ELEMENTS 
r 
OF 
V 
MEDICAL JURISPRUDENCE. 
BY 
THEODRIC ROMEYN BECK, M. D. 
PROFESSOR OF THE INSTITUTES OF MEDICINE, AND LECTURER ON MEDICAL JURISPRUDENCE 
IN THE COLLEGE OF PHYSICIANS AND SURGEONS OF THE WESTERN DISTRICT 
OF THE STATE OF NEW-YORK, etc. etc. 
ANI} 
JOHN B. BECK, M. D. 
PROFBSSOR OF MATERIA MEDICA AND MEDICAL JURISPRUDENCE IN THE COLLEGE OF 
PHYSICIANS AND SURGEONS, NEW-YORK; ONE OF THE PHYSICIANS 
TO THE NEW-YORK HOSPITAL, etc. etC. 
FIFTH EDITION. 
IN TWO VOLUMES. 
VOL. I. 
PUBLISHED BY 
O. STEELE, E. W. AND C. SKINNER, W. C. LITTLE, AND 
W. AND A. GOULD, ALBANY; 
R. AND G. S. WOOD, G. AND C. CARVILL, C. S. FRANCIS, NEW-YORK; 
DESILVER AND THOMAS, PHILADELPHIA. 
ALBANY: 
PRINTED ON STEAM PRESSES, BY PACKARD AND VAN BENTHUYSEN. 
1835. [Entered according to the Act of Congress, in the year 1835, 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, 
THIS WORK 
IS RESPECTFULLY INSCRIBED. PREFACE. 
In preparing the present edition of this work for 
the press, I have found that an amount of labor was 
required, equal to that originally bestowed on it. 
This has arisen from the numerous and important 
additions made to the science of Medical Jurispru- 
dence 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 previously noticed, viz. Insurance 
upon Lives, and Medical Evidence. 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 derived most of my materials, and to which I 
have always given due credit, I must not omit ac- 
knowledging the use of the Manuscript 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 J. S. 
Stringham, esquires; and for the latter, as delivered 
at Edinburgh, to their author. 
Drs. Dunlop and Darwall, the successive editors 
of the English editions, also enriched the work with 
numerous and valuable notes. These I have pre- PREFACE. 
served in the present edition, not only for their in- 
trinsic worth, but as a mark of respect and gratitude 
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 al- 
lowed 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 consi- 
dered it a bare act of justice, 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. 
Page. 
Introduction, . ix 
Chap. 1. Feigned Diseases, 1 
Chap. 2. Disqualifying Diseases, 50 
Chap. 3. Impotence and Sterility, 67 
Chap. 4. Doubtful Sex 94 
Chap. 5. Rape, Ill 
Chap. 6. Pregnancy, 152 
Chap. 7. Delivery, 206 
Chap. 8. Infanticide, (by Dr. J. B. Beck,) 271 
Chap. 9. Legitimacy, 449 
Chap. 10. Presumption of Survivorship, 487 
Chap. 11. Age and Identity, 503 
Chap. 12. Insurance upon Lives, 518 
Chap. 13. Mental Alienation, 534 INTRODUCTION. 
Medical Jurisprudence, Legal Medicine, or Forensic Medi- 
cine, as it is variously termed, is that science which applies the prin- 
ciples 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 comprehends 
Medical Police, or those medical precepts which may prove use- 
ful to the legislature or the magistracy. I shall employ it at this 
time in its restricted sense.* 
Traces of this science are to be found as early as the institution 
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 vir- 
ginity. Among the Egyptians, according to Plutarch, it was or- 
dained, that no pregnant woman should.suffer afflictive punishment 
—while the Romans, even from that early period in which Numa 
Pompilius flourished, grounded many of their laws on the authority 
of ancient physicians and philosophers. Propter anctoritatem doc- 
tissimi Hippocratis, is a phrase frequently met with in their deci- 
sions,! and the emperor Adrian, in extending 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 phy- 
siologists of that day.I Some detached, but striking medico-legal 
facts, are also mentioned by the Roman historians. Thus, the bloody 
remains of Julius Caesar, when exposed to public view, were exa- 
mined by one Antistius, who declared, that out of twenty-three wounds 
which had been received, but one was mortal, and that had penetra- 
ted the thorax, between the first and second ribs. The body of Ger- 
* If a general term be necessary to include both these sciences, I should prefer that 
used by the Germans, viz. State Medicine. 
f Belloc, p. 6. I Fodeig. Introduction, p. xiv. INTRODUCTION. 
manicus was also inspected, and by indications conformable 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 glimmerings 
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 Fifih of Germany, for the first public enactment, pre- 
scribing it as necessary, and thereby recognizing its value and im- 
portance. In the celebrated criminal code which was framed by him 
at Ratisbon, in 1532, and which is known by the name of the “ Con- 
stitutio Criminalis Carolina,” 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. 
“ The publication of such a code very naturally awakened the at- 
tention of the medical profession, and summoned numerous writers 
from its ranks”! It was the first regular commencement and ori- 
gin 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. pre- 
sented letters patent to his first physician, by which he conferred on 
him the privilege of nominating two surgeous in every city and im- 
portant town, whose duty it should exclusively be to examine all 
wounded or murdered persons, and to make 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 sur- 
geons.:}; At a subsequent period (1692,) physicians were by law as- 
sociated with surgeons in these examinations. 
* Fodere. Introduction, p. xxx. 
t Paris’ Medical Jurisprudence, vol. 1, p. x. 
t Fodere, vol. 1, Introduction, p. xxxii. INTRODUCTION. 
The writers who have investigated the science of medical juris- 
prudence, 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 myself with mention- 
ing 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 science. 
He was an Italian, and his work, “ De Relationibus Medicorum,” 
was published in 1598, at Palermo. Paulus Zacchias soon followed 
him, in his great work, entitled, “ Q,uestiones Medico-Legales,” 
which appeared at Rome between 1621 and 1635.* This distin- 
guished man rose to great eminence in his profession, and was phy- 
sician 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 au- 
thor. The following is a general outline of the contents of the first 
volume. First book. Age: Legitimacy: Pregnancy: Super feta- 
tion and Moles: Death during Delivery: Resemblance of children 
to their parents. Second book. Dementia: 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 in- 
vestigation of particular subjects. Tortosa, is spoken of, by Dr. 
Paris, as the best Italian systematic writer of the present century. 
In Germany, Bohn was among the earliest writers, but his trea- 
tise is confined to a consideration of wounds. The Pandects of Va- 
lentini, which appeared in 1702, and which were shortly followed 
by his Novellce, form a very complete and extensive retrospect of the 
opinions and decisions of preceding writers on legal medicine. They 
consist indeed of medico-legal cases, and the consultations of distin, 
guished physicians, and of medical and legal faculties on them. Al- 
berti, 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 collections that has ever appeared, is that edited 
* Life of Zacchias, prefixed to his Questiones Medico-Legales. XII 
INTRODUCTION. 
by Schlegel. It consists of upwards of forty dissertations on vari- 
ous parts of medical jurisprudence, written by his countrymen at 
different periods during the eighteenth century, and is alike honour- 
able to the national character, and the individuals whose investiga- 
tions appear in it. 
In our own days, the indefatigable industry and great learning of 
the Germans haye 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. 
Foder4, in his sketch of the history of the science in France, con- 
siders Ambrose Pare as the earliest writer on it in that country. His 
chapter on Reports, and his observations on feigned diseases, indi- 
cate 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 Freneh 
surgeon. To him, succeeded Gendri in 1650 ; Blegni in 1684, and 
Deveaux in 1693 and 1701. Their works were particularly intend- 
ed 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 indi- 
vidual who first promulgated a just idea of the science to his coun- 
trymen. 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 consultations also in vari- 
ous cases, and which are preserved in the Causes Ctdebres, abound 
in various and instructive learning. Some of his opinions gave rise to 
animated discussions, and thus excited public attention to these sub- 
jects generally. Winslow, Lorry, Lafosse and Chaussier, also de- 
serve notice among the French writers, while towards the conclu- 
sion of the eighteenth century, Professor Mahon, with several others, 
published in the “ Encyclopedic Methodique,” copious dissertations 
on Medical Jurisprudence.* 
In 1796, Foder4 published the first edition of his work in three 
octavo volumes, under the title of “ Les lois eclairees par les scien- 
ces physiques, ou Traite de medecine legale et d1 hygiene publique.” 
This learned physician was a resident of Strasburg, and the author 
of several other treatises of deserved reputation. In 1807, the system 
* Fodere, vol. 1, Introduction, p. xxxvii., etc. INTRODUCTION. 
of Mahon, late Professor of Legal Medicine, and the History of Me- 
dicine in the school of Medicine at Paris, appeared, with notes, by 
M. Fautrel, and about the same time, Belloc, a surgeon at Agen, pub- 
lished his sensible and useful treatise 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, be- 
sides adding two most instructive dissertations—one on the docimasia 
pulmonum, and the other on death by drowning. In 1812, Ballard 
published a translation, also from the German, of Metzger’s Princi- 
ples of Legal Medicine. This work is peculiarly valuable for the 
great learning displayed in its notes, and the opportunity thus afford- 
ed, of becoming acquainted with the sentiments of authors whose 
writings are either inaccessible, or in some degree antiquated. 
After bestowing great labour during several years, a second edi- 
tion of his treatise was published by Fodere in 1813. It was now 
extended to six volumes—four on legal medicine, and two on medi- 
cal police, and was undoubtedly, at the time of its publication, the 
most valuable systematic work on the science in the French language.* 
After a few years there appeared in Paris, one of the most origi- 
nal publications that the present age has yet afforded. I refer to 
the system of Toxicology by Orfila, a Spaniard by birth, but natu- 
ralized and permanently resident in France. This is copious, be- 
yond all former treatises, in original experiments, and it has done 
much to increase our knowledge of the action and the tests of indi- 
vidual poisons. The career of Orfila, so splendidly commenced, 
has been successfully and ardently pursued; and his lectures on Le- 
gal Medicine, his work on Juridical Disinterments, 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, Georget, Fal- 
ret, Marc, and many others, have either written regular treatises, or 
published on some one or other of the subjects included in the range 
of legal medicine. The most valuable French work, however, of 
the present day, is the Annates D' Hygiene et de Medecine Legale. 
This is issued quarterly, and is conducted by some of the ablest me- 
dical men in the kingdom. 
The first work, professing to treat of Medical Jurisprudence, that 
* Professor Fodere died at Strasburg in February of the present year, (1835,) in 
the 72d year of his age. INTRODUCTION. 
appeared in England, was the production of Dr. Farr. This was 
in 1788, and in his preface he mentions that it is derived from Faze- 
lius’ Elements of Forensic Medicine. It is brief and imperfect, ex- 
tending 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 sign of murder in the case of bastard 
children,” examined a most important and leading subject in medi- 
cal 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 jurisprudence. 
A second edition appeared in 1818. In 1821, Dr. John Gordon 
Smith published his excellent treatise, entitled “ The Principles 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.* 
In 1823, an elaborate and able work on “ Medical Jurisprudence,” 
in three octavo volumes, was offered to the British public by the 
eminent Dr. Paris and Mr. Fonblanque, a barrister. Since that time, 
the Manual of Dr. Ryan, the valuable and copious Treatise of Pro- 
fessor 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 important additions to our knowledge 
of the subject. 
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 he 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 
* 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 
it ought never to be forgotten, that he was one of the first to shew, and zealously to 
advocate, what all now acknowledge, its usefulness and dignity.” INTRODUCTION. 
even delivered, I believe, a course of private lectures,* but it was 
not until 1806, that Dr. Duncan, jun. received his appointment.! 
On the removal of Dr. Duncan to the chair of Materia Medica, 
he was succeeded by Dr. Christison, who again, on the death of 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 attend- 
ance on a course of lectures on Forensic Medicine was made a re- 
quisite 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.J 
* A sketch of the subjects included in the sciences of Medical Jurisprudence and 
Medical Police, may be found in an Analysis of Dr. Duncan’s Senr’s Memorial, pre- 
sented to the patrons of the University at Edinburgh, in 1798. (Coxe’s Medical Mu- 
seum, vol. 5, Appendix, p. 74.) 
f 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 acknowledged 
that he was ignorant of the duty of that professor, and could not comprehend what 
was meant by the science he professed." On the same day, Mr. Canning said, “ He 
could alone account for such a nominalion, 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 Medical Jurispru- 
dence.’ ” (St.ckdale’s New Annual Register, 1807, p. 206, 210.) 
t Session 1833-34. Session 1834-36. 
University of Edinburgh, .... Dr Traill. Dr Traill, 
London University, Dr A T. Thomson. Dr A. T. Thomson. 
King’s College, London, . . . . Dr T. Watson Dr T. Watson. 
Guy’s Hospital, Mr A. Taylor. Mr A. Taylor. 
St Bartholomew’s Hospital, . . . Dr Roupell and Dr Dr G Burrows. 
George Burrows. 
St George’s Hospital, .... Dr Seymour and Mr Dr H. Davies. 
C. Hawkins. 
St Thomas’s Hospital, . . , . Dr Lister and Mr R. Dr Lister and Mr R. 
Phillips Phillips. 
London Hospital, Dr Cobb, DrV.H Rams- The same. 
borham &. Mr Pereira 
Westminster Hospital, .... . . . . Dr R. IJ. Graham. 
Theatre of Anatomy, Webb-street, Maze Pond, Dr Southwood Smith The same. 
and Mr Cooper. 
Theatre of Anatomy, Little Windmill-street, Dr Sigmond, Dr Jewell Dr Jewell and Mr 
and Mr. Everett. Everett.  INTRODUCTION. 
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 twen- 
ty years, but its benefits to the community and to the profession are 
hut just developing.* 
In turning to my native country, I must premise, that as our lite- 
rature 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 medical jurispru- 
dence attracted but little attention until of late years. In 1810, the 
venerable and distinguished’Dr. Rush delivered an introductory lec- 
ture 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 
Session 1833-34. Session 1734-35. 
Central School of Medicine, St George and ) Dr Wvatt Crane. 
St James’s Dispensary, . * • ) } 
Western Dispensary, Dr Clendenning. 
Medical School, Aldersgate-street, . . Dr W. Cummin. Dr W. Cummin. 
Westminster School of Medicine, . . Dr Ryan and Mr Crump. 
School of Anatomy and Medicine, Giltspur-st. Mr Barnes and Mr Mr Hemming and Mr. 
Wheeler. Barnes. 
Charing Cross Hospital, .... .... Dr Sigmond, Dr Cbowne 
and Mr Maugham. 
Medical School, Westminster Dispensary, .... Dr Ryan. 
Theatre of Anatomy and Medicine, adjoining 1 S. D. Broughton, medical, 
St George’s Hospital, . ... \ and J. W. Willcock, legal. 
School of Medicine, Medical Dispensary, > .... Dr Venables and Dr 
13 Fore-street, Cripplegale, . . i Blundell. 
Practical School of Medicine, founded by ) .... Dr Litchfield. 
J. Brookes, Blenheim-street, . . j 
Medical School, Brown square, Edinburgh, Dr Fletcher. Dr Fletcher. 
Lecturer in Edinburgh, .... .... Dr. Ilowison. 
Royal College of Surgeons, Ireland, i . Dr T. Beatty. Dr T. Beatty. 
Dublin School of Anatomy, Surgery and Me- ) Dr G c yVatson. 
dicine, Digges-street, • ‘ ■ ) 
School of Medicine, Anatomy and Surgery, ) Dt Thomas G. Geoghegan. 
Park-street, Dublin, . ... S 
Leeds School of Medicine, ... Dr Disney Thorp. Dr Disney Thorp. 
Manchester School of Medicine, . . Mr Ollier. Mr Ollier. 
Birmingham School of Medicine, . . Dr Birt Davies. Dr Birt Davies. 
Sheffield Medical School, .... Mr Palfreyman and Mr The same. 
Thomas. 
Bristol Medical School, . • . . Dr J. A. Symonds and Dr Symonds. 
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, M’alms®'’ 
Nottingham, . . ■ • C. Attenburrow. 
The Lecturers on Medical Jurisprudence in London, during the Sessions of 1831-32, and 1232- 
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 Wildberg’s Bibliotheca Medicina 
Forensis. Berlin, 1819. INTRODUCTION. 
establishes the utility of the science. “ To animate you to apply to 
the study of all the subjects enumerated 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 har- 
mony and happiness may be restored; unjust and oppressive de- 
mands upon the services of your fellow citizens may be obviated; 
and the sources of public misery in epidemic diseases may be re- 
moved, by your testimony in courts of justice.”* 
In 1819, Dr. Thomas Cooper, formerly a judge in Pennsylvania, 
and lately president of the college of South Carolina, republished in 
one volume, several English tracts on medical jurisprudence, 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 added the publication of the 
first edition of the present work, the reprints of Ryan and Chitty, the 
former with notes by Dr. Griffiths, Professor Ducatel’s Manual of 
Toxicology, and the manual of Dr. Williams, I shall have [noticed 
the principal American publications on the science. Several valua- 
ble inaugural dissertations, with numerous cases- and essays in the 
medical journals must, however, be also mentioned, in order to com- 
plete the enumeration of what has been done in the United States. 
The individual who first delivered a course of lectures on Medi- 
cal 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 pro- 
fession, he became a pupil of the late Dr. Samuel Bard and Dr. 
Hosack, and diligently attended to all the branches of medicine then 
taught in New-York. He subsequently repaired to Edinburgh, be- 
came 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 Pro- 
* Rush’s Introductory Lectures, p. 392. INTRODUCTION. 
fessor of Chemistry in Columbia College, and for several years de- 
livered 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 
health shortly thereafter became impaired, and he died at the island 
of St. Croix (whither he had gone under the hope of improvement,) 
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 Me- 
dical Repository an account of the efficacy of Digitalis purpurea in 
allaying excessive action of the sanguiferous system; a description 
of a remarkable species of intestinal vermes; an account of the vio- 
lent 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 caesa- 
rean operation, virginity and rape, concealed pregnancy, pretended 
pregnancy, quickening, abortion, superfoetation, monstrosity, herma- 
phrodites, impotence and sterility, feigned diseases, concealed dis- 
eases, poisons, medico-legal dissection, wounds, infanticide, 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 Transylvania Uni- 
versity, Kentucky,) delivered a course of lectures on Medical Juris- 
prudence at Philadelphia. In 1815, I was appointed to this duty in 
the Western Medical College. Not long after, Dr. Walter Chan- 
ning was appointed Professor of Midwifery and Medical Jurispru- 
dence in Harvard University. Dr. Williams, late Professor in the 
Berkshire Medical Institution, and Dr. Hale of Boston, each lectur- 
ed 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. 
* Vol. 4, p. 614. INTRODUCTION. 
Some writers endeavour to divide the subjects, according to the 
courts before which they may arise, and thus devote separate chap- 
ters to civil and criminal cases. It will, however, be readily per- 
ceived that this must render the study confused. Pregnancy, for ex- 
ample, may be a subject of inquiry on a plea for a delay of execu- 
tion, or on the application of an heir for his property. In both in- 
stances its signs require examination. So also with insanity and se- 
veral other topics. It will hence only lead to repetition to adopt 
this division. Fodere has escaped from the difficulty by including 
these subjects under the title of “ Medecine Legale Mixteappli- 
cable both to civil and criminal cases, hut this is evidently an eva- 
sion. Dr. Gordon Smith arranges his subjects into three parts. 1. 
Questions that regard the extinction of human life. 2. Questions 
arising from injuries done to the person, not leading to the extinction 
of life; and 3. Disqualifications for the discharge of social or civil 
functions. 
I must confess that I have found a difficulty to attend all these at- 
tempts at arrangement, which is probably insurmountable. The sub- 
jects 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 separately and inde- 
pendently. 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 physio- 
logical, pathological, or chemical facts, that are necessary to be 
* 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 Valentmi 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. 
known in the supposed case—advert to the difficulties to be encoun- 
tered in the investigation—and offer, if necessary, some observations 
on the conformity of the law to the present state of medical know- 
ledge. A collection of detached essays of this description (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 phy- 
sician, since it enables them, in their respective 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 profes- 
sions, 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 are 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—haemoptysis—ha-matemesis—bloody urine— haemorrhoids— 
menstruation—jaundice—paleness of the skin—cachexia—diarrhoea—dysentery— 
involuntary stools— vomiting— apoplexy—vertigo— paralysis— epilepsy—convul- 
sions—chorea—catalepsy—syncope—hysteria— somnolency— hydrophobia— teta- 
nus—nostalgia—scrofula—scurvy—cutaneous affections—incontinence of urine— 
gonorrhoea—stricture—excretion of calculi— near-sightedness—ophthalmia—amau- 
rosis— night-blindness—deafness—deaf and dumb—stuttering and stammering— 
t umours— hydrocephalus— emphysema—dropsy—tympanitis—physconia—prolap- 
sus of rectum and uterus—polypus of the nose—hydatids— Barbadoes leg—hydro- 
cele—hernia—contractions and deformity—lameness—distortions—ulcers—cancers 
—petechia:—ozcena—fistula in ano—wounds, fictitious and factitious—fractures— 
maiming. Of impostors—feigned abstinence. 
Diseases are generally feigned from one of three causes— 
i'ear, shame, or the hope of gain. Thus the individual ordered 
on service, will pretend being afflicted with various maladies, 
to escape the performance of military duty; the mendicant, to 
avoid labour, 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 da- 
mages, have also induced some to magnify slight ailments into 
serious and alarming 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 conscrip- 
tion was in full force in France, “ that it is at present brought 2 
FEIGNED DISEASES. 
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 required to carry on her wars with Napoleon, cases of 
feigned diseases greatly multiplied in her armies and navies. 
A favorite object with many was to obtain a discharge from 
the service, either with or without a pension. 
Against such impositions, the police of every wTell-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 maladieg, and operate on 
the superstition or the curiosity of the vulgar. And even the 
higher ranks of society, from motives as unworthy, have oc- 
casionally, 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 present 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 secre- 
tions and excretions 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, con- 
tinued 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 
general rules for the detection of feigned diseases, which are 
* Foderg, vol. ii. p. 452- FEIGNED DISEASES. 
3 
so discriminating as to have received the sanction of most 
succeeding writers. A detail of these will illustrate their 
universality of application, and the ingenuity of their author. 
1. Tjie first is, that the physician must, in all suspected 
cases, inquire of the relatives and friends of the suspected in- 
dividual, 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 ob- 
serves, that Galen detected the imposture of his servant, who, 
when ordered to attend his master for a long journey, com- 
plained 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, w'hom 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 to ascertain that the swelling 
was occasioned by the application of the thapsia or bastard 
turbith, and which being prevented, the tumour disappeared. 
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 
feigning disease to take proper remedies. This indeed will 
occur in real sickness; but it rarely happens when severe pain 
is present. Any thing that promises relief, is generally accep- 
table in such cases: Those, on the contrary, who feign, delay 
the use of 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 fewr fomentations, 
* Mahon, vol. i. p. 332. 4 
FEIGNED DISEASES. 
although this same person had not long before been cured of 
the same complaint by the use of philonium. Of this, how- 
ever, 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 contra- 
diction, and lead him to a statement which is incompatible 
with the nature of the complaint. To effect this, it is neces- 
sary 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 
common 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 physi- 
cian, 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 re- 
venge insult. Here the conduct of the medical examiner must 
be cautious, and he should carefully apply the rules already 
laid down.f 
Several divisions of feigned diseases have been suggested. 
Thus Marc proposes to arrange them under the heads of imi- 
* Zacchias, tom. i. p. 289. 
f “ Flagrantior equo 
“ Non debet dolor esse viri, nec vulnere major." Juvenal, Sat. 13. FEIGNED DISEASES. 
5 
t.ated and produced diseases; {par imitation etparpj'ovocation.) 
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 
increased by artificial means. 
It is not necessary to notice them under either of these 
divisions at the present time. I propose to mention the prin- 
cipal diseases that have been feigned, somewhat in the usual 
nosological order, although it will hardly be possible to pre- 
serve this strictly; and shall then state under each the most 
approved mode of detection.* 
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 no- 
ticed the patient 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 bedclothes, 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 examination generally developes 
the deceit, as a frequent repetition of the use of stimulants is 
* 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 Ballingall's 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. 6 
FEIGNED DISEASES. 
too hazardous, and real disease might then be the consequence* 
In doubtful cases, the remarks of Dr. Hennen should be re- 
membered: “Neither the quickness of the pulse, nor the heat 
of the skin, are infallibly indicative of the presence 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 
washed with tepid water, it was clean and moist. Dr. Hut- 
chison saw a French prisoner with an extremely small and 
rapid pulse; his tongue wras 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 to- 
bacco; and on removing 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 feign- 
ing intermittents often pretend that the chill comes on during 
the night. This is a very uncommon circumstance in ordinary 
practice.! 
Diseases of the heart. The pulse is sometimes found ex- 
tremely weak, and occasionally none is perceived at the wrist. 
Should deceit be suspected, the physician may examine whe- 
ther ligatures have not been applied to interrupt the pulsation, 
and he should also ascertain whether the arteries beat at the 
corresponding 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 
* 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 by waiting 
patiently by the bedside until tt subsides." Dunlop, 
t Marshall, p. 110. FEIGNED DISEASES. 
7 
days; at the end of which time, it was discovered that the 
patient was in sound health, but that whenever the pulse was 
to be examined, he pressed his finger on the artery under the 
armpit.* 
Ligatures have sometimes been applied, to produce the ap- 
pearance 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 removing the ligatures from the neck, and in one 
instance also from the top of each arm, this purple and swol- 
len state of the face disappeared, and the irregular action of 
the heart ceased.f 
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 disorder m 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 Dr. Quarrier, who has given us 
this account, states that suspicion was at length excited, and 
the secret was discovered by the confession of the individual. 
When a sudden and decisive result was sought for, as much 
* “ I have seen a gentleman, who, by the exertion of the muscles of the arm and 
thorax, could stop the action of the pulse at the xvrist; but in so doing, he required to 
call into action all the muscles of the arm; so that should a malingerer attempt this, 
the cheat would easily be discovered by feeling the arm above the elbow. There 
was a preparation in the museum of Mr. Allan Burns, and which I believe is at pre- 
sent in the possession of my friend Mr. G. S. Pattison of Baltimore, U. S. wheie 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 hospitals, 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 temporal 
or carotid artery, under the pretext of saving him from the trouble of taking his arm 
from under the bedclothes.” Dunlop. 
t Scott. Cyclop. Pract. Med. vol. 2, p. 138. 
t “ At the General Hospital at Chatham, this was lately practised to a great extent. 
The mode employed was, to take fifteen grains of hellebore, which produced great 
excitement, and which was maintained by taking four gains 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. 8 
FEIGNED DISEASES. 
as a drachm was given, and it caused vomiting, purging, syn- 
cope, tremors, and great nervous irritability, which were fol- 
lowed by great and inordinate action of the heart and arteries; 
and this in its turn was succeeded by great debility, or a dis- 
position to paralysis. In smaller doses, and repeated, it caused 
disorder of the stomach, and violent 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.* Garlic, tobacco, and other ir- 
ritating 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 obtained from others, and tinge it with blood from 
the gums.f It requires, however, only a proper acquaintance 
with the phenomena 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 enu- 
merate most of the symptoms correctly. One recruit, how- 
ever, was so unfortunate as to refer his pain in the liver to the 
left side, and was cured by the mistura diabolica regularly 
exhibited.:}: 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. § 
• Hutchison, p. 151 to 161. Dr. Cheyne expresses his conviction that many sol- 
diers 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 unexpect- 
edly in a quarter of an hour, they were reduced 30 or 40. Seamen sometimes produce 
this temporary quickness, by knocking their elbows against a beam. 
t Marshall, p. 120. 
+ Marshall, p.’114. This consists of Glauber’s salts, infusion of tobacco, assafcetida, 
etc. given in small quantities, but so frequently repeated as to keep the taste in the 
mouth. 
$ Cheyne, p. 173. FEIGNED DISEASES. 
9 
Pain, under all its forms of rheumatism, lumbago, sciatica, 
or in the hip and knee joints, &c. is one of the most frequently 
simulated diseases; and in proportion to the facility of as- 
suming 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 ef- 
fects, and what remedies have been already used! 
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 ge- 
nerally of that kind which is deemed a slight disease. Pain 
in the external parts is, moreover, often accompanied with 
heat, redness, change of colour, or tumour. Gout is some- 
times pretended, and above all rheumatism, for which the 
soldier is always ready to assign sleeping on the ground as a 
cause. Both of these diseases have diagnostic symptoms— 
redness, &c. in the one; and tumefaction, or diminution of 
size, with retraction or loss of motion, in the other. But it is 
equally true, that there are species of severe pain in which 
the physician can find no external appearances to found an 
opinion; and of this description are scorbutic 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 attended with loss of sleep, 
vertigo, fever, and sometimes with delirium; in the thorax, 
with cough and difficult respiration; so also in the bowels and 
kidneys. Each has its peculiar symptoms; which, if the dis- 
ease 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 10 
FEIGNED DISEASES. 
pain is stated to be present, and the patient notwithstanding 
enjoys a good appetite, and sleeps well, we have reason to 
doubt its severity. Much may also be learnt from the re- 
medies employed. Powerful ones are indicated if the disease 
be real, and the patient 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 magnitude of the disease. 
Notwithstanding the above directions, instances have oc- 
curred 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 some- 
times in another, and occasionally in the thorax or pericra- 
nium, 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 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 wras destroyed solely from the repetition and duration of 
these pains.”* This case induced a determination in our au- 
thor 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 lo- 
cal remedies, but without any relief. The leg, from the re- 
peated use of epispastics and cauteries, became thin, and ra- 
ther shorter than the other; while from the lowT diet ordered, 
* 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 quantities 
of pus were evacuated. Anchylosis of the joint followed. Medico-Chirurgical Re- 
view', vol. 4, p. 596. Probably the same case is given in the Cyclopedia of Practical 
Medicine, vol. 2, p. 250. FEIGNED DISEASES. 
11 
there was a general paleness and lankness of the system. 
Under these circumstances, Fodere could not refuse him a 
certificate as a real invalid. With the aid of a crutch, he 
dragged himself to Marseilles, 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, wTalking 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 hospi- 
tal, where he remained thirteen months. He supported during 
that time, with the greatest fortitude, the application of epis- 
pastics, 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 abandoned 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 perhaps more frequently 
discovered by the inconsistencies and contradictions which a 
patient makes in the history of his complaint, than by diag- 
nostic symptoms.”! There is also often a great aversion to 
the proper modes of cure.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 af- 
terwards considerable kneading, before he awoke. § 
* Fodere, vol. 2, p. 437, 474. t Marshall, p. 115. 
; 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. Annales D’Hygiene, vol. 4, p. 446. 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. * 12 
FEIGNED DISEASES. 
Lumbago, whore the body was bent nearly double, has 
been repeatedly removed in a moment, by Baron Percy, hold- 
ing 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 distin- 
guished 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 wTorse 
with damp weather, but are complaining at all times—and 
even allege that they have entirely lost the use of the part 
affected, wdiich seldom happens in real rheumatism.* 
An interesting case of feigned tic douloureux, or neuralgia, 
is mentioned by Dr. A. T. Thomson in his Lectures. It oc- 
curred in the person of a young girl aged fifteen, wyho pre- 
tended to suffer great pain just back of the symphysis of the 
lowrer jaw. It produced her removal from school, the object 
she had in view. On a subsequent attack, Dr. Thomson re- 
solved to try the effect of a strong mental impression; and 
understanding that she entertained a great antipathy against 
a dog, informed her that the only remedy remaining wTas 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 
* Cheyne, p. 170. A female presented herself, some years since, at Mr. Wardrop's 
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 labored 
tor Jive years. It was ascertained that she had already been in four hospitals on a 
similar story. There was no fever, and her health and appearance were good. — 
Lancot, vol. 12, p. 603. FEIGNED DISEASES. 
13 
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 ar- 
menian bole or vermilion paint under the tongue, which tinges 
the saliva of a red colour. Periodical attacks of this disease 
are most commonly simulated; but it is difficult to counterfeit 
the accompanying marks of disease—such as the cough, flushed 
cheek, and even the Jlorid and coagulated state of the blood. 
Orfila recommends 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 
hccmatemesis, 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 Nosology, mentions of a young lady, who, being unwilling 
to remain in a convent, had some blood of an ox brought to 
her, which she drank, and then vomited in the presence of her 
physician. As no deceit wTas 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 without 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.! 
Bloody wine 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,)§ 
the beet root, madder, &c. The Spaniards, on their discovery 
of America, ate largely of the Indian fig, and were much 
* London Medical and Surgical Journal, vol. 7, p. 101. 
t Mahon, vol. 1, p. 361. 
$ 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. 14 
FEIGNED DISEASES* 
alarmed at the consequence. It only requires cautious exa- 
mination to detect deceit. The individual should be made to 
urinate in the presence of the physician, and the vessel used 
should be carefully examined both before and during the pro- 
cess. The blood in real cases, when subjected to heat, fur- 
nishes a brown coagulum. The attendant symptoms, also, 
can hardly be mistaken.* High coloured urine may be pro- 
duced by various stimulants, such as wine, cantharides, &c. 
The experiment, however, is often hazardous, and foreign 
substances are hence more frequently used to give it the ap- 
pearance of disease.f 
jHaemorrhoids have been imitated, like other haemorrhagic 
complaints. So also has menstruation, by staining the clothes 
and body with borrowed blood. Baron Percy says that hae- 
morrhoidal 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 an- 
other indication; yet it is stated that individuals in France 
have imitated these to perfection, by taking daily a small 
quantity of muriatic acid. There are several substances, as 
curcuma or rhubarb, 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 sleeplessness. The most unequivocal 
symptom, and therefore the most to be relied on, is the colour 
of the adnata. If yellow, jaundice is present, originating ei- 
ther from disease or some artificial cause. A French con- 
* Dr. Watson on Hxmaturia, in the Medico-Chirurgical Review, vol. 21, p. 491. 
t A boy at Bilson, (Staffordshire,) A. D. 1617, accused a woman of having bewitch- 
ed him, and succeeded so well in feigning convulsions, etc. that she was tried and 
condemned to die. Dr. Morton, the bishop of the diocese, suspected imposture, and 
caused him to be confined and watched. He grew apparently worse, and the tirine 
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. 
| Scott, vol. 2, p. 143. FEIGNED DISEASES. 
15 
script, however, always put snuff in his eyes before the sur- 
geon’s visit, to prevent their examination.* 
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.f 
Cachexia and great weakness are also often feigned, by using 
substances to make the face appear pale and livid. In these 
instances, 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.| 
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 
shoemakers, to whom it is furnished for blackening leather. 
Suppositories of soap or other irritating substances have been 
introduced into the rectum, to imitate the mucous discharges 
in dysentery; and with such persons, of course it is not diffi- 
cult 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 
* Percy quoted by Scott, &c. “ 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, Legons, vol. 1, p. 422. 
f 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 Kings county, New-Brunswick; and I have repeatedly un- 
derstood that there is no doubt of the authenticity o all the material facts. The hero 
of the story was a most accomplished villain. While in the prison at Kingston, (N. 
Brunswick,) he began to spit blood, had a violent cough and fever, and gradually 
wasted away, so that those who visited him supposed that his death was rapidly ap- 
proaching. 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 unfortunately, 
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 adven- 
tures 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, put- 
ting 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 Jlesh off his body m ten days, by 
sucking a copper cent in his mouth all night, and swallowing the saliva^ 16 
FEIGNED DISEASES. 
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 con- 
tracts 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 pre- 
tended sciatica and loss of the use of his lower extremities,) 
in the General Hospital at Lisbon, it was determined to apply 
the actual cautery. He was laid on the 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.f 
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 vomit- 
ing is a symptom of organic disease. Dr. Hutchison had a 
case in the Baltic, where it occurred so frequently as to be- 
come 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 secured, the vomiting 
ceased.:}: 
Dr. Cheyne remarks that the vomiting of undigested food is 
suspicious, and particularly advises that the case should be 
wratched, to avoid mistakes. The stomach may be diseased. 
The absence of emaciation, and the continuance of a good 
appetite, are, however, circumstances indicating a healthy 
state of that organ. § To vomiting, some, according to Orfila, 
have added the complaint of difficult deglutition, 
* Hutchison, p, 181, Cheyne, p. 171. 
t Cheyne, p. 147, $ Hutchison, p. 168. 
§ Cheyne, p. 167. A remarkable case of voluntary vomiting occurred some years 
since in this country, in a distinguished public individual. I forbear relating any 
of the particulars, lest I might unwittingly trench on the sacred privacy of domestic 
affections and sorrows, “ Non sibi, sed patriae visit.” FEIGNED DISEASES. 
17 
Apoplexy will only be feigned by those who hope for imme- 
diate 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 
inexpressive.* 
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 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 ex- 
cited 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 electric 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 w'ho could not move, and had lain in bed for a month. 
On calling him gently by name, he wras at the window in an 
instant.f 
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 wras 
raised. A repetition of this, caused more active exertion. In 
* Cheyne, p. 150. t Scott, vol. 2, p. 134. 
VOL. I. 18 
FEIGNED DISEASES. 
another instance, 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 surgeon 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 powers of the extensor muscles. A half-witted fellow 
brought out another, by saying that he had seen him use his 
arms as well as any one.* 
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 hur- 
ried to the boat alongside, and on reaching the quay, the pas- 
sengers were mustered. It was found that the invalid had 
saved not only himself, but his trunk and clothes.f 
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 
pow'er. Dr. Cheyne relates some laughable instances of agi- 
lity immediately consequent on successful deception. When 
the malingerers were sure of their discharge, they threw their 
crutches before them, and disappeared in a moment-! 
* Hutchison, p. 164. 
t 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 detec- 
tion had failed, the fraud was discovered by rubbing cowhage (Doliclios pruriens) on 
the soles of the feet at bedtime. He walked and groaned all night, and the next mor- 
ning 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 became so faint that a FEIGNED DISEASES. 
19 
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 interval. In all suspicious cases, it is proper to notice 
whether the sick person is suddenly affected—whether the 
face is liyid, the pupil fixed, the lips pale, the mouth distorted 
and frothy, and the pulse altered. The physician ought also 
to observe whether 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 feel- 
ing, so that sternutatories, and even the actual cautery, pro- 
duce 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 able also to resist the applica- 
tion of fire. This always recovered him, though he lay ap- 
parently without sense, his eyes starting from their orbits, and 
his mouth foaming. He afterwards confessed, that he never 
counterfeited a paroxysm without feeling for several days a 
violent pain in the head.* 
recess was granted, to enable him to be reconveyed to his apartment 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 encountered the fellow at the foot of 
Courtlandt-street in New-York, who told him laughingly 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! 
* Fodere, vol. 2, p. 464. “A case is related of a country boy, whe feigned epilepsy 
to avoid work. A surgeon was called, who suspected the deceit, and observed to one 
of the 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 himself. On occa- 
sions of this kind, it is proper to examine the mouth for soap, which is easily done by. 
pressing the cheeks against the grinder teeth. I once saw a pseudo-epileptic in Edin- 
burgh, recovered by the simple expedient of calling a police officer.” Dunlop. 20 
FEIGNED DISEASES. 
De Haen was consulted by a mother, w'hose 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 wrere violently clenched, and the eyes disordered; 
but he suspected 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 drawrn, the pupil of the eye was dilated, and when open- 
ed, it was contracted, and this last occurred very violently 
when a candle was presented. Convinced that the disorder 
was pretended, he ordered 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 successive burnings, which she 
resisted without confessing the deceit. De Haen, and many 
others, saw' her imitate a paroxysm of epilepsy with such 
horrible accuracy, that the feigned w’as supposed to be real, 
until in the midst of it, being ordered to rise, she got up and 
walked awray. 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 pre- 
pared, on which he might be laid to prevent injury to himself. 
When next attacked, he wras laid on it, and the four corners 
set on fire. He sprang up and fled.* 
Various substances have been successfully applied to detect 
* D© Haen’s Ratio Medendi, vol. 2, p. 56, &c. The following case should not 
omitted: “ Maturain virginem procorum penuria torquet, angitque. Forte casu audit 
a garrientibus inter sese matronis cpilepsiam matrimonio nonnunquam curari. Ergo 
earn artificiose fingero 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, suspicious 
concerning its reality, and therefore iuquired 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. FEIGNED DISEASES. 
21 
the imposition, as snuff’ blown into the nostrils, (and Dr. Hut- 
chison 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, has broken up a feigned paroxysm.* 
It is denied that the peculiar appearance of the eye is al- 
ways present in epileptics: It has been said to contract.! 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 
contractions also of various parts of the body always come on 
simultaneously in the real; nor is there any regular period in 
the return of the fits. Thus Vaidy, a French surgeon, de- 
tected 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 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.|| 
One fact should be kept in mind respecting this disease: 
The real epileptic is desirous of concealing his situation, and 
attaches to it a kind of false shame; while the feigned talks 
about the disease, and takes no precaution to avoid publicity.!! 
* 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-Chirurgieal Review, vol. 21, p. 263. 
t MedieovCliirurgicaJ Review, vol. 4, p. 598. 
\ Marc. Orfila’s Lemons, vol. 1, p. 414. 
§ Marshall, p. 178. 
|| Dictionnaire des Sciences Medicales, Art. Epilepsie simulSe, (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 ap- 
pearance of the teeth is hence worthy of examination in all doubtful cases. Annales 
l)’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 ease in many instances, at 
the hospital in Toulouse. (London Medical and Physical Journal, vol. 27, p. 38.) 22 
FEIGNED DISEASES. 
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 Foder6, 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 spec- 
tators.* In feigned cases, the muscles do not stiffen and con- 
tract as in real ones. Hence continued action of the antago- 
nist 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 
pretended to have a convulsive motion of the muscles about 
the neck and upper part of the trunk, so as to produce an in- 
voluntary and incessant shrugging of the shoulders. The 
surgeon, under pretence of being very desirous to ascertain 
how often the alternate elevation and depression of the sca- 
pula 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 exclaiming, “ You have done 
me!” offered to return to duty.f 
Chorea is sometimes attempted by our mendicants. It 
would tend to discover the reality of the disease, if we applied 
the suggestion of Darwin—forcing them to make perpetual 
and repeated efforts to move the limb in the designed direc- 
tion. They should be secretly watched. 
Catalepsy would most probably seem to be a form of hys- 
teria: At least, this will best explain most of the cases now 
occurring.}: Its peculiar characteristics are, that the patient 
* Foderfi, vol. 2, p. 468. 
t Edinburgh Medical and Surgical Journal, vol. 30, p. 179. A somewhat similar 
case occurred to Dr. Elliotson. Lancet, N. S. vol. 7, p. 273. 
The following references to some cases may assist in fprming an opinion; 
Memoirs of Literature, vol. 3, p. 100, 194, Cases by Deidier. FEIGNED DISEASES. 
23 
becomes suddenly motionless, while the joints remain flexible, 
and yet external objects make no impression. In so myste- 
rious a disease, if there be any cause for suspicion, the reme- 
dies 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 intellectual faculties. Mr. John Hunter began to comment 
before the surrounding students on the strangeness of the lat- 
ter circumstance; and as the man stood with his hand a little 
elevated and extended, he said, ‘ You see, gentlemen, that 
the hand is supported 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 as suddenly raised in the air, 
by the increased effort which volition had excited for the sup- 
port of the increased weight. Thus was it manifested that 
the man possessed consciousness and volition, and the impos- 
ture stood revealed.”* 
Feigned syncope or hysteria cannot resist the action of ster- 
nutatories. In the former, it is difficult to dissemble a small, 
feeble and languishing pulse, an almost suppressed respiration, 
Medical Commentaries, vol. 10, p. 242 
American Medical & Philosophical Register, vol. 1, p. 47. Case by Dr. Steams. 
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. 
Ibid. N. S. vol. 11, p. 532; vol 16, p. 129. 
Copland’s Dictionary of Medicine, Art. Catalepsy. 
* Transactions of the London College of Physicians, vol. 6, p. 272. 24 
FEIGNED DISEASES. 
cold sweats, coldness of the extremities and paleness of the 
countenance. Cases are however mentioned, where indivi- 
duals 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 Glas- 
gow mentions in his lectures, of a person whom he knew, who 
could feign death, and had so completely the power of mode- 
rating the action of the heart, that its pulsation could not be 
felt. This man, however, some years after, died suddenly.* 
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 
appearance 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.f 
The case of Phineas Adams, which lately occurred in 
England, shows to what individuals will submit, in order to 
escape punishment. 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, electric shocks, powerful medicines, &c. When 
any of his limbs were raised, they fell with the leaden weight 
of total inanimation. His eyes were closed, and his counte- 
nance 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 
* Paris’s Medical Jurisprudence, vol. 1, p. 360. See also Male, p.267; Hennen, 
p. 466. 
t 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 Edin- 
burgh, who had the immediate charge of him; and from every thing I saw, and many 
experiments I made, Ihavenot the slightest doubt that he was an impostor.” Duhjlop. FEIGNED DISEASES. 
25 
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 de- 
pression 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 re- 
ceiving 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 indignation had nearly ruined the individual in 
property, and consigned him for a time to a jail. 
Even hydrophobia has been attempted to be feigned both in 
England and France, but with little success.! 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. Mr. Abernethy, however, suspected the imposition; 
and turning to one of the surgeons, as if in consultation, re- 
marked what a remarkable symptom, in the last stage of this 
disease, incessant winking of the eyes was. The patient im- 
mediately began to wink with both his eyes. 
* 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, 
f Orfila, Lecons, vol. 1, p.425. Medico-Chirurgical Review, vol. 9, p. 261 26 
FEIGNED DISEASES. 
Nostalgia, or maladie du pays, is a disease common in mi* 
litary hospitals. This mental affection, if carried to excess, 
soon produces 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 ad- 
vanced in life, villagers more than citizens; and among na- 
tions, 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 “ pre- 
tenders generally express a great desire to revisit their native 
country, whilst those who are really diseased, are taciturn, 
express themselves obscurely on the subject of their malady, 
dare not make an avowal, and are little affected by the con- 
solations which hope or promises offer to them/’* The healthy 
colour, the strength and regularity of the pulse, and the aver- 
sion 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, &c4 
Various cutaneous affections, as tinea capitis, pompkolyx, &c. 
have been produced by the application of nitric acid or blisters. 
Incontinence of urine. Two deserters were brought to the 
hospital at Martigues, on account of this disease. Fodere was 
the attending physician, and applied epispastics to the peri- 
nseum—a remedy which he in previous cases had found use- 
ful—but without success. They were discharged; but it was 
* Foderg, vol. 2, p. 463. 
t Orfila, Legons, 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 Lincoln- 
shire, 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 Sheerness.” Dunlop. 
t Orfila, Lemons, vol. 1, p.426. FEIGNED DISEASES. 
27 
shortly discovered that they had feigned the disease. The 
consequence was an epidemic incontinence of urine among 
their companions that remained. This awakened the suspicion 
of our author; and above ali surprised that his remedy pro- 
duced 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 
3hort time. The expedient succeeded; it was removed only 
at the ordinary period, and in twenty-four hours the epidemic 
vanished.* 
Dr. Hennen observes that this disease is almost always de- 
tected by giving a full dose of opium at night, without the 
knowledge 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 possesses 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.! In ordinary practice, it is a very rare dis- 
ease. The prepuce and glans penis are found to be pale from 
its continuance, and the clothes exhale an ammoniacal odour. 
Gonorrhoea has been imitated by soldiers, with caustics 
applied to the prepuce. § Stricture also would seem to be a 
* Fodere, vol. 2, p. 481. 
t Hennen’s Principles of Military Surgery, p. 455. In a very interesting inaugural 
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 com- 
plaihts of pain and distress were groundless. (Pages 71 and 74.) By a reference to old 
registers, he found that this was a common complaint immediately after the initiation 
of every “Resident Physician.” 
% Cheyne, p. 150. 
§Dr. DeBrus. American Journal of Medical Sciences, vol. 1, p.378. 28 
FEIGNED DISEASES. 
complaint with naval officers wrho wish to leave their ship. 
Dr. Hutchison detected several, by engaging them in conver- 
sation, 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 cha- 
racters which designate their animal origin.* A physician 
w'as consulted by the friends of a young lady of high respec- 
tability, concerning a very painful disease to wffiich 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 number of thpse being discharged, she felt relief. 
A parcel of these urinary concretions was handed to a physi- 
cian, who instituted experiments on them, and found, what 
indeed w'as obvious on inspection, that they W'ere 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 con- 
cretions which she stated had been passed with the urine, and 
* “ Dr. Thomson of Edinburgh, while a young man, as a chemical experiment, exa- 
mined some of the sand which a woman alleged she had passed from her bladder, 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 pound- 
ed coals for a similar purpose,'' Dunlop. 
t Edinburgh Medical and Surgical Journal, vol. 7, p. 483. 
t 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 sticking 
in the vagina. Medical Commentaries, vol. 4, p. 452. — By Dr. Thomas Thomson, 
where he detected micaceous particles in tho alleged gravel. Annals of Philosophy, 
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. Elliotson, 
Lancet, N. S. vol. 10, p. 135. — Pebbles have for a time been passed off as gall- 
stones. Mcdico-Chirurgical Review, vol, 22, p, 231, FEIGNED DISEASES. 
29 
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 writh 
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, how- 
ever, 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.”! 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 appli- 
cation 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 
information may also be derived from noticing which eye is 
affected. A few years since, when an extensive system of 
deception prevailed in the British 28th regiment of foot, Dr. 
* London Medical Gazette, vol. 7, p, 239. Siliceous matter, in very minute quan- 
tity, appears to have been found in gravel by Dr. Venables. Journal of the Royal In- 
stitution, 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. Win. Gregory 
ascertained by chemical experiment to consist of silica solely. 
t Fodere. 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 
from military duty. He avoided the conscription, however, by habituating himself 
to read with a book close to his eyes.” Dunlop. 30 
FEIGNED DISEASES. 
Vetch observed that the counterfeit inflammation was almost 
solely confined to 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 inefficient conscripts belonging to the department of the 
Seine, were rejected from this cause and several hundred 
men, in various British regiments, have been affected at one 
time.§ The articles principally used have been salt, sulphate 
of copper, corrosive sublimate, cantharides, alum, tobacco 
juice, lime, and nitric acid. j| Sometimes the progress of the 
epidemic was stopped 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 pension regulations. They ordained 
that no soldier should be discharged 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 contrac- 
tile power, although we know the sight to be lost. In such 
an instance, 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 pur- 
sued, the deceit is often detected. The following case, how- 
ever, occurred to Mahon: A young conscript wras 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 contracted perfectly. He assured 
* Edinburgh Medical and Surgical Journal, vol. 4, p. 158. 
t Hennen, p. 465. 
1 Scott, p. 148. 
§ Edinburgh Medical and Surgical Journal, vol. 38, p. 139. Scott, Cheyne, etc 
|| Cheyne, p. 130. FEIGNED DISEASES. 
31 
them, however, that he could not see; thanked them for their 
care of him, and asked for the application 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 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 wTould 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 producnd by the application of the 
extract 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.! 
Nyctalopia (night-blindness) was much feigned by the sol- 
diers in the expedition to Egypt under Sir Ralph Abercrombie. 
It wras difficult to detect it, as the disease in that country is 
epidemic. All inconvenience wras, however, obviated by 
joining a blind man with a seeing one in the works; and when 
* 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. 32 
FEIGNED DISEASES. 
the sentries were doubled, a similar arrangement was made— 
hearing being often more important on an outpost than seeing.*1 
Pretended deafness may be detected by making a noise at a 
moment least expected. This excites a sensation which it is 
difficult to conceal. Acute persons will also always find some 
mode of ascertaining the truth. A deserter, condemned to 
labour in the canal at Arles, 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 Foder£ 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.”f Again, a conscript stated that he was deaf. The 
general who visited for the purpose of examination, let fall a 
piece of silver behind him. The deaf person turned his head 
round towards the place from which the noise proceeded, and 
by this means was detected.;}: 
“ Who would believe,” says Baron Percy, “ that by exer- 
cise, 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 ?” I 
knew one, however,” he adds, “ who betrayed himself at last 
before his judges, at the sound of a small piece of money de- 
signedly dropped on his foot, while it was whispered in his 
hearing, that he was surely going to be discharged.Ӥ 
Deafness cannot long be present, without producing a pecu- 
liar cast of countenance. It also, in real cases, comes on vastly 
slow'er 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. 
* Cheyne, p. 146. 
t Fodere, vol. 2, p. 475. 
t Belloc, p. 252. 
§ 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. FEIGNED DISEASES. 
33 
Those who pretend to be deaf and dumb, have a still more 
arduous part to play, and need an art and perseverance of 
which few are capable. Such wTho ai'e 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 examination that may be made. In reviewing the 
histories of those pretending deafness and dumbness, it has 
been found, says Foder£, that women have been the most 
successful; and the sex fondest of talking, are the most capable 
of feigning dumbness. 
The Abbe De I/Epee was deceived by a pretended deaf 
and dumb person, who feigned to be the son of Count De So- 
lai'. 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, Germany, 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 
to avoid military duty. 
He was imprisoned in various countries, watched closely, 
and examined most rigidly, without being detected. So per- 
fectly indeed had he accustomed himself to his part, that when 
he avowed the fraud, to use his own expression, he had un- 
learnt 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 detect 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, be- 
came satisfied, after many examinations, 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 34 
FEIGNED DISEASES. 
tleve of the Abbe Sicard. This ingenious and worthy indivi- 
dual denied the fact without seeing him, and proved it from 
the writing. “ I cannot tell,” said he in a letter to the coun- 
sellor of state, Real, “ whether this person, confined at Ro- 
chelle, be really Victor Travanait, or not; but I can say po- 
sitively that he was not born deaf and dumb.” The reason 
which he assigned for this opinion, wras, that he wrote from 
sound, while the deaf and dumb wrrite only as they see. In 
his letters, he appeared so ignorant as to divide some words, 
and annex prepositions to others as if they wrere constituent 
parts. The following extract wrill serve as a specimen: “ Je 
jur de vandieux; ma mer et ne enNautriche; quhonduit (pour 
conduit;) essepoise (pour espoir;) tor re (pour tort;) ru S. Ho- 
noret; jai tas present (pour fetais present;) jean porte en core 
les marque (pour j'en 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 knewT that 
the sound of these gutturals wras 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 
embarrassing 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 ob- 
tains 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, pronounced only the vowrel 
a, and never uttered the labial consonant, winch 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 wrnrds as they 
might write on the black board, but could not do so. He was FEIGNED DISEASES. 
35 
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 
manner.! 
If the tongue retains its muscular power, the person pre- 
tending to be dumb is doubtless an impostor. Orfila recom- 
mends that they should be made to sneeze, and the sonorous- 
ness 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.^ 
The number and variety of feigned diseases connected with 
tumours and enlargements, are really remarkable. The fol- 
lowing 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 
* 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 he 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 
James Stilwell, was detected by Mr Clerc 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 oases of pretended deafness and dumbness are related 
by Marshall, p. 156; and Cheyne, p. 143. 
“ Foder6 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. 
i Marshall, p. 130, 36 
FEIGNED DISEASES. 
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 man- 
ner as to lead a highly comfortable 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.* 
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 introducing 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 liga- 
tures on various parts of the body;f and not long since, a 
female in France, by the same mode, caused an emphysema of 
the abdominal parietes, so as to resemble dropsy.:}: Tumours 
of this nature are readily produced, since the cellular texture 
is spread over the whole surface of the body, and air may be 
introduced through the smallest possible aperture. We must, 
however, recollect that dropsy, hydrocephalus and emphysema 
are marked by stronger and more conclusive symptoms than 
the mere existence of tumour. A French conscript is said 
by Beaupre to have excited ascites, by injecting wrater into the 
cavity of the abdomen. § Anasarca of the lower extremities 
has been pretended by means of ligatures. 
In 1811, thirty or forty soldiers were admitted into the 
hospital at Dublin, for, as w'as stated, dropsy and intermittent 
fever. The abdomen was greatly distended and tympanitic, 
* Mahon, vol. 1, p. 362, from the Acta Naturae Curiosorum. 
t Fodere, vol. 2, p. 485, quoted from the Bulletin of the Society of Emulation, 
t Fodere, ibid. § Marshall, p. 153. FEIGNED DISEASES. 
37 
and they complained of great thirst; but the tongue was clean, 
pulse regular, and urine natural. They were soon cured by 
the mistura diabolica.* A French conscript had the power of 
producing tympanites of the stomach, and enormous distension 
of the abdomen, by swallowing air. 
Physconia was also at one time very prevalent as a feigned 
disease in India, and supposed to have been caused by swal- 
lowing toddy, with large quantities of rice water. Smart 
purgatives would often remove the disease in the afternoon, 
but in the morning it frequently returned. Some would ap- 
pear 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, according 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.H 
Even the Barbadoes leg has been imitated by the long con- 
tinued use of ligatures. In a man sent home from India for a 
discharge, the thigh measured in circumference 22 f inches, 
the calf of the leg 174, 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.## 
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 
* Cheyne, p. 169. 1 Mahon, vol. 1, p. 357. 
T Marshall, p. 151, 152. § Scott, p. 151. 
|| Ibid. p. 142. Detected by Professor John Thomson in Edinburgh. 
H Medico Chirurgical Review, vol. 21, p. 153. Detected by Mr. Lawrence in 
London. 
** Scott, p. 154. 38 
FEIGNED DISEASES. 
convicted of doing this, and severely punished. The appear- 
ance 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.* 
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 her- 
nia. 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 peeping through the pope’s eyes. The scro- 
tum was an empty bag. The man, on being detected, acted 
like a philosopher, and “seeing 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 facility. He 
then pulled up one testis, and after some pause the other fol- 
lowed, 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 
exceedingly amused that we could hardly believe the evidence 
of our senses.”! 
Every writer on feigned diseases, notices contractions and 
deformity, and their consequence, lameness. The subjects will 
* Sir A. Cooper’s Lectures, vol. 1, p. 75. Cheyne, p. 129. 
t 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 pro- 
duce fever; and at the Bicetre, they taught one another how to produce 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, coun- 
terfeited death so well and so often, “ that when he actually breathed his last sigh, 
two days passed before they took off his iron collar.” FEIGNED DISEASES. 
39 
maintain particular joints for so long a time in one position, 
that they assume the appearance, on a superficial examination, 
of being anchylosed. In consequence of inaction also, and 
the use of ligatures, these parts often become thin. Patient 
and long continued watching, combined with the use of ap- 
propriate remedies, and at the same time disguising the ap- 
pearance 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 contracted limb has been found 
to yield to a very slight force. Electricity has been effectual 
with some; a pulley with others. The French surgeons at- 
tached a weight to a riband placed around contracted fingers, 
and in a few minutes (not exceeding ten) the disease was re- 
moved. They also made those who complained of contraction 
of the lower extremities, support themselves for some time on 
the healthy leg alone. The trembling and elongation of the 
other, soon manifested the deceit.* “A tourniquet maybe 
placed on the limb above the joint, by which the muscles are 
prevented from acting, and the joint becomes in consequence 
moveable.”! 
Again, feigned cases have been detected by an examination 
of the part during sleep; or by engaging the person in in- 
teresting conversation; or by making continued flexion of the 
healthy extremity. The diseased one has thus been forgot- 
ten, and it insensibly returns to its natural state. Yet with all 
the keenness that long experience may be expected to pro- 
duce, 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 ac- 
count, not sent to hard labour with the other convicts. He 
was commonly employed in executing light jobs, which he 
could do in a sitting posture. When he moved from place to 
place, he used to hop upon the left foot with the assistance of 
a stick. At the end of the seven years, he was discharged; 
and upon going away, he very coolly observed, ‘1 will try 
* Orfila, Legons, vol. 1, p. 408. 
f Scott, vol. 2, p. 139. 40 
FEIGNED DISEASES. 
to put down my leg—it may be of use to me now.’ He did 
so; and walked oft' writh a firm step, without his stick, which 
he had previously thrown away.”* 
Some of the best formed men in the British army feigned 
various 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 uncommon in France. In real cases of this disease, 
according to Orfila, the sterno-cleido-mastoideus of the oppo- 
site 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.! 
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. Frauds of this 
description are frequently attempted in hospitals, or to avoid 
* 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 ex- 
amination; 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 inacti- 
vity being only for the public eye, would have been so trifling as not to cause this 
extenuation. The probability was therefore in favor of its reality. (Lancet, IS. £S. 
vol. 8, p. 740, from Glasgow Medical Journal.) 
f Orfila, Lecons, vol. 1, p. 409. FEIGNED DISEASES. 
41 
the performance of labour of every kind. In 1810, a fellow 
enlisted in the marines at Portsmouth, (England,) and received 
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 inflammation. He ultimately, however, paid most 
dearly for his speculation; as a mortification followed, and it 
was found necessary to amputate the limb.* 
Mr. Hutchison amputated the leg of a man at Deal Hospi- 
tal, 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 gas- 
trocnemius 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 ob- 
taining his discharge by invaliding.! 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 
* Edinburgh Annual Register, 1810, part 2, p. 105. 
t 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 bag a 
partridge shooting, often boasted to me, that he had been discharged from six different 
regiments by the very means mentioned in the text. In the York Hospital, in the 
years 1812-13, we had many cases of this kind from the Peninsula; and were obliged 
to lock up the leg in a wooden box, prepared for the purpose, in order to secure our- 
selves against the patient tampering with the sore. 
“ On a late visit to Sheerness, my friend Mr. Robertson, surgeon to the convict 
hulks, told me that the number of patients with ulcers on the legs was, some months 
prior to this, so alarming, that he was afraid that the Secretary for the Home Depart- 
ment would take it up. But suspecting some fraud, he employed spies, when he found 
that all this disease was occasioned by a process termed, in the flash language, fox 
hunting ; that is, rubbing the sand used for scouring the deck, with the thumb to the 
thigh bone. He cured half a dozen of them convicted of this practice — had them 
flogged, and never had an ulcer in his hospital since.” Dunlop. 42 
FEIGNED DISEASES# 
France 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 symp- 
tom of cachexia, I was led to suspect 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. 
Ozaena has been imitated by introducing cantharides or 
blistering plaster into the part. Fistula in ano, in the same 
manner. It is only necessary to cleanse the parts, and exa- 
mine their condition, 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 mentions a case where a soldier thus succeeded in 
procuring a discharge. He was, however, afterwards de- 
tected.! 
* Quoted from his Surgery. Mahon, vol. 1, p.358. Foderg, vol. 2, p. 486. 
f Scott, vol. 2, p. 156. t Marshall, p. 173. FEIGNED DISEASES. 
43 
Under slight wounds, I may as well notice the insertion of 
needles into various parts of the body,—as the arms, hands, 
breasts, &c. Two cases are related of females doing this. 
One happened at the Richmond Hospital, Dublin; and the ir- 
ritation and inflammation ran so high, as to render amputation 
near the shoulder joint necessary. The other was at Copen- 
hagen. 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 introducing 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 
oft' the thumb, and from this [pollicem truncando) it would 
appear, that our modern word poltroon is derived.! 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 purpose of being discharged.! 
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 two amputated fingers, produced, as he 
said, by the Collision 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 severe excision. § The French 
soldiers sometimes caused their teeth to be filed off, or ex- 
tracted, so as to be unable to bite off the end of the cartridge. 
* Scott, vol. 2, p. 148. t Scott, vol. 2, p. 156. \ Marshall, p. 177. 
$ Marshall, p. 179. It is now provided that in all cases of maiming, whether the 
injury occurred on or oft' duty, whether accidentally or intentionally, the soldiers 
shall be tried by a district court martial, as soon after the event as possible. Ballin- 
gall’s Military Surgery, p. 587. No pensions are granted except the injuries occur in 
the performance of military duty. 44 
FEIGNED DISEASES. 
After the bloody battles fought by Napoleon, at Lutzen, 
Bautzen, and Wurchen, it was insinuated to him that some of 
his soldiers had voluntarily mutilated themselves, particularly 
in the hands and fingers. On investigation, nearly three thou- 
sand were found thus injured. They were collected together, 
and a medical jury was appointed, over which Larrey presi- 
ded. On examination, it was found that nearly all the wounds 
had been inflicted 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 favorable 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 occu- 
pied the summits of several hills, and of course fired down 
upon the French, who in return, would have their hands con- 
stantly raised to their guns.* 
A case in civil life was investigated by Dr. Marc. The 
individual under the idea, as it would seem, of rendering him- 
self of importance to a relative, or to secure his gratitude, 
pretended to have had a murderous conflict with some assas- 
sins, although no dead bodies could be found. His head was 
wounded, longitudinally, 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 and a 
silk handkerchief, which he wore under his also di- 
vided. Dr. Marc observes, that a blow so powerful as to di- 
vide 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 
blood. Now this was hardly consistent with the idea of 
stabbing, since on drawing it out, the flesh and the clothes 
would both rub off a portion, and what remained would be in 
longitudinal strias. Dr. Marc was of opinion, that it had been 
* Larrey’s Surgical Memoirs, translated by Dr, Mercer, p. 107. Chaussier, p. 487, FEIGNED DISEASES. 
45 
daubed on. He deemed the whole case pretended, the effect 
not corresponding with the force of the ascribed cause.* 
Similar cases have been recently detected at Paris, princi- 
pally from the slightness of the wounds. They were not 
such as a robber or murderer would inflict. The celebrated 
Dupuytren was called as an examiner in one of them, and he 
related before the detected individual the following circum- 
stance. 
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 
discovered, from which blood flowed. He represented that 
he had been studying in the park, when he overheard con- 
cealed conspirators waiting the favorable moment for an at- 
tack, 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 with- 
out due vigilance, the military strength of a country may be 
seriously impaired, by deceptions among its soldiers and sai- 
lors, and the duty of the medical officer thus becomes a high- 
ly 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, labored 
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, until a 
* 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 favor of the 
wounded person. All the wounds were extremely superficial, yet evidently made 
with a cutting instrument. 
t Annales D’Hygiene, vol, 11, p, 188. 46 
FEIGNED DISEASES. 
lumbar abscess appeared, of which he died.* In reflecting 
on these circumstances, and the many obstacles to a full de- 
tection, I am very ready to withdraw a somewhat rash asser- 
tion 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 indi- 
vidual alone—by a patient investigation of the nature of the 
disease—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 
consideration of the present topic, by remarking, that physi- 
cians are not unfrequently called upon to examine impostors. 
* 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 out- 
side 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. Bate- 
man, 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 submitted 
to the most violent counter-irritants, but wdthout acknowleding 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 pa- 
tient, however, only served to confirm our suspicions. He was dismissed 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 destroyed; 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. FEIGNED DISEASES. 
47 
or those who feign diseases which can have no existence. The 
full consideration of these, however, belongs strictly to medi- 
cal police; since they are seldom subjects of legal investiga- 
tion. 
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 mo- 
dern case, is that of Ann Moore, the fasting woman of Tut- 
bury, (England.) According 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 conse-* 
quence 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. Hen- 
derson, who observes that she made so much by the exhibition 
of her person, as to place £400 in the stocks. She had, how- 
ever, the power of abstaining from food for a considerable 
length of time. During the last watch, she received none for 
nine days and nine nights.* 
I will add only one case to the preceding. Cicely DeRydge- 
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; 
attributes it to miraculous power, and adds, “Nos ea de causa 
pietate moti ad laudem Dei, et gloriosae Yirginis Marias, ma- 
* Observations on this case may be found in the 5th and 9th volumes of the Edin- 
burgh Medical and Surgical Journal; and also in the London Medical and Physical 
Journal, vols. 21, 24, 29 and 30. 48 
FEIGNED DISEASES. 
tris suas, unde dictum miraculum processit, ut creditur.” It 
concludes with a full pardon of the criminal.* 
* London Medical and Physical Journal, vol. 31, p. 50. I add the following refe- 
rences for the use of those who may be desirous of examining the subject of abstinence. 
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 — Haller's 
Physiology, vol. 5, p. 168 — Schurigius’s Chylologia, chap. 4 — Edinburgh 
Medical Essays and Observations, vol. 5, part 2, p. 1 and 6. 
State Trials, Emlyn’s edition, vol. 5, p. 482. Trial of Richard Hatheway, for a 
cheat and impostor, at Surry assizes, March 24, 1702. Among other things, 
he said that he had been bewitched by one Sarah Murdock; and in consequence 
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. 
Quarterly Journal of Foreign Medicine and Surgery, vql. 5, p. 190. 
References in Elliotson’s Blumenbach, p. 301-3. 
Two recent cases, of females, one in Holland, and the other in Italy. Medico- 
Chirurgical Review, vol. 23, p. 204. 
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 illustrate 
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) quartered 
in this garrison (Dublin), who, after being at drill an unusually long period, could not 
be taught his duty. Every exertion wTas made by the adjutant and drill-sergeant to 
make him comprehend the manual and platoon exercise, but apparently without suc- 
cess. In consequence of this corps having been joined by another regiment, the pre- 
sumed 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 decision 
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 re- 
ceived 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 FEIGNED DISEASES. 
49 
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 ohserved. 
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 of the liver, 
but never represented the pain as urgent; and, indeed, seldom said anything 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 of mere 
lowness of spirits. Eventually he was discharged from hospital, but still persisted in 
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 15th 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 ceil. 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-General 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, dis- 
contented manner. The greatest care was taken to investigate his case, hut no trace 
of disease, either physical or mental, could be satisfactorily observed; and a certificate 
to that purpose, signed by Dr. Peile, deputy-inspector of hospitals, Dr. Brown, sur- 
geon 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 observation for several 
months, the surgeon of the regiment deemed his intellect to be unsound. 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 re- 
specting 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 ser- 
vice. 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 prin- 
cipally for the use of the military physician and surgeon. 
But although the subject of disqualifying diseases falls pecu- 
liarly under 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 as- 
certain whether an individual is fit to serve on a jury, whe- 
ther he is able to attend as a witness, or whether he is com- 
petent to take on him certain offices or duties. Again, a phy- 
sician may be ordered to investigate the condition of a crimi- 
nal, and to report whether he is capable of undergoing hard 
labor, or of suffering other severe punishments that are in- 
flicted 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 un- 
doubtedly exempt from the performance of most of the offices 
or duties to which an individual can be called. The immi- 
nent danger which may follow from muscular exertion, toge- 
ther with the weakened state of the mental faculties, which 
generally accompanies these ailments, renders a demand for DISQUALIFYING DISEASES. 
51 
such performance 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, whether the required exertion would 
prove injurious; as, for example, rheumatism, asthma, and 
particularly epilepsy. Concerning 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 par- 
ticular case, and from his knowledge of it, to be guided in his 
testimony. Should there be a patient liable to convulsive af- 
fections, 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 re- 
mark applies to those who are laboring under infirm health, or 
a predisposition to consumption, who have symptoms of aneu- 
rism, of stone in the bladder, &c., or who suffer from perio- 
dical or continued attacks of pain in one or the other organs. 
