of Dr. Blundell, he replies, that the  hydatids in the respective cases
greatly differ; and above all, that they are always formed in connexion with serous
membranes, which  do not exist in the uterus until the ovum is deposited there,
whose membranes are essentially serous.
  At a later period however, than any of the above writers, Dr. F. H. Ramsbotham
has published the following remarks. "It is the opinion of Madame Boivin, and some
able physiologists, that these bodies  cannot be  formed independently of  pregnancy,
while others, with  Percy, hold  a different doctrine.  I am myself inclined to  the be-
lief, that they  may be formed in the virgin uterus, and  think the  membranous sub-
stance secreted in  one variety  of dysmenorrhoea, very likely to lay the foundation of
the disease.   This fact, indeed, seems proved by cases lately reported in the Glasgow
Medical Journal, by Dr. Andrew.   Two out of four instances of uterine hydatids,
which he  there records, happened in the persons  of young unmarried girls, of re-
spectable character, aged sixteen and seventeen, and  in one, there was present a per-
fect hymen."  Lectures, London Med. Gazette, vol. 16,  p. 613.
  In the first  number of Cruveilhier's Pathological  Anatomy, are two plates illus-
trative of this disease, which strikingly elucidate its nature.   The female had hoemor- 
216
PREGNANCY.
entertained by some writers, that they are occasionally an origi-
nal production of the uterus.   It is not necessary to proceed to a
minute description  of them; but we may observe, that  usually
these watery vesicles hang together in  clusters, occupy a consi-
derable space, and  produce a corresponding distention.   Their
early symptoms are those of pregnancy.*   The uterus enlarges
—the  breasts  swell—milk is occasionally  formed—sometimes
there is an alternate discharge of serous fluid  and blood from the
vagina.   Dr. C. M. Clarke  considers the occasional and sudden
discharge of an almost colourless and inodorous watery fluid as
a diagnostic symptom, while Madame Boivin relies much on the
want of the  signs of a fluid  in the uterus, or  of a solid body float-
ing in a fluid, when the patient  is examined by the touch.  At the
accustomed time no motion is  felt.   There is no certain time for
their discharge.   Sometimes, however,  they do  not come away,
until some period after real pregnancy would have been  accom-
plished.   Their expulsion  is attended with pain, often of the se-
verest kind, and  generally with hEemorrhage.-)-   An instructive
case is related by Dr. Eights, where the  female conceived  her-
self pregnant, but felt no motion, and at  the  end of eight months,
was seized with  pain, and  occasional watery discharges.  This
continued some time, and then ceased.  A month after,  she  was
attacked with labour pains, and  discharged about a gallon of hy-
datids.  On the third day after this, there was a copious secretion
of milk.J  Mauriceau also  states  the case  of the wife of Presi-

rhagic discharges, with pain, at the fourth month, which continued at irregular in-
tervals  until the  seventh, when the placenta, transformed partly into  a mass of
hydatids, was discharged with severe pain.  A foetus of the size of the fifth or sixth
week, was found by cutting into the chorion.
  * Clarke, part  2, p. 118.  Edinburgh  Medical and Surgical Journal, vol. 34, p.
482.  Davis's Obstetric Medicine, p. 677.  This author is also very decided in his
opinion. " They  are  generally the accompaniments, as also probably the  results, of
blighted and other diseased forms of eventually unproductive  gestations; or if we
admit the fact of their being ever produced independently of any connexion with a
contemporaneous gestation, the author feels disposed to the opinion that they must
be the results of conceptions of antecedent dates."
  t  Mr. Watson (Philosophical Transactions, vol. 41, p. 711,) relates a case of this
description, in a female forty-eight years old.  There was no enlargement of the
abdomen or of ihc breasts; and she attributed  her symptoms to a cessation of the
menses.  The hydatids were united, like a cluster of grapes, to a spongy substance.
  t  American Med. and Philosophical Register, vol. 4, p. 519.  Dr.  Davis's (Ob-
stetric Medicine, p. 679,) reference  to this case is incorrect.
  For additional instances, see Dr. William Moore,  in  New York Medical and Phy-
sical Journal, vol. 1, p. 151.—Dr. James Clarke, in Edinburgh Med. and Surg. Jour-
nal, vol. 5, p. 257;  Ibid. vol. 29, p. 217.  (A case from Rust's Magazine.)—Mr. Wild-
smith, in Lancet, N. S. vol. 4, p. 739.—Mr. Cusack,  in Dublin Hospital Reports, vol.
5.—Madame Boivin's Essay.  A case by Mr. Watson of Warwick.  The female 
PREGNANCY.
217
dent de  Nemours, who was considered pregnant  a whole year,

and at last was relieved by a copious watery discharge.*

   5. It is proper to mention  that  membranes are  sometimes  ex-

pelled in dysmenorrhoea, which have given rise to a suspicion of

pregnancy and early abortion.  This is accompanied  by severe

pain, a red  discharge, and  the  substance thrown off  somewhat

resembles the decidua.   But the  history of the case will enable

us  readily  to  decide.  All the appearances of  pregnancy  are

wanting—the  discharge  recurs at  every  menstrual  period—the

membrane is slight in its texture, wants the  vascularity of the

true decidua, and  never  contains any of the  transparent mem-

branes of the ovum.   Many unmarried  females are periodically

subject  to this severe disease.f

   6.  A collection of  air in the womb has sometimes led to mis-

takes as to  the presence of pregnancy.   This has been variously

styled physometra,  tympanites, and  emphysema  of the  womb.   In

 1798, a female in the Royal Infirmary at Edinburgh stated that

 she was in labour.  According  to custom, a house pupil was sent

 to attend her,  which  he did very  faithfully for two days and two

 was 22 years old, and had been  married nearly ten months.  She had no suspicion
 of being  pregnant, and  the marks present were at least equivocal. There was no
 membranous bag investing the hydatids, and  the haemorrhage succeeding was very
 slight.  Milk was secreted on the second day, and the lochia were present.  Trans.
 Provincial Med. and Surg. Assoc, vol. 2, p. 349.   A case with all  the usual symp
 toms of pregnancy, by  Dr. Hooker of New Haven.  Boston Med. and  Surg. Jour-
 nal, vol. 16, p. 91.
   Several instances are also related in Dr. Rutter's valuable essay on the case of
 Miss Burns, which I shall notice hereafter.
   When  the question relative to the origin of moles and hydatids shall be settled,
 we shall  be better enabled to answer the question lately put in the Boston Medical
 and Surgical Journal, vol. 8, p. 71, 124,  Whether hemorrhage from the unimpregnat-
 ed uterus ever occurs ? That it is rare, is, I believe, not doubted.  I observe that
 Dr. Ashwell at a meeting of the Guy's Hospital Physical Society, Nov. 4, 1837, re-
 ferred to some instances in which haemorrhage from the unimpregnated uterus had
 occurred, associated with tumours (in that organ,) of varying degrees of induration
 and malignity. London Med. Gazette, vol. 21, 268.
   The first discharge of blood in several  cases, collected by Madame  Boivin is as
 follows:
          2 at 45 days,                       1 at  6 months,
          1 at 2 months,                     1 at  7 months,
          4 at 3 months,                     1 at  8 months,
          2 at 4 months,                     1 at 11  months,
           1 at 5 months,                     1 at 14 months.
 The length of time in the  last of these cases should be remembered, as it may occur
 in a widowed female, and unjustly impugn her chastity.
   * Fodere, vol. 1, p. 473.  This author suggests, that if water be  contained in the
 uterus, by raising it on the point of the finger, a fluctuation more or less distinct
 will be perceived.
   t Cyclopedia Pract. Med. vol.  3, p. 488.   Dr. Denman in Medical Facts and Ob-
 servations, vol. 1, p. 108.  He observes that he has "the most undoubted proofs, that
 it may be formed without connubial communications."
    /OL. I.                         19 
218
PREGNANCY.
nights.  At the end of that period, he sent for Dr. Hamilton, the
professor of  midwifery, who  examined  her, and much to the
mortification  of both the student and the woman, declared that
she  must  become  pregnant, before  she  could  be  delivered.
She was labouring under this disease.
  Ah interesting case is related by Dr. Ray, of Eastport, Maine.
It made its  first appearance during a second pregnancy seventeen
years ago,  and from that time to this, the patient has never been
free from it—whether  impregnated or not.   In the latter state,
however, no inconvenience is experienced—in the former, there
is always  severe  pain.  Sometimes, but  not always, the air is
discharged with a crepitus—and as  often as twice  or  thrice a
week.   This, however, varies,  and she has never observed it to
accumulate, so as to produce any perceptible enlargement of the
abdomen.   The most intense pain occurs after quickening.*
  Cases of pretended pregnancy have occasionally excited con-
siderable attention,  from  peculiar circumstances attendant  on
them.   Of  this nature was the instance of Bianca Capello, the mis-
tress of the Prince of Tuscany, who, in order to gratify  his wish
of having an heir, feigned herself pregnant, and at the expected
period, introduced  the child of  another  as her  own.  And  in
more  modern times  Joanna Southcott, at  the age of sixty-five,
declared herself pregnant, and was believed by her followers  in
England—nay more, she even  found  medical men wrho attested
to it, although she stated at the same  time  that she was a virgin.
Her death, however, occurred  previous to the expected delivery,
and on dissection, no traces of pregnancy could be discovered.!

  * Boston Med. Magazine, vol. 1, p. 233 ; See  on this disease, Burns, p. 82, Den-
man, p. 148; Gooch, Diseases of Women, p. 242; a case by Mr. Wray, in Lancet,
vol. 12, p. 396;  Medico-Chir.  Review, vol. 19, p. 512; two cases from  an Italian
Journal.  One of these imitated pregnancy, in some respects ; but at the sixth month
it dissipated.—Ibid, vol. 22, p. 418,  Review of Madame Boivin; Lee, in Cyclopedia
Pract. Med. vol.  4, p. 383.
  There are  some diseases to which the uterus is liable, that may occasionally be
mistaken for pregnancy.  Of these, Dr. C. M. Clarke mentions the fleshy tubercle.
All, however,  are slow in their progress, soon become painful, and are generally un-
accompanied with affections of the stomach and breasts.  They arrive at their height
long after pregnancy should have been completed.  The very fact of enlargement
continuing more than five months, is, according to Gooch, a strong argument against
its presence.
  Let us also not forget, that some morbid conditions of the uterus, are compatible
with pregnancy.  Thus carcinoma, particularly of the cervix uteri, and even in the
ulcerative stage, has occurred to Drs. Clarke, Kennedy, and others; and so also cau-
liflower excrescence of the uterus.  Kennedy, p. 144.
  t Edinburgh Review, No. 48, Art. 11.  In the stormy period that preceded the 
PREGNANCY.
219
   The laws for the punishment of concealed pregnancy will be
 introduced with most propriety in the chapter on infanticide.
   To prevent  repetition, I shall  also  delay the consideration of
 the appearances found on dissection, until I come to consider the
 subject of delivery.

                      III.  Of Superfoetation.
   By superfcetation  is understood the conception  of a second
 embryo, during  the  gestation of the first, or that a woman, who
 has advanced to any period of one pregnancy,  is capable of con-
 ceiving another child.
   This doctrine was very current among the  ancient physicians,*
 and still has adherents, although  the majority of the medical pro-
 fession at  the present day are  sceptics with respect  to it.   Its
 bearing in legal medicine, is  on the  question of legitimacy, as
 I shall hereafter show.
   It will conduce to a better understanding of  the subject, if  the
 cases which  are  deemed instances  of  superfcetation, be  first
 stated; and afterwards the  objections to them, and  the mode
 in which  the opponents  of  this  doctrine  explain their pecu-
 liarities.
   1.  The  following  is taken  from  the  Consilia of  Zacchias.
 J. N. Sobrejus lost his life in a  quarrel, leaving  his wife pregnant.
 Eight months after his death, she was delivered of a deformed
 child, which died in  the birth.   Her  abdomen remained  large,
 and it was suspected  that a second  infant was contained  in it,
 but all efforts to procure its delivery proved fruitless.   One month
 and  a day thereafter, the  widow was again taken in labour, and
 brought forth  a perfect living  child.   The  relations of the hus-
 band contested its legitimacy, on the ground  that it was the fruit
 of a superfcetation, and Zacchias was  consulted on the subject.
 He agreed that the two infants could not  have been the product
 of one conception, since the interval  between their birth was so
 great; but advanced it as his opinion, that the first was the pro-

abdication of James II., it seems to have  been a favourite opinion among the  pro-
 testants, that the pretender (as he is now styled in history)  was a supposititious child.
 The proof in  favour of this may be found in Burnet's History of his own Times,
 London, 1758, vol. 1, p. 473-524.   And  the whole testimony in favour and against
 the opinion, is collected in Howell's State Trials, vol. 12, p. 123.
  * So common was the belief in it, that Brassavolus observes that he has seen su-
perfcetation epidemic ! 1 
220
PREGNANCY.
duct of a superfcetation, and conceived a month after the  other.

This he strengthened by the fact, that the husband died suddenly,

while  in  a state of perfect health.   His  opinion  preserved the

character of the mother, and also  gave her those legal rights  to

which  her situation entitled her.*

   Dr.  Denman, in his work on Midwifery, quotes a letter ad-

dressed to the lady of Sir Walter Farquahar, by the patient her-

self, which  contains a case belonging  to  the  subject  before us.

The female went to the ninth month of pregnancy;  but between

the  fifth  and  sixth, she met with a great fright, which  affected

her severely, and diminished her size.   On the 11th  of February,

she was delivered of a healthy  child, but continued  in pain; and

it was  not until the  morning of the 25th, that  she was relieved.

" On that day, there was born the head and parts  of a child that

had just the appearance of a miscarriage of four months."f

   Additional references will be found below.  It is  necessary  to

add in this place, that the blighted ovum, is sometimes retained for

a  length of time.  This  should be  not forgotten in  medico-legal

cases, else it may  by possibility happen that an unjust suspicion

will fall on the  innocent.   Thus, in a case  that occurred to Dr.

Montgomery, an ovum at two  months (as was  evident  from its

size)  was not expelled  until three  months  thereafter, and in one

  * Zacchias Consilia, No. 66. Fodere observes, that he is assured that a female in
Turin, in 1797, was successively delivered of three children, at an interval of fifteen
days between each. (Fodere, 1, p. 484.)
  t Cases resembling the above, are mentioned in most works on midwifery, and in
many of the periodical  journals.  I will refer to some that I have noted.
  Philosophical Transactions, vol. CO, p. 453.  (Case by Mr. Warner.) Medico-Chi-
rurgical Transactions, vol. 9, p. 194. Case by  Mr. Chapman, where  a blighted foetus
and placenta were expelled at seven months, and a living child remained to the full
period of utero gestation.  Eclectic Repertory, vol. 9, p. 531.  Dr. Mease on cases
of blighted fcetus.  London Medical and Physical Journal, vol. 22, p. 47, and vol.
24, p. 232. In one of these, (case by Mr. Farrell,) a healthy child was first expelled,
and in about four hours afterwards, a dead foetus of the size of a five months' con-
ception.   In the other (case by Mr. Rolfe,) the dead fetus, apparently of six months,
was first delivered, and  the full grown child shortly after.  Three cases are  respect-
ively related by Messrs. Newnham, Hayes and Powell, in the Transactions of the
associated apothecaries of England and Wales.  Each of these had separate pla-
centas ;  one of the blighted ova wa3 putrid and the other  not.   (New England
Journal, vol. 13, p. 241.)  Case  by Baron Percy, in London  Med. Repository, vol.
20, p. 110. Case by F. W. Norton, in  New York Medical  Repository, vol. 23, p.
110.  Case from Dr. John Clarke, in London Medical and Physical Journal, vol.  16,
p. 219.  Case by Dr. Fithian, in Chapman's Journal, N. S. vol. 2. p. 367. Case  by
Dr. O. H. Taylor, in North American Med. and  Surg. Journal,  vol. 4, p. 81.  Case
by Dr. Fahrenhorst of Lithuania.  (New York Medical and  Physical Journal, vol.
8, p. 393.)  Case by Dr. Colombe.   (American Journal of Medical Sciences, vol. 5,
p. 483.)  Cases by Mr. Leeson and Mr. Hunter.  (Lancet, N. S. vol. 19, p. 133-256.)
In neither of these was the shrivelled fetus  in any way putrefied,  By Dr, Mont-
gomery, Signs of Pregnancy, p. 205. 
PREGNANCY.
221
 cited by him from Dr. Ingleby, one of three months, was not ex-

 pelled until the ninth month.

   2. A case mentioned by Buffon, has been often quoted by the

 enemies and advocates of superfcetation.   " A female at Charles-

 ton in South Carolina, was delivered, in 1714, of twins, within a

 very short time of each other.   One was found to be black, and

 the other white.  This variety of colour led to an investigation ;

 and the  female confessed, that on  a particular day, immediately

 after her husband had left his bed, a negro entered her room, and

 by threatening to murder her if she  did not  consent, had con-

 nexion with her."*

   It has been insinuated  against the credibility of this case, that

 one of the offspring was white.   Instances  can, however, be ad-

 duced, where this objection does not apply.   Dr. Moseley men-

 tions the  following as occurring within  his time  at Shortwood

 estate, in the  Island of Jamaica.   " A negro  woman  brought

 forth two children at a birth, both of a  size; one of which was a

 negro, and the other a mulatto.   On being  interrogated upon the

 occasion of their dissimilitude,  she said  she perfectly well knew

 the  cause of it, which  was, that a white man  belonging to  the

 estate came to her hut one morning before she was up, and she suf-

 fered his  embraces almost instantly after her black  husband had
 quitted her."f


   * Fodere, vol. 1, p. 482.
   t Moseley on Tropical  Diseases, &c. p. 11L   For additional cases, see Quarterly
 Journal of Foreign Medicine and Surgery, vol. 3, p. 350.  Case by M. De Bouillon,
 from the Bulletin de la Faculte et de la Societe  de Medecine, 1821. A negress de-
 livered of twins, as in Dr. Moseley's case, and who made a similar confession.
   Case by Dr. Dewees—A white woman near Philadelphia; twins; one white, and
 one  black.  (Coxe's Medical Museum, vol. 1, p. 174.)   Case by Dr. Trotti—A ne-
 gress in South Carolina,  in 1815; three children; two  white, and one black.   (N.
 Amer. Med. and Surg. Jour. vol. 1, p. 466.)  Case by Dr. Guerarde—A negress in
 South Carolina; twins ; a  black and a mulatto.  (Chapman's Journal, N. S. vol. 5, p.
 412.) Case by Dr. Delmas of Rouen—A woman in a public hospital of that city ;
 twins; one white, and the other tawny.   (Dictionnaire des Sciences Medicales, vol.
 4, p. 181.  Cas  rares.)  Dr. Blundell, in his Lectures, refers to a case of this  de-
 scription, by Mr. Blackaller  of Weybridge.  (Lancet, N. S. vol. 3, p. 262.)  A case
 at the Lying-in-Hospital, Berlin, (January 25, 1832,) of twins; one white, and  the
 other half caste.  Connexion with a negro was  proved.  From  Hecker's Annals.
 (American Journal of Medical  Sciences, vol. 14, p. 220.) A case in New England,
of twins; one black, and  the  other mulatto.  The mother, (black) confessed coha-
 bitation with a white man.  (Related by Dr. Holcombe, of Massachusetts.)  Boston
 Med. and Surg. Journal, vol. 13, p. 64.
  The following is, I believe, the most remarkable case yet recorded : " It was com-
 municated to me  by  the  Sargente Mor of the St. Jose gold  district, (Brazil.)  A
 Creole woman with whom he was acquainted in the neighbourhood, had three children
 at a birth, of three different colours, white, brown and black, with all the features of
the respective classes."  (Rev. Dr. Walsh's Notices of Brazil, vol. 2, p. 90.)
                                19* 
222
PREGNANCY.
   " One of the author's pupils, (says Prof. Dunglison,) Mr. N. J.
Huston of  Virginia,  has communicated the particulars of the
case of a female, who was delivered, in March, 1827, of a negro
child and a  mulatto on the same night.   Where  negro slavery
exists, such cases are sufficiently numerous."*
   3. Dr. Maton of London published the  following as a case of
superfcetation: Mrs. T----, an  Italian lady, but married to an
Englishman who was attached to the commissariat of the British
army in Sicily, was delivered, on the twelfth of November, 1807,
of a male child, which had every appearance of health.   It was
brought forth under circumstances very distressing to the parents,
being dropped in a bundle of straw at midnight in an uninhabited
room ;  and it survived nine days only.   On the second of Feb-
ruary, 1808, (not quite three calendar months from the preceding
accouchement,) Mrs. T. was delivered of  another male infant,
completely formed, and apparently in good health.   He was sent
away to be nursed ; but  the nurse's milk being deficient, he was
removed soon after to another foster mother.  When about three
months old, however, he fell a victim to  the measles, and died.
From  November,  1807, to February, 1808, Mrs. T. had not left
Palermo, except on short  excursions in her  own  carriage ; and
her husband had  been constantly with  her  since the  year 1805.
He communicated this narrative to Dr. Maton, with a certificate
pledging himself to its truth.f
   The  last instance I shall mention in detail, is  one commuhi-
cated to Fodere by Dr. Desgranges of Lyons, and it is certainly
a very extraordinary one.
   The wife of Raymond Villard of Lyons, married at the  age
of twenty-two, and became pregnant five  years thereafter, but
had an abortion at the seventh month, on the twentieth of May,
1779.   She conceived again within a month ; and  on the twen-
tieth of January,  1780, eight months after her  delivery,  and

  * Dunglison's Physiology, vol. 2, p. 324.
  t Transactions of the London College of Physicians, vol. 4, p. 161.  Dr. Granville,
in a criticism on this case in the Philosophical Transactions for 1818, supposed that
they were twins, whose ova were distinct and separate; and that one was born at
the sixth, and the other at the ninth month of pregnancy.  Dr. Paris was in conse-
quence led to make further inquiries of Dr. Maton, and he found that both, children
were born perfect.  The labour, though quick, was not sudden ; since the accoucheur
was present. All the distressing circumstances noticed, and on which Dr. Gran-
ville appears to rely, referred merely to the inability of obtaining proper accommo-
dations. (Paris's Medical Jurisprudence, vol. 1, p. 264.) 
PREGNANCY.
223
seven months from her second  conception, she brought forth a

living child.  This delivery was not, however, accompanied with

the usual symptoms—no  milk appeared—the  lochia were  want-

ing, and  the abdomen did  not diminish in size.   It was  accord-

ingly found necessary to procure a nurse  for the child.

   Two  surgeons visited  the  female, and  were at  a loss with re-

spect to her situation.  They called Dr. Desgranges in consulta-

tion, who declared that she had a second child in the womb.   Al-

though  this  was strongly  doubted, yet  three weeks after  her

delivery, she felt the motion of the fcetus;  and  on the 6th of July,

1780, (five months and sixteen days after the first birth,) she was

again delivered of another living daughter.   The milk now ap-

peared, and she was enabled to nurse her offspring.

   It is not possible, adds Dr. Desgranges, that this  second child

could have been conceived after the delivery of the  first.  " Car

le mari ne lui avait renouvele ses caresses que vingt jours apres,

ce qui n'aurait donne au second enfant que quatre  mois vingt-sept

jours."

   The narrative of  this case was accompanied with a legal attes-

tation of it under the oath of the mother;  and on the nineteenth of

January, 1782, both children were still living.*

   These instances will give  a  full  idea of what is understood

by superfcetation in the  human  species.   The advocates for this


   *  Fodere, vol. 1, p. 484-5-6.  Cases resembling these, but not so  remarkable, are
related by Dr. Farquhar—this occurred  in the Island of Jamaica, in 1805, interval
four weeks.  (Coxe's Medical Museum, vol. 2. p. 316.)
By Dr. Levrat—reported to the Medical  Society of Lyons in 1827; interval of four
   months. Annales de la Medecine Physiol. April, 1827.  (American  Journal  of
   Medical Sciences, vol. 1, p. 193.)
Three cases in the Dictionnaire des Sciences Medicales, Art. Superfcitation.
One by Madame Boivin—an interval of two months.  The first was born March 15,
   1810, and weighed four pounds;  the second on the twelfth of May—weighed three
   pounds—weak, and breathing with difficulty.   The female confessed that she had
   not lived with her husband for a long time; and that the two children were the
   result of only three connexions with another  man, on the fifteenth and twentieth
   of July, and the sixteenth of September.  (See Pendleton on Superfcetation and
   Bipartite Uteri, in American Journal of Medical Sciences, vol. 1, p. 307.)
A case of several successive deliveries at various periods, at intervals of two months,
   and another of one month, by Prof. Wendt of Breslau.  This is,*-however, a very
   doubtful case.  (From Journal des Progres, in Monthly Journal of Foreign Medi-
   cine, vol. 3, p. 90.)
A case by Dr. Moebus  of Dieburg.  A female, the mother of four children gave
   birth to a child of full size, on the sixteenth October, 1833; and on the 18th of No-
   vember to another equally of full size.  American Journal Med. Sciences, vol. 20, p.
   481, from a German Journal.
!  may add to these, a case of twins, quoted  from Wildberg's  Jahrbuch, in  which
   the second  child was born four days after the first.  Both the man and the woman
   asserted that they had cohabited but once.  Medico-Chirurg. Review, vol.29, p. 495. 
224
PREGNANCY.
doctrine consider them as conclusive testimony, while the oppo-

nents explain their peculiarities in various ways, and also endea-

vour to prove, that this kind of conception is impossible.

   In the first place, it is urged that shortly after conception, the

os tincae, as well  as the internal  apertures of the fallopian tubes,

are  closed by  the deposition of a  thick  tenacious  mucus.   The

membrana decidua is also formed early, and lines the uterus, and

thus co-operates with the mucus, in obliterating the openings into

its cavity.*
   When the gravid uterus enlarges, the fallopian tubes lie parellel

to its  sides, instead of  running  in a transverse direction  to  the

ovaria, as in  the  unimpregnated state.   If then an embryo be

generated, the tubes could not embrace the  ovum, and  it would

remain in the ovarium, or fall into the abdomen, and thus consti-

tute an extra uterine conception.

   But again it is  said, that even if we allow the practicability of

the  new embryo reaching the uterus, its  arrival would be destruc-

tive to the fcetus  already present.  The functions which  have al-

ready been performed  for the first  conception, have now to be

repeated,  and an  additional  decidua and  placenta are  to be

formed.

   These are, briefly,  the arguments urged against the possibility

of superfcetation.    An appeal, however, is made to cases, where,

as we have already stated, two or more children of different sizes,

and apparently of different  ages, are born nearly  at the same

time, or at a longer interval-!

  * The advocates of superfcetation deny,  that this mucus closes the os tincaB
completely; and they conceive that the absorption of new fecundating matter through
it, is possible.  Capuron, p. 110.  Fodere, vol. I, p. 483.
  Dr. Cummin denies that  the uterus is immediately closed, and adduces in favour
ofi this the fact, that some  menstruate during the first month—nor does he believe
that the decidua, always closes the cervix uteri, as in Dr. Lee's case.  At all events,
in that, the fallopian tube was open—the decidua did not close its orifice.  London
Med. Gazette, vol. 19,  p. 597.
  t An engraving illustrative of this occurrence, is  given in Cruveilhier's Patholo-
gical Anatomy, No. 6. One fetus is about six months advanced—the term indeed of
the pregnancy—while the other has about the size of one of three months.  A large
portion  of the placenta was diseased, and to this the chord of the smaller is attached,
while that of the other proceeds from the healthy portion.
  Mr. Ingleby mentions cases precisely of the description suggested in the text. "A
few weeks ago (says he,) on examining a mature placenta, the expulsion of which
was attended with severe hemorrhage, a  foetus of four or five months, flattened, but
not putrid, was found within the membranes, closely adherent to the uterine surface
of.the mass, and yet a full sized  living child, in connexion with this placenta, had
just  been expelled."  He has also seen a large mole or a  diseased ovum expelled,
while a fetus enclosed in its proper membranes was still retained and not expelled
until weeks after. 
PREGNANCY.
225
    It will be observed, that in one class of instances, the lesser
 child is represented as dead and decayed, and its size is much
 smaller than the accompanying birth.  Now in these, it is  sug-
 gested, that twins have been conceived, and that the embarrassed
 situation of one child in the  uterus may have prevented its deve-
 lopement, checked its nutrition, and thus caused its  death.   The
 other, on the contrary, lives and grows, presses on the dead one
 which becomes flattened, or wholly or  partly putrefied;  and in
 this condition, both may be expelled at the same time, or one may
 be detained for some time after the other.*
    It is evident that this explanation puts aside the idea of super-
 fcetation.!
    The second  class of cases, where a twin birth  of various co-
 lors takes place, is now universally  considered as  examples of
 contemporaneous conception.   This is  evidently shown  by the
 circumstances  attendant  on each.  Hence  they cannot  aid the
 doctrine of superfcetation.
    But if we thus explain  the  great mass of instances that were
 formerly referred to it, and grant, which indeed can hardly be
 denied,  that superfcetation is impossible in  a single impregnated
 uterus, there yet  remain some cases like  those of Drs.  Maton
 and Desgranges which require explanation.  It has been attempt-
 ed to do this,  by supposing that a  double  uterus was present.
 This  is  far from  being as rare as was at one time supposed.
 " The human uterus,"  says Dr William Hunter, " in the impreg-
 nated state, commonly has one triangular cavity.   In many in-
 stances, it  is found subdivided at its  upper part, into two  lateral
 cavities, so as to resemble the two horns of a uterus in a quad-
 ruped.  Several  specimens of such  uteri are preserved  in  my
 collection.";};  Not only has the uterus been found double, but oc-
 casionally the  vagina also.   In the Museum  at Heidelberg,  Dr.
 Tiedemann informs us,  is the uterus  of a female who died nine-
 teen days after delivery.  It is divided ;  the left is in the state to
 be  expected after  the removal of the fcetus, while the uterus on

  * In  noticing the objections to this doctrine, I have made a free use of Professor
Chapman's able Essay on it, in the Ecleqtic Repertory, vol. 1, p. 369.
  t G. St. Hilaire advanced the idea some years since, that in every case of acepha-
lous monsters,  there is a twin born perfect, and with a common placenta.  He  con-
siders the acephalous as the  imperfect  twin of another, whose developement has
been completed. Lancet, vol. 10, p. 748.
  X Hunter's Anatomy of the Human Gravid Uterus.  London, 1794, p, 6.  I am
indebted for this reference to my colleague, Professor Willoughby, 
226
PREGNANCY.
 the right  side is characterized by the absence of all appearances

 of impregnation.  Two vagina3  are also  present*   This female


   * Quarterly Journal  Foreign M. and  S., vol. 5, p. 438.  All the cases related by
 authors, of double uteri, have been collected by Dr. Cassan, in his "Recherches sur
 les cas d'uterus double et de superfcetation,"  1826.  He enumerates  no less than
 forty-one, among which are those of Haller, Purcell,  Canestrini, Eisenmann, Pole,
 Dupuytren, West, Ollivier,  and  one examined by  himself,  Dumeril  and Madame
 Boivin, in which both uterus and vagina were double.  See  also Martin, on a va-
 riety of the Human  Uterus (from the Revue  Medicale of 1826.) for a list of cases.
 Lancet, vol. 10, p. 780.
   The instances that have been recorded since the publication of Cassan, are one by
 Dr. Geiss of Traffurth, near Erfurt. The labour pains were confined to the right side.
 On that, the uterus was as high  as the thorax; on the left, it did not  extend above
 the navel and inclined forward and laterally.  The operation of turning was per-
 formed, and a healthy female infant born—the right side  subsided—the left conti-
 nued prominent  In one hour labour pains returned, when  Dr. G. found membranes
 protruding through an opening in the left side, which extended upwards into a cavi-
 ty.  A second child presented and was safely delivered by  turning.  The right pla-
 centa came  away first, and the right womb contracted,  then the left  placenta, but
 its womb contracted slowly, and she lost a good deal  of blood.  Dr. G. satisfied
 himself by examination, that this was a case  of double uterus.  Two years  after-
 wards, she was again delivered of a single child.  From Rust's Magazine.  (Edin.
 M. and S. J. vol. 29, p. 254.)
 Case by Dr. Duges.   From Journal des Progres, in American Journal  of Medical
   Sciences, vol. 4, p. 447.
 Case of double uterus and vagina at the Hotel Dieu in 1827.  The  uterus was un-
   impregnated.  The female died of haematemesis.   (New York Medical and Phy-
   sical Journal, vol. 9, p. 191.)
 A case from Meckel, quoted by  Carus, Gynaecology. (American Journal of Med.
   Sciences,  vol. 6, p. 432.)
   Dr. Moreau recently exhibited to the French Academy  of Medicine  (Jan. 15,
 1833) a bilobed uterus  divided into two equal  lateral halves, each provided with a
 tube and an ovary ; each separated from the other by a  double partition, and each
 having distinct necks and mouths into a single vagina.  The mother died after de-
 livery—the fetus was a male, and had been developed in the left cavity.  (Medico-
Chir. Review, vol. 23, p. 234.)
   Mr. Adams, a student in Guy's Hospital, relates a case of double uterus found in
 a body brought in for dissection.   The subject was unimpregnated.  The  superior
two-thirds of the uterus were divided by a septum  into two  equal parts, the neck
 was natural, with an opening  common to both canals.  Length of the  septum If
 inches—whole length of the uterus 3|.  (London  Med. Gazette, vol. 13, p. 898.)
 Le Roi's case, from the Journal des Connoissances Medicales, for Feb., 1835.   This
   female had menstruated  for two years, and while  the menses  were flowing she
   was seized with intense pain, and a tumour was discovered in the cavity of the pel-
   vis. She died shortly of peritonitis. On dissection, the uterus was found bilobed—
   the left lobe communicated with the vagina, and  the  right had no external com-
   munication.  In its cavity the  menstrual fluid had accumulated, and thus formed
   the tumour.  (American Journal of Med. Sciences, vol. 17, p. 525.)
 Case  by Dr. Albers, of  Bonn.  The bilobed  uterus in this case  was extremely
   small, and hardly connected with the vagina.   (British &  Foreign  Medical Re-
   view, vol. 3, p. 221.
Cases from a Memoir of Mr. Louis, read before the Royal  Academy of Surgery, in
   1790.  This memoir, it is  stated, has never been published.  (Medico-Chirurgical
   Review, vol. 30, p. 223.
Case by Scheider, of a woman, who,  six weeks after marriage bore a  four months'
   child, and forty weeks after marriage, mature twins.  On examination, the uterus
   and vagina were both found double, and each vagina had a separate orifice.  (Lon-
   don Medical Gazette, vol. 20, p. 408.)  From Mailer's Archives, for 1836.
   Davis' Obstetric Medicine, p. 514, &c, contains an account of the cases collected
 by Voigtel.
  Cases are also figured by Cruveilhier in his Pathological Anatomy, Nos. 4 and 13. 
                          PREGNANCY.                       227

was seen by two physicians during  her labour.  One  declared
that the  neck  wras  in a natural  state—while the  other  found
it dilated, and  said that  the  head of the child was  engaged—a
second examination  convinced  both that the neck was double,
and the investigation after death verified it.*
  But although this variety in the organization of the uterus may
explain several of these cases, and in particular that of Desgran-
ges, as is done by Velpeau  and Cassan, yet there are intrinsic
difficulties attending the  solution.  It has been inquired whether
menstruation goes on in  the unimpregnated half? If it does, it
will account, as is supposed, for the occasional presence of that
discharge,  or  something much  resembling it, during  pregnancy.
In  Canestrini's case, however,  it is  distinctly  stated  that  it had
not taken place during that process-!   The others give us no in-
formation on the subject.
   A more formidable  objection, founded on anatomical observa-
tion, has been recently presented by Dr.  Robert  Lee.   He  ex-
amined, in 1831, a female who died eight  days after parturition.
She had had several children.   The uterus was double from  the
fundus to  the  cervix, and thus divided into  lateral halves.  The
fcetus had been in the right half, which  had one ovarium and one
fallopian tube  connected with  it.  The left was furnished with
similar appendages.  Both  ovaria were enlarged, but  the right
most  so,  and  it contained  a corpus  luteum; the left had none.
The internal surface of the left was coated every where with a  de-
ciduous membrane ;  and  at  its opening into the cervix, it formed
a shut sac.  Now such  a disposition, remarks Dr. Lee, if it al-
ways exists, which  he deems probable, must render superfceta-
tion impossible-!
   We must also recollect, that in the remarkable cases of chil-
dren born  several  months  from  each  other, no examination  has

In one instance, communicated by M.  Berard, the uterus and vagina were each
double.  This female had been thrice married, but had only one child, which arriv-
ed to the full time and died during delivery.  The labour was extremely difficult.   In
another, the uterus alone was bifid.  The female had been delivered about six weeks
previous of a living child, and the  lobe in which  it had been contained bore all of
the marks of this, while the other had not the slightest indications of developement.
Where the uterus is merely divided into two chambers (cloisonne") and not bilobed,
the empty portion appears to sympathize in the progress of pregnancy.  (See Plate
5 of No. 13.)
  * Velpeau's Midwifery, p. 79; Cassan, p. 28.
  t Cassan, p. 39.  This case is related in detail  in Med. Facts and Observations,
vol. 3, p. 171.
  X London Med. Gazette, vol. 11, p. 176, from Med. Chirurg. Transactions, vol. 17,
p. 473. 
228
PREGNANCY.
yet been made to prove that there double uteri existed.  " They
are ascribed (says Richerand) to septa dividing the uterus into
two cavities, merely because such an arrangement would explain
to a certain degree  how  two  conceptions  might take place at
some interval from each other; for it has never been ascertained
by actual dissection, that any woman in whom such superfceta-
tion took place, had a double uterus."*
  Should the doctrine of superfcetation ever be pleaded in medi-
co-legal cases, we must be guided  by the laws of legitimacy,
both as to premature and to protracted births.  The latest born
should fall within the legal term, or be excluded from the privi-
leges attendant  on it;  and this is more particularly necessary,
from the obscurity that invests the subject.

  IV.   Of some medico-legal questions connected with this subject.

   Two  questions relating  to pregnancy,  have been suggested,
which deserve some  notice.
   1.   Can  a woman  become pregnant,  and be ignorant of it until
the time of labour ?  I  cannot better  preface an examination of
this, than by observing, that with women, certain appearances
are often referred to the cause from which they wish them to
originate.  Thus, married females attribute their indisposition and
ailments to the  presence of pregnancy; while those who, from
being  unmarried, and  enjoying guilty pleasure, dislike that idea,
charge  any alteration  that may occur,  to  disease.   Of this na-
ture is the  case related by Mauriceau, where a female, who had
been secretly married,  took  every precaution to avoid pregnan-
cy, and not only deceived herself, but  also an old physician, who
prescribed  for  her,  as  having a schirrous womb, until the night
before her  delivery.   In another instance, a  female, aged thirty-
 five, who  had made the most solemn  vows of chastity, deceived
 many physicians, who treated her for  dropsy of the womb-!  Fo-

   * Richerand's Physiology, p. 357. The only cases in which Cassan considers su-
 perfcetation possible, are, 1.  Where there is a  perfect double uterus; 2.  Where
 there is a pre-existing extra-uterine pregnancy; and 3. When there is a new concep-
 tion before the fecundating germ has occupied the cavity of the uterus. The experi-
 ments of Haller, Hunter and Haighton, and more recently of Home, John Burns, and
 Magendie, prove that the ovum  sometimes does not descend into the womb until
 eight, fifteen or even twenty days after fecundation.
   t Mauriceau, vol. 2, p. Ill, 205. 
PREGNANCY.
229
dere himself relates an instance which happened to an acquaint-
ance, who was sent for to a nun labouring under a violent colic,
and who continued to deny her being with child, until the cries of
the infant silenced her.*
  We may smile at these narratives; but the subject assumes
a grave importance, when the question is asked judicially.  A
case in which it was made the matter  of  investigation,  is  re-
lated  in the Causes CelZbres, and  an abstract of it may  prove
useful.
  In 1770,  a  female aged twenty-five, and named Louisa Bunel,
residing in  the bishopric of Avranches in France, was seduced,
and became  pregnant.  It was in the month of August, when
field labour is the most severe, that she  experienced a cessation
of the menses.  She attributed  this to the fatigue she had under-
gone ;  and  feigning ignorance  of her situation, declared herself
dropsical.  She applied to several monks for medical aid,  and
took diuretics, but  without effect.  Finally, at the sixth month
she married, but not to her seducer; and after that, repeatedly
took an infusion of savin in wine.  At  the end of three months,
being alone, she was delivered  of a child, which she afterwards
declared was born dead, and which she  covered with linen, car-
ried to a neighbouring field, and put under some leaves.   Eight
days after,  a  dog  discovered the body,  and brought some rags
from it to the house  of a neighbour.  Judicial  search was now
made.   Louisa was discovered  to  be the mother,  and was con-
demned to  death for  committing infanticide.  Her plea was, 1.
That she was perfectly ignorant of her pregnancy;  and that the
remedies she  had taken, were solely with a view to remove her
supposed dropsy.  2. That the child was born dead; and 3. That
at the time of delivery,  she was so extremely weak for four
hours,  that she could not call  for assistance; and  on reviving,
preferred burying her shame, since it was useless to expose her-
self by showing a dead child.  An appeal was made to the supe-
rior court at  Bayeux, who, after  taking  the opinions of sixteen
physicians at Paris, on the case, reversed the sentence on the 11th
of November,  1772, and discharged the prisoner.!
  The case, in the opinion of these physicians, turned on the fol-
lowing points:—1. Could the accused be ignorant of her preg-

  * Fodere, vol. 1, p. 421.  t Fodere, 1, p. 491, quoted from the Causes Celebres.
   vol. i.                     20 
230
PREGNANCY.
nancy, and confound it with another  complaint ?  2. Could  she

innocently make  use  of the remedies that she confessed she had

taken ? and 3. Is it certain that the child was born dead; and if

so, what occasioned its- death ?   The two first only relate to  our

subject, as the third belongs to infanticide.  Our medical judges

answered both in the affirmative, on the ground of the uncertain-

ty of the  signs of  pregnancy, and the ease with which it might

be confounded with other diseases.  They adduced in  favour of

this,  the authority  of Astruc, Zacchias, Senac,  and Hebenstreit.

This last observes,  that a female might be impregnated when in-

toxicated,  and might go to  the full time without knowing it; and

on being seized with pain, might mistake it for  colic or painful

menstruation.*

   Fodere, in remarking on this  case, very justly observes, that

although  instances  have occasionally occurred where married

women have mistaken their situation,  yet the sex generally ridi-

cule the  idea of  this pretended ignorance.   And in those which

usually will come  before a court of justice, the reply  to such a

plea should be—Have you not exposed yourself to become pregnant;

and on what account, then, were you so confident of the usual con-

sequences not following it ?!


  * Hebenstreit, p. 386.  There appears to mc to be an intentional misrepresentation
of our author in this instance.   He evidently only refers to an extreme case. On the
main question he observes, " His tamen non obstantibus, et quamvis vera, nee ex cata-
meniorum defectu, nee ex tumore abdominis, aut lactis in mammis presentia, de
graviditate convictio nasci possit; impossibile tamen est, gravidam, quae vegetum,
fortemve embryoncm, et talem qui ad usque partus legitimum terminum sine morbo
pervenit, matrice tulit, motus istos magnos, qui prope finem sanae et commodse gra-
viditatis sunt, non percepisse." (Page 385.)
  t A reviewer in the Edinburgh Medical and Surgical  Journal, who I presume is
Dr. Christison, speaks thus on this point; " Can a female be ignorant of her preg-
nancy, till the child is brought forth ? There are manifestly three conditions required
before we can believe such a thing  possible, viz.  that impregnation took place with-
out her knowledge—that her pregnancy imitate some natural disease, and that her
delivery be accomplished either suddenly or without her knowledge."  As to the
first, he concedes that it may take place if she be not a virgin, and in every circum-
stance during the profound sleep induced by narcotics.  It may also be deemed to be
hydrometra or dropsy of the uterus, and thus deceive during the whole progress of
pregnancy, not only the female but the most accomplished accoucheurs.  The last
we know does sometimes occur.  Thus, he remarks, " It is obvious that a person
may be delivered without being previously aware of her pregnancy ; but since each
of the three  requisite conditions is exceedingly rare, we may justly pronounce it
barely within the bounds of possibility, and only to be credited, in individual cases,
when the female gives sufficient evidence that the conditions in question did actually
exist.   Farther, as  the third condition can exist only in the case of those who have
borne children, the plea  of ignorance must necessarily be excluded from the greater
number of trials, which too generally concern those who have erred for the first time."
(Vol. 19, p. 452-4.) 
PREGNANCY.
231
   The following are laid down by our author, and I think cor-
 rectly, as the only cases in which  ignorance is possible.
   Where the female is an idiot.   An instance  of this kind occur-
 red to Dr. Desgranges, in  a  young woman in France,  who
 having been long tempted, was at last prevailed on to have con-
 nexion in the bath, as this, it was stated, would prevent concep-
 tion.  In a short time, however, the menses ceased.   She became
 alarmed  for  her health,  and consulted  several physicians, who
 administered medicines;  and in this state  she continued without
 suspicion, until  the approach of labour.  Dr. Desgranges states
 it as  his opinion, that the assurances of her lover had banished
 all  ideas  of • the  possibility  of pregnancy.   The female made
 this assertion herself to him, and  her conduct previous to  deli-
 very was calculated to  strengthen it, as there were  no attempts
 to conceal herself.*
   Where a female  has conceived when in a state of stupor, either
from spirituous liquors or  narcotics, or when in a state of coma or
 asphyxia.  A virtuous young woman was thus violated at Lyons,
 during the period  when the horrors of the  French  revolution
 were at  their height.  A powerful  dose of opium was adminis-
 tered ; the crime was completed;  and in a  short  time she found
 herself pregnant, without knowing by whom.
   In all other cases, the female may indeed entertain doubts con-
 cerning her situation; but doubt presupposes something to be sus-
 pected, while ignorance is not aware of any thing.!
   2. Can a female become impregnated  during sleep, without her
 knowledge ?   This question has already been incidentally noticed,
 and it is not necessary to enlarge  on it in this place.   In females
 habituated to sexual connexion, or  where  sleep is unnaturally

  * This and the succeeding case were communicated to Fodere by Dr. Desgranges.
 (Fodere, vol. 1, p. 496, 497.)
  t I find the following case mentioned in Dr. Gooch's Lectures on  Midwifery, p.
 81.  As he seems to have credited it, it is probably an exception to the rule I have
 before quoted from him.  "A maid at an inn, who was always thought to be virtuous,
 and bore a good character, began to enlarge in a way which excited suspicions of
 pregnancy. She solemnly declared that she never had connexion with any man.
 At length she was delivered, and was afterwards brought before  a  magistrate to
 swear to the father;  but she repeated  her former declaration. Not long afterwards,
 a post-boy related the following circumstance : That one night he came to this inn;
 put bis horses in the stable, and went into the house, and found all gone to bed ex-
 cept this girl, who was laying  asleep on the hearth rug; and without waking her,
 he found means to gratify his  desires.  This shows that impregnation may take
 place without the knowledge of the female, or any excitation of the sexual passion." 
232
PREGNANCY.
produced,  there is no doubt  of its occurring; whereas in the op-

posite cases, the probability  is greatly lessened.   Authors, in re-

marking on this question,  run into copious disquisitions on what

is necessary to cause conception ; but on this I have already inti-

mated an opinion, which it is not necessary to repeat.*


  *  The following case may be added to those already related: A pregnant female,
in her last moments, solemnly declared, that to her knowledge, she never had con-
nexion ; but that a person in the family, some time previous, had given her some
wine to drink, after which she fell into a profound sleep.  She was not, however,
conscious of any thing having occurred to her during that state;' but mentioned the
circumstance, as probably explaining her situation.  (Meierius  in Brendel, p. 99.) 
CHAPTER VII.
                              DELIVERY.


Part. I. 1. Signs of delivery—period within which the examination should be made.
  Concealed delivery.  Pretended delivery—modes in which it may present itself—
  where there has been no pregnancy—where there has been previous delivery—
  where there has been an actual delivery, but a living child has been substituted for
  a dead one.  Appearances on dissection, indicative of a recent delivery.  Case of
  Mr. Angus.  Corpora lutea—their value as a proof of impregnation. Case showing
  the necessity of ascertaining  the birth of an  infant.  2. Possibility of delivery
  without the female  being conscious of it.   Whether a female, if alone and unas-
  sisted, can prevent her child from perishing after delivery:  Application of this in
  cases of infanticide: Instances in which this plea should be received.
Part II. 1. Signs of the death of the child before and during delivery.  2. Signs of
  its maturity  or  immaturity—its appearance,  size, length and  weight at  various
  periods during pregnancy.  Weight  of infants born at the full time—length.
  Other characters which mark the maturity of the child.  3. The state necessary
  to enable the new-born infant to inherit—its capability of living—the time when
  it is generally deemed capable.  Laws of various countries as  to what consti-
  tutes life in the infant, and thus enables it to inherit—Roman, French,  English
  and Scotch laws.  Medico-legal  cases, in Italy—State of New York.  Infants ex-
  tracted by the caesarean operation—their capability of inheriting: laws  on this
  subject.  First born of twins.  How far deformity incapacitates from inheriting.
  Monsters: laws on this subject.


   Delivery  may  be considered,  1,  as  it respects  the mother:

and 2, as it  respects the child.   We shall accordingly divide the

chapter into  two parts; and with respect to the mother, we shall

notice,

    1.  Concealed and pretended  delivery.

   2.  Some medico-legal  questions  connected with  the subject.

    The second  part will comprise a view  of,

    1.  The signs of the death of the child before or during delivery.

    2.  The signs of maturity or immaturity.   And

   3. The state necessary to enable the new-born infant to inherit.


                              PART   I,


                I.  Of concealed or pretended  delivery.


    Delivery  whether concealed or pretended, can alone be eluci-

dated by referring to its  real signs; and  it  will  therefore be pro-

per to commence  with a notice of them.

                                  20* 
234                         delivery.

  If the female be examined within three or four days after the
occurrence of the delivery, the following  circumstances will ge-
nerally be observed: greater or  less weakness, a slight paleness
of the face, the eye a little sunken, and surrounded by a purplish
or dark-brown coloured ring, and a whiteness of the  skin, like a
person convalescing from disease.   The belly is  soft,  the  skin of
the abdomen is lax, lies in  folds, and is traversed  in  various di-
rections by shining, reddish  and whitish, (sometimes pearly) lines,
which especially  extend from  the groins and pubis to the navel.
These lines have  sometimes been called linece albicantes, and are
owing to the giving way of the true  skin under the distension
caused by the gravid  uterus.  Hence they are most  marked at
the umbilical region.*   The breasts particularly about the third
or fourth day after delivery, are tumid and hard,  and on pressure
emit  a fluid, which at first is  serous, and afterwards gradually
becomes whiter;  and  the presence of this secretion is generally
accompanied with a full pulse and soft skin, covered with a mois-
ture of a peculiar and  somewhat acid odour.   The areolae round
the nipples are dark coloured.   The external genital  organs  and
vagina are dilated and tumefied throughout the whole of their
extent, from the  pressure of the fcetus.  The uterus may be felt
through the abdominal parietes, voluminous, firm, and globular,
and rising nearly as high as the umbilicus.  Its orifice is soft and
tumid, and dilated  so  as to admit two or  more  fingers.  The
fourchette or anterior margin of the perinasum is sometimes torn,
or it is lax, and appears to have  suffered considerable  distention-!
A discharge, (termed  the  lochial) commences from  the  uterus,
which is distinguished from the menses  by its  pale  colour,  its
peculiar and well known smell, and its duration.   The lochia are
at first of a red colour, and gradually become lighter until  they
cease.J
   These are the  signs enumerated by the  best writers on the sub-

  * Along with these, Dr. Montgomery, (p. 304,  307,) has sometimes noticed a brown
line of about a quarter of an inch in breadth, extending from  the umbilicus to the
pubes, and especially in women of dark hair, and strongly coloured skin.
  t " With the birth of the first child the commissure is generally torn through and
the fossa disappears with it, though not always; so that the existence of these parts
is no  disproof of previous child-birth, and  I remember myself a case in which,
though I had delivered the patient not without difficulty, with  the forceps, the com-
missure and the fossa existed afterwards  in  all their perfection."  (Blundell's Lec-
tures, Lancet N. S. vol. 4, p. 641.)
  X Fodere, vol. 2, sec. 1; Mahon, vol. 1, p. 166 to 170 ; Capuron, p.  124; Hutchin-
son on Infanticide, p.  90; Burns, p. 326. 
DELIVERY.
235
 ject, and where they are all present, no doubt can be entertained
 that delivery has taken place.   Several of them, however, require
 further notice, for the  purpose of indicating the mistakes which
 observers may experience concerning them.
   1. The lochial discharge might be mistaken for menstruation,
 or fluor albus, were it  not for its  peculiar smell, and this it  has
 been found impossible, by any artifice, to destroy.
   It also is variable as to the time of  its  continuance.   In some,
 it does not remain red for more than a day or two.
   2. The soft parts  are frequently relaxed  as much from men-
 struation, as  from delivery;  but in these cases, the os  uteri  and
 vagina are not so much tumefied, nor is there that tenderness  and
 swelling.  Dr. Montgomery also attaches great  importance to a
 peculiar  condition of the os  uteri.  Its  labia, he says, in  those
 who have borne children, are jagged and notched.  There is hardly
 any other cause  except child-birth,  that can leave this state.*
 Again, when all signs  of contusion disappear after delivery, the
 female parts are found pale and flabby.   This circumstance does
 not  follow menstruation.
   3. The presence of  milk.   This must be an uncertain sign, for
 the  reasons stated  in the chapter on Pregnancy.  " // is possible
for this secretion to take place independently of pregnancy."\ The
 most unequivocal form in which it can  appear, is when the breasts
 are  tense and painful, and filled with the fluid, of its usual nature
 —not serous or watery, as is observed in pretended cases.   It is
 also to be remarked, that this secretion goes on during the pre-
 sence of  the lochia;  while, on the contrary, the  breasts become
 flaccid and almost empty, if the menses supervene, and fill again
 when they disappear.;};  Should, therefore, a case  occur where
 doubt is entertained, it  would be proper to notice the state of the
 breasts while the discharge (of whatever nature it may be) is
 present.
  4.  The linece albicantes, being caused by a " giving way of the
 true skin, under the distention caused by the enlarged uterus,"
 may also be the consequence of dropsy or of lankness following
  * " The converse of this, however, will not hold good.  The unfissured state of
 the uterine orifice will not be  sufficient proof against the former occurrence of child-
 birth."  Signs of Pregnancy, p. 299.
  t Burns, p. 326.  The error in the 3d (London) Edition, of substituting " impos-
 sible" for " possible" in this quotation, and which is noticed by Professor Mont-
 gomery, is not mine.  It is correct in the edition published here.
  X Fodere, vol. 2, p. 15. 
236                        DELIVERY.

great obesity.  Indeed, any cause producing much distention may
give rise to them.  On the other hand, this state of the parts  is
occasionally not very striking after the birth of a first child, as
they shortly resume their original state.
  5. The lineae albicantes will  often remain for life,  and  hence
should not be depended  upon in  cases where females have  had
several children.*
  It is hence the duty of the medical examiner to view  all the
signs enumerated in connexion; and where all  or  most of them
are present, it is his  duty  to  declare  that they are  the conse-
quence of sexual connexion-!   So far he can pronounce with
safety.   But if the question has a  bearing on the  charge  of in-
fanticide, the existence of the child should be  proved.   I make
this remark out  of  its place, but it  cannot  be too often repeated
in a treatise on legal medicine.   To  prevent  mistakes, inquiry
should also be made, whether the individual  has laboured  under
dropsy,  menorrhagia, or fluor  albus;  or whether any external
violence has been applied to the genital organs.
  The next subject of inquiry is, within what  time should this exa-
mination be made ?
  An astonishing difference occurs among females, in the period
of  recovering  from  the effects  of delivery.   Some  have been
known to proceed to their occupation on the day that the child is
born, while others  remain enfeebled  for weeks.  Much in this
respect depends on the constitution and habits of life.   There  is,
however, a term in all, when the signs of delivery disappear, and
the parts return to  their natural state; and a general  rule ought
to be established in legal medicine, beyond which an examination
should be deemed inconclusive and void.   A majority of writers

  *  They are sometimes wanting in females who have had several children : and Dr.
Montgomery saw them very marked in a  male labouring under general dropsy.
(Cyclopedia of Practical Medicine.)
  A similar appearance (of white silvery lines) has been occasionally noticed by our
author, on the breasts of young females, particularly when  those parts have "been
greatly and rapidly enlarged during pregnancy.  Signs of Pregnancy, p. 296.
  t  " All the recent continental writers agree, that if the signs related be all, or
nearly all, found in the person  of the prisoner, the conclusion is infallible; and that
whatever a few obstinate accoucheurs may have been urged by the spirit of contra-
diction to allege, they are never imitated conjointly by any disease whatever.  At
the same time, a just and necessary caution is added, against placing reliance on
any one sign,  or even on several of these together, since frequent  experience has
shown,  that though  never found  conjointly but after delivery,  they are often
produced individually by other causes."  (Edin. Med. and  Surg. Journal, vol. 19, 
DELIVERY.
237
 have fixed on the term of eight or ten days, for this purpose; and
 it is probably a correct one.  After that period, the signs become
 equivocal, and may lead to error, particularly if the delivery has
 been natural.*
   Zacchias remarks expressly, that the proofs of delivery become
 uncertain after the  tenth day;  and  this  uncertainty increases
 until the fortieth, when the abdomen,  with the exception  of the
 white lines, returns to its natural state, particularly if the female
 be healthy.   Michael Alberti, a celebrated professor  of his  day,
 and Bohn, professor at  Leipsic, both recommend the visit to be
 made within the week; and in a  case before the parliament of
 Paris, in 1767, Petit and Louis reported  in favour of acquitting
 a female suspected of infanticide, on the ground that the investi-
 gation had been made at too late a period.! The following case,
 which came before the criminal court of the department  of the
 Seine in 1809, presents a most striking  instance,  in  which the
 delay alone seems to have prevented the  detection of the crime.
   On the 11th of June, 1809, a female named Aimee Perdriat,
 went to the lodgings of a friend called Rosine, who resided in the
 fifth story of a house in Paris.   She requested  leave to remain,
 as she felt ill with a headache and a violent colic.   Shortly after
 her being shown to a room,  a lodger in the third story heard a
 noise in the water-pipe, as if a heavy body passed through it  She
 was not visited by any one,  except Rosine  and another female,
 for the  purpose  of inquiring whether she wanted  any  thing.
 About  five  hours  after the  arrival of Aimee,  Rosine observed
 blood on the stairs and on the floor of  the chamber; and Aimee
 remarked that her menses flowed very profusely.
   Suspicions appear to have been excited;  and on the 17th, the
 privy was searched.  A fcetus, placenta, and bloody cloths were

  * Farr (p. 50 and 51,) enumerates certain signs that a woman has formerly been
 delivered of a child, which it may be proper to mention.  The loss of all the signs
of virginity.  The orifice of the uterus wanting its conical figure, and its lips une-
qual.  An expanded and pensile abdomen.  The lines albicantes.  The fraenum of
the labia obliterated ; the breasts flaccid and pendulous; the nipples prominent, and
the areolae of a brown colour.
  " The most precise criterions of the date of delivery, are derived from the date of
the milk fever, the gradual alterations of the lochia, and especially the appearances
assumed by the genital organs in their return to  the  ordinary healthy condition."
Edin. Med. and Surg. Journal, vol. 19, p. 458.
  t Fodere, 1, p. 17. " Haec primis post partum diebus a medicis dijudicari possunt,
si vero suspicio tardius oriatur, nee in matre, nee in  infante, signa rei recte  defU
niendae supcrsunt."  (Ludwig, p. 44.) 
238                        DELIVERY.

found;  and two surgeons, who examined the body, deposed that
no marks of violence were present, except that the umbilical cord
was torn off; that it was a full grown child ; and that from their
experiments, it  certainly had breathed after birth, and there were
proofs of this having  continued even in the filthy  place,  from
which it was drawn.
   She was arrested  on the  suspicion of having been the mother
of this child; and  the  suspicion was fortified by a previous re-
fusal to admit the examination of a. midwife.  On the 15th,  17th,
and  27th of July, being more  than a month after the supposed
delivery, she was examined by Baudelocque, Dubois,  Ane, Du-
puytren, and  Lafarge.  They  unanimously declared, that there
was no sign present  which indicated the delivery of the  female
at the time  in question.  She was accordingly acquitted.*
   It is  impossible, I conceive,  to  reflect on this  case, without
coming to  the  conclusion,  that  this woman was guilty.  But if
the physical signs of the crime are so slowly attended to,  judges
are certainly justified in leaning- to the side of mercy.!
   Delivery is most commonly concealed under the  idea of de-
stroying the offspring immediately after birth.  In suspected cases,
therefore,  the  examining  physician  should  attend,  1.  To the
proofs of previous pregnancy.  On these I have already dilated;
and  will only add,  that ordinarily no investigation has taken
place at the time when this  was advancing.  Circumstantial evi-
dence is not to  be trusted;  but  it is proper to inquire whether
an enlargement of the abdomen has been observed—whether this
was connected  with  any apparent disease,  and whether any pre-
cautions as to dress  were used  to conceal it.  2. The proofs of
recent delivery  ;J and  3. To the connexion between the supposed

  * Fodere, 2, p. 18.
  t A case of an opposite nature, where the female was evidently accused wrong-
fully, with the reasoning of Zacchias in her favour, is contained in his Consilia, No.
69. There was no milk present—the breasts flaccid—no lochial odour—the parts
very slightly tumefied, and her strength not affected.  He deemed it nothing more
than a profuse menstruation, following a retention which had caused  the enlarge-
ment of the abdomen.
  Ovarian dropsy has also been mistaken for pregnancy and the character of the
female injured, until a proper investigation  has led  to the establishment of the
truth.
  X The following case which I find in a recent journal, is a most unequivocal one,
and we can only explain the decision by supposing that some superior  influence in-
tervened to quash the investigation.
  A female in June and July, 1827, complained of dysmenorrhoea and its accompa-
nying symptoms.  Her abdomen enlarged and there was a suspicion of pregnancy. 
DELIVERY.
239
period of parturition, and the state of the child that is found. An

infant recently born, is indicated by the redness of the skin, and

by the attachment of the^umbilical  cord to the  navel; and the

female, if the  mother, will be found to have the marks of a late

delivery on her.  The question, whether it was living after birth,

belongs to infanticide.

  In pretended  delivery, the female declares herself a mother,

without being so in  reality.   This is not so revolting to our feel-

ings as the former, but it is, notwithstanding, improper, and should

be guarded against.   Its  most common origin is cupidity,  or a

weak desire to produce an heir to large estates ; and hence, we

hear most of  it in Europe, where property is  entailed, and  fami-

lies anxiously  desire the birth of a son to perpetuate their honours.

   In  France, pretended delivery  was formerly punished  with

infamy and  banishment  In 1772,  a female in Paris, who  was

sterile, resolved to gain the favour  of her husband by pretending

pregnancy, and at  the end of the proper period, obtained an in-

fant from one of the hospitals.  She effected this by the aid of a

midwife, who attended  during  the  assumed  labour.  Unfortu-

nately, however, the parents of the child repented of having put

it in  the hospital, and endeavoured again  to  obtain  it  Failing

in this, they took steps  to discover  where it was, and ascertain-

ing, a full disclosure took place.  The woman was  sentenced to

make the amende honorable, with a writing on her breasts, con-

taining these words:  " A woman who  stole a child, in order  to


But she denied its correctness and attributed  her illness to wet feet.  She was dis-
missed from service and  returned to her parents.  On the 14th of March, 1828, she
was understood to have had so severe a haemorrhage as to be confined for  several
days to her bed.   The abdomen was reduced in bulk.  These circumstances led to
a legal inquiry.   Drs. Millet and Giraudet examined her on the 25th.  They found
her skin warm, countenance slightly flushed, pulse full and frequent, and  tongue
natural; the breasts tumefied and its veins enlarged, and on continued pressure, a
thick milky fluid  was obtained in abundance.  The abdomen was a little swelled,
umbilicus projecting (saillant,) lineae albicantes present, and the skin wrinkled and
contused. The insides of the thighs had also red spots. On examination per vaginam,
the uterus was found  heavy and more voluminous than  in the unimpregnated state.
Its orifice was soft, irregular, and readily admitted two  fingers.  A thick, yellowish
matter of the odour of  fish oil, issued from the genital organs, and these exter-
nally were much  dilated, flaccid, and as if recently swollen.  Le frein de la vulve
etait dechire.
  The medical examiners could do  no less than to declare  that a delivery had very
recently taken place.  The criminal tribunal, however,  refused to pursue the subject
on the ground of  the irreproachable manners of the female and the appearances no-
ticed arising from some other cause! Well might Leuret, the reporter of this case,
ask, whether haemorrhage alone would produce all these signs.  (Annales D'Hygiene,
vol. 3, p. 221.) 
240
delivery.
pretend  being a  mother," and was  afterwards  banished during
her life from Paris.  The midwife bore a similar writing, which
purported that she was one who, abusing her station, had assisted
and  favoured  the pretending of maternity,  and  she was con-
demned to  perpetual imprisonment.  The parliament, however,
on an appeal, lightened  the punishment, and ordered her to be
admonished and fined.*
  The penal code now in force in France, (sect. 345,) prescribes
imprisonment  as the punishment for concealing an  infant—for
substituting one child for another, and for pretending that a child
has been born-!
  Pretended  delivery may present  itself under  three points of
view.   1. Where the female, who feigns, has never been pregnant.
This, if thoroughly investigated, may always be detected. There
are  signs which  must be present, and cannot be  feigned.  An
enlargement of the orifice of the uterus, and a tumefaction of the
organs of generation, should always be present; and  if wanting,
are conclusive against the fact. Dr.  Male mentions a  case which
happened to a surgeon  in Birmingham not long since.  " Being
called to a  pretended labour, a dead child was presented to him;
but there was no placenta. He proceeded immediately to examine
the woman, and found the os tincse in a  natural state, nearly
closed, and the vagina so much contracted as not to admit the
hand.   Astonished  at  this  appearance, he  went  to consult a
medical friend;  but before any further 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.  She was  induced to practise the artifice,

  * Fodere, vol. 4, p. 406, from the  Causes Celebres.  " A case worthy of record
occurred lately in the north of Scotland.  A foetus was found in a sink, and notice
of this occurrence was immediately given to the clergyman of the parish, just as he
was going to church.  The worthy pastor was aware  that a very few days' delay
might render  all inquiry fruitless, so at the conclusion of the service, he informed
the congregation of what had happened; adding, that as the child was found within
the bounds of the parish, an imputation would necessarily lie against the young
women of the parish, and jealousies, doubts and suspicions would arise, to the total
subversion of  Christian charity, and good neighbourhood throughout his cure, and
inviting all the young women who wished to maintain their reputation, to exhibit
themselves next morning before the  kirk session.  Accordingly, on the following
day, the minister and elders, with a midwife and the village surgeon, as assessors,
held a grande reconnaissance,  by means of which the unfortunate mother was de-
tected.  She was found guilty of concealment  of pregnancy."  Dunlop.
  t Capuron,  p. 18. 
DELIVERY.
241
 to appease the wrath of her husband, who frequently reproached
 her for her sterility."*
    Dr. Billard, of Angers, in France,  relates the following:  A
 farmer,  aged  seventy-two,  had been  married four years to a
 female aged forty-two, when she declared herself pregnant. Her
 abdomen  gradually  enlarged.  On the 27th of July,  1829, she
 stated, that when alone, at break of day, she had been delivered
 of a female infant.  She had cut the cord and made the ligature,
 and the  after birth, which could not be found, she had left at the
 door of the house.   In proof of her narrative, was her bloody
 linen, and a child, which when placed at her breast, could obtain
 no milk.  The husband was  at first elated with the circumstance,
 but soon became suspicious  through the remarks of his relatives,
 and he delayed to register the child.
   A legal inquiry was instituted, and Dr. Billard was appointed
 the medical examiner.  The infant, from her account, was fifty-
 three hours old.  It was seventeen or eighteen inches long.  The
 epidermic exfoliation was in full activity, and the skin red.  The
 cord had fallen off that morning.   It was buried, but he caused
 it to be disinterred.  It was wrinkled,  dry, slightly sanguinolent
 at one end, a!nd brown and  neatly cut at the other.   A proper
 ligature  was also found on  it.  The infant had thick hair—it
 cried  lustily, moved  and drank with  perfect freedom;  the  nails
 were formed, and none of the sebaceous matter, common to new-
 born infants, was found on it, nor was any meconium observed.
   Dr. Billard decided from these circumstances, and particularly
 from the state  of the  cord, and its  falling off spontaneously—
 from the colour of the skin,  and the  exfoliation—that instead of
 two, the  infant was probably from five  to seven days old.  And
 further, that from the  state  of  the cord, it had evidently  been
 secured  by an  expert, and  not by a solitary female labouring
 under the effects of present delivery.
  Dr. B. now examined the pretended mother. The breasts were
 not enlarged—nor were there any marks of the secretion of milk
 present.  The abdomen presented no  lineae.   There was no dis-
 charge from the vagina;  and, indeed, that part was contracted,
 and the labia perfectly natural.  The  uterus was light and easily

  * Male, p. 212.  A case of a somewhat similar nature is mentioned by Capurpn,
p. 110—and another by Mr. Thomson in London Med. Gazette, vol. 19, p. 231.
  VOL. I.                      21 
242                        DELIVERY.
raised, and had the feel of perfect contraction.   Its mouth was
neither tumefied, nor irregular.  The result was unavoidable.  Dr.
Billard denied her previous pregnancy and delivery, and she was
forced to confess the fraud.*
   2.  Where the pretended pregnancy and delivery have been pre-
ceded by one or more deliveries.  The facility of counterfeiting in
this case is certainly greater  than  in the former, particularly if
the examination be not made within eight or ten days.   Atten-
tion should be given to the following circumstances:  The mys-
tery (if any) that has been affected respecting the situation of the
female—her age, and particularly whether  she has been  previ-
ously barren; and the condition of the  husband, whether aged or
decrepid.   All these would be corroborating evidence against
the actual occurrence of delivery.
   3.  Where the female has been actually delivered, and substitutes
a living for a dead child.   This cannot be elucidated by physical
proofs, unless  some persons have been present  at  the  delivery.
And  in this, as well as in the former case, a strict  examination
should be instituted, of the witnesses who have  attended.   Zac-
chias and  Mahon! lay considerable^ stress on  the  resemblance
that may exist between the  parent and child; but this is of little
value.
   It sometimes  happens, that  the female  dies  shortly  after the
supposed or pretended labour; and it is necessary to  examine
the body, in order to ascertain the truth.  We are to examine
both the uterus and its appendages—as it is evident that the for-
mer may have been enlarged from  causes independent of  actual
pregnancy.
   The appearances that  are considered to indicate delivery, are

   * Annales D'Hygiene, vol. 2, p. 227. " March 21,1775, a very extraordinary affair
happened at a certain hospital.  Two  women, one of whom having the appearance
of a nurse, the other of a maid servant, applied to the committee to let them have a
male child, the youngest in the hospital, for their lady, who wanted to adopt one as
her own.  These women, on the committee's closely examining them, confessed that
the lady's husband was gone abroad, and as she told him before he went, that she be-
lieved she was pregnant, it was necessary to show him a child: they likewise ac-
knowledged the lady came from the Isle of Wight to London, to lie in. As  it ap-
peared that the adoption of this child  was calculated to deprive some heir-at-law of
an estate, or for some unlawful  purpose, the intention of this paragraph  is to caution
those persons whom it may concern, to be on their guard against such infernal prac-
tices." (Dodsley's Annual Register, 1775.  Chronicle, p. 101.)
   t Zacchias, Lib. 1, Tit. 5, Quest. 4; and Lib.  8. Tit. 2, Quest. 8.  Mahon, 1,  p.
209. 
DELIVERY.
243
the following:—" The uterus being  found like a large flattened
pouch, from nine to  twelve inches long.  Its cavity contains
coagula or a bloody fluid, and its  surfaceis covered by the re-
mains of a decidua.*  Often the marks of the attachment of the
placenta are very visible; and  this part is of  a dark colour, so
that the uterus is thought to be gangrenous by those who are not
aware of  the  circumstance.   The  surface being cleaned,  the
sound  substance of the womb is  seen, and the vessels are  ob-
served to  be extremely large and numerous.  The fallopian tubes,
round ligaments, and surface of the  ovaria, are so vascular, that
they have  a purple colour; and the spot where the ovum escaped,
is more vascular than the rest of the ovarian surface.  This state
of the uterine appendages continues  until the womb returns to its
unimpregnated  state.   A week after delivery, the womb  is as
large  as two fists.   At  the end of  a  fortnight, it will  be found
almost six inches long,  generally  lying  obliquely  to  one side.
The inner surface is still bloody, and  covered partially with a
pulpy substance, like decidua.   The muscularity is distinct, and
the orbicular direction of the fibres round the orifice of the tubes
very evident.  The substance is whitish.   The  intestines have
not  yet assumed  the  same order  as  Usual, but the  distended
caseum is  often more prominent than the rest.   It is a  month at
least before  the  uterus  returns to  its  natural state;  but the os
uteri rarely, if ever, closes to the same degree as  in the virgin
state."!
   In  a uterus which had  contracted perfectly, an  examination
was made on the  second day after delivery.   It  measured eight
inches in length by four and three quarters in breadth,  and three
in the antero-posterior diameter.  Its parietes were from one inch

  * The decidua is sometimes produced in cases of difficult menstruation; and it is
important to  remember, that it may be mistaken for abortion.  It resembles it in the
pains, discharge of blood, &c.  But the one presents an embryo, at various stages of
increase—while in the other, that is altogether  wanting.  It seems now agreed, that
the discharge of this membrane, (recognized by Dr. Baillie to be similar in structure
to the decidua,) occurs frequently in unmarried females. It would appear to be gene-
rated spontaneously by the inner membrane lining the uterus. (Blundell's Lectures,
Lancet, N. S. vol. 4, p. 577.  Ashwell on Parturition, p. 119.)
  t Burns' Midwifery, p. 326.   The Dissections of Mr. Mayo, (quoted in London
Medical Repository, vol. 21, p. 343,) and of Dr. Hewson, (North American Medical
and Surgical Journal, vol. 9, p.  371,) of females dying immediately after delivery,
corroborate the above statement.  In both, the  os tincae was much dilated; being, in
the former, when disposed in a circular form, about two inches in diameter.  In Dr.
Hewson's case, the uterus was about the size of a man's fist. 
244
DELIVERY.
 five lines to one inch in thickness, and its internal surface as well
 as its appendages corresponded to the description already given.
   In another, where the woman died sixteen days  after mature
 delivery, the uterus was  five  inches two lines in length, three
 inches eight  lines in breadth, and its substance averaged in the
 body and fundus from seven to eight lines in thickness.
   Dr. Montgomery, from whom  I have taken these statements,
 adds that at  the end of a week, the uterus has a  length of be-
 tween five and six inches, and after a fortnight does not exceed
 five inches: its vascularity is diminished, and the thickness of its
 parietes reduced about one third.*
   In cases of abortion or premature delivery, but of course de-
 pending on the length of the period of gestation, the uterus will
 be found as small in a few days after delivery, as it would at the
 end of  the same  number of weeks after parturition at the full
 term.
  John  Hunter examined one  of  a female who poisoned herself
 about one month after impregnation.  It was highly vascular, and
 covered on  its internal surface with a  pulpy substance, which
 was evidently coagulated blood.  The cervix and os uteri were
 natural, but the body near the fundus was a little enlarged.  No-
 thing like an embryo could  be detected.!
  Dr. Robert Lee mentions the following particulars of a dissec-
 tion, in a case two months advanced.  The uterus was double the
 size of one unimpregnated and was five inches  long, three and a
 half in the greatest lateral  direction, and two in the anteropos-
 terior diameter.J
  In a uterus at the sixth month, examined by Dr. J. B. S. Jack-
 son of Boston, the long axis measured nine and a half inches, and
 transversely at its broadest  part, it was six inches.  It was, on an
 average, three lines in thickness.§
  In a case that occurred to  Dr, Montgomery, death  followed
thirteen days after premature delivery in the seventh month.  The
 uterus measured  only three inches nine  lines  in  length, by two

  * Signs of Pregnancy, p. 315, 316.
  t Transactions, Society for promoting Medical and Chirurgical Knowledge, vol, 2,
p. 66.
  t Medico-Chirurgical Transactions, vol. 17, p. 493.
  § Boston Med. Magazine, vol. 3, p. 580.  The cord was eleven and a half inches
long. The child, a female, measured eleven and a half inches, with fine down cm
the head, but the nails not forme J. 
DELIVERY.
245
 inches nine  lines  in  breadth, and its substance was  from six to
 seven lines in thickness.*

    To these it has been customary to add, with great confidence,

 the  presence of a corpus luteum  in the ovarium.   As we shall

 have frequent occasion to refer to  this peculiar  body, it may be

 proper briefly to describe what is understood by it.   The corpora

 lutea are oblong glandular bodies,  of a dusky yellow colour.  In

 the early stages of pregnancy, and for some time after delivery,

 they are extremely  vascular, except  at their  centre, which is

 whitish;  and in the  middle of  this white  part  is  a cavity, from

 which the impregnated  ovum is  supposed to  have proceeded.


   "Signs of Pregnancy, p. 316.
   The following measurements from Velpeau and Madame Boivin, may be useful in
 some cases:
   Length of the unimpregnated uterus from the most salient point of the fundus to
     the end of the anterior lip of the neck, 26 lines, and from that to 28. (Velpeau.)
 Length of neck, 13 lines.
 Uterine walls, 5 lines in thickness.
 Cervical walls, 3£ to 4 lines, (2 to 3, Velpeau.)
 Weight without appendages, 4.9 drachms, (Boivin,) 8 to 12 drachms, (Velpeau.)
 Breadth of neck, 9£  lines: thickness, 7 lines.

                         After several pregnancies.
           Total length,    -   -    -    -    2£ to 3 inches;
           Length of neck, ....     13 to 15 lines;
           Length of body, ....     2 inches;
           Breadth  of neck, -    .     -    -    18 lines;
           Thickness of neck,    ...    8 to 10 lines;
           Thickness of uterine walls,  -    -     6 lines;
           Weight,     -    -    -     -    -    1£ to 2 ounces.
     (Velpeau's Midwifery, p. 61. Edin. Med. and Surg. Journal, v. 39, p. 210.)

   " The virgin uterus (says Dr. Montgomery) is about two and a half inches long,
 If broad, and about an inch from back to front, with a cavity which would not more
 than receive into it the kernel of an almond.  According to the calculations of Lev-
 ret, its superficies may be taken at 16 inches, but at the end of the ninth month of
 gestation, its length  is  from 12 to 14 inches, its breadth  from 9 to 10, and from
 back to front from 8 to 9 inches.  Its  superficies is now estimated at about 339
 inches; and its cavity, which before was equivalent to | of a cubic inch, will now
 contain 408, so that  its capacity is increased  a little more than 519 times, and its
 solid substance from  4j to 51 cubic inches, or nearly in the ratio of 12 to 1."  The
 blood vessels also increase  in size, while the uterine nerves have also been  noticed
 by Wm. Hunter, Chaussier, and Tiedemann to enlarge during gestation.   Signs of
 Pregnancy, p. 3. London  Med. Repository, vol. 21, p. 167.
  As  I am  on the appearances found after death, I may as well mention here, that
Chaussier and others  have, in a great  number of observations, noticed a peculiar de-
gree of thinning in the centre of the osseous plates of the bones of the ilium, as an
indication of having borne children.   (Dr. Granville, in Brande's Journal, vol. 20, p.
341.)  Mr. Brookes, the celebrated anatomist, remarked, in a lecture before the Lon-
don Zdological Society, that " an anatomist could always tell by the  thinness of the
ossa ilii, if the woman had ever been  pregnant; and ascribed this to the pressure of
the uterus producing  absorption of their internal structure."  Lancet, vol. 12, p. 133.
                                  21* 
246
DELIVERY.
They gradually fade  and wither:  but there is no regularity as to

the time of their disappearance.*

   From the  experiments of De Graaf and Haighton,! it seemed


  * Burns, Denman.  In the article on the Signs of Pregnancy and Delivery, by Dr.
Montgomery, (Cyclopedia Practical Medicine,) be states that he has found the corpus
luteum distinctly visible five months after delivery at the full time, but not beyond
that period;  "and the corpus luteum of a preceding conception, is never to  be found
along with that  of a more recent, when gestation has arrived at its full term; but in
cases  of miscarriage, repeated at short intervals, it may.   At the time of  delivery,
the corpus luteum  is neither so large, nor so vascular, as at the earlier periods of
pregnancy, except the woman should happen at the time of her death to be labour-
ing under inflammation of the uterine system."  In a case of death five weeks  after
delivery, it was  diminished about one half in size, was closer in its texture, and its
colour becoming indistinct, but the radiated central cicatrix was quite obvious.   Dr.
Montgomery describes the corpora lutea as almost always oval in form.
   The accompanying plates, from Davis' Obstetric Medicine, will give an idea of the
appearance of these  bodies.  The first  represents the external  appearance of the
ovarium ; the second, the corpora lutea.
  In a dissection at St. Bartholomew's, in Sept. 1837, of a female who had been de-
livered six months previous, the cicatrix of a  corpus luteum was found on cutting
into the left ovary.  It was white and radiated, and surrounded with a dark grayish
substance, passing between and marking the outlines of the rays of white.  The re-
porter remarks that it almost precisely resembled that  figured  by Dr. Montgomery
as found in the body of a female who had died five months  after delivery.  London
Med. Gazette, vol. 21. p. 24.
  f Philosophical Transactions, vol. 87, p. 159. 
DELIVERY.
247
 to  be decidedly established, that their  existence was  a certain
 indication of previous  impregnation;  and such was the general
 belief of the profession.  The causes of a more minute investiga-
 tion on this point, and of the  invalidity of this proof, will be best
 understood by the introduction of an important medico-legal case.
 I make no apology for its length, since it reviews, as it were, all
 that we have stated on the subject of delivery, and points out
 the difficulties that may occur in judicial investigations.
  Charles Angus, Esq. of  Liverpool, was, in September, 1808,
 tried at Lancaster for  the  murder of Miss Burns, a female re-
 siding in his house.  The symptoms previous to her death, and
 the appearances observed on dissection, were such as to warrant
 a suspicion that she was poisoned.   The medical examiners also
 found the uterine organs in such a state, as  to lead them to de-
 clare, that in their  opinion the deceased  had been delivered, a
 short time before her death, of a fcetus, which had nearly arrived
 at maturity.  Accordingly, on the trial, the medico-legal questions
 agitated were, 1.  Whether  Miss  Burns had died from the effects
 of poison; and 2. Whether  she had been delivered of a child re-
 cently before her death ?* I shall notice the first question in its
 proper place, and here  confine myself to the second.
   The testimony respecting  her situation while living, appears to
 be  contradictory.   Before the coroner, the  servants swore, that
 for some time  previous to  her  death, she had increased very
 much in bulk, and had  the appearance of a pregnant woman.
 Shortly before her death, the  pain in her  body was so severe,
 that she could not put her feet to the ground, and could scarcely
 bear  to be touched; and she  was occasionally observed to hold
 fast with her hands to the end of  a sofa, on which she sat. These
 pains continued during  the whole of Wednesday and Thursday,
 but on Friday morning (the day  she died,)  they had gone  off;
 she appeared to be lighter, and was able to walk across the floor.
 She was also distressed during her illness with retention of urine.
 On the trial, the witnesses for  the prosecution swore that she had
 every appearance of being pregnant, while those for the prisoner
 swore that for twelve  months before her  death, she had been
 very poorly,  and had been  irregular for  some  years—that  she
had a great difficulty in breathing, and complained that she was
 * Mr. Angus was indicted on two counts—1. For poisoning Miss Burns; and 2.
For administering poison (oil of savine) in  order to procure an abortion. 
248
DELIVERY.
 much puffed and swelled, and was afraid of dropsy—that  some
 weeks before her death, she was observed to be uncommonly flat
 bosomed, and not half so plump as she used to be in health, but
 swelled  at  the stomach—and that she  had no  appearance of
 being pregnant.  Nothing satisfactory or conclusive can be drawn
 from these conflicting statements.
   The appearances on  dissection.   The uterus was found so en-
 larged, as to be  capable of  containing  nearly a quart of  fluid.
 Before it was removed from the body, Mr. Hay, the surgeon,
 placed his  left  hand upon the fundus uteri, and  introduced his
 right hand with the greatest ease into  it, until  the fingers of his
 right hand could be felt by those of the left through the  fundus.
 The uterus being taken out of the body, an incision was made
 along its whole length, and its cavity laid open.  The whole in-
 ternal surface was bloody, and near the fundus there was a well
 defined circular space of a deeper colour than the rest, and about
 four inches and  a half in diameter.  This space was rough and
 rugged, and a small fragment of what appeared to be the pla-
 centa, still adhered to it; and the blood vessels opening upon it,
 were distinctly visible, and as large as  a crow  quill, whilst every
 other part of the internal surface was smooth.   The walls of the
 uterus were about half an inch in thickness. There was no  coagu-
 lum in it.   The os uteri remained in so dilated a state, that the
 four fingers of a hand  drawn together in the form of a cone,
 would pass through without in the  slightest degree distending it.
 Vagina ipsa admodum dilatata.  Labia ejus fuerunt livida; etun-
 dique sanguine faedata.
  The medical witnesses for the crown, (Drs. Gerard, Rutter,
 and Bostock, and Mr. Hay,) considered  these appearances  as
 conclusive in favour of  her recent delivery;  and they remark,
 that the enlargement of the uterine vessels within the boundaries
 of the placental mark, and the mark itself, were to them decisive
 —that mere enlargement of the cavity of the uterus, and dilata-
 tion of the os uteri, and even haemorrhage might have been occa-
 sioned  by other  causes  than  pregnancy, as by dropsy;  but no
 form of dropsy would occasion that mark, and no dropsy would
explain the extraordinary enlargement and dilatation of the ute-
rine vessels within that mark.
  On the trial, however, Dr. Carson of Liverpool, being examined
 as a witness, objected to the above conclusions, for several  rea- 
DELIVERY.                      249
 sons.  The great dilated state of the uterus was such, according to
 him, that if the mother had parted with a placenta, she must
 either have flooded to death, or the womb must have been gorged
 with coagulated  blood.   To this  opinion, the  testimony of  Sir
 Charles  M. Clarke, lecturer  on  midwifery in London, to whom
 the uterus was shown after the trial, may be opposed.   " I have
 seen," says he, " uteri after the death of patients lately delivered,
 in whom, however, there was no haemorrhage, which have been
 contracted in  no greater degree than the uterus which is in the
 possession of  Mr. Hay."   Besides, it is  evident, that the uterus
 had contracted, and was not  at its maximum of dilatation; for if
 it could not contain more than a quart of fluid, it certainly could
 not, in that state, have contained a foetus with its placenta and
 membranes.
   Dr. Carson  next intimated, that the appearances which were
 supposed  to indicate  the  recent expulsion of a fcetus, might be
 explained, on  the supposition that dropsy of the hydatids was the
 disease under  which Miss Burns laboured.   These hydatids, he
 observed, are  attached by pediculi to the internal  surface of  the
 womb, and the action necessary to expel them, would cause a
 dilatation of the  os uteri.   He supposed also, that the vessels
 nourishing the hydatids  might be  so much smaller than those
 nourishing a foetus, that in a  state of undue dilatation, a flooding
 might not take place on their expulsion.   When pressed with
 respect to the  placental mark, he replied, that the  attachment of
 these dropsical hydatids might have caused it.
   I  have already adverted to this subject in a previous chapter.
 I will add that Dr. Baillie  never saw an  example of hydatids of
 the uterus;* and Dr. Denman,  although he admits  their occa-
 sional occurrence, yet observes, that the  other species is what is
 generally observed.  A MS.  extract from notes of Dr. William
 Hunter's lectures on the gravid  uterus, delivered in  1765, gives
the most minute account of these extraordinary productions,  " I
have seen," says he, " a placenta in the  fourth month, all dege-
nerating into hydatids.  There are two kinds, one where the little
hydatids are distinct and  detached; the other, where they hang
together in  strings, like bunches of currants.  This  last sort is
the most common in the uterus.  They are most common in the
* Morbid Anatomy, 3d. ed. p. 376. 
250
DELIVERY.
placenta, but they may be in other parts of the  uterus.  Some-
times there  are vast heaps of them in the cavity of the uterus,
and no remains of the placenta.  I ventured, from seeing hydatids
coming away from the uterus, to say that the woman  wras with
child, because they most commonly attend the placenta.  I have
seen pails full of hydatids come away from the uterus with pains,
the placenta and fcetus being thus converted."
  There is little doubt, but that hydatids generally hang together
like a bunch of currants, and are united by a  common peduncle
or footstalk.  Should, however, the reverse be considered proba-
ble, it is difficult to conceive where the hydatids could have been
placed as in this case, when the bases of the common  footstalks
alone extended over a space of four inches and a half  in diame-
ter.   Three  cases are related by  Dr. Bostock, to whom they
were communicated by Mr. Kendrick, surgeon at  Warrington,
of the disease under  consideration, and in each of them, the me-
dium of attachment to the uterus was a placenta, about the size
of half a crown.   I will repeat again  in this place, what I have
before endeavoured to prove, by a reference to the  best authori-
ties,  that there is  no case on record, where hydatids of  the uterus
have been formed independent of sexual connexion;* and again,
should there  be such a case, were  the parietes of the  uterus in-
creased, or the os uteri enlarged, as in this instance 1
  The difference of opinion that was  thus expressed by the me-
dical witnesses,  not  only on this question, whether Miss Burns
had  been recently delivered, but also on the main accusation of
poisoning, led to an acquittal.  But I believe few can review this
case, and not come  to the  conclusion, that  she  had really been
pregnant.  The  charge of infanticide does not  appear to have
been made, and of course ought not, without the previous finding
of an infant; but in every thing that relates to the verifying of
sexual connexion and its consequences, and which in this instance
must have been criminal, the proof seems to be complete.  Even
hydatids, as we have sufficiently shown, are to be considered, in
a vast majority  of  cases,  as indications  of impregnation.  If
present in this instance, they should have been  produced, or at
least seen by some medical person.
   It was not until after the trial, that  the ovaria were examined.
» Page 215. 
DELIVERY.
251
They were then  divided in  the presence of a number of physi-
cians, and a  corpus luteum  distinctly perceived  in one of them.
Mr. Hay  took the uterus and its  appendages to  London,  and
showed it  to the most eminent practitioners there.   He received
certificates from Drs.  Denman and Haighton, Messrs.  Henry
Cline, Charles M. Clarke, Astley Cooper, and Abernethy, all stat-
ing, that it exhibited appearances that could alone be explained
on the idea of an advanced  state of pregnancy.   And it appears
to have been  universally allowed, that the discovery of the corpus
luteum proved the fact beyond a doubt.*
   Subsequently, however, to this time, Sir Everard Home inves-
tigated the subject, and asserted that  the corpora  lutea may be
present without impregnation.   He examined the ovaria of se-
veral women who had died  virgins, and in whom the hymen was
too  perfect  to admit of the  possibility  of impregnation;  and
found that  there were not only distinct  corpora lutea, but also
small cavities round the edge of the ovarium, left by the ova that
had passed out at some former period.  It is therefore supposed
that the excitement of the  ovaries  from passion alone may be
sufficient to rupture the vessels, and prqduce corpora lutea;  and
this is strengthened by the  corpora lutea having been found in
the female quadruped, after a state of periodical lasciviousness,
where no  copulation had taken place-!
  Dr. Blundell, states that there are two kinds of bodies found in the
ovaries—one fabiform,  and the other spheroid.   The  first, when
divided, have  a shallow cavity; and it is these alone which con-
stitute what we call corpora  lutea.   " The latter may be produced
by impregnation; but  at present,  to some it may appear that
they are  rather the  consequences  of incipient  disease, than of

  * The facts from which the above case has been  prepared, are drawn from a re-
view of the trial of Mr. Angus, and  the pamphlets to which it gave rise, in the Ed-
inburgh Medical and Surgical Journal, vol. 5, p. 220; also a pamphlet entitled  "A
vindication of the opinions delivered in evidence by the medical witnesses for the
crown, on a late trial at Lancaster for murder—Liverpool, 1808."—This masterly
production is from the pen of Dr. Rutter, to whom I must apologize for having at-
tributed it to  another.  The quotation from Dr. Hunter's Lectures, and the cases of
Mr. Kendrick, are taken from it.  I  am also indebted for some hints to the London
Medical and  Physical Journal, vol. 21; and the Edinburgh Annual Register, vol. 1,
part 2, p. 188. I may add in this place, that a rude but instructive plate of hydatids,
formed like bunches of currants, is contained in Stalpart, vol. 1, p. 302.
  t  Denman, p. 119.  Smith,  p. 489.  Blumenbach  would, however, seem to have
been the first who decidedly maintained that, under certain circumstances, a corpus
luteum may be produced without sexual connexion.   (Bbstock's Physiology, vol. 3,
p. 29.  Elliotson's Blumenbach, p. 468.) 
252
DELIVERY.
 fruitful  intercourse."  And again  of the fabiform bodies, the
 larger only deserve notice;  they should be as large as a split pea.
 In the case of a female aged seventeen, who died of chorea, and
 in whom the hymen, which  nearly closed the entrance of the va-
 gina,  was unbroken,  there were no  less than four corpora lutea;
 the largest, however, was a little bigger  than a mustard seed.
 Dr. Blundell  hence concludes, that  " the fabiform corpus luteum
 with asterical cavity, of a yellow colour, large as a pea or larger,
 and seated beneath a cicatrix formed on the corresponding sur-
 face of  the ovary, may be  looked upon, in the  present state of
 our knowledge, as a  strong  presumptive proof of impregnation;
 adding,  however,  at the same time,  that I conceive  a jury ought
 to be  cautious of giving too  much weight even to this evidence,
 when human life  is at stake."*
   It is  proper here to add, that Sir Everard Home supposed
 that impregnation was necessary to  the expulsion of the ova; and
 Mr.  Stanley  corroborates  this idea,  by  expressing a  doubt
 whether the effect of the  excitement on the ovary of the virgin
 can extend beyond the rupture of the vesicle, and the production
 of the corpus luteum.   It seems to be conceded that it is smaller,
 and not marked by the extensive vascularity of the contiguous
 parts of the ovarium.!
   A late writer,  however, (Prof. Montgomery of Dublin,) deci-
 dedly controverts  these statements.   After noticing the remarks
 of Blumenbach and Meckel, and endeavouring to show that it is
 merely  an  opinion on their  part  that corpora lutea may occur
 independent of conception,  and  that they do  not seem to have
 seen any instances, he refers to the  decisive  experiments  and
 opinions of Dr. Haighton, who observed,  in his  paper read be-

  * Blundell's Lectures, Lancet. N. S. vol. 4, p. 229.  Medico-Chirurgical Transac-
 tions, vol. 10, p. 263.  Dr. B. divided the uterus in rabbits, and allowed it to heal, so
 that at the line of division, the canal of the uterus became  shut up: In other in-
 stances, he made an incision through the vagina.  The rabbits admitted the male: In
 both  cases the wombs were evolved; corpora  lutea were formed,  but no fetuses,
 (Lectures,  Ibid. vol. 3, p. 258.)
  Dr. John K. Mitchell, in  his experiments on  rabbits, obtained similar results, al-
 though  he suggests the possibility of corpora  lutea being  a proof of intercourse
 merely. (Chapman's Journal, N. S. vol. 5, p. 256.)
  t Transactions of the College of Physicians of London, vol. 6, p. 425.   Sir E.
Home dissected a female who had  been impregnated a week before death.  The
 ovum was  found in the uterus, enveloped in coagulated lymph.  Two corpora lutea
were observable, and there were several cavities from which ova had previously made
their escape.  The os tincae was closed with a  thick jelly; but the opening to the
fallopian tubes was pervious. (Annals, vol. 9, p. 468; and vol. 11, p. 54.) 
DELIVERY.
253
 fore the Royal Society, that " no corpora lutea  exist in virgin
 animals; and that whenever  they are found, they furnish incon-
 testable proof that impregnation either  does  exist, or has pre-
 ceded."  He adds, that he has seen several of these virgin  lutea,
 as they are  unhappily called,  and has preserved several  speci-
 mens of them.   They differ, according to him, from those of im-
 pregnation, in the following particulars: 1. There  is  no promi-
 nence or enlargement of the ovary over them.  2.  The external
 cicatrix is wanting.  3. There are often several of them in both
 ovaries,  especially in patients  who  have  died  of  tubercular
 diseases.   4. They are  not vascular,  and cannot  be injected.
 5. Their texture  is feeble—never presenting the soft and gland-
 ular appearance so characteristic of the real:  And 6. They have
 neither the central cavity, nor  the radiated  cicatrix  which re-
 sults from its closure.*
   It is  hardly necessary to add,  that  Dr. Montgomery is a firm
 believer in the presence of a true corpus luteum being the pro-
 duct of conception-!
   I have endeavoured, in several parts of this chapter, to incul-
 cate the  idea,  that medical examiners should, in disputed cases,
 limit their opinion to the fact,  whether evidences of conception are
 present or not.  The law is so  constituted, that nothing further is
 required of them  on this point  An infant must  be found, in or-
 der to bring the charge of infanticide; and  in  all other instances,
 it  will be  sufficient  if  we prove previous  sexual  connexion,
 whether the  product has been an organized  fcetus or not.   The
 following case is calculated to  enforce the necessity of  confin-
 ing our opinion to this fact

  * Cyclopedia of Practical Medicine, ut antea.  It is evident that the common opi-
 nion is incorrect, that the number of children which a female has had, can  be ascer-
 tained by the number of corpora lutea in the ovary.
  t The following note of Dr. Dunlop, published in the second edition,—
  "A recent case has, in my opinion, completely overthrown the theory that even
 strong passions are necessary to the formation of the corpora lutea.  My friend Dr.
 Mackintosh, Lecturer on Midwifery in Edinburgh, has in his museum a prepara-
 tion taken from the body of a child, which he, in company with Dr. John Scott, dis-
 sected at  Pierceshill Barracks.  The subject was not above five years old, and the
 hymen of course was  entire.  She died of tubercular disease in the lungs; yet in
 her ovaries were numerous corpora lutea, as distinct as I ever saw them in the adult
 unimpregnated female." Dunlop. ****** ----js thus dismissed by Dr. Mont-
 gomery : " The only comment necessary to make on this statement, is simply to
 remark, that one real corpus luteum, as it is found in the * adult impregnated female,'
is fully as large, or even larger than the ovary of a child five years old; therefore it
is impossible that there  could in such a case be several of them."
  vol. i.                    22 
254
DELIVERY.
  Mrs. Cunningham, aged twenty-four,  and the mother of three
children, considered herself nearly four months  advanced in
pregnancy, when the rudeness of a licentious person required her
to make a  violent  exertion.  On  the succeeding day, she per-
ceived a slight discharge of blood from the vagina, which ceased
in about  twenty-four  hours.   A day thereafter,  it returned
with increase, and  continued (gradually  diminishing) for three
days.  All  this time, she suffered no pain, nor was she prevented
from managing her domestic  affairs.  There was a slight ten-
derness of the abdomen only.   At the conclusion of the .time last
mentioned,  she was seized with pains resembling those of partu-
rition, and  accompanied with a  profuse . haemorrhage.  Mr.  Le-
mon, a surgeon,  was called, and  on examining per  vaginam, he
found the os uteri dilated to the extent of half a crown, and a
bag protruding through it.  A fleshy cake, three inches in diame-
ter, possessing every character of a natural placenta, and having
a membranous  bag connected with it, was shortly thereafter
expelled.   The shape of  this mass was oblong.  On cutting into
the bag, which  was flaccid, the  contents gave an  appearance
similar  to what  is  presented on  the exposure of the abdominal
and thoracic viscera of a very young foetus.   But the expansion
of the placenta rendered the nature of the appearance evident.
Its  whole  surface  was  covered with  tumours.  There were
about twenty-one distinct, besides many inconsiderable ones, of
various size,  shape and colour, and some in clusters,  all seeming-
ly connected together by veins.  The largest tumour was equal
in magnitude to  a small walnut.   Some were of a  livid colour,
others fleshy brown, and  two  or three light yellow.  The livid
ones had generally condensed fat at the extremity;  and they, as
well as the brownish, contained coagulated blood.
  The woman, during the growth of-this mass in the womb, had
every symptom  of pregnancy—nausea, capricious  appetite, en-
largement  of the  breasts, prominent firmness of the abdomen,
and a cessation  of the  menses.  She had not, however, felt any
actual motion.
   Mr. Lemon remarks,  that  if  this female had died from hae-
morrhage,  and her death been made a subject of legal investiga-
tion, the womb would probably have exhibited all. the  proofs of
impregnation.  Even the placental mark would have been  pre- 
DELIVERY.                      255
sent,  and yet no fcetus, or umbilical  cord was formed in this
instance.
   The observations of the editors of the journal from which this
case is taken, are  a  satisfactory commentary on it.  This mass
was evidently the product of conception and impregnation. The
whole catalogue of  symptoms tends  to prove  it,  and  the only
circumstance against it, is the absence of a fcetus  and umbilical
cord.   " But this furnishes no conclusive argument, as there are
innumerable  instances of foetuses so exceedingly imperfect, that
their nature can scarcely be recognized;  and with a still more
imperfect organization, they degenerate into a mass like the pre-
sent"*   The placental mark, then, in  this instance, would have
been a satisfactory proof of conception.

II.  Of some medico-legal  questions  connected with  the subject  of
                           delivery.
   1. Can a  woman  be delivered without  being conscious of it ?
This question must be  answered in the negative, with, however,
some  exceptions.  Delivery is undoubtedly to a certain degree
independent  of the will, and  there may hence  be certain situa-
tions in which it will take place without the female's knowledge.
The administration of  narcotic  substances may cause  such  a
state;  as in the instance,  in 1641, of the Countess de Saint Geran,
who was plunged  into  a deep sleep by a narcotic beverage, and
during it, was delivered of a boy.   In the  morning she awoke,
and found herself bathed in blood, and the infant gone.  Her re-
lations had suborned individuals to remove it, in order to deprive
her of the pecuniary advantages of her situation-!  There is also
a class of diseases commonly called comatose, and accompanied
either with or without fever, during the operation  of which, de-
livery may take place without the  female's knowledge.   Hippo-
crates mentions a case, in a woman eight months advanced,
who,  on the fifth day of  a  typhoid  fever,  accompanied with
coma, fell into labour, and was delivered without being conscious
of it.   I will only add to these, the  account given by Dr. Hoyer,

  * Edinburgh Medical and  Surgical Journal, vol. 11, p. 96. "Case in which a
mass, resembling a placenta without a fetus, was discharged  from the womb.  By
M. Lemon, member of the Royal College of Surgeons, London." With- observations
by the editor.
  t Fodere, vol. 2, p. 10, from the Causes Celebres. The authors of this crime were
discovered, and the child was restored to its rights, in June, 1666, 
256                          DELIVERY.
of Mulhausen, of a female dying  in  labour, who was put on the

bier for interment, and while there, an infant was suddenly born.*

   These  examples  prove that  it  is possible  for a woman to be

delivered without being  conscious of it;  but  they at  the same

time show, that if some extraordinary and striking cause do not

intervene, the assertion is to be disbelieved.   The early pains of

pregnancy may be  mistaken for those  of  colic!—flooding may

commence during sleep; but it is  hardly credible that the whole

process of labour  and delivery may be gone through by a healthy

woman, and of sound mind, without her being aware of it.J

   2.  Can  a woman, if alone and  without assistance,  prevent  her

child from  perishing  after delivery ?   This is  a most important

question, and deserves our serious consideration, from its bearing

on the subject of  infanticide.

   There  are  undoubtedly many cases,  in which  an unassisted

  * Ibid. p. 11.  Mr. Shaw, in his Essay on Partial Paralysis, quotes the following
case from Dr. Cheyne's Essay on Apoplexy.  " A woman was attacked with apo-
plexy, and lay hemiplegic for two days—at the end of which time, she was delivered
of a living child, the uterus contracting in the  most  perfect manner, so as to expel
the fetus and secundines, and then contracting  regularly, so that the flooding which
might have been anticipated, did not take place."  (Journal Foreign Medicine, vol.
3, p. 20.)
  Dr. Montgomery cites several cases of delivery occurring during sleep.  They are
all cases of females who had had children previously, and in whom it is probable that
a single pain was sufficient.
  t " While lecturing on the subject of concealment of pregnancy, in the winter of
1823-4, I received the following1 extraordinary case, from my friend, Mr. M'Intosh.
' I was consulted about a married lady, in the spring of 1822, who was supposed to
be in a very bad state of health.  She had been attended  by Dr.----, and treated
for an affection of the spine and dropsy.  The husband of the lady grew impatient,
as she became daily worse, and the abdomen more and more distended.  He sent for
the family surgeon, who  suspected  it might be pregnancy, attended with peculiar
nervous irritability, and recommended that I should be called in to examine  more
particularly.   Accordingly I waited  on her, and as she sat on her chair, the nature
of the case became perfectly clear, as I distinctly perceived the motion of the foetus.
This  I mentioned, but the lady scouted the  idea.   I warned her to get baby linen
and dresses ready, which she did not do, so convinced was she that she was not
pregnant.  In six weeks afterwards, I was suddenly called and found the patient in
labour; and to demonstrate in the clearest point of view, that she had not believed
that she was in the family way, no nurse was  engaged, nor had any thing in the
shape of dress been  prepared for the child.  I told her  she was now in labour, but
she would not believe me.  Upon examination, I found the os uteri open, the mem-
branes protruding, and 1 distinctly felt the  head of the child.  The waters broke;
still she would not believe.   The pains  increased, the head of the child was  born,
but she would not credit her actual  situation, till she  heard the child cry and it was
put into her arms.  Both mother and child did well; and I am engaged to attend the
mother a second time in November,  1823.' "  Dunlop.
  X Fodere, vol. 2, p. 10.  Capuron, p. 129.  Dr. Asa B. Brown, of Somerset, Nia-
gara  county, kindly transmitted to me a case which occurred to him in 1830.   The
female was in labour with her first child, and was seized with puerperal convulsions.
It was deemed absolutely necessary to deliver  her, and this  was accordingly done.
After her recovery, she stated to Dr. Brown, that she had not any knowledge of the
birth of her child, 
DELIVERY.
257
female will be unable to prevent the death of her infant   Among

these, may be  mentioned,  very  rapid  and  early  delivery.  In-

stances of this nature occur to all  accoucheurs, and  Fodere re-

lates of his own wife, that a single pain brought forth  the child.

Such is the conformation of the  pelvis, and so powerful the ac-

tion of the womb, that the membranes  and  foetus are expelled

together.   Now a female taken thus, might be unable to prevent

the child from falling, and its death would ensue, if she remained

unassisted.*  Such a state of the parts is, however, very uncom-

mon in a  first  delivery,! and this is the one that commonly is

considered in  cases of infanticide.   If a woman has, in  a pre-

vious labour, experienced so rapid a parturition, it is her duty  to

guard against  its consequences, when a  second is  impending.

Another possible  circumstance is, that  a woman  may be taken

in labour and delivered while passing her faeces.    The pressure

of the uterus in the latter days of pregnancy, produces an incli-

nation of this kind, and even during labour it is very common.J


  *  Dr. Hunter mentions a case where the female was seized during the night, and
the child was born before he arrived.  She held herself in one  posture, to prevent
the child from being stifled, but although it had cried, yet on the arrival of Dr. Hun-
ter, it was found dead, lying on its face and covered with blood.
   Dr. Ramsbotham, (Lectures in London Medical Gazette, vol. 13,) also mentions
cases of rapid delivery, and where the child was with great difficulty saved.
   The following are fortunate cases:
   " The following case I had from Dr. Marshall. The wife of a bombardier of artillery,
while stepping out of her bed, in the ninth month of her pregnancy, dropped  the
child on the floor.  She had no warning of her approaching labour, and luckily the
child was unhurt.
   Another case I should be afraid to state, but that I had it from a gentleman of un-
questionable veracity.   "The wife of an  officer of a Scotch  Militia Regiment had
long been married  without having a child.  One day, while bathing her feet in her
bed-room, her servant heard the cries of a child; she rushed into the room and
found her mistress lying back in her chair in a swoon, and a new-born infant strug-
gling in the tub at her feet.  She raised  the child, and both it and the mother did
well.  In this case, neither the lady nor her husband had the slightest suspicion that
she was pregnant." Dunlop.            t Mahon, vol. 2, p. 381.
   X I apprehend that it is as frequent with cases of this description, to furnish mat-
ter for keen discussion, as to the guilt or  innocence of the female, as with any that
1 have mentioned.  An anonymous correspondent of the London Medical and Phy-
sical Journal, (vol. 8, p. 448,) mentions the instance of a lady, who being attacked
with diarrhoea towards the close of pregnancy, was one day seized on the night-stool
with a labour pain, and in a short time brought forth a child, before she was able to
rise and give the alarm.  He was immediately sent for, and rescued both  mother
and child from their perilous situation.  He adds, that if the female had gone to the
common privy, it would have been fatal to the child.  But in this case, the lady was
above suspicion—not  so with an  unmarried, seduced  female.   The remark of the
Editors of the Edinburgh Medical and Surgical Journal, answers the argument to
be drawn from such unexpected occurrences. " So sudden a delivery can only happen
to a person who has borne children before."   (Vol. 19, p, 454.)  But is it not possi-
ble for a similar case  to happen with a  first child ?  If so, it must have its  fuU
weight in cases of infanticide.  Dr. Davis gives us the following narrative:—
                                 22* 
258
DELIVERY.
But  delivery in this position may not only be fatal to the child,
but very injurious to the mother, by tearing off the umbilical cord,
or inverting the uterus.  Delivery may also  be  attended with
haemorrhage,  and  consequent debility, or with fainting or con-
vulsions, and the female be unable to assist her offspring.   These
are cases which do not often occur, and when they do, they leave
traces sufficiently evident—paleness, swoonings, the state  of the
pulse, and  of the  infant.*   A fourth case  is,  when the mother
being alone, and the child having its face to the sacrum, is deli-
vered with it  downwards.   In this position it  cannot breathe,
unless it be turned : and  it is well  known, that the  slightest sub-
stances impeding  respiration in a new-born infant, such indeed
as a portion of the bed clothes, or a piece of wet linen, will de-
stroy it.
  There are also some infants so weak at birth, that they require
the warm bath, rubbing with stimulant applications, &c. in order
to preserve their life.  An  unassisted  mother cannot of course
save  these.  It has also been suggested, that the female may be
suddenly delivered while  in  a standing  posture, and the  infant
falling, may be found  with a fractured skull.   In  such  a case,
however, we should look for a rupture of the cord, and a violent
haemorrhage consequent  on a forcing  away  of the placenta.!
The cord may also be wound  round the  neck, and thus prevent
respiration.
  Lastly, the infant may perish, and the mother not be able to
prevent, when the umbilical cord  has not been  tied  after being
cut,  broken or torn.   The first of these, however, is such a proof
of presence of mind, that we may justly be distrustful, if she de-

  Dr. Haighton in his Lectures on Midwifery, related the case of a female at the full
period of gestation, who was seized with a sudden and pressing call.  Living in the
country, she hastened to the garden.  The pit or cess pool of the vault was large
and deep.  On being seated, a violent paturient effort took place, and the child was
suddenly expelled. It fell and  was swallowed up  by the filth  below.  " Circum-
stances immediately transpired, which led to the arrest of the unhappy young woman,
and she was serit to York Castle to take her trial.  The medical practitioner of the
family in which she was servant, was  subpoenaed as a witness, and swore that it
was perfectly possible for women in labour to distinguish, and  that in fact they al-
ways did know, the difference between the  bearing down pains of parturition and
the calls of nature, however  pressing or painful, to empty the contents of the rectum.
On this most incompetent and criminally ignorant evidence, the unfortunate prisoner
was found guilty of the crime of infanticide and executed."  (Davis' Obstetric Me-
dicine, p. 24.)
  • Mahon, vol. 2. p. 383.                            ! Smith, p. 370. 
DELIVERY.
259
nies being afterwards  unable to tie it.*   It may be broken and

torn, as we have already stated, by the weight of the infant, and

the mother be unable to save it.   There are, however,  instances,

in which the  mother and the heroine  are  admirably combined.

The  wife  of a  goldsmith at Marseilles, was seized  in labour

while walking her room.   The  infant fell, and the cord broke.

She took  it  up and  called  for  assistance, but  was not heard.

Finding  that it  was  losing  blood by the cord,  she  compressed

it with her fingers, and held it so for  two hours, when she was

found fainting.   Her life, however, and  that  of the child  were

both preserved-!

   These are  the exceptions  to the general  doctrine that may be

laid down in  such cases, viz:  That every woman is more or less

acquainted with  the time when she is to be in labour,  and that it is

her duty never to be so far alone as to render assistance accidental.

Even during  labour,  the vast majority of females  make  known

their situation by their pains; and they will  only be suppressed

by those in whom shame and the fear  of dishonour are predomi-

nant passions. And it is a question of moment, whether  we should

feel that sympathy for  this sense  of shame, which  some authors,


  * The following remarkable case shows that it is possible for the division  of the
funis to " occur in such circumstances as to imitate precisely, the effects of criminal
violence, inflicted after delivery."  Mr. Chamberlayne of London relates of a patient
of his, who was taken so suddenly in labour, that the child shot forth from her with
such force as to separate the funis, which broke exactly in the right  place, and as
even as if it had  been cut with scissors; not so much as one drop of blood followed,
although the child was strong  and very lively.  (London Med. and Phys. Journal,
vol. 7, p. 284.)
  M. Meirieu relates the case of a female walking in her room, who was suddenly
seized with labour pains.  She took firm hold of the bed-post, brought herself nearer
to the ground, retained the infant by means of her clothes, and placed it on the floor.
The whole was the affair of an instant.  On examining the child  no trace of contu-
sion could be found, but the umbilical cord was broken at about four inches from the
ring, and the end drawn out  to a point.  (Quarterly Journal of Foreign Medicine
and Surgery, vol. 5, p. 634.)
  t Foder6, vol. 2, p. 31.  The following extract from a late writer on law, is directly
applicable to the question considered above.  " One thing  is very remarkable, and
occurs in most cases of concealment and child murder, viz: the strength and capa-
bility for exertion evinced by women in the inferior ranks shortly after child-birth—
appearances so totally different from those exhibited in the higher orders, that to
persons acquainted only with cases among the latter, they would appear incredible.
A mother, two or three days after delivery, walked  twenty-eight miles in a single
day with  her child on her back.  In the  case of A. Macdougal, 1823, it appeared
that she was sleeping in a bed with two other servants, but rose,  was delivered and
returned to bed without any of them being conscious of what had occurred.  Many
respectable medical practitioners, judging from what they have observed among the
higher ranks, would pronounce such facts impossible, but they occur so frequently
among the labouring classes as to form a point worthy of knowledge in criminal
jurisprudence."   (Alison's Principles of Criminal Law of Scotland, p. 161.) 
260
DELIVERY.
and particularly Dr. William Hunter, have inculcated in their
writings.  It is,  at all events, misplaced as  to time: and  the
female who destroys a human  being, and her own offspring, to
escape its  effects, should  have felt its  influence at an earlier
period.  " To the moral and political philosopher, Dr. Hunter
may appear to have exalted the sense of shame into the  principle
of virtue, and to have mistaken the great end of penal law, which
is not  vengeance, but the prevention of crimes."*   It  is  not
necessary,  however, to  enlarge on this point.   Circumstantial
evidence generally guides in the preliminary decision of it, when
accusations of infanticide are  made; and great stress is properly
laid, in disputed cases, on the  incidents of time and place, and of
situation and character.!

                          PART II.
   Delivery, as it respects the  child, may become a subject of
importance, both in civil and  criminal cases;  and instances  are
frequently occurring, in which the utility of properly understand-
ing its phenomena is clearly manifested.   The arrangement pro-
posed, was to notice,
  I. The signs of  the death of the child before or during  delivery.
   This subject may be agitated in civil cases, where the succes-
sion to an  inheritance is  questioned; or in  criminal  ones, as
when a pregnant woman is maltreated, and her offspring is sup-
posed  to have died  from  the injury.J  It is, however, of  the
greatest importance, from its bearing on the two great medico-
legal subjects of Abortion and Infanticide;  and I shall notice it
at this time as an introduction to them.
   During  pregnancy,  the  life of the fcetus is inferred,  from the
  * Percival's Medical Ethics, p. 84.
  t On this question, see Fodere,  vol. 2, p.  25; Capuron, p. 131; Smith, p. 365 to
377; Mahon, vol. 3, p. 381, &c. Cases of sudden delivery are noticed by most ob-
stetrical writers, and in many periodicals.  I will only add a few to those already
cited.  Two  cases by Mr. Tatham.  (London Medical Repository, vol. 21, p. 287.)
  One of these was with a second child, and not with a first, as it is incorrectly
stated in Medico-Chirurgical Review, vol. 5, p. 237.
  Cases  by Mr. Thomas.  London Medical and Physical Journal, vol. 52, p.  353.)
Blundell's Lectures.   (Lancet, N. S. vol. 1, p. 116.)—Davis, Ryan, &c. &c.
  % As in the following case given by Dr. Kennedy, (p. 208.)  A woman in the se-
venth month, was sent to the Lying-in Hospital, Dublin, to be examined whether her
child was, as she asserted, killed in the womb by certain blows and injuries inflicted
upon her by a female with whom she had a scuffle.  She described very accurately
all the reputed proofs of the child's death as being present. When, however, the
stethoscope was applied, the fetal heart's action was distinctly audible; and the an-
nouncement of the child's being alive dissipated all her hopes of legal vengeance, as
she appeared to calculate upon hanging her antagonist at least. 
DELIVERY.
261
good health  of the  mother; the progressive increase of the ab-
domen  in size,  and the motion of the fcetus being experienced.
These form strong presumptive evidence, but there are excep-
tions to all  of them.   Healthy females  may bring forth  dead
children, while sickly ones have produced living children.  The
increase of the  abdomen also  may be owing to a mole, or to
dropsy; while the irregularities that are  experienced  respecting
the motion of the foetus, are sufficient  to  render it very uncer-
tain.  In many cases, the mother has imagined  that she felt life
to the  moment of the  delivery of a dead child;  while, on the
contrary, I need hardly add, no motion, or a very slight one, has
been experienced for a considerable time previous to the most
favourable labours.
   The  same uncertainty attends the proofs of life during deli-
very.   The limpidity of the waters—the  regularity of the pains,
and their gradual increase in strength—the pulsation of the
heart and umbilical  cord of the foetus;  or, if it is not practicable
to ascertain  these last, the pulsation at the anterior fontanelle—
and the swelling, tension, and  elasticity of the presenting part,
together form an incontestable chain of evidence in favour of its
presence.  Separately, however,  they are susceptible of doubt.
The two first are uncertain; it may be impracticable to ascer-
tain the third; the occurrence of the fourth  is denied by  some
authors, and it may be wanting in children who are  apoplectic
or feeble, and who notwithstanding have  recovered after birth.*
The last is a very favourable sign; but death may ensue during
delivery,  and the congestion induced by  the  detention in utero,
preserve it.
   In  investigating,  on  the other hand,  the signs of the death of
the foetus, we must  refer, in the first place,  to  the causes that
may have induced it.  As to the  mother, these are  numerous.
The unhealthiness of her habitation; the mode of dress; the want
of food, or improper use of it; violent exercise; too great labour;
violent  passions of the mind, either of the exciting or  depressing
kind; venereal  excess; intemperance; diseases,  such as hae-
morrhage or convulsions; contagious disorders, such  as syphilis
or smallpox; falls, wounds,  and accidents generally; any inor-
dinate evacuation—and indeed all the causes of abortion, as enu-
merated by authors, may have produced  the death of  the infant.

  * It can, of course, only be ascertained when there  is a natural  presentation, and
hence is not always applicable. 
262
DELIVERY.
   The child may also be destroyed during labour, from that pro-
cess being  long protracted; from its being so difficult as to re-
quire instruments, or complicated with  syncope, convulsions or
haemorrhage;  from a morbid state of the placenta,  or a twisting
of the umbilical cord around its neck.
   It is hardly  necessary to add, that fatal as each of these causes
have respectively been at various times, yet children have often
survived in spite of them.

   The signs experienced  during pregnancy, of  the  death of the
foetus, are a want of motion in the child—the womb feels as if it
contained a dead weight, which follows the direction of the body
as it  moves to one side or the other; the navel is less prominent;
the milk recedes, and the breasts  become flaccid; the mother
feels a sense of lassitude  and coldness, accompanied with head-
ach and nausea.*  As equivocal signs, may be added, a pale-
ness  of  the face; the eyelids  having a livid circle around them;
the  presence  of a slow fever  and  melancholy,  and  a foetid
breath.
   These, if all present, form a strong  presumption in favour  of
the destruction of the offspring.  Individually, however, they are
liable to be mistaken  or confounded.   Subsidence of the tumour
is one of the natural  changes  that in all  cases  precede  labour.
The  breasts also do  not enlarge in some until advanced preg-
nancy, and of course we cannot draw an inference from their
state.  But particularly as to the motion of the  child, may error
arise.   The want of  it cannot be regarded as a certain proof of
death;  and the mother may mistake,  and indeed often has  mis-
 taken, action  of the abdominal muscles, spasm of the uterus, and
even hysteria, for it!
   Again, the  fcetus may  die,  and be retained in the uterus, with-
 out exciting any general or local disturbance.   The health will
 be good, and  there is nothing on which to found a suspicion, ex-

   * Mr. Travers in his " Further Inquiry concerning Constitutional Irritation" says
 that " if the child dies at the seventh month—from the period of its death, though
 the woman be not delivered for days after, the breasts are furnished in the same
 plenitude as if the child was born and alive.  This is  directly contrary to what
 writers on midwifery have asserted, viz., that the falling of the breasts and the fail-
 ure of the milk are never-failing signs of the child's death."  British  and Foreign
 Med. Review, vol. 2, p. 8.
   t Kennedy, p, 210. 
DELIVERY.
263
cept the suspension of  the ordinary proofs of progressive preg-

nancy.*
  Under such circumstances, the importance of auscultation in

proving the life of the fcetus, is strikingly shown.   If we can de-

tect by it a distinct foetal  heart, with or  without the placental

sound, there can be no doubt.   It is to be  regretted that the re-

verse is not so certain.   It requires familiarity with  the stetho-

scope, frequent  examination during the child's life, and attention

to the various doubtful circumstances to which we have  alluded

in a previous chapter,  to authorize  a decisive opinion. The cases,

however, are multiplying, where those who are acquainted prac-

tically with auscultation have predicted correctly; and in proof

of  this, I need only refer to the work of Dr.  Kennedy which I

have repeatedly quoted.  I will  only- add, that in  some cases, the

placental souffle  continues after the fcetus is dead;  but it is de-

scribed to be  more abrupt,  of shorter  continuance, wanting its

protracted terminating whiz, and generally confined to a  circum-

scribed spot.

   If actually dead, and long detained  in the uterus, putrefaction

takes place;   the  membranes lose their  vitality, and  blackish

foetid discharges shortly occur: This  is also a  rule, subject to

exceptions.  We have seen, when  noticing the subject of super-

fcetation, that  the dead  ovum  may remain for  months without

exhibiting any marks  of putrefaction.   It is much rarer to notice

this, when the uterus contains only a single fcetus-!

    The signs during  the  progress  of  delivery, of the death of the


   * Ramsbotham.  (Medico-Chirurgical Review, vol. 21, p. 309.)
   t The length of time during which a dead fetus may be  retained in utero, is un-
 certain : the usual period is from one to three weeks. Dr. Blundell says, " When the
 ovum dies in the earlier months, it may be retained till the close of pregnancy."—
 (Medico-Chirurgical Review, vol. 21, p. 343.)
   Dr. Porter, of New London, relates a case of this nature, where at the fifth month
 the abdomen gradually diminished, and at the eighth was scarcely more prominent
 than ordinary.  There could, however, be perceived a foreign body in the uterus on
 examination.  The breasts were distended  and there was an  occasional oozing of
 milk; but this disappeared about the ninth month, and the breasts diminished. The
 general health was good.  At the usual period of utero-gestation, without pain or
 much effort, the membranes protruded, and  were finally expelled with cramps and
 severe haemorrhage.  Enveloped in the broken  membranes, was a fetus of about
 five months, and  free from any marks of decomposition.   The placenta resembled
 in  form and consistence a sarcomatous tumour. Amer. Journal of Med. Sciences,
 vol. 17, p. 347. A somewhat similar case, by Dr. Galbiati of Naples, is given in the
 same Journal, vol. 18, p. 523; and a  precisely similar  one  by Dr. Hays, of  a
 fetus of five months, retained until the full time, and expelled entirely free from
 putrefaction.  Ibid. vol. 20, p. 535.  While two cases  of fetuses putrefying in
 utero, by Dr. Vassal of Paris, are related in Ibid. vol. 17, p. 528. 
264
DELIVERY.
foetus, are similar in some respects to  those already mentioned;
 such as the absence of  motion, and foetid  discharges.  Writers
 have also mentioned the state of the presenting part.  When the
 foetus is dead, it has an (edematous or  emphysematous  feel; the
 skin is soft, and easily torn; and the  bones of the cranium lose
 their natural connexion, and vacillate on one another.   The um-
 bilical cord also, if it can be  examined, is found without pulsa-
 tion, and in some advanced cases, withered and rotten.
   Although these  are proofs,  yet the  practitioner  should  not
hastily pronounce on them.  The foetid discharges or odour may
be owing to the premature passage of the meconium,  or to the
mixture of  a small quantity of blood with the uterine  discharge.
The former of these was at one time supposed to indicate death
with certainty; but it is now ascertained, that although it por-
tends danger, yet children have notwithstanding been born strong
and healthy.*   The state of the skin and bones may be the effect
of weakness, as also the looseness of  the epidermis.   Even its
livid colour is not infallible.  Vicq-D'Azyr mentions a case that
occurred at Breslaw, where the arm of the infant protruded from
the uterus, and was so cold and livid that it was  deemed gangre-
nous, and  was amputated.  Notwithstanding this,  the infant was
born alive three days after.!
   Dr. Blundell,  a very eminent man in his particular branch of
medicine,  after reviewing the  various signs, conceives that none
should  be  relied  on, except the three  following:—The cuticle
coming away from the head in large flakes, desquamating, as from
dead bodies in  the lecture-room.   This is very strong presump-

  * " We may, however, in general conclude, when the meconium does come away
in a natural presentation, that the state of the child is not without danger; and for
many years, I never saw  a child, presenting with  the head, born living, when the
meconium had come away more than seven hours before its birth.  But at length I
met with a case, in which the meconium was discharged for more than thirty hours;
at the end of which time, though the woman was delivered with the forceps, the child
was born healthy and strong.  And since that time, I have had many equally con-
vincing proofs, that the coming away of the meconium is a very doubtful  sign of the
death or dangerous state of the infant, whatever may be the presentation." (Denman, p.
395.) See also Belloc, p.  91. Capuron, p. 247. Burns's Mid. Note to chap. 7.
  t Fodere, vol. 2, p. 91. Baudelocque (vol. 3, p. 161,)  relates a case, where the
woman was two days in labour; the scalp of the child was loose, pendant, and in a
manner rotten: the cuticle and hair came away,and adhered to the finger. No mo-
tion had been felt for twenty-four hours; and yet on delivery with the forceps, the
child was living and healthy, except a superficial gangrenous scalp on the crown of
the  head, which soon healed.—A case strongly indicative  of the fetus being in a
putrid state previous to birth, but where it was born alive and survived, is related by
Prof. Nagele, Lancet, N. S. vol. 2, p. 70. 
DELIVERY.
265
  tive proof of death, although even not demonstrative,  for cases
  have been related, and among the rest, one by Dr. Orme, in which
  the cuticle had separated, in consequence of cutaneous disease,
  and the child was notwithstanding  alive.   " So rare, however,"
  he adds, " are these cases, that I should feel disposed in practice
  to look upon them as of no  account, were it not that human life
  is at stake."  The bones of the cranium being detached from each
  other, and floating, as it were, in the mollified brain.   Let it be re-
  collected, that  mere  displacement and solution  of  union, is in-
  sufficient.  They must be detached and  afloat   Thirdly the um-
  bilical cord (if it can be felt)  cold, brown, flaccid, and destitute of
  pulsation for half an  hour or an  hour.  This last, discriminates
  between the temporary loss  of pulsation, occurring in  a recent
  descent*
   We must recollect also, that the pressure occasioned  by a long
 and tedious delivery, may extinguish life.  The proofs,  now enu-
 merated, indicative of putrefaction, will, in that case, generally
 be wanting.   The motion of the foetus, which has lately been felt,
 will suddenly cease, and tumefaction and redness of the present-
 ing part will be observed.  Ecchymosis sometimes occurs, owing
 to a rupture of the vessels, and an effusion of blood into  the adja-
 cent cellular tissue.
   The application of the  stethoscope will tend to diminish  the
 number of doubtful cases.   It is, evidently, as valuable here, as
 in any  inquiry in which we have before recommended it!
   If the medical examiner be called immediately after  birth, he
 can have no difficulty in deciding on this question.   The body
 will be found to have lost its firmness and consistence—the flesh
 will be  soft, and  the  muscles easily torn—the skin  will exhibit
 marks of putrefaction, and will be of a purplish or brownish red
 colour—the epidermis is raised, and may be easily separated—a
 bloody  serum is  often effused in  the  cellular tissue and beneath
 the skin, especially about the cranium, and sometimes a similar
effusion is observed in the cavities of the chest and abdomen, and
their viscera are of a deep reddish hue.   The umbilical cord is
livid, soft,  and easily torn.   The  cranium and thorax are flat-
tened, and the membranes uniting the bones of the head are much

     * Blundell's Lectures on Midwifery, Lancet N. S. vol. 2, p. 161.
     t See Dr. Kennedy's Work, p. 242 to 258.
  VOL. I.                     23. 
266
DELIVERY.
relaxed, so that the bones are somewhat disunited—the brain also
is almost fluid, and has a foetid odour.
  It will readily occur, from a review of the remarks contained
in  this section, that the fact of the death of the fcetus before or
during delivery,  can be ascertained with considerable facility, if
the practitioner  be called at the proper season.  Unfortunately,
however, in  most  cases which.come before a court  of justice,
the delivery  has  been secret, and a greater or less space of time
has elapsed since its occurrence.  The infant is found dead.  The
proofs which we have now enumerated, are inapplicable or in-
conclusive, and a  further investigation  is required  to ascertain
the truth.  We hence come to the examination of  the  question
of Infanticide.*

   II.  Of the signs of the maturity or immaturity of the child.

  A knowledge of these is no less necessary, than of those no-
ticed in  the  preceding section.  The medical examiner,  in  all
cases,  should be well acquainted with  the indications that mark
the various epochs of fcetal life,  as well  as those which  prove
its arrival at maturity.   A sketch, therefore, of the  gradual de-
velopement of the fcetus, from the aera of its first formation, will be
proper in this place.   And I will premise, that the following sum-
mary is drawn from the observations of Aristotle, Hippocrates,
Riolan, Haller, Roederer, Meckel, Burton, Baudelocque, William
Hunter, Burns, Chaussier, Beclard, Capuron, Clarke, Merriman,
Sommering,  Tiedemann  and Devergie.   There are  some recent
authorities, which I regret that I have not been able  to examine;
and I would also remark, that in many cases, the observations are
to be taken as means deduced from extremes, and they are, there-
fore, liable to some variation-!
  From the time  of the first evidence of  impregnation to the
fifteenth day, the product of conception appears only as a gela-

 * The authorities on  this section, which deserve attention, are, Denman, p. 391 to
399; Capuron, p. 234, &,c.; Hutchinson, p. 17; Fodere, vol. 2, p.  81; Smith, p. 315;
Belloc, p. 91. Dr. Jaeger's dissertation on this subject, (in Schlegel, vol. 5, p. 23,)
may be  consulted with  great advantage.  Several cases are related by the author,
where he examined infants dead before birth, with a direct view to the question now
noticed.
  t Dr. Pockels, of Brunswick, has given  " a contribution to the history of the de-
velopement of the human embryo, in the first three weeks after conception."  (See
Medico-Chir. Review, vol. 8, p. 575.) 
DELIVERY.
267
tinous, semi-transparent, flocculent  mass,  of a  grayish colour,

liquefying promptly, and presenting no distinct  formation,  even

by the aid of the  microscope.*   It  measures, at fourteen days,

one-twelfth  of an  inch in length  (Pockels);  and at three weeks,

one-tenth  of an inch: At thirty days, it  has the size of a large

ant, according to Aristotle ;  of a barley-corn, according to Bur-

ton ; and  of a house-fly, according  to Granville.  Baudelocque,

however,  observes that it  is not  larger than the malleus of the

tympanum.   Its length varies from three to five lines.   At six or

seven weeks, its length is almost  ten lines.    The form and linea-

ments  of  the  principal organs, and the place from which the

members  are to arise, can now  be  observed, and it is  equal in

size to a small bee.   At  this time also, the fluid  contained in the

membranes is much heavier than the  embryo.   At two months,

the length is about two inches, and its weight, nearly two ounces-!

This is the usual statement  Maygrier, however, puts the length

at four inches, and Devergie,  at  from sixteen to eighteen lines,

while the  former states the weight at five drachms, and the latter

at from two to four.   All parts are perfectly distinct, and many


  * The general statement is, " that the ovum cannot be  discovered with the naked
eye, or by the microscope, in less than  twenty-one days  after conception.  On the
other hand, Sir E. Home has very lately examined the uterus of a female who had
been impregnated only eight days previous, and^in which he found an ovum of a very
minute size."  (Gooch's Midwifery, p. 88.) " The embryo may be perceived with
the naked eye, at the fourteenth day after conception."   (Granville on Abortion,
p. 10.)
  Velpeau, (Embryologie, p. 50,) and I believe, some other authors, doubt the possi-
bility of the  first of these statements, and question whether it was actually an ovum
that  was seen by Sir E. Home.  The best opinion, however, would seem to be in its
favour.  See Edinburgh Medical and Surgical Journal, vol. 41, p. 407,  and Ryan's
Midwifery, p. 67, who quotes Meckel's  assertion, that the embryo can  be observed
on the fifth day after conception.  Velpeau (Embryologie,) p. 51,) says, that  he has
seen three ova, which did not exceed twelve days. They  were all of the same form,
and  of the size of a large pea—and this is the earliest period, so far as his experi-
ence goes, at which the ovum can be discerned.
  I  cannot  omit in this place  referring to a very curious case, in which the ap-
pearances of an apparently impregnated uterus, with its appendages, were examined
immediately after the first coition.  The female poisoned  herself the next morning.
The dissection is given by Dr. Bond of Philadelphia.  (American Jour. Med, Sci-
ences, vol. 13,  p. 403.)
  t As an illustration of the diversity to which I have referred, I quote the follow-
ing from Dr.  Granville's recent work  on Abortion, (p. 11.)  "At two weeks, it
weighs twenty grains, and is one inch long.  It weighs an ounce and a half at three
weeks, and measures three inches; between which and the sixth month, it increases
in dimensions from three to six or nine inches, and  in weight, from one ounce and
a half to one pound."   Dr. G. states these  to be averages of minute and accurate ob-
servations made by Autenrieth, Soemmering, Bichat, Pockels, and Carus, and con-
firmed by his own observations. 
268
DELIVERY.
points of ossification are observed  in the head, trunk and  mem-
bers.  Sometimes the  male  sex may be  distinguished.  At the
third month, it is said  to average three ounces in weight.   The
following however, is given by late examiners,
                              Weight.                Length.
     Hamilton,  --------------------     3 inches.
     Maygrier,  -     -     2h ounces,    -     6 inches.
     Devergie,  -    -     1  to l£ ounces,     2 to 2i inches.
     Burns,      -    -     2  ounces,      -     3 inches.

   The nose and mouth are formed, and the features of the face
become  more  distinct.   The  eyes are  shut, and the eyelids ad-
here together—the  head is longer  and  heavier than  the rest of
the body—the umbilical  cord is formed—the  genitals are  dis-
tinct—the penis and clitoris are relatively very large—the nym-
phae are projecting,  and  the  labia very thick.*   At the fourth
month, the fcetus  is from five  to six inches long, and weighs from
four to five ounces.   The external  parts all develope themselves,
with the exception of the hair and nails.   The  great relative pro-
portion  of  the  fluid of the  membranes disappears,  and the fcetus
nearly fills the cavity of the uterus.!   During the fifth month, the
  * Velpeau asserts, that the umbilical cord begins to be formed during the first
month of gestation.  (American Journal of Medical Sciences, vol. 14, p. 402.)
  t This is the period which demanded investigation in the recent trial for the mur-
der of Sarah M. Cornell.  " The alleged date of the conception was the 30th of Au-
gust; the last appearance of the menses on the 21st of August, and death took place
on the 20th of December. The foetus weighed five ounces, and measured eight inches
in length.  The question arising upon  these facts was, whether it was most proba-
ble that a foetus of three months and twenty days should have attained the above size
and weight, or that menstruation could continue after  conception had taken place."
(Boston Medical and Surgical Journal, vol. 8, p. 340.)
  I have already noticed the latter in its bearing on this subject, and need only add,
that if it be deemed most probable, it would go  to prove that the conception did  not
take place at the time alleged, and thus tend to relieve the prisoner from the imputa-
tion of paternity.  In addition to the circumstances mentioned, it must be  added,
that neither nails nor hair were found on the fcetus.
  On the trial, Dr. Parsons stated, that he had examined twelve authors on this sub-
ject, and that the average deduced from them was, that at three months, the length
of the fetus was between three to four inches, at four months five inches, and at five
months eight inches.   Beclard was the only one who gives eight  inches at four
months.
  As this subject has thus become peculiarly interesting, I will quote from  indivi-
dual authors:
                            Weight.                        Length.
    Capuron,  -    -    .     4  to 6 oz.....5  to 6 in.
    Orfila,    -    .    .     5  to 7 "    -    -   -    -     6  to 7 "
    Ramsbotham,   -----------------end of 4th month,         5 " 
DELIVERY.
269
motions of the fcetus are felt by the mother.   The length is from
seven to  nine inches, and the weight, nine or ten ounces.   The
brain is pulpy, and is destitute of circumvolutions or furrows.   The
external  ear is completed  about  this  time, although its  shape,
which is  like that of  a gently depressed  circle, differs  from the
ear after birth.   The nails are distinct*   The hair begins to ap-
pear.
   In the  sixth  month, we begin to find some traces of fat under
the integuments, where previously nothing but a mass of gelatine
had been observed.   The head also, which before had been pro-
portionably large, becomes smaller in comparison with the body.
It is now, however,  large and soft, and the fontanelles are much
expanded.   The  brain acquires rather more consistence, but  is
still easily  dissolved; and the pia mater  seems  only to lie  over
its surface, being separated with great facility.   The skin is  very
fine, pliant, thin, and of a purple colour, especially in the palms
of the hands, the  soles of the feet, the  face, lips, ears, and breasts.
                           Weight.                        Length.
    Maygrier, -   -    -   7 to 8 oz.....        8  in.
    Hamilton, -
    Velpeau,
Gardien,
Burns,
Devergie,
above        5
        5 to 6
            4
            5
                          2£ to 3 "     -    -    -    -    5 to  6  "
Briand (2d edition, p. 128,) says, that at four and a half months, it is six or seven
inches long, and weighs from five to seven ounces.
  See also Dunglison's Physiology, vol. 1, p. 356.
  * The length of an embryo at the end of the fifth month, is, according to Sommer-
ing, ten inches; while Dr. Burns and Dr. Hamilton do not allow that it is more than
six or seven. (Supplement to Encyclopedia Britannica, vol. 1, p. 256, Art. Anatomy,
by Dr. Gordon.  Craigie's Anatomy, p. 76.) Dr. Dewees agrees with Burns as to the
length, and also observes, that the above weight is too great.  (Midwifery, 3d edi-
tion, p. 93.)  Lecieux, however, whose opportunities for examination have been very
extensive, says, (p. 12,) " D'Apres un grand nombre de recherches, d'observations
recueillies k I'Hospice de la Maternite, et comparees a celles que l'on trouve dans
plusiers ecrivains, on peut regarder les resultats suivans comme le terme moyen etle
plus ordinaire de la grandeur des fetus depuis la fin du cinqueme mois jusqu'a la fin
du neuvieme:
                              Longueur.
        A 5  mois,    -    -    -   255 millimetres, ou
          6  " -    -    -    -   325    "    -   "
          7  " -    -    -    -   380    "    -   "
          8  "  -    -    -    -    440   "    -   "
         9  » -    -    -     -    488    "    -   "
  Devergie and  Maygrier give the following numbers:
                             Weight.
    Devergie,    -    -    -    5  to 7 ounces,   -
    Maygrier,  .-    -    -    1 pound,   -    -    -
                                23*
12 14 16 18	pouces. u
Length.	
6	to 7 inches. 10 inches
 
270
DELIVERY.
 In males, the scrotum is slightly developed, and of a bright  red
 colour; and the testicles  are still in the abdomen.  In females,
 the vulva is  projecting, and the labia separated  by the protube-
 rance of  the clitoris.   The hair on  the head is very thinly dis-
 persed, short, and of a white  or silvery colour—the eyelids are
 closed; the  hair on the eyebrows  and eyelashes but thinly scat-
 tered, and the pupil is  closed by a membrane.   The  lungs are
 very small, white, and  compact.   The  heart  is  large, and the
 liver very large, and situated  near the  umbilicus—the gall  blad-
 der contains  only a small  quantity of  a nearly colourless fluid;
 and the meconium is small in  quantity, and  is found only in a
 part of the large intestines.   The  bladder  is hard  and pyriform,
 and has a very small cavity.  The ordinary weight of the foetus
 at this time,  is from one to two  pounds; and its length from nine
 to twelve inches*—the middle of which is at the abdominal extre-
 mity of the sternum.']
   At the  seventh month, all the  parts, both  external and internal,
 are still  more developed.   The skin  assumes  a  rosy hue, and
 becomes  more dense;  and it  is covered with a sebaceous fluid,
 so as to form a whitish, unctuous covering.  The eyelids are no
 longer united, and the  membrana pupillaris separates, so as  to
 form the  pupil.J   The  cerebral pulp becomes  more  consistent,

  * Eight or nine inches and about one pound. (Burns' Hamilton.) The various quo-
 tations from Dr. Hamilton are copied from Blundell's Midwifery.
                            Weight.                      Length.
    Devergie,  ...   1  pound,    -    -    -    9  to 10 inches.
    Maygrier,  ...   2  pounds,    ...        12 inches.
    Lecieux,   ...---------...        12 inches.
  tin the Quarterly  reports of the New-Town Dispensary, (Edinburgh,) there are
two cases mentioned, which it will be proper to add in this place.  A child, supposed
to be advanced six and a half months, lived eleven  days.  On the fifth day after its
birth, it weighed two pounds nine ounces and three quarters avoirdupois.  Another,
probably at the sixth  month, lived fourteen hours—weighed two pounds four and a
half ounces English, and measured thirteen and seven-eighths inches.   (Edinburgh
Medical and Surgical Journal, vol. 12,  p.  249, 526.)
  X There is considerable diversity of opinion concerning the constancy of this phe-
nomenon. Cloquet says, that  in the foetus of the ninth month, the  little arterial
circle of the iris, which is formed after the rupture of the membrana pupillaris, and at
the cost of its vessels, is seen placed on the very edge of the pupil; and often, even
in the new-born child, some of its vessels still advance beyond the circumference
of  this opening.  He has seen it ruptured even at  the sixth month, and adds, that
it is seldom found entire at the eighth.  On only one occasion, did he discover it in
a full grown fetus, and then  it was broken  in  the middle.  (Quarterly Journal of
Foreign Medicine and Surgery, vol. 1,  p.  64; and Eclectic Repertory, vol. 9, p. 190.)
  Dr. Jacob of Dublin, on the other  hand, rejects the above opinion, as he has
usually found it present in most new-born infants.  He says the vessels are at first 
DELIVERY.
271
 and its surface is a little furrowed, and adheres somewhat to the
 meninges.  The  meconium increases in quantity—the hair on
 the head is longer  and takes  a deeper hue.  The nails acquire
 more  firmness.   Weight  from  two  to three  pounds.  Length
 from twelve to fourteen inches.   (From two to four pounds, and
 twelve inches. Granville.  Between eleven and twelve  inches.
 Hamilton.  Three to four pounds, and  eleven to twelve  inches.
 Devergie.  Two to three pounds, and fourteen inches.  Maygrier.
 Fourteen inches.  Lecieux.)   The middle of the  body is  nearer  to
 the sternum than to the navel.*
   At the eighth month, the skin has  acquired more  density, and
 becomes whiter; it is covered  with very  fine and short hairs,
 and its  sebaceous covering is  more apparent.   The  nails are
 firmer;  the hair  of the head longer and more coloured.   The
 breasts are often projecting, and a lactiform fluid may be pressed
 from them.  The testicles in males are frequently engaged in the
 abdominal ring.  In females,  the vagina is covered with a trans-
 parent mucus.  The groove in the cerebral substances gradually
 become more  marked; and the  spinal marrow, pons varolii, and
 medulla  oblongata, acquire a remarkable consistence  and even
 firmness.  The lungs are of a reddish colour—the liver preserves
 nearly its former relative size, but it  is  more  remote  from the
 navel—the  fluid in the gall-bladder is of a yellowish colour, and
 has a bitter taste.   The weight at this time is from three to four,
 and sometimes even five pounds.  Length, sixteen inches or
 more.  (From four to five pounds and  seventeen inches. Gran-
 ville.   From  fourteen  to  fifteen inches.   Hamilton.   Four to
 five  pounds  and  thirteen to  fifteen  inches.   Devergie.  Four
 pounds and sixteen inches.  Maygrier.   Sixteen inches. Lecieux.)

 obliterated, and then the membrane is absorbed.  Professor Tiedemann is said to
 have repeated  the  experiments of Dr. Jacob, (injecting the membrana pupillaris at
 the full time,)  and confirmed their accuracy.  (Anderson's Journal, vol. 1, p. 110.
 American Journal of Medical Sciences, vol. 1, p. 192.)
  • We owe our knowledge of this test of ascertaining the age of the fetus by
 taking its length,  to Chaussier; and much reliance has been placed on it.  I find,
however, that its accuracy is questioned by Mende, who observes as follows: " The
 middle point by no means corresponds to the same part of the body in fetuses
of the same age, a fact for which we might be prepared by considering that the
several sizes of the fcetus depend, now on its large head and neck, now on the trunk,
and again on the magnitude of the limbs. This I have verified by numerous mea-
surements, taken with great care and  pains, and the conclusion I have arrived  at
is, that the directions laid down by Chaussier are uncertain for  practical purposes;
and more particularly, for those of the  medical jurist."  Cummin's Lectures  in
London Med. Gazette,  vol. 19, p. 68. 
272
DELIVERY.
The middle  of the  length  is  nearer to the navel  than to the
sternum.
  At the ninth month, ossification is more complete—the head is
large, but it has  a considerable degree of firmness.   The bones
of the cranium, although movable, touch each other with their
membranous margins—the fontanelles are smaller; the  hair is
longer, thicker, and  of a deeper colour; and the nails become
more solid, and prolonged to the extremity of the fingers.  The
circumvolutions on the surface of the brain are more numerous—
the cineritious portions begin to be distinguished by their colour;
and although the lobes which compose the cerebrum, retain their
former  softness, yet the cerebellum  and the basis of the cere-
brum, have acquired a remarkable consistence.  The head mea-
sures longitudinally, from the forehead to the occiput, four inches
to four  inches  and  a quarter, and between  the  parietal protu-
berances, from three and a half to four inches.   Of 60 male and
60 female infants, born at the  full  time, whose heads were mea-
sured by Dr. Clarke, the circumference passing through the occi-
pital process and the middle of the brow, was on an averge, 13.8
inches, while the arch from ear to ear, over the crown, was 7.32
inches.*  The  abdomen  is  large  and  round.   The  lungs  are
redder and more voluminous.  The canalis arteriosus is large,
and its coats are  thicker  and denser than formerly.  The meco-
nium fills nearly the  whole of the intestines, and the bladder  con-
tains urine.   In fact, the digestive apparatus, the  heart and  the
lungs, are in a state fit  to  commence  extra-uterine  life.  The
length varies from nineteen to twenty inches or more—the  middle
of which is at the navel, or a very little below.]
  The recent observations made by Tiedemann, Serres, and the
Wenzels, on the brain of the  fcetus, may most  conveniently be
arranged together in this place.  At  the fourth week, the mass
which  corresponds  to the head in the embryo, is quite transpa-
rent,  and contains  a limpid  fluid.  At the seventh and eighth
weeks, the form and disposition of the brain and spinal cord can
be distinguished;  and the  dura mater is also observed,  adher-

  * Craigie's Anatomy, p. 76.  One measured 15 inches in circumference, and one,
eight and a half inches from ear to ear; but none were under twelve inches in the
one direction, or six and a quarter inches in the other.
  f Hutchison, p. 6 to 14.  Capuron, p. 165 to 173.  Fodere, vol. 2, p. 149. Burns,
p. 114 to 118.  Devergie puts the length at from sixteen to eighteen inches, and the
mean weight at six and a quarter pounds.  Lecieux, the length at eighteen inches. 
DELIVERY.
273
ing to the inner surface of the skull.  During the third month,
the tubercula quadrigemina, the optic  thalami and corpora stri-
ata are developed; and  in the eleventh week, the cerebellum
and the hemispheres were recognized.  At the fourth month, the
tuber annulare  and the  pituitary  gland were  observed.   The
corpus callosum, in the sixth month,  is only half as long as the
hemispheres  of the brain.  The choroid plexus is formed in the
seventh month, and the corpora olivaria do not protrude till be-
tween the sixth  and seventh, but the corpora pyramidalia are
fully  formed  a  month  sooner; and  in both,  the protrusion is,
owing to the developement of cineritious matter. It is not till near
the termination of pregnancy, that the cineritious substance  is
formed in the spine, or even very manifestly in the convolutions
of the brain.*
   The Wenzels found the following proportionate increase of the
brain in their investigations: In an embryo of five months, they
found the  brain  to weigh 720 grains, of  which the cerebrum
weighed 683 grains, and the cerebellum 37 ; being in the propor-
tion  of 18|f to  1.  At  eight months, the respective numbers
were,............  4960,  4610,  350, or as 13T6T to 1.
At the full time,......  6150,  5700,   450,  or as 12f to l.f
   The observations of M. Beclard on  the skeleton, may also be
stated; as its increase is more regular  than  that of the softer
parts, and its appearance may afford important evidence in cases
which vary from the ordinary state.
   " After  two months have elapsed  from the  period of concep-
tion,  the  skeleton is about four inches and three lines in length,
that  of the spine being two inches: at three months, the former
is  six inches, and  the  proportion  of the spine as two and two-
thirds to six:  at four months and a half, it  is nine  inches,  and
the spine four: at six months, twelve inches, and the spine  five:
at seven and a half months, fifteen inches, the spine six and one-
third : at  nine months,  or the period  of birth,  it is ordinarily
from  sixteen  to  twenty  inches  in length, or at a  medium of
eighteen inches;  and the spine is in the proportion of seven  and
three-fourths  to  eighteen,  to  the whole length  of the  body.

  * Edinburgh Medical and Surgical Journal, vol. 19, p. 456; vol. 23, p. 81, &c.
  ! Lawrence's Lectures on Physiology, p. 170.  See also Dr. Copeland's Notes  to
Richerand's Physiology, Appendix, p. 56, " On the formation of the spinal marrow
and brain." 
274
DELIVERY.
These calculations were  made from observations on about fifty
foetuses, at each of the periods above indicated.
  " Each vertebra, consisting originally of a section of a  solid
cylinder, and  a ring furnished with several apophyses,  is, in ge-
neral, formed by three primitive points of ossification; the  one
anterior, which by  its developement, forms the body or solid
part of the bone; and two lateral ones, which constitute the
apophysarial masses, and which, uniting together with the for-
mer,  constitute the annular structure.  Besides these,  each ver-
tebra is completed by several secondary points of osseous deve-
lopement.
  " At about the sixth month of intra-uterine life, two points of
ossification are found in the second  cervical vertebra, one situa-
ted above the other.  Towards the  seventh month, the superior
point, which answers to the odontoid  process, is larger than the
inferior, which relates  to the body  of the  bone.  At about the
eighth month, the transverse processes  have begun to ossify in
the first of the lumbar vertebrae.  At the time of birth, ossifica-
tion has commenced in the body of the  first cervical vertebra,
and also in the first bone of the coccyx.   At this age the body
of the fourth  lumbar vertebra, which is the most voluminous, is
three lines in depth and six in breadth.  At the same period, the
lateral portions of the six superior dorsal vertebrae begin to unite
together, so  as to form a ring posteriorly to the bodies of these
bones.  The  lateral  arch of the second, which is the largest,
forms a chord of seven or eight lines."*
   The weight of the fcetus  at the full  term of uterogestation, has
been the subject of numerous observations, and as a preliminary
remark, it must be noticed, that this differs according to the con-
formation and habits of the parent and sex of the child.  Healthy
females residing in the country, or engaged in active occupations,
have  generally the largest children.  Male children also, ge-
nerally weigh more than female ones.   The diversity extends
 also, as we shall see, to various countries.
   In  Germany, Roederer found the weight in one  hundred and
thirteen cases,  to vary from  seven to eight pounds, and he lays
 it down as a rule, drawn from his  observations, that it is rarely
* Hutchinson on Infanticide, pages 12, 13, 14. 
DELIVERY.
275
less than six pounds.*  Dr. Hunter states that Dr. Macauley ex-
amined the bodies of several thousand new born and perfect chil-
dren at the British Lying-in Hospital, and  found that  the weight
of the smallest was about four pounds and the largest eleven pounds,
but by far  the greater proportion was from five to eight pounds-!
Dr. Joseph Clarke's inquiries furnished similar results. The greatest
proportion of both sexes according to him,.weighed seven pounds,
yet there were more males than females found above, and more
females than males below that standard.  Thus out of  sixty males
and sixty females, thirty-two of  the former  and twenty-five of the
latter, weighed seven pounds, and there were fourteen females,
but only six males who weighed six  pounds.  On the  other hand
there were sixteen males,  but  only eight  females who weighed
eight pounds.   Taking then the average weight of both sexes, it
will be found that twelve males are as heavy as thirteen females.
The exact average weight of  male children, according  to Dr.
Clarke, was seven  pounds five  ounces and seven drachms, and
that of female, six pounds eleven ounces and six drachms.J
   Dr. Clark  of Dublin, found  the weight to vary from four to
eleven pounds.   Dr. Merriman  states in his lectures,  that he de-
livered one which weighed fourteen  pounds (it was born  dead;)
and Dr. Croft delivered one alive, weighing fifteen pounds.§
   In France the weight  seems to be less  than  in England.  Of
1541 examined by Camus, the greatest weight was nine pounds;
and of this there were sixteen instances—the ordinary, from five
to seven, and the average, six pounds and  about a quarter: there
were thirty-one instances in which it was as low as three pounds.
Baudelocque, however, states that he has seen two of nine  pounds
  * Bose de Diagnosi vita fcetus et neogeniti, in Schlegel, vol. 3, p. 23.  I have se-
lected this as the most accurate account of Roederer's observations, as there is a
discrepancy among the writers that notice  him. Fodere (vol.  2, p.  153) says the
weight, according to his table, is from six to seven and a half pounds, and Hutchin-
son (p. 15) from five to six and a half.
  t Hunter's Anatomy of the Human Gravid Uterus,  p. 68.
  t Phil. Transactions, vol. 76, p. 349.  Dr. Clarke also mentions the following ob-
servations as made by Roederer. The  placenta of  a male was found to weigh, on
an average, one pound two ounces and a half, whilst  that of a female  weighs half an
ounce less.   Female children, who at the full  time  weigh under five pounds, rarely
live; and few males, who even weigh five pounds thrive.  They are generally feeble
in their actions, and die in a short time.
  § Hutchinson, p. 15.  At a meeting of the Westminster Medical Society in Lon-
don, held Dec. 1830, Mr. Jewell related  a case in which the weight of the child was
twenty pounds.  He stated it on the " authority of an extremely intelligent midwife,
of whose veracity no doubt could be entertained." (Lancet N. S. vol. 7, p. 410.) Dr.
Ramsbotham (the father) delivered a child weighing 16£ lbs. avoirdupois,  (London
Med. Gazette, vol. 13, p. 551.) 
276
DELIVERY.
 and three quarters, one of twelve, and another of thirteen.   The
 last, he adds, had several teeth well advanced and ready to cut.
 On the other  hand, he had delivered some at the full time, who
 weighed but five and four and a half pounds, and several indeed
 only three pounds, and three quarters.   These were more com-
 mon than those of nine pounds, and grew to as great a size after
 birth.*  Subsequent observations on twenty thousand children, at
 the Hospice de  la Maternite at Paris, show  that the average
 weight of the fcetus, at the full time,  is there about six and one
 quarter pounds.  The extremes varied from ten and a half pounds
 (which  was  the highest) to three pounds.!  Capuron mentions
 that  he  has  seen  two instances  where the  children weighed
 twelve pounds.|
   At the Lying-in Hospital at Florence, of 506 children born in
 eight years, (from 1816 to 1824,) the heaviest weighed 16 pounds
 (the Tuscan weight of  12 ounces) and 4  ounces; the smallest
 born  at the full period, weighed five pounds; the majority about
 ten pounds.^  In the Obstetrical Institution  at Pa via, of 116  chil-
 dren  born in two  years, 14 pounds  6  ounces  was the greatest
 weight, and 5 pounds the  least||  In the  Royal Lying-in  Insti-
 tution at Dresden,  Professor Carus reports 225 children, born

  * Baudelocque's Midwifery, vol. 1, p. 256.
  t Lecieux, Considerations sur l'Infanticide, p.  9,12.
  The following table, taken from Burns'  Midwifery, edition  of 1823, is somewhat
different in its results from what is given in the text, and I do not know how to re-
concile them, unless to suppose that they were taken at  a later period.  It purports
to be the respective weights of 7.077 new-born children, accurately ascertained at the
Hospice de la Maternite :
                   34 weighed from 1 to 1J pounds.
69	--- - 2to2|
164	--- - 3 to 3|
396	- - - - 4 to 4|
1317	--- - 5 to 5|
2799	- - - - 6 to 6|
1750	- - - - 7to7|
463	- - - - 8to8|
82	.... 9 to 9£
3	. . . . 10----
7077	
  The following, from Dunglison's Physiology, vol. 1, p. 355, is important to be no-
ticed in accurate investigations.  " The Paris pound, poids de marc of 16 ounces.
contained 9216 Paris grains, whilst the avoirdupois contain only 8532.5 Paris grains.
The English inch is 1.065977 Paris inch."
  X  Capuron, p. 172.  Cranzius says he had seen one fetus weighing twenty-three,
and  another twenty-seven pounds ! !
  §  Anderson's Quarterly Journal of Medical Sciences, vol. 2, p. 101.
  ||  Ibid, vol. 2, p. 100; and Quarterly Journal Foreign Medicine, vol. 5, p. 330. 
DELIVERY.
277
during 1827.  The weight varied from 4^ pounds to 10^ pounds.*
In the  same institution during 1833, 314 children were born, the
heaviest was  10  pounds, and the lightest 2^.  In 1834, of 242
children born, the heaviest was 9 pounds, the lightest 2 pounds-!
In the Midwifery Institution at  Stuttgard, from 1828 to 1833,
there were 572 births; 281 boys and 291 girls.  The mean weight
was  6 pounds 13J ounces.J  At the Lying-in Hospital at Moscow,
in 44 cases of both  sexes, Richter found the mean weight to be
9T:T pounds:  minimum 5 pounds, and  maximum 11 pounds.   At
the Lying-in Hospital of St. Peter, in Brussels, (I presume,) Que-
telet found the mean weight of 63 males born at the full time, to
be 6^ pounds, (3-20 killog.) and of 56  females, to be 5Tf pounds:
mean, 6/^ pounds.   The maximum in  the male, was 9T3g pounds;
in the female, 8Js- pounds:  the minimum in the male, 4yf pounds;
in the female, 2T\ pounds.^
   In the first edition  of this work, I  stated the opinion of my
colleague,  Professor Willoughby,  that the average  weight in
this country exceeds seven pounds.   Professor Dewees decidedly
agrees to this, as the result of his experience.   He has met with
two  ascertained cases of fifteen pounds, and several which he be-
lieves to be of equal weighty  Dr. William Moore, of New York,
had  several cases, where the weight was twelve pounds each; and
an instance occurred in that city, in 1821, where the fcetus (born
dead) weighed sixteen pounds and a half.^1
   The most correct deduction probably from these observations,
is to allow the average to vary from five to eight pounds.**
   When there are  two children in utero, the weight of each
individual is generally less than that of a single foetus, but their
united  weight is greater.   The average weight of twelve twins,
examined by Dr. Clarke, was eleven pounds the pair, or five and
a half  each.   Duges, from  a review of the Registers at Paris,
found that, out of 37,141 accouchemens, there had been 36,692
single births, 444 twins, and 5 triplets.   The twins averaged four

  * Lancet, N. S., vol. 3, p. 648.
  f British and Foreign Med. Review, vol. 2, p. 274.
  X Lancet, N. S., vol. 18, p. 344.  Report  by Dr. Elsaesser.
  § Annales D'Hygiene, vol. 10, p. 12-13.
  II Dewees's Midwifery,  3d edition, p. 89.
  IT New York Medical and Physical Journal, vol. 2. p. 20.
  ** " There  is a good deal of difference in the weight of the fetus, being, I believe,
about seven pounds—some, especially if born prematurely, weigh much less, some
much more."  (BlundelPs Lectures, in Lancet, N. S., vol. 3, p. 133.
  VOL. I.                      24 
278
DELIVERY.
pounds each  in weight, and  the  extremes  are  three  and  eight
pounds.*   Respecting  triplets,  we  have  not sufficient  data, to
form  a general rule.   Duges thinks that they  have rarely less
weight than  twins.  In  a case  that occurred to Dr. West, at
Tiverton, Rhode Island,  the  respective developements  were as
follows:
    Length.      Weight.
     15| in.  4 lb. 3 oz.   Navel  in the  centre.
     15f      3    8      Navel  half an inch below centre.
     17f      4    9      Navel  half an inch below centre.
   They were all females-!
   Dr. Hull, of Manchester, met with a  delivery of five  children,
who did not weigh five pounds and a quarter.   They measured
from eight to nine inches in length, and two of them were born
alive.J  Dr.  Bryan, of Fairfield, in  this  state, had, however, a
case of four children, which all lived a day; and their aggregate
weight was eleven pounds, fourteen ounces.   Their  length va-
ried from  14f inches  to  17£ inches.§   Dr. Hubbard, of Glaston-
bury,  in  Connecticut, recently met  with a  case of triplets, in
which the united weigh was 18 pounds.   Two were born  alive,
and remained so at the end of nine months—the third was still-
born.||  In the Western Medical  Gazette, (No. 16, August 1,
1833,) a practitioner gives an account of  triplets born alive, and
all surviving until  the sixth day,  when orie died.  On the eighth
day,  another died; but the third  did wTell.  Their united weight,
exclusive  of  the placentas, was twenty-two and a fourth pounds
—a boy of  nine pounds, a  boy of seven and a half, and  a girl
 five and three-fourths  pounds.    Lastly, I will  mention  a recent
 case at Boston, by Dr. Palmer—one child (a boy) weighed seven
 pounds, another (a girl)  six pounds, a third (a lusus naturae) five
 pounds, the placenta two pounds; total twenty pounds.TI
   The length of the fcetus at the full time, varies much less than
 its weight.   Roederer concludes from his examinations, that the

   * London  Medical Repository, vol. 25, p. 555, from Revue  Medicale, March, 1826.
 " Dr. Clarke had seen no case of twins  weigh more than twelve pounds: now every
 year 1  see twins weigh fourteen pounds."  Notes of Prof. Hamilton's (of Edinburgh.)
 Lectures, in LyalPs Gardner peerage case. Introduction, p. 28.
   t Boston Medical Magazine, vol. 2, p. 393.
   t Philosophical Transactions, vol. 77, p. 344.
   §New York Medical and Physical Journal, vol. 1, p. 417.
   || Boston Medical and Surgical Journal, vol. 5, p. 414.
   1 Boston Medical Magazine, vol. 2, p. 328. 
DELIVERY.
279
 average length of a male is twenty inches and a third, while that
 of a female is nineteen inches and seventeen-eighteenths.*  Petit
 assigns twenty-one inches as the usual length.  Hutchinson says,
 it is ordinarily from nineteen to twenty-two  inches, and seven-
 teen and twenty-six inches will include the two extremes, except-
 ing some very rare cases;  while Fodere and Capuron place  the
 extremes from sixteen to twenty-three.!  This last author attaches
 great  importance to the difference in the proportion between  the
 length of the superior and inferior parts of the body, and he con-
 ceives that attention to  this, is one of the best modes of verifying
 the age of the fcetus.   As a general rule, there will be an equili-
 brium between the upper and lower parts of thebody, at the ordi-
 nary term of gestation, and the navel will be at the middle of the
 body,  or nearly so.   Before that time, the middle will approach
 nearer to the head, in the  manner that  I have mentioned in the
 preceding pages. J
   In the institutions quoted above as to weight, the length was as
 follows:  At Florence, the  greatest length, 20 inches; the least,
 15 inches—the  common length, from 17 to 18.  At Pa via, from
 21 inches and 3 lines, to 15  inches and 9 lines.  At Dresden, in
 1827,  from 20 to 16£ inches; 1833, greatest length 22.37 inches-
 least 14.91.   In  1834, greatest 21.30—least 14.38.   At Stuttgard,
 mean  length 16.8 inches. At Moscow, the mean length, ascertain-
 ed by  Richter, was  18^ Paris  inches; maximum 21, and minimum
 15.  At  Brussels, the mean  length of 65 males, was 18 inches
 and 3 lines;  of  56  females,  17 inches and  ten lines, (Que-
 telet.)
   Dr.  Dewees once delivered a child, that measured 27  inches.§

  * There is  some discrepancy in Roederer's  results.  Dr. Craigie says, that he
 found the mean length of i6 male children, born at the full time, to be twenty and
 ten-twelfths inches, and of  8 females, only twenty and  four-twelfths.   (Anatomy,
 p. 77.)
  t Bose (in Schlegel, vol. 3, p. 25,) says he has  met with two—" Viginti et quatuor
 pollices  ulna? Lipsicse pene superasse, hos ultimos autem a rusticis matribus proge-
 nitos fuisse."
  X Capuron, p. 173.   Chaussier appears to have been the first  that noticed these
 proportions, (see Ballard, p. 168;) although Capuron does not acknowledge the ob-
 ligation.
  § The following curious case is taken from the Edinburgh Medical and Surgical
Journal, vol. 4, p. 516.  "The public newspapers recorded the following birth in the
month of May, 1808.  At the poor-house in Stoke-upon-Trent, (Staffordshire,) Han-
nah Bourne, a deformed  dwarf, measuring only twenty-five inches in height, was,
after a tedious and difficult labour, delivered of a female child of the ordinary size,
measuring twenty-one and a half inches, being only three and a half less than the 
280
DELIVERY.
   A reviewer in the Edinburgh  Medical and  Surgical Journal
 states, that of sixty-four children of both sexes, measured by him
 in the  country, (Scotland,) the  average was  between 19 and 20
 inches.   Chaussier makes  it 18  French inches,  and Billard, from
 the  measurement of 54 infants, concludes,  that  from  16 to 17
 French inches, is the standard length.*
   It is evident that the signs drawn from the structure, weight,
 and dimensions of the  foetus, are liable to some variety; and this
 depends on various circumstances, such as the age and vigour of
 the  mother, her mode of life, the diseases to which she may have
 been subject, and probably the climate in which she lives.
   The characters which mark the maturity and perfection of the
 organs and functions of the child, are thus stated by Fodere and
 Capuron: The  ability to  cry as soon as it reaches the  atmo-
 spheric air, or shortly thereafter, and also to move its limbs with
 facility, and more or less strength; the body being of a clear red
 colour;! the mouth, nostrils,  eyelids and ears perfectly open; the
 bones of  the  cranium  possessing  some  solidity,  and the  fonta-
 nelles not far apart; the  hair, eyebrows and nails perfectly de-
 veloped; the free discharge of the urine or meconium in a few
 hours after  birth;  and finally, the  power  of swallowing and
 digesting, indicated by its seizing the nipple, or a finger placed in
 its mouth.J
   The child, on the contrary is  considered immature,^ when its
 length  and volume are much less than that of an infant  at the
 full time;  when it does not  move its members, and  makes only
 feeble motions;  when it seems unable  to suck, and has to  be fed
 artificially;  when its skin  is of an intense  red colour, and tra-

 mother.  The child was, in every respect, perfect, but still-born.  The mother is
 likely to do well."
  * Edinburgh Medical and Surgical Journal, vol. 40, p. 192.
  t This generally according to Billard, disappears from the fifth to the eighth day,
 and is succeeded by various shades before it becomes white.  Desquamation of the
 cuticle, also, in powder or in scales generally occurs at twenty-four hours after birth,
 and continues to the third or fourth day.  Cummin, London Med. Gaz. v. 19, p. 71.
  t " In mature children, the scrotum is corrugated, not particularly red, and ge-
 nerally containing the testes; in female  children the nymphae  are covered by the
 labia: whereas, as Professor Nagele observes, in premature children the testes are
 not always down, the labia are apart and the nymphae protrude, and in both sexes,
 the generative organs are extremely red."   British and  Foreign Medical  Review,
 vol. 1, p. 104.
  § By this term is understood, a  birth before the full period of gestation.  There
is another division more generally adopted.  A delivery before  the seventh month,
is called an abortion;  and at any time between the seventh and ninth month, a pre-
mature birth. 
DELIVERY.
281
 versed  by numerous  bluish vessels;  when  the head is covered
 with a down, and the nails are not formed;  when the  bones of
 the head are soft, and the fontanelles  widely separated; the eye-
 lids, mouth and nostrils closed;  when  it sleeps continually, and
 an artificial heat is necessary to preserve  it; and when it dis-
 charges its urine and the meconium imperfectly.*
   Should the examiner be called on to decide this question  after
 the death of the child, it will be  his duty, after noticing  such ex-
 ternal circumstances as I  have  already indicated,  to  proceed to
 a  dissection of the  body.  All those  appearances which mark
 the presence of fcetal  life, and  which  are distinctly explained in
 anatomical  and obstetrical works, should  be carefully noticed.!
 The  navel,  liver, heart, and  particularly the lungs, should  be
 examined;  and the  inquiry must be, whether the changes neces-
 sary for independent life have taken place. J

III. The  state necessary to  enable the  new-born infant to inherit.

   It frequently becomes a question of great  importance in  civil
cases and particularly in those  relating to the disposition of  pro-
   * I insert the following  extract from an English newspaper, which I accident-
 ally met with, because it favours us with some information from an eminently expe-
 rienced accoucheur.  "In the evidence on Bailey's divorce bill,  in the House of
 Lords, March, 10, 1817, the point in dispute appeared to be, whether Mr. Bailey's
 child was full grown at its birth ? The nurse swore that it cried with a strong voice,
 and was fed three times in the course of the day when it was born.  Dr. Gardiner,
 the attending physician, corroborated  the testimony of the nurse as  to the  full
 growth of the child.  Dr. Merrimanwas then called in, and examined as to the con-
 sequences of a  premature birth on  the offspring. He said he had known a child
 born in six months and eighteen days,  live to grow up, but never to become stout.
 A child  born under such circumstances, would be  smaller than usual; the skin
 would be redder, and the face not so completely formed.  As far as his  experience
 went, he should conclude that it could not cry strongly, and would be oppressed by
 difficult respiration.  The perfect conformation of the nails, strong voice, and usual
 size, were proofs of a full-grown child."  (Globe newspaper, March 11,1817.)
  t Burns' Midwifery, p. 118  to 122.
  X Chaussier, according to  Quetelet, has remarked that the infant diminishes a little
 in weight immediately after  birth.  The latter made several observations, (seven,) in
 order to ascertain whether this does occur, and found it even so.  He gives the mean
 deduced from these seven cases, as follows:
                                     Weight.
        Immediately after  birth, -  -   -  3.126 killogrammes.
              On the 2d day, - -  ,   -  3.057
                    3d  "...  -  3.017
                    4th  " - ,  -   -  3.035
                    5th  " - ,  -   -  3.039
                    6th  "...   -  3.035
                    7th  "  - -  -   -  3.060
3.059 killogrammes is equal  (according to our author) to 6£ pounds.  (Annales d'Hy-
giene, vol. 10, p. 15.)
                                  24* 
282
DELIVERY.
perty, to ascertain whether the infant is born alive.  In this coun-
try the subject  becomes very interesting, since our  law  is bor-
rowed  from  that of England, which  is  peculiar in  some of its
provisions, and  enables property to be held by a certain class of
persons on the establishment of the above fact.   For the  sake of
order, I shall, in the first place, briefly notice the period  of ges-
tation  after  wrhich  children are  considered  capable of  living;
secondly, mention the laws, of various countries, and  the  deci-
sions under  them,  as  to what constitutes the  life necessary for
inheritance in the infant;  and shall then conclude  with some  ob-
servations on the question how far deformity incapacitates from
inheriting.
   1. The  French  employ a very useful word in noticing this
subject—the  viability of  the infant; and I shall take the liberty
of using  it, although aware that great caution is necessary in the
 introduction of foreign terms.   As a general  rule, it seems now
 to be generally conceded, that no infant can be born  viable, or
 capable  of living, until one hundred and fifty days  or five months
 after conception.*   There are, however, cases mentioned  to the
 contrary.   A   person  named Fortunio  Liceti, is  said  to have
 been born after a  gestation of four months and  a half, and to
 have lived to the age of eighty.!  Dr. Rodman,  of Paisley, re-
 lates the case of an infant surviving, where the mother was con-
 fident  that the period of her gestation was less than nineteen
 weeks.   She had  previously been the  mother of five children.
 In such  cases,  however, we  should recollect that females are lia-

   * Dr. William Hunter, however, when asked what is the earliest time for a child's
 being born alive, answered, " A child may be born alive at three months; but we see
 none born with powers  of coming to manhood, or of being reared, before seven car
 lendar months, or near that time. At six months it cannot be."  (Hargrave's Note
 190* on Section 188 of  Coke upon Littleton.)
   The  Roman law by one of its provisions de suis et legitimis hoeredibus, decided
 that a child might  be born alive six months and two days after conception; and by
 another, de statu hominum, required seven months.  (Fodere, vol. 2, p. 110.)
   At the Imperial Josephine Academy in Vienna, a six months' child  of two pounds
 weight and twelve inches long, lived nearly three days.  (Quarterly Journal of Fo-
 reign Medicine and Surgery, vol. 2, p. 100.)
   t Capuron, p. 157. I find the following French law case in Denizart's Collections,
 Art. Grossesse, vol. 9, p. 522: A merchant arrived from St. Domingo at Bordeaux,
 June 5, and married the next day.  His wife had an abortion on the first of October.
 He pretended that the child had lived ; and, in consequence, demanded a revocation
 of a donation, entre vifs, which he  had made to his nephew before  marriage. It
 was opposed, on the ground that the delivery took place on the 118th day, and that it
  was impossible that the infant could  have lived.  It  was contrary to reason, it
 was added, to  allow him to prove a fact which we know to be physically impossi-
 ble. The decision was in favour of the nephew. 
DELIVERY.
283
ble to mistakes in  their calculations; and that conception may
take place at various times during the menstrual intervals, and
thus vary the length of the gestation.  Such  early living births
are, at  the present day,  very  generally  and  very  properly
doubted.*
   The following are sai4 to be extracts from the lectures of the
eminent Professor Hamilton  of  Edinburgh:  " All accounts of
children living to  maturity, who were brought forth at the fifth
or  sixth month, are  fabulous,  at least, I  consider them so.  I
lately brought a child into the  world a few days after the  com-
pletion of the  sixth month, which to my surprise was  alive, and
which lived nearly three days ;  and this is the longest period that
ever I knew so early a foetus  live.   At the completion of, or a
few days after the seventh month, a child may and certainly often
does, live to maturity.  When  I  first began practice, I supposed
that no child  could live to maturity,  which  weighed less than
five pounds avoirdupois, but experience-has convinced me to the
contrary;  and now  I am  confident that  a child of four  and a
quarter pounds weight, may  live to maturity.   No child  at the
full period of pregnancy weighs less that five pounds avoirdupois,
and the common weight of  children at the  full period is seven
pounds."!
   In a late case in Scotland, Dr.  Hamilton continued to maintain
the above  opinion.  The Rev. Mr. Jardine  of Kinghorn, was
married on the 3d of March, and on the 24th of August, Mrs. J.
was delivered of  a very weak  child, not three pounds in weight,
but which with great care, had  hitherto  been  kept alive.  Mr.
Jardine solemnly declared himself innocent,  and  threw himself
 upon  the Presbytery.  Dr. Hamilton was requested by that re-
 verend body to come on and investigate the case.  He could not,
 but wrote two letters, stating  his own experience to be against

   * In the case by Dr. Rodman, the child was alive and healthy nine months after
 birth.  At three  weeks, he measured thirteen inches in length, and weighed one
 pound thirteen ounces. He was so destitute of vital energy, that life was for some
 time preserved by keeping him constantly in bed with the mother, or other females.
 The length and weight just mentioned,  are those according to the statement made in
 former pages, of an infant advanced between the sixth and seventh month; and al-
 though Dr. Rodman  seems to question the accuracy of authors on this subject, yet
 the observations  have been made in too many cases to be affected by this solitary
 exception.   His object in publishing this case, is certainly highly laudable; and no
 physician, however  premature the birth may appear to him, should  neglect doing
 every thing to support and invigorate the appearances of life that are present. (Ed-
 inburgh Medical and Surgical Journal, vol. 11, p. 455; vol. 12, p. 126, 251.)
   t Lyall's Gardner Peerage Case.  Introduction, p. 28. 
284
DELIVERY.
 the probability of a child born in the sixth month surviving; re-

 ferring, however, to two  instances where children under similar

 circumstances had  lived.   One occurred in 1710, when  the wife

 of a clergyman in the Presbytery of Wigton, was delivered of a

 living  child within five lunar  months  after  marriage,  and Dr.

 Pitcairn,  with other physicians gave it as their opinion, that the

 child had been procreated after  marriage.  The other was  in

 Paisley in  1815, when a  married woman, who  had previously

 had children, gave birth to a child nineteen weeks after concep-

 tion, and  it lived a year and a half.

   Dr.  Thatcher was then  written to.   He came  to Kinghorn,

 and  the result was a certificate in favour of Mr.  Jardine.  He

 believed it possible.  It appeared  satisfactorily that the marriage,

 after being a matter of notoriety,  was contracted at the  appoint-

 ed time.   And when the child was born, there was no prepara-

 tion for it—no clothing had been  made—all were taken by sur-

 prise.  The Presbytery acquitted Mr. Jardine of all criminality.*

   We may from these observations  conclude that between five

 and  seven  months, there  have been instances of infants living,

 though most rare;  and even at seven, the chance of surviving

 six hours  after birth, is much against the child.!


  * London Med. Gazette, vol. 17, p. 92. (From the Fife Herald, Oct. 1,1835.) The
 individual, who communicates this case, says that he has recently seen a  child pre-
 maturely born, (certainly before seven months,) which at birth weighed only 2£ lbs.
 " It was alive when I saw it, and lived twelve days."
  t Belloc and Capuron, among modern authors, mention instances of children sur-
 viving at six and six and a half months.  They were very feeble and small—the head
 covered only with a light down, and the nails scarcely formed.  There are some re-
 cent cases related in the journals, which may here be mentioned, but with the same
 caution as already offered.  A supposed six and a half months' child, born near Cal-
 cutta, of European parents: at the time of the description, it was a month and
 twenty days old—weighed one pound and thirteen ounces—was fourteen inches in
 length, and was then suckling well. Case by Mr. Baker  in Transactions of Medical
 and Physical Society of Calcutta, vol. 1, p. 364.
  A case by Mr. Cribb, where the mother menstruated last on the 15th of April, and
 was taken in labour on the 2d of November, 1827.   The child was very diminutive,
 but at ten months it weighed twelve pounds,  (London Medical and  Surgical Jour-
 nal, for Nov. 1828.)
  A case by Mr. Greening of Worcester, in Midland Medical and Surgical Reporter,
 vol. 2, p. 362.
  Sundry cases, quoted from  Meli, an Italian writer on  viability, in Annales d'Hy-
 giene, vol. 8, p. 466.  Some of these are of five months,
  A case by Mr. Thomson, of Alva, Stirlingshire, of a child of five  months  and a
 few days, (as was supposed,) surviving three hours and a half. Its length was 12£
 inches, and its weight 1 lb. 8| oz.  The eyes were unopened and the nails not appa-
 rent.  London Med. Gazette, vol. 19, p. 866.
  Dr. Montgomery (Signs of Pregnancy, p. 262,) has seen one instance of a fetus,
which  at the utmost could  only have completed the fifth month, and which  lived a
few minutes, and another of five months and a half, which lived for four hours, " but 
DELIVERY.
285
   An opinion, which appears to be as old as the days of Hippo-
crates, has occupied the  attention of many writers, concerning
the viability of  eight  months' children.   It  seems to have  been
the prevalent  idea, that they are not so capable of living as those
of seven months.   Obstetrical writers of the present day, adduce
in its favour, the argument of experience, and they also urge,
that the uterus has a greater power and disposition to contract,
at the earlier, than  the later period, while  the cervix will also
yield more easily.   The head of the child being consequently not
so much compressed, it has a better  chance of surviving.  But,
on  the  other  hand, it  is  argued  that the nearer the child ap-
proaches  the  natural term of gestation, the greater  will be the
probability of living.  Dr. Samuel Merriman says that the obser-
vations made by Madame De  La Marche,  the celebrated  mid-
wife of the Hotel Dieu at  Paris, convinced Mauriceau, that more
than one half  of those, who are born at eight months will live, while
of those  born at seven months, very few  survive.  Dr. Merriman
adds, from a  list  before him of premature  births, in which the
period of utero-gestation, was distinctly marked,  that out of
thirty-six cases of eight months'  children, there died during the
month of child-bed, only eight,  while out of thirty-four cases of
seven  months'  children, there died  within the  month twenty-
one.*
  2. If we proceed as far back as the Roman law, we shall find
provisions on  the subject before us.   To enable the infant to suc-
ceed to property, it was necessary that it should be perfectly alive,
" si vivus perfecte natus est, etsi vocem non emisit;"!  and the de-
cision of Zacchias is in accordance with it.  Non nasci, et natum
mori, paria sunt.
  As to France, a capitulary of Dagobert ordained, that in order
to succeed to property, the infant should live an hour, and  be
able to  see the four walls  and ceiling of the  chamber.  An  ordi-

in both, the state was that of mere existence, without the presence of any condition
that could lead to the most remote expectation of life being continued."
  * Medico-Chirurgical Review, vol. 4, p. 739.  Of this opinion are Capuron, p. 159;
Fodere, vol. 2, p.  168; Mahon, vol. 1, p. 157; Goelicke in Schlegel, vol. 5, p. 139 ;
Orfila, vol. 1, p. 372; the Editor of the Annales D'Hygiene, vol. 8, p. 466. On  the
opposite side, see  Dewees in Coxe's Medical Museum, vol. 2, p. 274; Barlow in Me-
dico-Chirurgical Review, vol. 3, p. 320;  New England Journal,  vol.  12, p. 52.
  t Chaussier, Viabilite, p. 3. 
286                        DELIVERY.

nance  of Louis the IX. altered  this  law, and directed  that it
should cry, in order to enable it to succeed.*
   The present French law is  contained in the 725th and 906th
articles of the civil  code.  In order to succeed,  the infant must be
born viable; and in order to receive by testament, it is sufficient to
have  been conceived at  the time of the  death of the testator;  but
neither donation nor testament can have effect, unless the child be
born viable.^   And  the  interpretation of the word life, or being
born alive, is, according  to the  most  distinguished  lawyers  and
physicians of that nation, complete and perfect respiration.^
   The English law, so far as it has a bearing on the question be-
fore us, is contained in the provisions concerning a tenant by the
curtesy of England, as it  is called.  By this is understood, " where
a  man marries  a woman seised of an estate of inheritance, and
has by her, issue born alive,  which was capable of inheriting her
estate.  In this case, he  shall, on  the death of  his wife, hold  the
lands  for his  life, as tenant  by the curtesy of  England."§   The
exposition  of commentators is as  follows:—" It  must  be  born
alive.   Some  have had a notion that it must be heard to cry, but
that is a mistake.  Crying indeed is the  strongest evidence of its
being  born alive; but it  is not the only evidence."|[  Coke says,
" If it  be  born alive, it is  sufficient, though it be not heard  to  cry,
for peradventure it  may  be born dumb.   It must be proved  that
the issue was  alive; for  mortuus exitus, non est  exitus;  so as the
crying is but a proof that the child was  born alive, and so is mo-
tion, stirring, and the like."H   The cases  to which both these
authors refer, certainly prove the  doctrines stated by them to be
the law of England ;**  but it is to be feared, that the broad princi-

   • Capuron, p. 198.            t Capuron, p. 9.
   X " En fin les jurisconsultes ont adopte l'opinion des medecins a cet egard,  et ne
font consister la vie ordinaire que dans la respiration complete.   Le celebre Merlin
dit aussi tres formellement qu'il n'y a que la respiration complete que constitute la
vie."—(Capuron, p. 199.)
   Dr. Locock of London has lately  put this case.  A child's head is born, it  cries,
and of course breathes, and yet before the rest of the body is expelled, it dies.   Can
property be transmitted on such a life ? I apprehend there can be no doubt of it, ac-
cording to the English law.  (See London Medical Gazette, vol. 12, p. 636, 677.
   § An ancient provision in the laws of iEthelbert, reverses the law as now in  force.
   " If a wife brought forth children alive, and survived her  husband, she was to
have half his property."—Edinburgh Encyclopaedia, vol. 2, p. 102, Art. Anglo-Saxon
Laws.
   || Blackstone, vol. 2, p. 127.             T Coke Littleton, 30 a.
   ** Dyer's Reports, p. 25.  " It was moved, that a man shall be tenant by the cur-
tesy, although the issue be not heard to cry, so as it can be known that it hath life;
for it may be, the issue is born dumb."  So was the opinion of Fitzherbert.  This 
                           DELIVERY.                        287

pie thus laid down, may lead to practical injustice.  I cannot bet-
ter illustrate my ideas on this point, than by stating the following
case, which lately occurred  in England.
   In 1806, a cause entitled Fish or Fisher v. Palmer, was  tried
before the court of exchequer at Westminster hall.  It appears
that an infant was  born to Mr. Fish in 1796, which was  supposed
to be still-born; and on the death of his wife, he accordingly re-
signed her property to the legal heir.  Some circumstances after-
wards occurred, which induced  him  to bring the present action,
and to  attempt  to  prove that the child had not been born dead.
   Dr. Lyon (deceased at the time of the trial) had declared, an
hour before the birth that the child was alive; and having directed
a warm bath to be prepared, gave the child, when born, to the
nurse, to be immersed in the warm water.  It did not  cry, nor
move, nor show any symptoms of life; but while in the water, (ac-
cording to the testimony of two females, the nurse, and the cook,)
there twice appeared  a twitching and tremulous  motion of the
lips.   Upon informing Dr.  Lyon  of  this,  he directed  them to
blow into its throat; but it never exhibited any  other signs of
life.
   Several  physicians were  examined as to  the deduction to be
drawn from these symptoms.   Drs.  Babington and  Haighton
agreed that the muscular motion of the lips could not have hap-
pened, if the vital principle had been quite  extinct;   and that
therefore the  child was alive.   Dr. Denman, on  the  contrary,
gave it as his opinion, that  the  child was  not alive.  He consi-
dered that the motion of the lips did  not prove the  presence of
the vital principle, and drew a distinction between  uterine  and
extra-uterine life.   The remains of the former, he  thought,  might
have  produced  the twitching of  the lips.   The jury,  however,
found  that the child was born alive; and the property which
was in the  28th of Henry VIII.  The other case (Paine's in 8th Coke's Reports) is
instructive, because it  gives us the opinion of the old writers on this subject.  Glan-
vill says that the husband inherits, "ex uxore sua hcered' habueritfiliam clamantem
 et auditam infra quatuor parietes."  And Bracton, " Sive superst' fuerit liberi sive
 morlui, dum tamen semel aut vocem aut claniorem dismiserint, quod audiatur inter
 quatuor parietes, si hoc probet, et licet partus moriat' in ipso partu, vel vivus nascat,
 vel forte semi-mortuus, licet vocem non emiserit, solent obstetrices in fraud' veri
 hatred' protestari partum vivum nasci et legitim', et ideo necesse et vocem probare, et
 licet naturaliter mutus nascitur et surdus, tamen clamorem emittere debet."  The
 court, however, (common pleas, 29th of Elizabeth,) decided according to the dictum
 of Littleton, as adopted by the commentators in the text, that " the crying is but a
proof of the life. But  in the case at bar, to remove all scruples, it was found that the
 issue was heard to cry." 
288                        DELIVERY.
he had surrendered ten years previous, returned  again to Mr.
Fish.*
  It will readily be observed, that a very extensive latitude is
given to juries by this decision; and that  they may decide con-
trary to what  is correct  in physiology, on the opinions of men
incompetent to guide on this  subject.  In the instance before us,
indeed, they were justified  in their  verdict  by the testimony of
eminent physicians, but it must also be remarked, that the proofs
of life relied, on by them are equivocal.   It has  been suggested,
and I think with  truth, that these  convulsive motions merely show
that the muscular  fibre has not  yet  lost its  contractility.   Still-
born infants, or  those who  die instantly on  being  delivered, are
not unfrequently observed to  open their mouth, and extend their
arms or legs.  May not these be merely the relaxation of a con-
tracted muscle, or the stimulus of the atmospheric  air on a body
unaccustomed to it ?!   Fodere remarks,  that in his youth, he has
frequently seen still-born children carried to  a  chapel of the Vir-
gin, which was built on high ground.  The cold  air of  the place
produced  such  an excitement,  that  they  appeared  to   raise
their eyelids for  an instant, and that  instant was improved to ad-
minister the rite  of baptism.J  Chaussier also examined the body
of several children, born at five,  six,  and even seven months, who
were said to have  lived one or two hours, and in whom  a motion
of the jaws and members had been observed, and indeed a  slight
respiration.  He ascertained by dissection, that not one of them had
lived after birth, and concluded, that the proofs observed, owed
some of their strength to the  wishes of friends, and were in fact
nothing more than the feeble remains of foetal life—resembling, in
many respects, the appearances  observed on the body of an ani-
mal recently decapitated.§
   One  of his  latest productions (at the age of  eighty-one) was
an appeal to the Minister of Justice in  France, relative to the
looseness  of the  law on this subject  He notices the various signs,

  * Fodere, vol. 2, p. 160 ; Smith p. 383.
  t I am happy to add the opinion of so eminent a writer on  Physiology as Professor
Dunglison, in favour of the doctrine advocated above.  "The irritability shown,"
says he, " must be regarded simply as  an evidence, that the parts have previously and
recently formed part of a living system." (Human Physiology, vol. 1, p. 317.)
  X Fodere, vol. 2, p. 160.  "Notwithstanding all this, I think that where  there is
a power of being  affected by stimuli, (other than galvanic or electric) this, in com-
mon sense, must be held to constitute vitality; and no practical good can result from
nice metaphysical distinctions between fetal and extra-uterine life, when the child is
fairly in the open air."  Dunlop.                    § Capuron, p. 198. 
DELIVERY.
289
and shows  their  insufficiency.  The  pulsation  at the  umbilical
cord, and the spouting of blood from it when cut,  only prove that
the blood has preserved its fluidity, and that there is some action
left in the vessel.   The evacuation of the  meconium should not
be deemed  a sign of life, since it is sometimes discharged in the
womb, and is often caused by  a  compression  of the  abdomen.
Nor is the objection mentioned by Lord Coke, that the  deaf and
dumb cannot cry, and that  therefore there might be injustice
done in some cases,  correct; since  experience and  observation
show that they do cry when  perfectly  alive.*  Chaussier insists
that the proofs of life in  these disputed cases, should be  positive
and manifest—such as the  high red colour  and warmth of the
skin; a free and  full  respiration ; sharp  and  continued crying,
and motion of the heart and limbs,  and these continuing for a
longer time than a few minutes-!
   The Scotch law seems to  be more  precise  in its provisions.
Individuals there, as in England, are allowed to hold property as
tenants by the  curtesy; but it can only  take place where the
issue has been heard to cry.  " Lord Stair, in his Institutes, lays
it down,  that the children  of the  marriage  must attain that
maturity as to be heard  to cry  or weep; and adds, that  the law
hath well fixed the maturity  of the  children by  their  crying or
weeping, and hath not left it to the conjecture of witnesses whe-
ther the child was ripe or not."   A  case,  in conformity to this
doctrine, was decided in 1765, in the court of session,  (Dobie  v.
 Richardson.)  "Dobie's wife brought forth a child about nine
months after marriage, which  breathed, raised one  eyelid, and
expired in the usual convulsions about half an hour after its birth,

   * " It need scarcely be said, that the deaf and dumb  cry at the moment of birth,
the same as other children. The natural cry is effected by them, as well as  by the
infant that possesses all its senses.  It is the acquired voice alone,  which they are
incapable of attaining.  (Dunglison's Physiology, vol. 1, p. 317.)
   t Chaussier, Memoire medico-legale sur la  viabilite de l'enfant naissant, Paris,
 1826.  In 1828, Collard de Martigny, a French lawyer, also wrote  on this subject,
in consequence of the examination  of a child, born alive at the full time, which
breathed, cried and moved, but died at the end of ten minutes ; and on dissection,
 such marks of disease were found as precluded the possibility of its  surviving. Was
 this a case to which the law applied ; or, in other words, was it viable civilly, al-
 though it evidently was not naturally so ?  Our author justly  decides in the affir-
 mative.  It is manifest that any discussions beyond that of the proof of the exist-
 ence  of perfect life, (no matter how short that may be,) must  lead  to interminable
 disputes, and the benefit of a general rule will be lost in the consideration and ad-
 justment of every individual case.  This difficulty, however,  can only occur in cases
 under the French law, and originates in the proper interpretation of the word viable.
 (Questions de Jurisprudence, &c.)
   vol. i.                        25 
290
DELIVERY.
but was not heard to cry.   The mother died in childbed;  and the
question was, whether the jus mariti was not lost by the  death of
the wife within the year, without a  child of the marriage  who
had been heard to cry ?   After much argument on both sides, the
decree was, that as the wife did not live a year and a day after
her marriage, and as it was not proved that the child or foetus of
which she was delivered was heard to cry, the husband  was not
entitled to any part of his deceased wife's effects."*
   The following occurred in the Court of Session in 1833.  The
Rev. William Blackie made certain provisions  in his will, de-
pendent on his daughter  and her husband having  " two  children
living at any time."   It was held that an averment, that a child
which had been born at the seventh month, " was born alive and
continued  to live during three quarters of an  hour, and was per-
ceived to breathe repeatedly and its heart distinctly felt  to beat,
but it being admitted that it had not been heard to cry, was not
relevant to infer that the child was a living child."
   The court was strongly urged to waive the case of Dobie  and
take the directions of the civil law.   " The  having breathed is
truly the test." But on the  other hand, the fixed criterion of the
Scotch law was argued  as  alone  admissible and it was so de-
cided, although one of the judges  was of a different opinion-!
   The following are continental cases.   " A  lady of Turin, aged
twenty, died intestate on the twenty-eighth of October, 1818, in
the last  stage of gestation, and on the tenth day of a putrid fever.
Immediately after she had breathed her last gasp,  at half past
two, a. m. there was extracted from her, by the caesarean opera-
tion, a child which was still alive,  but which  died at the end of
thirteen minutes, and which was  not opened after death.  The
husband, who was a witness of the operation, along with the sur-
geon who performed  it,  declared  himself the heir of the child,
resting his claims upon the declaration of the  surgeon, which bore
that the child had all the characters of maturity, and that it was
living, which  he  discovered by  motions of the  legs and feet,
which had taken place before, during, and after  the operation;
by the circumstance of the child's  opening its hands, which were
closed;  by the circumstances, that on cutting the umbilical cord,

  * See a Note to Dyer's Reports, 25, by the Editor John  Vaillant, A. M. &c.
  f Roberton v. Roberton, cases in the Court of Session, vol. 11, p. 297. 
DELIVERY.
291
blood sprung out, and that pulsations were felt in  the  cord, the
carotid  arteries, and the region of the heart; by the circum-
stance,  that on  pouring  water on the child's head in the admi-
nistering baptism to it, there resulted a  motion of the lips and
mouth,  and an impression which produced an inspiration; and
lastly, by the circumstance that the natural heat remained ;  that
after having lived about  thirteen or fourteen minutes, some drops
of blood came from the nose of the child;  that it became pale,
stretched its limbs, closed its eyes, and died. The brothers of the
deceased opposed the husband in his claims; and during the pro-
cedure dependent before  the Senate of Turin, some distinguished
members of the  medical  faculty  of that city proposed the follow-
ing questions to  the faculty of Strasburg : 1. If it  be sufficiently
proved  by  the motions of which mention is made in the above
declaration, that the child in question lived a life which rendered
it capable of succeeding ; that it had been born capable of living,
in consequence of the operation performed upon its already dead
mother, and that it had really breathed ?  2. If the dissection  of
the child's body, which had been neglected, might not have been
of great assistance in determining whether the child had actually
lived, and in discovering the cause of its death, which  had been
so quick 1  The faculty named a commission,  composed  of Pro-
fessors Lauth, Lobstein, Flamant,  Tourdes and Fodere; and it
was unanimously decided that the first question  should be an-
swered affirmatively, and the second negatively."*
   In April 1834, a female in France, supposed to be eight months
advanced in pregnancy, was seized with convulsions  and died.
At about a quarter  of an hour after her  death, Dr. Cabaret per-
formed  the ceesarean operation and extracted a child.   This phy-
sician swore that he saw its chest and ribs move; that  there was
pulsation in the umbilical cord, and also  at its base, after it was
cut off, and that  on laying his hand on the region of the heart,  he
felt its beating.  The body was put into a warm  bath and im-
mediately on immersion, the right hand was raised towards the
head and a slight respiration ensued.   After this it was  motion-
less.  Dr.  Cabaret  therefore considered that it had  breathed,
though  feebly, and for a space of time not exceeding five minutes.

  * From a Critical Notice of " Anthropogenese," by J. B. Demangcon, M. D. Paris,
1829, in Edinburgh Journal of Natural and Geographical Science, vol.2, p. 198. 
292
DELIVERY.
This testimony was confirmed by several  female witnesses who
were in attendance on the mother.
  On the other hand, a physician swore that the child must have
been dead, since he had been for eleven  hours  in attendance on
the mother, previous to her decease,  and had  felt no motion in
the uterus.  He had however not been present at the operation.
  Thirty-three days after the extraction of the child, it was dis-
interred and examined.  The lungs were compact and of a red-
dish brown colour, and though  the chest was  arched,  yet  they
did not  fill it.  The  left lung was emphysematous  at its upper
part; there was meconium in the intestines, and the stomach and
bladder were empty.  The body bore all the marks of a fcetus
between seven and eight months advanced.  The lungs with the
heart annexed on being put into a vessel  of water, floated. When
the heart was  removed and the right  lung was placed in the
water, it sank, but the left floated.  On cutting it into pieces, all
these sank, except portions from the emphysematous part.
  The question was now put to  several  physicians whether this
state of facts proved that the child had lived.   Velpeau gave an
affirmative answer.   The  pulsations of the heart and  cord and
the movement of the  hand  showed that the blood was not mo-
tionless in its vessels.  It was not, therefore, he said, dead at this
period.  Orfila, Dubois, Pelletan and  others were of a  contrary
opinion.   The first ascribes the  condition of the left lung to the
progress of putrefaction.  If it  had originated from independent
respiration, the right lung  should have contained more air  than
the left.   The pulsation in the  umbilical cord  also showed that
extra-uterine life was not established.   Dubois remarks that it
did not live, in the law sense required, since the pulsations spoken
of equally take place in utero.
  The court finally submitted the case  to the consideration  of
Drs. Marjolin, Roux, and Marc, and required answers  to the fol-
lowing questions.  1.  Whether the  child had lived?   2. Was it
born viable ?   Those gentlemen commence their opinion by in-
quiring whether there was  any thing in the disease of the mother?
and the consequent operation incompatible with the surviving of
the child,  and after showing by  numerous authorities, that there
was not, although the chances were small, they next proceed to
canvass the testimony.
  The motion of the arm is supposed to be mechanical, owing to 
DELIVERY.
293
 the stimulus of immersion acting on the remains of fcetal life.  So
 also with respect to what Dr. Cabaret considered to be respira-
 tion.   If  a child breathed ever  so  feebly for five minutes, it is
 remarkable that it raised no  cry—not even  those feeble  sounds
 produced when the  air penetrates  only so  far  as  the trachea.
 Finally the pulsations of the cord cease, as  soon as respiration
 commences.
   Having thus disposed of the testimony of Dr. Cabaret, they
 next proceed to consider that deduced from the dissection.  The
 arched state of the thorax, they suggest, may have arisen  from
 the progress of putrefaction as well as from perfect respiration
 and the former is rendered more probable, from the fact that the
 lungs did not fill the cavity of the chest.   They concede that this
 last is not indispensable, since Schmitt of Vienna found a  similar
 condition in a foetus which had lived thirty-six hours, but then the
 other proofs of breathing must be unequivocal. The compact state
 of the lungs is also a circumstance against, as also their reddish
 brown colour, but this last is not much relied on.
   As to the floating of the heart and lungs when  united, they are
 disposed to ascribe it to the emphysema  that was present.  It  is
 also possible that the progress of putrefaction might have deve-
 loped gas in the heart or its  vessels.   All the circumstances  go
 to prove this to be the cause and not respiration, and we know in
 the case of the drowned, that a small  quantity of the gases  in-
 duced by putrefaction is sufficient to float a comparatively heavy
 bod}-.   From  these considerations and believing that all the indi-
 cations might  be referred to the remains of fcetal life, they gave
 it as their opinion, that the child  had not breathed and  conse-
 quently had not lived.
   As to the second question, after noticing the appearance of the
 child, its weight and length  (it weighed  two  and a  half pounds
and measured sixteen inches, ten lines,) the median line, about an
inch above the umbilicus, the state of the nails and hair, &c. they
decide that it  must have been a foetus  between seven  and eight
months advanced  and  consequently  that it was  capable  of
living.*
  The only American case relating to this point, that I can find,
is that of  Marsellis v. Thalhimer, which  occurred  in  the chan-

             * Annales D'Hygiene, vol. 19, p. 98 to 169.
                             25* 
294                        DELIVERY.
eery court of this State in 1830.  The widow was delivered of
a full grown child two months after the death of the husband:  it
never  breathed.   On these facts, a dispute arose concerning the
disposition of property.  It was urged, that the child having been
born, the presumption was  that it was born alive, until the con-
trary was proved;  and that a child in ventre sa mere, was a life
in being to all intents and purposes, either as it regarded its own
benefit, or that  of other persons.  The  opposite  doctrine was
maintained by  most  of  the arguments  and legal enactments
which I have already noticed, and the decision of the Chancellor
(Walworth) was in conformity to this.   " I am  satisfied," says
he, " from the opinion of the physician examined before the sur-
rogate, that no court is authorized to decide affirmatively that the
child was born alive.   There is no legal presumption  in favour
of the fact;  and  as the mother claimed  by descent from the
child,  she held the  affirmative, and was  bound to establish her
right by  legal proof."*
   The state of infants delivered by the cesarean operation, be-
longs  also to this place;  and I shall illustrate the laws of differ-
ent countries respecting them, by mentioning various  cases that
have occurred.
   A female, the wife of  Matthew Braccius,  died at the seventh
month of pregnancy, of a  violent  illness; and  a  quarter  of an
hour thereafter, an infant was taken from her  by the csesarean
operation. The  father claimed to be its heir; and it was asserted
in proof of its life, that it had opened its  eyes, and made  some
 slight motions.  Zacchias was consulted on this case;  and in his
 Opinion, he asserts that these motions were mechanical, and  the

   * 2 Paige's Chancery Reports, vol. 2, p. 35.  I cannot be insensible to the flatter-
 ing terms in which the Chancellor, in his learned opinion, was pleased to notice this
 work.
   In 1833, the Solicitor General of England brought into Parliament, " An act for
the amendment of the law relative to the estate of a tenant by the curtesy of Eng-
 land."   In this it was provided that the husband may enjoy the wife's estate as te-
nant by the curtesy, although actual possession of it in his lifetime may not be had,
 and although there may not have been issue of the marriage, (Companion to the
 Newspaper, p. 55.)
   This act, however, did not pass; and the law remains as it was.  The laws in
 force in Maine and  Rhode Island, as to the power of the husband to hold as tenant
 by the  curtesy, are stated by Judge Story in Summers' Reports for the First United
 States  Circuit, vol. 1, p. 121,  Robinson v. Codman.   Ibid, p,  263,   Stoddard v.
 Gibbs. 
DELIVERY.
295
effect of the air on the body; and this was corroborated by the
fact, that after  its extraction, the child was carried into a cold
cellar.  The decision was conformable to this opinion.*  It ap-
pears, however, that the court of Sancta  Rosa at Rome, allowed
an infant to inherit, who was delivered by the csesarean  opera-
tion, and who lived for several weeks thereafter-!
  In France, a similar  case has been made the subject of con-
troversy.  A female, residing in the department of the Loire, died
in child-bed on the 2d  of July, 1780, and after her death, an in-
fant was extracted by the csesarean operation, which wras bap-
tised, as being alive. A law-suit was instituted on the case, and it
was proved, that the  infant had opened and shut its mouth for
the space of half an hour—that one of its hands had been opened,
and that it closed it again without  assistance—that it vomited
some froth—that it made several  expirations like a person who
is dying—and  that it was perfectly well  formed.   It was object-
ed, that the infant was too immature, and  consequently was not
viable,  and of course could not succeed  to property.  The testi-
mony of the witnesses was also impeached.  The court, however,
decided that the infant had lived, and refused to consider the ques-
tion of its viability .J
   In England, a person cannot hold property as tenant by the
curtesy, if the child  has been delivered by the csesarean opera-
tion.  " The issue must be born during the  life of the mother;
for  if the  mother dies in labour, and the csesarean  operation  is
performed, the husband in this case, shall not be tenant by the cur-
tesy: Because at the instant of the mother's death, he was clear-
ly not entitled,  as having no  issue born, but the land descended
to the  child, while he was  yet in his mother's womb; and the
estate,  being once so vested, shall  not afterwards be taken from
him."§   " One Reppes, of Northumberland, took to wife an inhe-
 ritrix, who was great with child by  him, and died in her travail,
 and the issue was ripped out of her belly alive; and by reference
 out of the chancery to the justice, they resolved, that he should
 not be  tenant by the curtesy,  for it ought to begin by the birth of
 the issue,  and  be consummated by the death of the wife."||

   * Zacchias Consilium, No. 67.         t Fodere, vol. 2, p.  163.
   X Fodere, vol. 2, p. 164.   § Blackstone, vol. 2, p. 128.  See also Coke Littleton, 29 b.
   || Paine's Case, 8th Coke's Reports.   I do not know that any thing can be said on
 the subject of the first born of twins, except the following quotation: " When the 
296
DELIVERY.
   3. The consideration of the  subject, how far deformity incapa-

citates from inheriting, cannot be better introduced, than by stating

the division of monsters proposed by Buffon.   He separates them

into three classes—monsters by excess,  monsters by defect, and

monsters by alteration or wrong position of parts.

   Of the  first class,-a very remarkable instance is related in the

case of twins, born at Tzoni, in Hungary, on the 16th of October,

1701.   These two females  were called Helen and Judith, and

were separated from each  other, except at  the anus, where they

were united,  and  the  function  pertaining  to  that part was  per-

formed in common.  They lived to the age of twenty-two years.

Judith first fell sick, but the  health of Helen also became soon

impaired, and the  latter  died  three minutes  after  the  former.

They expired on the 23d of February, 1723, at Presburgh.*   The


question was, which of three  sons, all born at a birth, was the eldest, the declaration
of a female relation, that she was at the birth, and she tied a string round the arm of
the second son, in order to distinguish him, was admitted in evidence."  (Starkieon
Evidence, vol. 3, p. 1115.)
   * See an account of this extraordinary case in the Philosophical Transactions, by
J. J. Torkos, M.D. F.R.S. (vol. 50, p. 311.)  A similar instance  is mentioned in
Piscottie's History of Scotland, p. 160. Cases of double births united  at various parts,
may also be found in the Philosophical Transactions, vol.5, p. 2096;  vol.23, p. 1416;
vol. 25, p. 2345; vol. 32, p. 346; vol. 45, p. 526; vol. 72, p. 44;  vol. 79, p. 157.  A
very interesting account of a person  in China, named Ake, is contained in Chap-
man's Journal, vol. 2, p. 148, and vol. 3, p. 78;  also in Edinburgh Philosophical
Journal, vol. 5, p. 133, and vol. 7, p. 126.  He has a living parasite attached to him
from the sternum to the umbilicus, and is, notwithstanding, able to do the work of an
husbandman.
  For references to numerous cases, sec Lawrence's Essay on  Monstrous Produc-
tions, in Medico-Chirurgical Transactions, vol. 5, p. 165.  Diet, des  Sciences Medi-
cales, vol. 34.  Review of J. G. St. Hilaire on Monstrosities, in Edinburgh Medical
and Surgical Journal, vol. 39, p. 165.  Chapman's Journal,  N. S. vol. 4, p. 289, and
vol. 5. p. 17.  Andral's Patholog. Anatomy, vol. I, p. 110.
  For the most recent cases, see Edinburgh Medico-Chir. Transactions, vol. 2, p. 35.
Case by Dr. Berry of Calcutta.  It occurred near that city; both were living, and
they were then three years old.
  A case at Turin.  This monster survived some time, and was exhibited  at Paris.
—(American Journal Medical Sciences, vol. 5,  p. 472.  Jameson's New  Edinburgh
Philosophical Journal, vol. 7,  p. 196.  Lancet, N. S. vol. 5, p. 194.)
  A living duplex child in Switzerland, seen in 1829, by John Borland.  (London
Medical Gazette, vol. 5, p. 51.  Lancet, N. S. vol. 12, p. 620.)
  Case by  Dr. Scoutetten, of  Metz; one perfectly formed, and the other acephalous.
They were  both living  a year  after birth.   This is a very curious case. (Medico-
Chirurgical Review, vol. 24, p. 231.)
  And in America, Dr. Horner, in American Journal of Medical Sciences, vol. 8,
p. 349. North American Medical and Surgical Journal, vol. 2, p.  395. Dr. De Camp,
in Boston  Medical and  Surgical Journal, vol. 2, p. 518.  Dr. Martin, in Ohio,
Western Medical and Physical Journal, vol. 3, p. 290.
  Dr. Blackburn of Kentucky. Two children united from the sacrum to the coccyx,
and one anus common to both.  The pudenda  were  united—the labia were incom-
plete, inasmuch as there was but one for each child. They survived three weeks and
died of dysentery,—one five minutes after the other.  Transylvania Journal, vol. 8,
p. 414. 
DELIVERY.
297
case  related  by Sir Everard Home, in the Philosophical Trans-

actions, belongs also to this division.   A male child was born in

Bengal, in 1793, with a well formed body, but it  had  a second

head, placed in an inverted position on the top of the proper one.

This  was equally perfect, and at the age of six months, both were

naturally covered with black  hair.   The child lived four  years,

and its  death was owing to  the bite  of a cobra de capello.  On

dissection, no  bone  was found  separating  the two brains.   The

skulls are preserved  in the Hunterian  museum.*

   It  is  barely necessary to remark, that  frequent  instances also

occur of an increased number of organs, members, &c.

   Of monsters by defect,  the  most remarkable are those, which

are born without a head, and are hence styled acephalous.  These

live in  the womb, but do not  survive after birth, since  the func-

tion  of  respiration cannot be performed.   To this  class also be-

long those which are destitute of lungs, of one or more  organs of

sense, &c»!

   The defects of the third class are seldom discovered until after

death,  as they are commonly internal.   They  are  hence seldom

the subject of inquiry in legal medicine.   But  the  most remark-

able  instances of this nature are those  in which the rudiments, or

parts of a  foetus have been discovered.;);


  The Siamese Twins belong to this division. In November, 1833, two children were
born at Newport, Kentucky, formed exactly like the Siamese Twins.  The mother
had never seen these, but they were exhibited in the town, about the time  she was
impregnated, and she had seen wood-cuts of them.  These foetuses are now in the
Cabinet of the Medical College of Ohio. (Western Medical Gazette, vol. 1, p. 289.)
  * Philosophical Transactions, vol. 80, p. 296, and vol. 89, p. 28.
  t Edinburgh Medico-Chirurgical Transactions, vol. 2, p. 39. Case by Dr. Hast-
ings in which the upper and lower extremities were entirely wanting.   It  lived six
months.   A curious case of deficiency in the fingers (apparently hereditary) in a
whole family, is related in Edinburgh Medical and Surgical Journal, vol. 4, p. 252.
  X The  following are instances of this nature: A female named Amidee Bissieu in
France, at whose death, at the age of fourteen, a foetus was found in the abdomen..
(Edinburgh Medical and Surgical Journal, vol. 1, p. 376.) This case appears to have
been recently revived, and is related by M. Breschet.  (Medico-Chirurgical Review,,
vol. 5, p. 180. A child aged nine months, examined by G. W. Young, Esq. (Medico-
Chirurgical Transactions, vol. 1, p. 194.)—A girl aged two years and a half, examined
by  Dr. Phillips of Andover. (Ibid. vol. 6, p.  124.)—In the London Medical Reposi-
tory, (vol. 4, p. 404,) there is a reference to three other cases; and an account is also*
given of a foetus found by Mr. Highmore, in the abdomen of a young man who died
in 1814, aged sixteen years, at Sherborne in Dorsetshire.  A case is also mentioned
as occurring in Austria in 1812.  It is related by Prochaska.  (London  Medical Re-
pository, vol. 6, p. 330.)—A child at Brannau in Austria, in 1825.  (Chapman's
Journal, N. S. vol. 5, p. 142.)—A case in Hanover, from Graefe's Journal.  (Lancet,,
vol. 12, p. 454.)
  Among American cases, I may mention  that of Dr. Gaither, occurring  in Ken-
tucky. A female child died in 1809, at the age of two years and nine months.  A 
298                        DELIVERY.

   After this exposition of the condition in which monsters are
generally born, we shall be enabled to apply the laws of various
countries, relating to them.
   As monsters by excess are viable, or capable of living, so, by
the law of France as already quoted, they are capable of inherit-
ing.   Those by defect, and particularly the acephalous, are to be
considered  as still-born—incapable of living,*  and this  opinion
must be enforced in proportion to the importance of  the organs
that are wanting.   Concerning the last  class, there can seldom
be any controversy, as the mal-conformation is ordinarily not dis-
covered until after death.
   The  English law is thus stated by  Blackstone:—" A monster
which hath not the shape of mankind, but in any part evidently
bears the resemblance of the brute creation, hath no inheritable
blood, and cannot be heir to any land, albeit it be brought forth
in marriage;   but  although it hath deformity in any  part of its
body, yet if it hath human shape, it may be an heir."  This he
adds, is a very ancient rule in the law of England; and observes,
that " the  Roman  law agrees with our own in excluding  such
births from succession, yet accounts them however  children in
some respects, where the parents, or at least the father, could
reap any advantage thereby, esteeming them the misfortune, ra-
ther than the fault of that parent.   But our law  will not admit a
birth of this kind to be such an issue,  as  shall entitle the husband
to be tenant by the curtesy, because it is not capable of  inherit-
ing."!
   As there are instances in which the  issue should be male, in
order to inherit, it will be  proper to repeat a caution already
given—not to  mistake the enlarged state of the  clitoris, which is
very common at  birth, for  male  organs.  Fodere mentions  in-

foetus was found  in the abdomen.   (New York Medical Repository, vol. 13, p. 1.
Coxe's Medical Museum, vol. 6, p. 193. New York Medical and Philosophical Jour-
nal and Review, vol. 1, p. 170.)—A  case by Dr. Curtis in Tompkins county, New
York. Child four years old.  (New York Medical and Physical Journal, vol. 5, p.
202.  New England Journal, vol. 15, p. 32.)
  * There are, however, instances in which acephalous monsters have lived for a
short time. Mr. Lawrence mentions one, which, although deficient in brain and
cranium, was perfectly formed in all its other parts, and lived four days.   Another
is mentioned as occurring in Italy in 1831.  It  lived eleven hours.  (Lancet, N. S.
vol. 11, p. 570.)  Some valuable physiological remarks on these productions, may be
found in the Edinburgh Medical and Surgical Journal, vol. 11, p. 351.
  t Blackstone, vol. 2, p. 246. 
DELIVERY.
299
stances  where  females have, in  consequence of this, been in-

scribed in the baptismal registers as males;  and in one case, the

individual was called out  under the conscription law.*

   As  extra-uterine  fostuses have  never been brought forth

alive, there can, of course, no question arise concerning them.!


  * Fodere, vol. 2, p. 179.
  t When I wrote this, I had not seen the cases mentioned in the New  England
Journal, vol. 8, p. 118 and 403; one by Dr. Delisle of Paris, and the  other by Mr.
King of South Carolina.  In both instances, extra-uterine foetuses are said to have
been extracted, by cutting through the vagina.  The first lived three quarters of an
hour, and the second seems to have survived at the time when the narrative was
written.  Should a legal question ever occur concerning  such, I presume  the same
provisions which are in force respecting those extracted by the csesarean operation
would guide here. 
CHAPTER  VIII.
                              infanticide.


         BY JOHN B.  BECK, M. D.  &c. OF NEW  YORK.


Part I.—History of Infanticide as it has prevailed in various nations, ancient and
  modern.—Part II.—Foeticide, or  criminal abortion.—The  period of gestation
  when a child ought to be considered as alive.—Signs of foeticide deduced from
  an examination of the female.—Where  the death of the female follows the abor-
  tion.—Anatomical examination of  the  parts after  death.—Hydatids and moles
  considered as occasioning all these signs.—Signs of feticide deduced from an ex-
  amination of the substance expelled from the  female.—Modes in which foeticide
  is perpetrated.—Involuntary causes  of abortion.—Circumstantial evidence.—Mur-
  der of the child after it is born  alive.—Of the age of the child.—Of the child born
  alive without respiring.—Of the child born alive and respiring.—Proofs of the lat-
  ter.—1. Proofs drawn from the circulation.—Difference between  the blood of the
  foetus and of the child after respiration.—Peculiarities in the organs of circulation
  before and after respiration—the foramen ovale—the ductus arteriosus—the ductus
  venosus—the umbilical vessels—the  cord.—2. Proofs drawn from the respiratory
  organs.—Configuration and size of  the  thorax—situation of the  lungs—their vo-
  lume—their shape—their  consistency or density—their absolute weight.—The static
  test.—Ploucquet's test.—The specific gravity of the lungs.—The hydrostatic test.—
  Consideration of objections to it.—Rules for  applying the hydrostatic test.—3.
  —Proofs drawn from the abdominal organs—the liver—the intestines—the bladder.
  —Consideration of the general objection to these proofs,  that a child may respire
  and  yet  may die before  it  is fully born.—General inferences in relation to  the
  foregoing proofs.—Modes of perpetrating infanticide.—Accidental modes in which
  a child's life may be lost.—Congenital malformations.—Congenital diseases.—Cir-
  cumstantial evidence.—Method of conducting examinations in cases  of infanti-
  cide.—Cases and illustrations.—Part III.—Of infanticide in its  relations to me-
  dical police.—Laws against it in different nations.—Foundling hospitals.—List of
  American and  British cases of infanticide.


                              PART I.


Of the history of infanticide, as it has prevailed in different nations,

                         ancient and. modern.

   It is  a fact no  less  melancholy than astonishing, that a practice

so  unnatural as that of infanticide should ever have prevailed to

any extent.    Its existence might have been  supposed possible in

those unhappy regions of our earth, where untutored passion and

brutal sense reign triumphant over reason and morality;  but that

the fairest portions of society, where genius, science, and  refine- 
INFANTICIDE.
301
ment had taken up their abode, should have been disgraced by a
crime so disgusting, is one of those  anomalies in the history of
human  feeling and conduct, which  irresistibly prove how per-
fectly arbitrary and undefined are  the laws of justice and hu-
manity, when unguided  by the  principles of true religion.  The
fact, however, is not more astonishing than true.  A slight  review
of its history will show us, that this practice prevailed in almost
all  the ancient nations, and that it is not even yet blotted  from
the list of human  crimes.
   The laws of Moses are  silent on the subject of infanticide ;* and
from this circumstance we should  be led to conclude that the
crime was unknown among the Jews at that period of their his-
tory, and therefore that  any positive prohibition of it was con-
sidered unnecessary.  The penal  code  of  the Jews is so very
minute on the subject of murder in general—considers it so atro-
cious a crime, and denounces such terrible punishments  against
the perpetrators of it, that it is wholly incredible that the murder
of infants would have been countenanced by their illustrious le-
gislator.  This conclusion is further confirmed  by the considera-
tions, that barrenness was  esteemed one of the greatest  misfor-
tunes which could  befall a Jewish woman, and  that the Jews
were all desirous of a progeny, because each cherished the hope
that the Messiah might  be numbered among his descendants.
These facts would seem to prove that  every inducement was
held out for the preservation of children, and none to countenance
their destruction-!  At a subsequent  period, when they became
contaminated by their intercourse with the Canaanites, we find
the Jews imitating;}; the  example  of their king Manasseh, who
sacrificed his  son to the  idol Molech.§  These horrid sacrifices
were suppressed by king  Josiah, who commanded, "that no man
might make his son or his daughter to pass through the  fire to
Molech."||  And Tacitus, in describing the manners of the Jews
of his day,  says that they were not allowed to put their children
to death.lf

  * Commentaries on the Laws of Moses, by J. D. Michaelis, F.R.S. Translated
from the German, by Alexander Smith, D. D. vol. 4.
  t "Abortion and infanticide were not specially forbidden, but unknown among
the Jews. Josephus, appealing in honest pride to the practice of his countrymen,
reproaches other  nations with  these cruelties."  (Milman's History of the Jews,
vol. 1, p. 107.  Harper's edition.)
  t Jeremiah, vii. 31; and xix. 5.   § 2 Chronicles, xxxiii. 6.  2 Kings,  xxi. 6.
  II 2 Kings, xxiii. 10.            IT Hist. Lib. v. Cap. 5.
    VOL. I.                       26 
302
INFANTICIDE.
   The nations surrounding the Jews appear to have been addicted
to the sacrifice of children.  Of these, the  Canaanites are  de-
scribed as  " sacrificing their sons and their daughters unto devils,
and  shedding innocent blood, even the blood of their sons and
their daughters,  whom they sacrificed  unto the idols  of Ca-
naan."*
   Among  the  Egyptians, infants were treated with  more  hu-
manity ;  yet instances  are not wanting of the  greatest  cruelty
towards  them.   A memorable one is found in the commission of
Pharaoh to the midwives, to murder all the male offspring of the
Jews.  Their own children, however, were treated with greater
tenderness; and they are,"accordingly,  on this account, mention-
ed with honour by some of the writers of other countries. Strabo,
in particular, speaks of them as an honourable exception to those
nations who exercised the right of life  and death over their in-
fants-!
   Among the ancient Persians, it was a common custom to bury
children  alive.   Herodotus  tells  us of  Amestris, the wife of
Xerxes, who, at an  advanced age, ordered fourteen  Persian in-
fants, of illustrious birth, to be interred  alive, in honour of one of
the deities  of the country .J
   In most of the Grecian states, infanticide was not merely per-
mitted, but actually enforced by law.  The  Spartan  law-giver
expressly ordained, that every child that was born should  be ex-
amined by the ancient men of the tribe; and that,  if found weak
or deformed, it should be thrown into a deep cavern at the foot
of Mount  Taygetus, called  Apothetce, " concluding that its  life
could be of no  advantage either to itself  or  to the public, since
nature had not given it at first any strength or goodness of con-
stitution."§  This practice was  not, however, upheld  merely by
the sanction of law; it was defended by the ablest men of Greece.
Aristotle, in  his wTork  on government, enjoins  the exposure of
children  that are naturally feeble and deformed, in order to pre-
vent an excess  of  population.  He adds, " if this idea be  repug-
nant to  the  character of the nation,  fix at least the number
of  children  in  each family;  and  if  the  parents  transgress
the law, let  it  be ordained, that the  mother  shall destroy  the
  * Psalmcvi. 37 38.
  + A History of Inventions and Discoveries, by John Beckmann.  Translated by
W. Johnston, vol. 4, p. 435.       X Beloe's Herodotus, vol. 4, p. 37.
  § Plutarch's Lives, translated by Langhorne, vol. 1,  p. 142. 
INFANTICIDE.
303
fruit of her body before  it shall  have received the principles
of life and sensation."*  The mild Plato also justifies this prac-
tice.  In his  Republic, he directs that " children born with  any
deformity, shall be removed and concealed in some obscure  re-
treat."!
   Of the  existence of  infanticide  at Athens, we have the testi-
mony of the comic poets, who, in describing the manners of that
city, frequently allude to the exposure of children.^
   Thebes, however,  exhibited a  noble contrast to the rest of
Greece.  By one of her laws, it was expressly forbidden to  imi-
tate the other Grecian cities, who exposed  their children at their
birth.§
   Of all the nations of antiquity, the Romans were the most unre-
lenting  in  their treatment of infants.  The Roman  father was
vested with an absolute authority over the lives  and  fortunes of
his children,|| and we have abundance of testimony to show that
the  right was commonly exercised.   This barbarous prerogative
was  coeval with  the existence of Rome, and continued to tri-
umph over justice and humanity during the lapse of many ages,
until Christianity wrested  it from  her.   Romulus authorised the
destruction of all children that were deformed.  He, however,
required the parents to exhibit them to their five nearest neigh-
bours, and  to obtain their  consent to their death.1[  The law of
the Twelve Tables,  enacted  in the  301st  year of Rome, sanc-
tioned the same barbarous practice.**  After this, even the slight
restrictions which Romulus had imposed upon parents, appear to
have been removed, and an unqualified jurisdiction surrendered
to the father over  the lives of his children, even after they  had
arrived to years  of  maturity.  Sallust mentions an instance of
the  latter.  " Fuere tamen extra  conjurationem complures, qui
ad Catalinam  initio  profecti  sunt:  in his  A, Fulvius, senatoris
filius ; quern retractum ex itinere, parens jussit necari"—Sallust,
Cat. xxxix.

  * Travels of Anacharsis, vol. 5, p. 270.      t Ibid. vol. 4, p. 342.
  X Vide Quarterly Review, vol. 2, p. 389, for quotations from Terence and Plautus.
  § Travels of Anacharsis, vol. 3, p. 277.
  || The right of parents over their children is thus stated in the Institutes of Justi-
nian, Lib. 1, Tit. ix. p. 22, Cooper's edition.  Jus autem potestatis, quod in liberos
habemus, proprium est civium  Romanorum; nulli enim  alii sunt homines, qui talem
in liberos habeant potestatem, qualem nos habemus.
  T Montesquieu's Spirit of Laws, vol, J, p.  104. London,
  ** Cooper's Justinian, p, 659. 
304
INFANTICIDE.
   The procuring  of abortion, which can be considered  no less
than murder, was also notoriously prevalent among the Romans.
Juvenal thus speaks of that nefarious practice:
           Hae tamen et partus subeunt discrimen et omnes
           Nutricis tolerant, fortuna urgente, labores
           Sed jacet aurato vix ulla puerpera lecto;
           Tantum artes hujus, tantum medicamina possunt.*
                                            Juv. Sat. vi. 476.

   Minucius Felix thus describes the barbarity of the Romans  in
this respect: " I see you exposing your infants to wild beasts and
birds, or strangling them after the most miserable manner.  Nay,
some of you will not give them the  liberty to be born, but by
cruel potions procure abortion,  and smother  the hopeful begin-
ning  of  what  would  come  to  be  a man, in  his mother's
womb."!   Pliny, the elder, himself  defends  the  right of pa-
rents to  destroy their children, upon the  ground of its being
necessary to preserve the increase of population within proper
bounds.
   Such was the practice of ancient Rome from  the  first origin
down to  the  time of Constantine the Great.  During  the  days  of
her greatest political grandeur, it was  carried to the  highest ex-
cess ; and whilst she was boasting of her refinement, and casting
the opprobrious epithet of barbarian on all  around her, she was
guilty of the basest profligacy, and the most  hardened cruelty.
Christianity first opposed a barrier  to the desolations of this
crime; her mild and humane spirit could not but discountenance
it;  and accordingly it animated  all who were  arrayed under her
peaceful banners, to exert their energies in arresting its progress.
The Christian writers of that day are full on this point.   Tertul-
lian, in his Apology, expresses himself with heroic boldness on
the subject:  " How  many of you," (addressing himself to the
Roman people, and to  the  governors of cities and  provinces,)
" might I  deservedly charge with infant murder;  and not only
so, but among the different kinds of death, for choosing some  of

       * " Yet these, though poor, the pain of childbed bear,
          And without nurses their own infants rear.
          You seldom hear of the rich mantle spread
          For the babe, born in the great lady's bed.
          Such is the power of herbs; such arts they use
          To make them barren, or their fruit to lose."
  t Octav. Minucii Felicis, ch. xxx. 
                          INFANTICIDE.                      305

the crudest for their own children, such as drowning or starving
with cold or  hunger, or exposing to  the mercy of dogs;  dying
by the sword being too sweet a death for children, and such as a
man  Would choose to fall by, sooner  than by any other ways of
violence.  But Christians  now are  so far from homicide, that
with  them  it  is  utterly unlawful  to  make away a child in the
womb, when nature is in deliberation about the man; for to kill
a  child before  it is born, is to commit  murder  by way of ad-
vance ; and there is  no difference, whether you destroy a child
in its formation, or after it is formed and delivered; for we Chris-
tians look upon him as a man who is one in embryo;  for he is a
being like  the fruit in blossom, and  in a little time would have
been a perfect man, had nature met  with no disturbance."*   In
A. D. 315,  Constantine the Great  enacted a law, providing for
the maintenance and education of those  children whose parents
were too poor to do the same-!  He also ordered a severe pun-
ishment to be inflicted on a cruel father.   This was the first time
that  the authority of the government had  interposed to  arrest
this  crime ; and it is not to be supposed, that a custom which had
become so  familiar to all the habits  and feelings of the  Roman
people would be  immediately suppressed; and  accordingly we
find  that it  still continued to  prevail, though in a less degree, until
the end of the 4th century, when it was  finally exterminated by
the emperors Valentinian, Valens, and GiatianJ
   The Phenicians and Carthagenians were in the habit of  sacri-
ficing infants to  their gods.   The  latter had a law by which four
children of noble birth were regularly immolated upon the  altars
of Saturn.§   History  records a melancholy  instance of the su-
perstition and  cruelty in these deluded people.  It is related, that

  * Reeves' Apologies, &c. vol. 2, p.  190.      f Ant. Univ. Hist. vol. 15, p. 576.
  X Mr. Gibbon thus  expresses himself in relation to this  practice among the Ro-
mans : " But the exposition of children was the prevailing and  stubborn vice of an-
tiquity; it was sometimes practised, often permitted, almost always practised with
impunity, by the nations who never entertained the Roman ideas of parental power;
and the dramatic poets, who appeal to the human heart, represent with indifference
a popular custom which was palliated by the motives of economy and compassion.
If the father could subdue his own feelings, he might escape, though not the censure,
at least the chastisement of the laws.  And the Roman Empire  was stained with the
blood of infants, till such murders were included by Valentinian and his colleagues,
in the letter and spirit of the Cornelian law." (The History of the Decline and Fall
of the Roman Empire—by Edward Gibbon, Esq.—vol. 3, p, 186, Lond, Ed,)
 i Ant, Univ. Hist.  vol. 17, p. 257.
                             26* 
306
INFANTICIDE.
they attributed their defeat by Agothocles, king of Sicily, to an
omission of these sacrifices, and  in order to atone for their past
neglect, they offered up, at one time, two hundred of the sons of
their nobility.
  Silius Italicus notices this custom :
           " Mos fuit in populis, quos condidit Advena Dido,
            Poscere cade deos veniam, ac flagrantibus aris
            (Infandum dictu) parvos imponere natos."  Lib. 4.
  The ancient  Germans,  although  in  the  habit  of sacrificing
prisoners taken in battle, do not  appear  to have been addicted to
the crime  of infanticide.   Tacitus, in describing their  manners,
mentions a contrary practice  as one of the peculiarities distin-
guishing their character:  " Numerum liberorum finire,  aut quen-
quam ex agnatis necare, flagitium  habetur."*
  Among  the  Visigoths, the murder of infants was a common
crime.  Chindaswinthus, one of their kings, in his laws, describes
the procuring of abortion, as well as the murder of  children after
they are born, as practices that were prevalent in the provinces,
and denounced severe penalties  on the  perpetrators  of those
crimes-!
  But infanticide was not confined  to  the ancients.  It has de-
scended to modern nations, and  at  the  present  day  disgraces
Eastern and Southern Asia by its enormities.
  The Chinese are notorious for their cold indifference  in the ex-
posure and murder of their children.  According to Mr. Barrow,
the number of children exposed  in Pekin  alone amounts to 9000
annually.  No law exists to  prevent it;  on the contrary it ap-
pears rather to be encouraged, inasmuch as persons are employed
by  the police of the city to go through the different streets every
morning in carts, to pick up all  the children that may have been
thrown out during the night.   " No inquiries  are made: but the
bodies are carried to a common pit without the -walls of the  city,
into which all, whether dead or living, are promiscuously thrown."J
The  practice is not  confined  to the capital; it  prevails also in
other parts of the  country.  It is  calculated that the number of
infants destroyed in Pekin, is about equal to  that of all the rest
  * De Morib. Germ. xix.
  t On the history of the effects  of religion upon mankind.  By Rev. Edward Ryan.
p. 110.
  X Travels  in China, &c. by John Barrow, Esq.,  p. 113.  (American  edition.) 
INFANTICIDE.
307
of the empire.*   Almost all those that are exposed are females.
The causes assigned  for  its prevalence, are extreme poverty,
arising from an overgrowth of population;  frequent and dreadful
famines, springing from the same cause; the natural  coldness of
affection in the Chinese, together with  the  sanction of custom,
and the want of any  law forbidding it.   Mr.  Ellis, who visited
China with the British embassy in  1816, expresses some doubts
with  regard to  the frequency of  infanticide in  China-!   Whe-
ther the estimate of Barrow be too large or not, it is impossible
to say.   The general prevalence of the crime, however, is unques-
tionable ; and recent travellers speak of it as still existing in all
its  horrid deformity.  " At the beach of  Amoy," says Mr. Gutz-
laff, " we were shocked at the spectacle of a pretty new-born
babe, which shortly before had been killed.  We asked some of
the by-standers what this meant; they answered with indifference,
' it is only a girl.' "  This same traveller says, " It is a general
custom among them to drown a large proportion of the new-born
female  children.  This unnatural crime is  so common  among
them, that  it is perpetrated without  any feeling, and even  in a
laughing mood; and to ask a man of any distinction whether he
has daughters, is a mark of great rudeness.  Neither the govern-
ment, nor  the  moral  sayings of their sages, have put a stop to
this nefarious  custom."J   The same writer,  in  another  work,
makes  the following statement: " Infanticide,  of  which the hus-
bands  are the only perpetrators, is  not  uncommon;  but female
 children only  are  murdered, and  then immediately after  their
 birth.  This horrible  crime  meets with no punishment from the
 laws of the country; a father  being the sovereign  lord of his
 children, he may extinguish life whenever he perceives or pre-
tends that a prolongation of it would only aggravate the  suffer-
 ings of his offspring."§  Another  late traveller  says, " In some
 provinces, not one out of three is suffered to live; and in others,
 as the writer has been informed by the Chinese from those places,
   * Ibid. p. 114.  Also De  Pauw's Philosophical Dissertation on the Egyptians and
 Chinese.  (Quarterly Review, vol. 2, p. 255.)
   t Journal of the Proceedings of the late Embassy to China, &c. By Henry Ellis,
 third commissioner of the embassy.  Vol. 2, p. 209.  London 1817.
   X Journal of Three Voyages along the coast of China, in 1831, 1832 and 1833;
 with Notices of Siam, Corea, and the Loo-Choo Islands. By Rev. Charles Gutzlaff.
 p. 142.  (American edition.)
   § A sketch of Chinese History, Ancient and Modern, &c. By Rev, Charles Gutz-
 laff.  Vol. 1, p. 46.  (American edition) 1834, 
308
INFANTICIDE.
 the difference between the male and female population is as ten
 to one."*
   Among the Hindoos, infanticide presents  itself in  a form  still
 more horrible.  It is incorporated into their system of religion, and
 its atrocities are beyond description.   It has existed among them
 for at least 2000  years, for Greek and  Roman historians notice
 it, and refer to some of the very places where it is now known
 to exist.!  The number of infantile murders in the provinces of
 Cutch  and  Guzerat  alone, amounted, in 1807, according  to the
 lowest calculation, to 3000 annually; according to another com-
 putation, 30,000.J  Females are almost the only victims.   In de-
 fence of the practice, they urge  the difficulty  of  rearing female
 children,  the  expense attending  their education,  and  the  small
 probability of their ever being  married.§   Within a few  years,
 through the benevolent exertions of some of the subjects of Great
 Britain, it was supposed  that infanticide had been  completely
 abolished in  many of  the  provinces.   Mr. Duncan, governor of
 Bombay,  Marquis Wellesley, and Col. Walker, were  the persons
 who took the lead in  this affair, and whose  energy and perseve-
 rance it was  hoped and asserted had been  crowned with  com-       *^
 plete success.||  It is  melancholy to be  obliged to state, on  the
 authority  of a recent  traveller,  that the benevolent labours of
 these gentlemen wrere  attended  with only  temporary success.
 Bishop Heber,  in his travels in  1824  and  '5, says, "Through
 the  influence  of Major Walker, it is certain that   many children
 were spared;  and previous to his departure  from Guzerat, he

  * See a Journal of a Residence in China, &c. from 1829 to 1833. By Rev, David
 Abeel, pp. 128, 158. New York,  1834.
  t Christian Researches in Asia. By the Rev. Claudius Buchanan, D. D. English
 edition, p. 49.—View of the History, Literature, Religion, &c. of the Hindoos.  By
 William Ward, D. D. p. 393.  American edition.—Also Moor's  Hindu Infanticide,
 &c. Review of the same in London Quarterly Review, vol. 6, p. 210.
  X Buchanan's Researches in Asia, p. 49.  Also Moor's Hindu Infanticide, p. 63.
  § The modes of perpetrating the deed are various.  Dr. Buchanan states that two
 are principally prevalent. As soon as it is known to be a female, a piece of opium
 is  put into its mouth; or the umbilical cord is drawn over  its face, which, by pre-
 venting respiration destroys it.  (Researches in Asia, p. 47.  Moor's Hindu Infanti-
 cide, p. 55, 56.)—Another mode still more common, however, is  to drown the child,
 as soon as it is born and ascertained to be a female, in a large vessel of milk placed
 in the room for that purpose. Moor's Hindu Infanticide, p. 27.  Heber's Travels,
 vol. 2, p. 70.  American edition.)
  || For a full  account of these measures, see "Hindu  Infanticide: an account of
 the measures adopted for suppressing the practice of the systematic murder, by their
 parents, of female infants; with incidental remarks on other  customs peculiar to the
natives of India."  Edited with notes, and  illustrations, by  Edward Moor, F. R, S.
 London, 1811. 4to.  In this volume, the report of Lieut. Col. Walker  is particularly
interesting. 
INFANTICIDE.
309
received the most affecting compliment which a good man could
receive, in being welcomed at the gate of the palace, on some
public occasion, by a procession of girls of high rank, who owed
their lives to him,  and who came to kiss his clothes, and throw
wreaths of flowers  over him as their deliverer and second father.
Since that time, however, things have gone on very much in the
old train, and  the  answer made by  the  chiefs to any  remon-
strances of the British officers, is, ' Pay our  daughters' marriage
portion,  and they shall live.'   Yet  these very men, rather  than
strike a cow, would submit to the crudest martyrdom."*
  Previously to the conversion of Otaheite to Christianity, infanti-
cide was so common that it threatened the complete depopulation
of the island. It was found as a common practice, when the island
was visited by Captain Cook;! and just anterior to the introduction
of Christianity, according to the most  accurate estimates, at  least
two-thirds of the children born were destroyed. J It appears to have
been confined to no rank or class of the community, but  to have
been universally prevalent.  Mr. Ellis states, that he did " not re-
collect  having met with a female in the island, during the whole
period of his residence there, who had been  a mother while  idol-
atry prevailed, who had not  imbrued  her hands in the blood of
her offspring."§  The effect which this practice had in diminish-
ing the  number of inhabitants,  was  astonishing, and affords  a
strong fact in refutation of the  doctrine which  has been main-
tained by some, that the practice of destroying children has  a
direct tendency to  augment population.  In  1776, when Captain
Cook visited the island, he found  it to contain upwards of 200,000
souls.  In less than thirty years after, this  terrestrial paradise,
blessed with a genial climate and a luxuriant soil, was reduced to
5000 inhabitants.||   Turnbull relates, that " the missionaries made
two tours whilst he was in the island, and in each of which  they
numbered the  people;  according  to the first calculation  they
were 7000, but in the  last they very little exceeded 5000."H  It
is not to be supposed that this enormous diminution of population

  * Narrative of a Journey in the Upper Provinces of India, &c.  By the  Right
Rev. Reginald Heber, D. D.  Vol. 2, p. 70. American edition.
  t Cook's Voyages, vol. 2, p. 72, 85.
  X Turnbull's Voyage round the World in 1800-2-3-4.  Polynesian Researches, by
William Ellis, vol.  I, p. 198.   American edition.
  § Polynesian Researches, vol. 1, p. 198.      || Turnbull, vol. 3, p. 77.
  ^ Turnbull, vol. 3, p. 76-8. 
310                        INFANTICIDE.

is to be  attributed  solely to  this  cause; others  have  doubtless
co-operated, particularly certain diseases which prevail to a great
extent, such as fevers, dysentery, phthisis  pulmonalis, and  scro-
fula.*   All travellers, however, who have visited the island, con-
cur  in  the  opinion, that the effects of infanticide have been in-
finitely more injurious to the population than all the other causes
combined.   It is consoling to reflect,  that  through  the  exertions
of Christian philanthropy, this  horrid  and barbarous custom has
been entirely abolished.
  In most of the South Sea  Islands, the  same  practice has pre-
vailed to an enormous extent, and  has only been checked by the
benign influence of Christianity.!
  Among the Sandwich Islanders, however, there is reason  to
believe that it still exists in much of its native deformity.  Some-
times they strangle their children, but more frequently buiy them
alive.   What is peculiar in the barbarity of these people, is, that
even should a child be spared for a few weeks or months, they have
no hesitation in destroying it at any subsequent period.  Among
the Otaheiteans, on the contrary, if the child survived only a few
hours, it was generally saved.  At least two-thirds of the chil-
dren born, are here also sacrificed.;};  The principal cause  as-
signed  for  the prevalence of  this  crime among these people, is
their excessive indolence, and  their  dread of the trouble to be
encountered in rearing their children.^  Among the Society Islands,
the  rules of the Areoi Institution  requiring the death of all the
children of its members, operated as another powerful cause.
  Among the natives of the interior of Ceylon, the same inhuman
practice prevails.  When a.child is born, an  astrologer is consulted
to foretel its future fortune; if it should be unhappy it is carried to the
jungle and abandoned, where it is destroyed by cold, or devoured

  *  Edinburgh Medical and Surgical Journal, vol. 2, p. 284-90.
  t For interesting notices on this subject, see Journal of Voyages and Travels by
the Rev. Daniel Tyerman, and George Bennet,  Esquire, vol. 1, p. 53; vol. 2, p. 67,
162.  (American  edition.)—Also Polynesian Researches, by W. Ellis,  vol. 2, p.
29, &c.
  X Polynesian Researches, vol. 4, p. 240.  Stewart's Journal of a Residence in the
Sandwich Islands, p. 185, 251.
  § A recent American voyager  says, that in the Sandwich Islands " Infanticide is
still practised, but not to the same  extent as formerly, nor is the deed committed
openly.   At the imminent peril of the mother, children are now destroyed about
the fourth or fifth month of utero-gestation, almost entirely in cases of illegitimacy,
and but very rarely after birth. Infanticide has been made a crime by the civil law;
and it is hoped, that the people will  soon feel it to be an offence, equally against so-
cial and moral rectitude, as well as detrimental to their political condition."  A voy-
age round the world, in 1835-6 and 7, by W. S.  W.  Ruschenberger, M. D. 1838. 
INFANTICIDE.
311
by wild beasts.  Generally speaking, all  the male  children, as
well as the first female child, are exempted from this unhappy lot.
So  common  is the  destruction of all the  rest of  the female
offspring,  that " if has been observed, in the districts where this
practice prevails,  that more than one female child is rarely to be
found in a family."*  The effect of this practice upon the relative
proportion of male and female population, is very striking.   Ac-
cording to  the calculation of Mr. Marshall, the females are to
the males as 84 to 100; while  in England they are as 98.8 to
100-!  The  only extenuation offered for this  crime, is the extreme
poverty of the people.  Bishop  Heber, in  speaking  of the preva-
lence of infanticide in Ceylon, states that in the last general census
in 1821, the number of males exceeded by 20,000 that of females ;
in one district  there were, to every hundred men, but  fifty-five
women;  and in those parts where  the numbers were equal, the
population was almost  exclusively mussulman.J  The  difficulty
of marrying their daughters, in a country where to live single is
disgraceful, is one of the principal causes according to  Heber, of
this unnatural custom.§
  The natives of New South  Wales, resort to violent and unnatu-
ral compression of the  body of the mother, in order to procure
abortion.   This process is  called by them  Mee-bra,  and is resort-
ed to for  the purpose of avoiding the trouble of  carrying about
the child  when young,  a  duty  which  devolves  entirely on the
female.   As may naturally be supposed,  the mother not unfre-
quently falls a victim in this horrid process.   Another practice
still more shocking prevails, of burying a child with its mother,
if she happens to  die.||   This practice is justified by them, upon
the ground of the difficulty, and even impossibility of nursing
and rearing a child under these circumstances,
  Among the New Zealanders, infanticide is  asserted to be a com-

  * Notes on the Medical Topography of the Interior of Ceylon.   By  Henry Mar-
shall, Surgeon to the Forces, pp. 22, 33, 37.  London, 1821.       f Ibid. p. 33.
  X Narrative of a Journey through the Upper Provinces of India, with notes upon
Ceylon, &c. &c  By the late Right Rev.  Reginald Heber. Vol. 2, p. 197. American
edition.
  § " An astrologer is consulted  on the birth of a female child; and if he pro-
nounces her to have been born under evil auspices, she is exposed alive in the woods,
to be destroyed by beasts of prey or by ants—generally,  I was happy to hear, with-
out the consent of the  mother." Ibid. vol. 2, p. 197.
  II Account of the  English Colony of New South  Wales. By Lieut. Col. Collins, of
the Royal Marines, p. 124—5.   Edinburgh  Review, vol.2, p. 34. 
312                       INFANTICIDE.

mon occurrence.   When a girl is born, it is said the mother not
unfrequently destroys  it, " by pressing her finger upon the soft
part between the joinings of the skull."*
   Among the Hottentots, infanticide  appears to be  a common
crime.   Sparman states " that the Hottentots use, in case of the
mother's death, to  bury alive children at the breast;"!  and Bar-
row describes a race of them called Bojesmans, who destroy
their offspring on various occasions: as " when they  are in want
of food; when the father of the child  has forsaken  its mother;
or when obliged to fly from the boors and others; in which case
they will strangle  them, smother  them, cast them away  in the
desert, or bury them alive."J
   The  Mahometans  do  not appear to attach any criminality to
child-murder ;§ on the contrary, the very sources of honour and
authority among them  are  polluted by it.  Even the palace of
the Sultan is constantly stained by the blood of infants.  Thorn-
ton states, that the offspring of the younger princes of the royal
family,  who are kept  in honourable confinement in the palace,
are  destroyed as soon  as they are born.||  And  Blacquiere  ac-
counts for the smallness of the number of children belonging to
the  Bashaw of Tripoli, from the fact of his  encouraging  his
wives to evade their accouchements.TT  A recent traveller says,
that the Turkish women after getting two or three  children, or
as many as  suits their fancy  to have,  are addicted to  procuring
miscarriages, at  which they or their accouchesses (Jewesses)
are exceedingly expert, not producing constitutional  injury.**
   Dr. Bryce, in speaking  of  the  present state of medicine  at
Constantinople,  says:  " Midwifery is almost exclusively prac-
 tised by Jewish and Turkish women; and  it  is worthy  of re-
 mark, that the obstetric art forms a very small portion of their

   * The  Library of Entertaining Knowledge, New Zealanders, p. 387.   Cruise's
 Journal, p. 290.
   t A Voyage  to the Cape of Good Hope, &c. from the year 1772 to 1776, by An-
 drew Sparman, M. D. vol. 1, p. 257.
   \ An Account of a Journey in Africa, made in the years 1801 and 1802, to the re-
 sidence of the Booshuana Nation, &c. by John Barrow, Esq. p. 378-91.
   § It is proper to state, however, that the Koran forbids it; and in the oath which
 Mahomet required of the women who joined his  party, called the " women's oath,"
 the prohibition of infanticide was distinctly mentioned.  (Buck's Theological Dic-
 tionary, Art. Mahomet.)
   || The  present state of Turkey, &c. by T. Thornton, Esq. vol. 1. p. 120.
   IT Letters from the Mediterranean, by E. Blacquiere, Esq. vol. 1, p. 90.
   ** Records of Travels in Turkey, Greece, &c. in the years 1829, 1830 and 1831,
 by Adolphus Slade, Esq. vol. 2, p. 162. American edition. 
INFANTICIDE.
313
adroitness or  employment.  All pretend  to  possess, and  some
have become famous and  wealthy by their pretensions, certain
means, not only to obviate sterility, but also to produce abortion
by administration of drugs—a practice, avowedly tolerated, and
frequently resorted to, by Turkish females, both from their dislike
to frequent pregnancy, and from command of their  lords, when
their harem threatens to become too numerous."*
   In modern Egypt, nothing is more common than the procuring
of abortion.   A class of females, well known for their skill, are
employed to aid those who consult them in cases of this  kind.
This  practice, which is very  ancient,  surprises nobody, and a
woman aborts with astonishing indifference.   In the towns and
villages, there are individuals who are specially employed in this
barbarous business.   At  Cairo, there are Arabian  physicians*
who  for a  great length of time,  have  followed  this infamous
trade.  Infanticide is rarely made  a subject  of  criminal  investi-
gation.  When a married woman destroys her  new-born infant,
in order to bring her to punishment, two eye-witnesses  are ne-
cessary.  If  she is convicted, she  has  to pay a large  sum of
money as a fine to her husband, or if she is  unable to do this, he
has it in his power to imprison her.  If there are nothing but
suspicions and  she  persists in denying  the  crime,  she is  only
obliged to take a certain oath,  to free herself.  When a girl who
may have  become pregnant,  destroys  her  child, to  exculpate
herself from the crime, she has only to liberate a male or a fe-
 male slave.!
   Even in Iceland, we find traces of this inhuman crime.   The
custom appears to have been  derived from their Norwegian an-
 cestors, among whom it continued to prevail for nearly one hun-
 dred years after it  had been  abolished  in  Iceland.  It became
 extinct  shortly after  the  introduction of Christianity into the
 island, which event took place at the end of the tenth century.J
   If we turn our attention from the old world, and  direct it to

   * Sketch of the State and Practice of Medicine at Constantinople, bv C. Bryce
 M. D. (Edin. Med. and Surg. Journal, vol. 35, p. 8, 9.)
   + See a Letter on the State of Legal Medicine in Egypt, by Hamont, Directeur of
 the Veterinary School of Medicine, of Abon-Zabel, in the Annales d'Hygiene Pub-
 lique et de Medecine Legale, vol. 10, p. 202-3.
   X Dr. Holland's Preliminary Dissertation on the  History and Literature of Ice-
 land, in Sir G. Mackenzie's Travels in the Island of Iceland, during the summer of
 the year 1810, Edinburgh, 2d Ed. p. 39.
   VOL. I.                      27 
314
INFANTICIDE.
the new, we shall find this crime presenting itself under forms no
less horrible and disgusting.
   Among the natives about Hudson's Bay, it is common for the
wdmen to procure abortion by the use of a certain herb  which
grows there.*
   In Labrador, the Moravian missionaries who first landed there,
found it a  prevailing custom to put to death their  widows and
orphans; not to gratify a natural ferocity of disposition, but merely
on account of a supposed inability to provide the means of sup-
port for the  helpless  orphan or the desolate widow  of  another.
By the exertions of the missionaries,  the practice was arrested-!
   Nor were the savages of these inclement regions the only peo-
ple who were guilty of this horrid crime.   The gloomy  supersti-
tion of the  Mexicans delighted  in  human  sacrifices,  and the al-
tars of their divinities were  continually drenched with the blood
of infants  and of men.J   The number of these  sacrifices has
doubtless  been exaggerated, but the  fact is unquestionable, that
countless victims poured forth their lives to appease or conciliate
their imaginary deities.
   The  mothers in California are  described  as voluntarily de-
stroying their offspring.   Venegas states that the common cause
of it was a  scarcity of food, and that  the practice was put a stop
to by the Father Salva-Tierra,  who ordered a double allowance
to be given to women newly delivered.^
   Charlevoix describes a race  of savages in  North America,
who make a practice of destroying all infants who are so unfor-
tunate as to lose their mothers before they are weaned; at the
same time,  they inter  alive all  the  other  children, upon the plea
that no other female can nurse them properly.||
   The Peruvians, whom Dr. Robertson  eulogizes for the  mild-
ness of their manners, and the benevolent spirit of their religion,^
were  nevertheless in the habit of sacrificing children.   Acosta
tells us, that in such cases as the sickness  of the Inca, or doubtful
success in war and other  affairs, ten children were sacrificed;

  * Ellis's Voyage to Hudson's Bay, p. 198.
  t Barrow's Aceount of a Journey in Africa in 1801 and 2.  (Edinburgh Review,
vol. 8, p. 438.)
  } Robertson's History of America, vol. 3, p. 325.
  ij History of California, by Miguel Venegas. London, 1759. Vol. 1, p. 82.
  || Journal d'un Voyage a L'Amcrique Septenlrionale, par. le P. De Charlevoix.  A
Paris, 1744.  Vol.3, p.368.
  T History of America, vol. 3, p. 335. 
INFANTICIDE.
315
and upon the coronation of the Inca, two hundred were offered
up.  When a Peruvian father was taken sick, he sacrificed his
son to  Viriachocha, (the  sun,) beseeching him to  accept the life
of his child, and to save his own.  The same writer, when com-
paring the Peruvians and Mexicans, describes the former as ex-
ceeding the  latter in the sacrificing of children; while the latter
were  chiefly addicted  to the sacrifice of men taken in battle, of
whom they murdered an immense number. Robertson endeavours
to rescue them from this charge,  by invalidating the testimony of
Acosta.  He cannot, however, help confessing that the practice
did prevail among " their  uncivilized  ancestors;" but he adds,
" that it was  totally abolished by the  Incas, and that no human
victim was ever offered in  any temple of the sun."   He admits,
moreover, that " in one of their  festivals, the Peruvians offered
cakes of bread moistened with blood  drawn from the arms, the
eyebrows and noses of their children.   This rite may have been
derived," he says, " from the ancient practice in their uncivilized
state, of sacrificing human  victims."*
   Besides those that have been enumerated, travellers record the
names of other tribes  and nations inhabiting this vast continent,
who murder their children with  impunity and without remorse-
They tell us of the Abiponians, a  migratory race, inhabiting the
province of Chaco in Paraguay, among whom mothers have been
known to destroy all their  children as soon as they were born;!
and of the Araucanians, a powerful nation  of Chili, who  permit
fathers and husbands to kill their children and wives.J
   To the honour of our North American Indians, it deserves to
be mentioned, that they are not known to be guilty of this horrid
crime.  Mr. Heckewelder, in his  interesting account of the In-
dians who inhabited  Pennsylvania and the neigbouring  states,
says, "I have never heard  of any nation or tribe of Indians who
destroyed their children, when distorted or deformed, whether
they were born so, or come to be  so afterwards."§   To the same
effect are the testimonies of Captain Franklin and Dr. Richardson,
both of whom represent infanticide as an exceedingly rare occur-

  * History of America, vol.  3, p. 429. t Edinburgh Encyclopedia, Art. Abiponians.
  X Ibid. Art. America.
  § A Narrative of the Mission of the United Brethren among the Delaware and
Mohegan Indians, from its commencement in the year 1740, to the close of the year
1808, &c.  By John Heckewelder, who was many years in the service of that mis-
sion. 8vo. p. 516. Philadelphia. 
316                      INFANTICIDE.
 rence, and when an occasional instance of it takes place, is looked
 upon by them as a crime of the greatest magnitude.  Dr. Rich-
 ardson, in his interesting account of the Cree Indians, in giving
 their belief in relation to a  future state, says that it is a crime
 which they  believe  to  be punished  hereafter.  "Women who
 have been guilty of infanticide, never reach the Mountain (the In-
 dian  Heaven)  at  all, but  are compelled  to hover  round the
 seats of their crimes, with  branches of trees tied  around their
 legs."*
   But it   is  unnecessary to  extend  this  sketch  any further.
 Enough has been recorded to give a view of the wide-spread deso-
 lations of this unnatural crime ; certainly too much for the honour
 of human nature.

                          PART II.

   By infanticide in its most extensive signification, is understood,
 the criminal  destruction of the fcetus in utero, or of the  child af-
 ter it is born.   It  embraces, therefore, two subjects,  somewhat
 distinct, and which require separate discussion.

 1. Of the murder of the foetus in utero, with an  account  of its various
                proofs and modes of perpetration.
   This  is  usually called criminal abortion.   Recently the more
 appropriate and classical term of foeticide has been  applied to
it.  In  the following  essay,  these  terms  will be  used  indis-
criminately.
   In every instance in which a reputed case of foeticide becomes
the subject of legal investigation, the great  points which present
themselves are the following:
   1. Has the fcetus in utero  been actually destroyed'?
  2. Has this been brought about by criminal means, or by acci-
dental and natural  causes ?
  These are  the questions concerning which the  opinion  and
testimony  of the professional  witness will be  required;  and
these, therefore, are  the subjects  which it becomes  necessary
specially to  examine.  Before  proceeding,  however,  to the dis-
cussion of these points, it becomes necessary to settle a prelimi-

  * Journey to the Shores of the Polar Sea, in 1819-20-21-22. With a Brief Ac-
count of the Second Journey, in 1825-26-27.  By John Franklin,  R. N. Vol. 1, p.
151.  London, 1829. 
INFANTICIDE.
317
 nary question of great importance, and which is to determine, if
 possible,  the period of gestation  when the fcetus is to be consi-
 dered as  endowed with life.
   In reviewing  the various opinions which have been advanced
 on this subject at different periods, it will  abundantly appear,
 that too often fancy has usurped  the prerogative of reason,  and
 idle speculation been  substituted in the  place  of rational investi-
 gation.   The  consequence has been,  that doctrines have been
 promulgated, not  only  the most erroneous  and absurd in their
 nature, but the most  dangerous in their tendencies to the best
 interests  of society.
   The ancients were  by far the most extravagant in their notions
 on this subject.   The same  fundamental - error, however, per-
 vaded all their  theories.  They believed that the sentient and vital
 principle  was not  infused into the  fcetus, until some time after
 conception had taken  place.  It is not surprising that the  exact
 time at which  this union is effected, could never be satisfactorily
 settled by them.   According to Hippocrates,  the male  fcetus  be-
 came animated at thirty days after conception; while the female
 required forty-two.*   In another part  of his works, he asserts
 that this does not occur until the perfect organization of the fcetus.
   The Stoics believed  that the soul  was not united to the body
 before the act of  respiration, and  consequently that  the  fcetus
 was inanimate  during  the whole period of utero-gestation.!  This
 doctrine  prevailed until the reigns of Antoninus and  Severus,
 when  it gave way to  the more popular sentiments of the sect of
 the Academy, who maintained that the fcetus became animated
 at a certain period of gestation.  The Canon Law of the Church
 of Rome  also  distinguished between the animate and inanimate
 foetus,  and punished the destruction of  the former with the same
 severity as homicide.J
  Galen considered the animation of the fcetus to take place on
 the fortieth day after conception, at the  same time that he sup-
 posed the foetus to become organized.^   Others believed shorter
 periods sufficient;  and accordingly  three days and seven respec-
tively  had their  advocates.||   Another contended that eighty
days were requisite for the animation of the female, while only
  * Lib. de Nat. Puer. Num.  10.    t Plutarch's Morals, vol. 3, p. 230. London.
  X Zacchiae  Quaest. Med. Leg. lib. ix. tit. 1, 2,5, p. 744.
  § Opera Galeni, de Usu Part. lib. 15, cap. 5.  Lugduni, 1643.
  II Zacchiae, lib. 1, tit. 2, Q. x. p. 82.
                            27* 
318
INFANTICIDE.
forty were necessary for the male.*   Others again made  a dis-
tinction between  the imperfect embryo and the perfectly formed
foetus, and considered  abortion  of the  latter  only as  a crime
deserving the same punishment as homicide;  a distinction, of
which it  is justly remarked by a celebrated writer on medical
jurisprudence, " ennemie de la morale et de l'humanite,  digne de
l'ignorance et des prejuges de  ses auteurs."!
   Amidst these discordant sentiments,  Zacchias offers himself
as a mediator, and proposes sixty days as the limit; and recom-
mends that any  one who should  cause an abortion after that
period, whether of male or female, should be punished for homi-
cide.J
   All  the foregoing opinions, wholly  unsupported either  by argu-
ment  or  experiment, might be dismissed without a comment.
were it not to point out the evils to which they have  given rise.
It may be  said of them with  perfect truth, that their direct ten-
dency has been to countenance, rather than to discourage  the
destruction of the  fcetus, at least  in the earlier stages of preg-
nancy.  On a subject  of this nature, it was to be supposed that
legal decisions would  be influenced  in  a  great measure by the
opinions  of  philosophers  and  physiologists;  and  accordingly,
while  the delusion of the Stoics continued its sway, the law
could view  nothing  very  criminal  in  wilful abortion,^  as the
fcetus  was  considered  merely portio  viscerum matris.[|  And
afterwards, when the doctrines of the Academy were prevalent,
punishments very different, in the degree of their severity, were
inflicted,  according as  the abortion  was supposed to be  that of
an animate or inanimate fcetus.*[I
   In times more modern, an error no less absurd, and attended
with consequences equally injurious,  has  received the  sanction,
not merely of popular belief, but even of the laws of many civil-
ized countries.   The error  consists  in denying to the fcetus any
vitality until after the time of quickening.  The codes  of almost
every civilized nation have this principle incorporated into them;
 and accordingly, the punishment  which they  denounce  against
 abortion  procured after quickening, is much severer than before.
 The English law " considers life not to  commence before the in-

   * Zacchiae, lib. 1, tit. 2, Q. x. p. 82.         f Fodere, vol. 4, p. 484.
   X Zacchiae, lib. I, tit. 2. Q. x. p. 83.         § Fodere, vol. 4, p. 382.
   || Plutarch's Morals, vol. 3, p. 230.        T Fodere, vol. 4, p. 382- 
INFANTICIDE.
319
fant is able to stir in its mother's womb,"* and by a  recent law
the procuring  of abortion  after  quickening,  is  punished with
death, while  the same  crime, anterior to quickening, is only
viewed as felony.  In  Saxony, in consequence of the disputes of
medical  men  on  this  subect, it was  formally decided,  that the
foetus  might be esteemed alive after the half of pregnancy had
gone  by-!
  The absurdity of the principle upon which  these distinctions
are founded, is of easy demonstration.  The  foetus, previous to
the time of quickening, must be either  dead or living.   Now, that
it is not the former, is most  evident from neither putrefaction nor
decomposition taking place, which would be the consequences of
an  extinction of the vital principle.J   To say that the connexion
with  the mother prevents this, is wholly untenable:  facts are op-
posed to it.  Foetuses do actually die  in the uterus before quick-
ening, and then all the signs of death are present.  The embryo,
therefore, before that crisis, must be in a state different from that
of death, and this can  be no other than life.
  But if the fcetus enjoys  life at  so  early a  period, it may be
asked, why no indications of it are given before the time at which
quickening generally takes place 1  To this it  may be answered,
that the absence of any consciousness on the part of the mother,
relative to the motions of the child, is no proof whatever that
such  motions  do not exist.  It is a well known  fact, that in the
earlier part of pregnancy, the quantity of the liquor amnii is much
greater in proportion to  the size of the foetus,  than at subsequent
periods.  Is it not, therefore, rational to suppose, that the embryo
may  at first float in the  waters without the mother  being con-
scious of its  movements, but that afterwards, when it has  in-
creased in bulk, and the waters  are  diminished in proportion, it
should make distinct and perceptible impressions upon the uterus ?
Besides, it should not be forgotten, that foetal life at first must of
necessity be extremely feeble, and therefore it ought not to be
considered strange  that muscular action  should also be propor-
tionably weak.
  * Blackstone, vol. 1, p. 129.
  t  Specimen Juridicum Inaugurate,  Auctore Van Visvliet, p. 46.  Lugduni Bata-
vorum, 1760.
  X Some very curious and interesting cases are recorded in  which the dead foetus
has been retained for a certain period in the uterus without undergoing actual de-
composition. See a case by J. G. Porter, M. D. in American Journal of Med. Sciences,
vol. 17, p. 347, and another by the  Editor of the same work, Dr. Hays, vol. 20, p.
535.  These, however, are exceptions to a general rule, and do not invalidate the
reasoning in the text. 
320
INFANTICIDE.
   But granting, for the sake of argument, that the foetus does not
 stir previously  to quickening, what  does the  whole  objection
 amount to ? Why, only that one evidence of vitality, viz. motion,
 is wanting; and we need not be  told that  this sign is not  essen-
 tial to the existence of life.*
   The incompleteness of the embryo previous to quickening, is no
 objection to its  vitality.  Life does not depend upon a complica-
 tion of organs;  on the  contrary, it is found  that  some  of the
 simplest  animals, as the  polypi, are the most tenacious of life.
 Besides,  upon this principle, vitality must be  denied to  the child
 after birth, because  many of its bones, as well as other parts of
 its body, are imperfect.
   Nor is  the  want of organic  action any argument against this
 doctrine.   Life appears to depend essentially as little upon or-
 ganic action, as it does upon a complication of organs.  If it did,
 the fcetus, after quickening, would  be  just as  destitute of life as
 before, for its brain, lungs, stomach, and intestinal canal, perform
 no more action  at the eighth  month  than they do at the third.
 But if organic action be essential to life, how are we to account
 for  those singular cases of foetuses born alive, and yet  destitute
 of some of the most important  organs  in the body ?!
   The observations  of physiologists tend also to prove the vitality
 of the foetus previously to quickening.   Long before  quickening
 takes  place, motion, the pulsation of the heart, and other signs of
 vitality have been distinctly perceived.   Haller,  indeed, asserted,
 " that all the viscera and bones of the future fcetus, nearly fluid
 indeed, and therefore invisible, were preformed before conception
 in the maternal germ."   However objectionable such an opinion
 may be, yet the fact is  certain, that the faslus enjoys life  long be-
fore the sensation of  quickening is felt by the mother.   Indeed, no
 other doctrine appears to be consonant with reason or physiology,
 but that which admits  the embryo to possess vitality from the
 very moment of conception.
   If physiology and  reason justify the position just laid down, we

  * There is a difference of opinion as to the real nature of quickening. It has been
 lately suggested by a writer, that it is altogether independent of any motion of the
 child, and that it is to be attributed to the sudden rising of the uterus out of the pel-
 vic cavity into the abdomen.  (London Med. and  Phys. Journal, vol. 27, p. 441.) If
 this  opinion be true, it would afford another incontrovertible argument in favour of
 the position which I have advocated.
  t Saumarez' Physiology, vol.  2, p. 21; Review of Sir E. Home's paper qn the
 Functions of the Brain, Edin. Review, vol. 24, p. 439. 
INFANTICIDE.
321
 must consider those laws which  exempt from punishment the
 crime of producing abortion at an early period of gestation, as
 immoral and unjust.  They tempt to the perpetration of the same
 crime at one time, which at another they punish with death.  In
 the language of the admirable Percival, " to extinguish the first
 spark of life, is  a crime  of the same nature, both  against our
 Maker  and society, as to destroy an infant, a child, or a man:
 these regular  and successive stages of existence being the  ordi-
 nances  of God, subject alone to his divine will, and appointed by
 sovereign wisdom and goodness, as the exclusive  means of pre-
 serving the race, and multiplying the enjoyments of mankind."*
   Having thus endeavoured to show that there is no period of
 gestation at which the fcetus is not to be considered alive, I come
 now to take up the consideration of the questions originally pro-
 posed.
   Quest. 1. Has the foetus in utero been actually destroyed ?
   The proofs  to establish this, are to  be drawn from two sources,
 viz: From an examination of the  reputed mother,—and an ex-
 amination of the foetus.