The humane, and therefore the just rule in all these cases, is 
to exempt the subjects of such maladies from all duties that 
are not indispensable. 
The distinction, however, should be kept in view, that ma- 
ny 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 tra- 
vel for a considerable 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 probabili- 
ty, that the witness will not be able to attend. If the affida- 
vit was more precise in that respect, I think I ought to make 
such an order as I have mentioned,” viz: for the officer to at- 
tend with the original deposition. 52 
DISQUALIFYING DISEASES. 
An affidavit was afterwards produced, more precisely word- 
ed, 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 suddenly ill. Drs. Christison and Mackintosh, who were 
in attendance as witnesses, immediately visited him in an ad- 
joining 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 pro- 
priety, with any regard to decency and humanity, insist upon 
his resuming his place in the jury box.” The other judges 
concurred, and subsequently a new jury was chosen.f 
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 wdiile acute 
diseases deserve commiseration and attention, as much as in 
the preceding instances, there are also some affections which 
should prevent or delay the execution of the higher punish- 
ments.! We can readily imagine a state of body in the cri- 
minal, that would make the application of irons to his limbs, 
or the condemnation to hard labor, 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 cor- 
rectness of his testimony concerning the diseased person. As 
it is impossible 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 bv 
feigned representations of imaginary maladies. § 
* 1 Vesey and Beames’ Chancery Reports, p. 21. 
t Syrne’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. 
§ See on this subject Foderg, vol. 2, p. 431, &c. DISQUALIFYING DISEASES. 
53 
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 children of the nation, and others to protect them 
from injury. 
The Jewish lawgiver, in his statutes, mentions several class- 
es 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 countries. 
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 incalcula- 
ble, since it prevents the destruction of such whose strength 
is not yet matured, as well as those who are already feeling 
the advances of age.f It is also understood, that there are 
many diseases which disqualify an exempt from military duty. 
In this state, the law formerly directed that the age and abili- 
ty of a person enrolled to bear arms, should be determined by 
the commandant of the company, with the right of appeal to 
the commanding officer of the regiment, and it added “ that 
the certificate of a surgeon or surgeon's mate, shall not he con- 
clusive evidence of the inability of any person to hear 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 
* 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 mm; 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 percent., or 1 in every 2-J-; 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.) 
+ See the “ act to organize the militia,” passed April 23, 1823. 54 
DISQUALIFYING DISEASES. 
to bear arms, may produce the certificate of a surgeon or sur- 
geon's mate, as evidence of such inability, but such certificate 
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 com- 
manding officer of the regiment had the power of rejecting 
the surgeon’s certificate, while in the latter, this would rather 
seem to be referred to a court martial. However this may 
be, both equally show the necessity of the surgeon’s being 
acquainted with disqualifying diseases. 
The military system of France being more perfect than 
that of any other nation, it might be expected that rules or« 
this subject would there be formed; and accordingly we find 
that such were promulgated at an early period after the re- 
volution. A number of the inspector generals, (viz: Coste, 
Biron, Ileurteloup, Villars, Parmentier, Bruloy, hnbert, and 
Kanens,) were constituted a counsel of health of the armies; 
and they prepared certain tables of diseases, which partially 
or totally exempted from military duty. This was done dur- 
ing 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 munici- 
pal administration; and he is not entitled to present himself for 
this purpose, unless he bring a certificate from a health offi- 
cer, that he is really affected with a disease which appears to 
him to authorise an application. He is then to be examined 
by a health officer in presence of the administration, if he be 
capable of attending, or in presence of a delegate from it, if 
he be totally unable to attend in person. Before any dispen- 
sation be granted, the commissioner of the executive directo- 
ry must be heard; and he may, if any doubts be entertained, 
require a counter-examination. When the municipal admi- 
nistration consider any appeal to be without foundation, the 
* Revised Statutes of the state of New-York, part 1, chap, x, title 3. DISQUALIFYING DISEASES. 
55 
conscript is obliged to join the army without delay. When 
they consider themselves incompetent to decide upon the ap- 
peal, the conscript is allowed to present himself immediately 
before the central administration, for their decision. And the 
municipal administration can only grant definitive dispensations 
in cases of palpable and notorious infirmities. They may al- 
low 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 cen- 
tral administration, for their approbation or rejection; and if 
they refuse to ratify them, the conscript must again be ex- 
amined. Lastly, when they confirm a dispensation, it is sent 
to the minister 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 application for a dispensation, definitive or provisional, 
for diseases not obvious, or which do not prevent the appli- 
cant 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 
municipal 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. Scro- 
phulous ulcers. 6. Confirmed 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 
* Edin. Med. and Surg. Journal, vol. 6, p. 138,139. 56 
DISQUALIFYING DISEASES. 
evident, they ought to procure an absolute dispensation. But 
for commencing phthisis, asthma and ha3moptysis, the munici- 
pal administration ought to grant only a provisional dispensa- 
tion, if the person be incapable of presenting 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 re- 
served for the judgment of the central administration. 11. 
Lameness (claudication) well marked, whatever be the cause; 
this must be precisely stated. The same is the case with 
considerable and permanent retraction of the flexor or exten- 
sor muscles of a limb, or paralysis of these, or a state of re- 
laxation impeding the free exercise of the muscular move- 
ments. 12. Atrophy of a limb, or decided marasmus, cha- 
racterized by marks of hectic and wasting, which should be 
stated in the report. 
Table II. Infirmities or diseases which occasion absolute or re- 
lative incapacity for military service, and which are reserved 
for the examination and opinion of the central administrations 
of the department. 
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, swimming in the head, drowsiness, nervous or spas- 
modic 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 ophthalmia, or frequent rheums 
in the eyes, as well as habitual diseases of the eyelids or la- 
chrymal passages, of such a nature as obviously to injure the 57 
DISQUALIFYING DISEASES. 
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-sighted- 
ness; 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 ascer- 
tain 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. Deformity of the nose, capable of impeding respiration to 
a considerable degree; ozoena, and every obstinate ulcer of 
the nasal passages or palate; caries of the bones, and incurable 
polypi. 6. Stinking breath from an incurable cause, as well 
as foetid discharges from the ears; and habitual transpiration 
of the same character, .when incurable. Soldiers wdio emit 
these foetid exhalations are rejected by the corps, and repulsed 
by their comrades. 7. Loss of the incisive or canine teeth of 
the upper or under jaw; fistulas of the maxillary sinuses; in- 
curable deformity of either jaw by loss of substance, necrosis, 
or other cause, hindering the biting of the cartridge, or im- 
peding mastication, and injuring the speech. A person with- 
out 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. Dif- 
ficulty 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 de- 
gree, and capable of impeding their use considerably. As 
these diseases are very doubtful, and may frequently be si- 
mulated, it is advised that testimony proving their existence 
should be obtained, and the examination also should be re- 
* See Chapter 1, p. 29, 58 
DISQUALIFYING DISEASES. 
peated for several months at stated periods. An absolute or 
definite exemption need not to 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 carrying of arms and military accoutrements. 
13. Phthisis in the first degree; confirmed asthma; and ha- 
bitual, frequent, and periodical spitting of blood. The state 
of patients attacked with these diseases is often evidently bad, 
and accompanied by circumstances which leave no doubt; 
they then admit of an absolute 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 retention of urine, as well 
as severe diseases or lesions of the urinary passages; fistulas 
of these parts, whether incurable, or requiring constant medi- 
cal assistance. In a note, it is remarked, that retention 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 he sent to the army without 
any inconvenience. 16. The permanent retraction of a tes- 
ticle; its strangulation in the ring; sarcocele; hydrocele; 
varicocele; all severe affections of the scrotum, testicles or 
spermatic cords, known to be incurable. 17. Ulcerated hae- 
morrhoids; incurable fistula in ano; periodical and incurable 
haemorrhoidal flux; habitual and chronic flux of blood from 
the intestines; habitual incontinence of faeces; habitual pro- 
lapsus ani. These ought to be stated by able health officers, 
who have, for a length of time, treated and observed the pa- 
tient; 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 mutilation of 
the last joints of one or several toes or fingers; the irreme- DISQUALIFYING DISEASES. 
59 
diable loss of motion of these parts. These, although they 
interfere 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 respects strong and of a robust constitu- 
tion, he ought to be sent to the army. 19. Incurable deformi- 
ties of the feet, hands, limbs or other parts, which impede 
marching, or handling of the arms, or carrying the accoutre- 
ments, or the free motion of any weapon. These may pro- 
duce 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 inveterate, 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 consolidated, 
especially if they have adhesions, and are accompanied by the 
loss of substance, covered with crusts, or attended with va- 
rices. 23. Severe diseases of the bones, such as diastasis or 
separation, anchylosis, caries or necrosis, spina ventosa; os- 
seous tumours, and those of the periosteum, when considerable, 
or situated so as to impede motion, and which have been 
treated without 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; ob- 
stinate and complicated 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 characterized 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; 60 
DISQUALIFYING DISEASES, 
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; inve- 
terate 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 leaving nodosities and sensible contrac- 
tions ; while protracted rheumatism 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 equi- 
vocal 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; general 
or partial convulsive motions; habitual trembling of the wffiole 
body, or of a limb; general or partial palsy; madness, 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 inspect- 
ing military surgeon, in the days of Napoleon. They have 
been followed, though with greatly diminished severity, un- 
der the succeeding 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 
recruited by involuntary levies, and every man, upon his 
reaching the age of twenty, becomes available for the services 
* 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 Journal, vol. 
6, p. 138, etc. DISQUALIFYING DISEASES. 
61 
of the state, as a soldier. He is, however, exempted, 
(among other causes,) if he is furnished with a medical cer- 
tificate, stating that he labors under an infirmity, either per- 
manent 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 con- 
siderably 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 extremities, 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 calculated to obviate the simulation of defects, while in 
the latter, they are intended to prevent fraud, through the 
dissimulation of infirmities. 
Orders on this subject, have, at various times, been issued 
by the medical department of the British army.f The latest 
that I have seen, and which are, probably, still in force, are 
dated July 30,1830, and signed by Sir James McGrigor, M. D. 
director-general of the army medical department. The fol- 
lowing are enumerated as the more common causes, for which 
a recruit should be rejected: — feeble constitution, unsound 
health, from whatever cause — indications of former dis- 
ease—nodes, glandular swellings, or other symptoms of scro- 
* Marshall’s Hints on the Examination of Recruits, &c., p. 49. 
f Copies of several of these will be found in Marshall, pages 5 and 12. See also 
Hennen’s Military Surgery, Amer. edit., p. 354. 62 
DISQUALIFYING DISEASES. 
fula—weak or disordered intellect—chronic cutaneous affec- 
tions, especially of the scalp—severe injuries of the bones of 
the head—impaired vision, from whatever cause—inflamma- 
tory affections of the eye lids—immobility 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 dis- 
ease—impaired, or inadequate efficiency of one or both of the 
superior extremities, on account of palsy, old fractures, es- 
pecially of the clavicle, contraction of a joint, mutilation, ex- 
tenuation, 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 va- 
ricose state of the veins of the scrotum or spermatic cord; 
sarcocele, hydrocele, haemorrhoids — fistula in perineo — im- 
paired or inadequate efficiency of one or both of the inferior 
extremities, on account of varicose veins, old fractures, mal- 
formation (flat feet, &c.) palsy or lameness, contraction, exte- 
nuation, unequal length, bunions, overlying or supernumerary 
toes, ganglions—ulcers, or unsound cicatrices of ulcers, likely 
to break out afresh—diseases, whether acute or chronic, for 
which medical treatment is required; and lastly, traces of cor- 
poral punishment, which is declared to be an unqualified 
cause of rejection.* 
The medical officer is also directed to attend to all the cir- 
cumstances that indicate vigorous health, a capacity for exer- 
tion and general efficiency, such as a proper proportion be- 
tween the trunk and limbs—a firm and elastic skin—a healthy 
countenance—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 condi- 
tion—voice strong. 
The recruit is to be undressed before inspection, and is to 
perform before the medical officer, a certain routine of ac- 
tions, such as walking—extending the arms—coughing wrhile 
in that position—standing upon one foot, kneeling, &c., &c. 
* “ 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. 
63 
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 them- 
selves 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. mentions some curious facts illustrative of 
the necessity of great caution and acuteness in these inspec- 
tions. 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 con- 
trary, in France where the object of the conscript is a dis- 
charge, he has endeavored to diminish his height by cutting 
off all his hair, and paring off the thick cuticle under the soles 
of his feet. 
* “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 debility, 
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. 
t “ 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 depot at a time, a half witted 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 instance, 
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 exclu- 
sively 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 observa- 
tions by Goercke, the head of the Prussian military medical department,) in Edinburgh 
Med. and Surg. Journal, vol. 38, p. 178. 
f. Besides Dr. Marshall’s “Hints,” he has published another work entitled “ On 
the Enlisting, the Discharging and the Pensioning of Soldiers, with the Official Docu- 
ments 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. 64 
DISQUALIFYING DISEASES. 
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 perpendicular was found less than the horizontal height, 
by an average of T3¥ of an inch.* 
Of 57,894 recruits examined in the Centre Recruiting Dis- 
trict, Dublin, from Sept. 26th, 1804, to Dec. 24th, 1827, 
44,166 were approved and 13,728 rejected, being a propor- 
tion 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 reject- 
ed 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 re- 
jection 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 
Prussian rules are most applicable to our militia, and the En- 
glish to our regular army. I am not aware that the gene- 
ral 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, it a report made by the late Dr. Sam. L. Mit- 
* Hints, p. 62. 
t Ibid 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. 
65 
chill, then surgeon-general of the militia of this state, to his 
excellency, governor Clinton, and communicated to the legis- 
lature 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 military 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 fin- 
gers rendered useless, and is unable to perform military ser- 
vice. The captain on this discharged him for life. He was 
now (1808) nearly two years subsequent, fined for not ap- 
pearing. 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 prepar- 
ed 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 
withirf them. 
As to certificates, 1 have already stated that in this state, 
“ no fee or reward is to be taken for them.” 
* Assembly Journal for 1819, p. 25. 
t Howe v. Gregory, 1, Massachusetts Reports, 81. 
$ Commonwealth v. Bliss, 9, Massachusetts Reports, 322. See also the same vol. 
p. 11, 456, 540. 66 
DISQUALIFYING DISEASES. 
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 year’s 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 gra- 
tuities, it is evident, that much care must be taken to prevent 
imposition. Here, however, the directions given in the re- 
marks on feigned diseases, are more particularly applicable.! 
* 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- 
shall, quoted in Medico-Chirurgical Review, vol. 21, p. 260. CHAPTER III. 
Laws of various countries concerning impotence as a cause of divorce—Roman law— 
Canon law—Ancient French law—Napoleon code—English law. Causes of impo- 
tence 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 impotence in the fe- 
ma^e—incurable and curable. Causes of sterility—incurable and curable. Notice 
of English law cases, where impotence was presented as a cause of divorce. Law 
of the State of New-York on this subject—cases. 
IMPOTENCE AND STERILITY. 
A knowledge of this subject may become necessary in 
various ways, before judicial tribunals. An individual ac- 
cused of committing rape, has been known to plead that he 
was physically incapacitated; while the legitimacy of children 
has been contested on a similar plea. These examples are 
sufficient to shew 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, per- 
mitted divorce at the pleasure of either party. The Christian 
law, however, declares marriage to be indissoluble; and Jus- 
tinian, legislating on this principle, was the first monarch who 
prescribed the mode of obtaining divorce by law, and at the 
same time promulgated statutes as to impotence.* He or- 
dained, 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 
* Gibbon’s Rome, vol. 8, chap. 44, p. 64. 
t Code Justinian, lib. 5, tit. 17. 68 
IMPOTENCE AND STERILITY. 
least in practice) that the defect should be shown to have ex- 
isted before marriage; 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 accidental. 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 impo- 
tence, and dissolved marriages of eight, twelve, and even 
fourteen years’ standing. Accidental impotence, however, in 
the sense I shall hereafter define it, was never deemed a just 
cause of divorce by any of these tribunals. In 1759, the par- 
liament 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 conclu- 
sion. 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 mar- 
riage; but it will not vacate it, because there was no fraud in 
* Fodere, vol. 1, p. 361. It will astonish those who have not attended to this sub- 
ject, to leam 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 man- 
ner, but afterwards became shamelessly public. This prevailed from the thirteenth 
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 impo- 
tent; the congress was ordered, but without success; and his marriage was annulled 
in 1659. He married again, and had seven children. (Dictionnaire des Sciences Me- 
dicales, Art. Congres, by Marc. Mahon, vol. 1, p. 70.) 
f Fodere, vol. 1, p.362, 363. IMPOTENCE AND STERILITY. 
69 
the original contract, 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 trans- 
ferred her affections to the royal favorite, Viscount Roches- 
ter, (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 to- 
gether; 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 peereses and matrons, 
who were directed to examine her, corroborated this state- 
ment, although it is mentioned that she substituted 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 inabi- 
lity to know her; while he denies his impotence as to other 
females, and insinuates his belief of her incompetency for 
copulation. After the examination of numerous witnesses, 
objections were raised by Abbot, the archbishop of Canter- 
bury, 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 delegates, (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 
different writers; but I conceive that I shall be best enabled 
* Blackstone’s Commentaries, with Notes by Christian, vol. 1, p. 440. 
t 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, whe- 
ther the offspring was legitimate; and it was decided that the second marriage was 
utterly void, because the ecclesiastical court had been deceived in the opinion they 
had given on the impotency of Bury. (Page 23 of the Appendix.) 70 
IMPOTENCE AND STERILITY. 
to give a comprehensive view of them, by adopting the ar- 
rangement of Fodere, into absolute, curable, and accidental or 
temporary. 
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-conforma- 
tion 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 perineeum, 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 but- 
ton, in the place of the penis, and at which the ureters ter- 
minated : the testicles were well formed. Many cases are 
also on record of the penis being impervious.* 
In addition to this, have been enumerated, an amputation 
* 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 imperfo- 
rate-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.) 
There are two 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 venereal desires were violent. 
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 in- 
dividual came into the Massachusetts General Hospital in June 1832. He was a na- 
tive 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 quar- 
ter from the abdomen, directly over the ordinary place of the symphysis pubis. The 
ureters terminated in this, and the urine passed out in drops. The penis w'as short, 
only two inches long,—measuring five inches in circumference at its root, partly di- 
vided and united at the under surface only. The testes were perfect. He has sexu- 
al 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. Hayward states that 
one other case of this kind has come under his observation, but he had not an oppor- 
tunity of examining him minutely. (Boston Med. Magazine, vol. 1, p. 91.) IMPOTENCE AND STERILITY. 
71 
of the virile organ—a schirrous or paralytic state, induced by 
injury to the nerves or muscles of the parts—and an unnatu- 
ral perforation of the penis, or in other words, the extremity 
of the canal of the urethra, terminating at some place other 
than its natural situation. When this happens on the upper 
part, it is styled Epispadias, when below, Hypospadias. We 
shall however see that it would be unsafe to consider all or 
most of these as absolute causes of impotance. Thus, Piaz- 
zoni 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 ter- 
mination of the urethra. Belloc says that he knew a person 
at Agen, in whom the orifice was at the bottom of the frae- 
num, 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 there- 
fore depend on the distance to which the orifice is thrown 
back.f 
The inability to propel the semen out of its vessels, is fre- 
* 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 that 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 peasant 
near Hanau with five children, in whom the opening was 11J lines from the ex- 
tremity 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 spongiosum, 
between one or two inches from the glan3.” Dr. Blundell in Lancet N. S., vol. 2, 
p. 771. 
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 Dupuytreu. 
On the same page is the notice of a case of epispadias, related by Dr. Cramer in 
Hecker’s Journal. 72 
IMPOTENCE AND STERILITY. 
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 
prostrate 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 coun- 
tries, is well understood. I may add, that there have been 
instances in whmh 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 de- 
scended from the abdomen, and yet the individual has exhibited 
every proof of virility.! Considerable attention should be 
directed to the external appearance of the person — his mus- 
cular system—the strength of his voice—the presence of the 
beard, &c. The medical examiner should also examine whe- 
ther any cicatrix is to be found in the scrotum, indicating cas- 
tration; or whether, in the room of the testes, there do not 
* 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 Arles. Larrey also states, 
that many soldiers of the army of 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-Chrirugical Review, 4, 969, and Larrey’s Clinique Chir- 
rurgicale analysed in the same, vol. 19, p. 16. 
t “ 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 W'as 
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. 
73 
exist some hard knots or lumps, proving the existence of for- 
mer 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 unmarried; 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 examinations have proved that the con- 
formation in question may be present, without injury to the 
generative power. Rolfinck relates the case of an individual 
distinguished fQr 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 situation, consulted the 
physician as to the propriety of allowing him to marry. He 
recommended it, and a numerous offspring demonstrated the 
propriety of his advice.J 
* Mahon, vol. 1, p. 55, 57. 
t Moebius, quoted by Mahon ut antea. 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.) 
f Mahon, vol. 1, p, 54. Additional cases of fruitful marriages under these circum- 
stances, are mentioned by Dr. Geddings. (Chapman’s Journal, N. S. vol. 4, p. 34.) 
It is, however, proper to subjoin the remarks of Mr. James 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 perform- 
ing 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 altogether 
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 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 74 
IMPOTENCE AND STERILITV. 
I may also add, in this place, a cause of impotence, con- 
cerning 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 con- 
dition 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 translation of the complaint from the 
neck to the testes. Dr. Robert Hamilton, in one of the best 
histories that 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 another; both 
of whom were healthy.* Mahon also mentions that he was 
acquainted with a young man, in whom one of these organs 
gradually diminished and withered away, whilst the other in- 
creased proportionably in size; and after this had taken place, 
he became the father of five children.! Sir Astley Cooper 
removed a testis for an enlargement and great hardness, in 
January, 1821. The wife, by whom he had already had one 
child, nursed the patient, and in March she proved 
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 throws doubts on their powers. Dr. Baillie 
knew a person of middle age, in whom their size did not ex- 
ceed that of the extremity of the finger. This was congeni- 
tal, and accompanied with a total want of sexual desire. Mr. 
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 
body of the 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 situation, 
(Note to Good’s Study of Medicine, vol. 5, p. 7.) 
* Transactions of the Royal Society of Edinburgh, vol. 2. art. 9. 
f Mahon, vol. 1, p. 52. 
1 Medico-Chirurgical Review, vol. 18, p. 389. IMPOTENCE AND STERILITY. 
75 
Wilson, however, relates the following: “I was some years 
ago, consulted by a gentleman on the point of marriage, re- 
specting 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 noc- 
turnal 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 
capable 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 af- 
terwards be impotent. Orfila states it, as his opinion, that 
there may be temporary power in such cases, where the ex- 
tirpated testicles are healthy, but not if tuberculous or schir- 
rous.f Sir Astley Cooper, in his recent work on the struc- 
ture 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 operation. For nearly the first twelve months after 
the complete castration, 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 
* Lectures, p. 424. 
f Orfila’s Lemons, vol. 1, p. 127. 76 
IMPOTENCE AND STERILITY. 
erections were very seldom, and very imperfect, and the pe- 
nis was shrivelled and wasted.* 
To the above, Fodere adds the following, which may possi- 
bly in some cases produce the consequence in question, viz. 
congenital tumours of a large size; such, for example, as scro- 
tal 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.f The medical 
college of Western Prussia, declared a voluminous and irre- 
ducible hernia, a sufficient cause of divorce.J 
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 mastur- 
bation—a retraction of the penis, originating from stone in 
the bladder, or some other urinary diseases; a natural phy- 
mosis, which sometimes confines the glans in such a man- 
ner as to prevent the emission of semen ;§ obliteration of 
the canal of the urethra, from stricture or other causes;|| 
and lastly, the malconformation, of which we have spoken, 
* Modico-Chimrgical Review, vol. 18, p. 390. Sedillot mentions that he has heard 
Royer relate the case of a man from whom both testicles had been successively re- 
moved, on account of sareoeele. 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. 
f Fodere, vol. 1, p. 372. “ 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 decided, 
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. 
§ 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 Ecclessiastical Reports, is 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 fraenum, 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 willbe'found in Edin. Med. and Surg. Jour. vol. 21, p. 
315, by Mr. Maclure of Glasgow—Medico-Chirurgical Transactions, vol. 12,by Mr. 
Arnott. IMPOTENCE AND STERILITY. 
77 
as to the place of the aperture of the urethral canal. All 
these have been successfully obviated by modern surgery.* 
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 indi- 
vidual during his marriage, and of course, have to be consi- 
dered in cases of contested paternity.f The law presumes, 
that the husband 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, whe- 
ther 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 proved, and evidence given 
of the husband’s being frequently at London, where the mo- 
ther lived, access was of course presumed. The defendants 
were then admitted to give evidence of his inability from a 
bad habit of body. But their evidence, not going to an im- 
possibility, but an improbability only, this was not thought suf- 
cient, and there was a verdict for the plaintiff.”^ 
* Bushe’s Medico-Chirurgical Bulletin, vol. 2, p. 1. The Editor gives several 
cases of hypospadias successfully treated. I subjoin the following uncommon case, 
as an illustration of the trophies of modern surgery. In 1530, 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 fissure 
through the corpora cavernosa and glans. The penis was retracted considerably, so 
that the posterior part of the fissure lay behind the symphysis pubis. When he uri- 
nated, the urine after emerging from beneath the symphysis, divided into numerous 
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, intro- 
ducing a catheter and uniting the edges by sutures. The penis obtained its natural 
appearance. London Med. Gazette, vol. 6, p. 252. 
f I may mention in this place, a rare case given by Mr. Callaway, of an individual, 
who, returning home intoxicated, had several connexions with his wife during 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, prevent- 
“ ing the admission of blood, and consequent distention of the organ.” London 
Med. Repository, vol. 21, 286. 
I Strange’s Reports, vol. 2, p. 940. I am indebted to Dr. Male for the reference to 
this case. 78 
IMPOTENCE AND STERILITY. 
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 Ban- 
bury 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 Yaux, 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 reso- 
lutions denying the claim, or had no proceedings. In 1806. 
the lineal descendant of the son succeeded 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 Ban- 
bury 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.* 
The French or Napoleon code, although it does not permit 
a husband to disavow his child, by alleging his natural im- 
potence, yet contains a regulation, which, in its effects, ope- 
rates similarly to the principles contained in the English case 
above quoted. The 312th article says, that the infant con- 
ceived during marriage, 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 
* 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 Tinner and Russell’s Reports, 138. On the subject of non-access, the following 
American cases may be quoted, Commonwealth v. Strieker, 1 Browne’s Pennsylva- 
nia Reports, app. p. 47; Commonwealth v. Shepherd, 6 Binney’s Pennsylvania Re- 
ports, 283; 2 Paige’s Chancery Reports, 130, Cross v. Cross. IMPOTENCE AND STERILITY. 
79 
on account of absence, or from the effect of some accident, a 
physical impossibility of cohabiting 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 
except 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 connex- 
ion, are those which do not affect the head and sensitive sys- 
tem primarily, and are not accompanied with great debility, 
inflammatory and catarrhal fever are of this class. So also in 
asthma and the early stages of phthisis pulmonalis, the power 
is preserved.! Some diseases appear to stimulate the genera- 
tive organs; and others, although accompanied with pain, are 
said to excite desire. Of the first, may be named a calculus 
in the kidneys or bladder; and to the last belong gout and 
rheumatism.^; 
A man named Aurelius Lingius, aged sixty years, had been 
affected, during the two last years of his life, with occasional 
attacks of fever, accompanied with gouty pains, which at in- 
tervals made him extremely ill. For the space of two months, 
however, he appeared on the recovery; when, being seized 
* Fodcre, vol. 1, p. 375. “ In Scotland it is only necessary that a man 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.” Dunloi\ 
f Orfila’s Logons, 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 advanced 
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 power and the propensity to gratify it, 
have existed up to the very day of the patient’s death.” 
| “A friend of mine, who studied in the hospital of New-York, informed me, that 
after recovering from the yellow fever, the patients displayed most furious sexual 
passion, to the great inconvenience of the nurses and other female attendants.” 
Dunlop. 80 
IMPOTENCE AND STERILITY. 
with a fever and ague, he died. His wife declared herself 
pregnant, and six months after his death, wras delivered of a 
healthy child. Its legitimacy was contested, on the ground 
that the husband, before his last illness, had been incapable; 
and this opinion was corroborated by his own confession to 
the physician attending him. His wife allowed the truth of 
this statement, but asserted that his powers had returned some 
time before his decease. 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 mar- 
ried, and by each wife has had several children. The disease 
under which he laboured was a heating one, and his powers 
were probably perfect during the period of convalescence. 
His age does not prevent the possibility of his producing preg- 
nancy 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 pro- 
per to add a circumstance suggested by the author just quot- 
ed. He deems it possible that certain diseases may so change 
the state of the system, as to produce an alteration in the gene- 
rative power. He quotes the testimony of Avenzoar, who had 
no children during the whole period of youth, but became a 
father shortly after recovering 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.! 
The diseases which we may rationally suppose will prevent 
cohabitation, are the following: A mutilation, or severe 
wounds of the sexual organs—carcinoma of the testicles or 
penis—gangrene of the lower extremities—immoderate evacu- 
* Zacchias, Quest. Med. Leg. Consilium, 23. 
t Zacchias, vol. 1, p. 271. IMPOTENCE AND STERILITY. 
81 
ations of blood or bile, or of the fasces—scorbutic cachexia— 
marasmus—peripneumony and hvdrothorax—anasarca in its 
perfect state, particularly if accompanied with an infiltration 
into the sexual organs—nervous and malignant fevers, parti- 
cularly if they affect the brain, and are accompanied with 
great debility and loss of memory—all affections of the head 
and spinal marrow, whether from a fall, blow, wound or poi- 
son ;* or from internal causes, as apoplexy, palsy, or other 
comatose diseases. If the infant is conceived whilst the hus- 
band has been known to have labored 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 cohabitation, from the fear that we may suppose the 
female has experienced, lest she should be contaminated, or 
from the dread that she has entertained of having communica- 
tion with the individual. 
We come now to the consideration of impotence in the fe- 
male. 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 incurable and curable. 
The incurable causes of impotence are, 1. An obliteration 
or thickening of the sexual organs, so as to prevent any in- 
troduction. 
The vagina and womb have thus been found closed with a 
dense fleshy subtance. Morgagni mentions cases in which 
there was a continuity of parts, without any aperture. A re- 
cent case related by Dr. Mott, as occurring in this country, 
deserves to be mentioned in detail. The individual was aged 
23. and had 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 
* Fodeie 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 ol the system was left after the recovery from the immediate danger. Vol. 1, 
p. 382. 82 
IMPOTENCE AND STERILITY. 
some slight uneasiness about the pelvis, which is followed for 
a day or two with 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 hy- 
men, there is a complete septum or partition. It has a firm 
appearance, though it yields somewhat to the finger. There 
is not the least opening into it in any part. Imagining that it 
might possibly 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 pro- 
ceeded between two and three inches. No marks of a vagina 
could however be discovered. 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 
Celebres. In 1722, a young woman aged twenty-five, in good 
health, was married at Paris. Six years elapsed without con- 
summating 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 health, she had never been subject to the 
* New-York Med. and Pliys. 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 men. 
lions 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. 
Such 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. 
83 
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 per- 
formed 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 preserved. In the year 1742, the husband 
applied to the court to annul the marriage. Levret and Sau- 
met, on being consulted, stated that they had found an aper- 
ture 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. Ferrin, Petit, and Mo- 
rand, on the other hand, deposed, that the operation 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 practica- 
ble. The female died at Lyons about ten years after; and 
on dissection, 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 
dissection or by operations during life, the uterus is found 
present. Thus, in one by M. Villaume, the hymen was pre- 
sent, 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 appendages, were seen of their 
natural size and well Professor Warren of Boston 
* Fodere, vol. 1, p.385. Still more remarkable cases are on record. In the article 
Cas raves, 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 open- 
ed 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. (Medieo-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 Medical 
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 Journal of Medical Sciences, vol. 2, p. 193, from Journal de Progres. 84 
IMPOTENCE AND STERILITY. 
recently operated in a case, where the vagina was wanting, 
although the aperture of the urethra was well formed, and the 
clitoris and nymphse appeared as usual. The female was 23 
years old. The breasts were natural. No uterus could be 
discovered on examination. The operation ended favorably, 
a sanguineous discharge resembling the catamenia occurred, 
and Dr. Hayward supposed that he could distinguish some- 
thing like a uterus.* 
2. Another cause, (as assigned by systematic writers,) both 
of impotence and sterility, is a natural or fistulous commu- 
nication of the vagina with the bladder or rectum. Foder6 
mentions cases of this nature, where the female menstruated 
by the rectum, and every possible remedy failed of success. 
There are, however, exceptions to this; since we have ac- 
counts of impregnation in one or two instances, and where 
delivery was effected 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 pro- 
secution by the Parliament of Paris, and the Doctors 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 occurred where they are of long 
standing, and cannot be reduced, since the introduction of the 
fingers causes the most vivid pain.j: 
Sometimes the vagina is found ending in a cul de sac, as in the case of Agatha M€- 
iassene, 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 
developed ovaries. (Littel’s Journal of Foreign Medicine, vol. 1, p. 184.) 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. 299. A late case of the same nature oc- 
curred to Prof. Rossi in Piedmont. (Dictionnaire des Sciences Medicales, vol. 24, Art. 
bn/puissance.) Two other cases are related by Davis, (Obstetric Medicine, p. 121,) 
on the authority of Puzos and Portal. 
i 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. 85 
IMPOTENCE AND STERILITY. 
4. A cancer of the vagina or uterus, from the pain that 
accompanies it, may be considered as an absolute cause.* 
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 
accompanied 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 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 ab- 
sence of the uterus, as the vagina terminated in a cul de sac. 
This female had never menstruated; 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 mem- 
brane, 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 de- 
manded a dissolution of the marriage, from the impossibility 
of having perfect connexion. 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. || 
* In the New-England Journal, vol. 9, p. 161, is a case by M. Lasserre, which evi- 
dently proves the position in the text. Dr. Beatty of Dublin had, however, a pregnant 
female labouring under this disease. 
t Gooch’s Midwifery, p. 45. 
; 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 was closed up to the orifice of the uterus, is quoted from Flet- 
cher’s Medico-Chirurgical Notes and Illustrations. She was relieved by an operation. 
A passage had, however, previously been effected into the bladder by the urethra, 
which was greatly enlarged. (Lancet, N. S. vol. 8, p. 613.) 86 
IMPOTENCE AND STERILITY. 
2. An extreme narrowness of the vagina. Should preg- 
nancy intervene, no apprehension need 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.* 
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 A dilatation of these may be made according 
to the rules of modern surgery.:}: 
* 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 other cases. 
f 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 Caesar 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. 
In the Medico-Chirurgical Transactions, vol. 11, p.445, a case is related of a ne- 
gress in Jamaica, in whom there was a complete adhesion of the labia; and she as- 
serted that it was owing to an operation performed in Africa, for the purpose of pre- 
serving 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 adhesions 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 va- 
luable on account of their unfitness for sexual connexion. (Elliotson’s Blumenbach, 
p. 456.) See also Browne and Legh’s Travels. 
1 Dupuytren, in his Essay on Laceration of the Perineum during Labour, mentions 
two cases, wThich I extract, for the purpose of caution to the medical jurist. He de- 
livered 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 examination, the aperture IMPOTENCE AND STERILITY. 
87 
4. Imperforate os uteri.* 
5. We may add long continued haemorrhage, recent pro- 
lapsus of the uterus or vagina, and even protracted fluor alhus, 
to the above. They prevent connexion from the pain that 
occurs, or the diseased state that is present. 
The causes of sterility, of an incurable nature, and sensi- 
ble to the sight or touch during life, may be stated thus: A 
schirrous or cartilaginous uterus; stricture in the cavity of 
that organ;! a polypus in the interior of the uterus; enlarged 
and schirrous ovaria. The want of the uterus, should that 
occur, is seldom positively known till after death.! 
The causes which may be curable, are, obliquity in the po- 
sition of the uterus; too great irritability of that organ; ex- 
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 preg- 
nant, and was safely delivered. — In a parallel case, the husband deemed it a most 
unequivocal proof of previous purity. (London Medical Gazette, vol. Ilf p. 128.) 
* Medico-Chirurgical Review, vol. 17, p. 553. A case by Prof. Delpech. 
| Baillie’s Morbid Anatomy, p. 371. “ Slight inflammation (he observes) may in- 
duce this, and the obliteration particularly occurs in that part where the cavity is nar- 
rowest.” 
f 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, wdth 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 character- 
istics. 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 tinea; 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, 
wras 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 ova- 
ria were so indistinct, as ratlier 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 opera- 
tion. (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. lVlacfarlane; Davis’s Obstetric Medicine, p. 513; An- 
dral’s Pathological Anatomy, vol. 2, p. 414; Gooch’s Midwifery, p. 8. 88 
IMPOTENCE AND STERILITY. 
cessive menstruation; leucorrhea; retention of the menses.* 
This last, however, is not by any means a certain cause of ste- 
rility, as women have become pregnant without the menses 
ever occurring, f 
In concluding this subject, it is proper to add, that there are 
many cases of constitutional sterility, which we cannot ex- 
plain. Ashwell in his Treatise on Parturition, ascribes it to 
four principal causes; too early marriage—general ill health 
— too frequent sexual intercourse and dysmenorrheea.:}: 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 extremities of the fallopian 
tubes on one or both sides, adherent to some of the neighbor- 
* 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.) 
f I have already referred to Dr. Duncan’s Essay; and will only add, that it contains 
a notice of mal-conformations in the genital organs of both sexes, as connected 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. Additional 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 Astley Cooper, Esq.; and vol. 7, p. 23, by 
Mr. Conquest; in London Med. Gazette, vol. 10, p. 8, by Mr. Earle. This last wri- 
ter observes, that there are but seven or eight recorded cases of such mal-conforma- 
tions 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 Clini- 
cal Lecture on this subject, as above. A very curious American case, where the cae- 
sarean operation was successfully performed, and the parts generally resembled the 
cases above enumerated, is related by Dr. Hamilton, of Enfield, Connecticut, in Bos- 
ton Med. and Surg. Journal, vol. 11, p. 93. 
+ Review of his work in Amer. J. Med. Sciences, vol. 4, p. 149. Sterility is consi- 
dered by the law's 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 tkoro. Edinburgh Encyclopedia. 
Art. Barrenness. IMPOTENCE AND STERILITY. 
89 
ing parts* and it is evident, that the constant state of inflam- 
matory turgesence in the generative organs must lead to this.* 
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 assigned to this class, has been greatly reduced by 
the improvements 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 wras 
now fifty years old. Sir William Scott, (Lord Stowell) de- 
nied the application. 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.f 
In the case of Greenstreet v. Cumyns, the husband admit- 
ted 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 weak- 
ness being remedied. The marriage was annulled on these 
grounds—the husband (Sir Wm. Scott observed) being in ut- 
ter ignorance of his constitutional defects at the time of mar- 
riage.:): 
In Norton v. Seton, the husband instituted a suit for di- 
vorce 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,” 
* 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. 
t 3. Phillimore’s Ecclesiastical Reports, p. 425. 
t 2. Phillimore, p. 10, 90 
IMPOTENCE AND STERILITY. 
says he, “ has been seven years’ cohabitation. Cur tarndiu 
tacuit V’* 
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 
defect, is decisively affirmed by Sir John Nichol in the case 
of Brown v. Brown, f 
In Pollard v. Wybourn, it was proved by medical certifi- 
cates, that the female, twelve years after marriage, was virgo 
intacta and apta viro. The husband had made several con- 
fessions of his incapacity, and refused, being in France, to an- 
swer to the complaint. The marriage was dissolved.^ 
I find that I was mistaken in stating, as 1 did, in the previous 
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 disso- 
lution 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 canoni- 
cal 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 an- 
nulling 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, who 
* 3. Phillimore, p. 147. 
11. Haggard’s Ecclesiastical Reports, p. 523. 
t 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 as- 
serted by Sir George Lee, (Ecclesiastical Reports, edited by Dr. Phillimore, 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 ca- 
pable. The wife was declared pure on the examination of midwives. Sir George 
Lee, however, refused to dissolve the marriage. IMPOTENCE AND STERILITY. 
91 
either alone or with the council, assumed, executive and judi- 
cial powers. During that period, one of the governors, Love- 
lace, granted four divorces, one in 1670, and three in 1672.* 
* 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 Ele- 
azer L , of Huntington, made complaint unto me of the uncomfortable condi- 
tion wherein his said daughter hath, for divers years past, lived with her said hus- 
band; 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 notorious 
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 continue. 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 appoint, 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 appearance before the said 
court, for the better clearing of the truth, so that the controversy may be decided ac- 
cording 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, Spc. 
‘! 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 perform- 
ed 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 supposition 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 Lovelace, Esq. Mr. Samuel 
Maverick, Mr. Matthias Nicolls, Capt. John Manning, and Mr. Humphrey Daven- 
port, to be commissioners, to meet at some convenient place this afternoon, then and 
there to hear and examine into this matter in difference between 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 ye 
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 deter- 
mination thereupon. Given under my hand and seal, this sixth day of May, in tha 
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 92 
IMPOTENCE AND STERILITY. 
These 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. 
“ 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 con- 
cerning divorces are original regulations, and they do not 
adopt or introduce the English law of divorces. We have 
no judicature authorised to adjudge by a substantive and ef- 
fectual 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, pxisting 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 incapacity is alleged; and shall in all cases, be brought 
within two years from the solemnization of the marriage.f 
appetites incident to human nature, but likewise for the well ordering and confirma- 
tion of the right of meum and tuum, to be devolved upon the posterity lawfully be- 
gotten 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 in- 
valid, together with all the consequences thereof; and the said Rebekah W- is 
hereby acquitted, made free, and divorced from all pretences of marriage, or matrimo- 
nial ties and and obligations between her and the said Eleazer; and the said Rebekah 
hath likewise free liberty to dispose of herself in lawful marriage with any other per- 
son, 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 Oc- 
tober, in the 22d year of his majesty's reign, A. D. 1670.”—Ib. p. 260. 
* Hopkins’ Chancery Reports, vol. 1. p. 557. 
t Revised Statutes, vol. 2, p. 142, 143. IMPOTENCE AND STERILITY. 
93 
In Pennsylvania, by an act passed March 13, 1815, it is 
enacted, “that if either party, at the time of the contract, 
was and still is naturally impotent, or incapable of procrea- 
tion, it shall and may be lawful for the innocent and injured 
person to obtain a divorce.”* 
* Griffith’s Ryan, p. 111. 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 lawTs concerning hermaphrodites — 
English common law concerning them. Notice of Geoffry 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 in- 
dividual. One of the personages who was supposed to be thus 
endowed, 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 fabu- 
lous, 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 
communicated to him by Dr. Storer of Nottingham. “ The 
person,” he observes, “bears a woman’s name, and wears DOUBTFUL SEX. 
95 
the dress of a woman. She has a remarkable masculine look, 
with plain features, but no beard. She has never menstruated; 
and on this account, she was desired by the lady with whom 
she lived as a servant, to become an out patient in the Not- 
tingham hospital. At this time she was twenty-four years of 
age, and had not been sensible 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 hymen being imperforated, and the 
menstrual blood having accumulated 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 urinae, appeared as in the natural structure of 
a female; but there were no nymphae. The labia w'ere more 
pendulous than usual, and contained each of them a body 
resembling a testicle of a moderate size, with its cord. The 
mammas 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 fol- 
lowing case, communicated by M. Maret. Hubert J. Pierre 
died at the hospital in October, 1767, aged seventeen years. 
Particular circumstances had led to a suspicion of his sex, and 
these induced an examination after death. His general ap- 
pearance 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 areola. The bust re- 
sembled a female; but the lower part of the body had not that 
enlargement about the hips, which is usually observed 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 resembled the labia of a female. At the left side of this 
* Morbid Anatomy, third edition, p. 410. 96 
DOUBTFUL SEX. 
opening, there was a small round body like a testicle, but none 
on the right; however, if the abdomen was pressed, a similar 
body descended 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 female, while below these was a very narrow 
aperture, covered with a semilunar membrane. A small ex- 
crescence, placed laterally, and having the appearance of a 
caruncula myrtiformis, completed the similarity of this fissure 
to the orifice of the vagina. On further examination, the penis 
was found to be imperforate; the testicle of the left side had 
its spermatic vessels and vas deferens, which led to the ve- 
siculse seminales. By making an incision into the semilunar 
membrane, a canal one inch in length, and half an inch in dia- 
meter, 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 discovery was, 
however, yet to be made. The supposed vagina, together 
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 con- 
nected by a voluntary association with a man, who had for a 
long time performed 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 
* Mahon, vol. 1, p. 100. DOUBTFUL SEX. 
97 
delicate contours of the lower limbs, the rounded hips, the 
broad pelvis, and the greater separation of the thighs, ap- 
proximated decidedly to the female form. An imperforate 
penis, two testicles, and an appearance of vulva, were the 
external generative organs. The testes were well formed; 
the vesicuke 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 considered 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 at- 
tire. The scrotum is divided along the median line, resembling 
the female labia; and each of these contains a testis. On se- 
parating them, the glans penis, resembling a clitoris, is seen; 
it is covered with a prepuce, and has a fissure, but is imperfo- 
rate. 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 de- 
sires.! 
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 
following. Dr. Ackermann viewed the body during life, and 
also dissected 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 de- 
pression 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 
* 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. 98 
DOUBTFUL SEX. 
uterus and urethra opened into the posterior part of this canal; 
and the testicles, with their tunic® vaginales, were found in 
the labia. As to the internal organs, the urinary bladder oc- 
cupied its usual place; one of the testicles had descended into 
the scrotum, and the other had advanced no farther than the 
groin; both were perfect, and had their usual appendages 
complete. In the place usually occupied by the female uterus, 
there was found an organ closely resembling it. Its figure 
was pyriform, and it opened by a round orifice 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 si- 
milarity between them is so great as to render a farther detail 
unnecessary. 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 al- 
ready 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. JVo monster has- 
been described, having both a -penis and clitoris; nor with a testis 
and ovarium of the same side—we may venture to say, with tes- 
tes and ovaria; nor one having a prostate and uterusThis 
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 malformed. 
The idea of our author is also no doubt correct, that in re- 
peated instances the part deemed to be a uterus is a malformed 
prostate. “ The proof rises almost to certainty, when we 
recollect that the prostate is the only male organ not ac- 
* Edinburgh Medical and Surgical Journal, vol. 3, p. 202. Review of “ Infantis 
Androgyni Historic! et Icknographia,’’ &c. Auctore I. F. Ackermann. 99 
DOUBTFUL SEX. 
counted for in the hermaphrodite.”* If these views be adopt- 
ed, 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 
explain in conformity to the above opinions. Even if the 
first be deemed, and it doubtless is, imperfect; yet the last is 
vouched for by one of the most eminent anatomists of the 
present day. 
The late Dr. Handy of New-York, in a letter to Dr. Ed- 
ward 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 complete- 
ly, and admits of being partially retracted. On the introduc- 
tion of a probe, the male urethra appeared to be pervious 
about a third of its length, beyond which the resistance to its 
passage was 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 female parts do not dif- 
fer 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 rec- 
tum, and are not surrounded with the usual quantity 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 ges- 
tation. 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. 
* 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 American 
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.) 100 
DOUBTFUL SEX. 
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 per- 
fect anatomical examination of the supposed testicles was 
wanting. They incline to the idea that the partially perfo- 
rated 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 develope- 
ment present, it was probably several weeks old “ The penis 
was divided inferiorly; the right side of the scrotum contain- 
ed a testicle, the left side was small and empty. There was 
a uterus which communicated 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 fallo- 
pian tube, nor ovary, nor ligament, but a true testicle, from 
the epididymis of which there arose a vas deferens. Below 
the uterus, there was a hard, flattened, 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 va- 
gina, 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 vesiculaj 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 se- 
parate parallel folds of the skin; the penis being imperforate, 
and the urethra opening in the perinmum, on the surface of a 
blind aperture, having a red and tender appearance, and easi- 
ly mistaken for the vagina. In such an individual, the penis 
* New-York Medical Repository, vol. 12, p. 86. 
t American Journal of Medical Sciences, vol. 9, p. 499. DOUBTFUL SEX. 
101 
being imperforate, and probably smaller than usual, is con- 
sidered as a large clitoris; the folds of the skin holding the 
testes, very much resemble the female labia, and the red slit 
behind which the urethra ends, is tolerably analogous to the 
vagina.”* A marine, answering perfectly to this description, 
was sent to the hospital at Toulon in 17i)9, as an hermaphro- 
dite. 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 per- 
fect, but they must evidently be impotent from the imperfora- 
tion of the penis, and the opening of the ejaculatory ducts 
near the perinseum. Here the semen is of course expelled. 
Deviations less marked, have also been observed, and among 
others, a confinement of the penis to the scrotum, by a parti- 
cular formation of the integuments, has occasioned persons to 
be reputed 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 being consulted in 1779, on occasion of some com- 
plaint in the groin about a child, seven years of age, he found 
a vicious structure of the sexual organs, consisting in the pre- 
sence of such an unnatural integument. This child had been 
baptized and brought up a girl, but it was evident to him er- 
roneously, as the male organs were present. By a slight in- 
cision, he liberated the restricted parts, and proved to the pa- 
rents, that they had mistaken a boy for a girl.J 
Lastly, males are supposed to be hermaphrodites, when the 
urinary bladder is deficient, together with the lower and an- 
* Rees’ Cyclopedia, art. Generation» 
t 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 contain- 
ed the testicles, but it was divided, and resembled the labia. The urine was evacu- 
ated at the perinseum. (Edinburgh Med. and Surg. Journal, vol. 4, p. 32.) There 
certainly can be no doubt of this person being a male. 
The Saxon case, that I have described on a previous page, might with propriety be 
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. 102 
DOUBTFUL SEX. 
terior 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 alterations in the generative organs 
are generally observed, in consequence of this deformity. The 
urethra is deficient, and the penis consequently imperforate. 
It is also very short—never exceeding two inches, even in the 
adult. The vesiculas 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 consequence 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 to 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 female, 
called in our language a scarcht, in whom man’s nature did prevail: But because his 
disposition and portraiture of body represented a woman, in a man’s house of Linlith- 
gow, 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 offended 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 Marie Derrier— in 
whom there was an imperforate penis, and an opening at the perinaeum, but no tes- 
ticles or traces of vagina. Hufeland and Mursinna declared her a female: Stark and 
Martens, on the other hand, considered her a malformed male. Orfila and Marc, who 
both notice the case, (Lecons, vol. 1, p. 161; and Dictionnaire des Sciences Medi- 
cales, vol. 21, p. 115,) seem to be of the latter opinion. 
Also 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 DOUBTFUL SEX. 
103 
3. Females with unusual formation of the generative organs. 
(androgvnae.) 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 ne- 
gress, 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 inspec- 
tion, 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, as it completely covered the ori- 
fice of the urethra. The other parts of the female organs 
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 
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 Me- 
dicine at Paris in 1830. (North American Medical and Surgical Journal, v. 12, p. 224.) 
Nor can I, in concluding these references, avoid giving an abridged detail of the fol- 
lowing 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 examination, at which 
Dr. Davis, Prof. Pattison and several others, were present. A substance resembling 
the clitoris, but a little larger, was seen, having about half an inch of its gland un- 
covered 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 carneo-membranous structure 
of no great thickness, but of considerable firmness and tenacity. 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 abdo- 
minal cavity. The breasts were not developed, and the voice was rough. Dr. Davis 
vory justly considers the sex of this person as masculine. (Obstetric Medicine, p. 63.) 104 
DOUBTFUL SEX. 
were found to be in a natural state.* It is proper to observe 
in this place, that in new-born children the clitoris is propor- 
tionably very large. 
In 1814, a female named Mary Magdalen Lefort, excited 
great attention in Paris, and subsequently in London, as a re- 
puted hermaphrodite. 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 re- 
marks of other observers, the following particulars are drawn. 
The breasts were sufficiently developed, and there were per- 
fect areola? on the nipples. The upper lip and chin were co- 
vered with a beard. The clitoris resembling much a small 
penis, emerged from under the symphysis pubis, and shooting 
out from between the superior part of the labia, terminated 
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 the one to the other, and from the lower angle formed 
by their union, upwards as far as the prominent clitoris alrea- 
dy 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 en- 
largement 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 vo- 
cation. The urethra in this case was produced under the cli- 
toris, and it was this circumstance which constituted its re- 
semblance to a penis. But the presence of organs essential 
* See Home on Hermaphrodites. (Philos. Trans, vol. 89, p. 157.) Many other 
eases 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 cli- 
mates; but I may add, that a sufficiency of cases are related. “An entire quarto 
thickly printed page of references to cases of monstrous clitorides, are 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 in- 
ches, 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. DOUBTFUL SEX. 
105 
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. Mar- 
garet Malaure came to Paris in 1693, dressed as a man. She 
considered 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 hermaphrodite. Saviard, an eminent surgeon, was, 
however, incredulous. He examined her in the presence of 
his brother practitioners, and found that she had a prolapsus 
uteri, which he reduced.f 
Sir Everard Home mentions a similar case of a French 
woman, 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 powers of a male.:}: 
It wrill 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 organization or position of the urinary or generative 
organs; or females with an enlarged clitoris, or prolapsed 
uterus; or individuals in whom the generative organs have 
not produced their usual effect in influencing the development 
of the body.§ Thus it is evident, that instead of combining 
the powers of .both sexes, they are for the most part incapa- 
ble of exerting any sexual function.|| 
* London Medical Repository, vol. 4, p. 414. Orfila’s Legons, vol. 1, p. 153. 
Davis’s Obstetric Medicine, p. 62. Elliotson's Blumenbach, p. 420, 422. Cyclo- 
pedia of Practical Medicine, Art. Sex, (doubtful,) by Dr. Beatty. 
t Mahon, vol. 1, p. 96. 
t Home ut antea. A case similar to the above is related in Valentini Pandect®, 
vol. 1, p. 38. 
§ In a recent discussion at the Academy of Medicine of 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 cha- 
racteristic 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 some 
of the supposed cases of hermaphrodism, congenital hernia of the ovaries may be mis- 
taken 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, 106 
DOUBTFUL SEX. 
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 and 
cruel laws. Diodorus mentions that they had been burned 
by the Athenians and Romans. At an early period of Ro- 
man history, a law was enacted, that every child of this de- 
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 fozdum et turpe prodi- 
gium* The Jewish Talmud, w’e are told, contains many 
ordinances founded on the apparent predominance of sex. 
The canon and civil law have also many enactments con- 
cerning 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 learn- 
ed opinions on this subject may be found in Valentini.f 
Hermaphrodites could not, however, be promoted to holy 
orders, on account of their deformity or monstrosity; nor 
could they be appointed judges, “ because they are ranked 
with infamous persons, to whom the gates of dignity should 
not be opened.” 
An old French law allowed them great latitude. It enact- 
ed that hermaphrodites should choose one sex, and keep to it.}: 
These absurd notions and practices have now disappeared; 
but the subject is, notwithstanding, important on many ac- 
counts, 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 individual, the descent of property, and the judi- 
cial decisions concerning impotence or sterility. Thus, Mr. 
Ferrein, a modern physician, informs us, that he was consult- 
ed by the relatives of a young nobleman labouring under a 
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 Novelise Cas. 10, de matrimonio hermaphroditi. 
t Male, p. 278. DOUBTFUL SEX. 
107 
dubious conformation, who, if a male, as was commonly be- 
lieved by them, would inherit a considerable estate, but to 
which he could have no right if he belonged 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 mas- 
culine. 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 induced 
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 form- 
ing 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 individual 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 in- 
dividual to be a woman. 
On proceeding to the sexual organs, a male with a fissure 
in the perinaeum, and an imperforate penis, may be ascertain- 
ed by the size of the penis; by the different organization of 
the prepuce from that which covers the clitoris; by the ab- 
sence of nymphas and hymen, and probably by the presence 
of testes. The different relation of the fissure in the peri- 
naeum 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 towards the situation of the 
uterus. 
On the other hand, a female is indicated by the size of the 
clitoris, and its different shape; by the connexion of its pre- 
puce 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 108 
DOUBTFUL SEX. 
in viewing the adult; but the difficulty is much increased with 
new-born children. In such instances, a close and accurate 
examination is required, founded on the distinctions already 
laid down, so far as they are applicable.* 
The English common law on this subject, and which of 
course is binding in this country, is thus laid down by Black- 
stone 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 hermaphro- 
dite, that is both male and female. And an hermaphrodite 
(which is also called androgynus) 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.”j; The same 
rule, he observes, (hermaphrodita tarn masculo quam feminoe 
comparatum secundum prcevalescentiam sexus incalescentis,) 
guides in cases concerning tenant by the curtesy. § 
It was not until I had prepared this chapter for publication, 
that I met with some brief notices of the recent work of I. G. 
St. Hilaire on Hermaphrodism. As it is not in my power to 
procure it in season for the purpose of recasting my observa- 
tions, I prefer adding in this place an analysis of its contents, 
copied from the Lancet, N. S. vol. 12, p. 48; and the New 
Edinburgh Philosophical Journal, vol. 15, p. 298. 
M. St. Hilaire divides the generative apparatus into six dif- 
ferent portions or segments, three on a side, which in several 
respects are independent of each other. 1 and 2. The deep- 
seated organs, testicles and ovaries. 3, 4. The middle or- 
gans; womb or prostate, and vesiculm 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 development, we have the 
first class, or hermaphrodism without excess. This again is 
subdivided into four orders: 1. Male hermaphrodism, when 
* I am much indebted, on this subject, to the articles Generation in Rees’ Cyclo- 
pedia, and Hermaphrodites in Brewster’s. The former is an elaborate and able pro- 
duction, from the pen of Mr. William Lawrence, gee also the article on this subject 
by Marc, in the Dictionnaire des Sciences Mgdicales, vol. 21; and for some discussions 
on the Theory of Hermaphrodism, by Dr. Knox, of Edinburgh; see Dr. Brewster’s 
Journal of Science, N. S. vol. 2, p. 323. 
t Blackstone, 2,247. } Coke Littleton, 8, a. § Do. 29, b. DOUBTFUL SEX. 
109 
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 II. where 
the apparatus, though essentially female, yet oilers in some 
one portion the form of a male organ, as in the excessive de- 
velopment of the clitoris. 3. Neutral II. when the portions 
of the sexual apparatus are so mixed up, and so ambiguous, 
that it is impossible to ascertain to what sex the individual 
belongs. 4. Mixed II. when the organs of the two sexes are 
actually united and mixed in the same individual. Of this 
there are several species: Alternate, when the deep organs 
belong to one sex, and the middle to the other, while the ex- 
ternal 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 female; 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 II. 
where wre 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 an apparatus essentially female. 3. Bisexual II. where 
a male and female apparatus exist in the same individual. 
M. St. Hilaire allows, however, unequivocally, that the exter- 
nal organs (as a penis and clitoris) have never been found 
perfectly double. “ The researches of modern anatomists 
have completely set at rest the long debated question of her- 
maphrodism, in the vulgar acceptation of the word. It is 
anatomically and physiologically impossible.” 
“ 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 dis- 
tinguishing the sex, is the consequence of the general fact, 
that while the internal organs vary almost to infinity in num- 
ber, structure and arrangement, (being either internal male— 110 
DOUBTFUL SEX. 
internal female—a double set of organs, which are male and 
female—or finally ambiguous, being neither male nor female,) 
the external ones preserve their normal number; and the mo- 
difications which they present in other respects, being inter- 
mediate 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 correspond 
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, 
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 her- 
maphrodites, and hermaphrodites mixed by superposition; and 
on the other hand, certain individuals, the bisexual hermaphro- 
dites, who present the two sexes united in the same degree.* 
If the reader will compare this analysis with the accom- 
panying chapter, he will readily observe in what respects the 
observations 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 im- 
provement can be made in our existing lawr, unless the mixed 
class be actually precluded from the power of inheriting. 
* A remarkable case of this description, which occurred in Paris, to Prof. Bouillaud, 
the Editor of the Journal Hebdomedaire, is given from that journal in the Lancet, 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 tes- 
ticles, 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 th<fe 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 amalgama- 
tion or co-existence of the latter, but not of the former. ’ CHAPTER V. 
RAPE. 
1. Signs of virginity—opinion of anatomists concerning them. 2. Signs of deflora- 
tion 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 dis- 
position, it not unfrequently occurs, that the opinion of the 
physician is required, in order to elucidate various difficulties 
connected with the accusation. I shall, therefore, follow the 
plan pursued by all systematic writers on this subject, and 
commence with a notice of the signs of virginity. A know- 
ledge of these is generally required in cases were 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 cor- 
rect 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. 112 
RAPE. 
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 'occasionally 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 concerning its presence. Some distinguished physio- 
logists have denied its existence altogether, or in the cases 
where it is found, consider it a non-natural or morbid occur- 
rence. Among these, may be enumerated, Ambrose Pare, 
Palfyn, Pinaeus, Columbus, Dionis and Buffon. “ Columbus/’ 
says Zacchias, “ did not observe it in more than one or two 
instances; and Fallopius, in not more than three females out 
of thousands whom he dissected.”* “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.”f Those on the contrary, who. 
from dissection, have believed in its presence previous to sex- 
ual intercourse, or some other cause destroying it, are Fabri- 
cius, Albinus, Ruysch, Morgagni, Haller, Diemerbroek, Heis- 
ter, Riolan, Sabatier, Cuvier, Blumenbach, and I may add 
Denman. Haller appears to have observed it in persons of 
all agesi| Cuvier has not only found it in females, but also 
in mammiferous animals; and thus gives strong evidence of 
its existence by analogy.§ Gavard, who appears to have dis- 
sected a great number of subjects at the Hospitul de la Sal- 
petricre, 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 
* Zacchias, vol. 1, p. 37C. f Mahon, voJ. 1, p. 118. 
1 “ Ego quidem in omnibus virginibus reperi, quarurn aliquse adulta; erant aUatis, 
neque unquam desideravi, neque credo a pura virgine abesse. Vidi hymenem bis in 
foetu, sexies in recens nata, bis in puella aliquot septimanarurn, ter in annua, semel 
rnense 18, semel in bimula, bis in sexenni, semel in decenni, semel in 14 annorum 
puella, semel in alia 17 annorum, semel in vetula.” (Elementa Physiologies, tom. 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 Wris- 
berg in favor of its presence, and also of its being a sign of virginity. 
§ See on this point, Godman’s Anatomical Investigations, p. 72, <fcc.; Lawrence's 
Lectures on Physiology, London edition, p. 174. RAPE. 
113 
also observed it; and in particular in a female fifty years old. 
whom he was called to sound, he found it untouched; so also, 
in another, wdiom 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 pro- 
fession is certainly decidedly opposed to considering it as a 
non-natural appearance. The following circumstances, how- 
ever, require to be noted, before we form an opinion concern- 
ing it as a sign of virginity. It may be wanting from original 
mal-conformation, 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 confined menstrual fluid has produced its 
destruction. Again, in the place of the hymen, are sometimes 
found the carunculce myrliformes. Tolberg, according to Fo- 
dere, and also Belloc, have made this observation on dissec- 
tion. They were, however, round, and without a cicatrix, 
and in this respect very distinct from the organs usually so 
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 be- 
tween the organs, or connexion during the presence of men- 
struation, or fluor albus, are also mentioned by him. Gavard, 
wdiom I have already mentioned, found it perfect in a female 
thirteen years of age, who was labouring under the venereal.§ 
* 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. (Dcwees’ Midwifery, 3d edition, p. 48.) 
t 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, p. 734.) 
* Fodere, vol. 4, p. 343. Belloc, p. 45. 
>) 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, 114 
flAPE, 
In those cases where this membrane is found thickened, an 
operation lias 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 
happened to Ruysch, of a female during labour, in whom he 
had not only to divide the hymen, but also another non-natu- 
ral membrane placed farther back. Immediately after the 
operation, the child waa born.f Baudelocque, Mauriceau. 
Denman, and other writers on midwifery, adduce many in- 
stances illustrating the same fact.f 
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 
* Mahon, vol. 1, p. 118. 
t Fodere, vol. 4, p. 340. See also vol. 1, p. 339, 390, for similar and even more 
extraordinary cases. 
t Capuron states, that a few years ago, lie 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, lias 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, w ho 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 notw ithstanding 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, anil 
this too though the male organ was of ordinary dimension.” And again: “ I kryovv 
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. Pi-eg 
nancy. He quotes two cases, which deserve mention at least in this place. One is 
from Marc, (Art. Violation, in the Dietionnaire 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 diseased. 
She was cured; and to the astonishment of the medical observers, a well-formed se- 
milunar 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!! RAPE. 
115 
go as far as most of the later writers on legal medicine, who 
virtually reject it altogether. While it must be allowed that 
it can very often be destroyed by causes which do not impair 
the chastity of the female, we are justified, I think, in attach- 
ing considerable importance to its presence. It would be dif- 
ficult to support an accusation of rape, wrhere the hymen is 
found entire.* I feel therefore justified in retaining it among 
the signs of virginity, although it should alwrays be considered 
in connexion with other physical proofs.! 
2. Narrowness of the vagina. In children, this part is ex- 
tremely small; but it increases in size as they approach to the 
age of puberty. At that period, the development produced 
by the determination of blood to the sexual organs, causes a 
turgescence and enlargement, which naturally place the parts 
in closer contact. In chaste females, also, rugae are observed 
on the inner surface of the vagina; and these are removed by 
frequent connexions, and destroyed by one or two deliveries. 
It has been objected to this as a sign, that it varies according 
to the age of the individual, the temperament, and the state 
of health. Some of these deserve attention. In individuals 
of a sanguine temperament, the parts will be most contracted; 
while, on the other hand, if fluor albus, chlorosis or menor- 
rhagia be present, there will be great dilatation. 
* 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 membeane 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 pri- 
soner 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 accord- 
ing to the present statute law of that country, (see section 3 of this chapter,) 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 piece. Baron Gurney, who presided ob- 
served, “ I think, that if the hymen is not ruptured, there is not a sufficient penetra- 
tion 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 sufficient penetration to 
constitute this offence.” (5 Carrington and Payne’s Reports, 321. Rex v. Gammon.) 
t “ In examining for the hymen in cases of rape, or for purposes of professional 
opinion or treatment in many other cases, it will be necessary to separate the labia, 
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.” (Davis’s Obst. Med. p,99.) 116 
RAPE. 
3. I have already mentioned, that in the place of the hy- 
men, 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 asun- 
der.* They are generally considered as the remains of the 
hymen, “ et corruptee adeo pudicitice indicia.” They are then 
found thick, red, and obtuse 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 positive- 
ness, that the carunculas and the hymen may be co-existent. 
Of this opinion, are Dr. Hamilton of Edinburgh, Dr. Blun- 
dell and Dr. Conquest; all, as it would seem, from actual ob- 
servation.! 
In addition to the above, various signs have been enume- 
rated by authors. These 1 will barely state, and refer the in- 
quirer for more minute details to works on anatomy and mid- 
wifery. Pain during the first connexion, is deemed a proof; 
although the presence of menstruation or of disease may pre- 
vent this in many cases: so also blood from the rupture of the 
hymen.! The red and tumid appearance of the labia and 
nymph®, and the rupture of the fourchette, are each extreme- 
* Zacchias, vol. 1, p. 378, 
t Pvamsbotham’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 carunculse. 
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 respec- 
tive 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.” lie 
calls these last lateral caruncles. (Midwifery, p. 55.) 
1 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 199. RAPE. 
117 
ly 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 
unchastity of the female, yet their absence is a proof against 
her. If the labia and nymph® 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 unfavorable one. Capuron, a disbelie- 
ver 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 acrimonious, may have eroded it.* Both 
these suggestions are, however, equally improbable, and de- 
serve little attention in forming a general rule. 
Systematic writers have added to these, other signs, but 
they are generally equivocal. The bright red color of the 
nipples, the hardness of the breasts, and in fine, the general 
appearance of the female, all deserve attention, but can sel- 
dom be of any practical utility in determining on the point 
under examination. 
From the above statement, an opinion may be formed con- 
cerning 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 ano- 
ther. It cannot be possible that all those which we have men- 
tioned 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 suffi- 
ciently 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 climate and the ha- 
bit of body, they are found most perfect in females not far- 
* Capuron, p. 29. 118 
RAPE. 
ther 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 vio- 
lence, 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 ge- 
nerally found bloody, inflamed, and painful.f Marks of a 
rupture of the hymen, or a disunion of the carunculas, will 
also be present, together writh an extreme sensibility to the 
touch, a sensation of heat, and a difficulty in walking. In 
married women, or libidinous females, the detection is more 
difficult, and in truth, in a great degree impossible, and that 
wiiether they accuse or are accused. The reasons for this 
will readily suggest themselves. 
By the term rape, however, is understood not only deflora- 
tion, 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, wffio has as yet, in the legal sense of the term, 
no will. Here not only the signs of defloration already enu- 
merated will be present, but also others indicative of the em- 
ployment of force, such as contusions on various parts of the 
extremities and body. These, howover, are compatible with 
final consent on the part of the female. 
* 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 considered 
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 certain 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.) RAPE. 
119 
It also deserves attention, that disease has produced the ap- 
pearance of external injury, and led to suspicions against in- 
nocent persons. Dr. Percival relates a case of serious im- 
portance in medico-legal investigations. Jane Hampson, aged 
four, was admitted an out patient of the Manchester Infirma- 
ry, Feb. 11,1791. The female organs were highly inflamed, 
sore, and painful; 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 du- 
ring the night. Leeches and other external applications, to- 
gether 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 abdominal and thora- 
cic 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 ex- 
ternal violence; and a verdict of murder was accordingly re- 
turned 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 
patients 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 induced 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 con- 
vict; and that it would give rise to much indelicate discussion, 
if they proceeded to the trial; and that he hoped, therefore, 
they would acquit him, without calling witnesses. With this 
request the jury immediately complied. The disorder in these 120 
RAPE. 
cases, says Dr. Percival, had been a typhus fever, accompanied 
with a mortification of the pudenda.* 
A complaint resembling the above in many respects, has 
also been lately described by Mr. Kinder Wood. It is pre- 
ceded by all the ordinary symptoms of fever for about three 
days. The patients then call the attention of parents to the 
seat of the disease, 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, nymphas and 
hymen. Ulceration succeeds, 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.f 
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 
remarks, that “ there is an excessively deep-coloured inflam- 
mation, 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, 
* 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, 
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 Ca- 
puron 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 seventy of the symptoms, and in their duration, but have always ter- 
minated favourably.” DaRwall. 
t 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 Fo- 
reign Medicine, vol. 2, p.224; Lancet, N. S. vol. 1, p.874; American Journal of 
Medicine, 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 & 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 Dupuytren, Medico- 
Chirurgical Review, vol. 25, p. 524; North American Archives, vol. 1, p. 201. RAPE. 