 Of the signs of abortion to be deduced from an examination of the
                            female.
   In the early months of pregnancy, it is extremely difficult to
 ascertain whether an abortion has taken place or not.  The foetus
 has scarcely had time to make those firm attachments which af-
 terwards unite it to the  womb ; nor has it attained to a size suf-
 ficient to produce those general changes in the constitution of the
 mother,  nor those local alterations  from  the distention of the
 uterus  and abdomen,  which  are afterwards  occasioned.   Its
 separation, therefore, is  unattended by violence, and leaves but
 faint, if any traces  of its previous  existence.  The haemorrhage
 attending it is also of small consequence, inasmuch as the uterine
 vessels have not yet sustained any great enlargement, and there-
 fore very speedily contract.  The period to which  these remarks
 more particularly apply, is the two  first months of pregnancy,
 during which it is conceded that no satisfactory opinion can ever
 be formed from an examination of the female-! After this period,

  * Percival's Works, vol. 2, p.  430,31.
  f Manuel de  Medecine Legale.  Par. J. Briand. p. 67.—A Manual of Medical
Jurisprudence, by  M. Ryan, M. D. Edited by R. E. Griffith, M. D. p. 129.—Marc,
 Dictionnaire de Medecine, vol. 3, p. 193.—Dr. Montgomery, in his valuable paper on 
322
INFANTICIDE.
and just in proportion to the approach to the full term, will the
signs be more decisive and satisfactory.  For obvious reasons, I
shall  describe them such as  they will be found when existing in
their  most marked and defined character, and these are the same
as those which occur after ordinary delivery.
   The  signs  are deduced from three different  sources,  viz:—
From the condition of the organs of generation themselves:—from
the condition of the abdominal parietes;—and from the condition
of the breasts.
   1.  Condition of the organs  of generation. In consequence of the
expulsion of the  foetus from the uterus, there are several striking
changes which take place in these organs, from which important
conclusions  may be drawn.   The more characteristic of these
are the following:
   Labia and perineum. The labia will be found, on examination,
to be tumified and relaxed,  and of a dark  red colour; while in
some cases  the  anterior edge of the perineum, called the four-
chette,  will be lacerated.  These changes,  of course, are owing
to the unnatural irritation and distention which these parts have
necessarily undergone during the passage of the foetus.
   Vagina. On introducing  the finger into  this organ, it will  be
found preternaturally enlarged and relaxed, from the same cause
as the preceding.  From the distention which it has suffered, its
natural rugae will also be obliterated, and  its inner  surface ren-
dered more  or less smooth.
   Os and cervix uteri.  On  examining with the finger imme-
diately after  delivery, the neck of the  uterus will be  indistinct,
and  the mouth of that  organ  so dilated  as  to be scarcely distin-
guishable from the cavity of the vagina.   When it is discovered,
its edges will be found  to be soft and flabby, and so open as to
 admit of the introduction of two  or more of the fingers.  After
 delivery, the os uteri  gradually contracts, but never or  " rarely
 closes  to the same degree as in the virgin state."*
   Uterus. This is to be examined through the abdominal parietes.

 the signs of pregnancy and delivery, relates the case of a lady to whom he was call-
 ed, who miscarried at the end of the second month.   In twenty-four hours after-
 wards, he found the os and cervix uteri almost completely restored to their natural
 state ; the vagina and external parts hardly if at all dilated, and very little relaxed ;
 and the breasts exhibited very imperfectly the appearances which accompany preg-
 nancy, the ordinary sympathetic symptoms of which had been almost entirely ab-
 sent.  (See Cyclopaedia of Practical Medicine, vol. 3, p. 504.)
   *  Burns' Midwifery, p. 564. Seventh American edition. 
INFANTICIDE.
323
On applying the hand to the abdomen immediately after delivery,
this  organ will be readily detected just above  the pubes, in the
shape of a hard round ball about the size of the child's head.   It
is  during the first week after delivery, that the uterus is to be felt
most distinctly  in this situation;  after this, the uterine  tumour
gradually lessens, and becomes more  and more indistinct.  It is
at least a month, according to Burns, before the uterus returns to
its natural dimensions.*
   The lochia.  This is a discharge which takes place from the
uterine organs immediately after the completion of delivery, and
continues for a certain number of  days.   At first it is pure blood,
and  continues so during the first two or three days after delivery.
It then changes to  a paler colour, and finally assumes a whitish
appearance.    In  some  cases  it  eventually becomes of a dark
dirty green aspect, when it is known by the name of the "green
waters."   Now as this discharge comes from the relaxed and
ruptured vessels of the uterus, and as its cessation depends upon
the  contraction of these vessels, it is evident that not merely its
quantity, but its duration, must vary very greatly, according to
the  particular condition  of the patient and the  greater or less
rapidity with which the .uterine vessels contract.  Accordingly,
it will  be  found that in some cases this discharge ceases in ten
or twelve  days, while in others it continues, to the twenty-fifth or
thirtieth day, and  sometimes even longer.!  Attending this  dis-
charge, there  is an odour  so peculiar that it can always be re-
cognized  by those  at all conversant with  it, and which is not
present in any other discharge from  the uterine organs.
   2. Condition of the  abdominal parietes.   The  circumstances
indicative of delivery, in connexion with the abdominal parietes,
 are  their  flaccidity, and the  presence of the lineae albicantes.
   Flaccidity of the abdomen.  On examining the surface of the
 abdomen  after delivery, besides detecting the  uterine  tumour,
 which has  been  already mentioned, the abdomen will  be found
 soft, relaxed, and frequently lying in folds.  So  great is this  re-
 laxation  of the parietes sometimes,  that  they  may be almost
 folded round the hand.  This is more especially observed in those
 who have borne a number of children.
   *  Burns' Midwifery, p. 564.
   t  See an Elementary Treatise on Midwifery, by A.  L. M. Velpeau, M. D. Trans-
 lated by C. D. Meigs, M. D. p. 579.  A Compendious System of Midwifery, &c. by
 William P. Dewees, M. D. p. 210. 
324                       INFANTICIDE.

  Linece  albicantes.   These are shining whitish lines, to be seen
on the surface of the abdomen, extending chiefly from the groins
to the navel.  They arise from the great distention and cracking
of the skin during  pregnancy, and remain  frequently permanent
for life: they are not, therefore, to be looked upon as the evidences
of recent delivery.
  3.  Condition of the breasts.  The phenomena connected with
the breasts  as evidences of delivery, are their  enlargement, the
secretion, and the presence of the areola.
  Enlargement of the breasts.  About the third month of preg-
nancy, the breasts begin to enlarge, and continue to do so until
they frequently become  double their original size; at the same
time they become  tender  and painful,  and have a  firm lumpy
feeling.  After delivery, particularly if examined about the third
or fourth day, they will be found  full and tense.
  Secretion  of milk.   This is another sign of pregnancy and de-
livery.  It  is important,  however, to  recollect that  too  much
stress should not be laid upon this, apart from other indications,
inasmuch as it frequently takes place independently of both.  Dr.
Blundell relates the  case of a female  who had not had a child
for three  years ; she had not  suckled for  some time previously,
and  was  not pregnant, and yet  the secretion  of milk was so
active that it flowed freely on the least pressure of the breast*
Another case is related by him, of a negress who secreted milk
for twenty years after her pregnancy-!
  Areola  around, the  nipple.  In the virgin state, the nipple  is
surrounded  by a circular discoloration of the skin, which is gene-
rally of a rosy tint,  sometimes merely a little  lighter than the
natural skin.  During the pregnant state, this undergoes striking
changes.  It becomes broader and darker, being  converted into
" a coppery  red, or a dark mahogany brown."J  The diameter
of this  circle  averages  from one inch to one inch and a half.
Both the extent and colour of the areola differ considerably in
different persons.^   After a first pregnancy, it is to be recollected

  * Blundell's  Midwifery, p. 112. American edition. + Ibid. p. 112. X Ibid. p. 113.
  § Dr. Montgomery records a case in which the diameter exceeded three inches. In
negro women, the areola is almost jet black. (Cyc. Prac. Med. vol. 3, p. 474.)
  Dr. Montgomery, who has paid especial attention to this subject, describes other
features besides mere colour, as characterizing very strikingly the areola. His words
are the following: "In the centre of this circle, (the areola,) the nipple is observed
partaking of the altered colour of the part, and appearing turgid and prominent; and
the part of the  areola more immediately around the base of the nipple, has its surface 
INFANTICIDE.
325
 that  the areola remains more or  less permanent; it is therefore
 not to be looked upon as a criterion of a recent delivery.   Of all
 the individual signs, this is one of the  most certain, and may be
 depended upon with a good  deal  of confidence, provided the dis-
 coloration be very decided, and the female has not borne children
 previously.
   Such are the signs deduced from the female, by which it is to
 be determined whether  a delivery has  taken  place.   From the
 account given of them, it is evident  that many are necessarily
 evanescent in their character; and therefore, in order to obtain
 the fullest amount of testimony from them, the examination should
 be instituted  as  speedily  as  possible after delivery  has  taken
 place.  With regard to the latest period after delivery, at which
 a satisfactory decision may  be made, some difference  of opinion
 has existed.  The period fixed upon by medical jurists generally,
 is from the eighth to the tenth day.*   After  this, many of them
 become too  obscure  to be  relied on  with any degree of  cer-
 tainty.
   Relative value of the  preceding signs of delivery. In  relation to
 the foregoing signs, it is essential to recollect that all of them
 have been objected to as uncertain, inasmuch as almost  every
 one of  them  may be produced  by other  causes than delivery.
 Thus, for example, the enlargement and relaxation of the exter-
 nal parts may arise from simple  menstruation; the dilatation of
 the vagina  and os uteri, and the  enlargement of the uterus, may
 arise from hydatids or moles; the relaxation and marked state of
 the abdomen may arise from dropsy;  even  the  areolae around
 the nipples, as well as the secretion of milk, may arise from other
 causes than pregnancy and delivery.
   Now it must be admitted that,all these objections  are, to  a  cer-
 tain extent, well founded; and they go  to show that no one sign,
 taken by itself, ought to be considered sufficient to establish the

 rendered unequal by the prominence of the glandular follicles, which, varying in
 number from twelve to twenty, project from the sixteenth to the eighth of an inch;
 and lastly, the integument covering the part is observed to be softer and more moist
 than that which surrounds it, and the breasts themselves are at the same time ob-
 served  to be full and firm, at least more so than was natural to the person previously.
 Such we believe to be  the essential characters of the true areola, the result of preg-
 nancy; and that, when found possessing these distinctive marks, it ought to be looked
on as the  result of that condition alone, no other cause being capable of producing it."
 (Cyclopaedia of Practical Medicine, vol. 3, p. 474.)
  * Paris and  Fonblanque, vol. 1, p.  252.  Fodere, torn. 2, p. 87.  Montgomery in
Cyclopaedia of Practical Medicine, vol. 3, p. 503.  Griffith's Ryan, p. 133.
   VOL. I.                        28 
326                      INFANTICIDE.
fact.  In all cases, a number of the signs should concur  before
any satisfactory conclusion can be formed.  If this general cau-
tion be observed, the force of all the preceding objections will be
materially weakened.  Thus, for instance, menstruation may re-
lax the vagina and external parts, at the same time that it causes
a discharge from these organs.  In this  case, however,  all the
other signs will be absent.  The peculiar odour of the lochia will
be wanting;  there will be no dilatation of  the os uteri—no en-
largement of the uterus—no wrinkling of  the abdominal parietes
—no secretion of milk, and no areola around the nipples.  Again,
dropsy may cause a great relaxation and wrinkling of  the abdo-
men.  I say may, because, generally speaking, unless the  dropsi-
cal fluid be  suddenly removed by tapping, this will  not happen,
as in ordinary cases the fluid is removed so  gradually that the
abdomen has time to  contract, and accommodate itself to the
change.  Admitting, however, that these signs of pregnancy may
be counterfeited by dropsy, so many others will be absent as  to
leave no doubt  in the case.   The vagina and  external parts will
not be affected; the os uteri  will not  be dilated; the uterus will
not be enlarged;  the breasts  will have undergone no change, and
there will be no lochial discharge.
  With regard  to the secretion of milk from  other causes than
pregnancy, this is a fact which cannot be denied.  But in cases
of this sort, so many of the other signs of delivery will be absent
as to obviate any difficulty that may arise.
  As to  the objections founded on the existence of hydatids, it
must  be confessed that  much more  difficulty attends  a  correct
decision.  These, however, I shall consider fully under the next
head.

Of the signs of abortion, in cases in which the delivery  is followed
                  by the  death of the female.
  Cases of this kind sometimes occur, and it then becomes the
duty  of  the  professional  man to prosecute  his researches still
further, by  an  anatomical inspection of  the  uterus and its ap-
pendages.
   1.  The uterus.  In this organ, various appearances will be de-
tected, indicating the fact of its having contained a foetus.
   Its she will be different from that of the unimpregnated uterus.
In the unimpregnated  state, the dimensions of the uterus  may be 
INFANTICIDE.
327
put in round numbers at three inches for its length, two for its
breadth at the fundus, one inch at the cervix, and one inch for
its thickness.  In the gravid  state, it is evident that its size must
vary considerably according  to the size of the foetus, and accord-
ing to the quantity of liquor amnii.*   A general average however,
of its gradual changes in this respect may be put as follows:—
During the  first month the uterus, undergoes little or no change
in its size-!   During the second month  it becomes considerably
enlarged.  About the end of the third month it will measure
about five inches in length, of which the cervix will measure one
inch.   In the fourth month, it will measure five inches from the
fundus to the  beginning  of the neck.  In the fifth  month,  it will
measure six inches  from the fundus to  the cervix.  In the sixth
and seventh months it will measure about eight inches, and in the
ninth it will be  from ten to  twelve  inches from the top to the
bottom.J
  Now in a case where  a woman dies from  haemorrhage during
labour, at the full time  or immediately after, the  uterus will be
found like a large flattened pouch measuring from ten to twelve
inches.   In  this  case little or no contraction  having taken  place,
the dimensions of the uterus are little changed from what they
were anterior to labour.    If, however, uterine contractions should
have  taken  place, the dimensions of the  uterus would  be con-
siderably less.  If some days  had elapsed, the size would of course
be still more diminished.  If  the examination be made about two
days  after delivery, the  uterus will be about seven inches  long.
At the end of a  week, it will be about five or six inches,§ and at
the end of a fortnight about five inches long.
  Its  shape will  be different from what it is in the unimpregnated
state.  In the unimpregnated state, the uterus is a flat body, pyri-
form  or somewhat triangular in its shape.   During the first two
months of pregnancy its shape remains  unchanged;  after this,
the body of it becomes  globular, without  any material  change
having taken place in the neck, until about the fifth month.  After
this the  neck grows shorter and broader, until in the two last
months  it is almost  entirely obliterated, and forms a part of the

  * An Anatomical description of the Human Gravid Uterus and its contents.  By
the late William Hunter, M. D. p. 2.
  t Maygrier's Midwifery, p. 81.     1 Burns' Midwifery, pp. 185, 563.
  § According to Burns,  " a week after delivery, the womb is as large as two fists."
(Midwifery, p. 564.) 
328
INFANTICIDE.
general  cavity of the uterus.  The shape of the uterus is  now
completely ovoid.  Now if, death takes place during  or imme-
diately after  labour, the shape of the uterus will be ovoid,  or if
contractions have taken place, it will be globular.   If, on the other
hand, several days have elapsed, it will have regained somewhat
of its pyriform shape.
   Thickness of the uterus. On this point contradictory accounts
are given.  At the full time however, and when the uterus is still
distended with its contents, its  thickness varies  very little from
that before impregnation; in some  cases even it appears to be
thinner ;* according  to  Hunter,  its more common thickness is
from one to two-thirds of an inch-!  Generally speaking, too, the
uterus is thickest at its fundus, and especially where the placenta
has been attached. When, however, the examination is not made
until some hours or days after delivery, and the uterus has had
time to contract, it will  then be found thicker than natural.  In
that state  it  will often  be found two inches thick.J   It is  well
enough to  recollect that gravid  uteri, when injected,  are much
thicker than in their natural state.§
   Uterine blood-vessels. There is  nothing in connexion with the
pregnant uterus more striking, than the great enlargement which
the blood-vessels have undergone.  Both the arteries and veins,
but more  especially  the latter, are enormously  enlarged from
their  natural  dimensions.  This  is most  strikingly observed in
that portion of the uterus  to which  the placenta  is  attached.||
The arteries will be found  from the size of  a goose quill to that
of  a  crow quill, and  downwards,!" and the veins will be found
much larger.   In some  cases, the  orifices of the veins  opening
into the uterus from  the surface where the placenta has been
attached, are large enough to  admit  the  extremity of the  little
finger.**
   Inner surface of the uterus, and the placental mark.  If the exa-
mination be made shortly after  delivery, the cavity of  the ute-
rus will  be found to contain coagula of blood, or a bloody fluid.
The part of  the  uterus to which the placenta has been attached,
  * Monro in the Edinburgh Essays and Observations, Physical and Literary, vol. 1,
p. 418.  See, also, Hunter on the Gravid Uterus, p. 15.
  t An Anatomical Description of the Human Gravid Uterus and its Contents. By
William Hunter, M. D. p. 15.              X Ibid. p. 15.
  § Edinburgh Essays and Observations, vol. 1, p. 418.
  || Hunter on the Gravid Uterus, p. 17,
  T Edinburgh Essays and Observations, vol. 1, p. 427, 435.  ** Ibid. vol. 1, p. 412. 
INFANTICIDE.
329
will be very visible, and corresponding  in size  to the placenta.
This part will be of a dark colour, and  have a gangrenous ap-
pearance ; the vessels leading to it will also  be much more en-
larged than those of any other portion of the uterus.
   Ligaments of  the uterus.  These undergo great changes.  The
broad ligaments  will be found effaced, in  consequence of  the fun-
dus of the uterus enlarging  and rising, so as  to stretch them into
a uniform covering of the uterus.  This, of course, is only at the
full term of pregnancy; at earlier periods, the condition  of these
ligaments will vary according to the enlargement which the ute-
rus  may have  undergone.  The  round  ligaments will be found
much elongated, and  thicker than in the ordinary state.   In this
enlarged state, they are about the thickness of the little finger;
while in their natural state, they are  not  thicker  than  a  crow
quill.  They are also exceedingly vascular—so  much  so, that
when injected, " they seem  to be little  more than a bundle of ar-
teries and veins."*
   Fallopian  tubes.  These will  be found  less  convoluted—larger,
and much more vascular  than in the  unimpregnated state.  So
great is this vascularity as frequently to  give them a purplish ap-
pearance, looking very much as if they were in a state of inflam-
mation.   Generally the tube leading to  the ovary from  whence
the ovum has escaped, will be found the most  enlarged.  Mr.
Burns  says, " the fallopian tube preserves its  greater vascularity
for a very considerable time, I cannot say  how long, after de-
livery."!
   Ovaria. These will be found but little  different from the  state
anterior  to  impregnation, with the exception of the one  from
which  the ovum has  escaped, and which  contains  the corpus
luteum.   This ovarium can  easily be identified by a peculiar ful-
ness or prominence in one part of it, sensible both to the sight and
touch,  in the middle of which there is  a  small indentation like a
cicatrix.   On laying open the ovarium at this part, there will be
found a body of a very distinct nature from the rest of  the ova-
rium ;  this is the corpus luteum.  It is sometimes round, but more
generally oblong or oval.   " Its centre  is white, with some de-
gree of transparency; the rest of its substance has a  yellowish
cast, is very vascular,  tender  and friable like glandular flesh."J

 * Hunter on the Gravid Uterus, p. 13.          t Midwifery, p. 564.
 X Hunter on the Gravid Uterus, p. 14.
                            28* 
330
INFANTICIDE.
 Such is the appearance of the corpus luteum, if examined shortly
 after delivery at  the full time.  If examined,  however, at other
 periods, these appearances will be considerably different.  The
 earliest period after  impregnation, at which  the corpus  luteum
 has been observed in the  human subject, is in the case recorded
 by Sir Everard Home.  Here the female died about eight days
 after impregnation; and  on  dissection, the right  ovarium was
 found to have a small torn orifice  upon the most prominent part
 of its external surface.  On slitting open this  orifice, it led  to  a
 cavity filled with coagulated blood, and surrounded by a yellow-
 ish substance.*  The blood is gradually absorbed, and the cavity
 becomes lined with a white membrane. During the earlier months,
 a fluid will be found in the cavity.!  The cavity after this be-
 comes  gradually contracted, and in the third or  fourth  month,
 it is about large enough still to contain a grain of wheat; after
 this it is completely obliterated, and in its place  there is left  a
 central white radiated or  stellated  line.J   This stellated line is
 looked upon by Dr. Montgomery as a distinguishing characteris-
 tic of a genuine corpus luteum.§   It is not permanent, however,
 but disappears at about five months after delivery.
   Such is the  corpus luteum. It is largest and most vascular
 in the earlier periods of pregnancy; less so at  delivery; and dis-
 appears altogether, according  to the observations of Dr. Mont-
 gomery, at about five months after delivery.
   Relative value of the preceding signs,  drawn from an examina-
 tion after death.  Striking  as the foregoing signs unquestionably
 are, objections of a very serious character may be made against
 them.  As these objections have actually been brought forward
 in criminal trials, a notice of them is unavoidable.   Of these the
 only ones which require consideration, are, that all the appear-
 ances just described as found on dissection after delivery, mav
 have been occasioned by  the delivery of hydatids or moles;  and
 that the corpora  lutea may exist independent  of pregnancy and
 delivery.   Each of these objections I shall briefly notice.

  •Philosophical Transactions for 1817, part 1.
  t Hunter on the Gravid Uterus, p. 74.
  X Montgomery on the Signs of Pregnancy, p. 226.
  v " Of this latter appearance, (the radiated line,) it ought to be observed here that
it is visible as long as any distinct trace of the corpus luteum remains, and forms an
essential character, distinguishing this body from every other that might be con-
founded with it." (Ibid. p. 226.) 
                         INFANTICIDE.                      331

  1. Hydatids. Although not of very frequent occurrence, these
are sometimes found existing  in  the uterus.   They are small
vesicles, hung together in clusters, and filled with a watery fluid.
Their real nature  is  not  exactly known, although  they are  sup-
posed to be animals of a very simple structure.  They sometimes
exist in large masses in the uterus.   The orgin of these curious
productions is by no  means  established.  By some it is supposed
that they  may exist in the uterus itself, and originate without any
connexion with impregnation.   This, however, is by no means
certain; and the probability is that they never occur without sex-
ual intercouse*   As  commonly found, they appear to arise from
the destruction of the ovum at an early period, or portions of the
placenta remaining in the  uterus  after abortion or delivery, and
degenerating into  this kind of growth.   Now it is very evident
that some of the appearances and  phenomena of pregnancy may
be, and actually  are, simulated by  the presence of these sub-
stances in the uterus.  Every phenomenon that depends upon the
mere distention of the uterus, and  the subsequent discharge of its
contents,  may thus be counterfeited.  So far then as the  mere ex-
ternal appearances go, it is  frequently impossible to decide whe-
ther they originate from  a  real  foetus, or  from hydatids. Even
where there is no wish to conceal the real condition of the  per-
son, it is sometimes difficult to  make  up a  positive opinion.   Fe-
males have in this way  been themselves  deceived.   Presuming
themselves pregnant, the discharge of the hydatids has led them
to suppose  it a real miscarriage.!
   In cases like those of  criminal  abortion, where every effort  is
made  at  concealment, it is  of course out  of the question to  say
which was the cause ;J and  the only way to settle the question, is
by an examination of what may have been actually discharged
from the  uterus.  In cases where  the abortion ends in the death
of  the female, although we  have the  benefit of the additional in-
formation furnished  by  dissection, still the inquiry is not unat-

  * Madame Boivin broadly asserts that hydatids are always the product of a degen-
erated conception, and that no virgin female can ever have them. (Nouvelles Recher-
ches sur l'origine, la nature, et le traitement de la mole vesiculate ou grossesse hy.
datique. Par Me. Boivin. Paris, 1827.)
  t An account of some of the  most important Diseases peculiar to Women.   By
Robert Gooch, M. D. p. 216. American edition.
  X Gooch, after relating some cases of hydatids, says, " In the progress of these
cases, it is impossible to come  nearer the truth than this—that the abdomen owes
its enlargement to a distended uterus; but  what this organ contains, is uncertain."
(lb. p. 218.) 
332                      INFANTICIDE.

tended with difficulties;  and it is  by no  means easy to decide
whether the phenomena which are observed are the result of the
expulsion  of a real  fcetus, or of hydatids.  The following  con-
siderations must render this obvious.  It has already been stated
that, in all probability, hydatids are always the result of impreg-
nation, the ovum or  some  portion  of the  contents  of the gravid
uterus, being converted into this kind of  growth.  If this be so,
a corpus luteum will be found, if the examination be made under
favourable circumstances.  Besides this,  it  has already been stated
that every phenomenon  connected with the  enlargement of the
uterus, and the dilatation of the os uteri,  may also be  produced
by  hydatids.   Even  the placental  mark may be present.  Cases
therefore  may occur, in which it would be  impossible to dis-
tinguish between the two.   I say may, because  generally speak-
ing, in cases of hydatids, no placenta is  found, and therefore  they
do  not  leave behind  them any thing like the mark which is left
by  that body  on the inner  surface of  the  uterus.  In  cases  of
hydatids, the vesicles hang  in  clusters,  attached by an  interme-
diate membrane to the inner surface of the uterus.*   This  then
would furnish one mark of distinction.   Another might be found
in the different condition of the uterine blood-vessels.   In cases
of  real pregnancy, the blood-vessels, especially those confined  to
the  placental space, undergo a much  greater enlargement  than
when hydatids alone are  in the uterus.   Independently,  how-
ever, of all these considerations, there is not practically,  after all,
so  much  difficulty in these cases as might be anticipated.  If
hydatids are always the result of a degenerated conception, then
the  fact of impregnation is conceded; and  this, after all, is the
great point to be established in these cases.   If, on the other hand,
hydatids have no connexion with  conception, then the  question
might be  decided  by the  presence or absence  of the  placental
mark, but  more especially by  the presence or absence of the
corpus luteum.

  *  By Dr. Denman, they are described in  the following manner : " Hydatids  or
small vesicles, hang together in clusters, from one common stem, and containing a
watery fluid,  are sometimes formed in the cavity of the uterus."  (Introduction to
the Practice of Midwifery, p. 146.  American edition.)
  According  to Dr. Baillie, " they consist of vesicles of a round or oval-shape, with
a narrow stalk to each, by which they adhere to the outside of one another. Some of
these hydatids are as large as a walnut, and another  as small as a pin's head.  A
large hydatid has generally a number of small hydatids adhering to it by a narrow
process." (Morbid Anatomy, p. 136. American edition.) 
INFANTICIDE.
333
  Besides all  this, in cases where the signs  of delivery are al-
leged to be owing to hydatids, it is but reasonable to expect that
these should be adduced in evidence, and in that case of course,
all difficulty will at once be obviated.
  2. Moles.  These are peculiar substances contained within the
cavity of the womb.   They consist  of a  membrane enclosing
generally a quantity of coagulated blood.  Frequently, however,
they appear of a fleshy structure without  any blood.  In their
size, consistence, and structure they differ  very much in  indivi-
dual cases.  They occur, too, under a variety of circumstances.
They have been met with in females who have never been mar-
ried, or borne any children.   In some cases they have  followed
a natural delivery,  or a miscarriage ;  while in others they have
accompanied certain diseased conditions of the uterus.   By some
it is supposed  that these formations never take place in the virgin
state.  Mr.  Burns says, he has  never met with a case contra-
dictory of such a supposition.*   That they may, however, occur
occasionally without any sexual intercourse, appears to be pretty
well established.  Now in these cases, many of the symptoms of
actual pregnancy are present.  The abdomen becomes enlarged;
the stomach is affected with nausea;  and even the breasts be-
come swollen-!  Here then, also, as in the case of hydatids, it is
impossible from mere external appearances to say whether these
symptoms arise from genuine pregnancy or not.
  In these cases where death takes place, and dissection has been
had, the same  reasoning is applicable here as in cases of hydatids.
If the mole be the product of a real conception, the great object
of the investigation is at  once conceded.  If on the  other hand,
it be not the product of a real conception, then  the examination
of the placental mark and. ovaria will indicate the fact.
  3. With regard to the objection raised on the ground that the
corpora lutea are sometimes found in virgins, and therefore are not
to be looked upon as the infallible evidences of impregnation, it
has been rendered more than doubtful whether a genuine  corpus
luteum is ever present except in cases of real pregnancy.J

  * The Principles of Midwifery, p. 127.         t Ibid. p. 127.
  % On this subject see the luminous investigations of Dr. Montgomery, in the Cy-
clopaedia of Practical Medicine.  According to him the appearances which are con-
sidered as corpora lutea occurring in  virgins, differ from those of impregnation in
all the following  particulars: "1. There is no prominence or enlargement of the
ovary over them :  2. The external cicatrix is wanting : 3. There are often several 
334
INFANTICIDE.
Of the  signs  of abortion, deduced from  an examination of what
             may have been expelled from the uterus.
   Here there are three objects to be had in view, viz:  To ascer-
tain whether it be really a fcetus that has been expelled from the
uterus ; and if it be a foetus, to ascertain its age; and lastly, to
ascertain the cause of its expulsion.
   1.  To ascertain whether it be really a foetus which has been ex-
pelled.  From the difference in structure of the foetus from hyda-
tids and  moles, it is  scarcely possible that any mistake can be
made in distinguishing them from one another, except in the very
early months of pregnancy, say in the first two months;  and at
this early period,  probably no  medico-legal investigation  could
ever be instituted with any satisfactory result.
   2.  To ascertain the age of the foetus.   This is important,  inas-
much as it enables us to compare it with the appearances found
on an examination of the  female, to see how  they correspond,
and in this way to assist in detecting any imposition which may
be attempted.   In a preceding chapter, the progressive develope-
ments of the foetus have been so fully detailed, as to render here
unnecessary, any thing more than a simple reference to it.*
   3.  To ascertain, if possible, what has been the cause of the mis-
carriage.   If the abortion  has  been  occasioned by  the  use of
drugs, &c. taken by the mother, nothing can be learned as to the
cause of it, whether it be voluntary or involuntary,  from any
examination of the foetus.  In  all cases its appearance will be
very much the same, whatever may have occasioned its expul-
sion from  the womb.  As, however, it may have been produced
by mechanical violence done to the foetus itself,  by the introduc-
tion of instruments, &c. it becomes necessary to examine it very
carefully,  and more especially its head, to discover  the  nature
and extent of the  wounds (if  any)  which may have been  in-
flicted.

of them in both ovaries, especially in patients who have died of tubercular diseases:
4.  They are not vascular, and cannot be injected : 5. Their texture is sometimes so
infirm that they seem to consist merely of the remains of the coagulum, and at
others appear fibro-cellular and resembling that of the internal  structure of the
ovary, but in no instance did we ever see them  presenting the soft, rich and regu-
larly glandular appearance which Hunter meant to express when he described them
as 'tender and friable like glandular flesh:' (Description of the Gravid Uterus, p.
14.) 6. They have neither the central cavity nor the radiated cicatrix which results
from its closure."  (Cyclopaedia of Practical Medicine, vol. 3, p. 502.)
  * See chap. vii. part 2. 
INFANTICIDE.
335
Quest. II.  Of the means, by which the death of the foetus may have
                        been produced.
  Having,  in the foregoing manner, examined the first question
to be solved, viz. whether a fcetus in the utero has actually been
destroyed, the second question relates to the causes by which it
may have been produced.
  The practice of causing abortion, is resorted to by unmarried
females,  who, through imprudence have become  pregnant,  to
avoid  the disgrace which would attach  to  them from having a
living child; and sometimes  it is even employed by married wo-
men,  to obviate a  repetition of peculiarly severe  labour-pains
which they may have previously suffered.  But abortion is not
always associated with crime  and disgrace; it may arise  from
causes perfectly natural, and altogether beyond the control of
the female.  The physician  should therefore be extremely cau-
tious in his proceedings, even in  cases of illegitimate pregnancy,
and where the voice of popular prejudice seems to call upon the
medical witness merely to  confirm its  previous, and often false
decisions.   The destruction of the fcetus may then  result from
two  sets  of causes.    1.  The  use and application of various
criminal agents.   2.  The ordinary and  accidental  causes which
are  known to produce it, without any criminal  interference.
Each of these require examination, as in every trial of this kind,
they may be made the  subject  of special  inquiry by the  court
and jury.

1. Of the criminal means, resorted to for the purpose of destroying
                           the fcetus.
   These may be divided into  general  and local.   To the first
belong venesection, emetics, cathartics, diuretics, emmenagogues,
&c.  &c.  The  second  embraces all  kinds of violence directly
applied.
   Venesection.  From the earliest periods  it has been  supposed',
that bleeding during  pregnancy  exercised some deleterious influ-
ence upon  the foetus, and that the repetition of it would infallibly
 destroy it.   Hippocrates entertained this  belief,* and it  has  ac-
 cordingly  long  been resorted to as one of  the popular modes of

   *  Mulier utcrum ferens  abortit secta vena, eoque magis, si sit foetus grandior.
 (Hippocrates, sec. 5, aplior. 31) 
336
INFANTICIDE.
 producing abortion.  Bleeding from the foot has been supposed to
 be particularly effective in this wray.  All this is probably founded
 on-the supposition that whenever blood is taken from the mother,
 the foetus also loses a proportional quantity, and that by a frequent
 repetition of it, the latter may eventually be bled to death.  Ex-
 perience, however, the most ample and satisfactory, has proved
 conclusively, that  except in particular states of the constitution,
 venesection, however repeated and copious, can have no direct
 effect upon the foetus; and  further, that in many cases  it is the
 most effectual  agent in averting abortion.   Mauriceau relates the
 history of two pregnant women, who  were delivered  at the full
 period, of living children, although one of them had  been  bled
 forty-eight times, and the other ninety times, for  an inflammation
 of the chest.*   By the same author, a  case is  recorded in which
 a  person was  bled ten times  from the foot during pregnancy,
 without any bad effect on  the  foetus-!  Dr. Rush, in speaking of
 the effects of bleeding  in the yellow fever of 1793, asserts  that
 not one pregnant woman to whom he prescribed it, died, or suf-
 fered abortion.J  In his defence of blood-letting, the same writer
 gives us the account of one woman whom  he bled eleven times
 in seven days,  during her pregnancy; of another, who was  bled
 thirteen times,  and of a third who was bled sixteen times while
 in the same condition.  All these women, he adds, recovered,
 and the children carried during their illness, were born alive and
 in good health.§  The foregoing facts,  selected from a multitude
 of a similar character,  are abundantly  sufficient  to. show the ex-
 tent to which  venesection  may be carried during pregnancy,
 without being  attended with any injurious  consequences to the
 foetus; and the effect is the same, from whatever partof the body
 the blood is  drawn, whether from the arm or from  the foot.
   In the cases just  alluded to, it is true, blood was  drawn during
 a state of disease, when the  loss of a much larger quantity can
 be borne than in ordinary health.  Nevertheless, even  in a state
 of health, the loss of a  very large quantity of blood is  not neces-
 sarily attended by  any injurious consequences to the foetus.  On
the other  hand, it should be  recollected, that when the constitu-
tion of the mother is naturally feeble and irritable, or has become

  * Capuron, p. 307.
  ! An Elementary Treatise on Midwifery, by A. L. M. Velpeau, M. D. Translated
 by C. D. Meigs, M. D. p. 236.
  i Medical Observations and Inquiries, vol. 3, p. 309.    § Ibid. vol. 4, p. 302. 
INFANTICIDE.
337
much debilitated by disease, the injudicious loss of blood during
pregnancy, may prove fatal to the foetus.   In all cases therefore,
the question whether the bleeding has had  any agency in produ-
cing the destruction of the foetus, must be determined by the par-
ticular circumstances of the individual case.   At the same time,
the mere fact of repeated bleedings having  been resorted to with-
out any  obvious necessity for  it, must be held as  a sufficient
evidence of the intention of the person.
  Leeches.  By some it is supposed that the application of leeches
to the anus, insides of the thighs,  or the vulva, has  the effect of
producing abortion.   In this country, this  practice is so uncom-
mon that we are hardly able  to form any very correct opinion
on the subject.  A recent French  writer, however, states that he
has frequently applied leeches to these parts  during pregnancy,
in cases  of  intestinal affections, and  in no instance  did he find
any bad consequences happen.   At the same time he recommends
great caution in the use of this remedy, especially in  females who
are liable to abort.*
   Emetics.  From  the well known fact, that  many women are
troubled  with  distressing nausea and  vomiting during the whole
of their pregnancy,  and yet are safely delivered of living  chil-
dren at the regular  period, it. has  been supposed that the foetus
could not be much injured by the use of emetics.  The fact, how-
ever, seems to be,  that although  the vomiting attendant upon
pregnancy very seldom produces  an  abortion, yet  that which is
produced by emetics is not unfrequently followed by consequences
the most serious both to mother and foetus.  In this opinion, I am
supported by the authority of Mr. Burns,  who says that  " it is
worthy of remark that abortion is very seldom occasioned  by
this  cause, (the vomiting of pregnancy) though emetics are apt
to produce it.!  The  reasons of the difference in the two cases,
may be the  following.  In the first place,  the vomiting of preg-
nancy is  less violent  than  that which is excited  by artificial
means; and in the  second place,  it  occurs, as a general rule,
only in the early months of pregnancy, when of course less danger
attends the operation.  Just in proportion to the size and develope-
ment of the uterus, is the danger  to be apprehended from  the

  * Etudes Cliniques sur les Emissions Sanguines Artificielles.  Par A. P. Isidore
Poliniere. Tom. 1, p. 34.
  t The Principles of Midwifery, p. 230. Seventh American edition.
   vol. i.                    29 
338
INFANTICIDE.
spasmodic contraction of the diaphragm and abdominal muscles
during vomiting.  In the latter months of pregnancy, therefore,
emetics prove  much more dangerous than they do at an earlier
period.   Notwithstanding  this, even emetics do not always suc-
ceed.  Velpeau relates a case falling under his own observation,
in which  fifteen  grains of tartar  emetic were  taken to produce
abortion.   Although violent efforts at vomiting wrere occasioned,
yet the progress of  the pregnancy was not interrupted.*
   Cathartics.   As a general rule, pregnant women are  not apt
to be injured by moderate purging.  When attacked with disease,
too, they may be purged very freely without any risk.   During
the yellow fever of 1793, Dr. Rush informs  us, that  he gave
large and repeated purges of calomel and jalap to many women
in every stage  of pregnancy, and in  no case did any injury ensue
to the child.   Nay,  he adds, that  out of a great number of preg-
nant women, whom  he attended  in this fever, he " did not lose
one to whom he gave this medicine, nor did any of them suffer
an abortion.   One  of them had  twice miscarried in  the course
of the two or  three last years of her life.  She  bore a healthy
child three months  after her recovery from the yellow fever."!
If,  however, the purging should happen to be carried too far, or
be  continued too long ;J if  the article used be  very drastic in its
nature; if it act particularly on the  rectum,§ (between which
and the mouth of the uterus there appears to be a peculiar  sym-
pathy;)  or if  the female  be of a nervous,  irritable  habit, then
purging may be, and frequently is followed by the death and ex-
pulsion of the  fcetus.  Purgatives,  therefore,  may or may not
produce  abortion, according to circumstances.||
   Diuretics.  This class of agents has long been supposed capable
of producing abortion,  and has accordingly been  frequently used
for this  purpose.  That they may have been  occasionally at-
tended with success, is very possible; but I have no doubt that,

  * Meigs' Velpeau, p. 236.   t Medical  Observations and Inquiries, vol. 3, p. 249.
  X Several cases of abortion  have been known to occur in this city, in females who
were in the constant habit of taking Brandreth's pills, a purgative nostrum  at pre-
sent very popular in this country.  See an  Essay on the influence of trades, &,c. By
B. W. M'Cready, M. D. Trans, of the Med. Society of the State of New York, vol.
3, p. 149.
  § All those purgatives which produce tenesmus, are most apt to cause abortion.
Hence it is, too, that dysentery frequently  produces this effect.
   || Dr. James Johnson states, that he has known a very moderate dose of calomel
and rhubarb to cause a  premature  delivery.   (Medico-Chirurgical Review, vol. 17. 
INFANTICIDE.
339
generally speaking, they have failed.  They certainly are desti-
tute of any specific power of exciting uterine action.  Mr. Burns
seems to think that they are capable of bringing on abortion, and
accordingly advises  that they should be avoided during preg-
nancy.*   Still, from his own language,  I should not infer  that he
had ever witnessed this effect, although he says that he has seen
diuretics given very freely to  pregnant women labouring under
ascites-!  O*1 the other hand, there  are many positive facts on
record to prove that diuretics  may be  taken with impunity  by
pregnant women.  Zacchias relates  the case of a female, who,
after an interval of five years, considered herself pregnant, and
shortly afterwards was attacked with sciatica.  Several physicians
and midwives were called to  examine  her, and decided unani-
mously, that she was not pregnant, particularly as she lost a little
blood every  month, though not  so  much as in menstruation.
They therefore prescribed  for the disease which  afflicted  her,
bled  her  repeatedly in the foot, administered purgatives fre-
quently, together with diuretics and sudorifics.  All this did not
prevent her from bringing forth a healthy child at the end of the
expected time. J
   In the Edinburgh Medical Essays and Observations, is recorded
a case of a female who had ascites  during pregnancy.  Three
months after  conception she was  tapped, and eight pints of wa-
ter drawn off.  After this  she was tapped twice again,  and  at
each time four pints were drawn off.  During this time too, she
took freely of active  diuretics and cathartics, among which were
calomel and  various hydragogue articles.   Notwithstanding  all
this she brought forth a living healthy child at the full time.§
   Concerning the oil of juniper, Fodere relates the following  fact,
which shows that this powerful article has failed in effecting  an
abortion.  A pregnant  female took  every morning for twenty
days, one hundred drops of  the  distilled oil  of juniper, without
injury, and was delivered of a living child at the expiration of the
ordinary term.||
  Even cantharides has been  taken in very large doses, with a
view of procuring an abortion, without accomplishing the desired
effect.  " Some years ago," says  Mr. James Lucas,  one of the
surgeons of the General Infirmary at Leeds, " I was called to a

 * Principles of Midwifery, p. 283.   t Ibid. p. 288.   X Fodere, vol. 4, p. 430.
 § Vol. 6, p. 138.                || Fodere, vol. 4, p. 430. 
340
INFANTICIDE.
patient who had taken about a drachm of powdered cantharides
in order to induce abortion, and which  brought on frequent vo-
miting, violent spurious pains, a tenesmus and immoderate diure-
sis, succeeded by an acute fever, which reduced her to extreme
weakness, yet no signs of miscarriage appeared, and about five
months  afterwards she was delivered of a healthy child."* Cases.
however, have occurred in which cantharides have caused abor-
tion.  Dr. James Johnson mentions a  case of this kind as occur-
ring within his own knowledge.!
  Nitre. Dr. Paris relates the case of a woman in  Edinburgh,
who having swallowed by mistake a handful of this salt, suffered
abortion in less than half an hour.J
  Emmenagogues. Under this general  head  there  are several
articles  which require notice.  Among the  more important are
savine, mercury, polygala senega, and pennyroyal.
  Juniperus  sabina, (savine.)  This is a powerfully stimulating
article, and as an emmenagogue, has been used with considerable
effect.   It has also long been  used for the purpose of producing
abortion, and no doubt possesses considerable power in this way.
Galen asserts that it  acts with sufficient energy on the uterus  to
destroy  the fcetus ;§ and  in the present day, it is said to be  con-
stantly used by the negresses in the Isle  of France with this in-
tention.||
  In the case of  Miss Burns, for whose  murder Mr.  Angus was
tried at  Lancaster, in 1808, there is reason  to believe, from the
testimony offered, that savine oil had  been administered to effect
an abortion.   That it does not always  succeed, is evident from
a case related by Fodere. In 1790, a  poor, imbecile, and cachec-
tic girl,  in the duchy of Aoust, in the seventh month of her preg-
nancy, took  from the hands  of her seducer a glass of wine,  in
which there was mixed a large dose  of powdered  savine.  She
became so ill, that report of it was made to the magistrate, who
ordered Fodere to visit her.   The patient stated to him, that on
taking the drug,  she had felt a burning heat,  accompanied  with
hiccup and  vomiting.   This was followed  by a  violent fever,
which continued for fifteen days.   By the proper use of refrige-

  * Memoirs of the Medical Society of London, vol. 2, p. 208.
  f Medico-Chirurgical Review, vol. 17, p. 98.
  X Medical Jurisprudence, by Paris and Fonblanque, vol. 3, p. 94.
  § Dictionnaire Matidre Medicale, vol. 3, p. 696.   || Ibid. 
INFANTICIDE.
341
rants,  however,  she recovered, and at the end of two months
was safely delivered of a healthy child.*
   In another case, recorded by Murray, while it was successful
in producing an abortion,  it destroyed the life of the mother.!
Professor  Christison relates,  on authority of Mr. Cockson, the
ease of a girl, who, to  produce abortion, took a strong infusion of
savine leaves.  Violent pain in the abdomen, and distressing stran-
gury ensued.  In two  days after taking it, she miscarried; and
in four after that, she  died.  On dissection, Mr. Cockson found
extensive peritoneal inflammation—the inside of the stomach of a
red  tint,  chequered  with  patches of florid extravasation.   The
uterus presented all the signs of recent delivery .J
   Mercury.  This has long been considered as an article capable
of occasioning abortion.   Crude quicksilver was at one time sup-
posed  to  possess this  property.  It was  accordingly used, not
merely for this purpose, but  also in all cases of difficult labour.  It
was not long, however, before it was ascertained that  large quan-
tities of it might be taken by pregnant women with perfect im-
punity.  Matthiolus  relates  of several pregnant women, each of
whom drank a pound  of  quicksilver to cause  abortion, without
any bad  effect.§   The same  fact  is confirmed by  Fernelius.||
Calomel, however, is the preparation of mercury most generally
supposed  to exert a specific influence upon  the  uterine organs.
That it possesses the power of producing miscarriage,  is counten-
anced by the authority of Mr. Burns, who directs that a full course
of mercury  should be avoided during pregnancy.il  Facts, how-
ever, both numerous and conclusive, are on record to prove, that
a pregnant woman  may go through a long course of mercury,
without the least injury either to herself or to the child.   Bartho-
lin and Mauriceau  relate several cases, in which mercury was
given,  to  salivation, to pregnant women  affected with syphilis,
and who all, at their full  time, were safely delivered of healthy

  * Fodere, vol. 4, p. 431.
  f'Foemiria triginta annorum, abortum medjtans, infusum sabinae ingessit; unde
insignis  vomitus continuus.  Aliquot dies post sensit diros dolores ; landem abortus
successjt, cum insigpi hcemorrhagia uteri, dein mors.  In cadayere  vesieula follea
rupta apparuit,  cum  effusione bilis  in abdomen, et  inflammatione intestinorum."
B- I- And Murray, apparatus medicaminum, &e,  vol. 1, p. 59.
  t Treatise  on Poisons, p. 531-2.  Second edition.    § James' Dispensatory.
  || Vidi mulicres qui libras ejus biberunt ut abortum facerent, et sine noxa.  (Ferne-
Ijus.)                                      IT Midwifery, pp. 231, 233.
                              29* 
842                     INFANTICIDE.
children.*  Mr. Benjamin Bell,  than whom I could not quote
higher authority, says, " It is a prevailing opinion, that mercury
is apt to occasion abortion, and it is therefore seldom given dur-
ing pregnancy.  Much experience, however," he adds, " has con-
vinced me that this opinion is not well founded, and when ma-
naged with caution, that it may be given in sufficient quantities at
every period  of pregnancy, for  curing every  symptom of sy-
philis, and without  doing the  least injury either to the mother or
child."]   To the same effect is the testimony.of  Dr. Rush con-
cerning the use of calomel in the yellow  fever of 1793.  In not a
single instance did it prove injurious to pregnant women.J  The
following case which fell under my own care,  confirmed me in
the  opinion already advanced.  A female, eight months gone
with child, was attacked with a violent inflammation of the lungs.
After the use of the ordinary depleting remedies, I found  it advi-
sable to  have  recourse to mercury.  She was accordingly put
upon the use of small doses of calomel and James'  powder.  In a
few days, salivation came on;  after which,  all the symptoms of
her pulmonary complaint speedily vanished,  and the  patient was
restored  to her usual health.   She was afterwards delivered of a
living child at the full period.
  Dr. Campbell states that he was once asked to visit a young
girl, whom he found so violently salivated, with a view to excite
abortion, that her tongue could be compared to nothing else than
a honey-comb.  But notwithstanding her extreme suffering, she
went to  the full time.§  At the same time there can be no ques-
tion that the preparations of mercury, if given to patients predis-
posed to  abortion, and especially  if carried  so far  as to produce
salivation, may be followed by that result.
  Polygala seneka.   This article  has now been known and used
in this country for  a number of years, for the purpose of acting
on the uterine organs, with the view of restoring menstrual se-
cretion.   The first  notice which  I have met with, of its  proper-
ties in this respect,  is in an inaugural dissertation by Dr. Thomas
Massie  of Virginia, published in 1803.  By him the  action of it
on  the  uterus  is especially  noticed; and  the  authority of Dr.

  * Fodere, vol, 4, p. 429.
  t Bell on the Venereal, vol. 2, p. 265.  American edition.
  X Medical Observations and Inquiries, vol. 3, pp. 249, 309.
  § Introduction to the Study and Practice of Midwifery. By Wm. Campbell, M. D.
p. 142. 
INFANTICIDE.
343
Archer of Maryland  is given, of its being used by the common
people in that state, for the purpose of procuring abortion.*  That
it may possess some power as an abortive, may be inferred from
its acknowledged power as an emmenagogue.!
  Pennyroyal.  This  article is reputed by some to be a powerful
abortive.  Dr. Watkins relates a case, in which the mere odour
of it produced abortion in a delicate woman in the fourth month.J
At the Chelmsford assizes, August  1820, Robin Collins wras in-
dicted for administering steel-filings and pennyroyal water to a
woman, with the intent to procure abortion.   He was convicted,
and sentenced to transportation for fourteen years.§
  Besides the foregoing articles, belonging  to the class of em-
menagogues, there are others which are entitled to a place under
the class of abortive agents.
  Secale cornutum—spurred rye—ergot.   This article, at present
so fashionable in obstetric practice, was first  announced to the
profession in this country in the year 1807, by Dr. John Stearns
of New York, as a substance capable of accelerating, in an ex-
traordinary manner, the process of parturition.  As might natu-
rally be expected from the announcement of a remedy so novel
and  unique, it excited  much interest, and  as soon as subsequent
experience had confirmed its virtues, rose at once into the most
unlimited popularity.   In the year 1812, it was suggested by the
editors of the New England Journal of Medicine and  Surgery,
that while fully convinced of the parturient powers of the ergot,
they were apprehensive that an evil of great magnitude not un-
frequently resulted  from its use; and that was, the death of the
child.  They stated that they had been led to this apprehension,
from " observing that in a large proportion  of cases where the
ergot was employed,  the children did not respire for an unusual
length of time after the birth, and in several cases the children
were irrecoverably dead."||   The observations  of numbers of
highly respectable physicians since that period, have tended but
too  strikingly to confirm  this melancholy fact.  At present,  it
will  scarcely be denied by any one acquainted with the operation
of ergot, that if given in very large doses, or  at improper periods,
  * Medical Theses.  By Charles Caldwell, M. D. vol. 2, p. 203.
  t See paper of Dr. Hartshorne in Eclectic Repertory, vol. 2, p. 201.
  t Coxe's Medioal Museum, vol.2, p. 431.  ^ Paris and Fonblanque, vol. 3, p. 88.
  || Vol. 1, p. 70. 
344                      INFANTICIDE.

it will but too certainly prove detrimental to the life of the child.*
It is to be feared, that for this purpose  it has been  but too fre-
quently used in this country.   It cannot, therefore, be too strongly
insisted  upon, that the life of the mother is equally  jeopardized
with that of the child, by its improper use.   By some it has been
doubted whether the ergot is capable of producing  an  abortion,
or whether its action is limited to the full period of utero-gestation,
and when the  uterus  is beginning to act  itself for the purpose of
unloading its contents.  That it does possess the power of causing
abortion at any period would seem to be proved by  experiments
made upon animals;! and  Dr. Chatard  records a case of abor-
tion induced in the human female subject at the fourth  month of
pregnancy, by twelve  grains of  ergot.J    Notwithstanding  all
this, it  is a fact that ergot  is  no  more infallible as an  abortive,
than  any of the agents already noticed.  Dr. Condie states that
several instances have come to his knowledge, in which  the ergot
was employed  to  the extent of several  drachms a day, for the
express purpose of inducing abortion, but without exerting the least
effect upon the uterus.  In all these cases gestation continued for
the full period, and the females were delivered of living  children.
He also states that he has known the ergot  to be given in large
and repeated  doses, by ignorant midwives,  where pains simulat-
ing those of parturition  have  occurred towards the  termination
of utero-gestation, in order to quicken the labour;  but so far from
doing this, the  pains  have actually ceased under its use, and la-
bour  has not occurred for several weeks subsequently.^   I have
myself met with one case in which a female  who had had several
children, took of her own accord  three drachms of ergot to pro-
duce an abortion, without any effect,
  Actcea racemosa.   The common name  of this plant, is the black
cohosh, or the squaw root.  It is a  common plant,  found in every
part of the United States, and the root of it is a good deal used
  * For testimony on this point, I refer to the  following authorities:  New York
Medical Repository, vol. 12, p. 344; vol. 20, p. 11; vol. 21, pp. 23, 139.  New Eng-
land Journal of Medicine and Surgery, vol.  1, p. 70 ; vol, 2, p. 353; vol. 5, p. 161;
vol. 7. p. 216; vol. 8, p. 121.  New York Medical and Physical Journal, vol. 1, pp. 205,
278 ; vol. 2, p. 30: and more particularly a paper by Mr. Chavasse of Birmingham,
published originally in 4th vol. of the Trans, of the  Provincial Med. and Surg. As-
sociation, and reprinted in the Transactions of the Med. Society, of the State of New
York, vol. 3, p. 348. This paper contains a number of facts worthy of the most
attentive consideration.
  t Philadelphia Journal of Medical and Physical Sciences, vol. 11,  pp. 112-13.
  X New York Medical Repository,  vol. 21, p. 16.
  § American Journal of Medical Sciences, yol. 10,  p. 227. 
                         INFANTICIDE.                      345

by some of our American practitioners.   Recently, it  has been
brought into notice, as an article possessing powers analogous to
those of the ergot. By our native Indians, it appears to have been
long supposed to possess properties of this sort,  and Mr. Rafin-
esque states that it is "much used  by them in facilitating parturi-
tions, whence its name—squaw root."   Dr. Tully, in a  paper on
this subject, has recorded the testimony of a number of respect-
able physicians, who have used this article for this purpose;  and
as they state, with  decided success,  acting very much in the
same way as the ergot.   A fluid  drachm  of the saturated alco-
holic tincture acted as a sufficient dose, without being repeated.*
According to Dr. Tully, the acta?a does not appear to  exert the
same stupefying and deleterious influence on the fcetus, that he
supposes is produced by the ergot.
  Digitalis. Of the effect of this active drug upon the uterine sys-
tem, the  following case is related by Dr. Campbell.  " A married
female, aged 26, fair complexion, relaxed, delicate habits, but not
spare, the mother of several children, had ascites in  her former
confinement, and applied for the  same  complaint, when in the
eighth month of this, her  fourth pregnancy.   In the course of
twelve days, she took six drachms  of the tincture  of digitalis.
On the twelfth day, at two A. M., the foetus, still-born, was thrown
off before assistance could be afforded to her; and in twelve hours
and  a half afterwards, the woman herself expired, although she
was  in the most favourable state when left after her delivery.
The child  seemed to have been but a very short time  dead, for
it exhibited no  evidences of putrefaction.  The body was ex-
amined twenty-five hours after death; it was running rapidly into
putrefaction,  About three pounds of  water were contained in
the  chest;  in the pericardium were found a few ounces of sero-
sanguineous  fluid;  in the abdomen, the effusion was  very tri-
fling."!
  Among the local means used for procuring abortion there are
only two which require to be noticed.
  Blows  and  other injuries  on  the loins and abdomen.  In  cases
where severe blows have been received on the back, the danger
of abortion is always imminent.   It is, indeed, rare that a female

  * Actaea raccmosa. By William Tully, M.  D. Professor of Materia Medica, in Yale
College, in the Boston Medical and Surgical  Journal for April 10, 1833.
  t Introduction to the Study and Practice of Midwifery, p. 141. 
316
INFANTICIDE.
goes to her  full  time when she has  received  such an injury.
Blows on the abdomen are equally dangerous;  and in most cases
of this kind, a considerable haemorrhage precedes the death of
the foetus.  In disputed cases, where it is denied that the injury
inflicted  has caused the abortion, we should attend to the  two
following circumstances: First, whether the  violence offered was
sufficiently great to be considered as the sole cause; and second,
whether the female was not disposed to abortion, and had failed
in some  precautions,  or  committed some  imprudence, which
might have induced it.  After investigating these facts, we ought
to inquire whether the accused  knew of the pregnancy of the
female, or whether she had not  provoked  the blows which she
received.  Two cases from Belloc  may serve to illustrate these
distinctions.   A young woman,  between the third and fourth
months of her pregnancy, had received, from a robust man seve-
ral kicks and blows with the fist, the marks  of which were very
evident.  Immediately after the accident, she was put to bed, bled,
and  various  remedies given by a  surgeon.  The haemorrhage,
however, continued, with pains in the loins and abdomen, and on
the next day she  had an abortion.   Belloc, on being examined,
declared that the abortion was owing to the violence which had
been inflicted.*  In another case, a female brought forth a dead
fcetus, four months advanced, two days after a quarrel with her
husband, in which she said he had struck her.  Instead, however,
of lying down, or at least keeping quiet, she  walked a league that
day, and on the next a quarter of a  league, to a place where she
was to aid in bringing in the harvest; nor was  it until her arrival
there, that she was forced to go to bed.  In  this case, Belloc de-
cides that it is very possible, had  she remained quiet, and called
for proper aid, the abortion would not have taken place, particu-
larly as the violence used was only that of throwing her down in
the street.!
   With regard to this cause of abortion, as well  as the others
that  have been mentioned, it is to be understood that  the life of
the mother is equally exposed  with  that of the child.   The fol-
lowing case, related by Dr. Smith, illustrates this fact in a strik-
ing manner, and is only one of a number which might be adduced.
In 1811, a man was executed at Stafford for the murder of his

  * Belloc, p. 81.         t Cours de Medecine Legale, par J. J. Belloc. p. 82. 
INFANTICIDE.
347
wife.   She was in the pregnant state, and he had attempted to
induce abortion in the most violent  manner, as by elbowing her
in bed, rolling over her, &c.; in which  he succeeded—not only
procuring abortion, but along with it the death of the unfortunate
woman.*
   By Dr. Campbell, a case is recorded of a female, who, in the
last month of pregnancy, was struck on the abdomen by her hus-
band.  An extensive detachment of the  placenta caused the im-
mediate  death of the fcetus, and that of the  mother in fifty-one
hours afterwards-!
   The introduction of instruments into the uterus for the purpose
of rupturing  the membranes,  and  thus bringing on premature
action of the womb.  Of this villanous practice, which  has long
been known and  resorted to for the  nefarious purpose of pro-
ducing abortion, I shall say nothing  more than to give the history
of a few cases in which it was  used, and which will  show the
effects with which it is attended. , " At Durham assizes, in 1781,
Margaret Tinkler was indicted for  the murder of Janet Parkin-
son, by inserting pieces of wood into her womb.  The deceased
took her bed on the second of July,  and  from that period thought
she must die, making use of various expressions  to that  effect.
She died on the 23d.   During her illness, she declared tfrat she
was with child by a married man ;  and he, being fearful,  should
she  be  brought to bed, that the knowledge of the circumstance
would reach his wife, advised her to go  to the prisoner, who was
a midwife, to take her advice how to get rid of the child—being
at the time five or six months gone. The delivery took place on
the 10th of July, three days previous to which, a person saw the
deceased in the prisoner's bed-chamber, when the prisoner took
her  round the waist, and  shook her in a violent manner  five or
six different times, and tossed her up and down.   She was after-
wards  delivered at  the prisoner's house.   The child was born
alive, but died  instantly, and it was proved by surgeons to be
perfect.   There was no doubt but that the deceased had died by
the acceleration of the birth of the child ;  and upon opening the
womb of the mother, it appeared that  there were two holes
 caused by wooden skewers, one of which was mortified and the

   • Smith's Forensic Medicine, p. 305.
   t Introduction to the Study and Practice of Midwifery, &c. p. 137. 
348
INFANTICIDE.
other inflamed.   Additional symptoms of injury were  also  dis-
covered."*
   In England a very curious  trial took place  in  1808, of  two
persons, William Pizzy and Mary Codd, " for  feloniously  admi-
nistering  a certain noxious and destructive substance to Ann
Cheney, with intent to produce a miscarriage."   On the trial, it
appeared that they  had given medicines several times, to produce
the abortion without any effect.  In consequence of this failure,
Pizzy,  who was a farrier, introduced  an  instrument into  the
vagina, and in that  way, destroyed the child and brought on pre-
mature delivery.   This took  place about six or  seven weeks
before  the full time.  Although the facts appeared very clear on
the trial, yet  the jury brought in a verdict of acquittal-!
   By Fodere  and  Ristelheuber a case is related, in which rup-
ture of the uterus and  death was occasioned by the introduction
of a syringe  with a long  ivory pipe, for the purpose  of produ-
cing abortion.  On  dissection, a foetus of about two months was
discovered in the abdomen.J
   By Dr. Baxter, of New York, another  case is  recorded, in
which  he was called to a  female who had employed a person to
procure an abortion by the introduction  of a  silver  catheter.
The only effect  however, was that of wounding  the  os tincae,
and rupturing the membranes without expelling  the foetus.   Fif-
teen days  after the perpetration of the deed, Dr. Baxter  found
her in terrible pains, and having bled her twice without relief, he
gave her ergot,  to facilitate the delivery of the  fcetus, which
very shortly  brought it away.   It was  perfect,.and about four
months old.   Unfortunately, the names of the persons concerned
in this  infamous transaction, were never divulged.§
   I will record only one  case more, the particulars of which 1
have recently been  favoured  with.  A  few years since a trial
took place in the  State  of  Vermont, in the  case of Norman
Cleaveland, who  was indicted  and  tried for  the  murder of
Hannah Rose.  It appeared in evidence that Hannah Rose  had
become pregnant by the  accused, and was  about four months
gone in her pregnancy, and that he had tried various  means to
produce an abortion, but without effect.  After  this he resorted
  * East's Crown Law, vol. 1, p. 354.  Smith, p. 306.
  t Edinburgh Medical and Surgical Journal, vol. 6, p. 244.
  X Medico-fhirurg. Review, vol.  6, p. 528.
  § The  Medical Recorder, vol. 8, p. 461, for 1825. 
                          INFANTICIDE.                      349

 to the introduction of a sharp pointed instrument into the vagina,
 and with the fatal  result of immediately destroying  the female
 herself.   On a post mortem  examination, the neck of the uterus
 was  found punctured in  six places, each puncture  being  from
 half an inch  to  three-fourths of an inch wide.   The punctures
 appeared to have been made by a two-edged instrument  like a
 lancet.  In addition to this, the iliac  vein was wounded, and the
 abdomen filled with  coagulated blood.  The prisoner  was con-
 victed and  sentenced to be hung.   The  punishment was after-
 wards, however, commuted by the Legislature to five  years' hard
 labour in the State  prison.*
   A  most extraordinary  mode of causing^abortion recently oc-
 curred in France, which  may perhaps be appropriately noticed
 in this place.  The subject was a married woman, who had four
 children, and was pregnant of  a fifth.  At the commencement
 of her pregnancy,  she was persuaded by the representations of
 another female, to inject  sulphuric  acid into the vagina  as  an
 easy mode of inducing premature labour.   As  may readily be
 imagined, excessive  inflammation   of  the  parts took place,
 together with great  general constitutional  disturbance,  and the
 final  result was an  almost  complete obliteration  of  the vagina.
 "The medical  men  on examination, found  that a kind of irre-
 gular band surrounded and obstructed the vagina, beyond which,
 and  on the brim of the pelvis, the  head.of the infant was dis-
 tinctly felt, pressed  forward by the uterine contractions.   It was
 resolved to make an incision through  the  dense membrane, but
 when  this was done, it was  found it  had adhered to the  bladder,
 which the incision  had completely divided.   The delivery was
 not at all facilitated, and the attendants felt themselves compelled
 to perform the csesarean  operation.   _The infant was extracted
 dead, apparently for some time,  and the mother  immediately ex-
 pired."!
  * For the particulars of this case, I am indebted to Judge Hutchinson of Wood-
 stock, Vermont.   In connexion with this subject, the following  instructive fact is
 related by Dr. Gooch.  " Dr. William Hunter, attempted this operation (introducing
 an instrument to puncture the membranes) on a young woman, at about the third
 month of pregnancy.  He found  that he several times punctured the cervix uteri,
 and the case terminated fatally.  If this happened to one of  so much anatomical
 knowledge and skill, how much  more probable must it be in the hands of those
 ignorant men, by whom, for the  purpose alluded to, the operation  is  sometimes
 undertaken !  No doubt these attempts often prove fatal, but the murdered do not
 tell tales."  A practical compendium of Midwifery, by Robert Gooch, M. D. p. 94.
Amer. Ed.                            t Lancet, vol. 8, p. 38.
  vol. i.                        30 
350                     INFANTICIDE.
  Having thus finished the notice which I proposed to take of
the methods  which have  been resorted to for criminally pro-
ducing abortion, I must again insist upon a circumstance, already
adverted to, but which cannot be too often repeated; and this is,
the danger which necessarily attends the life of the mother in
every attempt of this sort.  Even in cases where miscarriage
results from  involuntary  causes, and  where  every prudential
measure has been  adopted for obviating its consequences, it is
well known  that the  mother frequently falls a victim.   How
much more likely is this to be the result when the miscarriage is
occasioned by  great  and unnatural violence done to the system,
and that too under circumstances, which  generally shut out the
wretched sufferer, from the benefit of all medical succour. Vel-
peau states that he_had a female  under  his care, who produced
a violent  abdominal  inflammation  by taking  medicines to pro-
mote abortion.  She  died on  the eighth day, without any symp-
toms of abortion having  appeared.*   There is another  circum-
stance also of great importance, which  should  not be forgotten.
It has happened in  some instances, that while the mother has
lost her life in attempting to procure a miscarriage, the child
has actually been born alive and survived.  A case of this kind
was witnessed by Fodere in 1791.  A cook finding herself preg-
nant, and not being longer able to conceal it, obtained half an
 ounce  of powdered cantharides and  mixed  it with an  ounce
 of sulphate of magnesia, and took them down in  order to pro-
 duce  abortion.   Some hours after, she was seized with violent
 colic, and  brought  forth a  living child, in  the most  horrible
 pains.  During the  succeeding night she died-!  If these facts
 were more generally known, I suspect  the attempts at abortion
 would be much less frequent  than  they are at present.  With
 regard to the accessaries and accomplices in  this crime, it would
 be well for them to remember, that in every experiment of this
 kind which they make, they take upon  themselves the awful re-
 sponsibility of jeopardizing not merely  a single life, but two lives.
    It results, therefore, from what  has  been said, concerning the
 means of producing abortion.
    1. That  all of them are uncertain in their operation upon the
 foetus.
        • Meigs' Velpeau, p. 236.             t Fodere, vol. 4, p. 436. 
INFANTICIDE.
351
  2. That they always endanger the life of the mother, and
  3. That they sometimes  destroy the mother without affecting
the foetus.
  I deem it so important to enforce these results, that I shall con-
firm them by the following authorities.  " It is evident, I believe,
from experience," says Farr, " that such things, (abortives,) can-
not act as efficient causes, without the aid of those predisposing
causes,  or natural  habits of the body, which are necessary to
concur with them.  As attempts of this kind, however, should not
be passed off with  impunity, and as the life of the  mother as well
as  the child is  endangered by such  exhibitions,  if advised by
any other, they should be considered as highly culpable, and for
this reason should be made known."*
  " Every woman," says Bartley,  " who  attempts to  promote
abortion, does it at the hazard of her life.   It may be remarked,
whoever endeavours to counteract the ordinary proceeding of na-
ture, will have in the end sufficient  cause to repent the  teme-
rity."!
  •' There is no drug," says Male,  " wrhich will produce miscar-
riage in  women not predisposed to it, without ^acting violently on
the system, and probably endangering their lives."^
   Smith says,  " Abortion is,  in  general, injurious  to health,
and is seldom unaccompanied  with suffering.  The administra-
tion of emmenagogues to force  a separation of the ovum,  where
the constitution has no tendency to throw it off, is highly danger-
ous to the mother.  No drugs can act in this way  upon the uterus,
but by involving it in a violent shock given to the general system.
It has frequently  occurred, that the unhappy mother has  herself
been the  sacrifice, while the object intended  has  not been accom-
plished."^
  Burns says,  " It cannot be  too generally  known,  that when
these medicines do produce abortion, the mother can seldom sur-
vive their effect."||
  To show how difficult the perpetration of abortion sometimes
is»  the following case will serve as  an illustration.  " A young
woman,  seven months gone with child, had employed savine and
other drugs, with a view  to produce a miscarriage.   As these
had not the desired effect, a strong leather strap (the thong of a
  * Farr's  Elements of Medical Jurisprudence, p. 70.
  t Bartley's Treatise on Forensic Medicine, p. 5.
  X Male's  Epitome of Juridical Medicine, in Cooper's Tracts, p. 208.
  § Smith's principle of Forensic medicine, p. 295. || Principles of Midwifery, p. 283 
352
INFANTICIDE.
skate) was tightly bound round her body.   This, too, availing
nothing,  her paramour (according to his own confession) knelt
upon her, and compressed the abdomen with all his strength ; yet
neither did this effect the desired object.   The man  now tram-
pled on the girl's  person while she lay on her back;  and as this
also failed, he took a sharp pointed pair of scissors, and proceed-
ed  to perforate the uterus through the vagina; much pain and
haemorrhage ensued, but did not last long.  The woman's health
did not  suffer in  the least, and  pretty much about the regular
time, -a  living child was brought into the world,  without  any*
marks of external injury upon it,   It died indeed four days after-
wards, but its death could not be traced to the violence inflicted
on the mother's person ;  all the internal organs appeared normal
and healthy."*
  Velpeau makes the following statement  in relation to the con-
sequences of using instruments to procure abortion. " Those who
make use of them, most frequently fail of attaining their object,
and succeed  only in seriously injuring the womb.   I once pre-
scribed for a female, in whom such attempts had brought on a
flooding which conducted her to the verge of the grave;  she suf-
fered horribly from pain in the  interior  of the  pelvis for  two
months, notwithstanding which, abortion did not take place, and
she is now a prey to a large ulcer of the neck of the womb.  I
opened the body of an unhappy  creature who suffered from like
attempts, which did not  succeed any better than the one above
mentioned.  M. Girard,  of Lyons, mentions a similar instance.
Very recently,  also, (Oct. 1828,)  a young woman who  became
pregnant against  her wishes, succeeded by such manoeuvres only
in producing an organic lesion of the  uterus, which, after fright-
ful suffering, led her to the commission of suicide."!
  II. Of the involuntary causes of abortion. Of these  it is not ne-
cessary to say much.   They should always, however, be kept in
view in medico-legal investigations on this subject,  so that we
may not attribute to criminal interference what is owing to some
morbid derangement.   Diseases of various kinds, as rheumatism,
pleurisy, small pox, typhus and yellow fevers, scarlatina, syphilis,
and measles, operating on a system predisposed by nervous irri-
tability—a diseased state of  the  uterus—the intemperate use of
spirituous liquors—irritation of the neighbouring organs, from cos-
  * Professor Wagner, in the London Medical Quarterly Review, vol. 2, p. 487.
  t  Meigs' Velpeau, p. 238. 
INFANTICIDE.
353
tiveness, tenesmus of dysentery,  haemorrhoids, prolapsus  ani,
diarrhoea, incontinence of urine—the irritation produced by medi-
cines*—errors in regimen and diet—violent exercise, as in walk-
ing, dancing, riding,  running, &c—accidental  falls—a  sudden
contortion or shock! of the body—indulgence of any violent pas-
sion of the mind, whether joyful or  sad—the  relation of any un-
expected intelligence—a great noise J—the  appearance of any ex-
traordinary  object—previous  abortion—fluor  albus—excessive
venery—accidental blows on the abdomen—the death of the fcetus
—the attachment of the  placenta over  the  os  uteri—retrover-
sion  of the womb—haemorrhage, from  whatever  source,  or at
any period all  or any of these causes  may give  rise to  abor-
tion, without the imputation of the least criminality to the female.
   The influence of  the passions upon the uterine functions  is pe-
culiarly striking.  It is an extraordinary fact,  that the melancholy
and sadness caused  by some great evil which is  known and ex-
pected,  are much less injurious to a pregnant woman, than the
annunciation of some important good,  or even a trifling  misfor-
tune  which  is  unexpected.  Fodere relates the case of  some
pregnant women, who, during the horrors of the French revolu-
tion, were confined in dungeons, and condemned to death; their
execution was,  however, delayed in consequence  of the pecu-
liarity of their situation.  Yet, notwithstanding the actual wretch-
edness of their condition, and the more terrible anticipation  of fu-
ture suffering, they went on to the full time, during wrhich period,
a fortunate change in the state of parties rescued them from un-
merited punishment."*

  * Dr. Dewees states that he has seen two cases of premature labour, resulting, as he
had reason to believe, from  the action of blisters.  A Treatise on the Diseases of
Females, p. 128.
  t The pulling of a tooth, for instance has been known to produce abortion.  Burns
on Abortion, p. 64.
  X A case, in which a great noise as a cause of miscarriage was involved, was tried
in 1809, at the quarter sessions of Franklin county, in Pennsylvania.  The indict-
ment charged that Taylor, (the defendant) unlawfully, secretly, and maliciously, with
force and arms, broke and entered at night the dwelling-house of James Strain, with
intent to disturb the peace of the commonwealth; and after entering the house, un-
lawfully, wilfully, and turbulently, made a great noise, in disturbance of the peace of
the commonwealth, and did greatly misbehave in said dwelling-house, and did great-
ly frighten and alarm the wife of said Strain, whereby she miscarried, &c.  The
offence was held indictable as a misdemeanor.  The jury found the defendant guilty;
but the quarter  sessions  arrested the judgment upon the ground,  that the offence
charged was not indictable.  The supreme court decided in this case, that the judg-
ment should be reversed, and the quarter sessions were directed to proceed to give
judgment against the defendant.  Binney's Reports, vol. 5, 277.
  * Fodere, vol. 4, p. 422.
                               30* 
354                     INFANTICIDE.
   Circumstantial evidence. In concluding the subject of foeticide,
I shall make a remark or two upon the circumstantial evidence
which may be adduced to prove the guilt of the accused.   With
regard to a  female concealing her pregnancy, I cannot conceive
with what justice  any inference can be drawn prejudicial to her
character.  If her pregnancy be the result of illicit commerce, it is
perfectly natural that she should make use of every effort to con-
ceal her disgrace as long as possible.   The  mere fact of con-
cealment, even if proved, ought to be considered as no evidence
whatever of her guilt.
  If she has  been known  to  apply frequently, to the same or
to different physicians to  be bled, especially in the foot; if she has
endeavoured to procure any of the medicines usually given to
produce  this effect, if any are found in her possession, or if she
can be convicted of  actually taking them without medical ad-
vice, we have then the strongest circumstantial evidence which
the  nature of the  case  admits of, to pronounce  her intention to
have been criminal.   These are circumstances, however, which
do not strictly come under the cognizance of the professional wit-
ness ;  they are matters of fact, which must be decided upon from
the  testimony which may be offered by the other witnesses cited
to appear in the case.
II.  Of the  murder of the  child after it is  boi*n, with an account
         of its various proofs and modes of perpetration.
  In every case in which an infant is found dead, and  becomes
the subject of judicial investigation, the great  questions which
present themselves for inquiry, are,
  1. What is the age of the child 1
  2. Was the child born alive ? •
  3. If born alive, how long had it lived 1
  4. If born alive, by  what means did it come to its death 1
  Having  come to the conclusion that the death of the child is
owing to violence,  it is  next  to be ascertained who  the  per-
petrator of it is.  Should  suspicion light upon a female as being
the  mother of it, the questions to be determined concerning her,
are,
  1. Whether she has been delivered of a  child? And,
  2. Whether  the  signs of delivery correspond as to time, &c.
with the appearances observed on the child ? 
INFANTICIDE.
355
   These are the only points upon which the  professional witness
 can be called to give  his testimony, and to  the  consideration of
 these I shall accordingly confine myself.
   Quest. I. What is the age of the child ?
   The importance  of determining the age or degree of maturity
 of the child is so evident as to need no discussion.  In all cases,
 therefore, it should be particularly investigated.   For the neces-
 sary information on this subject, see Chap. VII. Part 2.
   Quest. II.  Was  the child born alive ?
   There are two ways in which a child may  be born alive.   1. It
 may be born, the cord may be pulsating, showing that it is alive,
 and yet it may not  respire.   In this state  it may continue for
 a sufficient length  of time to die from natural causes, or in  con-
 sequence  of criminal interference, before respiration  has com-
 menced.   2. It may be born and respire.   The question therefore
 as to  the  child's having been born  alive, may  present itself in
 either of these forms, and requires investigation.
   1. Of the child born alive but not respiring.
   It must be evident that when a child is born alive, but has not
 yet  respired, its condition is  precisely like that  of the fcetus in
 utero.  It lives merely because the fcetal circulation is still going
 on.  In this case none of the  organs undergo any changes.  The
 lungs remain as they are in the fcetus, and the organs circulating
 the blood are in the same state.  If, therefore, it die before respi-
 ration commences,  there are no changes which have taken place,
 by which the fact of previous vitality could be established.  This
 simple view shows  how impossible it would  be  to prove  that a
 child  had   been  born alive,  independently  of  respiration.   In
 cases where wounds  and ecchymoses  are found  on the body of
 the child, indirect evidence  might  be  obtained from this  source
 as to the existence  of life at the time they were received.   An
 interesting  case  of this  kind is recorded by Devergie, an  ac-
 count of which will be found in a subsequent  part of this chap-
 ter under the head of " Examinations and  Reports."   At best,
 however, this could only apply to a very few cases.  Where this
 kind of proof is absent, we have no means of deciding the question
  2.  Of the child born alive and respiring.
  Here respiration  constitutes the test of a  child's  having been
 born alive, and the great point, therefore, to be settled is whether
the child has respired.  The proofs by which this is to be esta- 
356
INFANTICIDE.
blished are  all deduced from  certain changes which  take place
in the system, as  soon as the vital process of respiration  com-
mences.   These  changes  show themselves, not  merely in the
lungs, but in various other parts of the system—and it is only by
examining them  in an extended way that we can  arrive at just
and satisfactory conclusions.
   They may be conveniently divided into three sections.
   1. Proofs derived from the  circulating system.
   2. Proofs derived from the respiratory organs.
   3. Proofs derived from the abdominal organs.
   I. Proofs of respiration, derived from the circulating system.
   There are  two things  in  connexion with this  which  require
investigation: the character of the blood itself, and  the condition of
the heart and vessels circulating the blood.
   1. Of the character of the  blood itself.   By some eminent au-
thorities, it is asserted that there is no difference  in appearance
between the arterial and venous  blood  of the fcetus.  Bichat in-
vestigated  this point particularly, and he  states  that he made
numerous dissections of  young  guinea  pigs  while yet in the
womb of their mother, and he uniformly found the blood of the
arteries  and veins  presenting the same appearance, resembling
the venous blood of the adult. Not the slightest  difference was
observed between the blood taken from the aorta, and that from
the vena cava, nor between that drawn from the  carotid artery
and the jugular vein.   He made the same observations in  three
experiments  of a similar nature upon the foetuses of  dogs.  He
also frequently dissected human foetuses who  died in  the womb,
and found the same uniformity in  the arterial and venous blood.
From these facts, he concludes, that no difference exists between
the arterial  and venous blood of  the fcetus, at least in external
appearance.*   Velpeau and Autenreith, as the result of their ex-
periments and observations, confirm  this statement.!   By  other
observers this is  positively contradicted;  and it is asserted, that
the difference between the blood of the arteries and veins  is
very obvious.J  By Dr. Jeffrey, the following experiment  was
made.   He  took  part of the umbilical cord and dissected away
the gelatinous part of it, until he had laid bare the vessels,  when
on puncturing them,  he found there was a difference between

  * Bichat's General Anatomy, translated by Hay ward, vol. 1. p. 355.
  t Velpeau's Midwifery, p. 219.
  i Bostock's Physiology, vol. 2, p. 157. American edition. 
INFANTICIDE.
357
the blood in the vein and the arteries.*   A simpler mode of per-
forming  this experiment, suggested  by Mr. Carr  of Sheffield, is
the following.  As soon  as the child is born and the cord divided,
take the  placental portion of it, around the  end of which a liga-
ture has  been previously applied, and cut it two or three inches
from the ligature with  a sharp scalpel, so  as to  make an even
surface.   If the portion  of cord be now pressed from below up-
wards, the blood flowing from the vein and that from  the  arte-
ries will  be found very  different.   " Sometimes a large drop  of
florid blood is observed to stand directly over the umbilical vein,
and another dark coloured over the arteries, without their being
in the least mingled with each other, and  in this case, the dif-
ference between the two  is so  striking that no one can fail  to
observe it."!  In relation to this experiment, it is to be remarked,
that to render it of  any force in controverting the  observations
of Bichat, it ought to be made upon the still-born child, in whom
respiration has  never taken place.  Performed  upon  the  child
which has been born alive and  breathed, the difference between
the arterial and venous  blood is  just what might  have been ex-
pected.
   Of its coagulation. By some it  has  been supposed  that the
blood of the foetus does  not coagulate.   This, however, is a mis-
take.  But although  the foetal  blood does  coagulate like  adult
blood, yet there is this difference between them, that the coagu-
lation of the former  is by no means so  firm and solid as that of
the latter.  This was originally observed by Fourcroy,J and has
since been confirmed by other observers.
   The effect of exposing  the fcetal blood to the action of the  atmo-
sphere. In the experiments made by Fourcroy, the coagulum, of
a brown red, exposed to the  atmosphere, did  not become  florid
in the same manner  as that of the adult.  There were,  however,
filaments of a red colour running over the  brown mass,§ giving
it  a veined appearance.  By others, this is controverted; and
Dr. Blundell states that it can easily be proved that the blood of
the foetus  does become florid, by taking it from  the  umbilical
vessels, and setting it aside, exposed in a cup to the action of the
atmosphere.  In  a very short  time, he says, it will be found to
undergo  a change to a bright red colour; and if the clot be cut

  * The Physiology of the Foetus, Liver, and Spleen, by George C. Holland, M. D.
p. 154.
  | Physiology of the Fcetus, &c. by George C. Holland, M. D. p. 154.
  t Annales de Chimie, torn. 7, p. 162.                    § Ibid, p. 16. 
358
INFANTICIDE.
vertically in two,* the contrast between the exposed  and unex-
posed parts will be very striking.  Here too the same remark is
applicable, that was made in relation to the experiments of Drs.
Jeffrey and Carr.  The blood which is exposed ought  to be that
of the foetus which has not respired.  The blood taken from the
umbilical vessels  in ordinary cases of delivery, where the  child
is born  alive, and has  breathed,  is not fcetal blood.   Whether
this  precaution was observed  by Dr. Blundell, does not appear
from his statement.
   Chemical composition  of fcetal blood.   On this  subject,  I be-
lieve we have nothing but  the  analysis of Fourcroy.  As the
result of this,  there would seem to be a real difference between
the  composition of foetal and  adult blood.   According to him,
the points of difference are the following:—1. In  the  foetus the
colouring matter is darker, and the blood is not so susceptible of
taking the  brilliant red  shade, on exposure  to  the atmosphere.
2. It contains  no fibrous matter; the  thickened and  coagulated
matter  which is found in  its place, resembles  more  gelatinous
matter.   3. It does not contain any phosphoric acid.!
   According  to  the observations of Fourcroy, Tiedemann and
others, it  would  appear, also, that the proportion of serum in
foetal blood is  much  larger than in  adult blood.|
   In addition to the foregoing, the microscopical observations of
MM. Prevost  and Dumas, have ascertained that the red globules
of the blood in the fcetus differ in their  form  and  volume from
those of  the  adult,  the  former being much  smaller than the
latter.§
   The foregoing  facts and observations, although they go  to
show that there are  some interesting points of difference between
the blood before and after respiration  has  been established, are
yet, I fear, of too delicate a nature  to  be  rendered  practically
available in a  question of import so grave as that  of infanticide.
   2. The condition of the heart and blood-vessels.  Without going
into any  elaborate  description of  the  circulation in the fcetal
state, it  is  only  necessary to state  that there are a number of
striking and interesting peculiarities in the organs  circulating
the blood in the fcetus, which are modified or entirely lost  after

  * Blundell, in Lancet, for 1828, p. 130.    + Annales de Chimie, torn. 7, p. 165.
  X Velpeau's Midwifery,  p. 218.
  § Velpeau's Midwifery, p. 219 ; Bostock's Physiology, vol. 2, p. 158. Am. ed. 
INFANTICIDE.
359
 the child is  born, and  respiration  is  established.   These pecu-
 liarities, therefore, require to be specially noticed.  They are the
foramen ovale; the  ductus arteriosus; the  ductus venosus;  the
 umbilical vessels, and the cord.
   (a:) The foramen ovale. This is an opening situated in the septum
 which divides the right auricle from the left, and through it part of
 the blood is conveyed directly from the right to the left  auricle*
 It is nearly equal in size to the  mouth of the inferior cava, and is
 supplied with a thin transparent falciform valve, situated  on  the
 side of the left auricle.   In this way the valve  permits the flow
 of blood into the left auricle,  but prevents its return into the right
 auricle.  When the valve  is  closed, there  is  generally a small
 aperture  still left open, where  the valve falls slack, and is ready
 to  open.   The accompanying sketches will render more intelligi-
 ble the relative situation and appearance of the foramen ovale.
a. The ascending cava, with its hepatic branches, b. b.
c. The ascending cava.
d. The right auricle, where it lies against the roots of
  the aorta and the pulmonary artery.
i. The circle which surrounds the foramen ovale, some.
  times called the isthmus vieussenii, but more common-
  ly the circulas foraminis ovalis.
m. The valve of the foramen ovale.
n. The aperture or opening in the foramen ovale.
o. The  opening towards the ventricle.
  This sketch is intended to show the foramen
ovale still more plainly.  Every portion of ihe
foetal heart is cut away, except the ventricles
and the partition between the auricles.
a. The ventricles.
b. The vena cava, with a  blowpipe in it.
c c. The septum between the auricles laid open
  to display the foramen ovale.
k k. The musculi pectinati, or muscular fibres
  of the auricle.
d. The circulus foraminis ovalis.
e. The valve of the foramen ovale.
i. The aperture of the valve, where the valve
  falls slack and opens. 
360
INFANTICIDE.
   After birth,  the  foramen becomes obliterated by the  closure
 and adhesion of the valve, and leaves behind it in the adult no-
 thing but an oval depression in the septum between the auricles.
 This depression is  called the fossa ovalis, and corresponds to the
 space occupied in the fcetus by the foramen ovale.*  In the fcetal
 state, and anterior to respiration, this  foramen is always open;
 and it becomes closed  in consequence of the blood taking a new
 route through the lungs, when respiration commences.   If, there-
 fore, in examining  any case, the foramen ovale be found closed, it
 is a decisive evidence of the child's having been born alive.   It is to
 be recollected,  however, that this closing and obliteration of the
 foramen ovale  is a  gradual process,  taking sometimes from two
 to three weeks before it is  completed.  Hence it is obvious, that
 however strong a proof its closure may  be of previous life, yet
 its being  open  is no evidence to the contrary.   To render the
 phenomena connected with the foramen ovale available in these
 cases, it was suggested, originally, I  believe, by Professor Bernt
 of Vienna, that although  the complete closure of the foramen
 ovale does not take place  until some days after  birth, yet that
 during all this time it undergoes certain changes, which distinct-
 ly mark the period which has elapsed after the birth of the child.
 That the foramen ovale does undergo a series of changes during
 the process of obliteration, was remarked  so early  as 1750 by
 the English anatomist Ridley, and has since then been  confirmed
 by the observations of anatomists  and  physiologists.    These
 changes consist mainly  in the position of the aperture of the fora-
 men.  In the foetus, anterior to respiration, the aperture  of the
 foramen ovale is always found at the lowest part of the  valve;
 as soon as respiration has commenced, it is gradually turned to-
 wards the right; after some weeks, it is elevated still higher; and
 finally, after revolving  as it were around the right edge of the
 valve, it is found at the upper, instead of the lower  side of  it/f  In

  * Bell's Anatomy, vol.  1, p. 396.  American edition.  See, also, Meckel's Anatomy,
 vol. 2, p. 207. American edition, by Doanc.
  t " 1. Infostu, omnino non respirante, hiatus foraminis ovalis ad imam partem val-
 vule reperitur, per quam sanguis e vena cava ascendente effusus, statim ad sinistrum
 ventriculum transjiciendus, transmigrat:
  " 2. In infante recens nato, qui per paucula momenta respiralione usus est, apertura
 istius foraminis e tramite suo pristino jam paululuin dextrorsum deflcxa conspicitur,
 inde sanguis e vena cava inferiori illuc appellens, cum sanguine e superiori vena cava
 refluo, per partem foraminis jam clausam novo incepto circuitu decurrit:
  " 3. In infante plures septimanas  nato, apertura foraminis adhuc altius cum valvu-
la dextrorsum suspensa deprehenditur: 
INFANTICIDE.
361
other words, as soon as respiration commences, the aperture of
the foramen ovale moves gradually from the bottom to the top,
and from left to right.  Now these changes in the foramen ovale,
according to Professor Bernt, will indicate not  merely the exis-
tence of  respiration, but also  the different periods during which
it has continued.  With regard to the validity of this test, how-
ever,  it must be obvious, that from the gradual manner in which
these  changes take place, a great many cases must occur in which
they can  furnish no decisive evidence.  For  instance, suppose a
child  had taken only one or two inspirations,  sufficient to  fill the
lungs, and to show that it had actually been born alive, the change
in the position of the foramen  ovale would be so slight as to ren-
der it altogether  inappreciable.  Besides this,  there is another
consideration of great  importance, which is, that from the very
nature of these changes, no one would  be competent to decide
upon them, unless he had had the good fortune, which falls to the
lot of very few, of making a great number of dissections and ob-
servations upon the foetus.   In the  hands of the generality  of
physicians, it might lead to numerous and unavoidable errors.  In
addition to all  this, the  very observations made  by Bernt himself
prove that the changes in the foramen ovale do not take place
so uniformly and certainly, as  to render it safe to draw any posi-
tive conclusion from them.  On these various accounts, I must
confess that I do not attach the same  importance to this test as is
done by Professor Bernt.
   (b.)  The ductus arteriosus.   This is a vessel  which passes di-
rectly from the pulmonary artery, and enters  the aorta just below
its arch.   It is a vessel  of  considerable size, being somewhat
larger than the aorta itself in the fcetus.   It conveys a large por-
tion of the blood sent into the  trunk of the pulmonary artery, di-
rectly into the aorta.

  "4. In adulto, demum foramen cum sua apertura et valvula plane inversum appa-
ret, adeoque ejus apertura supra tuberculi Loweri marginem  infcriorem penitus se
recondit, cum valvula eadem transitu temporis,  ni impedimentum  intercurrat, fir-
miter adhaesura."   (Experimentorum Docimasiam Pulmonum Hydrostaticam Ulus-
trantium. Centurioe i. Sectio ii. Curante Josepho Bernt. Prefatio, p. xii. Viennse,l824.)
   VOL. I.                      31 
362
INFANTICIDE.
                                   b. b. The ventricles of the heart.
                                   c. c. The places from which the auri-
                                       cles have been cut away.
                                   d. The root of the aorta, with (e e) its
                                       branches.
                                   g. The pulmonary artery.
                                   i. The right branch of the pulmonary
                                       artery.
                                k k. The left branch.
                                   m. The ductus arteriosus, running from
                                       the pulmonary artery to the aorta,
                                       which it joins at n.
                                   o. o. The aorta,  increased in size after
                                       the junction of the  ductus  arte-
                                       riosus.

                                     In this sketch, the ductus arteriosus
                                   is unnaturally separated from the aorta
                                   by pulling it down, and thus leaving the
                                   space (a) between them.


   In the foetus, the ductus arteriosus will be found open and filled

with blood.   After birth, it becomes  gradually  obliterated and

the duct itself becomes eventually changed into a ligament.*  If,

therefore, in  any case, this duct is found permanently closed, it

is a positive proof that the child has been born  alive, and enjoyed

life  for a longer  or shorter  period.   As,  however, its closure

does not take  place  sometimes till two or three  weeks after birth,

its being found open is no  proof that the  child  was born dead.

By Professor  Bernt, however, it is urged, that,  as in  the foramen

ovale, a  succession of changes takes place  which may  suffi-

ciently mark  the various intervals which have elapsed between

them and the  birth of the child ; and  upon  these  he  has founded

another test in cases of infanticide, to which he attaches  great

value.  These changes are  the following:

   State of the  ductus arteriosus in the mature fcetus  before respira-

tion.   Its shape is cylindrical—its length nearly half an  inch—

its diameter is equal to that of the main trunk  of the pulmonary

artery and more  than  double the  size of  the  branches of that

artery, each of which is equal to a  crow quill.

   In a child which has respired a few moments.  The duct loses

its cylindrical shape—the part towards  the aorta  becomes con-


  * " In the adult, it is so thoroughly obliterated, that by the most careful dissection
we can show no other vestige of it than a cordlike adhesion of the aorta and pulmo-
nic artery." (Bell's Anatomy, vol. 1, p. 465.  Am. ed.)
  According to Meckel, the obliteration of the ductus arteriosus leaves behind it, " a
round solid  cord, a line thick and about four lines long."  (Meckel's Anatomy, vol.
2, p. 374.  Translated by A. S. Doane, M. D.)
 
INFANTICIDE.
363
 traded, and  the whole duct assumes the  shape of a truncated
 cone, the base  of which is  towards  the pulmonary artery, and
 the apex towards the aorta; sometimes the contrary is observed.
    In a  child which has lived for  several hours or for a  day.  It
 now recovers its cylindrical shape, but is greatly diminished both
 in length and diameter.   It is now not larger than a goose quill—
 much less than the main trunk of the pulmonary artery and not
 more than equal to each of its branches.
    In a  child which has  lived for some days  or a week.   The duct
 will now be found wrinkled and shortened to the length of only a
 few lines, while its diameter is not larger  than that of  a crow
 quill: at the  same  time the  diameter  of  the  branches of the
 pulmonary  artery will be found increased to that of a goose quill.
 Finally, the perfect closure of the duct does not take place until
 after the lapse of several weeks or months.*
    In relation  to the foregoing changes as stated by Prof. Bernt,
 Orfila has reported some  observations,  and of the  eight  cases
 which he details, only four were found to confirm them.
    In one case, of a mature still-born foetus,  the ductus arteriosus
 was found  only half the size of  the  trunk of the  pulmonary
 artery;  it was cylindrical, half an inch long, and about as large
 as one of the branches of the pulmonary artery.
   In a second case, of a male fcetus eight months old, born  dead,
 the ductus arteriosus was cylindrical, not quite half the size of the
 trunk of the pulmonary artery;  larger than  the right, and  much
 larger than  the  left branch of that artery.
   In a third case, of a mature female infant which  had  lived
 five hours, the ductus arteriosus, so  far from being cylindrical,
 was found dilated at its middle part, and its extremity towards the
 aorta much  larger than that towards the heart; it was eight lines

  * " 1. Si paucula  momenta recens nati exstiterint, aortam  descendentem versus
 sphseroides, paulo  post mutata figura cylindracea, apparuit conus truncatus, basim
 cordi, apicem aortae descendenti, aut contra, obvertens:
  " 2. Si plures horas diemve vitani retinuerint, denuo  formam cylindraceam, ast
 longitudinem et latitudinem imminutam, diametrum caulis pennee anserinae, adeoque
 diametro trunci arteriarum pulmonalium longe minorem, et ilii arteriarum binarum
pulmonalium fere parem exhibuit:
  " 3. Si vitam ad plures dies septimanamve perduxerint, canalis jam  rugosi longi-
 tudo ad lineas aliquot, crassities ad diametrum pennae corvinse coarctata,  diameter
vero arteriarum pulmonalium ad crassitudinern caulis pennae  anserinae aucta con-
 spicitur:
  " 4. Poonitus autem occlusus ductus hie multo serius et incerto hebdomadum men-
siumve numero deprehenditur." (Experimcntorum Docimasiam  Pulmonum, &c.
Preefatio, p. xv. xvi.) 
364
INFANTICIDE.
 in length, and considerably diminished in size.  The trunk of the
 pulmonary artery was sensibly larger than the left branch of that
 artery, but scarcely equalled in size  the right branch  of this
 vessel.
   In the fourth case, a female  infant of full age, having  lived
 nineteen  days,  the ductus  arteriosus  was  only three  lines in
 length, cylindrical, its size three  times less than  that of the trunk
 of the pulmonary artery, a little less in size than  the right branch,
 but much larger than the left branch of that artery.*
   In four  other cases of infants at full  age, two of whom were
 born dead, it was found that the  changes in the ductus arteriosus
 corresponded with the statements of Professor Bernt.
  Very recently, Mr. Jennings of England, has  reported  several
 cases which tend to support the  correctness of  the  observations
 of Bernt.  In three still-born children, the ductus  arteriosus was
 found  cylindrical, nearly as large as the main trunk of the pul-
 monary artery, and larger than either of the  branches.  In  a
 fourth child which  had breathed  freely and  died  one hour  after
 birth, the ductus arteriosus was  conical, with the apex towards
 the aorta, and smaller than the pulmonary branches.
  In a fifth child, which was feeble and died  soon after birth, the
 duct was conical, with the apex  towards the aorta,  and  smaller
 than the pulmonary branches.  The sixth child, was born  with
 the  breach presenting and  in a state of asphyxia.   The lungs
 were inflated, and it cried, but died shortly after.  Here the duct
 was found  conical and considerably smaller than the main pul-
 monary trunk-!
  From the foregoing, therefore, I think we may safely conclude,
 that although the changes in the ductus arteriosus consequent
 upon respiration, are by no means invariably such as are reported
 by  Prof.  Bernt,  yet they furnish  corroborative proof of great
 value.   As  they  are liable to exception it is  evident  that  they
 should never  be taken except in  connexion with  the other signs
 indicative of respiration.
  (c.)  The ductus venosus.   This is a vessel  lodged in the  pos-
terior part of the longitudinal fissure of the  liver.   It comes off
directly from  the umbilical vein,  and opens with  the vena? hepa-
ticse into the vena cava ascendens.   It is large enough to admit
a common sized  probe, which  can  easily be introduced into  it
  • Lecons de Medecine Legale, par M. Orfila, vol. 1, p. 388-9.  Second edition.
  t Transactions of the Provincial Med. and Surg. Association, vol. 2, p. 450. 
                          INFANTICIDE.                       365

through  the umbilical vein.  Through this  vessel, a portion of
the blood passing through the umbilical vein, goes directly to the
^ava and then to the heart.
a. The left lobe of the liver.           g. The umbilical vein.
b. The right lobe.                   m m. The hepatic veins.
c. The lobulus spigelii.               n. The vena portae.
d. The gall bladder.                 a. The ductus venosus.
e. The vena cava inferior.
   In  the foetus, anterior  to respiration, the  ductus venosus  is
always found open.  After respiration is established, it gradually
contracts, becomes impervious, and is finally converted into a lig-
ament.   The period at which it obliterates, varies very  much in
different cases.   In twenty infants, who had  lived three days, it
was found  obliterated,*   Generally  speaking, this vessel is obli-
terated before the ductus arteriosus or the foramen  ovale.  The
only inferences that can be drawn  from the  ductus  venosus, are
these : if it be obliterated, it is a proof that the child has  lived
and  respired:  on the contrary, as it remains open a day or two
at least after birth, its being found open is  no proof that the child
was born dead.
   (d.) The umbilical vessels.   These consist of two arteries and a
vein.   The former (the umbilical arteries) are nothing more than

   * Lccons de Medecine Legale, par M. Orfila, vol. 1, p. 384. Second edition.
                             31* 
366
INFANTICIDE.
continuations  of the  iliac arteries.  They mount  up along the
sides  of the urinary bladder, and go * directly to the umbilicus,
through which they pass, forming with  the vein, the umbilical
cord.   These  vessels carry the blood of the fcetus to the placenta.
The latter  (the umbilical vein,)  carries  the blood from the pla-
centa to the foetus.  It enters the fcetus at the umbilicus, and goes
upwards and backwards to the great fissure of the  liver.  After
birth,  these  vessels become gradually  obliterated, and converted
into ligaments.  The period at which this obliteration takes place,
varies in different subjects.  It takes place, however, sooner than
that of  any other of  the fcetal openings.   In twenty cases of in-
fants  who died on the third day, they were in all found oblitera-
ted; anterior to this they are open.   The only inference, therefore,
that can be drawn from finding them closed, is that the child has
been  alive ;  at the same time, their being open, is no proof that
the child was  born dead.
   With regard to the whole  of the changes which takes place in
the circulation after birth, M. Billard has made a number  of ex-
ceedingly interesting  and important observations, which deserve
to be recorded.
   Children  of one day old. In eighteen children of this age, four-
teen had the foramen ovale completely open;  in two, its oblitera-
tion had commenced; and in  the remaining two, it was completely
closed,  and passed no  blood.  In the same infants, thirteen had
the ductus arteriosus,  open and full of blood;  in four, its oblitera-
tion had commenced; and  in one, it was completely obliterated.
This  last was one of the two that had the foramen ovale com-
pletely closed.  The  umbilical arteries were  open quite to their
insertion in  the iliac arteries; their calibre, however, was diminish-
ed by a remarkable thickening of the coats.   In all these children,
the umbilical vein and the ductus venosus were open, and the  lat-
ter vessel generally gorged with blood.
   Children of two days  old.  In twenty-two infants of this age,
fifteen had the foramen ovale quite  open; in three it was almost
obliterated ; and in the remaining four entirely closed.  In thirteen
of the same children, the ductus arteriosus was open; in six, the
obliteration was commenced; and in three, it was complete.  In
all of the twenty-two, the umbilical arteries were obliterated to  a
greater  or  less  extent.  The  umbilical vein and ductus venosus, 
INFANTICIDE.
367
though empty and flat, could yet be passed with a probe of con-
siderable size.
  Children of three days old.   In twenty-two infants of this age,
fourteen had the foramen ovale still open; in five, the obliteration
had  commenced; and in the  remaining  three it was complete.
In fifteen the ductus arteriosus was still free; in five, the oblitera-
tion  had commenced;  and in only two was it complete.  These
two  were of the three which had the foramen ovale closed.   In
all the twenty-two, the umbilical vessels and ductus venosus were
empty, and even obliterated.
  Children of four days old.   In twenty-seven infants of this age,
seventeen had the foramen ovale still open; and in six of these this
opening was very large  and distended, with a great quantity of
blood; in eight, the obliteration was commenced, and in two com-
plete.  In seventeen, the  ductus arteriosus was still open; in seven,
the obliteration had commenced, and indeed consisted only of a
very narrow passage; in the three remaining, the obliteration was
complete.   The umbilical arteries were in  almost all, obliterated,
near the umbilicus, but were yet capable of being dilated, near their
insertion into the iliacs.  The umbilical vein and the ductus veno-
sus were completely empty and very much contracted.
   Children of five days old.   In twenty-nine infants of this age,
thirteen had the foramen ovale yet open, although the opening did
not exist in the same degree in all;  (in four of them its size was
large, and in the nine others, moderate;)  in six, the obliteration
was complete, and in the remaining  ten, almost  complete.   In
fifteen of these  twenty-nine, the ductus arteriosus was found open;
in ten of them very freely so, and in the other five the obliteration
was very much advanced.   In seven, this canal was completely
obliterated, while in the remaining seven it  was nearly so.   In all,
the umbilical vessels were completely obliterated.
   Children of eight days old.   In twenty children  of  this age,
the foramen ovale  was completely closed in eleven; incompletely
so in four, and open in five.   In three, the ductus arteriosus was
not obliterated ; in six, it was almost entirely obliterated; and in
eleven, the  obliteration was complete.  In fifteen, the umbilical
vessels were obliterated; the remaining five were not  examined.
   Children  at  more  advanced ages.  In the most of these, the
foetal  openings are obliterated; nevertheless  the foramen ovale
and the ductus arteriosus may be found open as late as twelve or 
368
INFANTICIDE.
fifteen days, and even three weeks, without any particular acci-

dent happening during its life to the child.*

   From these observations, the conclusions may  be drawn,—1.

That  the foetal  openings are not  obliterated immediately after

birth.   2. That the period at which they  are obliterated, is varia-

ble.  3. That most commonly the foramen ovale  and the ductus

arteriosus are obliterated towards  the eighth, or  the tenth day.

4. That the order in which  they are obliterated is the following,

viz. the umbilical arteries obliterate first, then the  umbilical vein,

the ductus venosus, the  ductus arteriosus, and finally the foramen

ovale.   5. That their obliteration proves that the child was born

alive.    6. That  it is impossible  to infer from the  fact of their

not being obliterated, that the child has not respired, since it has

been shown that the obliteration  is  very  far  from being made

immediately after birth.!

   (d.)  The  umbilical cord.  This is the last peculiarity of the fcetal

circulation which requires  notice.   After  the birth of  the child

and the division of  it from the placenta, it is well  known, that

after some  days elapse, the cord  separates from  the child, and

drops off.   If, therefore, in  examining a case, it be found that the

cord has separated in the usual way,  it  is a proof that  the child

must have enjoyed life.   As, however, the separation of the cord

takes  some days,  it is obvious that its presence  is no proof that

   * In some cases, these openings  have remained for a much longer period. Mr.
Burns relates the case of a person who lived to the age of between forty and fifty, in
whom,  on dissection, both the foramen ovale and the ductus arteriosus were open.
The former was equal in size to the barrel of a goose quill, while the latter was equal
to that  of a crow quill.  From the age of three years till his death, he was incessant-
ly harassed with  paroxysms of difficult breathing, cough, and discoloration of the
skin.  These became more and more frequent, and he eventually died of oedema and
exhaustion.  (Observations on  some of the most frequent and important Diseases of
the Heart, &c. by Allan Burns, Lecturer on Anatomy and Surgery, p. 17.1809.)
   Corvisart relates the case of a postilion who died at the age of forty-seven, in con-
sequence of local injuries which he received, in whom, on dissection, the foramen
ovale was found open, and more than an inch in diameter.  The ductus arteriosus
was transformed into ligament. (An essay on the Organic Diseases and Lesions of
the Heart and Great Vessels.  By J. N. Corvisart, p. 209. American edition.)
   A similar case is quoted by  the same author from  Morgagni, of a girl who died at
the age of seventeen, in whom the foramen ovale was open, and large enough to ad-
mit the little finger. (Ibid. p. 229.)
   By Dr. Perkins a case is  related of a child eleven months old, in whom, on dis-
section, the foramen ovale and the ductus arteriosus were both found open.  (New-
York Medical  and Physical Journal, vol. 2, p. 444.)
   By Dr. R. K. Hoffman, another case is recorded of a child who lived to the age of
nine months, and in whom, on dissection, the foramen'ovale was found open. (Ibid.
vol. 6, p. 250.)
   Another case is recorded, in which the foramen ovale was found open in a man
who died at the age of sixty. (American Journal of Medical Sciences, vol. 15, p. 223.)
   t Traite des Maladies des Enfans, Sec. par C. M. Billard, pp. 576—60.  Also Lc
90ns de Medecine legale, par M. Orfila, vol. 1, p. 387.  Second edition. 
INFANTICIDE.
369
the child was  not born alive.  As  in the case  of the foramen
ovale and the ductus arteriosus,  it has been supposed, however,
that the  successive changes which  the  cord undergoes  from
birth until its final separation, might afford some indication, not
merely of the child's having been  born alive, but, also of the
length of  time during which it had lived.  M.  Billard  was the
first person by whom these changes were properly investigated.
These I shall briefly  notice.  By the cord here, we mean that
portion of it which is between the umbilicus  of the child and the
ligature.  In the new-born infant, the cord is firm, round, and of
a bluish color.  If the child  lives,  the first change which it un-
dergoes is that of withering.  The  second is that  of desiccation
or drying.  The third is the separation of it,  and lastly, the cica-
trization of the umbilicus.
   Withering of the cord.  This is the incipient stage of desicca-
tion, and is indicated by the cord becoming soft, flabby, and very
flexible.   It takes  place  at variable periods, from five hours to
three days  after birth.  Of sixteen infants  who  had  the  cord
withered, one was five hours old, six were a day old, four were
two days  old, and  four were three days  old.
   Desiccation or drying of the cord.  The cord now becomes  dry
and flattened, and of a brownish red colour.   As the process ad-
vances, it  becomes still more flattened, and assumes a semi-trans-
parent appearance. The umbilical vessels now become contracted
and in some cases obliterated.  This process usually commences
on the first  or  second day  after birth and is completed on the
third, fourth, or fifth day.  The average period is about the third
day.  Of  twenty-five infants, in whom the desiccation was com-
plete, Billard found one was one day old—one, a day and a half
old—five,  were two  days old—nine, three days old—four, four
days old—five,  five days old.
   By M. Billard, this desiccation is considered as a vital process,
and his reasons are, in the first place, that the portion of cord be-
yond the ligature, or that which is attached to the placenta, does
not undergo this process of desiccation—but decomposes and pu-
trifies like any  other dead matter—while the  part of the cord
between the ligature and the abdomen alone undergoes desicca-
tion,  a process entirely different  from ordinary putrefaction.
And in the second place, that the cord ceases  to desiccate as soon
as life ceases—that it  does not desiccate at all in the foetus which 
370
INFANTICIDE.
is born dead—that on the dead subject the cord undergoes a real

putrefaction,  which is altogether different from this desiccation.*

   The inferences drawn by Billard, from  the whole  of his ob-

servations in relation to the desiccation of  the cord  are the fol-

lowing :
   1. The desiccation of the umbilical cord takes place during life

only.

   2. At the moment of death this desiccation  is completely sus-

pended, or considerably diminished.

   3. If  the cord be fresh,  or commencing  to  wither, the infant

may either have been born dead,  or have lived only a short time.

   4. If the cord has either commenced  desiccating, or be  com-

pletely desiccated, the infant has  lived at least one  day.!

   Separation or dropping off of the cord.  The period at which this

takes place after birth,varies very considerably.  In sixteen children

examined by  Billard, in whom the cord had separated, three were

two days old  ; three, three days old ; six were four days  old ;  three

were five days old;  one, six days old; and one, seven days  old.J

From  the fourth to the  fifth day after birth,  then,  would appear

to be the ordinary period at which the cord falls off,  although it

sometimes happens sooner, and sometimes later.   Generally, then,

the  cord withers during the first day, at the end of which desic-

cation commences; desiccation is complete on the third day, and

between the fourth and fifth day the cord drops off.  All  this, of

  * Traite des Maladies des Enfans, &c. par C.  M. Billard, p. 16. New  York
Medical and Physical Journal, vol.  6, p. 303, 4.
  t Billard states that in foetal subjects brought in for the purposes of dissection, he
always observed, that they may be kept for several days without any drying of the
cord.  The cord even remains sufficiently soft and its vessels sufficiently open to
permit of their being injected.  During life, on the other hand, the cord desiccates
and the vessels become obliterated from the first, second or third day.  * For the
purpose of testing these facts, he preserved a number of dead bodies of children for
several days.   The cord did not desiccate, but remained soft and flexible, even to
the fourth  and fifth day, and then it fell into a state of putridity.   He also succeed-
ed in injecting, by the umbilical cord, at the end of four days, the body of a still-
born child. The cord here was not the least desiccated, and was only very soft.
(Billard, p. 21.)
  When the  umbilical cord is left to undergo putrefaction,  it becomes greenish
white; after that  it puckers at its extremity—the cuticle of the cord is easily separa-
ted, although the cord itself does not separate from the abdomen, as it does during
life.  The cord can be torn in different places, and if it has been in water  for some
time, it is  soft and  very fragile.  Billard has never seen the cord of a child, bom
dead, dried up before the fifth or sixth day,  and in this case it preserves its circular
form and even its suppleness for a considerable time.  According to the observations
of M. Billard, putrefaction of the  cord never occurs, until this process  has com-
menced in other parts of the body.  The cord, therefore, is never affected in  this way,
until the abdominal parietes have turned green, and the different organs  are in a
state of decided decomposition. (Billard, p. 23, 4.)         X Billard, p. 26. 
INFANTICIDE.
371
course,  is merely  general, being  liable to numerous variations
and exceptions.
  Before  dismissing the subject of the umbilical cord, there is
another phenomenon which requires to be noticed.  Anterior to
the dropping off of the cord,  there is observed a red or inflam-
matory circle around its attachment to the umbilicus; and by many,
this has been supposed to be an evidence of vital action, and of
course that  the child must have been born alive.  In relation to
this sign,  it is to be recollected that it is by no means invariably
present.  Indeed,  according to  the observations  of Billard,  it
would seem to  be more commonly absent.  Out of eighty-six
children,  he found only twenty-six who exhibited evident traces
of this inflammatory  circle.*  Its absence,  therefore,  is by no
means to be looked upon  as an evidence  that the child was not
born  alive.
   Cicatrization  of the umbilicus.  This is the  last change which
these parts undergo ;  and the period  at which  it takes place,  is
from the  tenth to the twelfth day  after birth.
   Having  now  gone  through  the consideration  of  the  vital
changes which the circulation undergoes as soon as the child has
an independent  existence, or in other words, as soon as respira-
tion is established, we are prepared to draw some general  infer-
ences from  them  with the view of estimating their true value.
 General inferences, deduced from the examination of the circulation.
   1.  If the foramen ovale, the ductus arteriosus, the ductus veno-
 sus, and  the umbilical vessels be obliterated, and, if the umbilical
 cord be separated, the conclusion is certain, not merely that the
 child has respired, but, that it has lived for a considerable time.
   2.  If the foramen ovale, the ductus arteriosus, the ductus veno-
 sus, and the umbilical vessels be still open, and if the cord be still
 attached to the umbilicus, no inference can be drawn that the
 child has not respired.
   3.  Of  all the changes in the circulating apparatus, consequent
 upon respiration,  those of the ductus arteriosus are the only ones
 which can be  rendered  available in cases  where the child has
 only respired for  a short period.
   4.  In cases where a child has respired a sufficient length of time,
 valuable  presumptive evidence of the fact may be obtained from
 the state of the umbilical cord.
   5. The changes in the circulation consequent upon respiration
                          * Billard, p. 29. 
372
INFANTICIDE.
 are important in many cases to determine the length of time that
 a child may have lived after birth.
   Having thus considered the various  proofs  deduced from the
 circulation, I come next to notice  those which are drawn from
 the respiratory organs.
   II. Proofs of the child having respired, drawn from the respira-
 tory organs.
   The points here to be investigated are the following; the gene-
 ral configuration and size of the thorax—the situation of the lungs—
 their volume—their shape—their colour—their consistency or den-
 sity—their absolute weight—their specific gravity.
   There are  three conditions  in which the new-born child may
 be found.  It may have respired perfectly.  It may have respired
 imperfectly.  It may not have respired at all.  It is with reference
 to these three conditions that the foregoing points are to be  ex-
 amined.
   1.  The size and configuration of the thorax.  If the  thorax of
 a child which has  never  respired  be examined, it will be  found
 narrow and flattened.  On opening into it, also, the general size
 of the  cavity will be found small, and the diaphragm rising into
 it highly arched.   In a child which has fully respired, on the con-
 trary, the thorax  externally will be found broad  and rounded,
 while the internal cavity will be enlarged in all directions.   The
 diaphragm, too,  will  be  much less  arched.   In cases where
 the respiration has been  less  perfect,  all these changes will of
 course  be less marked.  As the ideas connected with the terms
flat and arched, small and large, are, in these  cases, in a  great
 measure only relative and arbitrary, it was suggested by Daniel,
 for the  purpose of greater accuracy, that the chests of a number
 of infants should be subjected to measurement, in order to esta-
 blish  a  standard of size both before and after respiration.   With
 this view, he proposed that the circumference of the thorax
 should first be measured by a cord; then the height of it should
 be taken posteriorly, measuring  along  the dorsal vertebras; and
 finally its depth, by taking the  distance from the vertebrae to the
 sternum.   Another mode is, simply to measure  the diameter of
 the thorax from one  hypochondrium to the other, and from  the
 sternum to the vertebrae.  It must be evident, however, that such
 measurements must be very uncertain in  their results, owing to
 a great variety of unavoidable causes, such as differences in the 
INFANTICIDE.
373
natural size of the child, &c.;  and therefore the inferences drawn
from them must inevitably lead, in many cases, to erroneous de-
cisions.   It is to be recollected that the thorax of a child is large
or small, not so much according to its own actual size, as it is in
proportion to the  size of the  child itself.  For instance, in the
body of a very  small child, the thorax may nevertheless, be justly
considered large, although much inferior in size to that of a child
much larger.   Hence  any opinion formed from  an examination
and comparison of the thorax of different children must be ex-
ceedingly doubtful and  uncertain.  The best way, after all, per-
haps, is to trust simply to ocular inspection.  A little experience
in examining the appearance of different subjects, will much bet-
ter enable a person to decide correctly, than by  any fixed  stan-
dard of measurement.  With regard to the  size  of the thorax as a
sign of  respiration or  non-respiration, it must  be admitted, that
taken by itself it is not of much value.   It is only in connexion
with other signs that it is of importance.
   2. The situation of the lungs.   Anterior to  respiration, the
lungs occupy a small space at the upper and posterior parts of the
thorax,  leaving  the pericardium and diaphragm  almost  entirely
and sometimes  entirely uncovered.  If only imperfect respiration
has taken place, the lungs will be  found occupying  the lateral
portions of the thorax also.  If the respiration has been complete
and  especially  if it has been  established for a certain length of
time, they will  cover almost entirely the pericardium as well as
the arch of the diaphragm.   Although some three or four cases
are recorded by Schmitt,* which tend  to weaken somewhat the
force of this sign, yet in general, it is one  of considerable value.
Like the preceding, however, it is not to be  depended upon except
in connexion with other signs.
   3. The volume of the lungs.   In the foetal state, the lungs are
comparatively  small  in  size.   As  soon as respiration  is  esta-
blished, they become distended with air, and, of course, increased
in volume.  The degree in which this takes place, must necessa-
rily vary, according as  the respiration  has been more or less
perfect.   For the purpose of rendering  this test  more  accurate
and  available, various modes  have been  proposed  to ascertain
the exact increase of volume of the lungs in consequence of respi-

            * Diet, des Scien. de Med. art. docimasie pulmonaire.
   VOL. I.                     32 
374
INFANTICIDE.
ration.   The only one which I shall notice,  is that proposed by
Daniel.
  DanieVs mode.  This is founded upon the principle, that every
solid body plunged into a liquid, displaces as  much of that liquid
as the space which it occupies.   If, then, a solid body be plunged
into a vessel of water, it will cause the water  to rise in the vessel
just in proportion to the  quantity which is displaced.   It is upon
this principle  that Daniel proposed that  experiments should  be
made upon lungs that had not  respired, as well as those which
had respired, for the purpose of ascertaining the different heights
to  which the water would rise.  In  the case of lungs which
had respired, it is evident  that  these organs would  not sink.
To  obviate this difficulty, he  recommends,  that they be placed
in a wire basket, the volume of which is known, and which may
afterwards be deducted from  the volume of the lungs.*  With
regard to this test, however, it does not appear that  any conclu-
sions can be drawn from the absolute volume  of the lungs which
can be depended upon  with  any degree of certainty.   The best
mode of judging of the volume of the  lungs after all  is by the
space which they occupy in the chest and by their relative situa-
tion to the pericardium and diaphragm.
  The following sketches, copied  from Dr. Cummin,!  w^l giye
some idea of the relative  situation and volume of  the lungs
before and after respiration.
     Before Respiration.
  a a. Sections of the clavicles.
  6. Thymus gland.
4, c d. The lungs.
  e. The pericardium.
  /. The diaphragm, much arched.
* Diet, des Scien. de Med.  Western Medical Reporter, vol. 1, p. 322.
t Cummin on Infanticide, p. 56. 
INFANTICIDE.
375
    After Respiration.
a a. Sections of the clavicles.
b. Thymus gland.
c. d. The lungs.
e. The pericardium.
/. The diaphragm, less arched.
  4. Shape  of the  lungs.   In this  respect, a  striking change
takes place in some portions of the lungs in consequence of re-
spiration.   In the fcetal state, the edges of the  lungs are  sharp,
and  the lower margin of the left upper and right middle lobes
pointed.   After respiration has taken place, the edges of the lungs
become rounded, while the pointed margins  of the left  upper
and  right  middle lobes become  obtuse.  The degree to  which
these changes take place, differs also according as the respiration
has been more or less perfect.
  5. Colour of the lungs. In the fcetus the colour  of the lungs is
of a brownish red, resembling very much the colour of the liver
in the adult  and of the thymus gland in the foetus.  The re-
semblance in colour between the foetal lungs  and the thymus
gland is important, as it furnishes an immediate standard of com-
parison.   After  perfect respiration has taken  place, the lungs
assume a  pale red or scarlet colour.  Where the  respiration has
only been imperfect, some portions will be found of a brownish
red, while  others will be scarlet.  In  appreciating  the value of
this test, it is  to  be  recollected that a number  of causes, beside
the presence or absence of respiration, may modify the colour of
the lungs.   In the first place, artificial inflation changes the  colour
of the lungs.  The changes  produced in the colour of the lungs
by artificial inflation, vary with the manner in which the process
is performed.  If the lungs of a child which has never respired, be
taken out  of the chest and separated and a small quill introduced
into one of the bronchial tubes, these organs can be very easily
and fully inflated, and  they then assume a  uniformly bright red
appearance.   If,  however, air be merely introduced in the ordi-
 
376
INFANTICIDE.
nary way in which it is practised for the purpose of resuscitating
a child, by blowing with the mouth, then the inflation of the lungs
is very imperfect, and the change of colour is only partial, corre-
sponding with the parts of the lungs which had been permeated
by air.  With regard to the exact colour produced by artificial in-
flation, experimenters differ.   According to Bernt, if any change
of colour is produced it is only a pale or grayish red.* Dever-
gie says it is white, while Mr. Jennings states that it causes the
scarlet tint of respiration.  Whichever of these opinions  may
be  nearest the  truth, one thing is  certain, that the change of
colour produced  by artificial  inflation  approximates sufficiently
near to  that of respiration, to render any distinctions  of colour
as  altogether of little value in discriminating  between the  two.
There is one point, however, of importance in  connexion  with
the colour of the  lungs which may be turned  to  advantage in
discriminating between artificial inflation and perfect respiration,
and that is the extent to  which the change of  colour  has gone.
As already stated, in cases of artificial inflation, the  change of
colour is only in  portions  of the lungs.  Where respiration has
been  perfect, on the other hand, there is a general change of
colour in  the whole  of the lungs.  Between  artificial inflation
and perfect respiration, this then would furnish a ground of dis-
tinction.  Between artificial inflation and imperfect respiration,
this would be of no  avail.  In both, the air has  only partially
pervaded the lungs, and  of course the change  of colour in both
would be only partial.  The mere colour of the lungs then would
fail to show whether it was owing to imperfect respiration or in-
flation.   Other tests would have to  be  depended to establish the
diagnosis.   In  the  second place, disease  may modify the colour
of  the  lungs.  Thus, for  example,  where  new-born infants  die
from sanguineous engorgements of these organs, notwithstand-
ing respiration may have been perfectly established, the colour
differs in various  degrees from that produced  by respiration in
healthy lungs.'  Lastly, the action  of the atmosphere  upon  the
lungs changes their colour.  On opening the chest of a still-born
child, it will be found that the lungs will speedily assume a much
brighter colour.  From all this it is apparent that observations on
the colour of the  lungs  must be made with  great caution, and
* Edinburgh Med. and Surg. Journal. 
INFANTICIDE.
377
the necessary discrimination made between the various causes
which may have exerted an influence in modifying it.
   Like all the other signs of respiration already noticed, the
colour of the lungs cannot be depended upon by itself.  It must
always be taken in connexion with the other signs.
   6. Consistence or density of the lungs.  In the fcetal state, the
lungs are dense, resembling very much the solidity of the liver.
On pressure, or when cut into, they do not crepitate.   After per-
fect respiration, they  become  soft  and  spongy—air  bubbles
may be squeezed out of them, and when pressed or. cut into they
give out a crepitus.   When the respiration has been less perfect,
some portions will be found dense, while others  will be spongy
and crepitous.   This  is a valuable and  striking test.   The only
serious objection to it is, that artificial inflation produces  precise-
ly the  same change in the lungs.   The modes of distinguishing
between these two will be noticed under the  head of the Hydro-
static test.
   7. The absolute weight of the lungs.   From the peculiarity of
the vascular system in the foetus, only a small portion of the
blood goes the round of pulmonary circulation,  the greater part
passing directly through the foramen ovale, and the ductus arte-
riosus.  As soon, however, as respiration is established, all  this is
changed and  then the whole mass of blood passes through the
lungs.   It is evident, then, that the weight of the lungs  must be
increased in  consequence of respiration, and  the increase of
weight will be just in proportion to the quantity of blood wThich
has been thus introduced into these organs.
   Upon this is founded what is generally known as the Static test.
To render this test available, it  is obvious that  some standard
weight of the lungs in the two states must be fixed upon,  other-
wise,  no conclusions  could safely be  drawn in  any  individual
case.   For this purpose,  two modes have been  proposed; the
first is, to take the average actual weight of a certain  number of
lungs,  both in the  fcetal state and after respiration has  been es-
tablished.  The second  is,  to  compare the weight of the lungs
with the weight of the  body of the  child.   This last  is  the test
proposed by Ploucquet.
   First form of the static test.   With  regard to  the  former of
these modes, the first great object is  to  settle what is  the great-
est weight to which the fetal lungs ever attain.   This being es-
                             32* 
378
INFANTICIDE.
tablished, of course, whenever the lungs go beyond this weight, it
is evident that respiration has taken place.   By Schmitt, the ex-
treme weight of the foetal lungs, which they never exceed, is fixed
at 1170 grains.  Professor Bernt supports  the observations of
Schmitt.   In twenty-four cases of still-born children, the greatest
weight  of the lungs, exclusive of a case of tubercles, was 993
grains;  the medium was 550 grains.  By Chaussier, it has, how-
ever, been established, that the fcetal lungs do occasionally weigh
more than this.   " Among 104 cases of still-born children,  he
found the weight of the lungs greater than 1170 grains in five
cases; it was 1173 in one, 1282 in a second,  1297  in a third, 1343
in a fourth, and 1637 in a fifth."   Now, it has been ascertained,
that in  a large proportion of cases, the lungs of  children which
have actually respired, do not weigh as much as  is here stated.
Out of twenty-five cases  of children that had breathed, reported
by Schmitt, only four  had their lungs weighing more  than 1170
grains;   out  of thirty-seven similar cases by Bernt,  only three
weighed  more.   As to  the  extreme weights from the cases of
Chaussier, leaving out of view the last, (1637 grains,) which may
be considered  as an extraordinary case, and an exception to a
general rule, it is very rare that the lungs  of a child which has
breathed, weigh more than 1343.  In thirty-seven cases of this
kind, only three had the lungs weighing more.*
   From all this it is evident, therefore, that this form of the static
test can be applicable only in  a  very limited number of cases.
Where   the weight of the  lungs  exceeds the standard here laid
down, it furnishes conclusive evidence of respiration;  but as this
is not  the fact in a large proportion of cases, the evidence de-
duced from it can only be comparative and  presumptive.
   As some general standard of comparison, however, 1000 grains
may be assumed as the medium weight of lungs which  have  re-
spired,  and 600 grains, of those which have  not respired.
   Second form,  of the static test.   Ploucquefs test.   This test was
first announced in 1782, and is founded on the relative weight of
the lungs  to that of the whole body.  From experiments made
by M. Ploucquet, he drew the general conclusion,  that the weight
of the  lungs before respiration is one-seventieth of the weight of
the  whole body; while after  respiration   has  commenced,  it

  * See, on this subject, an admirable review, written, I presume, by Professor Chris-
tison, in the Edinburg Medical and Surgical Journal, vol. 26, p.  376. 
INFANTICIDE.
379
amounts to one thirty-fifth; or in other words, that the blood in-
troduced into the lungs in consequence of respiration, doubles their
absolute weight.
  Beautiful  as this test certainly is, and correct as  the general
principle upon which it is founded undoubtedly is,  it  is exposed
to numerous and serious objections.
  (a.) There  is no fixed  proportion between the weight of the
lungs and the  weight of the body.
  An appeal to facts and experiments must, of course, determine
the value of this objection.  It seems to be conceded on all hands,
that M. Ploucquet drew his conclusions from  a very limited num-
ber of observations.  In one child born  dead, he found the com-
parative  weight of the lungs to  the body  to be as  1  to 67; in
another, as 1 to 70; in a third which had been born alive, it was
found to be as 2 to 70, or  as 1 to 35.  These were all the obser-
vations which he had made, when he promulgated  the general
conclusion which he drew from them.   As might naturally  be
expected from the novelty and importance of the subject, it has since
then attracted the attention of the ablest medical jurists, and their
researches have tended very materially to diminish the confidence
originally placed in  this test.  The most extensive observations
yet made on this subject, were those conducted by M. Chaussier
at Paris, and M.  Schmitt at Vienna.  The following are some of
the results, and they show conclusively that there is no fixed and
uniform proportion between the weight of the lungs and the weight
of the body. 
380
INFANTICIDE.
   (b.)  Even  admitting  that there is a fixed proportion between
the weight of the lungs and the  body, it is  very different  from
that of M. Ploucquet.
   This objection is certainly supported by  the  observations of
Schmitt  and Chaussier, as also  by those of others.  Devergie
makes a difference in the  proportions between children born at
eight and those born at  nine months. In the former he makes it as
1 to 63 before respiration;  and as 1 to 37 after respiration.  In the
latter, as 1 to 60 before respiration; and as 1 to 45 after respiration.
   The following are the results obtained from observations made
by myself.
   Ob.  1. In a male child in whom respiration had been complete,
the proportion was as 1 to 35.
   Ob.  2. In a female child which had respired perfectly  the pro-
portion was as 1 to 37. 
INFANTICIDE.
381
   Ob. 3. In a male child which had respired perfectly as 1 to 44.
   Ob. 4. In a male child born alive, but both body and lungs in a
state of incipient putrefaction,  as 1 to 46.
   The first of these corresponds exactly with Ploucquet's test and
the second very nearly, while the mean average of the four  is as
1 to 40, and if we omit the fourth case, as not in a fit state for any
correct inferences, the mean average of the three first is as 1 to 39.
   Ob. 5. This was a foetus which  had reached the fifth month,
and was judged to have been dead in the uterus about six days
before delivery, owing to an accident which had happened to the
mother.  It was at present in a state of incipient decomposition;
the lungs, however, were  perfectly sound.   The proportion be-
tween the weight of the lungs and the body, was 1 to 29.
   Ob. 6. A foetus between the  fifth and sixth month, in a state of
decomposition—the lungs sound.   The proportion here was  as 1
to 39f
   Ob. 7. In a male foetus between  the seventh and eighth month,
which had not respired, the proportion was as 1 to 62.  *
   Ob. 8. In a female child born at the  eighth month, and which
had not respired, the proportion was as 1 to 51.
   From the immaturity of the foetus, in the fifth and sixth obser-
vations, they can hardly  be considered as fair subjects  from
which to draw any conclusions. Excluding these, the average of
the seventh and eighth, is as 1  to 56.
   These cases, then, give the average of 1 to 56 before respiration,
and of 1 to  39, after respiration.
   The following is the result of these different observations.
	Before respiration.	After respiration.
Ploucquet,	1 to 70	1 to 35
Schmitt,	52	42
Chaussier,	49	39
Devergie,	60	45
My own,	56	39
     Mean average,    1 to 57                 1 to 40
  These, I suspect, will be found nearer the true proportions than
those originally announced by Ploucquet.*
  (c.) A third objection to this test is, that an excessive conges-

  * To those who may wish to investigate this subject, still further, I must refer to
the 400  experiments detailed in Considerations Medico-legales sur l'Infanticide.
Par A. Lecieux, p. 44, 
382
INFANTICIDE.
tion of blood might occur in the lungs of a fcetus that had never
respired,  which would render them equal in weight to the lungs
of a foetus which had respired.*
   To this M. Ploucquet himself replies, that it is not possible for
such a congestion to take place in lungs that have never respired,
as shall render their weight equal to that consequent upon respi-
ration ; because the foramen ovale and the canalis arteriosus offer
so easy a passage to  the  current of blood, even when flowing
with the greatest rapidity, that no determination of  consequence
can exist towards the  pulmonary vessels.
   (d.)  A  fourth objection has been  drawn from the  alteration
produced by putrefaction, in the relative weight of the lungs  and
body.
   On this, Professor Mahon remarks,  " that this may be the case
if the putrefaction be  very great; but then the  fcetus cannot be
subjected to any  examination upon which a medico-legal  de-
cision can be founded.   But if the putrefaction has not  advanced
far,  as the lungs resist its effects  longer than any other part, we
may try the  application of the proposed test, to  corroborate the
results afforded by the hydrostatic trials."!
  Upon the whole, with regard  to the general value of Plouc-
quet's test, the fair conclusion  seems to be, that although the pro-
portions originally announced by its author, have not been borne
out by subsequent observations, yet the fact of an increase of weight
in consequence of respiration  is fully established, and by taking
the various averages which have been mentioned, important pre-
sumptive evidence may be obtained from this source for the cor-
roboration and correction of other tests.
  Relative weight of the heart and lungs.  From the degree of un-
certainty  hanging around the test of Ploucquet, Orfila was in-
clined  to believe  that  a more definite  proportion might exist
between the weight of the heart  and the lungs, and  that  this
might serve as a  test in these cases.   He immediately put it to
the trial of experiment.  For  this purpose, he took out the heart
and  lungs from a number  of  foetuses, having previously cut off
the venae cavae and  pulmonary veins,  as  well  as the pulmonary
artery  and aorta, as near as possible to  these organs.  He then
opened into the heart,  to let out all the blood which  it contained.
After this, having washed them, he weighed them separately-
The results were  the following:
     * Mahon, vol. 2, p. 454.                   t Ibid,  vol. 2, p. 454. 
INFANTICIDE.
383
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   From  these  and other similar experiments, Orfila drew  the
conclusion, that the relative  proportion between  the weight  of
the heart and  the lungs  was  too inconstant  and  uncertain to
draw  any  just inferences as to  the fact  of respiration  having
taken place.*
   8. Specific gravity of the lungs. It is to  Galen that we  are  in-
debted for the first notice of the fact that the lungs are rendered
specifically lighter in consequence of  respiration-!   The  know-
ledge of  this fact was not, however, applied  to the  purposes  of
  * Lecons de Medecine Legale, vol. 1, p. 349.
  T Opera Galeni de usu Part. lib. xv. cap. 6, p. 145, 6. 
384
INFANTICIDE.
forensic medicine until after the lapse of several centuries.  Zac-
chias, who flourished in the beginning of the seventeenth century
and who may be styled the father of forensic medicine, passes it
over in silence;  and it was not until the  year 1682, that it was
first applied by Schreyer, as a test in cases of child murder.
   The Hydrostatic  test.  The principle  upon which this test  is
founded, is the difference produced in the specific gravity of the
lungs, in consequence of the introduction of air  into  them.  In
the whole range  of medico-legal investigations, there is  none
more important  and at the  same  time  more  difficult  than  that
which relates to the validity of this test, as a proof of respiration.
From the time of  its first promulgation, it has  divided the opi-
nions of  medical jurists, and  even at the present day it still re-
mains a  subject of controversy.  When  it is recollected how
great and just an importance has been attached to it in trials for
child murder, and how embarrassing to courts and to juries have
been the  contradictory sentiments  advanced concerning it by
medical witnesses, the propriety of a full investigation of the sub-
ject cannot be questioned.
  For the purpose of rendering  the discussion of it as distinct as
possible,  I shall first state the general facts upon which the test
is founded, and then consider  the various  objections to which  it
is liable.
  On putting the lungs of a still-born child into water,  it will be
found that they sink rapidly to the bottom  of the fluid.  On the
other hand, if the  lungs of a child which has breathed perfectly
be put  into water, they will be found to float high  in  that fluid.
If  the breathing has only been imperfect,  the lungs will float or
sink according as a greater or less  portion of these organs has
been penetrated by air.  On cutting the lungs into pieces, those
portions into which air  has been introduced will  float, while the
rest will  sink.
  From  these facts  the general  conclusions are, that when the
lungs float, the child has respired—when they sink, that the child
has not respired—when portions of the lungs only float, that the
respiration has been partial and  imperfect.
  Let us now see whether it is safe  to trust to the evidence fur-
nished by this test, by considering the different objections which
have been urged against it.   These may be arranged under two
divisions. Theirs/, embracing those which go to show that the
lungs may float, and yet the child not have respired. The second, 
INFANTICIDE.
385
embracing those which go to show that  the  lungs  may sink in
water, and yet the child have respired.

Objections against the Hydrostatic  test, on the ground that the
       lungs may float, and yet the child not have respired.

  Obj. 1. It has been objected that a child may not have respired,
and yet the lungs may float in water from having undergone pu-
trefaction.
  Strange as it may appear, it has nevertheless  been a  subject
much debated, what the effects of putrefaction are upon lungs
that have never respired;  some asserting, that  it renders them
specifically heavier than water; while others, of equal respecta-
bility, maintain a contrary opinion.   Both  parties adduce expe-
riments in proof of their particular  assertions.  The most accu-
rate, I believe, were  those performed by  Mayer,  and as they
place this subject in a very just point of view, and relieve it of
much of the obscurity in which it has been involved,  it may not
be improper to present a summary of his observations.  From a
very extended series of experiments, continued during a number
of years, and executed with great care  and precision, Mayer
found, on putting into water the lungs of still-born children, that
they sunk to the bottom.  After an interval of two or three days,
the water in  which they  were left  became turbid—the lungs
changed in colour, and increased in volume—here and there  an
air bubble arose to the surface of the water, and at the same time
a putrid odour became perceptible.   All these appearances con-
tinued to increase daily, until the sixth, seventh,  or, at the latest,
the eighth day, when the lungs, both entire and  cut into pieces,
floated in the water in which they became  putrid.  On transfer-
ring the lungs to vessels containing  clean water, they still conti-
nued to float, although on the slightest compression they instantly
sunk.   Lungs placed  in water, and exposed  to  the rays of the
sun, swam on the sixth day.  If they were  suffered  to  putrefy
where there was a free current of air, they rarely floated before
the tenth or eleventh day.   After the lungs had once floated, they
remained in that state, emitting daily a more offensive odour, and
acquiring an  increased volume, until  the  twenty-first, or at the
latest, the thirty-fifth day.  After that period, they gradually sunk
down, without a single exception, to the bottom of the vessel, nor
did they afterwards betray any disposition  to float, although kept
   vol. i.                     33 
386                       INFANTICIDE.

for seven weeks, and in some instances a much greater length of
time.*
   The foregoing experiments were made in the month of August.
The lungs, both entire and  cut into sections,  were immersed in
pure  fountain  water, and contained  in vessels  convenient  and
capacious.   In short, every precaution seems to  have been scru-
pulously observed, to render the experiments  accurate and satis-
factory.
   My own experiments on this subject, although not numerous, go
to confirm, in every essential point, those  which  have  been de-
tailed-!  I will merely state that  I found a  great difference in
the length of time which the lungs took to float, according to the
season of the year.   In the month of August,  exposed to the rays
of an intense  sun,  they floated  in less than  twenty-four hours;
while in the month of  April, they took between two  and three
weeks.
   If  it should  be objected to these experiments that they are not
satisfactory, because the lungs were separated from  the rest of
the body, it will obviate every difficulty to state  a case in which
the same result was observed in lungs which  had not been taken
out of the  chest, until after they had become putrid.   A case of
this kind is related in which a child was still-born  and had become
putrid before it was examined.   On  dissection, its vessels were
found full of air and vesicles distended with air were seen on the
surface of the  lungs.   On putting these organs into water  they
floated.;};
   From the foregoing  experiments  it thus appears, that in the
incipient stage of putrefaction, lungs that have never respired
will float in  water; whereas they will sink  if it  has  continued
long enough to completely destroy their  organization,  and thus
extricate all the air contained in them.   These results have been
corroborated by numerous other observations and experiments,

  * Mayer in Schlegel's Collectio Oposculorum Selectorum ad Medicinam Foren-
sem Spectantium, vol. 1, p. 262, 3, 4.
  t Recently some experiments on this subject have been reported by Prof. Gross, of
Cincinnati.  In the month of July, he placed the right lung of a still-born infant in
an open glass vessel, exposed to the rays of an intensely hot sun.  At the end of
twenty-four hours it was found to swim on the surface. The whole organ was ex-
panded and offensive, and the surface was covered with air bubbles.  At the end of
seventy hours it still floated both in the water in which it was originally immersed
and in the clear fluid. The left lung taken from the same child was kept for twen-
ty-four hours in a dry glass vessel and then placed in rain water. In  twenty-four
hours afterwards it floated.  See an  able review of the Elements of Med. Jurispru-
dence by Prof. Gross in the Western Journal of Med. and Phy s. Sciences for July, 1836.
  t Edinburgh Medical Essays, v. 6, p. 450. 
INFANTICIDE.
387
 and their  truth cannot  be doubted.  It  seems singular, indeed,
 that they  should  ever have been questioned, when a case per-
 fectly analogous is witnessed in every person  that is drowned.
 The body at first sinks;  afterwards  rises to the surface, when
 putrefaction has generated air  sufficient to render it specifically
 lighter than water;  and  finally descends again, upon the extri-
 cation of that air.
   Such being the effect of putrefaction, it becomes a question of
 great  importance, to determine  in what  way we may discrimi-
 nate between the floating of the lungs, as caused by natural respi-
 ration, and that which is the result of decomposition.
   Independently  of  the  cha'nges produced  in  the colour and
 general appearance of the lungs by putrefaction, there are other
 very characteristic marks by which they may be distinguished.
   (a.) By the appearance of air bubbles on the surface of the lungs.
 On this subject, Dr. William  Hunter lays down the following
 rule :  " If  the air which is in the lungs be that of respiration, the
 air bubbles will hardly be visible to the naked eye; but if the air
 bubbles be large, or if they run  in lines along the fissures between
 the component  lobuli of the lungs,  the air is  certainly emphyse-
 matous, and not  air which had  been taken in by breathing."*
 Jaeger had before this  made  a similar  observation.  In  lungs
 floating from putrefaction, he describes the air as contained in
 the form of bubbles under the external  membrane of those organs,
 where the air introduced by respiration never  finds its way.!
 This distinction is founded in  truth,  and accordingly has been
 adopted by the best writers on forensic medicine.
   (b.)  By  the ease with which the air can be  extricated from
 lungs  which float in consequence of putrefaction.   The evidence
 of this is to be found  in the fact,  that if lungs of this description, or
 any portions of  them, be squeezed in the  hand, they will imme-
 diately sink in water. On the  contrary, no  compression, how-
 ever strong, can force out so completely  the air from lungs that
 have  respired, as to cause them to sink.  This  is a test which
 may be relied on with much certainty.
  (c.)  By  cutting out a portion  of the internal part of the lungs
 and putting  this in water, to ascertain whether it will float.  If
the  lungs  floated as the result of putrefaction, this internal por-

  *  On the uncertainty of the signs of murder in the case of bastard children.  By
 William Hunter, M. D., F. R. S.  Medical Observations and Inquiries of London,
 vol.  6, p. 284.                      f Jaeger in Schlegel,  vol. 5, p. 111. 
388
INFANTICIDE.
 tion will sink, inasmuch as the air generated by decomposition is
 confined  to  the surface of the lungs.  If, on  the  contrary, the
 lungs  have respired,  the  internal part will  float  more  readily
 even than that towards the surface.
   (d.) By the  absence of crepitation in  the  substance of the
 lungs, in  cases of putrefaction.  This is owing to the fact that
 the  air, generated by putrefaction, exists in  the  external por-
 tions of the lungs, and is not found  in  the air cells, as in natural
 respiration.
   (e.) By an examination of  the  other viscera  of  the body.
 Numerous observations have established  the fact, that with the
 exceptions of the bones, the lungs resist putrefaction longer than
 any other part of the body.   Faissole and Champeau, in experi-
 ments which  they made upon  drowned  animals, observed that
 the  lungs remained  sound, after  the whole of  the  body had be-
 come putrefied.*  Mahon noticed the same fact in his dissections
 of dead bodies-! Camper ascertained, by direct experiments, that
 the  head became so far  decomposed  by putrefaction, that the
 slightest force was sufficient  to detach the bones of it from each
 other, as  well as  those of the arms and  legs, before the lungs
 began to  participate in the putrefaction.;};   I observed the same
 thing in three instances.  This was especially the case in a child
 found floating in the river.  The body had become quite putrid—
 the  scalp was distended with air, and so were  the bowels.  The
 lungs, on the contrary, were perfectly natural in their appearance,
 and untouched by putrefaction.  From these facts the conclusion
 evidently follows, that if the rest  of the body of the child which
 is the subject of examination,  be unaffected by  putrefaction,  it
 may very confidently be inferred, that the floating of the lungs is
 not owing to putrefaction.
   By a careful  application of the foregoing tests, and  especially
 the  first  and second, little or no  difficulty can arise in deciding
 whether the lungs float from putrefaction or from respiration.
   Obj. 2.  It is objected that there may be a peculiar emphysema-
 tous  condition of the lungs, which may make them float in water,
 even though respiration has never taken place.
   The fact of such a condition of the lungs  sometimes  occur-
 ring, although noticed previously,§ was first prominently brought
  * Mahon,  vol. 2, p. 400.                              f ibid.
  X Dissertation on Infanticide, by W. Hutchinson, M. D. p. 47.
  § Alberti noticed it in 1725, and Schmitt in 1806.  (Edinburgh Medical and Sur-
gical Journal, vol. 26, p. 374.) 
INFANTICIDE.
389
 forward by Chaussier, in some cases where he was obliged, in
 consequence of the smallness of the pelvis, to deliver by the feet,
 and where death took place during delivery.  The lungs, on being
 put into  water, floated.   Chaussier explained this  occurrence
 by supposing  that  in  consequence of the violence  done to the
 lungs during the delivery, an effusion of blood  had  taken place,
 the alteration  of which had disengaged  a quantity of air.  Cases
 of this kind  must, as a matter of course, be very rare.  When
 they do occur, the  mode of discriminating, according to Chaus-
 sier, is by squeezing them  in  the  hand.  On putting them into
 water after this, they will be found  to have lost their buoyancy,
 and will  sink precisely like lungs which float in  consequence of
 ordinary putrefaction.  In these  cases, the aeriform fluid exists
 only in the cellular tissue.*
   Obj. 3.  It is objected that a child may not have respired, and
 yet its lungs may float in water, in consequence of their  having
 been artificially inflated.
   It has been  doubted by some, whether artificial inflation of the
 lungs  can ever be effected.  Heister states that  he  proved, by
 actual experiments, that air cannot be blown into  the lungs so as
 to cause them to float.!  Hebenstreit also doubts  whether it can
 be accomplished, in consequence of the  mucus which is usually
 found to  fill  the fauces of a new-born  child.J   Roederer, from
 the failure of his experiments on this subject, was led to the con-
 clusion, that it can only be effected after the child  had previously
 breathed,§  Brendel is still  more positive  on  this  point.   He
 believes artificial inflation to be utterly impossible,  and  assigns
 two reasons for his scepticism.  The first is the  resistance which
 is made by the thorax  and diaphragm; and the second is the
 difficulty of introducing a pipe into the glottis, without which he
 thinks  it is impossible to inflate the lungs.  He  adds, moreover,
 in confirmation of his  opinion, that  he  made experiments upon
 pups that were killed while yet in the uterus;  and  although he
 attempted  to force  in  the air by a bellows, yet no change was
 effected upon the lungs, and they sunk when put into water.||

  * Considerations  Medico-legales sur l'lnfanticide.  Par A. Lecieux. p. 55, 6.
  t Morgagni's Works, vol. 1. p. 536.     J Anthropologia Forensis, etc. p. 405.
  § Collectio Opusculorum Selectorum ad Medicinam Forensem Spectantium.  Cu-
rante Dr. J. C.  T. Schlegel. Vol. 5, p. 112.  || Medicina Legalis sive Forensis, p. 186.
                              33* 
390
INFANTICIDE.
  A contrary doctrine is, however, maintained by a very large
majority of the most respectable authorities in forensic medicine.
Low admits the possibility of it, and tells us that Bohn, together
with the medical faculty of Leipsic, concurred in  the same  opi-
nion.*  Ludwig  says, it is  certain that air may  be artificially
blown into lungs which  have never respired, and  that  they will
afterwards float in water-!  In several experiments made to test
this matter by the celebrated Camper, the result was uniformly
in favour of this opinion.J   Jaeger, Buttner, and Schmitt, concur
in the same, as do most of the French and English writers.  Dr.
Gooch says he inflated the lungs of a still-born child,  and they
floated in water as if the child  had  breathed  some days.§   Mr.
Jennings,|| as  the result of  experiments  made  by himself, states
that the  lungs  may be inflated without  the  use of instruments,
and by simply blowing air into  the  child's  mouth, so that they
will float in water—crepitate on pressure, and change  their co-
lour from chocolate to bright scarlet.U
   From  the foregoing  detail of authorities, it is  quite evident,
that although artificial inflation  of the lungs  of a child born dead,
is a thing perfectly practicable,  yet it is not  accomplished with
as  much facility as many have  imagined.  I am aware that some
writers speak with a good deal of certainty in  relation  to the
ease with which this  may be practised.  It is questionable, how-
ever,  whether they have  not  drawn  their  inferences,  in some
cases,  at  least,  from  insufficient data.   If the  trachea of a
still-born  child be  opened, and  a tube  introduced,  or  if the
lungs be separated and a quill  be  introduced  into the  bronchial
tubes,  it is  doubtless a  very easy matter  to  inflate the  lungs.
Any one  can make the experiment and  satisfy himself perfectly

  * Theatrum Medico-Juridicum. Cap. 12, p. 623.
  t Institutiones Medicinse Forensis, etc. p. 97.    X Schlegel,  vol. 5, p. 112.
  § A Practical Compendium of Midwifery, p. 96. American edition.
  II Trans, of the Prov. Med. and Surg. Assoc, vol. 2, p. 440.
  ^ Prof. Gross of Cincinnati, who appears to have paid considerable attention to
this subject, expresses the following opinion.  " We are decidedly of opinion that
artificial inflation of the lungs is  a very difficult matter; and we  believe  that the
complete distention of these organs can only be affected where a tube is introduced
into the mouth  of the larynx.  A case which  recently came under our notice,
greatly corroborates this opinion.  Here the  child was still-born, and in consequence
of the delay occasioned by a mal-presentation; and  although repeated  efforts were
made by our friend Dr. E. Read, the attending physician, to resuscitate the infant,
yet  we found on examination that only a small portion  of the right middle  lobe, to-
gether with a few lobules of the right superior and  right inferior lobes were filled
with air."  Western Med. Journal.  July, 1836, p. 80. 
INFANTICIDE.
391
on this subject.  This, however, is a widely different  thing from
blowing air into the mouth of  a child, and. that too  by persons
ignorant of the mode of doing it effectually.   If physicians con-
fessedly have failed in accomplishing it, how much more  likely
is this to happen to persons out of the  profession.  Indeed it is
doubtful, whether inexperienced persons would often  succeed in
the process.  The foregoing considerations I conceive to be im-
portant, because they go to show that the cases in which this
difficulty may present itself cannot occur so often as  some  have
supposed.   There  is another circumstance connected with this
subject, which is deserving of  notice.  Although ordinary infla-
tion- may introduce a  sufficient quantity of air into the lungs to
cause  them to float, yet  the entire lungs can  never  be dis-
tended in this way.  This was the fact in the case of  Mr. Jen-
nings  above alluded to,  as also in the case of Prof. Gross.  If
this be so, it would limit the difficulty arising from artificial infla-
tion, to cases in which the lungs are only imperfectly permeated
by air.  Where the lungs are uniformly and perfectly distended,
it would  at once do away with any objection from  this source.
Notwithstanding all this, the  difficulty would still  exist, and it
certainly presents the most formidable of all the objections to the
hydrostatic test.  The difficulty is still further increased by re-
collecting that artificial  inflation not merely causes the lungs to
float, but produces other changes analogous to those of  respira-
tion.  It  changes  the volume, the  colour, the density, and the
 shape of these organs very much in the same way that vital re-
 spiration  does.  How then are we to distinguish  between the
 effects of respiration and artificial inflation 1  The following tests
 will aid in the solution of this difficult problem.
   (a.) The first of these is founded upon the difference in the
 weight of the  lungs, in  the two cases.   When vital respiration
 takes  place, it is accompanied  by an increased flow of blood to
 the lungs and a consequent increase of  weight.  The artificial
 inflation of lungs which have never respired, is not accompanied
 with any increased flow of blood to these organs, and therefore
 there  is no increase of  weight.  Taking the absolute  weight of
 the lungs, therefore, according to Ploucquet's test, or the  actual
 weight of the lungs, is one mode of discriminating between natu-
 ral respiration and artificial inflation.
   (b.) A second test is founded on  the fact  that the lungs of a 
392                      INFANTICIDE.
child which  has not respired, but which float in consequence of
artificial inflation, may, by pressure, have the air expelled from
them so as to sink in water;  while on the  contrary, in a child
which has respired, it is impossible by any  pressure to force out
the air so completely from  the  lungs  as  to make them sink in
water.  This test was  originally suggested by M. Beclard, and
since then the accuracy of  it has been fully supported by other
observers, and  more especially by Mr. Jennings  of England.
My own experiments also go to confirm it.  In applying this test,
certain precautions are  necessary to insure success.  The pres-
sure  must be carried to a suitable extent,  or it will fail.  The
mode adopted  by Mr.  Jennings, was  to put the lungs in a linen
cloth, and then wringing them.   After this they were placed un-
der a board loaded with weights.  If sections  of the lungs be
made, pressing and squeezing them between the fingers for a cer-
tain length of time, will be sufficient to make them sink. In lungs
which have respired, no degree of pressure  will make them sink.
If, however,  their  texture  be completely destroyed by pounding
them, they  may  be  made to sink.   This, therefore, should be
avoided.
  (c.) A third test may be  deduced from the ductus  arteriosus.
The value of this  test has already been discussed and although
not to be infallibly relied on, as corroborative proof it should
not be disregarded.  If the ductus arteriosus has lost  its  cylin-
drical shape  and become  conical, and if  it  be diminished in its
size, it will be additional  proof to show that the air in the lungs
is the result of respiration. If, on the other hand, it be cylindrical,
and retains its size, it will be in favour of the supposition that the
air in the  lungs is  the result of artificial inflation.
  (d.) A fourth  test has been  suggested by Mr.  Marc.  He con-
siders that art can never completely inflate  the lungs; and from
the  greater difficulty which attends the admission of  air into the
left  lung, he is induced to believe that  in cases of artificial infla-
tion the inferior extremity of that lung will  float but imperfectly,
or not at all.
  From what has been already stated, there is every reason to
believe, that  ordinary artificial inflation  can never distend the
entire lungs.   In cases, therefore, where the lungs are fully per-
vaded by  air, and  every portion of them floats in water, this test
would be conclusive.  In cases  on the other hand,  where only 
INFANTICIDE.
393
a portion of the lungs had been penetrated by air, this test could
be of no avail.   Now such cases occur  continually.   In one of
the cases reported by Mr. Jennings, the child breathed imper-
fectly for  half an hour and  yet the right lung only floated, the
left sinking in water,  with the exception of a small part about its
root.*   Indeed it is not positively settled, whether the lungs in
any case  become immediately filled with air as soon as respira-
tion  commences.   From  the  experiments of Mr. Portal long
since made, it would at any  rate  appear that the right lung
receives air sooner than the left, and he accounts for this inte-
resting phenomenon,  by showing that there is a difference in the
size  and  direction of  the  bronchi leading to the two lungs.
Upon examination, he found the right one about  one-fourth  part
thicker, and one-fifth shorter, than the left; besides, he found the
passage to the right to be more direct than that to the left.!
   From these facts, therefore, it is evident, that the imperfect dis-
tention of the lungs by artificial inflation  could be no criterion of
distinction in a large  number of cases.
   Of all the preceding modes of distinguishing between respiration
and artificial inflation, the two first are the most to be relied  on.
   From the preceding examination of objections to  the hydro-
static test, I think that we may safely come to the following con-
clusions :
   1. That when the  lungs float in water, it must be from one of
four causes: natural respiration—putrefaction—emphysema—
the artificial introduction of air.
   2. As the lungs may float from other  causes besides  respira-
tion, their mere floating is no proof that the child has respired.
   3. As, however, it is possible to discriminate between the float-
ing of natural respiration, and of that which is the result of other
causes, it follows,
   4. That, with  due  precautions, the floating of the lungs  may
be depended upon as a decided proof that the child has respired.

  Objections to the Hydrostatic  test, on the ground,  that the lungs
        may sink in water, and yet the child have respired.
   Obj. 1.  It may be objected that although the child has breathed,
yet the lungs, in consequence of disease,  may have their  specific
gravity so increased  as to make them sink  in water.
  * Transactions of the Provincial Medical and Surgical Association, vol. 2, p. 437.
  t Duncan's Medical Commentaries, vol. 1, p. 245. American edition. 
394
INFANTICIDE.
   This objection has been deduced chiefly from analogy.  It is a
fact well established, that in consequence of various inflammatory
and congestive diseases, the lungs of adults may become so mor-
bidly changed as to sink in water, and hence it has been inferred
that the same might occur in the new-born child.  To render this
objection valid, it must be taken for granted that such  diseases
had already commenced in the foetus antecedently to birth. Now,
although the foetus may be thus affected,  yet the cases in which
this occurs must be exceedingly rare, and for the obvious reason
that it is not exposed to the influence of the causes which ordi-
narily produce these diseases.   Haller, notwithstanding his great
experience and extensive  learning,  relates no instance of it,  and
expressly asserts, that they are very rarely found in the foetal state.
" In adulto homine aliquando, in fetu rarissime,  ut pulmo calculis,
schirris, aliave materie, morbose gravis in  aqua subsideat,  etsi-
quam respiraverit."*  Brendel in speaking on this subject, relates
only a single case of an abortive fcetus which had schirrous lungs,
and considers it a singular occurrence.!  Billard, notwithstand-
ing his extensive  observations on this subject,  relates only three
cases of new-born infants, in whom there was  reason to suppose
that  inflammation of the lungs commenced previous to birth.
   I shall only add, in confirmation on this point, the opinion of Dr.
Duncan, Jr. the accomplished  editor of the Edinburgh  Medical
and Surgical Journal.  " Unquestionably, a piece of inflamed lung
will sink in water  like a piece of liver, but we doubt that such in-
flammation was ever observed in the lungs of a new-born infant,
concerning which a question of its having been  still-born could
arise; and we  deny the fact,  that any portion of lungs which
have breathed, will  ever  be  rendered specifically  heavier  than
water, by  the mere settling of the blood in the lower portions af-
ter death.";};
   Rare, however, as these cases are, it must  be  admitted  that
the lungs of new-born infants may  occasionally be so congested
or diseased, that they will sink in water, notwithstanding respira-
tion may have taken place.  In these cases, the modes of deter-
mining whether respiration has actually taken place or not are
the following :
   In the first place, where the lungs are simply engorged  with

  * Element.  Physiologiae, vol. 3, p. 281.    t Medicina Legalis, p. 10.
  t Edinburgh Medical and Surgical Journal,  vol. 12, p. 79,  80. 
INFANTICIDE.
395
blood,  they may be made to float by depriving them of their su-
perabundance of blood.  This may be accomplished by making
incisions into  the lungs and then subjecting them to pressure, or by
leaving them for a certain time immersed in water.  In either of
these ways they will be made to float.   In fcetal lungs, on  the
contrary,  no  pressure or immersion in water  will ever produce
this effect.
  In the  second  place,  where actual disease  of  the  lungs  has
taken place,  although these organs, when entire,  may sink,  yet
when divided into a number of pieces, some of them will be  found
to float.  Fodere states, as  the result  of numerous  experiments
made  upon diseased lungs,  that although they  sank in water
when entire,  yet when cut into pieces he invariably found some
of the fragments to float.*
   Besides the foregoing, there is another circumstance of impor-
tance to aid in obviating any difficulty in this case.  If the lungs
are so diseased as to render  them specifically heavier than water,
the cause of this will be at once evident on a suitable examina-
tion of these organs.
   Obj. 2.  It has been objected that a child may  have actually
breathed,  but yet so imperfectly, that the lungs  shall not have re-
ceived air sufficient to make them float.
   In support of this objection, facts of a very pointed nature have
been adduced.   Heister  relates the case of a very feeble infant,
whose lungs sunk in water, though it lived nine hours after birth-!
And a late writer on Infanticide states, that he had been informed
by a physician to the Foundling Hospital at Naples, who opened
daily, on  an  average, the bodies of ten or twelve infants, which
had generally died within twenty-four hours after birth, that he
had hardly ever found more than a very small portion of the lungs
dilated  by air:  this portion  was frequently not  larger than a
walnut  in  its  green  shell, and  but rarely larger than a hen's egg,
and it was commonly situated in the right lung.J
   The  same  method  must  be here  adopted, as in  cases where
the lungs  are diseased;  they must be cut into several  parts,  and
experiments instituted upon  each.   However imperfect the respi-
ration  has been, some portion of the lungs will contain air,  and

  * Fodere, vol. 4, p. 487.       t Morgagni's Works, vol. 1, epist. 19, p. 536.
  X A Dissertation on Infanticide, in its relations to Physiology and Jurisprudence,
by Dr. Hutchinson, M. D. 1820. 
396
INFANTICIDE.
this will float.  In cases of this kind, additional evidence of re-
spiration may frequently be obtained by the application  of the
static  test, and  by examining the state of the ductus arteriosus
and of the umbilical cord.
   From the foregoing it may, therefore, be concluded,
   1. That when the  lungs sink in water it must be from one or
other of the following causes: the total want of respiration—
feeble  and imperfect respiration—some disease of the lungs, ren-
dering them specifically heavier than the water.
   2. As the lungs may sink from other causes than the absence
of respiration, their mere  sinking is no decisive proof that  the
child has not respired.
   3. As, however, the sinking from the want of  respiration may
be distinguished from  that which is the result of other causes,
it follows,
   4. That  with due  precautions, the sinking of the lungs is a
safe test that the child has not respired.
   From the preceding discussion,  although it  seems  that the
general conclusion is  decidedly in  favour  of the accuracy of
the  hydrostatic test, yet  nothing can be plainer than the ne-
cessity of an extensive acquaintance with the subject, to enable
the professional witness to make a just application of it.  From
what has already  been stated, it must be evident that the hydro-
static test does not consist merely in putting the lungs  in water
to  ascertain whether  they  are specifically lighter or heavier
than that fluid.  The test thus applied would lead to innumerable
errors.  On this account,  therefore, it is necessary to present a
summary of the mode in which it is to be used.

             Mode of applying, the Hydrostatic test.
   (a.)  Having opened the  chest and noticed the position, colour,
volume, &c. of  the lungs, they are to be taken out, in the man-
ner to be noticed hereafter, when I come to speak of the mode of
conducting dissections.  The lungs are then to be specially exa-
mined  to see if there be any appearance of disease or of  putre-
faction, or of any  thing unnatural about them, and whether they
crepitate on pressure.
   (b.)  A convenient vessel containing water, is  now to be pro-
vided,  and particular attention should be paid to the temperature
of the water in which the lungs are to be immersed.  The reason
of this  will be  perfectly obvious,  when it is recollected  that the 
INFANTICIDE.
397
 specific gravity of water varies with its  temperature;  thus, for
 instance, water at 100°  is lighter than water at 60°,  and still
 lighter than at 40°.   Besides, if the water be too hot, it will have
 the effect of expanding the lungs,  and thus favour their floating,
 especially when there  already  exists a tendency to putrefaction.
 If, on the contrary, its temperature be too low, the air cells may
 be contracted, and some  of the air be thus expelled.  The tem-
 perature of the water should therefore be regulated by that of the
 surrounding air.  Another precaution relative to the water is,
 that it should not be impregnated  with salt; for, in consequence
 of the greater specific gravity of saline water, a body might float
 in it which would sink  in fresh water.
   (c.) The lungs, together with the  heart, should then be cau-
 tiously placed in water, and it should be observed whether they
 float or sink:  if they  float,  whether above the surface of the
 water, or just under it; if they sink, whether they do so rapidly
 or gradually.
   (d.) The lungs  should then be taken out of the  water, and af-
 ter  tying   the  pulmonary vessels, they  should  be  separated
 from the heart and accurately weighed, after this  they should be
 replaced in the  water  to  see  whether they sink or float, and in
 what way.  If only one lung floats, observe whether it be the right
 or the left.   The lungs  should now be subjected to suitable pres
 sure, to see whether after this they will sink or float.
   (e.)  Each lung should   now  be  cut into a  number of smal
 pieces, and in doing so it  should be observed whether there be
 any crepitation, whether  they are gorged  with blood,  and whe-
 ther there be any traces of disease.  Each section is then to be
 put into the water..   If any or  all of them float, they are to be
 taken out and subjected to proper pressure, and then replaced in
 the water, to determine  whether after this they sink or float.
   Having gone through these different processes, the conclusions
 to be drawn from them  are evident.  If the lungs, with the heart
 attached and separated  from it,  float in water; if, when  cut into
pieces, each fragment floats ; and if this floating be proved not to
be owing to putrefaction or artificial  inflation, then the proof is
strong, that the  infant enjoyed perfect respiration.  If only the
right lung or its pieces float, the respiration has been less  perfect.
If some pieces of either lung only float, while the greater num-
ber sink, it proves respiration to have been still less complete. On
  vol.  i.                    34 
398                      INFANTICIDE.
the other hand, if the entire lungs and every section of them sink
in water, the inference is, that the child never respired.
 III. Proofs of the child having respired, deduced, from  the ab-
                        dominal organs.
   The only organs from which any inferences here can be drawn
are the liver, the intestines, and the bladder.
   1. The Liver.  It is  a  fact well established,  that  in  the ma-
ture foetus the liver is much larger than it is after respiration has
taken place.*   From the changes which occur in the circulating
system immediately upon the commencement of respiration, the
cause of this must be obvious.   In the foetal state, the lungs have
but a small quantity of blood circulating through them.  As soon,
however, as respiration is established, the pulmonary organs be-
come charged with blood. Hence, as already stated, their weight
is so greatly  increased.   Now there  is every reason  to believe,
that this new determination of blood to  the lungs is followed by
a loss of blood on the part of the liver.  In addition  to this, the
supply of blood to  the  liver from the umbilical vein is now cut
off.  From these two causes the  quantity of blood going to the
liver must  be greatly diminished, and hence it is, that this organ
gradually  diminishes in size after birth.  From  these facts it ap-
pears to me that the relative weight of the liver, may serve as a
useful test  to establish the fact of respiration having taken place,
and more  especially to correct, any fallacies that might occur
from the test of Ploucquet.  To exemplify—if by the test of  Plouc-
quet it should be found that the lungs had acquired the weight  of
a child which had respired, while the liver had lost  none of its
foetal weight, then there might  be ground for suspecting that the
increase of weight in the lungs was owing to" some  other cause
than respiration.  If, on the other hand,  the liver had diminished
in weight,  while the lungs had increased, this concurrence of the
two tests  would certainly add  greatly to the force and conclu-
siveness of the testimony.
   By no writer on forensic medicine, that has  fallen under my
examination, has this test been suggested, and  I throw it out at

   * According to Meckel, the absolute weight and size of the liver diminishes until
the end of the first year.  In five new-born children he found the liver one quarter
heavier than in five other children, from eight to ten months.  Doane's Meckel, vol.
30, p. 39. 
INFANTICIDE.
399
present,  in the hope that it may attract the attention of inquirers
on this interesting subject.*
   2.  The  intestines. In the  foetal  state these organs  contain  a
dark  pitchy matter, called the  meconium, which is  evacuated
shortly after birth, when the child  is born alive.   In relation to
its precise nature, some difference of opinion has existed.   The
opinion,  however, which seems most plausible, considers it to be
the bile collected in the foetal  liver,  and which is  propelled from
that organ  into  the  intestinal canal, by the compression  which
the liver necessarily sustains as soon as respiration commences.!

   * This was originally suggested fifteen years ago.  Since then, I find this subject
has attracted the attention of foreign writers.  Professor Bernt, of Vienna, has more
especially noticed it; and in his Centuria Experimentorum, has in all cases reported
the weight of the liver.  It does  not appear from these reports, however, that any
general and satisfactory proportion between  the weight of the body and that of the
liver, before and after birth, can be established.  Orfila has collated some  of these
cases, and  gives the following results :
Dead before or after birth.
Still-born,.......
  do.     .-..--
  do.    .......
  do.     ......
  do.    ......
  do.     -.....
Having scarcely respired, -
  do.    -.....
  do.      -....
  do......-
  do.      .....-
  do.......
Having respired more,   -  -
  do.    ......
Respiration perfectly established,
  do.    ------
  do.......
  do.    ...-.-
  do......-
  do.    .-.-..
  do.      ....--
  do.     ------
Weight of the
   body.
lb. oz.  dr.
 6  2   0
 5  0   0
 5  6   0
 5 13   4
6  2
4 12
5 14
5 15
5 13
4  6
5  7
5  4
5  8
4 12
5  0
4 15
5 13
5  4
6  8
7 11
5 10
6  0  0
2J
0
4
4
4
0
0
0
4
4
4
0
4
0
6
0
4
Weight of the
   liver.
oz.  dr. gr.
 4   0  70
     2  46
     1
     3
15
48
0  60
5  70
0  11
6  24
18
52
18
 2
34
52
60
134
0  11
3  13
33
71
61
35
 Proportion be-
tween the weight
of the liver and
    body.
24
18
19
21
154
17
19
20
164
29
19
16^
194
184
22
10
194
21
234
164
13
154
  These results, according to Orfila, show conclusively, 1. That  the weight of the
liver was much more  considerable in  many infants in whom respiration had been
completely established, than in those who were still-born.  2. That the proportion
between the weight of the body and that of the liver, was often much less in those
cases where respiration had been completely established, than in those who  had not
respired ; which ought to be just the reverse, according to this test. (Lecons de Mede-
cine Legale, par M. Orfila. Vol. 1, p. 393-4. Second edition.)
  t Bryce on the Fcetal Liver. Edinburgh Medical and Surgical Journal. Blumen-
bach's Physiology, p. 359, American edition. 
400
INFANTICIDE.
The same compression afterwards expels  it from  the intestinal
canal.   The  connexion, therefore, between  respiration  and the
discharge of the  meconium,  is  perfectly  plain.   The period
at which the meconium is discharged  is by no means uniform.
In some cases  it  takes  place immediately after  birth, while
in others it  is  delayed  for several hours.  If,  therefore, the
meconium be found evacuated, it  offers a presumption in favour
of the child having been born alive, while at the same time it is
evident that a child may be born alive,  and  yet die before it is
discharged.
   3. The bladder. Anterior to birth it has  been ascertained that
the bladder contains a considerable quantity of urine.  At varia-
ble periods after birth this is discharged. If, therefore, on exami-
nation, it should be found empty, the  presumption is in favour of
the child having been born alive, and of having lived sufficiently
long to pass its urine by its own efforts.  It is obvious, however,
that this is  liable to many exceptions, and should not, therefore,
be infallibly relied on.   It is  not impossible that  under  certain
circumstances, a child  may void  its  urine  before  birth, and  on
the other hand, a child born alive, may die before .it has per-
formed that function.
General inferences deduced from the preceding examination of the
   circulation—the respiratory organs—and the abdominal organs.
   I. If the   ductus arteriosus, the foramen ovale, the ductus
venosus, and the umbilical vessels be  obliterated, and if the umbi-
lical cord  be  separated, the conclusion is certain, without any
examination  of  the lungs, not merely that  the child respired, but
that it has done so for a considerable time.
   II. Even should the ductus arteriosus, the foramen ovale, and
the ductus venosus be still open  and the cord  still attached to
the umbilicus, the conclusion may be drawn that  the child has
respired perfectly,  if the thorax  be well  arched—if the volume
of the lungs be large,  filling  up the cavity of the chest—if they
cover  the diaphragm  and nearly the whole of the pericardium
—if they are soft  and spongy—if their colour be bright red or
scarlet—if on pressure, or being cut  into, they crepitate—if they
weigh one thousand grains or upwards—if their weight compared
with the weight of the body be  as  one to forty—if they float
in water with the heart attached to  them, and when  cut into 
INFANTICIDE.
401
 pieces each fragment floats, and if this floating be proved not to
 be owing to putrefaction or artificial inflation—and finally, if the
 meconium be evacuated—if the ductus arteriosus be conical in
 its shape, or greatly diminished in size.
   III. It may be inferred that  the child has  only respired  imper-
fectly, if the  lungs only partially cover the  diaphragm  and the
 sides of the pericardium—if they present here and there streaks
 of scarlet intermixed with brownish red, and  this especially in
 the right lung—if the scarlet portions crepitate and the brownish
 red are dense—if portions only of the lungs float in water, and if
 this be not owing to putrefaction or artificial  inflation, and finally,
 if the ductus arteriosus  has assumed  the conical shape.  It  is
 scarcely necessary  to  suggest that where  the signs give  evi-
 dence only of imperfect respiration, the greatest caution  should
 be exercised in making up an opinion.  Where the signs  are so
 indistinct as to leave the question doubtful,  the medical witness
 should not hesitate to say so.
   IV. If in addition to the signs of respiration, whether perfect
 or imperfect, as  just mentioned (in II. and III.)  the umbilical
 cord  be found  desiccated, the  inference may be drawn that re-
 spiration has been continued at  least for several  hours, and gene-
 rally from one to two days.
   V. It  may be  inferred  that  the child has not respired, if the
 thorax be flat—if the  lungs occupy only the superior and pos-
 terior parts of the chest—if they  are  small in volume, leaving
 uncovered the diaphragm and  the sides of  the  pericardium—if
 the diaphragm be much arched—if the texture of the lungs be
 dense—if  their  colour  be dark brown, resembling that  of the
 liver  of the adult—if on pressure, or being cut into, they  do not
 crepitate—if their weight be under six hundred grains—if their
 weight compared with that of the body be not more than  one to
 fifty-seven—if the entire lungs, as well  as every fragment, when
 cut into pieces, sink  rapidly in  water, and  if this sinking be not
 owing to engorgement or disease—and finally, if the ductus arte-
 riosus be cylindrical and  nearly of  the  size  of the trunk of the
 pulmonary artery, and if the cord be round and firm.
  I have now gone through the consideration of -the  various
proofs of a child  having respired, and  it is from these  that we
                            34* 
402
INFANTICIDE.
infer that a child was born alive.  To all this, however, a capital
objection remains to be considered.   A child, it is urged, may re-
spire during the birth and yet may die before it is fully born.  In
this case the  proofs of respiration may be  present, and  yet the
child may not have been born alive.  This is undoubtedly a most
formidable objection, as its direct tendency is  to  render  all the
evidences of  respiration invalid as proofs of live birth.  It is an
objection, too, which may be started in  every trial for infanticide.
It requires,  therefore, to  be fully investigated.*   The objection
may present itself in two different shapes, each of which I shall
examine.
   1. It  may be  objected,  that " a  child  will  very  commonly
breathe  as soon  as its mouth is  born, or protruded from its mo-
ther;  and in  that case, may lose  its  life before it is born, espe-
cially when there  happens to be a considerable interval of time
between what we may call the birth of the child's head, and the
protrusion of the body."!
   This objection did not originate with Dr. Hunter.   It is noticed
by Morgagni, and  I find it discussed by the German writers
early in the  last century.   It  must be admitted, however, that
the high authority  of Hunter's name  has given to it  an  im-
portance which it otherwise would never  have possessed, and it
is on this account more especially deserving of examination.  It
involves two points, each of which is worthy of distinct elucida-
tion.   Is it possible that a child can breathe, when nothing more
than  its head is delivered 1 and if so, is it probable, that after
having  respired in this  situation, it will die before the delivery
of the rest of the body 1
   Both  these must  be answered affirmatively to render the ob-
jection of any force.  The  mere fact  of a child's breathing in
this situation amounts to  nothing, unless it  be followed by its
death.   It must both breathe and die before it  is born, to make
good the objection.
   Although it be denied by some very  respectable authors, that a

   * In previous editions of this work I have  considered  this objection under the
head of the hydrostatic test. As it is, however, as much an objection against almost
all the signs of respiration as it is against the hydrostatic test, and as indeed it goes
to nullify  respiration itself, as a proof of live  birth, it is more properly to be con-
sidered as a distinct question.
   t Dr. Wm. Hunter, in the Medical Obs. and Inq. of London, vol. 6, p. 287. 
INFANTICIDE.
403
child can perform the act of respiration when merely its head is
born, yet the fact rests upon evidence too substantial to be con-
tradicted.  Independently of the  authority of  Dr. Hunter,  we
have several other writers who furnish us with decisive testimony
on this, subject   Marc alludes to a case of this kind reported by
M.  Siebold.*   Capuron, a  respectable French writer  on legal
medicine,! relates a similar  instance which occurred in his own
practice.   Osiander informs  us, that he  has witnessed  twelve
cases in which the child breathed and  cried as soon as the head
was born.J  Another case of more recent occurrence is related
by  Dr. Ward,  an American physician.  Here,  after the head
was delivered, the pains ceased, and the child began to cry.   In
a short time, however, the pains were renewed, and the child
delivered alive and without any  difficulty.^   By Dr. Scott, of
Cupar-Fife, another instance of the same kind is recorded.||
  It must  therefore be conceded, that  a child may breathe  and
cry as soon  as its head is delivered, although  it  is equally true,
that it is by no means a common occurrence.  Admitting, then,
that a child  may actually breathe in the situation we have sup-
posed, is it probable that it  will lose its life before the  complete
expulsion of the body 1   That  it is not, appears  to me of very
easy demonstration; and if so, the objection loses at once almost
all  its force.   Even among the writers who are  most strenuous
in  support of this objection, I  have not  met with a single  one
who pretends to have witnessed an instance in  which a child has
actually died in  this situation.  Low, although he thinks  it  pos-
sible, relates no case of it.   Dr. Hunter, whose professed  object
was to enforce all the  probable  exceptions  to the hydrostatic-
test, gives us nothing more than his opinion, unsupported by
facts.   Mahon  barely admits  the  possibility  of  it.   Capuron,
who  is  sufficiently sceptical on this  subject, contents  himself
with recording the case already alluded to, in which the child was
safely delivered.  Even Osiander, with all his extensive experi-
ence, does not present us with a single one of this kind.  In point
of  fact, therefore, there is  no  instance recorded, so far as my
knowledge extends, in which a child has  actually expired  under

  * Manuel D'Autopsic Cadaverique, &c. p. 140.        t Capuron, p. 405.
  X  New York Medical and Physical Journal, vol. 1, p. 372.
  §  The American Journal of Medical Sciences, vol. 11, p. 546.
  ||  Edinburgh Medical and Surgical Journal, vol. 26, p. 68. 
404
INFANTICIDE.
 these  circumstances.*   This,  however,  does  not  prove  that  it

 might not occur;  and it is therefore necessary to  inquire into all

 the  possible  causes which  might  produce its death.   If a child

 expires after the delivery of the head, and before the  expulsion

 of the  rest of  the body, its death will  probably  be owingto  one

 or other of the following causes:  1. Natural  debility of the child.

 2.  Pressure on the umbilical cord, interrupting the fcetal circula-

 tion.  3.  Cessation  of  labour  pains.  4.  Unusual  shortness of

  * Since  penning the above, I have received the following note from Dr. Hosack,
 communicating the particulars of a highly interesting case, in which a child actually
 died while in this situation.

                                                  New York, June 28,1823.
  Dear Sir—You have been correctly  informed of the  fact you  refer  to, of the
 death of an infant  taking place between the birth of the head and the extrication of
 the shoulders.  Such a  case occurred in my  practice in this city, in the year 1811.
  Mrs. R----, a lady of a small, delicate frame of body, and the mother of several
 children, engaged me to attend her in her lying-in.  The commencement of her la-
 bour proceeded with the usual symptoms that she  had experienced upon former oc-
 casions, excepting that she suffered  more severely  from her pains, doubtless attribu-
 table  to the child being larger than those she had borne in her preceding labours.
  Being absent from home when sent for, another physician was called upon.  We
 both arrived nearly at the same time.   The child's head was born.  It had been in
 that situation, without making any advance, for some minutes.  The child had cried,
 and was yet living when I arrived.  The  pains were very active, but one  of the
 shoulders was so firmly wedged above the pubes, that with all our exertions we could
 not release the child in time to preserve it alive. It was still-born; and I need scarcely
 add, that upon examining the child, besides its extraordinary size, an unusual breadth
 of shoulders was found to exist, to which circumstance doubtless detention in the
 passage through the pelvis was to be ascribed.
  This fact, the only one of this nature which I  have met with, either in practice or
 in the records of midwifery, presents a new  case for the consideration of writers on
 legal  medicine. As such I communicate it.
                                          I am, very truly, yours,
  John B. Beck, M. D.                                         D. Hosack.

  In addition to the particulars stated by Dr. Hosack, he informed me, that judging
 from the size of the shoulders, he believes it would have beeen impossible for the child
 to have been extricated  from its situation, without  the aid of manual assistance.   In
 a case of this  kind, therefore, no difficulty could  ever arise in coming to a correct
 decision.
  Still more  recently two other cases of a similar character,  are recorded by Dr.
 Campbell, which I  shall give in his own words.  " In the one, it was  the woman's
 first child, and was attended by Mr John M'Candie, one of my pupils, now a practi-
 tioner in  Tain, whom I accompanied, from the labour having been tedious.  When
 the head  was born, we  both distinctly heard the infant cry.  About five or seven
 minutes might have elapsed before the shoulders were disengaged ; and although the
 infant appeared stout,  yet it was still-born, and could  not be resuscitated.  The
 second case happened several years afterwards.   This woman was the mother of
 several children, and was attended by Dr. John Clarke, now a medical officer in the
 army.  The infant was large, had  several  loops of  the funis  entwined around its
 neck; and I was present before the head  was born, when it began to  breathe.   In
 consequence of the size of the shoulders, at least seven minutes elapsed  before they
 could  be disengaged, and the child was lost." (Campbell's Midwifery, p. 150.)
  It is to be regretted that in all these cases, experiments were not instituted, with
the view of ascertaining the state of the lungs, especially as it regards their weight,
 specific gravity, &c. 
INFANTICIDE.
405
the umbilical cord.   5. A preternatural enlargement of the body
of the child.  6.  A tumour upon some  part of the body of the
child, mechanically interrupting parturition.  I shall very briefly
examine each of  these in their order.
  That natural debility on the part of the child  cannot occasion
it, seems to  be  proved  by the very fact of respiration  having
taken place;  for the exercise of that function so  prematurely,
necessarily implies a degree of vigour inconsistent with the sup-
position of such original feebleness.
  That pressure on the cord should produce the death of the child,
appears equally improbable.   It is perfectly plain, that when this
cause proves detrimental,  it must be anterior to respiration, and
when as yet the  life of the child depends wholly upon the fcetal
circulation.   In the  present instance, however, the child is sup-
posed to have already breathed, and therefore any accidental in-
terruption in the fcetal  circulation  cannot, in all probability, be
attended with any injurious consequences.
   Cessation of labour pains.   If, after the delivery of the head,
there be a sudden cessation of the  pains, there is no doubt that
the child may be retained  in  this awkward situation  for  some
time, and that it may even lose its life before it is completely ex-
pelled.  Still it must be obvious, that the chance of such an issue
is very much diminished in all those cases where respiration has
actually commenced, inasmuch as the performance of this  func-
tion proves  not  merely  that the child is vigorous, but also that
its thorax and body are not  so closely compressed by the parts
of the mother as  to endanger  its life.  Hence a child, under these
circumstances, may be  detained a  considerable length of time,
without jeopardizing its existence.
   Unusual shortness of the cord.  Cases of this kind occasionally
occur.  But here too the very fact of respiration having com-
menced, gives the child the best possible chance of being eventu-
ally born alive.
   Preternatural  enlargement of the  body of the child, more espe-
cially of the  shoulders,  may  prevent the delivery of the child,
even after the birth  of the  head.   That a child might die from
this cause, is not disputed; but the very fact of its shoulders and
chest being so large as to prevent delivery, shows how  difficult
it would be  for  it  to respire.   If, however, it  did actually re-
spire, then the hazard of a long detention in this situation, would,
by this very  circumstance, be materially diminished.  In  addi- 
406
INFANTICIDE.
tion to all this, the cause would here be  so very obvious on a
bare inspection of the child, that no serious error could possibly
arise from this source.
  A tumour on the body of the child. This, of course, must be a
very rare occurrence, and can never lead to any false decisions.
I mention it merely because a case of this kind is recorded, in
which " the head of the child was protruded, and the expulsion
of the body for a considerable time prevented, in consequence of
a large excrescence on the left breast of the child.   During this
interval, which was about half an hour, the child frequently cried
so loud as to be heard by the  attendants."*  It does  not, how-
ever, appear even in this case, that  the  child  eventually lost its
life; at least nothing is stated to this effect in the account which
is given of it.  So far from supporting the objection  of Dr. Hun-
ter, which we are considering, it proves, in the most pointed and
satisfactory manner, how little  danger  attends  the child in this
situation, when it  enjoys the benefit of respiration.   Besides, it
should be recollected, that in all cases where delivery is prevent-
ed in consequence of the unnatural size of the parts about  the
shoulders, &c, the assistance of a physician, or at least of a
second person, becomes  necessary.   A witness, therefore, will
always be at hand, to remove every ambiguity  which may sur-
round  them.
  From the foregoing discussion, it may, therefore, fairly be con-
cluded, that in reality very little danger attends the child under
the circumstances which we have supposed.  s
  I shall sustain this argument  by the opinions of  one  or two
writers, distinguished  for their extensive experience, as well as
practical sagacity.  In a case of this kind, Burns directs that we
should  " attend to the head,  examining that  the membranes do
not cover the mouth, but that the  child  be enabled to breathe,
should  the  circulation in the cord be. obstructed.   There is no
danger in delay, and rashly pulling away the child is apt to pro-
duce flooding, and other dangerous accidents."   In another place
he  says, " some  children die, owing  to  the head  being born
covered with the  membranes, some time before the  body.  This
is the consequence of inattention;  for  if  the membranes be re-
moved from the face, there is no risk of the child."-f  Denman  also
remarks, that " it was formerly supposed necessary for the prac-
  * Mahon's Essay on Infanticide, translated by Christopher Johnson, of Lancaster.
See note by Mr. Johnson, p. 25.      + Principles of Midwifery, pp. 246, 376. 
INFANTICIDE.
407
titioner to extract the body of the child immediately after the ex-

pulsion of the head, lest it should be destroyed by  confinement in

this untoward position.   But experience has not only proved that

the child is not,  on  that  account, in any particular danger, but

that it is really safer and better, both for the mother and child, to

wait for the return of pains, by which it will soon be expelled;  and

a  more  favourable  exclusion  of  the placenta will also, by this

means, be  obtained."*

   On a review of the whole of this part of our subject, it results,

that a  child may occasionally breathe as soon as its head is de-

livered—that the very fact of its breathing in this  situation, gives

it the best possible chance of being born alive—and finally, if it

should even die, the cause  of its  death will generally be evident

upon  a mere examination of the body of the infant.

   2.  There is  another shape in which this objection may present

 itself, and this is, that a child may respire while yet in the womb,

 and before it is born may die.

   With regard to the occurrence  of respiration in a child while

 yet in the womb and before the rupture  of  the  membranes, the

 thing seems to me physically impossible, and there is no evidence

 which can satisfy me that  it  has  ever taken place-!   This can-

   * Introduction to the Practice of Midwifery, p. 289. See, also, Dewees' Midwifery,
 p. 194. Merriman's Synopsis, p. 205.  Hamilton on female complaints, p. 155.
   ■j" Nevertheless cases of this kind are said to have occurred, and have been gravely
 published to the world.   In the 26th vol. of the Transactions of the Royal Society
 of London, Mr. Derham gives an account of a child who cried  almost daily for five
 weeks before delivery !  Another case is detailed in the 73d No. of the Edinburgh
 Medical and Surgical Journal, by Dr. Zitterland of Strasburgh, in Prussia.  In this
 instance, the child is said to have been rather more civil than in  the case of Mr. Der-
 ham,  and began to cry only forty-eight hours before it was born!  The most respect-
 able writers, however, on Medical Jurisprudence, deny the possibility of the  occur-
 rence and ridicule the instances of it which are upon record.   Mahon, for example,
 asks, whether "the best possible authority is sufficient to establish so extraordinary a
 fact?  Few writers," he adds, "venture to say  with Bohn, that they themselves
 have heard it.   Three-fourths quote hearsay, and adduce witnesses.  The love of the
 marvellous often distorts facts—it invents them, and finds authority and proselytes.
 On the report of a fact attested by credible witnesses, we may give  our assent to
  whatever is not contradictory in itself, but conviction is a much greater degree of as-
  sent, and requires other proof.   Bohn may have been deceived by the parson's wife ;
  he may have heard  some gurgling noise, and may have been led away by a want of
  facts  to prove  his opinion.  This mode of reasoning, and scarcity of facts, has given
  credit to Livy's history of a child, which cried ' Io triumphed in the belly of  its mo-
  ther.  The folly has been carried so far, that we read of children that have laughed
  and cried in the uterus."—Johnson's Translation of Mahon on Infanticide, p. 18,  19.
    Velpeau says, on this subject:  " It is sometimes  so difficult  to avoid all causes of
  error, all subterfuges, not to be deceived by strange and unexpected noises, such, for
  example, as are often produced by air in the intestines, that before we admit as posi-
  tive a phenomenon which it is impossible to reconcile with the laws of physiology,
  the same person  should have ascertained its existence repeatedly; in the mean time, 
408
INFANTICIDE.
 not be looked upon in the light of an objection that requires any

 consideration.  When, however, the membranes  are ruptured—

 the mouth of the uterus dilated, and the head of the child descends

 in  such way  as  that the mouth presents  so  as to offer  a ready

 communication between it and the external atmosphere, then im-

 perfect respiration may take place,  and  in some  cases  has ac-

 tually done  so.   The following cases,  recorded  on respectable

 authority, will illustrate this.  The first is related by Prof. Holmes,

 of  Montreal,  Canada:—"On the 29th of October,  1828, I was

 called  to  a lady in labour of her sixth child.   The fontanelle pre-

 sented, but the pelvis being capacious, and her labours generally

 easy, no attempt  was made to  change  the position.   The head

 continuing  to descend, the  mouth  lay on the pubis, and the ex-

 amining finger could easily be  introduced into it.   The  occiput

 did not yet occupy fully  the  cavity of the  sacrum.  At this time

 I heard sounds like the cries  of a child whose  mouth was  muffled

 by some covering, but not very distinct, and not being at all pre-

 pared for them, I thought when  they ceased, that  they must have

 been produced by flatus in  the intestines of the mother.   In the

 course  of a  short time, however,  the cries were repeated, and

 with the greatest distinctness, so as not to admit of  a doubt that

 they proceeded from the child.   The mother,  much  alarmed, in-

 I may say with Fontenelle, that, since learned and credible men have heard it, I will
 believe it, but I should not believe it if I had heard it  myself." (Elementary Treatise
 on Midwifery, Meigs' edit. p. 226.)
  In connexion with the foregoing, I will only add the following: " A medical prac-
 titioner, unable to superintend  a lingering case in midwifery under the care of his
 apprentice, requested a professional friend to give his occasional advice;  the latter
 happening to call, found the young operator in anxious expectation of a second child,
 one  being born some time before. Circumstances, however, occurred to render the
 operator's opinion somewhat doubtful, but he declared himself quite positive, because
 he had heard the second child cry.  After all, the case ended in the single  birth of a
 child that had been dead some time."  (Johnson's Translation of Mahon on Infanti-
 cide, p. 109.)
  To those who feel a curiosity in investigating this subject, the following refer-
 ences are furnished:
  Johnson's Medico-Chirurgical Review, vol. 3, p. 221; vol. 6, p. 532; vol. 9, p. 524.
 Edinburgh Medical and Surgical Journal, vol. 18, p. 550 ; vol. 30, p. 224; vol. 33,
 p. 215.
  Philadelphia Journal of Medical and Physical Sciences, new series, vol.  4, p. 407.
 American Journal of Medical Sciences, vol. 4, p. 248; vol. 8, p. 248;  vol. 11, p. 546;
 vol.  14, p. 463.
  Quarterly Journal of British and Foreign Medicine  and Surgery, vol.  4, p. 221.
 New York Medical and Physical Journal, vol. 1, p. 372.
  Baltimore Medical and Surgical Journal, edited by Prof. E. Geddings, M. D. vol. 2,
 p. 445.
  Observations on Obstetric Auscultation, &c, by Evory Kennedy, M. D.  p. 319.
  Intra-Uterine  respiration in  its relations to  Physiology and  Medical Jurispru-
dence. By Prof. Gross, in the Western  Medical Gazette for July, 1834. 
INFANTICIDE.
409
quired the cause of these noises, and required to be assured that
they were not indicative of any danger.  The pains being brisk,
the head was soon forced down and expelled.   The child was a
female, and is still (August, 1829) alive and thriving.  This case
appears to me so curious, though  easy of explanation, when the
position of the mouth is considered, that I am induced to draw up
this notice, not  having met with any thing similar on record, and
as it is entirely different from the  incredible  stories we have of
the fcetus  emitting cries before the commencement of labour."*
  Another case, analogous to this,  is still more recently related
by Mr. Tomkins, an English surgeon, which I shall record in his
own  language:—" I was, some time  since, called  to the wife of
a blacksmith at Preston, who was  in labour with her tenth child.
I had attended  her in several former  confinements, and she had
always  had quick deliveries,  as the pelvis was unusually capa-
cious, and her pains were active.   After I had been a few minutes
in the room, I proposed and made an examination, and found the
face presenting, and  making its descent into the pelvis, the chin
resting  on the os pubis.   A few  strong pains succeeded, and I
again examined to ascertain if the face had made any advance.
I found  it  had done so, and that it was pressing on the perineum;
but in making this examination, my finger passed freely into the
mouth of the child, and it immediately gave a convulsive sob, and
cried aloud to the great terror of the mother and of the bystanders,
when they found  that it was  still  in the womb.  I had great dif-
ficulty in  calming the agitation produced by this event upon the
woman, whose  pains were suspended for  nearly an hour, but I
eventually succeeded by explaining that the face was presenting,
and that from the circumstance of my having passed my finger
into the mouth, the air had  gained admission and enabled the
child  to breathe;  this, with  a little spirit and water, and a dose
of the ergot of rye, succeeded  in bringing on the uterine ac-
tion,  and  after two  pains,  the child was expelled  alive  and
well,  at least one hour  after it  had  respired and cried in the
womb."!
  Now, in reply to the difficulties created by these cases, the fol-
lowing considerations may be urged:
  In the first place, such  cases must be exceedingly rare.  Face

  * Edinburgh Medical and Surgical Journal, vol. 33, p. 215.
  t Lancet for July, 1834.
    vol. i.                    35 
410
INFANTICIDE.
presentations do not occur frequently.  Out of  16,980 children

born at the Hospital of Maternity at Paris, only 59, or 1 in 300,

were of this nature.*  Even when such presentations do  happen,

the occurrence of respiration anterior to delivery can  take place

only under very peculiar  circumstances.   In  the  two cases de-

tailed above, it will be observed, that respiration occurred only in

consequence of the introduction  of the finger of the  accoucheur into

the child's mouth.

   In the  second  place, even supposing respiration to take place,

it must be very imperfect, unless  the  child continued to  breathe

after it was  delivered,  in which  case,  the objection would, of

course, fall to the ground.
   In the  last place, if  full and complete respiration  took place

under these circumstances,  (a  case hardly supposable, however,)

this fact would indicate,  most  clearly, that  the  passages of the

mother were so capacious as to offer no impediment to a  prompt

and safe delivery;  and therefore no question of a criminal nature

could  ever be raised-!

   From all that has  been said, therefore, in relation to the fore-

going objection, in whatever shape it may present itself, I think

we may fairly make the following inferences.


  * Edinburgh Medical and Surgical Journal, vol. 19, p. 469.
  t I cannot take leave of this point, without presenting the following view taken of
it by one of the highest authorities on every question relating to Juridical Medicine
—I mean the Edin burg Medical and Surgical Journal.
  " Uterine respiration can never come in our way on such trials, (for infanticide,)
for it takes place only under circumstances which render manual aid necessary to
complete the delivery.   Vaginal respiration is also so  far similarly circumstanced.
Respiration in the passages, as hitherto observed, takes place only, 1, in delivery by
the feet, when the whole body but the head is protruded ; and 2, in natural delivery,
either when the head is expelled and the body remains in the passages; or 3, when,
before the expulsion of the head, and after the rupture of the membranes, the hand is
introduced to accelerate tedious labour.  The first case cannot occur in medico-legal
practice, so far as regards infanticide and concealment of pregnancy.  The second
can hardly be a cause of fallacy, as the circumstance of the child being able  to breathe,
shows that the constriction of the chest cannot be great; that the labour must there-
fore be speedily completed, and  that the child's life is secured against the ordinary
accidents which occur after this  period of the labour.  The third case renders it per-
haps possible, that in tedious labour, air may reach the child in the passages, and be
inhaled by other means besides the introduction of the hand; at the same  time, such
cases are by no means  likely to occur in legal  medicine, as the labour must be
tedious, and consequently is not easily concealed.  It appears, therefore, that the
possibility of respiration before the close of labour, forms an objection to the employ-
ment of the hydrostatic test, only so far as it may occur in tedious natural labour.
Now, independently of respiration being exceedingly rare in such circumstances, the
objection thus constituted is important only by preventing the inspector from relying on
the test in particular and known circumstances, not by being apt to lead him into
error: because the fact of the labour having been tedious, may always be ascertain-
ed by moral evidence.   This objection, therefore, is  not  of much consequence.''
(Edinburgh Medical and Surgical Journal, vol. 26, p. 372.) 
INFANTICIDE.
411
  1. That respiration anterior to full birth is a rare occurrence.
  2. That  when it does take place, it must  be under  circum-
stances which give the child the best possible  chance of being
born alive.
  3. That when a child dies in this situation, the respiration must
necessarily be imperfect, and therefore it can create no difficulty
in cases, where  the evidences of perfect respiration are present.
  4. That when a child dies in this situation, the respiration must,
as a matter of course, be of short duration, and therefore it  can
present no  difficulty in cases where, from the appearance of the
umbilical cord, it is evident that respiration has been continued
for some time.
  Thus narrowed down, the objection can only  present itself,
therefore, legitimately in cases  where the respiration has been
imperfect and of short duration.   To the  naked  difficulty then
presented in all  such cases I would make the following reply.
Let it  be recollected that the objection takes it for granted that
respiration has already taken place.  Now, if a child which had
breathed, should die before it is fully born, no charge of infanti-
cide could ever  be sustained unless it were proved at the same
time, that it died by violent means.   No  criminal charge could
be based on the  mere fact of respiration or even full birth having
taken place.  On the other hand, if  it be proved that a child
which had breathed, has come to  its end  by violent means, the
mere question as to whether this violence was  committed before
or after  it  was  fully born, ought to  make no difference  in the
character of the crime or the nature of the punishment.   If, for
example, a  child's head was merely born, and it  had  breathed,
and while in this state, a knife was thrust into the  fontanelle and
its  life  thus taken away before it was fully born, it appears  to
me that neither  common sense nor justice could set up, as at  all
exculpatory, the distinction between  respiration and live birth.
The fact of respiration proves  that the child  was  alive at the
time, while the  injury inflicted on the brain proves that it was
murdered.  The very conditions of the objection, therefore, ap-
pear to me to do away with its force, in its application to cases
of infanticide, and this of course is the only connexion  in which
in the present case it is to be viewed.
   I have dwelt  the more fully upon this objection, because it pre-
sents a real  difficulty in all trials for infanticide, and because
some writers have, in my opinion, given it an undue importance 
412                      INFANTICIDE.
by the  strenuous manner in which they have insisted upon  the
distinction between respiration and live birth.  Pushed to the  full
extent to which it is urged, it would  in  every case, defeat  the
ends of justice and nullify every investigation in cases of alleged
infanticide.
   Quest. III. If born alive, how long had the child lived ?
   This  inquiry is important, inasmuch,  as it enables us to ascer-
tain how it compares with the signs of delivery in the reputed
mother. For example, if it should be ascertained that the child had
lived short of a day, and yet the appearances on the female indi-
cated that her  delivery had taken place several days previously,
it would show  at once that she could not be the  mother.   In  the
determination of this question,  no information of any importance
can be  obtained from the  respiratory organs.  These merely
prove that the child  breathed  and lived, but how long it did  so,
they do not indicate.   To establish this point we have to depend
mainly  upon the proofs derived from,  the  circulation, and this
shows  the importance of the preceding detailed investigation of
these proofs.  The principal points to be examined are the fol-
lowing :
   (a.) The state  of the foramen ovale.
   (b.) The state  of the ductus  arteriosus.
   (c.) The state  of the ductus  venosus.
   (d.) The state  of the umbilical vessels.
   (e.) The state  of the umbilical cord.
   Of all these,  the most satisfactory information will be obtained
from the state of the  umbilical cord.
   Quest. IV. By what means did the child come to its death ?
   Like  the  causes of abortion these may be divided into two
classes, viz :
   I. Criminal.
   II. Accidental.
   As in every case of alleged infanticide, a question  may  be
raised as to whether the death was  owing to the one or the other
of these sets of causes, it becomes necessary to examine them
separately and in detail.

   I. Criminal  modes  resorted to for the destruction of a  new-
                          born child.
   1. The intentional neglect of tying the umbilical cord. The ma-
jority of medical practitioners,  from the  time  of  Hippocrates 
INFANTICIDE.
413
 down to the present day, concur  in  the necessity of tying the
 cord, to obviate fatal haemorrhage which might ensue from the
 omission of it.  Such was  the unanimity of opinion on this sub-
 ject, that previous to the 17th century a doubt was not entertain-
 ed with regard to it.  According to Fodere,* J. Fantoni, profes-
 sor of anatomy at Turin, was the first who  suggested that this
 precaution was useless, and that  the neglect of it was unattended
 with any danger to the life of the child.  After his time the same
 opinion was  adopted and defended by Michael Alberti, in 1731,
 and J. H. Schultzius,-\ in 1733, both professors in the university of
 Halle.  In 1751, Kaltsmidt maintained the same doctrine at Jena.J
 The arguments offered by them  in defence of  their opinion are
 the following; 1. They maintain that the umbilical vessels, whe-
 ther cut or torn,  have a  sufficient  contractile power to prevent
 any great loss of blood.   2. That  because, in other animals it is
 not necessary to tie the  cord, therefore it is equally useless in
 the human species.  3.  Kaltsmidt adduces an argument from the
 analogy of arteries  contracting spontaneously in  some surgical
 operations, and he thence infers, that a similar contraction would
 take place in the  vessels of the cord.§
   Let us examine these arguments for a moment.  With regard
 to the first, it is obvious that it is nothing more than a reiteration
 of the subject in dispute, with the addition of an attempt to ex-
 plain the reason of it.  To say that the vessels of the umbilical
 cord contract sufficiently to prevent fatal haemorrhage, is,  in fact
 to say nothing more nor less than that such haemorrhage does not
 take place.  It offers neither fact nor argument  in relation to the
 disputed point.  This, therefore, requires no examination.
   The second argument  is drawn from  analogy.   To render it
 therefore available, the analogy between the human cord and the
 cord in animals  must be  complete.   This,  however, is not the
 case.  That there  is some difference in the structure of  the hu-
 man cord and that  of other animals, is not merely a rational
 conjecture, but proved by actual observation.   Prof. Brendel, in
 examining  pups and heifers,  found  their umbilical  vessels full of
 rugae or folds throughout the whole  of their course, and their size

  * Fodere, vol. 4, p. 502.
  f In a dissertation entitled, " An Umbilici deligatio in  nuper natis absolute ne-
cessaria sit." Halae, 1733.
  t Fodere, vol. 4, p. 50'J.                   § Mahon, vol. 2, p. 422, &c.
                             35* 
414
INFANTICIDE.
much less also in proportion.*  From this it  appears,  that in
brutes there is a peculiar construction of the vessels of the cord,
tending to interrupt the flow of blood through them, and  favour-
ing their  speedy contraction.   Besides, the manner in which the
cord is  separated in  brutes, facilitates  contraction.  It is never
cut in them;  it is torn asunder, and the disposition of a vessel to
contract under such circumstances is  greatly increased.
  The third has still less force than the foregoing.  That arteries
of inconsiderable  magnitude frequently contract spontaneously,
is granted; but that vessels of a size equal to that of the umbili-
cal ones, do generally contract of themselves, cannot be admitted,
when we know that very  dangerous  haemorrhages  sometimes
occur from vessels even much smaller than those of the cord.
  After all, the whole  question  rests  upon a  simple  matter of
fact, and  this fact is, whether the omission of the ligature upon
the cord has ever been attended with  fatal haemorrhage.  That
it  has been  so, cannot be questioned.   Among others,  a very
striking case  is recorded by Fodere, which he was called upon
by the authorities to examine.  An illegitimate child, immediately
after its birth, had  been carried about three leagues to a woman
who was  to perform the office of nurse.  Finding it very feeble,
the nurse, on examination, ascertained  that it was covered with
blood, and that the ligature around the cord  was quite loose.
The child died shortly after.  On examination, Fodere  reports
that he found the body extremely pale :  without any sign of vio-
lence or  wound; the umbilical  cord  flaccid;  the lungs  floated
perfectly, not only alone, but with the heart attached—when cut
into pieces, too, every piece floated; the heart completely empty,
as also the large vessels, the vena portae, the ductus venosus, the
umbilical  vessels, and  even the capillary system of vessels.  On
weighing  the blood found in the child,  he found that it did  not
amount to two ounces.   From all this,  he concluded very justly
that the child had enjoyed perfect life, and had  died from umbili-
cal haemorrhage-!
  Dr. Campbell states that he met with two  cases in  which in-
fants were destroyed, one by the  accidental, and the other by the
intentional, removal of  the ligature from the cord.J

  * Medicina Legalis sive forensis, p. 9.
  t Traite de Medecine Legale, etc. Par F. E. Fodere.  Vol.  4, pp. 515—16.
  X Introduction to the Study and Practice of Midwifery, p. 151. 
INFANTICIDE.
415
  The following case is recorded by Dr. Hutchinson;  although
the life of the child was saved, it shows  conclusively the great
danger attending haemorrhage from the cord.  " The navel-string
of a living infant was tied in  the usual way; but by  accident,
the funis separated very close to the ligature.   Two hours after-
wards, the practitioner was sent for ; and on his arrival, he found
the infant on the point of dying from haemorrhage that  had just
occurred  from the navel-string.   The  infant had  been washed
and dressed in the usual way, and had not cried after it had been
placed in  bed with the  mother;  soon  after which, the haemor-
rhage  was  discovered.  The  child was fortunately preserved,
by very assiduous subsequent care."*
  Although there can be no question, therefore, that fatal hae-
morrhage may,  and  has occurred, from not tying  the  umbilical
cord, yet it is equally certain  that it does not  necessarily do so.
Observations, to a great extent, have  been made, which prove
that this precaution has been omitted, without any serious conse-
quences resulting.  It is stated that M. Klein has  reported one
hundred  and  eighty-three cases of sudden labours, in  many of
which the cord was  ruptured, and in twenty-one cases, close to
the abdomen, yet there was no fatal umbilical  haemorrhage-!
In no  case, therefore, is the  mere absence of the ligature  to be
taken as  conclusive evidence of death by haemorrhage.
  Signs of death by haemorrhage from the cord.  These are the
following:
  (a.)  Paleness  of the surface,  with  a peculiar waxy appear-
ance.
  (b.)  Paleness  and  loss of  colour in  the muscles and internal
viscera.
  (c.)  The absence of the usual quantity of blood in  the  heart
and  blood-vessels.  By  some  it is stated,  that in cases of hae-
morrhage, the  heart  and blood-vessels are  completely empty.
This, however, is  not the case.  Generally speaking,  " if  three
ounces of blood can  be collected, it may be presumed that the
child has not died of  haemorrhage."!
  (d.)  The absence of any wound or injury on the body of the

  * A Dissertation on Infanticide, &c. By William Hutchinson, M. D.  p. 87.
  t A Manual of Medical Jurisprudence, by M. Ryan, M. D. p. 144.  Griffith's ed.
  X Cyclopaedia of Practical Medicine, vol. 2, p. 694. 
416
INFANTICIDE.
child, to account for the loss of blood in any other way than by
haemorrhage of the cord.
   2. Exposing a new-born  child to the action of cold. It is need-
less to  dwell upon the necessity of those precautions which are
generally resorted to after the birth of a child, in order to pre-
serve a proper degree of temperature.   They are founded equally
upon experience and good sense.  If, therefore, they have been
neglected in any case, it is  just to attribute  it to design, unless
circumstances render it probable  that  it proceeded from igno-
rance  or want  of  the  proper means.   In either case, however,
the physician may be called upon to decide, whether  the death
is to be attributed to the  action of  the cold, or to some other
cause.
   Signs of death by exposure to cold. These are given by Fodere
in the following terms: " If  the body of an  infant be found stiff,
discoloured, shrivelled, and naked, or with only a slight covering
on it in a cold place—buried under stones, or under the earth—
and from trials upon the lungs, it is evident  that it has respired;
and if the great internal vessels are found gorged with blood, ac-
companied with an effusion  of blood into the cavities, whilst the
cutaneous vessels are contracted and almost empty, and when
no other cause of death can  be detected, one cannot do less than
attribute  it  to  the cold,  and consider this abandonment and
neglect of care, the necessity of which is obvious to the dullest
comprehension, as a manifest intention  to make away with the
child."*
   3. Keeping from the child the nourishment necessary for support-
ing life. It is  not easy to  say how long a new-born child  may
sustain  life without food.  It is evident, however, that it  ought
not to be delayed for any length of time.  It is generally agreed
that the neglect of it for  twenty-four hours, is not unattended
with danger.   In these cases, the child is generally found ex-
posed in some deserted place.
   Signs of death from the want of food.  As death in these cases
does not  take place until the child enjoyed life for a certain
length of time, the  first thing to  be established, is  that the child
has lived long enough to die  from this cause.  This may be done
by inspecting  the  foramen  ovale, the ductus  arteriosus,  the
* Fodere, vol. 4, p. 505. 
INFANTICIDE.
417
ductus venosus, but  more  especially the umbilical  cord, accord-
ing to the signs laid down in a previous part of this essay.
  As children who die from want of food are generally exposed
also, they sink under  the  combined operation of  exposure and
want of nourishment.   They will be found, accordingly, to pre-
sent the same appearances as in the last case; and  besides these,
there will be general emaciation of the body, and  on dissection,
the stomach  and  intestines will be found empty, the gall-bladder
will be enlarged, and bile found generally effused in the stomach
and intestines.*
  4. The infliction of wounds and injuries of various kinds. This
is among the most common  of the modes by which the life of a
new-born child is wilfully destroyed.  Death in these cases may
be produced  in various ways, some of which I shall notice.
   The introduction of sharp pointed instruments into different parts
of the body.   Gui-Patin  relates of a midwife who was executed
at Paris for having murdered several children, by plunging a
needle into the head while presenting at the os externum.!  Bren-
del also speaks of the same  horrible practice.  An  instance of
this kind is related by Belloc, where, upon examination, he found
the instrument had  penetrated to the  depth  of two  inches  into
the substance of the  brain.J  Needles, or other sharp instruments,
are sometimes thrust into  other parts of the child, such  as the
temples, the  internal canthus of the eyes,§ the spinal marrow,
the neck, the thorax about the region of the heart,||  and the ab-
domen.  Sometimes a sharp  instrument has  been  run down the
throat, and up  into  the  rectum.   A case is recorded in a recent
journal, in which  the child  was evidently destroyed  in this way.TI
  Signs.  In all cases where death has been produced in the pre-
ceding ways, dissection  alone can reveal the cause.  Where the
instrument has been run into the brain, the head must be shaved,
when a slight ecchymosis will be perceived around  the puncture;
after this, the examination must be pursued into the substance of

  * Besides  keeping food from the new-born child, its life may be endangered and
destroyed by giving it improper food.  Dr. Campbell states that he has known several
illegitimate children destroyed  by giving them to be nursed by women whose milk
was twelve or fourteen months old, the parties concerned being well aware that the
children could not long subsist on  such nourishment. (Midwifery,  p. 151.)
  t Mahon, vol. 2, p. 409.                      X Cours de Med. Leg. p. 93.
  § Prselect. Academ. J. G. Brendel, ii. p. 168.      || Fodere, vol. 4, p. 492.
  T Case of Elliot and Bease. Edinburgh Medical and  Surgical Journal, vol. 35.
p. 457. 
418
INFANTICIDE.
the brain, to  ascertain the nature  and extent of  the  injury.
Indeed this is the only way in  which injuries of this kind can be
distinguished from tumours and extravasations  on  the  scalp.
which may occur during ordinary delivery, and be wholly un-
connected with any malicious  intent.  In punctures of other parts
of the body, the same course must be pursued.    The  wound
must be probed, and the dissection prosecuted  to see how the in-
ternal organs are injured.
   Wounds and bruises. This is another mode frequently resorted
to for destroying the new-born infant.  They  may be found on
any part of the  body; the more  common  part, however, is the
head.  For the purpose of ascertaining the effects upon the head
of a child falling from different heights, the following very in-
structive experiments were made at the Lying-in Hospital, and
are detailed by Lecieux :
   " Fifteen infants who had died after  their birth,  but in whom
there was no alteration in the  bones  of the cranium, were  select-
ed, and after  having been raised up by the feet so that the head
was at the height of about eighteen  inches, were suffered to fall
perpendicularly upon a hard floor; and by anatomical examina-
tion,  it was found that in twelve of them there was a longitudi-
nal or angular fracture of one of the parietal  bones, and some-
times of both.
   " In the same manner fifteen infants were suffered to fall from
a height of three feet, and on dissection there was found, in twelve
cases, a fracture of the parietal bones, in  some extending to the
os frontis.   When suffered to fall from a greater height, the mem-
branous commissures of  the  cranium  were relaxed,  and even
broken in  some places; frequently  the form  of the brain was
changed, and in some cases there was found under the meninges,
or in the thick part  of the meninges, an ecchymosis, an extrava-
sation of blood  produced  by the rupture of vessels;  and it was
only in infants whose bones were very soft and flexible, that no
fracture was found.
   •' After having placed on a table  the head  of a child that had
died  soon  after its birth,  it was  pressed in different places very
 strongly by the two thumbs on different parts  of the surface; and
 in fifteen experiments of this kind, seven caused longitudinal frac-
tures of greater or less extent in one or other  of the parietals; in
others, there  was only perceived a  depression or sinking of the 
INFANTICIDE.
419
bones.  In the greatest number, the head was deformed or flat-
tened, and the membranous commissures exhibited a sensible re-
laxation.
  " Finally, the head, supported on a table, was struck strongly,
and in different places, with a short, round stick.  This  experi-
ment  always caused a deformity or flattening of the head, multi-
plied  fractures, with separation of splinters, relaxation, in some
places rupture of the sutures, and finally extravasation of blood."*
  Signs. In cases  of wounds,  the points to be determined are,
whether the wounds were inflicted before or  after the death of
the child, whether they are  necessarily mortal, and whether
they may not have been the result of accidental and unavoidable
circumstances.  With regard  to wounds of the head, it is to be
recollected that the heads of children are not unfrequently tume-
fied and  ecchymosed from compression,  during  a difficult and
tedious labour.  In some cases,  too, a peculiar sanguineous  tu-
mour forms spontaneously on  the  head of the new-born  child-!
Arising in this way, these tumours  are not attended with any
danger to the child, and they  are never complicated with frac-
ture  of the cranium.  In some  rare cases, even fissures of the
cranium  have  occurred during delivery.  This can occur, how-
ever, only under very extraordinary circumstances.  In one case
recorded by Siebold,  a  female with a very  narrow pelvis  was
delivered, by the  efforts of nature alone, of a well sized  female
child.  It manifested no signs  of life.   On examination, the head
was found swelled, and a great quantity of blood was extravasated
 upon the surface of the  cranium.  In the left parietal bone three
 fissures  were discovered, and a fourth in the left frontal bone.
 In this  case, these extensive  injuries were manifestly owing  to
the long continued pressure  of  the head of the  child in  a  nar-
 row pelvis.J  Another case of a similar characters reported by
 Michaelis of Kiel.  A woman with a well formed pelvis, was
 delivered  of her  first child, after  an  ordinary  natural  labour.
 The  child breathed both during birth and immediately after,  but
 then  died.  The head was  much disfigured, and on examination,
 the right parietal bone, which during birth had  been directed

  * Considerations sur l'lnfanticide, par Lecieux.
  (■ See an excellent paper on this subject by Prof. Geddings, the able and learned
editor  of the North American Archives of Medical and Surgical Science, v. 2, p. 217.
  I North American Archives, &c, vol. 2, p. 434. 
420
INFANTICIDE.
 under the  promontory of the sacrum, was found covered  ante-
 riorly and above with effused blood, and on the removal of the pe-
 riostium, was found fractured in five places.  The whole of this
 bone was  uncommonly thin.  On opening the  skull  there was
 found no extravasation beneath the fissures, but posteriorly the
 longitudinal sinus  was ruptured,  and there was  an extensive
 coagulum on the cerebrum on both sides,  under the dura mater,
 and on the tentorium cerebelli.   In this case, the injuries were
 attributed to the natural weakness of the bone, and to the unfavour-
 able position of the head during birth.*  These  cases, extraordi-
 nary as they are,  are yet  sufficient to show with what caution
 opinions should be formed, in relation to  injuries of  the head in
 new-born children.
   In all examinations of contusions, two cautions ought to be ob-
 served ; viz. to distinguish them from the discoloured spots which
 appear on the surface of the body at the  commencement of pu-
 trefaction,  and, not  to confound accidents which may occur
 during dissection, with those resulting from blows and other acts
 of violence.
   Luxation and fracture  of the neck. This is a mode of infanti-
 cide sometimes resorted to, and is usually perpetrated by forcibly
 twisting the head of the child, or pulling it backwards.!  In such
 cases, the  vertebrae  are fractured, the ligaments ruptured, and
 death is caused by the injury inflicted upon the spinal marrow.
   Signs. The  mode of identifying this kind of death, is  by the
local derangements about the part—by the position of the head—
 and, on dissection, by the fracture  of the first or second verte-
bra, or both, and by the extravasation of blood among the cervi-
cal muscles.  This last circumstance will  show, that the violence
has been committed on a living subject.
   5. Asphyxiating a new-born child, or putting a stop  to its respi-
ration. This may be  accomplished in various ways: by drown-
 ing, hanging  or strangulation,  smothering under bed-clothes,
 suffocating, by thrusting various articles into the mouth and nos-
trils ; finally, by exposure to noxious  airs.
   Drowning. If a  child be found immersed in water, the ques-
tions which require to be determined are  the following.   In the
first place,  was  the child born alive.   In  the  second place, sup-

  * American Journal of Med. Sciences, vol. 21, p. 246.   t Mahon, vol. 2, p. 409. 
INFANTICIDE.
421
posing it to have  been born alive, was  it put into the water be-
fore or after  its death.   The first of these is to be determined
by the means already indicated.   With regard to the  signs of
drowning, they are the  same in the infant that they are in the
adult, and a careful examination is therefore to be made, with
the view of ascertaining whether these  are present or not.*
  Hanging  and  strangulation.  In hanging, the general cause of
death is precisely the same as that  in drowning, viz. suspension
of the respiration.  The signs, therefore, in the two cases are the
same, except so far as  they are modified in the former, by the
application of the ligature and the absence  of water.  In cases
of death by hanging, accordingly, there will probably be  a cir-
cular livid mark around the  neck from the application of the
ligature-!
   Death by strangulation is produced by the same general cause
as hanging, and  the  only difference between them, will  be the
absence  of the distinct circular  mark round  the neck in the
former,  and  the presence of ecchymoses and  discolorations
about  the neck and chest, produced by  the application of fingers
and nails to these parts.
   In cases where death by hanging or strangulation is suspected,
there is one source of fallacy which requires to be specially no-
ticed.  It happens sometimes, though rarely, that in consequence
of the cord being wound  round the neck, the  child dies during
or immediately after  birth.  Whether in cases of this kind, the
same kind of mark is left on the neck of the child  as in criminal
strangulation, is a question concerning  which there is much dif-
ference of opinion.   Klein states, as the result of extensive expe-
rience, that he has never met with an instance, in which ecchy-
moses or any other marks have been produced by the cord.  On
the other hand,  Taufflieb has  recorded some cases, in which
these appearances were actually observed.^  In all cases of sup-
posed  hanging or strangulation, this should  be,made the subject
of special investigation.
   Smothering.  When the child has been smothered  under bed-
clothes, &c. the  circumstances upon which to form  a  decision

  * On the signs of Drowning, see CHAPTER XIV.
  t On the signs of Hanging, see CHAPTER XIV.
  X Annales d'Hygiene publique, v. 14, p. 340.
     vol. i.                    36 
422
INFANTICIDE.
that wilful  murder has  been  committed, besides those  which
characterize  strangulation  generally, are, the place where  the
body is found, and the absence of any other  probable cause to
which its death can be attributed.
  Introducing articles into the mouth, nostrils, or  throat.   When
this is the case, dissection alone can detect the cause.
  Causing a child to inhale air deprived of its oxygen.  This takes?
place when a living child is shut up in a tight box or coffin. The
oxygen of the air contained in the box  is gradually consumed,
until the air becomes irrespirable.*
  In  cases  of this kind,  experiments  upon the  lungs will show
whether the child was born alive or not.  If born alive, the  ab-
sence  of any other cause of death, and  the  suspicious and  un-
natural circumstances  attending the place where the child may
be  found, will sometimes lead to a judgment in the case.
   The inhalation of gases positively  deleterious. The gas  yielded
by  privies and sewrers is sulphuretted hydrogen, and in the small-
est quantity, and even when diluted with atmospheric air, proves
very speedily  destructive of life.  When  new-born infants  are
thrown into these places, they are destroyed partly by the action
of the gas,  and partly by ordinary suffocation.
  6.  Poisoning.  Poisons  may be  introduced  into the  system in
various ways.   They may  be inhaled into the lungs, in the form
of  odours; or they may be taken into the stomach, mixed with
food; or they may be received  in  the form of injections, or be
absorbed through the skin.
  When the poisonous  substance has  been  taken into the  sto-
mach and intestines, it   should be carefully  examined, and sub-
jected to the  various tests which chemistry supplies for detecting
its  presence.  In cases where the cutaneous absorbents have been
the medium of conveying it into the system, it may be very diffi-
cult, generally, to  discover  the cause of death.  In some instances.

  * On this subject, Dr. Paris  makes the following statement.  " Infants appear to
be less able to sustain the deprivation of oxygen than adults, and in some cases on
record, life has been destroyed  by circumstances that we should have a priori con-
sidered as hardly adequate to such  an effect.  A case is related of a child who was
suffocated by some drunken men having repeatedly blown out a candle, and held the
smoking wick under its nose. The faculty of Leipsic investigated the circumstances,
and declared the death to have  taken place in consequence of suffocation." (Medical
Jurisprudence. By Paris and Fonblanquc, vol. 2, p. 55.) 
INFANTICIDE.
423
an eruption on the skin, and the peculiar odour of the substance
which has been employed, aided by the circumstantial evidence,
may lead to a discovery.

      II. Accidental modes' in which a child's life may be lost.

  Having thus considered  the various criminal modes  resorted
to for the purpose of destroying the life of the new-born infant, I
come now to  notice  the  various causes which  may destroy  it,
without any criminal agency.   Under  this  head, there are three
different classes of causes, which require notice—
   1. Accidental circumstances connected with delivery.
  2. Various  malformations, inconsistent with the continuance of
life after birth.
  3. Various  diseases which may have commenced  anterior to,
or immediately after birth.

1. Various causes connected with delivery, which may occasion the
    death of a new-born child, without any criminal intention.
  A new-born child may sometimes lose its life, from its not  being
removed from that state of supination, in which it sometimes comes
into the world. In this way respiration may be effectually pre-
vented, by the mouth of the child being  closely applied to the bed-
clothes, or other  substances in  its way.  Dr. W. Hunter relates
an instance of a child dying, from its face lying in a pool  made
by the uterine discharges, where not the least suspicion of any
evil design  appears to have been attached to the mother.*   A
case in some  respects similar, occurred to myself.  A female,
whom I had engaged  to attend in her  lying-in, was  suddenly
taken with labour pains, rather  before  the time  the event was
anticipated.   I was sent for shortly after, but before I  reached
the house, she had been delivered of a male child, which I found
lying dead under the bed-clothes.   The mother informed me that
the child had  been born about half an hour, and  that  she had
heard it cry, but as she was alone, she  had  been unable to give
it any assistance.  Not the  slightest suspicion of any criminal in-
tention could for a single  moment be cherished.  The female was

  * Observations on the uncertainty of the signs of murder in the case of bastard
children. (Medical Observations and Inquiries, of London, vol. 6.) 
424
INFANTICIDE.
 married, and had engaged me to attend her some weeks  before
 the event took place.
   A new-born child  may lose its life from the suddenness and ra-
 pidity of the labour.   Dr.  Hunter relates a case, where a female
 was seized during the night, and the child was  born before he ar-
 rived.   She held herself in one posture, to prevent the child.from
 being stifled;  but although it had cried, yet on the arrival of Dr.
 Hunter  it was found dead.*   A case is recorded by Mr. Tatham,
 where a  patient  in her  fourth pregnancy, after  three trifling
 pains, was passing along the lobby to  her bed-room, when the in-
 fant was suddenly thrown on the floor, bleeding profusely at the
 umbilicus, but ultimately recovered-!  Another  case is related
 by the same authority, of a female,  who, in the last month of her
 first pregnancy, while the family we're absent, was obliged to go
 to the night-chair—a  great  discharge  of water took place, fol-
 lowed by twin children, which dropped  into  the utensil;  from
 which, however, they were  speedily  rescued,  but died within a
 week.J   Besides this, the labour may be attended with faintings
 or convulsions of the mother, so as to render her incompetent to
 offer any assistance  to the child.
   With  regard to the fact  of the  death of the child occurring
from the  mere rapidity and  suddenness of the  labour, it must
 be exceedingly rare, and under very peculiar  circumstances;
 and  when it does occur, it must be  either from the  child being
 suffocated by falling  into a privy at the  time  of delivery,  or
 by the injury which it  receives from falling  in cases where a
 female happens to  be  delivered  while  standing.  The first  of
 these is, no doubt, possible, and probably has occurred.^  From
 the experiments of  Chaussier, detailed in a previous page, we

  * Medical Observations and  Inquiries, of London, vol. 6, p. 286.
  t Medical Repository, for April, 1829.      X  Campbell's  Midwifery, p. 155.
  § Dr. John Gordon Smith relates, that "a woman was tried at the Old Bailey for
 the murder of her child, by dropping it into a privy.  She declared, that while there
 for a natural purpose, an uncommon pain took her, the child fell, and she sat some-
 time before she was able to stir.  On this occasion, a practitioner was examined on
 the probability of such an event, who stated that  an instance came within his know-
 ledge, where, while the midwife was playing at cards in the room, the woman was
 taken suddenly and the child dropped on the floor." Dr. Smith adds, " it repently
 happened  in the circle of my  own acquaintance, that a lady who had borne several
 children, and must therefore have been alive to the import of uneasiness  in the last
 hours of pregnancy, was  sitting in company at  dinner, and perfectly free from any
 consciousness of approaching labour, when she experienced an inclination to repair
 to the water-closet.  She  had scarcely got there  when she was delivered of a child.
 Had the place of retirement been constructed differently," adds Dr. S. " this infant
 might have perished." (Principles of Forensic Medicine, p. 381-2.) 
INFANTICIDE.
425
should be led to infer, that  children born while the  female is
in the standing posture, would be seriously injured by the fall.
The cases,  however, are by no  means  analogous, and experi-
ence has proved that under these circumstances, there  is really
very little risk to the child.  This point is fully established by the
report of  Dr. Klein of Stutgardt.  As a member of the superior
council of health, he caused a circular to be addressed to the ac-
coucheurs of the kingdom of Wirtemberg, requesting reports of
the cases  of sudden expulsion of the foetus, which might  be ob-
served by them.  Returns were made of one hundred and eighty-
three cases.  Of these, one hundred and fifty-five children were
expelled while the mothers were in the upright  posture, twenty-
two when sitting, and six when on the knees.   Twenty-one hap-
pened at  the first  labour.  Of the whole number not one child
died ; no  fracture of the  bones took place, nor any severe injury.
Two only suffered  temporary insensibility, and  one an external
wound with ecchymosis  over the right parietal bone.*
   An interesting  case in which this question was involved, oc-
curred in the State of Massachusetts in 1834.   Margaret Croslan,
an, unmarried coloured girl, aged 22, was indicted for murdering
her infant illegitimate child, and concealing  its death.  On the
trial,  it was proved, that the body was that of a full grown male
child.  There were no external marks of violence, excepting signs
of effused  fluid  under  the  scalp  covering  the  frontal  bones. ,
" Blood was found in considerable quantity, partly  fluid,  and
partly coagulated.  The pericranium  was separated  from the
bone, and the parietal bones were both fractured, the left one in
three places, the right in one."  The chest was opened, and por-
tions  of  each lung were cut off, and on being put into water
floated.   This appears to have been all the examination that was
made.  By  the prosecution, it was argued,  that the child was born
alive, and came to its death by intentional violence applied to the
head.  For the defence, it was contended, that the prisoner  had
been taken  suddenly in labour in the yard; that the child was de-
livered while the woman was in a standing position; and that the
injury of the head was caused by its falling on the ground, which
was hard and frozen.  The jury brought  in a verdict of acquittal-!

   * Arrowsmith in the Cyclopaedia of Practical Medicine, vol. 2, p. 693.
   t A full and  able account of this case is given by Charles A. Lee, M. D. Amer.
Jour, of Med. Sciences, v. 17, p. 327.
                             36* 
426
INFANTICIDE.
In reviewing this case, I  cannot help thinking that the prisoner
owed her acquittal  more to the ingenuity of her counsel, than
to the justice of her cause.
  Accidental haemorrhage from the umbilical cord.  I Tiave already
spoken of neglecting to tie the cord with a criminal intent.  It
should be recollected that although it has been resorted to with
the latter object in view, yet in many, perhaps in most cases, it
may be the result of ignorance.  It should not be forgotten, too,
that this is most likely to occur  in those very cases which become
the subject of judicial inquiry,  inasmuch as in these, the female,
for obvious reasons, is frequently shut out from the benefit of pro-
fessional assistance.   Besides this, haemorrhage from the umbili-
cal cord,  may occur under a variety of other circumstances,
purely accidental.   Sometimes, it  may occur accidentally, from
a proper  ligature  not being applied to the cord.   Dr. Hosack
states, that he once delivered a woman of a very strong and large
child, the  cord  of which he tied with common tape, as that was
the only material at hand.  He had scarcely reached his home be-
fore he  was sent for  again, and on returning, found that the liga-
ture had given  way, and a dangerous haemorrhage had ensued.*
Mr. Burns states also, that it has " sometimes been found, that
wmen the  ligature had become slack, a considerable quantity of
blood was lost, and  even fatal  haemorrhage has taken place."!
Sometimes the  cord  is very thick, in consequence of a very large
quantity of glutinous matter being contained in it.  When this is
the case, the ordinary ligatures will not be able to prevent  bleed-
ing.  After the cord is divided, it becomes  lessened in size, and
the ligature which at first was tight, will now be found loose, and
the mouths of the umbilical vessels open.  Mr. Radford, who has
noticed this  especially, relates a case of this  kind, in  which  he
wras called to an infant who was bleeding, about three hours after
birth.   The  skin was pallid, and  the pulse scarcely perceptible.
On examination, the  ligature was loose, and  the  orifices widely
gaping.J  Another case of this  kind is related by Burns.§  Some-
times the  cord  will be found ossified, or in a state of cartilaginous
hardness.  In these  cases, there is always more or less danger of
haemorrhage from the inability  of applying  the ligature properly.

  * MSS. Lectures.                      t Midwifery, p. 565.
  X Edinburgh Medical and Surgical Journal, vol. 38, p. 2.
  § Midwifery, p. 200, American edition. 
INFANTICIDE.
427
A case of this kind, is related  by Mr. Logan, in which the cord
gave way several times, from pressure of the ligature and from
pulling on it during the expulsion of the placenta.*  Dr. Dewees
relates another  case, in which  a dangerous  haemorrhage took
place  in a child  three days old,  and which on examination, was
found  to be  owing  to a varicose  state of the cord.   In conse-
quence of which, he lays down a general rule, never  to  apply a
ligature above a  varicose portion of the cord, if it be possible to
apply one below.!
   There is another accident, too, which  sometimes happens, in
which haemorrhage  may occur;  and that is, where the  child is
suddenly expelled, and  the cord ruptured, when  no immediate
assistance is at hand.  Mr. Custance relates  a case of protracted
labour, where the child was suddenly expelled on  the bed, with
such violence as to rupture  it very near the  body.   Although
there  was no  haemorrhage, it died  in a few hours.J  Another
case is related by Mr. Chamberlayne, in which the cord broke
off, (just in the right place too,) in consequence of the violent ex-
pulsion of the child.§  In cases of this kind, however, where the
cord is torn off, it is to be recollected  that haemorrhage is not so
likely  to occur as when it is cut.
   A child may die from prematurely tying the umbilical cord. We
know  that the circulation by the cord  and respiration, are vica-
rious functions, and if the former  be  arrested before the latter
is in operation,  life must cease.  It is accordingly laid down
as a rule by practical writers, that the cord should never be tied
or divided, until  respiration has been established.
   That the neglect of this important rule of practice  is an occa-
sional cause of death to  the new-born infant, in the hands of igno-
rant midwives and practitioners, does not admit of a doubt.  Dr.
Dewees states, that he has seen " several  instances of death, and
this of a painful  and protracted kind, from the  premature appli-
cation of the ligature."|| By Dr. Eberle a case is recorded, which
illustrates the evil effects of premature tying of the cord.  The

   * Edinburgh Medical and Surgical Journal, vol. 37, p. 276.
   f A Treatise on the Physical and Medical Treatment of Children, by Wm. P.
Dewees, M. D. &c. p. 331.
   X Lancet, vol. 5, p. 120-1.
   § London Medical  and Surgical Journal, vol. 7, p. 284.
   || A Treatise  on the Physical and  Medical Treatment of Children, by W. P.
Dewees, M. D. p. 260. 
428
INFANTICIDE.
child breathed freely as soon as it was born. After waiting three
or four minutes, until the cord pulsated feebly, it was tied.  As
soon as the ligature was drawn, the breathing became catching,
irregular, and in a few  moments almost wholly suspended, and
the lips acquired a  deep livid  hue.   The cord was immediately
divided below the ligature, but only a few drops of blood  could-
be obtained from it, and it was only with the greatest difficulty
that the action of the heart and lungs were re-established.*  Dr.
Campbell records a similar case, in  which the application of the
ligature was followed by  breathlessness and lividity of  counte-
nance.  The child  was relieved by the application of two leeches
to the  region of the heart.!
         2. Congenital malformations of certain organs.
  These are  by no means uncommon,  and as they might be
found in cases which  become the  subjects of judicial investiga-
tion, and give rise  to doubts as to  the cause  of death, it  is ne-
cessary to  show to what extent  they may interfere with the
continuance of life  in the  new-born infant.  The subject is one
of great interest as well as extent, and all I can hope to do, is to
give a general outline of it.  Observation has shown, that almost
every organ and part of the human body is liable to some mal-
formation  or  imperfection-  It is  evident,  however, that they
cannot all be equally dangerous, or hostile to the prolongation of
life.   In these respects they must differ greatly according  to the
degree in which they exist, and more especially according  to the
importance of the organ in which they are found.
   Malformations of the heart and vascular system.   Of these the
following have been observed and recorded.
  A congenital opening between  the  two ventricles.   Several in-
stances of  this kind are on record.   Dr. Hunter relates the case
of a still-born child at six  months, who had a hole  in  the septum
of the two ventricles, large enough to allow a goose quill to pass
through  it.;};  Another similar case is related  by Dr. Pulteney.
In this instance, the person lived to nearly fourteen years of age.§
  Corvisart gives the case of a child twelve years old, in whom,
on dissection,  there was found an aperture in the septum of the
  * A Treatise on the Diseases and Physical Education of Children, by John Eberle,
M. D. p. 86. Second edition.                    + Midwifery, p. 152.
  X Baillie's Morbid  Anatomy, p. 24.  Medical Observations, vol. 6.
  § Medical Transactions, vol. 3. 
INFANTICIDE.
429
ventricles, large enough to  admit the  extremity of the  little
finger.  From the appearance of the aperture, there was good
reason for believing that it was congenital.*
  Dr.  Hunter relates  the  case of a patient who reached his
thirteenth year,  in  whom, on dissection, the pulmonary artery
was found very small, and an  opening of the size of the thumb
led from the right into the left ventricle.   This patient had been
in ill health  since  his  birth—had been  subject to fits from his
earliest years, during which his complexion  became  of  a dusky
hue.  He died in one of these paroxysms-!
   Where  the  heart consists only of one auricle and one ventricle.
This is a  rare malformation.   Mr. Burns says there  is  only one
case on record, and that is by Mr. Wilson.   This was in a child
who died seven days old, and whose body was  brought to the
Theatre of Windmill  Street for  dissection.  In  this case there
was one vessel which  originated from the ventricle and divided
into two branches—the one to the lungs, and the other to the
rest of  the body.J
  Another case, however, is  recorded by  Billard.   This child
lived fifteen days.  During this period it was affected with cya-
nose—had frequent  syncopes  and fits  of threatened  suffocation,
in one of which it died.§   This malformation would  seem to  be
inconsistent with the long continuance of life.
   Where  the aorta arises from both ventricles. Corvisart gives a
case from Sandifort, in which the subject died at  the age of
twelve years.  During this  period, it had from its second year
been attacked with all the symptoms denoting disease of the
heart, of which it died.  On dissection, it was found,  that beside
the existence of the foramen  ovale  and dilatation of the right
ventricle, the  aorta, instead of rising from the left ventricle only,
had a mouth in each of the ventricles.||
  In two cases  recorded by Mr. Burns, the persons led a most
miserable life, and were subject on every trivial exertion  to those
paroxysms which are produced by a mixture of venous and arte-
rial blood.  At last they died dropsical.1I

  * Corvisart. p. 207; also, p. 229.
  t Observations on some of the most frequent and important diseases of the heart.
&c.   By Allan Burns, p. 20.  Baillie, p. 23.               i Ibid. p. 27.
  v Traite des Maladies des Enfans, &c. Par C. M. Billard, p. 701. 2d edition.
  II Corvisart, p. 231-2. American edition.
  f Burns' Observations, p. 13. 
430
INFANTICIDE.
  Another case is recorded  by Dr.  Ray, of Eastport, in the
state of Maine.  The child lived to the age of thirteen months.
During the first five months of its life, nothing peculiar was per-
ceived about  it  but a slight blueness  of the ends of the fingers,
the eyelids, root of the  nose  and mouth—after this it suffered
occasional paroxysms, resembling severe  colic, attended with a
dry suffocative cough.   In the intervals of the  paroxysms, the
child appeared to  be  perfectly well.   On dissection, the ascend-
ing aorta and arch was found dilated to four times the capacity
of the descending portion.  The foramen ovale was open, and
both ventricles  communicated with  the aorta, the aorta being
placed astride the two ventricles.  The ductus arteriosus was
also open, and terminating in a cul de sac in the wall of  the left
ventricle—no  pulmonary artery could  be discovered.*
   Where the pulmonary artery is impervious at its origin. This is
by no means common.  A  case, however, is related by Dr. Hun-
ter, which terminated fatally on the thirteenth day-!
  Malformations of the respiratory organs. These, although not
very  common, are sometimes met with.  Cases are recorded in
which the thoracic parietes have been so deficient and imperfect,
as to leave the heart and lungs naked.   Under such circum-
stances, it is evident that life cannot long be protracted.  In some
cases, the thorax  may be  distorted in  such way as  to interfere
greatly with the due expansion of the lungs, and of course with
the proper performance of the function of respiration. It is clear,
however, that this may exist  to  a very considerable extent, and
yet life be continued for a  number of years.
   Where a congenital deficiency exists in the diaphragm, so as
to admit the passage of  some portion of the  abdominal viscera
into the cavity of the thorax,  the danger is more impending, and
it is hardly possible that life can be long continued.
   Malformations of the alimentary canal. These have  been ob-
served in every portion of this tract, from the mouth to the anus.
The mouth has  sometimes been found wanting, or  obliterated;
in other  cases, there has been an absence of the oesophagus.  An
instance of this kind is reported by Dr. Sonderland.   The child
at  birth was  apparently well  formed, but rejected  every thing
that was introduced into  its  mouth in the way of nourishment.
  * The Medical Magazine, conducted by A. L. Pierson, J. B. Flint, and E. Bartlett,
Boston, vol. 2, p. 317.                 t Burns' Observations, etc. p. 25, 
INFANTICIDE.
431
It died on the eighth day.  On dissection the cardiac orifice of
the stomach was found  wanting, and this part of the stomach
was adhering  to the diaphragm.  The oesophagus was entirely
wanting, and the pharynx terminated in a cul de sac*
  The stomach is subject to malformations as regards shape and
displacements.   These, however, do not interfere with the con-
tinuance of life, provided the orifices of this organ be free.
  Malformations of the intestinal canal are numerous and vari-
ous.  Those which are particularly worthy of notice in this con-
nexion, are those in which the canal is obliterated, or interrupted,
or contracted.   Dr. Schaefer  relates the case of a  child, which
died on the seventh day after birth.  On dissection, the duodenum
was found terminating in a cul de sac, and a complete interrup-
tion thus existed in the intestinal canal.  This child, during its
life, had passed neither meconium nor urine, and vomited matter
of a liquid brown character.!   Another case, of a similar charac-
ter, is reported by Billard.  In this case, the  child  died on the
third day.  It  had not passed any meconium, and  had vomited
 freely a yellowish fluid.J
   The most common  of these malformations, however, are those
 of the rectum.   In some cases, there is simply a contraction and
 closure of the anus; in other cases, the rectum itself is partly
 deficient, and terminates in a cul de sac ; while in others again,
 the rectum terminates in the bladder, or in the vagina.§  Now, in
 all these cases, the life of the child  must  be lost inevitably in  a
 very few days, unless the difficulty can be relieved by an opera-
 tion.

 3. Various diseases, which may be either congenital, or occur im-
                      mediately after birth.
    This is the  last class of accidental  causes to which the death
 of a new-born infant may be owing.
    Morbus caruleus. Cyanosis. This  is commonly known by the
 name of the  blue  disease, from the  peculiar colour of the skin
 which characterizes this affection.   The part  more particularly
 affected, is the face.  During crying or any other  effort on the
 part of the child, the colour becomes much deeper.   Besides the

   * Billard, p. 285.          t Ibid. p. 363.         Ibid. p. 364.
   k Billard, pp. 367, 370.  Baillie's Morb. Anat. p. 114. Campbell's Mid. p. 571. 
432
INFANTICIDE.
peculiar colour of the skin, the symptoms are, disordered circula-
tion, disturbed respiration,  and  diminished  temperature  of  the
whole body.  Now and then the symptoms are all aggravated,
and the patient is attacked with the most distressing paroxysms
of laborious breathing, fainting, palpitation, and suffocation.  It is
during these paroxysms that life is generally in danger, and fre-
quently is lost.  Concerning the  causes of this curious affection,
there is some difference of opinion.   Formerly it was  supposed
to be invariably owing  to  the foramen ovale remaining open.
This, however, is not the case, inasmuch as it has been found to
be associated with a number of  malformations of the heart and
large blood-vessels.*
   From what has been already stated in relation to  these mal-
formations, it is  easy to appreciate the kind of danger  to which
a  new-born  infant is subject, in whom  they may be found to
exist.  While in  some cases death  may take place in a few hours
or days after birth, in others again existence has been protracted
for many years.   As, however, life is always in danger in these
cases, the  just and certainly humane conclusion in a case of al-
leged infanticide, and where this disease might be urged as  the
cause of death, would -be to admit that it might be so,  provided
said malformations were actually fonnd  on dissection,  and pro-
vided no other cause of death could be detected.
   Organic diseases of the heart and  blood-vessels.   By Billard, a
case is recorded of a child, who, from birth, was  affected with
frequent syncope, difficult breathing, discoloration of the nostrils
and lips, and disordered circulation.  It died, after suffering in
this way about two months.  On dissection, the heart was found
almost as large as a hen's egg, with dilatation of the right auri-
cle and ventricle.!
   Another curious and unique  case is  recorded  by the same
author, of  a child who  had  an aneurism of the ductus arteriosus.
It died on the fourth day, and betrayed no symptoms during  life
of the existence  of this aneurism.  It was about the size of a
cherry pit.J
   Pericarditis.  By Billard, this disease is supposed to  be more
common in  new-born  infants, than  at any other period of life.

  * For a condensed,  but excellent  view of  this subject, see a Dictionary of Prac-
tical Medicine, by James Copland, M. D. vol. 1, p. 199. American edition.
  \ Billard, p. 589.                           i Billard, p. 591. 
INFANTICIDE.
433
In seven hundred autopsic examinations which he made  at  the
Foundling Hospital of Paris, he found seven well  marked cases
of pericarditis ; two of these were in children who died on  the
second  day after  birth.  In one, an infant of two days old, he
found the adhesions of the pericardium so solid as to lead  to the
belief that the disease was of long standing, and must have com-
menced while the fcetus was still in utero.*
   Pneumonia and pleuritis.   There  is every reason  to believe
that these affections, though rare, may sometimes exist in the
foetal state.   Billard states, that in three infants who died on the
first day after birth, he found the texture of the lungs so altered,
as to lead to the belief that disease must have commenced ante-
cedent to birth.   In two cases, the left lung was hepatized at its
base-!  In these cases, there was no doubt  that this condition of
the  lungs interfered with the  establishment of respiration, and
was the cause of death.
   Inflammation of the larynx has not been observed as  occur-
ring in the foetal state.  Billard, however, states that he has fre-
quently observed in foetuses born before the time, a congestion of
blood about these parts.  The mucous membrane of the  larynx
 and trachea was of a violet colour, and at the same time there
 was an extravasation of blood extending even into the bronchiae.
 He presumes there must have been in these cases a great determi-
 nation of blood to those parts in the last moments of intra-uterine
 life, or during the act of delivery .J
   With regard to affections of the lungs, it is also to be recol-
 lected, that  infants are occasionally liable  to  be  attacked with
 many of them immediately after  birth, and  they may prove
 fatal in a few  days.   In  all cases of this kind, however, the
 appearances  on dissection will throw light upon the cause of
 death.
   Diseases  of the alimentary canal.  Billard states  that  in two
 cases in which new-born infants died a short time after birth, he
 found ulceration in the oesophagus, which from their appearance
 must have been developed  during intra-uterine life, and  which,
 from the progress  they made after birth, must  have hastened
 their death.§
   The same author relates cases in which there  was every rea-
 * Billard, p. 595, 703.      t Ibid. p. 521.      X Ibid. p. 494.      § Ibid. p. 687.
     vol. i.                       37 
434
INFANTICIDE.
son to believe that inflammation of the stomach existed previous to
birth, and was the cause of death after birth.*
  Ramollissement of the intestines has also been noticed by Billard,
in children who have died a short time after birth.!

               Of the examination of the mother.
  Having  gone through with the examination of the child, and
having ascertained that  it was born alive, and that its death was
owing to violence, we are next to inquire into  the relations of it,
with the supposed mother.   As already stated, the questions here
to be investigated are the following.
  Quest. I. Has the woman  been actually  delivered?  The  signs
of delivery have  already been discussed in a previous part of
this essay.
  Quest. II. Do the signs of delivery in the mother correspond as to
time, drc, with the appearance of the child ?
  By comparing the observations made upon the child, with the
signs observed on the female,  a rational opinion can easily be
formed, whether  any incongruity exists between  them,  and the
inference of course is obvious.
  Circumstantial evidence. Although this does not strictly apper-
tain  to a medical discussion of the  subject, yet there are some
points embraced under it, concerning which the testimony of the
physician may be required.
  1. It may be urged in excuse for a woman on a trial for child
murder, that from the uncertainty of the signs of pregnancy, she
may  have  been ignorant of her actual  condition, and therefore
may  have  been suddenly  overtaken with  the pains of labour,
when it was out of her power to command assistance, and thus
the child have lost its life.   To all this, a very plain and concise
reply may  be  made.  However difficult it  may  be for a physi-
cian to say positively, whether a woman is pregnant or not, yet
we  can scarcely suppose  the woman herself to entertain  much
doubt on the subject, especially in a first pregnancy, which it al-
most always is in  cases  of infanticide.   If she has yielded to the
solicitations of a  seducer,  and  if  she afterwards  experiences
those changes  and developements in her  system, which accom-
pany  a state of impregnation, she cannot but be conscious of her
* Billard, p. 311, 689.                         \ Ibid. p. 691. 
INFANTICIDE.
435
true  situation, and therefore, any arguments drawn from this
source ought to have no weight.
  2.  It may be urged in  the defence of a female accused of de-
stroying her child, that she may have been labouring under  puer-
peral  mania; in  olher words  that she was  insane.  A case of
this kind  appears actually to have occurred, and is related  by
Dr. Paris.  " In the year 1668, at Aylesbury, a married woman
of good reputation being delivered of a child, and not having
slept many nights, fell  into a temporary phrensy, and killed her
infant in the absence of any company; but company coming in,
she told theni she had killed her infant, and there it lay; she was
brought to jail presently, and after some sleep she recovered her
understanding, but marvelled how or why she  came thither.   She
was indicted for murder, and upon her trial the whole matter ap-
pearing, it was left to the jury with this  direction, that if  it did
appear  that  she  had any use of reason when  she did it, they
were  to find her guilty;  but if they found her under a phrensy,
though by reason of her late delivery and want  of sleep, they
should acquit her; that had there  been any occasion to  move her
to this fact, as to hide her shame, which is ordinarily the case of
such as are delivered of bastard children  and destroy  them ; or
if there had been jealousy of the husband that the child had been
none  of his; or  if she  had hid the infant,  or denied  the fact,
these  had  been evidences that the phrensy had been counterfeit.
But none of these appearing, and the honesty and virtuous deport-
ment of the woman in her health being known to the jury, and  many
circumstances  of insanity appearing,  the jury found her not
guilty, to the satisfaction of all who heard it."*  On this case Dr.
Paris justly  remarks,  "had  this  woman been of doubtful cha-
racter, though innocent, she might have been executed for want
of medical evidence to prove  the nature and frequency of puer-
peral  insanity."!

Of the  method of conducting examinations  in  cases  of infan-
                            ticide.
   In every case of infanticide, so much depends upon  the  testi-
mony furnished  by the physician, that it becomes a sacred duty
on his part to investigate, with the utmost fidelity and impartiality,
every circumstance which may aid him in coming to a satisfactory
  * 1 Hale's Pleas of the Crown, p. 36.
  t Paris and Fonblanque's Medical Jurisprudence, vol. 3, p. 129-30. 
436
INFANTICIDE.
and enlightened decision. The labour of such investigation is doubt-
less great and unpleasant;  but unless submitted to by the profes-
sional witness, he certainly cannot  be considered as qualified to
give his evidence in a case which involves the  life of a fellow
being.
  External examination of the  child.  This  should embrace the
following particulars:
(a.)  Every thing relating to its  external appearance, shape,
  conformation,  condition as  to  putrefaction, wounds, spots,
  ecchymoses, &c.
(b.)  Its size, including not merely the size of the whole body as
  to length, but the dimensions of the head and of the thorax.
(c.)  Its weight.
(d.)  The condition of the umbilical cord.
  Internal examination.   This should include,
   1. The condition of the organs of circulation:
(a.)  The foramen ovale.
(b.)  The ductus arteriosus;  its dimensions and shape.
(c.)  The ductus venosus.
(d.) The state of the umbilical vessels.
   2. The condition of  the respiratory organs:
 (a.) The shape of the thorax.
 (b.) The situation of the diaphragm.
 (c.) The colour of the lungs.
 (d.) Their volume.
 (e.) Their shape.
 (/.) Their situation.
 (g.) Their consistence or density.
 (h.) Their absolute weight.
 (i.)  Their specific weight.
   3. The condition of the abdominal organs:
 (a.) The liver ; its weight.
 (b.) The  stomach and intestines; particularly  the large intes-
   tines, with a view of ascertaining the presence or  absence of
   the meconium.
 (c.) The state of the urinary  bladder.
   4. The condition of the brain and spinal marrow.
           Mode of conducting the  dissection of a child.
    It will be found most convenient to  commence  the dissection
 with the mouth and the cavities leading to the chest.   An incision 
INFANTICIDE.
437
should first be made from the under lip to the top of the sternum,
and another along the lower edge of the inferior maxillary bone;
after which, the integuments are to be dissected back.  The lower
jaw is then to be divided at its symphysis, and the two portions
separated.   By bending the head back, we shall now be able to
obtain a complete view of the cavity of the mouth.  The position
of  the tongue should now be examined.  If any foreign matters
are found in the mouth, they should be especially observed and
noted.  In short, every unnatural appearance, whether morbid
or artificial, should be carefully investigated and recorded.
  The larynx and trachea must next be laid open.  If any fluid
is found, it should be specially examined.
  So  much  of the oesophagus as can now be seen, is also to be
examined.
  The abdomen is next to be opened.  The first  incision  is to
be  continued down to  the  lower part of the sternum, and  from
this point, an incision  made  through the  integuments to the
spine  of the ilium on each side.  The  triangular flap thus made,
is  then to  be turned down, and  the umbilical  vessels  to  be
examined and tied.  The diaphragm is to be observed, whetherit
be much arched, or otherwise.  The viscera of the abdomen are
next to be inspected, and  every thing peculiar in their appear-
ance or condition to be noticed.  The ductus venosus should be
examined, whether it be pervious, and contain any blood.   After
tying  the vessels leading  to the liver, it should be taken out and
weighed.  The whole of the intestinal canal, with the stomach,
should be taken out, after having tied  the  two  ends.  The con-
tents of the stomach are to be critically investigated, especially to
ascertain if it contain any milk.  If  there  is any suspicion of
poison, the ordinary tests for ascertaining it should be resorted
to.  The state of the gall  bladder and urinary bladder  should
be  examined, whether they be empty or not.  Lastly,  it  should
be seen whether  there be any meconium in the intestinal canal.
  In opening the thorax, the ribs and sternum must be divided in
the  ordinary manner;  and in doing this, a scissors will be found
a much more safe and  convenient instrument than a scalpel.
Having exposed the thorax to view, the general appearance, po-
sition  and colour of the lungs are to be  remarked.
  The aorta, the carotids, and venae cavas are to be tied and cut
beyond the ligatures.  The trachea is now to be divided as near
                            37* 
438
INFANTICIDE.
as possible to the lungs.  The lungs should then be taken out and
weighed, and after thisj subjected to the experiments already de-
tailed in a previous page.   The heart is next to be examined, and
it should be particularly noted whether  the auricles and ventricles
are filled  with  blood;  the  state of the ductus arteriosus should
be ascertained;  and  lastly, the state of the foramen ovale.
  As the death of an infant may not unfrequently be caused  by
injury inflicted on the spine, it becomes necessary to examine this
part also.  A longitudinal incision should be made from the occiput
to the sacrum—the muscles to be separated and turned back. By
means of  strong scissors, the vertebrae are then to be divided on
each side.  The posterior part of the  spine thus separated, may
easily be  removed, and the whole canal exposed for examina-
tion.
  In opening the head an incision should be made from the lower
part of the frontal bone down to the second or third cervical ver-
tebra, and another at right angles to this  from ear to ear. By dis-
secting back the integuments thus divided, the cranium will be
completely exposed.   The cranium should now be carefully ex-
amined, to see if there  be any fractures, punctures, wounds, &c.
The bones are  next to be removed,  and the most convenient
method of doing this will be to separate them by a scissors along
their membranous connexion with  each  other.   Great care
should be  taken not to occasion any laceration during the dis-
section.
   The substance of  the brain must be  carefully investigated, and
every deviation from  the  natural and  healthy  state observed.
Although this examination of the  brain  can throw no light upon
the question whether a  child has been born alive, yet it may aid
us materially in detecting the cause of its death.
   Having completed the dissection, the inferences to be drawn
from the  information  thus  obtained,  must be obvious.   They
have been so fully explained in the former  part  of  this chapter
as to render unnecessary any recapitulation.
               EXAMINATIONS AND REPORTS.
  Having finished the discussion of the  various points connected
with the  subject of infanticide, I shall  close this ■ part of it with 
INFANTICIDE.
439
the history of a few cases and reports.   They are all taken from
French authorities, and I have  selected them  not  merely with
the view of illustrating the doctrines previously advanced, but of
showing the  manner  in which criminal cases are  investigated
and reported upon,  on the  continent  of  Europe.   It is to  be
hoped  that a similar  mode  may ere long,  be  adopted  in this
country.

     1. Infanticide proved in  an infant that had not respired*
   The subject of this report was a new-born infant which had been found in
an uncultivated field the evening previously.  The inspection and report
were made by virtue of an ordinance of the agent  for the  Procureur du Roi.
   Examination. The cadaveric rigidity was still very marked,—death had
therefore taken place very recently.
   It was impossible to determine the weight for want of a balance.   Length,
fourteen inches, six  lines, Fr.   The middle of the body corresponding to six
lines above the umbilicus.  Bi-parietal diameter of the head, two inches six
lines;  occipito-frontal, three inches ;  occipito-mental, four inches.  Skin well
organised; very distinct from the membranes of the cord around the umbili-
cus.  Hairs about half an  inch long, but very numerous.  Total absence of
point of ossification  between  the condyles of the femur.  (This infant  had
not, therefore, attained the term of eight months of utero-gestation.)
   At the posterior arid upper part of the head, on the median line of the occi-
pital bone and in the course of a portion of the  parietal suture, a wound  ex.
isted, an inch and eight lines  long, having at its centre on one of the lips, a
 slight prominence, on the other lip a slight parallel depression, as if the wound
 had been made at two different times,  or as if the instrument had  changed
 its direction.  In the whole circumference of this wound, and in the subperi.
 cranian cellular tissue, an ecchymosis existed, which extended to the third of
 the superior surface of the head under the form of a bloody cap (calotte) ;
 the infiltrated blood  was coagulated.  Towards the  middle of the upper mar-
 gins of the left parietal bone, in the vicinity  of the superior  angle of the
 wound just described, there was a section of the margin of the parietal bone,
 with separation and elevation of one of the fragments of the section, which
 was seven lines in depth.   The longitudinal  sinus of the dura mater  was
 opened; blood was  effused  between the two lobes of the brain, as well as at
 the surface of the cerebellum.  Two contusions of the  cerebellum with  coa-
 gulated and infiltrated blood existed at the base of  that organ.   These were
 four lines long and two broad.  The two temporal  muscles were completely
 ecchymosed;  and the blood infiltrated into the substance of their fibres caused
 the temporal  aponeuroses to project.   These were the result of violence evi-
 dently perpetrated during life, and  which  it would have  been  impossible to
 produce if the child had been still in the womb.

   * This case is reported by M. Devergie, in the Annales d'Hygiene Publiquc, &c,
 May, 1837.  Translated by Prof. Dunglison, in his American Medical Library and
 Intelligencer for Dec, 1837. 
440
INFANTICIDE.
   A portion of the'cord, eight inches long, adhered to the umbilicus by means
 of the membranes and the vessels, wholly untouched.  This  portion of the
 cord, which  contained a  large quantity of the jelly of Wharton,  was sound,
 renitent, and presented at its free  extremity a clean section, as if it had been
 made with scissors; another portion of the cord,  separated from the rest, as
 regarded conformation, colour, volume, and consistence, was entirely like that
 attached to the umbilicus ; the two fine extremities were cut clean.
   The placenta, which was very fresh, was in proportion to the developement
 of the infant.  It had only an inch  and a half of cord attached to it.
   The skin was generally pale, as well as the thymus, the lungs, and the in-
 testines, which were contracted.  The cavities of the heart contained little
 blood.  The lungs were perfectly  sound, and did not appear to fill the cavity
 of the chest; their tissue was formed of a series of fleshy lobules, separated
 from each  other by cellular tissue;  no  air vesicles were perceptible.   The
 lungs when placed in water, with the heart, sank;  when placed alone in water
 they sank; when cut into portions, they also sank.  Each fragment compressed
 under water yielded scarcely  any blood from  its tissue,  and no air bubbles;
 after compression  it remained at the bottom of the liquid.  Meconium  was
 contained in  the  sigmoid flexure of the  colon and in the rectum ; the fora^
 men ovale  was open; the umbilical arteries and vein were widely open.
   Conclusion.—1. The infant subjected  to examination,  had not attained the
 end of the eighth month of  pregnancy.  2. It  proceeded  from a  recent
 accouchement, which  might have  occurred  in  the  night of  the ----, to
 the----.  3. The infant was born alive.   4.  It had not  respired.   5.  Death
 was the necessary result of the wounds that have been described; one of them
 had been effected by a cutting and perforating instrument, the other by blows.
 6. It is possible that after the  section of the cord there might have been a
 loss of blood, which might account for the exanguious state of the body.
   Such is  a satisfactory case of infanticide, established in  the case of a child
 that had not breathed and yet was alive.
 2.  Report proving infanticide, from violence applied to the head.*
   We, the undersigned, doctors of medicine and surgery, of the faculty of---*■
 inhabitants of the  town or parish of----<■, canton  of ——, arrondisement of
 ——, department of -^—, upon the requisition of----, made known to us by
 Mr. N. bailiff, went there this -=— day of the  month of —.—,  year----,
 hour —^-, with Messrs. N. N., in the house of .  .  , situated in the street
 of----, No.----1, story, -*—— room -^—, to visit there  the corpse of a child
 of the ■*—<- sex, which had been found in the morning under a heap of dirt, in
 the yard of the  said house, and to ascertain the cause of its death.
   Arrived  in the house and room  designated, they presented  to us the  said
 body, wrapped  in coarse rags of woollen  stuff much worn, and moth-eaten.
 After having stripped it, we observed that there was attached  to the  umbili-
cus, a portion of the umbilical cord, still fresh, without any ligature, and about
five inches  in length, of which  the open  extremity was  very visibly unequal
and fringed;  which convinced us that the cord had been broken or torn by
force.  The body was still covered over with the unctuous and whitish sub?
* Capuron's Medecine Legale, p. 494. 
INFANTICIDE.
441
stance that almost all children have at their birth; this substance was mixed,
in some places, principally on the head, shoulders, and buttocks, with dust'and
blood.
  To enable us to examine the body with care, we  had it washed and care-
fully dried.  We observed afterwards that it was large, fat, well  formed, ex-
empt from putrefaction and fetor. Its whole length was nearly twenty inches,
and its weight about seven pounds.   The  whole of the  surface of the trunk
was soft and of a pale colour, except on the back, where we remarked an ec-
chymosis or violet stain, unequally circumscribed and oblong,  about three and
a half inches in length, and two inches in  width, which did not extend beyond
the adipose tissue—of which we assured  ourselves by dissection.  The flesh
of the limbs was soft, and all the joints flexible; the left elbow and the thumb
of the corresponding hand slightly excoriated, as well as the  external part of
the knee, and the heel of the same  side.  The face was of a  livid colour, the
right cheek of a very deep brown, and deeply infiltrated with  blood, of which
we assured ourselves by two incisions;  the eyelid, the eye, the forehead and
the temple of the side, were ecchymosed and blackish.
   The skull was very soft on the right side, changed its form  by the slightest
pressure, and sank down when it was placed on the opposite side.  The skin
on the temporal region of the right side, from the top to the neck, and from the
forehead to the occiput,  was brownish; and through this skin  could be distin-
guished, by the  fingers, the fluctuation of a fluid which seemed to have sepa-
rated it from the bones.  We convinced ourselves, by means  of an  incision,
that it was an effusion of blood, partly coagulated, which extended over all the
parietal bone, and upon the squamous portion of the temporal bone.  The first
of these two bones, in its middle and superior part, was entirely detached from
the neighbouring bones, as well as from the pericranium,  and from the  dura
mater.  It was also fractured in two places and in two ways, viz. directly from
the third superior of its anterior edge to the corresponding point of its posterior
edge, and  obliquely from the parietal swelling to the temporal bone.  This
last bone was equally broken in its superior edge, and its articulation with the
lower jaw was so altered that we could neither distinguish its form or struc-
ture.
   The other parts of the body presented no appearance of lesion  externally.
We observed, only on the left  side of  the  chest, at a half inch from the ster-
num, between the second and third rib, a small round wound, half a line  in
diameter.   A similar wound existed on the left side of the neck and immedi-
ately above the shoulder.   But neither penetrated beyond the skin, as we
proved by  dissection.
   On opening  the head, we found the right lobe of the brain covered with
blood, and completely disorganized; it had no  longer its natural form, struc-
ture or consistence.  We found also at the basis of the skull, about two ounces
of serum.
   On opening the chest, we perceived no defect of conformation in the organs;
the heart and  the large  vessels were  gorged with blood, the lungs developed
and of a rose colour.  After having detached,  wiped and weighed these last
organs, we placed them  in water; at first  entire, afterwards by pieces, which
we pressed hard in a linen, and they swam equally in both cases. 
442
INFANTICIDE.
  On opening the abdomen, the viscera presented no alteration nor deformity;
the* large intestine was filled with meconium, and the bladder contained a little
urine.
  After all these observations, we conclude and declare that the child, whose
body we examined, was of full term, strong and well made; which is attested
by its volume, weight,  dimensions, and its exterior conformation.
  That it was bom alive, which is proved by the ecchymosis and infiltration
of the face, as well as by the effusion of blood below the integuments of the
skull.
  That it has completely respired, as we proved in examining the state of the
lungs, and in placing them in water,  when they completely floated.
  That it died shortly after its birth; which is also proved by the adhesion of
a portion of the umbilical cord to the  umbilicus; by the unctuous and whitish
substance with which the skin was covered, and by the meconium with which
the large intestine was filled.
  That it had not been long dead; which is proved by the absence of fetor and
of every mark of putrefaction;  by the  softness and freshness of the flesh, and
by the flexibility of the joints.
  That the death of the child could not be the effect, either of a haemorrhage
by the umbilical cord; which is proved by the engorgement of the heart and
of the large  vessels;—nor of suffocation; which is proved  by the absence of
any alteration in the chest and lungs;—nor of any natural or ordinary cause,
which is  proved by  the marks of violence impressed on the head  and  face,
which attest, on the contrary, a violent death;—nor of a fall on the skull, where
we observed  fractures of which the situation, the form, the number and direc-
tion, prevent us attributing it to this cause.
  Finally, that the death of this child  is the effect of blows or external vio-
lence, given  a short time after its birth, on the right side of  the head and of
the face; the only cause to which we could attribute the fractures of the skull,
the effusion of blood in this cavity and  the disorganization of the. brain.
   In testimony of which,  we have drawn  up the  present report, which we
closed at the house of------in presence of——, and which we certify to
be correct.
                           Signed.