121 
totally different from the character of any primary venereal 
sore.* 
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, 
ulceration and discharge, in cases where violence has been 
alleged, to this disease, without sufficient grounds; for it is 
extremely improbable that diseases which occur so rarely, should 
happen to appear in a child to whom violence was offered, unless 
that violence had some effect in producing it.”f The proper 
distinction to be made in these cases undoubtedly is, not to 
attribute laceration, tumefaction, and consequent inflammation 
to this disease. It resembles gonorrhoea, and the examination 
of the person suspected, if early made, will lead to a definitive 
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 se- 
veral circumstances which it is proper to notice. 
1. The age, strength, and state of mind of the respective par- 
ties. However we may doubt whether a rape can be com- 
mitted on a grown female, in good health and strength, (and 
this point I shall presently notice,) yet there can be no ques- 
tion 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 consequences of the act; and fear may 
induce her to consent to libidinous 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 vigorous, and the accuser 
infirm; and above all, should the female labour under im- 
* 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 be- 
half, and showed that it was disease, instead of the result of violence. (London Me- 
dical and Surgical Journal, vol. 4, p. 48.) 
f Edinburgh Medical and Surgical Journal, vol. 13, p. 491. 
1 Beatty in Cyclopedia of Practical Medicine, Art. Rape. 122 
RAPE. 
becility 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 
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 im- 
potency or defective organization, or has exhibited proofs of 
the destruction of parts by the venereal disease. In the fe- 
male, however, 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.! 
3. A speedy examination of the parts is all important in 
disputed cases. The body of the male should also be inspect- 
ed, whether there be scratches or bruises on it.j; 
I have intimated, that doubts exist whether a rape can be 
consummated on a grown female in good health and strength. 
It has been anxiously inquired, whether this violence, if pro- 
perly resisted, (and this is included in the very definition of 
rape,) can be completed? 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 
* 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 exe- 
cuted. (London Medical Gazette, vol. 8, p. 33.) 
f MS. Notes of Stringham’s Lectures. 
J “ 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 re- 
ceived 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.) RAPE. 
123 
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 connaissance physique que les me- 
decins ont de l’homme et de la femme, relativement a cet 
attrait imperieux qui porte invinciblement les deux sexes Tun 
vers l’autre, d’apres surtout l’impossibilit£ presqu’ entiere ou est 
un homme seul de forcer une femme a ses caresses, 
on doit rarement ajouter foi a l’existence du viol, je crois 
meme qu’il seroit prudent de ne l’admettre que lorsque plu- 
sieurs 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 possible. 
But the consummation of a rape, by which is meant a com- 
plete, full, and entire coition, which is made without any con- 
sent 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 in- 
sertion of the penis, whilst she can keep her resolution en- 
tire.”! “ Independamment de l’arme que la loi met dans 
la main de la femme pour repousser l’injure, elle a infini- 
ment plus des moyens pour se defendre que 1’homme n’en 
a pour attaquer, ne fut ce que le mouvement continuel.” 
And again, “ J’estim6 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.”§ Metzger only allows of 
three cases in which the crime can be consummated—where 
narcotics have been administered—where many are engaged 
* 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 execu- 
tion for transportation, only at the earnest solicitation of the female and her relations. 
(Alison, p.213.) 
t Mahon, vol. 1. p. 136. 
t Farr, p. 41 and 42. 
Srendelfus’ p°964’ P' 36°’ Capuron advances same opinion, p. 54; and 124 
RAPE. 
against the female—and where a strong man attacks one who 
is not arrived to the age ofpuberty*. 
Notwithstanding these united authorities, it may with jus- 
tice be supposed, that in addition to the cases allowed, fear or 
terror may operate on a helpless female—she may resist for 
a long time, and then faint from fatigue, or the dread of in- 
stant murder may lead to the abandonment of active resis- 
tance.f 
Cases in w'hich false accusations of rape have been made 
against individuals, are scattered through most of the works 
on medical I shall quote one, both from its 
having happened not long since, and also as it shows the course 
* 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 wo- 
man. “ Si circumstantias quoe in actu coeundi concurrunt, consideramus, non credi- 
bile, nec possibilevvidetur, quod unus masculus nubilem virginem (excipe impubero, 
teneram, delicatam,,aut simul ebriam puellam) absque ipsius consensu, permissione, 
atque voluntate vitiare, aut violento modo stuprare possit; dum fcemina cuilibet facr- 
lius est, si velit, penis immissionem recusare, vel multis aliis impedire, quam viro 
eidem invitee plane intrudent.” (Valentini Pandectee, vol. 1, p. 61.) 
t I am aw'are, that in the previous edition I spoke too strongly and exclusively, and 
[ fully recognize 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 wras 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, vras positive as to the time it had 
lasted—exactly ten minutes. How did you know it ? She had counted, How did 
you count 1 One, two, three, &c. Did you count sixty ten times over ? 1 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,) agrees in the main with the authors that I have quoted. 
He suggests, that in this struggle “ wdth 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 ef- 
fect that penetration wThich constitutes the criminal intent.” 
j See the case of one Stephen Nocetti, which was referred to Zacchias, and where 
there wras 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 
Devaux, 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.)—1 will only add a caution, not to mistake menstruation for the effects of deflo- 
ration. RAPE. 
125 
pursued in such instances in France. A female at Martigues, 
in 1808, accused eight or ten of the principal persons in the 
place, of having violated her grand-daughter, aged about nine 
years and an half, at an inn. She laid her complaint before 
the justice, (juge de paix;) but stated that she would with- 
draw it, provided the accused would accommodate the matter 
with her. She had procured a daughter of the innkeeper, aged 
sixteen, and an idiot, as a witness. As the charge was ob- 
stinately persisted in, Fodere, with two officers of health, was 
ordered to examine the child in the presence of the judge; 
and suspicion was immediately excited, from the delay used 
in admitting the visitors. On examining the parts, he found 
the hymen untouched, and the vagina 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 hall 
an hour, the circle had decreased in size, and the redness dis- 
appeared. 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 pre- 
fer 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 question 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 conclusive moral and circumstantial evi- 
* Foderg, 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 at- 
tention in the consideration of this point. 126 
RAPE. 
dence. 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 
particularly notice the condition of the sexual organs, both 
internal and external; and also ascertain whether no proofs 
are present, from which the exertion of violence may be pre- 
sumed, 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, nymphse 
and vagina generally, and also whether the fourchette is rup- 
tured. The fluid, (if any be present,) contained in the vagina, 
should be examined, whether sanguineous, mucous or puru- 
lent, and the presence or absence of tumefaction and extra- 
ordinary 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 ac- 
cused of first violating and then murdering her. It appears 
from his confession, 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 
return she changed them for black ones. The white ones 
* 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 conse- 
quence 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 imposter, 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 imposter, 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.) 
t Fodere, vol. 4, p. 372. RAPE. 
127 
were found bloody, in the bundle that she had made up be- 
fore 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 impres- 
sion.) 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 ports 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 
consequence 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 pre- 
sence 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 appears as if starched. When dry, they are inodo- 
rous; but as soon as they are moistened, the spermatic odour 
* 1 Barnewell and Alderson, p. 405, Ashford v. Thornton. 128 
RAPE* 
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 unnoticed. This property is important 
in distinguishing the discharge. And it is also found, if the 
linen be left for some time in distilled water, the above re- 
sult 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 be- 
ing 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 residue, 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 flocculent precipitate with alco- 
hol, 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 dis- 
solves 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.* 
* Orfila, Legons, 2d edition, vol. 2, p. 573, translated by Dr. Gross, in Western 
Medical Gazette, vol. 2, p. 244. Sedillot, p. 93. 
For cases examined under the direction of the public prosecutor in France by Che- 
vallier, see Annales D’Hygiene, v. 11, p. 210. Medico-Chir. Review, v. 24, p. 516- RAPE 
129 
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 particu- 
larly be kept in mind when noticing the laws concerning it. 
The nature of the crime, being an offence against the wreaker 
sex, and committed in secrecy. Being of so detestable a cha- 
racter, and so difficult to be proved, the law has wisely or- 
dained that the testimony of the injured person shall be suffi- 
cient, unless impeached,-to convict the criminal. • But again, 
and this is the second remark, false accusations are frequently 
made for the gratification of malice and revenge. The scrip- 
tures, and the records of courts in all countries, bear testimo- 
ny to this.* In this point of view, the medical jurist may of- 
ten aid the ends of justice in punishing the wicked, and ab- 
solving the innocent.f 
I have thought that a sketch of the laws of various coun- 
tries concerning this crime might prove interesting, and in 
some degree 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 re- 
specting the commission 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, 
* On the trial of Levi Weeks for the murder of Miss Sands, held at New-York, 
March, 1800, the counsel 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 by 
the verdict of a jury, so irritated and inflamed were the people, that the magistrates 
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 enor- 
mous sum given in damages, and the defendant was ignominiously confined within 
the walls of a prison. Now it has come out, that the accusation was certainly false 
nd malicious.”—Report of the Trial, &c. p. 67. 
t A man named Stewart, was tried at the Old Bailey in 1704, for ravishing two fe- 
male 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. 130 
RAPE. 
“ as by reason of her tender age, she is incapable of judg- 
ment 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 trespass, 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 Mat- 
thew' Hale, says Blackstone, is indeed of opinion, that such 
actions committed on an infant under the age of twelve years, 
the age of female discretion 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 a recent act, however, (9 George IV. chap. 31.) passed 
in 1828, it is ordained, that any one unlawfully and carnally 
knowing and abusing any female under the age of ten years, 
shall be guilty of felony and shall suffer death. If the same 
be committed on a female above ten and under twelve, the of- 
fence shall be deemed a misdemeanor and liable to imprison- 
ment. 
In Scotland, it is held that consent cannot be given below 
the age of twelve years.f 
The French code of 1810, ordains, that if the crime has 
been committed on a child under the age of fifteen years, the 
offender shall be condemned to hard labor for a limited time, 
(travaux forces a temps.)j; 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 Strasburg in 1827. An individual escaped from 
the punishment of rape for this reason. § 
* Blackstone’s Commentaries, vol. 4, p. 212. 
t Alison, Principles, p. 213. 
X Code Penal, Art. 332. 
§ Briand, 2nd Edit. p. 10. 131 
RAPE. 
In the state of New-York, the statute of the 18th of Eli- 
zabeth, appears to have been copied. By an act passed Feb. 
14, 1787, it was ordained, that if any person should unlaw- 
fully or carnally know a woman child under ten years of age, 
such unlawful or carnal knowledge should be adjudged a felo- 
ny, 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.f In Massachusetts alone, so far as I am 
able to ascertain, the punishment is death.J In Virginia, Con- 
necticut. New Hampshire, Maine, New Jersey, Illinois, Ohio, 
Michigan and Tennessee, the punishment is either imprison- 
ment 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 
imprisonment. || In Indiana, the age of the female is extended 
to twelve years, and the punishment is imprisonment for a 
term of years.1T In Missouri, a rape on a female under the 
age of ten years is punished by castration.** 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.ff 
A few remarks are here necessary as to the credibility of 
witnesses in these cases. “ If a rape,” says Blackstone, “ be 
committed on an infant under twelve years of age, she may 
still be a competent witness, if she hath sense and understand- 
* Jones and Varick's Edition of the Laws of New-York, vol. 2, p. 47. 
t Revised Statutes, vol. 2, p. 663. 
t 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. 
|| Laws of Vermont, 1825, p. 254. 
1i Revised Laws of Indiana, 1831, p. 136. 
** Revised Laws of Missouri, 1825, vol. 1, p. 283. 
ft Revised Laws of Delaware, 1829, p. 129. 132 
RAPE. 
ing to know the obligation of an oath, or even to be sensible 
of the wickedness of telling a deliberate lie. Nay, though she 
hath not, it is thought by Sir 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 evidence 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,” 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 cir- 
cumstances, in order to make out the fact; and that the con- 
viction should not be grounded singly on the unsupported 
accusation of an infant under years of discretion.”! 
* 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. 
t 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 convicted; 
but the judgment was respited, on a doubt whether evidence, under any circumstances 
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 examination by the 
court, to possess sufficient knowledge of the nature and consequences 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 en- 
tertain of the danger and impiety of falsehood, which is to be collected from their an- 
swers to questions propounded to them by the court; but if they are found incompe- 
tent, 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, w'here 
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 in- 
stance, both the prisoner and witness had the same disease. (State v. Le Blanc. 2 
South-Carolina Constitutional Reports, p.354.) RAPE. 
133 
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.”* 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.f 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 
node quidam duas rapuit, altera mortem optat, altera nuptias.”p 
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 she wrere 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 com- 
parative 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 
* 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 female 
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.) 
f Gibbon, vol. 2, p.252. Law of Constantine. 
) Medical Ethics, Note 17, p. 231. 
§ Fodere, vol. 4, p. 325. 
]| Europe during the Middle Ages, in Lardner’s Cyclopedia, vol. 1, p. 16. 134 
RAPE. 
this crime, in the codes of several of the original Germanic 
tribes. At least. “ the code of the Bavarians had none, ex- 
cept such as the ecclesiastical law directed, for the freeman 
who violated a female unmarried slave. The slave, however, 
who violated a free maiden, was surrendered to her parents, 
to do with him what they pleased, even to put him to death.”* 
Charlemagne punished with death, whoever violated the 
daughter of his master.f The Burgundian laws provided that 
if the young woman carried off, returned to her parents ac- 
tually 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, confessed 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 country fellow who had worked at 
the plough seven years. If the offender was not able to make 
such a present, virilia membra amittat. 
By the law of iEthelbert, 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 
¥ Europe during the Middle Ages, in Lardner's Cyclopedia, vol. 2, p. 137. 
t “ Si quis filiam domini suirapuerit, morte moriatur.” (See Memoirs of Literature, 
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.”) Ilallam also mentions, that under the feudal system, it was 
considered a breach of faith in the vassal, to violate the sanctity of his master’s rool. 
In the Establishments ot 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 the family ofhis suzerain, forfeited his land. (Hallara’s Middle 
Ages, vol. 1, p. 187, American edition.) RAPE. 
135 
were espoused, he shall compensate the husband by an addi- 
tional 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 sup- 
posed 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 Scandinavian constitutions. Besides this, the horse, 
greyhound and hawk of the offender were subjected to great 
corporal infamy. Instead of this, a new punishment wras in- 
flicted 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 Blackstone, that 
the woman should immediately after, u dum recens fuerit ma- 
lejicium,” go to the next town, and there make discovery to 
some credible persons of the injury she has suffered, and af- 
terwards should acquaint the high constable of the hundred, 
the coroners and the sheriff, of the outrage. This seems to 
correspond 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, passed in the 3d of Edward I. repealed 
the law of the Conqueror, and greatly mitigated the punish- 
* It is as follows: il Si qui3 coloni mancipium ad stuprum comminetur, 5 sol. Co- 
lon° emendet et 60 sol; mulct® loco. Si servus servam ad stuprum coegerit, com- 
penset hoc virga sua virili. Si quis puellam toners fetalis ad illicitum concubitum 
comminetur, eodem modo puniatur quo ille qui adult® serv® hoc facerit,” (Percival, 
p. 228 ) 136 
RAPE. 
ment. The offence of ravishing a woman against her will, 
was reduced to a trespass, if not prosecuted by appeal in forty 
days; and it subjected the offender only to two years’ impri- 
sonment, 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 punish- 
ment of death for rape; and the edict of Francis the First, 
preserved by Coquille, together with the ordinances of Or- 
leans and Blois, forbade the asking of pardon for this crime. 
Henry the Second of France, by an ordinance of 1557, con- 
demned 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.! 
The above gleanings will elucidate, in some degree, the 
laws of former times concerning this crime. I now proceed 
to mention those which are, or lately have been, in force. 
The following maxims, says Foder£, (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 inequality 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 
* Blackstone, vol. 4, p. 210, 211. Percival, p. 100; and Note 17, p.228. Chitty’s 
Criminal Law, vol. 2, p. 813. 
t Foderg, 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. Re- 
view 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. 
137 
years confinement in irons; but if the rape be committed on a 
child under fourteen years, or if the criminal had effected the 
crime by violence, or by the aid of accomplices, the punish- 
ment should be twelve years’ confinement in irons. The law 
of 2d Prarial L’an 4, (1796) prescribed the same punishment 
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. Pene- 
tration, but there is no distinct reference made to emission. 
2. Actual force in the consummation, but it is held to be for- 
cible 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, lame 
lass, sixteen years old, laying bedridden 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 pre- 
judice a jury against the prosecutor.! 
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 impri- 
sonment, confiscation 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 be- 
nefit of clergy. It is a necessary ingredient in the English 
* Fodere, vol. 4, p. 328-329; Code Penal, art. 331-333. 
f 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. 138 
RAPE, 
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 sup- 
pose a prostitute capable of 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 com- 
plaint is fixed, but the jury will rarely give credit to a stale 
accusation. In addition to these, we may add, that the com- 
mon law considers a male infant, under the age of fourteen, 
as incapable of committing a rape, and therefore cannot be 
found guilty of it. For though, (says Blackstone) in some 
felonies, malitia supplet cetatem, yet as to this particular spe- 
cies, the law supposes an imbecility of body as well as mind.* 
In the state of New-York, death was formerly the pun- 
ishment 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 after- 
wards consented to her ravisher, her husband, father, or next 
of kin, might sue by appeal against such offender.! These 
laws, however, have been repealed, the punishment altered, 
and appeals of felony abolished. The acts now in force, pre- 
scribe the punishment 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 
* 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 incapable,- 
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 committing 
rape, was established in favorem vitcc, and ought not to be applied by analogy 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 im- 
punity from felonious assaults, as well as from the felony itself.” Commonwealth v. 
Green, 2 Pickering’s Massachusetts Reports, p. 380. 
t Jones and Varick’s edition of the Laws, vol. 2, p. 57 RAPE. 
139 
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 pro- 
duce such stupor, or such imbecility of mind or weakness of 
body, as to prevent effectual resistance, shall, upon conviction, 
be punished 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- 
Hampshire, New-Jersey, Vermont, Pennsylvania, Virginia 
and Michigan, imprisonment for a term of years, or for life, 
is directed. In some few cases, fine or imprisonment, or both.:}; 
In Louisiana, imprisonment and hard labour for life, is the 
punishment.§ In the state of Missouri, and also in the terri- 
tory of Arkansaw, the punishment prescribed is castration. j| 
The attempt to commit this crime, or its actual completion, 
by a negro or mulatto, is made a subject of special legislation 
in several states. Thus in Tennessee, Alabama and Louisiana, 
even the attempt on a white woman, is made a capital of- 
ence.H 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 
* Revised Statutes, vol. 2, p. 663-666- 
t Laws 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. 
t 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 Legislaturejde la Louisiana, 1828, vol. 1, p. 441. 
|| Revised Laws of Missouri, p. 125, vol 1, p. 31. Nuttal’s Journey to the Arkan- 
saw, p. 224. 
11 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, w ith 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. 140 
RAPE. 
emission, in order to constitute it; and in Indiana and Ten* 
nessee, 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 discus- 
sion, as to what constitutes this carnal knowledge. Some 
judges have supposed 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. The following abstract, taken from 
Chitty’s Treatise on the Criminal Law, will give an idea of 
the fluctuating state of jurisprudence on this subject. “ Lord 
Coke, in his reports, supposes both circumstances must con- 
cur, 12 Cok. 37, though he does not express himself so clear- 
ly in his institutes. Hawkins, without citing any authority, 
or hinting a doubt, declares the same opinion. Hale, how- 
ever, differs from both, and considers the case in Coke’s Re- 
ports 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 Pe- 
tersdorff, 116,) on the other hand, the prisoner was found 
guilty under 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 wTere 
necessary, though Buller, Loughborough and Heath main- 
tained a contrary opinion. This then,” he adds, “ seems 
to be the stronger opinion, and at the present day, if no emis- 
sion took place, it would be more safe to indict for an attempt 
to commit, by which means a severe punishment might be 
inflicted.”* 
* Chitty’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, seems 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- RAPE. 
141 
Although the definition of the crime seems thus to be set- 
tled, yet if we proceed to notice the mode in which the emis- 
sion is to be proved, we shall find some discordance. East 
observes, that penetration is prima facie evidence of it, unless 
the contrary appears 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 defendant to be ac- 
quitted 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 hav- 
ing been committed on her.”* Chitty observes, “ It is cer- 
tain that no direct evidence need be given to the emission; 
but that will be presumed on proof of penetration, until re- 
butted by the prisoner. And it will suffice to prove the least 
degree of penetration, so that it is not necessary that the 
marks of virginity should be taken from the sufferer.”! So 
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 w ife 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 that 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 satisfact 
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.) 
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. 76,) on which the latter 142 
RAPE. 
also Baron Richards, in the case cited below, although he 
deemed emission essential, and the woman was not sensible 
of it, yet he 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 actu- 
ally consummated.* 
If there be any truth in the views already intimated con- 
cerning the possibility of committing this crime, and the cases 
in which it may be completed, certainly the necessity of es- 
tablishing the fact of emission must prove an insuperable bar- 
rier to any conviction. We may divide females, with reference 
to this subject, into two classes—the young,' unmarried per- 
sons; and the married, or those accustomed to sexual inter- 
course. As to the first, it may be considered very improbable 
that they could be conscious of this, while labouring under 
the influence of terror, severe pain, faintness, or insensibility. 
And to this class also belong 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 re- 
quiring 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 poig- 
nancy 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 proportionate, the crime can scarcely 
be completed without violent personal injury to the female. 
The exhaustion that must be present, superadded to mental 
agitation, leave us some reason to doubt whether this enjoy- 
ment can be realized. And it also deserves consideration, 
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 ctime, 
than the consummation of it. 
* Edinburgh Medical and Surgical Journal, vol. 12, p, 208. 
t Ibid. vol. 12, p. 209, RAPE. 
143 
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 sensible 
of it.* 
The diversity of opinion that I have noticed, has extended 
to our own country. In a case tried some years since at the 
Albany Circuit, in this state, by the late Justice Platt, he de- 
clared 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 in- 
clined to the opinion, that the crime is sufficiently proved, 
when penetration is proved. It is not to be expected that the 
woman especially agitated 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.^ 
The difficulties attending such conflicting decisions in Eng- 
land, 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 constitute carnal knowledge, but this shall be deemed 
proved, upon testimony of penetration only.§ This law was 
* “ 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 in- 
vestigation came to be supposed necessary, the books which record the dicta to that effect 
do not furnish a trace. (East, 2, p. 436, 437.) 
t Commonwealth v. Sullivan, Addison’s Pennsylvania Reports, p. 143. 
X 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. 
§ 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. 144 
RAPE. 
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 Au- 
gust, 1831, on a trial before Justice Taunton, the female 
proved penetration, and also that she felt warmly in her pri- 
vate parts, but could not prove emission. The counsel for 
the prosecution submitted that this was a case exactly coming 
within the late law. The Judge, however, said that all that 
constitutes carnal knowledge should have happened. The ju- 
ry 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 4th, 
inoperative. Even before its enactment, it was unnecessary to 
give direct evidence of emission. It was enough if the cir- 
cumstances 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 
overruled. In Rex v. Cox, at the Worcester Assixes, in 1832, 
before Justice Littledale, the Jury found that there had been 
penetration, but no emission from the prisoner, and the Judge 
after passing sentence on the prisoner, reserved the case for 
the consideration of the fifteen Judges. They held the con- 
viction to be right.f 
In Scotland, after much diversity of opinion, the point now 
considered 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 injured party is below the age of puberty, it is 
enough if her body has been entered, though not to the de- 
gree which takes place with a full grown woman.}: 
* 2 Moody and Malkin, p. 122; Rex v. Russel. 
t 5 Carrington and Payne, p. 297; American Jurist, vol. 11, p. 459; Chitty’s Med. 
Jurisp. part 1, p. 379. 
t Alison's Principles of the Criminal Law of Scotland, p. 210. RAPE. 
145 
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 sus- 
tain an indictment for rape, or for the crime against nature.”* 
IV. Of some Medico-Legal questions connected with this 
subject. 
Three questions relating to the subject before us, have at 
various times been discussed, and they all deserve a brief no- 
tice. 
1. Whether the presence of the venereal disease in the female 
violated, is a proof in favor or against her accusation ? If on 
examination, the marks of this disease be found recent, it 
will be proper to consider them as corroborating circum- 
stances. It is necessary, however, to remark, that the symp- 
toms of venereal infection do not commonly make their ap- 
pearance until three days after receiving it, while the exami- 
nation should be made within that time. Should the appear- 
ances indicate any thing like a disease of long standing, they 
must of course tend to weaken the complaint of the female. 
The following are cases which will illustrate these observa- 
tions. On the 11th of Dec. 1811, Fodere was directed by 
the imperial attorney of the court of Trevoux, to visit a fe- 
male aged from eleven to twelve years, who accused a man 
aged fifty, and of large stature, of having committed a rape 
on her. The crime' she stated was consummated on the 26th 
of Nov. preceding. 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 urinari- 
us discharged an acrid gonorrhoeal fluid, the hymen was rup- 
tured, and the entrance of the vagina enlarged, but the four- 
chette was not ruptured, nor were there any signs of great 
violence, or such as might be expected from the disproportion 
between the individuals. Foder6 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; 
* Revised Statutes, vol. 2, p. 735. 146 
RAPE. 
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 acquitted.* 
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 
arrived 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 color, but particu- 
“ larly so at the point of the fraenulum.” The vagina was 
dilated, so as to admit a finger with perfect facility; and final- 
ly, they observed a copious discharge of purulent and sangui- 
nolent matters. The medical witnesses gave it, as their opi- 
nion, 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 gonorrhoea. 
The girl swore that the discharge commenced immediately 
after the rape. It did not yield to the ordinary antiphlogistic 
treatment, and two subsequent examinations by the same phy- 
sicians 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 Sa- 
pienza College, and the argument resolved itself into two 
points,—first, to endeavor to set aside the charge of rape; 
and second, to demonstrate the pre-existence of leucorrhcea in 
the female. 
On the first, the usual objections were urged as to the un- 
certainty of the proof to be derived from the absence of the 
signs of virginity, and it was argued, that a rape thus com- 
mitted on a female under the age of puberty, should have left 
more marked and severe traces. 
* Fodere, vol. 4, p. 365-366, RAPE. 
147 
His observations on the second were more conclusive. 
Condemning the insufficiency of the examinations, he asserts 
that the actual nature of the affection might have been ascer- 
tained 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 careful- 
ly, and inspected, no mistake could occur. Again, he urged 
that gonorrhoea has its regular periods of high inflammation 
and decline ; whereas leucorrhoea is often chronic, and in- 
creases and diminishes at indeterminate times. The occur- 
rence 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 phy- 
sicians, conclude this work of Prof. Metaxa; such as their 
speaking of most acute inflammation, and yet no pain appear- 
ing to have been present; the vagina was much inflamed, and 
yet it could be examined with perfect facility. No haemor- 
rhage, nor inability to move, appears to have followed the 
crime: Further, no mention was made of the presence of the 
caruncul® myrtiformes, 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 profes- 
sors and physicians at Rome, who approved and signed his 
publication, gave an opinion in favour of the convicted cri- 
minal. It led to a reversal of his sentence. 
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 previously relaxed by leucorrhceal disease, but appear- 
ances corresponding to what was observed. Such indeed was 
probably the truth of the case, and the Illustrissimo Signor 148 
RAPE. 
Crespi escaped from a sufficient 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 discoloured, 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 venereal 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 ex- 
planation, that by using proper remedies, the, njost skilful 
physician migl\t 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.* 
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 possible that this may occur; and it ought then to be con- 
sidered, 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 exhihi- 
* I have obtained all my knowledge of this case from a review of “ Dissertazione 
medico-forensse riguardante la causa della Illmo. Sig. Achille Crespi, accusato di stupro 
immaturo. Autore Luigi Metaxa, pubblica professore, &c. Roma, 1824”—in Chap- 
man’s Journal, vol. 9, p. 427. 
* Wheeler’s Criminal Cases, vol. 1, p. 74. RAPE. 
149 
tion 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, 1 
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 accustomed to 
sexual intercourse, it has been supposed practicable; but if we 
do agree to that opinion, the circumstances certainly 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 degree, 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 enjoy- 
ment that is insisted on. I should, therefore, consider that 
pregnancy was not incompatible with the idea of rape, under 
the limitations already laid down. Several writers on this 
subject are, however, of a different opinion, and particularly 
Dr. Bartley, who goes so far as to recommend that pregnancy 
shall be considered a proof of acquiescence; and that in order 
* The Faculty of Leipsic decided, I! dormientem in sella virginem insciam deflorari 
posse.” (Valentini Novelise, p. 30, 31.) In his Introduction, (p. 2,) our author sneers 
at the ridiculous decision in this case: “ Non omnes dormiunt, qui clausos et conni- 
ventes habent oculos.” • 
t See 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. 150 
RAPE. 
to ascertain this, the punishment of the criminal be delayed 
till the requisite time.* 
The law is in accordance with the opinion advanced above. 
Foder6 mentions that there is a decree of the parliament of 
Toulouse, which decides in the affirmative, and that on the 
opinion of physicians who reported, “ Posse quidem voluntatem 
cogi, sed non naturam, quce semel irritata pensi voluntate fer- 
vescit, rationis, et voluntatis sensus amittens.”f The English 
law anciently appears to have considered pregnancy as de- 
stroying the validity of the accusation. Dalton quotes Stam- 
ford, Britton and Finch, in favour of this opinion; but later 
writers, and in particular Hawkins and Hale, question its cor- 
rectness, and deny its being law.| “ It was formerly sup- 
posed,” says East, “that if a woman conceived, it was no 
rape, because that showed her consent; but it is now admitted 
on all hands, that such an opinion has no sort of foundation 
either in reason or law.Ӥ 
A few words are necessary on the crime against nature, and 
they may be properly introduced here.|| It may be required 
* 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 intimates 
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 wrho 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 Medicine, 
vol. 4, p. 100. 
t Fodere, vol. 4, p. 360. 
X Bum’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 infrjfctueux, (says Metzger, p. 486,) c’est, a mon 
avis, la precipitation de l’homme, bien plutotque 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 a la pudeur est celui pour leque* RAPE. 
151 
to examine the individual on whom it has been committed. 
If without consent, inflammation, excoriation, heat and contu- 
sion will probably be present. The effects of a frequent re- 
petition of the crime, are a dilatation of the sphincters, ulcera- 
tions 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 favor 
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. 
l’influence des saisons est le plus gvidente. Sur 100 crimes de cet espece, on en 
compte en gte, 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.) 
* Zacchias, vol. 1, p. 382. Fodere, vol. 4. p. 374. Mahon, vol. 1, p. 138. CHAPTER VI. 
PREGNANCY. 
i. 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 ascertaining 
it in medico-legal cases. Notice of the principal signs: Enlargement of the abdo- 
men— diseases that may produce this: Appearance of the areola: Suppression of 
the menses — circumstances that may mislead with this: Nausea, &c.: Motion of 
the foetus: Quickening—explanation of this—variety as to its occurrence: Auscul- 
tation—directions for its application. Impropriety of relying on any single proof of 
pregnancy— extra-uterine pregnancy—pregnancy Complicated with dropsy. Con- 
cealed pregnancy— pretended pregnancy: Circumstances to be noticed — the age, 
and state of the menstrual function. Diseases that may be mistaken for pregnancy 
—moles—hydatids—physometra, &c. 3. Superf<etation. Cases that have been 
deemed instances of it: A blighted and a perfect foetus—different coloured children 
—children born at considerable intervals. Explanation of these cases by the oppo- 
nents of the doctrine. Double uteri. Application of superfoetation in legal medi- 
cine. 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 impor- 
tance 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 
doctrine 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 — PREGNANCY. 
153 
“quod prcegnantis mulieris damnatce poena differatur quoad 
pariat.” 
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 sus- 
pected to feign herself with child, in order to produce a sup- 
posititious heir to the estate. In this instance, the heir pre- 
sumptive 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 moment to the daughters, since if a son should be born, 
all the five sisters would thereby lose the inheritance descend- 
ed to them. Percival Willoughby prayed for a writ de ventre 
inspiciendo, to have the widow examined; and the sheriff of Lon- 
don w*as accordingly 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 paritura. “ Whereupon another writ 
issued out of the common pleas, commanding the sheriff safe- 
ly 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 delivered, 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 accord- 154 
PREGNANCY. 
ingly he had caused her to be kept, See., and that such a day 
she was delivered of a daughter.* 
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 
judgment, yet it is to respite the execution till she be deliver- 
ed. “ In case this plea be made in stay of execution, the 
judge must direct a jury of twelve matrons, or discreet wo- 
men, 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,) execution 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.”f 
“ Here (says Dr. Paris) the law of the land is at variance 
with what we conceive the law of nature, and it is at vari- 
ance with itself; for it is a strange anomaly, that by the law 
of real property, an infant in ventre sa mere, may take an es- 
tate from the moment of its conception, and yet be hanged 
four months after for the crime of its mother.”:}: In the strik- 
ing language of Dr. Kennedy, “ the maxim of British law is, 
that a child in the fifteenth 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 un- 
merited fate.” Nor is the evil confined to this. The manner 
of administering the law, is equally repugnant to the dictates 
of humanity and justice. “ A jury of twelve matrons or dis- 
creet 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, condemn- 
ed for forgery at the Old Bailey, in 1804, as a last resource, 
pled pregnancy. She contrived so to baffle the skill of the 
female examiners, that they could not come to any decision. 
* Croke’s Elizabeth, p. 5G6. 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, Cox’s Chancery Cases, vol. 1, p. 297. 
t Blackstone, vol. 4, p. 394, 395. 
£ Paris and Fonblanque, vol. 3, p. 141. PREGNANCY. 
155 
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 un- 
married, 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 execu- 
tion, when three of the principal surgeons in the place, fear- 
ing that there might be a mistake, waited on the convict, ex- 
amined 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 he quick with child 
or not.\ 
* 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 quotation 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. 156 
PREGNANCY. 
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 allow- 
ed to contract 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 par- 
ties, 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 de- 
clares, that if a female, condemned to die, states that she is 
pregnant, and if it be proved that she is so, she shall not suf- 
fer punishment until after her delivery. Several other laws 
are mentioned, which, by implication, may be referred to this 
subject, but it is not necessary to state them. The above are 
the important ones now in force in France.* 1 may, how- 
ever, add, that the law last quoted, was in existence and has 
been acted upon since the year 1670, in that country.! 
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 execution, 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 execu- 
tion, or commute it, 'by ‘imprisonment for life in the state 
prison.”! 
* 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 ca- 
pital 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 exa- 
mination had always been made. (Ibid. p. 428 to 431.) This is probably abolish- 
ed, as no mention is made of it in the code now in force. 
f I take the following from a newspaper: “ The supreme court of Massachusetts, 
at its law session in Boston, in March. 1834, decided, that a grand-child born eight 
months and a half after the death of his grjnd-father, is included in a bequest to grand- 
children 1 living at his decease” 
1 Revised Statutes, vol. 2, p. 658. PREGNANCY. 
157 
II. Of the signs of real pregnancy, and of concealed and 
pretended pregnancy. 
In the ordinary practice of medicine, but little difficulty 
ever occurs in ascertaining the presence of pregnancy. The 
female, 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 mar- 
ried ones under certain circumstances, to avoid disgrace, and 
to enable them to destroy their offspring in its mature or im- 
mature 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 punish- 
ment. 
Neither of these can be properly investigated, without re- 
curring to the signs of real pregnancy, and this remark de- 
serves particular notice, since, with all the light that modern 
science affords, serious errors have, notwithstanding, been 
committed. The female has an interest, and a wish to de- 
ceive 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 
pregnancy, 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 in- 
creased salivary discharge, feverish heat, with emaciation and 
costiveness, occasionally depravity of appetite, a congestion 
in the head, which gives rise to spots on the face, to headache, 
* 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 Wo- 
men, chap. 3, and Midwifery.) Dr. Davis, (Obstet.Medicine.) Dr. Blundell, (Lec- 
tures.) Dr. Denman. Dr. Dewees. Mr. Ashwell. Dr. Ryan. Mr. Hogben. Profes- 
sor Capuron. Dr. Montgomery, (Cyclopedia of Practical Medicine, art. Pregnancy.) 158 
PREGNANCY. 
and erratic pains in the face and teeth. The pressure of in- 
creasing pregnancy, occasions protrusion of the umbilicus, 
and sometimes varicose tumours, or anasarcous swellings of 
the lower extremities. The breasts also enlarge, an areola, 
or brown circle, is observed around the nipples, and a secre- 
tion 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. 
The changes that affect the uterus, are—-a suppression of 
the menses. These cease returning at their accustomed pe- 
riod.—An augmentation in the size of the womb. This is not 
perceptible until between the eighth and tenth weeks. At that 
time, the fcetus, 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 in- 
termediate 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 be- 
tween the third and fourth months. The enlargement con- 
tinues—it becomes visible, and at the seventh month, the ute- 
rus is as high as the umbilicus; at the eighth, it is half way 
between the umbilicus and scrobiculus cordis, and at the ninth, 
it has reached the latter—its highest elevation. A short time 
before delivery, it somewhat subsides.! 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 quickening. 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. 
* “ In pregnancy, the uterus does not rise out of the pelvis, before the third month." 
(Gooch, Diseases of Women, p. 209.) 
t “ 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.) PREGNANCY. 
159 
These, as now stated, are the signs of pregnancy usually 
enumerated. 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 diseases; others may be altogether wanting in a 
state of true pregnancy. It will, therefore, be proper to ex- 
amine the more important 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 de- 
pravity in manners, and particularly for the concealment of 
pregnancy.* Another circumstance that may lead to error, 
is the variety that exists with respect to corpulence or pecu- 
liarity of form. This, in some instances, conduces to render 
the question doubtful; so much, indeed, as in some cases to 
exhibit hardly any tumour. Waiving these, however, 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 delivery; and by the fifth month, it can scarcely 
pass unnoticed, particularly if the female be standing. Re- 
collect also, that the uterus lays in front of the abdominal 
cavity, and occupies the lower and middle parts. It grows 
from below upwards, and remains for a long time flattened at 
its sides, and a little puffy beneath the ribs, while in front, it 
is hard and prominent.! 
* 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- 160 
PREGNANCY* 
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. 
In retention of the menses, and particularly if accompanied 
with imperforate hymen, the abdominal enlargement is re- 
markably similar to that of natural gravidity. It occupies 
the anterior part of the abdomen, and presents the same cha- 
racter as to resistance and hardness, as is given by the preg- 
nant uterus. It also gradually ascends, and is accompanied 
by no distinct fluctuation, as in ascitic dropsy. Pain and vo- 
miting 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 ap- 
pear 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.! 
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 characterized by its pe- 
culiar characteristic and local symptoms. The swelling ap- 
pears general over the abdomen, and is not confined to the 
space over the pubis. “ It is soft to the touch, wanting the 
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 
r-.” (Gooch’s Midwifery, p. 103.) The uncertainty mentioned above, will be 
understood, by citing a case that occurred to Dr. Montgomery, of imperforated 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. 
* Davis’ Obstetric Medicine, p. 106. He gives a long list of references to cases of 
imperforate hymen. 
t 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 menstrua- 
ted 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 im- 
provement, and the disease ended with a sudden gush of fluid blood from the vagina. PREGNANCY. 
161 
solid and consistent feel observed in pregnancy, and diseased 
uterine, and sometimes ovarian structures.” There are also 
marked indications of disease in various organs, which serve 
to establish the nature of the complaint. 
Frequent mistakes have, however, been made, and these 
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, with 
an immense abdominal swelling, giving a distinct sense of 
fluctuation. I requested the physician accoucheur, whom I 
met, to examine if the lady was not with child; he said, he 
thought it was unnecessary, as the fluctuation was very dis- 
tinct; 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 aggra- 
vated in this disease, while the slighter affections of preg- 
nancy 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 character from that of the gravid uterus. 
But it may be, that there is an enlarged ovary with pregnan- 
cy 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, leav- 
ing 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 neces- 
sary, 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. 
f Gooch, Diseases of Women, p. 239. 162 
PREGNANCY. 
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 
.indications of disease. 
But even if we have settled that neither of the above dis- 
eases is present, and that there is an actual tumour of the ute- 
rus, it is not certain that it is caused by a foetus: It may arise 
from a mole—from hydatids in the uterus, apd 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 pregnancy.f 
2. A change in the state of the breasts, has by many been 
considered as a sign. They are said to grow larger and more 
firm, while the areolae round the nipples become of a brown 
color; 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 be- 
tween the breasts and uterus, through the anastomosis be- 
* 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 wras considered 
ovarian dropsy, and which enlarged the abdomen to the size of six months’ pregnancy, 
nome 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 tumour formed an 
adhesion with the upper part of the vagina, there took place suddenly a discharge of 
gelatinous fluid from that cavity, and the abdomen completely subsided in the course 
of a day, and the previously entertained suspicion appeared to be confirmed beyond 
a doubt; but on examination, the woman had not about her one of the signs of de- 
livery; yet, had not the case been at once investigated, loss of reputation at the least 
would have inevitably, though most undeservedly, followed.” (Cyclopedia of Prac- 
tical Medicine, vol. 3, p. 503, Art. Pregnancy.) A similar case is given in Medico- 
Chirurgical Review, vol. 24, p. 206. 
f 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 the 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 
hand over 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. PREGNANCY. 
163 
tween the epigastric and internal mammary arteries. Milk 
also is secreted. 
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 ces- 
sation of the menses.* Occasionally they do not enlarge until 
after delivery. The most unequivocal state is where, during 
a first pregnancy, they become full and tender, and have an 
appearance approaching to inflammation; and particularly if, 
previous to connexion, they have been small. We must not 
mistake their enlargement 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 
remains 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 
colour produced, together with fulness and pricking pains in 
the breast. Notwithstanding these exceptions, he advances 
the opinion that this appearance rarely depends on other 
causes; and when it exists, deems it a sign either of present 
or previous pregnancy. He informs us, also, that Dr. Hun- 
ter 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 contradic- 
tion; 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; 
* John Pearson. (Medico-Chirurgical Review, vol, 4, p. 838.) Denman, p. 227, 164 
PREGNANCY. 
and he also remarks, that sometimes it is not present. Ash-' 
well mentions three instances, in which there was no preg- 
nancy. 
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 dia- 
meter, 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, how- 
ever, great importance to the appearance of the areola as a 
result of pregnancy; and I shall therefore mention the circum- 
stances 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 brownish hue. During the next two months it is usually 
perfected, and varies in intensity with the peculiar complexion 
of the individual — generally much darker in persons 
with dark hair, dark eyes and sallow skin, than in those of PREGNANCY. 
165 
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 re- 
cent 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 prominent; and the part of the areola more immediately 
around its base, has its surface rendered unequal by the pro- 
minence 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 woman’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. 
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 distinguished in this respect from the surrounding 
skin, yet all the other changes just mentioned were well de- 
veloped. Again, it must be recollected, that in persons who 
have recently miscarried, 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 pregnancy. 
I apprehend that the authorities which I have given on this 
sign, will incline the reader to attach considerable importance 
to its presence.* 
* Gooch’s Diseases of Women, p. 201, &c, and Midwifery, p. 100. Dewees’s 
Midwifery. Ashwell, p. 171. Lawrence’s Lectures, p. 449. Blundell’s Lectures. 
Lancet, N. S. vol. 3, p. 325. 
“ The areola encircling the nipple, (which, in young women who have not borne 
a child, is of a rosy tinge,) assumes a brown cast, and becomes broader : This change 
may also occur w’hen the breasts are enlarged from other causes than pregnancy» 166 
PREGNANCY. 
The secretion of a milky fluid may occur without the pre- 
sence of pregnancy. Hebenstreit states that he has known 
females in whom this fluid was produced by repeated friction, 
suction, &c.* 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, 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.f An account is also given in a 
manuscript in the collection of Sir Hans Sloane, of a woman 
at the age of sixty-eight, who had not borne a child for more 
than twenty years, nursing her grandchildren one after an- 
other.J Similar cases are mentioned by Foder£; and in par- 
ticular, he relates an instance of a female, who, on the point 
of being conducted to prison, declared herself a nurse. Al- 
though this was a falsehood, yet in a few moments she pro- 
duced the requisite proof. The author also suggests, that 
immediately after the cessation of the menses, milk is often 
secreted. § 
The seat of the areola being in the rete mucosum, it will sometimes during pregnancy 
become dark. When the child is weaned, the areola gradually disappears.'’ (Hog- 
ben’s Obstetrical Studies.) 
It would appear from a remark of Dr. Ryan, that Dr. Hamilton deems it an infallible 
sign, especially during a first pregnancy. Dr. Stringliam was of a similar opinion. 
* Hebenstreit, p. 185. 
t Belloc, p. 70. Dr. Dewces witnessed its secretion in a female who had never 
been pregnant; Baudelocque, in a girl eight years old in the village of Alenqon, who 
was presented to the Royal Academy of Surgery, Oct. 1783. (Midwifery, v. 1, p. 219.) 
j: Smith, p. 4C4. 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. Farquliar 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 Mfidicales.) — 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. 1, 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 nowr 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.) 
§ 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.” , PREGNANCY. 
167 
3. The suppression of the menses. This may take place, as 
already stated, from disease, without the presence of preg- 
nancy; and again, it is asserted that the menses have continued 
in certain cases during pregnancy. 
It is important to understand the diversity of opinion that 
exists on this last point. Dr. Heberden knew a female who 
never ceased to have regular returns of the menses during 
four pregnancies, quite to the time of her delivery.* Deven- 
ter mentions of one who became pregnant before menstruating, 
and immediately after conception, this discharge returned pe- 
riodically until her delivery; and this was the case during 
several successive pregnancies — inverting, as it were, the 
usual order of nature.! Dr* Hosack had a patient, who, 
during her last three pregnancies, menstruated until within a 
few weeks of her delivery, and, notwithstanding, brought forth 
a healthy child at each labour.! Additional authorities are 
given below. 
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 au- 
thenticated 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.” 
Blumenbach gives a very rational explanation of this occurrence. The connexion 
between the uterus and breasts seems to depend on the anastomosis between the epi- 
gastric 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. 
1 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 Medicine, Art. 
Pregnancy; Dr. Kennedy, p. 12, (who also quotes a case from Mauriceau.) Cases 
are related by Mr. Mayo, (in Middlesex Hospital,) London Medical and Surgical Jour- 
nal, vol. 4, p. 179. Instances similar to those of Deventer are mentioned by Dr. 
Dewees, and by Stein, a German accoucheur. (American Medical Review, vol. 1, 
p. 411.) 
Dr. Maunsell of Dublin, in his report of the obstetric practice at the Wellesley Fe- 
male Institution during 1832, remarks thus: “ Three cases were noted, in which a 168 
PREGNANCY. 
On the other hand, it is denied that this occurs. Dr. Den- 
man deems suppression to be a never-failing consequence of 
conception. 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 
hasmorrhage and premature discharge of the ovum. He is 
willing to allow (and this is the prevalent doctrine on his side) 
that cases of periodic discharge of blood occur, but not men- 
struous: 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 men- 
struation or periodical haemorrhage, from the above cause, or 
from partial separation of the ovum, the female cannot discri- 
minate; and I may add, the examiner will often be in extreme 
doubt. 
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 woman 
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.) 
* 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 men- 
struation during pregnancy. In several cases that came under his own observation, 
although the discharge had considerable periodical regularity, yet he always found it 
to consist of pure coagulable blood. (P. 139.) 
Dr. Hamilton of Edinburgh, according to Dr. Ryan, is of a similar opinion : So 
also are Hogben, Ashwell and Ramsbotham. The latter, however, mentions in his 
lectures, that he has a patient who always menstruates once after having conceived, 
to her proper time, though very sparingly. (London Med. Gazette, vol. 13, p. 268.) 
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 impregna- 
tion was suspected, yet the case was found to be one of tubular pregnancy, and hae- 
morrhage from the placenta had been the cause of death. PREGNANCY. 
169 
Menstrual blood does not coagulate. I feel justified in as- 
serting this on the authority of Burns, Denman, Gooch, Charles 
Mansfield Clarke, Dewees, and a host of others; although I 
am aware that it is doubted and opposed by some.* Attention 
must, of course, be paid to this circumstance. It will be re- 
collected that it was noticed in the case of Mary Ashford. 
Dr. Lavagna of Milan ascertained that the menstrual se- 
cretion differed principally from blood, in containing little or 
no fibrine.f It is evident, however, on many accounts, that 
chemical tests are scarcely applicable in the present case. 
Not unfrequently 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 menstrua- 
tion 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 exhibited the characteristic appearance so 
perfectly, that he charged her with the fact. She was so 
completely taken by surprise, as to confess it.§ 
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 de- 
serving of great attention: “When a female experiences the 
suppression, along with other symptoms of pregnancy, we 
may consider her situation as yet uncertain, because these 
signs are common to amenorrhcea and pregnancy; but if, to- 
wards the third month, while the suppression continues, she 
recovers her health, and if her appetite and colour return, we 
need no better proof of pregnancy. Under other circum- 
* Mr. Clarke exhibited some at his lectures, which had remained in a fluid stute 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. 
t Anderson’s Journal, vol. 1, p. 624. See also Med. Chir. Review, vol 24, p. 95. 
| Belloc, p. 65. “ II faut exiger alors que les parties soient lavees avec de 1’eau 
tiede; si le sang ne reparait pas, le cas est suspect.” (Capuron, p. 81.) 
§ Cyclopedia of Practical Medicine, vol. 3, p. 472. 170 
PREGNANCY. 
stances, her health would remain impaired, and even become 
worse.’7* 
4. I merely notice loss of appetite, nausea, vomiting, &c. &c. 
to state that they are equivocal. They accompany many dis- 
eases — are wanting in many pregnancies — and even if pre- 
sent, occur in the early stages, the time precisely when no 
certain judgment can be formed. There are, however, some 
points worthy of observation. If the sickness and vomiting 
occur only in the morning, and the patient is well during the 
rest of the day, it is suspicious. 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 pro- 
trusion of the navel, in doubtful cases. It emerges, he ob- 
serves, in pregnancy, 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 umbilicus is depressed, and the abdomen 
soft and yielding, the existence of pregnancy is doubtful. It 
should be remembered that the protrusion seldom occurs be- 
fore the sixth month; and the further the pregnancy is ad- 
vanced, the more distinct it will be.f 
* Belloc, p. 60. Smith, p. 485. 
f I may add in this place one or two other equivocal signs, but which should not be 
overlooked in a medico-legal investigation. If present, they assist in completing the 
mass of evidence. The appearance of the blood is generally sizy. (Blundell) This, 
however, is denied by Montgomery. The secretion from the salivary glands is often 
viscid, of a white and frothy appearance, and sometimes so much increased in quan- 
tity as to constitute salivation. 
A chemical test has lately been announced by M. Nauche of Paris, although it is 
not altogether original with him. He asserts, 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 stethescope and an examination per vaginam failed, he was enabled, 
it is said, to predict the presence of pregnancy. (Lancet, N. S. vol. 8, p. 676.) Dr. 
Montgomery repeated the experiment with success in several cases; the peculiar 
deposit appearing as if a little milk had been thrown into the urine, and which was 
partly deposited and partly floating. Mr. Kane, at the request 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 fourteen, and 
a woimp nursing for two months. (Kennedy, p. 57.) It is evidently an equivocal 
sign. PREGNANCY. 
171 
5. Another sign that has been depended on, is the motion of 
the feetus in the womb of the mother. It is wanting in the ear- 
ly months of pregnancy, but during the latter ones, may gene- 
rally be ascertained. This sensation, however, wThich in real 
pregnancy, 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 wTater, and applies it suddenly 
over the region of the uterus. If the feetus is alive, its mo- 
tion will be felt, 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 sometimes not felt until 
a late period. On the other hand, flatus in the bowels, ner- 
vous irritation,* or a mole in the uterus, has been mistaken for 
it. A case, showing the uncertainty of its occurrence, is re- 
lated by Capuron. A female, with a very large abdomen, 
was received into one of the hospitals of Paris. She was vi- 
sited by many distinguished accoucheurs, surgeons and phy- 
sicians. Some declared that she labored under ascites—others, 
that a schirrous and dropsical ovarium was present. An abdo- 
minal pregnancy was also suspected, but no one believed it to 
be real pregnancy, since no motion of the foetus could be felt. 
The woman was kept on light food, and innocent remedies 
were administered. The volume of the abdomen enlarged, 
and at last, after three weeks of examinations and consulta- 
tions, a strong and healthy child was born.f 
* 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 im- 
pregnated 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 substantial I 
am equally sure.” It is, we apprehend, a mixed state of vascular fulness and tym- 
panitic distention.” Cyclopedia Pract. Med. Art. Hysteria, by Dr. Conolly. 
t Capuron, p. 73, 74. There are cases “ though rare, where it does not occur du- 
ring 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 
bciences 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. 
Again, suppose in a doubtful case, that pregnancy has actually happened, but after 
a time the foetus dies and is retained. 172 
PREGNANCY. 
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 where the 
female had attained such skill in counterfeiting, that they de- 
clared they would have been deceived, if they had not by per- 
sonal examination found the uterus unenlarged. 
The motion of the fcetus, 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 fetus became animated at this 
period—that it acquired a new mode of existence. This is 
altogether abandoned. The fetus 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 development 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 wTorks, is, that from the increase of the fetus, its 
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 rational, 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 phcenomenon 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 character, differing, as all mothers assert* from any sub- 
sequent motions of the fetus. Its occasional absence in some 
females is also readily accounted for, from the ascent being 
gradual and unobserved.! 
* 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 PREGNANCY. 
173 
This subject will again be noticed in the chapter on Abor- 
tion. At present, it will be sufficient to remark, that conside- 
rable variety occurs as to the time of quickening. Dr. Den- 
man observes, that it happens from the tenth to the twelfth 
week, but most commonly about the sixteenth, after concep- 
tion. Dr. Dewees and Blundell agree that it most generally 
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 
remainder went to the Dr. Montgomery found the 
greatest number of instances to occur between the end of the 
twelfth and sixteenth weeks.f Again, Puzos, a celebrated 
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.:}: And in a late trial for abortion 
in England, the medical witness deposed, that it took place at 
eighteen weeks, sometimes in fourteen, and sometimes not till 
twenty wreeks, 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.§ 
This 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 
wall be soonest felt when the development has been most 
rapid. The practical deduction respecting it, in a case of sup- 
posed pregnancy, is not to pronounce a female unimpregnated, 
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, Hoghen 
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 is, however, opposed to it; Dr. Kennedy 
suggests, that it may arise from either cause. (Page, p. 23.) 
* James’ Burns, vol. 1, p. 208, 
t The earliest case that he has met with was one of eleven weeks and two days. 
“ If the woman has quickened she has passed sixteen weeks at least, and is proba- 
bly near eighteen.” Ramsbotham’s Lectures; London Med. Gazette, vol. 13, p. 551. 
t Fodere, vol. 1, p. 446. 
§ Edinburgh Med. and Surg. Journal, vol. 6, p. 248. 174 
PREGNANCY, 
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 conception, the fundus and body of the uterus both in- 
crease, and the former, from its becoming heavier, will natur- 
ally descend lower down in the pelvis, and thus 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 abbreviation of the vagina, is a sign of preg- 
nancy, 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 projects into the vagina about 
two thirds of an inch, like a thick, firm and fleshy nipple. At 
the termination of pregnancy, this neck is completely obliter- 
ated; 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 
children, the neck yields more readily, and accordingly with 
some, it is as much altered at the fourth, as it is in the previ- 
ous case at the sixth month.* 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. 
*Gooch p. 213. Velpeau corroborates this, and states expressly that repeated ob- 
servations and the most carefully conducted experiments have shewn him that the PREGNANCY/ 
175 
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 al- 
so varies with the changes in the cervix. The lips gradually 
flatten and disappear, and towards delivery, a small rugous 
hole only is discoverable.* 
Now with a knowledge of these facts, we may proceed to 
an examination, to ascertain their presence. Having evacu 
ated the bladder and intestines, the female is laid in such a po- 
sition, 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 orifice of the uterus, its neck and bo- 
dy, are then examined, and having hold of the uterus, it is 
gently moved, until motion is perceived.f 
This investigation, it will be perceived, elucidates the state 
both of the womb and of the foetus. 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 practi- 
tioners will have an opportunity of obtaining. The most distin- 
guished accoucheurs have been, and probably will continue to 
be deceived with it. Of this, the works of Mauriceau and 
Baudelocque bear testimony, and Fodere relates a case which 
should make every physician distrust his skill. In a hospital 
changes which the cervix uteri undergoes during pregnancy, vary almost as much as 
its anatomical characters, in the unimpregnated females. (London Medical Quarterly 
Review, vol. 3, p. 92 ) 
* Denman, W. Hunter, Bums. The os uteri is also found closed with a gelatinous 
matter. 
f Fodere, 1, p. 450. Smith, p. 435. The examination may also be made in the 
standing posture. 176 
PREGNANCY. 
where he attended, a female~was detained on suspicion of be- 
ing 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.* 
There are also some varieties in the conformation of parts 
that render this sign useless, or unavailable. The neck of the 
uterus is oftentimes seated very low, both in married and un- 
married females, while in others, it is almost out of reach.— 
Moles and hydatids with several other affections, also 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 dimin- 
ished, 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 pe- 
riods when our opinions at the best must be doubtful. 
7. 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 attain- 
ed from the application of Auscultation to the impregnated 
uterus. 
Dr. Kergaradec of Paris, directed by the brilliant discove- 
ries 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 inferences. 
The indications of the presence of a living foetus in the 
* 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-uterine 
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 Dr. Mayer of Geneva, stated in the Bibliotheque Universelle, previous to the pub 1 
lication 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’s Memoir, p. 36.) PREGNANCY. 
177 
womb, as derived from auscultation, are two: 1. The action of 
the foetal heart. This is marked by double pulsations, and it 
greatly exceeds 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. 
These 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 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, how- 
ever, is the lower part of the abdomen. The space over which 
they are perceptible at the later 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 foetal 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 foetal 
heart was distinctly heard to beat only 28,f 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 laboring under 
disease and the* loss of blood, either by haemorrhage or ve- 
nesection, produced striking changes in the foetal circulation. 
2. The second auscultatory sign of the presence of the foetus 
has been variously termed the placental sound, the placental 
bellows sound and the utero placental soufflet. It is generally 
agreed that its seat is in the enlarged vessels of that portion of 
the uterus which is immediately connected with the placenta. 
Laennec remarks that it is evidently an arterial pulsation per- 
fectly isochronous with the pulse of the mother, and accom- 
panied by a rushing noise, resembling the blast of a pair of 
bellows. The place which it occupies never changes, but it 
varies in different individuals, and is seldom so ljirge in extent 
t Dr. Hays in his edition of the Select Medico Chirurgical transactions, gives tho 
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. 178 
PREGNANCY. 
as the space in which the foetal 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 up- 
per brim of the pelvis, so that it can be brought in contact with 
the abdominal parieties, by the pressure of the extremity of the 
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 fre- 
quently found the placental sound in either iliac region, al- 
though he has detected it in almost every part of the abdo- 
men. 
“ The noise of the placenta and the action of the foetal 
heart are commonly found on opposite sides of the body. 
This, however, is not constantly the case, for sometimes both 
the phoenomena are audible on the same side, and in one case 
Laennec and Kergaradec perceived the heart’s action behind 
that of the placenta—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 positive opinion in medico-legfd cases before the fifth 
month has passed, and he must recollect that in some, the foe- 
tal 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 se- 
cretion of liquor amnii. This last will, at all events, render 
the sounds feebler. They must not be confounded with the ac- 
tion of the mother’s heart, which is often distinctly audible 
i 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. PREGNANCY. 
179 
in the region of the uterus*—with intestinal motions—or with 
muscular contractions, produced by the pressure of the ste- 
thoscope. 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 the noise of 
the placenta will be heard over a space of some inches in ex- 
tent. Again, if the placenta be attached to the posterior 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, sit- 
ting or horizontal position. The two last, are, however, pre- 
ferred. It has the advantage, that it can be used without re- 
moving 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, Laen- 
nec, 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 de- 
nied the possibility of pregnancy. The foetal and placental 
actions were, however, present; and in a few months the pre- 
sence of labor satisfied every doubt. Kergaradec examined 
a female near her time, the simple souffle was very manifest, 
but no double pulsation could be discovered. In a few davs 
a foetus 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 pregnan- 
cy, yet their presence is almost infallible. They do not ac- 
company any other known state or condition of the abdomi- 
nal organs.f 
* In such cases, Dr. Kennedy found the sound to become more audible as it was 
traced from the fundus of the uterus info the maternal cardiac region, and the beats 
corresponded with the mother’s pulse, p. 116. 
t The following authorities deserve perusal: 
The original Memoir of Kergaradec. I'aris, 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. (Dub- 
lin Med. Transactions.) in Select Medico-Chirurgical Transactions, vol. 1, p. 172. 
Dr. Kennedy on the Placental Souffiet. (Dub. Hosp. Reports, vol. 5,) in Ibid, p. 189. 
Dr. Adams on Auscultation in Difficult Labour, from Dublin Medical Journal. (Bos- 
ton Medical and Surgical Journal, vol. 8, p. 277.) 180 
PREGNANCY. 
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 existence on oath. He is, accordingly, bound to weigh all 
the possible causes that may produce these symptoms, and he 
is to recollect the most of them have proved equivocal.* 
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 foetal) were only 128 in a minute. Deeming these 
too few, the pulse of the mother was examined, and found to the the same. No 
other sounds could he 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 author denies that 
the placental sound is a safe test of the presence of pregnancy. He states that he 
has met with it when no placenta was present. 
Dr. M’Keever on the information afforded by the stethoscope in detecting the presence 
of foetal life. Lancet, N. S. vol. 12, p. 715. 
Dr. Hohl on Obstetric Auscultation. London Med. Quarterly Review, vol. 2. p. 83. 
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 Medical and Surgical 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 disbeliever 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 symp- 
toms. 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; cognitio ex nullis signis 
indubitato haberi potest, sed bene conjecturalis ac aubia; nullum enim signum tam 
proprium pregnantiae liabemus, 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 foetus 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 Fodere, vol. 1, p. 433. Capnron, p. 81. PREGNANCY. 
181 
Even the last and the best will require frequent practice to 
enable the physician to speak with certainty. The female 
also, in most of the cases, conceals her knowledge of symp- 
toms. It is evident, therefore, 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 re- 
collected 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.* At the period 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 distension 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 distension of the 
narrow parts in which the ovum is confined, is also a common 
attendant. The body of the uterus enlarges often in par- 
ticular 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 pro- 
duced; sometimes the foetus is voided by the natural passages, 
* Cases are said to be mentioned by various writers, as Ambrose Pare, Mauriceau, 
&e. where female criminals have been executed on the decision of examiners, that 
pregnancy was not present; and notwithstanding a foetus 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 foetus 
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 a sufficient length of time to de- 
termine the certainty of the feet. (Fodere, vol. 2, p. 444.) 182 
PREGNANCY. 
while again it will remain in the abdomen for years without 
affecting the health.* 
Should the physician, as a medical jurist, suspect the pre- 
sence of a case of this kind, he can do nothing more than de- 
sire 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 pro- 
bably can occur, is when it is accompanied with ascites. The 
motion of the foetus cannot be perceived; and it is also added 
by Fodere, that the uterus does not take on its ordinary de- 
velopment. 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 ascertain 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 fol- 
lowing 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 
* 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 pregnancy 
succeeding to an extra-uterine 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. 
f There are many cases on record of pregnancy complicated with ascites. A Me- 
moir by 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 Sur- 
gical 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. PREGNANCY. 
183 
general rule, subject to exceptions.* The presence of men- 
struation, in every country, constitutes the state of puberty; 
and the irregularity of its occurrence is noticed by most prac- 
titioners. It is to be regretted, however, that so few have 
given the result of their observations. Out of 450 cases in- 
vestigated at the Manchester Lying-in Hospital in England, 
the following results were obtained: 
The menstruation began 
in the eleventh year, in 10 
twelfth, 19 
thirteenth, .... 53 
fourteenth, .... 85 
fifteenth, 97 
sixteenth, 76 
seventeenth, ... 57 
eighteenth, .... 26 
nineteenth, .... 23 
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 45; 
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.! 
* Many cases of births in advanced age are on record. (See Capuron, p. 93 and 93.) 
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 applicant, 
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, grazier, of Firsby 
near Spilsby, at the age of 64, was delivered of two female children, which, with the 
mother, were likely to do well.” (Edinburgh Annual Register, vol. 9, part 2, p. 508.) 
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 Lon. Med. Gaz. vol. 15, p. 467. 
t 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 
endeavors to combat the prevailing idea that climate has an effect on the period of pu- 
berty. Ilis 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 connexion, is the 
most probable. Mr. R. mentions the case of a girl who worked in a cotton factory, 184 
PREGNANCY. 
“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 
menstruated 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, 
according to Velpeau, the function occasionally commences at 
10, 11 or 12 years; but generally between 12 and 16.f 
becoming pregnant in her eleventh year. When in labour, she was seized with con- 
vulsions; but ultimately, without unusual difficulty, was delivered 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. 
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, parti, 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 principle 
in the vegetable kingdom. Bruce mentions, that in Abyssinia, he has frequently 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.-l, 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 writh 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 conceiving 
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. PREGNANCY. 
185 
Although impregnation is supposed to depend on menstrua- 
tion, yet there are cases on record, where females have become 
pregnant without ever menstruating. Sir E. Home, in the Phi- 
losophical 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 pregnant.* 
2. We should ascertain whether any of the causes of sterili- 
ty, as already enumerated, be present. 
3. Women often fancy themselves pregnant when the men- 
ses cease. This great change in the system often produces 
enlargement of the abdomen, nausea, and the breasts fill with 
a. milky fluid. Caution is necessary in such cases, in giving a 
decided opinion ; and Yan 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 deliv- 
ered of fourteen children, and might hence be supposed to be 
well acquainted with the signs of pregnancy. After the birth 
* See Fodere, 1, p. 396; Capuron, p. 96, for similar cases. Also Moseley on Tropi- 
cal Diseases, p. 103,104. “ Ego habui amicam laudabilis temperamenti et complex- 
ionis, quee octo lilios tulit consequenter, id est, omni anno unum, nunquam tamen vi- 
sa una gulta sanguinis menstrui.” (Low, p. 523.)—Impregnate nullis unquam prse- 
viis menstruis. (Stalpart, vol. 2, obs. 31.) 
“I knew a noble virgin, who being married before her menses, which had been ex- 
pected for many years, appeared, was nevertheless, very fruitful, and that we may 
be the less surprised thereat, the very same thing had likewise happened to her moth- 
er." (Morgagni, Epistle 47.) Velpeau also mentions a case at Tours. Additional 
cases are quoted in Cyclopedia of Practical Medicine, Art. Pregnancy, by Dr. Mont- 
gomery, 
Dr. Dewees denies that impregnation can take place without menstruation, (p. 59.) 
He attributes the rare cases noticed to some imperfection of the genital organs. 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.” 186 
PREGNANCY. 
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 mis- 
taken. A torpid state of the uterus, combined with intesti- 
nal flatulence, appears to be the principal cause of these sen- 
sations. “ At this time, (says Dr. Gooch,) menstruation will 
often cease for several months, and the abdomen become dis- 
tended 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 feelings 
and an anxiety to believe in pregnancy, as a test of youthful- 
ness. About this age, also, the omentum and parietes of the 
abdomen often grow very fat, forming what Dr. Bailie 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 showr 
the delusions that have happened, and undoubtedly will again 
happen. 
4. There are various substances or fluids formed in the ute- 
rus, w-hich 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 ca- 
vity of the uterus—enveloped in a membrane, and generally 
filled with blood, although occasionally dry. On cutting into 
it, various parts, resembling an imperfect foetus, will be ob- 
served. The symptoms produced, are at first very similar to 
those of pregnancy. The stomach is affected, and the breasts 
and belly enlarge. The latter, however, increases much faster, 
and is softer and more variable 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, al- 
though in some cases it has not been evacuated until the sixth 
or seventh, and it is even said to have been retained for years.f 
* Gooch s Discourses 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. 
f A case came before the parliament of Paris in 1781, in which the female sued for PREGNANCY. 
187 
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 retained the fibrous part of the blood only. Many un- 
married females discharge these, and they should be accurate- 
ly distinguished from the former. The one is to be deemed 
the product of conception,* and the other not. And these 
damages, for seduction. Twenty months after this was alleged to have been com- 
mitted, 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 discharged moles, 
■without any previous criminal connexion. (Fodere, 1, p. 477.) 
* “ True moles are distinguished from the false, and other growths of the uterus, 
by their not deriving their origin from the substance of the w’omb, 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 opin- 
ion 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 jpole. 3. The vesicular mole (hydatids.) Of fleshy 
moles, two kinds are described—one hollow in the centre, the other solid, in both cases 
a degeneration of the envelopes of the fcetus. (Edinburgh Medical and Surgical Jour- 
nal, vol. 39, p 217.) 
Dr. Ramsbotham is induced to believe that moles arise from a blighted ovum, which 
though retaining its adhesion to the uterus, is in time converted into a solid inorgan- 
ized mass, totally unlike any foetal structure. (Med. Chirur. Review, vol. 21, p. 314.) 
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 embryo 
was at any time discharged.” (Cyclopedia of Practical Medicine, Art. Abortion by 
Dr. Robert Lee.) ’ 
“ Le developpement des masses d’hydatides (says Desormeaux) estle plussouvent. 
sinon toujours, la suite de la conception.” (Orfila, Logons, 2d edition, vol. 2, p. 220.) 
He says that Velpeau entertains a similar opinion. Candor, however, obliges me to 
add, that some observers believe that they may occur in chaste females. (Smith, p. 298.) 
Dr. Blundell thinks, that fleshy substances are formed in the uterus of pure females. 
which resemble in structure the placentar part of the ovum in the earlier months. 
“ To my knowledge, they form month after month in unmarried females of undoubted 
honor.” 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 afler birth; coagulated blood; sarcomatous tumors or po- 
lypi 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 concur 
in this view, and add in his words, that no medical jurist would be justifiable in pro- 
nouncing any such mass expelled from the uterus, a proof of pregnancy, except he 
can detect in it either the fcetus or a part of it, or some other of the component parts of 
the ovum. But it must also be recollected, that in many of these cases, no trace of a 188 
PREGNANCY, 
bloody coagula are 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 mis- 
taken 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, wrhich often produces 
pain, and the want of motion wrhen examining the uterus. 