3.  Report on a case of infanticide in consequence of omitting to  tie
                          the umbilical cord.*
   I, the undersigned, doctor in medicine, and physician of the  Hospital of Tre-
voux,  report, that in consequence of a request from the magistrate to go to the
commune of------, to visit the body  of a new-born child, which the mayor
of  that commune declared he would not permit to be buried, until the cause
of  its death  had been proved, I repaired to said commune on the 5th of No-
vember, 1811, and made inquiries of the female in whose possession I found
the body of the child.  In reply to my interrogatories, she stated that she had
* Manuel de Medecine Legale, par Briand, p. 314. 
INFANTICIDE.
443
received the said child the day before, at five leagues distance from that place,
in a clandestine manner from M.  *  *  * enveloped in a strong covering,
and with an order to depart instantly.  That during her journey, not hearing
it cry, she put it to the breast;  she found, however, that it scarcely breathed
and would  not suck, and on her arrival with  it, in spite of all her*care, the
child was dead.  On examining the child's clothes, she found them all bloody,
and the blood appeared to come from the umbilical cord.  After this informa-
tion, I  proceeded to examine the body of the child, and found it to be a male,
seventeen inches long and  only four pounds in weight, having  its nails and
hair like a child at the full time.   The skin, both of the face and  of the whole
body was of the colour of white wax—the lips were of the same colour, instead
of being rosy—the limbs were  flaccid and pliable, and  the lower part of the
belly very projecting.  On examining carefully the whole surface of the body
and all  the external  cavities, no trace of violence of any kind could be disco-
vered.   The state of the umbilical cord, however, struck me particularly.  It
had a ligature upon it, but so loose that the handle of a bistoury could be run
between the cord and the ligature.   On measuring the cord I  found it cut off
clean at three inches from the umbilicus.   I now proceeded to open the chest.
The lungs  and  heart were such as they ordinarily are  in children who have
respired, but of a very pale colour.  Having detached the viscerajfor the pur-
pose of making experiments on the lungs, the following things were observed:
1. In separating the heart and lungs from the chest, not a single drop of blood
was perceived, nor was there any during the dissection.  2.  The lungs pressed
between the hands and cut with a knife, crepitated throughout  their  whole
extent.  They were also perfectly  healthy.  3. On putting  the heart and
lungs connected together in a bucket of  water at the temperature of 10°
Reaumur, the whole floated perfectly.  4. The quantity of blood found  in the
heart and large blood-vessels after  having opened them, was only two ounces.
The cavity of the abdomen and its contents were then examined, but presented
nothing peculiar, with this exception, that the liver was much paler than com-
mon, and the large vessels dissected and followed up even to the extremity of
the cord, contained not a drop of blood.  The urinary bladder and the intes-
tines were found empty ; the first  of urine and the second of meconium.
   From these various observations, I draw the following conclusions : 1. That
the child in question was born at the full term, alive,  and in a sound  state.
2. That it must have performed a  great number of full  and complete respira-
tions, and that it must  have lived several hours.   3. That it  did not receive
any violence, properly so called, such as  blows, contusions, &c, which could
have caused its death.  4. That its death was the result of haemorrhage from
the umbilical  cord, and that it is  probable that the flat string which loosely
surrounded the extremity of the cord, was placed there as a ligature, after life
had already been entirely extinguished by the haemorrhage.

               4. Report of a case of recent delivery.*
   We the undersigned, professors  of the faculty of medicine, &c.----, at the
request of the commissary of police of the division of Luxembourg, went with

              * Considerations sur PInfanticide, par Lecieux, p. 68. 
444
INFANTICIDE.
him this day, (Sunday,) 1809, at 10 o'clock in the morning, to a house occu-
pied by Me. Catharine Tillard, for the purpose of visiting her daughter Na-
nette Tillard, who was supposed to have been delivered of a child on Thursday
morning the 9th of this month, and to give evidence concerning her situation.
  We found the said Nanette Tillard in bed, and from the examination which
she underwent, we  made the following observations.
  1. Her face was somewhat pale ; her eye heavy,  and slightly discoloured.
  2. Her pulse was febrile, full  and fluctuating; the skin, was soft and  plia-
ble, a little heated, and with a moisture on it, which had the  acid odour which
is peculiar to women in childbed.
  3. The  breasts were tumid and  painful; milk had already issued from the
nipple, as we convinced ourselves by examining the stains on the linen of the
patient: moreover,  in squeezing the breast gently, we expressed a milky fluid
well marked by  its  colour and consistence.
  4. The abdomen  was soft; the skin was loose, wrinkled, covered with little
shining reddish,  whitish lines, crossing each other in different directions, run-
ning chiefly from the region of the groins and of the pubis  to the umbilicus;
a brownish line  was also visible, running from  the pubis to the  umbilicus,
and we perceived that the median line of. the abdominal  muscles  had expe-
rienced considerable  extension,  as was ascertained by the irregularity of its
course in running the end of the finger over it, especially on the side towards
the umbilical region;  finally, through the parietes of the abdomen, we felt the
body of the womb, which was voluminous, hard and round, at a little distance
from the umbilicus, and contracted itself very  distinctly under the hand while
pressing it.
  5. A whitish fluid, mixed with blood, issued from the genital organs, which
had the colour and  the strong odour peculiar  to  parturition, as we convinced
ourselves by examining the linen under the patient.
  6. The genital organs were slightly tumefied,  and very much dilated  in
their whole  extent; the orifice of the womb was relaxed and soft;  it  gave
passage to the bloody whitish fluid just mentioned; it  was  so pliable, and  so
much dilated, that we could easily have introduced  several fingers.
  7. Finally,  we found by examination that  the pelvis was large, wide, and
well constructed for an easy delivery.
  From these different observations, we affirm,
  1. That Nanette Tillard had been delivered three or four days at the far-
thest ;  which is satisfactorily proved by the condition of the breasts, the secre-
tion of the milk in  them, the smell of the perspiration, the  nature of the dis-
charge from the genital organs, the state of the  womb, of the abdomen, and of
the genital organs.
  2. That no disease  or affection other than delivery, could  produce all these
effects combined, which we have observed.
  3. That from  the formation of the pelvis, Nanette Tillard could be delivered
easily  and promptly. 
INFANTICIDE.
445
                       PART  III.

Of infanticide in its relations to medical police, including a history
  of legislation  on the  subject, and an examination of the effects
  of foundling hospitals.

  Infanticide, which at one period prevailed so universally and
without restraint  among the most polished nations of the world,
is now considered, in all enlightened countries, as a crime of the
deepest dye.  Mankind, on this subject, have vibrated from one
extreme to the other; and it  is not to be questioned, but that  in
modern times, many an innocent female  has been sacrificed  to
suspicion  and prejudice.  The principle, however, which now
guides the moral judgment of society on this subject, is undoubt-
edly just; for it is a crime which presupposes the  obliteration  of
those feelings which human nature ought to be most proud of,
and which, if countenanced, or but  slightly punished, must lead
to the most dreadful consequences.
  That a young female of character and reputable connexions,
may be betrayed  by the arts of  a  base seducer,  and when re-
duced to a state of pregnancy, to avoid the disgrace which must
otherwise be  her lot, may stifle the birth in the womb, or after it
is born, in a state of frenzy, imbrue her hands in her  infant's
blood, in the expectation of throwing the mantle of oblivion over
her crime, is  a  case which too frequently  occurs;  but even such
a case, with all its palliations, cannot be considered as less than
wilful murder, and as such demands exemplary punishment.
  It is  not, however,  enough  for a wise legislation, merely  to
punish crimes after  they are perpetrated; it should  also adopt
the most effectual means of preventing their commission alto-
gether.  In the  language of a philosopher, it may be said, that
" the punishment of a crime cannot be just, if the  laws have not
endeavoured  to  prevent that  crime by the best  means  which
times and circumstances would allow."*
  With regard to infanticide, it is impossible  to suggest  any
method of arresting it  completely, unless  there be a total refor-
mation of that  corruption of manners which lies at the  root  of
the  evil.  Next to this, the dread  of severe punishment is the

  * Beccaria's Essay on Crimes and Punishments, p. 104.  New York edition.
      vol. n.                   38 
446
INFANTICIDE.
most effectual preventive.  Foundling hospitals were  also  esta-
blished with this intent; whether they have this tendency, I shall
consider presently, after having enumerated the laws enacted by
different nations for the purpose of preventing and punishing this
crime.
         1.  Laws against criminal abortion or foeticide.
  Although the Jewish  code specified  nothing  relative to  cri-
minal abortion, or to the murder of the new-born  infant, yet it
decreed, that if a pregnant woman should be  accidentally injured
in a fray between two men, so that she proved abortive, without
any injury to  her  own person, the punishment was a fine, such
" as the judges might determine."   If the woman received  any
personal damage, the law of retaliation was then to operate—an
eye for  an eye, and a tooth for a tooth, &c.   If  she lost her life,
death was the punishment.*
  After the  Romans began to consider the procuring of abortion
as a crime, they denounced  punishments against the  authors of
it.  These, as has been  already noticed when  considering  the
animation of the fcetus, varied with the  changes that took place
in the philosophical sentiments of the nation.   In the year 692,
a council, convened in the  palace of the  emperor at Constanti-
nople, ordained that it should be punished with the same severity
as homicide.f
  In France, the Roman  law was adopted, and practised upon
until the revolution.    Their parliaments frequently condemned
midwives to be hanged, for procuring abortion in girls ; and phy-
sicians,  surgeons, and others guilty of this crime, were subjected
to the same punishment.J  The French code  of 1791, commuted
the  punishment to twenty years' imprisonment in chains.   The
penal  code of the empire, adopted by Napoleon in 1810, contains
the  following provisions against this crime: "  Every person who,
by means of aliments, beverages, medicines, acts of violence, or
by  any  other  means, shall  procure  the untimely delivery of a
pregnant woman, although with  her consent, shall be sentenced
to confinement, (reclusion.")
  - The same punishment shall be inflicted upon the mother who
shall make use of such means, if they are followed by abortion."

  * Exodus, chap. xxi. v. 22, 23.            t Fodere, vol. 4, p.  383.
  X Fodere, vol. 4, p. 348. 
INFANTICIDE.
447
  •; Physicians,  surgeons,  apothecaries, and other officers of
health, who shall  prescribe or administer such means of abor-
tion, shall, if a miscarriage ensue, be sentenced to hard labour for
a limited time."*
  The criminal code of Austria, established in 1787, by Joseph
II. in which the punishment of death is totally abolished, decrees,
that  a woman with child, using means to procure abortion, shall
be punished with imprisonment for not less than fifteen, nor more
than thirty years, and condemnation to the public works ; aug-
mented, when married."
  " Accomplices advising  and recommending abortion—impri-
sonment not less than one month, nor more than five years, and
condemnation to the public works.   The  punishment  to be in-
creased, when the accomplice is the father of the infant."f
  " The  laws of Germany punish with from two to six years
imprisonment, a woman (or her aiders, &C.) who, by potions or
other means,  shall have wilfully produced  abortion, within  the
first  thirty weeks from the time of conception ; and  the- penalty
is protracted to  eight, or at  the  utmost to ten years, when such
a crime has been committed within the last month of pregnancy.
  The laws of Bavaria enact similar measures.
  In the Italian code it is established, " that if a woman has used
means, with  the intent to produce  abortion, and this  shall not
have taken place,  she is  to be punished by imprisonment, for a
period of from six months to one year ; but if abortion has been
the consequence of such means, the imprisonment is to be of from
one to five year's  duration.  The same penalties, but with  ex-
acerbations, are enacted  against the  father of the fcetus, if he
has been an accomplice in the crime.  Finally,  the delinquent,
who, against the will of the mother shall have caused abortion, or
have made an attempt to cause her abortion, is to be punished by
from one  to five years' severe imprisonment; and  if the life of
the mother has thereby been brought into danger, or her health in-
jured, the duration of the penalty shall be from five to ten years.J
  The English law is thus stated by Blackstone.  " If a woman
is  quick with child,' and, by a potion or otherwise, killeth  it in
her womb, or if any one beat her, whereby the child dieth in her

  * Article 317.   For the translation of the whole code, see Walsh's American Re-
view,  vol. 2.
  t Treatise on the Police of London, by P. Colquhoun, LL. D. 7th edition, p. 656
  i London Medical and Physical Journal, vol. 43, p. 96. 
448
INFANTICIDE.
body, and she is delivered of a dead child, this though not mur-
der, was  by the ancient law homicide, or  manslaughter.   But
the modern law doth not look upon this offence in quite so atro-
cious a light, but merely as a heinous  misdemeanour."*  " But,
if the child be born  alive, and  afterwards die in consequence of
the potion or beating, it will be murder."-\  By a subsequent law,
enacted in 1803,  called  the Ellenborough act,  it was ordained,
that " if any person shall wilfully and maliciously administer to,
or cause to be administered to, or take any medicine,  drug, or
other substance or thing whatsoever, or use, or cause to be used
or employed,  any  instrument, &c, with intent  to procure  the
miscarriage of any  woman,  not being,  or not being proved to be
quick with child at the time of committing  such  thing,  or using
such means, then, and in every such case, the person so offending,
their counsellors, aiders and abettors,  shall be and are  declared
guilty of felony, and shall be liable to be fined, imprisoned, set in
and upon the pillory, publicly or privately whipped, or transported
beyond-the sea for any term not exceeding fourteen years."J The
same act ordains, that administering medicines, drugs, &c, with
the intent to procure abortion after quickening,  shall be punish-
able with death.
  On  examining  these  provisions, it will  be seen  that there
was a striking omission in the English law, against the procuring
of abortion, after a woman is quick with child.  The statute pre-
scribed death as the punishment for administering any noxious
or destructive substance, with an intent to destroy the child, and
yet inflicted no punishment when the same was actually procured
by  mechanical violence.  This defect of the statute was illustra-
ted in a trial (already alluded to in a previous part of this essay)
which took place in England, in 1808.   One  Pizzy, a farrier, and
another person, (a female,) were indicted for administering a nox-
ious and destructive substance to Ann Cheney, with intent to pro-
duce miscarriage.   It was proved by the deposition of Cheney
herself,  that  repeatedly during  her pregnancy she  had taken
medicines from the accused without producing  any effect,  and
finally, that a few days before her delivery,  he took her up stairs
alone, and introduced an instrument into her body.  This was
repeated, as the first attempt had not succeeded, and accordingly
  * Blackstone's Commentaries, vol. 1, p. 129.      t Ibid, Note by Christian.
  X Statutes at Large, 43 George III. cap. 28. Male's Medical Jurisprudence, p. 114. 
INFANTICIDE.
449
after the last one, she had never felt the  child move.   The jury,
however, acquitted the prisoners, expressing themselves not fully
satisfied with the evidence to convict.  On the trial, the counsel
for the prisoner even objected to receiving that part of the evi-
dence which  related to his manual operations, as not relevant to
the administration of the medicines,  which alone constituted the
capital  crime; and  the criminal was  tried for giving  medicine
which had no effect, while  the actual perpetration of the crime
by mechanical violence, could only be  noticed in court as proving
the intention with  which the medicines were given.*   By a late
statute, however,  (9  George IV. chap. 31, passed 27th June,
1828.) and entitled "An act for consolidating and amending the
statutes in England relative to offences against the person," this
omission is provided for, and the whole law is recast.   It now
stands thus, " If any person, with intent to procure the miscar-
riage of any woman then being quick  with child, unlawfully and
maliciously shall administer to her,  or cause to be taken by her
any poison or other noxious thing, or shall use  any instrument or
other means whatever with  the  like  intent, every such offender
and every person  counselling, aiding or abetting such  offender.
shall be guilty of felony and shall suffer death as a felon;  and if any
person with intent to procure the miscarriage of any woman, not
being, or not being proved to be, then  quick with child, unlawfully
 and maliciously shall  administer to her, or cause to be taken by
 her, any medicine or other thing, or shall  use any instrument or
 other  means  whatever with the like  intent, every such offender
 and every person counselling, aiding, or abetting such offender,
 shall be guilty of felony, and  being convicted thereof, shall be
 liable to be  transported for any term not exceeding fourteen
 years, nor less than seven years,  or  to be  imprisoned, with  or
 without hard labour, in the common  jail or house of correction,
 for  any term not  exceeding three years, and if a male,  to be
 once, twice,  or thrice, publicly  or  privately whipped, (if the
 court shall so think fit,) in addition to such imprisonment."
   The Law of Scotland on this  subject, appears to differ.  Mr.
 Hume, in his Commentaries on the Criminal Law of Scotland,
 says, that all procuring of abortion, or destruction of future birth,
 whether quick or  not, is excluded from the idea of murder, be-

           * Edinburgh Medical and Surgicul Journal, vol. 6, p. 244.
                               38* 
450
INFANTICIDE.
cause, though it  be quick, still it  is only pars viscerum matris,
and not a separate being of which it can with certainty be said,
whether it would have become a quick birth or not.  Since Mr.
Hume wrote, a case occurred  in  the  High Court of Justiciary,
where the subject was discussed.  A  surgeon and  midwife, in-
dicted for the violent procuring of abortion, were convicted and
sent to Botany Bay for fourteen years.*
  Mr. Alison, one of the latest writers on Scotch law, states it
to be as follows: " If a  person gives a potion  to  a woman to
procure abortion, and she die in consequence,  this will be murder
in the person giving,  if the potion given was of that  powerful
kind,  which  evidently  puts  the woman's life  at  hazard."   And
again—" administering drugs  to procure abortion is an offence
at common law, and that equally whether  the desired effects be
produced or not."  Thus  cases  occurred in 1806 and  1823,
where persons were sentenced to  transportation for  using instru-
ments to procure it; and in 1824,  another was condemned  to the
same  punishment, for  administering arsenic with a  like design.f
  In  the  state  of New York, the following  are at  present the
laws.   The first  quoted have  reference to the death of the mo-
ther, or the  unborn quick  child;  the last, to the procuring  of
abortion.
  " Every person who shall administer to  any woman  pregnant
with  a quick child, any medicine, drug, or substance whatever,
or shall use or employ any instrument or other  means, with in-
tent thereby to destroy such child, unless  the same shall  have
been necessary to preserve the life of  such mother, or shall have
been advised by two physicians to be necessary for such purpose,
shall,  in case the death of such child or of such mother be thereby
produced, be deemed guilty of manslaughter in the second degree.
  " The wilful killing of an unborn quick child, by any injury to
the mother of such child, which would be murder if it resulted
in the death  of  such  mother, shall be deemed manslaughter in
the first degree."J
  The  punishment for manslaughter,  first degree, is  imprison-
ment  in the State prison for a  term  not less than ten years; for
the second degree, not less than four  and not more than seven
years.

  * Edinburgh Medical and Surgical Journal, vol. 6, p. 249.
  t Alison's Principles of the Criminal Law of Scotland, p. 52  and 628.
  \ Revised Statutes, vol. 2, p. 661. Session Laws of 1830, p. 401. 
INFANTICIDE.                     451
  '• Every person who shall wilfully administer to any pregnant
woman, any  medicine, drug, substance or  thing  whatever, or
shall  use  or  employ any instrument, or other means whatever,
with intent thereby to procure the miscarriage of such woman,
unless the same shall have been  necessary to preserve the life of
such woman, or shall have been advised by two physicians to be
necessary for that purpose, shall, on  conviction, be punished by
imprisonment in a county jail, not more than one year, or a fine
not more than five hundred dollars,  or both."*
  In the state of Ohio, the law against abortion is the following:
" If any physician or other person,  shall administer to any preg-
nant woman  any drug, &c, or shall use any instrument or other
means whatever, with intent thereby  to procure the miscarriage
of  such woman, unless  the  same  shall have been necessary to
preserve the  life of such woman, or shall have been advised by
two physicians to be necessary for that purpose, he shall, on  con-
viction, be punished by imprisonment for not more than one year,
or by fine not exceeding five hundred dollars, or by both.  If the
woman be pregnant with a quick child, such person shall, in  case
of the death  of the child or the mother by such means, be impri-
soned in  the penitentiary, not more than seven years, nor  less
than  one year."f
   In  the state of Connecticut, the law enacts, that for  administer-
ing any noxious or  destructive substance for the purpose of  pro-
curing the miscarriage of a woman quick with child,  the punish-
ment, on conviction, shall be imprisonment in  Newgate prison
during his or her natural life, or for such other term as the court
having cognizance of the offence shall determine. J
   In  Missouri, the administration of poison with an intent to pro-
cure  abortion, is punished by imprisonment for  a term not ex-
ceeding seven  years, and  a fine not exceeding  three  thousand
dollars.^
       2. Laws against the murder of the new-born infant.
   These, in  almost all civilized  countries, are capital.  Previous
to  the fourth century, the edicts of the Roman emperors  against
 this crime were partial and ineffectual; towards  the latter part

   * Revised Statutes, vol. 2, p. 694.        t American Jurist, vol.  13, p. 211.
   \ Revised Laws of Connecticut, p. 152.    § Laws of Missouri, 1825, p. 283. 
452
INFANTICIDE.
of that century, however, it was completely prohibited.  The fol-
lowing is the article relating to it in the Cod. Justin, lib. viii. tit.
52, de infant expositis,  1,2: " Unusquisque sobolem suam nu-
triat.   Quod si exponendam  putaverit, animadversioni quae  con-
stituta est, subjacebit."*
   The following  statement of the laws against infanticide and
abortion in the middle ages, is given in the Cabinet  Cyclopedia
of Dr. Lardner.
   Among the Germanic  nations of the middle ages, "death was
the penalty of infanticide, generally, even at the time of birth; or
if the judge spared the midwife, she lost  her eyes."  Among the
Bavarians, there was a singular provision against abortion: " the
pecuniary mulct was  not only to be paid  annually by the  man
who caused  the abortion, but annually by his descendants to the
seventh generation; for as the child or fcetus had not been  bap-
tized, and as its doom was, consequently, everlasting fire, no or-
dinary penalty should meet such a crime."f  Among the Lom-
bards, " in the twelfth century, we find the Lex  Pompeia fully in
force.J  Infanticide was  also terribly  visited on the wretched
mother, who was buried alive, and a stake thrust  through her
body.   Subsequently we find some changes in the mode of  pun-
ishment, as regarded both  parricide and infanticide;  sometimes
the culprits were dragged by red-hot forceps to  the place  of exe-
cution ; but the  unnatural  mother, even if she  were only guilty
of producing abortion, was often sewed in a sack, and  thrown
into a river.   In Saxony, even at a late period, a viper, monkey
and dog were sewed in the same sack; and at  a later  period,
too, in Siberia and  Lusatia, the living  grave and stake wrere in
use."§
   The emperor Charles V. condemned the mother to death only
in cases where it could be proved that  the child had been  born
alive.||  The Caroline code,  {Constitutio Carolina?) in such cases
ordained,  that the guilty person should  be tied  in a bag with  a
live cock  and a cat, and thrown into a river.TI
   In  1556,  Henry  II. of  France, made a law condemning to
death  every woman  convicted of having concealed her preg-

  * Beckman's History of Inventions, vol. 4, p. 437.
  t Dunham's Europe in the Middle Ages, (Lardner, No. 49,) vol. 2, p. 145.
  X Cod. Justin, 1, 9, pr. a. ad. Leg. Pomp, de Par.    § Dunham, vol. 2, p. 146.
  || Fodere, vol. 4, p. 306.         T Male, 2d edition, p. 271. 
INFANTICIDE.
453
 nancy, and put to death  a bastard child.  This  law prevailed
 until the year 1791,* when every thing relating  to the  conceal-
 ment of pregnancy was repealed, and death  declared to be the
 punishment of the murder of the child.
   The penal  code of the French  empire  enacted, that " every
 person guilty of assassination, parricide, infanticide, or poisoning,
 shall suffer death."—Art. 302.
   Other articles provide against the exposure  and abandonment
 of infants.  " Those who shall expose and abandon in a  solitary
 place, a child  under  seven years of  age,  and those who may
 order it to be  exposed, shall, on that account alone, if such order
 be executed, be imprisoned for a term not less than six  months,
 and not more than  two  years, and  fined  from sixteen to two
 hundred francs."—Art. 349.
   And " if, in consequence of such  exposition or  abandonment,
 the child shall be mutilated or crippled, the act shall be considered
 and punished as in the case of wounds voluntarily inflicted; and
 if the consequence be death, it shall be considered and punished
 as murder."—Art. 351.f
   The Austrian law  provides, that  " exposing  a living infant, in
 order to abandon it to danger and  death, or to leave its deliver-
 ance to chance, whether the infant so exposed suffers death or
 not, shall be punished by imprisonment for not less than eight,
 nor more than twelve years; to be increased under circumstances
 of aggravation."!
   Although the Chinese  have no law prohibiting the exposure of
 children, yet they inflict a slight punishment for the wanton mur-
 der of them.  The  following is  the  law on  that subject: " If a
 father, mother, paternal  grandfather or  grandmother, chastises
 a disobedient child in a severe and uncustomary manner, so that
 he or she dies, the party so offending shall be punished with one
 hundred blows.§
   The English law on this subject has, within a few years, been
 materially changed.
   By the Stat. 21, Jac. I. c. 27, it is enacted, that " if any woman

  * Fodere, vol. 4, p. 365.  t American review, vol. 2, p. 396. X Colquhoun, p. 66.
  § La Tsing Leu Lee; being the fundamental laws, and a selection from the sup-
plementary statutes of the penal code of China.  By Sir George Staunton, F. R. S.
(Quarterly Review, vol. 3, p. 312, 13.) 
454
INFANTICIDE.
be  delivered of any issue of her body, which being  born alive.
should by the laws of this realm be a bastard ; and that she en-
deavour privately, either by drowning or secret  burying thereof,
or  any other way, either by herself or  the procuring of others,
so to conceal the death thereof, as that it may not come to light
whether it were born alive or not, but be concealed : in every such
case, the  said  mother so offending, shall  suffer death as in the
case of  murder, except she can  pro/e by  one witness at  the
least, that the  child whose  death  was by  her so intended  to be
concealed, was born dead."*
  Upon  this statute,  Blackstone  remarks,  " This law,  which
savours pretty  strongly of severity, in making the  concealment
of the  death almost conclusive evidence of the child  being mur-
dered  by the mother, is, nevertheless, to be also met  with in the
criminal codes of many other  nations of Europe, as the Danes,
the Swedes,  and the French."\
  This cruel law has since been mitigated.   In  1803, an act was
passed in that country, which decrees, that  " women tried for the
murder of bastard children, are to be tried by the same rules of evi-
dence and presumption as by law are allowed to take place in other
trials of murder: if acquitted, and it shall  appear on evidence
that the prisoner was delivered of a child, which by  law would,
if born alive, be a bastard, and that  she did, by secret burying
or otherwise, endeavour to  conceal the birth thereof, thereupon
it shall be lawful for such court, before which such prisoner shall
have been tried, to  adjudge, that such person shall be committed
to the  common gaol, or house of correction, for  any time not ex-
ceeding two years."
  The English law, according to the 9 George IV.  chap.  31,
stands at present thus—
  " If  any woman  shall be delivered of  a  child, and shall by
secret  burying  or otherwise disposing of  the dead body of the
said child, endeavour  to conceal the birth thereof,  every such
offender shall be guilty of a misdemeanour, and  shall  be liable to
be  imprisoned, with or without hard labour,  in the common gaol
or house of correction, for any term not exceeding  two years;
and it  shall  not be necessary to prove whether the child died be-

  *  East's Crown Law, vol. 1, p. 228.  t Blackstone's Commentaries, vol. 4,198. 
INFANTICIDE.
455
fore, at, or after its birth, provided, that if any woman  tried for
the murder of her child shall be acquitted  thereof,  it shall be
lawful for the jury to find, in case it shall so appear in evidence,
that  she  was  delivered of a child, and  that  she did, by secret
burying or otherwise disposing of the  dead body of  such child,
endeavour to conceal the birth thereof, and thereupon, the court
may pass such sentence, as if she had been convicted upon an
indictment  for the concealment of the birth."
   In Scotland, " if a woman conceal  her pregnancy during the
whole  period, and shall not call for, or make use of  help or as-
sistance in  the birth, and if the child shall be  found dead or  be a
missing, she shall be subject to two years' imprisonment."*
   In the  state of New York, we have no particular law  concern-
ing this crime, and as the English statutes are not in  force, all
trials for infanticide must of course be conducted according to
the common law, and accessary circumstances can only be  con-
sidered as proving the intent.
   In Massachusetts, the mere concealment of a bastard child is
punished with a fine  not exceeding £50.  For concealing the
death, whether the child have  been murdered or not, the mother
is  punished by being set  on a gallows with  a rope  about her
neck, for the space of one hour, and is further bound to  her good
behaviour  at the discretion of the court.   If convicted  of the
wilful murder of the  infant, the crime is murder, and death the
punishment.f
   In Vermont, a law was passed in 1797, punishing with death
the murder or concealment of a bastard, if it came to  its death
by the neglect, violence, or procurement of the mother.   This
has been repealed, and in  the revised laws of that state  it is
enacted, that if a woman  be  privately delivered of  a bastard,
and it be found  dead, and  if there be presumptive evidence of
neglect or violence on the  part of the mother, the  punishment
shall be a fine not exceeding five hundred dollars, and imprison-
ment not over two years;  one or both at  the discretion  of the
court.J
   In Connecticut, the  law determines,  that if a woman conceal
her pregnancy, and be delivered secretly of a bastard,  she  shall

  * Alison's Principles of the Criminal Law of Scotland, p. 151.
  t Laws of Massachusetts, 1807, vol. 1, p. 222.
  t Laws of Vermont, 1808, vol. l,p. 349. 
456
INFANTICIDE.
be punished by a fine of not more than one hundred and fifty dol-
lars, or imprisonment not over three months.   For concealing
the death. of a bastard, so that it may not be  known whether it
was born alive or not, or whether it was murdered or not, she is
set on a gallows with a rope about  her neck for one  hour, and
imprisoned for not more than one year.*
   In New Jersey, the concealment of pregnancy, and delivery in
secret, is considered a misdemeanour, and punished by fine and
imprisonment.   Concealing the death  of the  bastard,  is  also
punished by fine and imprisonment.!
   In New Hampshire, the concealment of the death of a bastard
child, is made, a crime, and the punishment directed, is imprison-
ment for not more than two years, or a fine not exceeding one
thousand dollars.!
   In Pennsylvania, by the act passed in 1781, the concealment
of the death of a bastard child, was conclusive evidence to con-
vict the mother.   " And all and every person, who shall counsel,
advise, or direct, such woman to kill the child she goes with, and
after she is  delivered  of such  child, she kills it, every person so
advising and directing, shall be deemed  accessary to such mur-
der, and shall have  the  same punishment as the principal shall
have."   This law has since undergone the following alterations.
By the act of 5th April, 1790, the  constrained  presumption that
the child, whose death is concealed, was, therefore, murdered by
the mother,  shall not be sufficient evidence  to convict the party
indicted, without  probable  presumptive  proof  is given that  the
child was born  alive, and that  of the 22d of  March, 1794, de-
clares, "the concealment of the death  of any such child, shall
not be conclusive evidence to convict the party indicted of the
murder  of her  child, unless the  circumstances attending it be
such as shall satisfy the minds of the jury that she did wilfully
and maliciously destroy and take away the life of such child."§
   In Rhode  Island, the law is very similar  to  that  in Pennsyl-
vania.||
  * Revised Laws, 1821, p. 152.
  f Digest of the Laws of New Jersey, 1833, p. 224, 225.
  X Digest of the Laws of New Hampshire, 1830, p. 149.
  § Remarks on Infanticide by R. E. Griffith, M. D. Chapman's Journal, new se-
ries, vol. 4, p. 260.  Laws of Pennsylvania, 1803, vol. 5, p. 6. Addison's Reports,
p. 1.  Pennsylvania v. Susannah M'Kee.
  || Laws of Rhode Island, 1798, p. 597. 
INFANTICIDE.
457
  In Delaware, by a law passed in 1719, the concealment of the
death of a bastard  child is made a capital offence, except the
mother can make proof by one witness at least, that the  child
whose death was by her so intended to be concealed, was  born
dead.  This, however, was repealed, and I cannot find at present
any statute on this subject in the code of that state.*
  In Georgia and Illinois, the concealment of the death of an ille-
gitimate child, is punished with imprisonment.f
  In Michigan, the laws as to the concealment of pregnancy, the
delivery of the bastard child, and its death, are the same as  those
in New Jersey-!

                    3. Foundling Hospitals.
  Foundling hospitals, by providing for the support of illegitimate
children, are generally considered as  a  great means of  prevent-
ing child-murder.   The object  of these institutions is no  doubt
commendable, but it is certain that they are not productive  of
that 'decided utility which is usually attributed to them.   It  is not
to be denied that some good results from them, but it is by no
means commensurate with the abuses  to which  they give rise.
That  they encourage illicit commerce  between  the sexes—dis-
countenance marriage—increase the number of illegitimate chil-
dren, and consequently the number of exposures—are facts con-
firmed by the history of almost  every foundling hospital that has
been established.  Mr. Malthus states facts of this kind with re-
gard to the foundling hospital in St. Petersburgh, (Russia.)   " To
have a child," says he, **  was considered as  one of  the most tri-
fling faults a girl could commit.  An English merchant at St. Pe-
tersburgh told me, that a Russian girl living in his family,  under
a mistress who was considered  as very strict, had sent six chil-
dren to the foundling hospital,  without  the  loss of her  place."§
It is not necessary to enter into  a laboured course of reasoning,
to prove that the effects of these establishments are decidedly in-
jurious to the moral character of a people.  It is  a position suffi-
ciently self-evident, and  as Malthus  justly remarks, " an  occa-
 sional child-murder, from false shame,  is saved  at  a very high

  * Laws of Delaware, 1797, vol. 1, p. 67, vol. 2, p. 670.
  t Digest of the Laws of Georgia, 1822, p. 349. Revised Laws of Illinois, 1833, p.
 177.                        X Laws of Michigan, 1820, p. 194.
  § Malthus on Population, vol. 1, p. 368—9.
      vol. i.                   39   „ 
458
INFANTICIDE.
price, if it can only be done by the sacrifice of some of the best
and most useful feelings of the human heart in a great part of the
nation."*
  In the language of the Edinburgh  Review, " such an establish-
ment (a foundling hospital) may safely be termed a  great pub-
lic nuisance, leading to unchaste life  and  to child-murder, beyond
any  other invention of the perverted wit of man; for, unless  it
can receive the fruit of every illicit connexion, which is impossi-
ble, it must needs encourage  many to enter  into  such an inter-
course, without giving  them the means of providing against its
consequences."!
  There is, however, another objection  to foundling  hospitals.
The history of  such establishments  proves that they utterly fail
of accomplishing their object, which  is  the preservation of the
lives of children.  The records of  those which have been kept
with the greatest care, exhibit the most astonishing mortality.
  In Paris, in  the year  1790, more than 23,000, and in 1800,
about 62,000  children were brought in;  and it is estimated, that
eleven-thirteenths of all the foundlings  perish annually through
hunger and neglect.!  It is stated  also, that vast numbers  of the
children die from a disease called l'endurcissement du tissue cel-
lulaire, which is only to be met with  in  the foundling hospital.^
Of 100 foundlings  in the  Foundling Hospital at Vienna, 54 died
in the  year 1789.   Subsequent accounts of this hospital, do not
represent it in a more favourable light. In a recent description of
this institution, it is stated, that " all  attempts to rear the children
in the hospital  itself had  failed.   In the most  favourable  years,
only 30 children out of the 100 lived to the age of twelve months.
In common years,  20 out of  the 100 reached that age, and  in
bad years not even 10.  In 1810, 2583 out of 2789 died.  In 1811,
2519 out of 2847 died.  Like the cavern of Taygetus, this hospi-
tal  seemed to  open its jaws  for the destruction of the deserted
and illegitimate progeny of Vienna.   The emperor Joseph II. fre-
quently visited this hospital  in person, and upon one occasion he
 ordered Professor Boer to make a series of experiments with  all

  * Malthus on Population, p. 370.  For further illustrations of this fact, see a  his-
 tory of the present condition of public charity in France, by David Johnston, M. D.
 p. 320, 321.                  t Edinburgh Review, vol. 38, p. 440.
   X Beckman's History of Inventions, vol. 4, p. 456-7.
   § Cross's Medical Sketches of Paris, p. 197. 
INFANTICIDE.
459
kinds of food, that it might be  ascertained how far diet had  its
share in the mortality.  Twenty children were selected, and fed
with various kinds of paps and soups, but in a few months most
of them were dead."*
  In consequence of this  extraordinary mortality, "in 1813, the
government enacted  that the foundling-house should serve merely
as a depot for the children, till they could be delivered to the care
of nurses in different parts of the country."  In 1822, under this
new  system of nursing in the country, the deaths had diminished
from 1 to 2, to 1  to 4^.f v
  In St. Petersburgh and Moscow, the foundling hospitals have
always been managed with the greatest liberality and care; and
yet, in the latter city, during the twenty years subsequent to 1786,
when the hospital was first instituted, of 37,000 children received,
35,000 at least are computed to have died.  In 1811, the found-
lings admitted into the hospitals appropriated to them, were 2517,
and  the deaths were 1038.   In 1812, 2699 were admitted, and
the  deaths were  1348.  In the province of Archangel, the pro-
portion of deaths has been still greater. Of 417 foundlings admit-
ted in 1812, 377 died the same year-!
  In  Palermo, during the year 1823, 597 foundlings were re-
ceived at the hospital in that  place, of whom 429 died.§
  In the hospital at Metz, calculation showed that seven-eighths of
the whole number of children perished.  In an institution of this
kind  in one  of  the German principalities, only one of the found-
lings, in 20  years, attained to manhood.||
  "In 1751, Sir John Blaquiere stated to the House of Commons
of Ireland, that of  19,420 infants  admitted into the Foundling
Hospital of Dublin, during the last ten years, 17,440 were dead
or unaccounted for;  and that of 2180 admitted during 1790, only
187 were then alive.  In  1797,  he got a committee of the same
House appointed, to inquire into the state and management of that
institution.   They gave in their  report on the  8th of May, 1797;
by which  it appeared, that within the quarter ending the 24th
March last, 540 children were received  into  the hospital,  of
whom, in the same space of time, 450 died : that, in the last quar-
ter, the official report of the  hospital stated the deaths at three,

  * Quarterly Journal of Foreign Medicine and Surgery, vol. 1, p. 188.
  t Elements of Medical Statistics, by F. Bisset Hawkins, M. D. p. 136.
  t lb. p. 137.     § Ibid. p. 139.     || Beckman on Inventions, vol. 4, p. 456-7. 
460
INFANTICIDE.
 while the actual number was found  to  be 203: that, from  the
 25th of March to the 13th of April, nineteen days, 116 infants
 were admitted;  of which number, there died 112.   Within  the
 last  six years, there were admitted  12,786 ; died in that time,
 12,651.   So that in six years, only 135  children were saved to
 the public and to the world.
   " In the Charite of Berlin, where some enjoyed the advantage
 of being born in the house, and of being suckled by their mothers
" six weeks, scarcely a fourth part survived one month.
   " Every child born in the Hotel Dieu of Paris, was seized with
 a kind of malignant aphthse, called le muguet, and not one sur-
 vived who remained in the house.
   " At Grenoble, of every 100 received, 25 died the first year; at
 Lyons, 36; at  Rochelle, 50 ;  at Munich, 57; and at  Montpellier,
 even 60.  At Cassel, only 10 out of 741 lived 14 years. In Rouen,
 one in 27 reached manhood; but half of these in so  miserable a
 state, that of 108, only two could  be added to the useful popula-
 tion.  In Vienna, notwithstanding the  princely income of the hos-
 pital, scarcely  one in 19 is preserved.   In Petersburgh, under the
 most admirable management  and  vigilant  attention of the Em-
 press Dowager, 1200  die annually out of 3650 received.  In
 Moscow, with every possible advantage, out of 37,607 admitted in
 the course of 20 years, only 1020 were sent out."*
   The Foundling Hospital of London, exhibits rather a more fa-
 vourable  picture.  The average of those who died  there under
 twelve months, in ten years, was only one in six, and for the last
 four  or five, even less in proportion/}-
   The general fact is, however, sufficiently evident, that the lives
 of the multitudes of children are sacrificed in these hospitals. The
 causes, too, are evident.  In some instances, it arises from the
 want of nurses, or the mismanagement and cruelty of those that
 are employed;  in others, from  the delicacy of the  infant—the
 want of  its  mother's nourishment—the vitiation of the air—and
 the contagious diseases to which  children are  more peculiarly
 exposed.
   But do foundling hospitals diminish  the number of infanticides 1
 We have no evidence of such a result flowing from them. From
 the deleterious influence which they have upon the moral feelings
   * Edinburgh Med. and Surg. Journal, v. 1, p. 321-2.
   tHighmore's History of the Public Charities in and near London, p. 727.  Rees'
 Cyclopedia, art. Hospital. 
INFANTICIDE.
461
 of the female sex, we cannot believe it is the case.   And it is ac-

 cordingly stated, that  after the Foundling  Institution of Cassel

 was established,*  not a year elapsed without some children being

 found murdered in that place or its vicinity, f


  List of British and  American  Cases and Trials for  Infanticide.

   1. William Pizzy  and Mary Codd, tried at Bury St.  Edmunds,  1808,  for
 feloniously administering a certain noxious and destructive substance to Ann
 Cheney,  with intent to produce miscarriage.  In this case, the abortion was
 perfected, not by the medicine, but by the subsequent introduction of an instru-
 ment into the uterus. (1)
   2. Charles Angus, indicted and tried at Lancaster, 1808, for the murder of
 Margaret Burns, of Liverpool.  In this case, the prisoner was charged with
 endeavouring to procure an abortion, by means of an instrument, and also by the
 administration of drugs,  which terminated in the death of the female.    This
 is a most important and interesting case, well worthy of being studied. (2)

   * Beckman, v. 4, p. 456.
   t  In relation to the general effects of foundling hospitals, a most important  work
 has  recently been announced, of which  only the prospectus has yet appeared; the
 following notice of which I  take from Silliman's Journal of Science and the  Arts.
 In collecting materials for  his work, the author, (M. De Gouroff, Rector of the Uni-
 versity of St. Petersburgh, Counsellor of State, &c.) has  travelled over the  greater
 part of Europe.  According  to  this  author, it is chiefly in Catholic countries that
 foundling hospitals are found. " Austria has many such institutions; Spain reckons
 67 ;  Tuscany, 12 ; Belgium, 18; but France, in this respect, excels other countries—
 she has no less than 362.   Protestant countries, on the contrary, have suppressed the
 greater part of those which had been specially founded for this purpose."
   To form an idea of the advantage of the protestant system over  that of catholic
 countries, the author states, that " in London, the population of which amounts to
 1,250,000, there were, in the  five years  from 1819 to  1823, only 151  children ex-
 posed ; and that the number of illegitimate children received in the 44 work-houses
 of that city, of which he visited a large number in 1825, amounted, during the same
 period, to 4668, or 933 per annum; and that about one-fifth of these are supported at
 the expense of their fathers.   By a striking contrast, Paris, which has but two-thirds
 of the population of London, enumerated,  in the same five years, 25,277  enfans
 trouves, all supported at the expense of the state."
   To ascertain the contagious influence of these houses on the abandonment of new-
 born children, Mayence had no establishment of this kind, and from 1799 to 1811,
 there were exposed there 30 children. Napoleon, who imagined that in multiplying
 foundling hospitals, he would multiply soldiers and sailors, opened one in that town
 on the 7th November, 1811, which remained until March, 1815, when it was sup-
 pressed by the Grand Duke of Hesse-Darmstadt.  During this period of three years
 and four months, the house  received 516  foundlings.  Once suppressed, as the habit
 of exposure had not  become rooted in the people, order was again restored ;  and ip
 the nine succeeding years, but seven children were exposed.   (American Journal of
 Science and the Arts, vol. 17, p. 393.)
  (1) Edinburgh Medical and Surgical Journal, vol. 6, p. 244.
  (2) See Annual Medical Register for 1808, vol. 1, p. 143. Edinburgh Medical and
Surgical Journal, vol. 5, p. 220.  A vindication of the opinions delivered in evidence
by the  medical witnesses for the Crown, on a  late trial  at Lancaster  for murder,
p.  88.  An able pamphlet written by John Rulter, M.  D. of Liverpool.   Paris &
Fonblanque, vol. 2, p. 176.  A full account of this case is also  given by my brother,
in  the chapter on Delivery,  in this work.
                                   39* 
462
INFANTICIDE.
  3. The case of Phillips,  tried in January, 1811,  for attempting to procure
abortion in Hannah Mary Goldsmith, by giving savine. (3)
  4. The case of Robin Collins, tried at Chelmsford assizes, 1820, for  admi-
nistering steel filings and pennyroyal water, with the intent to produce abor-
tion. (4)
  5. The  case  of Margaret Tinckler, indicted at  Durham,  in  1781, for the
murder of Janet Parkinson, by having inserted wooden skewers into the uterus
for the purpose of producing  abortion. (5)
  6. Sarah Hill, for infanticide. (6)
  7. Mary Eastwood, for infanticide. (7)
  8. Case in  Scotland, for  infanticide. (8)
  9.  Sarah Little, for infanticide, reported by P. J. Martin, surgeon. (9)
   10.  Bease  and Elliott, infanticide. (10)
   11.  .Margaret Patterson. A  case  of infanticide, examined and reported by
 David Scott,  M. D. of Cupar-Fife,  Scotland,  accompanied with remarks by
 Professor Christison of Edinburgh.   This is a highly interesting case, and al-
 together the best reported one in the English language.  (11)
   12.  Case of alleged infanticide at Aberdeen, 1804.   The child died from
 inability on the part of the  mother to aid it after birth. (12)
   13.  Case of infanticide at Aylesbury,  in  1668.   The woman murdered her
 child  in a state of temporary insanity, and was acquitted on that ground. (13)
   14.  Mary  Baker,  reported by Dr.  Robinson of Bridgport, England, for infan-
 ticide. (14)
   15.  Case of infanticide,  reported  by W. Chamberlaine, surgeon in  Lon-
 don.   (15)
   16.  Case of infanticide, reported by Mr. F. H. Ramsbotham.  (16)
   17.  A woman indicted and tried for infanticide, at the Sussex assizes, Eng-
 land,  1825. (17)
   18. Eliza  Maria Jones, for infanticide.   Reported by Prof. Amos. (18)
   19. A case in London of infanticide.  (19)

   (3)  Paris and Fonblanque, vol.  3, p. 86.
   (4)  Ibid. vol. 3, p. 88.
   (5)  Paris and Fonblanque, vol. 3, p. 72.  Principles of Forensic Medicine, by
 J. Gordon Smith, M. D. p. 326.   East's Pleas of the Crown, Tit. Murder.
   (6)  Edinburgh Medical  and Surgical Journal, vol. 11, p. 77.
   (7)  Ibid. vol. 11, p.  78.
   (8)  Ibid, vol 21, p. 231.
   (9)  Ibid. vol. 25, p. 34.
   (10) Ibid. vol. 35, p. 456.
   (11) Edinburgh  Medical and Surgical Journal, vol. 26, p. 62.
   (12) Paris and Fonblanque, vol. 3, p. 126, taken from Burnett's Treatise on the
 Criminal Law of Scotland.
   (13) Paris and Fonblanque, vol. 3, p. 129.
   (14) London Medical Repository, vol. 22, p.  346.
   (15) London Medical and  Physical Journal, vol. 7, p. 283.
   (16) London Medical Repository, vol. 21, p. 344.   Godman's Journal of Foreign
 Medicine and Surgery, vol. 4, p. 532.
   (17) Johnson's Medico-Chirurgical Review,  vol. 9, p. 239.
   (18) London Medical Gazette, vol. 10, p. 375.
   (19) Lancet, vol. 9, p. 339, 
INFANTICIDE.
463
  20. Susanna Powell.  Trial for infanticide at Schenectady, State of New
York, in 1810. (20)
  21. A trial for infanticide, October, 1831,  in Jefferson county, Ohio, before
the supreme court.  Reported by John Andrews, M. D. (21)
  22. Trial of Hannah Hall, for murdering her  illegitimate  child,  in  the
county of Chester, Penn. in 1833.  Reported by Isaac Thomas,  M. D. (22)
  23. Report  of a trial for infanticide, with remarks.  By Charles A.  Lee,
M. D., of New  York.  (23)
  24. Report of a trial for murder, by the administration of oil of savine, for the
purpose of procuring abortion.  By Charles A. Lee,  M. D. of New York. (24)

  (20) Report of the trial of Susanna, a coloured woman, before the  Hon. Ambrose
Spencer, Esquire, at a court of oyer and terminer, held at Schenectady,  23d
October, 1810, on a charge of having murdered  her infant bastard male child.   By
Henry W. Warner, 1810.
  (21) American Journal of Medical Sciences, vol. 9, p. 257.
  (22) Ibid. vol. 13, p. 565.
  (23) Ibid. vol. 17, p. 327.
  (24) Ibid. vol. 21, p. 345. 
CHAPTER  IX.
                             LEGITIMACY.

 1. Of the ordinary term of gestation—whether uniform or not.  Causes  that may
   produce mistakes in the reckoning of females.  Variation observed among animals
   in the term of gestation.  Causes which, it is supposed, may vary it in the human
   species—physiological  explanations of this.  2.  Premature  delivery. Within
   what period a mature child should be deemed legitimate.  3. Protracted delivery.
   Remarkable cases of it in Ancient Rome, Germany, France and England.  Gard-
   ner Peerage case : Opinions of distinguished accoucheurs on this subject.  Cases.
   4. Laws of various countries on the  subject of  legitimacy—Roman—Ancient
   French—Prussian—Modern French and Scotch laws.   Decisions under these.
   Want of positive law in England and America.  English cases.  Remarks on this
   subject.  5. Questions relating  to paternity and filiation.  Paternity of children
   where the widow marries immediately after the death of her husband.  Cases in
   the Roman, English and American courts.  English law on this subject. Simili-
   tude and colour as evidence of paternity.  Cases.


   The reproach  that I have incurred of treating the present sub-

ject with levity, has induced  me  carefully to revise what I had

written.   I  trust that on this point, at  least, I shall  not again de-

serve censure ; but I have at the same time to avow, that on the

main question, my sentiments are unaltered.   The sense, how-

ever, of what is  due to my readers, will  prompt  me  to give a

fair and full abstract of the facts and arguments on both  sides of

this  interesting  controversy.  The following  division  will be

pursued:

   1.  Of the ordinary term of gestation.

   2.  Of premature delivery.

   3.  Of protracted delivery.

   4.  Of the laws on the above subjects.   And,

   5.  Of some questions relating  to paternity and filiation.


               I. Of the ordinary term  of gestation.

   By the  common consent of mankind, the term of gestation is

considered to be ten lunar months, or forty weeks—equal to  nine

calendar months and a week.*   This  period  has been adopted,


  * It is  very important to recollect the  distinction between lunar and calendar
months.  Some of the diversity of statement that exists, has originated from inat-
tention to this.   Nine calendar  months  may be from 273 to 275 days; ten  lunar
months are 280 days. 
LEGITIMACY.                        465
because general  observation, in cases which alkrwed of accurate
observation,  has  proved  its  correctness.*  It is not, however,
denied that differences of one or two weeks have occurred.   Dr.
William  Hunter, in answer to a question put to him on this sub-
ject,  replied, that  " the usual  period is nine  calendar months,
(thirty-nine  weeks;) but  there is very  commonly a difference
of one, two,  or three weeks."f
  It is important to understand why this  difference occurs, or in
other words, to explain on what facts the calculations of females
and their medical  attendants are founded.   I  apprehend that
these  have not been sufficiently considered in the discussions on
this subject.
  Dr. Lyall,  in his  publication on the  Gardner  Peerage  case,
mentions four  circumstances, and  probably either one or more
have  influence in the  reckoning of almost every case.  They
are, 1. Certain peculiar sensations experienced by some females
at  the time  of conception, or within a few hours, or  a day, or
two or more days, after the  fruitful coitus.  2. The cessation of
the catamenia.    3. The period of quickening.  4. A single coitus.
If we review these, we shall find a certain degree of  uncertainty
to attach to all.  There are some females who are not conscious
of ever experiencing the first—the last is not  applicable to mar-
ried females—while the period of quickening, (as  we have shown
in a previous chapter,)  varies sufficiently to  render it perfectly
nugatory, in a calculation to be made like the  presentj  There
remains,  then,  only the cessation of the catamenia,  and this
indeed is  the  point from which most females  date the  period of

  *  Take the following case by Dr. Montgomery, as an example : " A lady who had
been for some time under our care in consequence of irritable uterus, went to the
seaside at Wexford  in the month of June, 1831, leaving her husband in Dublin, a
temporary separation being considered essential to the recovery of her health.  They
did  not meet  until the 10th of November, on which  day he went to see her ; and
being engaged in a public office, he returned to town next day.  The result of this
visit was conception :  before the end of the month, she began to experience some of
the symptoms of pregnancy ; and  when she came to town on the 22d of February,
she was large with child, and had quickened on the 29th of  January.  Her last
menstruation had occurred on the 18th of October."  She went  on well through her
pregnancy, and was delivered on the 17th of August, making exactly 280 days from
the time of conception.  The quickening in this case was very early, being before
the completion of the twelfth week.   (Cyclopaedia of Practical Medicine, vol. 4, p.
87, art.  Succession of Inheritance.)
  f Hargrave and Butler's Note 190* to Section 188 of Coke upon Littleton.
  X It has been suggested that the period  of quickening is uniform in the same
female, and  that by  consequence some data might thus be obtained for settling the
contested point; but even this is found to be incorrect. (See page 195.) 
466
LEGITIMACY.
conception.   The  exact  time  generally taken is the  middle
period  between  the  last  appearance of  the  menses and that
in which they would have recurred,  if pregnancy had not su-
pervened.  Some, however, calculate  from the first week  after
the cessation.
   But even this is liable to doubt and to mistake. We have men-
tioned  that  some females have bloody discharges during the
early months of pregnancy, and although medical men may con-,
sider these as altogether distinct  from the product of menstrua-
tion, yet the  female makes no  such discrimination.  This, how-
ever, if ending in the birth of a  child at the usual period, might
lead to  the belief of its being a premature case, but on the other
hand, the  menses may have been suppressed for one or two
months  previous to conception taking  place, and here an oppor-
tunity is given for adducing an instance  of protracted gestation.
   In connexion with  this, the variety that  exists as to the return
of the period of  menstruation, may assist in leading  into error.
The common idea is  that the menstrual  discharge returns every
twenty-eight days, or in other words, that there is this time  " be-
tween the end of one menstrual period and the beginning of an-
other."   A practitioner of midwifery in London, in a communi-
cation to Dr.  Lyall, asserts that  this is a  mistake—"that the
twenty-eight days include  both the period and  the  interval, and
that a female who begins to be unwell on the 1st of May, will be
again so on the 28th of the same month, and hence ten times in
two hundred and eighty days.*   Dr. Ramsbotham  in his lectures
on midwifery, makes a similar assertion, that these twenty-eight
days are from the commencement of one period to the commence-
ment of another.f
   But even  if this be granted, it  is  far from invariable.   Dr.
Davis observes, that  many women- menstruate at intervals of
from twenty-four to twenty days, and there are some, indeed, he
says, who menstruate  twice a  month. J   Dr. Blundell, although
he allows the greatest frequency at four weeks, speaks of periods
of three weeks and some of five weeks.  Mr. Roberton of Man-
chester, in one hundred cases taken without selection, found sixty-

  * Lancet, vol.  10, p. 660.    t London Medical Gazette, vol. 13, p. 269.
  Dr. Hamilton observes that in the temperate climates of Europe, there are no more
upon an average than twenty-three days between each menstrual period during which
a woman  can conceive. Practical Observations on Midwifery, p. 54.
  t Obstetric Medicine, p. 252. 
LEGITIMACY.
467
one in which the menses returned monthly, twenty-eight in three

weeks, ten in intervals  of varying  and* uncertain duration, and

one, a healthy woman aged twenty-three, in whom they recurred
every fortnight.*

   Dr. Gall made inquiries on this point at Vienna, and found that

every female had thirteen  menstrual periods during the year, so

that she who menstruated  on the  3d of January, did so for  the

fourteenth time  on the last day of December.   He found among

perfectly regular females  intervals of twenty-one, twenty-five or

twenty-six days.f  Velpeau remarks, that sometimes only twenty-

two, twenty, eighteen, or even  fifteen days supervene. I know a

person, says he, who is never more than twelve days free from

it, whilst others  are  regular every thirty-second, thirty-fifth  or

even fortieth day .J   Is it not possible that a female or even her

medical attendant, may sometimes  reckon the missed periods  as

lunar months and thus produce a protracted case 1

   However this  may be, we have at least shown the difficulties

attending a precise calculation, and explained why  mistakes  of

two and even three weeks may sometimes occur, without  affect-

ing the leading  question of a regular term of gestation.§   If in

connexion with  this, we take the general sense of the individuals,

who are the subjects of investigation,|| and that of at least a fair


  * Edinburgh Medical and Surgical Journal, vol. 38, p. 252.
  t Elliotson's Blumenbach, p. 465.
  X Velpeau's Midwifery, p. 87.  " It is  the  opinion of most of the women of this
country, that a catamenial month  is a month of four weeks."  This was Dr. Den-
man's decided opinion, and also  Dr. Sims's, " than whom, perhaps, no physician of
any age formed his opinions more independently of the opinions of others." (Davis'
Obstetric Medicjne, p. 251.)
  § Mr. Oldfield, Surgeon to the late Niger Expedition, states that the native women
along the banks of the Niger, have the catamenia every three weeks, from the 17th
to the 21st day; the females being in the enjoyment of perfect health.  " On my ex-
pressing my surprise to a very intelligent Fundah woman, she assured me it was the
usual time—that very few had them absent a moon (month): the quantity menstru-
ated is small and continues three or four days."  (London  Med. and Surg. Journal,
vol. 8, p. 406.)
   III am happy to find that Dr. Anthony T. Thomson  is a firm believer in a uniform
period of gestation.   See  his lectures in London Med. and Surg. Journal, vol. 6,
p. 546, 577.  (I think that I have some  reason to complain of Dr. Montgomery, in
that he denies the correctness of this statement. In. confirmation, he quotes from the
report of Dr. Thomson's Lectures in the Lancet of December, 1836, published more
than a year after my book issued from the press. I had only the report of Dr. Thom-
son's Lectures in the London Med. and Surg. Journal, and here (vol. 6, p. 546) I
find the following remarks:
  " I must declare to you my opinion that, except in cases in which something oc-
curs to interrupt the regular function of the uterus, so  as to produce a premature ex-
pulsion of the foetus, labour will always occur at two hundred and eighty days after
conception.  This opinion is of the most ancient date.") 
468                       LEGITIMACY.

proportion of the intelligent and scientific members of the profes-
sion particularly conversant in  midwifery, we shall find that the
prevailing opinion in nearly  all countries,  is in favour of the
above-mentioned regular period.
   There are, however, physiologists who doubt this uniformity
and advance various arguments against it.
   The first, and in my view the most important, is drawn from
the variety observed in the gestation of  animals.   The ancients,
it appears, were aware of this  and noticed  it in their writings.
But the  individual who has paid the greatest attention to it is M.
Tessier.   In a  memoir  presented to the  National  Institute, he
states, that he has been forty years occupied with it, and kept a
register of the  facts.  Out of  160 cows,  fourteen  calved from
eight months to eight months and twenty-six days, 3 at 270 days,
50 from 270 to 280 days, 68 from 280  to 290 days, 20 at 300,
and 5  at  308 days; the extremes were thus 67 days.  Of 102
mares observed, 3 foaled on the 311th day, 1 on the 314th, 1 on
the  325th, 1 on the  326th, 1  on the 330th, 47 from 340 to 350
days, 25 from 350 to 360, 21 from 360 to 377, and 1 on the 394th
day; the extremes being 83 days.   With  sows,  the extremes
were 15 days;  and with rabbits, (139 observed,) 7 days, varying
from 26 to 33 days*
   These facts certainly go to show  that the period of gestation
is irregular among animals; and should  they be verified  by suc-
ceeding  observers, a strong argument from analogy will be fur-
nished against its uniformity in the  human race.  It must, how-
ever, be recollected, that even if perfectly established, it is only
a favourable, and not a decisive proof.f
   But there  are  causes assigned, by which it is alleged that the
ordinary term of gestation may be varied.
   Changes in the constitution of the atmosphere.  These, it is sup-
posed, sometimes exert an important effect on the uterus.   The
  * Repertory of Arts, 1st series, vol. 12, p. 140.  This  contains  a translation of
Tessier's Memoir.  My former quotations were altogether incorrect, having been
copied from Cooper's Tracts.
  t It is to be regretted that this subject has not been more noticed.  I have fre-
quently asked farmers concerning it, and most of them have asserted that the period
is very regular.  They are not, however, in the habit of making memoranda. I
was furnished with the following by one of my pupils at the Western Medical Col-
lege,  Dr. Scth L.  Andrews.  In seven  instances, where his father, the Rev. E. D.
Andrews of Piltsford, noticed the period of gestation in cows, the result was as fol-
lows :—40 weeks, 3 days; 40 weeks, 4 days ; 40 weeks, 5 days; 41 weeks, 3 days;
40 weeks, 6 days; 40 weeks, 3 days ; 40 weeks, 5 days; the extremes thus varying
only seven days. 
LEGITIMACY.
469
 authority of Hippocrates is cited, affirming that a warm winter,
 accompanied with  rains  and  south winds,  and  succeeded by a
 cold and dry  spring, causes  abortions very readily in  females
 who are to be delivered in  the  spring.  Many physicians  are
 said to have verified this  observation in later times ; and Fodere
 himself observes, that at  Martigues, in 1806, after a warm win-
 ter, an epidemic catarrh  broke out, and all  the pregnant women
 miscarried.
   The constitution and habits of the female, it is believed, vary it.
 That part of the sex which reside in cities, and  lead effeminate
 lives, are more liable to variations than others differently situated.
 The nervous system also  may  be so affected as to cause similar
 changes.
   The womb may at one time  be irritable,  and at other times pas-
 sive ; and in this way, the  ordinary term will not prove con-
 stant.*
   I  will barely remark on these arguments, that experience has
 refuted, and is constantly refuting  them.  There is not a practi-
 tioner  in midwifery who  has  not, within his own observation,
 met with cases sufficient to  contradict  the opinions  just ad-
 vanced.f  It  frequently happens that females of the most irri-
 table habits and effeminate course of life, proceed to the ordinary
 period—hay it almost universally is.so;  and although some may
 be delivered at the thirty-seventh or thirty-eighth week, yet if
 gestation be completed much sooner, the size of the child, or the
 dangers attendant on premature birth, are generally sufficient to
 prove the nature of the case.   As to the effect of epidemic con-
 stitutions, it will be observed, that  this  cannot with fairness  be
 used as a general argument; nor indeed, does it prove any thing
 more, than that the state of the weather may be  such as to pre
 dispose to abortion.
  To all this, however,  the argumentum ad  hominem is rejoined,
 and  cases are adduced which certainly  appear difficult  of expla-
nation, unless we allow that gestation may be protracted. I shall

  * These arguments are  taken from Fodere, a believer in protracted gestation, (vol-
2, chap. 8.)  Merat suggests that  the tardy or rapid  developement of the neck of the
womb may be the cause of the variety that occurs, and the former again to disease,
hardness of its fibres, etc. (Dictionnaire des Sciences Medicales, vol. 18, p. 327, art.
Naissances tardives.)
  t The fact that dead children and twins are born at the regular period, is certainly
a strong proof of there being a fixed term of gestation.
  vol. i.                     40 
470
LEGITIMACY.
notice some of these in a subsequent section, and will now  men-
tion the theory promulgated by Dr. Power of London, (a believer
in protracted gestation,) in explanation of its supposed occur-
rence.  How far it is to be considered as perfectly original, will
be seen by referring  to my preceding remarks.
  Dr. Power recurs first to the change that takes  place in the
state  of the womb  during the progress of pregnancy.  The neck
disappears; the fcetus  presses  on the mouth, in  consequence of
the insensible contraction  that is going on;  and  when labour
commences,  there  is  " orificial  irritation," increased by the  large
quantity of nerves going to that part.  Whatever then will pre-
vent the contents of the womb  from irritating its  mouth, or  inter-
fere with the  due application  of its  insensible contraction, may
not only delay  labour, but delay its  commencement beyond the
usual  time.  He adduces  cases illustrative of this, in  some of
which, pressure alone appears  to have been sufficient, after con-
siderable delay in the natural state, to bring on the phenomena of
labour; in others, it  has been  postponed in consequence  of an
oblique or improper situation of the mouth of the womb.*
  The most rational explanation (provided the possibility of pro-
tracted gestation be conceded) that I have yet met with, is con-
tained in the following extract: " why should pregnancy be more
exempt from variation than other physiological conditions  1 Do
the teeth  appear at a definite  period 1 The  regular interval be-
tween the catamenial efforts is four weeks; but how often is this
varied, sometimes  by disease,  sometimes  by idiosyncrasy.   The
fortieth week is  the  natural period for  the  termination of  preg-
nancy and any departure from it is unnatural,  but only in the
sense  that would apply to  tardy or premature menstruation. It is
urged moreover that  the human  fcetus, like  the young of the in-
ferior classes, is not expelled from the womb till it  has acquired
a developement  adapted to extra-uterine existence; that disease
and other causes may delay this developement, and consequently
  * See Dr. Power's pamphlet on this  subject, " An  Attempt, etc." quoted in the
catalogue of books  consulted, and also his evidence on the Gardner peerage case.
Dr. Lyall pertinently asks (p. 84)  why, if this theory be  true, does not labour always
come on gradually; since the stimulant (orificial irritation) is not applied suddenly,
but progressively? Dr.  Ramsbotham has recently, in his lectures on midwifery,sug-
gested in explanation of the difference in human gestation, that there are various pe-
riods which elapse during the passage of the ovum through the fallopian tube. He
refers, in illustration of this, to John Hunter's case, (Transactions of a Society, vol.
2,) where no fcetus could be detected at four weeks, and Sir E. Home's  case, where
it was seen at one week. (London Medical Gazette, vol. 13, p. 553.) 
LEGITIMACY.
471
that there is no reason for astonishment if  parturition  be some-
times retarded."*

                   II. Of premature delivery.
   The question which requires consideration under this  section,
is whether a  child  with all the  characters of maturity, as we
have described them in  a previous chapter, can be born before
the ordinary term of gestation 1  And its direct bearing is on the
subject of legitimacy.  A husband, for example, has been absent
from his family, and at the end of seven or eight months  after his
return, a full grown healthy child is produced.   Is the honour of
the family to be impeached, or shall we allow that  this variation
is possible 1
   There is an  intrinsic  difficulty connected with  this question,
which  should lead  us to be tender in forming our  opinions, and
 this originates from the variety observed in children when born
 at the full time.  They differ in size, general appearance, healthi-
 ness, &c.;  and sometimes, indeed, we know that  eight months'
 children have been observed larger and healthier than those  of
 nine months.   The general appearance,  then, should be noticed,
 but not too much relied on, in forming an unfavourable opinion.
   It is an unquestionable fact, that there  is in many females a
 disposition to expel the child before the ordinary term.  This not
 only takes place at the thirty-seventh or  thirty-eighth week, when
  we might suppose that the female  had  made a mistake in her
  calculation, but occurs as soon as the seventh month. La Motte,
 in his Midwifery, mentions of two females who always brought
  forth at seven months.  Van Swieten says he has  observed simi-
  lar cases, and Fodere relates of  a female in the duchy of Aost in
  the  same situation.j-  It will not, however,  be contended that
  these are to  be considered as indicating a healthy and regular
  state of the uterine function, but rather as a consequence of dis-
  ease.
    If the question be confined in  the manner  already stated,  we
  may derive aid from  the appearance of the child, and the condi-
  tion of the mother; and although it may be deemed barely possi-

    * British and Foreign Med. Review, vol. 2, p. 404.  Devergie, vol.  1, p. 468. I
  doubt whether the thorough-going advocates for protracted gestation  will agree in
  full to the above.  There is too much concession as to its being  an unnatural occur-
  rence,                       t Fodere, vol. 2, p. 128. 
472
LEGITIMACY.
ble that a child born at seven months may occasionally be of such
a size as to be considered mature, yet I apprehend that the asser-
tion is most frequently made by those whose character is in dan-
ger of being destroyed.
   If a mature child  (mature not only  as to  size, but also  as to
other characters already enumerated as indicative of perfect de-
velopement,*) be born before seven full months  after  the alleged
connexion, it ought certainly to be considered as illegitimate/!/

                   III.  Of protracted delivery.
   I  propose  to devote this section to a statement of some cases
that have occurred at various times, and that have been made the
subject of legal investigation, and also  to a notice of the opinions
of distinguished accoucheurs.
   One of the  oldest cases on record, is mentioned by Pliny the
naturalist.  He states, that the  Prsetor, L. Papirius,  declared  a
child born  at thirteen months,  legitimate, on  the ground that
there was no certain period for the completion of gestation. The
emperor  Adrian, at a subsequent period, as we are informed by
Aulus Gellius,  declared an infant legitimate, which was  born
eleven months after the death of its father, on account of the un-
suspected  and  undoubted virtue of the widow.  A similar case
is mentioned  by Godefroy, in his Notes on the  Novels of Justi-
nian.  A widow was delivered fourteen months after the death
of her husband, and her issue pronounced legitimate  by the par-
liament  of Paris.   It appeared that she had lived with the rela-
tives of her husband during the whole period of widowhood; that
they had never observed  any impropriety in  her conduct; and
they also testified  to the deep and constant  grief  she had mani-
fested for the loss of her partner.  The parliament of Paris ap-
pears indeed  to have adjudicated on numerous cases of protracted

   * See page 280.
  t Dr. Montgomery will not allow even  this, and states that he never saw a child,
avowedly of six or seven months growth, that presented an appearance even remotely
resembling that of a full grown and matured fcetus. (Cyclopaedia of Practical Medi-
cine, vol. 4, p. 87, Art. Succession.)
  Valentini, however, quotes a decision which is very different.  The husband had
been absent a year, but returned home on the 14th of April, 1656 ; and on the suc-
ceeding 26th of September, (five months and twelve days,) his wife was delivered of
a living child.  The Medical Faculty of Leipsic decided that it was legitimate, be-
cause the mother had laboured under grief and terror during her pregnancy, and be-
cause, at her delivery, she was so weak as to need bathing with wine.  (Pandects,
vol. 1, p. 86.) 
LEGITIMACY.
473
gestation.  Foder£ gives an abstract of twelve, which I copy to

show the reasons assigned.*

   Thomas Bartholin relates of a young girl at Leipsic, who, on

accusing a person  of having  seduced her, was  confined  and

strictly guarded.   At the  end  of sixteen months,  she  brought

forth a child, which lived two days.-f

   In 1638, a  female  brought forth a child one year and thirteen

days after  the death of her husband.  She suffered with severe

labour  pains  during the whole of the previous month,  and  the

parietal bones  of the  infant, at  birth, were found to  be united

—no fontanelle being  present.   It was also added, that she had

always  been irregular in her  calculations  with  the seven  she

had previously borne.   The opinion of the Medical Faculty of

Leipsic was required  in  this  case.  They replied, that  extraor-

dinary cases  of protracted  gestation,  deserving of credit, were

related  by  many  authors; that there might be a frigidity of the

genital organs, so as to cause a slow increase of the fcetus;  and

that the long continuance  of the  labour pains proved this to  be a

praeternatural case.   They therefore decided  that the offspring

was legitimate.!

   * Fodere, vol, 2, p. Ill to 115.   In 1578, a child born eleven months after the de-
parture of the husband, was declared legitimate, because the husband might have re-
turned during the interval.
   In 1626, a child born eleven months after the death of the husband, was adjudged
 a bastard, on account of the bad character of the mother.
   In 1653, a child born eleven months and three days after the death of the  hus-
band, was adjudged legitimate.
   In 1632, a child born within four days of ten months after the death of the  hus-
band, was pronounced a bastard, on account of the character of the mother, and the
constant ill health of the putative father.
   In 1649, a child born at ten months and nine days, was adjudged legitimate, though
the father had been absent and paralytic.
   In 1656, a child born at sixteen months after the death of the husband; was de-
clared a bastard.
   In 1664, a child born  eleven  months after the absence of the husband, was ad-
judged legitimate, from the possibility that he might have had connexion during the
interval.
   In 1695, a child born at eleven  months,  declared legitimate, for the same reason.
   In 1705, in the case of a child  born twelve months and six days after the disap-
pearance of the husband, an interlocutory judgment was pronounced, as some as-
serted that he was dead, while the female asserted that she saw him nine months
previous to delivery.
   In 1756, a child born within six days  of a year after the death of the husband, de-
clared a bastard.   So also with one born at eleven months and seven days.
   In December, 1779, a  child born at eleven months and  one day after the hus-
band's death, was pronounced legitimate, on account of the irreproachable conduct
of the mother.
   t Fodere, vol. 2. p. 183.
   t Valentini's Pandects, vol. 1, p. 142.  In another case, where the child was born
eleven months after the death of the husband, the Medical Faculty of Leipsic, on the
                                40* 
474
LEGITIMACY.
   In another instance, a man named Gans, after being deemed
in extremis for eight days, died on the 2d December, 1687 ;  and
on the 25th of the succeeding October, his wife was delivered of
a son.  The brothers and sisters of the deceased contested its le-
gitimacy, and an  appeal was made  to  the Medical Faculty of
Giessen.   They commence their answer, also, by stating extra-
ordinary cases as mentioned  by authors, and in this  instance de-
cided in favour of its being  the child of Gans, because he was
weak and  feeble at the period of conception, and the mother was
of a frigid  complexion; the  fcetus, therefore, would require a
longer period to come to maturity.*
   There are also  some cases which deserve notice, from the me-
dical controversies to which they have given origin.   I shall par-
ticularly mention  two that occurred  in France.
   Le Sueur, a resident  of the  city of Caudebec in Normandy.
wras struck with apoplexy on the 14th of May, 1771, and died on
the 16th.   His wife, Maria Rose, had not been pregnant during
the six years of their marriage.  On the 11th of the succeeding
September, she declared herself pregnant; and on the 17th of
April,  1772, (eleven months  and one day after his death, and
eleven months and four  days after his illness,) she was delivered
of a son.   The  relatives of the husband contested its legitimacy,
and  obtained a decree in their favour;  but on  appealing to  the
parliament of Rouen, the cause was, in December, 1779, decided
in favour of the widow.  Her claim was defended on the score
of character,  and  on the possibility of protracted gestation.  The
former seemed to be most unexceptionable, at least the public
opinion was strongly in her favour, and the latter was supported
by many extraordinary narratives.   The work of the celebrated
Petit on this subject was quoted, in which he states that many fa-
culties of medicine, forty-seven celebrated authors, and  twenty-
three French physicians and  surgeons, agree  in believing that
delivery may be delayed to the eleventh and twelfth month; nay,
that  it is perfectly demonstrated  that this frequently occurs.
  Among the quotations from the work of Petit, is the following

2d of April, 1630, declared it illegitimate, because it was born beyond the time as-
signed by Hippocrates.  (Ibid. vol. 1, p. 140.) Amman, who reports these cases, ob-
serves, that he cannot reconcile the conflicting  decisions, except by saying that the
first of these children would  become very rich  by the decision, while the other was
poor.
  * Valentini's Pandects, vol, 1, p, 144, 
LEGITIMACY.
475
case related by Heister.  A female, the wife of a bookseller, in
Wolfenbuttel, was delivered thirteen  months after the death  of
her husband.  The individuals interested, proposed to contest the
legitimacy of the infant, but were deterred on account of her ex-
cellent character.  So convinced was one Christopher Misnerus,
who had acted as shopkeeper during her widowhood, of her vir-
tue and probity, that he married her shortly after, and had two
children by her, and each of them was born after a gestation of
thirteen months.*
   Tracy, a naval physician, deposed in this case, that he  knew
a female who was delivered at the end of fourteen months.  She
was in delicate health, and both she and her husband informed
him, that  there had been no connexion since the commencement
of her pregnancy.
   Dulignac, chirurgeon major to the regiment of Asfeld, testified,
that with three children which his wife had  produced, the term in
two had been thirteen and a half months,  and in the third eleven
months;  and that he had recognized the existence of each  of the
pregnancies at four months and a half, by the most infallible sign
—the motion of the child.
   Lepecq de la Cloture also gave an opinion in  favour of the
widow, and quoted similar cases from his own observation.   This
author dwelt much upon the inertness which grief produces  on
the uterine organs, and conceived that the languor which sorrow
causes, may retard the progress of gestation.f
   The following enlisted all the medical talent of France  in its
discussion. Charles----, aged upwards of seventy-two  years,
married Renee, aged  about thirty years, at the  commencement
of the year 1759.  They were married nearly four years with-
out having any issue.  On the 7th of October, 1762, he was taken
ill  with fever and violent  oppression, which remained until  his
death.  The last symptom was so severe, that he was forced to
 sit in his  bed;  nor could he move without assistance.   In addi-
 tion to these, he was seized with a dry  gangrene of the leg on the
 21st; and with this accumulation of disease, he  gradually sunk,
 and died  on the 17th of November,  aged  76 years.  Renee had
 not slept  in the chamber during his illness;  but about three and a

   * This case is related at length, with all its proofs, in Schlegel, vol. 2, p, 99 to 113.
 'Warner's  Dissertation.)
 v  t Fodere, vol. 2, p. 185 to 189, quoted from the Causes Lekbres, 
476
LEGITIMACY.
half months after his death, she suggested that she was pregnant;
and on the 3d of October, 1763, (within four days of a year since
the illness of her husband, and ten months and seventeen days
after his death,) she was delivered of a healthy, well formed, and
full sized child.  The  opinion of Louis was asked on this case,
and he declared that the offspring was illegitimate.  Had he rest-
ed at this, even the advocates of protracted gestation might pro-
bably not have murmured, as the circumstances were rather too
powerful for the interposition of their favourite doctrines.  But
he took occasion,  in his consultation, to attack the opinion gene-
rally, and to deny the possibility of the occurrence of such cases-
Among the arguments which he adduces, are the following: that
the laws of nature on this subject are immutable; that the fcetus,
at a fixed period, has received all the nourishment of which it is
susceptible from the mother, and becomes, as it were, a foreign
body; that married females  are very liable to error  in their cal-
culations ; that  the decision  of  tribunals in favour of protracted
gestation, cannot  overturn a physical law; and finally, that  the
virtue of females in  these cases, is  a very uncertain guide for
legal decisions.   " If we admit," says he, " all the facts reported
by ancient and modern authors, of delivery from eleven to twenty-
three months, it will be very commodious for females; and if so
great a latitude  is allowed for the production of posthumous heirs,
the collateral ones may in all cases -abandon their  hopes unless
sterility be actually present."*
   This  reasoning appears to  me  to carry great weight, and
Mahon, in his chapter on this subject, adds several sensible re-
marks in confirmation of it.   He observes, that if the doctrine be
true  that the children of old people are longer in coming to ma-
turity, it would  have been confirmed by experience, which it is
not.  Grief also,  and the depressing passions, are  much relied
upon as possessing a delaying power; but certainly these are more
apt to produce abortion, than protracted gestation.  He accounts
for the mistakes of married women,  by suggesting that the menses
may be suppressed, not only from disease, but from affections of
the mind, or accidental  causes, which  do  not immediately im-
pair the health; while the increase of volume in the abdomen may
originate from  this,  or from numerous other causes.   Towards

   * Louis' Memoire contre legitimite des naissances pretendues tardives. Le Bas
attacked this Memoir, and Louis replied in a supplement. Several other physicians, I
believe, took part in the controversy. 
LEGITIMACY.
477
the conclusion of his remarks, he states a difficulty, which, I be-
lieve, cannot be readily overcome.  If the doctrine  be allowed,
how shall we distinguish a delayed child from one that  is born at
nine months;  and by what means  are we to detect fraud in such
cases?   Certainly, as far  as we can judge from the narratives
given, the infants born after protracted gestation were not distin-
guished for size, or other appearances of maturity.*
  The  above  cases would be incomplete, were I  not  to add to
them one that recently came before the House of Lords in Eng-
land, and in its progress excited the greatest interest.
  The Hon. Alan Hyde (afterwards Lord) Gardner,  a captain in
the  British navy, was married to Miss Adderly, at  Fort St.
George  in  the East Indies, in 1796.  On the 8th of December,
1802, Mrs.  Gardner bore a child, which appeared to be the fruit
of an illicit  intercourse between her and Henry Jadis.   An action
for criminal conversation was instituted  by Lord Gardner against
Mr. Jadis, in the Court of  King's  Bench, and he obtained  a ver-
dict of £1000 damages.  He then procured a sentence of divorce
in the Consistory Court of the Bishop of London, and the mar-
riage was formally dissolved.  Mr. Jadis married Mrs. Gardner
in 1805; and  the child just alluded  to, was acknowledged as their
offspring, and took  the name of Henry Fenton Jadis,  which he
bore until  the commencement  of the present suit, when  he as-
sumed that of Henry Fenton Gardner, and claimed, through his
guardians,  to be the rightful heir to the title  and estates of the
now deceased Lord Gardner.  This nobleman had married a
second time, with the Hon. Miss Smith,  daughter of Lord Car-
rington, on the 10th of April, 1809; and a son, Alan Legge Gard-
ner, also a  claimant of the peerage and estates, was born on the
29th of January, 1810.  Lord Gardner died in London, January
5, 1816.
  The following  were the facts on which the claim  of Henry
Fenton  Jadis was founded:  "In 1802, Lord Gardner, who was
then captain  of the ship Resolution, arrived off Portsmouth, and
was  joined by his first wife, who remained on board with him
about three weeks, and then took her  departure for London on
the 30th of January.  It appears, however, that the Resolution
did not sail till the 7th of  February, and that some communica-

               * Mahon, vol. 1, pp. 183,185, 198, 203. 
478
LEGITIMACY.
tion took place between the ship and the shore by means of boats.
Lord Gardner sailed for the West Indies, and returned home on
the 11th of July, in the same year."
  On these, the following questions  came up before the commit-
tee of the  House  of Lords.  Could a child, born  on the 8th of
December, have been the result of  sexual intercourse, either on
the 30th  of January or anterior to it, being in the first case 311
days ?  Or could a child, born as above, have been the result of
intercourse on the  7th of February, being 304 days 1   Or lastly,
could a child thus born  and living to manhood, have been the
result of intercourse on or  after the 11th of July, being a period
two  or three days  short of  five calendar months 1  The last was
not much discussed, and  the medical testimony was  principally
confined to the others, making it thus a  question of protracted
gestation.
   Seventeen medical gentlemen, some  of them  the  most dis-
tinguished accoucheurs  in London, were examined.   I shall ar-
range their testimony with reference  to their belief, or disbelief,
in the doctrine under investigation.
   Drs. Gooch  and  Ralph   Blegborough, Sir Charles M. Clarke,
Dr.  D. D. Davis, Professor of Midwifery in the London  Univer-
sity, and Mr. R. P. Pennington may be considered as not credit-
ing  it.
   Dr. Gooch, considered the usual period of gestation, where it
could be accurately calculated, to be nine calendar months, (39
weeks,)  as from  the 25th of May  to  the  25th of December.
When the  statement of Dr. William  Hunter was urged to him,
 that he (Dr. Hunter) " had known a woman bear a living  child
 in a perfectly natural way, fourteen  days later than nine  calen-
 dar  months, and  believed two women to  have  been delivered of
 a child alive in the natural way, above ten calendar months from
 the  time of conception,"* Dr. G. professed  the highest respect
 for  the character  and  talents of Dr. Hunter, but entertained
 doubts as to the accuracy of these cases—he should like to know
 the grounds on which  the opinions  were formed, and how far
 they depended on the testimony of the females.  He stated that
 he had been for many years physician to two Lying-in Hospitals.
 In one of these, there are two wards kept for single women, " so

   *  This answer is taken from Hargrave and Butler's Note to Coke upon Littleton,
 as already quoted. 
LKGITIMACY.
479
that cases frequently occurred, in which I had an opportunity of
calculating  accurately the  length  of pregnancy."   Young  fe-
males, he added, in very respectable situations, are often seduced;
the intercourse is single, and there is no motive  whatever for mistat-
ing the fact.  It would  appear,  that Dr. Gooch  relied much for
his opinion  on these cases, and  did not believe that the  obvious
objection to such testimony, (viz. that the  confession of more nu-
merous  connexions would  give a  suspicion  of general  inconti-
nence,) would lie in the  instances which he had seen.*
   Dr. Blegborough  had been in practice in London  34 years.
He considered  thirty-nine  weeks as the period of gestation, and
forty as the greatest extent.  Mechanical obstructions, as from
malconformation, might delay birth for five or six  days;  but in
 that case, it is uniformly attended with hazard either  to mother
 or child, or both.   He  had grounded his calculations  on the pe-
 culiar  sensations experienced  by females.   They  have fainted,
 and have been extremely ill, so  as  to induce  their friends to send
 for a  professional  man.  On  proper  inquiry, they will declare
 certain sensations,  by which we know that conception has taken
 place, and was  the cause of the feelings experienced.   Upon cal-
 culating from  that time,  he had, in  such  instances, invariably
 found  that he had been right in his surmises, and that labour had
 taken  place certainly not later,  in any instance, than forty weeks
 from that period.   Dr.  B., however,  conceded, that these  sensa-
 tions do not necessarily  follow immediately upon sexual inter-
 course, but said that they did so frequently.
    Dr. Davis considered nine  calendar months as the  period of
 gestation, and  he inclined to a day, or  two days, short of that
 period, rather than beyond it.   He had  met with a few cases in
 which  patients had reckoned  from a single  coitus,  and in  all
 these, birth took place at the 39th  week.   " I cannot say exactly
  on what day"—but some at its conclusion, and  others within it.
    Sir Charles  M. Clarke  considered forty weeks as the full
  period.  He observed, in answer to various questions, that he
  never knew  a case in which fatigue and exhaustion had  caused
    * In his Midwifery, p. 135, Dr. Gooch remarks,—" In general, impregnation takes
  place a day or two  after the last menstrual period. I reckon nine calendar months.
  If a lady says  she was taken unwell  on the 17th of June,' and continued so four
  days, I add one more, and from this (the 22d) I reckon nine calendar months, viz.
  the 22d of March, and in a large majority of cases, I am right."  He adds, however,
  that pregnancy may occur at any time during the period, and thus cause some va-
  riation. 
480
LEGITIMACY.
 protracted  gestation.  He could understand that they may ac-
 celerate, but could not see how they could retard.   In several
 instances, (twenty at least,) that had come under his observation,
 the fact of the last intercourse had  been' stated to him  by the
 parties themselves, and on this he had founded his calculations.
 In no case had the forty weeks been exceeded.
   If the calculation be founded on the suppression of menses, he
 deemed that  the  safest mode would be  to calculate, from its
 middle period; i. e., fourteen days from the last menstruation.
   Mr. R. R. Pennington had  been an accoucheur 37 years, and
 had never known gestation protracted beyond three or four days
 after forty weeks, and forty weeks is the usual term.  He formed
 his opinion from the time of conception, and this again from cir-
 cumstances mentioned by the  females.
   It will thus be seen, that of the five witnesses that disbelieved
 in protracted  gestation, three  founded their calculations on the
 occurrence  of a single  coitus, and the remainder  on peculiar
 sensations experienced.  They differ in their terms, thus:
   Dr. Gooch says 39 weeks, or 271 to 277 days:
   Dr. Blegborough, 39 to 40 weeks, 273 to 280 days:
   Dr. Davis, 39 weeks, 271 to 273 days:
   Sir C. M, Clarke, 40 weeks, 280 days :
   Mr. Pennington, 40 weeks, 280 to 283 days.
   On the other side, the  following medical witnesses gave testi-
 mony : Drs. A. B.  Granville,  Conquest,  Blundell, Merriman,
 Power, Hopkins, Dennison, H. Davis and  Elliotson, and Messrs.
 Sabine, Chinnocks, and Hawkes.
   Dr. Granville gave  it as his  opinion, that the usual or ordinary
 period of gestation is comprised between  the  265th  day,  subse-
 quent to impregnation, and the 280th, or 40 weeks; but he be-
 lieved that gestation might be protracted.  The most prominent
 case  mentioned by him  in proof of this,  was  that of his own
 wife.   She passed  her menstrua] period on the 7th of April,  and
 on  the 15th  of  August afterwards, she quickened.  Labour was
 expected in the early part of January, and accordingly pains
 came on; but  they again  subsided, and she was not  delivered
until February  7th ; that is, 306 days, if we reckon from the day
before the next expected menstruation, or 318 days, if from the
middle of the two periods.
  Dr. G. also stated, that he  was  attached to  two of the most 
LEGITIMACY.
481
extensive Lying-in Institutions in London ; had seen much prac-
tice in them, and had particularly and carefully registered cases,
taking all  the leading circumstances  of their  history from the
individuals admitted, on presenting their letters of recommenda-
tion.  According to these registers, he  had "known a case  of
285 days from the latest period of supposed impregnation; taking
as the point of departure, the last  day of the month previous  to
the missed  period, that is, say 28 or 30 days after the last menstru-
ation :  also  cases of 290,300 and 315 (but this  Dr. Granville
afterwards stated that he considered a case of 310) days."
   In answer to the question, whether he believed it possible, that
a child should be begotten on  the  30th of January, and born  at
an interval of 311 days, viz. on the 7th  or 8th  of  December, he
said, / am aware of no circumstance that can render it impossible.
   I  should  also add, that an  inquiry was  attempted  in  some  6f
his registered cases, but  technical difficulties  were  interposed,
and on the whole, they were not satisfactory, even one where a
female was examined in propria persona.*
   Dr. Conquest  had practised for thirteen years, and  although
the  majority of cases  are completed within  the ninth  calendar
month, yet he certainly had  met with  instances  which  far  ex-
ceeded that  date.   In not fewer than  twenty cases, there had
been very confident  assertions on the  part  of the women, that
they had exceeded  the time;  and in two or three instances he
had taken great pains to  satisfy himself,  and was very sure of it.
In one female, who was so certain of being confined at the anti-
cipated time, that she had her nurse in the house; the  period was
exceeded nearly five weeks.  This female had borne six children.
  * Dr. Granville afterward resumed the discussion of this subject at the Westmin-
ster Medical Society, in December, 1829. He stated, that the cases to which he had
referred, were  capable of the most satisfactory proof, and ought not to have been re-
jected or trifled with on the examination.  In several instances, the reckoning had
been made from the last day of the lunar month immediately succeeding the last ap-
pearance of the menses, and which then extended severally  to 292, 298, 299, 302,
313, 317, and 324 days.  " A lady whom he had attended this year, living with her
husband, and who had never, when not pregnant, been irregular in her menses, cal-
culated her pregnancy from midway between the 28 days, which elapsed between
her previous  menstruation, and the period when she ought  to have  menstruated
again; and she then fixed upon the conclusion of ten calendar months for the day of
her confinement.  She proved perfectly correct; and on inquiring the reason for
fixing on so protracted a period, she said that her three former children were born
after a similar interval.  Even supposing the conception to have taken place at the
very end of the first lunar period, still the protraction must have extended two weeks
at the least."   (Lancet, N. S. vol. 5, p. 418.)
  VOL. I.                      41 
482
LEGITIMACY.
" At that time  (says  Dr. Conquest) I disbelieved all the cases I
had  previously heard;  I had  been in the  habit of laughing at
them as a public lecturer; but so strong was the evidence, from
the most minute investigation of this case, that I was compelled
to admit the accuracy of this woman's statement, and my former
convictions  were very much shaken."  It is remarkable, that at
her subsequent confinement,  this female again exceeded her cal-
culation by  four weeks.
   In another instance, a lady who had borne nine children, and
had  been able  five times to determine exactly the day on which
she should be  confined, exceeded  the time by a month and two
days.  She  brought forth the largest child Dr. Conquest had ever
seen, after a very protracted labour.
   On inquiring as to the probable causes of protracted gestation,
Dr. Conquest stated, that he had seen instances in which an oc-
casional  loss of blood  during pregnancy appeared to  interfere
with the process.  Mental emotions will also protract the period.
He believed that eleven months had been exceeded.
   On cross-examination, Dr. Conquest stated, that his calculation
as to the time of birth,  was  founded on the time of quickening.
He deemed  this much more  certain than that from menstruation.
Quickening  takes place from the  16th to the 20th week; but
when a woman has quickened at a certain time, then, he believed,
with scarcely an exception, she invariably quickens at  the same
period afterwards.*
   Now, in the females mentioned by him, the first had quickened
with six children exactly at the termination of the sixteenth week,
reckoning from the non-appearance of the menstrual  discharge,
and  the period when she supposed herself to become  pregnant.
" This woman  is an excessively irritable woman, physically and
mentally; and she affirms most confidently, that she invariably
suffers much constitutional disturbance within one week after im-
pregnation,  and that the acts of  intercourse are so seldom with
her  husband, that she  has in  every case been able to date with

  * This opinion of Dr. Conquest requires confirmation. I have already quoted  a
case by Dr. Montgomery, in which there was a striking variation, (Page 195) and
may now add his opinion, that the time of quickening will in the majority of cases,
be found to vary in the same person in successive pregnancies.  (Signs of Preg-
nancy, p. 86.)  Dr. Hamilton also remarks that Dr. Conquest has stated the excep-
tion, not the general rule.  (Practical Observations, p. 55.) 
LEGITIMACY.
483
correctness, with the exception of the two (protracted) cases, and
then she took the same data as the ground of her opinion."
  In the second case,  the opinion was deduced from the absence
of menstruation and quickening.  She  quickened  at  the seven-
teenth week,  and twenty-eight weeks from that to birth made
forty-five weeks.
  Dr. Conquest  was  asked  whether he had known a woman
menstruate during  pregnancy.  He replied,  " I think a woman
does not menstruate, in the common acceptation of the term.   I
know a woman will lose blood periodically, but I believe these
are all cases in which the extremities of certain arteries termi-
nate below the uterus, in the upper parts of the vagina; and I
believe, that in by far the majority of cases of reported menstru-
ation, if the discharge is examined by one or two tests, it will be
found to be blood, and not the menstrual secretion, which differs
materially from blood."
  Dr. Blundell had  personally known but one case in which preg-
nancy was prolonged beyond nine calendar months.  This  fe-
male became pregnant on the 9th of August, and was delivered
on the 23d of May, (287 days.)  Dr.  Blundell saw  her a few
days  after impregnation—there were  symptoms  of irritation
about the bladder and adjacent parts, and the catamenia  were
absent.   He  had no doubt that  these symptoms arose from im-
pregnation.
  This witness professed himself a believer in protracted gesta-
tion, from this case—from the observations of Tessier on brutes,
showing that it actually occurs  with them, and the observations
of others on  the human subject.
  Dr. Merriman had  practised midwifery for thirty years.  The
ordinary period of gestation is about forty weeks;  but in his own-
experience, he had  known cases to exceed this—some 285 days,
some 287,  two or  three 296, one 303, and one 309 days.  The
last was of a lady  who had borne six or seven children.   " She
 always calculated her reckoning from the last day on which  her
monthly period ceased.   On this occasion she was perfectly well
on  the 7th of March; and from some circumstance, which I did
 not press  to know, she said she  supposed herself to have con-
 ceived on the 8th of  March."  This lady was delivered on  the
 11th of January, being 309 days.
   On cross-examination, Dr. Merriman was asked how he  had 
484
LEGITIMACY.
calculated his protracted cases.   He answered, •■ From the time
at which the last appearance of the menstruation ceased; from the
termination of the monthly period.''  In the last case, the female had
menstruated  on the 7th of  March; and both females were mar-
ried, and lived with their husbands.   It was very properly asked,
whether the  intercourse which produced  conception, might not
have been at any time  previous  to the  next period; and if so,
whether, allowing it only to have occurred in the middle between
the two menstruations, most of the cases would not be brought to
the usual term of forty weeks, while the rest might be referred to
it by admitting the opinion that pregnancy took place just before
the expected  menstrual period 1  Deduct 28 days from  309, and
the result  exceeds  forty weeks by only one day.   Dr. Merriman
readily allowed the correctness of all these inferences.  He threw
out an  idea,  that impregnation  is by no  means so common the
day before the expected term of menstruation, as it is the day
after the menstruation has  ceased.*
  * Dr. Merriman, at a period subsequent to the above trial, published his observations
in detail.  They are contained in  the Medico-Chirurgical Transactions, vol. 13, p.
338; and the following abstract from his paper deserves insertion here.
  " When I have been requested (says he) to calculate the time at which the acces-
sion of labour might be expected, I have been very exact in ascertaining the last day
on which any appearance of the catamenia was distinguishable, and have reckoned
forty weeks from this day, assuming that the 230th was to be considered as the le-
gitimate day of parturition.  The subjoined table shows bow often this day was de-
viated from, and  what was the actual number of days from the day of menstrual in-
termission to the birth of the child."
A Table of the births of 114 mature children, calculated from, but not including, the
            day on which the catamenia were last distinguishable.
    At 255 days,  1                     At 262  days,  2
      256
      259
At 267 days,
   268  -
   269  -
   270  -
   271  -
   272  -
   273  -
At 288 days,
   289  -
   290  -
   292  -
   223  .
.	1		263 -	2	
.	1		264 -	4	
	—		265 -	1	
	3 in 37th week.		266 .	4 13 ir	t 38th week.
1	At 274 days,	4	At 281	days,	5
1	275 -	2	282	.	2
4	276 -	4	283	.	6
1	277 -	8	284	.	1
2	278 -	3	285	.	4
2	279 -	3	286	.	3
3	280 -	9	287	-	1
14 in 39th week.		33 in	40th week.		22 in 41st week,
5	At 295 days,	1	At 303 days,		1
2	296 -	2	305	.	1
2	297 -	2	306	.	2
4	298 -	4			
2	301 .	1			4 in 44th week
15 in 42d week.         10 in 43d week. 
LEGITIMACY.
485
   Dr.  Power  had  practised midwifery for thirteen years.  He

was  decidedly of opinion  that gestation  may  be extended  to

eleven calendar months, if  not  longer.   He had met with from

thirty to fifty cases in which it  exceeded the ordinary term, and

some in which it went to the period just named.   His opinion is

deduced from  the statements of the females as to  the period  of

menstruation and the time of quickening, and also from physiolo-

gical reasoning, an account of  which I have already given.

   Drs. Hopkins, Dennison,  and H. Davis were believers in pro-

tracted gestation, but their examinations did not elicit any very
positive facts.

   Dr.  Elliotson  had, at a  former period,  delivered  lectures on

Forensic Medicine in London; and the result of his examination

for this purpose, of works- by eminent men on the  point  in ques-

tion,  led him to believe  it possible.

   Mr.  Sabine spoke of  the  case of his own wife.   Her last men-

struation was on  the 14th  of September;  she quickened  in the

second week of January, and was delivered on the 14th of  Au-

gust; being  a ten months' case, if we date  from the 14th of  Oc-

tober ;  or ten months and a half, if from the middle of the.period.

   Mr. Chinnocks related the case of a female who  exceeded her

calculation eighteen days, but the particulars were not sufficiently

investigated.

   Lastly, Mr. Hawkes,  an accoucheur from Oakhampton, in  De-


  From this table, Dr. Merriman thinks it fair to infer that conception is  effected
more commonly soon after the catamenial period has intermitted,  than immediately
before  the recurrence of that discharge.  On a few occasions, he observes, the period
of delivery, dated from the last appearance of the catamenia, has exceeded 44 weeks,
or 308 days.  The  first is the case mentioned in the text. The lady has, in ten preg-
nancies, borne eleven children; and on all these occasions, became pregnant almost
immediately after the monthly discharge. In addition  to the facts stated above, he
observes that the child was larger than most of her former ones, and the labour was
longer. In reply to the objections made on his examination, he urges that she was
correct in reckoning from this  datum in  all her former pregnancies, and again in a
succeeding one.
  Another was that of Mrs. N. who was  unwell in November, 1822.  She recovered
on the  15th, and had no subsequent appearance. Her labour took place on the 5th of
October, 323 days from the day of intermission.
  A third was a female aged upwards of forty, who had not borne a child for more
than nine years. She was unwell for the last time in March, 1823.  She hoped from
this that she had passed the critical period; but shortly after, she began to enlarge in
size.  As this increased, it was feared that ovarian disease might be present.  Dr.
Merriman, however, on examination at a period when the catamenia had not recurred
for twelve months, found her pregnant.  She was safely  delivered on the 27th of Sep-
tember, 1824.
                                41* 
486
LEGITIMACY.
vonshire, spoke of some cases of 41 and 42 weeks, but no definite
facts were given by him.   He, however, advanced an idea, that
pregnancy continued longer with males than females ; assigning
280  days for the  latter, and 290 for the  former.  But, said the
Solicitor General, suppose  the child  is  an hermaphrodite—what
then is the time ?  He answered, " that I should take between the
two."
  Several  females were  also examined as  to their own expe-
rience on this subject, but the result was not definite or satisfac-
tory.
  Such was  the medical testimony in the famous Gardner peer-
age case.  I  need scarcely add, that it was little heeded  in the
decision—that was  founded on the well established adultery of
the mother of Jadis; and the son of Lord Gardner by Miss Smith,
obtained the peerage.*
  Sir John S. Copley, Attorney-General, (now Lord Lyndhurst,)
who appeared for the crown, and whose speech was therefore in
the nature of a judgment, made the  following remarks  on  the
medical  evidence.   " The witnesses on both sides state that 280
days is the extreme of  the usual time of gestation.  This is not
confined to the witnesses  on the part of the claimant; every wit-
ness on the other side states that the extreme of the usual and
natural time, according to the ordinary course of nature, is 280
days.  But  then it  is said, there may be exceptions; prodigies
may happen.  Be it so, then it is incumbent upon those who con-
tend for the exceptions to  make them out.  The onus is on the
side  of those who say there are exceptions.   The proof must be
such as to exclude any reasonable doubts.   These prodigies will
not be  believed  on  secondary  evidence, and when these pre-
tended cases of exception are examined, it will be seen that there
is nothing established in  them satisfactory,  nay, which  ought to
be the ground of action in  a case so important  as  the  present."
(Le Marchant, p. 303.)
  I have to a certain degree anticipated the concluding purpose
of this section, viz. to present  the  opinions of distinguished ac-
  * For the details of this case, I am indebted to Dr. Lyall's " Medical Evidence re-
lative to the duration of human pregnancy, as given in the Gardner peerage case,"
first and second  editions, and to Le Marchant's report of the proceedings of the
House of Lords on the claims to the Barony, of Gardner. London, 1828.  (In  the
State Library.)  See also Cyclopedia of Practical  Medicine, art. Succession.  The
medical student will find remarks on this testimony in the Edinburgh Medical and
Surgical Journal, vol. 27, p. 109 ; and Medico-Chirurgical Review, vol. 9, p. 170, 
LEGITIMACY.
487
coucheurs.   It would, however, be incomplete, were I not to add
some more of these, and  for a reason which must probably ere
this have occurred to the  reader.   Many of the cases now enu-
merated, have  the stamp of adultery on them.  It is in vain to
urge  such  as conclusive  in favour of protracted  gestation.   I
come  now to some which appear unexceptionable  in  this re-
spect.
   The first  I shall quote, is from  Dr. Dewees of Philadelphia.
" The husband of a lady,  absent seven months in consequence of
embarrassments, returned clandestinely one night; and  his visit
was known only to his wife, his mother, and Dr. Dewees.   She
was within one week of her menstrual period, which was not in-
terrupted, but the next one was.   In  nine  months and  thirteen
days (forty-one weeks)  from the  date of the visit, she was deli-
vered of a healthy child."*
   In a subsequent edition, he observes, " I  have had every evi-
dence this side of  absolute  proof, that  it has been prolonged to
ten calendar months, as an habitual arrangement in at least four
females; that is,  each went one month longer than the calculations
made from an allowance of ten or twelve days after the cessation
of the last menstrual period, and from the quickening, which was
fixed  at four months.  Besides, a case within a short time  has
occurred in this  city, where the lady was not delivered  for  full
ten months, after the departure of her husband for Europe;  yet
so well  and so justly too  did this lady stand in public estimation,
that  there  did not  attach  the slightest  suspicion of a  sinister
cause."f
   * Dewees' Midwifery, p. 170.  If February be included in the above mentioned
term, it will be 283 days; if not, 285 or 286 days.
   t Dewees' Midwifery, p. 130, third edition.  I must be pardoned in asserting, that
the case adduced by Prof. Dewees, from the fourteenth volume of the New-England
Journal of Medicine, is not applicable to the present subject.  The female  became
pregnant April 1, 1822; suffered much  from sickness, and died  undelivered, May
1824.  On dissection, the uterus  was found diseased—bearing marks of inflamma-
tion, and a full grown fcetus was discovered.  If we thus bring in the agency of dis-
ease, we at once decide the question, and all reasoning on the healthy state of the
parts, and the consequences naturally resulting, is at an end.
   Cases somewhat resembling the above, are mentioned by Mr. Cullen, of a female
who bore  her child thirteen months from the time of her last menstruation; when
delivered, it measured between nine and ten inches, and weighed six ounces. (Lon-
don Medical Gazette, 1829.)  Also by Dr. Homans of Boston, of a female who sup-
posed herself pregnant in September, 1827; had all its symptoms for several months,
but between the sixth and seventh, there was a great diminution of size,  which con-
tinued until the ninth month.  At this time she had regular labour pains, which
continued  for  twenty-four hours, when they ceased, and she returned to her usual
occupations.  In September, 1828, she was seized with uterine haemorrhage and la- 
488
LEGITIMACY.
   Professor Desormeaux gives the following case as occurring
 in a patient whom he attended.  " A lady, the  mother of three
 children, became deranged after a severe fever.   Her physician
 thought that pregnancy might Jiave a  beneficial  effect  on the
 mental disease, and permitted her husband to visit her, but with
 this restriction, that there should be an interval of three months
 between  each visit; in order that,  if conception took place, the
 risk of abortion from further intercourse  might be avoided.  The
 physician and attendants made an exact note of the time when
 the husband's visit took place.  As soon  as  symptoms  of preg-
 nancy began to appear, the visits were discontinued.  The  lady
 was closely watched all the time  by her female attendants.  She
 was delivered at the end  of nine calendar months and a fortnight)
 and Desormeaux attended her.*
   Dr. Hamilton, Professor  at Edinburgh, says, " In one case,
 many years  ago, the lady exceeded the  tenth revolution  of the
 menstrual period, by twelve days; another lady exceeded it by
 sixteen, and  another by twenty-four days.  The latter menstrua-
 ted on the 1st of August, and was not delivered  until the 28th of
 June.  Another lady, the mother of a large family, exceeded her
 period by above a fortnight, on the 4th of March, when her hus-
 band  went to England, where he  resided for some months; but
 she was not delivered till the 6th of December."
   Professor  Burns observes, " On  the other hand,  it is equally
 certain, that some  causes which we cannot explain or discover,
 have the power of retarding the process, the woman carrying the
 child  longer than nine months, and the child when born being not
 larger than the average size.   How long it is possible for  labour
 to be  delayed beyond the usual time, cannot be easily determined.
 The longest term I have met with,  is ten calendar months and
 ten days, dated from the  last menstruation.   In the case of one
 lady who  went  this  length, her regular menstrual  period  was
 five weeks;  and in her other pregnancies, she was confined ex-
 actly  two  days  before the  expiration of ten calendar months
 after menstruation."f

hour pains; and a fcetus, one and a half inch long, with a placenta, was expelled.
(Boston Medical and Surgical Journal, vol. 2, p. 372.)
  * Dr. Granville in Lancet, N. S. vol. 5, p. 418.
  t Quoted in Cyclopedia of Practical Medicine, art. Succession, vol.4, p. 90.  Dr.
Hamilton thinks, " that if the character of the woman be unexceptionable, a favour-
able report should be given for the mother, though the child should not be produced 
LEGITIMACY.
489
   Velpeau  knew a  woman  who  computed that  she was  four

months gone when she came to his amphitheatre.   He distinctly

felt both  the active  and passive motions of the fcetus.  Appear-

ances of labour  took place at the end  of the  ninth  month, but

they were soon  suspended, and did not  return for  thirty days.

She then languished a whole week, before she was delivered ; so

that,infact, this  took place on the 310th day.*

   Some  other striking cases might be added  to the above, but

enough,  I presume,  have been given.

   To the long list already  noticed, of believers in  the doctrine of

protracted gestation, must  be joined the names of Haller,  Zac-

chias, Petit, Harvey,  Mauriceau,  Smellie, and a host of what

may,  by distinction, be  called the elder writers.   Among the

physicians  of our  own  day,  may be mentioned the names of

Fodere,  Capuron, Richerand, Osiander, Sprengel, Adelon, Orfila,   •

Madame Boivin, Ryan, Montgomery, and Campbell.f

till near ten calendar months after the death or sudden absence of the husband. He
used to say in  his  lectures, that in his own practice, he never knew  a woman to ex-
ceed the eleventh  menstrual period."  Note by Dr. Lyall, in his Gardner Peerage
Case, p. 43.
  We have now the published opinion of Dr. Hamilton. In his " Practical Observa-
tions on subjects relating to Midwifery" the following remark occurs.  " I am quite
certain that the term  allowed by the Code Napoleon, viz. 300 days,  is too limited,"
and he is inclined  to regard ten calendar months, which he believes to be the esta-
blished usage of the Consistorial Court of Scotland, as a good general rule. Page 59.
  * Velpeau's Midwifery, p. 246.
  t Those  who wish to examine this subject further, are referred, in addition to the
authorities  already quoted, to Fodere", Metzger, Louis, Valentini, Schurigius' Disser-
tation in Schlegel,  vol. 4, p. 232.   Dr. Montgomery's cases occurring under his own
observation—one protracted to 291 days and the  other probably longer, are given in
his Signs of Pregnancy, p. 275, &c.
  According to Dr. Michaelis of Kiel, protracted gestation was epidemic in the Lying-
in Institution of that  city for the  year ending July, 1818.  Of 64 cases, there were
19 in which the pregnancy exceeded 300 days; 13, over 290 days;  19,  in which it
exceeded 280 days; 10, in which it was between 260 and 280 days; and 3 in which it
was less than 260.  The average of all these is 289 days.  Dunglison's Medical In-
telligencer, vol. 1, p. 296.
  Among individual cases, I may mention Dr. Collins', at Liverpool, in 1824, which
he considered an eleven months' pregnancy—founded on the  last appearance of the
menses, but particularly on an examination of the os uteri, which he found, at what
she called her eighth month, with difficulty distinguishable from the body of the uterus.
At the end  of the  ninth,  it was in some degree open, flat, and stretched.   She had
repeated pains, but these went away, and she was not delivered until two months
after.  She had been greatly distressed during her pregnancy,  and Dr. Collins is
disposed to ascribe much  to this cause.  (Edinburgh Medical and Surgical Journal,
vol. 25, p.  145.)   There, are, however, some doubts as to the precise length of this
gestation.   (See Lyall, and Medico-Chirurgical Review, vol. 9, p. 212.) Also a case
by P. C. Blackett,'London Medical and Surgical Journal,) of a female, who, in the
beginning of December, 1820, was seized with retchings and sickness in the morn-
ing, vertigo, pain and tension in the breasts. During four successive pregnancies,
she had a regular  monthly discharge, and in about two weeks after the above  retch-
ings, she had this again, and it continued monthly, until she was confined.  She ex- 
490
LEGITIMACY.
 IV.  Of the laws of various countries on  the subject of legitimacy.

   The Roman law did not consider an infant legitimate, which

was born later than ten months after the death of the father, or

the dissolution of the marriage.*   Such was also  the French law

prior to the Revolution.

   In 1634, a  case was decided by a majority of the judges of the

supreme  court of Friesland, by which a child was  admitted  to

the succession, though not born till three hundred and thirty-three

days from the  husband's death, and what increases the  latitude

of the decision, is that the husband  was for some  time a valetu-

  inarian,  and  for  fourteen days before  his death, confined to his

bed.f
   The  Prussian  civil code declares  that an infant born three

hundred  and  two days after  the death of the husband, shall  be

considered legitimate, and a case has occurred, where one born

three hundred  and forty-three days after the death of  the  hus-

band, was adjudged a bastard  by the legislative commission of that

eountry.J

   The civil code now in force in France contains the following

provisions.   The child born in wedlock has the  husband for  its

pected this in September, 1821, but no signs of labour appeared.  In October  she
was seized with pain in the region of the liver; and during the use of remedies, ex-
perienced motion for the first time. On the 23d of December, 1821, she was deli-
vered of two male infants, with separate placentae, and  each weighed about eight
pounds.  (Boston Medical and  Surgical Journal, vol. 9, p. 153.)  By Dr. Ryan, of a
female who menstruated the last week in February, 1826, quickened in July, but
instead of being  delivered in November, had spurious pains through it and the  two
succeeding  months. The child was not born until February 28, 1827.  (Medical
Jurisprudence, p. 146.)  Dr. Campbell in his Midwifery, states that he has seen pro-
tracted cases, 11, 13 and 18 days, beyond nine calendar months.  He adds, that the
oftener an individual is impregnated, the more likely is the gestation to be prolonged.
" In females who are  pregnant for the first time, gestation seldom exceeds nine
months more than a week." p. 71.
   In opposition to the above examples, I add the following,  recently reported by Pro-
fessor M'Keen, of Bowdoin College.  He was consulted  in a case of retroversion of
the uterus,  of the most obstinate nature.  It had probably occurred nearly a year
previous to  his visit.  After a patient  and well managed application of means, the
complaint was in a great degree removed.  During all  this time, she had been at
Topsham, the residence of Professor M'Keen, eight miles from  her home.  She
now wrote  for her husband, and on Saturday the 31st of May, he arrived, and she
 returned with him in the afternoon.   On the 23d of February succeeding, (8 calen-
dar months and  24 days, or 270 days,) she was safely delivered of a son. (Boston
 Medical and Surgical Journal, vol. 12, p. 264.
   * Fodere, vol.  2, p. 111.
   t Hargrave ut antea. This case is quoted from Johannes a Sandes' (himself a se-
nator of the court,) Collection of Adjudications made  by it.   In  Paris and Fon-
blanque, vol. 3, p. 216, the case, including the arguments and authorities adduced
even at that time, in favour of protracted gestation, is given in  the original Latin.
   X Metzger, p. 427, 429. 
LEGITIMACY.
491
father.  He may, however, disavow it, if he can prove, that from
the three  hundredth to the one hundredth and eightieth day be-
fore its birth, he was prevented either by absence or some physi-
cal impossibility, from cohabiting with his wife.  An infant born
before one hundred and  eighty days after marriage, cannot be
disavowed by him in the following cases.   1.  When  he  had
knowledge of his wife's pregnancy before marriage.  2. When
he assisted at the act of birth, and signed a declaration of it.   3.
When the infant is declared not capable of  living.  Lastly, the
legitimacy of an infant born three  hundred days after the disso-
lution of the marriage, may be contested.*
  It will be  observed, that by the  last section, the child born
after three hundred days, is not positively declared a bastard, but
its legitimacy may  be contested.  And Capuron in remarking on
this, observes, that it would probably be deemed legitimate, if no
legal investigation  should take place.f
  The following case was adjudicated under  its provisions:
  Catherine  Berard was  married on the 25th of July, 1806, to
Francois  Chappellet, who,  about six  months  after, was seized
with a pleurisy,  and languishing with  it about eight days, died
on the 20th of January, 1807. On the 3d of December of  the
same  year, and  three hundred and sixteen days after  his death,
she was delivered of a child, of which she declared the deceased
Chappellet the father.  An application was made to the court at
Chambery for the  property to which this  birth entitled her, and
it was resisted by  the relatives of the husband, on the  ground of
illegitimacy.  She  pleaded their cruel usage  during her widow-
hood, the state of poverty and sorrow to which she was reduced
by their treatment, and the fact, that at the expiration of nine
months, she had  experienced labour pains, which continued until
the middle of the tenth—as explanatory of this protracted gesta-
tion.  The court, after quoting the article in question from  the
Napoleon code, argued that it gave the child a provisionary le-
gitimacy, until the  contrary was proved by concurring facts and
circumstances.   They further observed that the term of gestation
in this case, did not exceed that allowed by many celebrated phy-
sicians, as possible; and  remarked that the widow must have
been in  a state of  sorrow and languor, in consequence of the

 * Code civil, sections 312, 314, 315, quoted by Capuron and Fodere. t Page 231. 
 492                      LEGITIMACY.

 treatment of her relatives, and thus the increase of the fcetus was
 probably retarded.   Accordingly, on the  14th April, 1808, a de-
 cree was pronounced, declaring the child  legitimate.   An appeal
 was taken from it to the court of appeals  at  Grenoble.  M. Mi-
 tral, the advocate for the mother, advanced in his pleadings most
 of the arguments which we have already noticed—such as the
 variety in the period  of gestation, quoted numerous  cases  from
 medical authors, and  urged the decisions of the French courts as
 precedents in the present instance.  The modesty and good conduct
 of the mother were not forgotten, nor the fact, that she had expe-
 rienced labour pains at the end of nine months. The court in their
 arret textuel, observe, that as the  315th article of the Napoleon
 code declares, that the legitimacy of the child born three hundred
 days  after the dissolution of marriage  may be contested, it by
 implication destroys  its claim in a disputed  case, and affixes a
 term beyond which,  gestations are  to  be deemed illegitimate.
 Again, the 228th and 296th  articles of the  same code, forbid a
 widow or divorced female  to marry, until ten months after the
 dissolution of marriage.  Here again the  term of three  hundred
 days appears to be pointed out as the most extensive period al-
 lowed  to  pregnancy.  The father, also, by the  312th article,  is
 permitted  to disavow the child, if  he proves  a physical  impossi-
 bility of cohabiting with his wife for ten months previous.  The
 court contend, that  the contesting of the  legitimacy on the part
 of the relatives, is  equivalent  to a disavowal on the part of the
 putative father, and conclude with remarking, that any extension
beyond the term of three hundred days, must prove dangerous to
 morals, and  the repose of families.   They therefore declared the
 child in question illegitimate.*
   The Scotch  law is concise and decisive.   " To fix bastardy
 on a child, the husband's absence must continue till within six
lunar months of the birth, and a child born after the tenth month
is  accounted a bastard."f
   I am enabled to add some cases  illustrative of its administra-

  * Causes Celebres par Maurice Mejan, vol. 6, p. 93 to 120.
  t Erskinc's Institutes of the Laws of Scotland, quoted in the Edinburgh Medical
and Surgical  Journal, vol. 1, p. 334. Dr. Campbell (Midwifery, p. 71,) disapproves
of  the first part.  " The latter period I conceive to be no more than just, but the for-
mer certainly affords too great a latitude.  There is not a well authenticated case
on  record, of a child being reared, when born in the middle of the seventh month,
far less the conclusion of the  sixth. I think six months and three weeks is the
earliest period that ought to  be admitted." 
LEGITIMACY.                      493
tion.  James Sandy was married to Margaret Bain on  the 14th
of March, 1819, and died on the 3d of April thereafter.  Bain
was delivered of a child on the morning of the 1st of February,
1820, being nine calendar months and 29 days from the death of
Sandy.   The brother of the deceased took possession  of the pro-
perty, and an action was brought against him by the tutor of  the
child.  Lord Meadowbank, as Lord Ordinary, reported in favour
of the brother, on the ground that lunar months were meant in
the civil law, and consequently in  the law of Scotland.  A dif-
ferent opinion was entertained by Lord Gillies, who found " that
the lapse of 9 calendar  months and 29  days, is not sufficient
per se to overturn  the presumption of the child's legitimacy."  It
was, however, urged, that  Sandy had from  an  early period of
life, been confined  to bed; that he was incapable  of procreation,
and that Bain was a woman of immoral  habits.  The Court al-
lowed  proof of these  allegations,  " on  advising which,  they
waived  the general point, and  in respect of the evidence,  as-
soilized  the defenders" (found for the defendant.)*
  In the case of Stewart v. McKeand, (Court of Session Deci-
sions, August  1774,)  the  prosecutor must  have gone eleven
months; or it is impossible that the defender could be the father.
The court, after stating that the  period being thus fixed and  as-
certained, repudiated the idea of the  climate of Scotland, as had
been urged by counsel, having the effect of protracting the term
of gestation beyond nine months.  No Scottish lawyer ever car-
ried the term of legitimacy beyond ten months.f
  In another instance, the husband had been  in the West Indies
since 1822, and on the  6th  of December, 1824, the wife was de-
livered of a child,  of which she  alleged one Robertson to be the
father.   According to his own statement, he arrived at Perth  on
the 30th of April,  1824, and " about  a month afterwards  or so,"
had connexion with the female.  This was about six months and
six days  before the birth of  the child, and he offered to prove
that it was full  grown.   But  the court held, that the legal pre-
sumption was, that he had  connexion on  the  day of his  arrival,
and the  interval was  then  eight lunar months,  excepting  four
days.  The vagueness  of his plea, with the oath  of the  mother,

 * Sandy v. Sandy. Cases in the Court of Session. Vol. 2, p. 406.
 t Le Marchant, Report of the Gardner Peerage Case, Appendix, p. 337.
VOL.  I.
42 
494                       LEGITIMACY.

induced a decision that he should support the child.   The proof
that the child was full grown at birth was refused.*
  The English law, on which our own is founded, does not pre-
scribe a precise  time.   There  are, however,  some decisions,
which will show the  ordinary course of  adjudication.  In  the
eighteenth year of Edward the first, Beatrice, the wife of Ro-
bert  Radwell, was  delivered of a son, eleven  days  after  forty
weeks.   The husband had been seriously ill, and had no access
to his wife for one month before his  death.   The child was pre-
sumed to be a  bastard, and judgment was  given accordingly.
Gilbert De Clare, Earl of Gloucester, died on the 30th of June of
the  7th of Edward the  Second, and on the 29th of January of
the 9th year, (within  one day of a  year and seven months,) his
sisters and co-heirs prayed livery.  The countess pled  that she
was  big with the earl, which was accordingly found per inquisi-
tionem.  The question  hung in deliberation, nor  did  they obtain
livery till the 10th of Edward.  In another case, during the  18th
year  of Richard  II. Andrews, the husband died  of  the  plague.
His  wife,  who was a lewd woman, was delivered  of a  child
forty weeks  and ten days after the death of the husband.   Yet
the child was  adjudged legitimate  and  heir to Andrews,  for
partus potest  protrahi ten days ex accidente.\
  These, I believe, are all the cases on record, until that of Fos-
ter and  others v. Cook, tried  in  the English Court of Chancery.
Henry Cook died on  the 14th of  January, 1780,  and on the
9th of November, 1780,  following, (forty-three weeks except one
day,) his widow was  delivered  of a  son.  A trial was held, and
the jury found this posthumous  child to be  the heir-at-law.J
  It  is evident, however, from the remarks  of Lord Eldon on
the Gardner Peerage Case, (Le Marchant, p.  286,) that  this case
ought not to have been reported as a valid decision of an English
Court of Law in favour of a period so protracted.   " The ver-

  * Robertson v. Petrie. Cases in the Court of Session. Vol. 4, p. 338.
  t These cases are taken from Hargrave's and Butler's Notes on Coke upon Little-
ton.  (Note 190, on sect. 188.)  There is a more full report of the case of Andrews,
in Croke Jac. p. 541.  It is stated, that "the husband's father abused her, and
caused her to lie in the streets ; and three physicians (two of them doctors of phy-
sic) made out that  the child came in time convenient to be the child  of the dead
party ; and that it is usual for a woman to go nine months and ten days, i. e. solar
months at 30 days, and not lunar months.  And that by reason  of want of strength
in the woman or child, or from ill usage, she might be a longer time, viz. to the end
of ten days or more.  And the physicians further affirmed, that a perfect birth may
be at seven months."  This  case is  also reported under the  title of Alsop v. Bow-
trell or Boutram, and I rather think, also under that of Alsop v. Stacey.
  \ Brown's Chancery Cases, vol. 3, p. 349. 
LEGITIMACY.
495
diet was a matter of indifference, except so far as it identified a

necessary party."

   Within  a few years, the Gardner Peerage  Case, and the fol-

lowing, are all that I can find mentioned in the English law books,

   "In the ' Observer,' Sunday newspaper, for September 9, 1827.

a trial for seduction, Anderton v.  Whitaker, is reported.   The fol-

lowing evidence is stated to have  been given by the female:  ' It

was on the 8th of January, that I had the intimacy with the de-

fendant, but never had any before or since.'   The child was born

on the 18th of October,—284 days from the time of conception."*

   I have  already mentioned, that like  the English, we have no

law on this subject, and I  can find no American cases, that have

been adjudicated, except one, which probably belongs most pro-

perly to the next section, and is there given.f

   Messrs. Hargrave   and  Butler, in commenting on  the early

English cases, observe, that  "these precedents, so far from cor-

roborating Lord Coke's limitation of the ultimum tempus pariendi

(forty  weeks) do, upon the whole, rather tend to show, that it

hath been the  practice in our  courts  to consider forty weeks

merely as the more usual time,  and consequently not to decline

exercising a discretion of allowing a  longer  space, where the

opinion of physicians  or the circumstances of the case have  so

required."!  If then a contested case  should ever arise in our

courts, the  opinion of medical men must be brought forward to

 decide it.  What  that opinion is, my readers  have  seen in the

 present and former sections.  A majority  of writers, at least,

are believers in protracted gestation.§

   * Dr. Merriman, in Medico-Chirurgical Transactions,  vol. 13, p. 640.
   f In a former edition, I stated that cases of protracted gestation are rarely heard
of in England and America, and  that they appear to have occurred most frequently
 in countries where the administration of justice was arbitrary, or at least fickle and
 unsteady.  I observe that Dr. Graves contradicts this, (New York Medical Journal,
 vol. 2, p. 135,) so  far as it relates to this country. It  may be so, but I was not
 aware of it.
   $ Blackstone, however, intimates, that a child  born after forty weeks, is illegiti-
 mate.  He cites Britton for  this; but the co-editors remark, that even this writer
 seems to extend it in some degree beyond forty weeks.
   § I have already mentioned the punishment for  rape in Egypt, under the present
 Pacha.  It is taken from a Communication on the present state of Legal Medicine
 in Egypt, by M. Hamont, Director of the School of Veterinary Medicine, at Abou-
 Zabel, and addressed (March, 1833,) to Dr. Leurct.  The following is what he says
 on our present subject.  " A man is absent one, two, three or four years, and on his
 return finds his wife pregnant, or children born to him during that time.  He ac-
 cuses her of infidelity ; she  denies it.  The  cause is brought before the tribunals.
The judges, after hearing both sides, and weighing the  merits of the case, gravely
decide, that children may continue four years in  the womb of the mother.  Apres
cinq ans, il n'en est plus ainsi."  (Annales D'Hygiene, vol. 10, p. 204.) 
496
LEGITIMACY.
   And now I may be permitted to inquire, whether it is intended
 to give this  belief its full force  and application 1   Is it intended,
 that in a case, tainted with the suspicion of adultery, nay its cer-
 tainty, a child shall be legitimated, although born eleven months
 after absence or sudden death 1   Will physicians, like Dr. Gran-
 ville, in  the  Gardner case, tell the court, that  they  see  nothing
 impossible in this 1  If so, and the knowledge of this opinion ex-
 tends among the community, where will be the security of suc-
 cession ?   Or even  waiving this, what must be its effects when
 generally understood, on public morals 1
   Being  in  the  minority, I am not authorized to propose  any
 positive  rules.  I may, however, quote some  remarks  from be-
 lievers in this doctrine, that deserve every consideration.
   " At the same time, we must add, that the cases which to us
 appear to carry with them  the fullest demonstration of their
 truth, are those in which  the ordinary term was not exceeded by
 more than three or four weeks."*
   " If the possibility or probability of its being prolonged, is con-
 ceded; it does not follow,  that, in actual practice, judgment
 should go upon the general probability of the event, as a  fact in
 physiology.  On the contrary, since in the abstract, more disor-
 der would be occasioned in society,  by admitting  the  general
 principle  as adequate to  decide  special cases, than by rejecting
 it  altogether, we conceive that if a definite period is not fixed by
 law, proof of the special  probability, or improbability, should be
 required in each case."f
   If these opinions are acted upon, it may prove a happy circum-
 stance, that we have no laws on  the subject.   Juries will gene-
 rally dispose justly in suspicious cases.
     V.  Of some  questions relating to paternity and filiation.
   These form a proper supplement to  the present chapter, from
their connexion with its leading subject.
   It might be supposed that common decency, as well as a pro-
per respect for the opinions of mankind, would prevent those sud-
den marriages which sometimes take place immediately after the
death of a former husband.  There have, however, been females

  * Montgomery, in Cyclopedia of Practical Medicine, art. Succession.
  t Edinburgh Medical and Surgical Journal, vol. 27, p. 114. The whole of the
article from which this extract is taken, is well worthy of an attentive perusal. It
is a review of the evidence in the Gardner case. 
LEGITIMACY.
497
in all countries, who have disregarded these restraints, and united
themselves to a second partner before the " first brief week of
mourning is  expired."  Besides the injury that  such cases  pro-
duce on the public manners, there is a difficulty which may arise
in a legal view.  She may be delivered of a child at the expiration
often months from the death of the first husband;  and the question
then occurs as to the paternity of the infant.
  The Romans endeavoured to prevent  this, by forbidding the
widow to marry until after  the expiration of ten months; and
this term was  prolonged by the emperors Gratian  and Valen-
tinian, to  twelve.   This  law  has been imitated in  the present
French  code, which also forbids  the marriage before  ten full
months have elapsed since the dissolution of the  previous one.*
  But if these  laws are transgressed, or if there be no laws, (as
in England and our own country) against such precipitate  con-
nexions, whom shall we declare to be the father of the child ? I
will answer this, by citing some cases, and then mentioning the
laws in force respecting it.
  About the period when the plague  broke out in Naples, one
Antoine, aged forty, married Jeronime, a young lady, and on the
second day after, died of that fatal disease.   Aniello,  a relative
and intimate friend of the widow, having obtained the necessary
dispensation, married her immediately afterwards.  She was de-
livered of a child two hundred and seventy-three days after the
consummation of  the  marriage with  Antoine, and two hundred
and sixty-eight after her union with Aniello—being in  the one
case, thirty-nine weeks, and in the other, thirty-eight.  The ques-
tion, who was the father of this child? was  put to Zacchias.
  In order to solve the difficulty, he canvassed  the condition of
the  two husbands, the  mother, and the child.   Antoine, he ob-
serves, was of a feeble constitution, and his marriage was a forced
one, and contrary to the wishes of the female, who was attached
to Aniello.  The  latter was strong and robust.   The wife stated
that the consummation of the first marriage was attended with a
discharge of blood, which she  attributed  to menstruation—that
in the interval  of her widowhood,  it had slightly returned, but

  * Fodere, voL 2, p. 205. " The same constitution," says Blackstone," was probably
handed down to our early ancestors from the Romans, during their stay in this island,
for we find it established under the Saxon and Danish governments. Sit omnis vidua
sine  marito duodecim menses." (Blackstone, vol. 1, p. 457.) It was the law before the
conquest.
                              42* 
498
LEGITIMACY.
never after the second marriage.  Now, from this, it might be
supposed, that as menstruation  had not returned  regularly since
the first marriage, the pregnancy was caused by Antoine.  Zac-
chias, however, supposes that the sanguineous discharge was the
consequence of defloration, and that as she received the advances
of her first husband with disgust, the suppression might arise from
mental uneasiness.  He attaches no importance to  the fact, that
if the child was the son of the second husband, the period of preg-
nancy would fall  short of nine months, and thinks  it sufficiently
counterbalanced by the youth of the parties.   He therefore de-
cided, that it was the child of Aniello.*
   In another case, a widow married shortly after the  husband's
death, and in the fifth month of her second  marriage, was de-
livered of a son, who survived.  He was baptized  by the name of
the second husband, and when he arrived of age, claimed to be
acknowledged as his son, and to be supported accordingly.   The
tribunal of the Rota, after taking the  advice  of physicians and
lawyers on the subject, decided that he was not  the offspring of
the second marriage, on the ground that a five months' birth was
not viable, or could not have  survived.f
   There are  also some English cases on record.   In the 18th of
Richard the Second, a  woman, immediately after the death of the
first husband, took a second, and had issue born forty weeks and
eleven days after the death of the first husband.  It was held to
be the issue of the second husband.  In another instance, " The-
car marries a lewd woman, but  she  doth not  cohabit with him,
and is suspected of incontinency with Duncomb.  Thecar dies—
Duncomb within three  weeks of his death marries her, and  two
hundred and  eighty-one days and sixteen hours after his death,
she is delivered of a son.   Here it was agreed, 1. If she had not
married  Duncomb, without question the issue should   not be a
bastard, but should be  adjudged the son of Thecar.   2.  No aver-
ment shall be received  that Thecar did not cohabit with his wife.
3.  Though it is possible, that the son might be begotten after the
husband's death,  yet being a question of fact, it  was tried  by a
jury, and the son was found to be the issue of Thecar.J

  * Zacchias, Consilium, No. 73.  See also No. 75, for a somewhat similar case.
  t Zacchias, Decisiones Sacrae Rotae Romans, No. 45.
  X Hargrave's notes, ut antea.  See, also, Croke Jac. p. 686, for an account of the
game case. 
LEGITIMACY.                      499
  The English law  on this  subject is thus explained  by Black-
stone and  Coke.   " If a  man dies and  his  widow  soon after
marries again, and a child  is born within such a time,  as that by
the course of nature it might have been the child of either hus-
band, in this case, he is said to be  more  than ordinarily  legiti-
mate, for he may, when he arrives at years of discretion, choose
which of the fathers he pleases."*
  The  following  is  the only American case  that I have been
able to find.
  Michael Redlion, by his  last will and  testament, bequeathed to
his son Christian,  a considerable sum  of  money, the issues  of
which were to be paid to him during life, and at his  death, the
principal  to go to his children; but if he  died without  lawful
issue, then  the  same was to go to the other children of the said
Michael.   Christian  was married to Catharine Stout in the spring"
of  1825, and died on  the  1st  of November, 1825.  His  widow
Catharine  married to Thomas Woolverton, the defendant,  on the
16th of March, 1826, and on the 14th of  Sept. 1826, the said
Catharine  had a son born,  who is  now living.   The question  for
the jury was, who  was the father, the  first or the second hus-
band ?  Christian Redlion committed suicide, and from his death
to the birth of the child was ten months and fourteen days, and
from the  marriage of Woolverton to the birth of the child, six
months.  The plaintiffs were brothers of the  deceased, and  en-
titled to the  above  principal in case of his  dying without issue.
The court charged the jury in favour of the  plaintiffs and against
the child, and the jury brought in  a verdict accordingly.f
   It has also been suggested, that the resemblance of the child
to  the  supposed  father, might aid in  deciding  these  doubtful
cases. J  This, however, is a very  uncertain sOurce of reliance.
We daily  observe the most striking difference in physical traits
between the parent and the  child; while individuals, born in  dif-
ferent quarters of the globe, have been  mistaken for each other.

  * Blackstone, vol. 1, p. 456. Hargrave, as already  quoted, and also in note 7 to
fol. 8. a, intimates a doubt respecting the above  doctrine, and suggests that one of
the cases quoted would lead to the opinion, that "the circumstances of  the case,
instead of the choice of the issue,  should determine who is the father." This  cer-
tainly would seem to be the most  correct mode of adjudicating.
  t John and Jacob Redlion v. Woolverton.  Hazard's Register of Pennsylvania,
vol. 7, p. 363, June 4, 1831.
  X See Zacchias, vol. 1, p. 146; and Valentini's Pandects, vol. 1, p. 148.   De  Si-
militudine Natorum cum Parentibus. 
 500                       LEGITIMACY.

 And even as to malconformations, although some most remark-
 able resemblances  in  this respect  have  been noticed  between
 father and child, yet we should act unwisely in relying too much
 on them.*   There  is,  however, a circumstance connected with
 this, which,  when  present, should certainly defeat  the presump-
 tion that the husband or the paramour is the father of the child;
 and that is, " when the appearance of the child evidently proves
 that its father must have been of a different race  from the hus-
 band (or paramour,) as when a mulatto is  born of a white woman
 whose  husband  is also white, or of a black woman whose hus-
 band is a negro."f  It was on this principle that a curious case
 was decided in New York some years since.
   Lucy Williams, a mulatto woman, was delivered, on the  23d
 of January,  1807, of  a female bastard child, which became a
 public charge.   On examination according to our laws, she stated
 that Alexander Whistelo, a black man, was the father of it;  and
 he was accordingly apprehended, for  the purpose  of obtaining
 from  him the  necessary indemnity for its expenses.  Several
 physicians were  summoned before the police justices, who gave
 it as their opinion that it was not his child, but the offspring of a
 white  man.  Dr. Mitchill, however,  thought it possible, nay pro-
 bable, that Whistelo was  the father.  In consequence of this di-
 versity of opinion, the case was brought up for trial  before the
 mayor, recorder and several  aldermen, on the  18th of August,
 1808.   It appeared in evidence, that the colour of  the child was
 somewhat dark, but  lighter than  the  generality of mulattoes;
 and that its  hair was straight, and had none of the peculiarities
of the negro race.   Many of the most eminent members of the
 medical profession were examined, and they all, with the excep-
 tion of Dr. Mitchill, declared  that  its appearance  contradicted
 the idea that it was the child of a black man.  Dr. Mitchill,  for

  * " Dr. Gregory, in his lectures, 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 recog-
 nized 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."  (Paris
 and Fonblanque's Medical Jurisprudence, vol. 1, p. 220.)
  t Edinburgh Medical and Surgical Journal, vol. 1, p. 335. 
LEGITIMACY.
501
various  reasons, (for which I refer to the  account of the trial,)
placed great faith in the oath of the female, and persisted in his
belief of its paternity, although he allowed that its appearance
was an anomaly.   The  mayor, (the Hon. De Witt Clinton,) and
the court decided in favour of Whistelo.*
   In a case before Chancellor Walworth, in  1835, a  man had
been arrested on the oath of a female, that he  was the father of
her  bastard child,  and being unable to give bail,  consented  to
marry her.  It was now urged, in order to annul the  marriage
contract, that  the  defendant  had  been delivered at the time  of
making  the oath, of a negro  child, both  parties in the  suit being
white persons.  The Chancellor  said, that if  she knew at the
time when she charged the complainant  that it was a black child,
he would  consider it in the light of a fraud, and   annul the
marriage ; and directed  the master to  take  testimony on the sub-
ject accordingly.f
   It will not do, however, to extend this rule too positively with
what may be called mixed breeds.
   Parsons gives  an account, in the Philosophical Transactions,
of a black man married to an Englishwoman, of whom the off-
spring was quite  black.   In a similar  case, the  child resembled
the mother  in  fairness of features;  and indeed the whole skin
was white, except some spots on the thigh, which were as black
as the father.
   White, in his work  on the Gradation of Man, mentions a ne-
gress  who  had twins by an Englishman: One was  perfectly
black, its hair  short, woolly  and  curled; the other was white,
with hair resembling that of  an European.
   So, also, Dr. Winterbottom knew a  family of six persons, one
half of which  was almost  as light-coloured as mulattoes, while

  * See a pamphlet, entitled " The commissioners of the Aims-House  v. Alexander
Whistelo, a black man; being a remarkable case of bastardy,  tried and adjudged  by
the mayor, recorder, and several aldermen  of the  city of New York, etc." New
York, i808.  The  main scope of Dr. Mitchill's argument appears to have been,
that as alteration of complexion  has occasionally been noticed  in the human subject,
(as of negroes turning partially white,)  and in animals, so this might be a parallel
instance.
  " Dr. Mitchill's opinion on Whistelo's case, does not seem entitled to much greater
estimation  than that of a poor Irish woman in a recent London police  report, who
ascribed the fact of her having brought forth a thick-lipped, woolly-headed urchin, to
her having eaten some black potatoes  during her  pregnancy."  (Dunglison's Phy-
siology, vol. 2, p. 316.)
  t 5 Paige's Chancery Reports, 43.   Scott v. Shufeldt. 
502
LEGITIMACY.
the  other  w.as jet  black.   The  father  was a deep black, the

mother a mulatto.*

   " The offspring of a black and white," says  Lawrence, " may

be either  black or white, instead of being mixed; and  in some

rare cases it has been  spotted."

  * Edinburgh Encyclopaedia, art. Complexion.  Lawrence's Lectures, p. 259.
  It may be well also to refer, in this place, to the changes of colour that take place
in the new-born black infant.  At birth, it sometimes cannot be distinguished from
the white ; its hair has not yet  its peculiar make, and we  can only notice  the ten-
dency to dark on some parts  of the body.  In a few days, however, the change com-
mences on the countenance, and gradually extends over the body.   Cassan (On Su-
perfbetation, p. 56,) has well remarked, that these successive  changes  may prove
very useful, when a dead black  child  has  been  found, in deciding how  long it has
lived. 
CHAPTER X.
                 PRESUMPTION OF SURVIVORSHIP.

1. Of the survivorship of the mother or child, when both die during delivery. Cases
  that have been decided in Germany—in France—in the Stale of New York. 2. Of
  the presumption of survivorship of persons of different ages, destroyed by a com-
  mon accident.  Laws on this subject—Roman.—Ancient French—Napoleon code
  —English.  Cases that have occurred under each—General Stanwix—Taylor—
  Selwyn.  Propriety of having fixed laws on this subject.  Difficulty in settling
  presumptions.

   This interesting as well as intricate question, has frequently
been the subject of legal inquiry.  It is agitated when two or more
individuals  have died within a very short  period of each other,
and no witnesses have been present to notice the exact instant of
dissolution.   Accidents  also, such as fire, or a  shipwreck, may
destroy persons, and the disposition of their property will depend
on ascertaining the survivorship of the one or the other.  It is not
to be supposed that medical science can solve the difficulty;  but
it  may, in those extreme instances, where no aid can be derived
from facts, assist  in laying down certain principles.   I shall  en-
deavour to suggest some of these, while relating  such cases as I
have been enabled to  obtain.   They may serve as a guide for fu-
ture investigations.
   The subject will be advantageously considered,  1. As to  the
survivorship of the mother or child, when both  die  during  de-
livery ; and 2. As to the survivorship of persons of different ages,
destroyed by a common accident.  This  last may seem to in-
clude the  first;  but the distinction which I wish to make, will be
readily understood.
I.  Of the presumption of survivorship of mother or child, when both
                      die during delivery.
   The Imperial Chamber of Wetzlar were consulted, at the con-
clusion of the  seventeenth century,  concerning the case of a
mother and child, who,  some  years  previous,  had  both  died
during delivery.  There were no facts on which an opinion could
be founded, and the naked question was presented.   They de- 
504
PRESUMPTION OF SURVIVORSHIP.
 cided, for physical reasons, that the mother had died first;  and
 the commentator, in noticing this case, remarks, that undoubtedly
 these physical reasons were, 1, that  the  mother was exhausted
 by the labour: and 2, that the infant would not have died, until
 deprived, by the death of the mother,  of its nourishment.*
   It is questioned hy medical jurists whether this decision is cor-
 rect, and there are certainly many reasons  to  be  assigned why
 the presumption should be against the  child. Its life may be early
 endangered by a difficult  or slow delivery.   There may be  a
 pressure on the umbilical cord,  or  the  placenta may be partially
 detached, and its  death ensue during the consequent haemorrhage.
   If the parturition be complicated with convulsions, the proba-
 bility certainly is that the infant will  first die.   So also if it be
 very large, or if it  be prematurely born.  The only exceptions
 which have been  suggested in favour  of the survivorship of the
 child, are the following—when the mother is delivered of twins,
 she may bring forth  the first, and die before the second is  born:
 and again, when she is labouring under an  acute disease.  We
 know that the offspring is sometimes healthy, although the mother
 sinks during the delivery, f
   A due comparison of these arguments, I imagine, will lead to
 the  opinion  that  the presumption  of  survivorship is with  the
 mother; for I will again mention, that in  these cases, no person
 is supposed to have been present to witness the death of the par-
 ties, and such a length of time  has also elapsed, that all exami-
 nation, as well as inquiry into facts, are precluded.
   A case  that occurred  to Pelletan  may be mentioned in this
 place, although the consideration of it partly belongs to a pre-
 vious chapter, {on the viability of the infant.)
   A female at the eighth month  of pregnancy  died of a  disease,
 which the  physicians styled anasarca complicated with scurvy,
 (anasarque compliquee de scorbut.)   A surgeon immediately per-
 formed the caesarean operation, and extracted  the child.   In his
proces verbal, he  states,  that after tying the umbilical cord, and
 removing the mucus from its mouth, he observed pulsations at the
 region of the  heart, and also found that it preserved a sufficient
  * Valentini's Pandects, vol. 1, p. 3 and  11.  The statement given of this case by
 Fodere, and after him by Capuron, is not correct.  The chamber assign no reasons
 except " causis physicis" and it is the editor who explains them. There is evidently
 a mistake in the references to Valentini by Fodere, (vol. 2, p. 96;) and it is of such
 a nature that one might be led to suspect  that he had not minutely examined the
 Pandects.         t  Fodere, vol. 2, p. 94.  Capuron, p. 135 to 148. 
PRESUMPTION OF SURVIVORSHIP.
505
degree of warmth.  It expired, however, (he adds,) three quarters
of an hour after the decease of its mother.  Six witnesses were
also present at the operation, four of whom stated that they applied
their hands to the breast and felt the pulsation.  The other two had
not observed it.
  Pelletan was desired to examine this testimony and to give an
opinion whether the child had actually survived its mother.   He
remarks that there are certain causes of death which may destroy
the mother while the life of the infant may be preserved ; of this
nature,  are sudden accidents, as drowning, a blow on the head, or
violent haemorrhage.   Fcetal life is even compatible, with  some
inflammatory complaints, but the probability is certainly against
the surviving of the child, when the mother dies from a lingering
and wasting disease.   For this  reason, and also because it does
not appear to have  arrived  at  the full time, he was of opinion
that the child had died in the womb.  As to the signs of life, even
if they wrere fully substantiated to have been present, he conceives
them equivocal—the pulsation and heat were probably the remains
of foetal existence.  And if the surgeon was correct in  believing
that the heart beat for three quarters of an hour, he was certainly
blamable  in  not  using means to promote respiration.  But the
probability is, that he was deceived.
  For these reasons,  Pelletan gave it as his opinion that the mo-
ther survived the child.*
  I have been favoured with a communication on this subject by
the Hon. De Witt Clinton.  Some years since, he informs me,
a case embracing the succession  to  a large  landed estate, was
tried  in one of our  courts under  the following circumstances.
The mother  and child both died  during delivery.  If  the latter
was found to have survived, the father, by our law, was the heir:
if the former, her relatives became entitled to the property.  On
the trial, it was proved that the child  was born  alive; and  the
question of the priority of death was then decided against the par-
ties claiming as heirs of the mother.
  II. Of the presumption of survivorship of persons of different ages
                destroyed by a common accident.
  It will readily be observed, that if a father and son,  or a hus-
band and wife, perish in one common accident without witnesses.
                 * Pelletan, vol. 1, p.322to341.
vol. i.                      43 
506
PRESUMPTION OF SURVIVORSHIP.
disputes may arise concerning the disposition of their property.
Provision has  accordingly been  made  in  several codes  for the
avoidance of such  difficulties.  I shall give a concise sketch of
these, interspersed with  cases,  to show the course of legal deci-
sions on this curious subject.
  The earliest Roman law on this point, directs the order of suc-
cession when  persons of  different ages die in battle.  If two in
dividuals  of this description fell at the same time, he who had not
arrived at the  age of puberty, was to be deemed to have died
first, but if  a father and a son  arrived at  his majority, lost their
lives together, the son was considered to have survived the father.
In process of time, this provision was extended to all cases, where
the precise  period of death was unknown, and it was decreed,
that in the case of a husband and wife, the former should be ad-
judged the survivor.*
  The spirit of these laws guided the decisions of the continental
tribunals  for many ages, and Zacchias, in his  elaborate discus-
sion on this  question, cites cases from several jurisconsults, which
were settled  according to  the dicta of  the civil  code.  The
mother, in one instance, was  shipwrecked with her young  in-
fant, and  in another, she, with her two children also young, was,
killed by lightning.   In  both these,  the parent was deemed the
survivor.f
  Our author also, in his  Consilia, relates two cases, which de-
serve mention in this place.
  A number  of individuals perished by  the fall of a building;
and among  these, a father aged sixty, and  his  son aged thirty.
The bodies were found ten  hours after  the accident.  That of
the father was uninjured ; but  on the head of the son, there was
a severe wound.  The  heirs of each put forth their claims, and
Zacchias was consulted by the judges on the case.   After a long
comparison between the strength and state of health of the par-
ties, he comes to the conclusion that the son  survived the father.
Being aware, however, that the wound in question was supposed
to  have  accelerated the  death of the  former, he  endeavours to
avoid  this difficulty, by suggesting that  it was not necessarily

  * Digest, lib. 34, tit. 5, de rebus dubiis.  " Cum pubere filio mater naufragii periit
cum explorarinon posset, uter prior extinctus sit, humanus est credere, filium diutius
vixisse.  Si mulier cum filio impubere naufragio periil, priorem filium necatum esse
intelligitur," &c.                        t Zacchias, vol. 1, p. 440, 441. 
PRESUMPTION OF SURVIVORSHIP.
507
mortal,  nor of a nature to destroy his  strength  immediately;
while the suffocation was a so much more urgent cause of death,
that  the father, from his valetudinarian state, and  his advanced
age,  would first be destroyed by it.*
  The propriety of this opinion is controverted by Fodere, and
with considerable show of justice ;  for certainly a wound of the
head, and  of so severe  a nature, may safely be considered the
most sudden destroyer of life under the above circumstances.-j-
  In another instance, a man and his family had eaten very co-
piously of  poisonous mushrooms.   They were  all taken ill, and
the domestics were sent to obtain assistance.  Before they could
return,  the  husband and wife  had  both  expired.   This couple,
two  years previous, had made an agreement, that whoever sur-
vived  should possess the sum of two thousand crowns, and on
the  disposition of this,  a dispute necessarily arose.   Zacchias,
when consulted, gave his opinion, that the husband had survived
the wife.   His  reasons were the following.   The husband, though
sixty years of  age, was robust and healthy; and, from the  depo-
sition  of  the  servants, appears to have eaten but few of the
mushrooms.   The wife, on the contrary, although only  forty,
was asthmatic, and subject to affections of the stomach.   She
had  eaten largely of the mushrooms, and added  to these, other
indigestible food.   A poison, therefore, which  acts  violently on
the  organs of respiration, would  soonest destroy one already dis-
eased in those  parts.J
   Fodere  objects to this decision, that the opinion of the poison
 acting  on the  organs of respiration, is  altogether  hypothetical,
 and it probably is so, but certainly the general course of reason-
 ing  appears correct.
   The ancient French law,  in its adjudications, generally fol-
 lowed the Roman.  In  1629,  a mother, with her daughter aged
 four years, was drowned in the Loire.  The parliament of Paris,
 on appeal, decided that the youngest had died first.  Some years
 after, however, an opposite decision was pronounced by the same
 body.  The mother,  (Bobie,)  and her  two children, one  aged
 twenty-two months, and the other eight years, were murdered
 secretly in the night.   The husband claimed the property of his
 wife, on the ground that the children had survived, and the par-

   * Consilium, No. 51.    t Fodere, vol. 2,  p. 320,321.    X Consilium. No. 85. 
508
PRESUMPTION OF  SURVIVORSHIP.
liament  adjudged it  to  him.*  The discrepancy in  this case is
very naturally explained by  Fodere.   Murderers  would  first
destroy those whom they most dreaded, and afterwards proceed
to the completion of their intended enormities.
   Ricard, a celebrated advocate of the seventeenth century, has
preserved a very curious case on this subject.
   In 1658,  a father  and son perished in the famous  battle of
Dunes; and  at noon  the  same  day, the daughter and sister be-
came a nun, whereby she was  dead in law.  The battle com-
menced at that very hour.  It was inquired which of these three
survived, and it was decided that the nun died first.   Her vows
being voluntary, were consummated in a moment; whereas the
death of the  father and brother  being violent, there was a possi-
bility of  their living after receiving  their wounds.  It was then
necessary to  decide between them, and after some disputation, it
was agreed to follow the Roman law, and to declare, that the
son being arrived at the  age of  puberty, survived the father.j-
   In 1751, a merchant, aged fifty-eight, with his wife aged fifty,
and his daughter of  twenty-seven   years, was  drowned,  with
many others, in endeavouring to cross the  Seine in a small ves-
sel.  The question  of survivorship was raised by the  relatives,
and an opinion was given on the case by the celebrated Lorry.J
He observes, that three causes  probably conspired to accelerate
the death of  these individuals—fright—excessive coldness of the
water, and any disease that might be present.   Throughout the
whole of his  argument, he appears to proceed on the supposition,
that the  younger female was menstruating, and  hence that the
cold water, by checking it, would hasten her death.  But this  is
not stated in any part of the case, and it certainly is very ques-
tionable  whether, as  he  would  seem  to  insinuate, that state of
fulness of the  system  which menstruating  females have, would
accelerate the suffocation produced  by drowning.  If his argu-
ment means any thing, it is certainly directed to  this point;  and
we have then to compare the probable state of a female  of fifty
who is beyond the menstruating period, and another labouring
under that function.   Certainly it will  not counterbalance the

  * Causes Celebres, quoted by  Fodere, vol. 2, p. 218.
  t Fodere, vol. 2, p. 220. Smith, p. 382.
  X This opinion, or " Consultation de Midecine," is published at full length in Ma-
hon, vol. 3,  p. 152.  It is signed by Doctors Payen and  Lorry, but was written by
the latter. 
PRESUMPTION OF SURVIVORSHIP.
509
difference in age and strength.  He, however, gave  it as his
opinion that the daughter died first.   But the parliament of Paris,
by a decree  of the 7th of September,  1752, admitted the pre-
sumption of survivorship to her, and ordered a disposition of the
property accordingly.*
  It thus appears, that for a length  of time, the provisions of the
Roman law were followed in France.   But  a curious distinction
was made.   The  legal tribunals regulated  the  descent  of pro-
perty by them, but would not apply them to cases where legacies
were  bequeathed, and for this reason.  It is  necessary (say they)
that a man should have heirs, but it is not necessary that  he
should have legatees; and  accordingly, when  testator  and  le-
gatee died at the same time, the property passed  to  the heirs.
The lieutenant of a vessel bequeathed the sum of two  thousand
francs to his captain, by a will  which he made  before going to
sea.  Both captain and  lieutenant  were lost in  the same vessel,
and when a law case was raised as to the legacy,  the property
was adjudicated in the manner above stated.f
  The present  French law on this subject, is  contained in the
following sections of the civil or Napoleon code.
  " If several persons, naturally heirs  of each  other,  perish by
the same event,  without the  possibility of knowing which died
first,  the presumption  as to survivorship shall be determined by
the circumstances of the case, and in default thereof, by strength
of age and sex.
  '• If those who perished together,  were under fifteen years, the
oldest shall be presumed the survivor.
  " If they were all above sixty years, the youngest shall be pre-
sumed the survivor.
  " If some  were under fifteen, and  others above  sixty,  the'
former shall be presumed the survivors.
  " If those who have  perished together, had completed the age
of  fifteen, and were under sixty, the male shall be presumed the
survivor, where ages are equal, or the difference does not exceed
one year.
  '; If they were of the same sex, that presumption shall  be ad-
mitted which opens the succession in  the order of nature—of

  *  Fodere, vol. 2, p. 220, 316.                    t Fodere, vol. 2, p. 221.
                              43* 
510              presumption of survivorship.

course  the  younger shall be considered  to  have survived  the
elder."*
  Although these provisions are in the main  founded on correct
physiological principles, yet there are some objections of weight
pointed out  by Fodere.  The clause that adjudges the survivor-
ship to those under fifteen, when they  and persons above sixty
perish  together, is certainly imperfect,  since it may  include
infants  of one,  two or three years.   These certainly would ex-
pire the soonest.   And again, no  provision is made for the  case
when  persons under  fifteen and under  sixty  perish together,
although  this may possibly be met by the last section.
   The  English law  appears to  have no provisions on the sub-
ject except so far as the  civil law is incorporated with it. There
are, however, some cases which deserve mention.f
   In 1766,  General  Stanwix  and  his daughter  set  sail in the
same vessel  from Ireland for England.  They were shipwrecked,
and not  a single person on  board was  saved.  The  representa-
tive of the father to his personal estate, was his nephew, and the
representative of the daughter,  was her maternal  uncle.  These
parties brought the case into chancery.   On  behalf of him whom
the General's survivorship would have benefited, it was argued,
that the ship being lost in tempestuous weather, it was more than
probable that the  General was  upon deck, and that the daughter
was down in the cabin, (as is almost  ever the case with ladies in
 these situations,) and of course subject to more early loss of life
 than her father, who, as a man of arms and  courage was, it wa*
 asserted, more able  and more  likely to  struggle  with  death
 than a woman,  and in which  he might probably have been as-
 sisted by the broken  masts and other parts of the rigging.
    On the other side  it was contended, that the General was old,
 and consequently feeble,  and by no means strong enough  to re-
 sist the shocks of such a terrible attack ;  that the daughter was
 of  a hale constitution, and though  of the weaker sex, yet  being
   * Civil Code, sections 720, 721, 722—quoted by Fodere, v. 2, p. 222, and Smith,
 p. 379.
   + The most ancient case, I presume, in English jurisprudence, is that of Brough-
 ton v. Randall.  According to Croke, (Elizabeth, 502,) the father and son were joint
 tenants; they  were both hanged in one cart, but the son was supposed to have sur-
 vived the father, since, as was deposed by witnesses, he appeared to struggle longest.
 The Jury (in Wales) gave a verdict of favour of dower to the son's wife.  There is
 a shade of doubt, or at least a discrepancy in this case, as according to Noy, the
 father moved his feet after the death of his son.  (Paris's Medical Jurisprudence, vol
 1, p. 390.) 
PRESUMPTION OF SURVIVORSHIP.               511
younger than her father, was proportionably stronger, and from
the circumstance of youth, more unwilling to part with life,  and
that the probability of survivorship was  therefore  infinitely in
favour of the daughter.
   A second wife of General Stanwix also perished with him, and
her representative brought  forward a separate claim to the dis-
puted property.
   The court, however, finding the arguments on all sides equally
solid and  ingenious, waived giving any decision, and advised a
compromise, to  which the several claimants agreed.*
   The  following case was tried at the  Prerogative  Court, Doc-
tors' Commons,  in 1815.
   Job Taylor, quarter-master sergeant in the royal artillery, had
m,ade a will, in  which  he appointed his wife, Lucy Taylor, sole
executrix  and   sole  residuary legatee.   Having  been for some
time in  Portugal on foreign service, he was returning home with
her on board the Queen Transport, when  the vessel in Falmouth
harbour, struck upon a rock, in consequence of the violence  of
the weather, and sunk almost  immediately afterwards.   Nearly
three hundred persons on board perished,  and among them, Tay-
lor  and his  wife.    Taylor died  possessed of property  to  the
 amount of £4000, and a  bill in chancery was filed by the next of
 kin of  the wife against those of  the husband, to ascertain who
 was entitled  to this property, but the proceedings were at a stand
 for the  want of a personal representative of the  husband.  Both
 parties, therefore, applied to the court for letters of administration
 generally, or that the court would suspend granting any to either
 party during the dependence  of the chancery  suit, and  in the
 mean  time  grant a limited administration.  This latter prayer
 was, however,  abandoned,  on understanding that the court could
 not grant a limited administration, where a general one might

   * Fearne's posthumous works, pages 38 and 39.  This case appears to have at-
 tracted the attention of Mr. Fearne, and he accordingly prepared arguments for the
 purpose of seeing what could be advanced on both sides, with some appearance of
 reason ; and after his death, they were published in the above collection.  The scope
 of the argument in  favour of the representative of  the daughter is, first, to overthrow
 the probability  that they both died at the same instant, and next, to strengthen the
 rule of the civil law, that the child shall be presumed to have survived  the parent.
 The argument  in favour of the representative of the father, is aimed against the pro-
 priety of allowing any weight to presumption, and it urges the known fact, that the
 father died  possessed.  This, it is conceived, should destroy a claim founded on the
 uncertain, unknown possession  of a niece. (See  page 35 to 72.)  Both these argu-
 ments deserve an attentive perusal.
   Se^, also, vol. 1,  Blackstone's  Reports, p. 640, Rex  v. Dr. Hay, 
512
PRESUMPTION OF SURVIVORSHIP.
be granted and was applied for; and  the present question there-
fore was, to whom the general administration should be granted
—whether the next of kin to the husband as dying  intestate, his
wrife not having survived so as to become entitled under his will,
or the representatives of his wife, as his residuary legatee, she
having survived so as to become entitled under that character.
  It appeared  from the affidavits exhibited  on both sides, that
at the time the accident happened,  Lucy Taylor was below in
the cabin,  and her husband  on deck.  The  water  was  rushing
in fast, and he offered large  sums to any one who would go be-
low and save her, but finding none would venture, he descended
himself, and the vessel  immediately afterwards went to pieces.
The bodies of Taylor and his wife were found  close together,
and it further appeared that she was a woman of a very robust
constitution, and  in the  habit of enduring great fatigue by the
management of the officers' mess, as well as that of a great many
of the soldiers ; whilst he was rather sickly, and had been latterly
much afflicted with an asthma.
   It was contended on the  part of the husband's next  of kin, that
by the principles of the Roman civil law, which had been  adopted
into the law of the country, and were in fact  the only principles
governing  a case of this kind, it was laid down, that where two
persons perished together in a common  calamity, and it  became
a question  which of  the two was the survivor, the presumption
of law should always be in  favour of the person possessing the
more robust constitution and greater strength, as being  thereby
the better fitted to struggle with the difficulties of his situation,
and resist for a longer time the operation of death.  Thus, when
the father and  the son  shall  perish together, the presumption of
the survivorship is in the favour of the  son if above the age of
puberty, but of the father, if under: the  same as to a mother and
daughter;  and as to husband and wife, the presumption  is in fa-,
vour of the husband.  This, however, like all other legal presump-
tions, was  liable to be repelled by evidence to the contrary, but
in this case it was contended, from the situation of the wife at the
time the accident  happened,  that it was most probable  she had
perished before her husband descended to her rescue.  Upon both
grounds, therefore, both of principle and of fact, the court must
conclude that  the husband was the survivor, and accordingly
grant the administration to his next of kin. 
PRESUMPTION OF SURVIVORSHIP.
513
   On the part of  the wife's next of kin, it was contended, that
 the  presumption of the law alluded  to, was  only applicable to
 cases where parties perish together in such a manner as to pre-
 clude the possibility of obtaining  any evidence  as  to  which of
 them was the survivor.  Where, however, evidence as  to that
 fact was  produced, as in the present case, the case must be de-
 cided upon that evidence only.  Here it appeared the parties had
 perished by the same accident, and their bodies were afterwards
 found together; and that the common course of nature  had in
 this instance  been inverted, by the wife  being  the most strong
 and robust of the two.  The court must, therefore, necessarily
 conclude  that she was the survivor, and  accordingly grant the
 administration of her husband's effects to her representatives.
   Sir John Nicoll observed, that this case presented itself for de-
 cision   under very singular circumstances.   He  recapitulated
 them, and observed, that the question  as to the limited adminis-
 tration  had not been gone into;  but that with  respect to general
 administration, the counsel had argued upon the legal presump-
 tion of  survivorship, and whether or  not  that presumption was
 sufficiently repelled by the facts in evidence.  He agreed to the
 doctrine that had been laid down, of the presumption being in fa-
 vour of the husband;  but it was a necessary preliminary question,
 upon whom the burden of  proof rested.   The  administration  to
 the husband being the point in issue, his next of kin  had prima
facie the first  right to it; but there being a  residuary legatee,
 this right  became  superseded.  The parties claiming under this
 latter character were not residuary legatees themselves specifi-
 cally, but  merely derivatively from one who was.   They were,
 therefore,  one step further removed from  the property.   The pre-
 sumption of law was certainly always in favour of the heir at law
 with regard to freehold,  and  equally so of the next of  kin  with
 regard to  personal property; the statute of distribution disposing
 of an intestate's property among  his next relatives, solely upon
 the presumption that such was his intention, unless  the  contrary
 should be  expressed.  It was, therefore, incumbent upon the re-
 presentatives of the wife, in this case,  to prove her  survivorship,
as the party in whom  the property vested, and  from whom in
consequence they derived their claim to it.  He then entered into
an explanation of the facts in evidence, and was of opinion that
they were insufficient to  repel the presumption  of the husband's 
514              PRESUMPTiO.V OF SURVIVORSHIP.

having survived the wife, which the court was bound to assume,
from the circumstance of their having been overwhelmed by one
common calamity, and having perished  together;  observing, in
particular, that though the wife might be very active and labori-
ous in her domestic duties, yet the natural  timidity of her sex
might  prevent exertion in the moment of danger; whilst the hus-
band, on the other hand, though labouring under the bodily afflic-
tion of an  asthma, might still  retain his manly firmness in resist-
ing impending  destruction, particularly as, from his  situation in
life, he must have often faced death in various shapes.  He was,
therefore,  in no degree satisfied by the proofs in the cause, that
the wife survived the  husband, and should  therefore decree the
administration to his next of kin.   In  thus deciding the law, how-
ever, he did not mean to affirm positively which of the two was
the survivor, but merely that there was not sufficient proof that
it was the wife, to repel the presumption of law that it was the
husband.  The administration was accordingly granted  to the
husband's next of kin.*
   A later case is on record, viz. that  of Mason v. Mason, which
came  before  Sir William  Grant, the  Master  of the Rolls, in
March, 1816.  The father, a middle-aged man, embarked with
his son on  board  a vessel in  India, on  a voyage to England.
The ship  was  lost, and all on board perished.  In favour of the
son, the civil law and the Napoleon code were cited ; but it was
replied, that  as the father's will bequeathed certain property to
each of his children, " who should be living at the time of his
death," it  required positive proof, and not presumption.  The op-
posite party cannot prove that the son survived.  The Master of
the Rolls appears to have been  of opinion against the son, but he
finally sent to a jury, to try whether Francis Mason was living
 at the death of the testator.f   The result of this I have not been
 able to find.
    To these  I will only add  the following.   Mr. Selwyn of the

   * Taylor and others v. Diplock, (2 Phillimore's 'Reports, 261.)  In a note to this
case, that of Wright v. Sarmuda,or Wright v. Netherwood, (1793,) is also given from
 MS. notes.  The question of survivorship, however, is not so much brought in, (the
 husband, the second wife, and the children by  both wives, all were lost at sea,)  as
that of the revocation of the will. The following remark of the Judge (Sir William
Wynne) may, however, be quoted : " I desired the priority of the death of the parties
to be considered.   I always thought it the most rational presumption that all died
 together, and that none could transmit rights to another."
   t Merivale's Chancery Reports, vol. 1, p. 308. 
PRESUMPTION OF SURVIVORSHIP.
515
war-office, with his lady, perished in the disastrous accident to
the Rothsay Castle steam-boat, (1831.)  By his will, he appointed
Mrs. Selwyn his executrix;  and in case she should die in his life
time,  other executors  were  appointed.   The circumstances of
their death raised the question, whether the contingency provided
for in the will had occurred,  and whether the wife's  representa-
tives, or the executors  named in the event of her prior death,
were to take administration.
   The case came before the  English Prerogative Court, Novem-
ber 7, 1831.   The court said, that in other similar cases, it had
been held, as both parties might be supposed to have perished to-
gether, that the wife could not have  survived the husband; but
in this case, the words were  " in case she should die  in  my life-
time."  The presumption was, that the husband, as the strongest
of the two, survived the longest: and as it was the clear inten-
tion of the testator, that the representatives of the wife should not
take the administration, and  as there was no attempt on  the part
of those representatives to establish  an intestacy, the court de-
creed probate to  the executors.*
   In reviewing these cases, it may probably appear to some that
physical  principles will never be sufficient to decide them with
 any degree of probability.   This indeed is the  opinion of some
 medical jurists, as Belloc, Orfila, and Duncan.f  Others again,
 and in particular Zacchias, have laid down rules for  judging in
 all the various kinds of accidents that may occur.  Thus in  those
 dead from hunger, the young should be  supposed to have first
 perished, then infants,  and lastly old men:  and as  to sex, women
 probably survive. In cases of drowning, a dissection and exami-
 nation of  the  organs  immediately acted upon, may lead to cor-
 rect  opinions; while in those found  dead from  noxious exhala-
 tions, we should examine the relative situation  of the bodies to
 the noxious air, and the state of thoracic capacity. In all cases,
 the state of  health should, if possible, be ascertained; and apo-
 plectic habits  should always be deemed to  have been the earliest
 sufferers.J
   * London Atlas newspaper.  This case (in re Selwyn) is reported in 3 Haggard's
 Ecclesiastical Reports, p. 748. See, also, Colvin v. King's Proctor^ 1 Haggard, p. 92.
   t Belloc, p. 161.  Edinburgh Medical and Surgical Journal, vol. 1, p. 334. Orfila's
 Lecons, vol. 1, p. 535.
   X Zacchias, lib. 5, tit. 2, quest. 12.  He also adds, that when  persons are destroyed
 in a fire, those who are suffocated expire before those who are burnt to death.  See
 Fodere, vol. 2, p. 228 to 232.  Smith, p. 380. 
 516               PRESUMPTION OF SURVIVORSHIP.

   Dr. Beatty has lately considered these probabilities more in de-
 tail, in a valuable Essay in  the Cyclopedia of Practical  Medi-
 cine.*   As to  age, he concedes, that in general, very young  per-
 sons, and those  far  advanced in  age, sink more readily than
 adults and those in the middle stage of life.   I have been, how-
 ever, struck with the difficulty of  forming positive opinions even
 on this,  from an incident  related  by Burckhardt.   In  giving an
 account of a caravan coming in want of water in the Nubian de-
 sert, he says, that " the youngest slaves bore the thirst better than
 the rest; and  that while the  grown up boys all died, the children
 reached Egypt in safety .f  Dr. Beatty agrees, that under  similar
 circumstances, the male will survive longer than the female;  but
 suggests several qualifying  circumstances,  which  should enter
 into the estimate.   The  greater  liability of the  weaker  sex to
 fainting—and  their ability to preserve life longer, without marked
 arterial  circulation,  may, in many cases, tend to their preserva-
 tion.   As to habit and  variety of constitution, all such that have
 a tendency to  affections of the head and lungs, should be deemed
 the first victims, in case the  causes of death are of a description
 to affect these.  And the  moral condition must  not be overlooked.
 The brave survive the fearful and the nervous.
   If we turn to the causes by means of which a* number of per-
 sons may have been simultaneously destroyed, we shall find  our
 data far from  being numerous or  settled.  Dr. Beatty observes,
 that if a positively deleterious gas, such as sulphuretted  hydrogen,
 or carbonic acid gas, has  been the agent of suffocation, it may be
 presumed that death was rapid in all, and occurred at nearly the
 same time.  A late writer, however, affirms, that  from numerous
 observations, made for  a long  period, on persons  dead from as-
 phyxia,  (and the context  shows that he  principally means car-
 bonic acid gas,) the  female  adult  survives  longer than the male
 adult.   The  strongest individuals die first.J
  * Vol. 4, p. 97, art. Survivorship.
  t Library of Entertaining Knowledge. The Menageries, vol. 1, p. 296.
  X Sardaillon in  Annans  D'Hygiene, vol. 10, p.  173.  In further confirmation of
 this, Devergie makes the following  statement.  According to official reports, 360
 cases of asphyxia from carbonic acid have occurred in Paris between 1824 and 1835.
 Of these, 19 were double cases, (male and  female affected at the same time,) and
three only recovered. These three were females. Out of 73 females, 18 were saved,
 while out of 83 males, only 19 recovered, a proportion in favour of females of 4 to 5.
 Devergie, vol. 2, p. 923.  In conformity to this, is a case in the Transylvania Jour-
nal, vol. 10, p. 697, on the authority of Prof. Dudley.  It is that of a man and his
wife suffocated in a close and  small  room by the gas from live coals.  At 6 A. M.,
the man was found dead, rigid and contracted, the woman breathed and was re-
covered. 
                  PRESUMPTION OF SURVIVORSHIP.              517

  From the experiments of Dr. Edwards, it would seem that if
death be caused merely by atmospheric air becoming deficient in
oxygen, the adult will  perish sooner than infants or very young
persons.  The dreadful mortality in the  Black-Hole at  Calcutta,
shows how rapidly this cause acts on the male in the  vigour of
life.
  Heat and cold  operate differently on the same description of
persons.  The male and the adult  have repeatedly sunk  under
their  sufferings, in traversing the  deserts of Egypt  and Syria,
while  the  young have escaped.   Cold, on the contrary,  will
earliest destroy the infant and the young.
  In cases of  two or more persons drowned at the  same time,
Devergie remarks that those who  bear the marks of  apoplexy
should be considered as having died the earliest; and again, those
that die from syncope  survive longer than when asphyxia is the
cause.  All wounds and injuries are to  be supposed to have ac-
celerated the fatal termination.
  Such are some of the inferences drawn from positive facts, and
from physiological researches.   If they are deemed too few, or
too contradictory, it still remains to determine, whether we should
not have some positive rules to guide us.   I  cannot doubt  the
propriety and necessity of this.*   And in adopting any as law,
such as approach  the nearest to  natural  justice, will be the best.
The provisions of the  French code, with  some  modifications,
appear to be best  adapted for administering equitably in the ma-
jority of cases that may occur.t

  * I cannot, however, agree  with a writer in Brande's  Journal, vol. 3, p. 41, who
proposes that  in all cases, the order of nature should be presumed  to have taken
place, and that the child, whatever be its physical powers or age, should be deemed
to have survived the parent.  Certainly this is not warranted by observation or de-
duction.
  t The following remark will show, that the necessity of enactments is elsewhere
acknowledged. " With regard to cases of comparative unfrequency, indeed our law
is culpably careless. We have shown ourselves no friends to codifying;  but we con-
tend that every ascertained doubt should be disposed of, without delay." (London
Law Magazine, vol. 2, p. 549.)

    VOL. I.                     44 
CHAPTER  XL
                        AGE and identity.


1. Notice of some questions in which the testimony of medical men may be re-
  quired as to the age of an individual—the age at which he is  considered capable
  of committing certain crimes.  The period of absence that is considered as pre-
  sumptive proof of a man's death.  Decisions on this subject in  England—Scot-
  land—States of New-York and South-Carolina.  Age beyond which pregnancy
  is deemed impossible.  The Douglas cause. Laws on this point—cases. 2.  Iden-
  tity.  Cases where physicians may be required to identify individuals by physical
  marks.  Remarkable  instances in France—Martin Guerre—Francis  Noiseu—
  Sieur De Caille—Baronet—Sieur Labbe.  English cases. Effects of age in alter-
  ing the personal appearance.  Case of Casali.   Remarkable case of disputed
  identity in New-York.


  Age is a subject of copious discussion with many of the older

writers on medical jurisprudence, and even Fodere has enlarged

on  it  in  an  extended manner.   I  can, however, conceive  but

very few cases in which a physician can be called on to give an

opinion concerning it.   There are laws in all civilized countries,

defining  the  various  periods, such  as minority,  majority, &c.;

and if the  registers or testimonials to prove these  are wanting,

i,t is difficult to suggest any physical  proofs on which a medical

man, more than  any other  individual, can venture to  pronounce

decisively.*

  There are, however, exceptions to  these remarks, as the read-

ers of these pages must have noticed.   It is often of  the highest

importance to  ascertain the age of a  fcetus,  or a new-born child;

but the proofs  of these have been  more properly, we conceive,

investigated in  another place.  There  are also  some  points in

the age of individuals, which deserve consideration in a treatise

on  Medical Police, such as the  proper period  for contracting

  * It appears, however, that in certain cases  where doubt exists as to the age of an
individual, he is to be brought into court, to be inspected by the judges,  whether he be
of full age  or not.  If the court has, upon inspection, any doubt of the age  of the
party, it may proceed to take proofs of the fact.  (Blackstone, vol. 3, p. 332.)  See
Poyntz's case in Croke's James, p. 230.  Also Sliver v. Shelbach, (1  Dallas's Penn-
sylvania Reports, 166.) 
AGE AND  IDENTITY.
519
marriage, and  the division of life into  the different terms of in-

fancy, youth, manhood, and old age.

  It is proper, notwithstanding, to make some  suggestions rela-
tive to this subject.

   1.  In  the English and in our own laws, certain periods of life

are  prescribed, before which, individuals shall  not be  deemed

guilty of particular crimes.  Thus a male infant under  the age

of fourteen,  is  considered incapable of  committing a rape.  But

it  deserves  notice,  that occasionally, though of  course rarely,

there are cases of early puberty, where the strength and  ability

are fully sufficient to complete  this crime, under  certain circum-

stances.   Instances are related where  the  generative functions

have appeared perfect at  a very  early age, and every  mark of

manhood has been present.*  Whether in a case of  this kind,

the premature powers of the individual  should not be considered,

instead  of his  actual age, is a question for  legislators.   While

the period is positively fixed by law, no question can  be raised

concerning it.f

  * Instances of premature puberty are numerous both in the male and female.  Of
the former I may refer to those related  by Drs. White and Breschet, and Mr. South
in the Medico-Chirurgical Transactions, vol. 1, p. 276, vol. 11, p. 446, and vol. 12, p.
76.  The subjects were each about three  years of age.  Ballard mentions a case
that lately occurred in Paris, where a female attributed her pregnancy to a boy ten
years old.  Instances of infantile  menstruation are related  by Dr. Wall, Medico-
Chirurgical Transactions, vol. 2, p. 116, and by Sir Astley Cooper, do. vol. 4, p. 204,
also by Meckel, Lancet, N. S. vol. 3, p. 264.  Dr. Davis in his Obstetric Medicine,
pages 236, 728, has collected a number of cases, with references  to many others.
For other cases  of precocity in either sex, see Stalpart, vol. 1, p. 336, London Medi-
cal and Physical Journal, vol. 27, p. 522, Chapman's Journal, vol. 2, p.  198, Philoso-
phical Transactions, vol. 19, p. 80, vol. 42, p. 627,  vol. 43, p. 249, London Medical
Repository, vol. 17, 353.
  A case by Dr. D'Autrepont of a female child in Monthly Journal of Foreign Me-
dicine, vol. 1, p. 185, from a German Journal.
  A case by Mr. Thomas Smith in Scotland, Brewster's Edinburgh Journal of Sci-
ence, N. S. vol.  1, p. 26.
  Menstruation at nineteen months, case by Dr. Diffenbach, (from Meckel,) North
American Archives, vol. 1, p. 70.
  A case  near  London, by Dr. Burne, Midland Medical and Surgical Reporter, vol.
1, p. 137.
  A case  in New Jersey (male) by  Dr. Johns, New York  Medical  and Physical
Journal, vol. 9, p, 237 ; and one at Quebec, in a female, by Dr. Tessier, vol. 9, p. 240.
  A recent case by Dr. Le Beau of Louisiana, of infantile menstruation, American
Journal of Medical Sciences, vol. 11, p. 42.
  A remarkable case  of menstruation  at one year, and pregnancy at 9.  On  the
20th of April, 1834, this female aged 10 years and 13 days, was delivered of a fe-
male child  weighing 7| pounds.   This occurred in Hickman  county, Kentucky, and
is related by Dr. D. Rowlett of Waisborough in that state.  Transylvania Journal,
vol. 7. p. 447.
  t By the civil law, minors under the age of ten and  a half,  were not  punishable
for any crime;  from ten and  a  half to fourteen, if found  to be doli capaces, they
were, but with  many  mitigations, and not with the utmost rigour of the  law.  The 
520
AGE  AND IDENTITY.
   2. Metzger  suggests another point, which may  occasionally
require the opinion of a physician, viz: How  long a period of
absence  shall  be considered  as presumptive  proof of a man's
death ?*
   There are some law cases which  may  be quoted in elucidation
of this.  In Benson v. Oliver, in the  court of exchequer, 5  George
II. 1732, before Chief  Baron Reynolds.  " Upon trial of an issue
directed by the Court  of Exchequer, the deposition  of  a  witness
examined in 1672, was offered to be read, without any evidence
of his  being dead, relying  upon  the  presumption  from length of
time, which would  entitle the  reading of a  deed at that date.
The Chief Baron refused to let it be  read, saying, a  deed had
some authenticity from  the solemnity of  hand  and  seal.   He
said, if proper researches or inquiry had been made, and no ac-
count could be given of him, he would have  admitted  it  at such
a distance of time."f   Again, in Dixon v. Dixon, where a legatee
had  been  abroad twenty-six  years, and had  not been heard of
for twenty-five years, the Master of the Rolls  said he would pre-
sume  him to be  dead. J   Chancellor Kent in  this state, has  de-
cided,  that ignorance in a family of the  existence of one of the
children, who  had gone abroad  at  the  age of twenty-two,  un-
married, and had not been heard of for  upwards  of forty years,
is sufficient to warrant the court or  jury, to presume the fact of
his death without issue.§
  In Scotland I find the following stated.  " Eighteen  years ab-
sence and being holden and reputed dead, was found a sufficient
probation to take off the presumption of  life.||   And in 1830, the
Court  of Session granted a sum of money to legatees which had
been settled on them by a person who went to India in  1805 and
who had not since been  heard  of.  Bail was, however, required
to repay in case of  his return," &c.T[

exception nisi malitia suppleat atatem must be noticed in many  criminal cases and
is approved by our own and the English law. See Edinburgh Encyclopedia, art.
Crimes.
  * Metzger, p. 242.                t Strange's Reports, vol. 2, p. 920.
  X Brown's Chancery Cases, vol. 3, p. 510. " Where no account can be given of a
person, the presumption of the duration of life (in  England) ceases at the expiration
of seven years from the time  he was last known to be living."  Phillips' Law of
Evidence, p. 152.  See also  Doe v. Jesson, 6th East's Reports, p. 80, and Dean v.
Davidson, (3 Haggard's Ecclesiastical Reports, 554,) Doe  dem. Knight v. Nepean,
(2 Neville and Manning's Reports, 219.)
  § McComb, executor of Ogilvie, v. Wright,  (Johnson's Chancery Reports, vol. 5,
p. 263.)
  || Decisions of the Court of Session, vol. 3, p. 435.
  V Edinburgh Law Journal, vol. 1, p. 101. "  In Scotland so far as marriage is con- 
AGE AND IDENTITY.
521
  In a case where a person went  as a  sailor to Tobago, and
had  not  been heard of for twenty years, and his age, if alive,
would have been about fifty, the Court of  Session, in  Scotland,
allowed  the interest of a bequest to the person next entitled, and
would have given  the principal, if security for its return, should
it be required, had  been offered.*
  The French code is very cautious on this subject.   It requires
thirty-five years of absence, or one hundred years since the birth
of the absent person, before the heirs can  demand a division of
his property, and be put in definitive possession of it.f
  In the state of New York, the presumption of the duration of
life is reduced to the  period of five years, provided the party has
not been  heard of during that  time, and marriages are allowed
to be contracted after the period stated ;J but the space of seven
years is  adopted in the act  for the more effectual  discovery of
the death of persons, upon whose lives estates depend.§
  South Carolina.  " An absence from the state for seven years,
without being heard of, raises  the legal presumption of the death
of the husband.||
  Missouri.  " Absence beyond the seas for seven years, without
being heard from, raises the presumption of death."H
  3.  A third subject discussed  under this  title has been, the age
at which pregnancy is possible, and beyond which it cannot occur-
The  last  was much  canvassed  in  the  famous Douglas  cause,
tried  some years since in England.   Its leading incidents, were
as follows : Lady Jane Douglas was married August 10th, 1746,
to Col. Stewart.   She became pregnant, and this fact,  was noto-
rious  in  January, 1748, and on the 10th of July, 1748, being in
her fiftieth  year, she was delivered of twins at Paris.   Of these,
cerned, at least a man is presumed to be dead who is not heard of for  seven years,
in which case, his wife may form a new union, by proclaiming and calling on her
husband to appear at the cross of Edinburgh, and as he may be in a distant country
or at sea, it is necessary  to  give him a fair opportunity of hearing the summons, the
law wisely provides that  he shall also be summoned at the shore and pier of Leith.
I am not aware that the law applies in cases where property is concerned."  Dunlop.
  * Campbell v. Lamont. Cases in the Court of Session, vol. 3, p. 98.  For similar
cases, see Fettes v. Gordon, Ibid. vol. 4, p. 150.  Case of Mrs. Hyslop, Ibid. vol. 8
p. 919. In this last, the  Lord President observed that he remembered the reappear-
ance of a party, after being unheard of for a period of 33 years.
  t Code civil, sect. 129.  See the whole chapter.
  t Revised Laws, vol. 1, p. 113, and Revised Statutes, vol. 2, 687.
  \ Revised Laws, vol. 1, p. 103, and Revised Statutes, vol. 1, p. 749.
  || American Jurist, vol. 12, p. 152, quoted from 1 Hill's South Carolina  Reports,
8, Boyce v. Owens.
 T American Jurist 18, 476, quoted from 3 Missouri Reports, 529, Salle v. Primm.
                              44* 
522
AGE AND IDENTITY.
one, named Sholto, did not  survive  to  manhood—the  other,
Archibald, did.  Lady Jane after their  birth miscarried.
  In process of time, the father and mother both died.   Their
positive declarations had convinced the Duke  of Douglas, and
he left his dukedom and other  estates  to his nephew,  and their
son, Archibald, who was the appellant  in the cause.   The Duke
of Hamilton appears to have conducted the prosecution, and at
all events, the  claim was opposed on the ground that they were
supposititious children.  The cause came up for final adjudication
in the House of Lords, in 1769, when  Lord Chancellor Camden,
and Lord Chief Justice Mansfield gave opinions in favour of the
appellant.  The following  extracts from that of Lord  Mansfield
are interesting, both in reference to the point under considera-
tion, and  to one noticed in another part  of this work, (Resem-
blance of  children to their parents.)
   li Lady Jane became pregnant  in October, 1747, at the age of
forty-nine years, a thing (says he) far from  being uncommon, as
is attested by physicians of the first rank, and confirmed by daily
experience.   It is further proved, that  the elder child,  the appel-
lant, was the exact picture of his father, and the child Sholto as
like Lady Jane as ever child was like  a mother."
   " I  have  always  considered  likeness as an argument of  a
child's being the son of a  parent, and  the  rather, as the distinc-
tion between individuals in the human  species is more discernible
than in other animals ; a man may survey ten thousand people,
before he sees  two faces  perfectly alike, and in an army of an
hundred thousand men, every one may be  known from another.
If there should be a likeness  of features, there may be a discri-
minancy  of voice,  a difference in the gesture, the  smile, and va-
rious  other things: 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.  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 have 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." 
AGE AND  IDENTITY.
523
   " If Sir John Stewart, the most artless of mankind, was actor

in the  enlevement of Mignon and  Sanry'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.   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, and in  every other

thing, Mignon and his wife and Sanry and his  spouse, were  toto

cado different from and unlike to Sir John Stewart and Lady Jane

Douglas."  The House  of Lords decided in favour  of the  ap-

pellant, five peers only dissenting.*

   I have incidentally noticed  this subject in  a former  chapter,

and mentioned  some cases of births in females of an advanced

age.f   As to premature pregnancy in European  countries,  the

most  astonishing instance probably  is given by  Meyer,  of a

   * Collectanea Juridica, consisting  of tracts relative to the law and constitution of
England. (London,  1792, vol.2, p. 386.) The appellant was afterwards created Lord
Douglas, and died in his 80th year, Dec. 26,  1827.  In a brief biography of him, it
is stated that his mother's father was 51 years old and upwards when she was born,
thus being born in 1646, and exhibiting an interval of 181 years between the birth
of ihe grandfather and the death of the grandson. (Annual Biography and Obituary
for 1829, vol. 13, p. 433.)
   Frequent allusions to this cause will  be met with in Boswell's Life of Johnson.
Boswell was a great stickler for Lord Douglas. (See Croker's  Boswell, American
edition, vol. 1, p. 246, 312, 447, &c.)  In the  Scotch Court of Session, the judges
were divided, eight  for the duke of Hamilton and seven for  Mr. Douglas, and on
this the appeal was brought to the House of  Lords.  I am indebted to Mr. Rich, of
London, for procuring for me, recently, " A summary of the Speeches,  Arguments
and Determination of the Right Hon. the Lords of Council and Session in Scotland,
upon the important cause wherein the duke of Hamilton and others were plaintiffs,
&c. By a Barrister at Law, 8vo. London, 1767."
   t Vol. 1,  p. 207.  If such  cases  present themselves in legal investigations, the
proofs in favour of maternity should be clear and decisive.  Probably the most re-
markable  instance on record (if true) is that related by the Bishop of Sens, in the
memoirs of the French Academy of Sciences for 1710, of a man in his diocese, at
94, and a woman at 83, having a child.  (Memoirs of Literature, vol. 7, p. 78.)
   Pliny says that Cornelia, of the family of Scipio, bore a child at 60. (Paris's Me-
dical Jurisprudence, vol. 1, p. 173.)  He mentions other cases.  In Dodsley's Annual
Register for 1775, is the following:  "June  25,1775. The wife of Mr. Ladenberg,
wine merchant in  Castle-street, Leicester Fields, in  the 54th year of her age, was
brought to bed of twins.  Mrs. L. though married upwards of thirty years, never
had a child before."  Other cases are related in the Cyclopedia of Practical Medi-
cine, vol. 3, p. 491.  During  the present year, (1833)  a case has  occurred in the
English courts, in  which the leading question appears to be, whether it is possible
for a woman to have a fourth child thirty years after the birth of her first-born ? or
in other words, whether this could occur at the age of fifty-one ?   Dr. Epps men-
tioned the case at the Westminster Medical Society, and it was allowed that if she
had continued to menstruate up to the required time, there was no physical reason
why conception  might not  take place at any period during the interval.  (Lancet
N. S., vol. 12,  p. 45.) I presume this is the case of Andrews v. Lord Bcauchainp, in
the Vice-Chancellor's Court, lately mentioned in the newspapers. 
524                   AGE  AND  IDENTITY.

Swiss girl becoming a mother at nine years of age.*   Concern-
ing  this  and  similar cases, we  can  only  say, that they are ex-
amples of precocity, resembling those which occasionally occur
in the other sex.
   " The  English  law admits of no presumption as  to the  time
when a woman ceases to have children, though this enters into
most other codes."f
   In Scotland, there appears to be a similar provision: " A daugh-
ter,  suing for her provision, which was due to her, failing heirs
male of the grantor's marriage,  was  repelled, the father and mo-
ther  being both alive—though the father  had  even  been  for a
long time furious,-and the mother past fifty."J
   The subject of  identity seems  to  have a connexion with the
one we  have  noticed, and  like  it, may occasionally  require the
opinion of physicians.
   Cases have  not  unfrequently arisen, both in civil and criminal
courts, where  the  question  at issue has been, whether  an indivi-
dual be really the person whom he pretends or states himself to be.
The controversy in  such instances must  originate from the re-
semblance that exists between him and another person; and that
this  has often been most striking, we have  not only the testimony
of antiquity, but the  experience of all who  have had opportunities
of extensive observation.   The  title of one of  the chapters of
Pliny's Natural History, is  Cases of Resemblance, and he enume-
rates  several  persons who  could  hardly  be distinguished from
each other—the  great  Pompey from  the plebeian Vibius—the
consuls Lentulus and Metellus—and the impostor Artemon, from
Antiochus,  King of Syria.
   When cases, in which the identity of an  individual is contested,
come before a court, the difference  of  opinion that exists, will
generally be of such a nature as to render the duty of  the tribu-
  * Brendel, p. 76.  Metzger, p. 480.
  f The law is thus laid down in Reynolds v. Reynolds—(Dickens' Reports, vol. 1,
p. 374)—on a motion to divide a legacy among all the  children living at the decease
of a father.  The father was sixty-two, and the wife of the same age, and infirm, and
therefore there was no probability of their  having more  children. Sir Thomas Clarke,
Master of the Rolls, said, that though it might be improbable, yet it was not impossi-
ble, and would  have denied the motion,  but the father consenting, and the other
children consenting, that their respective shares should stand as a security to answer
what any after born child, should there be one, might be entitled to, the court grant-
ed the motion.
  So also in Leng v. Hodges, decided  in  1822.  (Jacob's Chancery Reports, p. 585)
a fund was paid to persons entitled to it, subject to the contingency of a female, now
of the age of sixty-nine, having children,  on their recognizance to refund in case of
that happening.
  X Decisions Court of Session, vol. 1, p. 332. 
AGE AND IDENTITY.
525
 nal trying and difficult.   This subject is calculated to excite  at-
 tention, to awaken discussion, and  to cause great positiveness of
 opinion on one or  the other side.   Every feeling  of  the heart is
 enlisted, and the oaths of individuals must necessarily be of the
 most discordant and opposite nature.  It may be stated generally,
 that in such instances, the advice of the physician may assist in
 leading to the detection  of falsehood, and the  establishment of
 truth.  If there be any thing like positive data, which cannot de-
 ceive, he  can aid in their developement:  and they must be drawn
 from a source which naturally falls under his province.
   The narrative of a few cases will prove the most instructive
 notice that I can give of this subject.
   The most celebrated, probably,  that has ever occurred, if not
 in Europe, at least in France, is that of Martin Guerre, brought
 before the parliament of Tholouse, in 1560.   Its incidents are so
 extraordinary, that many have deemed it a fictitious narrative.
   Martin Guerre had been  absent from his  home for the space
 of  eight  years.  An adventurer named Arnald Dutille, who re-
 sembled him, formed the design of taking his place, and actually
 succeeded so far, as to be received by the wife of Martin as her
 husband, and to take possession of his property.   Children were
 born  to this union; and he lived three years in the family, with
 four sisters and two brothers-in-law of Martin, without their sus-
 pecting his identity.  It became, however, a subject  of dispute.
 Several hundred witnesses were examined, and  of these, thirty
 or forty swore that he was  the real Martin  Guerre;  nearly the
 same number, that he was Arnauld Dutille; while others deposed,
 that the resemblance  between  the two  men  was  so  great, that
 they could not decide whether the prisoner was an impostor  or
 not.  The perplexity of the judges  on this  occasion was very
 great; but in spite of many things  that weakened his cause, they
 were  on  the point of deciding in favour of Arnauld, when the
 arrival of the true Martin developed the deceit.   Even when con-
 fronted, the impudence and effrontery of Dutille was  such as  to
 lead many to doubt, until  the brother and sisters of  the  absent
 person fully recognized him.
  I am unable to say whether physical resemblances  were much
 noticed in this  case, as the  above narrative is all the authentic
 information that I have been able to obtain concerning it.  In the
following instances, however, there appears to  have been consi-
derable discussion on these points. 
526
AGE AND IDENTITY.
  A child, called Francis Noiseu, born at Paris on the 22d of De-
cember, 1762, was put to nurse in Normandy.  When about six-
teen months old, it was  taken ill, and in consequence was bled
in the right arm.  It had also a cicatrix on the inner side of the
left knee, from a gathering which had been cured by caustics.
  On the 13th of August,  1766, this child, aged three  years and
eight months, was lost, and could not be found; but on the 16th
of June, 1768, its godmother, seeing two boys pass, was struck
with the voice of one of them.  She called him to her, and be-
came convinced that it was her godson.  The  knee and arm
were examined, and the cicatrices found.
  In the mean while, another person, the widow Labrie, claimed
this as her son.  It had  marks of the smallpox on its body; and
this  was, on investigation,  deemed a strong argument in her
favour, since it was not  pretended that Noiseu had laboured under
this disease previous to his being lost.  Many witnesses also at-
tested to its being her child.  After several examinations before
various courts, it was decided that the boy was  the son of the
widow Labrie.
  Fodere"impugns this  adjudication, and with great appearance
of justice.  He observes that there were evidently physical marks
sufficient to guide to a  proper decision, and that these were dis-
regarded.   The cicatrix  at the knee, according to  one party,
was caused by an affection to which caustics had been applied;
while,  according to the  other,  it had originated from a slight tu-
mour or abrasion during the period of  nursing.  Certainly, sur-
geons  could decide  from the  appearance, which  of these causes
produced it.  Again  the  boy had  a  cicatrix on the right arm.
The widow Labrie  said her child had  never been bled, while it
was stated  that Noiseu's  had.  Three  surgeons, on  examining
this cicatrix, declared that it was made  with a sharp instrument;
but others pronounced that it was the consequence of an abscess,
and that no mark  of venesection  was present.  Lastly, it was
certainly no argument against the maternity  of Noiseu, that the
boy bore marks of smallpox.  He was missing nearly two years,
and might have suffered under it during his absence.  It appears
also that the subject of the dispute had some peculiarities in shape,
which were not properly investigated.
  The Sieur De Caille,  being  a protestant, fled  to Savoy at the
period of the revocation of the edict of Nantes.  His son died be-
fore his eyes at Vevay.  Some years after, an impostor pretended 
AGE AND IDENTITY.
527
that he was the son of this person, and claimed the succession to
his property.  He was imprisoned, and his cause remained before
the parliament of Aix for seven years.   Hundreds of witnesses
(among which were the nurses and domestics of the family) swore
that he was the  son of De Caille; and the public sentiment was
strongly in his favour,  as he was a catholic.  Testimonials, sent
from Switzerland, that the real son was dead, were of no avail;
and the parliament declared, in 1706, that he was what he claim-
ed to be.  The wife of this impostor shortly after discovered, that
although she had been silent, yet his elevation would not profit her.
She therefore began to mention who he actually was; and on ap-
peal, the cause was transferred to the parliament of Paris.   The
evidence  adduced,  showed that the  late son of De Caille had
some distinguishing peculiarities in shape and make.  He was of
small height, and his knees approached each other very closely in
walking.  A long head, light chestnut hair, blue eyes, aquiline nose,
fair complexion, and a high colour, were his other characteristics.
The stature of the impostor (Pierre  Mege, a soldier) was, on the
contrary, five  feet six inches; and his black hair, brown and thin
complexion, flat nose and  round head,  sufficiently distinguished
him  from the  former individual.  Other  physical conformations
were observed which it is not necessary to mention,  but which
strengthened the testimony against Mege.   The  parliament ac-
cordingly decided that he was an impostor.
   The last French  case  I shall  mention, is that of Baronet.  He
was born in  1717, in the diocese of Rheims, and  left his native
place,  at the age of twenty-five, in search of a livelihood.  Hav-
ing served as a  domestic for a length of time, he returned, after
an absence of twenty-two years, to claim the little property left
him by his parents.  His sister, however, had used it, and she
prevailed on a  neighbour, named  Babillot, whose son  had de-
parted about  the same time  that Baronet went away, to claim
 her  brother.  Although  the  attempt failed,  and  the individual
 could not be prevailed on to continue in the opinion that Baronet
 was his son, yet the sister had sufficient influence to cause her
 brother to be condemned as an impostor, and to be sentenced to
 the galleys for life.
   A few years  produced a revolution in the minds of those who
 had witnessed this cause, and an appeal was made to the parlia-
 ment of  Paris.   The celebrated surgeon, Louis, was consulted, 
528
AGE AND IDENTITY.
 and his opinion inclined in favour of Baronet, who was discharged
 and put in possession of all his rights.
   The  physical  facts  in  this case are so striking, that evidently
 prejudice, and  indeed  bribery, must have influenced the first de-
 cision.  Baronet was sixty years old,  Babillot was only forty-six.
 The father  of Babillot swore that his son  had a mark (a ncevus
 maternus,) on his thigh, but this  could not be  found  on Baronet.
 Other  peculiarities were also mentioned, which identified the in-
 dividual.*
   An examination  of the cases just related, will lead to the con-
 clusion, that considerable importance  should be attached to phy-
 sical  signs.   The  recollection of  individuals  may be weakened,
 and even the physiognomy of the persons in question may be al-
 tered, while marks will remain  which are not to be effaced.  It
 is on such that reliance should principally be  placed ; although I
 am  far from denying, that  instances may  occur where, even in
 these, a most striking conformity will  be observed.
   In England several cases of interest have occurred.   Dr. Paris
 notices, amongst others, that of Frank  Douglas, a well known
 man of fashion, who 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 high-
 wayman, Page, the mystery was explained ; the personal resem-
 blance being so great,  as  to deceive all ordinary observation.!
  * The above cases are all taken from Fodere, vol. 1,  chap. 2, who quotes the
 Causes Cilebres.  The  following is interesting from its connexion with physical
 facts.  It is extracted from the Causes Celebres par Mejan, vol. 4, p. 329.
  On the 14th of May, 1808, at 10 P. M. the Sieur Labbe, Mayor of the Commune
 of Foulanges, in the Department of the Calvados, in passing on horseback along the
 highway with  the widow Beaujeau, his servant on foot, was  fired at with a gun
 from behind a  ditch and through a hedge.  He was wounded in the hand.  It was
 an hour and forty-three minutes  before the rising of the moon and the night was
 dark, yet both Labbe and his servant swore, that they recognised the assassins by
 the light of the discharge.  One of the persons accused was arrested, tried, and con-
 demned to death, but an appeal was taken to the court of Cassation. The advocate
 consulted M. Lefevre Gineau, member of the Institute and Professor of Experimental
 Physics in the Imperial  College of France, whether it was possible that the priming
 (amorce) onbeing inflamed could produce light sufficient to discover the face ofthe person
firing? Gineau with his son and Dupuis and Caussin, also Professors, with several
 others, retired on the 8th of December at 8  P. M. into a dark room and there Prof!
 Gineau fired several primings, the spectators being stationed at different distances in
 order to witness the effect.  The light produced was strong, but fuliginous, and so ra-
 pidly extinguished, that  it was impossible to distinguish the individual firing. " A
 peine etait il possible d'entrevoir la forme distincte d'une tete.  On ne reconnaisait
 pas celle du visage."   They then descended into the court-yard of the College, loaded
 the gun with powder, but the results on discharging were the same.  The condemned
 was acquitted.
  Dr. Montgomery in the art. Identity, Cyclopedia of Practical Medicine, mentions
 several analogous cases.
  t Medical Jurisprudence, vol. 1, p. 222,  and vol. 3, p. 143. 
AGE AND IDENTITY.                   529
  •• In cases (says Blackstone) where the prisoner after convic-
tion escapes and  is retaken, the jury shall be impannelled to try
the collateral issue, viz. the identity of his person, and not whether
he  is guilty or innocent, for that has been tried before.  And in
these collateral instances, the trial shall be instanter, and no time
allowed the prisoner to make his defence or produce his witnesses,
unless he will make oath that he is not the person attainted."*
  But there is  another subject of consideration suggested by the
present inquiry, which we must not omit; and that is, the change
which a number of years produces,  as also the hazard  that this
alteration may be productive of injury to an individual, in caus-
ing doubts of his  identity.
  A noble Bolognese, named Casali, left his  country at an early
age and engaged in military pursuits.  He was  supposed to have
lost his life in battle, but after an absence of thirty years, returned
and  claimed his  property, which his heirs  had  already appro-
priated to themselves.  Although there were some marks which
appeared  to identify him, yet the  change in appearance was so
great, that none who remembered the youth were willing to allow
that this was the individual.  He was arrested and imprisoned.
The judges were in great doubt, and  consulted Zacchias, whether
the human countenance could be  so changed as to render it im-
possible to  recognize  the  person.   This  distinguished  physi-
cian,  in his consultation, assigns several causes which might pro-
duce  such an  alteration;  as  age, change  of air, aliments, the
manner of life, and  the diseases to which we are liable.  Casali
had departed  in  the  bloom of youth; he then entered on the
hardships  of a  military life, and if the narrative of the individual
in question is to be credited, he had languished for years in prison.
All these causes, he conceived, might produce a great change in
the countenance, and render it difficult to recognize him.
  The judges, on receiving this opinion, examined into the physi-
cal marks, and as the heirs could not prove the death of Casali,
his name and estate were decreed  to him.f

  * Commentaries, vol. 4, p. 396.  In the  Attorney-General v. Fadden, (Price's
Exchequer Reports, vol.  t, p. 403,) the defendant represented that the person who
had actually committed the offence, had assumed his name, and  that the question
would be one of mere identity. He therefore prayed to be brought into court by ha-
beas corpus, (he was now in jail,) in order to be present at the trial. It was granted.
  t Zacchias, Consilium,  No. 61.   It is to such cases, that  the beautiful quotation
from Marmion, by  Dr. Paris, is applicable :
  vol. i.                         45 
530                     AGE AND IDENTITY.
   It is not, however, in foreign countries only that these difficult

cases have happened.  An individual was indicted and tried be-

fore Judge  Livingston, at New York,  in  1804, on a charge of

bigamy, and the whole evidence  turned on the  question of his

identity.   He was  called Thomas Hoag by the public prosecutor;

but stated himself to be Joseph Parker.   Several witnesses swore

that they had known  him under  the  name  of Thomas Hoag,

among whom  was a female whom he  had married, and  after-

wards deserted.  It was stated that Hoag had a scar on his fore-

head, a small mark on his neck, and that his speech was  quick

and lisping.   All these peculiarities were found on the prisoner.

Two witnesses deposed that Hoag had  a scar under his foot, oc-

casioned  by treading  upon a drawing-knife,  and that this scar

was easy to be seen, and had  been seen by them.  On examining

his feet in open court, no scar ivas to be found on either of them ;

and it  was further proved, that at the period of his alleged court-

ship of the second wife  in Westchester county, he was  doing

duty as a watchman in  the  city  of  New York.   The jury ac-

quitted him.*

   In all disputed cases, says Fodere, we should  particularly no-

tice malconformations  or congenital marks.  . These cannot be

removed.   All wounds also of the  soft parts leave marks of their

existence.   Scrofulous ulcers have their cicatrices—smallpox and

burns leave their marks.  The marks of the executioner, he adds,

                " Danger,  long travel, want and wo,
                Soon change the form that best we know ;
                For deadly fear can time outgo,
                   And blanch at once the hair :
                Hard toil can roughen form and face,
                And want can quench the eye's bright grace, .
                Nor does old age a wrinkle trace
                   More deeply than despair.
  The following singular case is mentioned  by Dr. A. T. Thomson : " I recollect a
captain of an Indiaman, who was a man of low stature when he left England, but
had acquired upwards of an inch in height on his return—a circumstance which the
surgeon ascribed to his having been salivated twice in the course of the voyage."
(London Medical and Surgical Journal, vol. 6, p. 519.)  Such cases, in persons be-
yond the usual period of growth, must, however, be very rare.
  * Hall's American Law Journal, vol. 1, p. 70.   Dr. Smith also mentions a case
that occurred in England in 1817, where, on an inquest, an old man declared a dead
female to be his daughter.  On investigation, however, the daughter was found alive
and-hearty, and was produced before the coroner.   The resemblance here was very
great between the living and  the dead woman.
  " When witnesses  swear  to the identity  of a  dead person, unless their causa
scientioe consist in scars, tattooing, or other indelible marks, their evidence should be
taken with the greatest possible caution by the jury, for very soon after death such
a total change of the  features takes place, that it is impossible for the nearest rela-
tions to recognize them.  This is finely illustrated in a case tried before the High-
Court of Justiciary in Edinburgh, last winter, (I quote from memory, having no do- 
AGE AND IDENTITY.
531
cannot  be effaced.   By means of a plate of  pewter, he saw the

letters come out on the back, although the criminal, who had es-

caped from prison, had caused an eruption over its whole sur-

face.   The cold body made  the other parts pale, while the fatal

letter V appeared in full relief.

   Devergie, however, observes that he has  often had  occasion to

examine cicatrices of this kind, without being able to distinguish

the  letters—repeated  friction  with  the palm of  the  hand  being

necessary to  revive them.   This  was more particularly the case

when the branding had been inflicted in  youth.   The best gene-

ral direction  then is to use friction.  The  mark of  the cicatrix

remains white, in spite of this  stimulus.*

   Finally, we should notice all peculiarities of physiognomy, and

of professions and trades.  These last, as is well known, develope

some members more than others.f

   In the chapter  on  Persons found Dead, the  reader will find

minute directions  for identifying the age and  sex.

cuments.)  A resurrection-man  was tried  for raising the body of a young woman
from the church-yard of Stirling—nine weeks after death, the  body was discovered
and identified by all the relations, not only by the  features, but by a mark which
they  believed could not be mistaken, she  being lame of the left leg, which was
shorter than the right.   There was a good  deal of curious swearing as to the length
of time after death, that the body could be  recognized, but the jury were convinced
that the libel was proven, and gave a verdict accordingly.  Now I am  certain that
this was not the  body of the woman who was taken  from the church-yard of Stir-
ling, but one that, at least six weeks after the time libelled, was buried in the church-
yard of Falkirk, from which she was taken by this man, who also took the other,
for which he was tried—she also was lame of the left leg ; thus, though guilty of
the offence laid to his charge, he was found guilty by a mistake of the corpus delicti.
  "Considerable interest is at this moment excited in the public mind, by the case
of a young gentleman of the name of Robinson, who.was tried lately, (July, 1824,)
for divers acts of theft.  Many people swore positively to his identity, and  the jury
found him guilty of several of  the  acts charged.   Yet, on a second trial, when he
was  sworn to  as positively, most satisfactory alibis were proved.  The case  at
present is involved in mystery, but it is generally believed that  the king will pardon
him, as the second trial has thrown doubt on the first.
  " Since  writing the above, the royal mercy has been extended to him."   Dunlop.
  * Devergie, vol. 2, p. 32, 929.
  t Dictionnaire des Sciences Medicales, vol. 24, art. Impressions.
  Orfila in a memoir on the inferences to be drawn  from the  colour of the hair, in
cases of disputed identity, states, as the result of numerous experiments made by him,
that the colour of black hair can be altered by various  agents,—that light-coloured
hair, with sundry exceptions, can be stained of a dark colour—but that red, or blond,
or chestnut coloured hair, is changed with great difficulty, and indeed it can hardly
be effected.  In all instances of this  description, he remarks, that the use of these
agents may be detected on a close examination, since it is impossible to  effect a total
change.   Some straggling hairs will peep out and testify to their original colour.
(Annales D'Hygiene, vol. 13, p.  466.) 
CHAPTER XII.
                      INSURANCE UPON LIVES.*

Definition of an insurance upon life—of an annuity. Objects of inquiry with insurers
  upon lives—exceptions made by them.  What vitiates policies—fraud or falsehood
  as to the health of the insured—gout—dyspepsia, whether organic or functional—
  confinement—omission to mention the actual medical attendant—consumption—
  mental imbecility—disease of the kidneys—habits of intoxication—opium eating.
  French annuity case.

   " An insurance upon  life, is  a contract by which the under-
writers, for a certain sum, proportioned to the  age, health, pro-
fession, and other circumstances of that person whose life is the
object of insurance,  engage  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 is granted."!
The  nature of the agreement  is  such, that  in proportion to the
probability of the prolongation of the life, will  be  the smallness of
the premium.   Annuities are regulated on the  same principles,
and the only difference  is, that  here the  person deposits the  re-
quired sum at once, and the company  agree to pay  a certain an-
nual  sum during his life.
   It is the  custom with insurance offices to refer the applicant to
some professional man well acquainted with his  constitution and
habits,' or who, in other words,  has been his medical adviser;  or
persons  are directly  appointed as physician and surgeon to the
respective  offices, and charged with the duty of examination.  In
either or both cases,  the result of their inquiries  guides them in
accepting or refusing an  insurance.  The  leading objects of  in-
vestigation, of course, are, whether he labours under any disease,
and particularly one  that tends to shorten life ; whether his habits

  * In the fifth volume of the New York Medical and Physical Journal, (1826,)  will
be found an essay on this subject, which forms the basis of the present chapter.  Se-
veral years after its publication, I met with a work entitled " The Law of Fire  and
Life Insurance and Annuities,  with Practical Observations, by Charles Ellis, Esquire,
of Lincoln's Inn, Barrister at Law."  It is reprinted in the Law Library, edited by
Messrs. Sergeant and Lowber, (June, 1834.)  Chapter 2d of Part 2d contains a no-
tice of most of the English cases to which I have referred.
  t Park on Insurance, vol. 2, p. 571, 6th edit. Paris and Fonblanque, v. 1, p. 381. 
INSURANCE UPON LIVES.
533
are temperate or not, and  his employment unhealthy or danger-

ous.^   The following list of questions will give an idea of the re-
quired minuteness:

   " Before a common insurance company will undertake the risk

of paying £100 on the death of an  individual, they require the

following to be answered  by credible  and intelligent witnesses:

How long have  you known Mr. A. B.?  Has he had the gout?

Has he had  a spitting of  blood, asthma, consumption, or other

pulmonary complaint ? Do you consider him as at all predisposed

to any of these complaints? Has he been  afflicted with-fits, or

mental derangement ?  Do  you  think  his  constitution perfectly

good in the common acceptation of the term ?  Are his habits, in

every respect, strictly regular and  temperate ?  Is he  at  present

in good health ?  Is  there any thing in  his form, habits of living,

or business, which you are of opinion may shorten his life ? What

complaints are his family most subject to ? Are you aware of any

reason why an insurance might  not with safety be effected on his

life ?"f  Whether the party has had either the smallpox or cow-

pox?

   " With respect to the risk which the  underwriter is to run, this

is usually inserted in the policy, and he  undertakes to answer for

all those accidents to which the life of man is exposed, unless the

cestuy  qui vie  puts himself to  death, or  he die  by the hands of

justice."   Hence, these are generally excepted in policies.^ and

  * Smith's Forensic Medicine, p.  517, 2d edition.
  t Combe on the Constitution of Man, p. 164,2d American edition. Mr. Lawrence,
in his Lectures on Surgery, when speaking of the liability of an organ that has once
been inflamed, again becoming so, observes, " Persons who conduct the business of
life insurance, are  well aware of this fact.   When a person wishes to insure his life,
the insurers inquire not only whether he is healthy at the time, but whether  he at
any previous time has had serious disease;  and if they find that  he has had such
disease, though he is healthy at the time, they commonly refuse his insurance; they
consider him to be an unsound man." (Lancet, N. S. vol. 5, p. 266.)
  * In a case where the noted Fauntleroy effected an insurance on his life, it appeared
that there was no exception, as to death by the hands of justice, in the policies of this
company, (the Amicable.)  It was  urged, however, that the insured had perpetrated
a crime which the  laws of his country punish capitally, and that therefore his  death
was as much his own act as if he had committed suicide.  But the court (Master of
the Rolls) decided that " the obligation to pay did not determine, merely because the
conduct of the party insured  produced  the event,  even though such  conduct was
against the criminal law of the country.   To avoid the obligation, the act must  be
done fraudulently,  for the  very purpose of producing the event."  (Bolland v. Disney,
3 Russel's Chancery Reports, p. 351.) The House  of Lords, however, on appeal, re-
versed this decision, on the ground that, as a condition in a policy saving the  insu-
rance in the event  of the  party effecting  the insarance committing felony, would
clearly be void, as affording encouragement to crime, and being contrary to public
policy, so no effect could be given to a policy which in reality involved that condi-
tion.  (2 Dow and Clarke's Parliamentary Reports, vol. 1, p. 1.)
                                45* 
534
INSURANCE UPON LIVES.
in certain cases, also, the premium is special, and subject to par-
ticular arrangement, such as exposure to risk  by long voyages.
or by military service, and residence  in  unhealthy climates.   1
observe,  also, that during the late prevalence of cholera in Great
Britain, several, and probably all, of the offices, excluded death
by that disease, (unless an increased rate of premium was paid,)
during its continuance as an epidemic.
  Policies on lives are vitiated by fraud  or falsehood as to the
health of the insured.  This  then is the point on which the physi-
cian's .testimony may be, and  indeed  is, frequently required.   I
apprehend that the best and most practical elucidation that I can
give of this subject, is to notice cases that have occurred, and  I
shall  do this somewhat in chronological order.
  The two following are mentioned by Mr. Park in his treatise
on insurance.   It  will be noticed, however, that  they occurred
previous to the establishment of the preliminary inquiries already
quoted.  Indeed it is probable that the case of Sir Simeon Stuart
led the offices to name, specifically, gout and other constitutional
disorders.*
  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, Sir
James had received a wound  at the  battle of La Feldt, in the
year  1747, in his  loins, which had occasioned a partial relaxa-
tion or palsy, so that he could not retain his urine or fasces, and
which was not  mentioned to the insurer.   Sir James died of a
malignant fever within the time of the insurance.   All the physi-
cians and  surgeons, who were examined for the plaintiff, swore,
that the  wound had no sort of connexion with the fever;  and that
the want of  retention was  not a disorder which" shortened life,
but he might, notwithstanding that, have lived  to the common
age of man;  and the surgeons who opened him said, that his in-
testines 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 on the whole, he did
not look upon him as a good life.
   Lord  Mansfield, before whom the case was tried, observed—
* Paris and Fonblanque, vol. I, p. 384, 
INSURANCE UPON LIVES.
535
" The question of fraud  cannot exist in this case.   When a man
makes insurance upon a  life generally, without any representation
of the state of  the  life insured, the insurer takes all the risk,  un-
less 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.   When an insurance is upon
a  representation, every material  circumstance should  be men-
tioned,  such as age, way of life, &c.   But where there is a war-
ranty,  then nothing  need be told,  but it must, in general, be
proved, if litigated, that the life was in fact a good  oneT and  so it
may be, though  he have a particular infirmity.   The only question
is, whether  he was in a reasonable good stale of health, and such a
life as ought to  be  insured on common terms?'7   The  jury, upon
this direction, without going out of court,  found a verdict for the
plaintiff*
   Gout. Again, an insurance had been effected on the life of Sir
Simeon Stuart, from  April  1, 1779,  for one year.   The  policy
contained a warranty that he was about fifty-seven years of age,
and in  good  health on the  11th of May,  1779.  He died within
the year.   The warranty of health was contested, but it appeared
in evidence, that although Sir Simeon was troubled with spasms
and cramps from violent  fits of the gout,  he was in good health
when the  policy was underwritten, as he had been  for a  long
time before.  Lord Mansfield, in commenting on the testimony,
observed, " Such a warranty can never mean  that a man has not
the seeds of a disorder.  We are  all born with seeds of mortality
in us.  A man subject to the gout, is a  life  capable of being in-
sured, if he has no sickness at the time  to make it  an unequal
contract."   The plaintiff obtained a verdict, f

  * Park on Insurance, vol. 2, p. 583 ; Ross v. Bradshaw, and 1 Blackstone's Re-
ports, p. 312.
  t Park, vol. 2, p. 583,  Willis  v.  Poole.  In a recent case, (Swete v. Fairlie, 6 Car-
rington and Payne's Reports, p. 1,) the insurer, Mr. Abraham, stated in reply to the
usual question concerning diseases, that he was troubled with " occasional indiges-
tion only."  This was in 1827.  It appeared on the trial, that in 1823, he was seized
with depression of spirits, nearly if not quite approaching to insanity.  He was not,
however, secluded, but took lodgings in the country  and came to town every day
and attended  to business.  This  after some time restored him to health. His com-
plexion was florid, and there was the general appearance of a tendency to a determi-
nation to the head.  He died of apoplexy in 1830.  It was decided that "a policy of
insurance on  the life of another person, who at the time of the insurance, is in a
good state of health, is not vitiated by the non communication by such person of the
fact of his  having, a few years  before, been afflicted with a disorder tending to 
536                 INSURANCE UPON LIVES.
   Dyspepsia. In an action brought by the executors of Dr. Wat-
 son against the Equitable Insurance Company, to recover a sum
 insured on his  life, the defence was that the  deceased had  in
 breach of his declaration to  the contrary, a disorder tending  to
 shorten life, and  that  therefore the policy was void.  For the
 plaintiff, it was  proved that Dr. Watson had applied to a physi-
 cian  in  Bath for advice, concerning  dyspeptic symptoms, and
 that these, though  uncomfortable,  do not generally, unless in-
 creased  to an excessive degree, tend to shorten life, and further
 that his complaint was not organic dyspepsia.  Several medical
 men  stated  that  they  had attended him since the policy had
 been  effected, and  that he was then quite  free of the disorder.
 On the other side, several medical men stated, that they had seen
 him at the time of his  visiting Bath, previously to  effecting the
 insurance, and that they considered  him as a failing man.  It was
 left to the jury to decide whether the patient's complaint was or-
 ganic  dyspepsia, and if it was not, whether the dyspepsia under
 which he laboured was, at the  time of effecting  the policy,  of
 such a degree, that by its excess it  tended to shorten life.  The
 jury found that  it was neither organic nor excessive, and gave a
 verdict for the plaintiff.
   An application was afterwards made to the Court of Common
 Pleas to set aside the verdict and have a new trial, on the ground
 that since the insured afterwards died of the same disorder which
 he had before effecting the policy, that circumstance was conclu-
 sive proof that  he was then afflicted with a disorder tending  to
 shorten life.
   Mr. Justice Chambre remarked—all disorders  have more or less
 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 that tended to shorten life,
writhin this exception, the lives of half the members of the profes-
 sion of the law would be uninsurable.   The  application was re-
 fused.*
   Confinement.  In  1815, a  case was  tried at the Sarum Spring
Assizes, where the defence set up was, that  a  material fact had
been suppressed.  The  person insured was, at the time,  upwards

shorten life, if it appears that the disorder was of such a character as to prevent the
party from being conscious of what had happened  to him while suffering under it."
  * 4 Taunton's Reports, p. 763, Watson v. Mainwairing. 
INSURANCE UPON LIVES.                 537
of sixty years of age, but healthy for that period of life.   It was
not, however, mentioned in the certificate that  at  this very time
she was a prisoner for debt  in  the county jail.   The  judge sup-
posed from the evidence, that by contrivance, the physician had
been prevented from stating this fact to the defendants, and there-
fore  directed a nonsuit.  But  on  an application to the Court of
Common Pleas, a new trial was directed, on  the ground, that al-
though  there was nothing express  in the terms of the policy
which required  the imprisonment to be stated,  and although every
thing called for by the office was answered, yet if the imprison-
ment were a  material fact, the  keeping it back would be fatal.  It
ought, however, to have been submitted to the jury, whether this
was  or was not a material omission.*
   The  omission to mention the actual medical  attendant proved
fatal in  the case of Col. Lyon.   Previous to the execution of the
policy, the office sent a number  of printed questions to him, among
which were the following:  " Who is  your medical attendant ?"
He answered,  "I have none, except Mr. Guy of Chichester."
And " Have  you ever had  a serious illness ?"  He  answered,
" never."   Mr. Guy  was referred to, and gave it as his opinion,
that  Col. Lyon  was an insurable life.  He died  in October, 1823,
of a bilious remittent fever, and an annuity  creditor prosecuted
the present suit.
  It  was proved on the part of the insurance company, that Mr.
Guy had not  been called to  attend him for three  years previous
to giving his  certificate; but that  in 1823, Dr. Veitch, a physi-
cian, and Mr. Jordan,  a surgeon, attended Col. Lyon, from the
month  of  February  to that of  April, for an inflammation of the
liver and fever, and  a determination of blood to the head.  The
former proved that  he  considered him in a dangerous way, and
had prescribed  active medicine, and that he would not have cer-
tified him to be  in health until the end of  May.  It  was, however,
agreed on all hands, that the disease of which he died, had no re-
lation to any of the complaints for which these gentlemen attended
him.   The verdict was for the  defendant.f
   Consumption. A female with a disposition to  this disease, such
as cough and emaciation, had been attended by a  medical  prac-

  * 6 Taunton's,  Reports, p. 186, Huguenin v. Rayley.
  I Carrington and  Payne's Nisi Prius Reports, vol.  1, p. 360.  Maynard v. Rhode,
Secretary Pelican Insurance Company. 
538
INSURANCE UPON LIVES.
titioner for some time immediately previous to effecting an insu-
rance.  He, however, did not suppose that structural disease was
present, and she was then convalescent.  The knowledge of this
illness was not communicated to the insurers, and another prac-
titioner, not then in attendance, but who had known her for seve-
ral years, was sent to examine her, and he  stated that she was in
ordinary good health.  She died, a  year after effecting the insu-
rance, of consumption.
   Although  a verdict had been found for the plaintiff, yet the
court ordered a new trial, on the ground that neither the medical
attendance, nor the illness had been communicated to the insurers,
and that the jury must decide whether  this  concealment was ma-
terial*
   Mental Imbecility.   The case  that I  am  now to state, excited
considerable  attention in England, both from the rank of the
individual in question, and the medical testimony that was ad-
duced.
   In  1824, a policy was effected by  the Baron Van Lindenau on
the life of Frederick IV., Duke of  Saxe-Gotha  and Altenburg,
in the Atlas Insurance Company. The Duke died on the 11th of
February, 1825,  and the insurers  refused  to pay  the  sum in-
sured for.
   On the trial, it  appeared that Lindenau had stated in his appli-
cation, that the Duke was not gouty, asthmatic or consumptive,
or subject to fits; that he had never had apoplexy, and that he
had no disease tending to shorten life.  Two physicians of the
Duke certified, that since the  year 1809, he had had a dimness of
sight  from amaurosis in the left eye, and since  1819, had been
" hindered " in his speech from having had an inflammation  of
the chest, of which he had been perfectly cured: and they further
stated that he was perfectly free from disease, and symptoms of
disease.  In a communication from an  agent in Germany, it was
mentioned that the  Duke had formerly led a dissolute life, " by
wrhich he had  lost the use of  his speech, and according to some,
that also of his mental faculties; which, however, is contradicted
by the medical men."
   On this the company,  instead of  asking  an ordinary premium
of £2 17s. per cent, per annum, required £5 per cent.
* 4 Bingham's Reports, p. 60.  Morrison v. Muspratt. 
INSURANCE UPON LIVES.
539
  It now, however, appeared, that the Duke had been afflicted
with almost a total  loss of speech from 1822 to  the time of his
death, which one of the physicians attributed to local  paralysis,
and that he had periodical catarrhal affections, accompanied with
fever.   The  chamberlain  of the Duke, in  his examination men-
tioned, that he  never complained of pain in his  head.   He ate.
drank and  slept well, but  could  not  speak.  Dr. Dorl, physician
to the Duke, agreed that his intellectual faculties  were impaired,
although his bodily  health was good.
  On examination after death, no chronic  disease was discovered
in the viscera or any part of the trunk, but in the head was found
a large  tumour six  inches in length, two in breadth, and one in
depth, which not only pressed on the brain, but had  depressed
the skull at its base.  It was inferred that this tumour  had com-
menced in early life. .
  The  defence was, that  there  had been  a suppression of ma-
terial facts.
  Mr. Green, an eminent English surgeon, gave it as his opinion.
that from  the  history of  the  case merely, there  were no symp-
toms of organic disease. He further thought that the tumour in the
skull must, during life,  have been in a passive state;  and from
the appearance on  dissection, that it must have  been formed in
early life.   He  was  only willing to allow that the  symptoms
mentioned above, would  lead to a  suspicion of disease  in  the
head; and he was  disposed to ascribe the difficulty of speech to
want of volition, and not  to the tumour in the brain.  In reply,
however, to  a question of Lord Tenterden, he  answered, " If I,
as a medical man, was asked by an insurance  company, con-
cerning the state of a man's health, who was unwilling to move,
who was subject to control upon his intellect, and who had lost his
speech,  I s"hould not consider myself at liberty to forbear mention-
ing these circumstances."
  Lord Tenterden,  who tried  the cause, said this was  sufficient;
and that he should charge the jury, that if any  material facts re-
lative to the  Duke's health were  concealed, then  the policy was
void.
  The  plaintiff elected to be  nonsuited, and subsequently made
an effort to obtain a new trial, but it was  refused.*
  * 3 Carrington and Payne's Reports, 353. 8 Barnewall and Cresswell, 586. 3 Man-
ning and  Ryland, 45. (Lindenau, v. Desborough.) On the medical testimony, and 
540                   INSURANCE UPON LIVES.
   Diseased kidney.   Mr. Chitty mentions the  case  of Simcor v.

Bignold, tried in 1832, for a life policy effected in 1827,  with the

usual declaration that  Bird  was  not affected with any disease

tending to shorten life.   Bird  died  in January,  1831 ; and on dis-

section, it was found  that a large  fungous tumour weighing two

pounds four ounces, occupied the place of the left kidney.  Some

of the witnesses were of opinion  that it must have been of five

or six years growth, and that it was an incurable organic disease.

The  bladder  was also  diseased,  but otherwise the rest of  the

body was  in a  healthy state.  Mr.  Bird had  been  medically

treated for  symptoms of his disease, as far back  as 1825  or 1826.

The  cause  ended in a compromise, by the defendant's refunding

the premiurn  received.*

   Habits of intoxication.  Two  cases in which it was proved that

the knowledge of these was concealed from the insurers,  although

the individuals in question were at the time apparently hale and

healthy,  have been decided against the plaintiffs.-)-  It was  urged,


particularly Mr.  Green's, which is severely criticised, see  Medico-Chirurgical  Re-
view, vol. 14, p. 213; and London Medical Gazette, vol. 2, p. 669.
  * Chitty's Medical Jurisprudence,  Part 1, p. 235.
  t 6  East's Reports, 188. Avcson v. Lord Kinniard and others.  5 Bingham's  Re-
ports,  503. Everett v. Desborough.
  In a third case of a similar nature, although the Judge (Lord Denman) charged
the jurv for the defendant, the verdict was in favour of the plaintiff.   London Med.
Gazette, vol.21,  p. 549.
  There are  some additional English  cases, more  recent  than any noticed in  the
text, the substance of which may here be briefly given.
  Chaltock v. Shawe. Col. Greswolde made  an insurance on his life and died in  two
years  thereafter.   The Company resisted payment on the  ground that  the Colonel
had been intemperate, and also had epileptic fits, and that these facts had been con-
cealed from them.   On' these points, there was great  diversity of testimony.  The
verdict was for the plaintiff.  Lord Abinger charged the jury that all that was re-
quired to be considered was, whether it was satisfactorily proved, that the Colonel
had been subject to fits, and accustomed to intemperate habits before the policy was
issued.  It was not sufficient to vacate  the policy, if an epileptic fit had occurred in
consequence of an accident.  It must be shown that the constitution either was na-
turally liable  to fits, or by accident or otherwise had become so liable.  London Med.
Gazette, vol. 16,  p. 554, 607.  London Med. and Surg. Journal, vol. 8,  p.  112. Ame-
rican  Jurist, vol. 18, p. 419.
  Fisher v. Beaumont. This was tried at York in July, 1835.   The judge told the
jury that the question was, whether the individual laboured under any disease likely
to shorten  life, when the  policies were effected,—whether insanity was that disease,
and if so, whether it had a tendency to shorten life.  There  was a verdict for the
plaintiff.
  In this case, the presence of insanity was proved, and all  the medical witnesses
except one, swore that they did not think it had a tendency to shorten life.
  A correspondent of the London Medical Gazette objects  to this, and quotes Law-
rence  in proof that the brains of maniacs show more or less of disease. On the other
hand,  the long life of many of the insane is urged.  It is evident that we  need statis-
tical tables from  lunatic asylums to settle the point.  London Med. Gazette, vol. 16,
p. 660. 
                      INSURANCE UPON  LIVES.                 541

 in one instance, that the warranty was only against any disorder
 tending to shorten life, and not against pernicious habits.  Here,
 however, the reference to the regular  medical attendant had also
 been omitted.
   Opium eating. Professor Christison  has directed the attention
 of the profession  to the effects of this on  health  and longevity.
 His was particularly called to it by the following case.
   In 1826, the late  Earl of Mar  effected  several insurances on
 his life in various  offices, and among these, one in the Edinburgh
 Life Insurance Company for the sum of £3000.   This was held
 by a banking-house  in Edinburgh, as a  security for  debt.  He
 died in September, 1828, of jaundice and dropsy;  and the com-
 pany then learnt that he had been for years in the habit of taking
 laudanum to excess; and instead  of being, as was  represented,
 temperate and active,  that  he had drank to excess, and led a
 very sedentary life.   They refused to  pay, and a suit was insti-
 tuted.
   It is not necessary to go into a  detail of the evidence, further
 than to state, that on the one side,  the  manifest change in his
 health and spirits  in  1827, was ascribed mainly to his depressed
 pecuniary situation,  which he then discovered to be very low.
   On the part of the company, it was proved  that he had  been in
 the practice of taking  laudanum for thirty years, and in large
 quantities.   He  used to take a table spoonful at a time on going
 to bed, and often  also when going out to walk, &c.   They con-
 tended that  this was a "habit tending to shorten life."   He  ap-
 pears also to have been subject to rheumatism and stomach com-
 plaints, previous to effecting the insurance.
   The  charge  of  the chief  commissioner was in favour of the
 plaintiffs, principally, as it would  seem, on a  technical  ground,
 implying  that the insurance company did not  make the inquiries
 relative to his  health with the care usually observed, and there-

  Wainewright v. Bland. The details of this case I have  taken from the London
 Morning Herald of June 30, and December  4, 1835, which I received through the
 kindness of my friend, Mr. Balmanno, of Geneva.  See, also, London Med. Gazette,
 vol. 16, p. 554, 606.  Miss Abercrombie, the  person insured, was so indigent, as to
 petition for a pension of jCIO per annum, and yet her life was insured to the amount
 of £11,000.  She died very suddenly, in consequence, as was assarted, of indiges-
 tion, owing to a hearty supper, after walking home with wet feet from the theatre.
 No proof of poison was found.   There were two trials.   In the first, the jury could
 not agree, and in the second, their verdict was for the defendant, and very justly, I
apprehend. From some  private information that I have received, I entertain a strong
suspicion that the death  in question was hastened.
  vol. i.                       46 
542
INSURANCE  UPON LIVES.
fore were to be  understood as accepting  the life at a venture.
He also appears to have entertained doubts whether the habit
was carried to such an extent, or at all events that it was so im-
portant a circumstance as to render it necessary  for  Lord  Mar
to reveal it.   The jury agreed with him in their verdict,* but on
an appeal to the Court of  Session, it was set aside and a new
trial was granted March 9,1832.  The Lord Chief Commissioner
observed, that " it was a verdict without due and sufficiently de-
liberate consideration of the evidence."  The parties finally com-
promised the case.f
  Having collected, I believe, most of the English cases on  this
subject, I will conclude with the narrative of one that occurred
in France. J  It relates to Annuities, modified by the peculiar pro-
visions of the French code.
  Article 1974, of the Civil Code enacts, that " a contract for an
annuity on the life of a person dead the same day on which the
contract is signed, is void."
  Article 1975 extends the  same provision to the case of a per-
son affected  with  a disease,  of which he  dies within  twenty days
after the passing of the  contract.  It is to this last, that the case is
particularly referable.
  The Sieur Fried, residing at  Strasburg, and aged upwards of
sixty, 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 signing the contract, of an attack of apo-
plexy, excited by an altercation.  The question was, whether M.
Fried, on the day when he  signed the  papers, was or was not
already under the influence  of the disease to which he fell a vic-
tim thirty hours afterwards ? or in other words, whether the ten
years' hemiplegia and the apoplexy did not constitute one and the
same disease ?
   The following is an abstract of the  testimony presented.  A
hair-dresser deposed that he had dressed  M. Fried for upwards

  * Edinburgh Medical and Surgical Journal, vol. 37, p. 123. Christison on Poisons,
p. 626, 2d edition. I shall notice this subject more in detail when speaking of opium
as a poison.
  t Forbes & Co. v. Edinburgh Life Assurance Company.  Cases in the Court of
Session, vol. 10, p. 451.
  t Two other  cases of some interest, connected with this subject, will be more ap-
propriately noticed in subsequent chapters—one relating  to the point, whether  a
drowning was  accidental or suicidal;  and  the other, whether apoplexy or  taking
opium had been the cause of death. 
INSURANCE UPON LIVES.                 b43
of two years ;  who, during that time, had been repeatedly seized
with apoplectic attacks: that Fried had, for a long time, been
paralytic of the right side, and was obliged to write with his left
hand.  The day after the new year, the deceased suffered a se-
vere attack of apoplexy, and this recurred several times till his
death.   His strength gradually failed, so that he was unable to
go out and pay his usual visits.
  Dr. Schweighauser stated, that he had long known Fried, and
that the paralysis arose from an attack of apoplexy.  He did not,
however, attend him professionally until March, 1808, when  he
was called in  consequence of an apoplectic stroke.  He treated
him during ten  or  fifteen days, and left him as well as he was
before his illness.  In January,  1809, he was again called on the
same account.   This  yielded readily, and  he attributed both to
slight indigestion.  In March, however, he found, on being sum-
moned, that the attack was more serious ;  stertorous breathing
was present, and death soon followed.  On inquiry, he ascertained
the immediate cause of this last seizure to have  been a violent fit
of passion.
  Some of M. Fried's  servants deposed that his mind  was im-
paired, particularly since January: that he walked and spoke
with difficulty; that his  hearing was  affected,  and that  the  at-
tacks of apoplexy were very frequent;  sometimes one every two
days.
  On  the other hand, Lacombe, a notary, stated, that  early in
March, he had a conversation with Fried relative to the contract
which he was  about making, and received his directions thereon ;
that his mind  appeared  sound,  nor did he seem ill, but walked
about  and sat down  apparently  with  ease.   Other witnesses
agreed that his intellect was unimpaired.
   The case was, by order of the court, submitted to the exami-
nation of the Professors of the Faculty of Medicine at Strasburg
and Montpelier, and also to sundry professors and physicians at
Paris.  As is  usual, they differed.
   The Strasburg physicians were  of opinion, that  Fried was af-
fected with the disease of which he died on the day of signature.
^heir arguments may be stated as follows:
   Apoplexy, independent of the symptoms which constitute  the
attack, has certain  precursory symptoms, as well as concomitant
and subsequent ones.  To  the  last belong hemiplegia, affected
senses, weakness of mind,  &c.  All, however, are  referable to 
544
INSURANCE UPON  LIVES.
 the same cause.  Apoplexy may be styled the acute form of the
 disease, and palsy the chronic ;  and from the slightest excitement,
 as passion, for example, the chronic will suddenly become acute.
 They in fact only differ as to the degree of intensity, and hemi-
 plegia always terminates in a fit of apoplexy.   It is also asserted
 as a sound maxim, that a disease is not removed until the symp-
 toms characterizing  it have  disappeared;  and the professors
 apply it to the present case, by observing that  hemiplegia is one
 of the principal elements of apoplexy.
   The Professors at Montpelier, in their consultation, totally re*
ject  the idea of apoplexy and palsy being the acute and chro-
 nic forms of the same disease.  Paralysis is a consecutive and
 permanent state ; apoplexy a primitive and temporary one.   As
 to paralysis being an element of apoplexy, this would be to  sup-
pose that there could be no apoplexy without paralysis—when
 the contrary is  undoubtedly true.  And again, paralysis arises
 from many other causes besides apoplexy.
   In this case, it is granted that there was a predisposition to
 apoplexy, induced by the paralysis, but predisposition to a dis-
ease does not carry with it the idea of its actual presence; many
causes may annihilate the predisposition; and even, if present, a
foreign cause, as in this instance, may be necessary to excite the
complaint.
  Marc, Chaussier, Desgenettes and Renaulden  constituted  the
Parisian board of reference.  They agree in opinion with those
of Montpelier.
  They observe  that palsy consists in a lesion of the nerves of
motion  and sensation; apoplexy in a suspension or abolition of
sense.   Hence different organs are necessarily affected in each.
There  is no such disease  as chronic apoplexy, since death must
follow a prolonged attack, but paralysis may occur in three ways
—independent  of apoplexy, as  from  compression, section of
nerves,  &c.—as  an avant-courier of apoplexy,  and lastly  and
most commonly, as a consequence of it.
  Was it the latter in this case, and if so, the consequence of a
disease the disease itself?   The remark, that  the  symptoms must
be removed before the complaint  can be considered  as cured,
does not apply here.   He had no symptoms of apoplexy, and the
different attacks of it, so far from  proving a  continuity of  the
same disease,  directly indicate  the Contrary.   Every seizure is
an independent  affection, arising from  a particular organic de- 
INSURANCE UPON LIVES.
545
rangement, and this derangement  must occur, in order  to pro-
duce a second.   How then can  paralysis be called chronic apo-
plexy ?
   The mind of the deceased, from the most intelligent testimo-
ny, appears to  have been sound.  Even those, who  question it.
rather  speak of loss of memory,  than of the  more essential
functions being impaired.
   The professors  conclude  by giving their opinion—1, that
Fried was of sound mind when he made the contract;  2, that
he was predisposed to apoplexy at the above period;  and 3, that
the fatal disease did  not exist at the  indicated time, but was ex-
cited by an occasional cause, operating on the predisposition.
   From grave  consultations prepared in the closet, and submit-
ted  to the legal tribunals  of the country, the controversy was
transferred to the  medical journals  of Paris.  Sedillot and Marc
were  the  principal combatants. The most striking  remark of
the former is—that the effects of a disease require curative treat-
ment, while the predisposition only  calls for preventive.   Hence.
in applying this to the present subject, he considers paralysis as
an epiphasnomenon (a super-added symptom) of apoplexy.  The
latter is barely  cured, and its effects remain.*
   In an examination made some years since of this  case, I felt
strongly inclined in favour of the opinion of the Strasburg phy-
sicians.f   The  subsequent  publication of Marc  suggests,  how-
ever, some additional points  which  have considerable weight.J
One of the strongest arguments adduced by him is, that  the op-
posite construction would render an individual like Fried, totally
incapable of making a contract during the  last ten years of his
life.   The article (says he) was  framed to prevent an advantage
being taken of a person labouring  under what are by common
consent called acute  diseases, or else  it would  not have been re-
stricted to twenty days.  The disease should be  continuous, and
it is  not correct to  apply this enactment to a case where  this is
an intermission  of  disease, with  supervening attacks.
   It had  been endeavoured in the course of the  controversy, to

  * All the papers, opinions and discussions relative to this case, were collected and
published by Dr. Ristelhueber, in an octavo volume, in 1821, entitled " Rapports and
Consultations de Medecine Legale."
  t New York Medical and Physical Journal,  vol. 5, p. 40.
  X Commentaire Medico legal sur l'Article, 1975, du Code Civil, par M. Marc, in
Annales D'Hygiene, (1830) vol. 3, p. 161.
                              46* 
546                 INSURANCE UPON LIVES.
assimilate this case to one of hemoptisis, the first  attack occur-
ring, for example, on the day of signing.  This is  removed, and
the patient has  no return of it, but apparently is  well.  On the
nineteenth day, however,  he  has another, and  dies.  Does this
invalidate the contract ?  Orfila said  not.*   Marc,  however, is
willing to qualify this.  If the haemorrhage arises from  an occa-
sional cause,  and a full and perfect intermission has occurred, he
will agree to the  above opinion, but if it be  shown  to originate
in a  tuberculous state of the lungs, and thus prove to be the
symptoms of an essential affection,  the contract is void.  If it be
replied that the  analogy is close between this and Fried's case,
since both paralysis and apoplexy arise from lesions of the brain,
the objection is  met by denying that the same pathological state
occurs in each, and also by the fact, that the attacks of apoplexy
had  preceded the time of signing  of contract.  The  article in
question  requires that the  individual should labour under the par-
ticular disease at this very period.
   It  is evident, however, that Professor Marc has some scruples.
He suggests  the necessity of dissection in these instances, and
intimates that an alteration of the article might perhaps  be pro-
per, so as to enact that a contract shall be void, if signed by a
person labouring under a disease actually the same (qui a ete in-
dividuellement la meme,) as that of which he dies within twenty
days.
   In concluding the  notice  of this subject, the importance  of
which  must  be  my apology for  prolixity, I cannot avoid ex-
pressing  a wish  that the custom of obtaining life insurances and
annuities may become more prevalent with us.  This is not the
place to  insist on their importance to the  happiness  of individu-
als.  I will only  say, that  experience has  fully  demonstrated
their value in other countries.  When offices of this nature shall
be generally established, physicians and surgeons  will be called
upon to  act  in  their  appropriate stations.  Let them recollect
that  their opinions are in all cases reviewed by intelligent and
acute bodies of men, and  that their medical reputation may be
exalted  or diminished, according  as they  perform their  duty.
Above all, their  acts may, as in several of  the above cases, be
submitted to  a jury of their  country.  The  concealment of ma-
terial facts, or  ignorance  of them, may prove a  source  of un-
ceasing regret.f
  * Lecons, vol. 1. p.  457.       t Medico-Chirurgical Review, vol. 14, p. 123. 
CHAPTER  XIII.
                          MENTAL ALIENATION.

1. Of the symptoms' that constitute a state of insanity.  Division of insanity into
  mania—monomania—dementia—idiot.ism—moral insanity.  Mania.  Precursory
  symptoms.  Symptoms—state of the countenance—language and  actions—dis-
  ordered appetite—state of the stomach  and bowels—condition of the tongue and
  pulse—insensibility to cold  and heat; how far this is correct—perversion of the
  senses, or illusions: the ear; the eye ; the smell; taste and touch—wakefulness—
  loss of memory—pusillanimity—aversion to friends. Duration of a paroxysm. Mo-
  nomania—its nature—gayety of some; melancholy in others—danger of suicide or
  violence from the insane of this class.  The age most liable to melancholy mono-
  mania—its symptoms—peculiar cast of countenance—state  of  the eye—bodily
  symptoms—concentration of thoughts on one idea—general sanity on subjects not
  connected with the morbid  impression—unwillingness to admit any evidence un-
  favourable to the delusion—length of time  that it may remain.  Age most liable.
  Incoherent madness of Dr. Prichard—its characters.   Dementia—generally a con-
  sequence of mania and monomania—its characters^may be idiopathic. Hoff bauer's
  modifications of it into imbecility and stupidity.   Idiolism. Its frequency in some
  countries.  Cretins. Characteristics of idiotism—form of the head and face—afl'ec
  tion of various senses—complication with other diseases.  Moral insanity. Nature
  of this—its subjects very liable  to commit  acts of violence.  Enumeration of the
  most common causes of mental  alienation.   2. Of feigned and concealed insanity.
  Rules for their detection.   Instances of both.  Cunning of the insane in eluding
  detection.  3. Legal definition of a state of mental alienation, and the adjudications
  under it.  Common law of England as to idiots and lunatics in civil  cases. Intro-
  duction of the term unsoundness of mind—the meaning of it according to Lord
  Eldon and others—used in  our own statutes—attempt to give a strict definition to
  it.  Cases—Mr. Davies—Miss Bagster.  English law as to criminal cases—French
  luw_law of the Slate of New  York.  Method of proving a person a lunatic-
  method of proving his recovery.  Distinctions made in  the law between civil and
  criminal cases.  Lucid interval—ancient meaning of this term—present definition
  of it by lawyers and physicians—restriction of its  meaning  in  criminal  cases.
  Responsibility of the insane in criminal cases—ability to judge between right and
  wrong—what this means, and  how it should be considered.  Cases showing the
  construction  put on it.  Scotch  law on this.  Great difficully in discriminating be-
  tween crime and  partial insanity—whether those who are proved to have been
  previously insane, should be  exempted from responsibility—arguments in favour
  of this.  Cases—Dean—Howison—Papavoine. Moral insanity.  Cases illustrating
  its nature—Henrietta Cornier.  Characters distinguishing it from crime—danger
  of extending it too far—cases referred  to it in the United States.  4. Inferior de.
  grees of diseased mind—delirium  of fever—hypochondriasis—hallucination-
  epilepsy—nostalgia.  Intoxication—its presence does not excuse from the guilt of
  crimes—a frequent cause of insanity.   Delirium tremens, an insane state of mind
  —its presence should relieve from responsibility—characters of this disease—its
   temporary nature—cases.  Old age.  5. Of the  state of mind  necessary to con-
   stitute a valid will—legal  requisites—nuncupative wills—wills  disposing of per-
   sonal property—testaments.  Persons  who  cannot  make  valid wills.   Diseases
   which incapacitate.  Law  cases in which  various states of mind have been urged
   against  the validity of wills.   6. Of the deaf and dumb—their capacity, and the
   morality of their  actions—are to be judged of according to their understanding.
   A  person  born deaf, dumb, and blind, is deemed an  idiot, if he  become so, a non
   compos.   A deaf and dumb  person  may  be a witness—may obtain possession of
   real estate—may be tried for crimes.   Cases of each.

    I  have  chosen the term mental  alienation, at this time, simply

 because   it is more  comprehensive  than others in  common use. 
548                   MENTAL ALIENATION.
Were not the words unsoundness of mind employed at the pre-
sent day in a technical sense, they would probably be preferable
for the object in view.  And this is to consider under one title all
those diseased states of mind, which occasionally require the in-
vestigation of the medical jurist.
   In examining the subject of insanity, I propose to confine my-
self to  those points, which are particularly noticed in civil  and
criminal cases, as it would neither comport with the limits of the
work, nor the objects for which it is prepared, to extend the re-
search  over that  broad  field which is usually occupied by the
medical pathologist.  And we shall find that the symptoms are
the important subject of inquiry,  since a  decision is  usually
founded on the estimate formed of them.
   I shall accordingly arrange my remarks in the following order:
   1. The symptoms that constitute a state of insanity.
   2. Of feigned and concealed insanity.
   3. Of the  legal definition of a  state of mental  alienation, and
the adjudications under it.
   4. Of inferior degrees of diseased mind.
   5. Of the  state  of mind necessary to constitute a valid will.
   6. Of the  deaf  and dumb—their  capacity, and the morality of
their actions.

      1. The symptoms  that constitute a  state  of insanity.
   Insanity, in its ordinary acceptation,  is usually divided  into
mania,  melancholia, and idiocy; but I prefer the classification
proposed by  M. Esquirol, as  better calculated  to illustrate  the
varied  appearances of the disease.   The following is the order
pursued by him.  1. Mania,  in which the hallucination  extends
to all  kinds  of objects, and  is accompanied with some excite-
ment.   2.  Monomania, in which the  hallucination is confined to
a  single object, or to  a small number  of objects.  3. Dementia,
wherein the  person is rendered incapable of reasoning, in  con-
sequence of functional  disorder of  the brain, not  congenital.
4. Idiotism, congenital, from  orrginal malconformation in the or-
gan of  thought*

  * Medico-Chirurgical Review, vol.  1, p. 249, American edition.  This  is an ana-
lysis of the masterly article of Esquirol  on  insanity, in the Dictionnaire des Sci-
ences Medicales.
  The above  division, although modified and improved by Esquirol, was originally
presented by Pinel. The term monomania was, however, introduced by the former. 
                      MENTAL  ALIENATION.                  549

   After describing these in as  succinct a manner  as possible, I
shall lastly notice a  form  of disease,  which is  now frequently
characterized by the  name  of moral insanity.
   Mania.  In many instances, though it is far from being general,
pain in the head and  throbbing of its arteries precede an attack
of insanity;  and sometimes giddiness is complained of, as a pre-
cursory symptom.*   The appearance of the eye is, however,
the circumstance most readily to be noticed, and the change  in
it from a state of health, even precedes incoherence of language.
Recovered patients have described a peculiar  sensation  con-
nected with this appearance, as  though the eye flashed fire from
being  stricken smartly with an open hand, and this increased  in
proportion as the ideas became more and more confused.  There
is a peculiar muscular  action  of these  organs,  a  protrusion  of
the  eyes, a wandering  motion, in every  possible direction, and
in a manner peculiarly tiresome to the beholder.  During  a pa-
roxysm they appear as if stiffly and firmly pushed  forward, and
the pupils  are contracted.!   And yet with all these appearances
of excitement, it has  rather a dull, than a fierce character.J
   The muscles of the face, also, partake in  the change, and the
rapidity of the  alterations they undergo, depends on the succes-
sion of ideas which pass with such velocity through  the mind  of
the sufferer.
   As  the  attack advances, the individual  becomes  uneasy,  is
unable to  confine his attention, wralks  with a quick and hurried
step, and while doing so, suddenly stops.  Men of the most re-
gular and  established habits, will suddenly become active, jeal-
ous and restless; they abandon their business and enter into the
most extravagant undertakings, while, on the other  hand,  some
who naturally are of a  lively disposition,  become indolent and
indifferent, fancy themselves sick, or have a presentiment of se-
vere  disease.  Persons subject to habitual indisposition, which

  * Haslam on Madness, p, 41.
  t Hill, p. 68.  " It is curious (says Dr.  Burrows,) that  in many persons  predis-
posed to insanity, the iris is so black that it can scarcely be distinguished from the
pupil.  The melancholic have generally blue or gray eyes."  (Commentaries, p. 283.)
  X " I have observed (contrary to my expectations,) that there was not that energy,
that knitting  of the brows, that indignant brooding and thoughtfulness in the face
of madmen,  which  is generally imagined to characterize their expressions, and
which we almost uniformly  find given to them in  painting.  There is a vacancy in
their laugh, a want of meaning in their ferociousness."  (Charles Bell on the  Anato-
my of Painting, Edinburgh Review, vol. 8, p. 376.) 
550
MENTAL ALIENATION.
has disappeared  suddenly, fancy themselves  in high  health, and
are greatly elated.*  A very vigorous action of body and  mind
soon  takes place, and particularly the exertion of great  muscu-
lar strength.  And here, it is impossible to present any thing like
a description  that shall be generally applicable.   The language
is totally different, both in  tone and manner from the  usual habits
of  the  maniac.   He becomes  angry  without  any assignable
cause—attempts to perform feats of strength, or efforts of agility,
which shall strike the beholder with astonishment  at his  great
powers.  Many talk incessantly, sometimes  in the most  boister-
ous manner, then suddenly lowering  their tone, speak softly and
whisper.   The  subjects vary equally.  They are  never confined
long  to one point, but voluble and incoherent, run rapidly from
one thing* to  another, totally  disconnected  with  it.   The  same
phrase is sometimes repeated for a length of time, or conversa-
tion is  maintained with themselves, as with  a third  person, with
all the variations of violent, and ridiculous gestures.   In females,
there is frequently a  complication, as it  were of hysteria, with
general madness, and laughing or weeping is a common attend-
ant.f
   The food necessary for the sustenance of life is often neglected,
and fasting is endured for a length of time without any apparent
inconvenience, yet with some, there is an  unusual  and indiscrimi-
nate voraciousness, and they swallow every thing  that may come
in  their way.
    The stomach and  bowels are usually torpid—costiveness pre-
 vails,  and the  stools are  white,  small,  and hard.  Diarrhoea
 rarely occurs except towards  the termination of the disease.  The
 urine is scanty in quantity, and for the most part, of a high co-
 lour.
    The pulse  is very various, sometimes full and  labouring, and
 sometimes natural;  and  I  apprehend that but little dependence
 can  be placed on-it as an indication.  Its condition  is, however,
 worthy of notice.  Of 89 females, examined at  La  Salpetriere,
 by Leuret and  Mitivie, the pulse was above  100, in only 7;  in

   *• Parkman.  I am greatly indebted, in this chapter, to the publications and MS.
 communications of this learned  and diligent examiner of the subject of insanity.
   f Rush, p.  145.  It is a remark of Esquirol, that in female maniacs the sense ot
 delicacy is obliterated. Dr. Knight, (p. 123,) however, states that he has rarely  ob-
 served this. 
                      MENTAL  ALIENATION.                   551

10, it ranged from 90 to 99 ;  in 38, from 80 to 89, in 29, from
70 to 79 ; in 4 from 60 to 69, and  in  1, it was under 60.  This
was in summer.   In winter, the results were generally  similar.
And in each case, according to these observers, the frequency of
the pulse decreases gradually  in mania, monomania, and  demen-
tia ; the mean pulsation in the latter being between 70 and 80.*
The  tongue is usually moist, and  sometimes has  a whitish ap-
pearance, and there  is often a preternatural secretion of saliva
and mucus  in the mouth and throat, which is of a  viscid nature,
and discharged  with difficulty by spitting.  According  to Es-
quirol, maniacs are frequently  tormented with great thirst. There
is also generally a stoppage of the secretion of mucus in the nose.
Dr. Rush mentions, that Dr. Moore, at his request,  examined the
maniacs in the Pennsylvania Hospital,  with  reference  to this
symptom, and found it  present in two-thirds of them.   Where
this secretion was not suspended, he found the mucus of the nose
dry and hard.f
   Maniacs are generally  deemed  capable of enduring high de-
grees of heat or  cold without  suffering.   This, however, is in-
correct, if  we are to credit the united  testimony of Haslam and
Esquirol.   During a paroxysm, indeed,  they are   insensible to
either,  and particularly to cold, but they suffer  like  the sane.
Mortification of the feet is a  common occurrence, and some in-
deed die from the effects of a low temperature, during the winter,
if not properly secured.  It is  suggested by Esquirol, that the
great internal heat which  some experience, may explain their vo-
luntary exposure.^
   The senses are often perverted,  constituting what we com-
monly  call  Illusions.^   The ear more particularly  suffers.   Has-

   * De la Frequence  du Pouls chez les Alienes, &c. par F- Leuret, Medecin de
l'Hopital de la Reserve, et F. Mitivie, Medecin de I'Hospice de  la Salpetriere, &c.
8vo. Paris, 18.32.
   t Rush, p. 146.
   X Haslam on Madness, p. 84.  Dictionnaire des Sciences Medicales, vol. 30, art.
Mania.  The  temperature of maniacs, according to Dr. Knight,  (p. 123,) is always
below the natural standard; yet, d #.ing a paroxysm,.he agrees that they are insen-
sible to the effects of cold.
   § An attempt has of late been  made to distinguish this term from that of halluci-
nation.  Dr. Morrison defines them  as follows: " Illusions are dependant on the
state of the organs of sense; hallucinations on  that of the intellectual organs,"
(p. 35.)  Esquirol who has written on both, makes a somewhat  similar  distinction
illustrating the latter, (in which the brain only is excited,) when  it relates simply to
the remembrance of the sensations of sight, by what is commonly called a vision, or
the appearance of apparitions,  while the former originates from the senses.  When,
however, he proceeds  to characterize illusions particularly,  he refers them to two 
552                   MENTAL  ALIENATION.

lam observes, that he scarcely recollects of a lunatic becoming
blind, but numbers are  deaf; and those who are not  deaf, are
troubled with difficulty of hearing and ringing in the ears.  It is
from the disorder of this organ, and which is referable to-the ori-
ginal  diseased  action of the functions of the brain, that  manv
maniacs derive  the delusion  under  which they  labour.   The
commission which they suppose themselves to receive from some
superior being, is  given by the ear—they imagine it constantly
repeated.  They are thus, they imagine, urged to its performance,
and in too many cases, murder or self-destruction is the unhappy
result.   " In consequence of some affection of the ear, the insane
sometimes  insist that malicious agents contrive to blow streams
of infected  air into this organ.  Others have conceived, by means
of what they term hearkening wires and whizz pipes, that various
obscenities and  blasphemies are forced into their minds;  and  it
is not unusual for those who  are  in a desponding condition, to
assert that  they distinctly hear the devil  tempting them to self-
destruction."*
  The eye  is also diseased.  Indeed, as  Esquirol remarks, it  is
as much so  as any other sense, since it is the principal  organ of
communication  with external  objects.  It is a common circum-
stance to mistake various substances or persons.   Their appear-
ance to  the  maniac is various—sometimes fiery and  bright, and
in these  instances, the eye itself is sparkling and protruded.  To
the  changes thus produced  in this organ may be ascribed  the
passion  that some have  for collecting sparkling objects, as peb-
bles, glass,  &c.
  Relief has sometimes  been experienced by the temporary use
of a bandage over the eyes.   The unnatural excitement is thus
mitigated.f
causes, and one a disordered state of the brain, and acknowledges, that the under-
standing and the passions concur in producing them.  See his Essay translated by
Liddel.
  * Haslam on Madness, p. 69.  A curious case is mentioned by our author, (p. 71,)
of a patient, who was a well educated man of middle age.  He always  stopped his
ears closely with wool, and in addition to a flannel night-cap, usually slept with his
head  in a tin sauce-pan.  Being asked  the reason why he so fortified his head, he
replied, " to prevent the intrusion of the sprites."  He was apprehensive that his
head  would become the receptacle of these imaginary formations; that they would
penetrate into the interior of his brain, become acquainted with his hidden thoughts
and  intellectual observations, and then depart and communicate to others the ideas
they had thus derived.   " In this manner," said he, " I have been defrauded of dis-
coveries that would have entitled me to opulence and distinction, and have lived  to
see others reap  honours and emoluments for speculations which were the offspring
of my own brain."                             t Esquirol, p. 22. 
MENTAL  ALIENATION.
553
  On the  other hand, there are  many cases in which  the eye

is sunken  and  dull, and  external objects produce but little im-

pression.

  The  smell does  not escape perversion, though this is by no

means  so  common as with the  other senses.   A lady twenty-

seven  years of age, in the  last stage  of consumption perceived

in her room the odour of charcoal.  She immediately conceived

that there was a design  against  her  life.   She left her lodgings.

but the fumes of charcoal  incessantly pursued her till her death.

  This depraved state often leads to an  abhorrence of food, and

a danger of starvation.
  The derangement of the taste,  however, is the principal  agent

in this, originating most  commonly  in an unsettled  state of the

stomach, and accompanied  with a furred tongue and a parched

mouth.*
  The touch in many instances, loses  its  peculiar  power of cor-

recting the  other senses.   The skin is occasionally hot and dry,

or extremely sensitive, and even  if these conditions  be wanting.

the  sense is so  far perverted, that the insane  frequently deceive

themselves  in  respect to  the size,  form, and weight of things

around them,  and the greater number become  unhandy  in  all

mechanical occupations, music,  writing, &c.f  This, however,

is far from  being universal, as some  speak and write with case,

 and are remarkable  for  striking  expressions, deep  thoughts, and

 ingenious associations.
   Wakefulness is  another  symptom, which sometimes  precedes

 all others, and is coeval with pain or  uneasiness of  the  head, or


  * Sometimes the taste preserves its power, as in the following case, related  by
 Sir Walter Scott, who, with Shakspeare, may be considered as the two master spirits
 in describing the various phases of insanity.  I will only refer to Hamlet and Lear,
 to Madge Wildfire and Clara Mowbray.  " A late medical gentleman, my particular
 friend told me the following case of a lunatic patient confined in the Edinburgh
 Infirmary.   He was so far happy that his  mental alienation was of a gay and plea-
 sant character, giving a kind of joyous explanation to all who came in contact with
 him.  He considered the large house, numerous servants, &c. of the hospital, as al
 matters of state and consequence belonging to his own personal establishment, and
 had no doubt of his own wealth and grandeur.  One thing alone puzzled this man
 of wealth.   Although he was provided with a first-rate cook and proper assistants,
 although his table was regularly supplied  with every delicacy of the season, yet fie
 confessed to my friend that by some uncommon depravity of the palate, every thing
 which  he ate tasted of porridge.   This peculiarity, of course, arose from the poor
 man beinjr fed upon nothing else, and because his stomach was not so easily deceived
 as his other senses." (Note to the Pirate.) Dr. Young relates the same story in an
 early volume of the Quarterly  Review, vol. 2, p. 152.
  t Medico-Chirurgical Review, vol. 1, p.  246.

      VOL.  I.                       47 
554
MENTAL ALIENATION.
of some other diseased organ; and its degree  is determined by
the age, habits, situation, and original vigorous or feeble constitu-
tion of the patient.  From its being always followed in the morn-
ing by the peculiar appearance of the eye already described, it
may sometimes lead to proper suspicion, as well as attention to
the diseased person.  This watchfulness  is attended with an irre-
sistible impulse to rise  early, go abroad,  and ramble about; or if
remaining in the  house, to be incessantly employed in arranging,
and re-arranging  articles of furniture, dress, books or papers; and
by thus  placing,  displacing  and confounding  every thing, their
ideas become more confused, and they soon give rise to actions
of the wild and  outrageous nature which we  have  already  de-
scribed.
   The  memory is early affected  in maniacs.   After a time, it
seems to be almost destroyed.  Some, according to Haslam, lose,
in a wonderful degree, their  former correctness of orthography.
   Pusillanimity is also a remarkable trait in the character of the
insane.  Though occasionally boisterous and fierce, yet they are
readily overcome by  a person of decision.  Their leading cha-
racteristics are  timidity, distrustfulness, suspicion—never con-
tented with their present condition, but always desirous of some
change.  It is this  discontent of mind that detaches them from
their parents  and friends, and causes  them to hate  most, those
whom they previously cherished with the fondest affection. The
exceptions to this are  few, and even if they retain the semblance
of affection, still  they  will bestow no confidence on the objects of
it, nor  pay any  respect  to  their solicitations  or advice.  This
alienation from friends is therefore one of the  most constant  and
pathognomonic traits of the malady.   And  frequently the  first
favourable symptom is a diminution of the constant discontent.*
   The duration of a paroxysm is very various.  It continues for
 days, weeks, months, and even years, and ends in death—a state
 of fatuity—a remission—or  a perfect and durable recovery.  Dr.
 Rush states, that in one  case which came under his notice, the
 disease continued from June, 1810, until April, 1811, with scarcely
 any abatement in the  excitement of the  body and mind, notwith-
 standing the patient  was cqnstantly under the operation of de-
 oleting remedies.  He also  witnessed another instance, in which

         * Medico-Chirurgical Review, vol. 1, p. 247. Knight, p. 14. 
MENTAL ALIENATION.
555
the same remedies were insufficient  to  produce an  interruption
for five minutes, of speech or vociferations, except during, a few
short intervals of sleep, for five  months.*  Others  again have
paroxysms with chronic but moderate derangement  in their in-
tervals;  and  in  these  intervals,  the  recovery is  sometimes  so
great as to indicate insanity on a particular subject only.  But a
reference to this will readily excite a return of general madness.
   If the paroxysm ceases suddenly, we  have reason  to dread the
return of another.   On its  cessation, the patient  seems  waked
from a dream, he is  exhausted, speaks  or moves  but little, and
seeks solitude; and if there is an approach to reason, he states
what he has seen, heard or felt—his motives and his determina-
tions.f
   Monomania. Here  the permanent delirium is confined  to one
object, or to a small number of them.  The sufferers are pursued
day and night by the same ideas and  affections, and they give
themselves up to these  with  profound ardour and devotion.
They often appear reasonable, when conversing on  subjects be-
yond the sphere of their delirium, until some external impression
suddenly rouses the diseased train.
   The character of this form of insanity is very various, and de-
pends on the predominant species of delusion that is  present.  It
is hence divided into  several varieties.   Some are gay and highly
excited—laugh, talk  and sing—fancy themselves  deities, kings,
learned and noble.  Cases of this nature  must be familiar to every
reader.  Fodere  mentions one which is  strikingly illustrative.  A
merchant at Marseilles, aged seventy, and always a decided roy-
alist, had  devoted himself  to  heraldic  researches.  He was  so
overjoyed at the  return of  the Bourbons to France, that  he be-
came insane.  His predominant mania,  was to recite with a loud
voice, the history of the kings of France, and to fatigue his audi-
tors with a tedious  catalogue of chronological facts.  If they
listened with  patience, he  was contented and calm, but if any
impatience was manifested, his fury became ungovernable.J
   Some patients, when suffering under this form, are excessively

  * Rush, p. 162.
  t Parkman.  "The convalescence from insanity,  differs  from convalescence from
common disorders, in  being sometimes suddenly and unexpectedly commenced; but
it is often very feebly and imperfectly declared. Intermissions of sanity and insanity
may be observed for weeks, or for. months." (Conolly on Insanity, p. 26.)
  f Fodere, Traite du Delire, vol. 1, p. 385. 
556
MENTAL ALIENATION.
 irascible, and even  without any apparent cause, are suddenly
 hurried into a violent passion or fury.  It is while labouring un-
 der this, that they become dangerous to themselves or to those
 around them.  They will seize any weapon, and strike and in-
 jure others  or themselves.   Sometimes  consciousness  of their
 situation is so far present, as to allow them to warn individuals
 of their danger, or to intreat them to prevent their  doing injury.
 An internal  sensation is perceived—as a burning heat with  pul-
 sation  within the skull, previous to this excitement.*  This de-
 scription of  lunatics " eat  much, but sometimes  they endure
 hunger  with great  obstinacy; they have frequent  pains  in the
 bowels, and costiveness is common.  The pulse  is full, hard and
 strong, and the skin warmb'f
   Probably this is a form of insanity as  common as  any other.
 It is also said to be less durable, and to end more favourably.
   Melancholy, which is another form of monomania, is a disease
 of mature age, and rarely affects young and athletic persons. It
 is also generally characterized by a peculiar appearance,  and
 particularly by black hair and eyes—by a striking cast of  coun-
 tenance, as the  complexion is either yellow, brown,  or blackish.
 This is to be ascribed to a  sluggishness and torpor  of the cuta-
 neous  system, and in consequence, the  impressions  of cold  and
 heat are  slightly noticed, and sometimes not heeded.  The phy-
 siognomy is wrinkled and languid, yet sometimes the muscles of
 the face become convulsively tense, and the countenance is  full
 of fire.
   The pupils of  the eye are dilated, and that organ has a  pecu-
 liarly dull muddy look, rolling heavily on  surrounding objects, if
 it can  be roused to move at all.  But ordinarily it is fixed with
 an  unmeaning  stare on vacancy.  The adnata is  commonly
 painted with' a dull purplish red, sometimes on  a deep orange-
 coloured  ground, and this especially, when advancing age and
 hepatic affections exist, or intemperance has long preceded the
 attack.   Holding a strong light  near  the eyes, produces a very
transient effect.^
  Pain is said by some recovered patients to have preceded  the

  * Others again refer the pain to the presence of some animal in the brain—the
stomach, or some other organ, and not unfrequently it has its origin in real disease.
An insane woman, who said she had an animal in her stomach,  died at Salpetriere.
Esquirol opened her, and found a cancer of that viscus. (Page 10.)
   Parkman.           { Hill, p. 98. 
MENTAL ALIENATION.
557
attack—sometimes fixed, but more commonly wandering, and
the suffering by this is extreme.  Great apprehension, which in-
deed is a characteristic of this form, ensues, and plunges the suf-
ferer into the most gloomy state of  mind, accompanied by indif-
ference as to his persona] comfort, or urging him forcibly to self-
destruction, or to the murder of others.   The state of revery
and delusive  ideas,  gradually becomes  more fixed,  and  the
thoughts are concentrated on one mournful topic, until finally he
is, as it were, inanimate, motionless and speechless.  A fixed po-
sition of the body is a very common attendant.   In one instance,
that occurred  to  Dr. Rush, the patient sat with  his body bent
forward for three years without moving, except when compelled
by force, or the calls of  nature.  In another, the  sufferer occu-
pied a spot  in a ward, an entry, or in  the hospital yard, where
he appeared more like a statue than a man.   Such was the tor-
por of his nervous system, that a degree of cold so intense as to
produce inflammation and gangrene upon his face and limbs, did
not move him from the stand he had taken in the open air.*
   The pulse is extremely vacillating, and generally is slow and
feeble, yet  with  all this,  has  a labouring feel, not accompanied
with a bold throb, but  as though difficulty attended every exer-
tion.   A sort of ticking movement is sometimes observed, which
 is often intermitting and giving from one hundred to  one hundred
 and thirty strokes in a minute.f
   The skin is dry and  burning, while  the  extremities are cold,
 and bathed in a clammy sweat.J   With these, transient  purple-
 coloured flushings of the face are sometimes an attendant.   The
 tongue is  usually of a brownish  yellow colour, furred, and has
 intensely purple  red  edges.   Constipation is a  very common
 symptom, accompanied with flatus and eructation, and  diarrhoea
 is uncommon, excepting  the disease is about to undergo a salu-
 tary  change.  The urine is pale, thin  and cloudless, unless it be
 morbidly retained, which some do  for several  days.  The thirst
 is usually  great,  and a peculiar odour is perceptible from their
 bodies.