This last, however, is seldom applicable, since the investiga- 
tion is usually made in the early stages. Foder6 adds, that 
the breasts are not filled with a milky, but with serous fluid, 
and that the female often experiences violent convulsive mo- 
tions in her abdomen.* Occasional discharges of blood per 
vaginam during the gestation of the mole, are not uncommon. 
Hydatids, or dropsy of the uterus, which by many are con- 
sidered as synonymous,! are generally supposed to proceed 
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 1 It is this: that the former has invariably a 
central cavity, wholly enclosed, without any opening or aperture; whereas the latter, 
let it be formed in any way you please, stratified, laminated, concentric, membrana* 
ceous 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 
lam not aware thatithas been noticed or made public by any author before me.!l p.50. 
* Fodere, vol. 1, p. 469. 
| See Denman, p. 148, and the opinions of Drs. Baillie and Sprengel there quoted 
in favor of this belief. Dr. James, Professor of Midwifery in the University of Penn- 
sylvania 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.) 
John Burns, however, considers them as distinct diseases, and the remarkable case of 
Dr. A. T. Thomson, (Medico-Chirur. Transactions, vol. 13) shows that hydrometra 
may occur, independent of hydatids. There is certainly one condition that is un- 
doubtedly distinct from what we understand 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, however, must be ascertained by an examination of the 
parts. v PREGNANCY. 
189 
from coagula of blood, or from portions of the placenta, de- 
generated during the process of pregnancy.* There is, how- 
Dr. Haighton was sent for, to a case where, in the middle months of gestation, a 
female labored 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 foetus 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. 
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 Midwife- 
ry; 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 
connexion between the sexes, so in the uterus, I presume they may be formed with- 
out intercourse; but hi general, they are the result of impregnation." (Blundell. Lan- 
cet, 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 membranous 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 Nou- 
velle Recherches,” &e. and Edinburgh Medical and Surg. Journal, vol. 34, p. 382.) 
To the question put in a former edition, Whether there was any case in ivhich an examina- 
tion had been made on the virgin female labouring under this disease; and if so, whether 
the parietes of the uterus enlarged as in real pregnancy ? Madame Boivin at least gives 
an unequivocal answer: “Ineffet, il nous paraitra tonjours tres difficile, de determi- 
ner d'une maniere absolue l’etat de virginite d’une fille, cloitree ou non, chez laquelle 
s’est developpe 1’uterus comrae dans une grossesse fcetale de neufmois.” Not only 
the uterus, but all the organs sympathizing with it, develope themselves; and what- 
ever 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 examinations, 
that “ les hydatides en grappe de 1’uterus n’etaient pas des vers vesiculaires, comme 
on croit generalement; mais bien le produit d'un ceuf avorte, dont les petite corps 
gangliformes ont pris un accroissement-qui ne leur est pas ordinaire.” (Embryologie, 
p.I0.) 
To this testimony, I add the decided opinion of Dr. Montgomery, who, after quoting 
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 observation, the women sup- 
posed themselves with child; and when the contents of the uterus were expelled, 
there was found either a blighted foetus, 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. 
In the first number of Cruveilhier’s Pathological Anatomy, are two plates illustra- 
tive of this disease, which strikingly elucidate its nature. The female had haemor- 
rhagic discharges, with pain, at the fourth month, which continued at irregular inter- 
vals 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, 190 
PREGNANCY. 
ever, an opinion entertained by some writers, that they are 
occasionally an original 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 toge- 
ther in clusters, occupy a considerable 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 dis- 
charge 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 floating 
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. Often, however, they do not come 
away, until some period after real pregnancy would have been 
accomplished. Their expulsion is attended with pain, often 
of the severest kind, and generally with hEemorrhage.f An 
instructive case is related by Dr. Eights, where the female 
conceived herself 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 labor pains, and discharged 
about a gallon of hydatids. On the third day after this, there 
was a copious secretion of milk.| Mauriceau also states the 
* Clarke, part 2, p. 118. Edinburgh Medical & Surgical Journal, vol. 34, p. 382. 
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 contempora- 
neous 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 ab- 
domen or of the 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. 
American Medical and Philosophical Register, vol. 4, p. 519. (Dr. Davis’s refe- 
rence to this case is incorrect: See p. 679 of his works.) 
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. 191 
PREGNANCY. 
case of the wife of President de Nemours, who was consi- 
dered pregnant a whole year, and at last was relieved by a 
copious watery discharge.* 
5. It is proper to mention that membranes are sometimes 
expelled in dysmenorrhaea, 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 men- 
strual period—the membrane is slight in its texture, wants the 
vascularity of the true decidua, and never contains any of the 
transparent membranes of the ovum. Many unmarried fe- 
males are periodically subject to this severe disease.! 
6. A collection of air in the womb has sometimes led to 
mistakes 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 Edin- 
burgh stated that she was in labor. According to custom, a 
house pupil was sent to attend her, which he did very faith- 
fully for two days and two nights. At the end of that peri- 
od, he sent for Dr. Hamilton, the professor of midwifery, who 
examined her, and much to the mortification of both the stu- 
dent and the woman, declared that she must become preg- 
nant, before she could be delivered. She was laboring under 
this disease. 
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 haemorrhage from the unimpregnated 
uterus ever occurs ? The first discharge of blood in several cases collected by Madame 
Boivin, is as follows: 
2 at 45 days, 
1 at 2 months, 
4 at 3 months, 
2 at 4 months, 
1 at 5 months, 
1 at 6 months, 
1 at 7 months, 
1 at 8 months, 
1 at 11 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. 192 
PREGNANCY. 
An interesting case is related by Dr. Ray, of Eastport, 
Maine. It made its first appearance during a second preg- 
nancy seventeen years ago, and from that time to this, the pa- 
tient has never been free from it—whether impregnated or 
not. In the latter state, however, no inconvenience is expe- 
rienced—in the former, there is always severe pain. Some- 
times, but not always, the air is discharged with a crepitus— 
and as often as twice or thrice a week. This, however, va- 
ries, 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 
considerable attention, from peculiar circumstances attendant 
on them. Of this nature was the instance of Bianca Capello, 
the mistress of the Prince of Tuscany, who, in order to gra- 
tify 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 medi- 
cal men who 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 mis- 
taken 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 unaccom- 
panied 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. 
f Edinburgh Review, No. 48, Art. 11. In the stormy period that preceded the abdi- 
cation of James II., it seems to have been a favorite opinion among the protestants, 
that the pretender (as he is now styled in history) was a suppositious child. The 
proof in favor 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. PREGNANCY. 
193 
The laws on the punishment for concealed pregnancy will 
be introduced with most propriety in the chapter on Infanticide. 
III. Of Superfaetation. 
By superfoetation 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 conceiving another child. 
This doctrine was very current among the ancient physi- 
cians,* and it still has adherents, although the majority of the 
medical profession at the present day are sceptics with respect 
to it. Its bearing in legal medicine, is on the question of le- 
gitimacy, as I shall hereafter show. 
It will conduce to a better understanding of the subject, if 
the cases which are deemed instances of superfoetation, 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 preg- 
nant. Eight months after his death, she was delivered of a 
deformed child, which died in the birth. Her abdomen re- 
mained 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 labor, and brought forth a perfect living child. 
The relations of the husband contested its legitimacy, on the 
ground that it was the fruit of a superfoetation, 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 product of a superfoetation, 
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 
* So common was the belief in it, that Brassavolus observes that he has seen su- 
perfaetation epidemic l ! 194 
PREGNANCY. 
mother, and also gave her those legal rights to which her 
situation entitled her.* 
Dr. Denman, in his work on Midwifery, quotes a letter 
addressed to the lady of Sir Walter Farquahar, by the patient 
herself, 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 conti- 
nued 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.”! 
2. A case mentioned by Buffon, has been often quoted by 
the enemies and advocates of superfeetation. “ A female at 
Charleston 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 
* Zacchias Consilia, No. 66. Foderg 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.) 
f 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 Transsactions, vol. 60, p. 453. (Case by Mr. Warner.) 
Medieo-Chirurgical 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 ofblighted foetus. 
London Medical and Physical Journal, vol. 22, p. 47, and vol. 21, 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’ conception. In the other 
(case by Mr. Rolfe,) the dead foetus, apparently of six months, was first delivered, 
and the full grown child shortly after. 
Three cases are respectively related by Messrs. Newnham, Hayes and Powell, in the 
Transactions of the associated apothecaries of England and Wales. Each of these 
had separate placentas ; one of the blighted ova was 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. II. Taylor, in North American Med and Surg. Journal, vol. 4, p. 81. 
Case by Dr. Fahrenhorst of Lithuania. (New-York Medicaland Physical Journal, vol. 
8, p. 393.) 
Case by Dr. Colombe. (American Journal of Medical Sciences, vol. 5, p. 483.) PREGNANCY. 
195 
entered her room, and by threatening to murder her if she did 
not consent, had connexion with her.”* 
It has been insinuated against the credibility of this case, 
that one of the offspring was white. Instances can, however, 
be adduced, where this objection does not apply. Dr. Mose- 
ley mentions the following as occurring within his time at 
Shortwood estate, in the Island of Jamaica. u A negro wo- 
man brought forth two children at a birth, both of a size; one 
of which was a negro, and the other a mulatto. On being in- 
terrogated 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 mor- 
ning before she was up, and she suffered his embraces almost 
instantly after her black husband had quitted her.”f 
“ 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 
* Fodere, vol. 1, p. 482. 
f Moseley on Tropical Diseases, &c. p. 111. For additional cases, see Quarterly 
Journal of Foreign Medicine and Surgery, vol. 3, p. 350. Case by M. De Bouillon, 
•from the Bulletin de laFaculte et de la Societe de Medeeine, 1821. A negress deli- 
vered 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.) 
“ by Dr. Trotti—A negress in South-Carolina, in 1815; three children; two 
white, and one black. (N. Amer. Med. and Surg. Jour. vol. 1, p. 466.) 
by Dr. Guerarde—A negress in South-Carolina; twins; a black and a mulatto. 
(Chapman’s Journal, N. S. vol. 5, p. 412.) 
“ by Dr. Dolmas of Rouen — A woman in a public hospital of that city; twins; 
one white, and the other tawmy. (Dictionnaire des Sciences Medieales, vol. 
4, p. 181. Cas rares.) 
Dr. Blundell, in his Lectures, refers to a case of this description, 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 Ilecker’s An- 
nals. (American Journal of Medical Sciences, vol. 14, p. 220.) 
a he following is, I believe, the most remarkable case yet recorded: “ It wTas com- 
municated to me by the Sargente Morof 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, brow n and black, with all the features of the 
respective classes.” (Rev. Dr. Walsh’s ISotices of Brazil, vol. 2, p. 90.) 
f Dunglison’s Physiology, vol. 2, p. 324. 196 
PREGNANCY. 
an Englishman who was attached to the commissariat of the 
British army in Sicily, was delivered, on the twelfth of No- 
vember 1807, of a male child, which had every appearance of 
health. It was brought forth under circumstances very dis- 
tressing 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 February 1808, (not quite three ca- 
lendar months from the preceding accouchement,) Mrs. T. was 
delivered of another male infant, completely formed, and ap- 
parently 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 Pa- 
lermo, 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 certifi- 
cate pledging himself to its truth.* 
The last instance I shall mention in detail, is one communi- 
cated to Foder6 by Dr. Desgranges of Lyons, and it is cer- 
tainly 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 
twentieth of January 1780, eight months after her delivery, 
and seven months from her second conception, she brought 
forth a living child. This delivery was not, however, accom- 
panied with the usual symptoms — no milk appeared—the 
lochia were wanting, and the abdomen did not diminish in 
size. It was accordingly found necessary to procure a nurse 
for the child. 
* 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 consequence 
led to make further inquiries of Dr. Maton, and he found that both children were bom 
perfect. The labour, though quick, was not sudden; since the accoucheur was pre- 
sent. All the distressing circumstances noticed, and on which Dr. Granville appears 
to rely, referred merely to the inability of obtaining proper accommodations. (Paris’s 
Medical Jurisprudence, vol. 1, p.264.) PREGNANCY. 
197 
Two surgeons visited the female, and were at a loss with 
respect to her situation. They called Dr. Desgranges in con- 
sultation, who declared that she had a second child in the 
womb. Although this was strongly doubted, yet three weeks 
after her delivery, she felt the motion of the foetus; and on 
the sixth of July 1780, (five months and sixteen days after the 
first birth,) she was again delivered of another living daugh- 
ter. The milk now appeared, 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 
attestation 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 doctrine consider them as conclusive testimony, while the 
opponents explain their peculiarities in various ways, and also 
endeavor to prove, that this kind of conception is impossible. 
In the first place, it is urged, that shortly after conception, 
the os tineas, 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 ute- 
* 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 Me- 
dical Sciences, vol. 1, p. 193.) 
Three cases in the Dictionnaire des Sciences Medicales, Art. Superfcetation. 
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 
hot 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 Bi- 
partite Uteri, in American Journal of Medical Sciences, vol. 1, p. 3H7.) 
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.) 198 
PREGNANCY. 
rus, and thus co-operates with the mucus, in obliterating the 
openings into its cavity.* 
When the gravid uterus enlarges, the fallopian tubes lie pa- 
rallel to its sides, instead of running in a transverse direction 
to the ovaria, as in the unimpregnated state. If then an em- 
bryo be generated, the tubes could not embrace the ovum, 
and it would remain in the ovarium, or fall into the abdomen, 
and thus constitute 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 
destructive to the foetus already present. The functions 
which have already been performed for the first conception, 
have now to be repeated, and an additional decidua and pla- 
centa are to be formed. 
These are, briefly, the arguments urged against the possi- 
bility of superfoetation. An appeal, however, is made to 
cases, where, as we have already stated, two or more child- 
ren of different sizes, and apparently of different ages, are 
born nearly at the same time, or at a longer interval.f 
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 
suggested, that twins have been conceived, and that the em- 
barrassed situation of one child in the uterus may have pre- 
vented its development, checked its nutrition, and thus caused 
its death. The other, on the contrary, lives and grows, press- 
es 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. J 
* The advocates of superfoetation deny that this mucus closes the os tincae com- 
pletely; and they conceive that the absorption of new fecundating matter through itf 
is possible. Capuron, p. 110. Fodere, vol. 1, p. 483. 
f An engraving illustrative of this occurrence, is given in Cruveilhier’s Pathologi- 
cal Anatomy, No. 6. One foetus 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 cord of the smaller is attached 
while that of the other proceeds from the healthy portion. 
tIn noticing the objections to this doctrine, I have made a free use of Professor 
Chapman’s able Essay on it, in the Eclectic Repertory, vol. 1, p, 369. PREGNANCY. 
199 
It is evident that this explanation puts aside the idea of su- 
perfcetation.# 
The second class of cases, where a twin birth of various 
colors 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 attempted to do this, by supposing that a double ute- 
rus was present. This is far from being as rare as was at 
one time supposed. “ The human uterus.” says Dr. William 
Hunter, “ in the impregnated state, commonly has one trian- 
gular cavity. In many instances, it is found subdivided at its 
upper part, into two lateral cavities, so as to resemble the two 
horns of a uterus in a quadruped. Several specimens of such 
uteri are preserved in my collection.”! Not only has the 
uterus been found double, but occasionally the vagina also. 
In the Museum at Heidelberg, Dr. Tiedemann informs us, is 
the uterus of a female who died nineteen days after delivery. 
It is divided; the left is in the state to be expected after the 
removal of the foetus, whiie the uterus on the right side is 
characterized by the absence of all appearances of impregna- 
tion. Two vaginae are also present-! This female was seen 
* 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 consi- 
ders the acephalous as the imperfect twin of another, whose development has been 
completed. Lancet, voli 10, p. 748. 
t Hunter’s Anatomy of the Human Gravid Uterus. London, 1794, p. 6. I am in- 
debted for this reference to my colleague, Professor Willoughby. 
t Quarterly Journal Foreign M. and S., vol. 5, p. 438. All the cases related by au- 
thors, 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, Du- 
puytren, West, Ollivier, and one examined by himself, Dumeril and Madame Boivin, 
in which both uterus and vagina were double. See also Martin, on a variety of the 
Human Uterus (from the Revue Medicals 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 labor pains were confined to the right side. 200 
PREGNANCY. 
by two physicians during her labor. One declared that the 
neck was 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 
Desgranges, as is done by Velpeau and Cassan, yet there are 
intrinsic difficulties attending the solution. It has been in- 
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 performed, 
and a healthy female infant born—the right side subsided—the left contined promi- 
nent. In one hour labor pains returned, when Dr. G. found membranes protruding 
through an opening in the left side, which extended upwards into a eavily. A second 
child presented and was safely delivered by turning. The right placenta 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 else of double uterus. Two years afterwards, she was again deli- 
vered 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 hsematemesis. (New-York Medical and Physical 
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 dis- 
tinct necks and mouths into a single vagina. The mother died after delivery—the 
foetus 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 na- 
tural, with an opening common to both canals. Length of the septum 1| inches— 
whole length of the uterus 3j. (London Med Gazette, vol. 13, p. 898.) 
Another recent instance is given by Mr. Le Roy, in Journal des Connoissances 
Medicales. (Boston Medical and Surgical Journal, vol. 12. p. 217.) 
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. 
In one instance, communicated by M. Berard, the uterus and vagina were each dou- 
ble. This female had been thrice married, but had only one child, which arrived to 
the full time and died during delivery. The labor was extremely difficult. In ano- 
ther, the uterus alone was bifid. The female had been delivered about six weeks pre- 
vious 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 development. 
Where the uterus is merely divided into two chambers (cloisomti) 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. PREGNANCY. 
201 
quired whether menstruation goes on in the unimpregnated 
half? If it does, it will account, as is supposed, for the occa- 
sional presence of that discharge, or something much resem- 
bling 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 information on the subject. 
A more formidable objection, founded on anatomical ob- 
servation, has been recently presented by Dr. Robert Lee. 
He examined, 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 foetus 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 deciduous membrane; and at its 
opening into the cervix, it formed a shut sac. Now such a 
disposition, remarks Dr. Lee, if it always exists, which he 
deems probable, must render superfcetation impossible.! 
We must also recollect, that in the remarkable cases of 
children born several months from each other, no examination 
has 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 superfcetation took place, had a double uterus.”! 
Should the doctrine of superfoetation ever be pleaded in 
medico-legal cases, we must be guided by the laws of legiti- 
macy, both as to premature and to protracted births. The 
* Cassan, p. 39. 
t London Med. Gazette, vol. 11, p. 176, from Med. Chir. Transactions, vol. 17. 
t Richerand’s Physiology, p. 357. The only cases in which Cassan considers 
superfnetation 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. 202 
PREGNANCY. 
latest born should fall within the legal term, or be excluded 
from the privileges attendant on it; and this is more particu- 
larly necessary, from the obscurity that invests the subject. 
IY. 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 nature is the case related by Mauriceau, where a fe- 
male, who had been secretly married, took every precaution 
to avoid pregnancy, 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 in- 
stance, 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.* Fodere himself relates 
an instance which happened to an acquaintance, 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 si- 
lenced her.f 
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 Celebres, 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 Au- 
gust, when field labour is the most severe, that she experienced 
a cessation of the menses. She attributed this to the fatigue 
* Mauriceau, vol. 2, p. Ill, 205. 
t Foderg, vol. 1, p. 491. PREGNANCY. 
203 
she had undergone ; 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, carried 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 dis- 
covered to be the mother, and was condemned to death for 
committing infanticide. Her plea was, 1. That she was per- 
fectly 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 
herself by showing a dead child. An appeal was made to the 
superior 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 
following points :—1. Could the accused be ignorant of her 
pregnancy, 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 1 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 uncertainty of the signs of pregnancy, and the 
ease with which it might be confounded with other diseases. 
They adduced in favor of this, the authority of Astruc, Zac- 
chias, Senac, and Hebenstreit. This last observes, that a fe- 
male might be impregnated when intoxicated, and might go 
* Fodere, 1, p. 491, quoted from the Causes Celebres. 204 
PREGNANCY. 
to the full time without knowing it ; and on being seized with 
pain, might mistake it for colic or painful menstruation.* 
Foder£, 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 ridicule 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 consequences not following it ?f 
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 oc- 
curred to Dr. Desgranges, in a young woman in France, who 
having been long tempted, was at last prevailed on to have 
connexion in the bath, as this, it was stated, would prevent 
conception. 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. 
* Hebenstreit, p. 386. There appears to me 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 obstanlibus, et quamvis vera, nec ex 
catameniorum defectu, nec ex tumore abdominis, aut lactis in mammis presentia, de 
graviditate convictio nasci possit; impossible tamen est, gravidam, quae vegetum, 
fortemve embryonem, et talem qui ad usque partus legitimum terminum sine morbo 
pervenit, matrice tulit, motus istos magnos, qui prope finem sanae et commodae 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: “ Cana female be ignorant of her pregnancy, 
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 without 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 con- 
cedes that it may take place, if she be not a virgin, and in every circumstance 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 requi- 
site 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 wTho 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. 
205 
Desgranges states it as his opinion, that the assurances of her 
iover had banished all ideas of the possibility of pregnancy. 
The female made this assertion herself to him, and her conduct 
previous to delivery 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 administered; 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 
concerning her situation; but doubt presupposes something to 
be suspected, while ignorance is not aware of any thing.f 
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 produced, there is no doubt of its occurring; 
whereas in the opposite cases, the probability is greatly les- 
sened. Authors, in remarking on this question, run into co- 
pious disquisitions on what is necessary to cause conception; 
but on this I have already intimated an opinion, which it is 
not necessary to repeat.! 
* This and the succeeding case were communicated to FoderS 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 preg- 
nancy. 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 late to this inn; put 
his horses in the stable, and went into the house, and found all gone to bed except this 
girl, who was lying 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.” 
I 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 connexion; 
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 w’as 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 with- 
out the female being conscious of it. Whether a female, if alone and unassisted, 
can prevenfher 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 pe- 
riods 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 general- 
ly deemed capable. Laws of various countries as to what constitutes 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 extracted by the caesa- 
rean operation—their capability of inheriting: Lawrs on this subject. First born of 
twins. How far deformity incapacitates from inheriting. Monsters: Law's 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. DELIVERY. 
207 
PART I. 
Delivery, whether concealed or pretended, can alone be 
elucidated by referring to its real signs; and it will therefore 
be proper to commence with a notice of them. 
If the female be examined within three or four days after 
the occurrence of delivery, the following circumstances will 
generally 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 colored 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 tra- 
versed in various directions by shining reddish and whitish 
lines, which especially extend from the groins and pubis, to 
the navel. These lines have sometimes been termed linece 
albicantes, and are particularly observed near the umbilical 
region, where the abdomen has experienced the greatest dis- 
tention. The breasts become tumid and hard, and on pres- 
sure emit a fluid, which at first is serous, and afterwards gra- 
dually becomes whiter; and the presence of this secretion is 
generally accompanied with a full pulse and soft skin, covered 
with a moisture of a peculiar and somewhat acid odour. The 
areolas round the nipples are dark colored. The external ge- 
nital organs and vagina are dilated and tumefied throughout 
the whole of their extent, from the pressure of the foetus. 
The uterus may be felt through the abdominal parietes, volu- 
minous, 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 mar- 
gin of the perinaeum 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 dis- 
I. Of concealed or pretended delivery. 
* “ With the birth of the first child the commissure is generalty 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 commissure 
and the fossa existed afterwards in all their perfection." (Blundell’s Lectures, Lan- 
cet N. S. vol, 4, p. 641.) 208 
DELIUERY. 
tinguished from the menses by its pale color, its peculiar and 
well known smell, and its duration. The lochia are at first 
of a red color, and gradually become lighter until they cease.* 
These are the signs enumerated by the best writers on the 
subject, and where they are all present, no doubt can be en- 
tertained 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 menstrua- 
tion, or fluor albus, were it not for its peculiar smell, and this 
it has been found impossible, by any artifice, to destroy. 
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 tender- 
ness and swelling. And again, when all signs of contusion 
disappear after delivery, the female parts are found palf/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. “ It is 
possible for this secretion to take place independently of preg- 
nancy.''] 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 secre- 
tion goes on during the presence 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 wrinkles and relaxation of the abdomen which fol- 
low delivery, may be the consequence of dropsy, or of lank- 
ness following great obesity. This state of the parts is also 
*Foderfj, vol. 2. sec. 1; Mahon, vol. 1, p. 166 to 170; Capuron, p. 124; Hutchin- 
son on Infanticide, p. 90; Burns, p. 326. 
f Bums, p. 326. The error in the 3rd (London) Edition, of substituting “impossi- 
ble" for “possible” in this quotation, and which is noticed by Professor Montgomery, 
is not mine. It is correct in the Edition published here. 
X Fodere, vol. 2, p. 15. DELIVERY. 
209 
seldom very striking after the birth of a first child, as they 
shortly resume their original state. 
5. The line* albicantes will often remain for life, and hence 
should not be depended upon in cases wThere 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 con- 
sequence of sexual connexion.! So far he can pronounce 
with safety. But if the question has a bearing on the charge 
of infanticide, 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 mis- 
takes, inquiry should also be made, whether the individual 
has labored 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 
examination be made ? 
An astonishing difference occurs among females, in the pe- 
riod 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 de- 
livery 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 have fixed on the term of 
eight or ten days, for this purpose; and it is probably a cor- 
'They are sometimes wanting in females who have had several children; and Dr, 
Montgomery saw them very marked in a male laboring under general dropsy. (Cy- 
clopaedia of Practical Medicine.) 
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 whate- 
ver a few obstinate accoucheurs may have been urged by the spirit ol contradiction 
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.” (eidin. Med. and Surg. Journal, vol. 19, p. 454.) 210 
DELIVERY. 
rect one. After that period, the signs become equivocal, and 
may lead to error, particularly if the delivery has been natu- 
ral.* 
Zacchias remarks expressly, that the proofs of delivery be- 
come uncertain after the tenth day ; and this uncertainty 
increases until the fortieth, when the abdomen, with the ex- 
ception of the white lines, returns to its natural state, particu- 
larly if the female be healthy. Michael Alberti, a celebrated 
professor of his day, and Bohn, professor at Leipsic, both re- 
commend the visit to be made within the week ; and in a case 
before the parliament of Paris, in 1767, Petit and Louis re- 
ported in favour of acquitting a female suspected of infanticide, 
on the ground that the investigation had been made at too late 
a period.f The following case, which came before the cri- 
minal 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 house 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 Rosine observed blood on the stairs and on 
the floor of the chamber; and Aimee remarked that her menses 
flowed very profusely. 
* Farr (p. 50 and 51,) enumerates certain signs that a woman has formerly been de- 
livered 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 unequal. 
An expanded and pensile abdomen. The line* albicantes. The frsenum of the labia 
obliterated; the breasts flaccid and pendulous; the nipples prominent, and the areolae 
of a brown color. 
“ The most precise cnterions 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. 
f Fodere, 1, p. 17. “ Hsec primis post partum diebus a medicis dijudicari possunt, 
si vero suspicio tardius oriatur, nec in matre, nec in infante, signa rei recte definiend* 
supersunt.” (Ludwig, p. 44.) DELIVERY. 
211 
Suspicions appear to have been excited ; and on the 17th, 
the privy was searched. A foetus, placenta, and bloody cloths 
were found ; and two surgeons, who examined the body, de- 
posed 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 af- 
ter 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 mo- 
ther of this child; and the suspicion was fortified by a previous 
refusal 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, Dupuytren, 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.f 
Delivery is most commonly concealed under the idea of 
destroying 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 wdien this was advancing. Cir- 
cumstantial evidence 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 precautions as to dress were used 
to conceal it. 2. The proofs of recent delivery and 3. To 
* Fodere, 2, p. 18. 
t A case of an opposite nature, where the female was evidently accused wrongfully, 
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 enlargement of the 
abdomen. 
t The following case which I find in a recent Journal, is a most unequivocal one, 212 
delivery. 
the connexion between the supposed 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 at- 
tachment of the umbilical cord to the navel ; and the female, 
if the mother, will be found to have the marks of a late deli- 
very on her. The question, whether it was living after birth, 
belongs to infanticide. 
In pretended delivery, the female declares herself a mo- 
ther, without being so in reality. This is not so revolting to 
our feelings 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 families 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 favor of her husband by pretend- 
ing pregnancy, and at the end of the proper period, obtained 
an infant from one of the hospitals. She effected this by the 
aid of a midwife, who attended during the assumed labour. 
Unfortunately, however, the parents of the child repented of 
and we can only explain the decision by supposing that some superior influence inter- 
vened to quash the investigation. 
A female in June and July, 1827, complained of dysmenorrhcea and its accompa- 
nying symptoms. Her abdomen enlarged and there was a suspicion of pregnancy. 
But she denied its correctness and attributed her illness to wet feet. She was dis- 
missed from service ami returned to her parents. On the 14th of March, 1828, sho 
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 t ie 2 >th. They found her skin 
warm, countenance slightly flushed, pulse full and frequent, and tongue natural; the 
breasts tumefied and its veins enlirged, and on continued pressure, a thick milky fluid 
was obt lined in abundance. The abdomen was a little swelled, umbilicus projecting 
(saillant,) lmese 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 externally were much dilated, 
flaccid, and as if recently swollen. Le frein da 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 noticed 
arising from some other cause ! Well might Leuret, the reporter of this case, ask, 
whether hxmorrhage alone would produce all these signs. (Annales D’Hygiene, 
vol. 3. p. 221.) DELIVERY. 
213 
having put it in the hospital, and endeavored again to obtain 
it. Failing in this, they took steps to discover where it was, 
and ascertaining, a full disclosure took place. The woman 
was sentenced to make the amende, honorable, with a writing 
on her breasts, containing these words: “ A woman who 
stole a child, in order to 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 condemned to perpetual imprison- 
ment. 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,) pre- 
scribes imprisonment as the punishment for concealing an in- 
fant—for substituting one child for another, and for pretend- 
ing that a child has been born.f 
Pretended delivery may present itself under three points of 
view. 1. Where the female, who feigns, has never been preg- 
nant. This, if thoroughly investigated, may always be de- 
tected. 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 Bir- 
mingham 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 its natural state, nearly closed, and the vagina 
* Fodere, vol. 4, p. 406, from the Causes Celebres. “ A case worthy of record oc- 
curred 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 subver- 
sion of Christian charity, and good neighbourhood throughout his cure, and inviting 
all the young women who wished to maintain their reputation, to exhibit themselves 
n.ext morning before the kirk session. Accordingly, on the following day, the minis- 
ter and elders, with a midwife and the village surgeon, as assessors, held a grande 
reconnaissance, by means of which the unfortunate mother was detected. She was 
found guilty of concealment of pregnancy.” Dunlop. 
t Capuron, p. 18. 214 
DELIVERY. 
so much contracted as not to admit the hand. Astonished at 
this appearance, he went to consult a medical friend; but be- 
fore 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, 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 nar- 
rative, 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 regis- 
ter the child. 
A legal inquiry was instituted, and Dr. Billard was appoint- 
ed 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, and 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 se- 
baceous matter, common to new born infants, was found on it, 
nor was any meconium observed. 
Dr. Billard decided from these circumstances, and particu- 
larly from the state of the cord, and its falling off spontaneous- 
ly—from the colour of the skin, and the exfoliation—that in- 
* Male, p. 212. A case of a somewhat similar nature is mentioned by Capuron, 
p. 110. DELIVERY. 
215 
stead 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 discharge from the vagina; and, indeed, that part was 
contracted, and the labia perfectly natural. The uterus was 
light and easily raised, and had the feel of perfect contrac- 
tion. Its mouth was neither tumified, nor irregular. The 
result was unavoidable. Dr. Billard denied her previous preg- 
nancy and delivery, and she was forced to confess the fraud.* 
2. Where the pretended pregnancy and delivery have been 
preceded by one or more deliveries. The facility of counter- 
feiting in this case is certainly greater than in the former, 
particularly if the examination be not made within eight or 
ten days. Attention should be given to the following circum- 
stances : The mystery (if any) that has been affected respect- 
ing the situation of the female—her age, and particularly 
whether she has been previously barren; and the condition of 
the husband, whether aged or decrepid. All these would be 
corroborating evidence against the actual occurrence of de- 
livery. 
3. Where the female has been actually delivered, and substi- 
tutes 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. Zacchias and Mahonj lay considerable stress on 
* 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 appeared 
that the adoption of this child was calculated to deprive some heir-at-law7 of an es- 
tate, 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 practices.” 
(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. 216 
DELIVERY. 
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 
former may have been enlarged from causes independent of 
actual pregnancy. 
The appearances that are considered to indicate delivery, 
are the following:—“ The uterus being found like a large flat- 
tened pouch, from nine to twelve inches long. Its cavity 
contains coagula or a bloody fluid, and its surface is covered 
by the remains of a decidua.* Often the marks of the at- 
tachment 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 sur- 
face being cleaned, the sound substance of the womb is seen, 
and the vessels are observed to be extremely large and nu- 
merous. 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 unimpreg- 
nated 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 in- 
testines have not yet assumed the same order as usual, but 
the distended caecum is often more prominent than the rest. 
* 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 ge- 
nerated spontaneously by the inner membrane lining the uterus. (Blundell’s Lec- 
tures, Lancet, N. S. vol. 4, p. 5<7. Ashwell on Parturition, p. 119.) DELIVERY. 
217 
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 de- 
gree as in the virgin state.”* 
* Bum’s 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, w hen 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. 
In a uterus at the sixth month, examined by Dr. J. B. S. Jackson, 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. The cord was eleven 
and a half inches long. The child, a female, measured eleven and a halfinches—with 
fine down on the head, but the nails not formed. (Boston Med. Mag. vol 3, p. 580.) 
Dr. Donald Munro (Edinburgh Physical and Literary Essays, vol. 1, p. 459,) ex- 
amined the uterus of a female six months advanced. 
Dr. Robert Lee, (Medico-Chirurgical Transactions, vol. 17,) of one two months 
advanced. It 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 antero-posterior dia- 
meter. 
John Hunter, (Trans. Soc. promoting Medical and Chirurgical Knowledge, vol. 2, 
p. 66,) 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, natural, but the body 
near the fundus a little enlarged. Nothing like an embryo could be detected. 
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, 1J to 2 ounces. 
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 Zoological 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.) The uterine nerves have also been noticed by Tiedemann, Chaussier and Dr. 
Wm. Hunter, to become larger during gestation. (London Med. Rep. vol. 21, p. 167.) 
(Velpeau’s Midwifery, p. 61. Edin. Med. and Surg. Journal, v. 39, p. 210.) 218 
DELIVERY. 
To these it has been customary to add, with great confi- 
dence, 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, ex- 
cept 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. They gradually fade and 
wither: but there is no regularity as to the time of their dis- 
appearance.* 
* Burns, Denman. In the article on the Signs of Pregnancy and Delivery, by Dr. 
Montgomery, (Cyclopedia Practical Medicine,) he 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 preg- 
nancy, except the woman should happen at the time of her death to be labouring un- 
der inflammation of the uterine system.1' In a case of death five weeks after de- 
livery, it was diminished about one half in size, wras closer in its texture, and its co- 
lour 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. DELIVERY. 
219 
From the experiments of De Graaf and Haighton,* it seem- 
ed to be decidedly established, that their existence was a cer- 
tain indication of previous impregnation; and such was the 
general belief of the profession. The causes of a more mi- 
nute investigation on this point, and of the invalidity of this 
proof, will be best understood by the introduction of an im- 
portant 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 
residing 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 poisoqed. The medical ex- 
aminers also found the uterine organs in such a state, as to 
lead them to declare, that in their opinion the deceased had 
been delivered, a short time before her death, of a foetus, 
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. Whe- 
ther she had been delivered of a child recently before 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 obser- 
ved to hold fast with her hands to the end of a sofa, on which 
she sat. These pains continued during the whole of Wednes- 
day 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 
* Philosophical Transactions, vol. 87, p. 159. 
f Mr. Angus was indicted on two counts—1. For poisoning Miss Burns; and 2. For 
administering poison (oil of savinc) in order to procure an abortion. 220 
DELIVERY. 
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 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 
enlarged, as to be capable of containing nearly a quart of fluid. 
Before it was removed from the body, Mr. Hay, the sur- 
geon, placed his left hand upon the fundus uteri, and intro- 
duced 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 internal 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 diame- 
ter. This space was rough and rugged, and a small fragment 
of what appeared to be the placenta, 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 inter- 
nal surface was smooth. The walls of the uterus were about 
half an inch in thickness. There was no coagulum in it. 
The os uteri remained in so dilated a state, that the four fin- 
gers of a hand drawn together in the form of a cone, would 
pass through without in the slightest degree distending it. 
Vigina ipsa admodum dilatata. Labia (jus fuerunt livida, el 
undique sanguine fasdata. 
The medical witnesses for the crown, (Drs. Gerard, Rutter 
and Bostock, and Mr. Hay,) considered these appearances as 
conclusive in favor of her recent delivery; and they remark, 
that the enlargement of the uterine vessels within the bound- DELIVERY. 
221 
aries of the placental mark, and the mark itself, were to them 
decisive—that mere enlargement of the cavity of the uterus, 
and dilatation of the os uteri, and even haemorrhage might 
have been occasioned 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 uterine vessels within that mark. 
On the trial, however, Dr. Carson of Liverpool, being ex- 
amined as a witness, objected to the above conclusions, for 
several reasons. 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 opi- 
nion, the testimony of Sir Charles M. Clarke, lecturer on mid- 
wifery 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 con- 
tracted, 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 foetus, might be 
explained, on the supposition that dropsy of the hydatids was 
the disease under which Miss Burns labored. These hyda- 
tids, he observed, are attached by pediculi to the internal sur- 
face 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. 222 
DELIVERY. 
I will add, that Dr. Baillie never saw an example of hydatids 
of the uterus;* and Dr. Denman, although he admits their 
occasional 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 extraordina- 
ry productions. “ I have seen,” says he, “ a placenta in the 
fourth month, all degenerating 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 placenta, but they may be in 
other parts of the uterus. Sometimes 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 was with child, be- 
cause they most commonly attend the placenta. I have seen 
pails full of hydatids come away from the uterus with pains, 
the placenta and foetus being thus converted.” 
There is little doubt, but that hydatids generally hang to- 
gether like a bunch of currants, and are united by a common 
peduncle or footstalk. Should, however, the reverse be con- 
sidered probable, 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 diameter. Three cases are related by Dr. Bos- 
tock, to whom they were communicated by Mr. Kendrick, 
surgeon at Warrington, of the disease under consideration, 
and in each of them, the medium 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 endeavored to prove, 
by a reference to the best authorities, that there is no case 
on record, where hydatids of the uterus have been formed 
independent of sexual connexion ;f and again, should there be 
such a case, were the parietes of the uterus increased, or the 
os uteri enlarged, as in this instance ? 
The difference of opinion that was thus expressed by the 
[_ * Morbid Anatomy, 3d ed. p. 376. 
t Page, 189. DELIVERY. 
223 
medical witnesses, not only on this question, whether Miss 
Burns had been recently delivered, but also on the main ac- 
cusation 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 re- 
lates 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 exa- 
mined. They were then divided in the presence of a number 
of physicians, and a corpus luteum distinctly perceived in one 
of them. Mr. Hay took the uterus and its appendages to 
London, and shewed 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 stating that it exhibited appearances that could 
alone be explained on the idea of an advanced state of preg- 
nancy. 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 
investigated the subject, and appears to have shown that the 
corpora lutea may be present without impregnation. He 
examined the ovaria of several women who had died virgins, 
* The facts from which the above case has been prepared, are drawn from a review 
of the trial of Mr. Angus, and the pamphlets to which it gave rise, in the Edinburgh 
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 attributed 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 Jour- 
nal, 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. 224 
DELIVERY. 
and in whom the hymen was too perfect to admit of the pos- 
sibility of impregnation; and found that there were not only 
distinct corporea 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 produce corpora lutea; and this is strength- 
ened by the corpora lutea having been found in the female 
quadruped, after a state of periodical lasciviousness, wffiere no 
copulation had taken place.* 
Dr. Blundell, in his experiments and observations, supports 
this opinion. He 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 constitute 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 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 seven- 
teen, wrho died of chorea, and in whom the hymen, which 
nearly closed the entrance of the vagina, was unbroken, there 
were no less than four corpora lutea; the largest, however, 
was 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 surface of the 
ovary, may be looked upon, in the present state of our know- 
ledge, 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.”! 
* 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. (Bostock’s Physiology, vol. 3, 
p. 29. Elliotson’s Blumenbach, p. 468.) 
f 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 instances, 
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 foetuses. (Lec- 
tures, Ibid. vol. 3, p. 258.) DELIVERY. 
225 
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 produc- 
tion 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,) de- 
cidedly controverts the observations and experiments both of 
Dr. Blundell and Mr. Stanley. 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 
before the Royal Society, that “ no corpora lutea exist in 
virgin animals; and that whenever they are found, they fur- 
nish incontestible proof that impregnation either does exist, or 
has preceded.” He adds, that he has seen several of these 
virgin lutea, as they are unhappily called, and has preserved 
several specimens of them. They differ, according to him, 
from those of impregnation, in 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 of them in both ovaries, especially in patients 
who have died of tubercular diseases. 4. They are not vas- 
cular, and cannot be injected. 5. Their texture is feeble — 
never presenting the soft and glandular appearance so charac- 
teristic of the real: And 6. They have neither the central ca- 
vity, nor the radiated cicatrix which results from its closure.! 
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 mere- 
ly. (Chapman’s Journal, N. S. vol. 5, p. 256.) 
* 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 tine® 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.) 
t Cyclopedia of Practical Medicine, ut antea. It is evident that the common opinion 226 
DELIVERY. 
It is hardly necessary to add, that Dr. Montgomery is a 
firm believer in the presence of a true corpus luteum being the 
product of conception only.* 
I have endeavoured, in several parts of this chapter, to in- 
culcate the idea, that medical examiners should, in disputed 
cases, limit their opinion to the fact, whether evidences of con- 
ception are present or not. The law is so constituted, that 
nothing further is required of them on this point. Jin infant 
must he found, in order 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 
foetus or not. The following case is calculated to enforce the 
necessity of confining our opinion to this fact. 
Mrs. Cunningham, aged twenty-four, and the mother of 
three children, considered herself nearly four months advan- 
ced in pregnancy, when the rudeness of a licentious person 
required her to make a violent exertion. On the succeeding 
day, she perceived 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 diminish- 
ing) for^three days. All this time, she suffered no pain, nor 
was she prevented from managing her domestic affairs. There 
was a slight tenderness of the abdomen only. At the con- 
clusion of the time last mentioned, she was seized with pains 
resembling those of parturition, and accompanied with a pro- 
fuse haemorrhage. Mr. Lemon, a surgeon, was called, and 
on examining per vaginam, he found the os uteri dilated to the 
is incorrect, that the number of children which a female has had, can be ascertained 
by the number of corpora lutea in the ovary. 
* 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 preparation 
taken from the body of a child, which he, in company with Dr. John Scott, dissected 
at Pierceshill Barracks. The subject w7as 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 unimpreg- 
nated female.” Dunlop. 
is thus dismissed by Dr. Montgomery: “ 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.” DELIVERY. 
227 
extent of half a crown, and a bag protruding through it. A 
fleshy cake, three inches in diameter, possessing every cha- 
racter 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 vis- 
cera of a very young foetus. But the expansion of the pla- 
centa rendered the nature of the appearance evident. Its 
whole surface was covered with tumours. There were about 
twenty-two distinct, besides many inconsiderable ones, of va- 
rious size, shape and colour, and some in clusters, all seem- 
ingly 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 appe- 
tite, enlargement of the breasts, prominent firmness of the 
abdomen, and a cessation of the menses. She had not, how- 
ever, felt any actual motion. 
Mr. Lemon remarks, that if this female had died from 
haemorrhage, and her death been made a subject of legal in- 
vestigation, the womb would probably have exhibited all the 
proofs of impregnation. Even the placental mark would have 
been present, and yet no foetus, 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 impregna- 
tion. The whole catalogue of symptoms tends to prove it, and 
the only circumstance against it, is the absence of a foetus 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 228 
DELIVERY. 
a mass like the present.”* 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, how- 
ever, some exceptions. Delivery is undoubtedly to a certain 
degree independent of the will, and there may hence be cer- 
tain situations 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 Coun- 
tess 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 relations had suborned individuals 
to remove it, in order to deprive her of the pecuniary advan- 
tages of her situation.! There is also a class of diseases com- 
monly called comatose, and accompanied either with or with- 
out fever, during the operation of which, delivery may take 
place without the female’s knowledge. Hippocrates mentions 
a case, in a woman eight months advanced, who, on the fifth 
day of a typhoid fever, accompanied with coma, fell into la- 
bour, and was delivered without being conscious of it. I will 
only add to these, the account given by Dr. Hoyer, of Mul- 
hausen, of a female dying in labour, who was put on the bier 
for interment, and while there, an infant was suddenly born4 
* Edinburgh Medical and Surgical Journal, vol. 11, p. 96. “ Case in which a mass, 
resembling a placenta without a foetus, was discharged fiom the womb. By M. Le- 
mon, member of the Royal College of Surgeons, London.” With observations by 
the editor. 
f 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. 
$ Ibid. p. 11. Mr. Shaw, in his Essay on partial paralysis, quotes the following 
case from Dr. Cheyne's Essay on Apoplexy. “ A w oman was attacked with apo- 
plexy, aud 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 
foetus 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 occuring 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. DELIVERY. 
229 
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 credi- 
ble 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.f 
2. Can a woman, if alone and without assistance, prevent 
her child from perishing after delivery ? This is a most im- 
portant question, and deserves our serious consideration, from 
its bearing on the subject of infanticide. 
There are undoubtedly many cases, in which an unassisted 
female will be unable to prevent the death of her infant. 
Among these, may be mentioned, very rapid and early deli- 
very. Instances of this nature occur to all accoucheurs, and 
Foder6 relates of his own wife, that a single pain brought 
* “ While lecturing on the subject of concealment of pregnancy, in the winter of 
1823-24, I received the following extraordinary case, from my friend, Mr. M’Intosh. 
41 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 par- 
ticularly. 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 
f mentioned, but the lady scouted the idea. I warned her to get baby linen and dress- 
es 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 membranes protruding, and I 
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 ac- 
tual 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 Novem- 
ber, 1823.’ ” Dunlop. 
t FoderS, 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. 230 
DELIVERY. 
forth the child. Such is the conformation of the pelvis, and 
so powerful the action 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 uncommon in a first delivery,! and 
this is the one that commonly is considered in cases of infan- 
ticide. If a woman has, in a previous labour, experienced so 
rapid a parturition, it is her duty to guard against its conse- 
quences, when a second is impending. Another possible cir- 
cumstance is, that a woman may be taken in labour and 
delivered while passing her fasces. The pressure of the uterus 
in the latter days of pregnancy, produces an inclination of this 
kind, and even during labour it is very common.! But deli- 
* 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. Hunter, 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 lollowing 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 struggling 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 preg- 
nant.” Dunlop. 
f Mahon, vol. 2, p. 381. 
• 
11 apprehend that it is as frequent with cases of this description, to furnish matter 
for keen discussion as to the guilt or innocence of the female, as with any that I have 
mentioned. An anonymous correspondent of the London Medical and Physical Jour- 
nal, (vol. 8, p. 448,) mentions the instance of a lady, who being attacked with diar- 
rhoea towards the close of pregnancy, was one day seized on the night stool with a 
labour pain, arid 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. 10, p. 454.) But is it not possible 
for a similar case to happen with a first child ? If so, it must have its full weight in 
cases of infanticide. 231 
DELIVERY. 
very 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 
convulsions, 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 delivered with it downwards. In this position 
it cannot breathe, unless it be turned ; and it is well known, 
that the slightest substances impeding respiration in a new- 
born infant, such indeed as a portion of the bed clothes, or a 
piece of wet linen, will destroy it. 
There are also some infants so weak at birth, that they re- 
quire 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.f 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 it, 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 dis- 
Dr. Davis gives us the following narrative : 
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 parturient effort took place, and the child was sud- 
denly expelled. It fell and was swallowed up by the filth below. “Circumstances 
immediately transpired, which led to the arrest of the unhappy young woman, and 
she was sent 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 always 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 incom- 
petent and criminally ignorant evidence, the unfortunate prisoner was found guilty of 
the crime of infanticide and executed.’’ (Davis’ Obstetric Medicine, p. 24.) 
* Mahon, vol. 2. p. 383. f Smith, p. 370. 232 
DELIVERY. 
trustful, if she denies 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 loosing 
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 he in labour, and 
that it is her duty never to he 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 dis- 
honour are predominant passions. And it is a question of 
* 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 vio- 
lence, 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, w'ho 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 w'as the affair of an instant. On examining the child no trace of contusion 
could be found, but the umbilical cord w:as broken at about four inches from the ring, 
and the end drawn out to a point. (Quarterly Journal of Foreign Medicine and Sur- 
gery, vol. 5, p. 634.) 
t Fodere, 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 per- 
sons 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 ease of A. Macdougal, 1823, it appeared that she 
was sleeping in 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 la- 
bouring classes as to form a point worthy of knowledge in criminal jurisprudence.” 
(Alison’s Principles of Criminal Law of Scotland, p. 161.) DELIVERY. 
233 
moment, whether we should feel that sympathy for this sense 
of shame, which some authors, 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 mis- 
taken 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 dis- 
puted 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 under- 
standing its phenomena is clearly manifested. The arrange- 
ment proposed, 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 suc- 
cession to an inheritance is questioned; or in criminal ones, as 
when a pregnant woman is maltreated, and her offspring is 
supposed to have died from the injury.! It is, however, of the 
* Percival's Medical Ethics, p. 84. 
t On this question, see Fodere, vol. 2, p. 25; Capuron, p. 13lf Smith, p. 365 to 
377; Mahon, vol. 3, p. 381, &c. Cases of sudden delivery are noticed by most obste- 
trical writers, and in many periodicals. I vt ill 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 the 
Medico-Chirnrgical 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. 
t As in the following case given by Dr. Kennedy, (p. 2C8.) 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 
«11 the reputed proofs of the child’s death as being present. When, however, the 234 
DELIVERY. 
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 foetus is inferred, from 
the good health of the mother; the progressive increase of the 
abdomen in size, and the motion of the foetus being experienced. 
These form strong presumptive evidence, but there are ex- 
ceptions 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 re- 
specting the motion of the foetus, are sufficient to render it 
very uncertain. 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 de- 
livery. 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 prac- 
ticable to ascertain these last, the pulsation at the anterior 
fontanelle — and the swelling, tension, and elasticity of the 
presenting part, together form an incontestible chain of evi- 
dence in favour of its presence. Separately, however, they 
are susceptible of doubt. The two first are uncertain; it may 
be impracticable to ascertain 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 
stethoscope was applied, the foetal 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. 
* It can, of course, only be ascertained when there is a natural presentation, and 
hence is not always applicable. DELIVERY. 
235 
that may have induced it. As to the mother, these are nu- 
merous. The unhealthiness of her habitation; the mode of 
dress; the want of food, or improper use of it; violent exer- 
cise ; too great labour; violent passions of the mind, either 
of the exciting or depressing kind; venereal excess; intem- 
perance; diseases, such as haemorrhage or convulsions; con- 
tagious disorders, such as syphilis or smallpox; falls, wounds, 
and accidents generally ; any inordinate evacuation — and 
indeed all the causes of abortion, as enumerated by authors, 
may have produced the death of the infant. 
The child may also be destroyed during labour, from that 
process being long protracted; from its being so difficult as to 
require 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 headach and nausea. As equivocal signs, 
may be added, a paleness 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 pre- 
cede labour. The breasts also do not enlarge in some until 
advanced pregnancy, and of course we cannot draw an infe- 
rence 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 236 
DELIVERY. 
indeed often has mistaken, action of the abdominal muscles, 
spasm of the uterus, and even hysteria, for it.# 
Again, the foetus may die, and be retained in the uterus, 
without exciting any general or local disturbance. The health 
will be good, and there is nothing on which to found a suspi- 
cion, except the suspension of the ordinary proofs of progres- 
sive pregnancy.f 
Under such circumstances, the importance of auscultation 
in proving the life of the foetus, is strikingly shown. If we 
can detect by it a distinct foetal heart, with or without the 
placental sound, there can be no doubt. It is to be regretted 
that the reverse is not so certain. It requires familiarity with 
the stethoscope, 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 practically with auscultation have pre- 
dicted 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 foetus is dead; but it is described to be more abrupt, 
of a shorter continuance, wanting its protracted terminating 
whiz, and generally confined to a circumscribed spot. 
If actually dead, and long detained in the uterus, putrefac- 
tion takes place; the membranes lose their vitality, and black- 
ish foetid discharges shortly occur. This is also a rule, subject 
to exceptions. We have seen, when noticing the subject of 
superfoetation, 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 foetus.J 
The signs during the progress of delivery, of the death of the 
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 
* Kennedy, p. 210. 
f Ramsbotham. (Medico-Chirurgical Review, vol. 21, p. 309.) 
| The length of time daring which a dead foetus may be retained in ntero, 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.) DELIVERY. 
237 
the foetus is dead, it has an (Edematous or emphysematous 
feel; the skin is soft, and easily torn; and the bones of the 
craniumjose their natural connexion, and vacillate on one an- 
other. The umbilical cord also, if it can be examined, is found 
without pulsation, 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 portends 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 gangrenous, and was amputated. 
Notwithstanding this, the infant was born alive three days 
after.f 
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 fakes, desquama- 
ting, as from dead bodies in the lecture room. This is very 
* “ 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 lime, 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 presentalion.” (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 foetus 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. 238 
DELIVERY. 
strong presumptive proof of death, although even not demon- 
strative, for cases have been related, and among the rest, one 
by Dr. Orme, in which the cuticle had separated, in conse- 
quence of cutaneous disease, and the child was notwithstand- 
ing 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 
hones of the cranium being detached from each other, and float- 
ing., as it were, in the mollified brain. Let it be recollected, 
that mere displacement and solution of union, is insufficient. 
They must be detached and afloat. Thirdly, the umbilical 
cord (if it can be felt) cold, brown, flaccid, and destitute of 
pulsation for half an hour or an hour. This last, discrimi- 
nates 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 enumerated, 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 red- 
ness of the presenting part will be observed. Ecchymosis 
sometimes occurs, owing to a rupture of the vessels, and an 
effusion of blood into the adjacent 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.f 
r 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 ea- 
sily 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 
* Blundell’s Lectures on Midwifery, Lancet N. S. vol. 2, p. 161. 
t See Dr. Kennedy’s Work, p. 242 to 258. DELIVERY. 
239 
hue. The umbilical cord is livid, soft, and easily torn. The 
cranium and thorax are flattened, and the membranes uniting 
the bones of the head are much 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 con- 
tained in this section, that the fact of the death of the foetus 
before or during delivery, can be ascertained with considera- 
ble 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 enu- 
merated, are inapplicable or inconclusive, and a further inves- 
tigation 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 
noticed in the preceding section. The medical examiner, in 
all cases, should be well acquainted with the indications that 
mark the various epochs of foetal life, as well as those which 
prove its arrival at maturity. A sketch, therefore, of the 
gradual development of the foetus, from the sera of its first 
formation, will be proper in this place. And I will premise, 
that the following summary is drawn from the observations of 
Aristotle, Hippocrates, Riolan, Haller, Roederer, Meckel, 
Burton, Baudelocque, William Hunter, Burns, Chaussier, Be- 
dard, Capuron, Clarke, Merriman, Soemmering and Tiede- 
mann. There are some recent authorities, which I regret 
that I have not been able to examine; and I would also re- 
mark, that in many cases, the observations are to be taken as 
means deduced from extremes, and they are, therefore, liable 
to some variation.! 
* The authorities on this section, which deserve attention, are, Denman, p. 391 to 
399; Capuron, p. 234, &,c.; Hutchinson, p. 17; Foderg, 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 deve- 240 
DELIVERY. 
From the time of the first evidence of impregnation to the 
fifteenth day, the product of conception appears only as a ge- 
latinous, semi-transparent, flocculent mass, of a greyish colour, 
liquefying promptly, and presenting no distinct formation, 
even by the aid of the 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, accord- 
ing to Burton; 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 lineaments 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.! All the parts are per- 
lopmcnt of the human embryo, in the first three weeks after conception.” (See Medi- 
co Chir. Review, vol. 8, p. 575.) 
* 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 pos- 
sibility 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 expe- 
rience goes, at which the ovum can be discerned. 
I cannot omit in this place referring to a very curious case, in which the appearan- 
ces of an apparently impregnated uterus, with its appendages, were examined imme- 
diately after the first coition. The female poisoned herself the next morning. The 
dissection is given by Dr. Bond, of Philadelphia. (American Jour. Med. Sciences, 
vol. 13, p. 403.) 
f As an illustration of the diversity to which I have referred, I quote the following 
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 di- 
mensions 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 observa- 
tions made by Autenrieth, Soemmering, Bichat, Pockels and Carus, and confirmed 
by his own observations. DELIVERY. 
241 
fectly distinct, and many points of ossification are observed in 
the head, trunk and members. Sometimes the male sex may 
be distinguished. At the third month, it is about three 
ounces in weight. (Dr. Hamilton, says, that at twelve weeks 
it is three inches long.) The nose and mouth are formed, 
and the features of the face become more distinct. The 
eyes are shut, and the eyelids adhere together—the head is 
longer and heavier than the rest of the body—the umbilical 
cord is formed—the genitals are distinct—the penis and clito- 
ris are relatively very large—the nymphae are projecting, and 
the labia very thick.* At the fourth month, the foetus is from 
five to six inches long, and weighs from four to five ounces. 
The external parts all develope themselves, with the excep- 
tion of the hair and nails. The great relative proportion of 
the fluid of the membranes disappears, and the foetus nearly 
fills the cavity of the uterus.f 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 murder 
of Sarah M. Cornell. “ The alleged date of the conception was the 30 th of August; 
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 probable 
Shat 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 foetus. 
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 fcetus 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 here quote from indi- 
vidual 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 “ 
Maygrier, 7 to 8 “ 8 “ 
Hamilton above 5 u 
Velpeau, 5 to 6 “ 
Gardien, 4 “ 
Burns, 5 << 
The last observes (James’ Barns, 1823, v. 1, p. 175,) that in the twelfth week, the 
fcetus weighs nearly two ounces, and measures, when stretched, about three inches. 242 
DELIVERY. 
motions of the foetus 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 fur- 
rows. The external ear is completed about this time, although 
its shape, which is like that of a gently depressed circle, dif- 
fers from the ear after birth.* 
In the sixth month, we begin to find some traces of fat un- 
der the integuments, where previously nothing but a mass of 
gelatine had been observed. The head also, which before had 
been proportionably large, becomes smaller in comparison of 
the body. It is now, however, large and soft, and the fonta- 
nelles 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. In males, the scrotum 
is slightly developed, and of a bright red colour ; and the tes- 
ticles are still in the abdomen. In females, the vulva is pro- 
jecting, and the labia separated by the protuberance of the 
clitoris. The hair on the head is very thinly dispersed, short, 
and of a white or silvery colour—the eyelids are closed ; the 
hair on the eyebrows and eyelashes but thinly scattered, and 
the pupil is closed by a membrane. The nails are wanting, 
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 Soemmer- 
ing, ten inches; while Dr. Burns and Dr. Hamilton do not allow that it is more than 
six or seven. (Supplement to Encyclopedia Brittanica, 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 edition, 
p. 93) Lecieux, however, whose opportunities for examination have been very ex- 
tensive, says, (p. 12,) “ D’Apres un grand nombre de recherches, dTobservations re- 
cueillies a l’Hospice de la Maternite, et comparges a celles que l’on trouve dans plu- 
siers gcrivains, on peut regarder les resultats suivans comme le terme moyen et le plus 
ordinaire de la grandeur des foetus depuis la fin du cinqueme mois jusqu’a la fin du 
neuvieme: 
Longueur. 
A 5 mois,......... 255 millimetres, ou 9| pouces. 
6 “ 325 “ “ 12 “ 
7 “ 380 “ “ 14 “ 
8 “ 440 “ “ 16 “ 
9 “ 488 “ “ 18 *•' DELIVERY. 
243 
or scarcely apparent. The lungs are very small, white, and 
compact. The heart is large, and the liver very large, and 
situated near the umbilicus—the gall bladder 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 extremity of 
the sternum.f 
At the seventh month, all the parts, both external and inter- 
nal, 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 eye- 
lids are no longer united, and the membrana pupillaris sepa- 
rates, so as to form the pupil.| The cerebral pulp becomes 
more consistent, and its surface is a little furrowed, and ad- 
heres 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 
* Eight or nine inehes and about one pound. (Burns. Hamilton.) The various quo- 
tations from Dr. Hamilton are copied from Blundell’s Midwifery. 
t In 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.) 
t There is considerable diversity of opinion concerning the constancy of this pha?,- 
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 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 
foetus, 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 obliterated, 
and then the membrane is absorbed. Professor Tiedemann i3 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,) 244 
DELIVERY. 
eleven and twelve inches. Hamilton.) The middle of the body 
is nearer to the sternum than to the navel. 
At the eight 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 co- 
vered with a transparent mucus. The grooves in the cerebral 
substances gradually become more marked ; and the spinal 
marrow, pons varolii, and medulla oblongata, acquire a re- 
markable 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 ; Gi'anville. From 
fourteen to fifteen inches ; Hamilton.) the middle of whick 
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 moveable, 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 numerons—the cineritious portions begin to be dis- 
tinguished by their colour ; and although the lobes which 
compose the cerebrum, retain their former softness, yet the 
cerebellum and the basis of the cerebrum, have acquired a re- 
markable consistence. The head measures longitudinally, 
from the forehead to the occiput, four inches to four inches 
and a quarter, and between the parietal proturberances, from 
three and a half to four inches. Of 60 male and 60 female 
infants, born at the full time, whose heads were measured by 
Dr. Clarke, the circumference passing through the occipital DELIVERY. 
245 
process and the middle of the brow, was on an average, 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 
contains 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.f 
The recent observations made by Tiedemann, Serres, and 
the Wenzels, on the brain of the foetus, may most convenient- 
ly be arranged together in this place. At the fourth week, 
the mass which corresponds to the head in the embryo, is quite 
transparent, 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, 
adhering to the inner surface of the skull. During the third 
month, the tubercula quadrigemina, the optic thalami and 
corpora striata 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 oli- 
varia do not protrude till between the sixth and seventh, but the 
corpora pyramidalia are fully formed a month sooner; and in 
both, the protrusion is owing to the development of cineritious 
matter. It is not till near the termination of pregnancy, that 
* Craigie’s Anatomy, p. 76. One measured 15 inches in circumference, and one, 
8.j inches from ear to ear; but none were under 12 inches in the one direction, or 6| 
inches in the other. 
t Hutchison, p. 6 to 14. Capuron, p. 165 to 173. Foderd, vol. 2, p. 149. Burns, 
p. 114 to 118. Maygrier (American edition) varies the length and weight somewhat; 
and I therefore add his numbers; 
At 2 months, weight 5 drachms,.... length 4 inches; 
3 months, 2g ounces, and .... 6 inches; 
4 months, 7 to G ounces, .... 8 inches; 
5 months, 1 pound, .... 10 inches; 
6 months, 2 pounds, .... 12 inches; 
7 months, 2 to 3 pounds, .... 14 inches; 
8 months, 4 pounds, .... 16 inches. 246 
DELIVERY. 
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 cere- 
brum weighed 683 grains, and the cerebellum 37; being in 
the proportion of to 1. At eight months, the respective 
numbers were, .... 4960, 4610, 350, or as to 1. 
At the full time,.... 6150, 5700, 450, or as 12| 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 con- 
ception, 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 
twro 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. These calculations wrere made from ob- 
servations on about fifty fmtuses, 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 
general, formed by three primitive points of ossification; the 
one anterior, which by its development, forms the body or 
solid part of the bone; and two lateral ones, which constitute 
the apophysarial masses, and which, uniting together with 
the former, constitute the annular structure. Besides these, 
each vertebra is completed by several secondary points of os- 
seous development. 
* Edinburgh Medical and Surgical Journal, vol. 19, p. 456; vol. 23, p. 81, &c. 
t Lawrence’s Lectures on Physiology, p. 170. See also Dr. Copeland's Notes te» 
Richerand’s Physiology, Appendix, p. 5G, “On the formation of the spinal marrow 
and brain.” DELIVERY. 
247 
“ At about the sixth month of intra-uterine life, two points of 
ossification are found in the second cervical vertebra, one si- 
tuated above the other. Towards the seventh month, the su- 
perior 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 lumber vertebrae. At the time of 
birth, ossification has commenced in the body of the first cer- 
vical 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 lines 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 those bones. The lateral 
arch of the second, which is the largest, forms a chord of se- 
ven or eight lines.”* 
The weight of the foetus at the full term of uterogestation, 
has been the subject of numerous observations, and as a pre- 
liminary remark, it must be noticed, that this differs according 
to the conformation and habits of the parent and the sex of 
the child. Healthy females residing in the country, or en- 
gaged in active occupations, have generally the largest child- 
ren. Male children also, generally 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 less than six pounds.! Dr. Hunter states that Dr. 
Macauley examined the bodies of several thousand new born 
and perfect children at the British Lying-in Hospital, and found 
that the weight of the smallest wras about four pounds, and 
the largest eleven pounds two ounces, but by far the greater 
* Hutchinson on Infanticide, pages 12, 13, 14. 
| Bose de Diagnosi vita; foetus et neogmiti, in Schlegel, vol. 3, p. 23. I have se- 
lected this as the most accurate account of Roederer’s observations, as there is a dis- 
crepancy among the writers that notice him. Fodere (vol. 2, p. 153) says the w’eiglit, 
according to his table, is from six to seven and a half pounds, and Hutchinson (p. 15) 
from five to six and a half. 248 
proportion was from five to eight pounds.* Dr. Joseph 
Clarke’s inquiries furnished similar results. The greatest pro- 
portion 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.f 
Dr. Clark, of Dublin, found the weight to vary from four to 
eleven pounds. Dr. Merriman states in his lectures, that he 
delivered 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 quar- 
ter: 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 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 de- 
DELIVERY. 
* 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 hy 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. 
t Hutchinson, p. 15. At a meeting of the Westminster Medical Society in London, 
held Dec. 1830, Mr. Jewell related a case, in which the weight of the child was twen- 
ty 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 16i lbs. avoirdupois. (London 
Med. Gazette, vol. 13, p. 551.) DELIVERY. 
249 
livered 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 common 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 
foetus, 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.f Capuron mentions 
that he has seen two instances where the children weighed 
twelve pounds.J 
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 ma- 
jority about ten pounds.§ In the Obstetrical Institution at 
Pavia, of 116 children born in two years, 14 pounds 6 ounces 
was the greatest weight, and 5 pounds the least. || In the 
Royal Lying-in Institution at Dresden, Professor Carus re- 
ports 225 children, born during 1827. The weight varied 
* Bandelocque’s Midwifery, vol. 1, p. 256. 
t Lecieux, Considerations sur L’Infanticide, p. 9,12. 
The following table, taken from Bums’ 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 2 to 2| 
164 3 to 3| 
396 4 to 4j 
1317 5 to 5| 
2799 6 to 6| 
1750 7 to 7f 
463 8 to 8| 
82 9 to 9J 
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, 
contains 9216 Paris grains, whilst the avoirdupois contains only 8532.5 Paris grains. 
The English inch is 1.065977 Paris inch.” 
t Capuron, p. 172. Cranzius says he had seen one foetus 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. 250 
DELIVERY. 
from 4h pounds to 101 pounds.* At the Lying-in Hospital at 
Moscow, in 44 cases of both sexes, Richter found the mean 
weight to be pounds: Minimum 5 pounds, and maximum 
11 pounds. At the Lying-in Hospital of St. Peter, in Brus- 
sels, (I presume,) Quetelet found the mean weight of 03 males 
born at the full time, to be 6 i pounds, (3-20 Killog,) and of 
56 females, to be 5}f pounds: Mean, 6r\ pounds. The maxi- 
mum in the male, was 9r3g pounds; in the female, pound: 
the minimum in the male, 4}f pounds; in the female, 2TY 
pounds.f 
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 de- 
cidedly agrees to this, as the result of his experience. He 
has met with two ascertained cases of fifteen pounds, and 
several which he believes to be of equal weight-! Dr. Wil- 
liam 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 foetus (born dead) weighed six- 
teen pounds and a half.§ 
The most correct deduction probably from these observa- 
tions, 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 Regis- 
ters at Paris, found that, out of 37,441 accouchemens, there 
had been 36,692 single births, 444 twins, and 5 triplets. The 
twins averaged four pounds each in weight, and the extremes 
are three and eight pounds.lf Respecting triplets, we have 
* Lancet, N. S. vol. 3, p. 648. 
t Annales D’Hygiene, vol. 10, p. 12-13. 
j Dewees’ Midwifery, 3d edition, p. 89. 
§ New-York Medical and Physical Journal, vol. 2, p. 20. 
|| “ There is a good deal of difference in the weight of the foetus, being, I believe, 
about seven pounds—some, especially if born prematurely, weigh much less, some 
much more.” (Blundell's Lectures, in Lancet, N. S. vol. 3, p. 133.) 
H 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 I see twins weigh fourteen pounds.” Notes of Prof. Hamilton’s (of Edinburgh) 
Lectures, in Lyall’s Gardner peerage case, Introduction, p. 28. DELIVERY. 
251 
not sufficient data, to form a general rule. Duges thinks that 
they have rarely less weight than twins. In a case that oc- 
curred to Dr. West, at Tiverton, Rhode-Island, the respective 
developments were as follows: 
Length. Weight. 
151 in. 4 lb. 3 oz. Navel in the centre. 
15f 3 8 Navel half an inch below centre. 
17 % 4 9 Navel half an inch below centre. 
They were all females.* 
Dr. Hull, of Manchester, met with a delivery of five chil- 
dren, 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.f 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 varied from 14? inches to 17£ inches.;}: Dr. 
Hubbard, of Glastonbury, 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 ac- 
count of triplets born alive, and all surviving until the sixth 
day, when one died. On the eighth day, another died; but 
the third did well. 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 Bos- 
ton, by Dr. Palmer—one child (a boy) weighed seven pounds, 
another (a girl) six pounds, a third (a lusus naturm) five pounds, 
the placenta two pounds; total twenty pounds.|| 
The length of the foetus at the full time, varies much less 
than its weight. Roederer concludes from his examinations, 
that the average length of a male is twenty inches and a third, 
while that of a female is nineteen inches and seventeen-eigh- 
* 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. 
j| Boston Medical Magazine, vol. 2, p. 328. 252 
DELIVERY. 
teenths.* Petit assigns twenty-one inches as the usual length. 
Hutchinson says, it is ordinarily from nineteen to twenty-two 
inches, and seventeen and twenty-six inches will include the 
two extremes, excepting some very rare cases; while Fodere 
and Capuron place the extremes from sixteen to twenty-three.f 
This last author attaches great importance to the difference 
in the proportion between the length of the superior and in- 
ferior parts of the body, and he conceives that attention to 
this, is one of the best modes of verifying the age of the foetus. 
As a general rule, there will be an equilibrium between the 
upper and lower parts of the body, at the ordinary 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 pre- 
ceding pages4 
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 
Pavia, from 21 inches and 3 lines, to 15 inches and 9 lines. 
At Dresden, from 20 to 16 \ inches. At Moscow, the mean 
length, ascertained by Richter, was 18\ Paris inches; maxi- 
mum 21, and minimum 15. At Brussels, the mean length of 
65 males, was 18 inches and 3 lines; of 56 females, 17 inches 
and 10 lines, (Quetelet.) 
Dr. Dewees once delivered a child, that measured 27 in- 
ches^ 
* There is some discrepancy in Roederer’s results. Dr. Craigie says, that he found 
the mean length of 16 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 ulnae Lipsicse pene superasse, hos ultimos autem a rusticis matribus progeni- 
tos fuisse.” 
t 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 
mother. The child was, in every respect, perfect, but still-born. The mother is 
likely to do well.” 253 
DEEIVERV. 
A reviewer in the Edinburgh Medical and Surgical Jour- 
nal states, that of 64 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 Fo- 
dere and Capuron: The ability to cry as soon as it reaches 
the atmospheric 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 fontanelles not far apart; the hair, eyebrows 
and nails perfectly developed; 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. 
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 traversed 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 sepa- 
rated; the eyelids, mouth and nostrils closed; when it sleeps 
* 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. 
I 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 prema- 
ture birth. 254 
DELIVERY. 
continually, and an artificial heat is necessary to preserve it; 
and when it discharges its urine and the meconium imper- 
fectly.* 
Should the examiner be called on to decide this question 
after the death of the child, it will be his duty, after noticing 
such external circumstances as I have already indicated, to 
proceed to a dissection of the body. All those appearances 
which mark the presence of foetal life, and which are distinct- 
ly explained in anatomical and obstetrical works, should be 
carefully noticed.f The navel, liver, heart, and particularly 
the lungs, should be examined; and the inquiry must be, whe- 
ther the changes necessary for independent life have taken 
place.| 
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 
property, to ascertain whether the infant is born alive. . In 
* I insert the following extract from an English newspaper, which I accidentally 
met with, because it favours us with some information from an eminently experienced 
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. Merriman was then called in, and examined as to the consequences of a premature 
birth on the offspring. He said he had known a child born in six months and eigh- 
teen days, live to grow up, but, never to become stout. A child bom under such cir- 
cumstances, 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’s Midwifery, p. 118 to 122. 
t 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.) DELIVERY. 
255 
this country the subject becomes very interesting, since our 
Jaw is borrowed 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 gestation after which children are considered 
capable of living; secondly, mention the laws of various coun- 
tries, and the decisions under them, as to what constitutes the 
life necessary for inheritance in the infant; and shall then 
conclude with some observations 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.f Dr. Rodman, 
of Paisley, relates the case of an infant surviving, where the 
mother was confident that the period of her gestation was less 
than nineteen weeks. She had previously been the mother of 
* 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 calen- 
dar 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 legitimus hccredibus, 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, inconsequence, 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 impossible. The de- 
cision was in favour of the nephew. 256 
DELIVERY. 
live children. In such cases, however, we should recollect 
that females are liable 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 gene- 
rally and very properly doubted.* 
The following are said 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 
completion of the sixth month, which to my surprise, was 
alive, and which lived nearly three days ; this is the longest 
period that ever I knew so early a foetus live. At the com- 
pletion of, or a few days after the seventh month, a child may 
and certainly often does, live to maturity. When I first be- 
gan practice, I supposed that no child could live to maturity, 
which weighed less than five pounds avoirdupois, but expe- 
rience has convinced me to the contrary ; and now I am con- 
fident that a child of four and a quarter pounds weight, may 
live to maturity. No child at the full period of pregnancy 
weighs less than five pounds avoirdupois, and the common 
weight of children at the full period is seven pounds.”f 
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.J 
* 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 pre- 
served by keeping him constantly in bed with the mother, or other females. The 
length and w eight just mentioned, are those, according to the statement made in for- 
mer pages, of an infant advanced between the sixth and seventh month; and although 
Dr. Rodman seems to question the accuracy of authors on this subject, yet the obser- 
vations 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. (Edinburgh Medical 
and Surgical Journal, vol. 11, p. 455; vol. 12, p. 126, 251.) 
t Lyall’s Gardner Peerage Case. Introduction, p. 28. 
J 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- DELIVERY. 
257 
An opinion, which appears to be as old as the days of Hip- 
pocrates, has occupied the attention of many writers, concer- 
nin 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 dis- 
position 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 approaches the natural term of ges- 
tation, the greater will be the probability of living. Dr. 
Samuel Merriman says that the observations made by Madame 
De La Marche, the celebrated midwife of the Hotel Dieu at 
Paris, convinced Mauriceau, that more than one half of those, 
who are horn at eight months will live, while of those horn 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 
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 Phy- 
sical 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 Journal, 
for November, 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. 
* Medico-Chirurgical Review, vol. 4, p. 739. Of this opinion are Capuron, p. 159; 
Pod erg, vol. 2, p. 168; Mahon, vol. 1, p. 157; Goelicke in Schlegel, vol. 5, p. 139; 
Orfila, vot. 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- 
dioo-Chirurgical Review, vol. 3, p. 320; New-England Journal, vol. 12, p. 52. 258 
DELIVERY. 
to succeed to property, it was necessary that it should he per- 
fectly alive, “sivivus perfecte natus est, etsivocem non emisit 
and the decision 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 ordinance 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 
he horn viable; and in order to receive by testament, it is suffi- 
cient to have been conceived at the time of the death of the testa- 
tor ; but neither donation or testament can have effect, unless 
the child be born viable4 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 
before us, is contained in the provisions concerning a tenant 
by the curtesy of England, as it is called. By this is under- 
stood, “ where a man marries a woman seised of an estate of 
inheritance, and has by her, issue born alive, which was capa- 
ble 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 no- 
tion that it must be heard to cry, but that is a mistake. Cry- 
ing indeed is the strongest evidence of its being born alive; 
* Chaussier, Viability, p. 3 t Capuron, p. 198. 
t Capuron, p. 9. 
§ “Enfin les jurisconsultes ont adopte l’opinion des medecins a cet egard, et ne font 
consister la vie ordinaire que dans la respiration compleet. 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 pro- 
perty be transmitted on such a life? I apprehend there can be no doubt of it, accor- 
ding 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-Saxsn Laws. DELIVERY. 
259 
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 perad- 
venture it may be born dumb. It must be proved that the is- 
sue 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 
motion, stirring, and the like.”! The cases to which both 
these authors refer, certainly prove the doctrines stated by 
them to be the law of Englandbut it is to be feared, that 
the broad principle thus laid down, may lead to practical in- 
justice. I cannot better illustrate my ideas on this point, than 
by stating the following case, which lately occurred in Eng- 
land. 
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 resigned her property to the legal heir. Some 
circumstances afterwards 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, (according to the 
testimony of two females, the nurse and the cook,) there twice 
* Blackstone, vol. 2, p. 127. 
f Coke Littleton, 30 a. 
\ Dyer’s Reports, p. 25. “ It was moved, that a man shall be tenant by the curte- 
sy, 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 was 
in the 28th of Henry VIII. The other case (Paine’s in 8th Coke's Reports) is instruc- 
tive, because it gives us the opinion of the old writers on this subject. Glanvill says 
that the husband inherits, “ ex uxore sua hcered’ habueiit filiam clamantem et audi- 
tum infra quatuor parietes.” And Bradon, “ Sive superst’ fuerit liberi sive mor- 
tui, dum tamen semel aut vocem aut clamorem dismiserint, quod audiatur inter qua- 
tuor 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 heered’ 
protestari partum vivum nasci et legitim’, et idea necesse et vocem,probate, et licet na- 
turaliter mutus nascitur et surdus, tamen clamorem emittere debet.” The court, how- 
ever, (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” 260 
DELIVERY. 
appeared a twitching and tremulous motion of the lips. Up- 
on 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 
happened, if the vital principle had been quite extinct; and 
that therefore the child was alive. Dr. Denman, on the con- 
trary, gave it as his opinion, that the child was not alive. He 
considered that the motion of the lips did not f>rove the pre- 
sence 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 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 
contrary to what is correct in physiology, on the opinions of 
men incompetent to guide on this subject. In the instance be- 
fore us, indeed, they were justified in their verdict by the tes- 
timony 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 convul- 
sive motions merely show that the muscular fibre has not yet 
lost its contractility. Still-born infants, or those who die in- 
stantly 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 contracted 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 Virgin, 
which was built on high ground. The cold air of the place 
produced such an excitement, that they appeared to raise 
*Fodere, vol. 2, p. 160; Smith p. 383. 
flam 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, “mustbe regarded simply as an evidence, that the parts have previously 
and recently formed part of a living system.” (Human Physiology, vol. 1, p. 317.} DELIVERY. 
261 
their eyelids for an instant, and that instant was improved to 
administer the rite of baptism.* Chaussier also examined the 
bodies 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 ob- 
served, and indeed a slight respiration. He ascertained by 
dissection, that not one of them had lived after birth, and con- 
cluded, 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 fcetal life—resembling, in many respects, 
the appearances observed on the body of an animal recently 
decapitated.f 
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, 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 men- 
tioned 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.j: 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 
*Foderg, 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 common 
sense, must be held to constitute vitality; and no practical good can result from nice 
metaphysical distinctions between foetal and extra-uterine life, when the child is fairly 
in the open air.” Dunlop. 
t Capuron, p. 198. 
t “ 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.) 262 
DELIVERY. 
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 whether the child was ripe or not.” A case, in 
conformity to this doctrine, was decided as late as 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 convul- 
sions about half an hour after its birth, hut 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 is a continental case: “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 
* Chaussier, Memoire medico-legale sur la viability de 1’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, although it evidently 
was not naturally so ? Our author justly decides in the affirmat ive. It is manifest that 
any discussions beyond that of the proof of the existence 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 adjustment 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.) 
t See a Note to Dyer’s Reports, 25, by the Editor John Vaillant, A. M. &c. DELIVERY. 
263 
cassarean operation, 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 witness of the operation, 
along with the surgeon 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 charac- 
ters 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 circum- 
stance, that on cutting the umbilical cord, blood sprung out, 
and that pulsations were felt in the cord, the carotid arteries, 
and the region of the heart; by the circumstance, that on 
pouring water on the child’s head in administering baptism to 
it, there resulted a motion of the lips and mouth, and an im- 
pression 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 de- 
ceased opposed the husband in his claims; and during the 
procedure dependent before the Senate of Turin, some distin- 
guished members of the medical faculty of that city proposed 
the following 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 real- 
ly 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? 
The faculty named a commission, composed of Professors 
Lauth, Lobstein, Flamant, Tourdes and Fodere; and it was 
unanimously decided that the first question should be answered 
affirmatively, and the second negatively.”* 
* From a Critical Notice of “ Anthropogenese,” by J. B. Demangeon, M. D. Pari.?, 
1829, in Edinburgh Journal of Natural and Geographical Science, vol. 2, p. 198. • 264 
DELIVERY. 
The only American case relating to this point, that I can 
find, is that of Marsellis v. Thalhimer, which occurred in the 
chancery court of this State in 1830. The widow was deli- 
vered 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 
bora alive, until the contrary 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 argu- 
ments and legal enactments which I have already noticed, 
and the decision of the Chancellor (Walworth) was in confor- 
mity to this. “ I am satisfied,” says he, “ from the opinion 
of the physician examined before the surrogate, 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, 
belongs also to this place; and I shall illustrate the laws of 
different 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 caesarean 
operation. The father claimed to be its heir; and it was as- 
serted 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 me- 
* 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 England.” 
In this it was provided that the husband may enjoy the wife’s estate as tenant 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.) 
i cannot, however, find that the bill passed. DELIVERY. 
265 
chanical, and the 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 appears, however, that the court of Sancta Rosa 
at Rome, allowed an infant to inherit, who was delivered by 
the caesarean operation, 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 infant was extracted by the cassarean operation, which 
was baptised, 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 objected, that the infant was too immature, 
and consequently was not viable, and of course could not suc- 
ceed to property. The testimony of the witnesses was also 
impeached. The court, however, decided that the infant had 
lived, and refused to consider the question of its viability.! 
In England, a person cannot hold property as tenant by the 
curtesy, if the child has been delivered by the caesarean ope- 
ration. “ The issue must be born during the life of the mo- 
ther; for if the mother dies in labour, and the caesarean opera- 
tion is performed, the husband in this case, shall not be tenant 
by the curtesy: Because at the instant of the mother’s death, 
he was clearly 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 after- 
wards be taken from him.”§ “ One Reppes, of Northumber- 
land, took to wife an inheritrix, 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 
* Zacchias Consilium, No. 67. + Fodere, vol. 2, p. 164. 
f Fodere, vol. 2, p. 163. 
§ Blackstone, vol. 2, p. 128. See also Coke Littleton, 29 b. 266 
DELIVERY. 
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."* 
3. The consideration of the subject, how far deformity in- 
capacitates 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, mon- 
sters 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 performed 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 Feb- 
ruary, 1723, at Presburgh.f The case related by Sir Everard 
* 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 question was, which of three sons, all born at a birth, was the eldest, the decla- 
ration 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.” (Star- 
kie on Evidence, vol. 3, p. 1115.) 
f 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 Pis- 
cottie’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; vel. 23, p. 1416; 
vol. 25, p. 2345; vol. 32, p. 346; vol. 45, p. 526; v ol. 72, p. 44; vol. 79, p. 157. A 
very interesting account of a person in China, named Ake, is contained in Chapman’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, notw ithstanding, able to do the work of an husband- 
man. 
For references to numerous cases, see 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 Medi- 
cal 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. 1, 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 Medi- 
cal Gazette, vol. 5, p. 51. Lancet, N. S. vol. 12, p. 620.) DELIVERY. 
267 
Home, in the Philosophical Transactions, 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 in- 
verted 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 dissec- 
tion, 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, 
w'hich are born without a head, and are hence stiled acepha- 
lous. These live in the womb, but do not survive after birth, 
since the function of respiration cannot be performed. To 
this class also belong those which are destitute of lungs, of one 
or more organs of sense, &c.f 
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 
remarkable instances of this nature are those-in which the 
rudiments, or parts of a foetus have been discovered-! 
Case by Dr. Scoutetten, of Metz; one perfectly formed, and the other acephalous. 
They were both living a year after biith. This is a very curious case. (Medico- 
Chirurgieal 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. 
The Siamese Twins belong to this division. In November, 1833, two children were 
bom 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. Hastings 
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. 
1 The following are instances of this nature : A female named Amidee Rissieu in 
France, at whose death, at the age of fourteen, a foetus wTas 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 268 
DELIVERY. 
After this exposition of the condition in which monsters are 
generally born, we shall be enabled to apply the laws of va- 
rious 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 
inheriting. 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 malconformation is or- 
dinarily not discovered until after death. 
The English law is thus stated by Blackstone:—“A mon- 
ster 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 wdth 
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, es- 
teeming them the misfortune, rather than the fault of that pa- 
rent. But our law will not admit a birth of this kind to be 
by Dr. Phillips of Andover. (Ibid. vol. G, p. 124.)—In the London Medical Repository, 
(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 occur- 
ring in Austria in 1812. It is related by Prochasku. (London Medical Repository, 
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 Kentucky. 
A female child died in 1809, at the age of two years and nine months. A 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 Journal 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 ior a 
short time. Mr. Lawrence mentions one, which, although deficient in brain and cra- 
nium, 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. DELIVERY. 
269 
such an issue, as shall entitle the husband to be tenant by the 
curtesy, because it is not capable of inheriting.”* 
As there are instances in which the issue should be male, 
in order to inherit, it will be proper to repeat a caution alrea- 
dy given—not to mistake the enlarged state of the clitoris, 
which is very common at birth, for male organs. Fodere 
mentions instances where females have, in consequence of this, 
been inscribed in the baptismal registers as males; and in one 
case, the individual was called out under the conscription law.f 
As extra-uterine fcetuses have never been brought forth 
alive, there can, of course, no question arise concerning them.J 
* Blackstone, vol. 2, p. 246. 
t Fodere, vol. 2, p. 179. 
$ When I wrote this, I had not seen the cases mentioned in the New-England Jour- 
nal, vol. 8, p. 118 and 403; one by Dr. Delisle of Paris, and the other by Mr. King 
of South-Oarolina. 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 caesarean operation would guide 
here. CHAPTER VIIL 
INFANTICIDE. 
JOHN B. BECK, M. D. &c. of New-York. 
History of Infanticide as it “has prevailed in various nations, ancient and modem. — 
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 abortion.—Anatomical examination of the 
parts after death.— Hydatids and moles considered as occasioning all these signs.— 
Signs of foeticide deduced from an examination of the substance expelled from the 
female.—Modes in which foeticide is perpetrated.— Involuntary causes of abortion. 
Circumstantial evidence.—Murder of the child after it is bom alive.—Capability of 
its sustaining life after birth.—Proofs of its having been born alive.—Proofs drawn 
from the blood having circulated. — Difference of the blood of the foetus and the 
child after birth.—Peculiarities of the organs circulating the blood in the foetus—the 
foramen ovale—the ductus arteriosus—the ductus venosus—the umbilical vessels— 
the cord. —Difference in the distribution of the blood — in the lungs—. Ploucquet’s 
test—in the liver.—Ecchymosis.—Proofs drawn from the child’s having respired. 
Configuration and size of the thorax—volume of the lungs—relative situation of the 
lungs — shape of the lungs —colour of the lungs — density of the lungs — specific 
gravity of the lungs.— Hydrostatic test.—Consideration of objections to it.— Rules 
for examining the lungs.—State of the diaphragm—meconium—state of the bladder. 
General deductions.—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 infanticide. 
Cases and illustrations. — Prevention of infanticide—laws against it. — Foundling 
hospitals. — List of American and English cases. 
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 sup- 
posed 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 refinement 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 272 
INFANTICIDE. 
conduct, which irresistibly prove how perfectly arbitrary and 
undefined are the laws of justice and humanity, 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 an- 
cient 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 
history, and therefore that any positive prohibition of it was 
considered unnecessary. The penal code of the Jews is so 
very minute on the subject of murder in general—considers it 
so atrocious 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 legislator. This conclusion is further confirmed by 
the considerations, that barrenness was esteemed one of the 
greatest misfortunes 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 pe- 
riod, 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, wrho 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.H 
The nations surrounding the Jews appear to have been ad- 
* 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, re- 
proaches 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 Kings, xxiii. 10. 
§ 2 Chronicles, xxxiii 6. 2 Kings, xxi. 6. Hist. Lib. v. Cap. 5. INFANTICIDE. 
273 
dieted to the sacrifice of children. Of these, the Canaanites 
are described 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 Canaan/’* 
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 Pharoah 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, mentioned with honour by some of the writers of 
other countries. Strabo, in particular, speaks of them as an 
honorable exception to those nations who exercised the right 
of life and death over their infants.f 
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 Per- 
sian infants, of illustrious birth, to be interred alive, in honour 
of one of the deities of the country.^ 
In most of the Grecian states, infanticide was not merely 
permitted, but actually enforced by law. The Spartan law- 
giver expressly ordained, that every child that was born should 
be examined by the ancient men of the tribe; and that, if 
found weak or deformed, it should be thrown into a deep ca- 
vern at the foot of Mount Taygetus, called Apoihetae, “ con- 
cluding 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 constitution.Ӥ This practice was 
not, however, upheld merely by the sanction of law; it was 
defended by the ablest men of Greece. Aristotle, in his work 
on government, enjoins the exposure of children that are na- 
turally feeble and deformed, in order to prevent an excess of 
population. He adds, “ if this idea be repugnant to the cha- 
racter of the nation, fix at least the number of children in 
* Psalm cvi. 37, 38. 
t A History of Inventions and Discoveries, by John Beckmann. Translated by VV. 
Johnston, vol. 4, p. 435. 
t Beloe’s Herodotus, vol. 4, p. 37. 
§ Plutarch’s Lives, translated by Langhorne, vol 1, p. 142. 274 
INFANTICIDE. 
each family; and if the parents transgress the law, let it be 
ordained, that the mother shall destroy the fruit of her body 
before it shall have received the principles of life and sensa- 
tion/'* The mild Plato also justifies this practice. In his 
Republic, he directs that “ children born with any deformity, 
shall be removed and concealed in some obscure retreat.”! 
Of the existence of infanticide at Athens, we have the tes- 
timony 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 
imitate the other Grecian cities, who exposed their children at 
their birth. § 
Of all the nations of antiquity, the Romans were the 
most unrelenting 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 tes- 
timony to show that the right was commonly exercised. 
This barbarous prerogative was coeval with the existence oi 
Rome, and continued to triumph 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 neighbours, and to obtain 
their consent to their death.lf The law of the Twelve Ta- 
bles, enacted in the 301st year of Rome, sanctioned 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 fa- 
ther over the lives of his children, even after they had arrived 
to years of maturity. Sallust mentions an instance of the lat- 
ter. “Fuere tamen extra conjurationem complures, qui ad 
* 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 Justinian, 
Lib. 1, Tit. ix. p. 22. Cooper’s edition. Jus autem potestatis, quod in liberos habe- 
mus, proprium est civium Romanorum; nulli enim alii sunt homines, qui talem in li- 
beros habeant potestatem, qualem nos habemus. 
*[l Montesquieu’s Spirit of Laws, vol. 1, p. 104. Lond. 
** Cooper’s Justinian, p. 659. INFANTICIDE. 
275 
Catalinam initio profecti sunt: in his A. Fulvius, senatoris fi- 
lius; quern retractum ex itinere, parens jussit necari.”—Sal- 
lust, Cat. xxxix. 
The procuring of abortion, which can be considered no less 
than murder, was also notoriously prevalent among the Ro- 
mans. Juvenal thus speaks of that nefarious practice: 
Has tamen et partus subeunt discrimen et omnes 
Nutricis tolerant, fortuna urgente, labores 
Sed jacet aurato vix ulla puerpera lecto; 
Tantum artes hujus, tantum medicatnina 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 beginning of what would come to be a man, in 
his mother’s womb.”f Pliny, the Elder, himself defends the 
right of parents 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 her first ori- 
gin down to the time of Constantine the Great. During the 
days of her greatest political grandeur, it was carried to the 
highest excess; 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 har- 
dened cruelty. Christianity first opposed a barrier to the de- 
solations 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 en- 
ergies in arresting its progress. The Christian writers of that 
day are full on this point. Tertullian, in his Apology, ex- 
presses himself with heroic boldness on the subject: “How 
* “ 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.” 
f Octav. Minucii Felicis, ch. xxx. 27(» 
INFANTICIDE. 
many of you,” (addressing himself to the Roman people, and 
to the governors of cities and provinces,) “might I deserved- 
ly charge with infant murder; and not only so, but among 
the different kinds of death, for choosing some of 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 
advance; and there is no difference, whether you destroy a 
child in its formation, or after it is formed and delivered; for 
we Christians 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 dis- 
turbance.”* 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.f He 
also ordered a severe punishment to be inflicted on a cruel fa- 
ther. This was the first time that the authority of the go- 
vernment 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 im- 
mediately 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 em- 
perors Valentinian, Valens, and Gratian.| 
* Reeves’ Apologies, &c. vol. 2, p. 190. 
f Ant. Univ. Hist. vol. 15, p. 576. 
t Mr. Gibbon thus expresses himself in relation to this practice among the Romans: 
“ But the exposition of children was the prevailing and stubborn vice of antiquity; 
it was sometimes practised, often permitted, almost always practised with impuni- 
ty, 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 po- 
pular 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.) INFANTICIDE. 
277 
The Phenicians and Carthagehians were in the habit of sa- 
crificing 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 superstition and cruelty of these deluded people. It is 
related, that they attributed their defeat by Agathocles, 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 csede deos veniam, ac flagrantibus aris 
(Infandum dietu) 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 man- 
ners, mentions a contrary practice as one of the peculiarities 
distinguishing their character: “Numerum liberorum finire, 
aut quenquam ex agnatis necare, flagitium habetur.?;f 
Among the Visigoths, the murder of infants was a common 
crime. Chindaswinthus, one of their kings, in his laws, de- 
scribes 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 per- 
petrators of those crimes.J 
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 
exposure 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 con- 
trary, it appears rather to be encouraged, inasmuch as persons 
are employed by the police of the city to go through the dif- 
ferent streets every morning in carts, to pick up all the chil- 
* Ant. Univ. Hist. vol. 17, p. 257. 
f De Morib. Germ. xix. 
| On tlie history of the effects of religion upon mankind. By Rev. Edward Ryan. 
p. 110. 278 
INFANTICIDE. 
dren 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.”* 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 of the empire.f 
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 affec- 
tion 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 impos- 
sible to say. The general prevalence of the crime, however, 
is unquestionable; and recent travellers speak of it as still 
existing in all its horrid deformity. “At the beach of Amoy,” 
says Mr. Gutzlaff, “we were shocked at the spectacle of a 
pretty new-born babe, which shortly before had been killed. 
We asked some of the bystanders what this meant; they an- 
swered 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 perpe- 
trated 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 government, nor the 
moral sayings of their sages, have put a stop to this nefarious 
custom.Ӥ The same writer, in another work, makes the 
following statement: “Infanticide, of which the husbands are 
* Travels in China, &c. by John Barrow, esq., p. 113. (American edition.) 
t 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. 
§ Journal of Three Voyages along the Coast of China, in 1831, 1832 and 1833; with 
Notice? of Siam, Corea, and the Loo-Choo Islands. By Rev. Charles Guizlaff. Page 
142. (American edition.) INFANTICIDE. 
279 
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 chil- 
dren, he may extinguish life whenever he perceives or pre- 
tends that a prolongation of it would only aggravate the suf- 
ferings 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, the difference between the male and the 
female population is as ten to one.”f 
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, ac- 
cording to the lowest calculation, to 3000 annually; according 
to another computation, 30,000. § Females are almost the 
only victims. In defence of the practice, they urge the diffi- 
culty of rearing female children, the expense attending their 
education, and the small probability of their ever being mar- 
ried.|| 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 pro- 
* A Sketch of Chinese History, Ancient and Modern, &c. By Rev. Charles Gutz- 
laff. Vol. 1, p 46. (American edition,) 1834. 
f 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. 
§ Buchanan’s Researches in Asia, p. 49. Also Moor’s Hindu Infanticide, p. 63. 
|j 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.) 280 
INFANTICIDE. 
vinces. Mr. Duncan, governor of Bombay, Marquis Welles- 
ley, and Col. Walker, were the persons who took the lead in 
this affair, and whose energy and perseverance it was hoped 
and asserted had been crowned with complete success.* It is 
melancholy to be obliged to state, on the authority of a recent 
traveller, that the benevolent labours of these gentlemen were 
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 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 an v remonstrances 
of the British officers, is, ‘ Pay our daughters’ marriage por- 
tion, 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, in- 
fanticide was so common that it threatened the complete de- 
population of the island. It was found as a common practice, 
when the island was visited by Capt. Cook;! and just anterior 
to the introduction of Christianity, according to the most ac- 
curate estimates, at least two-thirds of the children born were 
destroyed.§ It appears to confined to no rank or 
class of the community, but to have been universally preva- 
lent. Mr. Ellis states, that he did “not recollect having met 
with a female in the island, during the whole period of his 
residence there, who had been a mother while idolatry pre- 
*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. 
f 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. 
; Cook’s Voyages, vol. 2, p. 72, 85. 
§ Turnbull’s Voyage round the World in 1800-2-3-4. Polynesian Researches, by 
William Ellis, vol. 1, p. 198. American edition. 281 
INFANTICIDE. 
vailed, who had not imbrued her hands in the blood of her off- 
spring.”* The effect which this practice had in diminishing 
the number of inhabitants, wras astonishing, and affords a strong 
fact in refutation of the doctrine which has been maintained 
by some, that the practice of destroying children has a direct 
tendency to augment population. In 1776, when Capt. 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 cal- 
culation they were 7000, but in the last they very little ex- 
ceeded 5000.”! If is not t0 be supposed that this enormous 
diminution of population is to be attributed solely to this cause; 
other causes have doubtless co-operated, particularly certain 
diseases which prevail to a great extent, such as fevers, dy- 
sentery, phthisis pulmonalis, and scrofula.§ All travellers, 
however, who have visited the island, concur in the opinion, 
that the effects of infanticide have been infinitely more inju- 
rious to the population than all the other causes combined. 
It is consoling to reflect, that through the exertions of Chris- 
tian philanthropy, this horrid and barbarous custom has been 
entirely abolished. 
In most of the South Sea Islands, the same practice has 
prevailed to an enormous extent, and has only been checked 
by the benign influence of Christianity. J| 
Among the Sandwich Islanders, however, there is reason to 
believe that it still exists in much of its native deformity. 
Sometimes they strangle their children, but more frequently 
bury 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 
* Polynesian Researches, vol. 1, p. 198. 
f Turnbull, vol. 3, p. 77. 
$ Ibid. vol. 3, p. 77-3. 
§ Edinburgh Medical and Surgical Journal, vol. 2, p. 284-90. 
(j 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. 282 
INFANTICIDE. 
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 children born, are here also sacri- 
ficed.* The principal cause assigned 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 mem- 
bers, operated as another powerful cause. 
Among the natives of the interior of Ceylon, the same in- 
human practice prevails. When a child is born, an astrologer 
is consulted to foretel its future fortune; if it should be un- 
happy, it is carried to the jungle and abandoned, where it is 
destroyed by cold, or devoured 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 “it has 
been observed, in the districts where this practice prevails, 
that more than one female child is rarely to be found in a fa- 
mily.”f The effect of this practice upon the relative propor- 
tion of male and female population, is very striking. According 
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 
1004 The only extenuation offered for this crime, is the ex- 
treme poverty of the people. Bishop Heber, in speaking of 
the prevalence 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 exclusive- 
ly mussulman.§ The difficulty of marrying their daughters, 
in a country where to live single is disgraceful, is one of the 
* Polynesian Researches, vol. 4, p. 240. Stewart’s Journal of a Residence in the 
Sandwich Islands, p. 185, 251. 
f Notes on the Medical Topography of the Interior of Ceylon. By Henry Marshall. 
Surgeon to the Forces, pp. 22, 33, 37. London, 1821. 
x Ibid. p. 33. 
§ Narrative of a Journey through the tipper Provinces of India, with Notes upon 
Ceylon, &c. &c. By the late Right Rev. Reginald Heber. Vol. 2, p. 127. Amer. ed 283 
INFANTICIDE. 
principal causes, according to Heber, of this unnatural cus- 
tom.* 
The natives of New-South-Wales resort to violent and un- 
natural compression of the body of the mother, in order to 
procure abortion. This process is called by them Mee-bra, 
and is resorted 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 unfrequently 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.f This practice 
is justified by them, upon the ground of the difficulty, and even 
impossibility of nursing and rearing a child under these cir- 
cumstances. 
Among the New-Zealanders, infanticide is asserted to be a 
common occurrence. When a girl is born, it is said the mo- 
ther 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 
Barrow describes a race of therq called Bojesmans, who de- 
stroy their offspring on various occasions: as “ when they 
are in want of food; when the father of a 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.”|| 
The Mahometans do not appear to attach any criminality 
to child-murder;1T on the contrary, the very sources of honour 
* “An astrologer is consulted on the birth of a female child; and if he pronounces 
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, without the 
consent of the mother.’' Ibid. vol. 2, p. 197. 
t 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. 
t The Library of Entertaining Knowledge, Neic-Zealanders, p. 387. Cruise’s 
Journal, p. 290. 
§ A Voyage to the Cape of Good Hope, &c. from the year 1772 to 1776, by Andrew 
Sparman, M. D. vol. 1, p. 257. 
|| An Account of a Journey in Africa, made in the years 1801 and 1802, to the resi- 
dence of the Booshuana Nation, &c. by John Barrow, Esq. p. 378-91. 
1T It *s 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,” 284 
INFANTICIDE. 
and authority among them are polluted by it. Even the pa- 
lace of the Sultan is constantly stained by the blood of infants. 
Thornton 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 accounts for the smallness of the number of child- 
ren belonging to the Bashaw of Tripoli, from the fact of his 
encouraging his wives to evade their accouchements.f A re- 
cent 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 ac- 
couchesses (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- 
ticed by Jewish and Turkish women; and it is worthy of re- 
mark, that the obstetric art forms a very small portion of 
their 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 pro- 
duce abortion by administration of drugs—a practice, avow- 
edly tolerated, and frequently resorted to, by Turkish females, 
both from their dislike to frequent pregnancy, and from com- 
mand of their lords, when their harem threatens to become 
too numerous.Ӥ 
In modern Egypt, nothing is more common than the procur- 
ing 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 
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. 
f Letters from the Mediterranean, by E. Blacquiere, Esq. vol. 1, p. 90. 
X Records of Travels in Turkey, Greece, &c. in the years 1829, 1830 and 1831, by 
Adolphus Slade, Esq. vol. 2, p. 162. American edition. 
§ Sketch of the State and Practice of Medicine at Constantinople, by C. Bryce. 
M. D. (Edin. Med. and Surg. Journal, vol. 35, p. 8, 9.) INFANTICIDE. 
285 
Arabian physicians, who for a great length of time, have fol- 
lowed this infamous trade. Infanticide is rarely made a sub- 
ject of criminal investigation. When a married woman de- 
stroys her new born infant, in order to bring her to punishment, 
two eye witnesses are necessary. 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 deny- 
ing 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 female slave.* 
Even in Iceland, we find traces of this inhuman crime. 
The custom appears to have been derived from their Norwe- 
gian ancestors, among wyhom it continued to prevail for near- 
ly one hundred years after it had been abolished in Iceland. 
It became extinct shortly after the introduction of Christiani- 
ty into the Island, which event took place at the end of the 
tenth century.f 
If we turn our attention from the old world, and direct it 
to 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 women 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 wi- 
dows and orphans; not to gratify a natural ferocity of dispo- 
sition, but merely on account of a supposed inability to pro- 
vide the means of support for the helpless orphan or the de- 
solate widow of another. By the exertions of the missiona- 
ries, the practice was arrested.§ 
* 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 Mcdecine Legale, vol. 10, p. 202-3. 
t Dr. Holland’s Preliminary Dissertation on the History and Literature of Iceland, 
in Sir G. Mackenzie’s Travels in the Island of Iceland, during the summer of the 
year 1810, Edinburgh 2d Ed. p. 39. 
t Ellis’ Voyage to Hudson’s Bay, p. 198. 
§ Barrow’s Account of a Journey in Africa in 1801 and 2. (Edinburgh Review, vol. 
8, p. 438.) 286 
INFANTICIDE. 
Nor were the savages of these inclement regions the only 
people who were guilty of this horrid crime. The gloomy 
superstition of the Mexicans delighted in human sacrifices, 
and the altars of their divinities were continually drenched 
with the blood of infants and of mcn.# The number of these 
sacrifices has doubtless been exaggerated, but the fact is un- 
questionable, 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 un- 
fortunate 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 
mildness of their manners, and the benevolent spirit of their 
religion,§ were nevertheless in the habit of sacrificing chil- 
dren. 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; 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 comparing the Peruvians and Mexicans, 
describes the former as exceeding the latter in the sacrificing 
of children; while the latter were chiefly addicted to the sa- 
crifice of men taken in battle, of whom they murdered an im- 
mense 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 
* Robertson’s History of America, vol. 3, p. 325. 
t History of California, by Miguel Venegas. London, 1759. Vol. 1, p. 82. 
t Journil d’un Voyage a L’Amsrique Septentrionale, par le P. De Charlevoix. A 
Paris, 1744. Vol. 3, p. 388. 
§ History of America, vol. 3, p. 335. INFANTICIDE. 
287 
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 of- 
fered 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 con- 
tinent, 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 ;f and of the Araucanians, a powerful 
nation of Chili, who permit fathers and husbands to kill their 
children and wives.! 
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 Indians who inhabited Pennsylvania and the neighbouring 
states, says, “ I have never heard of any nation or tribe of 
Indians who destroyed their children, when distorted or de- 
formed, whether they were born so, or come to be so after- 
To the same effect are the testimonies of Captain 
Franklin and Dr. Richardson, both of whom represent infanti- 
cide as an exceedingly rare occurrence, and when an occa- 
sional instance of it takes place, is looked upon by them as a 
crime of the greatest magnitude. Dr. Richardson, in his in- 
teresting 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 Indian 
* History of America, vol. 3, p. 429. 
t Edinburgh Encyclopaedia, Art. Abiponians. 
| Ibid. Art. America. 
§ A Narrative of the Mission of the United Brethren among the Delaware and Mo- 
hegan Indians, from its commencement in the year 1740, to the close of the year 1008, 
&c. By John Heckewelder, who was many years in the service of that mission. 8vo. 
Philadelphia, p. 213. 288 
INFANTICIDE. 
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 
desolations of this unnatural crime; certainly too much for the 
honour of human nature. 
PART II. 
By infanticide in its most extensive signification, is under- 
stood, the criminal destruction of the foetus in utero, or of the 
child after it is born. It embraces, therefore, two subjects, 
somewhat distinct, and which require separate discussion. 
I. 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 indiscri- 
minately. 
In every instance in which a reputed case of foeticide be- 
comes the subject of legal investigation, the great points which 
present themselves are the following: 
1. Has the foetus in utero been actually destroyed! 
2. Has this been brought about by intentional means, or by 
accidental 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 
discussion of these points, it becomes necessary to settle a 
preliminary question of great importance, and which is to de- 
termine, if possible, the period of gestation when the foetus is 
to be considered as endowed with life. 
* Journey to the Shores of the Polar Sea, in 1819-20-21-22: With a Brief Account 
of the Second Journey, in 1825-26-27. By John Franklin, R. N. Vol. 1, p. 151. Lon- 
don, 1829. INFANTICIDE. 
289 
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 
investigation. 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 no- 
tions on this subject. The same fundamental error, however, 
pervaded all their theories. They believed that the sentient 
and vital principle was not infused into the foetus, 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 foetus became animated in thirty days after concep- 
tion; while the female required forty-two.* In another part 
of his works, he asserts that this does not occur until the per- 
fect organization of the foetus. 
The Stoics believed that the soul was not united to the body 
before the act of respiration, and consequently that the foetus 
was inanimate during the whole period of utero-gestation.f 
This doctrine prevailed until the reigns of Antoninus and Se- 
verus, when it gave way to the more popular sentiments of 
the sect of the Academy, who maintained that the foetus be- 
came animated at a certain period of gestation. The Canon 
Lain 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.:}: 
Galen considers the animation of the foetus to take place on 
the fortieth day after conception, at the same time that he 
supposed the foetus to become organized.§ 
Others believed shorter periods sufficient; and accordingly 
three days and seven have respectively had their advocates.|j 
Another contends that eighty days are requisite for the ani- 
* Lib. de Nat. Puer. Num. 10. 
t Plutarch’s Morals, vol. 3y p. 230. London, 
t Zacchiae Quaest. Med. Leg. lib. ix. tit. 1, 2, 5, p. 744. 
§ Opera Galeni, de Usu Part. lib. 15, cap. 5. Lugduni, 1643. 
|j Zacchiae, lib. 1, tit. 2, Q. x. p. 82. 290 
INFANTICIDE. 
mation of the female, while only forty are necessary for the 
male.* Some advocate forty days as sufficient for both.f 
Others again make a distinction between the imperfect embryo 
and the perfectly formed foetus, and consider abortion of the 
latter only as a crime deserving the same punishment as ho- 
micide; a distinction, of which it is justly remarked by a ce- 
lebrated 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 re- 
commends that any one who should cause an abortion after 
that period, whether of male or female, should be punished 
for homicide. § 
All the foregoing opinions, wholly unsupported either by 
argument or experiment, might be dismissed without a com- 
ment, 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 tendency has been to countenance, rather than to 
encourage abortion, at least in the earlier stages of pregnancy. 
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 
foetus was considered merely portio viscerum matris.1T And 
afterwards, when the Academicians flourished, punishments 
very different, in the degree of their severity, were inflicted, 
according as the abortion was supposed to be that of an ani- 
mate or inanimate foetus.** 
In modern times, 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 most civil- 
ized countries. The error consists in denying to the foetus 
any vitality until after the time of quickening. The codes of 
* Zacchiae, lib. 1, tit. 2, Q. x. p. 82. || Fodere, vol. 4, p. 382. 
t Ibid. If Plutarch’s Morals, vol. 3, p. 230. 
t Fodere, vol. 4, p. 484. ** Fodere, vol. 4, p. 382. 
§ Zacchae, lib. 1, tit. 2, Q. x. p, 83. INFANTICIDE. 
291 
almost every civilized nation have this principle incorporated 
into them; and accordingly, the punishment which they de- 
nounce against abortion procured after quickening, is much 
severer than before. The English law “ considers life not to 
commence before the infant is able to stir in its mother’s 
womb.”* The law of Scotland, adopting the creed of the 
Stoics, believes the foetus in utero, previous to quickening, to 
be merely pars viscerum matris. In Saxony, in consequence 
of the disputes of medical men on this subject, it was formal- 
ly decided, that the foetus might be esteemed alive after the 
half of pregnancy had gone by.f 
The absurdity of the principle upon which these distinc- 
tions are founded, is of easy demonstration. The foetus, pre- 
vious 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 inevitable consequences of an extinction of the vital prin- 
ciple. To say that the connexion with the mother prevents 
this, is wholly untenable: facts are opposed to it. Foetuses 
do actually die 'in the uterus before quickening, and then all 
the signs of death are present. The embryo, therefore, be- 
fore that crisis, must be in a state different from that of death, 
and this can be no other than life. 
But if the foetus enjoys life at so early a period, it may be 
asked, why no indications of it are given before the time at 
wrhich quickening generally takes place? 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, ra- 
tional to suppose, that the embryo may at first float in the 
waters without the mother being conscious of its movements, 
but that afterwards, when it has increased in bulk, and the 
waters are diminished in proportion, it should make distinct 
* Blackstone, vol. 1, p. 129. 
t Specimen Juridicum Inaugurate. Auctore Van Visvliet. p. 46. Lugduni Batavo- 
nim, 1760. 292 
INFANTICIDE. 
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 proportionably 
weak. 
But granting, for the sake of argument, that the foetus does 
not stir previously to quickening, what does the whole objec- 
tion amount to ? Why, only that one evidence of vitality, 
viz. motion, is wanting; and we need not be told that this sign 
is not essential 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 
complication 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 
organic action, as it does upon a complication of organs. If 
it did, the foetus, 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, such as the head, brain, &c. If And how- 
are we to explain those temporary suspensions of organic ac- 
tion in the bodies of adults, which sometimes happen, without 
the principle of life being extinguished 1 
The observations of physiologists tend also to prove the vi- 
tality of the foetus previously to quickening. Long before 
quickening takes place, motion, the pulsation of the heart, and 
* 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. 
f Saumarez’ Physiology, vol. 2, p. 21; Review of Sir E. Home’s paper on the 
Functions of the Brain; Edin. Review, vol. 24, p. 439. INFANTICIDE. 
293 
other signs of vitality have been distinctly perceived. Hal- 
ler, indeed, asserted, “ that all the viscera and bones of the 
future foetus, nearly fluid indeed, and therefore invisible, were 
preformed before conception in the maternal germ.” How- 
ever objectionable such an opinion may be, yet the fact is cer- 
tain, that the foetus enjoys life long before the sensation of quick- 
ening 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 must consider those laws which exempt from punishment 
the crime of producing abortion at an early period of gesta- 
tion, 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, 
u 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 ordinances of God, subject alone to his 
divine will, and appointed by sovereign wisdom and goodness, 
as the exclusive means of preserving the race, and multiply- 
ing the enjoyments of mankind.”* 
Having thus endeavoured to show that there is no period of 
gestation at which the foetus is not to be considered alive, I 
come now to take up the consideration of the questions origi- 
nally proposed. 
1. Has the fcetus 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 examination of the fcetus. 
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 
fcetus has scarcely had time to make those firm attachments 
* Percival’s Works, vol, 2, p. 430-31. 
VOL. I. 294 
INFANTICIDE. 
which afterwards unite it to the womb; nor has it attained 
to a size sufficient 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 vio- 
lence, and leaves but faint, if any traces of its previous exis- 
tence. The hmmorrhage attending it is also of small conse- 
quence, inasmuch as the uterine vessels have not yet sustained 
any great enlargement, and therefore very speedily contract. 
The period to which these remarks more particularly apply, 
is the two first months of pregnancy, during which it is con- 
ceded that no satisfactory opinion can ever be formed from 
an examination of the female.* After this period, 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 maybe drawn. The more characteris- 
tic of these are the following: 
Labia and perineum. The labia will be found, on examina- 
tion, to be tumified and relaxed, and of a dark red colour; 
while in some cases the anterior edge of the perineum, called 
the fourchette, will be lacerated. These changes, of course, 
are owing to the unnatural irritation and distention which 
* Manuel de Medecine Legale. Par J. Briand. p. 67.— A Manuel of Medical Juris- 
prudence, by M. Ryan, M. D. Edited by R. E. Griffith, M. D. p. 129. — Marc, Dic- 
tionnaire de Medecine, vol. 3, p. 193. — Dr. Montgomery, in his valuable paper on 
the signs of pregnancy and delivery, relates the case of a lady to whom he was called, 
who miscarried at the end of the second month. In twenty-four hours afterwards, 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 pregnancy, the 
ordinary sympathetic symptoms of which had been almost entirely absent. (See 
Cyclopaedia of Practical Medicine, vol. 3, p. 504.) INFANTICIDE. 
295 
these parts have necessarily undergone during the passage of 
the fcetus. 
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 in consequence rendered smooth. 
Os and cervix uteri. On examining with the finger imme- 
diately after delivery, the neck of the uterus will be indis- 
tinct, and the mouth of that organ so dilated as to be scarcely 
distinguishable 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 pa- 
rietes. 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 as- 
sumes a whitish appearance. In some cases it eventually be- 
comes 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 
* Burns’s Midwifery, p. 564. Seventh American edition, 
t Burns’s Midwifery, p. 564. 296 
INFANTICIDE. 
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 discharge, there is 
an odour so peculiar that it can always be recognized 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 pa- 
rietes, are their flaccidity, and the presence of the line® albi- 
cantes. 
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 
relaxation 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. 
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 fre- 
quently permanent for life :f 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 of milk, 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. 
* 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. 
t Foder€, vol. 2, p. 9. INFANTICIDE. 
297 
Secretion of milk. This is another sign of pregnancy and 
delivery. It is important, however, to recollect that too much 
stress should not be laid upon this, apart from other indica- 
tions, 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 ot 
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.f 
Areola around the nipple. In the virgin state, the nipple is 
surrounded by a circular discoloration of the skin, which is 
generally 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 con- 
verted into “a coppery red, or a dark mahogany brown.”:}: 
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 that the areola remains more or less per- 
manent; 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 discoloration be very decided, and 
the female has not borne children previously, 
* Blundell’s Midwifery, p. 112. American edition, 
t Ibid. p. 112. 
t 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 
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.) 298 
INFANTICIDE. 
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 neces- 
sarily evanescent in their character; and therefore, in order 
to obtain the fullest amount of testimony from them, the ex- 
amination 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 certainty. 
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 de- 
livery. Thus, for example, the enlargement and relaxation 
of the external 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 areolm 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 
certain extent, well founded; and they go to show that no one 
sign, taken by itself, ought to be considered sufficient to esta- 
blish the fact. In all cases, a number of the signs should con- 
cur before any satisfactory conclusion can be formed. If this 
general caution be observed, the force of all the preceding 
objections will be materially weakened. Thus, for instance, 
menstruation may relax 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 enlargement of the ufcrus— no 
wrinkling of the abdominal parietes—no secretion of milk, and 
* Paris and Fonblanque, vol. 1, p.252. Fodere, tom. 2, p. 87. Montgomery in 
Cyclopaedia of Practical Medicine, vol. 3, p. 503. Griffith’s Ryan, p. 133. INFANTICIDE. 
299 
no areola around the nipples. Again, dropsy may cause a 
great relaxation and wrinkling of the abdomen. I say may, 
because, generally speaking, unless the dropsical fluid be sud- 
denly 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. Ad- 
mitting, however, that these signs of pregnancy may be coun- 
terfeited 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 ca- 
ses 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 cor- 
rect decision. These however I shall consider fully under the 
next head. 
Of the signs of abortion in cases in which the delivery is fol- 
lowed 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 
detected, indicating the fact of its having contained a foetus. 
Its size will be different from that of the unimpregnated 
uterus. In the unimpregnated state, the dimensions of the 
uterus may be 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 evi- 
dent that its size must vary considerably according to the size 
of the foetus, and according to the quantity of liquor amnii.* 
* An Anatomical Description of the Human Gravid Uterus and its contents. By the 
late William Hunter, M.D. p. 2. 300 
INFANTICIDE. 
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 se- 
venth 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.f 
Now in a case where a woman dies from haemorrhage dur- 
ing labor, 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 labor. If however uterine 
contractions should have taken place, the dimensions of the 
uterus would be considerably less. If some days had elapsed, 
the size would of course be still more diminished. If the ex- 
amination be made about twro 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 unimpreg- 
nated state. In the unimpregnated state, the uterus is a flat 
body, pyriform or somewhat triangular in its shape. During 
the first two months of pregnancy its shape remains unchang- 
ed; 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 broad- 
er, until in the two last months it is almost entirely obliterat- 
ed, and forms a part of the general cavity of the uterus. The 
shape of the uterus is now completely ovoid. Now if death 
* Maygrier’s Midwifery, p. 81. 
f Burns’ Midwifery, pp. 185, 563. 
t According to Bums, “ a week after delivery, the womb is as large as two fists.” 
(Midwifery, p. 564.) INFANTICIDE. 
301 
takes place during or immediately after labor, 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 ac- 
counts 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 com- 
mon thickness is from one to two thirds of an inch.f General- 
ly speaking too, the uterus is thickest at its fundus, and espe- 
cially where the placenta has been attached. When, how- 
ever, 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.! is 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 enlarge- 
ment which the blood-vessels have undergone. Both the 
arteries and veins, but more especially the latter, are enor- 
mously 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,IF 
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 
examination be made shortly after delivery, the cavity of 
* 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 
Williamm Hunter, M.D. p. 15. t Ibid. p. 15. 
§ Edinburgh Essays and observations, vol. 1, p. 418. 
|| Hunter on the Gravid Uterus, p. 17. 
H Edinburgh Essays and Observations, vol. 1, p. 427, 435. 
** Ibid. vol. 1, p. 412. 302 
INFANTICIDE. 
the uterus will be found to contain coagula of blood, or a 
bloody fluid. The part of the uterus to which the placenta 
has been attached, will be very visible, and corresponding in 
size to the placenta. This part will be of a dark colour, and 
have a gangrenous appearance; the vessels leading to it wrill 
also be much more enlarged 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 fundus 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 en- 
largement which the uterus 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 arteries 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 appearance, looking very much as if they were in 
a state of inflammation. 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 delivery.”! 
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 fulness 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 
* Hunter on the Gravid Uterus, p. 13. 
t Midwifery, p. 564. 303 
INFANTICIDE. 
this part, there will be found a body of a very distinct nature 
from the rest of the ovarium; this is the corpus luteum. It is 
sometimes round, but more generally oblong or oval. “ Its 
centre is white, with some degree of transparency; the rest 
of its substance has a yellowish cast, is very vascular, tender 
and friable like glandular flesh.”* Such is the appearance of 
the corpus luteum, if examined shortly after delivery at the 
full time. If examined, however, at other periods, these ap- 
pearances will be considerably different. The earliest period 
after impregnation, at which the corpus luteum has been ob- 
served 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 yellowish 
substance.f 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.J Its dimensions 
after this become 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 cicatrix. § This 
cicatrix is looked upon by Dr. Montgomery as a distinguishing 
characteristic of a genuine corpus luteum.|| This cicatrix is 
not permanent, but disappears at about five months after de- 
livery. 
Such is the corpus luteum. It is largest and most vascular 
in the earlier periods of pregnancy; less so at delivery; and 
disappears altogether, according to the observations of Dr. 
Montgomery, at about five months after delivery. 
Relative value of the preceding signs drawn from an exami- 
* Hunter on the Gravid Uterus, p. 14. 
t Philosophical Transactions for 1817, part 1. 
t Hunter on the Gravid Uterus, p. 74. 
$ Montgomery in Cyclopaedia of Practical Medicine, vol. 3, p. 497. 
jj “Of this latter appearance, (the radiated cicatrix,) 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. 497.) 304 
INFANTICIDE. 
nation after death. Striking as the foregoing signs unquestion- 
ably are, objections of a very serious character may be made 
gainst 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 appearances just described as found on dissection after 
delivery, may have been occasioned by the delivery of hyda- 
tids or moles; and that the corpora lutea may exist indepen- 
dent of pregnancy and delivery. Each of these objections I 
shall briefly notice. 
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 supposed to be animals of a very simple structure. 
They sometimes exist in large masses in the uterus. The 
origin 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 sexual intercourse.* 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 ac- 
tually are, simulated by the presence of these substances 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 
external appearances go, it is frequently impossible to decide 
whether they originate from a real foetus, or from hydatids. 
Even where there is no wish to conceal the real condition of 
the person, it is sometimes difficult to make up a positive opi- 
nion. Females have in this way been themselves deceived. 
* Madame Boivin broadly asserts that hydatids are always the product of a degene- 
rated conception, and that no virgin female can ever have them. (Nouvelles Rccher- 
ches sur l’origine, la nature, et le traitement de la mole vesiculaire ou grossesse hyda- 
tique. Par Me. Boivin. Paris, 1827.) INFANTICIDE. 
305 
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 con- 
cealment, it is of course out of the question to say which was 
the cause;! 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 un- 
attended 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 foetus, or of hydatids. The following 
considerations must render this obvious. It has already been 
stated that, in all probability, hydatids are always the result of 
impregnation, 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 favorable 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 might occur, in which 
it would be impossible to distinguish between the twro. I say 
may, because, generally speaking, 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 in- 
ner surface of the uterus. In cases of hydatids, the vesicles 
hang in clusters, attached by an intermediate membrane to the 
inner surface of the uterus.J This then would furnish one 
* An Account of some of the most important Diseases peculiar to Women. By Ro- 
bert Gooch, M.D. p. 216. American edition. 
t 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 enlarge- 
ment to a distended uterus; but what this organ contains, is uncertain/' (lb. p. 218.) 
t By Dr. Denman, they are described in the following manner: “ Hydatids or small 
vesicles, hung 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 others as small as a pin’s head. A large hydatid 
has generally a number of small hydatids adhering to it by a narrow process.” (Mor- 
bid Anatomy, p 136. American edition.) 306 
INFANTICIDE. 
mark of distinction. Another might be found in the different 
condition of the uterine bloodvessels. In cases of real preg- 
nancy, the bloodvessels, especially those confined to the pla- 
cental space, undergo a much greater enlargement than when 
hydatids alone are in the uterus. Independently, however, 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 will be at once decided by the placental mark, 
but more especially by the existence of the corpus luteum. 
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 en- 
closing 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 individual cases. They occur too, under a variety of cir- 
cumstances. They have been met with in females who have 
never been married, 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 contradictory 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 preg- 
nancy are present. The abdomen becomes enlarged; the sto- 
mach is affected with nausea; and even the breasts become 
swollen.f Here then also, as in the case of hydatids, it is im- 
* The Principles of Midwifery, p. 127. 
t Ibid, p. 127. INFANTICIDE. 
307 
possible from mere external appearances to say whether these 
symptoms arise from genuine pregnancy or not. 
In cases where death takes place, and dissection has been 
had, the same reasoning is applicable here as in cases of hy- 
datids. 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 im- 
pregnation, it has been rendered more than doubtful whether 
a genuine corpus luteum is ever present except in cases of real 
pregnancy.* 
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 
ascertain whether it be really a foetus 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 he really a foetus which has been 
expelled. From the difference in structure of the foetus from 
hydatids 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 
* On this subject see the luminous investigations of Dr. Montgomery, in the Cyclo- 
paedia of Practical Medicine. According to him the appearances which are consider- 
ed 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 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 appears 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 regularly glandular appearance 
which Hunter meant to express when he described them as ‘ tender and friable like 
glandular flesh:’ (Description of 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.) 308 
INFANTICIDE. 
investigation could ever be instituted with any satisfactory 
result. 
2. To ascertain the age of the foetus. This is important, 
inasmuch as it enables us to compare it with the appearances 
found on an examination of the female, to see how they cor- 
respond, and in this way to assist in detecting any imposition 
which may be attempted. In judging of the age of the foetus, 
the circumstances more especially to be attended to are its 
length — weight—and the relative situation of the centre of the 
body. 
Notwithstanding the various observations which have been 
made, it appears never yet to have been settled precisely, 
when the ovum enters the womb, or when the embryo first 
becomes visible. Mr. Hunter made a dissection in which im- 
pregnation was supposed to have taken place nearly a month 
previously, and yet no ovum was detected either in the fallo- 
pian tubes or in the uterus.* Mr. Burns states that he exa- 
mined very carefully three uteri within the first month after 
menstruation, and in none could he discover an ovum.f By 
Sir Everard Home, however, a minute ovum was discovered 
as early as the eighth day after The period 
usually fixed upon, however, is from the nineteenth to the 
twenty-first day. When first seen, the ovum is in the state 
of a membranous egg, filled with a semi-transparent fluid, in 
the centre of which is the embryo. The parietes of it con- 
sist solely of twTo membranes, chorion and amnion. At first, 
the ovum is unattached to the uterus; afterwards it becomes 
united to it by means.of the placenta. 
At about thirty days after conception, the foetus is about the 
size of a large ant, or, as it is described by others, of a bar- 
ley corn. 
At the end of two months, the foetus is nearly two inches in 
length, and its weight about one ounce; at this time, the dif- 
* Transactions of a Society for the Improvement of Medical and Chirurgical Know - 
ledge, vol. 2, p. 63. 
t Principles of Midwifery, p. 189, Am. Ed. 
t Philosophical Transactions for 1817. 
Mr. Burns thinks that the soaking of the uterus in spirits, practised in this case by 
Sir E. Home, may have rendered the ovum more distinct, and thus enabled him to 
detect its existence. (Principles of Midwifery, p. 189.) INFANTICIDE. 
309 
ferent parts of it are perfectly distinct, and even the sex can 
sometimes be distinguished. 
At the end of three months, its length is from three to five 
inches, and its weight about three ounces. 
At the end of four months, its length is from from six to 
seven inches, and its weight from four to five ounces. 
At the end of five months, the length is from eight to nine 
inches, and the weight from nine to ten ounces. At this pe- 
riod, the abdominal parts begin to predominate over the thora- 
cic parts. 
At the end of six months, the weight is from one to two 
pounds, the length from eleven to twelve inches, and the cen- 
tre of the body is at the abdominal extremity of the sternum.* 
At the end of seven months, the length is from twelve to 
fourteen inches, the weight from two to four pounds, and the 
centre of the body is between the umbilicus and the lower 
part of the sternum, but rather nearer to the latter than the 
former. 
At the end of the eighth month, the length is from sixteen to 
seventeen inches, the weight from three to five pounds, and 
the centre of the body between the umbilicus and the lower 
extremity of the sternum, but nearer to the former than the 
latter. 
At the end of nine months, the length is from nineteen to 
twenty inches, the weight from five to eight pounds, and the 
centre of the body at the umbilicus.f 
* For this criterion by which to judge of the age of the child, we are indebted to 
Chaussier. In the adult, the centre of the body is just above the pubis; in the child 
at birth, it is just at the umbilicus; at eight and seven months it is still higher, and at 
the sixth month, it is just at the lower part of the sternum. (Considerations Medico- 
Legales sur L’Infanticide. Par Lecieux. pp. 17, 18.) 
t According to experiments made in the Parisian hospitals, the following results 
were obtained from fifteen hundred and forty-one children who were weighed at birth, 
and who, with the exception of eight or ten, appeared to have attained the full term. 
3 weighed 2 pounds and some ounces. 
31 3 
97 4 
308 ....j. 5 
606 6 
380 7 
100 8 
16 9 
1,541 310 
INFANTICIDE. 
It is very evident, however, that as it regards the size and 
weight of the foetus, there must be a very great diversity. 
The foregoing.may serve as a general average, at the same 
time that it may fail to be applicable in any individual case. 
Sometimes a foetus of only six months, will be as large as an- 
other at the full time. In this case, however, notwithstanding 
its size, it will have all the signs of an immature foetus, which 
cannot easily be mistaken. Its different members will be more 
or less imperfect; the colour of its skin will be lively red and 
transparent; the bones of the head will be soft, and the fonta- 
nelles very large; the hair will be very thin; the nails will be 
either wanting altogether, or very soft; there will be constant 
sleep, and an absence of the ordinary cries of the child; its 
movements will be feeble; and the discharge from the bowels 
will be either wanting altogether, or very small in quantity. 
All these signs will be found, of course, more or less strikingly 
marked, according to the approach of the foetus to the full 
term.* 
3. To ascertain, if possible, what has been the cause of the 
miscarriage. 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 
expulsion from the womb. As, however, it may have been 
produced by mechanical violence done to the foetus itself, by 
the introduction 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 inflicted. 
The average weight fixed upon by Chaussier and Lecieux for the child at full term, 
is 6| lbs. (Considerations sur L'lnfanticide, par Lecieux, p. 9.) 
With regard to the length of the child, as the result of numerous observations, tbe 
following are fixed upon by Chaussier and Lecieux as the average: 
At 5 months, 9i inches. 
6 12 
7 14 
8 16 
9 18 
(Considerations sur L’lnfanticide, par Lecieux, p. 12.) 
* Manuel de Medecine L6gale. Par J. Briand. pp. 66, 67. 1821. INFANTICIDE. 
311 
II. Of the means by which the death of the foetus may have been 
produced. 
Having, in the foregoing manner, examined the first ques- 
tion to be solved, viz. whether a foetus in 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 unmar- 
ried females, who, through imprudence or misfortune have be- 
come pregnant, to avoid the disgrace which would attach to 
them from having a living child ; and sometimes it is even 
employed by married women, to obviate a repetition of pecu- 
liarly 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 cautious 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 foetus 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 purpose of destroying 
the foetus. 
These may be divided into general and local. To the first 
belong venesection, emetics, cathartics, diuretics, emmena- 
gogues, &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 in- 
fluence upon the foetus, and that the repetition of it would in- 
fallibly destroy it. Hippocrates entertained this belief,* and 
it has accordingly long been resorted to as one of the popular 
* Mulier uterum ferens abortit secta vena, eoque magis, si sit fetus grandior. (Hip- 
pocrates, sec. 5, aphor. 31.) 312 
INFANTICIDE. 
modes of producing abortion. Bleeding from the foot has been 
supposed to be particularly effective in this way: 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. Experience 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 foe- 
tus; 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 wTas bled ten times from the foot during pregnancy, 
without any bad effect on the foetus.f 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 suffered 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 ano- 
ther, who was bled thirteen times, and of a third who wras bled 
sixteen times while in the same condition. All these w7omen, 
he adds, recovered, and the children they 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 extent 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 part of 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 quan- 
* Capuron, p. 307. 
+ An Elementary Treatise on Midwifery, by A. L. M. Velpeau, M.D. Translated 
by C. D. Meigs, M D. p. 236. 
t Medical Observations and Inquiries, vol. 3, p. 309. 
§ Ibid. vol. 4, p. 302. INFANTICIDE. 
313 
tity 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 necessarily attended by any injurious consequences to 
the foetus. On the other hand, it should be recollected, that 
when the constitution of the mother is naturally feeble and 
irritable, or has become much debilitated by disease, the inju- 
dicious loss of blood during pregnancy, may prove fatal to the 
foetus. In all cases therefore, the question whether the bleed- 
ing has had any agency in producing the destruction of the 
foetus must be determined by the particular circumstances of 
the individual case. At the same time, the mere fact of re- 
peated bleedings having been resorted to without 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 
souncommon 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 liv- 
ing children at the regular period, it has been supposed that 
the fcetus could not be much injured by the use of emetics. 
The fact however seems to be, that although the vomiting at- 
tendant upon pregnancy very seldom produces an abortion, yet 
that which is produced by emetics is not unfrequently follow- 
ed by consequences the most serious both to mother and foe- 
tus. 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 preg- 
* Etudes Cliniques sur les Emissions Sanguines artificielles. Par A. P. Isidore 
Poliniere. Tom. 1, p. 34. 314 
INFANTICIDE. 
nancy) 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 pregnancy 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 preg- 
nancy, when of course less danger attends the operation. Just 
in proportion to the size and development of the uterus, is 
the danger to be apprehended from the 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. Notwith- 
standing this, even emetics do not always succeed. 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 were 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 dis- 
ease 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 pregnant 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; 
if the article used be very drastic in its nature; if it act par- 
ticularly on the rectum,§ (between which and the mouth of 
the uterus there appears to be a peculiar sympathy;) or if the 
female be of a nervous, irritable habit, then purging may be, 
•The Principles of Midwifery, p. 230. Seventh American edition, 
f Meigs’ Velpeau, p. 236. 
$ Medical Observations and Inquiries, vol. 3, p. 249. 
§ All those purgatives which produce tenesmus, are most apt to cause abortion. 
Hence it is too, that dysentery frequently produces this effect. INFANTICIDE. 
315 
and frequently is followed by the death and expulsion of the 
foetus. Purgatives, therefore, may or may not produce abor- 
tion, according to circumstances.* 
Diuretics. This class of agents has long been supposed ca- 
pable of producing abortion, and has accordingly frequently 
been used for this purpose. That they may have been occasion- 
ally attended with success, is very possible ; but I have no 
doubt that generally speaking they have failed. They cer- 
tainly are destitute 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 pregnancy.! Still, from his own language, 
I should not infer that he had ever witnessed this effect, al- 
though he says that he has seen diuretics given very freely to 
pregnant women laboring under On 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 at- 
tacked with sciatica. Several physicians and midwives were 
called to examine her, and decidedly unanimously, that she 
was not pregnant, particularly as she lost a little blood every 
month, though not so much as in menstruation. They there- 
fore prescribed for the disease which afflicted her, bled her 
repeatedly in the foot, administered purgatives frequently, to- 
gether with diuretics and sudorifics. All this did not prevent 
her from bringing forth a healthy child at the end of the ex- 
pected time. || 
Concerning the oil of juniper, Fodere relates the following 
fact, which shews that this powerful article has failed in ef- 
fecting an abortion. A pregnant female took every morning 
for twenty days, one hundred drops of the distilled oil of ju- 
niper, without injury, and was delivered of a living child at 
the expiration of the ordinary term.lf 
* Dr. James Johnson states that he has known a very moderate dose of calomel and 
rhubarb to cause a premature delivery. (Medico-Chirurgical Review, voi. 17, p. 98, 
f Principles of Midwifery, p. 283. 
X Ibid. p. 288. 
$ Ibid. p. 245. 
j| Fodeie, vol. 4, p. 430. 
Fodere, vol. 4, p. 430. 316 
INFANTICIDE. 
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 patient who had taken about a drachm of 
powdered cantharides in order to induce abortion, and which 
brought on frequent vomiting, violent spurious pains, a tenes- 
mus and immoderate diuresis, succeeded by an acute fever, 
which reduced her to extreme weakness, yet no signs of mis- 
carriage appeared, and about five months afterwards she was 
delivered of a healthy child.”* Cases, however, have occur- 
red in which cantharides has caused abortion. Dr. James 
Johnson mentions a case of this kind as occurring within his 
own knowledge.! 
Nitre. Dr. Paris relates the case of a woman in Edin- 
burgh, who having swallowed by mistake a handful of this 
salt, suffered abortion in less than half an hour.! 
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 conside- 
rable effect. It has also long been used for the purpose of 
producing abortion, and no doubt possesses considerable pow- 
er in this way. Galen asserts that it acts w'ith sufficient energy 
on the uterus to destroy the fmtus;§ and in the present day, 
it is said to be constantly used by the negresses in the Isle of 
France with this intention.|| 
In the case of Miss Burns, for wrhose 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, im- 
becile, and cachectic girl, in the duchy of Aoust, in the seventh 
* Memoirs of the Medical Society of London, vol. 2, p. 208. 
f Medico-Chirurgical Review, vol. 17, p. 98. 
t Medical Jurisprudence, by Paris and Fonblanque, vol. 3, p. 94. 
§ Diclionnaire Matiere Medicale, vol. 3, 696. 
|| Ibid. 317 
INFANTICIDE. 
month of her pregnancy, 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 fif- 
teen days. By the proper use of refrigerants, 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 success- 
ful in producing an abortion, it destroyed the life of the mo- 
ther.! Professor Christison relates, on the authority of Mr. 
Cockson, the case of a girl, who, to produce abortion, took a 
strong infusion of savine leaves. Violent pain in the abdo- 
men, and distressing strangury ensued. In two days after 
taking it, she miscarried; and in four after that, she died. On 
dissection, Mr. Cockson found extensive peritoneal inflamma- 
tion—the inside of the stomach of a red tint, checkered with 
patches of florid extravasation. The uterus presented all the 
signs of recent delivery 4 
Mercury. This has long been considered as an article capa- 
ble of occasioning abortion. Crude quicksilver was at one 
time supposed to possess this property. It was accordingly 
used, not merely for this purpose, but also in all cases of dif- 
ficult labor. It was not long, however, before it was ascer- 
tained that large quantities of it might be taken by pregnant 
women with perfect impunity. 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.|j Calomel, however, is the prepa- 
ration of mercury most generally supposed to exert a specific 
influence upon the uterine organs. That it possesses the pow- 
er of producing miscarriage, is countenanced by the authority 
* Fodere, vol. 4, p. 431. 
t Apparatus Medicaminum, vol. 1, p. 59. Diet. Mat. M6d. vol. 3, p. 696. 
t Treatise on Poisons, p. 531-2. Second edition. 