   * Rush, p. 216. Dr. Reid (Essays on nervous affections,) in  his usual figurative
 language says, " Paroxysms of mania are convulsions of the mind ; those of melan-
 cholia its paralysis."
   t Hill, p. 101.
   X Some lunatics complain of a burning or stinging in the skin, when on examina-
 tion it appears healthy.  (Knight, p. 116.)
                               47* 
558                  MENTAL  ALIENATION.
   Watchfulness is also common in this  form of disease, and
sleep when it is present, is often broken  by nocturnal  visions  or
frightful dreams.
   On objects not relating  to the subject or passion which charac-
terizes the delusion, they sometimes  reason and act rightly, and
often with great force  and subtilty.  But this is far from  being
invariable.   The mind cannot be deemed sound, even when exer-
cised on  points disconnected from  the  particular hallucination,
and it is very common  that this absorbs  the whole attention.
   In these instances, even when apparently sane, if the morbid
impression be  once  referred to or  excited, all  is  merged in  it.
And it is  equally astonishing and melancholy, how vivid this re-
mains, through the long  lapse of years.  A young clergyman,
two days previous to the  appointed  period of his  marriage, was
employed in snipe-shooting with a friend.   Accidentally he re-
ceived part of the charge  of a gun in his forehead.  He instantly
fell, and did  not recover for some days, so as  to  be deemed out
of danger ;  but at the  end of  this period it was  perceived that
he was  deranged.  The interesting event that was to have taken
place, became  the leading  object of thought, and all his ideas
seemed to stop at this.  " All his conversation  was literally con-
fined to the business  of  the wedding; out of this circle he never
deviated,  but dwelt upon  every thing relating to it with minute-
ness ; never  retreating  or advancing one step farther for half a
century, being  ideally still a young,  active, expecting and happy
bridegroom, chiding the tardiness of time, although it brought him
at the age of eighty gently to the grave."*
   There are very few melancholies  whose  delirium is not exas-
perated every two days ; many  have  a strongly marked remission
in the evening and  after meals; others are exasperated at the
beginning of the  day or at evening.f  Haslam  also observes,
that the symptoms aire  aggravated by being placed in a recum-
bent posture.   And patients, when in  the  raving state, seem, of
themselves, to avoid  the horizontal position as  much as possible,
and when so confined that they cannot be  erect, will keep them-
selves seated upon the  breech.  This remark  applies equally to
mania and monomania.
  I may also in this place add  a general remark with respect to
the age most liable  to  insanity.   This is often  useful in the for-
     * Hill, p.  421.          f Parkman, Haslam on Madness, p. 80. 
                      MENTAL ALIENATION.                   559

mation  of opinion.  Infancy seems to be nearly exempted  from
its attacks, unless  there be some congenital malconformation, or
unless idiotism be  induced by convulsions, epilepsy, or some  other
previous and severe disease.  The disease, however, often occurs
to very young persons, and  it is about the age of puberty, that
its causes begin to  operate most powerfully  on youth.  It is at
this period characterized by its rapid progress and  height of ex-
citement ; in adult age it is more chronic*
   The state  of mind in this  and the previous form of insanity is
strikingly peculiar.  I have  met somewhere,  but am not able to
refer to the  author, with  a proposed division  of the  disease into
abstraction and vivid imagination, and they would certainly seem
to embrace the most striking mental features.  The last creates
new ideas and mistakes recollections  for real  existences.   " The
power of reasoning or judgment," (says Dr. Prichard,) " does
not appear to be so much impaired in madness, as the disposition
to exercise it on certain  subjects.   Often there is a  manifest un-
willingness  to  admit any evidence  unfavourable  to  the  false
notions impressed upon  the mind.   In many instances, it would
appear that  the characteristic feature of the  disease, is a morbid
inclination to indulge in  revery, and  to yield the judgment and
all the faculties to its control.  The impressions  of revery are
so modified  by disease as no  longer  to be distinguishable  from
those of  memory  or active reflection."
   Some monomaniacs indeed reason accurately but their premi-
ses or facts  are baseless, as when a wealthy  man  imagines him-
self in danger of  dying  in a workhouse, and lives  and acts as  a
miser.   Others again,  act on  accurate premises,  but take too
"rapid a view" of them, as in the case of the clergyman quoted
by Dr. Abercrombie, who burnt his library, because it consisted
altqgether of controversial divinity.f

   * Medico-Chirurgical Review, vol. 1, p. 251.
  t I am  unwilling to multiply the divisions of insanity, but there rs one variety,
particularly noticed by Dr. Prichard, which may be deemed the intermediate one
between mania and dementia, as described in the text, and therefore deserves a brief
notice. He styles it incoherent madness, and its most striking characteristic,  accord-
ing to our author, is  the rapidity and disorder with which the ideas follow each
other, almost without any discoverable connexion or association, in a state of com-
plete incoherence and confusion. The understanding of the patient is wholly lost in
ihe constant hurry of ideas that crowd upon him, while his habits show equally rest-
less activity and extravagance.
   In many cases no hallucination or erroneous impression on  the mind  can be
(raced. The thoughts seem to be single and insulated, and words and sentences are
half pronounced.  It is  impossible to fix the attention of the patient, and he is almost 
560                   MENTAL ALIENATION.

  Dementia. This is often the consequence of mania or melan-
choly, and is somewhat allied to that decrepitude of mind, which
frequently appears in old  age.  It  may also  originate from ex-
ternal injury or internal disease.
  The understanding and memory are either totally,  or to a
very  great extent, impaired in this form of disease; yet on a few
points the latter seems sometimes to be in a perfect state. " Habit,
however, has a great influence on their conduct, and gives it an
appearance of regularity,  which should not be mistaken for rea-
soning."*  They hate, love, or fear particular individuals uni-
formly, and kindness or attention will seldom, if ever, give them
confidence in those they dislike.
  Patients of this description are usually calm and quiet, though
occasionally short periods of fury supervene.   They sleep much,
enjoy a  good appetite, and are apt, if neglected,  to become
slovenly and dirty  in their appearance.   Esquirol  mentions a
case, which will give a general idea of this class  in its usual
form. The  patient was a female, aged seventy, who, after hav-
ing passed several years in a state  of furious mania, at last fell
into dementia.  " The hallucination of this individual corresponds
with  her advanced age, and the long duration of the complaint.
She  preserves  a few  ideas, which  still savour of  pride.  She
believes  herself the daughter of Louis XVI. but otherwise there
is no coherence; no  memory of recent  transactions; no  hopes
or fears, desires or aversions.   She is calm, peaceable; sleeps
well, eats with  voracity, and appears perfectly happy."f
  The ideas, although few and isolated, sometimes pass in rapid
or alternate  succession; and this gives rise to incessant babbling,
unwearied declamation, and continual activity, without object or
design.  Occasionally  they assume a menacing air, without any
real anger, and this is  soon succeeded by immoderate laughter.J
  The appearance is generally peculiar; the  countenance is
pale,  the eyes are dull  and moist, the pupils dilated, and the look
is motionless and without expression.   There is a variety as to

insensible to external objects.  In favourable cases this incoherency gradually sub-
sides and the patient is in a promising state for recovery, if he becomes capable of
sleeping.  The resemblance of this to some of the symptoms of mania, will occur to
the reader, but it is evident that it occasionally constitutes an idiopathic species of
insanity.  It may end, like mania or monomania, in dementia.
  *Parkman.                 f Medico-Chirurgical Review, vol. 1, p. 270,
  i Fodere, Traite du Delire, vol. 1, p. 413, 
MENTAL ALIENATION.
561
emaciation or fatness; some are extremely thin, while others are
corpulent.*
  Idiotism. Individuals labouring  under congenital idiotism, are
marked  by some striking characters.  At its commencement it
is indicated both by feebleness of body and feebleness of mind.
In some countries this melancholy disease is not uncommon, and
it has been particularly remarked in the Valais in Switzerland.
and in Carinthia.   In  the former  country,  the  subjects  of it
are styled Cretins.   But wherever found,  whether in individual
instances, or  originating in some national cause, the  appearance
may generally be described as follows:
  The skull is usually smaller and inferior  in height to the skull
of maniacs, and there is a great disproportion between the face
and head, the former being much  larger than the latter.  The
countenance is vacant and destitute  of meaning, the  complexion
sickly, the stature usually diminutive, the lips  and eyelids coarse
and prominent, the  skin wrinkled and pendulous, and  the muscles
loose and flabby.  To these, are usually added a complication of
other diseases.  The subjects are ricketty, scrofulous or epileptic;
the eyes are squinting or convulsive, and the hearing  is imperfect
or  totally destroyed.  Dr. Reeve visited  the  Valais, and saw
several of these unhappy beings.  One lad twelve years old,  could
speak  a few words, but was silly, and of a weak and feeble habit.
Another boy, nine years old, was deaf, dumb and idiotic.  Neither
of these, however, had goitres.  A third, a girl, twelve years old,
was deaf, dumb, and  cross-eyed,  and  had a monstrous goitre;
while a fourth had  an enlarged abdomen, and some feeble traces
of understanding^
  While some are dumb,  others express themselves  in inarticu-
late sounds, cries, or a prolonged roar.   A few are able to utter

  * It is proper to state that many other subdivisions have been made of that condi-
tion of mind which is characterized by weakness, and of which idiopathic dementia
and idiotism are the most striking examples.   Thus, Hoffbauer, a  legal writer of
celebrity in his own country (Germany,) makes two modifications of this state, im-
becility and stupidity; the one defective in the powers of reason and discrimination,
the other obtuse in perception and apprehension.  He  again subdivides imbecility
into five degrees, the last being identical, as far as I can judge, with idiocy ;  and
stupidity into three degrees.  It is doubtful whether the practical benefit to be de-
rived from this minuteness, will ever compensate for the endless discussions that
might arise on its introduction into our laws, and  this is the object of Hoffbauer.
I refer to his work, and to Dr. Prichard, Art. Soundness and Unsoundness of Mind,
in the Cyclopedia of Practical Medicine, vol. 4, p. 39.
  t Edinburgh Medical and Surgical Journal, vol. 5, p. 32. See, also, Edinburgh Ke-
view, vol. 2, p. 170.  American edition. 
562
MENTAL ALIENATION.
a word or two distinctly, as with the idiot mentioned by Esquirol.
This was a female, aged twenty-one years, who had been in the
Salpetriere three years without any change.  Her head was large
and irregularly shaped, and the forehead high and prominent, so
that the facial angle was more than ninety degrees.   She eat vo-
raciously, and  without discrimination; passed all evacuations in-
voluntarily, but the menses  were  regular and  abundant.  She
walked little, and all her movements were convulsive.   She was
a perfectly helpless infant—insensible to heat, cold, rain, or even
her own internal feelings.  She could only utter the words " papa
and mamma''' which she frequently repeated.*
   Dr. Rush  relates the  case of a boy born near Philadelphia,
which is  no  less striking.   He was twenty years old when that
distinguished physician published  his work, and was then unable
to walk or speak.   He had then the head of a man, but all the
parts below  it  resembled those of a child two or three years old.
His pulse was  from ninety to one hundred and twenty in a minute.
He had shed his teeth,  and now exhibited a third set in three distinct
rows in his upper jaw; and yet with all this, he was unable to chew
his food,  and all that  he took  of a solid nature was first chewed
for him by his sister.   His ears were very large.   When hungry
or in pain, he cried, but more commonly laughed for hours,  and
even for whole nights together,  and so  loud as  to  disturb the
sleep  of  his family.   He discovers mind, says Dr Rush,  in but
three  things, viz. in an affection for his mother and sister,  and in
love for a dog, and for money.   Distress is manifest when the dog
 is out of his place; and the pleasure which money gives him, is
owing to the association he has been enabled to form  between it
 and the means of procuring gingerbread,  of which he  is fond.-j-
   I must not, however, be understood as stating  that  all who
 belong to the class of idiots are distinguished by equally striking
 marks.  There is a variety in this, as in other diseases.  Some
 approach to the description of dementia, or what is commonly

   k Medico-Chirurgical Review, vol. 1, p. 250.
   t Rush, p. 292.   I will only refer to another case, and it is that mentioned by Mr.
 Hobhouse, which was seen by him at the Hospital in Smyrna, in,1810.  The indivi-
 dual was a female, about three feet and a half in height.  She constantly sat, rolled
 up, as it were, upon a truss of straw; was quite dumb, nearly deaf, and possessed of
 no one consciousness of humanity.  She would hop  towards  her keeper, on being
 loudly called by a name with which she was familiar. Her profile is given by Mr.
 Hobhouse, and it is strikingly characteristic of idiotism. (Travels in Albania, vol. 2,
 p. 626, London edition.) 
MENTAL ALIENATION.
563
called imbecility; others appear capable of cultivating the memory
and attention.   Though in general harmless and timid, yet there
are occasionally exceptions.*
  There remains to be considered another and disputed form of
mental disease, which, in conformity to the nomenclature of many
experienced observers, I have denominated moral insanity.
  It has professedly been adopted, because  physicians  have not
been able  to  detect any delusion or hallucination in the persons
affected.   The intellectual faculties appear to  have sustained but
little injury, but the feelings and  affections are perverted and de-
praved, and the power of self-government  is  lost or greatly im-
paired.f  Thus, Spurzheim defines insanity to be either a morbid
condition of any intellectual  faculty, without the  person  being
aware of this ;  or the existence of some of the natural propensities
in such violence, that it is impossible not to yield to them.  Dr. El-
liotson, while approving of this,  suggests that  there should be in-
cluded in  the definition, the idea of such irresistible violence as
leads to criminal acts.\  Pinel was so struck with the peculiarity
of  this form, that he  introduced it  as  a distinct species  in  his
work, under the title of " madness without  delirium or hallucina-
 tion."
   Esquirol, indeed, goes so far as to assert, that this is the proper
 characteristic of mental derangement.   " There are madmen, (he
 observes,)  in whom it  is difficult to discover any trace of halluci-
 nation ; but there are  none in whom the passions, and  moral af-
 fections are not disordered, perverted  or destroyed.   I have, in
 this particular, met with no exception."
   Concurring  in these opinions from actual  observation, Dr.
 Prichard, in  a late essay on this  subject,  has proposed the follow-
 ing definition.
   " Moral insanity or madness consists in a morbid perversion of
 the natural feelings, affections,  inclinations,  temper,  habits and
 moral dispositions, without any  notable lesion of the intellect, or
 knowing  and  reasoning faculties, and  particularly without any
 maniacal hallucination."§
    According to  our  author, individuals of this description  are

   * As in the instance of the idiot in Cornwall, who strangled and afterwards burnt
 the body of an old woman who had for some years superintended his person. (Paris
 and Fonblanque, vol. 1, p. 311.)
   | Prichard, art. Insanity, in Cyclopaedia of Practical Medicine.
   t London Medical Gazette, vol. 8, p. 168.        § Prichard ut antea. 
564
MENTAL alienation.
often, before the idea of their  insanity occurs, reputed to be of
singular,  wayward and  eccentric  character.*   They commit
many equivocal actions, their temper and disposition are  found
to have  undergone a change, probably in consequence of some
misfortune or loss—or from some shock to the constitution.  The
alteration is gradual, but sufficient to excite the apprehension and
solicitude of friends ; and though  these may be unwilling to re-
cognise  the  actual disease, yet they  must notice caprice and
fickleness in  pursuits, united with a total perversion of affections.
Enmity against their dearest friends, is a frequent trait in such
individuals.
  " Persons labouring under this disorder, are capable of reason-
ing or supporting an argument on any subject within their sphere
of knowledge, that may be presented to them; and they often
display great ingenuity in giving reasons for their eccentric con-
duct, and in  accounting for and justifying the state of moral feel-
ing  under which  they appear  to  exist."   They think  and act,
however, under the influence of strongly excited feelings.
  It is under this division of insanity, that the commission of acts
of violence very frequently occurs.   The French writers insist
much on a faulty education as a principal cause, and there is no
doubt, that they have  given in this the  key to most of the histo-
ries with which legal  and  medical works are lately filled.  The
temper is scarcely attempted to be restrained, nay its very trans-
ports are encouraged and justified, and it is hence not surprising,
that as age advances, liberty of  action should be converted into
licentiousness,   France has tried  the  experiment.   Other coun-
tries are  rapidly feeling its early results.
  Pinel relates the case of  a self-willed, violent boy, encouraged
by his mother in every caprice and passion.  The slightest oppo-
sition produced actual violence.  Any animal  that offended him,
was put to death.  As he  grew up, he was  constantly engaged
in broils, and ended his career by murdering a person who used
offensive language to him.  On  his trial, this  course of conduct
was adduced as proof of his insanity', and he was condemned to
perpetual confinement in the Bicetre.
  The results of this  species are  various.   In many, it displays
  * " The  errors of the eccentric (says  Dr. Gooch) are the results of long habits
continued for a great part of their lives, and fabricated by slow and almost insensi-
ble degrees ; while the errors of the insane spring up suddenly within a few months
or even weeks."  (Quarterly Review, vol. 41, p. 173.) 
MENTAL ALIENATION.
565
itself  in an irresistible propensity to commit murder, (homicidal
mania;)  in others, to commit theft, while some are impelled to
set fire to buildings, often of the most venerable description.  We
are told, that when this state is connected with the false belief of
some  personal injury actually sustained, " it does not come under
the head of moral insanity."  Here is an hallucination.  " But if
the morbid phenomena include  merely the expressions of intense
malevolence, excited without ground  and provocation, actual or
supposed, the case is strictly one of moral insanity."
   Though there are many, as above described, who  have this
propensity to commit each and every kind of mischief, yet there
are some where the disease commences and ends in intense iras-
cibility.*  A large proportion are subject to melancholy and  de-
jection  of mind, unaccompanied,  however, by any illusion.   It
would appear to be confined to no age—and indeed is said occa-
sionally to make  its appearance in those  advanced  in  years.
Their whole moral character is changed—" the pious," says Dr.
Burrows, " become impious;  the  liberal, penurious;  the sober,
drunken."
   In  this description, which, as already stated, is taken from the
writings of the  most esteemed modern authors on insanity, I need
 hardly suggest to  the reader the striking resemblance that it bears
 to crime.  Owing to this, our legal tribunals can hardly be con-
 sidered  as giving an assent to its actual existence.  The differ-
 ence of opinion which exists, with examples of cases  that have
 been discussed, will, however, be  more  properly  considered in
 the section on the legal definition of a state of mental alienation, f
   Besides the forms of insanity now described, there are others
 mentioned  by systematic writers;  as demonomania, which is  a
 variety of melancholy, originating from  mistaken ideas  on reli-
 gious subjects; and nymphomania, or furor  uterinus, a  raving
 mania  of females, connected with a disorder  of  the  generative
 organs.  Other mitigated affections will be noticed hereafter.
   A  short enumeration of the causes of insanity may be intro-
 duced in this place.   They are usually divided into physical and
   * " Some complain—lie—quarrel.  You cannot find a single  idea  truly foolish ;
 the delirium is in their actions and moral sentiments.  The judgment only becomes
 perverted, when the disease is at its height."  (Leuret, Annales D'Hygiene, v. 1, p.
 284.)
   t It is proper to add, that all the medical observers above quoted, concede that the
 other forms may be, and often are, superadded after a time, to the state of moral in-
 sanity.
   VOL.  I.                     48 
566                   MENTAL ALIENATION.
moral, or bodily and mental; but a separation of  this nature is
not conducive to just views of the disease.   Insanity is essentially
a bodily disease, and the moral causes operate in producing it.
as they do in producing other complaints.
  We may enumerate the following as remote causes: repeated
intoxication, abstinence, injuries to the head, fever, suppressed
discharges and secretions, excessive evacuations, mercury largely
and  injudiciously^  administered, paralytic affections, influence of
particular  seasons,  hereditary predisposition, sedentary habits.
excess in pleasure, factitious passions, mistaken views of religion,
parturition, errors in education, intense application to a particular
study or object of investigation, misfortunes, the excitement of
political changes,  and particularly  a state of war.
  On age, a remark  has already been made ;  and it may be added
as to sex, that  upon a comprehensive  comparison,  there is found
to be no other disproportion among the insane, than among the
sane population in general.*
  It should be remembered, that the insanity of females is always
aggravated at the period of menstruation, particularly^ when it is
in a morbid state.f

             II. Of feigned and concealed insanity.
  The medical witness is often required to  decide  on the actual
existence of insanity, and it therefore behooves him to be well ac-
quainted with its  actual symptoms.  It is in this point of  view,
that the enumeration given in the previous section becomes valu-
able.  It will also materially aid in detecting feigned or concealed
insanity^.
  There is no disease,  says Zacchias, more easily feigned, or
more difficult  of  detection, than  the one  under  consideration.
And hence,  he remarks, many great men  of ancient times, in
order to elude the danger that impended over them, have pre-
tended  it;  as  Ulysses,  Solon, and Brutus, the  expeller of the
Tarquins.
  In our day, however, madness is most commonly feigned  for
the purpose  of escaping the punishment due to crime, and the
responsibility of the medical examiner is consequently great.   It
is his duty, and should  be  his privilege, to spend several days in
  * Haslam on Madness,  p. 208, 210. Medico-Chirurgical Review, vol. 1, p. 251.
  t Marc, in Godman's Western Reporter, vol. 2, p. 68.  Esquirol. 
MENTAL ALIENATION.                 567
 the examination of a  lunatic, before he pronounces a  decided
 opinion.  If this be allowed to him, and also if he be enabled to
 obtain a complete history of the  antecedent circumstances, much
 may be effected towards forming a  correct opinion.   The fol-
 lowing remarks  may serve as points  on which the inquiry is to
 be grounded, and the comparison instituted.
   1. Insanity is  seldom sudden  in its attacks.  The aberrations
 from reason  are at first slight and  almost imperceptible, but
 gradually acquire more marked characteristics.   With the feign-
 ed, on the  other  hand, they are sudden, abrupt and violent.
   2. It requires  powers  beyond the  scope of  ordinary exertion
 to counterfeit the character of an active paroxysm to its full ex-
 tent.   The deception is not maintained when the pretenders are
 alone and  un watched—the assumed malady then disappears, and
 the imposture is recommenced when they are in  the society of
 others.*
   3. A certain cast of countenance, and gestures accompanying
 it, are so peculiar in the insane, that a medical examiner familiar-
 ized to them, will generally be able to designate the state that is
 present.  Pretenders often outstrip madness itself, and seem de-
 sirous  to exhibit themselves  in  its most violent  and disgusting
 forms.   They overdo  their part.   " They  seek  to exhibit the
 total abolition of the rational faculty, instead of its partial per-
 version."
   4. Real  lunatics, at  the period  of remission, are desirous of
 being deemed free from  the  malady, and often assiduously en-
 deavour to conceal from observation  those lapses of thought,
 memory and expression, which are tending to betray them.  Al-
 exander Cruden, when suffering under his last attack of mental
 aberration, upon  being  asked whether he ever was mad, replied,
 " I am as mad now as  I was formerly, and as mad then as I am
 now, that is to say, not mad at  any time."f   The feigned  never
 desire to conceal their  condition.
   5. Pretenders  are unable to prevent sleep.  That watchfulness
 which is so constant an attendant on the insane, is scarcely to be

  * Haslam's Medical Jurisprudence of Insanity, p. 322.
  t Hill, p. 392.   It may be new to some  of my readers that this was the author of
 the " Concordance of the Bible," and that he became insane in  consequence of the
 death of Queen Charlotte, to whom he had dedicated it, and on which he had found-
ed high hopes. See an account of him in  the Library of Entertaining Knowledge,
vol. 3, p. 186, 
568
MENTAL ALIENATION.
preserved for any length of time by those who are  in  actual
health.   " In the case of a seaman, who enacted under our own
eye  the  part of a furious maniac, in  hopes of escaping punish-
ment, sound  sleep overpowered him  on the second night  of the
attempt."*
  6. The physician should endeavour  to  obtain from the indi-
vidual a history of himself.   This requires attention and time,
but the prosecution of the inquiry may lead to the developement
of some probable motives for his  present  conduct.f  Unless
highly irritated, or suspicious of his medical attendant, some op-
portunity will  occur  in  which the  real state  of mind will  be
shown.   If there be delusive ideas prevailing, a glimpse of them
nlay be  caught, and by prudent management, the lunatic thus
often makes him a confidant.   Not only should the physician fre-
quently converse  with the patient, but also endeavour to have
him  write.   In  many instances the style, or the  manner of pen-
manship will detect.J
  7. Mr. Hill also recommends attention to the  presence or ab-
sence of the peculiar animal odour that is observed in maniacs.
And " the best mode  of  making the  discovery of it, is to enter
the bed-room of the subject on his  first awaking, after  having
slept in a small, ill-ventilated room, in sheets  and body linen oc-
cupied by him for some time, the curtains now to  be opened by
the  inspector.   On inhaling the  effluvia  under these circum-
stances,  it is scarcely possible to be mistaken."^
  8. Dr. Rush proposes  a rule, grounded on the following cir-
cumstance :  the pulse, according to his observation, is  more fre-
quent in all the grades of madness than in health.   I have already
intimated doubts on this point, and therefore can only recommend
it as a test worthy of notice, but not of great value.   He men-
tions the following case in which it was applied, and  which de-
serves quotation.   Two men were condemned to die in 1794, for
treason, committed against the general government in the western
counties of Pennsylvania.  One  of these  was said to have be-

  * Cyclopaedia of Practical Medicine, art. Feigned Diseases, vol. 2, p. 146. When
soldiers or sailors are suspected of feigning, they should be confined  alone, and so
that they can be overlooked when not suspecting it.  (Marshall, p. 144.)
  t Hill, p. 396.               I Conolly, p. 467.
  § Dr. Knight recognizes the correctness of this, and says Boerhaave and Van
Swieten have each noticed it, p. 121.  Esquirol also mentions it.  Burrows says,
(p. 297) " If I detected it in any person, I should not hesitate to pronounce him in-
sane, even though I had no other proof  of it." 
MENTAL ALIENATION.
569
come insane after sentence of death  was pronounced on him.
A physician was consulted upon his case, who declared the mad-
ness to be feigned.  General  Washington, the  president of the
United  States, directed a consultation of physicians, and Drs.
Shippen, Rush and Samuel P. Griffits were  appointed for that
purpose.  The man spoke coherently upon several subjects, and
for a while, the state of his mind appeared doubtful.  Dr. Rush
suggested the  propriety of examining his pulse.   It was more
frequent by twenty strokes in a minute, than  in  the healthy state
of the body and  mind.  Dr. Shippen  ascribed  this to fear, but
when  the  pulse  of  his  companion  was  examined,  although
equally exposed  to capital punishment, it was found  perfectly-
natural, both in frequency and in force.  This discovery induced
the physicians to unite in  a certificate, that the individual was
really mad.   He was respited, and subsequently pardoned.*
   9. The administration of a strong  solution of tartar emetic,
unknown to the suspected person, has been advised.   Where a
common dose  takes a full and powerful effect, deception may be
suspected, as it is stated that this never follows its administration
in any stage of  approaching or actual insanity, and more  es-
pecially in the maniacal form, which  is commonly attempted to
be personated.f
   10.  It is very difficult uniformly to  assume that extreme and
sudden irritation, which, in real  maniacs, instantly arises from
any contradiction of their opinion or wishes.J
   11.  Dr. Willis has  suggested the following  as  proofs of  re-
covery : " If a patient, after  being perpetually restless,  can sit
quiet in his chair for half an hour, we may  judge favourably of
him, though his  delusions be as strong as before.  When he re-
mains  composed for whole days  together, we may look for a
return of reason."
   He further adds, that in his opinion, no one can be considered
cured,  or in other words, of sane  mind, " until he freely and  vo-
luntarily confesses his delusions."  I confess that I doubt this, and
at all events agree with the critic, who observes that it can only
apply to monomania, as in the other species  the insane may be
   * Rush's Introductory Lectures.  Lecture xvi., p. 369.
   t Hill  p  306   " Some melancholies, as well as maniacs, arc very insensible to
the action of  drastic purgatives."  (Marc, Godman's Western Reporter, vol. 2,
p, 67.)  See also Male, p. 257.      X Fodere, Traite du Dehre, vol. 2, p. 500.
                              37* 
570
MENTAL ALIENATION.
perfectly ignorant of what he has been doing.*   " I do not think
it quite fair to expect this, (says Sir Henry Halford.)   Something
must be  conceded to the pride of human nature."t
  But it  must also be remembered that the insane may  conceal
their delusions, and they frequently do this with great  cunning.
Hence it requires particular attention on this  point, and it should
also be ascertained whether they sleep habitually well.
   12. The attempt to feign melancholy is  more  difficult,  accord-
ing to Dr.  Haslam, than to pretend mania.  " They are deficient
in the presiding  principle, the  ruling delusion, the unfounded
aversions and causeless attachments which characterise insanity ;
they are unable to mimic the solemn dignity of characteristic
madness, nor recur to  those  associations which mark this  dis-
order ;   and  they  will  want  the peculiarity of look which so
strongly impresses an experienced observer."!
   13. In cases of doubtful  idiocy, the fact should  be  noticed
whether they are pusillanimous  and submissive.  This is a pre-
cept of Zacchias; but it must also be remembered, that  impetu-
ous excesses sometimes occur in individuals of this description.
Their memory and conception should also be put to the  test.§
   14.  However skilful may be the attempt to counterfeit demen-
tia, and it is the most easily  assumed of all the  forms, yet there
is always  in the pretender a kind of hesitation and reflection to
be observed in his discourse.  His wild ideas do not succeed each
other with the  same rapidity as  those of  a person whose under-
standing has been really destroyed.  Marc proposes, as another
test, to repeat  to the  insane person  a series of ideas  recently
uttered.   The  pretended madman, instead of wandering incohe-
rently, would judge it most expedient to  repeat the same words
for the purpose of proving his madness. ||
    15. There are many instances, where,  without any precise in-
tention of concealment, the existence or non-existence of insanity-
requires to be ascertained.  This is  particularly  the case  as to the
disposition of property; and hence the sanity of a testator  is  so
   * Medico-Chirurgical Review, vol. 6, p 371.
   t Halford  Essays, p. 141.  Probably, as a general rule, the insane do not recollect
 occurrences  passing during their illness.  The whole  is as a dream to them.  There
 are, however, numerous exceptions to this.  Esquirol as well as other observers,
 have witnessed instances, in which convalescents were able to recollect every thing
 that had happened. Annales D'Hygiene, vol. 16, p. 172.
   t Haslam's Medical Jurisprudence of Insanity, p. 323.
   § Marc, Godman's Western Reporter, vol. 2, p. 66.     || Marc, ut antea, p. 68. 
MENTAL ALIENATION.
571
often the subject of dispute in our courts of justice.  If the physi-
cian has free access to the patient, all the directions already given
should be followed, so far as they are applicable.
  Sir Henry Halford, in a recent  case, made a practical appli-
cation of the test of Shakspeare, as given in the following speech
of Hamlet:
                              Ecstacy!
      My pulse as yours doth temperately keep time,
      And makes as healthful music.  It is not madness
      That I have uttered; bring me to the test,
      And I the matter will reword, which madness would gambol from.

   A gentleman sent for a solicitor, and gave  him instructions for
 his will; and among other things, told  the solicitor that he would
 make him his heir.   He soon  after  became  deranged, and was
 attended by  Sir Henry Halford and Sir George Tuthill.   After a
 month's violence, he was composed and comfortable, but extremely
 weak, and manifested great anxiety to make his will.  This re-
 quest was evaded  as long  as  possible, but at  last consented to.
 The  solicitor received the same instructions,  drew it, and it was
 signed by the physicians as  witnesses.   They inquired, at the
 time of executing it, whether  such were his intentions;  and to
 each and every question, he answered affirmatively.  On going
 down stairs, and conversing on the delicacy  of their situation, it
 occurred to Sir Henry Halford to  apply the above test.   They
 returned to his  room, and asked  him as to the disposition of his
 property.  With respect to the legacies, he answered correctly;
 but when inquired of, to whom his real estate was to go, he an-
 swered " to  the heir  at law, to be  sure."*
    16. It may sometimes be proper, if suspicion exist, to speak of
 some severe remedy, or to threaten some punishment. The really
 insane do not heed these, being occupied with the phantasms of
 the imagination, and they are hence insensible to the operation
 of hope  or  fear; the feigned, on the  other hand, will often dis-
 cover, by words or  actions, the  emotion which  the threat pro-
 duces.  Zacchias relates, that in  his  day, an able physician or-
 dered, in  the hearing of a suspected person, that he should be
 severely whipped.   This was directed on the following grounds:
 If the patient be really insane, the whipping  will produce an irri-
* Halford's Essays, p. 47. 
572
MENTAL  ALIENATION.
tation on the external parts, and may tend to alleviate or remove
the disease; if not, he cannot stand so severe a test.   The event
proved the success of this mode of reasoning, as the threat alone
sufficed to  cure  the pretended malady.*
   On the same principle, the following case was detected by Fo-
dere.   A  female, named Susannah Cloitre,  was, in 1789, impri-
soned, on  the charge of having, in company with others, com-
mitted several highway robberies.   Before this  time, she had re-
peatedly, through  her  ingenuity in  feigning  insanity, escaped
punishment from several tribunals in Savoy and Geneva.  Fodere
was ordered to  examine her; and on his first visit, she counter-
feited the maniacal fit in so able a manner, as almost to lead him
to certify  that she was  insane.   Recollecting,  however,  at the
moment of departure, the case related by Zacchias, he returned
to the door of the  prison, and said in a firm tone of voice, the
following words : " To-morrow I shall again visit her, and if she
continue to howl, if she be not dressed, and  her chamber not put
in order, you must  apply a red-hot iron between her shoulders."
The next day  the chamber was found washed, the prisoners had
slept quietly during the night, and the patient was dressed.  Fo-
dere continued his  visits for some days, when  he certified that
she was not affected  in her mind.f
   17.  Marc advises  us to notice whether the returns of the dis-
ease are regular or irregular.  Dementia is rarely periodical in
its excitements; melancholy is more  commonly so;  mania with
delirium, almost  constantly;  and mania without delirium, always.
The approach of storms always excites maniacs, and females are
most violent as menstruation is approaching.J

  * Threaten, but do not apply any extra-professional infliction.  Speak of sending
to an  insane hospital—of confining them to a diet of bread and water, Sic. and let
them  be secluded from their companions.  These directions are particularly applica-
ble to feigned insanity among soldiers and  sailors.  Occasionally the physician, in
spite of every precaution, proves to have been mistaken, and he may cause the inno-
cent much suffering. (Cyclopaedia of Practical Medicine, vol. 2, p. 147.)
  t Fodere, Medicine Legale, vol. 2, p. 461.
  i Dictionnaire des  Sciences Medicales, Art. Aliene".
  " The best mode that has yet been discovered, for forcing a  man who feigns mad.
ness, to confess and desist, is by the use of the whirling chair;  that is, a chair placed
upon  a spindle, which revolves  upon its own axis, and  is turned by a wheel and
crank, with the rapidity of the fly of a jack.  It produces nausea, even to syncope;
and after two minutes of such discipline, few men can command spirits sufficient to
act any part.  It was by this means that M'Dougal of Glasgow  was rendered sane,
when he feigned madness to avoid being tried for sinking ships to defraud the under-
writers; but he betrayed himself to the medical men by the common fault of impos- 
MENTAL ALIENATION.
573
  In elucidation of the subject of doubtful insanity, Marc relates
three cases, which I shall briefly analyze.
  A man named Doux, was committed to prison for attempting
the murder of his wife.  Drs. Marc and Rostan were desired to
visit him.  His companions in confinement  stated that they had
not witnessed any  thing inconsistent with sanity, and that he tes-
tified regret for his conduct.   Doux's own account was, that his
wife had proved faithless, and that he was constantly ^witnessing
her attachment to her paramour ; a violent quarrel finally ensued,
when he beat her,  and left her apparently dead.
   These facts appearing probable, and presenting nothing like
insanity, they repeated their examination three  days after.   He
made a similar  statement, and on being asked as to his health,
said he was well.   On examining witnesses, however, the  wife
and neighbours knew nothing of  the paramour, nor of other cir-
cumstances of which he had spoken.  In this state of facts, Marc
put the following questions:  Are the statements false ?  Then his
memory must be extraordinary, to repeat these circumstances so
frequently, without any alteration.  Has he lied to feign insanity?
Why then does he say that he is well 1 Are these stories the effect
of an illusion ?  Yes. He was melancholic;  had violent quarrels
with his wife;   became very intemperate during the last year;
fell at one time  from his horse on his head, and has had constant
pain there since.  The physicians hence gave it as their opinion
 that this was a case of monomania, in which the predominant
 idea was jealousy.
   Two months after, he was again visited, and found much alter-
 ed.  The conjunctiva was injected, the tongue red, the pulse slow,
 and his answers to questions slow and incoherent.  He knew no-
 thing of the paramour, on whose conduct  he had previously di-
 lated so much; and on  being desired  to shake hands firmty, he
 was unable to exercise the least constriction.  It was also ascer-
 tained  that  he  frequently had involuntary  discharges of urine.
 The case was thus evidently verging to dementia, combined with
 palsy.
    Another instance is derived from the narrative  of Professor
 Monteggia.

 tors, not having " a method in his madness," but mixing up the two  irreconcilable
 characters of
            " ' The moping idiot and the madman gay.' "         Dunlop. 
574
MENTAL  ALIENATION.
  In 1792, a criminal confined in the prison of Saint Ange, no
sooner heard that his accomplices had denounced him, than he
appeared to be in a state of dementia.  The physicians who ex-
amined him, were inclined to doubt its reality, from the sudden-
ness of the attack—from its sometimes seeming to be melancholy,
then exhilarated insanity, and then complete dementia.  He made
no answer to questions, except  by single words, as book, priest.
crown, crucifix, and if he made an attempt, as it would sometimes
appear, it ended in the repetition of some of these  words.
  In his presence, the physicians  stated, that there were several
peculiarities in  the  case, and among  these, that he made noise
during the night,  and was quiet in the day time—that he  never
sighed, and that he  never  fixed his eyes  on any object.   The
drift of their conversation  was, that the  opposite of  all  these
would induce them  to suppose him insane.  Shortly after, in fact,
he ceased making noise at  night, and did every thing that they
had indicated.  A blister applied to his neck had no effect, except
to change a state of complete muteness which had been present
for some time, to the former babbling of disconnected words.
  All these things  strengthened the idea of feigning.   In  July,
1793, he was transferred to the prison at Milan, and Monteggia
was ordered to  visit  him.   He  still appeared demented.  He
could not look  at a person steadily—never spoke—but made a
hissing noise at the  sight of any thing that  pleased or displeased
him.  He wras  fond of shining bodies, and made a collection of
them.  He was constantly in motion, and  it was the opinion of
his attendants,  that  he scarcely ever slept.  His appetite was
good, though sometimes irregular.
  The impression hence became strong with  Monteggia, that
he was insane; but  recollecting his conduct at Saint Ange, the
idea suggested  itself, of giving him  a strong dose  of opium, in
order to  ascertain  its effects.   Six  grains were mixed in his
soup,  but without any effect.  Some days after, this dose was re-
peated ; but  seeing,  in the  course of six hours, no proofs of its
operation, it was  again repeated.   Notwithstanding  this,  he
passed the night, and the next day, awake.  The next night he
seemed disturbed, and about one in the  morning,  he raised him-
self in bed,  sighed  profoundly,  and  exclaimed, My God, I am
dying.  His  attendant,  who  had never heard  his voice before,
was extremely  frightened, and sent immediately for Monteggia. 
MENTAL ALIENATION.
575
The patient was tranquil, and speaking sensibly, without any ap-
pearance  of  insanity.   He  said that he had no recollection of
the past; but that  he had heard persons say, that poisoned soup
had been given to  him.  He  complained also of the state of his
stomach.   An emetic was given, which acted freely.  From this
time, he appeared  cured.  He  remained a month, and then was
conducted to his criminal associates in prison.
   Monteggia asks, whether this man was insane 1  If so, was he
cured by the  opium 1 Or did  its effects produce such a state that
he imagined  he was going to  die ?  Why  then did  not the first
dose produce some effect?  Is it not probable, (he adds,) that
from long feigning, a state of actual dementia may have  at last
been present  at the first exhibition ?
   A female, of the name of  Buy, was assassinated by Jean Ge-
rard, a bold  villain, at Lyons, in 1829.  He was  arrested, but
immediately  afterwards seemed to be struck with dementia, ac-
companied with  inability to speak.   Drs. Biessy, Faivre  and
Brachet, were directed to visit him.   They understood  that he
ate well, but  never spoke, and  remained on his bed  constantly,
without scarcely ever moving.   When food was administered to
him, he was placed in a proper  position, and he remained in that,
without appearing to hear or attempting to speak.
   Reflecting on this, it was agreed that they would not show
themselves to him, lest his suspicions might be excited;  but as
this was a case  nearly approaching to idiotism, with apparent
paralysis of the nerves of the ear and tongue, the actual cautery
to the soles  of the feet would  be a proper application.   It was
accordingly  applied for several days, with active purgatives,
without any effect.  It was  next agreed that the cautery should
be used on the neck, as nearer  to the seat of disease.  Two days
passed without any result.   On the third, however, while making
the necessary preparations for  another trial of the  remedy, Ge-
rard signified by signs his objections to it.   When urged to ex-
plain, he spoke—" They accuse me of a  crime of  which I am
innocent.   They call me a fool," &c.
   The disease was  thus removed, and the physicians  reported
that it had been feigned.*
   Whether the investigation should be confided to medical men,
  * Annales D'Hygiene, vol. 2, p. 353 to 392. Additional Reports of cases of doubt-
ful insanity, examined by Marc and others, are given in vol. 4, p. 383 to 404. 
576
MENTAL ALIENATION.
or whether individuals generally are competent to it, is a  ques-
tion  raised by some  writers  which I shall not  discuss.  In dis-
puted cases, both  of  feigned  and concealed insanity, it  is very
common for persons in every class in society, to come forward
with their testimony, stating that the individual is or  is not in-
sane, while their depositions are often founded on  transient con-
versations—on short and inattentive examinations, or on a  slight
notice  of counterfeited or ordinary actions.   That these are not
calculated to determine the true state of mind, has, I hope, been
already shown.   That they may lead to serious  errors, will par-
ticularly appear, when we hereafter notice that form of insanity,
in which the boundaries between it and sanity approach so near,
that judges and juries often doubt whether the act  is the result of
madness, or of  wickedness.*
   This disease  is  observed to be concealed,  in  the  hope of es-
caping the restraints of confinement.   And the difficulty of de-
tection is increased by the remarkable cunning and dissimulation,
of which  some maniacs are capable.   A few  examples will il-
lustrate this in a satisfactory manner.
   " An Essex farmer,  about  the  middle age,"  says  Haslam,
" had on one  occasion so completely masked his disorder, that I
was induced to suppose him  well, when he was quite otherwise.
He had  not been at  home many hours, before  his derangement
was discernible by all those, who came to congratulate him  on
the  recovery of his  reason.   His impetuosity  and mischievous
disposition daily increasing, he was sent to a private mad-house ;
there being, at that  time,  no  vacancy in the hospital.  Almost
from the moment  of his confinement  he became tranquil, and
orderly, but remonstrated on the injustice of his  seclusion.
   Having once deceived me, he wished much  that my opinion
should be  taken respecting the state of  his intellects, and assured
his friends that he would submit to my  determination.  I had
taken  care to be well prepared for this interview, by obtaining
an accurate account of the  manner in which he had  conducted

  *  In Hathorn v. King, (Massachusetts Reports, vol. 8, p. 371,) the  question of
the sanity of a testator was agitated, and the counsel for the appellants moved to in-
quire of the attending physicians, whether, in their opinion, at the time of executing
the will, the deceased was of sound, disposing  memory.  It was objected, that the
sanity of the party must be determined by his conversation  and actions. These
were the only standard, and the examination  proposed would put the physicians in
the place of the jury.  But the court decided that the opinion of the  physicians
should be asked, and that they should state their reasons for the same. 
MENTAL  ALIENATION.
577
himself.   At this examination, he managed himself with admi-
rable address.  He spoke of the treatment he had received from
the persons under whose care he was then placed, as most kind
and fatherly;  he also expressed himself  as particularly fortunate
in being  under my care, and bestowed many handsome compli-
ments on my skill in treating this disorder, and expatiated on my
sagacity in perceiving the  slightest tinges of insanity.  When I
wished him to explain certain parts of his conduct, and particu-
larly some extravagant opinions, respecting  certain persons and
circumstances, he  disclaimed  all knowledge of such circum-
stances,  and felt himself hurt, that my mind should have been
poisoned so much  to his prejudice.  He  displayed equal subtlety
on three other occasions when I visited him; although by pro-
tracting the  conversation, he let fall sufficient to satisfy my mind
that he was a madman.  In a  short time he was  removed to the
hospital, where he  expressed great satisfaction in  being under my
inspection.  The private mad-house, which he had formerly so
much commended, now  became the subject of  severe animad*-
version; he said that  he had  there been  treated with extreme
cruelty; that  he had been  nearly starved, and eaten up by ver-
min of various descriptions.  On inquiring of some convalescent
patients, I found (as I had suspected) that I was  as much  the
subject of abuse, when absent, as  any of his supposed enemies;
although to  my face  his conduct was courteous and respectful.
More than a  month had elapsed since his admission into the hos-
pital, before  he  pressed me for my opinion;  probably confiding
in his address, and hoping to deceive me.  At length he appealed
to my decision, and urged the  correctness of his  conduct during
confinement as an argument for his liberation.  But when I in-
formed him of circumstances he  supposed me unacquainted with,
and  assured  him that he was a proper subject  for the asylum
which he then inhabited,, he suddenly poured forth a torrent of
abuse; talked in the most incoherent manner;  insisted on  the
truth of what  he had formerly denied;  breathed  vengeance
against his family and friends,  and became so outrageous that it
was necessary to  order him to be strictly  confined.   He con-
tinued in a state of unceasing fury for more than fifteen months."*
  Lord  Erskine, in his celebrated speech for James Hadfield,

                   * Haslam on Madness, p. 53.
  VOL. I.                    49 
578                 MENTAL ALIENATION.
mentions two cases which are striking and instructive.  " I ex-
amined," says he, " for the greater  part of the  day, in this very
place, (the  Court of  King's  Bench.)  an unfortunate gentleman,
who had indicted a most affectionate brother, together with the
keeper of a mad-house at Hoxton, for having imprisoned him as
a lunatic, whilst, according to his own evidence, he was in his
perfect senses.   I was, unfortunately, not instructed in what his
lunacy consisted, although my instructions left me  no doubt of
the fact, but not  having the clue, he completely foiled me in every
attempt to expose his infirmhy.  You  may believe,  that I left no
means unemployed, wrhich long experience dictated, but without
the smallest effect.  The day was wasted, and  the prosecutor,
by the most affecting history of unmerited suffering, appeared to
the judge and jury, and to a humane English audience, as the
victim of a most wanton oppression ; at last Dr.  Sims  came into
court, who had  been prevented by business  from an earlier at-
tendance.  From him I soon learned that the very man, whom
I had been above  an hour examining, and with every possible
effort, which  counsel are in  the habit of exerting, believed him-
self to be  the Lord  and Saviour of  mankind,  not merely at the
time of his confinement,  which was alone necessary for my de-
fence,  but  during  the whole  time, he  had been  triumphing over
every attempt to surprise  him, in the concealment of his disease.   I
then affected to  lament  the indecency of my ignorant examina-
tion—when he  expressed his forgiveness,  and said with the
utmost gravity and emphasis, in the face of the whole court, ; I am
the Christ,'  and so the  cause ended."
   The other  statement he derived from Lord Mansfield  himself.
who had tried the cause.  " A man  of the name of Wood had
indicted  Dr. Monro, for keeping him  as a prisoner, when he was
sane.  He underwent the most  severe examination by the de-
fendant's counsel, without exposing his complaint, but  Dr. Battie
having come upon the bench by me, and having desired me to
ask  him what was become of the  Princess, with whom he had
corresponded in cherry juice, he showed in a moment what he
was. He answered that there was nothing at all  in that, because,
having been  (as every body knew,) imprisoned in a high tower.
and being debarred  the use of  ink, he had no  other means of
correspondence, but writing  his letters in cherry juice, and throw-
ing  them into the river  which surrounded the  tower,  where the 
mental  alienation.
579
Princess  received  them in a boat.   There existed, of course, no
tower,  no imprisonment, no writing in cherry-juice, no river, no
boat, but the whole was the inveterate phantom of a morbid ima-
gination.  I immediately," continued Lord  Mansfield, " directed
Dr. Monro to be acquitted, but this man Wood, being a merchant
in Philpot-lane, and  having been carried  through the city on his
way  to the mad-house, indicted  Dr. Monro over again, for  the
trespass  and  imprisonfhent in London, knowing that he had lost
his cause by speaking of the Princess at Westminster, and such,"
said Lord Mansfield, "  is the  extraordinary subtlety and cunning
of madmen,  that  when he was  cross-examined on the trial in
London, as he had successively been before,  in order to expose
his madness, all the ingenuity of  the bar,  and all  the authority of
the  court,  could not make him  say a single  syllable upon that
topic, which had put an end  to  the indictment  before,  although
he had  still  the same  indelible  impression upon his mind, as he
had  signified  to  those  who were near  him : but conscious that
the delusion had  occasioned  his  defeat  at Westminster, he obsti-
nately persisted in holding  it back."*
   Some directions as to the  best  method of detecting concealed
 insanity, may readily be drawn  from the  above narratives, but
 the subject is in itself a very difficult one.f   The medical wit-
 ness in these cases, has to decide—not whether a person is actu-
 ally  or feignedly insane for the first time in his life, but whether
 there is  such a recovery from madness as to entitle him to the
 appellation of a sane man.

   ' This evidence at Westminster was then proved against him by the short-hand
 writer  Lord Eldon, since he has been Lord Chancellor, has mentioned from the
 bench, a case which occurred to him while at the bar,  also illustrative of the difficul y
 that occurs in such cases. After repeated conferences, and much conversation with
 a lunatic he was persuaded of the soundness of his understanding, and prevailed on
 Lord Thurlow to supersede  the commission.  The lunatic, however, immediately
 afterward* calling on his counsel to thank him for his exertions, convinced him in
 five minutes, that the worst thing that he could have done for his client, was to get
 rid of the commission.  Vesey junior's Reports, vol.  11, p.  11.  Ex parte Holyland.
   t " Hoffbauer lays down the following short directions for discovering the parti-
 cular hallucinations of insane persons:
   " A general rule to be observed in these cases, is not to contradict the patient, nor
 to appear to consider his assertions as absurd or ridiculous.  An air of interest  ac
 nuircs his confidence  and induces him to  conceal  nothing.   Sometimes, however,
 we mav exhibit some astonishment, and even contradict him upon some unimportant
 points,"so as to excite him to a more full explanation ; but always in such a manner
 as indicates attention, and never incredulity."
   Connected with the subject of mental  alienation in a medico-legal point of view,
 i« the uncontrollable inclination which some individuals have to drink vinous liquors,
 which alwavs produce in them the most violent and dangerous excitement.   I he 
580
MENTAL  ALIENATION.
   The nurses, attendants and physicians, who have had the care

of him, are the  proper  persons to  testify concerning  his  state-

Notwithstanding all the efforts, all the cunning and dissimulation

which  may be  exercised, there  are moments, when  the ruling

malady breaks forth, and it will most readily be noticed, by those

who have previously watched him.   And if his eye at these mo-

ments, " meets that which  has so often checked  his vacillatory

emotions—the instant of such a meeting is the instant of self-cor-

rection, of silence, or of sudden order and surprising self-posses-

sion."*

   It must also be remembered, that  those who are insane on par-

ticular subjects,  will  reason correctly  on  ordinary  and trivial

points, provided  they do not  become  associated with the prevailing

notions which  constitute their insanity.^   And  this  circumstance

is  very apt to become a source of error, since unobservant per-

sons will be readily deceived  by this temporary display of ra-

tional  discourse, and  form  a hasty conclusion.   Hence the im-

portance of continued examination.  At the commencement of an

interview, it may be all  calmness and apparent  rationality—yet

when  least expected, the disorder breaks  forth,  and in many in-

stances, there seems to be no cause  for this conversion from ap-

parent sanity to evident derangement.  Even when placed in the

society of  other  madmen, he is capable of detecting  their  folly

and aberration from reason,  and will endeavour to convince them

of the absurdity of their prevailing  opinions, " yet  in a moment,


following cases, related by Esquirol,  illustrate this observation, and prove the neces-
sity of subjecting such individuals to seclusion.
  " A girl who has been maniacal, and on this account was taken to Saltpetriere, is
generally in such possession of her reason, that she acts as servant to the other in-
sane.  On the slightest contradiction, however, she takes to drinking, unless pre-
vented by seclusion, drinks till she is intoxicated, becomes furious, and attempts
suicide."
  " A lady has been several times taken to Charenton on account of her frequent in-
toxication, from the abuse of wine and spirituous liquors.  When the paroxysm is
over, she becomes ashamed, conceals herself, and loudly demands that she may re-
turn to her family. With the hope of giving her powerful motives for over"coming
the inclination, the douche has  been administered, her dismission has been refused,
and she  has  been threatened with  seclusion  for life.  When she has again  been
brought back, she makes the fairest promises and the strongest resolutions; but
nothing can prevent the return of the paroxysm."   Darwall.
  * Hill, p. 397.  This circumstance may also be applied to the detection of feigned
lunatics.  " All such, upon seeing the person whom they know has been long ac-
customed to the management or cure of lunatics, become tenfold more foolish, bois-
terous or unmanageable than before, in order to impress the minds of the beholders
with awful ideas of their very alarming or pitiable state, but their detection and ex-
posure are the sure result of diligent inquiry."
  f Haslam's Medical Jurisprudence of Insanity, p. 295. 
mental alienation.
581
his mind launches  into the regions of fiction, its admired clear-
ness becomes obscured, and its seeming regularity exhibits a con-
fused assemblage of violent distortion.  There is no intermediate
condition which separates  these  states, and  the transition very
much  resembles the  last connected glimpses  of our waking
thoughts, followed by the abrupt creation of a dream."''
  To conclude  then on this point, the examiner must have suf-
ficient time allowed him, and he should not be interrupted  during
it.  The subtlety of the patient should be recollected, and his art-
ful  concealment of his real  opinions.  And these  should  not be
directly commenced  with,  as  subjects of discussion,  since he
would  soon perceive the drift of the inquiries, and endeavour
to evade, or pretend  to disown them.  " The purpose is more ef-
fectually answered by leading him to the origin  of his distemper,
and tracing down the consecutive series of actions and associa-
tion of ideas.  In going  over the road where he has once stum-
bled, he will infallibly trip again."f

III. Of the legal definition of a slate of mental alienation, and the
                     adjudications under it.
   In this section, I  propose to  confine myself to such parts as it
is important for a physician to be acquainted with,  in his capacity
 as a witness.  To go beyond, and to endeavour to give the whole
 law on  this subject, would  be like a lawyer instructing  in ana-
 tomy.
   The common law of England on the subject before us, is thus
 expounded by Blackstone.  " An idiot or natural  fool," says he,
 •• is one that hath no understanding from his nativity, and there-
 fore is by law  presumed as never likely to obtain any."   But a
 man is not an idiot,  if he hath any glimmering of reason, so that
 he can  tell  his parents, his age, or the  like  common  matters.1^
 Over individuals of this  description, the  king is appointed guar-
 dian, and  the lord chancellor acts under his authority, as the con-
 servator of their property.  He also is to  provide  for them, and
 at  their death renders their estates to their heirs.
   " A lunatic, or non compos mentis, is one who hath had under-
 standing,  but by disease, grief or other accident, hath lost the
 use of his reason.   A lunatic  is  indeed properly one that hath

  * Haslam's Medical Jurisprudence of Insanity, p. 296.         t lb. p. 331
  1 Blackstone's Commentaries, vol. 1, p. 302, 304.
                             49* 
582
MENTAL ALIENATION.
lucid intervals; sometimes enjoying his senses and sometimes not,
and that frequently depending upon the change of the moon.  But
under the general name of non compos  mentis, (which, Sir Ed-
ward Coke says, is the most legal name,) are comprised not only
lunatics, but persons under frenzies, or who  lose  their intellects
by disease; those that grow deaf, dumb and blind, not being born
so; or such, in short, as are judged by the court of chancery in-
capable of conducting their own affairs."*  Over such, the crown
is also guardian, but in a different manner, as the law  supposes
that these accidental misfortunes may be removed, and therefore
he  or  his  special delegate,  the lord  chancellor, acts only as a
trustee, and preserves  the property for the use of the insane per-
son, until he be restored to reason.
  Of late  years, however, a new term  has  been introduced  in
legal adjudications, and it is important to trace its  origin, and if
possible to fix its meaning.   I refer to the phrase, unsoundness of
mind.
  Lord Chancellor Eldon was, I believe, the individual  who first
gave it a distinct place among the legal varieties of mental aliena-
tion, and the question  of its  existence has been a fruitful source
of litigation.   To appreciate the changes occasioned by its intro-
duction, it will be sufficient  to  refer to  the  opinions of various
chancellors of England. Lord Hardwicke held that unsoundness
of mind imported, not  weakness of understanding, but a total de-
privation of sense. It was thus  equivalent wTith the term insanity .f
Lord Eldon, however, says, " Of  late, the question has not been
whether the party is insane, but the court has thought itself au-
thorized to issue the commission de lunatico inquirendo,  provided
it is made out that the party is unable to act with any proper and
provident  management, liable  to  be robbed  by any one;  under
imbecility of  mind, not strictly insanity, but  as  to  the  mischief,
calling for as much protection as actual insanity.";};   And this
opinion, according to the commentary of Mr. Shelford, imports
that the party is in  some such  state of  mind, as  is contradistin-
guished from idiocy and from lunacy, and yTet such as makes him
a proper subject of a commission.  All the cases decide that mere
imbecility will not do, and that incapacity to manage affairs will

  * Blackstone, vol. 1, p. 304.
  t He deemed it equivalent with the term non compos mentis, and said that by un-
sound mind must be understood a depravity of reason, or  want of it, and  not mere
weakness of mind.       t 8 Vesey junior's Reports, p.  67.  Ridgway v. Darwin. 
MENTAL ALIENATION.
583
not do, unless such imbecility and such incapacity amount to evi-
dence that the party is of unsound mind, and the jury find him to
be so.*
  In a subsequent case, the attempt of a jury to specify the con-
ditions that in their opinion constituted the unsoundness of mind,
was defeated.   Their verdict was, " that the  party was  not  a
lunatic, but partly from paralysis  and  partly from  old  age, his
memory was so much impaired as to render him incompetent to
the management of  his  affairs, and consequently that he  was of
unsound mind, and had been so for two years.f   Lord Lyndhurst
quashed this inquisition, and ordered a second commission, which
found the person to  be of unsound  mind.J
  As to  what is  the legal acceptation of this term,  I will quote
the sentiments of an eminent barrister, Mr.  Amos, late professor
of medical jurisprudence in  the University of London.  " This
state of unsoundness of mind in the legal sense of the present day,
is perhaps not very easy to define, for it is neither lunacy, idiotcy,
imbecility, or incompetency to manage a person's  own  affairs.
And  yet we have seen that an inquisition finding a person unfit
to manage his own  affairs, and therefore not sound  of mind, has
been found bad.  The term unsoundness of mind, therefore, in the
legal  sense, seems to involve  the  idea of a morbid condition of
intellect, or loss of reason, coupled with an  incompetency of the
person to manage his own affairs."   And again, " Soundness of
mind is a legal term, the definition of which has varied, and can-
not, even in the present day, be stated with any thing like scien-
tific precision."^
   Mr. Shelford, the author of a recent very elaborate Treatise
on the Law of Lunatics, makes the following  observations: " It
is to be lamented that the original meaning of the term " unsound
mind" should have been departed from, and that so  much uncer-
tainty and latitude  should have  been given to it, as are implied
by the words of Lord Eldon.  For  if unsound mind does not mean
  * Shelford, p. 87.
  t 4 Russel's Chancery Reports, p. 182. In Re Holmes.
  The Rev. Mr. Holmes was seventy-seven years old. Two medical men (Drs. Pen-
nington and Arnold)  who had examined and conversed with him, considered him in
a state of dementia, denoted by decay of the thinking faculty—mental imbecility and
great want of memory, and they deemed him unfit for the management of his pecu-
niary affairs. It was on this testimony that the first verdict was rendered.  Medico-
Chirurgical Review, vol. 12, p. 244.
  X A legal friend has suggested to me that probably Lord Lyndhurst's objection was
to the argumentative nature of the verdict.
  § London Medical Gazette, v. 8, p. 419, 421. 
584
MENTAL ALIENATION.
a deprivation of reason, but a degree of weakness, and the Crown
can issue commissions to try whether a party be of sufficient un-
derstanding to manage himself and his affairs, that is such a vague
and uncertain ground for inquiry, as will open a door to invade
the liberty of the subject and the rights of property."*
  Notwithstanding these objections by gentlemen of the bar, the
term  remains a part of the English law,  and is already natural-
ized into our  own  jurisprudence.   In the  Revised Statutes of the
state  of New  York, it is enacted, that the Chancellor shall  have
the care  and  custody of all  idiots, lunatics, persons of  unsound
mind, and habitual drunkards.f  Again it is ordained, that every
person capable of  holding land, except  idiots, persons of  unsound
mind, and infants,  may alienate it.J  It is, therefore, of great im-
portance that medical men and lawyers  should  agree on .some
definite meaning to be applied to it, and I know none better than
that  suggested in  the following extract.  It is  deduced from the
current of decisions.
   After remarking that the terms  insanity, lunacy, unsoundness
of mind, and  imbecility, are  employed under very different ac-
ceptations by  lawyers, physicians and medical  writers, the  critic
continues, " and in consequence, witnesses  have often  seemed to
differ widely7  from each other  in their evidence, when  in fact the
chief difference  between them consisted in the meaning that each
attached to the vague and unscientific terms sanctioned by the
practice of the courts. These inconveniences have been abundantly
felt on many recent occasions, and appear, in particular, to have
been the origin of the chief difficulties  experienced in the late
Portsmouth cause.  In defence of our  medical brethren, and  in
justification of the awkward  appearances  they have made, we
may  safely maintain, that  the source of confusion does not lie

  * Shelford, p. 5.
  t Revised Statutes, vol. 1, p. 52. It is also in use  in  Pennsylvania.  Ashmead's
Reports, p. 82. In the matter of O'Brien, a lunatic. In Illinois and New Hampshire
the term " distracted person," is used in their statutes to express the state of insanity.
(Revised Laws of Illinois, 1833, p. 332. Digested Laws of New Hampshire, 1830.
p. 339.)
  X Revised Statutes, vol. 1, p. 719. Before these  distinct enactments, it would not
appear to have been entertained by our courts. In  Jackson ex dem.Cadwell v.King,
the Supreme Court said, that idiots, lunatics, or persons non compos, are alone per-
sons incapable of contracting, and of such alone, till since the revolution, did even
the Court of Chancery entertain jurisdiction.  " It does not  follow that because, ac-
cording to the modern  doctrine of the Court of Chancery, one would be the proper
subject of a commission in nature of a writ de lunatico inguirendo, that his acts are
void or voidable in a court of law."  (Cowen's Reports, vol. 4, p. 207.) 
MENTAL ALIENATION.
585
with them.   This has  been clearly shown,.we  think, in a  letter
addressed a few months ago, by Dr. Haslam to the Lord Chan-
cellor, on account of  certain opinions lately expressed  by his
lordship, with regard to the different states of mind which may
justify the issuing of a commission of lunacy.  His lordship seems
to hold that there are three such  states, idiocy, lunacy, and  un-
soundness of mind.   The  meaning of  the term Idiocy can  never
be mistaken.  The word  Lunacy has also a  definite  meaning,
different from that in which it was originally used, and now com-
prehends all those who have  once been sound in mind, and who
still possess the power of reasoning, though on imaginary or false
principles.   But as to the  term Unsoundness of mind, as contra-
distinguished from lunacy on the  one hand and from idiocy on
the other, we confess that, like Dr. Haslam, we are unable to form
a clear conception of it. ' Whatever,'  says the Chancellor,  ' may
be the degree of weakness or imbecility of  the  party to manage
his own  affairs, if the finding of the jury is only that he was of an
extreme imbecility of mind, that he has an imbecility to manage
his own affairs, if they will not proceed to infer from that, in their
finding upon oath, that he is of unsound mind, they have not  es-
tablished by the result of their inquiry, a case in which the Chan-
cellor can make a  grant constituting a committee, either  of  the
person or of the estate. All the cases decide that mere imbeci-
lity will  not do, unless that imbecility and  that  incapacity to
manage  his affairs, amount to evidence that he  is  of  unsound
mind, and he must be found to be  so.'   On carefully considering
these expressions, we imagine this unsoundness of mind to be  no-
thing else, in strict language, than imbecility, amounting  to an in-
ability to manage one's  affairs, a state which is precisely a minor
degree of idiocy, and need not be distinguished from it, except as
a mere variety."*
   " It  is satisfactory, (says a late English writer,) to be able to
add  that a recent enactment has put an end to much of the am-
biguity which  thus  prevailed respecting weakness  of  intellect.

  * Edinburgh Medical and  Surgical Journal, vol. 19, p. 612.  Dr. Morrison, (2d
edition, p. 28,) presents the following definitions.  " Unsound mind sufficient to ex-
cuse the commission of crime, is  marked by delusion—confounds ideas of imagina-
tion with those of reality—those of reflection with those of sensation—and mistakes
the one for the other. A weak mind differs from a strong one in the extent and power
of its faculties; but unless there be delusion, it is not considered unsound."   These,
however, it must be recollected are medical definitions, and differ widely from the
meaning of the terms in legal parlance. 
586                   MENTAL  ALIENATION.
The statute, 4 William, chap. 60, relative to trustees  and mort-
gagees has introduced a power to issue a commission of lunacy in
all cases where an individual is ' incapable of managing his af-
fairs,' although he be neither proved to be an idiot or a lunatic."*
   The methods of proving a  person an idiot or non compos, or
of unsound mind, are, in every important particular, alike.   But
in the first, a writ is issued to inquire into the state of the per-
son's mind, and the question of idiocy is tried before the eschea-
tor or sheriff, by  a jury of twelve men ; while the two last have,
of late  years, been examined  by a commission, in the nature of
the writ de idiota inquirendo, and a jury is summoned by the per-
sons appointed commissioners/]-  If the result of the commission
be a return that the individual  is a lunatic, he is then  committed
to the care of tutors  or guardians, who are  styled his committee.
   Should the individual  recover  his  state of  sound  mind, the
 chancellor must be petitioned  to supersede  the commission; and
on the hearing of this, the individual should attend, that he  may-
be inspected in person;  and it is  also usual for the physician to
 attend, or to make an affidavit that he is perfectly recovered.^
   In cases of this description, (civil as contradistinguished  from
 criminal ones,) the important question, as has been well stated by
 Dr. Conolly, for the physician to decide, is, whether or not the de-
 parture from sound mind be of a nature to justify the confinement
 of the individual, or the imposition of restraint upon him as regards
 the use or disposal of his  property ?§  This  is the point on which
 the reputation of many physicians has, of late years, been nearly-
 wrecked.  I will  mention  one or  two cases that have excited
 great attention  in England, and which are wrell worthy of con-
 sideration.
    Mr. Edward Davies was born in low circumstances, and ob-
 tained  an extremely imperfect education.  He was  noticed at
 school  as being very shy of his companions, but was not con-
 sidered stupid.  He  commenced business as a tea-dealer, and by
 indefatigable industry and attention to his business, acquired
 property; but his early  habits continued, and he was so habitu-

   * Dr. William Cummin. London Med. Gazette, vol. 19, p. 884.
   t Highmore on the Law of Idiocy and Lunacy, p. 20, 21.
   j Highmore, p. 73.
   § Or, to put it in another point of view, the physician and the jury arc "to deter-
 mine, not the mere existence of a mental affection, but the limit at which that affection
 begins to deprive the individual of the power of proper self-direction; and at which,
 therefore, it becomes the duty of the law, and of the friends, to step in for his protec-
 tion."  (Medico-Chirurgical Review, vol. 16, p. 512.) 
MENTAL  ALIENATION.
587
ally anxious and  nervous, that the  night  before  the  great tea
sales at the India  House, he could not sleep.   He was  subject to
dyspepsia, and even inclined to hypochondriasis.  Finding him-
self also deficient in education, he endeavoured  to acquire infor-
mation by reading what he took to be the best authors, and as is
natural with such persons, was very vain of showing off his late
acquisitions, particularly in the way of spouting.
  It appears that  his mother, even at his advanced period of life,
(twenty-seven years,) exercised a complete sway over  him.  She
would not allow him to carry any money in  his pocket, nor  to
spend the most trifling sum without  her advice and permission.
He dared not go to the  play, or leave the house for a few hours,
without asking her  consent;  and indeed she turned him out of
his shop, if he displeased her.   Foreseeing that if he married, she
would be displaced from the management of  his house and con-
cerns, she prevented him from seeing young females.
   He made many attempts to  emancipate himself from this con-
trol, by offering large  sums of money if  she would leave him;
 but they were all rejected.  His health became more and more
 affected; and  Mr.  Lawrence, to whom  he  applied for advice,
 found his look wild and manner hurried.  He  used much gesticu-
 lation, and expressed a strong antipathy to his mother and seve-
 ral  relations, whom he supposed were combining against him.
 Mr. Lawrence considered him of unsound mind, but that the an-
 tipathy to his mother was the chief delusion.  The disease would
 be removed, if he could be reconciled to her.
   About this time, his mother placed him under the care of Dr.
 Burrows, against whom it appears he entertained a strong aver-
 sion.  He now consulted  Dr.  Latham on the subject  of his sup-
 posed insanity.   In the conversation with  that physician, he used
 much gesticulation  and theatrical  gestures;  was  apprehensive
 that any one should hear  the narrative; spoke of his wealth, and
 occasionally quoted Byron and Shakspeare.   Pie repeatedly in-
 sisted on  Dr.  Latham's  opinion whether he  was insane, and
 threatened vengeance  if  he did so think.  Dr. Latham was in-
 clined, from this interview, to doubt his sanity.
    Mr. Davies shortly  after left his house, and lodged at an inn,
 where his appearance was wild, and he awoke the servant in the
 nio-ht with an idea that there were thieves in the house.   He
 was, however, soon reassured, and went  to sleep.
    He was soon after confined in  a private mad-house, and this 
588
MENTAL ALIENATION.
confinement led  to an application for his release.  Several phy»
sicians  examined him,  (Sir George  Tuthill, Dr.  Monro, Dr.
Macmichael and Dr. Sutherland;) and the majority being  of
opinion that he was of unsound mind, the Chancellor granted a
commission.
  The testimony adduced, was  principally what has been already
stated.  The state of his affections was much dwelt on as a proof;
so also  his  having purchased  some property at an extravagant
rate.   He  expressed much indignation  at  his confinement, but
was calm and correct in his conversation.   It turned out on the
trial before the  commission, that at the very time when  he was
about being confined, he gave directions  as  to his business, and
was indeed consulted by the very persons engaged  in  the appli-
cation relative to the conduct of that business. The result of the
commission was, that Mr. Davies was restored to his liberty and
property.
  This narrative is gathered from an abstract of the case by one
who evidently entertained strong feelings against the correctness
of the opinions of the principal  medical witnesses, and there pos-
sibly may be some colouring given more favourable to the indi-
vidual implicated,  than the  testimony warrants.   But it is evi-
dent, so far as I can judge, that a sufficient inquiry was not made
into the state of his domestic relations—of his capacity for business,
and above all, of his  actual state  of mind, previous to the charge
of insanity.  It is well remarked  by the author from whom I am
quoting, (and who  I  believe was  Dr.  Gooch,) that  Davies was
always, and probably would continue to be, what we usually call
a man of weak mind; but he had capacity sufficient for  making
money—was inoffensive in his habits, although eccentric,  and ab-
solutely indulged in no delusion,  unless antipathy to his mother's
government was so  considered.   This, if his history  had been
properly inquired into, would never  have been  so denominated.
The important rule evidently deducible  from the whole, is  to as-
certain the person's natural character, and to reason  from that
as to deviations.*
  *  I have taken the narrative of this case from the Quarterly Review, vol. 42, p.
345.  I will remark,  that the observations of Dr. Gooch on the testimony of some of
the medical witnesses, are  frequently too severe.  They could only judge from what
they witnessed; and  though we may recognise the correctness of the abstract prin-
ciple, that they should have thoroughly  informed themselves, yet this is more easily
recommended than accomplished.  Dr. Duncan, junior, of Edinburgh, seems to have
publicly noticed some of the offensive parts of the review.  (Lancet, N. S. vol. 6, p.
214.)  To avoid the charge of plagiarism, I will state, that the concluding idea in
the text, is derived from Dr. A. Combe.  " The true standard" says he, "is the pa. 
MENTAL ALIENATION.
589
  Another case that equalLy interested  the intelligent portion of
the community in England for a time, was that of Miss Bagster.
This was in 1832.
  Miss  Bagster was a young lady of  fortune, who perpetrated
a runaway match with Mr. Newton.  An application was made
by her family to dissolve  the marriage, on the ground  that  she
was of  unsound mind.  The facts urged against her before  the
commissioners were, that she had been a violent, self-willed and
passionate child; that this continued as she grew up;  that  she
was totally ignorant of arithmetic, and therefore incapable of
taking care of her property:  that she had evinced a great fond-
ness for matrimony, having engaged herself to several persons,
and that, in many respects,  she evinced little of the delicacy be-
coming her sex.  Dr. Sutherland had visited her four times, and
came to the conclusion that she was incapable of taking care of
herself  or of her property.   She had memory, but neither judg-
ment nor reasoning power.   Dr. Gordon  did not consider  her
capacity to exceed that of a child of seven years of age.   Seve-
ral non-medical  witnesses  who  had known  her from infancy,
spoke of her  extremely passionate, and occasionally indelicate
conduct.   On her  examination,  however, before  the  commis-
sioners, her answers were  pertinent and in  a proper manner.
No indelicate remark escaped  from her.   Drs. Morrison and
Haslam  had both visited  her, and were not disposed to consider
her imbecile or idiotic.  She confessed and lamented her igno-
rance of arithmetic, but said  that her grandfather sent excuses
when she  was at  school, and  begged that  she might  not  be
pressed.   Her conversation  generally impressed these gentlemen
in a favourable manner as to her sanity.
  The jury brought in a verdict, that Miss  Bagster  had been
of unsound mind since November 1, 1830, and the marriage was
consequently dissolved.
  However little we may be disposed to sympathize with Mr.
Newton, this certainly would seem to be a hard decision against
the female.   With a neglected education—indulged in every
wish, and growing up under the combined effects of these, she is

tienfs own natural character, and not that of the physician or the philosopher." " It
is the prolonged  departure, without an adequate external cause, from the state of
feeling and modes of thinking usual to the individual when in health, that is the
true feature of disorder in mind."
  VOL. I.                     50 
590
MENTAL  ALIENATION.
persuaded to elope with a person highly offensive to her mother:
and in order to dissolve the  connexion, the whole history of her
life is ransacked for inconsistencies and improprieties.  Dr. Mor-
rison said under oath, that he would undertake, in six months, to
teach  her arithmetic  and  the use of money.  " A deficiency of
education,"  he said, " would  account for all  the appearances ob-
served in Miss Bagster."*
   From the above statement, an idea may be formed of the prin-
ciples and practice of English law relative to the insane in Civil
cases :f I  come now  to notice  such as are in force  in  Criminal
ones.
   Insanity  or idiotism  excuses  an individual  from  the guilt of
crimes, and he is not chargeable for his own acts, if committed
when under these incapacities.   " And  if a man in his sound  me-
mory, commits a capital offence, and before arraignment for it, he
becomes mad, he shall not be tried; if after he be tried and found
guilty, he loses his senses before judgment, judgment shall not be
pronounced ;  and if  after judgment,  he becomes  of  non-sane
memory,  execution  shall  be  stayed.    If there be any doubt
whether  the person be compos or  not, this  shall be tried by  a
jury.   And if he be so found, a total idiocy,  or absolute insanity,
excuses from the guilt, and of course  from the punishment of
any criminal action  committed  under  such  deprivation of  the
senses : but if a lunatic hath  lucid  intervals of understanding, he
shall answer for what he does in those intervals, as if he had no
deficiency.''^
   The French  law makes similar provisions.   " It is  neither  a

   * London Medical Gazette, vol. 10, p. 519, 553.  London Atlas,  newspaper, July
8 arid 15, 1832.
   In the suit for the dissolution of the marriage of the Earl of Portsmouth, on the
ground that he was of weak, and afterwards of unsound mind, it was proved that his
servants were  his play-fellows—that he was fond of driving carts, loaded with dung
or hay—that he was occasionally extremely cruel to his horses, and his domestics—
breaking the leg of his coachman who was  lying with it already broken.  He had
a great desire to bleed persons, carrying lancets with him—would follow funerals, &c.
   The commission found him of unsound mind, and the marriage was subsequently
dissolved.  (Haggard's Ecclesiastical Reports, vol. 1, p. 355.)
   t In Scotland, besides the usual provisions as to lunatics and idiots, a legal restraint
may be laid on those who by imbecility or weakness of judgment, are considered as
fit subjects for it.  This is called an interdiction, and when under its  operation,
they are disabled from disposing of their property without  the consent of curators.
 An interesting case of alleged idiocy, but probably coming under the above descrip-
tion, was recently agitated  in Scotland. See Mr. Colquhoun's report of Proceedings.
 Duncan against Yoolow.  Edinburgh Med. and Surg. Journal, vol. 49, p. 530.
   J Blackstone, vol. 4, p. 24. 
MENTAL ALIENATION.
591
crime  or an  offence, if the  accused  was in a state of insanity
(demence) at the time of committing the action."*   And  even in
the remaining particulars, it is practically the same.  In the case
of a person who had committed murder and afterwards  became
insane,  the judgment was suspended  indefinitely.    The Procu-
reur-General stated, that although this principle was not expressly-
adopted  in the  French  code, yet  it was contained  in the  70th
article of a projet of a criminal code, submitted for  discussion in
1804, and that this justified the course adopted.f
   The law at present in force in the state  of New York, is  simi-
lar in most particulars  to the English.  The chancellor has the
care, and provides for the safe keeping of all idiots and lunatics,
and of their real and personal estates, so that they and their fa-
milies may be  properly maintained.   He  is also empowered to
dispose of and  regulate their property under certain restrictions,
and should the lunatic  recover, his  property is to  be restored,
but should the idiot or lunatic die, it goes  to his heirs or next of
kin.J
   Two or more justices are also  allowed to  cause  to be appre-
hended and  kept safely in custody, any persons who by lunacy
or otherwise, are furiously mad, or are so far disordered in their
senses, that they may be dangerous to be permitted to go abroad.
This provision does not, however, restrain or abridge the powers
of the chancellor, or prevent  any friend or relative of the  luna-
tics, from taking them under their own care and protection.§
   The mode pursued of proving a person a lunatic or idiot, is to
make an application to  the chancellor, who appoints commission-
ers to inquire into the fact, and they summon a jury to  try it, and
by their verdict he is guided.  He may, however, and has direct-
ed an issue to  try the allegation of lunacy in  the circuit court.||
   On the  petition of a lunatic to supersede the commission, it
may either be  referred to a master, to  take proof  thereon, and
examine  the lunatic, and to  report the proofs and  his opinion—
or the lunatic is directed to attend in court, to be  examined by
the chancellor.H
   * Code Penal, art. 64.      t Causes Celebres par Mejan, vol. 6,  p. 310.
   t Revised Laws, vol. 1, p. 147. Revised Statutes, vol. 2, p. 52.
   \ Revised Laws,  vol. 1, p. 116. Revised Statutes, vol. 1, p. 635.
   || In the matter of Wendell, a lunatic.  Johnson's Chancery Reports, vol.1, p. 600.
   11 In the matter of Hanks,  a lunatic. Johnson's Chancery Reports, vol. 3, p. 567.
   A case further illustrative of this, occurred in 1836, before the Supreme Court of
Massachusetts, which has the  powers of Chancery.
   Andrew C. Davidson, confined in the  State Lunatic Asylum, was at his own re- 
592
MENTAL  ALIENATION.
   As to criminal cases, the broad principle, of want of responsi-
bility is laid down.   " No act done  by a person  in a  state of in-
sanity can be punished, as an offence, and no insane person can
be tried, sentenced to any punishment, or punished for any crime
or offence which he commits in that state."*  Some special pro-
visions have also been recently enacted.   If any convict after he
is  sentenced to the  punishment of death, shall  become  insane,
the sheriff, with the concurrence of the circuit judge, shall sum-
mon a  jury of twelve electors, to inquire into the same, and he
must give notice of this inquisition  to the district attorney, who
can subpoena witnesses.  If  found insane, the sheriff shall trans-
mit the inquisition to the Governor, who can order the execution,
in case the convict recovers.f
   If a  convict in a  county  prison becomes insane, he is to be
transferred to  the  superintendents of the poor, and if  one in a
state prison, he may be removed to  the New York Lunatic Asy-
lum, at the expense of the state.J
   In  other states, where  no separate equity jurisdiction  exists,
the examination and guardianship of these individuals, is usually
confided to high judicial  tribunals, or to  officers  specially ap-
pointed for that purpose.§
   The  common law of England  is,  however, generally the
guide  by  which civil and  criminal cases are  decided in this
country.   It is the  basis on which our statute laws are founded,
and  it is hence important, that its peculiarities  be distinctly un-
derstood.
quest brought up on a writ of habeas corpus, and the superintendent summoned to
show cause of detention.
  Mr. Davidson was a well educated man, aged 45, and had been esteemed amiable
and intelligent, but became embarrassed in his circumstances, and finally intem-
perate.  His insanity consisted in false hearing.  He supposed that his tenant used
insulting language, and this delusion extended to his family.   He became very pas-
sionate, and particularly to  those who denied that they heard the noises of which he
complained.
  He was sent to the hospital in 1834, was discharged—appeared well, but the illu-
sion returned, and he was again confined.  He now  persists in believing that these
sounds are transmitted through a great extent of space, and deems his own organs
more perfect in hearing them.  On all other subjects, he is rational and intelligent.
No one would suspect his insanity, when with strangers.  The court remanded him,
not deeming it safe that he  be at large, especially with reference to those  by whom
he supposes himself injured and insulted. Boston Med. and Surg. Journal, vol. 14,
p. 352.
  * Revised  Statutes, vol. 2, p. 697.           t Revised Statutes, vol. 2, p. 658.
  X Revised Statutes, vol. 2, p. 756, 771.
  § The following is made a crime  in Ohio: " Having  carnal intercourse with an
insane woman, not the  offender's wife, he being over 18 years of age.  The pu-
nishment is confinement in  the penitentiary from 3 to 10 years."  (American Quar-
terly Review, vol. 10, p. 41.) 
MENTAL ALIENATION.
593
  The most striking are  the distinctions that  are made  between
civil and criminal  cases.  The reader has doubtless  already ob-
served, that in the latter, the testimony of others is  sufficient to
establish the insanity of the prisoner.  But under a writ de luna-
tico inquirendo as happens in  civil cases, the supposed  insane is
•usually brought before the commission and jury to be examined
by them, and to satisfy them as to his or her  state.
  In  the instance of Lady Kirkwall, for example, of undoubted
and long insanity, but whose case was one of property,  the com-
mission spent eight entire days in this  inquiry.*  How different
the proceeding is, when the individual is accused of crime, needs
not to be mentioned.
  There is  a  still more striking distinction.   If  a lunatic be per-
fectly recovered and not otherwise, his property is to  be restored
to him.f  But in criminal cases, if  he exhibits a lucid interval of
understanding, he  may be punished  for acts committed  during
its presence, in  the same manner as a sane  person  is punished.
It will hence  be proper to offer a fewr remarks on what  is under-
stood by a lucid interval.
  The term itself  is, with great appearance  of probability, sup-
posed by Dr. Haslam to be connected with, and originate from,
the ancient  theory  on the subject of lunacy.  The patient became
insane, as was supposed, at particular changes of the moon, and
the inference  was natural, that in the intervening spaces of time,
he would be rational.J  This, however, is an opinion long since
abandoned.    Observers have repeatedly noticed, that the access
of the  paroxysms  has no connexion with the phenomenon in
question, and  our author expressly states, that he kept  an exact
register for more than two  years, but without finding in any in-
stance  that the  aberrations of the human intellect correspond
with, or were influenced  by, the vicissitudes  of the  moon.  Es-
quirol observes, that in respect to lunar influence, he  cannot con-
firm the long prevalent opinion.  The  insane, he adds, are cer-
tainly more agitated about  the full moon, but so they are  about

  * London Med. Gazette, vol. 17, p. 816.
  t In ex parte Atkinson, in the matter of Parkinson, the jury under a commission
of lunacy against Parkinson, returned "that the said T. Parkinson at  the  time of
taking this Inquisition is a lunatic, enjoying lucid intervals, and during such lucid
intervals, he is  competent to the government of himself and  the  administration of
his own affairs."   The  Lord Chancellor (Eldon) refused on this to grant a commit-
tee, and issued a new commission.  (Jacob's Chancery Reports, vol. 1, p. 333.)
  t Haslam on Madness, p. 214.
                              50* 
594
MENTAL ALIENATION.
day-break every morning.  Hence he conceives the light  to  be
the cause of the increased  excitement  at  both these periods.
Light, he asserts, frightens some lunatics, pleases others, but agi-
tates  all.*
  If then the theory on which the term is founded, and the prac-
tical deduction from it are both incorrect, what are we to under-
stand by the term itself at the present day, in legal  proceedings'?
I answer this by some quotations  from  the writings  of distin-
guished advocates and enlightened physicians.
  Daguesseau, one  of  the  greatest  names  in  French jurispru.
dence, thus defines it: " It must not be a superficial tranquillity, a
shadow of repose;  but on the contrary,  a profound tranquillity,
a real repose ; it must be, not a mere ray of reason, which only
makes its absence more apparent when it is  gone—not a flash of
lightning, which pierces through the darkness  only to render it
more gloomy and dismal—not  a glimmering which unifes the
night to  the day; but a perfect light, a lively and continued lus-
tre, a full and entire  day, interposed between the two  separate
nights of the fury which precedes and  follows it: and,  to use
another image, it is not a deceitful  and  faithless stillness which
follows or forebodes a storm, but a  sure and  steadfast tranquillity
for a time, a real calm, a perfect serenity; in fine, without look-
ing for so many metaphors  to represent our idea, it must be not
a mere diminution,  a  remission of  the  complaint, but a  kind of
temporary cure, an intermission  so clearly marked as in  every
respect to resemble the restoration of health.   So  much for  its
nature.
  " And as  it is impossible to judge  in a moment, of the quality
of an interval,  it is  requisite that there  should be a sufficient
length of time for giving a perfect assurance of the temporary
re-establishment of reason, which  it is not  possible to define  in
general, and which  depends upon the different kinds of fury;
but it is certain there must be a time, and a considerable time:
So much for its duration."]
  " To determine the existence of a lucid interval in insanity,"
  * Medico-Chirurgical Review, vol. 1, p. 251.
  + Highmore on the Law of Idiocy and Lunacy, p. 6.
  In further noticing this subject, he  remarks,  that " much of the difficulty of dis-
criminating arises from confounding a sensible action with a lucid interval.  An ac-
tion may be sensible in appearance, without the author of it being sensible in fact;
but an interval cannot be perfect, unless you can conclude from it, that the  person
in whom it appears is in a state of sanity.  The action is only a rapid  and  mo-
mentary effect; the interval continues and supports itself: the action only marks a 
MENTAL  ALIENATION.
595
says  Percival, " the  testimony of a  physician is sometimes re-
quired in courts of law.   The complete remission of madness  is
only  to  be  decided  by reiterated  and  attentive  observation.
Every action, and even  gesture of the  patient, should  be sedu-
lously watched;  and he  should be drawn into conversations  at
different times, that may insensibly lead him to develope the false
impressions under which  he  labours.   He should  also be  em-
ployed  occasionally  in business  or  offices connected  with,  or
likely to  renew his wrong associations.   If these trials produce
no recurrence of insanity, he may, with full assurance, be re-
garded as legally compos mentis during such period, even though
he should  relapse a short  time afterwards into his former ma-
lady."*
   " I should define," says Haslam, " a lucid interval to be a com-
plete recovery of the patient's intellects, ascertained by repeated
examinations of his conversation,  and by constant observation of
 his conduct, for  a time sufficient to enable the superintendent to
 form a correct  judgment.   If the person who is to examine the
 state of the patient's  mind,  be unacquainted with his  peculiar
 opinions, he may be easily deceived; because, wanting  this infor-
 mation, he will have no clue to direct his inquiries, and madmen
 do not always nor immediately intrude their  incoherent notions.
 They have sometimes such a  high degree of control over their
 minds, that when they have any particular purpose to carry, they
 will affect to renounce those opinions which  shall  have  been
 judged  inconsistent; and it is well knoicn that they have often dis-
 sembled their resentment, until a favourable  opportunity  has  oc-
 curred of gratifying their revenge."]
 single fact;  the interval is a state  composed of a succession of actions."  And
 again: " If it was true that a proof of some  sensible  action was sufficient to in-
 duce a presumption of lucid intervals, it must be concluded  that those who allege
 insanity could  never gain their cause, and that  those who maintain  the contrary
 could never lose it;  for a cause must be very badly off, in which they could not get
 some witnesses to speak of sensible actions. A reasonable action is an act—an in-
 terval is a state—the act of reason may subsist with the  habit of madness; and if
 it were not so, a state of folly  could  never  be proved."  (Pothier's Treatise on the
 Law of Obligations, vol. 2, appendix 19, p. 670. London, 1806.)
   * Percival's Medical Ethics, p. 214.
   t Haslam on Madness, p. 46 and 52.  Dr. Burrows, however, remarks on such an
 minion, as follows:  " Some  contend that there is no such thing in insanity as a lucid
 interval; that is, a person must be sane or insane. This is the reductio ad  absur-
 dum; for who, accustomed  to insane people,  will deny that  intervals of sanity do
 occur, and that, during such period, a person  is in full possession of his faculties?
 This interval may be of so short a duration as a few hours, or a day or more;  and
 yet, as the paroxysm uniformly returns, it is obviously the continuation of the same
 morbid  action.  Do we not admit that fevers have perfect intermissions? But do we
 pronounce the patient, therefore, freed from his insanity ? Thomas Willis describes 
596
MENTAL ALIENATION.
   Lord Thurlow  has  also,  with great  clearness,  stated  what

 should be  the state present to constitute an actual lucid interval.

 " By a perfect interval," says he, " I do not mean a cooler mo-

 ment, an abatement of  pain or violence, or  of a higher state of

 torture—a mind relieved from excessive  pressure;  but an inter-

 val  in  which  the mind, having  thrown off  the disease, has re-

 covered its general habit."

   " The burthen of proof," he adds,  " attaches on the party al-

 leging  such  lucid  intervals,  who must  show sanity and compe-

 tence at the period when the  act was  done, and  to which the

 lucid interval refers, and it is certainly of equal importance that

 the evidence in support of the allegation of a lucid interval, after

 derangement at any period  has  been established, should be  as

 strong and demonstrative of such fact, as where the  object of the

 proof is to establish derangement.   The evidence in such a case,

 applying to stated intervals, ought to  go to the state and habit of

 the person, and not to the  accidental  interview of any individual.

 or to the degree of self-possession in any particular  act.*

 a lucid interval as a perfect  return of a sound  mind during the intermission, or so
 long as the mania ceases; and this, in my opinion, is an accurate definition." (Bur-
 row's  Commentaries on Insanity, p. 280.)
  In conformity to the above, are the observations of Dr. Ray.  The lucid intervals
 in insanity, he observes, are  with great justice, resembled  to the intermissions in in-
 termittent fever,  or the periods between the attacks of epileptic fits.  The patient
 still labours under the disease,  although the leading symptom is  for the time absent.
 He therefore  condemns  the too broad assertion of Dr. Haslam. During these periods
 of apparent reason, there is a weakness of mind remaining, or what Dr. Combe styles
 an irritability of the brain.   As to the commission of  crime during the lucid  inter-
 val, Dr.  Ray remarks, that crimes are generally the result of momentary excite-
 ment produced by sudden provocations.  These provocations put an end to the tem-
 porary cure  by  immediately reproducing  that pathological condition of the brain,
 called irritation,  and  this irritation is the essential cause of mental derangement,
 which absolves from all the legal consequences of crime.  The conclusion from this
 is, that we ought never, perhaps, to convict for a crime committed during the lucid
 interval.  The difference between  a person in the lucid interval, and one  who has
 never been insane is, that while in the latter, the passions are excited to the highest
 degree of which they are capable in a  state of health, though still more or less under
 his control; they produce in the former, a pathological change  which deprives him
 of every thing like moral liberty. Ray's Med. Jurisp. of Insanity, chap. 14.  Ameri-
 can Jurist, vol. 18, p. 390.
  * Brown's  Chancery  Cases,  vol. 3, p. 443, 444.  The Attorney-General  v. Parn-
 ther.  Lord Eldon has,  however, intimated his disagreement from Lord Thurlow's
 proposition.   Ex parte Holyland, Vesey's Reports, vol.  11, p. 10. And in a late trial
 (July 20, 1822,) in chancery, he has still  more  openly avowed  his opposition to it.
 The following are staled to have been  his words:  "With regard to what might be a
 lucid interval, it  was a point of some difficulty.  He could never  go the length of
 Lord Thurlow in the case of Barker.  (This is the case quoted above, Attorney-Ge-
 neral v. Pamther.)  That noble lord was of opinion, that if the existence of insanity
 was once established, the evidence of a lucid interval ought to be as clear as the evi-
dence  in support of the lunacy.  He remembered putting the matter thus  to Lord
Thurlow : ' I  have seen you exercising the duties of  Lord  Chancellor with ample 
MENTAL ALIENATION.
597
   On  the  other  hand, somewhat differing  from the  above opi-

 nions, Sir  John Nicholl  in a late decision, observes, " nor am I

 able exactly to understand what is meant  by a ' lucid  interval,'

 if it does  not  take  place when no symptom of delusion can be

 called forth at the time.   How but by the manifestation of the

 delusion, is the insanity proved to  exist at any one time.   The

 disorder may not  be  permanently and  altogether eradicated—it

 may only intermit—it may be liable to  return, but if the mind  is

 apparently rational upon all subjects, and no symptoms  of delu-

 sion can be  called forth on any subject, the disorder is  for that

 time absent,  there  is  then an  interval, if there  be any such as a

 lucid interval.   It  may often be difficult  to prove a lucid interval,

 because it is difficult to ascertain the total absence of delusion."*

   Such  then is  the construction attached to the term lucid  inter-

 val  in civil cases, but  its signification is  narrowed down  in crimi-

 sufficiency of mind and understanding, and with the greatest ability.  NowifProvi-
 dence should afflict  you with a fever, which should have the effect of taking away
 that  sanity of mind  for a considerable time, (for it does not signify whether it is the
 disease insanity, or  a fever  that makes  you insane,) would any one say that it re-
 quired such very strong evidence to show that your mind was restored to the power
 of performing such an act as making a will—an act, to the performance  of which a
 person of ordinary intelligence is competent?' His Lordship observed upon the case
 of Mr. Cogland : he was a person who lived in Prince's street, Oxford road, and a fire
 happening in his house, he was taken out of a two pair of stairs window:  it had such
 an effect upon him, that he became insane.  He afterwards made his will in a house
 kept by a person who had the care of lunatics.   His will was precisely according to
 what he had previously  told  Mr. Winter, the bank solicitor, he had intended to make.
 He had stated to him what provisions he had made, and what he intended to make,
 and his will was in conformity with what he had so stated of his  ideas of justice.
 The  will was contested, on the ground that it was not made during a lucid interval;
 but the delegates were of opinion, that as it was a will effecting the very purposes he
 had before expressed, it was a good will—for these  reasons, he could not agree in
 the doctrine of Lord Thurlow."  In the matter of Parkinson, a  lunatic. (Albion
 newspaper of the 7th of Sept. 1822, extracted from an English paper.) In the course
 of the pleadings, it was mentioned that Dr. Powell, an eminent physician  in London,
 and for many  years secretary to the commissioners for licensing mad-houses, held
 there was no such thing as a lucid interval, (in the ordinary acceptation of the term,
 I presume.) Dr. Powell  probably holds the same opinion that Dr. Haslam does.
  " Hoffbauer, after stating  that during  a lucid interval, a lunatic ought to be held
 responsible  for his actions,  and  to  be esteemed able to make legal contracts, ob-
 serves, ' that we must not act too strictly upon this opinion, although it is generally
 correct, for however a lunatic may be in possession of his mental powers, there may
 be still an inaccurate conception of his present state remaining, at least in connexion
 with  former events.'
  "In the present complicated state of society, when the slightest error may endan-
 ger the happiness and welfare of a whole family, it is highly important to keep the
 above remark in remembrance.  An individual may greatly have recovered, and yet
 not so far as to be safely trusted with the management of his own affairs.   Upon the
 whole, therefore, Lord Thurlow's opinion is safer and more consonant with our pre-
 sent knowledge of the phenomena of insanity, than Lord  Eldon's.  The editor refers
the reader to the work lately published by Dr. Burrows, for some useful observations
upon  the criterion of recovery from insanity."—Darwall.
  * 3 Haggard's Reports, p.  575.   Wheeler and Batsford v. Alderson. 
598
MENTAL  ALIENATION.
nal ones.  Lord Hale, with reference to these, makes a distinction
between total and partial insanity;  by the first, he understands a
perfect  form of the disease, and  by the last, the presence of so
much reason and understanding as  will  make the individual ac-
countable for  his actions.   It  is allowed  by all commentators
" that the line which divides them is invisible, and cannot be de-
fined ; yet one or other of these states must be collected from the
circumstances of each particular case, duly to be weighed by the
judge and jury."*   Sir Vicary Gibbs, when  attorney-general of
England,  and trying  Bellingham  for the  murder  of the Hon.
Spencer Percival, used the following language:  " A man may be
deranged  in his mind—his  intellects may be insufficient for ena-
bling him to conduct the common affairs of life, such as disposing
of his property, or judging of the claims which his respective re-
lations have upon him; and if he be so,  the administration of the
country will take his affairs into their management, and appoint
to  him  trustees;  but at the same  time, such a  man  is not dis-
charged from his responsibility for criminal acts.   I  say this upon
the authority of the first sages in this country, and upon the autho-
rity of the established law in all times, which law has  never been
questioned,  that although a  man  be incapable of conducting  his
own affairs, he may still be answerable for his criminal  acts, if
he possess a  mind capable of distinguishing right from wrong."]
   Lord  Chief Justice Mansfield,  in his  charge to the jury on the
same trial, observed that " there were various species  of insanity.
Some human  beings were  void of  all power of reasoning  from

  * Collinson on Lunacy, vol. 1, p.  475.  In the case of Hadfield, who was tried, in
1800, for shooting at George III. in Drury-lane theatre, it appeared that his insanity
had been of some years' standing, owing to a  wound of the head received in battle—
that he had repeatedly in these paroxysms attempted murder—that a  day or two be-
fore the act, he attempted to kill his own child.  Lord Kenyon held  that as he was
deranged  immediately before the offence was committed, it was improbable that he
had recovered his senses in the interim; and although, were they to run into nicety,
proof might be  demanded of his insanity at the precise moment when the act was com-
mitted, yet there being no reason for believing him to have been at that period, a ra-
tional and accountable being, he ought to be acquitted; and  the jury accordingly
acquitted  him.  Ibid, vol. 1, p. 488.
  Hadfield shot at the King on the persuasion of Truelock, a maniac, who prophe-
sied that the Messiah should proceed from his mouth, and told Hadfield that the only
obstacle was the King, and who must first be despatched. They both became tenants
of Bedlam for life.  Hadfield was still alive in 1823, and may be at present. At the
time now  referred to, he did not evince any symptoms of insanity,  but his impa-
tience of  confinement had soured his temper, and he was constantly grumbling and
discontented.  He was cleanly and regular in his habits, and made handsome straw
baskets, which he sold.  (Sketches in Bedlam, London, 1823, p. 18.)
  t Collinson on Lunacy, vol. 1, p. 657. 
MENTAL ALIENATION.
599
their birth;  such could not be guilty of any crime.  There was
another species of madness, in which  persons were subject to
temporary paroxysms, in which they were guilty of acts of ex-
travagance : this was  called lunacy.   If these persons were to
commit a crime when they were  not  affected with the malady.
they would be, to all  intents and  purposes, amenable to justice.
 So long as they could distinguish  good  from evil, so long would
they be answerable for their conduct.    There was a third species
 of insanity, in which the patient  fancied the existence of injury,
 and sought an opportunity of gratifying revenge by some hostile
 act.  If such a person were capable, in other respects, of distin-
 guishing  right from wrong, there  was no excuse for  any act of
 atrocity which he  might  commit under this description of de-
 rangement."*
   Sir John Nicholl, in the case  of Dew v. Clark, which I shall
 hereafter notice,  takes  the  following distinction between the re-
 sponsibility of lunatics  in civil and criminal  cases.  " The  true
 criterion in these cases is, where there is delusion of mind, there
 is insanity;  that is, when persons  believe things to exist which
 exist only, or at least in that degree exist only, in their own ima-
 gination, and  of the non-existence of which, neither argument
 nor proof can  convince  them, they are of unsound mind, or as
 one of the counsel has accurately expressed it,  " it  is only the
 belief of facts, which no rational person would have believed, that
 is insane delusion."   This delusion may sometimes exist in one
 or two particular subjects, though generally there are other con-
 comitant circumstances, such as eccentricity, irritability, violence,
 suspicion,  exaggeration, inconsistency, and  other marks  and
i symptoms which may tend to  confirm the  existence of delusion,
 and to establish its insane character.   The law then does recog-
 nize partial insanity in  the sense already stated, and in civil cases,
 this partial insanity, if existing  at the time the act is done—if
 there be no clear lucid interval—invalidates the act, though not
 directly connected with the act itself;  but in criminal  cases, it
 does not excuse from responsibility, unless  the insanity is proved
 to be the very cause of the act."

   * Collinson on Lunacy, vol. 1, p. 672. Dr. James Sims states, that he has seen an
 account of a trial for a capital offence, in which the judge stated that no murderer
 could be deemed  insane, who knew that it was a man and not a dog or a cat, that
 he killed.  Dr. Sims on the contrary asserts, that no madman ever made this mis-
 take.  (Memoirs Medical Society of London, vol. 5, p. 372.) 
600
MENTAL ALIENATION.
   These are the principles by which the criminal jurisprudence
 of England and this country is guided, in cases of insanity.  The
 question to be  considered in each case, as will  be seen by the
 above quotations is,  whether the  criminal is capable of distin-
 guishing between right and  wrong.  Is not this the same as in-
 quiring whether he is a moral agent ?  And how  are we to infer
 this, and who are to be the judges of this capacity or incapacity ?
 I apprehend it must  be the jury,  and I recommend,  in  accord-
 ance with  the advice of Professor  Amos, that the medical  wit-
 ness should decline answering this question, and confine himself
 to an opinion as to the presence  or  absence of insanity at the
 commission of the act.   Let the rest be a matter  of inference,
 deduced from the nature of the case.*
   There are  some  English trials  in  addition to those  already
 quoted, which will illustrate the practical operation of the English
 law.  One was that of Earl Ferrers, who was tried  before the
 House of Lords,  in  1760, for the murder of Mr.  Johnson, his
 steward.   It was proved  that his  lordship was occasionally in-
 sane, and incapable from his insanity of knowing what he did,
 and of judging the consequences of his actions.   He had har-
 boured enmity against Johnson for some time, but dissembled it,
 so that it was not suspected,  or  at  least was  supposed  to have
 been  forgotten.  Johnson waited upon him by appointment, and
 when alone in the room with the Earl, the latter,  with great de-
 liberation, told him  his time was come; and  taking a pistol, in-
 flicted a  mortal wound.  A verdict of guilty was  found,  and the
 earl was executed.f
  Edward Arnold was indicted for maliciously  shooting at Lord
 Onslow.   He had for years harboured an idea that Lord Onslow
 was  an enemy to him, and in consequence had formed a regular,
 steady design to murder him, and had  prepared the  means for
carrying this into effect.   And yet  there was  no doubt, that to a
 certain  extent, he was  deranged.  He also was  found  guilty;
but, at Lord Onslow's request, was reprieved  and confined in
prison until his death.J
  Again, in Rex v. Offord, who was tried  at the Bury Assizes,

  * London Medical Gazette, vol. 8, p. 421.  Haslam relates some cases of insanity
in which acts of violence or suicide had been attempted, and the patients after their
recovery, stated that they had not the slightest remembrance of these acts. Certainly
such could not judge of what was right or wrong.
  t Hargrave's State Trials, vol. 10, p. 478.  i Collinson on Lunacy, vol. 1, p. 476. 
MENTAL ALIENATION.
601
(1831), before Lord Chief Baron Lyndhurst for murder, by shoot-
ing with a gun ;  the  defence  was insanity.   It appeared  that
the prisoner laboured under a notion  that the inhabitants of his
town, and particularly the deceased, were continually issuing war-
rants against him, to deprive him of his liberty  and life :  that he
would frequently, under the same notion, abuse people in the street,
and with whom he never had any dealings or acquaintance of any
kind.  In his waistcoat pocket a paper was  found, headed " List
of Hadleigh  Conspirators  against my  life;" and  among these
were the names of the deceased  and  his family.  Several medi-
cal witnesses deposed to their belief, that from the evidence they
had heard, the prisoner laboured under that species of insanity
which is called monomania, and that he committed  the act while
under the  influence of that disorder, and might not  be  aware
that, in firing the gun, his act involved the crime of murder.
   Lord Lyndhurst told the jury, that they must be satisfied, be-
fore they could  acquit the prisoner on  the ground of insanity,
that he did not know, when he committed the act, what the effect
of it, if fatal, would be, with reference  to  the  crime of murder.
The  question was, did he know that  he  was  committing an
offence against the laws of God and  nature'(   His lordship re-
ferred to the  doctrine laid down in Bellingham's case by Sir
James Mansfield and expressed his complete accordance in the
observations of that learned  judge.  The jury  acquitted the pri-
soner on the ground of insanity.*
   Lord Erskine, in his famous  speech on  the  trial of Hadfield,
proposed the  following distinction.  To absolve from criminal
responsibility, there must first be delusion, and secondly, the delu-
sion and the act must be connected.   Valuable as is this sugges-
tion, yet it must be understood, that there are cases in which no
connexion of this description can be shown, and indeed from the
nature of the disease, it is often impracticable to prove it.  We
may be satisfied as to the  insanity (partial or total) and yet not
be able to trace its union with the act that constitutes the subject
of investigation.   The difficulty is increased when we take into
account the form of insanity which most commonly leads to the
perpetration of  acts  of  homicide.   It  is that of melancholy,
where  the  mind  broods  often in silence over a single idea, and

             * Carrington and Payne's Reports, vol. 5, p. 168.
   VOL. I.                      51 
602
MENTAL ALIENATION.
that idea may be his own destruction, or the destruction of others.
Its  similitude to the  effects of passion, and indeed of deliberate
crime, is often so near, that we  can  hardly appreciate  the  dif-
ference.   " Of methodical madness, of systematic perversion of
intellect," says  Haslam, " the multitude can form  no adequate
conception, and cannot be persuaded that insanity exists  without
turbulent expression, extravagant gesture,  or  fantastic  decora-
tion."
  What can be more alike than  the anger of the  sane  and  the
insane ?   What a similitude between the maniac and  the  habi-
tually passionate, between the melancholic  and  him who  habi-
tually  broods over his  malignant and revengeful conceptions.*
In fine, if madness were not stamped on its front, would  not  the
following be  ranked among the foulest  and  most deliberate mur-
ders ?  It is  taken from  the mouth of the  maniac  himself, as
stated  to Dr. Haslam.   " The  man whom  I stabbed, richly  de-
served it.  Pie behaved to me with  great violence and cruelty ;
he degraded my nature as a human being; he tied me down,
handcuffed me, and confined my hands much  higher than  my
head, with a  leathern thong;  he stretched  me  on a bed of tor-
ture.   After  some days he released me.  I gave  him warning,
for I told his wife I would have justice of him.   On her commu-
nicating  this to him, he came to me in a furious passion, threw
me down, dragged me through the  court-yard, thumped me on
my breast, and confined me in a dark and damp cell.  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, prevailed on 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
me.   For  some time afterwards the same friendly intercourse
was maintained between us, but as he was one  day unlocking
  * In speaking of Carlos, son of Philip of Spain, Sir James  Mackintosh remarks,
" The clouds which always darkened his feeble reason might sometimes quench it.
The subtle and shifting transformations of wild passion  into  maniacal disease, the
return of the maniac to the  scarcely more healthy state of stupid anger, and the
character to be given to acts done by him when near the varying frontier which sepa-
rates lunacy from malignity, are matters which have defied all the experience and
sagacity of the world." (History of England, vol. 3, p. 36.) 
MENTAL ALIENATION.
603
his  garden-door, I seized  the opportunity, and  plunged the knife
up to the hilt in  his back."*
  It is from long  continued  and anxious reflection  on the diffi-
culties which thus present themselves to the consideration of the
medical witness, that I am led to withdraw much of the objection
that I  have felt  and expressed against the dictum of the English
law on this  subject.    There must be some rule  to  guard  the
sacred interests of society; something to  repress and keep in
check, that tendency to " shed  the blood  of his fellow," which
unfortunately is  too common, and at the same time, humanity
forbids that the  horrid  spectacle should be permitted of taking
away the life of the insane by judicial process.   Let the question
put byr Lord Lyndhurst, be presented to every jury;  did the pri-
soner know, that  in doing the act, he offended against the laws of
 God and man ?   Let the  following remarks of the Scotch Law
Commentators on this subject, be  kept in  mind, and with the ac-
 knowledged mildness of  our laws, and the unwillingness to con-
 vict capitally, I  feel  a  strong conviction that ho practical injus-
 tice will be done.  But to aid in effecting all this, it is very ne-
 cessary that the medical witness  should have every facility al-
 lowed him for studying the nature of the  case, and that its his-
 tory should be well ascertained.  Need I add that juries should
 be carefully instructed  as to this particular form of insanity.
   " Whether it  should  be added to the description," says Baron
 Hume, " that he must have lost all knowledge  of good and  evil,
 right and wrong; this is a more delicate question, and fit perhaps
 to  be resolved differently according to the sense in which it is un-
 derstood.   If it be put in  this  sense, in  a case, for instance of
 murder: did the  pannel (prisoner) know that murder was a
 crime ?   Would he  have answered on the question that it was
 wrong to kill a  neighbour 1  This is hardly to be reputed a just
 criterion of such a state of soundness, as ought to make a  man
 accountable in  law for his actions.  Because it may happen, a
 person to answer in this way, who yet is  so absolutely mad, as
 to have lost all  true observation of facts, all understanding of the
 good or evil intentions of those who are about him, or even the
 knowledge of  their  persons.  But if the  question be put in this
 other and more special sense, as relative to the very act done by
* Haslam on Madness, p. 169. 
604
MENTAL ALIENATION.
the pannel, and  the  particular situation  in which he conceived
himself at that time to stand, did he at the moment of doing that
thing, understand the evil of  it? was he impressed writh the con-
sciousness of guilt and fear of punishment 1  It is then a pertinent
and  material  question, but which  cannot to any substantial pur-
pose be answered, without taking into consideration the whole
circumstances of the situation.  Every judgment in the matter of
right and wrong, supposes a case or state of facts to which it ap-
plies, and though the pannel  have that vestige  of  reason, which
may enable him to answer  in the general  that murder is a crime,
yet if he cannot distinguish his friend from his enemy, but con-
ceive every thing about him  to be the reverse of what it really
is, and mistake the illusions of his fancy for realities, with respect
to his own condition and that of others,  ' absurda et trislia sibi
dicens  atque fingens,' these  remains of intellect are thus of no use
to him towards  the  government of his actions, nor in any way
enable him to form a judgment upon any particular situation, or
conjuncture, of what is right or wrong with regard  to it.   Pro-
ceeding as it does on a false case or conjuration  of his own fancy,
his judgment  of right  and wrong as to any responsibility that
should attend  it, is truly the same  as none at all.   It  is therefore
only in this complex and  appropriated  sense,  as relative to the
thing done and the situation of the pannel's feelings and conscious-
ness on that  occasion, that  this inquiry concerning his  intelli-
gence  of moral  good and evil is material, and not in any other or
larger  sense."*
   Alison observes, " few men are  mad about others or things in
general; many about themselves.   Although, therefore, the pan-
nel understands perfectly the distinction of right and wrong, yet
if he  labours, as is generally the case, under an illusion and de-
ception as to his own particular  case, and  is thereby disabled
from applying it correctly  to his own conduct,  he  is  in that state
of mental alienation which  renders him not criminally^ answerable
for his  actions."!

  * Hume's Commentaries, vol. 1, p. 24, 25.
  t Alison's Principles of the Criminal Law of Scotland, p. 645.
  The legal  reader will readily perceive the difference  between the English and
Scotch opinions on this subject.  Sir  James Mansfield held that Bellingham was ac-
countable, because he knew murder was a crime, and could distinguish right from
wrong.  " On this case," says Mr.  Alison, " it may be observed, that unquestionably
the mere fancying a series of injuries to have been received, will  not serve as an ex-
cuse for murder, for this plain reason, that supposing it true that such injuries had 
MENTAL alienation.
605
  I am aware, that in expressing the above opinions on the sub-
ject of  criminal responsibility, I do not agree with  many of the
ablest and  most experienced of the profession, and the  reader
should distinctly understand this.  He should  also  be  apprised,
that with all the cautions I have added, the fearful consequence
may,  in some cases, through mistake as to the absence of insanity,
be a judicial murder.  Considering the difficulties that  envelope
the subject, and the possibility that I may be  wrong in what I
have  advanced, it is of course  my indispensable duty to  give  a
full and fair statement of the opinions of those who  object to our
law as  it stands at present, and who conceive that its result has
been in many cases, and  will be hereafter if continued to be thus
applied, to punish the insane as criminals.
   The  argument urged, as far as I  understand it, is briefly this:
If insanity is proved to have existed, its  presence should absolve
from  responsibility.  The disease is so intricate in  its nature, its
symptoms  are  so  liable to  be  mistaken, that  the hazard is too
great to punish an individual in whom we have once recognized
its existence, merely because he seemed at the time to be rational.
The act itself  is a manifestation of insanity.   Why then intro-
duce  the doctrine of his ability of judging between  right and
wrong, which, it  must be  conceded, can only be  inferred from
 conversation and conduct ?  Such,  I believe, is  the  general  train
of reasoning adopted.   But it will  be more satisfactory to quote
the exact words of one of the ablest advocates  of this opinion.
   " If it be true, that there is none  of the phenomena of  yet im-
perfectly understood human nature, over which hangs a thicker
 veil to  the general eye, than the phenomena of mental aberration,
what are we to think of making distinctions, as if all were clear.
between  partial and total insanity, and drawing the line of re-
 sponsibility with perfect  confidence?  We humbly but earnestly
 suggest, that instead of deciding for responsibility in partial in-
 sanity, it is both more just and more merciful to doubt as to that
essential, when disease of mind, to a palpable  and considerable

been received, they would have furnished no  excuse for the shedding of blood; but
onThe other hand such an illusion as deprives the pannel of the sense of what he did
was wrong amounts to legal insanity, although he was perfectly aware that murder
to eenerTl was a crime, and therefore the law appears to have been more correctly
 ■ if H„wn iTthe case of Hadfield, than in this instance." (Edinburgh Law Journal,
lol lT 524Thf Seopinions many physicians in England, that Bellingham
was insane when he murdered Mr. Percival.
                                 51* 
606
mental alienation.
amount, is proved.   It is more just and more merciful, in such a
case, to take care of the accused and of  society by his  confine-
ment, than to run the risk of putting  to death  an irresponsible
agent.  Insanity, as far as we have the means of perceiving, is a
bodily disease;  in  other words, its visible  and invariable condi-
tion is a morbid action of the brain, either structural or functional.
A definition of  the effect,  in feeling and manifestation, of a dis-
eased  brain, which shall be sufficiently comprehensive to include
all the varieties of insane  affection, is scarcely to  be looked for;
yet definitions are  constantly sought  after in courts of law, and
the whole value of a witness's evidence is often made to turn on
its relation to a standard, which is in itself the merest assumption.
It would  be a safer rule for courts of law to direct  their atten-
tion to the proof generally of diseased manifestations of the  intel-
lect and  feelings; and when these  are  undoubted, to  presume
irresponsibility, because the  contrary cannot be  made  sure  of,
and the balance of probability is greatly on the side of irrespon-
sibility.   If mercy is often extended to youth, to seduction, even
to great  provocation, how much more ought it  to shelter disease
of the mind when  clearly established?  If it be true, and no phy-
 sician denies it, that to diseases of the inflammatory class it is
impossible to prescribe  limits, or to predict that new and aggra-
vated symptoms shall not suddenly follow in  the course of  the
 diseased  action, is it not presuming  too much to  decide that in-
 flammation of  the brain, a usual cause of insanity, has known
 boundaries, and shall not  suddenly extend from partial to produce
total insanity ?  We feel assured  that no one conversant with insa-
 nity will deny the fact, that the  insane, however partially, are not
 safe from sudden paroxysms and aggravations  of symptoms."*
    In applying this argument, cases are adduced which  it will be
 useful to review.   Out of a  great multitude,  I  will principally
 select such as  have excited peculiar interest of late years in dif-
 ferent countries.
    Robert Dean was a young man of weak intellect and  strong
 animal passions.   He became warmly attached to a female su-
 perior in station to himself, and was rejected.   This caused un-

    * " Observations on the degree of knowledge yet applied to the plea of Insanity, in
 trials for crimes."  (Edinburgh Law Journal, vol. 1, p. 542.)
    The paper from  which this is  a quotation, was written by  James Simpson Esq., of
 Edinburgh, and is republished in the appendix to his work on Popular Education, 
MENTAL  ALIENATION.                    607
governable feelings of revenge, and  he determined on her mur-
der.  He had at the same  time some religious ideas, and it  oc-
curred  to him, that  by putting this woman to death, he would
send an unprepared sinner into eternity.   But the impulse to shed
blood had  taken irresistible  possession  of him.   There was  a
child of which  he was very fond  and had often caressed, who
he  concluded, had fewer  sins  to  answer for, and this he deter-
mined  should be  the  victim.   He murdered it, and then gave
himself up to justice.   He was tried, condemned and executed
in the county of Surrey,  (England,)  in 1819.   " The act, itself a
sufficient proof of insanity, was strengthened by insane notions
and actions, and absolute raving even on the scaffold."*
   John Howison, aged 45 years, a sturdy  beggar, but formerly
a hawker  of small wares, was tried before  the High Court of
Justiciary  in Scotland,  December  31, 1831,  for the murder of
 the widow Geddes, on the 2d  of the same month.   For a fort-
 night before the fatal act, he was wandering round the country,
 and no evidence of the state of his  mind during that time  was
 obtained  before  the trial.   He entered the  village where  Mrs.
 Geddes (and who was  an  aged  woman) resided, with  a black
 handkerchief covering the lower part of his face, (which it  was
 his constant practice so to wear,) a stick in his hand, and a book
 hanging from his wrist.   He  asked  alms from  several  persons,
 without success; was seen  to enter the cottage, and  in a very
   * The melancholy results of fanaticism with which the history of almost every age
 and every nation is 6o rife, are but other modifications of this homicidal insanity.
 Weak, ignorant or ill-balanced minds are overcome by the ravings  of impostors or
 monomaniacs; the feelings  and affections are crushed by what they are  taught and
 verily believe to be now their duly, and they pursue this to the wildest verge of act.
 inw and suffering.  Thus in Denmark, during the middle of the last century, a large
 number of individuals were found, who imagined that by committing premeditated
 murder, and  being  afterwards condemned to die, they  would be the better able, by
 public marks of repentance and conversion as  they went to the scaffold, to prepare
 themselves for death and work out their salvation. They generally selected children,
 to avoid sending any one out of the  world in an unprepared state.  Capital punish-
 ment of course could not stop this.  It was what they wished for.  The King issued
 an ordinance, directing that those who were guilty should be branded on the forehead
 with a hot iron and whipped, and then confined for life at hard labour in the House
 of Correction.  Every year, on  the day of their crime, they were to be publicly
 whipped. (Quarterly Review, vol. 12, p. 219.  London Magazine, 1768.)
    I need hardly mention  the frequency of suicide, resulting directly as a  conse-
 quence  of these wild imaginations, while on the boundary line between crime and
 insanity, is that indefatigable spirit of slander which pursues every person who " be-
 lieves a little more or a little less" than the prevailing object of excitement, in his
 character and  his means of subsistence. Such men are only prevented  by the fear
 of consequences, and the  freedom  of our institutions, from  becoming  inquisitors.
 They have all the elements of monomania within them, and I am much mistaken if
 it be not in many, the termination. 
608
MENTAL  ALIENATION.
 brief space to come out again hurriedly, shut the door after him,
 and run from the village, quickening  his pace when he thought
 himself observed.  One witness heard the sound of a blow, when
 Howison was in the cottage.  He  had murdered her by striking
 on the head with the sharp edge  of  a spade, and thus dividing
 it nearly in two.
   He was  apprehended the next day, some two or three miles
 from the place,  and when taken, denied all knowledge of the
 murder, and said he had come from Glasgow.  It did not appear
 that he  had taken a single article from  the  cottage, although
 there was some money open in a cup.
   Howison was  visited by Dr. Spens  and Mr. Watson several
 times before the  trial, but they could  discover no indications of
 insanity—no hallucination—no  disorder  of intellect.   He  ap-
 peared, however, to be of low and weak intellect, and to be pos-
 sessed of a great deal of cunning.
   On the trial, it was proved by a woman with whom he had
 lodged six  years  previously, that  when she first  knew him he
 was a hawker of small wares, clean in his person, and like other
 people.   He then left her to go to England,  where he remained
 till within the two last months.  His appearance now was that
 of a beggar, filthy in his person, and peculiar in his mind.   He
 said that he had had a fever in England ; but no correct account
 of this could be obtained.   She mentioned some of his peculiar-
 ities.   He  was solitary  and silent; his only companions in his
 lodgings  being a  cat and a child, and  he fed both before eating
 his own  meal.   He was very superstitious, salting his bed and
 head, wearing a Bible about his wrist, or  round his  head.   He
 used to sit  brushing away the flies with his hand for hours to-
 gether, when there were no flies, and  his  landlady told him so.
 He had an almost incredible appetite for food, usually devouring
 half a peck of potatoes at a meal, with one or two pounds of
 bullock's liver, almost raw and  generally  filthy.  After this, he
 would  eat  two or three pence worth  of bread.  He habitually
 wounded his hands, wrists and arms with needles and pins ; and
 if he  went to bed without his weapons, he rose  and procured
 them.  In this state, he would sally forth,  brandishing a stick
 and playing extravagant  tricks, till the neighbours interfered.
 He would  suck  the blood  from his wrist, after every two or
three  mouthfuls  of his food, and when asked why he ate his
 meat so raw, said he liked the blood. 
MENTAL ALIENATION.
609
    He had taken a fancy to become a Quaker some weeks before
 the murder, and attended the meetings, but paid no respect to the
 worship, muttered to himself, and pricked his body with pins and
 needles.   On one  occasion,  he violently demanded  instant  ad-
 mission into  the society.
    Dr.  Spens and  Mr. Watson gave  testimony in the manner
 stated above; but  the  latter added, that the prisoner had  told
 him that  there was occasionally pain  and uneasy feeling  in  his
 head.
    For the defence, Drs.  Mackintosh,  Scott  and Alison, were
 witnesses.   Some of them do not  appear to have examined the
 prisoner ;  but from the testimony adduced, they agreed in opinion,
 that as there was  every indication of  previous  insanity while a
 lodger with  the  witness already noticed, there was probably in
 this case a morbid  determination to acts of  violence.   The insa-
 nity consisted in a sudden morbid impulse to commit murder.  Dr.
 Mackintosh  considered the  desire to change his religious belief
 as a further proof, while  the  cunning  evinced,  with  the subse-
 quent denial, were asserted to be altogether consistent with  in-
 sanity.  The  absence of motive in this instance was also dwelt on.
   Howison was convicted, and  an  application  to the  Home De-
 partment,  for the privilege to  adduce additional proofs of his  in-
 sanity, was denied.  These consisted chiefly in  unprovoked and
 boisterous acts of violence, immediately previous to the murder.
   The evening before his execution he stated, that he had com-
 mitted eight murders, not one of which had ever been heard  of,
 or could  have occurred without being  known.  His voracious
 appetite continued until his death.*
   I will only  add to these a case which  has  excited great inter-
 est in France, the country where it occurred.
   Louis Papavoine was born at Mouy,  Department of the  Euse,
 in 1784.   His father was a woollen manufacturer, and gave his
 son a liberal  education.   At  an  early age, he was  destined  for
 the  employment of a clerk, and accordingly, in 1804, was  re-

  * Edinburgh Medical and Surgical Journal, vol. 38, p. 51.  Medico-legal cases of
 Homicide, by Alexander Watson, Esq.  Edinburgh Law Journal, vol. 1, p. 532.
 Different views of this case are taken in the respective works quoted.  Mr. Watson
is strongly of opinion, that the insanity of Howison at the lime of the act, was not
 proven. He persisted in denying the murder to his death ; and in all the interviews
between him and the law agent and clergyman, no indications  of insanity were dis-
covered in his conduct. 
610
MENTAL  ALIENATION.
ceived as an extraordinary  one in  the navy department.  He
rose gradually, through good  conduct and  attention to business,
to the office of first clerk  at  the port of Brest.   Although very-
faithful, yet he was observed to be unsociable and melancholic—
much addicted to solitary walks in unfrequented places.   He had
no confidant—but in ordinary conversation, his  ideas were cor-
rect and sensible.  One of his fellow  clerks deposed, that during
the last year of his clerkship, Papavoine complained that an in-
dividual appeared to pursue him in  his sleep, and threatened to
kill him, but that when he awoke he saw no one.  This condition
of mind continued for ten days, after which nothing remarkable
w-as observed.
   His father died in 1823, and as his  mother did not seem able to
superintend the establishment, he determined to undertake it him-
self.  He accordingly obtained his dismission.   Difficulties, how-
ever, soon occurred.  The manufactory had been in the habit of
furnishing clothing for the troops, and notice was  received that
the contract would not be renewed.  The pecuniary situation of
the family became in consequence very critical.
   Papavoine now seemed  to  repent  having quitted his  employ-
ment, and made some fruitless  attempts to recover it.   Their
failure seemed to aggravate the severity of his temper  and  the
gloominess of his appearance.   He one day appeared before his
mother and addressed her, saying, " Mother, my father  is  not
dead.  I have the proof in this  paper.  They sometimes bury
persons who are alive."  Alarmed at this, she  appears  to have
avoided taking  her meals with him, although she continued re-
siding under the same roof.
   In this  state of things,  at  the  end of Sept.  1824, Papavoine
complained of illness.  A physician who  was  consulted, found
some symptoms of fever.   He  prescribed an emetic with good
success, and further directed exercise, and particularly an excur-
sion.  P. complied, and proceeded to Beauvais,  where he had
relatives  and some  commercial  connexions.  His misanthropy
did not, however,  desert' him here;  he was habitually taciturn
and sad, although  his conversation, when he indulged in it, was
correct.  The only peculiarity noticed was a question to his re-
lative, whether his father and brother were really dead.  " I have
a paper here (said he) which  contradicts it."  He also complain-
ed of having  a mortal enemy at Mouy. 
MENTAL  ALIENATION.
611
  The day after his arrival, (October  3,) he received an unex-
pected letter from  his mother, stating that the  Department of
War had agreed to a renewal of  part  of  the contracts, and for
which he appears  to have been constantly applying.  As  some
further negotiations were necessary to  complete these, he deter-
mined to proceed to Paris.   He borrowed money to pay his ex-
penses, and  took with  him the baggage he had brought from
Mouy, writing  at  the  same  time to his mother for additional
articles.  Among his baggage brought  from home, and taken by
him to Paris, were two common table knives.
  On the 5th of October, he  alighted at a hotel in Paris, visited
his  mercantile correspondents, and arranged the mode of com-
pleting the necessary formalities of his  contract.  From this day
until the 10th, he appears to have kept  himself very retired—at
least he was not noticed by any one. At the time last mentioned,
after taking  a slight repast, he directed  his steps to the Forest of
Vincennes.
  In  this place, a female was walking with her two  boys, one
aged  five, and the other six years of age.   A young woman, also
walking, noticed the children, and requested permission to caress
them.  Papavoine at this instant passed by them, took off his hat,
bowed, and proceeded  on.  The young woman also pursued her
walk.  She  was encountered by P., who  addressed her.  " Do
you  know whose  children you were caressing?"  She  replied,
" We may caress children, although we do not know whose they
are."   He abruptly left her,  and  appears to have  gone imme-
diately into an adjacent shop, where he inquired for a case knife.
They refused to sell any, except  by the dozen; but on his offer-
ing an advance in the price, a single one wras sold to him.
  He returned to the  walks, and with  a pale  countenance and
haggard aspect, encountered the  mother.   " Your walk is soon
finished," said he ; and bending his body over one of the children,
as if  to embrace it, plunged his knife into  its breast.  Alarmed
with its shriek,  though  ignorant of the cause, she struck him with
an umbrella which she had in her hand.   He did not heed this,
but immediately struck the  second in  an equally fatal manner.
Both  died almost instantly.   Papavoine escaped into the wood;
nor was it until some hours had elapsed, that he was arrested by
a gendarme.  He  had, a few minutes previous, emerged near
where a soldier  was  walking,  of whom, after examining his 
612
MENTAL ALIENATION.
  clothes, he inquired whether they were not soiled.  He also asked
  the way out of the forest.  He was identified by the mother, and
  gave up his name.
    On his examination, he denied having committed the crime,
  and persisted in this for upwards of a month;  at the end of which
  period, he declared that he had some important  disclosures to
  make, but could divulge them only to two royal princesses. His
  application to see them was refused; and he  then  declared that
  he had committed  a mistake in murdering these children, having
  intended to destroy those of the Duke de  Berri.   (The Duke had
  been assassinated previous to this.)
   This audacious statement was considered as an artifice, to per-
  suade the public of his insanity.  About  this  period, also, he be-
  came very furious in his  prison;  got  out  of his bed at  night;
  searched for a knife, and  even attempted  to set fire to his bed.
  His  keeper  having momentarily left a door  open  to admit the
 fresh air, he escaped, and rushed into a room containing several
 prisoners; snatched a  knife in the hands of one of them ; gave
 him three wounds, and was only prevented  from murdering him
 by the interference of those present.  The public prosecutor saw
 in all this, " a criminal who sought in new  crimes a justification of
 previous guilt."  He was tried on the 25th of February, 1825, on
 two indictments—for murder, and for an attempt to kill.
   At  the bar, he was  calm, though  his  countenance bore the
 marks of sadness.   On  being interrogated, he confessed the mur-
 der, but said he was not then himself.  He repelled the idea  of
 premeditation—said that he did not know the infants at all; and
 urged, that if he had designed to kill, he would have carried with
 him  the knives brought from Mouy.  Labouring under insanity,
 he committed the act; but its execution being completed, he be-
 came conscious of its  enormity, and endeavoured to escape.
  It also appeared on the trial, that the father  of Papavoine had
 been subject to attacks of mania during his  lifetime, and that he
 was  generally a morose, melancholy man.
  As to the attack on  the young man, the criminal stated that he
 was  then in a state  of fury,  irritated by his confinement  and by
 bad treatment.  The keeper of the prison deposed that Papavoine
 was  sometimes in a most fearful fury; his hair literally bristled
—he had never seen a person's hair in such a  state; his counte-
nance was highly inflamed,  and he actually frightened the sol- 
MENTAL ALIENATION.
613
diers who surrounded  him.  Although believing at first that this
was  intended as a deception, the witness had been finally con-
strained to consider it  as real disease.
  The public prosecutor, in his argument, endeavoured to show
that the present was a case of ferocity—against the human race
itself—a thirst  for blood, which is sometimes seen, although for-
tunately the instances are rare. He aptly adduced examples from
the history of revolutionary France.
  M. Paillet, the advocate of the  prisoner, dwelt much on the
evidence of his previous illness, as indicative of a disordered
state of mind.   His misfortunes, his  conversation with his mo-
ther—with his relatives at  Beauvais—his hallucination concern-
ing a person persecuting him and threatening his life, and  the ap-
parent want of premeditation in the murder,  evidenced  by the
rapidity of his actions, all were urged in his favour; and  the ad-
vocate expressed his decided  conviction that this was a  case of
monomania without  delirium, as described by Pinel, in  which the
unfortunate subject is often hurried to commit atrocious crimes,
from  the current of ideas  by which he is  unwillingly haunted.
Such persons often  take strong aversion, and even hatred  against
individuals in an instant, and without any assignable cause. Thus
parents  have sometimes murdered their children, and the wife
her husband.  Might he not then, at the moment of his  several
crimes, have been labouring under the access of fury incident to
this disease ?  Let  him be confined, so as  to  guard the public
from further violence;  but  do not send him to the scaffold.
  The jury, after retiring for half an hour, brought in a  verdict
of guilty on both indictments.  He was condemned to death, and
executed on the 19th of March.*
  I might adduce a multitude of similar  examples, differing occa-
sionally in  some peculiar  features, but  all turning on the point
whether the insanity has been sufficiently proved at the period of
the commission of the act, or whether the  previous indications
were  sufficiently strong to  afford a decided presumption of its
continuance to  the time in question.  But my limits forbid, and I
will hereafter add  additional references for those who may be
desirous of pursuing the subject.
  As to the  cases  that have been related, I will observe, that

       * Causes Celebres du dix-neuvieme siecle, vol.  1, p. 203 to 290.
  VOL. I.                      52 
614
MENTAL ALIENATION.
they are just such as intelligent persons, (medical as well as non-
medical) might differ about, on the simple point of the  presence
or absence of insanity.  Howison's, for example, I may concede,
was an extreme one, yet his is not to be a rule  for  subsequent
decisions.   In the same volume which  contains  the narrative of
his trial, is another, of an individual  guilty of the murder  and
robbery of his  aunt, and yet, though condemned, he received the
royal mercy, on a representation of his weak  state of mind.  It
is evidently impracticable to  lay down a rule of exemption on
the ground of insanity, when that insanity passes through so
many  varying shades, (from  the stupidity, for example, of Hoff-
bauer, to the raging mania of authors,) that before we have com-
pleted it, we shall  find that we have introduced the effects of vio-
lent passions as a species of temporary insanity.   The philosopher
may justly deem them so, but the safety of civil society requires
that they should be considered as crimes.
   These remarks bring  me to  the  last point to  be considered
under this section.   I refer  to  the subject of moral insanity de-
scribed on a previous page, and to the definition of which I must
beg the reader to recur.
   As announced by Dr. Prichard, it consists in a disorder  of the
moral affections and propensities, without any symptom of illu-
sion or error  impressed  on the  understanding.*  He justly ob-
serves, that no such disorder has been recognised in the English
courts of judicature, or is it even in general admitted by English
medical writers.   If however,  such  a  disease  does exist, our
legislators and judges should be apprized of it.
   The  idea of such a state, was first  advanced  by Pinel,  who
characterized it by the name of manie sans, delire, and observed,
that persons labouring under it, appear to be governed by a sort
of instinctive madness, as if the affections alone had suffered in-
jury.   Esquirol, when he wrote  his valuable articles for the Dic-
tionary of Medical Sciences, did not recognize this species, but

   * Dr. Gooch, without reference, however, to the present subject, denies that delu-
 sion is always present in insanity, and in illustration mentions the  case of one of
 his patients.  She was a wife, and supposed her husband  to be unfaithful to her,
 which was probably the case.  She brooded over this and became insane.  When
 she recovered she was still of the same opinion.  These are all the  facts furnished
 to «s by Dr. Gooch.  Now she certainly was not insane on the subject of  her hus-
 band's  infidelity.  But was she not so on some other points ?  If not, what consti-
 tuted her insanity ?  This case is mentioned in the Quarterly Review, vol. 41, p. 180. 
MENTAL ALIENATION.
615
he has since avowed  having met with  several cases  in  lunatic
asylums, and is convinced of its distinct character.*
  The dawnings of this melancholy affection, and the struggles
of the understanding  with it, will  best  be undersood by the fol-
lowing quotations from Marc:
  " In a respectable  house in Germany, the mother  of a family
returning home  one  day, met a servant, against whom she  had
no cause of complaint, in the greatest  agitation; she begged to
speak with her mistress alone, threw herself upon her knees, and
intreated that she might be sent out of the house.  Her mistress
astonished, inquired  the  reason, and learned that whenever this
unhappy servant undressed  the little child which she nursed, she
was  struck with the whiteness of its skin, and  experienced  the
most irresistible desire to tear it in pieces.  She felt afraid that
she could not resist the desire, and preferred to leave the house.
   " This circumstance occurred about twenty  years ago in the
 family of  M. Le Baron Humboldt, and this illustrious person
 permitted me to add  his testimony.
   " A young lady whom I examined in one of the asylums of the
 capital, experienced  a violent inclination to commit homicide, for
 which she could not  assign any motive.  She  was rational on
 every subject, and whenever she felt the approach of this dread-
 ful propensity, she intreated to have  the straight-waistcoat put
 on and to be carefully guarded until the paroxysm, which some-
 times lasted  several  days, had passed.
   " A distinguished chemist and a poet, of a disposition naturally
 mild  and  sociable, committed himself a prisoner in one of the
 asylums of the Faubourg St. Antonie.  Tormented by  the de-
 sire  of killing, he often prostrated himself at the foot of the altar,
 and  implored the divine assistance to deliver him from  such an
 atrocious propensity, and of the origin of which he could  never
 render  an account.    When the patient felt that his will  was
 likely to yield to the violence of this inclination, he hastened  to
 the head of the establishment, and requested to have his thumbs
 tied  together with a ribbon.  This slight  ligature was  sufficient
 to calm the  unhappy R. who, however, finished by endeavouring
 to commit homicide  upon  one of his  friends, and perished in a
 violent fit of maniacal fury."f
   • Note de Monomanie homicide, par M. LeDocteur Esquirol. Paris, 1827.
   t Dr. Prichard, art. Soundness and Unsoundness of Mind, in Cyclopaedia of Frac
 tical  Medicine. 
616
MENTAL ALIENATION.
   Other cases of a similar description, are related by French and
 German writers.   In some, the impulse to commit murder was
 only felt, while in others, as in mothers with their young infants,
 the desire at last  became irresistible  and they destroyed  them.
 Nor is this confined to the puerperal period, when we might pos-
 sibly suspect the  presence of its peculiar insanity, but children
 of every age have been thus destroyed, both by fathers and mo-
 thers.
   The following is one of  the  most dreadful on record, for  the
 atrocity of the crime, and as it is generally recognized as belong-
 ing to this division, may be here stated.
   Henriette Cornier, aged 27 years, a domestic servant, was of
 a mild and lively disposition, always full  of gaiety and vivacity,.
 and remarkably fond of children.  In the month of June, 1825, a
 singular change occurred in her character.  She became silent,
 melancholy, absorbed in revery, and was soon dismissed from
 her service.  She fell gradually into a  permanent  stupor.  Her
 friends were alarmed, and suspected that she was pregnant, which
 however was not the case,  but they could never obtain from  her
 any account  of the cause of her dejection, though she was fre-
 quently interrogated.   In the month of September, she made an
 attempt to drown herself in the Seine, but was prevented.
  In the following October,  her  relatives procured her employ-
 ment at the house of Dame  Fournier; but her conduct appears to
 have continued as before.
  Without any change  from this, she, on the 4th of November,
 committed the following act.  She was desired by Dame Four-
 nier, who went from home  in the  morning, to  prepare dinner,
 and to go  to a neighbouring shop kept by Dame Belon, to buy
 some  cheese.  Henriette had frequently gone  to this  shop, and
when there always caressed a beautiful little girl, nineteen months
 old, the child of Belon.  On this day she went, and displayed  the
greatest fondness  for it, and  persuaded the mother, who was at
first rather unwilling, to let her take it out for a walk.  She im-
mediately took  the child to the house of Dame Fournier, then
empty, mounted the  common staircase with a large knife which
she took from the  kitchen, and stretching the child across her own
bed, with one stroke cut off its head.  This she placed by the case-
ment, and  then put  the body on the floor near to it.   All these
proceedings occupied about a quarter of an hour; and during this 
MENTAL ALIENATION.
617
 time, Henriette remained perfectly calm.   Dame Belon presently
 came to seek for her child, and called her from the bottom of the
 stairs.  " What do you want ?" said the latter, advancing on the
 corridor.  « I come to seek my child."   " Your child is dead,"
 replied Henriette with  perfect  coolness.   The  mother alarmed,
 became more earnest, and she  again pronounced the  words,
 ;< Your child is dead."  As Belon forced her way into the room,
 Henriette  took the  child's  head from the casement and threw it
 by the open window into  the street.  The mother rushed out of
 the house struck with horror.  An alarm was raised; the father
 of the child and officers of justice .with a crowd of persons entered.
 Henriette was found sitting on a chair near the body of the child,
 gazing  at it, with the  bloody knife by her, and her hands and
 clothes covered with blood.  She made no attempt for a moment
 to deny the crime—confessed all the circumstances, even her pre-
 meditated design, and the perfidy of her caresses, which had per-
 suaded the unhappy mother to entrust to her the child.  It was
 found impossible to excite in her the slightest emotion of remorse
 or grief:  to all that  was said, she replied with indifference, " I in-
 tended to kill the child."
   Adelon, Esquirol  and Leveille,  were appointed  to  visit her.
 After several interviews,  these eminent physicians declared that
 they could discover  no  proof of  insanity; yet they were  not de-
 cided as to the non-existence of such disease.
   Henriette was taken to the  Salpetriere.  There she was re-
 peatedly inspected by the physicians, whose last report concludes,
 that from February 25, to June 3, they "had discovered merely a
 dejection of mind, slowness in the manifestation  of thought, and
 profound grief:  secondly, that  the  phenomena  are explained by
 circumstances, and therefore are no proof of derangement; and
 thirdly,  that the opinion as to her sanity is  materially affected by
 facts relating to her previous history.  If the allegation is proved,
 that long previous to  the  committal,  her habits, and her whole
 character, were changed:  that  she had become, at a particular
 period,  dejected, gloomy, taciturn,  restless, prone to revery, and
 had occasionally attempted suicide, it would  seem  that her pre-
 sent state is not the result of existing circumstances, since it has
 lasted a year before the commission of the act, in wdiioh case the
opinion as to her sanity would be materially altered,"
  On the trial, M, Esquirol and  several  other  physicians w^ere
                             52* 
618
MENTAL ALIENATION.
 examined. Their opinions leaned generally towards the presence
 of real derangement.  The Advocate-General treated the exist-
 ence of monomania as a mere fancy, invented for the purpose of
 paralysing the hands  of justice.  The  jury brought in  a verdict
 that Henriette had committed murder voluntarily, but without
 premeditation,  and she was condemned to perpetual  imprison-
 ment with hard labour, and to be branded.   She heard the sen-
 tence without betraying the least emotion.
   It is a remark of Esquirol that occasionally moral and physi-
 cal causes can  be assigned for  this disordered state.  In two
 cases, it  resulted from  the  change produced by  puberty; but in
 many others, it seems  to be founded on imitation.   The fatal pro-
pensities are  excited by the description of criminal  actions.   In
several  cases where our author was consulted,  it was evident,
that females of respectable standing, who were strongly impressed
by the story of Henriette's murder, and the horror excited, had
been seized with a similar propensity.
   The following are enumerated by Dr.  Prichard, as distinguish-
ing characters of this form of insanity, deduced from his own ob-
servations and those of Esquirol.
   " 1. Acts of homicide  perpetrated,  or  attempted, by  insane
persons, have generally been preceded by other striking peculiari-
ties of action, noted in the conduct of these individuals, often by a
total change of character:
   " 2. The same individuals have been discovered, in  many in-
stances, to have attempted suicide, or  to have expressed a wish
for death; sometimes they  have begged to be executed  as
criminals:
   " 3. These acts are  without motive;  they are  in opposition to
the known influences of all human motives.  A man, known to be
tenderly attached to them, murders his wife and children—a mo-
ther destroys her infant:
   " 4. The subsequent conduct of the unfortunate individual, is
generally characteristic of his state: he seeks no  escape or flight
—delivers himself up to justice—acknowledges the crime laid to
his charge—describes  the state of mind which  led to its perpe-
tration; or he remains stupefied and overcome by a horrible con-
sciousness of having been the agent in an atrocious deed:
  "5. The murderer has generally accomplices in  vice and crime;
there are assignable inducements which led to its commission— 
MENTAL ALIENATION.
619
motives of self-interest, of revenge, displaying wickedness preme-
ditated.  Premeditated  are,  in  some  instances, the acts of the
madman:  but his premeditation is peculiar and characteristic."*
   Dr. Ray has given some  additional  characteristics,   (a) The
impulse to destroy, is powerfully excited by the sight of murder-
ous weapons, by favourable opportunities  of accomplishing the
act, by contradiction, disgust, or  some other  equally trivial and
even  imaginary circumstances,   (b)  The  victims of the homici-
dal maniac are mostly, either entirely unknown or indifferent to
him,  or they are among his most loved and cherished objects, and
it is remarkable how often  they are children and  especially his
own  offspring,   (c)  While the greater number deplore the terri-
ble propensity by which they are controlled, and beg to be subjected
to restraint, a few diligently conceal it, or if they avow it, declare
their murderous  designs, and  form  divers schemes for putting
 them in execution, testifying no  sentiment of remorse or grief.
 (d) The  most  of them  having gratified their propensity  to kill,
 voluntarily confess the act, and quietly give themselves  up to the
 proper authorities;   a  very few only—and these to an intelligent
 observer, show the strongest indications of insanity,—fly and per-
 sist in denying the act.f
   Under this head of moral insanity, besides the impulse to mur-
 der,  there is also included a  propensity to break and destroy
 whatever comes within reach of the individual; "in short, an ir-
 resistible impulse to commit injury, or do mischief of all kinds."
 And this is observed in cases in which it is impossible to discover
 any  motive influencing the  mind of the person who is the subject
 of it.  " No  illusive belief, for example, can be detected, that the
 lunatic is performing a duty in  perpetrating that which manifests
 his disease.";};
   Many cases of suicide  are  also  classed under this head.   In
 these instances, " there is generally no particular illusion impress-
 ed on the understanding of the self-destroyer, but a perversion of
 the strongest instinct  of nature—self-preservation."  Again, the
 propensity of setting  fire to houses or public buildings,  is ranked
 by Dr. Prichard under this head.§  To these Orfila adds monoma-

   * Prichard ut antea.    t Ray's Med. Jurisp. of Insanity, p. 230.   t Prichard
   6 Jonathan Martin, who set fire to York Minster, and in consequence destroyed
 that -XndS and venerable relic of antiquity, does not belong to this class.  He was
 undVubtedlv a monomaniac, and stated that he was inspired by a dream to do it, so
 that^Tw^uldRO to  other places to hey the gospel   See Medico-Chirurg.cal
 Review, vol. 15, p  222 ; and Shelford on the Law of Lunatics, p. 458. 
620                    MENTAL ALIENATION.

niacal robbery;  although he allows, that in this case, it is rather
more difficult to show the want of motive.*
  The  cases of Papavoine, Cornier and others, to which I will
hereafter refer, have excited great interest  on this subject in
France, and numerous publications have been the result. In that
country, Esquirol, Gall, Broussais, Orfila, Andral, Marc, Georget,
Michu  and many  others, have avowed their belief in the various
forms of homicidal insanity which  I have now described;  while
in England, Prichard and Elliotson, and I doubt not, many others
are among the supporters of  the doctrine.   Dr. Woodward, the
able physician of  the State Lunatic Asylum of Massachusetts,
and Dr. Ray, have, in this  country, published  their  coincidence
with  it.f
  On the  other hand, Regnault  and Collard  de Martigny, two
advocates,  have opposed it strongly in their writings.;};
  The  main scope of their argument is, that most of these cases
are only the evidences of depraved passions, and while they allow
that  some  are correctly styled  maniacal, and therefore do  not
bring these into controversy, they assert that all countries have
at various  periods presented criminals  whose actions  in every
respect resemble those of the homicidal  monomaniacs of the pre-
sent day.   Nero and Tiberius,  Robespierre  and Collot D'Her-
bois,  (say they) had as much a  thirst for blood as Papavoine  or
Cornier.   The malignant passions  also concentrate  on a single
idea—and though  the individual is  under their influence, yet  on
points not connected with the prevailing idea, they will appear
calm and intelligent.
  To the argument, that the  monomaniac has no motive to urge

  * Leejons, vol. 2, p. 65, 2d edition.  There is a curious case given in the Annales
D'Hygiene, vol. 3, p. 198, and styled  Monomanie erotique.  The individual was in
the constant habit of writing love-letters, sometimes  to the highest females in rank in
France;  and although repeatedly confined in prisons and in asylums, he as invaria-
bly recommenced when released.  He was examined by Esquirol and Marc in 1826,
and  they positively state that they could find no  proof of mental  alienation in his
moral affections—no incoherence in language or reasoning, and nothing in his phy-
sical appearance.  The only remarkable circumstances were his  denial of having
written any letters—though he had probably sent hundreds—and his deeming him-
self the object of  persecution.  They conclude by considering him subject to inter-
mittent madness.
  t Fourth and Fifth Reports of the State Lunatic Hospital at Worcester. Ray's
Medical Jurisprudence  of Insanity.
  \ Regnault,  Du Degre de Competence de Medecins, Sfc. and Nouvelles Reflexions
sur la  Monomanie, fyc.  See, also, his reply to a review of his first work, in Annales
D'Hygiene, vol. 3, p. 231.  Collard De Martigny, Sur la Monomanie-Homicide et la
Liberie Morale. 
MENTAL ALIENATION.
621
him to crime, it is urged, that even criminal murderers do not all
destroy for money.   In many of the instances of supposed insa-
nity, early debauchery, with a profound ignorance of the obliga-
tions due to God  and man, marks the character.   Such persons
may acquire a  passion for blood.   The- desire to kill exceeds the
desire to obey the laws.
  The frequency of cruelty in  children, the tournaments of for-
mer times, the  gladiators of Rome, the bull fights of  Spain, and
the fondness for witnessing executions in all civilized countries,
are urged as proofs that this disposition can be extensively and
permanently encouraged.   Above all, they object to the act itself
being deemed the material  proof of the presence of insanity.  Be-
cause one person murders  another without any assignable  mo-
tive, is the criminal by consequence to be  considered a maniac?
  The authors  whom I have quoted on the other side, adduce a
multitude of facts in favour of  their position.   They present the
narratives of the respective cases—the termination of many of
them in raging mania or dementia, and the remarkable  change
of character that so often occurs.
  Esquirol asks, if  the  intellect can be perverted  or  abolished,
why may not the will ?  Leuret, in his reply to Regnault, observes,
that there are instinctive impulses, which deprive a man of liberty,
but not of conscience. The criminal has conscience, liberty, will.
The monomaniac, conscience without  liberty.  Thus  some will
withdraw themselves, when they feel  the disposition for commit-
ting injury.  If this reasoning be correct, can  such a person be
held responsible for his actions, even if  he  knows what  he is
doing 1
  There are, however, many others,  who go far  beyond  these
experienced observers,  and seem disposed to include all crime
under the category of insanity.   Professor Friedreich lays down
this dictum, " Plus l'acte est atroce, plus l'irresponsibilite  devient
probable."  A  Review, in  England, important as the organ of a
party in political  ethics, uses these  words—" The public  mind is
awakened to the  fact, that  all crimes are the result of perversions
of intellect, and like other species of insanity deserve to be treated
with more  of  compassion  than vengeance."   In  Germany, the
following question has been gravely discussed among its medical
jurists:  If monomania consists  in a subjection of the intellectual
faculties to one predominant idea, ought we not to regard a per- 
622
MENTAL ALIENATION.
son  monomaniacal, whose  mental faculties are  governed  by a
vivid affection—a violent passion 1 or in other words, is the ex-
istence  of monomania to be  conceded, whether the reason  is
affected  by an erroneous conviction or  a violent passion ?  The
answer to  this is generally in the  negative,  yet some contend
that there is a mixed diseased state of the mental faculties, a mix-
ture of passions and insanity.*
  To such doctrines and their consequences, let me interpose the
remarks of the judicious Andral.
  " It is only where the insanity at the time of  committing the
crime is quite  unequivocal, that the individual should be  saved
from the penalty.   The interests of society must be regarded, and
we must act upon the  minds of men by examples of severity, so
as to make an impression, and restrain others  by a salutary fear.
I have dwelt  upon this  point  the  more, because I think  that of
late  medical men have fallen into the error of laying too much to
the charge of insanity as regards crime."f
  " There are some who hold  that the mere act of a party, with-
out  any corroborating  circumstances, is sufficient to indicate
sanity or insanity, and to justify responsibility or the contrary.
Such persons, we presume, would have pronounced this prisoner
insane, and therefore irresponsible, since her act was committed
without motive, and against all the common feelings of humanity.
We cannot hold with this doctrine. It is true, that crime is rarely
committed by a sane person without motive, but there are nume-
rous cases, in which we are unable to trace the motive, and were
we,  on the principle assigned, to allow of irresponsibility on these
occasions, we should be assuredly overthrowing  one of the great
barriers established for the protection of society.";};
  In a previous edition,  I quoted the following remarks of Marc
on this subject, and they are too important to  be  now omitted.
  " There is no species of madness, which so  much deserves the
attention of  the physician and  the jurist, as mania without deli-
rium.  It has brought to the  scaffold  many  deplorable victims,
who merited compassion rather than punishment.  Unfortunately,
  * Friedreich in Annales D'Hygiene, vol. 14,p. 460. Westminster Review, vol.23,
p. 222. Amer. Edit.  Taufflieb in Annales D'Hygiene, vol. 14, p. 187. To illustrate
the far-spread speculations of the Germans on this subject, I may add, that Profes.
sor Heinroth  insists that moral depravity is the essential cause of insanity.  With
him, guilt and sin are its real sources.
  t Lectures, London Med. Gazette, vol. 18, p. 811.
  t British and Foreign Med. Review, vol. 3, p. 535. 
MENTAL ALIENATION.
623
I perceive no other means of ascertaining this wretched state, in
which an instinct, at the same  time destructive and irresistible,
hurries on its victim to the commission of crimes the most abhor-
rent to nature, except a confinement indefinitely prolonged, during
which he should be observed at those moments when he is excited
by his dreadful propensity.  Then, if it be real, an extreme agi-
tation will be  perceived, with flushings  of the face, eyes spark-
 ling, and perhaps, also, as in cases  of propensity to suicide, the
 most highly wrought state of hypochondriac excitement.  Wo-
 men are in  general more subject to this species of mania than
 men, especially at the periods of menstruation, (and particularly
 when in a morbid state,) or during gestation.  These different
 situations, then, require great consideration.  Moreover, the moral
 circumstances which precede  or accompany crimes, generally show
 whether  they are the result of criminal intentions or derangement of
 intellect; that  is to say, that  in  a real  criminal, there is alivays
 some motive of personal interest, by which the moral cause of his act
 may be  known.  Thus, a homicide  followed by robbery, cannot
 be attributed to mania without delirium."*
   As a conclusion to this subject, I will state two cases that have
 lately occurred in this country.   Their resemblance to several of
 the narratives that I have already given, will be readily recog-
  nised.
    Abraham Prescott,  of  Pembroke,  New-Hampshire, was re-
  cently tried for the murder  of Mrs.  Sally Cochran.   He was
  eighteen years of age, and  had resided  for several years in the
  family of the  deceased.  On the 6th of  January, 1833, he made
  an attempt on the lives of Cochran  and his wife, at midnight, and
  while they were  asleep; but the blows which he  gave with an
  axe were fortunately not fatal.   The case was considered one of
  destructive somnambulism, as  there was no previous malice ex-
  hibited.  On the  23d of June, 1833, he accompanied  Mrs. Coch-
  ran to  a  field, for the purpose  of gathering strawberries.  He
  came upon her unawares, and murdered her, by beating her head
  with a  stake, after which he  dragged  the body about two rods
  from the scene  of violence, where  it was concealed  in brush-
  wood.   Very soon afterwards, the husband  ascertained from
  Prescott  himself, on  asking where his wife was, what  he had
* Marc ut antea, vol. 2, p. 68. 
624
MENTAL ALIENATION.
 done.  " I  ordered  him," says Mr. Cochran, " to run and show
 me where she was.   He  was loth to go, but finally started, and
 on the way stated  that  he had  the toothache, sat down by a
 stump, fell asleep, and that was the last he knew,  until he found
 that he had killed Sally."
   Soon after being arrested, in  conversation with the coroner,
 the prisoner confessed  the crime with which  he  was charged,
 and that officer further stated  the language held  by him.  " He
 and the  deceased went out into James Cochran's pasture to-
 gether, from thence  down into  the brook field; that when about
 to return home he made  her a proposal, which she indignantly
 repelled—calling him a rascal, &c, and said she would tell her
 husband, and he would be punished.  The prisoner then sat down
 on a stump—considered his situation—thought he must go to jail
 for his offence, and had as lief die as go there.   Saw a stake near
 him, caught it up and killed her."
   The prisoner on  his indictment pleaded not guilty, and his
 counsel set up the defence of insanity.
   He  was described as a moody, odd sort of person.  It was
 also proved that there was a hereditary predisposition to insanity
 in the  family on the  paternal side, exhibited in the grandfather
 and one or two of his brothers, the grand uncles of the prisoner.
   His parents testified, that  when  an infant, six weeks old, his
 head  began to enlarge, and at  three years, was as large as his
 father's.   He suffered with sores  in his  infancy, and was very
 much addicted to sleep walking.
  Drs. Wyman and  Parkman (the perusal of whose testimony I
 particularly recommend,) gave the result  of their extensive expe-
 rience on the subject of hereditary insanity, illustrating its great
 frequency, and the  predisposition to its occurrence that thus
 existed.   Dr.  Wyman has been sixteen  years physician of the
 McLean Asylum  for the insane in Charlestown, (Massachusetts)
 and I was hence struck with one of his  answers.   " Insanity is
 sometimes manifested by  a sudden disposition to violence, and
 sometimes to great violence, but I do not remember that I have
 seen any case where  the first symptom was  a disposition to kill."
  Dr.  Cutter, who had  for a number of years kept a private
asylum, corroborated the opinion of the other medical witnesses.
Hereditary insanity may manifest  itself, he observed, without any
known cause.  It  is often sudden  and intermittent, and is some- 
MENTAL ALIENATION.
625
times accompanied by  an irresistible disposition to commit vio-
lence.
  The jury found the prisoner guilty.*
  The other  case was  that of Major Mitchell, tried before  the
supreme judicial court of the state of Maine in November, 1834,
for assaulting and maiming a boy aged eight  years, and  named
David F. Crawford.
  Mitchell was eleven years of age.  It appears that he induced
Crawford, by threats, to go with him and gather some flags.   In
a very short time, he began to whip the boy.  A neighbour heard
the crying and took the prisoner off, and sent Crawford  home.
Mitchell, however, intercepted him,  and, after  various threats,
carried  him into the woods, threw him into  the bushes, then car-
ried him to a pond  and thrust him in, took off his clothes,  tied
his hands, and then whipped him severely with withes. Finally.
he took a piece of sharp tin and cut out one" of his testicles.  His
cruelty  did not cease even with this, as he afterwards continued
to beat  him.
  On the trial, the counsel for the defendant stated that he would
prove that the prisoner,  in earlyT infancy, had  received a danger-
ous hurt on the top of his head, and that a striking malformation
of that  part was  now  present;  but  owing  to the  absence of
the parents of Mitchell,  a part of this was not corroborated.  Dr-
Mighels of Portland, however, deposed  that  there  was  an un-
usual appearance in the construction of the head—a palpable
depression on the cranium, and the right  ear was  lower than
the left.
  Mr. Bailey, at whose school Mitchell had attended for about
two months,  swore that he could read in spelling lessons, but not
in reading lessons.   He did  not  learn  so fast as others did, but
made improvement.  " He was more sly  than  other boys; he
would watch-me narrowly, and was mischievous when I turned
my  back.  Punishment influenced his  conduct.   I do not con-
sider him  so bright as others, but far from  being a fool."  He
had been punished for quarrelling.
  The  jury found the  prisoner guilty, and he was sentenced to
nine years' hard labour in the state prison.

  * I am  indebted for the facts in this case, to the Boston Medical and  Surgical
Journal, vol. 11, p. 361.  On referring to the  account of the trial, with which I was
favoured by Dr.' L. V. Bell, I find the above abstract to be entirely correct.
  VOL. I.                      53 
626
MENTAL ALIENATION.
   The reporter of this case (Mr. Otis)  observes, that many are

of opinion " that utter fatuity in this convict is inferable, first, from

the  very circumstances of the case,  as made out upon the  trial;

next, by  the manner  and  terms of the  boy's conversation  in  re-

ference to the revolting  subject  of his crime ;  and  lastly, by  his

present  appearance, his  past  history,  and peculiar physical con-

formation."*

   * Report of the trial of Major  Mitchell, etc.  by James F.  Otis, Attorney at Law
Portland, 1834.  Also Boston Medical and Surgical Journal, vol. 11, p. 404.
   I will in this place add  references to additional  cases ; but  I must premise, that
while some are clearly referable to Dr. Prichard's moral insanity, others are  at least
verging to monomania; and the reason probably of this is, that on the continent, they
have universally  received the  general appellation of homicidal monomania, suicidal
monomania, infanticidal monomania, Sfc. S$c.  And  this is probably in deference to
Esquirol, who, in his Note sur la  monomanie-homicide, p. 4, makes a division of this
form of disease.  Some of these insane murderers, according to him, are  prompted
to the act by a delusion—by false reasoning—by a delirium ; others again exhibit no
appreciable alteration of the intellect or affections ;  they are  impelled by a blind in-
stinct—an idea which forces them to acts of violence.  Now the first class  is  un-
doubtedly monomania, and should not be connected with  the others.  Dr. Prichard
very justly  condemns the union,  since  the very term monomania implies a partial
illusion, the absence of which  is the  essence of his moral  insanity.  When, how-
ever, we proceed to analyze the cases, some difficulty will be experienced  in classi-
fying them.  I content  myself with indicating such as are worthy of examination.
  Many are contained in  the three pamphlets of Georget—Examcn  Midico-Ugale,
Discussion Midico-legale, and Nouvelle  Discussion Medico-Ugale;  Esquirol and
Michu on Monomanie-Homicide.  (See Catalogue  of Books consulted.)
  Orfila's Lecons, vol. 2, p. 52 to  66. 2d  edition.
  Annales D'Hygiene, vol. 1, p. 126. Three cases at Charenton, selected by Esqui-
rol.—Vol. 2, p. 392.  A murderer of his wife, examined by Esquirol  and Ferrus.—
Vol.  3, p. 413.   Case  by Professor Grossi of  Munich, a man seventy years'old,
who  killed  his two children and shot  his  servant.  He was confined,  and died
within the  year, of dementia.—Vol. 7, p.  173.  Criminal  propensities of  a child
aged eight  years.—Vol. 8, p. 397.  An extraordinary case of child-murder,  by  Dr.
Reisseissen, with observations  by Marc.—Vol. 9, p. 431, 438.  Homicidal mono-
mania.—Vol.  11, p. 242; vol. 12, p. 127.  Ibid.  p. 94.  Arson by  an uneducated
girl,  who was passionate  and deemed a  fool.—Vol. 13, p. 220.  Case of Nonnent,
a raving madman, Vol. 14, p. 154.  Taufflieb on  the present state of medico-legal
doctrines on Insanity in Germany. Ibid. p. 389, 426;—vol. 15, p. 128.  A young
man, murderer of his brother, sister and mother.  There was hereditary insanity
in the family, and he  had  been  of a moody disposition from  childhood  upwards.
This  is a very interesting  case,  showing  how a desire  of eclat enters into  the
mind of the maniac.—Vol.  16, p. 121.  On Homicidal monomania, by M. Cazau-
vieilh,—vol. 17,  p. 374.  A  pregnant  female  murdering two  of her  children, at
various times, by  blows  and other severe treatment.   This  is the history of  a
passionate  woman,  and the only  extenuating  circumstance  I  can find, is that
several  of  her relatives had become insane.   The decision  of the medical ex-
aminers was as follows: " Declarons  qu'il est possible que  la femme R. ait agi
par suite de quelque affection ayant trouble momentanement, l'exercise de ses fa-
cultes  mentales."  She was condemned to  six months' imprisonment.—Vol. 18, p.
219,  374.
  American Jurist, vol. 14, p. 253 ;  vol. 15, p. 82 ; vol. 16, p. 43, 315, 341.  Essays
principally by Dr. Ray.
  Trial of Sir Alexander G. Kinloch, for  the murder of his brother, at Edinburgh,
in 1795, in State Trials; and Gordon Smith on Medical Evidence, p. 334.
   Edinburgh Medical and Surgical Journal, vol. 12, p. 380. A  man in perfect health,
awoke insane out of sleep, and  attempted to  kill  his  wife.  He recovered by an 
MENTAL ALIENATION.
627
             IV.  Of inferior degrees of diseased mind.

  There are  several forms of disease, which either in a partial

or temporary manner, bear  a strong resemblance  to insanity.

The diagnostic appearances of such deserve  a brief notice, ac-

companied with a consideration of the question, how far the men-

tal alienation may be presumed to extend in each.

  The delirium of fever  is one of the most  striking,  and  in  its

general characters usually resembles mania.   It is, however, dis-

tinguished by its antecedent or accompanying disease—the sen-

sibility of the sight and hearing—turgescence  and redness of the

eye—tremor of the tongue—gnashing of  the teeth, and heat of

the skin.  These peculiarly characterize the alienation accompa-

nying synocha and its consequences.  " In delirium all the powers

of the mind are implicated, and besides remain unconnected until

it ceases."*   The  mind  is  literally a  chaos, and  is occupied in

succession  by numerous phantasies.   There  is  no one predomi-

nant idea.

   The  shortness of its term, its evident connexion and  depen-

emetic, in a few hours, and  has  never been  insane since.—Ibid. vol. 38, p. 49.
Case of Stirrat, convicted at  Glasgow of the robbery and murder of his aunt, but
reprieved on the ground of weakness of mind.
  Ibid. vol. 48, p. 443. Case by Marc, of Augusta Strohm of Dresden, who Was
incited to murder, by seeing  several  persons executed.  (From  the Memoirs of the
Royal Academy of Medicine.)
  Medico-Chirurgical  Review, vol. 10, p. 226.   Cases of homicidal mania, etc. in
Paris, by Barbier, Esquirol, Marc, &c.—Vol. 10, p. 482.  Do. including the cases of
Cornier, Schmitt a parricide, Tristel  and several others.—Vol.  13, p. 244.  Homi-
cidal and  infanticidal mania ; cases by Professor  Outrepont of Wurtzburg.—Vol.
13, p. 441.  Cases of infanticidal monomania at Copenhagen,  by  Dr. Otto.—Vol.
14, p. 474.  Similar case by Dr. Hawkins of London.
  New York Medical & Physical Journal, vol. 3, p. 250.  Case of Kirby, who drown-
ed two of his children.
  London Medical Repository, vol. 26, p. 454.
  Lancet, N. S. vol. 8, p. 135.  Case by Dr. Elliotson.—Vol. 11, p. 577.  Andral's
Lecture on Murder-Madness.
  London  Medical Gazette, vol. 12, p. 80.  A girl, aged sixteen years, set fire to her
master's house, without any apparent motive.  Her previous character was good,
but she had always  been reserved and taciturn.  She had never menstruated.  In
January, 1832, she was in the Chichester Infirmary, labouring  under measles and
low fever.  Her trial came  on at the Lewes  assizes, in  March  1833.  Dr. King
and  other medical gentlemen, though they had riot seen  her, gave it as their  opi-
nion, that severe illness might have caused imbecility of mind.
  Probably I may add to these the case of Gilbert, tried in New York some years
since for murdering his wife.   He had injured his head at a considerable time pre-
vious, and was deemed insane by several of his neighbours. His wife deserted him.
He went to New York, and finding her in an equivocal situation in a bawdy-house,
stabbed her with a knife.
  * Halford's  Essays, p. 122.   The return to a sane mind  just  before death, which
occasionally occurs in Brain Fever, is admirably  described at p. 88. 
628
MENTAL ALIENATION.
dence as a symptom, on an obvious bodily disease, and the almost
total abolition of the mental faculties, are decided diagnostics.*
  The unconsciousness  that accompanies the low delirium of
typhus, shows how profound is  the disorder that weighs on the
mind.
  In the  former case, suicide  and murder are often committed
while labouring under it; and  in both, the actions  must be esti-
mated like those  of the maniac.   There is,  however, another
species of delirium, independent  of fever, at least  of its  most
striking characters, which deserves notice.   It is consistent with
a knowledge of surrounding objects, but the mind rapidly returns
to its flights of romance or wildness.   It has sometimes  been
termed light-headedness, and is admirably pictured in Massinger's
play, " A Very Woman."  At  intervals, there will be a tempo-
rary return to sanity.  It is  evidently connected with, and unless
checked, must end in disease of the brain or its membranes.
  Hypochondriasis, on the other hand, has many points of simili-
tude to melancholy.  Those who are affected with  it, are usually
of a lax  fibre, and engaged  in sedentary occupations.  There is
a languor and want of resolution that accompanies all their un-
dertakings, and a cast of sadness  and timidity generally marks
the countenance.   As to all  future  events, says Cullen in his gra-
phic sketch of this  disease, there is  a constant apprehension of the
worst or  most unhappy state of them, and therefore there is often,
upon slight grounds, an apprehension of great evil.   " Such per-
sons are  particularly attentive to the state of their own health—to
every the  smallest change of feeling in their bodies."   He also re-
marks, that hypochondriasis is always accompanied with dyspep-
tic svmptoms, and in elucidation of the diagnosis between it and
melancholy, presents the following  observations:  " 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 dis-
ease widely different from both dyspepsia and  hypochondriasis."
" As an exquisitely melancholic temperament may induce a tor-
por and  slowness in the  action of the  stomach, so it generally
produces some dyspeptic symptoms; and from thence there may
* Georget De La Folie, p. 237. 
MENTAL ALIENATION.
629
be some difficulty in distinguishing such a case from hypochon-
driasis.  But I would maintain, however, that when the charac-
ters of the temperament are strongly marked, and more particu-
larly when the false imagination turns  upon other subjects than
that of health, or when, though relative to the person's own body,
it is of a groundless and absurd kind;  then, notwithstanding the
appearance of some dyspeptic symptoms, the case is still to be
considered  as  that of a  melancholy,  rather than a hypochon-
driasis."*
  f^odere" mentions the following circumstances, as distinctive of
these diseases.  The habit of body—the illusion, as illustrated in
the above quotation from  Cullen, one  being relative to physical
subjects, and  the  other to moral ones—the species of fear; that
of  the melancholic being reserved and prudent, and not destruc-
tive of his courage—while that of the hypochondriac renders him
credulous, variable and timid.   He  is in  every respect selfish,
while  the melancholic, although labouring under the pressure of
his disease, often  retains noble  sentiments.t
   The hypochondriac, says Andral, becomes conscious of various
acts of his physiological life, of which he is not ordinarily sensible.
 But these  acts are not deranged.  It  is  only the perception  of
 them that is exaggerated.!
    Dr. Burrows takes a capital distinction, which may greatly aid
 the examiner in discriminating.   " The maniac is too furious and
 irritable to describe any complaint;  the melancholic is generally
 disinclined to do so, but the hypochondriac's chief solace is in a
 detail of all his feelings and pains, real and imaginary."
    It rarely, he adds, does mischief to let the  insane  know you
 are fully apprised of the nature of their malady.   But beware of
 giving a hypochondriac reason to think his mind is deranged; it
 is  the surest way to make it so.§
    Hypochondriacs often talk of, and  sometimes attempt suicide,
 but rarely have courage enough to complete it.||  They are gene-
 rally  aware of the nature of criminal  acts,  and should be judged
 accordingly.  But it must be remembered that this disease, as
 well as hysteria, when of long standing, or severe, often degene-
 rate into insanity, and indeed are sometimes its first degree.1I

   * Cullen, quoted by Smith, p. 423, 424.          f Fodere, vol. 1, 232
    <■ Lancet, N. S. vol. 11, p, 550.   § Burrow's Commentaries, p. 480.  || Parkman.
    T[ " When a hypochondriac fancies his legs are made of glass, or his head is larger
                               53* 
630
MENTAL ALIENATION.
   Hallucination.  '• An idea reproduced by  the  memory, asso-
 ciated and embodied by the imagination."*  This state of mind is
 styled, illusion or waking dreams by Dr. Rush, and it is strikingly
 illustrated in the remarkable story of Nicolai, of Berlin, who for
 a length of  time was visited at his bedside by individual forms,
 that were  visible to  his  sight,  and addressed  him.  During  all
 this period,  however, he was conscious that it was a delusion.f
 Had he believed in the existence of these phantoms, says Haslam,
 and acted from a conviction of their reality, he  ought to have
 been  deemed  insane.  A more familiar illustration is given by
 Collinson,  and I presume there are many of my readers, who at
 one time or  another, have experienced a somewhat similar state
 of mind.  " Ben Jonson, the celebrated dramatist, told a friend
 of his, that he had spent many a night in looking at his great toe,
 about which he had seen  Turks and  Tartars, Romans and Car-
 thagenians, fight in his imagination."^;  If this  had become per-
 manent in his mind, he would have been deemed insane.
   I can  hardly imagine that this form of diseased  mind can ever
 become a subject of legal investigation ; but it may be remarked,
 that many maniacs have hallucinations, resembling those we have
 noticed.   They  are  sometimes  transient and confused,  and  at
 other times,  will grow permanent and fixed.§
   Epilepsy.  I mention this, because it is a disease that, when long
 continued or violent, is very apt to end in dementia.  It gradually
 destroys the memory and impairs the intellect.  Lord Eldon, in-
 deed, expressly recognises this  disease  as  one of the  causes of
 " unsound mind."  " Epileptic fits," says  he,  " for instance, may
 produce a mind in the same state, at  a much  earlier period."||
   Epilepsy may, indeed,  be attendant on every form of insanity.
 Of 289 epileptics at Salpetriere in  1815, 80 were maniacal, and
 56 imbecile or in a state of dementia.H  " Of all the modifications
 of  mental  derangement,  there is none so terrible  as that compli-
 cated with epilepsy.   Maniacal  epilepsy is  usually characterised

than his body, or if he labours under any similar erroneous belief, he is insane.  '
Prichard.—Hypochondriasis, says Sir Henry Halford, is not accompanied by delu-
sions, though its nervous fears are sometimes as gratuitous and ill-founded.
  * Parkman.
  t The narrative by Nicolai himself, is given in Haslam's Medical Jurisprudence
of Insanity, p. 303.
  X Collinson on Lunacy, vol. 1, p. 34.
  § On the subject of apparitions, or spectral illusions, see Hibbert, Alderson and
Ferriar's Essays.  Bostock's Physiology, v. 3,  p. 91, 161.  Edinburgh Journal of
Science, vol. 2.
  II  Ridgway t.  Darwin, 8 Vesey's Reports, p. 87.       IT Devergie, vol. 2, p. 958. 
MENTAL ALIENATION.                  631
by the most  ferocious, malign and  murderous  paroxysms, and
often it is as instantaneous as it is violent.   The effects are some-
times directed against themselves, oftener against others, and not
unfrequently to the immolating of all whom they most love when
sane."*
  Thomas Bowler was tried at the  Old  Bailey,  in 1812, for
wounding one Burrows with a blunderbuss, under circumstances
that indicated considerable ill-will against the prosecutor, as well
as design in the execution of his purpose.
  The defence set up  was insanity,  occasioned  by epilepsy.  It
was proved by his housekeeper,  that he was taken with  a violent
epileptic  fit in July, 1811, and that from that period she  had per-
ceived a great alteration in his conduct  and  demeanour.  He
would frequently dine  at nine A. M., eat  his meat almost  raw,
and lie on the ground  exposed  to rain.  His spirits were so de,-
jected, that it was necessary to watch him,  lest he should destroy
himself.
   A commission of lunacy was  also produced,  showing that the
prisoner  had  been found to  be insane, since the  30th of March
last.
   Sir Simon  Le Blanc, before whom the trial took place, charged
the jury, that it was for them to determine whether the prisoner
had the powrer of distinguishing right from  wrong, or whether  he
was under the influence of any illusion, with respect to the pro-
secutor.   A verdict of guilty was returned.f
   After  these remarks, I  need hardly urge  the necessity  of
watching the effects of this disease on the mind  from time  to
time.
   Nostalgia.   This is a  form of melancholy, originating in despair,
from being separated from one's native country.  I have already-
noticed its leading characteristics,! and will only add, that sui-
cide is sometimes a consequence.  Individuals labouring under it
seldom, if ever, commit violence on  others.
   Intoxication. Delirium Tremens. It is a  well-known and  salu-
tary maxim of our laws, that crimes committed under  the  influ-
ence of  intoxication, do not excuse the perpetrator from punish-
ment.  The  temporary alienation has been voluntarily induced,
and the  individual is the more inexcusable, if by previous experi-

  * Burrows, p. 155.     t Starkie on Evidence, vol. 3, p. 1704.t     Page 49. 
632
MENTAL ALIENATION.
ence he has learnt, that his angry passions are inflamed through

its means.*

  In Ridgway v. Darwin, Lord Eldon cites a case, where a com-

mission of lunacy was supported  against a  person, who  when

sober, was a very sensible man, but being in a constant state of

intoxication, he was  incapable  of managing his property.f

  In the state of New York, we have a statute which places the

property of habitual  drunkards under the care of the Chancellor,

in the same manner as  that of lunatics.   The overseers of the

poor in  each town, may, when they discover any person to be an

habitual drunkard, apply to the Chancellor for the exercise of his

power and jurisdiction.   And  in certain cases, when the person

considers himself aggrieved, it may be  investigated by six free-

holders, whether he  is actually what  he  is described to be,  and

their declaration is prima facie evidence of the fact.J  The Chan-

cellor also in a recent case  decided that  the court  has the cus-

tody and control of  the person, as well as of the estate  of  an ha-

bitual drunkard, and  can exercise that  control by means of a com-

mittee, as in the case of a lunatic.§

  The Scotch Law  is thus explained  by Mr. Alison.   Drunken-

ness  is no excuse for crimes: "But, on the other  hand, if either

the insanity has  supervened from  drinking, without  the pannel's

having been aware  that such an indulgence in his case leads to

  * " To admit drunkenness as a defence, or even to allow it publicly as a mitiga-
tion, seems extremely dangerous. But as the example of punishment does not influ-
ence a man who is drunk, any more than one who is mad, it is plain that to hang a
man for what he does in such circumstances, is to make drunkenness, when followed
by an accidental consequence,  a capital offence. This execution will  not  deter
drunkards from murder, it only deters men who  are sober from drunkenness."  Sir
James Mackintosh, (Life by his son, vol. 2, p. 27,  Amer. edit.)  This is strongly put,
but if conceded, may not the same defence  be made in most cases of murder,  com-
mitted not merely during the heat of passion, but after continued deliberation.  Is it
not a legitimate deduction from this reasoning to assert, that to hang a man under
such  circumstances, is to make violent passions, when followed by an accidental con-
sequence, a capital offence ?
  t Collinson on Lunacy,  vol. 1, p. 71.  Dr. Drake, some time since, made a sugges.
tion, which if acted upon,  would doubtless subserve the ends of justice and morality.
A habitually intemperate man is enfeebled in his mental powers. When summoned
as a witness, should his testimony have full weight?  Without questioning his com-
petency, should not his capability be called in question ?  (Western Journal of Medi-
cal and Physical Sciences, vol. 1, p.  81.)
  X Act, passed March 16,1821. There are other provisions in this, (which, how-
ever,  it is not necessary to quote here,) relating to the local powers of overseers in
such cases.  (Revised Slatutes, vol. 2, p. 52.)  A  similar law was passed in Pennsyl-
vania, in February, 1819.  (See Commonwealth v. Coxe, in Ashmead's Pennsylvania
Reports, vol. 1, p. 71.) And also in  New Hampshire, in 1822.  (Digest of the Laws
of New Hampshire, 1830,  p. 340.
  § 5  Paige's Chancery Reports, p. 120.  In the matter of Ann Lynch. 
MENTAL ALIENATION.
633
such a consequence ;  or if it has arisen from the combination of
drinking with a half crazy or infirm state of mind, or a previous
wound  or illness which rendered spirits fatal to his intellect, to
a degree unusual in other men, or which could not have been an-
ticipated, it seems inhuman to visit  him with the extreme punish-
ment which was suitable in  the other  case.   In such a case, the
proper course is to  convict;  but, in consideration of the degree
of infirmity proved, recommend to  the royal mercy."*
  We have, until now, been only noticing the actual state of in-
toxication, and the disabilities consequent thereon.   It is to  be
recollected, that long continued habits are apt to produce actual
insanity7, and that  drunkenness is  in fact one of its common
causes.   The conduct of individuals  of  this description should
therefore be particularly noticed during the intervals  of tempe-
rance, if any such exist.  If spirituous liquors  exercise such an
influence  as to  render us doubtful concerning the state of mind
at this time,  we may reasonably infer that the  alienation is be-
coming permanent.
  There is, however, in addition to all this, a well marked and
distinct disease, induced from  the  intemperate  use of spirituous
liquors, or certain other diffusible stimuli, but which has only at-
tracted  attention within the present century.  It is styled deliri-
um tremens, or maniaapotu, and has some peculiar and striking
characters.  Among  these  I  may enumerate  tremors of the
hands, a weak and  compressible pulse, cold and  clammy extre-
mities, and frequently long continued sleeplessness.  The mind is
incessantly agitated on some one or other subject, often fanciful,
and as the hallucination increases, apparitions, or unreal animals,
are often seen by the sufferer, or persons  are supposed to be pre-
sent, or are heard in adjoining rooms, who are actually absent.
Timidity and suspicion are common occurrences, but fortunately
malignity of feeling is but  seldom  manifested.  Though any at-
tempt at restraint is violently resisted,  yet when once overcome,
there is but little of ill nature shown, and the patient, if properly
managed,  soon becomes  tractable.f  There are,  however,  ex-

  * Principles of the Criminal Law of Scotland,  p. 654.
  " By the Roman Law, a notorious  spendthrift  was put under guardianship; and
by the  law of Scotland, a man who  from drunkenness, facility of temper, or any
other cause, is liable to be stripped of his property by the necessitous or designing,
has the power of putting himself under trustees, without whose  sanction no act of
his can be valid.  This is technically termed, inhibiting one's  self"     Dunlop.
  f In the above sketch I have only stated the leading features of the disease.  For 
634
MENTAL ALIENATION.
ceptions;  and it  is precisely these exceptions which render the
subject worthy of consideration in legal medicine.  Dr.  Carter
(and the  experience of other physicians corroborates  the  asser-
tion) states, that a medical friend of his nearly lost his  life by the
violence of a person labouring under delirium tremens.*
  One circumstance connected with  the  history of this disease
I have omitted until now, for the purpose of placing it singly be-
fore the reader, and thus pointing out a most important diagno-
stic.  It is, that although the habitual and excessive indulgence
in strong liquors  or other diffusible  stimuli, is  the  predisposing
cause, yet the privation of them is the exciting one.   Individu-
als are seldom, if ever, seized until after several hours or some-
times days of abstinence.   Insanity or  delirium, on the other
hand, may follow immediately in the train of a debauch.
   The first case  which particularly attracted  attention in this
country,  was brought before the medical public by Dr. Daniel
Drake, of Cincinnati,  (Ohio.)
   John Birdsall, of the village of Harrison in  that State, was
indicted,  in 1829, for the murder of his wife with an  axe, by di-
viding the spinal column in the neck.
   He was about fifty years old, and had been married to this his
second wife, nineteen  or twenty years, and had children by her.
For some years  previous, he had been subject to occasional fits
of intoxication.  These  of late were followed  by delirium tre-
mens, which generally lasted several days, and went  off sponta-
 neously.   In  these paroxysms, all its physical  and moral symp-
 toms were present.   He  entertained great fears of his  safety,
 and sometimes ran about the village, as  if attempting to escape
 from pursuit.  At another time, he concealed himself between
 the feather and straw bed in his own house.  He would point his
 gun from his window, as if for defence against imaginary per-
 sons.  He was  also  very watchful.   The  prevailing maniacal
 delusion  was, that his wife was in combination with his neigh-
 bours (one his son by  his first wife)  against  his life.   He  had
 charged  her during his paroxysms, with criminal intimacy with
 these, and had threatened to kill  her.
   On Sunday he was intoxicated ; Monday, Tuesday and Wed-

 more extended information, I refer to the writings of Armstrong,  Sutton, Carter,
 Coates, Cross, &c.
   * Cyclopedia of Practical Medicine, art. delirium tremens. 
MENTAL ALIENATION.
635
nesday presented nothing  special.  On Wednesday evening he
complained  of  being unwell,  but  seemed  to  be rational.   He
slept none that night, and next  day  the family thought him crazy,
but were not alarmed.  In the course of it, he took an axe and
went to a neighbour, whom he desired to return  with him, as he
stated they wanted to kill him.  He spent the  day at home, ap-
parently in terror and agitation ;  manifested jealousy of his wife ;
barred the doors, and fancied  that the persons of whom he wag
jealous, were manufacturing ropes  up stairs to hang him.
   In the  course of  the afternoon, he  suddenly committed the
murder in the mode already described.   His wife was sitting by
the fire, and he had been walking  the room.   After  the  fatal
blow on the neck, he followed it with two or three on  the face.
His eldest daughter seized the  axe, which he yielded, and took a
scythe and attempted to strike her.  She defended herself  until
the door  was opened.  When arrested, he acknowledged the
homicide, and knew (he said)  that he would be  hung, but ought
to have done it sooner.  He  talked at this time so rationally.
that many of the witnesses could not believe him deranged.   He
evinced no  dread of punishment,  but was still  in great appre-
hension of those who, he had  believed, intended  to kill him.  Af-
ter being committed, he became regular, and expressed sorrow
for what he had done.
   On the trial, three  medical  witnesses  agreed that he laboured
under mania a potu,  when  he  committed the homicide.   For the
defence, it was  urged that when drunkenness gives rise to insan-
 ity, it should cause  immunity, and hence  form  a legal excuse.
 On the other hand,  the counsel for the people remarked,  that
 Birdsall knew  that  this delirium followed his intoxication, and
 hence it was voluntary.   The law, therefore, held him account-
 able for actions during such  a state.  The verdict was murder
 in the first degree, and  he was sentenced to death.
   The case excited the interest of Dr. Drake; and in a very
 able paper, he  clearly showed that  insanity was present in this
 individual.   Some of his observations I shall here condense.
   He remarks that  the paroxysms of delirium tremens  are never
 permanent, but always transient, or for two or  three days only,
 and seldom extending  beyond  a  fortnight.  That in  this state
 there  is actual delusion,  as  much  so  as  in  common insanity.
 That  of Birdsall, was jealousy and  apprehension  of his wife. 
636                   MENTAL ALIENATION.

The court and jury seemed to hold that he was not deranged in
the degree  that  destroyed  his  perception of right  or wrong, in
reference to the  murder; and that even if he had  been, still he
could not have been acquitted, because his alienation originated
in intemperance.   Dr. Drake, on the  other hand, justly-  supposes
that he was not capable of  judging between right and wrong, or
at least  of controlling his actions,  on the subject of his halluci-
nation.   In  all his maniacal  attacks, he  entertained  jealousy of
his w^ife, and the idea that  she was in a conspiracy against him.
Here were  assumed and unreal  premises; deductions true to  the
principles of logic, but false in point of fact;  and lastly,  acts con-
sistent with his conclusions—constituting in fact the  very essence
of  insanity.   Had he killed, in a real dispute, any one not in the
conspiracy, it would have been  foreign to his  hallucination, and
should not have been excused.
   As to the remaining part of the  opinion of the court, viz. that
the prisoner was aware that mania a potu followed  his  intoxica-
tion, and therefore he could  not be  excused from his voluntary-
state of  insanity, Dr. Drake  remarks, that  the  disease equally
arises.sometimes from opium, and even from  liquors not taken to
intoxication.  In the eye of the law. even drinking  to excess is
not criminal;  nor did the prisoner  take liquor with malice pre-
pense.
  From these considerations. Dr. Drake is disposed to doubt the
justice  of the  sentence of  McDonough, for  the  murder of  hi<
wife.^
   In consequence of  a petition from  many of  the inhabitants or

  *  This was a case which I mentioned in the former edition, as follows:
  " William McDonough was indicted and tried for the murder of his wife, bc-:'ort
the Supreme Court of the State of Massachusetts, in November, 1817.  It appeared in
testimony, that several years previous, he had received a severe injury of the head;
and that although relieved of this, yet  its effects  were such as occasionally to render
himself insane.  At these periods, he  complained greatly of his head.  The use of
spirituous liquors immediately induced a return of the paroxysm ;  and in one of them,
thus induced, he murdered  his wife.  He was,  with  great propriety, found guilty.
The voluntary use of a stimulus which he was well aware would disorder his mind,
fully placed him under the purview of the law."
  After reviewing this case, I am aware that I have probably expressed myself too
strongly—in a medical point of view;  and the reason of this is aptly su2j;ested by
Dr.  Drake, when he asks whether, if McDonough had killed bis wife in one of his
ordinary paroxysms, he would have been condemned ? The case, however, is not one
of delirium tremens, as the murder  was committed during the fit of intoxication, and
it thus»rendered him obnoxious to the usual legal enactments.
  Dr. Ray (Med. Jurisp. of Insanity, p. 447) does me injustice, in quoting a portion
only of this paragraph. 
MENTAL ALIENATION.
637
 the State, who became convinced of his insanity, the punishment
 of Birdsall was commuted by the governor to that of imprison-
 ment.   During the period that elapsed between his  sentence and
 this commutation, he again became  insane in prison.   Although
 on the trial he had confessed the murder of his wife,  and urged
 that he had been  insane when committing it, yet now he denied
 it positively, and said  she was  alive.  He told Dr. Drake  that
 she had not only spoken to him through the walls of the jail, but
 had actually visited  his  apartment several times.  On the  day
 previous to his appointed execution, while he knew nothing of the
 change of punishment, he was urged  to sign a petition for pardon
 to the  governor, in  which there was an  admission that he  had
 killed his wife, but that he must  have been insane when he did it.
 He refused it obstinately, and with violence ;  although he wished
 to live, he would not consent to  introduce this.
  Birdsall did not use tobacco,  yet during this period he spat
 profusely.  His pulse, when unexcited, was from 86 to 94 beats
 in a minute.   Dr. Drake supposes, with great probability,  that
 the low diet, darkness  and solitude of his prison, may have re-
 produced and fixed  the  state of insanity, and  which was con-
 tinued  for nearly a year after the latest period that I have seen
 a notice of him.*
  Another case, earlier in date, but published about the same
 time, was tried at Boston, in  May, 1828.
  Alexander  Drew, commander of the whaling ship  John Jay,
 was indicted before the United States Circuit Court, for the mur-
 der of his second mate, Clarke, while on the high seas.  It appear-
 ed in evidence, that  he had  sustained a fair character, and was
 much respected in the  place  where he resided.   He was proved
 to be a man of humane  and  benevolent disposition, but that for
 several months, he had been addicted to the use of ardent spirits;
 and for weeks during the voyage, had drunk to excess. In August,
 1827, they spoke a vessel, from  which Capt. Drew obtained a
 keg of liquor.  He drank until he became stupified;  but when he
 recovered, he ordered the keg and its contents to be thrown over-
board.   There was now no more liquor on board  of the ship.
  In two or three days, Capt. Drew discovered signs of derange-
ment.   He could not sleep; had  no appetite;  thought  the crew

  • Western Journal of the Medical and Physical Sciences, vol. 3, p. 44,215, 598.
    vol. i.                       54 
638
MENTAL ALIENATION.
had conspired to kill him; was unwilling to be alone;  expressed
great fears of an Indian who belonged to the ship; called him by
name when he was not present;  begged he would not kill him,
saying to himself he would not drink any more rum.   He would
sing obscene songs, and then hymns, and  alternately pray and
swear.   He made  an attempt to throw himself overboard, but
was prevented.  The next morning, he,  with Clarke and the first
mate, were at breakfast, when he suddenly withdrew from the
table, and appeared to conceal something under his jacket, which
lay in another part of the cabin.   He immediately turned to Mr.
Clarke,  and requested him to  go on deck.   " When I have done
my breakfast, sir," was the answer.  Drew said, " Go upon deck,
or I will help you;" and instantly took  up the knife which had
been covered by his jacket, and stabbed Clarke in the  right side
of the breast.  As one of the witnesses was passing out of the
cabin, Drew snapped a pistol  at him, but it missed fire.  He was
secured and bound, but  remained for some weeks  in  this state.
When he recovered, and was told of the murder, he replied that he
knew nothing of it—all that he was conscious of, was, that when
he awoke, he found himself handcuffed.   It did  not appear that
there  had been any quarrel between Drew and Clarke for months
previous.
  Judge Story arrested the  cause at this  stage.  " We  are of
opinion," said he, " that the indictment, upon these admitted facts,
cannot be maintained.   The prisoner was unquestionably insane
at the time  of committing the offence.   And  the question made
at the bar  is, whether insanity, whose remote cause is habitual
drunkenness, is or is not, an excuse in a court of law for a homi-
cide committed by the party, while so insane, but not at the time
intoxicated, or under the influence of liquor.   We are  clearly of
opinion, that insanity is a competent  excuse in such a  case.  In
general, insanity is an excuse  for the commission of every crime,
because the party  has not the possession of that reason,  which
includes responsibility.   An exception is  when the crime is com-
mitted by a party,  while in a fit of intoxication, the law not per-
mitting a man to avail himself of the excuse of  his own gross vice
and misconduct to  shelter himself from the legal consequences of
such crime.   But the crime must take place and be the immediate
result of the fit of intoxication  and while it lasts, and not as in this
case, a remote consequence, superinduced by the antecedent ex-
haustion of the  party, arising from gross and habitual drunken- 
MENTAL ALIENATION.
639
ness.   However criminal in a moral point of view such an indul-
gence is,  and however justly a party may be responsible for his
acts arising from it, to Almighty God, human tribunals are gene-
rally  restricted from  punishing them, since they are not the acts
of a reasonable being.  Many species of insanity arise remotely
from  what  in a moral view is a criminal neglect or  fault of the
party, as  from religious melancholy, undue exposure, extravagant
pride, ambition, &c.  Yet such insanity has always been  deemed
a sufficient excuse for any  crime done under its influence."*
   That this  subject has not escaped the observation of European
writers, is evident from the following observations of Orfila.
   " Drunkenness sometimes causes a short access of delirium or
mania, to which  the  name of delirium  tremens is given.   This
state may continue some days or  even weeks.  It differs  from
drunkenness, in that the  latter disappears in  twelve or fifteen
hours at  most, if not  renewed  by drink.  Certainly the individual
seized with this delirium  is not responsible for his actions, and if
he is to be punished for the immorality of the cause of his repre-
hensible act, a large  number of the insane must also be included
in  a similar infliction."!
    I am reminded, however, by a communication from my friend,
the Hon. David Buel, jun. of Troy, that this  plea may be, and
 indeed has  been carried  farther than the nature of the disease
will warrant.   It is as important to guard  against this as it is to
 present the defence which the actual disease permits.
    The following are the  circumstances of the case now refer-
 red to.
    " Thomas Harty,  the prisoner, was addicted to drinking spiri-
 tuous liquors.   He resided in Albany during the winter of 1832
 and  1833; and while there, had  several paroxysms of  delirium
 tremens, which were of short duration.   In the spring he removed

   * Mason's Reports, vol. 5, p. 28. United States v. Drew.  American  Jurist, vol.
 3 p. 4.
   In a recent trial in the western part of this state, of a parent, for the murder of
 his son, six years old, by blows and whipping, I can find no proofs of delirium tre-
 mens, before or during the transaction.  He would, however, appear to have had it
 after his committal to prison.  I speak from reading the newspaper account only.
   + Orfila's Lemons,  2d edit. vol. 2,  p. 127.  Henke would also seem to have ad-
 vanced a  similar opinion.  " JEnomania (amenta vinolenta,) from the abuse of
 brandy."   " Et de la liqueur appelee Grog." Bulletin Des Sciences Med. vol. 14,
   The Boston  Medical and Surgical Journal, vol. 2, p. 569, has a well argued paper
 in defence  of the doctrine  maintained in the text.  A remark is made in it, which
 cannot be questioned, and  may render judicial proceedings more secure.  It is, that
 delirium tremens is a disease, that from its striking peculiarities, cannot be feigned. 
640
MENTAL ALIENATION.
to Troy.   On the 31st of August, he murdered his wife by a blow
with an axe.  He had  lived three weeks previous to this period
in a certain house, and during  that  time exhibited no marks of
insanity.   Some ten days  previous to  the  homicide, he had  ill
treated his wife, and for a  few days, she refused to live with him,
but at length returned home.
   " After the deed was done, his actions  and conversation in-
duced some persons to think he was insane.   But the most intel-
ligent individuals who conversed with him,  did not consider him
so.  And there  was no proof of insanity  or delirium  tremens,
either on the morning on which he killed his wife, or for several
months before.
   " The prisoner's counsel dwelt upon the proof of  his having
been affected with delirium tremens the winter previous, and on
the evidence that he was addicted to drinking; and  they endea-
voured to infer from that evidence, in connexion with his equivo-
cal conduct  after the perpetration  of the  act, that  he  was non
compos mentis.   The argument addressed to the jury was to this
effect.   Drunkenness is allowed to be one of the common causes
of insanity, and  it is proved that the prisoner had paroxysms  of
delirium tremens during the preceding winter.  Is it  not an au-
thorised presumption that he was  insane when he committed the
act ?"
   On the part of the people, Mr. Buel met this argument by dis-
tinguishing between paroxysms of  delirium tremens and a  per-
manent state  of mental alienation,  and especially relied on the
absence of any proof of insanity or delirium  for  several months
before the commission of the act.
   The jury found the prisoner guilty ; and I apprehend with  per-
fect justice.  If  the prisoner was to be excused on the ground of
delirium tremens, certainly proof of its presence  either before  or
immediately after the crime, should have been presented.  I have
already stated, that it is a  disease of short  duration,  and until it
begins to break down  the  constitution, the recovery of the pa-
tient is as perfect, as from any other disease.
   Again,  there  was certainly no indication  of the  presence  of
that insanity which is consequent on habits of intoxication.*   The

  * In the former edition, (vol. 1, p. 370,) I made the following remark : " It is to
be feared, that cases may sometimes occur, in which the dividing line between sanity
and insanity may be overleaped, in the ardour to punish  a foul homicide." The re-
marks of Mr. Buel on this are so just, and indeed so conformable to  my  subsequent 
MENTAL ALIENATION.
641
proofs of the presence of either, should never be merely pre-
sumptive.
   Old age. The following, according to Dr. Prichard, are among
the striking features which attend the dementia of old age.  Re-
cent impressions and events are speedily and rapidly obliterated
from the  mind, while ideas long since stamped on it, remain in
nearly their original force, and are capable of being recalled by
association or  attention.   The individual may scarcely  know
where he  is,  yet he readily recognises persons with  whom he
has been long  acquainted.  There is therefore  an incapacity for
attention and for receiving present impressions, but certainly no-
thing that deserves the name of a maniacal illusion.  It is merely
a  loss of energy in some of the intellectual operations, while the
affections remain natural  and unperverted.*  Such a state may,
however, be followed by actual dementia, or approach to idiocy.
   As to legal  proceedings, it  appears now to be decided, that
debility of mind in  consequence of old age, may render a per-
son  unfit to manage  his  own  affairs, and his  property may be
placed in the hands of a  committee, in the same manner as that
of a lunatic.f
   A case was  decided on this principle in the Chancery  Court
of this state, some years since.    An  individual eighty-five years
old, was seised of a large real estate, and it was alleged from
repeated  acts, that his imbecility of  mind, (although not a luna-
tic,) and his want of understanding were such, as to render him
incapable of managing his  affairs.   The Chancellor' awarded  a
commission in the nature  of a writ of lunacy, to inquire whether
the facts were accordant to the above statement, and he also di-
rected that the  individual should be present,  so that the jury
might have the  inspection  of  him.   The inquisition was  taken
and returned, finding that J. B. was,  and for one year preceding
had been, of unsound mind, and mentally incapable of managing
his affairs.  A committee of the estate was accordingly appointed. J

experience, that I  cannot avoid quoting them.  " In my experience, juries in this
country, in  capital cases, are not apt to convict under the influence of excitement
produced by the atrocious nature of the crime.  On the contrary, I think there is
rather an increasing  readiness to find a place to hang a doubt on—and doubts, you
know, insure acquittal."                    .,«.■•    in   a-,n
  * Prichard, art, Insanity, in Cyclopedia of Practical Medicine, vol. 2, p. 012.
  \ Collinson on Lunacy, vol. 1, p. 66.
  i Johnson's Chancery Reports, vol. 2, p. 232.  In the matter of James Barker, bee,
also, Vesey's Reports, vol. 12, p. 446, ex parte Cranmer. But the greatness of a tes-
                               54- 
642                  MENTAL ALIENATION.

   Dr. Conolly,  in noticing  this  subject,  mentions  a  frequent
source of error.   It is. that persons are often appointed to make
the inquiry on the supposed state of mind, who are unacquainted
with the  individual, and the result is a restraint and watchfulness
on the part of the aged, which naturally induces  an appearance
of perfect correctness of  deportment.   A slight  suspicion  ex-
cited by  sordid  domestics, or other interested persons, may pre-
vent  an  exhibition of the  actual enfeebled state of  mind, and
more  decidedly give  them up to the  plots by which property is
so  frequently alienated from  the  legal heirs.    These  circum-
stances should therefore be remembered in all commissions, and
a  free and unrestrained intercourse be  deemed a most essential
means in forming a proper opinion.*   But  on the other hand, no
language is too strong  to  characterise  their  conduct  who  shall
endeavour to make the imbecility of age an  excuse for robbing
its subjects of their comforts, or for confining them in an asylum.
   It is impossible to extend this  investigation into the numerous
cases, which may present  doubts as  to the strength of mind of
individuals.  Every instance must, be judged on its own merits ;
and while weakness  of  understanding deserves protection, it
should be remembered that too  nice  an investigation of eccen-
tricities and imperfections may lead to oppression and  injustice.f

    V. Of the state of mind necessary  to constitute a valid will.
   Sir William Blackstone, in  his introductory remarks  on  the
study of  the law, observes, that were  the medical profession  to
inform themselves on the  doctrine of last wills  and testaments,
or at least so far as relates to the formal part of their  execution,
they might often use  this knowledge with advantage, to families,

tator's age is not alone a proof of his incapacity to make a will, for a man  of one
hundred years of age may yet be very competent.  (Call's Virginia Reports, vol. 4,
p.  423. Also, Darling v. Bennet, Massachusetts Reports, vol. 8, p. 129.  Johnson's
Chancery Reports, vol. 5, p. 158. Van Alst v. Hunter.)
   * Conolly on Insanity, p. 440.
  t In the case of Lord Donegal, it was found that he was of weak understanding,
although he gave rational answers about his estate, but not to any questions about
figures, as to which he could not answer the most  common.  Lord Hardwicke did not
think that a sufficient foundation to grant a commission, and said, that if he granted
any, it must be  that of idiocy.  (Vesey senior's Reports, vol. 2, p. 407.) On this,
Lord Eldon remarked, that he does not know what his predecessors intended, in in-
timating that the incapacity, proved by the want of power to comprehend the most
simple proposition in figures, as that two and two make four, is not evidence of an
unsound mind.  He considers that this deficiency is an evidence of it, though to be
estimated with reference to age, situation,  and all other circumstances. (Sherwood
v.  Sanderson, Vesey's Reports, vol. 19, p. 285.) 
MENTAL ALIENATION.
643
upon sudden emergencies.*   Having such authority, it will not,
I trust, be deemed presumptuous, if I preface the  consideration
of the present subject with a brief  sketch  of the legal requisites
for making these.  This  must also be my apology for  noticing
some points in this  section, which  might, with perhaps greater
propriety, have been considered in  previous ones.
   It must be observed,  in the first  place, that the law makes an
important distinction between the disposition of real and of per-
sonal property.   This is borrowed  from the English law, but it
is transferred into our own statutes.
   Nuncupative wills.  By this term is understood a verbal dispo-
 sition of  a person's property.   The law  concerning these  has
 of late  years materially altered in this state.   It may, however,
 be useful to mention the former in connexion with  the present
 enactment.
   Until  1828, it was  enacted, that no nuncupative will  should
 be good, where the estate thereby bequeathed shall  exceed  the
 value of seventy-five dollars, unless the  same be proved  by the
 oath of three witnesses at least, who were present at the making
 thereof, nor unless it be proved, that the testator,  at the time of
 pronouncing  the same, did bid the persons present, or some of
 them, bear witness, that such was his will, or words to that effect
 —nor unless such nuncupative will be made at the time of the
 last sickness of the deceased, and in his dwelling-house, or where
 he had been resident for ten days or more, next before the making
 of such will, except such  person  was surprised  or taken sick,
 being from home, and died before his return to the same.  It is
 further ordained, that after six months from the speaking of the
 pretended testamentary words, no testimony shall be received to
 prove any nuncupative will, except the said testimony or the sub-
 stance thereof, was committed to writing within six days after the
 making of the said will, and also,  that no letters testamentary or
 probate of any nuncupative will, shall pass the seal of any court
 until fourteen days, at the least, after  the death of the testator,
 shall be fully expired, nor shall any nuncupative will at any time
 be received to be proved, unless process has first issued to call
 in the widow or next of kin to  the deceased, to the end that they
  may contestbthe same, if they  please.f

   * Blackstone's Commentaries, vol. 1, p. 13.     t Revised Laws, vol. 1, p. 367. 
644                   MENTAL ALIENATION.
   A nuncupative will  has also been decided to be not good, un-

less it be made when the testator is in extremis, or overtaken  by-

sudden and violent sickness, and has not time to make a written

will.   The words " last sickness" in the statute just quoted, are

understood to mean the last extremity.*      <
   By  the Revised Statutes, however, the power of  making these

wills is nearly taken awray.  The following  is  the  existing law:

" No nuncupative or unwritten will, bequeathing personal estate,

shall be valid, unless made by a soldier, while in actual military-

service, or by a  mariner while at sea.f

   So  also, in England, by a recent enactment, (1 Victoria, chap.

26, July 3, 1837,) there can  be no  longer parol  or nuncupative

wills,  except in the cases of soldiers and seamen.J

   Secondly, a will or bequest  of personal property.  The hand-

writing of the person bequeathing was formerly sufficient to pass

property so given, but witnesses are now required, as with testa-

ments.

   Lastly,  Testaments by virtue  of which real property is devised,

must be in writing,  and signed by the party making the same, or

by some other person, whom he  expressly directs to sign it for

him, and they must be attested and  subscribed by two witnesses,

at least.   This provision  applies equally to wills of real or per-

sonal  property, and  the witnesses are further required to add their

place  of residence.^

   We may now add that none  of these are valid in  law, if made


   * Johnson's Reports, vol. 20, p. 205. Prince v. Hazleton.   In this case, the sup-
posed nuncupative will was  made several days before the death of the testator, and
although ill of a liver complaint, it does not appear that he had any idea that his dis-
solution was so near.
   t Revised Statutes, vol. 2, p. 60.
   X Companion to the British Almanac, 1838, p. 138.
   In Pennsylvania, where the old English law is in force, the question, as to what
constitutes a valid nuncupative will, lately came up under  the following circum-
stances.  The testatrix, Priscilla Yarnall, had been  afflicted with pulmonary con-
sumption for six months before her death.  She seems to have been conscious of the
danger of her situation, but it is not very clear that she  had abandoned all hopes of
recovery.  Nine days before her  death, she made the alleged nuncupative will.  She
retained all her faculties to the last, although weak in body.
   The court, among other objections, decided against  the validity of the will, be-
cause such a will is not good unless  made when the testatrix is in extremis, or  is
overtaken by sudden and violent illness, and has not time or opportunity to make a
written will. (Rawle's Pennsylvania Reports, vol. 4, p. 46.)
   § Revised Statutes, vol. 2, p. 63.  The Revisors of the laws of Pennsylvania have
proposed a similar enactment in that state, viz: that all wills shall be in writing and
signed  as above, except in extremis. (American Quarterly Review, vol. 13, p. 44.) 
                      MENTAL ALIENATION.                   645

by any infant, idiot, or  person of insane memory.  Here is  the
point at which the subject enters  into legal medicine, and under
this law, it happens that the testimony of a physician is often re-
quired.
  In law, a person is considered an infant, until he arrives at the
age of twenty-one, and the construction of this  is, that if  he is
born on the first day of January, he is of age to do any legal act
on the morning of the last day of December.* Infants, according
to the  ecclesiastical or  civil  law, if above the  age of fourteen,
may, however, bequeath  personal property, but no real estate.
This  respects males, as  females may make  a will  of personal
estate  at twelve.
  In this state, every male of the age of eighteen and upwards,
and every female, not being a married woman, of  sixteen years
and upwards, may give and bequeath personal property, by will
in writing.f
  " Madmen, or otherwise non-compotes, idiots, or  natural  fools,
persons grown childish  by reason of old age  or distemper, such
as have their senses besotted by drunkenness—all these, are inca-
pable by reason of  mental disability, to make any will, so  long
as such disability lasts."J
  Among  the diseases which  incapacitate an  individual from
making a valid will, or  at least  render his rationality doubtful
may be enumerated the following: lethargic and comatose affec-
tions, whether arising from some internal  affection, or from ex-
ternal  injury.  These suspend the action of the intellectual facul-
ties; so also  does an attack of apoplexy, and even, if patients
recover from its first  effects, an imbecility of mind is often left,
which unfits an  individual for  the duty in question.  Phrenitis,
delirium tremens, and those  inflammations which  are accompa-
nied with  delirium, also  impair the mind.  Finally, in typhoid

  * As in the following case, which was decided by the House of Lords in February,
1775, on an appeal from the  Court of Chancery. An estate was  bequeathed to
Thomas Sansam  as soon as he should  arrive at the  age of twenty-one.  Now he
was born between the hours of five and  six on the morning of the 16th of August,
1725, and died about 11, in the forenoon of the 15th of August, 1746, being  killed
by a fall from a wagon.  The  question was, whether he had arrived at the full age.
The Chancellor (Lord  Camden,)  had so decided.  It was urged, that more than six-
teen hours were wanting to complete the term, but that plea was overruled by their
Lordships, and the decree affirmed, because he was living on the day that completed
the period.  (Dodsley's Annual Register, 1775. Petersdorff's Abridgement, vol. 10,
p. 536.)
  t Revised Statutes, vol. 2, p.  63.              X Blackstone, vol. 2, p. 497. 
646
MENTAL ALIENATION.
fevers, the  low state which usuallyT precedes death, is one  that
may be considered as incapacitating the individual.
  On the other hand, there are many fatal diseases, in which the
patient preserves his mind to the last, and all dispositions of pro-
perty made by him are of course valid.  Of these, none is  more
striking, than the clearness of intellect which  sometimes attends
the last stages of phthisis pulmonalis.
  The  symptoms—the  state of the  individual, his conversation
and actions, should all be canvassed, and from them an  opinion
must be formed.*
  This, however, is only  a general  enumeration;  and I have
thought that a  sketch of some of the cases scattered through law
books and  medical journals, may prove of service, at least to the
medical profession.  They are contained in works not generally-
accessible to physicians, and a perusal of them may prevent many
of those difficulties which are so apt to embarrass medical wit-
nesses.  I have arranged them under the respective diseases that
were the subject of inquiry.
  Apoplexy. In Cook v.  Goude and Bennet, the testator had made
a wrill after an attack of apoplexy, from which he recovered.  He
subsequently attended to business of eveiy description and tra-
velled to various places.  Death followed in three yTears after the
first attack, from a second  apoplectic fit.  The testimony varied,
and it was asserted byr some that he had been frequently dull and
lethargic, but Sir John Nicholl decided in favour of the will, be-
cause  (along with other  circumstances,)  incapacity  was not
proved.f
   In Waters  v.  Howlett, Sir John  Nicholl remarked, that the
allegation  pled an attack of apoplexy in June, 1826; that the
will was executed in November, 1826; and that there was a sub-
sequent attack of the  disease in 1828, with consequent imbecility.
He adds, that " the fifth and the remaining articles heap together
a number of circumstances, which usually, or at least frequently
occur  in  persons who  are subject  to apoplectic  or  paralytic
attacks, especially about the period  of those  attacks, but which
also generally subside after a time,  and then the patient again is
rational and capable.   In support of such circumstances, (he ob-
serves,) persons who accidentally visit the  deceased, are usually

  * Fodere, vol. 1, p. 2C1.    t Haggard's Ecclesiastical Reports, vol. 1, p. 577. 
MENTAL ALIENATION.
647
brought to depose;  but their evidence almost universally turns out
to be of no weight against acts of capacity at other times, particu-
larly if there is no appearance of fraud in the testamentary act
itself"*
  An  individual  was  suddenly seized  with  a fit of apoplexy,
while walking in his garden.  It deprived him of his speech, which
indeed he never regained, and affected his senses.  Three weeks
after, he executed  the  disputed will.   Although speechless, he
appeared  sensible; his hand  was guided to  make  a mark.   A
witness deposed to his  apparent understanding, and stated, that
when going away, he desired the deceased to give him his hand,
which he immediately did.   The medical witness, however, de-
posed that he had never seen  him, after the  fit, when he appeared
to have any sense; there might, however, have been intervals
when he was not present.   Other  witnesses  corroborated this.
Sir George  Lee decided against the will, thinking him not suffi-
ciently capable of making and executing it."f
   Dr.  Hastings was required professionally to visit,  on the 6th of
June, 1826, a rich farmer in the county of Hereford, England,
and found him in a very lethargic state.  It appears that although
formerly sober, yet of  late years  he  had become a confirmed
drunkard.   His speech  was  much impaired,  and he  was not
always able to articulate so  as to  express the idea in his mind.
He  complained  of noises in his  ears, and  imperfect vision.
His gait was unsteady, and there was a constant trembling of his
hands.  He, however, answered all the questions put to him with
propriety, and did not exhibit any  imbecility of mind.   He per-
formed a somewhat difficult  sum in addition, with accuracy.  He
told Dr. Hastings the collect for the day, it  being  Sunday, and
read part of it to him.   He  wrote  down, in words, the distance
of his dwelling from the adjoining town.
   The bodily symptoms evidently  threatened  an attack of apo-
plexy, and  such indeed was the result.  After many fruitless  at-
tempts to break up the habit of intoxication, he sunk into a state
of mental imbecility, and died of apoplexy in January, 1827.  Dr.
Hastings never saw him after the first visit, until the day before
his death.
   The testator had made a will, on the 26th of April, 1826. and
Reports, p. 790.
:, vol. 2, p.  229. Bittleston, by her guardian, v. Clark. 
648                  MENTAL ALIENATION.

its validity was contested.   It  seems that some time in 1825, he
had been seized with  symptoms of palsy, but which, by proper
remedies, had been considerably  relieved.  He,  however, was
subject to fits of delirium tremens;   and  during  these,  acted
strangely and  incoherently.  Generally speaking, from the testi-
mony, the state of his  mind at the time of making  the will was
similar to that observed  by Dr. Hastings.   The jury,  under the
direction of Baron Vaughan, decided  in favour of the will.*
  Palsy. In the case of Clark v. Fisher, brought before the Chan-
cellor  of the State of New York, on an appeal from a surrogate's
decision, the testator died in May, 1827, aged about eighty years.
Four years previous to his death, he had an apoplectic  fit, which
terminated  in  paralysis,  and this continued until his death.   He
was confined to his bed during these four years, although able to
ride out a few times, being helped into his carriage.   His speech
was much impaired, but  he was able to make himself understood
by  those  who were well acquainted with  him.   The  contested
will was made in May,  1827, a short  time previous to  his death.
  The Chancellor (Walworth) in his opinion, states that upwards
of fifty witnesses were  examined before the surrogate.   As usual,
great  diversity of opinion existed  among them.   Aware  of the
tendency of  prejudice or feelings to bias  their views, he reviews
the  evidence, and establishes from incontestable proof, that  the
testator's mind, at the commencement  of his disease, was such as
totally to  incapacitate  him from making a will.   After the first
year,  he was  but seldom visited  by  those who wrere  formerly
acquainted with him;  and those who did  so, vary in opinion;
but  in 1826, it would seem that his memory was  good respect-
ing  long past  events.  This, however, is so common during  the
decrepitude of old age,  that the  Chancellor remarks, it can hardly
be relied on as a proof of mental capacity.   At the period, how-
ever, of executing the will, he could not make himself understood
  * Midland Medical and Surgical Reporter, vol. 1, p. 410.  Dr.  Hastings mentions
two other cases, in which apoplectic symptoms, evidently resulting from long  con-
tinued and severe disease of the brain, were still unaccompanied with any material
injury of the intellectual functions.  In another, the individual, aged between fifty
and sixty years, roused suddenly from his stertorous sleep, " called to his brothers to
attend, as he would dictate his will. To the  great astonishment of all  present, he,
in the clearest manner, dictated  a very just will, leaving his property in  trust for his
children. He directly afterwards, without mentioning  any other affairs, again re-
lapsed into coma; from which,  before his death, he again aroused, and then gave
some directions with respect to an annuity to a clerk, who had been a  faithful ser-
vant to  him."  This, however, was a case in which the comatose symptoms super-
vened on an attack of erysipelas. 
MENTAL ALIENATION.
649
by the person who drew it, even in reply to questions directly
put to him.  It was all done by the direction of a wife whom he
married after his first attack.  The will was cancelled.*
  The following is a Scotch case.   Mr. Gardner had been for
many years an active man of business, and  of a vigorous mind.
He was struck with palsy in 1814,  by which his right side was
disabled, and  his  speech  considerably affected. He  ceased  to
take any active charge of business, but various loans were made
by him through the assistance of his wife and by the agency of
his  law agent.   He  occasionally became intoxicated, and was
allowed  to take two or  three glasses of whiskey daily.  His
general health was good, but he sometimes  cried and laughed
without any apparent  cause, which  some of the witnesses im-
puted to imbecility, while others stated that it was a nervous or
hysterical affection.   He occupied  his time  in reading, and al-
though  it was difficult to communicate with him, yet  those wit-
nesses who did come into communication with his mind, deposed
that it was quite sound and acute, and that his memory, both of
old and recent occurrences, was  particularly vivid  and correct.
His mode of communicating was by writing on a slate or piece
of paper, (he having taught himself  to write with his  left hand*)
and  he also made  use of an alphabet, pointing  out the letters of
the words he meant to express with a nod, or with his finger.  In
1823, he had a second shock, which affected his left arm to the
elbow; his speech was also much impeded, and he  could only
say aye and no.  He thenceforth ceased to go out of the  house,
but occupied his time in reading and communicated  as formerly.
Almost all the pursuer's witnesses gave it as their opinion, that
he had not a  mind capable of making  such a settlement as the
one in issue, but one of them,  (the gentleman who had acted  as
his law agent in regard to the loans,) stated, that although he did
not think he was  capable of  originating  such a deed, yet he
thought he  had mind sufficient to understand it, if read over to
him.  The witnesses for the defenders (who stated various facts
as to his memory,) gave  it as their  opinion, that his  mind was
quite sound.  It was proved, that at the time of execution, the
deed was not read over, and  no written instructions were put in
evidence, but it was proved that the deed of 1827 had been read

  * Paige's Chancery Reports, vol. 1, p. 171.  See also Scribner v. Crane, ibid. vol.
2, p. 147.
  VOL. I.                     55 
650
MENTAL ALIENATION.
to, and approved of by him, and that both under that  deed, and
the  one under dispute, the daughter and her  children derived
much more benefit than they could if it were set aside.
   Lord Cringletie in his charge to the  jury, urged that it was in
proof, that the memory of the grantor was entire, and observed
that it is the  first of the intellectual faculties that decays.   The
weight of testimony of those who held the most communication
with him, was also in favour of his ability.   The jury found for
the will.*
   A  testator, ten years before  his death, and  in perfect health,
 executed a will, and subsequently a codicil; and two and a half
 years before  his death, after a paralytic stroke producing at least
 great bodily  infirmity, having executed a second codicil, mate-
 rially departing from  those instruments;  and six months before
 his death, a third codicil, revoking  the second, and reverting to
 the former disposition, a probate of the will, and of the first and
 third codicils, was granted,  their being no satisfactory proof of a
 change in his affections, and the evidence of volition and capa-
 city being at least as strong in support of the third as of the se-
 cond codicil.f
    In a case  before Sir  George  Lee (1752,) the testator having
 the palsy, and being  dissatisfied with a former will, ordered  a
 new one to be executed.  The attorney drew it according to her
 directions, read it to her, and she approved, by answering " yes,"
 or " it is very right."   She  raised  herself up to  execute it, but
 the palsy in her hand  was so great  that  she  could not hold the
 pen.  Judgment was given  in favour of the  unexecuted will.*
    Esquirol was consulted on the following  case.  A bon vivant
 of apoplectic make, was, at  the  age of 64, attacked with  hemi-
 plegia and its usual symptoms. He became morose and sluggish,
 and  suffered under trembling of the limbs, deafness,  difficulty of
 speech, &c.  Could a person, under these circumstances, dictate

   * Cases in the Court of Session, (Scotland,) vol. 11, p. 1049. Simpson v. Gardner's
 trustees.
   +  King and Thwaits v. Farley, Haggard's Ecclesiastical Reports, vol. 1, p. 502.
See  aLo Marsh v. Tyrrcl, 2 Haggard's Ecclesiastical Reports, p. 84.  Dr. Burrows
w;is called in on  the day of making (lie las!, will,  for the purpose of ascertaining the
capacity of the testator.  She had had several paralytic strokes. Dr. Burrows would
only give a limited opinion, and desired a second  interview.   The will was in direct
opposition to two previous ones, made when in perfect health.  Judgment against il.
  The state of mind after a paralytic stroke is also discussed by Sir John Nicholl
in Blewitt v. Blewitt.  3 Haggard, p. 410.
  * Lee's Ecclesiastical Reports, vol. I, p. 130. Martin v. Wotton. 
MENTAL ALIENATION.
651
and understand a will written for him  two  months previous to
death ?  It  was replied, that although the  above  are signs of
cerebral lesion,  yet they do not necessarily suppose  a loss of
intellect.  Reason may be present, although not so perfect.  The
number of witnesses required in France to attest a legal signa-
ture to a will, is also urged as  a  proof that so many persons
could not have been mistaken as to the state of mind.*
   General iveakness and debility.  The will of a married woman,
obtained  when she was in an extremely weak state, nine  days
before death, by the active agency of her husband, the sole ex-
ecutor  and  universal  legatee, and  which  will wholly departed
from a former one  deliberately made a few months before, was
pronounced against, the evidence in favour not being satisfactory.
She suffered much from pain and weakness, and  took  laudanum
largely during her illness.f
   In Scotland, there is a peculiar law  to protect dying persons
from importunity.   No settlement or gift executed after the com-
mencement of the disease of wrhich the person dies, except  those
in the  ordinary administration of the estate, are  valid  and this,
even if the grantor be not  confined  to  his  bed.   If he survives
sixty days  after, or has been to market unsupported, it is good.J
I will  mention one or two decisions under this law.
   A person  in advanced life  had been afflicted with  a stuffing
and cough, and swelled leg, but it did not appear that these com-
plaints existed within sixty days before, or were the cause of his
death.  It was proved that though not regularly  confined to bed
or to the  house, his general health was infirm, and he died in the
act of stepping  out of his   bed.  He  made his will thirty-eight
days before his death.  As there was no distinct  evidence that a
fixed  disease was  present  within  sixty days, or that it was  the
cause  of  death, the decision was in favour of the deed.§
   In  another case, a  person  addicted  to habits of  excessive
drinking, and who had been confined to bed for several weeks
from debility and exhaustion, having executed a settlement of her
  '» Annales D'Hygiene, vol. 7, p. 203.  Dugald Stewart, although struck with palsy
in 1822, and unable to take general exercise, or to use his right hand, or to articulate
distinctly, notwithstanding composed the third and fourth volumes of his work on
the Philosophy of the Human Mind, between it and 1828, when he died. (Brewster's
Edinburgh  Journal of Science, vol. 10, p. 201.)
  t Hazard's Ecclesiastical Reports, vol. 2, p. 169. Mynn v.  Robinson.
   | Bell's Dictionary of the Law of Scotland, art. Death Bed.  As to the lastprovi-
sion see Kyle v. Kyle.  Cases, Court of Session, vol. 3, p. 449.
  § Ca«c«, Court of Session, vol. 2, p. 474. Robertson v. McCaig. 
652
MENTAL ALIENATION.
landed estate and died in eight days thereafter, without  having
been once up, except to have her bed made—and a medical gen-
tleman having deposed that she had no formed disease, when he
sawr her on the third day after the execution of the deed, and that
she died of an access of peripneumonia notha, which is a very
common, though not a necessary  result  of the state in  which
the party previously was, it was  held that she was  not  to  be
considered on death  bed  at  the date of  the  execution  of the
deed.*
   Old age, implying  mental imbecility.   Kinleside v. Harrison.
In this case, the  testator between 86 and 88 years of age, made
several codicils to his will, which  were disputed on  the ground
of mental imbecility, the result  of  old  age.   A large mass of
contradictory- evidence was presented.  It  appears to be admitted
that there was occasional incapacity from violent nervous attacks,
but he survived  two years after  making  the  codicils, and ma-
naged his own concerns.  Thus he drew drafts, all of which were
accurate and conformable to the variations required in  them.
His memory failed  him occasionally  and he  wras deaf, yet  he
wras able to play whist well until a fewr months before his  death,
and always paid his own bills and entered his payments as they
were  made, in his account  book.  Sir John Nicholl decided in
favour of his capacity-.-j-
   In  Brydges v. King, Mrs.  Brydges had made a will while in
a state of health, material parts of  which  were altered by a co-
dicil,  executed  ten  days   before her death.    She  was  above
seventy-two years of age,  had been confined to her room three
months, and  to her bed two months.  Her complaint was visce-
ral, and from laying in bed she  had become excoriated so that
it  was necessary to dress  the sores from  shoulder  to hip,  and
although her bowels were so  torpid as to require  injections, yet
from  her weakened state, she was not able to bear them.   In this
condition, the codicil in favour of her  personal attendants, was
executed.  The regular physician of the deceased had  not seen
her for several days  previous and subsequent, but he deposed to
her being more or less lethargic for months, and did not believe
her capable of transacting important  business.  It  was also in
evidence, that her relatives and  solicitor  were excluded, under

  •Cases, Cqurt of Session, vol. 6, p. 367.  M'Kay v.  Davidson.
  t 2 Phillimore, p. 449. 
MENTAL ALIENATION.
653
various pretences, from seeing her.   The codicil was declared
invalid by Sir John Nicholl.*
   In  Ingram  v. Wyatt, Sir John  Nicholl  notices  particularly
the subject  of imbecility  of  mind.   This  defect, he  remarks,
seems to  proceed from want of quickness,  activity and motion
in the intellectual faculties.  And thus  sometimes different facul-
ties are found failing in different  persons.   " For example, the
memory is sometimes perfect where higher powers of the under-
standing are  greatly defective."   In  an  individual  of imbecile
mind, " the understanding has  made little progress with  years ;
it has not  matured and ripened in the usual manner;  yet even in
such individuals, unless the imbecility be extreme, some improve-
ment  will  have taken place; some progress in knowledge beyond
mere  infancy will have been made.  By the help of memory, by-
imitation,  by habit, such an individual  will  acquire  many ideas,
will recollect facts and circumstances and places and  hacknied
quotations from books, will  conduct  himself orderly and man-
nerly, will make a few rational remarks on familiar and trite sub-
jects, may retain self-dominion, may spend  his own little income
in providing for his wants, as a boy  spends his pocket money, and
vet may labour under great infirmity of mind, and be very liable
to fraud and imposition."
   " The principal marks and features of imbecility are the same
which belong  to childhood, of  course,  (as already observed,)
varying in  degree  in  different  individuals ; frivolous pursuits,
fondness for, and stress upon trifles, inertness of mind, paucity of
ideas, shyness, timidity, submission to control, acquiescence under
influence  and the like.   Hence these infantine qualities have ac-
quired for this species of deficiency of understanding, the name
of ' childishness.'  The  effect  is, that  where imbecility exists at
all, and in proportion to its degree, it becomes necessary especi-
ally in a case  exposed to other adverse ' presumptions,' to ascer-
tain its extent with some accuracy, to  see how far the individual
was liable to be controlled by influence, to submit to ascendancy,
to acquiesce from inertness and confidence in those acts, upon
the validity of which the court has to  decide."f
   In  Bird v. Bird, the will was executed  ten days before death,
by a person of 85, in weak bodily  health;  but  the  drawer  and
  * Haggard's Ecclesiastical Reports, vol. 1,  p. 256.
  t Haggard's Ecclesiastical Reports, vol. 1, p. 334.
                              55* 
654
MENTAL ALIENATION.
witnesses of it were  confirmed  in  their opinion as to capacity,
volition  and free agencyr by the adverse witnesses, and  by the
deceased's affections and declarations.   Will pronounced for.*
  A testatrix was old and greatly debilitated by the disease under
which she laboured when she made her will and codicil, and the
usual state of her mind, until  her death, was that of great torpor
and inactivity; " but  her mind (say the Court) was evidently not
deranged.  It  was in fact, rather  a want of sensibility  than  a
want of intellect, which marked  her condition ;  for most, if not
all the witnesses  agreed, that she could, by any thing sufficiently
interesting  to  attract her attention, be awakened and roused to
activity; and when she  was so, that she conversed intelligently,
and invariably gave  rational  and pertinent responses to any in-
terrogatories propounded  to  her."  Some indeed  thought, that
she could not be excited for  a  time  sufficient  to  make  a  will;
others  entertained a  diffierent opinion.   And it was proved that
she  felt  an  extreme  interest about making a will.  She was a
widow and childless, and had long determined against intestacy.
The primary motive  of  this  determination was the emancipation
of her slaves,  and  this  all agreed, was the object dearest to her
heart.   This was a subject then to  excite her ; and the subscrib-
ing witnesses were also decided as to her competency^ at the time
of executing the will.   The  court  therefore  adjudged in favour
of the will.f
   It has been sometimes agitated,  whether the  loss of memory
solely, is such a proof of  mental imbecility, as to render a will
invalid.  On this point, the  remarks  of Chancellor Kent, in  a
 case before him, are decisive.   "  The failure of memory  is not
 sufficient to create the  incapacity, unless it be quite total, or ex-
 tend to  his immediate  family.   The  Roman* law," he remarks,
 '• seemed to apply the incapacity only to  an extreme  failure  of
 memory—as for a man to forget his own name, fatuus pr&sumi-
 tur qui  in  proprio nomine  errat.  The want of recollection of
 names is one of the earliest symptoms  of a decay of the memory ;
 but  this failure may exist to a very great degree, and yet ' the
 solid power of the understanding' remain."J

   " Haggard's Ecclesiastical  Reports, vol. 2, p. 142.
   t Littel's Kentucky Reports, vol. 1, p. 252. Watts v. Bullock.
   X Johnson's Chancery Reports, vol. 5, p. 161.  Van Alst v. Hunter.  In Turner v.
 Turner, (Littel's Kentucky Reports, vol. 1, p. 101,) the Court make a remark which
 is probably correct; and if so, deserves attention.  " There is less presumption of 
MENTAL ALIENATION.
655
  Drunkenness.  The testator was proved to have been not pro-
perly a madman, but an habitual drunkard ;  who, under the  ex-
citement of liquor, acted very like a maniac.
  Sir John Nicholl held, that from the evidence it appeared that
the testator was not  under the excitement of liquor, and  conse-
quently not insane  at the time of making his will; and he there-
fore established the will.*
  Delirium.  In  Evans v.  Knight, where the condition  of  the
testator was inquired into, eight  years after his death, it was en-
deavoured to be shown  that he had  been labouring  under a de-
lirium caused by a fatal attack  of peripneumonia.  This  attack
had been on him for some days.  He made the will on the 21st
of April, and died on the 24th.   The physician who was called
in, and who saw him a short time, inclined to the opinion that he
was not in sound mind, but denied that he was in a state of mental
derangement;  " and in spite of  a marked confusion of intellect,
he could answer questions put to him, sensibly and  rationally."
A friend visited him on the  same day,  and  heard him give in-
structions to the solicitor,  without any  leading questions  being
put.  The solicitor also was  satisfied of his capacity.  Verdict
in favour of the will.f
   Suicide, as  indicative of insanity.  " Instructions  for  a will
containing the  fixed and final intentions of the deceased are valid,
if the formal execution is prevented by death; and if there is no
evidence of insanity at the time of giving  the instructions, the
commission  of suicide three  days after  will not  invalidate the
paper, by raising an inference of previous derangement."   Here
the  testator conversed sensibly  and  collectedly,  and appeared
perfectly rational when giving the instructions.;!;
   The existence of a lucid interval.  The case of White  v. Dri-
ver, related  to the validity  of  the will of  Mrs.  Manning, who
was proved to have been insane for several years, but the disor-
der was not uniform ; nor did it always  attack her with an equal
degree of violence.  She was at large during the greater part of
her life, and under her  own  government.  From  the  testimony

insanity at the time when a will was executed, where the testator is shown to have
bern previously afflicted with the mental debility attending old age, than there  is
where the mental malady is ordinary lunacy."
  * Ayrey v. Hill, 2 Addams, p. 206.  See also  Dodge v. Meech, (where the will
was invalidated,) 1 Haggard's Ecclesiastical Reports, p. 612.
  + 1 Addams, p. 229.  See also Lemann v. Bonsall, Ibid. p. 383.
  t Burrows v. Burrows, 1 Haggard's Ecclesiastical Reports, p. 109. 
656
MENTAL ALIENATION.
 of the clergyman, the solicitor,  the  two  apothecaries, and the
 nurse, " with all their suspicions awakened, and their vigilant ob-
 servations called forth," it appeared that  she was sane and ra-
 tional during  the  transaction ; and indeed it seems proved, that
 she  continued so until her death, which  was on  the  next day.
 The  disposition of  her property as  made by the  will, was
 " neither insane nor unnatural."  Sir John Nicholl, (the judge,)
 therefore pronounced it valid.*
  In another  case,  (Cartwright  v.  Cartwright,)  Sir William
 Wynne  enters more in detail into the circumstances  which go
 to prove the existence of a lucid interval.   " If it can  be proved
 and established, that it is a rational act rationally done,  the whole
 case is proved.  What  can you do more  to establish the  act ?
 Because, suppose you are able to show the party did that which
 appears  to be a rational act, and it is his own entirely,  nothing  is
left to presumption in order to prove a lucid  interval."   The de-
ceased, by  herself writing  the will now  before the court, had
plainly shown that she had a full and complete capacity  to under-
stand the state of her affairs and  her relations, and to give what
was proper in the way  she  has  done.   She not only formed the
plan, but pursued and carried it into execution with propriety and
without  assistance.   He  was  therefore in  favour of the validity
of the will, and this sentence was affirmed  on appeal to the High
Court of Delegates.f
  Monomania—Haired against relatives.  One of the most  diffi-
cult  questions for decision, is where  the  charge of insanity  rests
on some obstinate and  long  continued feelings of hatred or ma-
lice  against individuals,  and  which  are  evidently groundless.
Thus Lord Erskine, in his speech on the trial of James  Hadfield,
speaks of a Mr. Greenwood, who, whilst insane, took up the idea
that his brother had administered poison to him, and this became
the  prominent feature  of his  insanity.  In a few months, how-
ever, he  recovered, and returned to his profession, (that of a bar-
rister) but  could never divest himself of the delusion that his
brother  had attempted to poison him, and  under its influence he

  * 1 Phillimore's Ecclesiastical Reports, p. 84.
  t 1 Phillimore, p. 90.  But  in Groom and Evans v. Thomas, where the deceased
was proved to  have been insane both  before and after making the will, testimony
showing calmness and the transaction of formal business, under the sanction of his
family, was not deemed sufficient to rebut the presumption against the papers.   It
was, however, very doubtful, whether the testator had a lucid interval.  (Haggard's
Ecclesiastical Reports, vol. 2, p. 433.) 
MENTAL ALIENATION.
657
disinherited him.  On a trial in the court of King's  Bench, the
jury found against  the will, but a contrary verdict was had in
the court of common pleas, and the suit ended in a compromise.
  Another case of the same description, is that of Dew v. Clark,
which forms the subject of one of Sir John Nicholl's most elabo-
rate and able  opinions, and I cannot omit recommending its at-
tentive perusal to all  of  my  young legal friends who wish to
understand this intricate species of insanity.
  Ely Stott died a rich man—leaving a widow (the third  wife)
and an only child.  This child, a daughter, (now Mrs. Dew) was
of the first marriage, and born in 1788, and it was  shown that
from her  earliest infancy  he  had laboured under the strongest
aversion against her, declaring that she was invested by nature
with a singular depravity, was the victim of vice and evil, &c,
and he continued in this opinion and made  similar assertions as
she advanced in life, and even until his  death, in 1821.  He  left
her £100 per annum, and she  now sought, on the ground of his
partial insanity, to break the will.
  When the first application was made to Sir John Nicholl, he
explicitly stated, that  " no course  of  harsh treatment, no sudden
bursts of violence, no  display of unkind or even unnatural feeling
merely, can avail in proof of the allegation; she can only prove
it by making  out a case of  antipathy,  clearly resolvable  into
mental perversion,  and plainly evincing that the deceased was
insane as  to her, notwithstanding his general sanity."
  His decision on  the will occupies many pages.  He inquires
what is the true criterion or test of the presence of insanity, and
in answer, deems it comprisable in a single term, viz. delusion—
a delusion out of which the patient is incapable of being perma-
nently reasoned.  The term partial  insanity is perfectly conso-
nant with  the law of England—a  man is not mad on all subjects.
  In  addition  to  the  circumstances  mentioned above, as  to the
delusion of Mr. Stott against his  child, it was  proved by many
witnesses, that even in early age,  the burden  of his conversation
was her depravity and profligacy ; and this went on  from year
to year, progressively increasing.   His  treatment of  her was
harsh to an extreme ; he burst into rage whenever she appeared*
and could  not  bear the sight of  her.  She never sat down to
table with him, was compelled to  do the most menial work, and
was denied every  thing,  except  the most  common  articles  of 
658
MENTAL  ALIENATION.
dress.  He stripped her naked and flogged her, and then rubbed
her back with brine ;  and even when a woman grown, of 17 up
to 21, would  knock her down  and strike her with a whip.   She
fled from these cruelties, and received, through the assistance of
her friends, a situation in a school, and where  she was fitted  for
a governess.   The  clergyman of the parish, to whom Mr. Stott
had complained of his daughter, became  acquainted with  her,
and was  surprised to find her far different  from what had been
represented.  Fruitless efforts were made by him and  her to pro-
duce a reconciliation, but  he  states that the  mere sight of her
appeared to excite the father, and he did not deem it safe to leave
her in  the  house.   " The deceased's state  of  mind was clearly
and essentially different from that of a merely wicked man or of
one under the influence of a prejudice, however strong."  It was
a  complete  delusion,  which he  had no power of resisting, and
which was liable to, and did, go frightful lengths, in the absence
of temporary external restraints.
   It appeared in testimony, that Stott had  required his daughter
to write down her thoughts for his inspection.
   Other  circumstances were  proved, indicative of insanity on
several subjects—such as his conduct to his first wife, his blas-
phemy while reading  the Bible, and his extraordinary  prayers.
   He was a medical electrician, and conceived himself endowed
writh supernatural powers in the use of his apparatus.  He had
also imbibed an  idea of the  feasibility  of delivering pregnant
females  by means of  this agent,  and actually proposed to a
neighbouring baker, to try the experiment on his wife.
   The will was declared void.*
   In a recent case,  the testator had been a  fellow  of Queen's
College,  Oxford, and  for the last twenty years of his life, rector
of a living belonging to that college.   He  was always eccentric
in his habits, and of late years had been very  retired.   In conse-
quence of being  taken very ill, and two of his servants  at the
same time, with  vomiting and purging, he believed  that an at-
tempt  had been made to poison him.  On the advice of his soli-
citor and  physician, who then  thought  that he  had  rational
grounds  for his  suspicions, an investigation was  made, but the
gentlemen who conducted it were satisfied that there  were none-
The testator, however, remained in the belief, that the eggs, milk
    * Dew v. Clark, in 1 Addams, p. 279, 2 Ad.lams, p. 102, 3 Addams, p. 79. 
                     MENTAL ALIENATION.                 659

and butter sent  to  him by Harrison, his nephew-in-law, and his
church warden,  were poisoned, and this continued to his death.
  The will was all in the testator's hand-writing, without erasure
or alteration, regularly attested by two clergymen, who, although
aware of  his opinion respecting  poisoning, unhesitatingly swore
to their belief of his perfect mind.  The solicitor  and  physician
gave  similar  testimony.  His property  was  all  bequeathed  to
Queen's College, in trust for the poor of the parish where he re-
sided, and it appeared on the trial that he expressed an intention
of doing this long before he had the notion of poison.
   The testamentary papers  were opposed by  the next  of kin, on
the ground that they were prepared and executed when the tes-
tator was impressed with the belief of poisoning, and while he
was of unsound mind  and  under mental delusion.   Sir John
Nicholl said, that " at all events, it was a case of monomania, for
upon every other subject, from the time in question to  his death,
the deceased  acted  as a  person of sound  mind, as much as he
had ever been;  he managed  his house, his property and his farm,
granted leases, received tithes, kept accounts, recognised his will,
held rational conversation, and did church duty.  A monomaniac,
to affect  such an  instrument, under such circumstances, should
be clear  in point of existence and decided in character, beyond
all doubt.  That the deceased thought and believed  that an at-
tempt  had been made  to poison him, seemed to  be a fact esta-
blished ;  but  was it proved  than his opinion in that respect was
a mere morbid insane delusion, rendering him intestable 1   The
question was not, whether the attempt to poison was really made,
but whether  he  had  grounds for suspecting it 1   or whether, as
pleaded,  ' the deceased had no rational grounds whatever for his
belief.' "   The court pronounced in favour of the will.*
   The following case was   adjudicated  in Kentucky, in  1822.
George Moore  made his will on the 11th of April, 1822.   He
was sick  and low, but in his right mind, and indeed more so than
the witnesses had seen him for some time.   About twenty-four
years previous to his death  he had been seized with a dangerous
fever, from  which  he, unexpectedly  to all,  recovered.  Some
years afterwards, he indulged in habits of intoxication, and these
continued to the period of  his dissolution.  When not under the

   » Haggard's Ecclesiastical Reports, vol. 3, p. 527.  Shelford,  p. 301.  Fulleck v.
Allinson. 
660
MENTAL ALIENATION.
 influence of liquor, he was feeble and  inactive; and it was pre-
 cisely in this situation that he executed his will, evincing intelli-
 gence sufficient, in the opinion both of his  physician and the at-
 testing witnesses.  The court therefore observed, that they would
 have no hesitation in admitting the instrument to record, were  it
 not for the following circumstances.
   The testator was a bachelor, but had  two or three brothers
 who resided within the state.  He owned a female slave, his mis-
 tress, and who possessed  considerable influence over him.  During
 his severe illness, many years  previous, he was completely de-
 ranged, talked much of  his immense wealth, and then conceived
 an antipathy to  his brothers, contending that  they  designed to
 destroy or injure him, although they attended him constantly in
 his illness.   This antipathy continued, with a  single exception,
 when he made a wrill in their favour, (afterwards cancelled) until
 his death.  When inquired of by one  of  the witnesses, why he
 disinherited his brothers, he  became violently irritated, and de-
 clared that  they had  endeavoured to  get his  estate before  his
 death.  " He  cannot, therefore," said the court, in their opinion,
 " be accounted a free agent in making his will, so far as his rela-
 tives  are concerned, although free as  to the rest of the world.
 But however  free he may have been as to other objects, the con-
 clusion is irresistible, that this peculiar  defect of intellect did  in-
 fluence his acts in making his will, and for  this cause  it ought not
 to be sustained.  It  is not only this groundless  hatred or malice
 to his brethren that  ought to  affect his will, but also his fears of
 them  which he expressed during  his last illness, conceiving that
 they were attempting  to get away his estate before his death,
 or that they were lying in wait to shoot him, while on other sub-
jects  he  spoke  rationally.  All which are strong evidences of a
 derangement  in  one department of his mind, unaccountable  in-
 deed, but directly influencing  and operating upon the act which
 is  now claimed as the final disposition of the estate."
   The counsel for the appellants presented a petition  (in writing)
 for a re-hearing, in which the objections to the  doctrine of par-
 tial insanity are considered.   It is well  worthy of perusal, and its
 main object is to show that what by many are deemed delusions
of the head, may originate from depravity of the heart.  The court.
however,  overruled "the petition.*
    * Littel's Kentucky Reports, vol. 1, p. 371.  Johnson v. Moore's heirs. 
                      MENTAL  ALIENATION.                  661

  Esquirol relates the following case as occurring in France.  A
respectable individual, 44 years old, of large property, and hold-
ing a  very  lucrative  office, became  exceedingly discontented
with the division of some  property made by his parents during
their lifetime.   He was  suspicious of all, but particularly of his
brothers and sisters.   This soon extended to his domestics, whom
he believed  in a plot against him.  He supposed himself sur-
rounded by assassins, and went constantly armed.  An anony-
mous letter completed his  distracted state.  In this condition  he
made his will, in which he stated his apprehension of being mur-
dered  by his  relatives, domestics, &c.  and left  his property to
several persons whom  he deemed  his friends.  Shortly  after,
however, he revoked  several  legacies,  because the  individuals
had proved traitors to him, revealing his secrets, and becoming
accomplices of his relatives.  In six days after signing a third
codicil, he hung himself, and in his room a letter was  found, say-
ing that in consequence of discovering new plots, he had resolved
to destroy himself.  Esquirol was consulted on the validity of the
will.   This change had  gone  on for three years, and  was lite-
rally a panophobia—a fear  of every  body—although,  on other
subjects, he had appeared rational.  He did not doubt the insanity
of the testator.*
   As to the  mode of proving whether an individual is competent
to make a will, this, of course, must be according to the  ordinary
rules of evidence.  A testator is  always deemed sane  until the
contrary is proved; and the onus probandi, as to his mental inca-
pacity, lies on the party who alleges his insanity.  But if a men-
tal derangement has been  proved, it is then incumbent on the de-
visee to show  a lucid interval, or the sanity of the testator at the
time of executing the will.f
   An  extraordinary case was tried in  1762, in the King's Bench
in England, where the three surviving witnesses to the  testator's
will, and the two surviving ones to a codicil made four years sub-

  * Annales D'Hygiene, vol. 3, p. 370.  A similar case, where long continued jea-
lousy led to suicide, was tried at Liege in 1802; and the will made under the influ-
ence of this passion was annulled. (Causes Celebres, par Mejan, vol. 13,  p. 427.)
  t Johnson's Reports, vol. 5, p. 144.  Jackson ex dem. Van Duzen and others, v.
Van Duzen.
  In a case however, where the attesting witnesses were disinterested medical men,
and gave evidence strongly in favour of the testator's sanity, the Ecclesiastical Court
would not set aside the will, on proof  by interrogatories, without plea, that the de-
ceased seventeen years before, had been under an insane delusion. (Haggard's Ec
clesiastical Reports, vol. 3, p. 273. Kemble and Smales v. Church.)
   VOL. I.                     56 
662
MENTAL  ALIENATION.
sequent to the will, and a dozen servants of the testator, all unani-
mously swore him to  be utterly incapable of  making a  will, or
transacting any other business, at  the time of making the  sup-
posed will and codicil, or  at  any intermediate time.   To  en-
counter this evidence, the counsel for the plaintiff examined seve-
ral of the nobility and principal gentry of the county of Worces-
ter, who  frequently and  familiarly conversed  with  the   testator
during that whole period, and some on the day whereon  the will
was made;  and also two eminent physicians who occasionally
attended him, and who all  strongly deposed  to the entire sanity,
and more  than ordinary vigour of the testator.   Other testimony
corroborative of this, was  adduced; the validity of the will  was
established,  and subsequently several of the defendant's witnesses
were tried, and convicted of perjury.*

VI. Of the  deaf and dumb;  their capacity, and the morality of
                          their actions.
   On this  subject, little can be found in our jurisprudence;  but
the general rule deducible from adjudications, both in civil and
criminal cases, is, that they must be  judged of according to the
intelligence  and knowledge they are known  to possess.   A  deaf
and dumb person, educated at the present day under Sicard or
Braidwood, or in one of  the establishments of our own country,
mav certainly be deemed to understand  the morality of  actions
much better than one who has never had that advantage;  and
he accordingly would more readily be put in possession of  his civil
rights, or  be punished for any offence against the laws.f

   * Sir William Blackstone's Reports, vol. 1, p. 365. Lowe v. Joliffe. There is a
curious case  related in Scotch law books, of a man obtaining the signature of a deed
from his wife, whilst she was in extreme labour pains.  The judges decided that she
was not at that time in the full exercise of her reasonable faculties, and revoked the
deed.  This  happened in 1686.
   t " A person  born deaf, dumb and blind, is looked upon by the law as in the same
state with an idiot, he being supposed  incapable of any understanding, as wanting
all those senses which furnish the human mind with ideas."  But if he grow deaf,
dumb and blind, not being  born so, he is deemed non compos mentis, and the same
rule applies to him as to other persons supposed to be lunatics. (Blackstone, vol. 1,
p. 304.)  See, also, Dyer's Reports, 56, a. Yong v. Sant.
   The Code of Justinian appears to have considered the deaf and dumb  as incapa-
ble of receiving instruction, and unworthy of having civil rights; as it declares that
they shall not have the power to make any will or disposition of property, or to free
a slave. (London Journal of Education, vol. 3, p. 204. " The disabilities  which the
Roman law and the older codes of every European Jurisprudence imposed on the
deaf and dumb, were all founded on the principle, surdus natus est mutus et plane
indisciplinabilis, as Molinaeus has it."   Edinburgh Review, vol. 61, p. 219.  Amer.
Edit. 
MENTAL ALIENATION.
663
  A person born deaf and dumb, is competent as a witness, pro-
vided he evinces sufficient understanding.   This was decided in
the following case:
  At the Old Bailey, January sessions, in 1786, on the trial of
William Bartlett for simple grand larceny, John Ruston, a man
deaf and dumb from his birth, was produced as a witness on the
part of the crown.  Martha Ruston, his sister, being examined
on the voir dire, it appeared that  she and  her brother had been,
for a series of years, enabled  to understand each other by means
of certain arbitrary signs and motions, which time  and necessity
had invented  between them.  She acknowledged that  these signs
and motions  were not significant  of  letters,  syllables, words or
sentences ; but were expressive of general propositions and entire
conceptions of the mind, and the subjects of their conversation had
in general been confined to the domestic  concerns and familiar
occurrences of life.  She believed, however, that her brother had
a perfect knowledge of the tenets of Christianity; and was certain
that she could communicate to him true notions of the moral and
religious nature of an oath, and of the temporal dangers of  per-
jury-
   It was objected by the  prisoner's counsel, that although these
modes of conveying intelligence,  might be capable of impressing
the mind with some simple ideas of the existence of a God, and
of a future state of rewards  and  punishments, yet they were ut-
terly incapable of communicating any  perfect notions  of the  vast
and complicated system of the Christian religion, and thence the
witness could not with propriety be sworn upon the holy gospels.
The difficulty of arraigning  a  man for perjury, whom the law
presumes  to  be an idiot, and who is  consequently incapable of
being  instructed in the nature  of the proceedings against  him,
was also urged against the admissibility of the witness.
   But the court overruled the objection,  and John Ruston was
sworn to depose  "the truth;" and Martha  Ruston, "well and
truly to interpret  to John Ruston, a witness here produced in
behalf of  the King against William  Bartlett, now a prisoner at
the bar, the questions and demands made  by the court to the said
John Ruston, and  his answers made to  them."   The prisoner
was  found guilty,  and received sentence of transportation for
 seven years.*
    * Phillip's Law of Evidence, p.  14.  Leach's cases in down Law, p. 455. 
664                  MENTAL  ALIENATION.

  In  Scotland the deaf and dumb may be witnesses, if of suffi-
cient  intelligence to understand the nature of an oath.  Thus the
chief witness in  a case of rape was deaf and dumb, but had been
instructed, and her intelligence proved by an examination of her
teachers.*
  In  France, if  the accused cannot write, some person intimate
with him, is  to be appointed his interpreter.   So  also with a deaf
and dumb witness.  If they can write, the  inquiry is to  be con-
ducted by question and answer.|
  The deaf and dumb are also allowed to obtain possession of
their  real estate, if they show sufficient understanding.  A female
so situated, on attaining the age of twenty-one, applied  to Lord
Hardwicke (1754) for this purpose.  Having put questions to the
party in writing, and she  having given sensible  answers  thereto
in writing, the same was  ordered.J
  As to criminal cases, the following may be cited: a deaf and
dumb person was indicted for larceny  in Massachusetts, and
being set to  the  bar  for  his arraignment,  the  solicitor  general
suggested to the court that he  was deaf and dumb, but -that the
evidence would  prove him  of  sufficient capacity to  be a proper
subject for a criminal prosecution, and that  he had formerly been
convicted of larceny, and  he moved  that  one  Nelson  then in
court, and an acquaintance of the  prisoner, should be sworn to
interpret the indictment to him, as it should  be read by the clerk.
The indictment  was accordingly read by a  sentence  at  a  time,
and Nelson, having been  sworn,  explained its  purport  to  him,
making  signs with his fingers.  After which, the court  ordered
the trial to proceed, as on a plea of not guilty.§
   A  very curious  case came  before  the court of justiciary in
Scotland, on the 1st of July, 1807. The prisoner, Jean Campbell,

  * Alison's Practice of Criminal Law of Scotland, p. 436.
  + Code D'Instruction Criminelle, art. 333.
  X Dickenson v. Blisset—1 Dickens' Reports, p. 268. See also on this subject gene-
rally, Johnson's Chancery Reports, vol. 4, p. 441—Brower v. Fisher.
  § Massachusetts Reports, vol. 14, p.  207. Commonwealth  v. Timothy Hill.  A
similar case occurred at the Old Bailey in 1773.  One Jones, being deaf  and dumb,
was indicted for stealing.   A  person, to whom he had been in the habit of communi-
cating his ideas by signs, was sworn as an interpreter to him.  The trial proceeded
and he was convicted.  King v. Jones. (Leach's C. C. Cases, p. 120. See also King
v. Steel, Ibid. p. 507.)
  By the law of the state of Ohio, if a  person stands mute, a jury is to try whether
he is so by the act of God, and if they find this, he is to be remanded to prison, and
not proceeded against,  until he  recovers.  The Reviewer very properly  asks, what
is to be done with a  person born deaf and dumb.  (American Quar. Review, vol. 10,
p. 46.) 
MENTAL  ALIENATION.
665
alias Bruce, was charged with murdering her child, by throwing
it over  the  old bridge at Glasgow.   Mr. McNeil, her counsel,
stated an objection against her going to trial, on the ground of her
being deaf and dumb  from her infancy, and that he was totally
unable to get any information from her to conduct her defence.
  Mr. Drummond, counsel for the crown, now gave in a minute,
stating that he was satisfied of the prisoner's being deaf and dumb
from her infancy, but he offered to prove that she was capable of
distinguishing  betwixt  right and wrong,  and was  sensible  that
punishment followed the commission of crime.
  He then called  the following witnesses:
  Thos.  Sibbald,  keeper of the jail.   Prisoner has been  two
months  in the jail of Edinburgh; conducted herself rationally;
made signs  to the turnkey of a certain description when she
wanted any  thing, and when the  articles were brought her she
seemed satisfied; he has also seen her  make signs to herself,  as if
taking something out of her breast and  counting it with her hands;
and that when she came first into prison, she clasped  her hands
together and made a sign as if something had fallen from her
back, and seemed to indicate distress of mind; that he has  seen
her weep while in prison; and  upon certain  kinds of food having
been brought to her, he  has  observed her express  herself as if
satisfied; and when she was weeping,  as before  mentioned, she
made the same signals as if something had fallen from her back.
  Robert Kinniburgh, teacher of the Deaf and Dumb  Institution,
deposed, that he had seen the prisoner once in the jail at Glasgow,
and repeatedly in  the jail of Edinburgh; that he has had communi-
cation with  her by means of signs; in  general he understood her,
but in particular instances he did not; that she, by her  signs, com-
municated to him the circumstances which took place relative to
her child ; that the death of her child was altogether accidental,
and that when it happened, she was intoxicated; that she commu-
nicated to him, that upon  that occasion the child was upon her
back, covered with her petticoat and duffle cloak: and as he un-
derstood her, she  had held them together upon her breast with her
hand, while she rested the child upon the parapet of the bridge
over which the child fell while she was in the act of putting her
hand in her breast, where she had money, and which she was afraid
was lost, and  by  so putting her hand in her breast he understood
she had lost hold of her child, at which time the child was asleep,
                             56* 
666
MENTAL  ALIENATION.
and had then fallen over the bridge.  She communicated to the
witness, that before the act, she had that day drank eight glasses
of spirits.  That  his communications with the prisoner chiefly
turned upon the accident, and  that she seemed to understand him
about as much as  he understood her; that is, in general, but upon
some particular occasions she did not; that she can make the ini-
tial letters of her name, but  inverts them, C. J.; and when she
does so, points to herself, which leads him to think  she  under-
stands them: that she makes two or three other letters, but is not
sure if they denote her children or not.   He understood from her
that she had three children, and that the one the accident happened
to was  one of them;  that he rather suspected that she was not
married, as the children were to  different individuals; that as far
as the communications could  take place betwixt him and the pri-
soner, she is a woman of strong powers of mind: that nothing
appears to have been wanting, humanly speaking, to have  saved
her from  the pitch of depravity she  appears to  have attained,
but some hand to have opened for her the treasures of knowledge
in proper time: that he conceives that the prisoner must be pos-
sessed of the power of  conscience in a certain degree, and that
she seems a woman of strong natural affection towards her chil-
dren, as he was informed by persons  at Glasgow; and which she
manifested by the indignant denial of the  charges of having wil-
fully killed her child, and her immediate assertion that it lost its
life by accident; as well as from observations he has made as to
the state of mind  of other uneducated deaf and dumb persons, and
particularly in one  instance,  in  the  report of the  Institution for
 1815, page 54, he is of opinion, that if not blunted by intoxication,
these feelings must have convinced her of the criminality of be-
 reaving her child  of life.  That in his communications with the pri-
 soner, he was satisfied she was sensible of  the criminality of theft,
 but he cannot say any thing as to the abstract crime of murder in
 general.  That she communicated to the witness her indignation
 at the fathers of her children for the  way  they used her, and one
 of whom she has sometimes represented as  her husband.   That
 sometimes he could not understand whether she understood the
 ceremony of marriage or not, or sometimes wished to evade  the
 questions, or did not understand them;  that he has seen her  use
 the form of a ring as a token of marriage; and she made signs that
 that had been taken away by the  man  she called her husband : 
MENTAL  ALIENATION.
667
that is to say, that the  marriage had been dissolved by him, and
he had  taken another wife.   That from what he saw of her at
Glasgow, as well as what he observed in the  jail of Edinburgh,
he is convinced she was  aware  that she was  to  be  brought at
Glasgow before a court of justice, and that he was confirmed in
this from his having  a conversation with a woman  there, who
seemed  to  understand her  signs perfectly well in general; and
who mentioned to him that she had made signs to her with regard
to the dress of the judges: that he understood that she connected
the death of her child with her appearance in court.  (Being in-
terrogated by the court whether he is of opinion that the prisoner
could be made to understand the question, whether she is guilty
or not guilty of the crime of which she is accused ?)  Answers—
that from  the way in which he put  it,  by asking her by signs,
whether she threw her child over the bridge or not ? he thinks she
could plead not guilty by signs, as she has always communicated
to him, and this is the only way  in which he can so put the ques-
 tion to  her; but  he  has no idea, abstractedly speaking, that she
 knows what a trial is, but that she knows she is brought into court
 about her child.  That she has no idea of religion, although he has
 seen her point as if to a Supreme Being above; and communicates
 merely by natural signs, but not upon any system; that he could
 not obtain from her, information where  her supposed husband is,
 or what was his name; neither could she communicate by natu-
 ral signs any particular place, unless he had been at that place
 with her before, or had some mark for it; and that she could not
 communicate to him about any person unless there was some sign
 by which  he could bring that individual to her recollection, or had
 been seen together in certain circumstances;  that in referring to
  the accident, the prisoner communicates that there was a baker's
  boy near  her who heard the child plunge into the water and gave
  the alarm, and that upon this she laid her hands upon the ears of
  her little boy near her,  but  for what purpose he cannot say, un-
  less to prevent him from crying out.
    Here the  court  expressed a wish to see Mr. Kinniburgh put
  the  question to  the witness  in open court, and she  answered  by-
  signs in the same manner as he had described.
    The Lord Justice Clerk thanked Mr. Kinniburgh  for his atten-
  tion, and  the assistance the court had derived from his professional
  skill. 
668
MENTAL  ALIENATION.
  Dr. William Farquharson stated, that he twice visited the pri-
soner in the jail of Edinburgh; on the first occasion alone and on
the second, along with Mr. Kinniburgh and another gentleman:
that she fully satisfied him that she was not feigning to be deaf
and dumb: and  that  when he first saw her, she did not seem to
understand his signs so well as after being visited by Mr. Kinni-
burgh ;  and  the  witness made that observation to Mr. Kinni-
burgh himself: that he had communications the first time with her
as to the loss of her child, and used signs in regard to a child then
in prison, as if throwing it away; upon which she made  the same
signs as to the accident, as she has now done to Mr. Kinniburgh
in presence of the court: that she appeared to the witness to know
as little of the distinction between right and wrong, as a child of
six  months old; and  that  she did not appear to be  conscious of
having done any thing wrong whatever in regard to  the child :
that in giving the above opinion, he has formed it from  the facts
of the prisoner having been both  deaf  and dumb, and having re-
ceived no education whatever.
  John Wood, esquire, auditor of excise, [who is deaf  and par-
tially dumb,]  gave in a written statement upon  oath, mentioning
that he had visited the prisoner in prison, and was of opinion that
she was altogether incapable of pleading guilty or not guilty;
that she stated  the circumstances by  signs, in  the same manner
she had done to the court, and seemed to be sensible that punish-
ment would follow the commission of  a crime.
  The court  were unanimously of opinion,  that this novel and
important question, of which no precedent appeared in the law of
this country,  deserved grave consideration, and every informa-
tion the counsel on each  side could procure and furnish.  The
court then ordered informations on each side to be prepared and
printed.
  At a subsequent period, the judges delivered their opinion as
follows:
  " Lord Hermand was of opinion that the pannel [prisoner] was
not a fit  object of trial.   She was deaf and dumb from her in-
fancy ; had had  no instruction whatever; was  unable to give in-
formation to  her  counsel—to communicate the names of  her
exculpatory witnesses, if she had  any;  and was unable to plead to
the indictment in any way whatever,  except  by certain  signs. 
                       MENTAL  ALIENATION.                   669

 which he  considered, in point of law, to  be no pleading what-

   " Lords Justice Clerk, Gillies, Pitmilly and Reston, were of a
 omerent opinion.  From the  evidence  of Mr. Kinniburgh and
 Mr.  wood, they were of opinion that the pannel was doli capax
 quoad  the actual crime she was charged with.   It was true that
 this was a new case in Scotland, but in England  a case of a
 similar  nature had occurred.   One Jones was arraigned at the
 Old Bailey in 1773, for stealing five guineas.   He appeared to be
 deaf and dumb.  A jury was impannelled to try whether he wil-
 fully stood mute, or from the visitation of God; they returned a
 verdict 'from  the visitation of  God;' and  it  having appeared that
 the prisoner had been in the use of holding conversation by means
 of signs, with  a woman of the name of Fanny Lazarus,  she  was
 sworn an interpreter.  He was tried, convicted, and  transported.
 In the present case, the pannel had described to Mr. Kinniburgh
 most minutely the manner in which the accident had  happened to
 her child; and from the indignant way in which she  rejected the
 assertion that she had thrown it over  the bridge, it was  evident
 she was sensible that to murder it was a  crime.  It was  also ob-
 served by Lord Reston, that it would be an act of justice towards
 the pannel herself, to bring her to trial; for if the court found she
 was a perfect  non-entity, and could not be tried for a crime, it fol-
 lowed as a natural  consequence, that the  unhappy woman would
 be confined for life; whereas  if she was  brought to  trial, and  it
 turned out that the accident occurred in the way she described it,
 she would immediately be set at liberty.   The court  found her a
 fit object for trial."*

   * The first part of this case  I  have taken from an English newspaper, and the
 opinion of the judges, from Smith's Forensic Medicine, p. 430.
   The sequel of this is worthy of record.  The woman was brought to the bar, and
 the indictment read in the usual form ; the question  was then put, guilty or not?
 Mr. McNeil, the counsel for the prisoner, then rose, and stated that he could not al-
 low his client to plead to  the indictment, until it was explained to her  that she was at
 liberty to plead guilty or not'.  Upon it being found that this could not be done, the case
 was dropped, and she was dismissed from the bar simpliciter.  Thus, though it is es-
 tablished that a deaf mute is doli capax,no means have yet been discovered of bring-
 ing him to trial.
  "Another interesting discussion took  place last winter in the High Court of Justi-
ciary, as to whether or not a deaf mute was capable of giving evidence.  A rape had
been committed on a deaf and dumb girl, and her evidence was objected to by the
counsel for the prisoner,  who argued, that though it was admitted to the fullest extent
that she had a perfect idea of the existence of a Supreme Being and  a future state,
and though she might be perfectly convinced of the obligation under which she lay
to speak the truth, yet every one had as perfect a knowledge at least of these  facts 
670
MENTAL ALIENATION.
   A case quite similar occurred at the York Assizes in England,
 in 1831.  The prisoner a girl deaf and dumb, was indicted for
 the murder of her infant bastard child.  Through an interpreter,
 she plead not guilty.  She was then asked, through the interpreter,
 if she desired to challenge any of the jurors.  The interpreter in-
 formed the court  that he could  not make her understand what
 was meant.  " I cannot (he  said) make her understand any thing
 she has  not seen before.  I can make her understand what she
 was brought here  for, but I cannot make her understand for what
 purpose she now stands in  court."  The  Judge  (Parke) impan-
 nelled a jury, to try whether she was sane or not, and testimony
 to the above effect, having been given by two witnesses, the jury
 were directed  to inquire whether the prisoner is sane, not whe-
 ther she is  at  this moment  labouring under lunacy, but whether
 she has at this time sufficient reason to understand the nature of
 this proceeding, so as to be able to conduct her defence with dis-
 cretion.   The jury returned a verdict that she was insane.*
   There are several points connected with the subject of men-
 tal alienation, which properly belong to Medical Police.  Of this
 nature are the  general causes, and the possibility of  their remo-
 val.; the treatment the insane should receive, and the care that
the government should bestow on their safekeeping.f

and obligations as she could possibly have, yet their testimony went for nothing un-
less confirmed by an oath; and as it was obvious that she could not give an oath, her
testimony must go for nothing."                               Dunlop.
  * Lewin's Crown Circuit Reports, p. 65.   Case of Esther Dyson.
  t There have been some recent trials of deaf and dumb persons for  robbery, in
Paris.  T^ey appear to have been uneducated, and were acquitted.  (Causes Cele-
bres du xix siecle, vol. 4, p. 193.)  One of the cases is noticed in the American Ju-
 rist, vol. 3, p. 158.
 
 
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