$ James1 Dispensatory. 
|| Vidi mulieres qui libraa ejus fciberunt ut abortura facerent, et sine noxa. (7eme- 
lius.) 318 
INFANTICIDE. 
of Mr. Burns, who directs that a full course of mercury 
should be avoided during pregnancy.* Facts, however, both 
numerous and conclusive, are on record to prove, that a preg- 
nant woman may go through a long course of mercury, with- 
out the least injury either to herself or to the child. Bartho- 
lin and Mauriceau relate several cases, in which mercury wras 
given to salivation, to pregnant women affected with syphilis, 
and who all, at their full time, were safely delivered of healthy 
children.! Mr. Benjamin Bell, than whom I could not quote 
higher authority, says, “It is a prevailing opinion, that mer- 
cury is apt to occasion abortion, and it is therefore seldom 
given during pregnancy. Much experience, however,” he 
adds, “has convinced me that this opinion is not well founded, 
and when managed with caution, that it may be given in suf- 
ficient quantities at every period of pregnancy, for curing 
every symptom of syphilis, and without doing the least injury 
either to the mother or child.:'\ To the same effect is the tes- 
timony of Dr. Rush concerning the use of calomel in the yel- 
low fever of 1/93. In not a single instance did it prove in- 
jurious to pregnant women.§ The following case which fell 
under my own care, confirmed me in the opinion already ad- 
vanced. A female, eight months gone with child, was attack- 
ed with a violent inflammation of the lungs. After the use of 
the ordinary depleting remedies, I found it advisable to have re- 
course to mercury. She was accordingly put upon the use of 
small doses of calomel and James’ powder. In a few days, sali- 
vation came on; after which, all the symptoms of her pulmo- 
nary 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 ex- 
cite 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 thero 
* Midwifery, pp. 231,233. 
t Fodere, vol. 4, p. 429. 
t Bell on the Venereal, vol. 2, p. 265. American edition. 
$ 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. 
319 
can be no question that the preparations of mercury, if given 
to patients predisposed to abortion, and especially if carried 
so far as to produce salivation, may be followed by that re- 
sult. 
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 
secretion. The first notice which I have met with, of its pro- 
perties 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 specially noticed; and the autho- 
rity of Dr. 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 emmena- 
gogue.f 
Pennyroyal. This article is reputed by some to be a power- 
ful abortive. Dr. Watkins relates a case, in which the mere 
odour of it produced abortion in a delicate woman in the fourth 
month.:}: At the Chelmsford assizes, August 1820, Robin Col- 
lins was indicted 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 era- 
menagogues, there are others which are entitled to a place 
under the class of abortive agents. 
Secale cornutum—spurred rye—ergot. This article, at pre- 
sent 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 extraordinary manner, the process of parturition. As 
might naturally be expected from the announcement of a re- 
medy so novel and unique, it excited much interest, and as 
soon as subsequent experience had confirmed its virtues, rose 
• Medical Theses. F!y Charles Caldwell, M.D. Vol. 2, p. 203. 
\ See paper of Dr. Hartshorne in Eclectic Repertory, vol. 2, p. 201. 
| Coxe’s Medical Museum, vol. 2, p. 431. 
§ Paris and Fonblanque, vol. 3, p. 83. 320 
INFANTICIDE. 
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 unfrequently 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, it will but 
too certainly prove detrimental to the life of the child.f It is 
to be feared, that for this purpose it has been but too frequent- 
ly 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. Cha- 
tard records a case of abortion induced in the human female 
subject at the fourth month of pregnancy, by twelve grains of 
ergot.§ 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 
* Vol. 1, p. 70. 
f For testimony on this point, I refer to the following authorities: New-York Medi- 
cal Repository, vol. 12, p. 344; vol. 20, p. 11; vol. 21, pp. 23, 139. New-England 
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. 
$ Philadelphia Journal of Medical and Physical Sciences, vol. 11, pp. 112-13. 
$ New-York Medical Repository, vol. 21, p. 16. INFANTICIDE. 
321 
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 simu- 
lating those of parturition have occurred towards the termina- 
tion of utero-gestation, in order to quicken the labour; but so 
far from doing this, the pains have actually ceased under its 
use, and labour has not occurred for several weeks subse- 
quently.* 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 produce an abortion, without any effect. 
Jictaea 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 by some of our American practitioners. Re- 
cently 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. Rafinesque states that it is “ much used by 
them in facilitating parturition, whence its name—squaw root.” 
Dr. Tully, in a paper on this subject, has recorded the testi- 
mony of a number of respectable 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 alcoholic tincture acted as a suf- 
ficient dose, without being repeated.! According to Dr. Tul- 
ly, the actma does not appear to exert the same stupefying 
and deleterious influence on the foetus, that he supposes is 
produced by the ergot. 
Digitalis. Of the effect of this active drug upon the uterine 
system, 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 
* American Journal of Medical Sciences, vol. 10, p. 227. 
t Actaea racemosa. By William Tully, M. D. Professor of Materia Medica, in Yalo 
College, in the Boston Medical and Surgical Journal for April 10, 1833. 322 
INFANTICIDE. 
complaint, when in the eighth month of this, her fourth preg- 
nancy. 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 fa- 
vorable 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 examined twenty- 
five hours after death; it was running rapidly into putrefac- 
tion. 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 w7as 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 blow's have been received on the back, the dan- 
ger of abortion is always imminent. It is, indeed, rare that 
a female 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 hasmorrhage pre- 
cedes 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 predisposed to abortion, and had failed in some 
precautions, or committed some imprudence, which might 
have induced it. After investigating these facts, wre 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 re- 
ceived, from a robust man, several kicks and blows with the 
fist, the marks of which were very evident. Immediately 
* Introduction to the Study and Practice of Midwifery, p. 141. INFANTICIDE. 
323 
after the accident, she was put to bed, bled, and various re- 
medies given her 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 accident was owing to the violence which 
had been inflicted.* In another case, a female brought forth 
a dead foetus, four months advanced, two days after a quarrel 
with her husband, in which she said he had struck her. In- 
stead, 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 decides that it is very pos- 
sible, had she remained quiet, and called for proper aid, the 
abortion would not have taken place, particularly as the vio- 
lence used was only that of throwing her down in the street.f 
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 
following case, related by Dr. Smith, illustrates this fact in a 
striking 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 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 husband. An extensive detachment of the placenta caused 
the immediate death of the foetus, and that of the mother in 
fifty-one hours afterwards. § 
The introduction of an instrument into the uterus for the 'pur- 
pose of rupturing the membranes, and thus bringing on prema- 
ture action of the womb. Of this villainous practice, which has 
* Belloc, p. 81. 
t Cours de Medecine Legale, par J. J. Belloc, p. 82. 
t Smith’s Forensic Medicine, p. 305. 
$ Introduction to the Study and Practice of Midwifery, &c. p 137. 324 
INFANTICIDE. 
long been known and resorted to for the nefarious purpose of 
producing 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 as- 
sizes, in 1781, Margaret Tinckler was indicted for the murder 
of Janet Parkinson, 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 ex- 
pressions to that effect. She died on the 23d. During her 
illness, she declared that 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, ad- 
vised 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 deceas- 
ed 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 open- 
ing the womb of the mother, it appeared that there were two 
holes caused by wooden skewers, one of which was mortified 
and the other inflamed. Additional symptoms of injury were 
also discovered.”* 
In England a very curious trial took place in 1808, of two 
persons, William Pizzy and Mary Codd, “ for feloniously ad- 
ministering 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 instru- 
ment into the vagina, and in that way destroyed the child and 
brought on premature delivery. This took place about six or 
seven weeks before the full time. Although the facts appear- 
* East’s Crown Law, vol. 1, p. 354. Smith, p. 306. INFANTICIDE. 
325 
ed 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 introduc- 
tion of a syringe with a long ivory pipe, for the purpose of 
producing abortion. On dissection, a foetus of about two 
months was discovered in the abdomen.f 
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. 
Fifteen 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 foe- 
tus, which very shortly brought it away. It was perfect, and 
about four months old. Unfortunately, the names of the per- 
sons concerned in this infamous transaction, were never di- 
vulged.! 
On this subject, the following interesting and instructive 
fact is related by Dr. Gooch. “ Dr. William Hunter, attempt- 
ed 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 hap- 
pened 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.Ӥ 
A most extraordinary mode of causing abortion recently 
occurred in France, which may perhaps be appropriately no- 
ticed in this place. The subject, was a married woman, who 
had four children, and was pregnant of a fifth. At the com- 
mencement of her pregnancy, she was persuaded by the re- 
* Edinburgh Medical and Surgical Journal, vol. 6, p. 244. 
t Medico-Chirurg. Review, vol. 6, p. 528. 
t The Medical Recorder, vol. 8, p. 461, for 1825. 
§ A Practical Compendium of Midwifery, by Robert Gooch, M. D. p. 94. Am. Ed. 326 
INFANTICIDE. 
presentations 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 disturb- 
ance, and the final result was an almost complete obliteration 
of the vagina. “ The medical men on examination, found that 
a kind of irregular band surrounded and obstructed the vagina, 
beyond which, and on the brim of the pelvis, the head of the 
infant was distinctly felt, pressed forward by the uterine con- 
tractions. 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 di- 
vided. The delivery was not at all facilitated, and the at- 
tendants felt themselves compelled to perform the cmsarean 
operation. -The infant was extracted dead, apparently for 
some time, and the mother immediately expired.”! 
Having thus finished the notice which I proposed to take 
of the methods which have been resorted to for criminally 
producing 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. Velpeau states that he had a female un- 
der his care, who produced a violent abdominal inflammation 
by taking medicines to promote abortion. She died on the 
eighth day, without any symptoms of abortion having appear- 
ed.:): There is another circumstance also of great importance, 
which should not be forgotten. It has happened in some in- 
stances, that, while the mother has lost her life in attempting 
t The Lancet, vol. 8, p. 38. 
t Meigs’ Velpeau, p. 233. INFANTICIDE. 
327 
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 pregnant, 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 produce abor- 
tion. Some hours after, she was seized with violent cholic, 
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 responsibility of jeopardizing not merely a single life, 
but two lives. As far as intention is concerned, they are in 
all cases as much chargeable with the death of the mother, as 
with the destruction of the fruit of the womb. 
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. 
2. That they always endanger the life of the mother, and 
3. That they sometimes destroy the mother without affect- 
ing the foetus. 
I deem it so important to enforce these results, that I shall 
confirm them by the following authorities. “ It is evident, I 
believe from experience,” says Farr, “ that such things, (abor- 
tives,) cannot act as efficient causes, without the aid of those 
predisposing causes, or natural habits of the body, wdiich 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.”! 
* Fodere, vol. 4, p. 436. 
f Farr’s Elements of Medical Jurisprudence, p. 70. 328 
INFANTICIDE. 
“Every woman,says Bartley, “who attemps to promote 
abortion, does it at the hazard of her life. It may be remarked, 
whoever endeavors to counteract the ordinary proceeding of 
nature, will have in the end sufficient cause to repent the te- 
merity.*” 
“There is no drug,” says Male, “which will produce mis- 
carriage in women not predisposed to it, without acting vio- 
lently on their system, and probably endangering their lives.” f 
Smith says, “Abortion is in general injurious to health, and 
is seldom unaccompanied with suffering. The administration 
of emmenagogues to force a separation of the ovum, where 
the constitution has no tendency to throw it off, is highly dan- 
gerous to the mother. No drugs can act in this way upon the 
uterus, but by involving it in a violent shock given to the ge- 
neral system. It has frequently occurred, that the unhappy 
mother has herself been the sacrifice, while the object intended 
has not been accomplished.” \ 
Burns says, “ It cannot be too generally knowrn, that when 
these medicines do produce abortion, the mother can seldom 
survive their effect.Ӥ 
To show how difficult the perpetration of abortion some- 
times 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 skate) was tightly bound round her body. This 
too availing nothing, her paramour (according to his own con- 
fession) knelt upon her, and compressed the abdomen with all 
his strength; yet neither did this effect the desired object. 
The man now trampled 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 proceeded to perforate the uterus through the* 
vagina; much pain and hajmorrhage 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 
* Bartley’s Treatise on Forensic Medicine, p. 5. 
t Male’s Epitome of Juridical Medicine, in Cooper’s Tracts, p. 208. 
1 Smith’s Principal of Forensic Medicine, p. 295. 
§ Principles of Midwifery, p. 283. INFANTICIDE. 
329 
into the world, without any marks of external injury upon it. 
It died indeed four days afterwards, 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 
consequences of using instruments to procure abortion.— 
“ Those who make use of them most frequently, fail of attain- 
ing their object, and succeed only in seriously injuring the 
womb. I once prescribed for a female, in whom such at- 
tempts had brought on a flooding which conducted her to the 
verge of the grave; she suffered horribly from pain in the in- 
terior 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 un- 
happy creature who suffered from the like attempts, which 
did not succeed any better than the one above mentioned. 
M. Girard, of Lyons, mentions a similar instance. Very re- 
cently, also, (Oct. 1828,) a young woman who became preg- 
nant against her wishes, succeeded by such manoeuvres only 
ih producing an organic lesion of the uterus, which, after 
frightful sufferings, led her to the commission of suicide.”! 
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 rheu- 
matism, pleurisy, small pox, typhus and yellow fevers, scar- 
latina, syphilis, and measles, operating on a system predis- 
posed by nervous irritability—a diseased state of the uterus 
—the intemperate use of spirituous liquors—irritation of the 
neighboring organs, from costiveness, tenesmus of dysentery, 
hajmorrhoids, prolapsus ani, diarrhoea, incontinence of urine— 
errors in regimen and diet—violent exercise, as in walking, 
dancing, riding, running, &c—accidental falls—a sudden con- 
tortion or shockj; °f the body—indulgence of any violent pas- 
* Professor Wagner, in the London Medical Quarterly Review, vol. 2, p. 487. 
t Meigs’ Velpeau, p. 238. 
t The pulling of a tooth, for instance, has been known to produce abortion. Burns, 
on Abortion, p. 64. 330 
INFANTICIDE. 
sion of the mind, whether joyful or sad—the relation of any 
unexpected intelligence—a great noise*—the appearance of 
any extraordinary object—previous abortion—fluor albus— 
excessive venery—accidental blows on the abdomen—the 
death of the foetus—the attachment of the placenta over the 
os uteri—retroversion of the womb—haemorrhage, from what- 
ever source, or at any periodf—all or any of these causes may 
give rise to abortion, without the imputation of the least crimi- 
nality to the female. 
The influence of the passions upon the uterine functions is 
peculiarly striking. It is an extraordinary fact, that the melan- 
choly and sadness caused by some great evil which is known 
and expected, are much less injurious to a pregnant woman, 
than the annunciation of some important good, or even a tri- 
fling misfortune which is unexpected. Fodere relates the case 
of some pregnant women, who, during the horrors of the 
French revolution, were confined in dungeons, and condemned 
to death; their execution was, however, delayed in conse- 
quence of the peculiarity of their situation. Yet notwithstand- 
ing the actual wretchedness of their condition, and the more 
terrible anticipation of future suffering, they went on to the 
full time, during which period, a fortunate change in the state 
of parties rescued them from unmerited punishment.^ 
Circumstantial evidence. In concluding the subject of abor- 
tion, 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 concealing her 'pregnancy, I cannot 
* 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 indictment 
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, unlawlully, 
wilfully and turbulently, made a great noise, in disturbance of the peace of the com- 
monwealth, and did greatly misbehave in said dwelling-house, and did greatly fright- 
en and alarm the wife of the 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 judgment should be 
reversed, and the quarter sessions were directed to proceed to give judgment against 
the defendant. Binney’s Reports, vol, 5, p. 277. 
f Burton’s Midwifery, p. 281. Burns’ Midwifery, p. 161. Burns on Abortion. 
Hamilton’s Midwifery, 
t Fodere, vol. 4, p. 422. INFANTICIDE. 
331 
conceive with what justice any inference can be drawn pre- 
judicial 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 conceal her disgrace as long as possible. 
The mere fact of concealment, 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 me- 
dical advice, we have then the strongest circumstantial evi- 
dence 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 witness; 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. 
2. Of the murder of the child after it is horn, 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. Has the child attained that size and maturity which would 
enable it to maintain an independent existence? 
2. Was the child born alive? 
3. If born alive, by what means did it come to its death? 
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? 
These are the only points upon which the professional wit- 
ness can be called to give his testimony, and to the considera- 
tion of these I shall accordingly confine myself. 332 
INFANTICIDE. 
1. Proofs of a child’s having attained a sufficient maturity 
to maintain an independent existence. Although children born 
before the completion of the seventh month have occasionally 
survived, and been reared, yet in a medico-legal point of view, 
no child ought to be considered as capable of sustaining an 
independent existence until the seventh month has been fully 
completed. Accordingly, if it can be proved that the child 
which is the subject of investigation has not attained this age, 
no charge of infanticide can or ought to be entertained. Even 
when the full term of seven months has been attained, its 
chances of surviving are exceedingly uncertain; and just in 
proportion as the child approaches the full term, is the proba- 
bility of its living increased. The principal signs by which 
a judgment is to be formed in these cases are, the weight 
of the child—its length—and the relative situation of the cen- 
of the body. These have already been noticed in a previous 
part of this essay, and require no additional comment.* 
2. Proofs of the child having been born alive. We know no- 
thing of the nature of life; we judge of it only from its ef- 
fects, and declare that being as enjoying it, who performs the 
functions considered essential to it. These, functions are called 
vital, and are usually enumerated as the three following, viz: 
the cerebral and nervous; the sanguineous and the respiratory. 
This distribution can only apply, however, to the state after 
birth: in the foetal state, facts would seem to prove, that no- 
thing besides the circulation of the blood is necessary to the 
maintenance of the vital principle. Even the energy of the 
brain, which is afterwards to determine the character, and in 
a great measure to fix the destiny of the being it inhabits, is 
originally dormant, and the organ itself occasionally wanting. 
In cases of infanticide, it is only from the circulation and respi- 
ration that any thing is to be learned: the brain and nerves 
leave no trace of their influence behind them. 
Proofs of the blood having circulated after birth. There are 
four things in connection with this, that require investigation, 
viz. the character of the blood itself; the state of the heart and 
vessels circulating the blood; the distribution of the blood in the 
* See page 309. INFANTICIDE. 
333 
different organs of the body; and the existence of ecchymoses 
and extravasations. 
(a.) Of the character of the blood itself By some eminent 
authorities, it is asserted that there is no difference in ap- 
pearance between the arterial and venous blood of the fcetus. 
Bichat investigated 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 appear- 
ance, 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 uni- 
formity in the arterial and venous blood. From these facts, he 
concludes, that no difference exists between the arterial and 
venous blood of the foetus, at least in external appearance.* 
Velpeau and Autenreith, as the result of their experiments 
and observations, confirm this statement.! By other obser- 
vers this is positively contradicted; and it is asserted, that the 
difference between the blood of the arteries and veins is very 
obvious.| 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 ves- 
sels, when on puncturing them, he found there was a differ- 
ence between the blood in the vein and the arteries. § A sim- 
pler mode of performing 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 ligature has been previously ap- 
plied, and cut it twTo or three inches from the ligature with a 
sharp scalpel, so as to make an even surface. If the portion 
* Bichat’s General Anatomy. Translated by Hayward, vol. 1. p. 355. 
t Velpeau’s Midwifery, p. 219. 
t Bostock’s Physiology, vol. 2, p. 157. American edition. 
§The Thysiology of the Foetus, Liver and Spleen, by George C. Holland, M. D. 
p. 154. 334 
INFANTICIDE. 
of cord be now pressed from below upwards, the blood flowing 
from the vein and that from the arteries will be found very 
different. “ Sometimes a large drop of florid blood is observed 
to stand directly over the umbilical vein, and another dark 
colored over the arteries, without their being in the least 
mingled with each other, and in this case, the difference be- 
tween 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 be- 
tween the arterial and venous blood is just what might have 
been expected. 
Of its coagulation. By some it has been supposed that the 
blood of the foetus does not coagulate. This, however, is a 
mistake. But although the foetal blood does coagulate like 
adult blood, yet there is this difference between them, that the 
coagulation of the former is by no means so firm and solid as 
that of the latter. This was originally observed by Four- 
croy,f and has since been confirmed by other observers. 
The effect of exposing the foetal blood to the action of the at- 
mosphere. In the experiments made by Fourcroy, the coagu- 
lum, of a brown red, exposed to the atmosphere, did not be- 
come florid in the same manner as that of the adult. There 
were, however, filaments of a red colour running over the 
brown mass.J 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, be- 
taking it from the umbilical vessels, and setting it aside, ex- 
posed 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 color; and if the clot be cut vertically in two,§ 
the contrast between the exposed and unexposed parts will be 
very striking. Here too the same remark is applicable, that 
* Physiology of the Foetus, &c. by George C. Holland, M. D. p, 154. 
f Annales de Chimie, tome 7, p. 162. 
% Annales de Chimie, tome 7, p. 163. 
§ Blundell, in Lancet, for 1828, p. 130, INFANTICIDE. 
335 
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 um- 
bilical vessels in ordinary cases of delivery, where the child 
is born alive, and has breathed, is not foetal blood. Whether 
this precaution was observed by Dr. Blundell, does not appear 
from his statement. 
Chemical composition of foetal 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 be- 
tween the composition of foetal and adult blood. According 
to him, the points of difference are the following:—1. In 
the foetus the coloring 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.f 
In addition to the foregoing, the miscroscopical observa- 
tions of MM. Prevost and Dumas, have ascertained that the 
red globules of the blood in the foetus 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 be- 
tween the blood of the foetus and that of the adult, are yet, I 
fear, of too delicate a nature to be rendered practically avail- 
able in a question of so grave import as that of infanticide. 
(b.) The condition of the heart and bloodvessels. Without going 
into any elaborate description of the circulation in the foetal 
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 foetus, which are modified or entirely lost after 
* Annales de Chimie, tome 7, p. 165. 
f Velpeau’s Midwifery, p. 218. 
} Velpeau’s Midwifery, p. 219. Bostock’s Physiology, vol. 2, p. 158. Am. ed. 336 
INFANTICIDE. 
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. 
The foramen ovale. This is an opening situated in the sep- 
tum 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 in- 
ferior 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 pre- 
vents 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 intelligible the relative situation and 
appearance of the foramen ovale. 
a. The ascending cava, with its hepatic 
branches, b b. 
c. The descending cava. 
d. The right auricle, where it lies against the 
roots of the aorta and the pulmonary ar- 
tery. 
i. The circle which surrounds the foramen 
ovale, sometimes called the isthmus vieus- 
senii, but more commonly the circulus 
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 the foetal heart is cut away, 
except the ventricles and the partition 
between the auricles. 
a. The ventricles. 
b. The vena cava, w ith a blowpipe in 
it. 
c c. The septum between the auricles 
laid open to display the foramen 
ovale. 
k k. The musculi peetinati, or muscu- 
lar 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 fells slack and opens. 337 
INFANTICIDE. 
After birth, the foramen becomes obliterated by the closure 
and adhesion of the valve, and leaves behind it in the adult 
nothing but an oval depression in the septum between the 
auricles. This depression is called the fossa ovalis, and cor- 
responds to the space occupied in the foetus by the foramen 
ovale.* In the foetal state, and anterior to respiration, this 
foramen is always open; and it becomes closed only in con- 
sequence of the blood taking a new route through the lungs, 
when respiration commences. If, therefore, in examining any 
case, the foramen ovale be found closed, it is a very decisive 
evidence of the child’s having been born alive. It is to be re- 
collected, however, that this closing and obliteration of the fo- 
ramen 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 did not take place until some days after birth, 
yet that during all this time it underwent certain changes, 
which would distinctly mark the period which had elapsed 
after the birth of the child. That the foramen ovale does un- 
dergo a series of changes during the process of obliteration, 
was remarked so early as 1750 by the English anatomist Rid- 
ley, 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 foramen. 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 re- 
spiration has commenced, it is gradually turned towards 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 Doane. 
t “ 1. Infcetu, omnino non respirante, hiatus foraminis ovalis ad imam partem val- 
vula> reperitur, per quam sanguis e vena cava ascendente effusus, statim ad sinistrum 
ventriculum transjiciendus, transmigrat: 
“2. In infante recens nato, qui per paucula momenta respiratione usus est, aperture 338 
INFANTICIDE. 
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 existence of respiration, but also the different periods 
during which it has continued. With regard to the validity 
of this test, however, it must be obvious, that from the gra- 
dual manner in which these changes take place, a great many 
cases must occur in which they can furnish no decisive evi- 
dence. 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 render 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 even 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 positive conclusion from them. On these various 
accounts, I must confess that I do not attach the same impor- 
tance to this test as is done by Professor Bernt. 
The ductus arteriosus. This is a vessel which passes direct- 
ly 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 foetus. It conveys a large 
portion of the blood sent into the trunk of the pulmonary ar- 
tery, directly into the aorta. 
istius foraminis e tramite suo pristino jam paululum dextrorsum dejlexa eonspicitur, 
inde sanguis e vena cava inferiori illucappellens, cum sanguine e superiori vena cava 
refluo, per partem foraminis jam clausam novo incepto circuitu decurrit: 
“ 3. In infante p lures septimanas nato, apertura foraminis adliuc altius cum valvula 
dextrorsum suspensa deprehenditur: 
“ 4. In adulto, demum foramen cum sua apertura ct valvula plane inversum appa- 
ret, adeoque ejus apertura supra tuberculi Loweri marginem inferiorem penitus se 
recondit, cum valvula eadem transitu temporis, ni impedimentum intercurrat, firmiter 
adhaesura.’’ (Experimentorum Docimasiam Pulmonum Hydrostaticam Illustrantium. 
Centuriae i. Seclio ii. Curante Josepho Bernt. Prefatio, p. xii. Vienna;, 1824.) 339 
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. 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 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 it 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 sufficiently 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. According to Dr. Bernt, in 
the mature foetus, before respiration, this duct is nearly half an 
inch long; its shape is cylindrical; its diameter is equal to that 
of the main trunk of the pulmonary artery, and more than 
double the capacity of the branches of that artery, each of 
which is equal to a crow quill. 
If the child has respired only a few moments, the ductus ar- 
* “ 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.) 340 
INFANTICIDE. 
teriosus loses its cylindrical shape; the part towards the aorta 
becomes contracted, 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 con- 
trary of this observed. 
If the child has lived for several hours, or for a day, it re- 
covers its cylindrical shape, but is greatly diminished both in 
length and diameter. It is now not larger than a goose quill 
and not more than equal to one of the branches of the pulmo- 
nary artery. If it has lived for some days or a week, the 
duct will be found wrinkled and shortened to the length ol 
only a few lines, while its diameter is not larger than that ol 
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.* 
If, therefore, the ductus arteriosus he found cylindrical in its 
shape, and not contracted towat'ds the aorta, and if it equal in 
size the trunk of the pulmonary artery, the inference would be, 
that'the child was not born alive. On the other hand, if the 
ductus arteriosus he contracted towards the aortal end, and if its 
size he much less than the trunk of the pulmonary artery, the 
inference would be, that the child had been born alive. 
With the view of testing the correctness of the observa- 
tion of Bernt, some experiments were instituted by Orfila, and 
of the eight cases which he details, only four were found to 
confirm them. 
In one case, of a mature still-born male foetus, the ductus 
arteriosus was found only half the size of the trunk of the pul- 
* “ 1. Si panada momenta recens nati exstiterint, aorfam descendentem versus 
sphaeroides, paulo post mutata figura cylindracea, apparuit conus truncatus, basim 
cordi, apicem aorta: descendenti, aut contra, obvertens: 
“ 2. Si plures lioras diemve vitam retinuerint, denuo formam cylindraceam, ast lon- 
gitudinem et latitudinem imminutam, diametrum caulis pennfE anserinae, adeoque 
diametro trunci arteriarum pulmonaliura longe minorem, et illi arteriarum binarum 
puhnonalium fere parem exbibuit: 
“ 3. Si vitam adplures dies septimanamve perduxcrint, canalis jam rugosi longitude 
ad lineas aliquot, crassities ad diametrum pennac corvinae coarctata, diameter vero ar- 
teriarum pulmonalium ad crassitudinem caulis penna: anserinae aucta conspicitur: 
“ 4. Poenitus autem occlusus ductus hicmulto serius et incerto hebdomadum men- 
siumve numero deprehendilur.” (Experimentorum Docimasiam Pulmonum, &c 
Praefatio, p. xv. xvi.) INFANTICIDE. 
341 
monary 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 found 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 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 ductus arteriosus corresponded 
with the statements of Professor Bernt. 
From the foregoing, therefore, it would seem, that however 
correct the observations of Bernt may be as a general rule, 
yet they are not to be considered as invariably and universally 
so—a fact continually to be borne in mind in their application 
to cases of infanticide. 
The ductus venosus. This is a vessel lodged in the posterior 
part of the longitudinal fissure of the liver. It comes off di- 
rectly from the umbilical vein, and opens with the venae he- 
paticae into the vena cava ascendens. It is large enough to 
admit a common sized probe, which can easily be introduced 
into it through the umbilical vein. Through this vessel, a 
portion of the blood passing through the umbilical vein, goes 
directly to the cava, and then to the heart. 
* Legons de Medecine L€gale, par M. Orfila, vol. 1, p. 388-9. Second edition. 342 
INFANTICIDE. 
u. The umbilical vein. 
b. Branches given off to the substance of the liver. 
i. The vena cava ascendens. 
h. The ductus vmosus. 
k k. The hepatic veins. , 
d. The vena portae, formed by the junction of the abdominal veins cc c. 
e. The cylinder of the vena portae, being its great right branch where it lies in the 
transverse fissure. 
/. The right branch of the vena portae in the liver. 
In the foetus anterior to respiration, the ductus venosus is 
always found open, and containing blood. In the child which 
has respired for a certain length of time, on the contrary, it 
will be found collapsed, and empty of blood. The whole ves- 
sel, after a certain time, becomes impervious, and is finally 
converted into a ligament. The period at which this final 
change takes place, varies very much in different cases. In 
twenty infants who had lived three days, the ductus venosus 
was fopid empty and obliterated.* Generally speaking, this 
vessel is obliterated before the ductus arteriosus or the fora- 
men 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. 
* Legons de Medecinc Legale, par M. Orfila, vol. 1, p. 384. Second edition. INFANTICIDE. 
343 
The umbilical vessels. These consist of two arteries and 
a vein. The former (the arteries) are nothing more than 
continuations of the iliac arteries. They mount up along the 
sides of the urinary bladder, and go directly to the umbili- 
cus, through which they pass, forming with the vein, the 
umbilical cord. These are the umbilical arteries, and they 
carry the blood of the foetus to the placenta. The latter (the 
umbilical vein,) carries the blood from the placenta to the foe- 
tus. It enters the foetus 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 foetal openings. In twenty cases 
of infants who died on the third day, they were in all found 
obliterated ; anterior to this they are open. The only infer- 
ence 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 take place 
in the circulation after birth, M. Billard has made a number 
of exceedingly interesting and important observations, which 
deserve to be recorded. 
Children of one day old. In eighteen children of this age, 
fourteen had the foramen ovale completely open; in two, its ob- 
literation 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 obliteration had commenced; and in one, it was com- 
pletely obliterated. This last was one of the two that had 
the foramen ovale completely closed. The umbilical arteries 
were open quite to their insertion in the iliac arteries; their 
calibre however, was diminished by a remarkable thickening 
of the coats. In all these children, the umbilical vein and the 
ductus venosus were open, and the latter 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 al- 
most obliterated; and in the remaining four entirely closed. 344 
INFANTICIDE. 
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 ar- 
teries were obliterated to a greater or less extent. The um- 
bilical vein and ductus venosus, though empty and flat, could 
yet be passed with a probe of considerable size. 
Children of three days old. In twenty-two infants of this age, 
fourteen had the foramen ovale still open; in five, the obliter- 
ation had commenced; and in the remaining three it was com- 
plete. In fifteen the ductus arteriosus was still free ; in five, 
the obliteration had commenced; and in only two was it com- 
plete. 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 complete. In seventeen, the ductus arteriosus was 
still open; in seven, the obliteration had commenced, and in- 
deed consisted only of a very narrow passage; in the three 
remaining, the obliteration was complete. The umbilical ar- 
teries were in almost all obliterated, even to the umbilicus, but 
were yet capable of being dilated, almost up to their insertion 
into the iliacs. The umbilical vein and the ductus venosus were 
completely empty and very much contracted. 
Children of five days of age. 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 of age. In twenty children of this age, INFANTICIDE. 
345 
the foramen ovale was completely shut in eleven; incomplete- 
ly 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. 
In 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 fifteen days, and even three weeks, without any particular 
accident happening during its life to the child.* 
From these observations, the conclusions may be drawn,— 
I. That the foetal openings are not obliterated immediately 
after birth. 2. ThaFthe period at which they are obliterated, 
is extremely variable. 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 ob- 
literate 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 
* 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 for- 
mer 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 incessantly ha- 
rassed with paroxysms of difficult breathing, cough, and discoloration of the skin. 
These became more and more frequent, and he eventually died of oedema and exhaus- 
tion. (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 postillion 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 
tranformed 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 dissec 
tion, 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 foundfopen in a man who 
died at the age of sixty. (American Journal of Medical Sciences, vol. 15, p. 223.) 346 
INFANTICIDE. 
is impossible to infer from the fact of their not being oblite- 
rated, that the child has not respired, since it has been shown 
that the obliteration is very far from being made immediately 
after birth.* 
The umbilical cord. This is the last peculiarity of the foetal 
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 the child was not born alive. As in the case of 
the foramen ovale and the ductus arteriosus, it has been sup- 
posed, however, that the successive changes which the umbili- 
cal vessels undergo, from birth until their final separation, might 
afford some indication of the length of time during which life 
had existed. M. Billard was the first person who properly in- 
investigated these changes. The first of these changes he de- 
nominates a withering of the cord. This is the incipient stage 
of the process of desiccation, and varies in its commencement, 
from five hours to three days after birth. Of eighty-six in- 
fants, sixteen had the cord a little withered; and of these six- 
teen, one was five hours old, six were a day>old, four were 
two days old, and four were three days old. In these cases, 
the cord was soft, a little bluish, very flexible, filled entirely 
the knot of the ligature, and the cut surface was still clean. 
Thus the withering of the cord may take place from the first 
to the third day after birth. 
The next change which the cord undergoes, is that of de- 
siccation or drying. The cord now becomes of a reddish brown 
colour; is flattened and shrivelled; its vessels are obliterated, 
and it becomes tortuous and dry. This process varies in its 
commencement from one and two days, to four days after 
birth. Out of eighty-six infants, twenty-four had the process 
of desiccation commenced. Of these, seven were only one 
* Traite des Maladies des Enfans, &c. par C. M. Billard, pp. 476-80. Also Lecons 
de Medecine legale, par M. Orfila, vol. 1, p. 387. Second edition. INFANTICIDE. 
347 
day old, eleven were two days old, three were three days old, 
and three were four days old. In all these the cord was 
blackened, shrivelled, and was loose in the ligature. The pe- 
riod at which the desiccation is complete, varies from one to 
five dp.ys after birth. The general period, however, is about 
the third day. Out of eighty-six infants, twenty-five had the 
cord entirely dry; of these, one was one day old—one, a day 
and a half old—five were two days old—jnine, three days old 
—four, four days old—five, five days old. 
By M. Billard, this desiccation is considered as a vital pro- 
cess, and his reasons are, in the first place, that the portion of 
cord beyond the ligature, or that which is attached to the pla- 
centa, does not undergo this process of desiccation—but de- 
composes and putrefies like any other dead matter—while the 
part of the cord between the ligature and the abdomen alone 
undergoes desiccation, a process entirely different from ordi- 
nary putrefaction. And in the second place, that the cord 
ceases to desiccate as soon as life ceases—that it does not de- 
siccate at all in the foetus which is born dead—that on the dead 
subject the cord undergoes a real putrefaction, which is alto- 
gether different from this desiccation.* 
The inferences drawn by Billard, from" the wThole of his ob- 
servations, are the following: 
1. The desiccation of the umbilical cord takes place during 
life only. 
2. At the moment of death this desiccation is completely 
suspended, 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.f 
The next change which the cord undergoes, is that of se- 
paration or dropping off. The period at which this takes place 
* Traite des Maladies des Enfans, &c. par C. M. Billard, p. 16. New-York Medi- 
cal 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 per- 
mit of their being injected. During life, on the other hand, the cord desiccates and 348 
INFANTICIDE. 
after birth, varies very considerably. In sixteen children ex- 
amined 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; one, 
seven days old.* 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 some- 
times later. Generally, then, the cord withers during the first 
day, at the end of which desiccation commences; desiccation 
is complete on the third day, and between the fourth and fifth 
day the cord drops off. All this, of 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 in- 
flammatory 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 observa- 
tions of Billard, it would seem to be more commonly absent. 
Out of eighty-six children, he found only twenty-six who ex- 
hibited 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. 
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 succeeded 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 separated, al- 
though 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, born 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. pu- 
trefaction of the cord never occurs, until this process has commenced 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 decom- 
position. (Billard, p. 23, 4.) 
* Billard, p. 26. f Ibid. p. 29. INFANTICIDE. 
349 
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. • 
The foregoing investigations in relation to the successive 
changes in the umbilical cord, are important not merely to 
establish the fact of a child’s having been born alive, but to 
determine how long it lived after birth. 
(c.) The distribution of the blood in the different organs of 
the body. From what has been already stated, it appears that 
there is a very striking difference in the mechanism of the 
heart and blood vessels of the fetus and those of the child 
after birth. A difference, therefore, in the general distribu- 
tion of the blood itself in these two cases, would seem to be 
a very natural consequence. And such indeed is the fact.— 
This difference is especially observed in two organs, the lungs 
and the liver, each of which requires distinct examination. 
1. The lungs. From the peculiarity of the vascular system 
in the fetus, only a very small portion of the blood goes the 
round of the pulmonary circulation, the greater part passing 
directly through the foramen ovale, and the ductus arteriosus. 
In the fetal state, therefore, the pulmonary bloodvessels are 
small, and contain scarcely any blood. As soon, however, as 
respiration is established, all this is changed, and then the 
whole mass of blood passes through the lungs for the purpose 
of undergoing the process of oxygenation. The pulmonary 
bloodvessels, accordingly, now become distended, and filled 
with blood. If, therefore, on examining any case, the blood- 
vessels of the lungs are found to be filled with blood, it is a 
proof that the child has enjoyed life. And on the contrary, 
if they are found empty of blood, it is a proof of the child’s 
not having enjoyed life. The means of ascertaining whether 
the pulmonary bloodvessels are in one state or the other, are 
the two following: 
(a.) Making incisions with a knife into the substance of the 
lungs. In the one case, a free effusion of blood follows the in- 
cision; in the other case, little or no blood follows. 
(b.) Ascertaining the actual weight of the lungs. When the 
lungs have a large quantity of blood circulating in them, it is 350 
INFANTICIDE. 
very evident that they must weigh much more than when they 
do not have this blood circulating through them. As soon, 
therefore, as the blood ceases to circulate through the fora- 
men ovale and the ductus arteriosus, and passes through the 
lungs, the weight of these latter organs must be increased, 
and just in proportion to the increased quantity of blood cir- 
culating in them. This, of course, is ascertained by simply 
weighing them. This is what is generally known by the 
name of the static test. To make this available, however, it 
is very obvious that some standard weight of the lungs in 
these two states must be fixed upon, otherwise, no conclusions 
in any individual case can safely be drawn. Now, to esta- 
blish such a standard, one of two modes may be adopted, viz. 
either to take the average weight of a certain number of 
lungs, and let that be the standard, or to compare the weight 
of the lungs in the two cases with the weight of some third 
body, and thus ascertain the relative difference between them. 
Both of these modes have been recommended by different in- 
dividuals, and to test their accuracy, numerous experiments 
have been made. 
With regard to the former of these modes, the first great 
object is to settle what is the greatest weight to which the 
foetal lungs ever attain. This being established, of course, 
whenever the lungs go beyond this weight, it is evident that 
respiration has taken place. By Schmidt, the extreme weight 
of the foetal lungs, which they never exceed, is fixed at 1170 
grams. Professor Bernt supports the observations of Schmidt. 
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, however, 
been established, that the foetal lungs do occasionally weigh 
more than this. “Among 104 case 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 as- 
certained, 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 INFANTICIDE. 
351 
had breathed, reported by Schmidt, 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 extraor- 
dinary 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 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 case in a large proportion of cases, the evidence 
deduced from it can only be comparative and presumptive. 
The other mode of applying the static test, is that which is 
commonly known under the name of the person who first pro- 
posed it, M. Ploucquet. As this is a test of much celebrity, 
it requires special notice. 
Ploucquets 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 be- 
fore respiration is one-seventieth of the weight of the whole 
body; while after respiration has commenced, it amounts to 
one thirty-fifth; or in other words, that the blood introduced 
into the lungs in consequence of respiration, doubles their 
absolute weight. 
Beautiful and decisive as this test appears to be, and correct 
as the general principle upon which it is founded certainly is, 
objections of a very serious character have been brought 
* See on this subject an admirable review, written, I presume, by Professor Chris- 
tison, in the Edinburgh Medical and Surgical Journal, vol. 26, p. 376. 
Arrowsmith proposes 1000 grains as the extreme weight. He says, “ when the 
fatal lungs, being naturally formed and of healthy structure, exceed 1000 grains, such 
weight may be considered as constituting decisive proof that the floating of the lungs 
and their loose and expanded appearance, do not result from insufflation practised on 
a dead child, but must be a consequence of the continuance of respiration and of the 
circulation of blood through them, and therefore of life; and even if the weight ex- 
ceed in any considerable degree 550 grai/is, the same inference is a reasonable pre- 
sumption.” (Cyclopaedia of Practical Medicine, vol. 2, p.689.) 352 
INFANTICIDE. 
against it. For the purpose of showing to what confidence it 
is entitled, it may be proper to notice some of the more im- 
portant objections. 
Examination of 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, deter- 
mine the value of this objection. It seems to be conceded on 
all hands, that M. Ploucquet deduced his theory from a very 
limited number of experiments. In one child born dead, he 
found the comparative 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 experiments which he had made, when he pro- 
mulgated the general conclusion which he drew from them. 
As might naturally be expected from the novelty and impor- 
tance 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 experiments yet made on this 
subject, were those conducted by M. Chaussier at Paris, and 
M. Schmitt at Vienna. The following are the results of some 
of their observations: INFANTICIDE. 
353 
Experiments on the bodies of infants who had 
respired. 
Experiments 
on the bodies of infants who had 
not respired. 
M. Schmitt. 
M. Chaussier. 
M. Schmitt. 
M 
. Chaussier. 
Weight of 
the body. 
Weight of 
the lungs. 
Proportion 
1 between the 
| wt. of the 
lungs and the 
1 body 
Weight cf 
the body. 
Weight of 
the lungs. 
Proportion 
between the 
wt. of the 
lungs and th< 
body. 
O • 
11 
Weight of 
the lungs. 
Proportion 
between the 
wt of the 
lungs and the 
body. 
Weight of 
the body. 
Weight of 
the lungs. 
Proportion 
between the 
wt. of the 
lungs and the 
bodv. 
Gram. 
Gram 
Gram. 
Gram 
Gram 
Gram 
Gram 
Gram- 
10t2 
35 
1 to 29 
1025 
38 
1 to 28 
<»59 
18 
1 to 36 
650 
6 
1 to 108 
1065 
31 
34 
1040 
32 
34 
873 
22 
39 
900 
19 
48 
1091 
66 
16 
1100 
25 
44 
1065 
70 
16 
1051 
21 
50 
1099 
35 
31 
1168 
17 
43 
1361 
3G 
37 
1400 
GO 
23 
1212 
31 
39 
1224 
46 
2t> 
1572 
39 
40 
1591 
38 
42 
1257 
18 
70 
1250 
41 
31 
1577 
33 
47 
1C25 
60 
25 
1466 
23 
52 
1469 
25 
59 
1915 
41 
44 
1900 
52 
• 37 
1518 
31 
48 
1520 
39 
39 
2090 
35 
59 
2080 
48 
43 
1883 
43 
43 
1850 
43 
43 
2177 
32 
67 
2200 
37 
69 
1968 
oo 
87 
1953 
81 
63 
2221 
28 
79 
2250 
87 
26 
2002 
54 
37 
2000 
72 
28 
2352 
54 
43 
2350 
44 
54 
2160 
57 
38 
2150 
60 
36 
2589 
74 
24 
2570 
30 
86 
2360 
46 
51 
2360 
38 
62 
2648 
43 
61 
2650 
47 
56 
2404 
30 
66 
2400 
74 
32 
2758 
35 
79 
74 
37 
2191 
70 
35 
2490 
97 
26 
2981 
44 
67 
2950 
48 
62 
2758 
87 
31 
2750 
93 
28 
3102 
70 
44 
3100 
57 
55 
2893 
49 
59 
2900 
54 
54 
3312 
61 
54 
3324 
41 
81 
2998 
70 
42 
3003 
113 
27 
3451 
49 
70 
3350 
54 
62 
3207 
61 
52 
3250 
65 
50 
3502 
61 
54 
3600 
50 
72 
3294 
80 
41 
3300 
75 
44 
3660 
57 
64 
36'2 
41 
90 
3731 
75 
49 
3650 
105 
35 
4150 
50 
83 
4161 
83 
50 
4150 
105 
39 
4040 
42 
96 
4185 
83 
50 
4300 
106 
41 
Mean propor 42-s—^ 
QQ 10 9 
Mean propor. 
<50 8 0 
4Q 9 * 
* Pictionaire des Sciences Medicales, art Docimasie Pulmonaire—and a translation of tiie same in 
the Western Quarterly Reporter, No. IV, 
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 experiments of 
Schmitt and Chaussier already recorded, as also by those of 
Hartmann. This latter physician makes the proportion to be, 
in an infant which has not breathed, as 1 to 59; and in one 
which has breathed, as 1 to 48. 
c. A third objection to this test is, that an excessive con- 
gestion of blood might occur in the lungs of a foetus that had 
never respired, which should 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 
* Mahon, vol. 2, p. 454. 354 
INFANTICIDE. 
for such a congestion to take place in lungs that have never 
respired, as shall render their weight equal to that consequent 
upon respiration; 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 foetus can- 
not be subjected to any examination upon which a medico- 
legal decision 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.”* 
The following observations and experiments have been in- 
stituted by myself, with the view of ascertaining the validity 
of this test: 
Obs. 1. In a male child in whom the respiration had been 
complete, the relative weight of the lungs and body was as 
1 to 35if. 
Obs. 2. In a female child, which had respired perfectly, the 
proportion was as 1 to 37$. 
Obs. 3. In a male child, born alive, but both body and lungs 
in a state of incipient putrefaction, the proportion was as 1 
to 46$. 
Obs. 4. This was a foetus which had reached about 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 in- 
cipient decomposition; the lungs, however, were perfectly 
sound. The proportion between the weight of the lungs and 
the body, was as 1 to 29. 
Obs. 5. A foetus between the fifth and sixth month, in a 
state of decomposition — the lungs sound. The proportion 
here was as 1 to 39f. 
* Mahon, vol. 2, p. 454. INFANTICIDE. 
355 
Obs. 6. In a male foetus between the seventh and eighth 
month, which had not respired, the proportion was as 1 to 62. 
Obs. 7. In a male child which had respired perfectly, as 1 
to 44.* 
Upon the whole, with regard to the general value of Plouc- 
quet’s test, it must be conceded, that in itself, it furnishes no 
conclusive evidence; as presumptive evidence, however, and 
when used for the corroboration or correction of other tests, 
it may be of great value. 
Relative weight of the heart and lungs. From the degree of 
uncertainty hanging around the test of Ploucquet, Orfila was 
inclined 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 test of experiment. For this purpose, he took the bo- 
dies of several foetuses, and having weighed them accurately, 
took out the heart and lungs, and cut off the venm cavse 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 re- 
sults were the following: 
* 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. 
Lemeux. p. 44. 356 
INFANTICIDE. 
Age of fetus. 
Duration of respiration. 
Weight of 
the body. 
Weight of the 
heart. 
,Propor. between 
Weight of the the weight of the 
lungs. jheart and lungs. 
At full time, 
Gram. 
22 SO 
2000 
2650 
2700 
2S00 
1700 
1450 
800 
2305 
3100 
2200 
2900 
1750 
1840 
1650 
1970 
Gram. c. 
13- 5 
10- 5 
19- 
15- 
16. 5 
9- 5 
Gram. c. 
50- 
ou • 
oy • 
3ll 
o / • 
5i 
DO • 
7 
At six months and a half, .. 
u 
04 • o 
14- 
17- 5 
D 
33 • 
21 
2t 
38 • 
36. 
TV 11 * 1 1* 
y • 
15- 5 
17. 
4 
29- 
35. 
61. 
26- 
25. 3 
1T'5 
At seven months and a half, 
21 * O 
8. 
ft. 
o 
5 
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.* 
* Lemons de Mcdecine Legale, vol. 1, p. 349. Second edition. INFANTICIDE. 
357 
2. The liver. Next to the lungs, the liver shows, in the most 
striking manner, the change which has taken place in the dis- 
tribution of the blood after birth. It is a fact well known, that 
previous to the birth of the foetus, the liver is much larger 
than it is afterwards. From the changes which take place in 
the circulating system immediately upon the commencement 
of respiration, the cause of this diminution in the size of the 
liver becomes very obvious. It has already been stated, that 
prior to respiration, the lungs have scarcely any blood circu- 
lating through them; hence they are small and collapsed. As 
soon, however, as respiration is established,, the pulmonary 
vessels become charged with blood; the lungs are consequent- 
ly much enlarged, and their actual weight greatly increased. 
Now there is no question that this blood is chiefly derived 
from the liver, and to this cause must its lessened size be prin- 
cipally attributed. Besides supplying the lungs with blood, 
there is another beneficial purpose answered by this diminution 
of the liver. If the lungs become enlarged and dilated, it is 
evident that the cavity of the chest must also be proportionably 
augmented, to enable them to perform their functions without 
restraint or injury. By the diminution of the liver, this is 
most effectually accomplished; inasmuch as by it the cavity 
of the abdomen as thus lessened, and the descent of the dia- 
phragm facilitated.* 
If this be a correct exposition of the reciprocal relations of 
the fcetal lungs and liver, it appears to me that an examination 
of the state of the liver must throw considerable light upon the 
question of a child’s having been born alive. 
If the size of the liver in the fcetal state be owing to the 
large supply of blood which it then receives, and if it uniform- 
ly loses a portion of this blood after respiration commences, it 
strikes me that a comparison of the weight of the liver before 
and after respiration, with the weight of the whole body, 
would assist us very materially in deciding whether a child 
had been born alive or not. The principle upon which the 
For a very able and satisfactory account of the state of the fcetal liver, see the 
paper of Mr. Bryce, published in the Edinburgh Medical and Surgical Journal for Ja- 
nuary, 1815. 358 
INFANTICIDE. 
proposed test is founded, is certainly just, and in practice it 
would not be liable to more serious objections than that of 
M. Ploucquet; on the contrary, it might serve in all cases to 
prove the accuracy of this latter test. To exemplify—if by 
the application of the test of Ploucquet in a case of supposed 
infanticide, it should be found that the lungs had acquired the 
weight of those of a child that had respired, and if by a sub- 
sequent examination of the liver, it should appear that this 
organ had lost none of its fcetal blood, then there would be 
just ground for suspecting that the increased weight of the 
lungs was owing not to respiration, but to some other cause. 
On the other hand, if experiments upon the liver should in- 
dicate that respiration has taken place, while the lungs them- 
selves exhibit no sign of it, then the diminished weight of the 
liver must be attributed to some other cause, and no possible 
error could arise frormthis source. If, how'ever, experiments 
both upon the liver and the lungs coincide in supporting the 
same opinion, who will deny that this concurrence of different 
tests would add greatly to the force and conclusiveness 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 present, in the hope that it may attract the attention of 
inquirers on this interesting subject.* 
(d.) The presence of ecchymosis or extravasation of blood on the 
body of the child. This is the last sign to show that the blood 
has circulated after birth. The characteristics of true ecchy- 
mosis are slight tumour of the part, a peculiar and variegated 
* This was originally suggested twelve years ago; and for obvious reasons, I leave 
it precisely in the form in which it was then written. Since then, I find this subject 
has attracted the attention of foreign waiters. 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: INFANTICIDE. 
359 
discoloration of the skin,* produced by a rupture of the small 
vessels of the part, and a consequent effusion of blood into 
the surrounding cellular tissue. They are produced by blows 
or other injuries, and when present, they prove that the blood 
was still circulating in the body when the injury which pro- 
duced them was inflicted. Injuries applied to a child in whom 
the circulation has ceased, are not followed by such pheno- 
mena. Professor Mahon mentions another possible cause of 
such extravasations, which should not be overlooked. He 
says they may result from putrefaction, which, by means of 
the air that is generated, bursts the veins, and then blood from 
very distant parts of the body is insensibly carried along to 
this outlet, so as to form a considerable extravasation.f It 
Dead before or after birth. 
Weight of the 
body. 
Weight of the 
liver. 
Proportion be- 
tween the weight 
of the liver and 
body. 
Still-born, 
lb. 
oz 
dr. 
6 
2 
0 
4 
0 
70 
24 
do. 
5 
0 
0 
4 
2 
46 
18 
do 
5 
6 
0 
5 
1 
15 
19 
do. 
5 
13 
4 
4 
3 
48 
21 
do 
6 
0 
0 
6 
0 
60 
15£ 
do. 
6 
2 
2-J 
5 
5 
70 
17 
Having scarcely respired, .... 
4 
12 
0 
4 
0 
11 
19 
do 
5 
14 
4 
4 
6 
24 
20 
do. 
5 
15 
4 
5 
6 
18 
16& 
do 
5 
13 
4 
3 
1 
52 
29 
do 
4 
6 
0 
3 
6 
18 
19 
do. 
5 
7 
0 
5 
0 
2 
16.J 
Having respired more, 
5 
4 
0 
4 
2 
34 
19J 
do 
5 
8 
4 
4 
5 
52 
18.J 
Respiration perfectly established, 
4 
12 
4 
3 
3 
60 
22 
do. 
5 
0 
4 
8 
1 
m 
10 
do. 
4 
15 
0 
4 
0 
11 
19J 
do. 
5 
13 
4 
4 
3 
13 
21 
do. 
5 
4 
0 
3 
4 
33 
23i 
do. 
6 
8 
6 
6 
2 
71 
16 h 
do. 
7 
11 
0 
9 
4 
61 
13 
do. 
5 
10 
4 
5 
6 
35 
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 perfectly established, than in those who had not re- 
spired; which ought to be just the reverse, according to this test. (Logons de Mede- 
cine Legale, par M. Orfila. Vol. 1, p. 393-4. Second edition.) 
* When a patient lives throughout the course of an ecchymosis, the changes of co- 
lour which it undergoes are the following. At first there is a spot of a red or bluish 
colour, formed in consequence of the extravasation of blood into the surrounding cellu- 
lar tissue; shortly after, it assumes a deep leaden or livid hue, and it then changes 
successively to a violet, green, yellow, and finally a citron colour. Usually, it is se- 
ven or eight days before it disappears entirely, 
t Mahon, vol. 2, p. 389. 360 
INFANTICIDE. 
could not certainly be very difficult to discriminate in a case 
of this kind, yet it teaches us a practical caution of some con- 
sequence, which is, to pay particular attention to those cir- 
cumstances which tend to favor the process of putrefaction, 
as the climate, season of the year, and place where the body 
is found. 
Having thus considered the various changes which take 
place in consequence of the blood having circulated after birth, 
I come next to notice those which follow as the consequences 
of respiration. 
The act of respiration constitutes the great distinguishing 
feature between adult and foetal life. Its commencement is 
succeeded by changes and revolutions in the animal economy, 
the most wonderful and interesting; and it is from these chan- 
ges that we are to gain still further materials for determining 
the question, whether a child has been born dead or living. 
The points here to be investigated are, the general configuration, 
and she of the thorax; the volume of the lungs; the situation of 
the lungs; the colour of the lungs; the shape of the lungs; the 
consistency or density of the lungs; the specific gravity of the 
lungs; the shape and situation of the diaphragm; the condition 
of the intestines, and the state of the bladder. 
1. The general configuration and she of the thorax. On exa- 
mining a child which has never breathed, the thorax will be 
found flattened, and, as it were, compressed. On opening in- 
to the thorax too, it will be found that the general size of this 
cavity is exceedingly small; the diaphragm also rises high into 
the thorax. All this, of course, is owing to the small size of 
the foetal lungs, and to their peculiar position in the cavity of 
the thorax. As soon as respiration takes place, the lungs dis- 
tend, and, as a consequence, the shape and size of the thorax 
is changed. Instead of being flat and compressed, the thorax is 
rounded and arched, and on opening into it, the cavity will be 
found enlarged in all directions. The diaphragm too will be 
found depressed. If, then, the thorax be found flat and small, 
it is an evidence that the child has not respired, and vice versa. 
Proofs of the child having respired after birth. INFANTICIDE. 
361 
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 establish 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 vertebrae; 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 evident, however, 
that such measurements must be very uncertain in their re- 
sults, owing to a great variety of unavoidable causes, such as 
the natural size of the child, &c.; and therefore the inferences 
drawn from them must inevitably lead, in many cases, to er- 
roneous decisions. 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 in- 
ferior 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 exceedingly doubtful and uncertain. 
The best way after all, perhaps, is to trust simply to ocular 
inspection. A little experience in examining the appearance 
of different subjects, will much better enable a person to de- 
cide correctly, than by the plan proposed by Daniel. 
2. The volume or size of the lungs. In the foetal state, the 
lungs are comparatively small in size. As soon as respiration 
takes place, they become distended with air, and, of course, 
increased in volume. For the purpose of rendering the test 
drawn from the volume of the lungs more accurate and availa- 
ble, various modes have been proposed to ascertain the exact 
increase of volume in different cases. The only one which I 
shall notice, was proposed by Daniel. 362 
INFANTICIDE. 
Daniel’s 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 re- 
spired, as well as those which had respired, for the purpose of 
acertaining 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 vo- 
lume of which is known, and which may afterwards be de- 
ducted from the volume of the lungs.* With regard to this 
test, however, it does not appear that any conclusions can be 
drawn from the absolute volume of the lungs which can be de- 
pended upon with any degree of certainty. 
3. The relative situation of the lungs. Anterior to respira- 
tion, the lungs occupy a small space at the upper and poste- 
rior part of the thorax, leaving the pericardium and the dia- 
phragm almost entirely, and sometimes completely, uncovered. 
If imperfect respiration has taken place, the lungs will be found, 
occupying the lateral portions of the thorax also. If respira- 
tion has been complete, they will cover completely the sides 
of the diaphragm, as well as the arch of the diaphragm. Al- 
though some three or four cases are recorded by Schmidt,! 
which tend to weaken somewhat the force of this test, yet in 
general, it is one of considerable value, and upon which much 
more reliance may be placed than upon the absolute volume 
of the lungs. 
4. Shape of the lungs. In this respect, a striking and peculiar 
change takes place in some portions of the lungs in consequence 
of respiration. In the foetal state, the lower margin of the 
left upper and right middle lobes are sharp and pointed, while 
after respiration has taken place, they become rounded and 
obtuse. 
* Dictionnaire des Sciences Medicales. Western Medical Reporter, vol. 1, p. 322. 
f See Marc, in Dictionnaire des Sciences Medicales, Art. Docimusie puimonaire. INFANTICIDE. 
363 
5. The colour of the lungs. In the foetus, previously to re- 
spiration, the colour of the lungs is brownish red. After re- 
spiration has taken place, they become of a scarlet or pale red 
at least those parts of them which have been permeated by air. 
It is very evident that this test, though generally true, must 
necessarily be liable to a great many exceptions. Disease in this 
respect, modifies very greatly the appearance of the lungs. 
In cases, for instance, where children have died from sangui- 
neous engorgement of those organs, notwithstanding respira- 
tion may have been going on for several days, the colour of 
the lungs will be of a dark brown. The action of the atmos- 
phere upon the lungs, too, changes their colour frequently. 
Thus, if, on opening the chest, the lungs be found of a brown 
colour, they change speedily to a much lighter colour. In 
making observations, therefore, on the colour of the lungs, it 
is to be done with great caution. It is proper to state here, 
that according to the experiments of Bernt, artificial inflation 
of the lungs never produces the scarlet tint of natural respira- 
tion. If it cause any changes of colour, it is only a pale or 
greyish red.* 
6. Consistence or density of the lungs. In the foetus and an- 
terior to respiration, the lungs are dense and solid, resembling 
very much the solidity of the liver; when cut into with a 
knife, they have no crepitation. After respiration, on the con- 
trary, the lungs are soft and spongy; air bubbles may be 
squeezed out of them, and when cut into they crepitate. All 
these phenomena, of course, are owing in the one case to the 
absence, and in the other, to the presence of air in the pulmo- 
nary cells. This is a very striking and important test. There 
is, however, one difficulty attending its application, which 
requires to be noticed. As will be shown hereafter, it is 
established, that the lungs of a child which has never respired 
can be completely inflated with air, and in this case, the soli- 
dity of the lungs may become changed very much in the same 
way as if natural respiration had occurred. On cutting them 
with a knife, crepitation will also take place. It becomes ne- 
cessary, therefore, to distinguish between these two cases. 
* Edinburgh Medical and Surgical Journal, vol. 26, p. 367. 364 
INFANTICIDE. 
The modes of doing this will be fully pointed out directly, 
when speaking of the hydrostatic test. With regard to the 
crepitation which results from cutting into the lungs, the dif- 
ference between them is, that when lungs which have actually 
respired are cut into, the incisions are followed by a greater 
or less flow of blood, while in artificial inflation this is not the 
case. From what has been already stated, the reason of this 
is perfectly obvious. 
7. Specific gravity of the lungs. It is to Galen that we are 
indebted for the first notice of the changes effected in the 
lungs by respiration. “ Ob earn causam,” says he, “ substan- 
tia carnis pulmonis ex rubra, gravi, densa, in albam, levem, ac 
raram transfertur.”* The knowledge of this fact was not, 
however, applied to the purposes of forensic medicine until 
after the lapse of several centuries. It seems to have first 
attracted attention a little before the time of Morgagni, who 
says, “ I do not know whether any one ever thought of mak- 
ing the experiment on this account, except a few lustra before 
my age.f Even Zacchias and Pare, who may be styled the 
fathers of forensic medicine, pass over it in silence. Haller 
speaks of it particularly, and notices some of the difficulties 
attending its practical application: “ Vixit certe puer, cujus 
pulmo aquis innatat, neque vitium subrepere potest, nisi vel in 
os inflatus asr fuerit, quod verum respirationis genus est, vel 
putredo, neque ea modica, tantum produxerit aeris, ut pondus 
specificum pulmonis, aliunde equidem asre exigua portione ma- 
jus, aquas pondere minus factum sit. Id modica putredo non 
efficit, major prsestat. Neque tunc error in medici effato lo- 
cum habet, si levi opera voluerit explorare, num et reliqua 
viscera natent. Id si viderit, non os in pulmonem per respi- 
rationem receptus causa erit natandi, sed aer ex humoribus 
carnibusque per communem legem putredinis expeditus.?’j; 
In the whole range of forensic medicine, there is pot a ques- 
tion more important, and at the same time more difficult, than 
* the one which relates to the floating of the lungs as a proof of 
* Opera Galeni de usu Part. lib. xv. cap. 6, p. 145, 6. 
t Morgagni's Works, vol. 1, Lett. 19, p. 536. 
i Haller’s Elementa Physiologic, vol. 3, p. 279, 80. INFANTICIDE. 
365 
the child’s having been born alive. It has divided the opinions 
of medical jurists from the earliest periods, and even at the 
present day it still remains 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 lengthened investigation of the subject cannot be questioned. 
For the purpose of rendering the subject as distinct as pos- 
sible, I shall first state the test, and then consider the different 
objections which have been brought against its accuracy. 
If the lungs of a child which has never breathed, be put in- 
to water, it is found that they are specifically heavier than 
the water, and of course sink. On the contrary, if respiration 
has once taken place, the lungs being specifically lighter than 
water, will then float. From these facts the general conclu- 
sion necessarily follows, that when the lungs of a child float 
in water, it must have respired, and therefore must have been 
born alive. And on the other hand, when they are found to 
sink, it is an evidence that the child has not breathed, and 
therefore was not born alive. This is commonly known by 
the name of the Hydrostatic test. 
Let us now see whether it is safe to trust to the evidence 
furnished by this test, by considering the different objections 
which have been urged against it These may be arranged 
under two divisions. The first, embracing those which go to 
show that the lungs may float, and yet the child not have been 
born alive. The second, embracing those which go to show 
that the lungs may sink in water, and yet the child may have 
been born alive. 
1. Objections brought forward to show that the lungs may 
float, and yet the child not have been born alive. 
Obj. 1. It has been objected, that a child may have been 
born dead, and yet the lungs will float in water, from having 
undergone putrefaction; and therefore, it is argued, that the 
mere floating of the lungs is no decisive proof of previous life. 366 
INFANTICIDE. 
With the view of giving this objection its full force, it may 
be proper first to consider the effects of putrefaction. 
Strange as it may appear, it has nevertheless been a sub- 
ject much debated, what the effects of putrefaction are upon 
lungs that have never respired; some asserting, that it renders 
them specifically heavier than water, and consequently, that 
they will sink when thrown into that fluid; while others, of 
equal respectability, maintain a contrary opinion. Both par- 
ties adduce experiments in proof of their particular assertions. 
The only solution that can be given to these contradictory 
results, is to admit that all the experiments have not been per- 
formed with sufficient care, so as to lead to conclusions uni- 
formly correct. Every thing depends upon the manner in which 
they are conducted. The most accurate, I believe, were those 
performed by Mayer, and as they place this subject in a very 
just point of viewq 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 exe- 
cuted with the utmost care and precision, Mayer found, on 
putting into water the lungs of still-born children, in whom, 
of course no sign of respiration or life had appeared, 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 ap- 
pearances continued 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 transferring the lungs to vessels containing clean 
water, they still continued 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 be- 
fore the tenth or eleventh day. After the lungs had once 
floated, they remained in that state, emitting daily a more of- INFANTICIDE. 
367 
fensive 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 for seven weeks, and 
in some instances a much greater length of time.* 
The foregoing experiments were made in the month of Au- 
gust. The lungs, both entire and cut into sections, were im- 
mersed in pure fountain water, and contained in vessels con- 
venient and capacious. In short, every precaution seems to 
have been scrupulously observed, to render the experiments 
accurate and satisfactory. 
My own experiments on this subject, although not numer- 
ous, go to confirm, in every essential point, those which have 
been just detailed. 
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 pu- 
trid. A case of this kind is related in which the child wras 
certainly born dead. It had already become putrid when it 
was dissected—its vessels were full of air—and vesicles dis- 
tended with it were seen on the surface of the lungs. On 
putting the lungs 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 continned 
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, and their truth cannot be doubted. It seems sin- 
gular, indeed, that they should ever have been questioned, 
when a case perfectly 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 
* Mayer in Schlegel’s Collectio Oposculorum Selectorum ad Medieinam Forensem 
Spectantium, vol. 1, p. 262, 3, 4. 
f Edinburgh Medical Essays, vol. 6, p. 450. 368 
INFANTICIDE. 
render it specifically lighter than water; and finally descends 
again, upon the extrication of that air. 
Such being the effect of putrefaction, it becomes a question 
of great importance, to determine in what way we may dis- 
criminate between the floating of the lungs, as caused by na- 
tural respiration, and that which is the result of decomposition. 
Independently of the changes produced in the colour and 
general appearance of the lungs by putrefaction, there are 
other very characteristic marks by which they may be distin- 
guished. 
(a.) By the appearance of air bubbles on the surface of the 
lungs. 
On this subject, Dr. William Hunter lays down the follow- 
ing rule : “If the air which is in the lungs be that of respira- 
tion, the air bubbles wifi 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 emphysematous, and not air which had been taken 
in by breathing.”* Jaeger had before this made a similar ob- 
servation. 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 re- 
spiration never finds its way.f This rule appears to be 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 evi- 
dence 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 immediately sink in water. On the contrary, no 
compression, however strong, can force out so completely the 
air from lungs that have respired, as to cause them to sink. 
This test is insisted upon by Marc, a very distinguished wri- 
ter on this subject, as the most certain means of discriminating 
between the effects of putrefaction and respiration.^ 
* 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. 
t Jaeger in Schlegel, vol. 5, p. 111. 
{ Dictionnairc des Sciences Mfjdicales, vol. 10, Art. Docimasie pulmonaire. INFANTICIDE. 
369 
(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 portion 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. 
(rf.) By an examination of the other viscera of the body. 
Numerous observations have established the fact, that with 
the exception of the bones, the lungs resist putrefaction longer 
than any other part of the body. Faissole and Champeau, in 
experiments which they made upon drowned animals, observed 
that the lungs remained sound, after the whole of the body 
had become 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 pu- 
trefaction, 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 myself observed the same phenomenon 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 dis- 
tended with air, and so were the bowels. The lungs, on the 
contrary, were perfectly natural in their appearance, and un- 
touched 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 putre- 
faction, 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, little or no 
difficulty can arise in deciding whether the lungs float from 
putrefaction or from respiration. 
But suppose the lungs are found to be actually in a state of 
putrefaction, is the physician then justified in drawing any 
conclusions, or in giving any opinion'? Mahon advises, in such 
cases, that it is better for the medical witness to be silent. 
* Mahon, vol. 2, p. 400. 
t Ibid. vol. 2, p. 400, 
t Dissertation on Infanticide, by W. Hutchinson, M.D. p. 47. 370 
INFANTICIDE. 
and to leave to the magistrates the task of finding out other 
grounds of accusation.* Marc, however, answers this ques- 
tion in the affirmative, and proposes two characteristics to 
enable him to offer a positive decision. The first is, that lungs 
which have respired, notwithstanding they may have been 
attacked by putrefaction, always have a crepitus when cut 
into; whereas those which have never respired, although they 
float in water, are destitute of this peculiarity. The second, 
and which he considers the most decisive and certain, is this: 
that upon squeezing out from sections of the lungs the matter 
developed by putrefaction, they will sink if they are from a 
child born dead; but, on the contrary, if they are from a child 
born alive, they will, notwithstanding this, continue to float.f 
Obj. 2. It is objected that a child may have been born dead, 
and yet its lungs may float in water, in consequence of their 
having been artificially inflated; and therefore, it is argued, 
that the mere floating of the lungs is no proof of previous life. 
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. § Roede- 
rer, from the failure of his experiments on this subject, was 
led to the conclusion, that it can only be effected after the 
child has previously breathed. “A spiritu ori,” says he, “in- 
flato pulmones infantis non inflari dilatarique; nisi foetus aliunde 
respiraverit.”|| 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 resis- 
tance 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 
* Medecine Legale, vol. 2, p. 400. 
t Manuel D’Autopsie Cadaverique, p. 134. 
X Morgagni’s Works, vol. 1, p. 536. 
§ Anthropologia Forensis, etc. p. 405. 
|| Collectio Opusculorum Seleetorura ad Medicinam Forensem Spectantium. Cu- 
rante Dr. J. C. T. Schlegel. Vol. 5, p. 112. 371 
INFANTICIDE. 
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.* 
A contrary doctrine is, however, maintained by a very large 
majority of the most respectable authorities in forensic medi- 
cine. Low admits the possibility of it, and tells us that Bohn, 
together with the medical faculty of Leipsic, concurred in the 
same opinion.! Ludwig says, it is certain that air may be ar- 
tificially 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. § 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.|| 
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. This consi- 
deration I conceive to be important, because it tends to weaken 
very much the force of this objection to the hydrostatic test. 
Still, however, the objection holds good, and there are not 
wanting occasions when artificial inflation might be attempted. 
It is not incredible that it might be the result of malice, de- 
signed to injure the innocent mother; or of maternal tender- 
ness endeavouring to resuscitate a lifeless child. It becomes, 
then, a matter of great moment, to determine whether the 
existence of air in the lungs be the product of nature or of art; 
and it is fortunate for the cause of justice, as well as humanity, 
that this can be done. 
(a.) The first test which I shall notice for this purpose, was 
originally proposed, I believe, by Buttner, and is founded upon 
* Medicina Legalis sive Forensis, p. 186. 
t Theatrum Medico-Juridicum. Cap. 12, p. 623. 
t Institutiones Medicinae Forensis, etc. p. 97. 
$ Schlegel, vol. 5, p. 112. 
j] A Practical Compendium of Midwifery, p. 96. American edition. 372 
INFANTICIDE. 
the difference of the foetal and adult circulation of the blood. 
In the former, it is well known that the blood does not pass 
through the lungs; whereas, as soon as respiration commences, 
the old passages are closed, and the whole mass is forced 
through those organs. If, therefore, a child has been born 
dead, the arteries and veins of the lungs are found destitute of 
blood, and in a collapsed state, notwithstanding any artificial 
inflation that may have been practised upon them. On the 
contrary, the vascular distention of the pulmonary organs 
proves that the child has breathed; for nothing but natural 
respiration can produce this effect. 
(&.) A second method of determining this question, is by 
taking the absolute weight of the lungs, according to the static 
test, as already noticed. 
(c.) A third test has very lately been proposed by M. Be- 
dard. He asserts that the lungs of a child which has not re- 
spired, but which float in consequence of artificial inflation, 
may, by pressure, be deprived of all the air introduced into 
them — recover their original density, and sink in water; 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 cause them to sink. This experiment is said to have been 
successfully repeated by M. Beclard, in the presence of wit- 
nesses.* The experiments of Prof. Bernt would, however, 
seem to show the contrary. In three cases of still-born chil- 
dren, after artificial inflation, “ the lungs united with the heart; 
separated from it; divided into lobes and segments; nay even 
also when squeezed, floated on the surface of the water.”! 
Two observations of an analogous character are also reported 
by Prof. Mendel of Breslaw.J Still more recent experiments, 
on the other hand, made in England by Mr. Jennings, go to 
support the accuracy of this test. In seven experiments re- 
ported by him, the lungs of children still-born and artificially 
inflated, were made to sink by compressing them. When the 
* London Medical Repository, vol. 9, p. 161. 
t See Remarks of Professor Christison on a Case of Infanticide by Dr. Scott, in the 
Edinburgh Medical and Surgical Journal, vol. 26, p. 74. 
J See Dictionnaire des Sciences Medicates, Art. Docimasie pulmonaire. INFANTICIDE. 
373 
child had breathed, this could not be done without actually 
mashing the lungs.* 
(d.) A fourth test has been suggested by M. Marc. He 
considers 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 the inferior 
extremity of that lung will remain in a collapsed state, and 
ffoat but imperfectly, or not at all. 
This test is certainly ingenious, but I think hardly conclu- 
sive, inasmuch as there is some doubt whether the same ap- 
pearances may not be observed after natural respiration has 
taken place; and if so, it can furnish no ground of distinction 
between respiration and artificial inflation of the lungs. Whe- 
ther the lungs become gradually filled with air by respiration, 
or whether they are filled at once, is a question in relation to 
which differing facts are adduced. M. Portal appears long 
since to have established the fact that the right lung receives 
air much sooner than the left. In a kitten which he killed a 
few minutes after it was born, the right lung was of a whitish 
colour, filled the whole cavity of the chest, and swam in 
water; the left was of a dark red colour, in a collapsed state, 
and sunk in water. He accounts for this interesting pheno- 
menon, by showing that there is a difference in the size and 
direction of the bronchia? leading to the two lobes. 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.f By Mr. Jennings, a case is related of a child which had 
breathed imperfectly for half an hour only, in whom the right 
lung floated, and the left lung sank, with the exception of a 
small part about its root.J 
(e.) Another test is that drawn from the state of the ductus 
arteriosus. This has already been treated of so fully, as to 
require no further elucidation. 
* Transactions of the Provincial Medical and Surgical Association, vol. 2, p. 437. 
London Medical Quarterly Review, vol. 2, p. 365. 
1 Duncan’s Medical Commentaries, vol. 1, p. 245. American edition. 
1 Transactions of the Provincial Medical and Surgical Association, vol. 2, p. 437. 374 
INFANTICIDE. 
Obj. 3. It is objected that there may be an emphysematous 
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 forward by Chaussier, in some cases where he was 
obliged, in consequence of the smallness of the pelvis, to de- 
liver by the feet, and where death took place during delivery. 
The lungs, on being put into water, floated. M. Chaussier 
explained this phenomenon by supposing, that in consequence 
of the violence done to the lungs during the delivery, an effu- 
sion 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 Chaussier, 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. In 
these cases, the aeriform fluid exists only in the cellular tissue.! 
Obj. 4. It has been objected, that “ a child will very com- 
monly breathe as soon as its mouth is born, or protruded from 
its mother; and in that case, may lose its life before it is born, 
especially 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 no- 
ticed by Morgagni, and I find it discussed by the German 
writers early in the last century. It must be admitted, how- 
ever, that the high authority of Hunter’s name has given to it 
an importance which it otherwise would never have possessed, 
and it is on this account more especially deserving of exami- 
nation. It involves two points, each of which is worthy of 
distinct elucidation. 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 I 
* Alberti noticed it in 1725, and Schmidt in 1806. (Edinburgh Medical and Surgical 
Journal, vol. 26, p. 374.) 
t Considerations Medico-lggales sur l’lnfanticide. Par A. Lecieux. p. 55, 6. 
X Dr. W. Hunter, in the Medical Obs. and Inq. of London, vol. 6, p. 287. INFANTICIDE. 
375 
Although it is denied by some very respectable authors, 
that a child can perform the act of respiration when merely 
its head is born, yet the fact rests upon evidence too substan- 
tial to be contradicted. 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 born4 Another case of more 
recent occurrence is related by Dr. Ward, an American phy- 
sician. 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. Admit- 
ting, then, that a child may actually breathe in the situation 
we have supposed, is it probable that it will lose its life before 
the complete expulsion of the body I 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 possible, 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 al- 
* Manuel D’Autopsie 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. 
jj Edinburgh Medical and Surgical Journal, vol. 26, p. 63. 376 
INFANTICIDE. 
luded to, in which the child was safely delivered. Even Osi- 
ander, with all his marvellous cases, 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 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 owing to one or other of the 
following causes: 1. Natural debility of the child. 2. Pres- 
sure on the umbilical cord, interrupting the foetal circulation. 
3. Cessation of labour pains. 4. Unusual shortness of the um- 
bilical 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 occa- 
sion it, seems to be proved by the very fact of respiration 
having taken place; for the exercise of that function so pre- 
maturely, necessarily implies a degree of vigour inconsistent 
with the supposition of such original feebleness. 
That pressure on the cord should produce the death of the 
child, appears equally improbable. It is perfectly plain, that 
wrhen this cause proves detrimental, it must be anterior to re- 
spiration, and when as yet the life of the child depends wholly 
upon the foetal circulation. In the present instance, however, 
the child is supposed to have already breathed, and therefore 
any accidental interruption in the foetal circulation cannot, in 
all probability, be attended with any injurious consequences. 
Cessation of the 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 expelled. 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 function proves not merely that the child INFANTICIDE. 
377 
is vigorous, but also that its thorax and body are not so close- 
ly compressed by the parts of the mother as to endanger its 
life. Hence a child, under these circumstances, may be de- 
tained a considerable length of time, without jeopardizing its 
existence. 
Unusual shortness of the cord. Cases of this kind occasion- 
ally occur. But here too the very fact of respiration having 
commenced, gives the child the best possible chance of being 
eventually born alive. 
Preternatural enlargement of the body of the child, more es- 
pecially 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, if not impossible, it would be, for it to re- 
spire. If, however, it did actually respire, then the hazard of 
a long detention in this situation, would, by this very circum- 
stance, be materially diminished. In addition 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.* 
* Since penning the above, I have received the following note from Dr. Hosack, 
communicating the particulars of a highly interesting case. 
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 occa- 
sions, excepting that she suffered more severely from her pains, doubtless attributable 
to the child being larger than those she had borne in her preceding labours. 
Being absent from home when sent for, another physician wras 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 its 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. 378 
INFANTICIDE. 
A tumour on the body of the child. This, of course, must be 
a very rare occurrence, and can never lead to any false deci- 
sions. I mention it merely because a case of this kind is re- 
corded, 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 art 
hour, the child frequently cried so loud as to be heard by the 
attendants.”* It does not, however, 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. Hunter, which we are consi- 
dering, it proves, in the most pointed and satisfactory man- 
ner, how little danger attends the child in this situation, when 
it enjoys the benefit of respiration. Besides, it should be re- 
collected, that in all cases where delivery is prevented in con- 
sequence of the unnatural size of the parts about the shoul- 
ders, &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 surround 
them. 
From the foregoing discussion, it may, therefore, fairly be 
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 been 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 prompt and 
correct decision. 
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 practitioner in Tain, whom I ac- 
companied, 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 be- 
fore 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 shoul- 
ders, 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 in all these cases, experiments were not instituted, with 
the view of ascertaining the state of the lungs, especially as it regards their weight, 
and floating in water. 
* Mahon’s Essay on Infanticide, translated by Christopher Johnson of Lancaster- 
See note by Mr. Johnson, p. 25. 379 
concluded, that in reality very little danger attends the child 
under the circumstances which we have supposed. 
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 di- 
rects that wTe should “ attend to the head, examining that the 
membranes do not cover the mouth, but that the child be ena- 
bled to breathe, should the circulation in the cord be obstruct- 
ed. There is no danger in delay, and rashly pulling away the 
child is apt to produce flooding, and other dangerous acci- 
dents.” 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 removed from the face, there is no 
risk of the child.,:* Denman also remarks, that “ it was for- 
merly supposed necessary for the practitioner to extract the 
body of the child immediately after the expulsion 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, hut 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 favorable exclusion of the placenta will also, by this 
means be obtained.”! 
On a review of the whole of this part of our subject, it re- 
sults, that a child may occasionally breathe as soon as its head 
is delivered—that the very fact of its breathing in this situa- 
tion, 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 at once evident upon a mere examination of the 
body of the infant. 
Obj. 5. There is still another objection which requires to 
be noticed, and this is that a child may respire while yet in 
the womb, and before any portion of it is delivered. 
With regard to the occurrence of respiration in a child 
while yet in the womb and before the rupture of the mem- 
branes, the thing seems to me physically impossible, and there 
INFANTICIDE. 
* Principles of Midwifery, pp. 246, 376. 
t Introduction to the Practice of Midwifery, p. 289. 380 
INFANTICIDE. 
is no evidence which can satisfy me that it has ever taken 
place.* This cannot be looked upon in the light of an objec- 
tion 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 
* 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 which 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 triumphs,” 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, 
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, it is but fair to add the following; “ A medical 
practitioner, unable to superintend a lingering case in midwifery under the care of 
liis 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 Infanticide, 
p. 109.) 
To those who feel a curiosity in investigating this subject, the following references 
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. INFANTICIDE. 
381 
mouth presents, so as to offer a ready communication between 
it and the external atmosphere, then imperfect respiration may 
take place, and in some cases has actually done so. The fol- 
lowing cases, recorded on respectable authority, will illustrate 
this. The first is related by Prof. Holmes, of Montreal, Ca- 
nada:—“ On the 29th of October, 1828, I was called to a lady 
in labor of her sixth child. The fontanelle presented, but the 
pelvis being capacious, and her labours generally easy, no at- 
tempt was made to change the position. The head continuing 
to descend, the mouth lay on- the pubis, and the examining 
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 muf- 
fled by some covering, but not very distinct, and not being at 
all prepared 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, inquired 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 foetus emitting cries before the commencement of la- 
bour.”* 
Another case, analogous to this, is still more recently relat- 
ed 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 confine- 
ments, and she had always had quick deliveries, as the pelvis 
was unusually capacious, and her pains were active. After I 
* Edinburgh Medical and Surgical Journal, vol. 33, p. 215. 382 
INFANTICIDE. 
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 
difficulty 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 action, and after two pains, the child was ex- 
pelled alive and well, at least one hour after it had respired 
and cried in the womb.”# 
Now, in reply to the difficulties created by this objection, 
the following considerations may be urged: 
In the first place, such cases must be exceedingly rare. Face 
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.f Even when such presentations do hap- 
pen, the occurrence of respiration anterior to delivery can 
take place only under very peculiar circumstances. In the 
two cases detailed above, it wrill 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 wras 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, how- 
* Lancet for July, 1834. 
t Edinburgh Medical and Surgical Journal, vol. 19, p. 469. INFANTICIDE. 
383 
ever,) 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 the preceding examination of objections to the hy- 
drostatic test, I think that we may safely come to the follow- 
ing conclusions: 
1. That when the lungs float in water, it must be from one 
of four causes: natural respiration—putrefaction — emphyse- 
ma— the artificial introduction of air. 
2. As the lungs may float from other causes beside respira- 
tion, their mere floating is no proof that the child was born 
alive. 
3. As, however, it is possible to discriminate between the 
floating 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 been 
born alive. 
* 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 Edinburgh 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 com- 
plete the delivery. Vaginal respiration is also so far similarly circumstanced. Re- 
spiration 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 perhaps 
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 con- 
sequently is not easily concealed. It appears, therefore, that the possibility of respi- 
ration before the close of labor, forms an objection to the employment of the hydrostatic 
test, only so far as it may occur in tedious natural labour. Now, independently of re- 
spiration 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 la- 
bour having been tedious, may always be ascertained by moral evidence. This ob- 
jection, thererefore, is not of much consequence.” (Edinburgh Medical and Surgical 
Journal, vol. 26, p. 372.) 384 
INFANTICIDE. 
II. I come now to examine another class of objections to 
the hydrostatic test, which have been much insisted upon, and 
which have tended, perhaps, no less than those which have 
already been considered, to shake the faith of the public with 
regard to its accuracy. I mean those objections which are 
urged for the purpose of showing that a child may have been 
born alive, notwithstanding the lungs sink in water. 
Obj. 1. It has been objected that the child may have breath- 
ed, and yet the lungs, in consequence of diseases of various 
kinds, may have their specific gravity so increased as to cause 
them to sink in water. And, therefore, it is argued that the 
sinking of the lungs is no proof that the child was not born 
alive. 
This objection has been deduced principally from analogy. 
It has been observed, that various morbid affections of the 
pulmonary organs of adults, as peripneumony, hydrothorax, 
calculi, schirri, ulcers, &c., will cause their subsidence in wa- 
ter, and hence it has been inferred, that the same might take 
place in the foetus. 
That the lungs of adults may undergo such changes from 
disease, as to cause them to sink in water, I am not disposed 
to deny, although I think it occurs less frequently than is ge- 
nerally believed. Haller informs us, that he has seen lungs 
of this description, which nevertheless continued to float. 
“ Vidi sanguinem ex ruptis per funestam peripneumoniam va- 
sis in pulmonem effusum, ut tamen nataret; vidi schirrhos, 
calculos, et lymphaticum coagulum, ut minime tamen subside- 
ret.”# He admits, however, having seen a case of peripneu- 
mony, in which the lungs sunk in water, and he adduces se- 
veral other cases of a similar nature, upon the authority of 
others.f Heister records the case of a young man who died 
of phthisis, whose lungs were specifically heavier than water*! 
De Haen relates, that he met with three or four cases, in 
which portions of the lungs of adults sunk in water, and, he 
adds, that Diemerbroeck witnessed the same in a patient 
whose lungs were in a schirrous condition. § Hoffman details 
* Element. Physiologic, vol. 3, p. 281. 
1 Ibid. 
| Hebenstreit, p. 401. 
§ Ratio Medendi, p. 114. INFANTICIDE. 
385 
the case of a young man who died of pneumonic fever, in 
whose lungs the same was observed.* In speaking of the dis- 
sections of those who died of pleurisy, in the Island of Mi- 
norca, Cleghorn says, that “ in many the lungs were con- 
verted into a hard liver-like substance, and sunk in watery] 
Dr. Baillie confirms the same general fact. “In conse- 
quence,” says he, “ of the greater quantity of blood being ac- 
cumulated in the inflamed portion of the lungs, they become 
considerably heavier, and will frequently sink in water.”] 
Finally, there is recorded, in a late Journal, a case of “con- 
densed lungs,” occurring in a subject twenty-four years of 
age, and which immediately sunk on being immersed in wa- 
These facts are sufficient to illustrate the grounds upon 
which the objection rests. And they prove incontestibly, that 
the lungs may occasionally be rendered, by disease, specifi- 
cally heavier than water. It cannot be admitted, however, 
that these morbid conditions will frequently occur in the foe- 
tus, for it is not exposed to the influence of the causes which 
usually produce them. Haller, notwithstanding his great ex- 
perience 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 pul- 
mo calculis, schirris, aliave materie, morbose gravis in aqua 
subsideat, etsiquam respiraverit.”J| Brendel in speaking on 
this subject, relates only a single case of an abortive foetus 
which had schirrous lungs, and considers it a singular occur- 
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 li- 
ver, but we doubt that such inflammation 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 
* Opera Omnia, vol. 2, p. 140. 
+ Observations on the Epidemical Diseases of Minorca, by Geo. Cleghorn, p. 159, 
American edition. 
t Morbid Anatomy, p. 33, American edition. 
§ Edinburgh Medical and Surgical Journal, vol. 4, p. 301. 
|| Element. Physiologiae, vol. 3, p. 281. 
U Medicina Legalis, p. 10. 386 
INFANTICIDE. 
fact, that any portion of lungs which have breathed, will ever 
be rendered specifically heavier than water, by the mere set- 
tling of the blood in the lowrer portions after death.”* 
It appears then, as well from reason as from facts, that the 
objection is founded upon the existence of circumstances rather 
possible than probable; as such, however, it demands consi- 
deration, and it is necessary to suggest the means by which a 
false judgment may be prevented. 
For this purpose we have a test both simple and certain. 
The objection takes it for granted that the child has breathed; 
whether feebly or vigorously is a matter of no consequence. 
Some part, therefore, of the lungs must contain air, and al- 
though the quantity of it may be too small to cause the whole 
of the lungs to float, yet if they be divided into a number of 
pieces, and any of them remain on the surface, there can be 
no hesitation about the conclusion to be drawn. Fodere states 
that he frequently made experiments upon lungs that were 
schirrous, or had congestions of blood, and he uniformly found, 
that although they sunk when put into water entire, yet, when 
cut into pieces, some of them always floated.! 
An additional consideration, to aid in doing away this diffi- 
culty, is this. If the lungs are so diseased by tubercles, or 
any other morbid cause, as to render them specifically heavier 
than water, and thus cause them to sink, there can be no dif- 
ficulty in detecting the presence of such disease, and, there- 
fore, no error can arise from this source. 
Obj. 2. It has been objected, that a child may have actually 
breathed, but yet so feebly and imperfectly, that the lungs 
shall not have received air sufficient to enable them to float; 
and hence it is argued, that the sinking of the lungs is no 
proof that the child was born alive. 
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 
* Edinburgh Medical and Surgical Journal, vol. 12, p. 79, 80. 
f Fodere, vol. 4, p 487. 
* Morgagni's Works, vol. 1, epist. 19, p. 536. INFANTICIDE. 
387 
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.* 
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 respiration has been, some portion of the lungs will ne- 
cessarily be inflated, and therefore must float. Any error 
which might possibly arise, may be still further corrected, by 
the application of the static test, and by observing the state 
of the ductus arteriosus. 
Obj. 3. It has been objected, that a child may be born alive 
without breathing; and therefore, in this case, the sinking of 
the lungs is no proof that the child was not born alive. 
The fact upon which this objection is raised, cannot be 
questioned;! nevertheless, it is both safe and just to consider 
as dead, every child that has not breathed. Governed by 
such a rule, any error that may be committed, will always be 
on the side of mercy. It is true, that certainty is as desira- 
ble here as in any other case, for the destruction of a feeble 
child is a crime as enormous as that of a vigorous and healthy 
one, and the punishment of the murderer of the one, is equal- 
ly an object of public concern with that of the other. But, 
in the language of a distinguished writer on this subject, 
“ pour le punir, il faut le constater; et lorsque les limites de 
1’art nous refusent le ddgre de certitude que nous ambition- 
nons, la elemence, que dis-je, la crainte d’immoler l’innocence 
devra l’emporter sur toute autre consideration.”^ 
* A Dissertation on Infanticide, in its relations to Physiology and Jurisprudence, 
by W. Hutchinson, M. D. 1820. 
t A case of this kind is related by Ouvrard, in which a child actually lived fourteen 
hours, without breathing. On dissection after death, the ordinary tests applied to the 
lungs gave no evidence of respiration, except the escape of a few bubbles of air on 
passing the right lobe under water. Every portion of the lungs, however, sank in 
water. (American Journal of the Medical Sciences, vol. 4, p. 247.) 
♦ Manuel D’Autopsie Cadaverique, etc. par C. C. H. Marc, p. 140. 388 
INFANTICIDE. 
This objection, so far from showing the inconclusiveness oi 
this test, serves only to establish more clearly its absolute ne- 
cessity. It is by resorting to it alone, that the sacrifice of in- 
nocence can be prevented, for who would assume the respon- 
sibility of deciding that a child had been born alive, when no 
evidence could be discovered of its having respired 1 
From the foregoing considerations, 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 respira- 
tion—feeble and imperfect respiration—some disease of the 
lungs, rendering them specifically heavier than the water. 
2. As the lungs may sink from other causes than the ab- 
sence of respiration, their mere sinking is no decisive proof of 
the child’s having been born dead. 
3. As, however, the sinking from the want of respiration 
may easily 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 was not born alive. 
I have now gone through the discussion of this subject; and 
although the general conclusion is decidedly in favour of the 
accuracy of the hydrostatic test, yet nothing can be plainer 
than the necessity of an extensive acquaintance with the sub- 
ject, to enable the professional witness to do justice to himself 
and to the cause of truth. It is much to be feared, that from 
the ignorance of some, and the precipitancy of others, great 
and fatal errors have not unfrequently been committed. It 
may not, therefore, be improper to present a summary of 
■practical rules, for the guidance of the physician when called 
to the examination of a case, which, of all others, demands a 
combination of the exercise of the soundest judgment and the 
most profound knowledge. 
(a.) As preliminary to any examination of the lungs, the child 
should be weighed, and the general appearance and condition 
of the body should be particularly noted, with the view of as- 
certaining the following points, viz: If the child be full grown* 
if the different parts of its body be well proportioned; if the INFANTICIDE. 
389 
shoulders be uncommonly large, when compared with the size 
of the head; if any tumours are to be found upon the body; 
if the cord be unusually short; and, finally, if any symptoms 
of putrefaction be present. 
(b.) The chest should then be carefully opened, and the fol- 
lowing things noticed: the general shape of the thorax; the 
situation of the lungs, especially their relative situation to the 
diaphragm and pericardium — their volume — their shape — 
their colour; and whether there be any appearance of putre- 
faction. 
(c.) The next step is to remove the contents of the chest, for 
the purpose of performing the necessary experiments upon the 
lungs. The aorta and vena cava should first be tied near the 
heart, and then cut beyond the ligatures; the trachea should 
then be also divided. The lungs, together with the heart, are 
now to be taken out of the chest, and to be submitted to an 
additional inspection, to ascertain'whether they are sound or 
diseased, and if they are at all affected by putrefaction. 
(d.) A convenient vessel containing water should now be 
provided, and particular attention should be paid to the tem- 
perature of the water in which the lungs are to be immersed. 
The reason of this will be perfectly obvious, when it is recol- 
lected that the specific gravity of water varies with its tem- 
perature; 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 temperature 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. 
(e.) 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 390 
INFANTICIDE. 
the water, or just under it; if they sink, whether they do so 
rapidly or gradually. 
(/.) The lungs should then be taken out of the water, and 
after tying the pulmonary vessels, they should be separated 
from the heart, and accurately weighed. 
(,g.) The lungs should then be replaced in the water, to see 
whether they sink or float, and in what way. 
(h.) The two lobes should then be separated, and the same 
experiment repeated upon each, noticing the difference, if any, 
between them. If one only floats, see if it be the right one. 
(«.) Each lobe should then be divided into a number of pieces, 
taking care not to confound the fragments of one lobe with 
those of the other, and upon each of these the same experi- 
ments should be instituted. 
(■k•) While cutting the lungs, observe if there be any crepi- 
tus; if the vessels are charged with blood; and if there be any 
traces of disease. 
(/.) If any of the sections of the lungs float, they should be 
taken and squeezed forcibly in the hand, and then replaced in 
the water, to determine whether after this they will sink. 
Having gone through these different processes, the conclu- 
sions to be drawn from them are evident. If there is nothing 
to be discovered on the body of the child, to favor the belief 
that it might have lost its life during delivery—if the lungs be 
not touched by putrefaction, nor be artificially inflated—if on 
cutting into them, a crepitus be perceptible — if the entire 
lungs, as well as the separate divisions of them, remain on the 
surface of the water—if, after squeezing portions of the lungs, 
they still continue to float—then the mass of evidence 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 only float, while the greater number sink, it 
proves respiration to have been still less complete. On the 
other hand, if neither the entire lungs, nor any section of them, 
float in water, the inference is, that the child never respired. 
8. State of the diaphragm. It is very evident, that as soon 
as respiration commences, the cavity of the chest must neces- 
sarily be enlarged in every direction, to give play to the action INFANTICIDE. 
391 
of the dilated lungs. In consequence of this, the chest exter- 
nally becomes more elevated and arched, and internally the 
diaphragm descends. To a person accustomed to the exami- 
nation of subjects, this descent will be obvious, and taken in 
connexion with the other signs of respiration, is one not to be 
disregarded. The best mode of measuring the elevation or 
depression of the diaphragm, is by the corresponding ribs. 
9. The discharge of the meconium. The meconium is a dark 
pitchy matter, contained in the intestinal canal of the foetus, 
and is evacuated shortly after birth, when the child is born 
alive. In relation tp 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 ca- 
nal, by the compression which the liver necessarily sustains 
as soon as respiration commences.* The same compression 
afterwards expels it from the intestinal canal. Upon this prin- 
ciple, the connexion between respiration and the discharge of 
the meconium, is perfectly plain. Too much stress should 
not, however, be laid upon this circumstance. For although 
Mr. Bryce asserts, that •“ there is no instance in which infants 
born at the end of the ninth month, have ever suffered this 
evacuation previous to their birth,” yet we have the high au- 
thority of Dr. Denman to the contrary, who states, that he 
met with a case in which the meconium was discharged up- 
wards of thirty hours before the child was born.f 
10. The state of the bladder. Anterior to birth, it has been 
ascertained that the bladder contains a considerable quantity 
of urine. If, therefore, on examination, it should be found 
empty, the presumption is in favor 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 test 
is liable to many exceptions, and should not therefore be infal- 
libly relied on. It is not impossible that under certain circum- 
stances, a child may void its urine before birth, and on the 
* Bryce on the foetal liver. Edinburgh Medical and Surgical Journal. Blumen- 
baeh’s Physiology, p. 359, American edition, 
t Introduction to the practice of Midwifery, p. 395. 392 
INFANTICIDE. 
other hand, a child born alive, may die before it has performed 
that function. 
Having thus discussed the various signs by which we are 
to determine whether a child was born alive or not, the fol- 
lowing general inferences may be deduced from them. 
1. If the ductus arteriosus, the foramen ovale, and the duc- 
tus venosus be obliterated, and if the umbilical cord be sepa- 
rated, the conclusion is certain, not merely that the child was 
born alive, but that it lived for a considerable time, whatever 
may be the state of the lungs. 
2. Even should the ductus arteriosus, the foramen ovale, 
and the ductus venosus be still open, and the umbilical cord 
still attached, the conclusion may be drawn that the child 
was born alive, and respired perfectly, if the thorax be arched; 
if the lungs cover the diaphragm as well as the sides of the 
pericardium; if the edges of the right middle and left upper 
lobes, instead of being sharp, are rounded; if their colour is 
pale red, or scarlet; if, on being cut into, they crepitate, and 
the bloodvessels pour out blood freely from the incisions; if 
the lungs weigh 1000 grains or upwards; if they float in wa- 
ter with the heart attached, and when cut in pieces, each frag- 
ment floats; and if this floating of the lungs be proved not to 
be owing to putrefaction, inflation or emphysema of the lungs; 
and finally, if the ductus arteriosus be so diminished in size as 
not to be larger than one of the branches of the pulmonary 
artery, or if it be so much contracted towards the aortal cord 
as to form a truncated cone. 
3. It may be inferred that a child has been born alive, but 
has only respired imperfectly, if the lungs present here and 
there streaks of scarlet intermixed with brownish red, and 
this especially in the right lung; if the lungs partially cover 
the diaphragm and sides of the pericardium; if the edges of 
the right middle and left upper lobes are more or less rounded; 
if portions only of the lungs float in water, and if this be 
proved not to be owing either to putrefaction, inflation or em- 
physema; and finally, if the ductus arteriosus be somewhat 
lessened in size, and have assumed the conical shape. 
4. It may be inferred that a child was not born alive, and INFANTICIDE. 
393 
has not respired, if the thorax be flat and compressed; if the 
lungs occupy only the posterior and superior part of the tho- 
rax—small in volume, and leaving uncovered the diaphragm 
and the sides of the pericardium; if the edges of the right, 
middle and left upper lobes be sharp; if the colour of the lungs 
be dark brown; if they do not crepitate when cut into, and no 
blood follows the incision; if the entire lungs, as well as every 
fragment, sink rapidly in water; if their weight be under 
500 grains; and finally, if the ductus arteriosus be cylindrical, 
and of the size of the trunk of the pulmonary artery, and more 
than double the size of the two branches. 
Of the various modes in which the life of a new-born child may 
be destroyed or lost. 
Like the causes of abortion, these may be divided into two 
classes, viz. those which are criminal, and those which are ac- 
cidental. 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. 
Criminal modes resorted to for the destruction of a new-born 
child. 
1. The intentional neglect of tying the umbilical cord. The 
majority of medical practitioners, from the time of Hippocra- 
tes 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 subject, that previous to the 17th century, a doubt was 
not entertained with regard to it. According to Fodere,* 
./. Fantoni, professor of anatomy at Turin, was the first who 
suggested that this precaution was useless, and that the ne- 
glect of it was unattended with any danger to the life of the 
child. After his time, the same opinion was adopted and de- 
fended by Michael Alberti, in 1731, and J. H. SchultziusJ in 
1733, both professors in the university of Halle. In 1751, 
* Fodere, vol. 4, p. 502. 
t In a dissertation entitled, “ An Umbilici deligatio in nuper natis absolute neces- 
saria sit.” Hate, 1733. 394 
INFANTICIDE. 
Kaltsmidt maintained the same doctrine at Jena.* The argu- 
ments offered by them in defence of their opinion are the fol- 
lowing: 1. They maintain that the umbilical vessels, whether 
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 con- 
traction would take place in the vessels of the cord.f 
Let us examine these arguments for a moment. With re- 
gard 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 explain 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 human 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 much less also in In an- 
other place, the same writer says, that in brutes the vessels of 
the cord are much smaller than in man; and that when the 
animal is born, they are in a measure closed by a kind of cel- 
lular 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 favouring their 
speedy contraction after they have been cut. Besides, the 
* Fodere vol. 4, p. 509. 
f Mahon, vol. 2, p. 422, &c. 
t Medicim Legalis sive Forensis, p. 9. 
§ Ibid. p. 189. INFANTICIDE. 
395 
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 ar- 
teries of inconsiderable magnitude frequently contract spon- 
taneously, is granted; but that vessels of a size equal to that 
of the umbilical 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, imme- 
diately 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; with- 
out any sign of violence 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 umbilical haemorrhage.* 
Dr. Campbell states that he met with two cases in which 
infants were destroyed, one by the accidental, and the other 
by the intentional, removal of the ligature from the cord.f 
The following case is recorded by Dr. Hutchinson; although 
* Traite, de Medecine Legale, etc. Par F. E. Fodere. Vol. 4, pp. 515-16. 
t Introduction to the Study and Practice of Midwifery, p. 151. 396 
INFANTICIDE. 
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 afterwards, the practitioner was sent for; and on his 
arrival, he found the infant on the point of dying from haemor- 
rhage 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 haemorrhage 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 umbili- 
cal 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 consequences 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.f In no case, therefore, is the 
mere absence of the ligature to be taken as conclusive evi- 
dence of death by hemorrhage. 
Signs of death by hcemorrhage 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 bloodvessels. By some it is stated, that in cases of hae- 
morrhage, the heart and bloodvessels 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.”} 
* 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. 
t Cyclopaedia of Practical Medicine, vol. 2, p. 694. INFANTICIDE. 
397 
2. Exposing a new-born infant to the action of cold. It is 
needless to dwell upon the necessity of those precautions which 
are generally resorted to after the birth of a child, in order to 
preserve 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 pro- 
ceeded from ignorance or want of the proper means. In ei- 
ther case, however, the physician may be calledupon 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 Fo- 
dere 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, accompanied with an effusion of blood into the 
cavities, whilst the cutaneous vessels are contracted and al- 
most empty, and when no other cause of death can be de- 
tected, 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 mani- 
fest intention to make away with the child.”* 
3. Keeping from the child the nourishment necessary for sup- 
porting 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. Fodere says 
the neglect of it for twenty-four hours, is not unattended with 
danger. In these cases, the child is generally found exposed 
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 cer- 
tain 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 ductus venosus, but more especially the umbilical cord, 
# Fodere, vol. 4, p. 505. 398 
INFANTICIDE. 
according to the signs laid down in a previous part of this 
essay. 
As children who die from want of food are generally ex- 
posed also, they sink under the combined operation of exposure 
and want of nourishment. They will be found, accordingly, 
to present the same appearances as in the last case;* and be- 
sides 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 ex- 
ternum.:!: Brendel 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. § Nee- 
dles, or other sharp instruments, are sometimes thrust into 
other parts of the child, such as the temples, the internal can- 
thus of the eyes, || the spinal marrow, the neck, the thorax 
about the region of the heart,11 and the abdomen. 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 wray.** 
* Fodere, vol. 3, p. 238. 
f Besides keeping food from the new-bom child, its life may be endangered and de- 
stroyed 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.) 
i Mahon, vol. 2, p. 409. 
§ Cours de Med. Leg. p. 93. 
[| Prelect. Academ. J. G. Brendelii, p. 188. 
Foderg, vol. 4, p. 492. 
" Case of Elliot and Bease. Edinburgh Medical & Surgical Journal, vol. 35, p. 457. INFANTICIDE. 
399 
SigJis. In all cases where death has been produced in the 
preceding 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 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 unconnected 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 internal organs are injured. 
Wounds and bruises. This is another mode frequently re- 
sorted to for destroying the new-born infant. They may be 
found on any part of the body; the more common part, how- 
ever, is the head. For the purpose of ascertaining the effects 
upon the head of a child falling from different heights, the fol- 
lowing very instructive experiments were made at the Lying- 
in Hospital, and are detailed by Leceiux: 
“ 1. Fifteen infants who had died after their birth, but in 
whom there was no alteration in the bones of the cranium, 
were selected, 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 examination, it was found that in twelve of them 
there was a longitudinal or angular fracture of one of the 
parietal bones, and sometimes of both. 
“2. 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 ex- 
tending to the os frontis. When suffered to fall from a greater 
height, the membranous commissures of the cranium were re- 
laxed, 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 extravasation of blood produced by the rup- 
ture of vessels; and it was only in infants whose bones were 
very soft and flexible, that no fracture was found. 400 
INFANTICIDE. 
“ 3. 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 sur- 
face; and in fifteen experiments of this kind, seven caused 
longitudinal fractures of greater or less extent in one or other 
of the parietals; in others, there was only perceived a de- 
pression or sinking of the bones. In the greatest number, the 
head was deformed or flattened, and the membranous com- 
missures exhibited a sensible relaxation. 
“ 4. Finally, the head, supported on a table, was struck 
strongly, and in different places, with a short round stick. 
This experiment always caused a deformity or flattening of 
the head, multiplied 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 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 
tumified and ecchymosed from compression, during a difficult 
and tedious labour. In some cases, too, a peculiar sangui- 
neous tumour forms spontaneously on the head of the new- 
born child.f Arising in this way, these tumours are not at- 
tended with any danger to the child, and they are never com- 
plicated with fracture of the cranium. Where this latter is 
the case, it is invariably a sign of criminal interference, and 
may prove fatal. 
In all examinations of contusions, two cautions ought to be 
observed: viz. to distinguish them from the discoloured spots 
which appear on the surface of the body at the commence- 
ment of putrefaction, 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 in- 
fanticide frequently resorted to, and is usually perpetrated by 
* Considerations sur l’lnfanticide, par Lecieux. 
f 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. INFANTICIDE. 
401 
forcibly twisting the head of the child, or pulling it backwards.* 
In such cases, the vertebrae are fractured, the ligaments rup- 
tured, 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 
vertebra, or both, and by the extravasation of blood among the 
cervical 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 re- 
spiration. This may be accomplished in various ways: by 
drowning; hanging or strangulation; smothering under bed 
clothes; suffocating, by thrusting various articles into the 
mouth and nostrils; 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, or in other words, has 
it respired. In the second place, supposing it to have been 
born alive, was it put into the water before 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 
precisely 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. 
Signs of drowning. In cases of drowning, generally speak- 
ing, the countenance, as well as the whole surface of the body, 
is cold and pallid; the eyes are half open, and the pupils con- 
siderably dilated; the tongue is protruded to the edges of the 
lips, and sometimes it is wounded, and the mouth and nostrils 
are covered with froth. In some cases, instead of the counte- 
nance being pallid, it is swollen and livid. On dissection, there 
will be found a watery and bloody froth in the trachea or 
bronchise; the right auricle and ventricle will be full of blood, 
while the left will be empty; the lungs will be expanded and 
generally livid. On opening into the stomach, it will be found 
to contain more or less of water: the brain will be found more 
* Mahon, vol. 2, p. 409. 402 
INFANTICIDE. 
or less congested with blood. The blood itself, in cases of 
drowning, remains fluid, and follows freely the incisions of the 
scalpel. Much light will sometimes be thrown upon these 
cases, by finding in the stomach a portion of the fluid in which 
the child has been drowned. As this could only have got 
there by deglutition, it proves that the child was living. 
Such will be the appearances, external and internal, where 
the subject has been put into the water in a living state, and 
where its death has been occasioned by the submersion. In 
cases where the subject, previously dead from some other 
cause, has afterwards been thrown in the water, all these signs 
will be absent. 
Hanging. In this case, the general cause of death is pre- 
cisely 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 by the application of 
the ligature and the absence of water. In cases of death by 
hanging, accordingly, there will probably be a circular livid 
mark around the neck from the application of the ligature; 
the face will be turgid with blood and livid; the tongue swol- 
len and projecting, and the mouth frothy. On dissection, the 
appearances will be found the same as in drowning, with the 
exception that there will be probably more congestion about 
the head in cases of hanging. There will also be an absence 
of water in the trachea and bronchise, and not unfrequently, 
the vertebrse of the neck will be dislocated or fractured. 
Strangulation and smothering. 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 discolourations about the neck and chest, 
produced by the application of fingers and nails to these parts. 
When the child has been smothered under bed-clothes, &c. 
the circumstances upon which to form a decision 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. 403 
INFANTICIDE. 
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. 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 cir- 
cumstances that we should have a priori considered as hardly 
adequate to such an effect. A case is related of a child who 
was suffocated by some drunken men having repeately 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.^ 
Signs. In cases of this kind, experiments upon the lungs 
will show whether the child was born alive or not. If born 
alive, the absence of any other cause of death, and the sus- 
picious and unnatural circumstances attending the place wffiere 
the child may be found, will lead to a judgment in the case. 
The inhalation of gases positively deleterious. The gas yield- 
ed by privies and sewers is sulphuretted hydrogen, and in the 
smallest 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 suffo- 
cation. 
6. Poisoning. Poisons may be introduced into the system in 
various w7ays. 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 de- 
tecting its presence. In cases where the cutaneous absorbents 
have been the medium of conveying it into the system, it may 
* Medical Jurisprudence. By Paris and Fonblanque, vol 2, p. 55. 404 
infanticide. 
be very difficult, generally, to discover the cause of death. 
In some instances, 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. 
Accidental modes in which a child's life may be lost after 
delivery. 
Having thus considered the various criminal modes resorted 
to for the purpose of destroying the life of the new-born in- 
fant, I come now to notice the various causes whichmay de- 
stroy it, without any criminal agency. Under this head, there 
are three different classes of causes, which require notice— 
accidental circumstances occurring, either during or immediately 
after delivery; various malformations inconsistent with the con- 
tinuance of life, after birth; and various diseases which may 
have commenced anterior to birth. 
1. Various causes connected with delivery, which may occasion 
the death of a new-born child, unconnected with 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 some- 
times comes into the world. In this way respiration may be ef- 
fectually prevented, 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 woman, whom I had engaged to at- 
tend 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 
bedclothes. 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. 
* Observations on the uncertainty of the signs of murder in the case of bastard 
children. (Medical Observations and Inquiries, of London, vol. 6.) INFANTICIDE. 
405 
Not the slightest suspicion of any criminal intention could for 
a single moment be cherished. The woman was married, and 
had engaged me to attend her some weeks before the event 
took place. 
Ji new-born child may lose its life from the suddenness and 
rapidity of the labour. Dr. Hunter relates a case, where a fe- 
male was seized during the night, and the child was born be- 
fore 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. Hunter it wras found dead.* • A case is re- 
corded by Mr. Tatham, where a patient in her fourth preg- 
nancy, after three trifling pains, was passing along the lobby 
to her bed room, when the infant was suddenly thrown on the 
floor, bleeding profusely at the umbilicus, but ultimately re- 
covered.! Another case is related by the same authority, of a 
female, who, in the last month of her first pregnancy, while the 
family were absent, was obliged to go to the night chair—a 
great discharge of water took place, followed by twin child- 
ren, which dropped into the utensil; from which, however, 
they were speedily rescued, but died within a week.:}: 
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 it 
must be 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 might 
be delivered while standing. The first of these is, no doubt, 
possible, and probably has occurred.|| How improbable the 
* Medical Observations and Inquiries, of London, vol. 6, p. 286. 
t Medical Repository, for April, 1829. 
+ Campbell’s Midwifery, p. 155. 
$ Beck’s Medical Jurisprudence, vol. 1, p. 156. First edition. 
1| 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 sometime 
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 knowledge, 
where, while the midwife was playing at cards in the room, the woman was taken 406 
INFANTICIDE. 
second is, the following facts collected by Dr. Klein of Stut- 
gardt, will show. As a member of the superior council of 
health, he caused a circular to be addressed to the accouch- 
eurs of the kingdom of Wirtemberg, requesting reports of 
the cases of sudden expulsion of the foetus, which might be 
observed by them. Returns were made of one hundred and 
eighty three cases. Of these, one hundred and fifty five chil- 
dren were expelled while the mothers were in the upright 
posture, twenty-two when sitting, and six when on the knees. 
T wenty-one happened at the first labour. Of the whole num- 
ber not one child died ; no fracture of the bones took place, 
nor any severe injury. Two only suffered temporary insen- 
sibility, and one an external wound with ecchymosis over the 
right parietal bone.* 
Accidental hcemorrhage from the umbilical cord. I have al- 
ready spoken of neglecting to tie the cord with a criminal in- 
tent. 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 for- 
gotten, too, that this is most likely to occur in those very cases 
which become the subject of judicial inquiry, inasmuch as in 
those cases, the female, for obvious reasons, is frequently shut 
out from the benefit of professional assistance. Besides this, 
hcemorrhage from the umbilical cord, may occur under a va- 
riety of other circumstances, purely accidental. In some 
cases, 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 before 
he was sent for again, and on returning, found that the liga- 
ture had given way, and a dangerous hcemorrhage had en- 
suddenly and the child dropped on the floor.” Dr. Smith adds, “ it recently 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 preg- 
nancy, 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 pe- 
rished.” (Principles of Forensic Medicine, p. 381-2.) 
* Arrowsmith in the Cyclopedia of Practical Medicine, vol. 2, p. 693. INFANTICIDE. 
407 
sued.* Mr. Burns states also, that it has “ sometimes been 
found, that when the ligature had become slack, a considera- 
ble quantity of blood was lost, and even fatal haemorrhage 
has taken place.’7! Sometimes the cord is very thick, in con- 
sequence 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 bleeding. After the cord is di- 
vided, 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 was 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 
gaping4 Another case of this kind is related by Burns. § 
Sometimes the cord will be found ossified, or in a state of car- 
tilaginous hardness. In these cases, there is always more or 
less danger of hemorrhage from the inability of applying the 
ligature properly. A case of this kind, is related by Mr. Lo- 
gan, in which the cord gave way several times, from pressure 
of the ligature and from pulling on it during the expulsion of 
the placenta. j| 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 vari- 
cose state of the cord. In consequence of which, he lays 
down a general rule, never to apply a ligature above a vari- 
cose 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 perhaps 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 
* MSS. Lectures, 
f Midwifery, p. 565. 
% Edinburgh Medical and Surgical Journal, vol, 38, p. 2. 
§ Midwifery, p. 200, American edition. 
!i Edinburgh Medical and Surgical Journal, vol. 37, p. 276. 
H A Treatise on the Physical and Medical Treatment of children, by Wm. P. 
Dewees, M. D. &c. p. 331. 408 
INFANTICIDE. 
body. Although there was no hmmorrhage, it died in a few 
hours.* Another case is related by Mr. Chamberlayne, in 
which the cord broke off (just in the right place too) in conse- 
quence of the violent expulsion of the child.f In cases of this 
kind, however, where the cord is torn off, it is to be recol- 
lected that hajmorrhage 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 
vicarious functions, and if one be interrupted or destroyed be- 
fore the other is in operation, life must cease. It is accor- 
dingly laid down as a rule by practical writers, that the cord 
should never be tied or divided, until respiration has been 
perfectly established. 
That the neglect of this important rule of practice is a 
frequent cause of death to the new born infant, in the hands 
of ignorant midwives and practitioners, does not admit of a 
doubt. Dr. Dewees states, that he has seen “several in- 
stances of death, and this of a painful and protracted kind, 
from the premature application of the ligature.:}: By Dr. Eberle 
a case is recorded, which illustrates the evil effects of prema- 
ture tying of the cord. The 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 countenance. 
The child was relieved by the application of two leeches to the 
region of the heart. || 
* Lancet, vol. 5, p. 120-1. 
t London Medical and Surgical Journal, vol. 7, p. 234. 
t A Treatise on the physical and medical treatment of children, by Dr. W. P. De- 
wees, M.D. p. 260. 
§ A Treatise on the diseases and physical education of children, by John Eberle. 
M.D. p. 86. Second edition. U Midwifery, p. 152. INFANTICIDE. 
409 
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 malformation 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 espe- 
cially 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. 
J1 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.f 
Corvisart gives the case of a child twelve years old, in 
whom, on dissection, there was found an aperture in the sep- 
tum of the 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 
* Baillie’s Morbid Anatomy, p. 24. Medical Observations, vol. 6. 
f Medical Transactions, vol. 3. 
t Corvisart, p. 207; also p. 229. 410 
INFANTICIDE. 
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 tw’o branches—the one to the lungs, and the other 
to the rest of the body.f 
Another case, however, is recorded by Billard. This child 
lived fifteen days. During this period it was affected with 
cyanose—had frequent syncopes and fits of threatened suffo- 
cation, 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 wras found, that be- 
side the existence of the foramen ovale and dilatation of the 
right ventricle, the aorta, instead of rising from the left ven- 
tricle 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 arterial blood. At last they died dropsical.|| 
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 
perceived about it but a slight blueness of the ends of the 
fingers, the eye lids, root of the nose and mouth—after this 
it suffered occasional paroxysms, resembling severe colic, at- 
* Observations on some of the most frequent and important diseases of the heart, 
&c. By Allan Burns, p. 20. Baillie, p. 23. 
t Ibid. p. 27. 
t Traite des Maladies des Enfans, &c. Par C. M. Billard, p. 701, 2d edition. 
§ Corvisart, p. 23L-2. American edition. 
|| Burns’ Observations, p. 13. INFANTICIDE. 
411 
tended with a dry suffocative cough. In the intervals of the 
paroxysms, the child appeared to be perfectly well. On dis- 
section, the ascending aorta and arch was found dilated to 
four times the capacity of the descending portion. The fora- 
men 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. 
Hunter, which terminated fatally on the thirteenth day.f 
Malformations of the respiratory organs. These, although 
not very common, are sometimes met with. Cases are re- 
corded in which the thoracic parietes have been so deficient 
and imperfect, as to leave the heart and lungs naked. Under 
such circumstances, it is evident that life cannot long be pro- 
tracted. 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 func- 
tion 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 vis- 
cera into the cavity of the thorax, the danger is more impend- 
ing, and it is hardly possible that life can be long continued. 
Malformations of the alimentary canal. These have been 
observed in every portion of this tract, from the mouth to the 
anus. The mouth has sometimes been found wanting, or ob- 
literated; in other cases, there has been an absence of the 
oesophagus. An instance of this kind is reported by Dr. Son- 
derland. The child at birth was apparently well formed, but 
rejected every thing that was introduced into its mouth in the 
way of nourishment. It died on the eighth day. On dissec- 
* The Medical Magazine, conducted by A. L. Pierson, J. B. Flint and E. Bartlett, 
Boston, vol. 2, p. 317. 
f Burns’ Observations, etc. p. 25. 412 
INFANTICIDE. 
tion, 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 ter- 
minated in a cul-de-sac.* 
The stomach is subject to malformations as regards shape 
and displacements. These, however, do not interfere with 
the continuance of life, provided the orifices of this organ be 
free. 
Malformations of the intestinal canal are numerous and va- 
rious. Those which are particularly worthy of notice in this 
connexion, are those in which the canal is obliterated, or in- 
terrupted, or contracted. Dr. Schaefer relates the case of a 
child, which died on the seventh day after birth. On dissec- 
tion, the duodenum was found terminating in a cul-de-sac, and 
a complete interruption 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.! An- 
other case, of a similar character, 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 contrac- 
tion 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 operation. 
,‘i. Various diseases, which may he either congenital, or occur 
immediately after birth. 
This is the last class of causes to which the death of a new- 
born infant may be attributed, and which requires to be accu- 
rately discriminated from the effects of criminal violence. 
Morbus cceruleus. Cyanosis. This is commonly known by 
the name of the blue disease, from the peculiar colour of the 
* Billard, p. 285. t Ibid. p. 363. $ Ibid. p. 364. 
§ Billard, pp. 367, 370. Baillie’s Morb. Anat. p. 114. Campbell's Mid. p. 571. INFANTICIDE. 
413 
skin which characterizes this affection. The part more par- 
ticularly affected, is the face. During crying or any other 
effort on the part of the child, the colour becomes much deeper. 
Besides the peculiar colour of the skin, the symptoms are, 
disordered circulation, 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, palpita- 
tion, and suffocation. It is during these paroxysms that life is 
generally in danger, and frequently 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 bloodvessels.* 
From what has been already stated in relation to these 
malformations, 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 al- 
ways in danger in these cases, the just and certainly humane 
conclusion in a case of alleged infanticide, and where this dis- 
ease might be urged as the cause of death, would be to admit 
that it might be so, provided said malformations were actually 
found on dissection, and provided no other cause of death could 
be detected. 
Organic diseases of the heart and bloodvessels. 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 auricle and ventricle.! 
Another curious and unique case is recorded by the same 
* For a condensed, but excellent view of this subject, see a Dictionary of Practical 
Medicine, by James Copland, M.D. vol. 1, p. 199. American edition, 
t Billard, p. 589. 414 
INFANTICIDE. 
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.* 
Pericarditis. By Billard, this disease is supposed to be more 
common in new-born infants, than at any other period of life. 
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 
commenced while the foetus was still in utero.f 
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 it must have commenced 
antecedent to birth. In two cases, the left lung was hepatized 
at its base.J In these cases, there was no doubt that this con- 
dition of the lungs interfered with the establishment of respira- 
ation, 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 
frequently observed in foetuses born before the time, a conges- 
tion 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 bronchi®. He presumes there must have been in these 
cases a great determination of blood to those parts in the last 
moments of intra-uterine life, or during the act of delivery.§ 
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. 
" Billard, p. 591. 
t Ibid. pp. 595, 703. 
t Billard, p. 521. 
§ Ibid. p. 494. INFANTICIDE. 
415 
Diseases of the alimentary canal. Billard states that in two 
cases in which new-born infants died a short time after birth, 
he found ulcerations in the oesophagus, which from their ap- 
pearance 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 
reason to believe that inflammation of the stomach existed pre- 
vious to birth, and was the cause of death after birth.f 
Ramollissement of the intestines has also been noticed by 
Billard, in children who have died a short time after birth.J 
Having thus ascertained that the child was born alive, and 
that its death was owing to violence, we are next to inquire 
into the relations of the child with the supposed mother. As 
already stated, the questions here to be investigated are the 
following. 
1. Has the woman been actually delivered'? The signs of 
delivery have already been discussed in a previous part of this 
essay. 
2. Do the signs of delivery in the mother correspond as to 
time, &c., with the appearance of the child 1 
The great object of this inquiry is, to determine the length 
of time which has intervened between the birth of the child 
and its death, with the view of comparing this with the signs 
of delivery in the reputed mother. This is to be done by ex- 
amining the following points: 
(a.) The state of the foramen ovale. 
(&.) The state of the ductus arteriosus. 
(c.) The state of the drictus variosus. 
(id.) The state of the umbilical cord. 
(e.) Whether putrefaction has yet commenced. 
By comparing these observations with the signs observed 
on the female, a rational opinion can easily be formed, whe- 
ther any incongruity exists between them, and the inference of 
course is obvious. 
* Billard, p.637. 
t Ibid. p. 311, 689. 
t p. 691. INFANTICIDE. 
Circumstantial evidence. Although this does not strictly ap- 
pertain to a medical discussion of the subject, yet there are 
some points embraced under it, concerning which the testimo- 
ny 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 preg- 
nancy, 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 diffi- 
cult it may be for a physician 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, espe- 
cially in a first pregnancy, which it almost always is in cases 
of infanticide. If she has yielded to the solicitations of a se- 
ducer, and if she afterwards experiences those changes and 
developements in her system, which accompany a state of im- 
pregnation, she cannot but be conscious of her true situation, 
and therefore, any arguments drawn from this source ought 
to have no weight. 
2. It may be suggested in vindication of the woman, that 
the delivery was so rapid that it was out of her power to 
procure assistance, or make the necessary preparations for 
preserving the child’s life. In cases of first pregnancy and 
delivery, it is not very probable that the labour would be ac- 
complished so speedily. The necessary dilatation of the parts 
would require a length of time sufficient to give her proper 
warning of the impending event. In succeeding labours, it is 
possible that it might occur. Dr. Wm. Hunter relates a case 
of this kind, which occurred in his own practice.* The phy- 
sician should, therefore, always inquire if this be a first child, 
or if she has had others previously. Other circumstances re- 
lating to the delivery should also be investigated. It is not 
impossible that a woman may be delivered while standing, and 
the child have fallen upon the floor, and thus its death have 
* Observations on the uncertainty of the signs of murder in the ease of bastard chil- 
dren. Medical Observations and Inquiries, vol. 6. INFANTICIDE. 
417 
been occasioned.* Such cases are, however, extremely rare, 
and should be admitted with great caution. In speaking of 
the accidental causes of the death of the child, I have already 
noticed this subject. 
3. It may be urged in the defence of a female accused of 
destroying her child, that she may have been labouring under 
puerperal mania; in other 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 phrenzy, and 
killed her infant in the absence of any company ; but company 
coming in, she told them 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 appearing, it was left to the jury with 
this direction, that if it did appear that she had any use of rea- 
son when she did it, they were to find her guilty ; but if they 
found her under a phrenzy, though by reason of her late de- 
livery 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 deli- 
vered 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 phrenzy had been counterfeit. But 
none of these appearing, and the honesty and virtuous de- 
portment 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.”f On 
this case Dr. Paris justly remarks, “ had this woman been of 
doubtful character, though innocent, she might have been 
* Lafosse once saw in a hospital a woman, who, feeling the first pains of labour, 
imagined that they arose from a different cause, and rose to go to stool. Half of the 
infant was immediately born, but happily there was sufficient time to receive it and 
prevent its fall. 
t 1 Hale's Pleas of the Crown, p. 36. 418 
INFANTICIDE. 
executed for want of medical evidence to prove the nature 
and frequency of puerperal insanity.”* 
Of the method of conducting examinations in cases of infanti- 
cide. 
In every case of infanticide, so much depends upon the tes- 
timony 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 and enlightened decision. The labour of such 
investigation is doubtless great and unpleasant; but unless 
submitted to by the professional witness, he certainly cannot 
be considered as qualified to give hi% 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, spots, ecchy- 
mosis, &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. 
(e?.) The condition of the umbilical cord. 
Internal examination. This should include, 
1. The condition of the respiratory organs: 
(a.) The dimensions and 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. 
* Paris and Fonblanque’s Medical Jurisprudence, vol. 3, p. 129-30. INFANTICIDE. 
419 
2. 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. 
3. The condition of the abdominal organs: 
(a.) The liver; its weight. 
(&.) 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 in- 
cision 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 dis- 
sected back. The lower jaw is then to be divided at its sym- 
physis, and the two portions separated. By bending the head 
back, wTe 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, eve- 
ry 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 examined. 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, 
whether it be much arched towards the thorax or otherwise. 420 
INFANTICIDE. 
The viscera of the abdomen are next to be inspected, and 
every thing peculiar in their appearance 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 contents 
of the stomach are to be critically investigated. If there is 
any suspicion of poison, the ordinary tests for ascertaining it 
should be resorted to. The state of the gall bladder and uri- 
nary bladder should be inquired into, whether they be empty 
or not. Lastly, it should be seen whether there be any me- 
conium in the intestinal canal. 
In opening the thorax, the ribs and sternum must be di- 
vided 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 ap- 
pearance, position and colour of the lungs are to be remarked. 
The trachea is now to be divided as near as possible to the 
lungs. The aorta and venae cavae are to be tied and cut be- 
yond the ligatures. The lungs should then be taken out and 
weighed, and after this, subjected to the experiments already 
detailed in a previous page. The heart is next to be exa- 
mined, and it should be particularly noted whether the auricles 
and ventricles are fdled with blood; the state of the ductus 
arteriosus should be ascertained; and lastly, whether the fo- 
ramen ovale be still open. 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 examination. 
In opening the head an incision should be made from the 
lower part of the frontal bone down to the second or third 
cervical vertebra, and another at right angles to this from ear 
to ear. By dissecting back the integuments thus divided, the INFANTICIDE. 
421 
cranium will be completely exposed. The cranium should 
now be carefully examined, 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 sepa- 
rate them by a scissors along their membranous connexion 
with each other. Great care should be taken not to occasion 
any laceration during the dissection. 
The substance of the brain must be carefully investigated, 
and every deviation from the natural and healthy state ob- 
served. 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 chap- 
ter as to render unnecessary any recapitulation. 
This completes the examination of the child. 
Examination of the mother. The business of the physician, 
however, does not end here—he must also investigate the 
condition of the reputed mother. And the points to be as- 
certained here, as we have already stated, are— 
1. Whether she has been recently delivered. 
2. Whether the signs of the delivery correspond with the 
appearances detected on examination of the child. 
ILLUSTRATIONS OF EXAMINATIONS AND REPORTS. 
1. Report proving the crime of infanticide.* 
We the undersigned, doctors of medicine or 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. , story , 
room , to visit there the corpse of a child of the 
sex, which had been found in the morning under a heap of 
* This report is taken from Capuron’s Medecine Legale, p. 494. 422 
INFANTICIDE. 
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 at- 
tached to the umbilicus, 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 said body was still covered over with the unctuous and 
whitish substance 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 said body with care, we had 
it washed and carefully dried. We observed afterwards that 
it was large, fat, well formed, exempt 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 slight- 
ly 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 INFANTICIDE. 
423 
to the occiput, was brownish; and through this skin could be 
distinguished, by the fingers, the fluctuation of a fluid which 
seemed to have separated 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 wTell 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 structure. 
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 sternum, between the second 
and third rib, a small round wound, half a line in diameter. 
A similar wTound existed on the left side of the neck and im- 
mediately above the shoulder. But neither penetrated beyond 
the skin, as we proved by dissection. 
On opening of the head, we found the right lobe of the brain 
covered with blood, and completely disorganized; it had no 
longer its natural form, structure 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 conforma- 
tion 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. 
On opening the abdomen, the viscera presented no alteration 
nor deformity; the large intestine wras filled with meconium, 
and the bladder contained a little urine. 
After all these observations, we conclude and declare that 424 
INFANTICIDE. 
the child* whose body we examined, was of full term, strong 
and well made; which is attested by its volume, weight, di- 
mensions, and its exterior conformation. 
That it was born 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 examin- 
ing 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 umbili- 
cus ; 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 
wrhich the situation, the form, the number and direction, pre- 
vent us attributing it to this cause. 
Finally, that the death of this child is the effect of blows or 
external violence, 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 re- 
port, which we closed at the house of in presence of 
, and which we certify to be correct. 
Made day, month and year. 
Signed. INFANTICIDE. 
425 
2. 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 Trevoux, 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 that he would not permit to be buried, un- 
til the cause of its death had been proved, I repaired to said 
commune on the 5th of November, 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 
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 ap- 
peared 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 care- 
fully the whole surface of the body and all the external cavi- 
ties, no trace of violence of any kind could be discovered. The 
state of the umbilical cord, however, struck me particularly. 
It had a ligature upon it, but so loose that the handle of a bis- 
toury 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 viscera for the purpose of making experiments on the lungs, 
* Manuel de Medecine Legale, par JBriand, p. 314. 426 
INFANTICIDE. 
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 to- 
gether in a bucket of water at the temperature of 10° Reau- 
mur, the whole floated perfectly. 4. The quantity of blood 
found in the heart and large bloodvessels 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 common, 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 intestines were found 
empty ; the first of urine and the second of meconium. 
From these various observations, I draw the following con- 
clusions : 1. That the child in question was born at the full 
term, alive, and in a sound state. 2. That it must have per- 
formed a great number of full and complete respirations, and 
that it must have lived several hours. 3. That it did not re- 
ceive any violence, properly so called, such as blows, contu- 
sions, &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 sur- 
rounded the extremity of the cord, was placed there as a liga- 
ture, after life had already been entirely extinguished by the 
haemorrhage. 
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 him this day, (Sunday,) 
12th November, 1809, at 10 o’clock in the morning, to a house 
occupied by Me. Catharine Tillard, for the purpose of visit- 
ing her daughter Nanette 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. 
3. Report of a case of recent delivery.* 
* Considerations sur l’lnfanticide, par Lecieux. p. 68. INFANTICIDE. 
427 
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 slight- 
ly discoloured. 
2. Her pulse was febrile, full and fluctuating; the skin was 
soft and pliable, 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 exa- 
mining 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, running 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 mus- 
cles had experienced considerable extension, as was ascertained 
by the irregularity of its course in running the end of the fin- 
ger 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, 428 
INFANTICIDE. 
1. That Nanette Tillard had been delivered three or four 
days at the farthest, which is satisfactorily proved by the con- 
dition of the breasts, the secretion of the milk in them, the 
smell of the perspiration, the nature of the discharge 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. 
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 the present day, many an innocent female is wantonly 
sacrified to suspicion and prejudice. The principle, however, 
which now guides the moral judgment of society on this sub- 
ject, is undoubtedly 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, would lead to the most dreadful consequences. 
That a young female of character and reputable connexions, 
and possessed of tender sensibility, may have been betrayed 
by the arts of a base seducer, and when reduced 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. INFANTICIDE. 
429 
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 re- 
formation of that corruption of manners which lies at the root 
of the evil. Next to this, the dread of severe punishment is 
the most effectual preventive. Foundling hospitals were also 
founded 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 abor- 
tive, 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 abor- 
tion as a crime, they denounced punishments against the au- 
thors of it. These, as has been already noticed when consi- 
dering the animation of the foetus, 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 em- 
peror at Constantinople, ordained that it should be punished 
with the same severity as homicide.J 
In France, the Roman law was adopted, and practised upon 
* Beccaria’s Essay on Crimes and Punishments, p. 104. New-York edition, 
t Exodus, chap. xxi. v. 22, 23. 
1 Fodere, vol. 4, p. 383. 430 
INFANTICIDE. 
until the revolution. Their parliaments frequently condemn- 
ed midwives to be hanged, for procuring abortion in girls; 
and physicians, surgeons, and others guilty of this crime, 
were subjected to the same punishment.* The French code 
of 1791, commuted the punishment to twenty year’s impri- 
sonment 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, be- 
verages, medicines, acts of violence, or by any other means, 
shall procure the untimely delivery of a pregnant woman, al- 
though 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.” 
“ 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.”f 
The criminal code of Austria, established in 1787, by Jo- 
seph 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; augmented, 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 increased, when the accomplice is the father of the in- 
fant.”:}; 
“ 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, with- 
in the first thirty weeks from the time of conception; and 
the penalty is protracted to eight, or at the utmost to ten 
* Fodere, vol. 4, p. 348. 
t Article 317. For a translation of the whole code, see Walsh’s American Review, 
vol. 2. 
$ Treatise on the Police of London, by P. Colquhoun, LL. D. 7th edition, p. 656 INFANTICIDE. 
431 
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 penal- 
ties, but with exacerbations, are enacted against the father of 
the fcetus, if he has been an accomplice in the crime. Final- 
ly, 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 injured, the duration of the 
penalty shall be from five to ten years.”* 
The English law is thus stated by Blackstone. “ If a wo- 
man 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 body, and she is delivered of a dead child, this, 
though not murder, was by the ancient law homicide, or man- 
slaughter. But the modern law doth not look upon this of- 
fence in quite so atrocious a light, but merely as a heinous 
misdemeanour.”! “ But if the child be born alive, and after- 
wards die in consequence of the potion or beating, it will be 
murderBy 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 adminis- 
tered 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 de- 
* London Medical and Physical Journal, vol. 43, p. 96. 
f Blackstone’s Commentaries, vol. 1, p. 129. 
i Ibid. Note by Christian. 432 
INFANTICIDE. 
dared guilty of felony, and shall be liable to be fined, impri- 
soned, set in and upon the pillory, publicly or privately whip- 
ped, or transported beyond the sea for any term not exceed- 
ing fourteen years.”* The same act ordains, that administer- 
ing medicines, drugs, &c., with the intent to procure abortion 
after quickening, shall be punishable with death. 
On examining these provisions, it will be seen that there 
was a striking omission in the English law, against the pro- 
curing of abortion, after a woman is quick with child. The 
statute prescribed 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 illustrated 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 noxious and destructive sub- 
stance to one Ann Cheney, with intent to produce miscarriage. 
It was proved by the deposition of Cheney herself, that re- 
peatedly 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 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 evidence 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 perpe- 
tration of the crime by mechanical violence, could only be 
noticed in court as proving the intention with which the medi- 
cines were given.f 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 
* Statutes at Large, 43 George III. cap. 28. Male’s Medical Jurisprudence, p. 114. 
f Edinburgh Medical and Surgical Journal, vol. 6, p. 244. INFANTICIDE. 
433 
to offences against the person,” this omission is provided for, 
and the whole law is recast. It now stands thus, “ If any per- 
son, with intent to procure the miscarriage 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 wo- 
man, 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 com- 
mon jail or house of correction, for any term not exceeding 
three years, and if a male, to be once, twice, or thrice, pub- 
licly 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 Scot- 
land, says, that all procuring of abortion, or destruction of 
future birth, whether quick or not, is excluded from the idea 
of murder, because, though it be quick, still it is only pars vis- 
cerum 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 sur- 
geon and midwife, indicted for the violent procuring of abor- 
tion, 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 
* Edinburgh Medical and Surgical Journal, \ol. 6, p. 249, 434 
INFANTICIDE. 
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 haz- 
ard.” 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 transporta- 
tion for using instruments to procure it; and in 1824, another 
was condemned to the same punishment, for administering 
arsenic with a like design.* 
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 preg- 
nant with a quick child, any medicine, drug, or substance 
whatever, or shall use or employ any instrument or other 
means, with intent 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 re- 
sulted in the death of such mother, shall be deemed man- 
slaughter in the first degree.”! 
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. 
“ Every person who shall wilfully administer to any preg- 
nant woman, any medicine, drug, substance or thing what- 
ever, 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 
* Alison’s Principles of the Criminal Law of Scotland, p. 52 and 628. 
t Revised Statutes, vol. 2, p. 661. Session Laws of 1830, p. 401. INFANTICIDE. 
435 
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 dol- 
lars, or both.”* 
In the state of Ohio, the law against abortion is the follow- 
ing: “ If any physician or other person, shall administer to 
any pregnant woman any drug, &c., or shall use any instru" 
ment or other means whatever, with intent thereby to pro- 
cure 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 conviction, be punished by impri- 
sonment 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 imprisoned in the 
penitentiary, not more than seven years, nor less than one 
year.”f 
In the state of Connecticut, the law enacts, that for admi- 
nistering any noxious or destructive substance for the purpose 
of procuring the miscarriage of a woman quick with child, 
the punishment, on conviction, shall be imprisonment in New- 
gate prison during his or her natural life, or for such other 
term as the court having cognizance of the offence shall de- 
termine.:}: 
In Missouri, the administration of poison with an intent to 
procure abortion, is punished by imprisonment for a term not 
exceeding seven years, and a fine not exceeding three thou- 
sand dollars. § 
2. Laws against the murder of the new-born infant. 
These, in almost all civilized countries, are capital. Pre- 
vious to the fourth century, the edicts of the Roman empe- 
rors against this crime were partial and ineffectual; towards 
the latter part of that century, however, it was completely 
* Revised Statutes, vol. 2, p. 694. 
t American Jurist, vol. 13, p. 211. 
t Revised Laws of Connecticut, p. 152. 
§ Laws of Missouri, 1825, p. 283. 436 
INFANTICIDE. 
prohibited. The following is the article relating to it in the 
Cod. Justin, lib. viii, tit. 52, de infant, expositis, 1, 2: “ Unus- 
quisque sobolem suam nutriat. Quod si exponendam puta- 
verit, animadversioni quse constituta est, subjacebit.”# 
The emperor Charles V. condemned the mother to death 
only in cases where it could be proved that the child had been 
born alive.f 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.J 
The following statement of the laws against infanticide and 
abortion in the middle ages, is given in the Cabinet Cyclope- 
dia 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.’5 
Among the Bavarians, there was a singular provision against 
abortion: the pecuniary mulct was not only to be paid an- 
nually by the man who caused the abortion, but annually by 
his descendants to the seventh generation; for as the child or 
foetus had not been baptized, and as its doom was, consequent- 
ly, everlasting fire, no ordinary penalty should meet such a 
crime.”§ Among the Lombards, “ in the twelfth century, we 
find the Lex Pompeia fully in force. || 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 punishment, as regarded both 
parricide and infanticide; sometimes the culprits were drag- 
ged by red-hot forceps to the place of execution; but the un- 
natural 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 were in use.”H 
* Beckman’s History of Inventions, vol. 4, p. 437. 
f Fodere, vol. 4, p. 396. 
1 Male, 2d edition, p. 271. 
§ Dunham’s Europe in the Middle Ages, (Lardner, No. 49,) vol. 2, p. 145. 
|| Cod. Justin, 1,9, pr. a. ad. Leg. Pomp, de Par. 
Dunham, vol. 2, p. 146. INFANTICIDE. 
437 
The Frisians allowed the infant to be exposed, or put to 
death, provided it had not sucked the breast of its mother.* 
In 1556, Henry II. of France, made a law condemning to 
death every woman convicted of having concealed her preg- 
nancy, and put to death a bastard child. This law prevailed 
until the year 1791,f when every thing relating to the con- 
cealment 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 11 every 
person guilty of assassination, parricide, infanticide, or poison- 
ing, shall suffer death.”—Art. 302. 
Other articles provide against the exposure and abandon- 
ment 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 six- 
teen 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 con- 
sidered and punished as in the case of wounds voluntarily in- 
flicted; and if the consequence be death, it shall be considered 
and punished as murder.”—Art. 3514 
The Austrian law provides, that “ exposing a living infant, 
in order to abandon it to danger and death, or to leave its 
deliverance 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.Ӥ 
In Saxony, infanticide is punished with the same severity as 
parricide; the culprit is put into a bag, with a dog, a cat, a 
cock and a serpent, and then thrown into the water. |j 
Although the Chinese have no law prohibiting the exposure 
of children, yet they inflict a slight pupishment for the wanton 
murder of them. The following is the law on that subject: 
* Dunham, vol. 2, p. 146, 206. 
t Fodere, vol. 4, p. 365. 
t American Review, vol. 2, p. 396. 
§ Colquhoun, p. 66. 
|| Specimen Juridicum, etc. p. 44. 438 
INFANTICIDE. 
“ 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 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 endeavour 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 offend- 
ing, shall suffer death as in the case of murder, except she 
can prove by one witness at the least, that the child whose 
death was by her so intended to be concealed, was bom 
dead.”f 
Upon this statute, Blackstone remarks, “ This law, which 
savours pretty strongly of severity, in making the conceal- 
ment of the death almost conclusive evidence of the child be- 
ing murdered 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 evidence and presumption as by law are al- 
lowed to take place in other trials of murder: if acquiltedr 
and it shall appear on evidence that the prisoner was deliver- 
ed of a child, which by law would, if born alive, be a hastardT 
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, 
* La Tsing Leu Lee; being the fundamental laws, and a selection from the supple- 
mentary statutes of the penal code of China. By Sir George Staunton, F.R.S. (Quar- 
terly Review, vol. 3, p. 312, 13.) 
t East's Crown Law, vol. 1, p. 228. 
i Blackstone’s Commentaries, vol. 4, p. 198. INFANTICIDE. 
439 
to adjudge, that such person shall be committed to the com- 
mon gaol, or house of correction, for any time not exceeding 
two years.” 
The English law, according to the 9 George IVth. 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 before, 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 there- 
of, 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 assistance in the birth, and if the child shall be found dead 
or be a missing, she shall be subject to two years imprison- 
ment.”* 
In the state of New-York, we have no particular law con- 
cerning 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 
considered 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. 
* Alison’s Principles of the Criminal Law of Scotland, p. 151. 440 
INFANTICIDE. 
If convicted of the wilful murder of the infant, the crime is 
murder, and death the punishment.* 
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 bas- 
tard, and it be found dead, and if there be presumptive evi- 
dence of neglect or violence on the part of the mother, the 
punishment shall be a fine not exceeding five hundred dollars, 
and imprisonment not over two years; one or both at the dis- 
cretion of the court.f 
In Connecticut, the law determines, that if a woman con- 
ceal her pregnancy, and be delivered secretly of a bastard, 
she shall be punished by a fine of not more than one hundred 
and fifty dollars, 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.J 
In New-Jersey, the concealment of pregnancy, and delivery 
in secret, is considered a misdemeanor, 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 bas- 
tard child, is made a crime, and the punishment directed, is 
imprisonment for not more than two years, or a fine not ex- 
ceeding one thousand dollars. || 
In Pennsylvania, by the act passed in 1781, the concealment 
of the death of a bastard child, was conclusive evidence to 
convict 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, 
* Laws of Massachusetts, 1807, vol. 1, p. 222. 
t Laws of Vermont, 1808, vol. 1, p. 349. 
1 Revised Laws, 1821, p. 152. 
§ Digest of the Laws of New-Jersey, 1833, p. 224, 225. 
|| Digest of the Laws of New-Hampshire, 1830, p. 149. INFANTICIDE. 
441 
every person so advising and directing, shall be deemed ac- 
cessary to such murder, 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 con- 
cealed, was, therefore, murdered by the mother, shall not be 
sufficient evidence to convict the party indicted, without pro- 
bable presumptive proof is given that the child was born alive, 
and that of the 22d of March, 1794, declares, “the conceal- 
ment 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 mali- 
ciously destroy and take away the life of such child.”* 
In Rhode-Island, the law is very similar to that in Pennsyl- 
vania.! 
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, wras 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 
illegitimate child, is punished with imprisonment.§ 
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 illegiti- 
mate children, are generally considered as a great means of 
preventing child murder. The object of these institutions is 
* Remarks on Infanticide by R. E. Griffith, M.D. Chapman’s Journal, new series* 
vol. 4, p. 260. Laws of Pennsylvania, 1803, vol. 5, p. 6. Addison’s Reports, p. 1. 
Pennsylvania v. Susannah M’Kee. 
t Laws of Rhode-Island, 1798, p. 597. 
1 Laws of Delaware, 1797, vol. 1, p. 67, vol. 2, p. 670. 
§ Digest of the Laws of Georgia, 1822, p. 349. Revised Laws of Illinois, 1833, p. 177. 
|] Laws of Michigan, 1820, p. 194. 442 
INFANTICIDE. 
no doubt commendable, but it is certain that they are not pro- 
ductive 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—discountenance marriage—increase the 
number of illegitimate children, and consequently the number 
of exposures—are facts confirmed by the history of almost 
every foundling hospital that has been established. Mr. Mal- 
thus states facts of this kind with regard to the foundling hos- 
pital in St. Petersburgh, (Russia.) “ To have a child,” says 
he, “ was considered as one of the most trifling faults a girl 
could commit. An English merchant at St. Petersburgh told 
me, that a Russian girl living in his family, under a mistress 
who was considered as very strict, had sent six children 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 
injurious to the moral character of a people. It is a position 
sufficiently self-evident, and as Malthus justly remarks, “ an 
occasional child murder, from false shame, is saved at a very 
high 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 es- 
tablishment (a Foundling Hospital) may safely be termed a 
great public 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 con- 
nexion, which is impossible, it must needs encourage many to 
enter into such an intercourse, without giving them the means 
of providing against its consequences.”! 
There is, however, another objection to Foundling Hospi- 
tals. The history of such establishments proves that they 
* Malthus on Population, vol. 1, p. 368-9. 
f Malthus on Population, p. 370. For further illlustrations of this fact see a history 
of the present condition of public charity in France, by David Johnston, M.D. p. 
320, 321. 
1 Edinburgh Review, vol. 38, p. 440. INFANTICIDE. 
443 
utterly fail of accomplishing their object, which is the pre- 
servation of the lives of children. The records of those which 
have been kept with the greatest care, exhibit the most as- 
tonishing 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 Heglect.* It is stated also, that vast num- 
bers of the children die from a disease called l’endurcissement 
du tissue cellulaire, which is only to be met with in the Found- 
ling 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 favorable 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 hospital seemed to 
open its jaws for the destruction of the deserted and illegiti- 
mate progeny of Vienna. The emperor Joseph II, frequently 
visited this hospital in person, and upon one occasion he or- 
dered Professor Boer to make a series of experiments with 
all 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 4L§ 
In St. Petersburgh and Moscow, the Foundling Hospitals 
* Beckman’s History of Inventions, vol. 4, p. 456-7. 
f Cross’ Medical Sketches of Paris, p. 197. 
X Quarterly Journal of Foreign Medicine and Surgery, vol. 1, p. 188. 
$ Elements of Medical Statistics, by F. Bisset Hawkins, M. D. p. 136. 444 
INFANTICIDE. 
have always been managed with the greatest liberality and 
care; and yet, in the latter city, during the twenty years sub- 
sequent 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 foundlings admitted into the hospitals ap- 
propriated to them, were 2517, and the deadhs were 1038. In 
1812, 2699 were admitted, and the deaths were 1348. In the 
province of Archangel, the proportion of deaths has been still 
greater. Of 417 foundlings admitted 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.f 
In the hospital at Metz, calculation showed that seven- 
eighths of the whole number of children perished. In an in- 
stitution of this kind in one of the German principalities, only 
one of the foundlings, in 20 years, attained to manhood.f 
The Foundling Hospital of London, exhibits rather a more 
favourable 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 years, even less in proportion.§ 
The general fact is, however, sufficiently evident, that the 
lives of the multitudes of children are sacrificed in these hos- 
pitals. 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 deli- 
cacy 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 infanti- 
cides 1 We have no evidence of such a result flowing from 
them. From the deleterious influence which they have upon 
the moral feelings of the female sex, we cannot believe that 
it is the case. And it is accordingly stated, that after the 
Foundling Institution of Cassel was established, not a year 
* Elements of Medical Statistics, by F. Bisset Hawkins, M. D. p. 137. 
t Ibid, p. 139. 
| Beckman on Inventions, vol. 4, p. 456-7. 
§ Highmore’s History of the public charities in and near London, p. 727. Rees? 
Cyclopedia, Art. Hospital. INFANTICIDE. 
445 
elapsed without some children being found murdered in that 
pkce or its vicinity.* 
The following account of the deaths in the different found- 
ling hospitals of Europe, will afford ample testimony in sup- 
port of the opinions already advanced. It is taken from the 
Edinburgh Medical and Surgical Journal, vol. i, p. 321-2. 
“In 1751, Sir John Blaquiere stated to the House of Com- 
mons 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 ad- 
mitted 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 chil- 
dren were received into the hospital, of whom, in the same 
space of time, 450 died: that, in the last quarter, the official 
report of the hospital stated the deaths at three, 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 Cliarite of Berlin, where some enjoyed the advan- 
tage 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 aphthae, called le muguet, and not one 
survived 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 Mont- 
pellier, 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 population. In Vienna, notwithstanding the princely 
income of the hospital, scarcely one in 19 is preserved. In 
* Beckman, vol. 4, p. 456. 446 
INFANTICIDE. 
Petersburgh, under the most admirable management and vigi- 
lant attention of the Empress 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.” 
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* 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 
exposed; and that the number of illegitimate children received 
in the 44 workhouses 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 sup- 
ported 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 establish- 
ment of this kind, and from 1799 to 1811, there were exposed 
there 30 children. Napoleon, who imagined that in multiply- 
ing 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 suppressed by the 
Grand Duke of Hesse-Darmstadt. During this period of three 
* M. De GourofF, Rector of the University of StPetersburgb, Counsellor of State, INFANTICIDE. 
447 
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 in the 
nine succeeding years, but seven children were exposed.* 
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 in- 
troduction of an instrument 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) 
3. The case of Phillips, tried in January 1811, for attempting to pro- 
cure abortion in Hannah Mary Goldsmith, by giving savine. (3) 
4. The case of Robin Collins, tried at Chelmsford assizes, 1820, for 
administering steel filings and pennyroyal water, with the intent to pro- 
cure abortion. (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 Elliot. Infanticide. (10) 
11. Margaret Patterson. A case of infanticide, examined and reported 
by David Scott, M.D. of Cupar-Fife, Scotland, accompanied with remarks 
* 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, pp. 88. 
An able pamphlet written by John Rutter, 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. 
(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. 448 
INFANTICIDE. 
by Professor Christison of Edinburgh. This is a highly interesting case, 
and altogether 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 1688. 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 Bridport, England, for 
infanticide. (14) 
15. Case of infanticide, reported by W. Chamberlaine, surgeon in 
London.(15) 
16. Case of infanticide, reported by Mr. F. H. Ramsbotham. (16) 
17. A woman indicted and tried for infanticide, at the Sussex assizes, 
England, 1825, (17) 
18. Eliza Maria Jones, for infanticide. Reported by Prof. Amos. (18) 
19. A case in London, of infanticide. (19) 
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) 
(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. D, p. 239. 
(13) London Medical Gazette, vol. 10, p. 375. 
(19) Lancet, vol. 9, p. 339. 
(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. 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. Re- 
markable cases of it in Ancient Rome, Germany, France and England. Gardner 
peerage case: Opinions of distinguished accoucheurs on this subject. Cases. 4. 
Laws *>f various countries on the subject of legitimacy—Roman—Ancient French— 
Prussian—Modern French and Scotch laws. Decisions under these. Want of po- 
sitive law in England and America. English cases. Remarks on this subject. 5. 
Questions relating to paternity and filiation. Paternity of children where the wi- 
dow marries immediately after the death of her husband. Cases in the Roman, 
English and American courts. English law on this subject. Similitude and colour 
as evidences of paternity. Cases. 
The reproach that I have incurred of treating the present 
subject with levity, has induced me carefully to revise what 
I had written. I trust that on this point at least, I shall not 
again deserve censure; but I have at the same time to avow, 
that on the main question, my sentiments are unaltered. The 
sense, however, 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 450 
LEGITIMACY. 
to nine calendar months and a week.* This period has been 
adopted, because general observation, in cases which allowed 
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 subject, 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.”J 
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 appre- 
hend 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 fe- 
males 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 cer- 
tain 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 married females—while the pe- 
riod of quickening, (as we have shown in a previous chapter,) 
varies sufficiently to render it perfectly nugatory, in a calcu- 
* It is very important to recollect tlie distinction between lunar and calendar months. 
Some of the diversity of statement that exists, has originated from inattention to this. 
Nine calendar months may be from 273 to 275 days; ten lunar months are 280 days. 
t 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 sea- 
side at Wexford in the month of June 1831, leaving her husband in Dublin, a tempo- 
rary 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 menstrua- 
tion 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. Succes- 
sion of Inheritance.) 
t Hargrave and Butler’s Note 190* to Section 183 of Coke upon Littleton. LEGITIMACY. 
451 
lation to be made like the present.* There remains, then, only 
the cessation of the catamenia, and this indeed is the point 
from which most females date the period of 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 supervened. Some, 
however, calculate from the first week after the cessation. 
But even this is liable to doubt and to mistake. We have 
mentioned that some females have bloody discharges during 
the early months of pregnancy, and although medical men 
may consider these as altogether distinct from the product of 
menstruation, yet the female makes no such discrimination. 
This, however, 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 opportunity is given for adducing an instance of 
protracted gestation. 
In connexion with this, the variety that exists as to the re- 
turn of the period of menstruation, may assist in leading into 
error. The common idea is that the menstrual discharge re- 
turns every twenty-eight days, or in other words, that there 
is this time “ between the end of one menstrual period and the 
beginning of another.” A practitioner of midwifery in Lon- 
don, in a communication 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 280 days.f 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 commencement of another.! 
But even if this be granted, it is far from invariable. Dr. 
Davis observes, that many women menstruate at intervals of 
* 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. Dr. Montgomery, (as well as others,) 
mentions cases of variety in time, even so great as a month, 
t Lancet, vol. 10, p. 660. 
£ London Medical Gazette, vol. 13, p. 269. 452 
LEGITIMACY* 
from 24 to 20 days, and there are some, indeed, he says, who 
menstruate twice a month.* 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 100 cases taken without selection, found 61 in 
which the menses returned monthly, 28 in three weeks, 10 in 
intervals of varying and uncertain duration, and 1, a healthy 
woman aged twenty-three, in whom they recurred every fort- 
night.! 
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 14th time on the last day of December. He found 
among perfectly regular females intervals of 21, 25 or 26 
days.! Velpeau remarks, that sometimes only 22, 20, 18, or 
even 15 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.§ 
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 ? 
However this may be, we have at least shown the difficul- 
ties attending a precise calculation, and explained why mis- 
takes of two and even three weeks may sometimes occur, 
without affecting the leading question of a regular term of 
gestation. If in connexion with this, wre take the general 
sense of the individuals, who are the subjects of investigation, 
and that of at least a fair proportion of the intelligent and 
scientific members of the profession particularly conversant 
in midwifery, we shall find that the prevailing opinion in 
nearly all countries, is in favour of the above mentioned re- 
gular period. || 
* Obstetric Medicine, p. 252. 
t Edinburgh Medical and Surgical Journal, vol. 38, p. 252. 
X Elliotson’s Blumenbach, p. 465. 
§ Velpeau’s Midwifery, p. 87. “ It is the opinion of most of the women of this coun 
try, that a catamenial month is a month of four weeks.” This was Dr. Denman’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 
Medicine, p. 251.) 
|) I am peculiarly happy to find that Dr. Anthony T. Thomson is a firm believer in LEGITIMACY. 
453 
There are, however, physiologists who doubt this unifor- 
mity 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 at- 
tention to it is M. Tessier. In a memoir presented to the 
National Institute, he states, that he has been forty years oc- 
cupied 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 ex- 
tremes 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 
28 to 33 days.* 
These facts certainly go to show that the period of gestation 
is irregular among animals; and should they be verified by 
succeeding observers, a strong argument from analogy will be 
furnished against its uniformity in the human race. It must, 
however, be recollected, that even if perfectly established, it 
is only a favourable, and not a decisive proof, j 
;i uniform period of gestation. See his Lectures in London Medical and Surgical Jour- 
nal, vol. 6, p. 545, 577. 
* Repertory of Arts 1st series, vol. 12. p. 140. This contains a translation of Tes- 
sief 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 frequent- 
ly 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 furnish- 
ed with the following by one of my pupils at the Western Medical College, Dr. Seth 
L. Andrews. In seven instances, where his father, the Rev. E. D. Andrews of Pitts- 
ford, noticed the period of gestation in cows, the result was as follows: 
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. ; ; 454 
LEGITIMACY. 
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 
supposed, sometimes exert an important effect on the uterus. 
The authority of Hippocrates is cited, affirming that a warm 
winter, accompanied with rains and south winds, and suc- 
ceeded by a cold and dry spring, causes abortions very readily 
in females who are to be delivered in the spring. Many phy- 
sicians are said to have verified this observation in later times; 
and Fodere himself observes, that at Martigues, in 1806, after 
a warm winter, an epidemic catarrh broke out, and all the 
pregnant women miscarried. 
The constitution and habits of the females, it is believed, vary 
it. That part of the sex which reside in cities, and lead effe- 
minate lives, are more liable to variations than others diffe- 
rently 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 
passive; and in this way, the ordinary term will not prove 
constant.* 
I will barely remark on these arguments, that experience has 
refuted, and is constantly refuting them. There is not a prac- 
titioner in midwifery who has not, within his own observation, 
met with cases sufficient to contradict the opinions just ad- 
vanced.! It frequently happens that females of the most ir- 
ritable habits and effeminate course of life, proceed to the 
ordinary period—nay 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 constitutions, it will be observed, that 
this cannot with fairness be used as a general argument; nor 
* 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. 
Naissanees 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. LEGITIMACY. 
455 
indeed does it prove any thing more, than that the state of the 
weather may be such as to predispose to abortion. 
To all this, however, the argumentum ad hominem is re- 
joined, and cases are adduced which certainly appear difficult 
of explanation, unless we allow that gestation maybe pro- 
tracted. I shall notice some of these in a subsequent section, 
and shall conclude this by mentioning the theory promulgated 
by Dr. Power of London, (a believer in protracted gestation,) 
in explanation of its supposed occurrence. How far it is to 
be considered as perfectly original, will be seen by referring 
to my preceding remarks. 
Dr. Power refers first to the change that takes place in the 
state of the womb during the progress of pregnancy. The 
neck disappears; the foetus presses on the mouth, in conse- 
quence 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 prevent the contents of the womb from irritating its 
mouth, or interfere with the due application of its insensible 
contraction, may not only delay labour, but delay its com- 
mencement beyond the usual time. He adduces cases illustra- 
tive of this, in some of which, pressure alone appears to have 
been sufficient, after considerable delay in the natural state, to 
bring on the phenomena of labour; in others, it has been post- 
poned in consequence of an oblique or improper situation of 
the mouth of the womb.* 
II. Of premature delivery. 
The question which requires consideration under this sec- 
tion, is whether a child with all the characters of maturity, as 
we have described them in a previous chapter, can be born 
* 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 1 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 foetus could be detected at four weeks, and SirE. Home’s case, where 
it was seen at one week. (London Medical Gazette, vol. 13, p. 553.) 456 
LEGITIMACY. 
before the ordinary term of gestation? 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, 
healthiness, &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 unfa- 
vourable 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 similar cases, and Fodere relates of a 
female in the duchy of Aost in the same situation.* 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 disease. 
If the question be confined in the manner already stated, we 
may derive aid from the appearance of the child, and the con- 
dition of the mother; and although it may be deemed barely 
possible that a child born at seven months may occasionally 
be of such a size as to be considered mature, yet I apprehend 
that the assertion is most frequently made by those whose 
character is in danger 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 
developement,f) be born before seven full months after the 
* Fodere, vol. 2, p. 128. 
t See page 253. LEGITIMACY. 
457 
alleged connexion, it ought certainly to be considered as ille- 
gitimate.* 
III. Of protracted delivery. 
I propose to devote this section to a statement of some cases 
that have occurred at various times, and been made the sub- 
ject 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 Prastor, L. Papirius, de- 
clared 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 Aldus Gellius, declared an infant legiti- 
mate, which was born eleven months after the death of its 
father, on account of the unsuspected and undoubted virtue of 
the widow. A similar case is mentioned by Godefroy, in his 
Notes on the Novels of Justinian. A widow was delivered 
fourteen months after the death of her husband, and her issue 
pronounced legitimate by the parliament of Paris. It appeared 
that she had lived with the relatives of her husband during 
the whole period of widowhood ; that they had never ob- 
served any impropriety in her conduct ; and they also testi- 
fied to the deep and constant grief she had manifested for the 
loss of her partner. The parliament of Paris appears indeed 
to have adjudicated on numerous cases of protracted gestation. 
Fodere gives an abstract of twelve, which I copy to show 
the reasons assigned.! 
* 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 foetus. (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.) 
t 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. 
VOL. I. 458 
LEGITIMACY. 
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 thir- 
teen 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 se- 
ven children she had previously borne. The opinion of the 
Medical Faculty of Leipsic was required in this case. They 
replied, that extraordinary cases of protracted gestation, de- 
serving 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 foetus ; and that the long continuance of 
the labour pains proved this to be a preternatural case. They 
therefore decided that the offspring was legitimate.! 
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 husband, 
was adjudged legitimate. 
In 1632, a child born within four days of ten months after the death of the husband, 
was pronounced a bastard, on account of the character of the mother, and the constant 
ill health of the putative lather. 
In 1649, a child born at ten months and nine days, was judged legitimate, though 
the father had been absent and paralytic. 
In 1656, a child born at sixteen months after the death of the husband, was declared 
a bastard. 
In 1664, a child born eleven months after the absence of the husband, was adjudged 
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 asserted 
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 husband’s 
death, was pronounced legitimate, on account of the irreproachable conduct of the 
mother. 
t Foderg, vol. 2, p. 183. 
I 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 
2d of April, 1630, declared it illegitimate, because it was born beyond the time assigned 
by Hippocrates. (Ibid. vol. 1, p. 140.) Amman, who reports these cases, observes, 
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. LEGITIMACY. 
459 
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 de- 
livered of a son. The brothers and sisters of the deceased 
contested its legitimacy, and an appeal was made to the Me- 
dical Faculty of Giessen. They commence their answer, also, 
by stating extraordinary cases as mentioned by authors, and 
in this instance decided 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 foetus, there- 
fore, would require a longer period to come to maturity.* 
There are also some cases which deserve notice, from the 
medical controversies to which they have given origin. I 
shall particularly mention two that occurred in France. 
Le Sueur, a resident of the city of Caudebec in Normandy, 
was 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 favor of the widow. Her 
claim was defended on the score of character, and on the pos- 
sibility 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 extraor- 
dinary narratives. The work of the celebrated Petit on this 
subject was quoted, in which he states that many faculties of 
medicine, forty-seven celebrated authors, and twenty-three 
French physicians and surgeons, agree in believing that deli- 
very 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 fol- 
* Valentini’s Pandects, vol. 1, p. 144. 460 
LEGITIMACY. 
lowing case related by Heister. A female, the wife of a 
bookseller, in Wolfenbuttel, was delivered thirteen months af- 
ter the death of her husband. The individuals interested, 
proposed to contest the lagitimacy of the infant, but were 
deterred on account of her excellent character. So convinced 
was one Christopher Misnerus, who had acted as shopkeeper 
during her widowhood, of her virtue and probity, that he 
married her shortly after, and had two children by her, and 
each of them were born after a gestation of thirteen months.4' 
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, testi- 
fied, 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 pro- 
duces 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 com- 
mencement of the year 1759. They were married nearly 
four years without 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 addition to these, he was seized 
writh a dry gangrene of the leg on the 21st ; and with this 
* This case is related at length, with all its proofs, in Schlegel, vol. 2, p. 99 to 113. 
(Wagner’s Dissertation.) 
t Fodere, vol. 2, p, 185 to 189, quoted from the Causes Celtbres. LEGITIMACY. 
461 
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 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 illegiti- 
mate. Had he rested at this, even the advocates of protracted 
gestation might probably not have murmured, as the circum- 
stances were rather too powerful for the interposition of their 
favorite doctrines. But he took occasion, in his consultation, 
to attack the opinion generally, 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 foetus, 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 calculations; 
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 de- 
cisions. “ If we admit,” says he, “ all the facts reported by 
ancient and modern authors, of delivery from eleven to twen- 
ty-three months, it will be very commodious for females; and 
if so great a latitude is allowed for the production of posthu- 
mous 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 
remarks in confirmation of it. He observes, that if the doc- 
trine be true that the children of old people are longer in 
coming to maturity, it would have been confirmed by expe- 
rience, which it is not. Grief also, and the depressing passions, 
are much relied upon as possessing a delaying power; but 
* Louis’ Memoire contre legitimite des naissances pretendues tardives. Le Bas at- 
tacked this Memoir, and Louis replied in a supplement. Several other physicians, I 
believe, took part in the controversy. 462 
LEGITIMACY. 
certainly these are more apt to produce abortion, than pro- 
tracted 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 acciden- 
tal causes, which do not immediately impair the health; while 
the increase of volume in the abdomen may originate from 
this, or from numerous other causes. Towards the conclusion 
of his remarks, he states a difficulty, which, I believe, 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 
distinguished 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 
England, and in its progress excited the greatest interest. 
The Hon. Alan Hyde (afterwards Lord) Gardner, a cap- 
tain in the British navy, was married to Miss Adderly, at Fort 
St. George in the East Indies, in 1796. On the 8fh of Decem- 
ber, 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 verdict of £1000 damages. He then procured 
a sentence of divorce in the Consistory Court of the Bishop of 
London, and the marriage wras 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 assumed that of Henry Fenton 
Gardner, and claimed, through his guardians, to be the right- 
ful 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 Carrington, on the 
10th of April, 1809; and a son, Alan Legge Gardner, also a 
claimant of the peerage and estates, was born on the 29th of 
* Mahon, yol. 1, pp. 133, 185, 198, 203. LEGITIMACY. 
463 
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 Ports- 
mouth, and was joined by his first wife, who remained on 
board with him about three weeks, and then took her depar- 
ture for London on the 30th of January. It appears, how- 
ever, that the Resolution did not sail till the 7th of February, 
and that some communication 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 com- 
mittee 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 
arrange their testimony with reference to their belief, or dis- 
belief, in the doctrine under investigation. 
Drs. Gooch and Ralph Blegborough, Sir Charles M. Clarke, 
Dr. D. D. Davis, Professor of Midwifery in the London Uni- 
versity, and Mr. R. P. Pennington may be considered as not 
crediting 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 Decem- 
ber. When the statement of Dr. William Hunter was urged 
to him, that he (Dr. Hunter) “ had known a woman bear a 464 
LEGITIMACY. 
living child in a perfectly natural way, fourteen days later 
than nine calendar 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 tes- 
timony 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 that cases 
frequently occurred, in which I had an opportunity of calcu- 
lating accurately the length of pregnancy.” Young females 
he added, in very respectable situations, are often seduced ; 
the intercourse is single, and there is no motive whatever for 
mistating 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 confes- 
sion of more numerous connexions would give a suspicion of 
general incontinence,) would lie in the instances which he had 
seen.f 
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 cal- 
culations on the peculiar sensations experienced by females. 
They have fainted, and have been extremely ill, so as to in- 
duce their friends to send for a professional man. On proper 
inquiry, they will declare certain sensations, by which we 
* This answer is taken from Hargrave and Butler’s Note to Coke upon Littleton, as 
already quoted. 
f 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 varia- 
tion. LEGITIMACY. 
465 
know that conception has taken place, and was the cause of 
the feelings experienced. Upon calculating 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 sensations do not necessa- 
rily follow immediately upon sexual intercourse, 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 ex- 
actly 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 
protracted gestation. He could understand that they may 
accelerate, but could not see how they could retard. In se- 
veral 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 circumstances mentioned by the females. 
It will thus be seen, that of the five witnesses that disbe- 
lieved in protracted gestation, three founded their calculations 
on the occurrence of a single coitus, and the remainder on pe- 
culiar 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: 466 
LEGITIMACY. 
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 
testimony: Drs. A. B. Granville, Conquest, Blundell, Merri- 
man, Power, Hopkins, Dennison, H. Davis and Elliotson, and 
Messrs. Sabine, Chinnocks and Hawkes. 
Dr. Granville gave it as his opinion, that the usual or ordi- 
nary period of gestation is comprised between the 265th day, 
subsequent to impregnation, and the 280th, or 40 weeks; but 
he believed that gestation might be protracted. The most 
prominent ease mentioned by him in proof of this, was that 
of his own wife. She passed her menstrual period on the 7th 
of April, and on the 15th of August afterwards, she quick- 
ened. 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 menstru- 
ation, or 318 days, if from the middle of the two periods. 
Dr. G. also stated, that he was attached to two of the most 
extensive Lying-in Institutions in London; had seen much 
practice 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 re- 
commendation. According to these registers, he had “ known 
a case of 285 days from the latest period of supposed impreg- 
nation; 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 menstruation: Also cases of 290, 300 and 
315 (but this Dr. Granville afterwards stated that he consi- 
dered 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 De- 
cember, he said, I am aware of no circumstance that can ren- 
der it impossible. 
I should also add, that an inquiry was attempted into some 
of his registered cases, but technical difficulties were inter- LEGITIMACY. 
467 
posed, 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 con- 
fined at the anticipated time, that she had her nurse in the 
house; the period was exceeded nearly weeks. This female 
had borne six children. “ At that time (says Dr. Conquest) I 
disbelieved all the cases 1 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 con- 
finement, this female again exceeded her calculation 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. Con- 
quest had ever seen, after a very protracted labour. 
On inquiring as to the probable causes of protracted gesta- 
* Dr. Granville afterward resumed the discussion of this subject at the Westminster 
Medical Society, in December, 1829. He stated, that the cases to which he had re- 
ferred, 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 con- 
finement. She proved perfectly correct; and on inquiring the reason for fixing on so 
protracted a period, she said that her three former children were bom 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.) • 468 
LEGITIMACY. 
tion, Dr. Conquest stated, that he had seen instances in which 
an occasional loss of blood during pregnancy appeared to in- 
terfere with the process. Mental emotions will also protract 
the period. He believed that eleven months had been ex- 
ceeded. 
On cross-examination, Dr. Conquest stated, that his calcu- 
lation 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 inva- 
riably quickens at the same period afterwards.* 
Now in the females mentioned by him, the first had quick- 
ened with six children exactly at the termination of the six- 
teenth week, reckoning from the non-appearance of the men- 
strual 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 con- 
fidently, that she invariably suffers much constitutional distur- 
bance within one week after impregnation, and that the acts 
of intercourse are so seldom with her husband, that she has in 
every case been able to date with correctness, with the ex- 
ception 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 ab- 
sence of menstruation and quickening. She quickened at the 
seventeenth 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 loose blood periodically, but I believe 
these are all cases in which the extremities of certain arteries 
terminate below the uterus, in the upper parts of the vagina; 
and I believe, that in by far the majority of cases of reported 
* This opinion of Dr. Conquest requires confirmation. Dr. Montgomery, (Cyclo- 
pedia of Practical Medicine, vol. 3, p. 479,) says, “ At. this moment, I am in atten- 
dance on a lady who has, in seven successive pregnancies, felt the child for the first 
time in the sixth month, and once in the seventh month.” LEGITIMACY. 
469 
menstruation, 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 
pregnancy was prolonged beyond nine calendar months. This 
female became pregnant on the 9th of August, and was deli- 
vered on the 23d of May, (287 days.) Dr. Blundell saw her a 
few days after impregnation—there were symptoms of irrita- 
tion about the bladder and adjacent parts, and the catamenia 
were absent. He had no doubt that these symptoms arose 
from impregnation. 
This witness professed himself a believer in protracted ges- 
tation, 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 sup- 
posed herself to have conceived 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 
calculated his protracted cases. He answered, “ From the time 
at which the last appearance of the menstruation ceased; from 
the termination of the monthly periodIn the last case, the 
female had menstruated on the 7th of March; and both fe- 
males were married, 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 oc- 
curred 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 470 
LEGITIMACY. 
opinion that pregnancy took place just before the expected 
menstrual period? 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; and 
the following abstract from his paper deserves insertion here. 
‘ ‘ When I have been requested (says he) to calculate the time at which the accession 
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 280th was to be considered as the legitimate 
day of parturition. The subjoined table shows how often this day was deviated from, 
and what was the actual number of days from the day of menstrual intermission 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 
256 .... 1 
259 .... 1 
3 in 37th week. 
At 262 days, 2 
263 .... 2 
264 .... 4 
265 .... 1 
266 .... 4 
13 in 38th week. 
At 267 days, 1 x 
268 .... 1 
269 .... 4 
270 .... 1 
271 .... 2 
272 .... 2 
273 .... 3 
14 in 39th week. 
At 274 days, 4 
275 .... 2 
276 .... 4 
277 .... 8 
278 .... 3 
279 .... 3 
280 .... 9 
. 33 in 40th week 
At 281 days, 5 
282 .... 2 
283 .... 6 
284 .... 1 
285 .... 4 
286 .... 3 
287 .... 1 
t. 22 in 41st week. 
At 288 days, 5 
289 .... 2 
290 .... 2 
292 .... 4 
293 .... 2 
15 in 42d week. 
At 295 days, 1 
296 .... 2 
297 .... 2 
298 .... 4 
301 .... 1 
10 in 43d week. 
At 303 days, 1 
305 .... 1 
306 .... 2 
4 in 44th week. 
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 de- 
livery, 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 pregnan- 
cies, borne eleven children; and on all these occasions, became pregnant almost im- 
mediately after the monthly discharge. In addition to the facts stated above, he ob- 
serves 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. LEGITIMACY. 
471 
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 physiological reasoning, an account of which I have 
already given at page 455. 
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 examina- 
tion for this purpose, of works by eminent men on the point 
in question, led him to believe it possible. 
Mr. Sabine spoke of the case of his own wife. Her last 
menstruation was on the 14th of September; she quickened in 
the second week of January, and was delivered on the 14th of 
August; being a ten months’ case, if we date from the 14th of 
October; 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 
Devonshire, 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 herma- 
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 
September, 1824. 472 
LEGITIMACY. 
phrodite—what then is the time? He answered, “ that / 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 satis- 
factory. 
Such was the medical testimony in the famous Gardner 
peerage 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.* 
I have to a certain degree anticipated the concluding pur- 
pose of this section, viz. to present the opinions of distinguished 
accoucheurs. It would, however, be incomplete, were I not 
to add some more of these, and for a reason which must pro- 
bably ere this have occurred to the reader. Many of the 
cases now enumerated, 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 respect. 
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 wras 
not interrupted, but the next one was. In nine months and 
thirteen days (forty-one weeks) from the date of the visit, she 
was delivered of a healthy child.”! 
In a subsequent edition, he observes, “I have had every 
evidence this side of absolute proof, that it has been prolonged 
to ten calendar months, as an habitual arrangment 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 
* 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 cause,” 
first and second editions. See also Cyclopaedia 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. 
t Dewees’s Midwifery, p. 170. If February be included in the above mentioned 
term, it will be 283 days; if not, 285 or 286 days. LEGITIMACY. 
473 
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.”* 
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 physi- 
cian thought that pregnancy might have 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 pregnancy began to appear, the visits were dis- 
continued. The lady was closely watched all the time by her 
female attendants. She was delivered at the end of nine ca- 
lendar months and a fortnight, and Desormeaux attended her.f 
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 
* Dewees’s 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. 1 he 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 inflammation, and a 
full grown foetus was discovered. If we thus bring in the agency of disease, 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 de- 
livered, it measured between nine and ten inches, and weighed six ounces. (London 
Medical Gazette, 1829.) Also by Dr. Homans of Boston, of a female who supposed 
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 continued 
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 labour pains; and a 
fetus, one and a half inch long, with a placenta, was expelled. (Boston Medical and 
Surgical Journal, vol. 2, p. 372.) 
f Dr. Granville in Lancet, N. S. vol. 5, p. 418. 474 
LEGITIMACY. 
menstruated on the 1st of August, and was not delivered un- 
til 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 husband went to England, where he re- 
sided for some months; but she was not delivered till the 6th 
of December.” 
Professor Burns observes, “ On the other hand, it is equal- 
ly certain, that some causes which we cannot explain or dis- 
cover, 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 exactly two days before 
the expiration of ten calendar months after menstruation.”* 
Velpeau knew a woman who computed that she was four 
months gone when she came to his amphitheatre. He dis- 
tinctly felt both the active and passive motions of the foetus. 
Appearances 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, in fact, this took place on the 310th 
day.f 
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, 
Zacchias, Petit, Harvey, Maurieeau, Smellie, and a host of 
what may, by distinction, be called the elder writers. Among 
* 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 
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 w oman to exceed 
the eleventh menstrual period.” Note by Dr. Lyall, in his Gardner Peerage Case 
p. 43. 
t Velpeau’s Midwifery, p. 246. LEGITIMACY. 
475 
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.* 
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.f Such was also the French 
law prior to the Revolution. 
* Those who wish to examine this subject further, are referred, in addition to the 
authorities already quoted, to Fodere, Metzger, Louis, Valentmi, Schurigius’ Disser- 
tation in Schlegel, vol. 4, p. 232. 
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 ute- 
rus. 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 dis- 
posed 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 gesta- 
tion. (See Lyall, and Medico-Chirurgical Review, vol. 9, p. 212.) Also a case by P. 
C. Blackett, (London Medical and Surgical Jourual,) of a female, who, in the begin- 
ning of December, 1820, was seized with retchings and sickness in the morning, ver- 
tigo, pain and tension in the breasts. During four successive pregnancies, she had a 
regular monthly discharge, and in about two weeks after the above retchings, she 
had this again, and it continued monthly, until she was confined. She expected this 
in September, 1821, but no signs of labour appeared. In October, she was seized 
with pain in the regionjof the liver; and during the use of remedies, experienced mo- 
tion for the first time. On the 23d of December, 1821. she was delivered of two male 
infants, with separate placente, and each weighed about eight pounds. (Boston Me- 
dical and Surgical Journal, vol. 9, p. 153.) By Dr. Ryan, of a female who menstru- 
ated the last wyeek in February, 1826, quickened in July, but instead of being deli- 
vered 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 protracted 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 pre- 
vious to his visit. After a patient and well managed application of means, the com- 
plaint 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 calendar months and 
24 days, or 270 days,) she wTas safely delivered of a son. (Boston Medical and Surgi- 
cal Journal, vol. 12, p. 264.) 
f Fodere, vol. 2, p. 111. 476 
LEGITIMACY. 
In 1G34, a case was decided by a majority of the judges of 
the supreme court of Friesland, by which a child was admit- 
ted to the succession, though not born till three hundred and 
thirty-three days from the husband’s death, and what in- 
creases the latitude of the decision, is that the husband was 
for some time a valetudinarian, and for fourteen days before 
his death, confined to his bed.* 
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 
husband, was adjudged a bastard by the legislative commission 
of that country.f 
The civil code now in force in France contains the follow- 
ing provisions. The child born in wedlock has the husband 
for its father. lie may however disavow it, if he can prove, 
that from the three hundredth to the one hundreth and eigh- 
tieth day before its birth, he was prevented, either by absence 
or some physical impossibility, from cohabiting with his wife. 
An infant born before one hundred and eighty days after mar- 
riage, cannot be disavowed by him in the following cases. 1. 
When he had knowledge of his wfife’s pregnancy before mar- 
riage. 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 dissolution 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 remark- 
ing on this, observes, that it would probably be deemed legiti- 
mate, if no legal investigation should take place. § 
The following case was adjudicated under its provisions: 
Catherine Berard was married on the 25th of July, 1806, to 
* Hargrave ut anfcea. This case is quoted from Johannes a Sandes’ (himself a sen- 
ator of the court,) Collection of Adjudications made by it. In Paris and Fonblanque, 
vol. 3, p. 216, the original case, including the arguments and authorities adduced 
even at that time, in favour of protracted gestation, is given in the original Latin. 
t Metzger, p. 427, 429. 
i Code civil, sections 312, 314, 315, quoted by Capuron and Fodere. 
§ Page 231. LEGITIMACY. 
477 
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 de- 
ceased 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 hus- 
band, on the ground of illegitimacy. She pleaded their cruel 
usage during her widowhood, the state of poverty and sorrowr 
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 gestation. The court, after 
quoting the article in question from the Napoleon code, argued 
that it gave the child a provisionary legitimacy, until the con- 
trary 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 physicians, 
as possible; and remarked that the widow must have been in 
a state of sorrow and languor, in consequence of the treat- 
ment of her relatives, and thus the increase of the foetus was 
probably retarded. Accordingly, on the 14th April, 1808, a 
decree was pronounced, declaring the child legitimate. An 
appeal was taken from it to the court of appeals at Gre- 
noble. M. Metral, 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 was not for1 
gotten, nor the fact, that she had experienced labour pains at 
the end of nine months. The court in their arret textuel, ob- 
serve, 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 implica- 
tion destroys its claim in a disputed case, and affixes a term 
beyond which, gestations are to be deemed illegitimate. Again, 478 
LEGITIMACY. 
the 228th and 296th articles of the same code, forbid a widow 
or divorced female to marry, until ten months after the disso- 
lution of marriage. Here again the term of three hundred 
days appears to be pointed out as the most extensive period 
allowed to pregnancy. The father, also, by the 312th article, 
is permitted to disavow the child, if he proves a physical im- 
possibility 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 
The English law, on which our own is founded, does not 
prescribe a precise time. There are, however, some deci- 
sions, which will show the ordinary course of adjudication. In 
the eighteenth year of Edward the first, Beatrice, the wife of 
Robert 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 ■presumed to be a bastard, and judgment was given accor- 
dingly. 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 ac- 
cordingly found per inquisitionem. The question hung in de- 
liberation, nor did they obtain livery till the 10th of Edward. 
* Causes Celebres par Maurice Mejan, vol. 6, p. 93 to 120. 
t Erskine’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. 
479 
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 af- 
ter 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 
Foster and others v. Cook, tried in the English Court of Chan- 
cery. 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.f 
Within a few years, the Gardner Peerage Case, and the 
following, are all that I can find mentioned in the English law 
books. 
“ In the 1 Observer,’ Sunday newspaper, for September 9, 
1827, a trial for seduction, Anderton v. Whitaker, is reported. 
The following evidence is stated to have been given by the 
female: ‘It was on the 8th of January, that I had the inti- 
macy with the defendant, 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 properly to the next section, and is there given. § 
* 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 physic) 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.” 
t Brown’s Chancery Cases, vol, 3, p. 349. 
4 Dr. Merriman, in Medico-Chirurgical Transactions. 
§ 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 un- 
steady. 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. 480 
LEGITIMACY. 
Messrs. Hargrave and Butler, in commenting on the early 
English cases, observe, that “ these precedents, so far from 
corroborating Lord Coke’s limitation of the ultimum tempus 
pariendi (forty weeks) do, upon the whole, rather tend to 
shew, 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 
spdce, 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 ges- 
tation.! 
And now I may be permitted to inquire, whether it is in- 
tended to give this belief its full force and application ? Is it 
intended, that in a case, tainted with the suspicion of adultery, 
nay its certainty, a child shall be legitimated, although born 
eleven months after absence or sudden death ? Will physi- 
cians, like Dr. Granville, in the Gardner case, tell the court, 
that they see nothing impossible in this 1 If so, and the know- 
ledge of this opinion extends among the community, where 
will be the security of succession \ Or even waving this, 
what must be its effects when generally understood, on public 
morals ? 
Being in the minority, I am not authorized to propose any 
positive rules. I may, however, quote some remarks from 
believers in this doctrine, that deserve every consideration. 
“ At the same time, we must add, that the cases which to 
* Blackstone, however, intimates, that a child born after forty weeks, is illegitimate. 
He cites Britton for this; but the co-editors remark, that even this writer seems to ex- 
tend it in some degree beyond forty weeks. 
11 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 
EgyPb by M. Hamont, Director of the School of Veterinary Medicine, at Abou-Zabel, 
and addressed (March, 1833,) to Dr. Leuret. 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 accuses 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’ 
m estplus ainsi.” (Annales D’Hygiene, vol. 10, p. 204.) LEGITIMACY. 
481 
us appear to carry with them the fullest demonstration of their 
truth, are those in which the ordinary term wras not exceeded 
by more than three or four weeks.”* 
“ If the possibility or probability of its being prolonged, is 
conceded; it does not follow, that, in actual practice, judg- 
ment should go upon the general probability of the event, as a 
fact in physiology. On the contrary, since in the abstract, 
more disorder 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 pe- 
riod 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 cir- 
cumstance, that we have no laws on the subject. Juries will 
generall 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 
proper respect for the opinions of mankind, would prevent 
those sudden marriages which sometimes take place immedi- 
ately after the death of a former husband. There have, how- 
ever, been females in all countries, who have disregarded 
these restraints, and united themselves to a second partner be- 
fore the “ first brief week of mourning is expired.” Besides 
the injury that such cases produce 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 of ten months from 
the death of the first husband; and the question then occurs as 
to the paternity of the infant. 
The Romans endeavored 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 
* Montgomery, in Cyclopedia of Practical Medicine, art. Succession, 
f Edinburgh Medical and Surgical Journal, vol. 27, p. 114. The whole of the ar- 
ticle from which this extract is taken, is well worthy of an attentive perusal. It is a 
review of the evidence in the Gardner Case. 482 
LEGITIMACY. 
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 
connexions, whom shall we declare to be the father of the 
child 1 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 after- 
wards. She was delivered of a child two hundred and seven- 
ty-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 question, 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 observes, 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 ro- 
bust. 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 widow- 
hood, it had slightly returned, but never after the second mar- 
riage. Now, from this, it might be supposed, that as men- 
struation had not returned regularly since the first marriage, 
the pregnancy was caused by Antoine. Zacchias, 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 pe- 
* Fodere, vol. 2, p. 205. “The same constitution,” says Blackstone, “was pro- 
bably 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 duodecimmmses.” (Blackstone, vol. 1, p. 457.) It was the law 
before the conquest. LEGITIMACY. 
483 
riod of pregnancy would fall short of nine months, and thinks 
it sufficiently counterbalanced by the youth of the parties. 
He therefore decided, that it was the child of Aniello.* 
In another case, a widow married shortly after the hus- 
band’s death, and in the fifth month of her second marriage, 
was delivered of a son who survived. He was baptised by 
the name of the second husband, and when he arrived of 
age, claimed to be acknowledged as his son, and to be sup- 
ported 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.! 
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, “ Thecar marries a lewd woman, but she doth not 
cohabit with him, and is suspected of incontinency with Dun- 
comb. 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 ad- 
judged the son of Thecar. 2. No averment 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.! 
The English law on this subject is thus explained by Black- 
stone and Coke. u 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 
husband, in this case, he is said to be more than ordinarily 
* Zacchias, Consilium, No. 73. See also No. 75, for a somewhat similar case, 
t Zacchias, Decisiones Sacrae Rot® Roman®, No. 45. 
t Hargrave’s notes, ut antea. See also Croke Jac. p. 686, for an account of the 
same case. 484 
LEGITIMACY. 
legitimate, for he may, when he arrives at years of discre- 
cretion, 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, bequeath- 
ed to his son Christian, a considerable sum of money, the is- 
sues 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 with- 
out 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 Novem- 
ber, 1825. His widow Catharine married to Thomas Wool- 
verton, 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 husband 1 Christian Red- 
lion committed suicide, and from his death to the birth of the 
child was ten months and fourteen days, and from the mar- 
riage of Woolverton to the birth of the child, six months. 
The plaintiffs were brothers of the deceased, and entitled 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.! 
It has also been suggested, that the resemblance of the child 
to the supposed father, might aid in deciding these doubtful 
cases-! This, however, is a very uncertain source of reliance. 
We daily observe the most striking difference in physical traits 
between the parent and child; wThile individuals, born in dif- 
ferent quarters of the globe, have been mistaken for each 
other. And even as to malconformations, although some most 
remarkable resemblances in this respect have been noticed 
* 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 ca- 
ses 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 certainly would seem 
to be the most correct mode of adjudicating. 
f John and Jacob Redlion v. Woolverton. Hazard’s Register of Pennsylvania 
vol. 7. p. 363, June 4, 1831. 
| See Zacchias, vol. 1, p. 146; and Valentini’s Pandects, vol. 1, p. 148. De Si- 
militudine Natorum cum Parentibus. LEGITIMACY. 
485 
between father and child, yet we should act unwisely in rely- 
ing too much on them.* There is, however, a circumstance 
connected with this,' which, when present, should certainly 
defeat the presumption 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 husband (or paramour,) as when a 
mulatto is born of a white woman whose husband is also white, 
or of a black woman whose husband 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 probable, that Whistelo was the father. In con- 
sequence of this diversity 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 exa- 
mined, and they all, with the exception of Dr. Mitchill, de- 
clared that its appearance contradicted the idea that it was the 
* “ 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 dis- 
covered, 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 recognized 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.) 
f Edinburgh Medical and Surgical Journal, vol. 1, p. 335. 486 
LEGITIMACY. 
child of a black man. Dr. Mitchill, for 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 pater- 
nity, although he allowed that its appearance was an anomaly. 
The mayor (the Hon. De Witt Clinton) and the court decided 
in favour of Whistelo.* 
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 
offspring was quite black. In a similar case, the child resem- 
bled 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 
negress 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 the other was jet black. The father was a deep black, 
the mother a mulatto.f 
“ 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.” 
* See a pamphlet, entitled “The Commissioners of the Alms-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, 
1808. The main scope of Dr. Mitchill’s argument appears to have been, that as al- 
teration 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 Physio- 
logy, vol. 2, p. 316.) 
f 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 tendency 
to dark on some parts of the body In a few' days, however, the change commences 
on the countenance, and gradually extends over the body. Cassan (On Superfoeta- 
tion, 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 State of New-York. 2. Of 
the presumption of survivorship of persons of different ages, destroyed by a common 
accident. Laws on this subject— Roman—Ancient French— Napoleon code—En- 
glish. Cases that have occurred under each—General Stanwix—Taylor—Selw'yn. 
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 ship- 
wreck, may destroy persons, and the disposition of their pro- 
perty 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 these extreme instances, 
where no aid can be derived from facts, assist in laying down 
certain principles. I shall endeavour to suggest some of these, 
while relating such cases as I have been enabled to obtain. 
They may serve as a guide for future investigations. 
The subject will be advantageously considered, 1. As to 
the survivorship of the mother or child, when both die during 
delivery; and 2. As to the survivorship of persons of different 
ages, destroyed by a common accident. This last may seem 
to include 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 
conclusion of the seventeenth century, concerning the case of 488 
PRESUMPTION OF SURVIVORSHIP. 
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 decided, 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 by medical jurists whether this decision is 
correct, 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 convul- 
sions, the probability 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 some- 
times healthy, although the mother sinks during the delivery.! 
A due comparison of these arguments, I imagine, will lead 
to the opinion that the presumption of survivorship is with the 
mother; for 1 will again mention, that in these cases, no per- 
son is supposed to have been present to witness the death of 
the parties, and such a length of time has also elapsed, that all 
examination, 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.) 
* 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 Pan- 
dects. 
t FoderS, vol. 2, p. 94. Capuron, p. 135 to 148. PRESUMPTION OF SURVIVORSHIP. 
489 
A female at the eighth month of pregnancy died of a dis- 
ease, which the physicians styled anasarca complicated with 
scurvy, (cinasarque compliquee de scorbut.) A surgeon imme- 
diately performed 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 degree of warmth. It expired, 
however, (he adds,) three quarters of an hour after the de- 
cease 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 pre- 
served; of this nature, are sudden accidents, as drowning, a 
blow on the head, or violent haemorrhage. Foetal life is even 
compatible, with some inflammatory complaints, but the pro- 
bability 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 were fully 
substantiated to have been present, he conceives them equivo- 
cal—the pulsation and heat were probably the remains of foe- 
tal existence. And if the surgeon was correct in believing 
that the heart beat for three quarters of an hour, he was cer- 
tainly blameable 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 
mother survived the child.* 
I have been favoured with a communication on this subject 
by the Hon. De Witt Clinton. Some years since, he in- 
forms me, a case embracing the succession to a large landed 
estate, was tried in one of our courts under the following cir- 
* Pelletan, vol. 1, p. 322 to 341. 490 
PRESUMPTION OF SURVIVORSHIP. 
cumstances. 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 parties claiming as heirs of the mo- 
ther. 
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 
husband and wife, perish in one common accident without 
witnesses, disputes may arise concerning the disposition of 
their property. Provision has accordingly been made in se- 
veral codes for the avoidance of such difficulties. I shall give 
a concise sketch of these, interspersed with cases, to show the 
course of legal decisions on this curious subject. 
The earliest Roman law on this point, directs the order of 
succession when persons of different ages die in battle. If 
two individuals 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 ma- 
jority, 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 adjudged the survivor.* 
The spirit of these laws guided the decisions of the conti- 
nental tribunals for many ages, and Zacchias, in his elaborate 
discussion on this question, cites cases from several juriscon- 
sults, which were settled according to the dicta of the civil 
code. The mother, in one instance, was shipwrecked with 
her young infant, and in another, she, with her two children, 
also young, was killed by lightning. In both these, the parent 
was deemed the survivor.! 
* Digest, lib. 34, tit. 5, de rebus dubiis. “ Cum pubere filio mater naufragii periit, 
cum explorari non posset, uter prior extinctus sit, humanus est credere, filium diutius 
vixisse. Si mulier cum filio impubere naufragio periit, priorem filium necatum esse 
intelligitur,” &c. 
f Zaccbias, vol. 1, p. 440, 441. PRESUMPTION OF SURVIVORSHIP. 
491 
Our author also, in his Consilia, relates two cases, which 
deserve 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 parties, he comes to the conclusion that the son survived 
the father. Being aware, however, that the wound in ques- 
tion was supposed to have accelerated the death of the former, 
he endeavours to avoid this difficulty, by suggesting that it 
was not necessarily mortal, nor of a nature to destroy his 
strength immediately; while the suffocation was so much more 
urgent a cause of death, that the father, from his valetudina- 
rian state, and his advanced age, would first be destroyed by 
it.* 
The propriety of this opinion is controverted by Fodere, 
and with considerable shew of justice; for certainly a wound 
of the head, and of so severe a nature, may safely be consi- 
dered the most sudden destroyer of life under the above cir- 
cumstances.! 
In another instance, a man and his family had eaten very 
copiously 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 survived 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 follow- 
ing. The husband, though sixty years of age, was robust and 
healthy; and, from the deposition 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 mush- 
* Consilium, No. 51. 
t Fodere, vol. 2, p. 320, 321. 492 
PRESUMPTION OF SURVIVORSHIP. 
rooms, and added to these, other indigestible food. A poison, 
therefore, which acts violently on the organs of respiration, 
would soonest destroy one already diseased in those parts.* 
Fodere objects to this decision, that the opinion of the poi- 
son acting on the organs of respiration, is altogether hypothe- 
tical, and it probably is so, but certainly the general course of 
reasoning appears correct. 
The ancient French law, in its adjudications, generally 
followed 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 pro- 
nounced 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 hus- 
band claimed the property of his wife, on the ground that the 
children had survived, and the parliament adjudged it to him.f 
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. 
llicard, 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 
became a nun, whereby she was dead in law. The battle 
commenced 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 possibility 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.! 
In 1751, a merchant, aged fifty-eight, with his wife aged 
* Consilium, No. 85. 
t Catises Cellbres, quoted by Fodere, vol. 2, p. 218. 
t Fodere, vol. 2, p. 220. Smith, p. 382. PRESUMPTION OF SURVIVORSHIP. 
493 
fifty, and his daughter of twenty-seven years, was drowned, 
with many others, in endeavouring to cross the Seine in a 
small vessel. The question of survivorship was raised by the 
relatives, and an opinion was given on the case by the cele- 
brated Lorry.* He observes, that three causes probably con- 
spired 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 ap- 
pears 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 questionable whether, as 
he would seem to insinuate, that state of fulness of the sys- 
tem which menstruating females have, would accelerate the 
suffocation produced by drowning. If his argument 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 un- 
der that function. Certainly it will not counterbalance the 
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 presumption of survivorship to her, and ordered a dispo- 
sition 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 dis- 
tinction was made. The legal tribunals regulated the descent 
of property by them, but would not apply them to cases where 
legacies were bequeathed, and for this reason. It is neces- 
sary (say they) that a man should have heirs, but it is not 
necessary that he should have legatees; and accordingly, when 
testator and legatee 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 
* This opinion, or “ Consultation de Medecine,” 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. 
t Fodere, vol. 2, p. 220, 316. 494 
PRESUMPTION OF SURVIVORSHIP. 
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.* 
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 deter- 
mined 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 
presumed 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 pre- 
sumed 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 
admitted which opens the succession in the order of nature— 
of course the younger shall be considered to have survived 
the elder.”! 
Although these provisions are in the main founded on cor- 
rect physiological principles, yet there are some objections of 
weight pointed out by Fodere. The clause that adjudges the 
survivorship 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 cer- 
tainly would expire the soonest. And again, no provision is 
made for the case wThen 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 
* Foder£, vol. 2, p.221. 
t Civil Code, secs. 720. 721, 722—quoted by Fodere, v. 2, p. 222, and Smith, p. 379. PRESUMPTION OP SURVIVORSHIP. 
495 
subject, except so far as the civil law is incorporated with it. 
There are, however, some cases which deserve mention.* 
In 1766, General Stanwix and his daughter set sail in the 
same vessel from Ireland for England. They were ship- 
wrecked, and not a single person on board was saved. The 
representative of the father to his personal estate, was his 
nephew, and the representative of the daughter, was her ma- 
ternal uncle. These parties brought the case into chancery. 
On behalf of him whom the General’s survivorship would 
have benefitted, it was argued, that the ship being lost in tem- 
pestuous weather, it was more than probable that the Gene- 
ral was upon deck, and that the daughter was down in the 
cabin, (as is almost ever the case with ladies in these situa- 
tions,) and of course subject to more early loss of life than 
her father, who, as a man of arms and courage was, it was 
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 resist the shocks of such a terrible attack; that the daugh- 
ter was of a hale constitution, and though of the weaker sex, 
yet being younger than her father, was proportionably strong- 
er, 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 disputed 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.f 
* 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.) 
f Fearne’s posthumous works, pages 38 and 39. This case appears to have attract- 496 
PRESUMPTION OF SURVIVORSHIP. 
The following case was tried in the Prerogative Court, 
Doctor’s Commons, in 1815. 
Job Taylor, quarter master sergeant in the royal artillery, 
had made a will, in which he appointed his wife, Lucy Tay- 
lor, sole executrix and sole residuary legatee. Having been 
for some time in Portugal on foreign service, he was return- 
ing home with her on board the Queen Transport, when the 
vessel in Falmouth harbor, struck upon a rock, in consequence of 
the violence of the weather, and sunk almost immediately after- 
wards. Nearly three hundred persons on board perished, and 
among them, Taylor 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 proceed- 
ings were at a stand for the wrant 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 adminis- 
tration. This latter prayer was, however, abandoned, on un- 
derstanding that the court could not grant a limited adminis- 
tration, where a general one might be granted and was applied 
for; and the present question therefore was, to whom the ge- 
neral administration should be granted—whether the next of 
kin to the husband as dying intestate, his wife not having sur- 
vived so as to become entitled under his will, or the represen- 
tatives of his wife, as his residuary legatee, she having sur- 
vived 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 
ed the attention of Mr. Fearne, and he accordingly prepared arguments for the pur- 
pose of seeing what could be advanced on both sides, with some appearance of rea- 
son; 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 favor 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. 
See also vol. 1, Blackstone’s reports, p. 640. Rex v. Dr. Hay. PRESUMPTION OF SURVIVORSHIP. 
497 
in the cabin, and her husband on deck. The water was rush- 
ing in fast, and he offered large sums to any one who would 
go below 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 en- 
during 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 ca- 
lamity, 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 strug- 
gle 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 favour 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 pro- 
bable 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 sur- 
vivor, and accordingly grant the administration to his next of 
kin. 
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 
preclude the possibility of obtaining any evidence as to which 498 
PRESUMPTION OF SURVIVORSHIP. 
of them was the survivor. Where, however, evidence as to 
that fact was produced, as in the present case, the case must 
be decided 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 
decision under very singular circumstances. He recapitulated 
them, and observed, that the question as to the limited admi- 
nistration had not been gone into; but that with respect to 
general administration, the counsel had argued upon the legal 
presumption of survivorship, and whether or not that pre- 
sumption was sufficiently repelled by the facts in evidence. 
He agreed to the doctrine that had been laid down, of the 
presumption being in favour of the husband; but it was a ne- 
cessary 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 specifically, but merely deriva- 
tively from one who was. They were, therefore, one step fur- 
ther removed from the property. The presumption 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 per- 
sonal property; the statute of distribution disposing of an in- 
testate’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 
representatives of the wife, in this case, to prove her survivor- 
ship, 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 PRESUMPTION OF SURVIVORSHIP. 
499 
of the husband’s 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 pe- 
rished together; observing, in particular, that though the wife 
might be very active and laborious in her domestic duties, yet 
the natural timidity of her sex might prevent exertion in the 
moment of danger; whilst the husband, on the other hand, 
though labouring under the bodily affliction of an asthma, 
might still retain his manly firmness in resisting 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 admi- 
nistration 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 Eng- 
land. 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 pre- 
sumption. The opposite party cannot prove that the son sur- 
vived. 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. 
* 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. 500 
PRESUMPTION OF SURVIVORSHIP. 
To these I will only add the following. Mr. Selwyn of the 
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 representatives, or the executors named in the event 
of her prior death, were to take administration. 
The case came before the English Prerogative Court, No- 
vember 7, 1831. The court said, that in other similar cases, 
it had been held, as both parties might be supposed to have 
perished together, 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 intention of the testator, that the representa- 
tives 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 decreed probate to the exe- 
cutors.* 
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 sup- 
posed to have first perished, then infants, and lastly old men; 
and as to sex, women probably survive. In cases of drown- 
ing, a dissection and examination of the organs immediately 
acted upon, may lead to correct opinions; while in those found 
dead from noxious exhalations, we should examine the rela- 
tive situation of the bodies to the noxious air, and the state 
of thoracic capacity. In all cases, the state of health should, 
* 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. 
f Belloc, p-161. Edinburgh Medical and Surgical Journal, vol.l, p.334. Orfila’s 
Logons, vol.l, p.535. PRESUMPTION OP SURVIVORSHIP. 
501 
if possible/ be ascertained; and apoplectic habits should al- 
ways be deemed to have been the earliest sufferers.* 
Dr. Beatty has lately considered these ‘probabilities more in 
detail, in a valuable Essay in the Cyclopedia of Practical 
Medicine.f As to age, he concedes, that in general, very young 
persons, 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 giv- 
ing an account of a caravan coming in want of water in the 
Nubian desert, 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.;}: Dr. Beatty 
agrees, that under similar circumstances, the male will sur- 
vive 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 circu- 
lation, may, in many cases, tend to their preservation. As to 
habit and variety of constitution, all such that have a ten- 
dency to affections of the head and lungs, should be deemed 
the first victims, in case the causes of death are of a descrip- 
tion 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 
persons 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 sulphu- 
retted 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, how- 
ever, in the Annales D’Hygiene, affirms, that from numerous 
observations, made for a long period, on persons dead from 
asphyxia, (and the context shows that he principally means 
* 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 332. Smith, p. 380. 
f Vol. 4, p. 97, art. Survivorship. 
f Library of Entertaining Knowledge. The Menageries, vol, 1, p. 296. 502 
PRESUMPTION' OF SURVIVORSHIP. 
carbonic acid gas by this,) the female adult survives longer 
than the male adult. The strongest individuals die first.* 
From the experiments of Dr. Edwards, it would seem that 
if death be caused merely by atmospheric air becoming defi- 
cient 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. 
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, whe- 
ther we should not have some positive rules to guide us. I 
cannot doubt the propriety and necessity of this.f 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 admi- 
nistering equitably in the majority of cases that may occur.! 
* Annales D’Hygiene, vol. 10, p. 173. 
f 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 deduction. 
t The following remark will show, that the necessity of enactments is elsewhere 
acknowledged. “ With regard to cases of somparative unfrequency, indeed our law 
is culpably careless. We have shown ourselves no friends to codifying; but we con- 
end that every ascertained doubt should be disposed of, without delay.’' (London 
Law Magazine, vol. 2, p. 549.) CHAPTER XL 
AGE AND IDENTITY. 
1, Notice of some questions in which the testimony of medical men may be required, 
as to the age of an individual — the age at which he is considered capable of com- 
mitting certain crimes. The period of absence that is considered as presumptive 
proof of a man’s death. Decisions on this subject in England— Scotland — States 
of New-York and South-Carolina. Age beyond which pregnancy is deemed im- 
possible. The Douglas cause. Laws on this point — cases. 2. Identity. Cases 
where physicians may be required to identify individuals by physical marks. Re- 
markable instances in France—Martin Guerre—Francis Noiseu—Sieur De Caille— 
Baronet — Sieur Labbe. English cases. Effects of age in altering 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, con- 
ceive 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 mi- 
nority, majority, &c.; and if the registers or testimonials to 
prove these are wanting, it is difficult to suggest any physical 
proofs on which a medical man, more than any other indivi- 
dual, can venture to pronounce decisively.* 
There are, however, exceptions to these remarks, as the 
readers of these pages must have noticed. It is often of the 
highest importance to ascertain the age of a foetus, 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 
* 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 Pennsylvania 
Reports, 166.) 504 
AGE AND IDENTITY. 
for contracting marriage, and the division of life into the dif- 
ferent terms of infancy, youth, manhood, and old age. 
It is proper, notwithstanding, to make some suggestions 
relative 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 circumstances. 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 ques- 
tion 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 Modico-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. In- 
stances of infantile menstruation are related by Dr. Wall, Medico-Chirurgical Trans- 
actions, 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 preco 
city in either sex, see Stalpart, vol. 1, p. 336, London Medical and Physical Journal, 
vol. 27, p. 522, Chapman’s Journal, vol. 2, p. 198, Philosophical 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 Medi- 
cine, 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 Jour- 
nal, 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 20tli 
of April, 1834, this female aged 10 years and 13 days, was delivered of a female 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 AGE AND IDENTITY. 
505 
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 
deat(f, ?* 
There are some law cases which may be quoted in elucida- 
tion of this. In Benson v. Oliver, in the court of exchequer, 
5 George 2d, 1732, before Chief Baron Reynolds. “ Upon 
trial of an issue directed by the court of exchequer, the depo- 
sition of a witness examined in 1672, was offered to be read, 
without any evidence of his being dead, relying upon the pre- 
sumption 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 searches or inquiry had 
been made, and no account 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 rolls said he would presume him to be dead.| Chancellor 
Kent in this state, has decided, that ignorance in a family of 
the existence of one of the children, who had gone abroad at 
the age of twenty-two, unmarried, 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’ 
absence and being holden and reputed dead, was found a suf- 
ficient probation to take off the presumption of life||. And in 
1830, the court of session granted a sum of money to legatees 
with many mitigations, and not with the utmost rigour of the law. The exception 
nisi malitia suppleat cetatem 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. 
f Strange’s Reports, vol. 2, p. 920. 
t 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. 506 
AGE AND IDENTITY. 
which had been settled on them by a person who went to In- 
dia in 1805 and who had not since been heard of. Bail was, 
however, required to repay in case of his return,” &c.* 
The French code is very cautious on this subject. It re- 
quires thirty-five years of absence, or one hunded 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 but the 
space of seven years is adopted in the act for the more effec- 
tual discovery of the death of persons, upon whose lives, es- 
tates 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. || 
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 inci- 
dents, were as follows: Lady Jane Douglas was married Au- 
gust 10th, 1746, to Col. Stewart. She became pregnant, and 
this fact was notorious in January, 1748, and on the 10th of 
July, 1748, being in her fiftieth year, she was delivered of 
twins at Paris. Of these, one, named Sholto, did not survive 
to manhood—the other, Archibald, did. Lady Jane after their 
birth miscarried. 
* Edinburgh Law Journal, vol. 1, p. 101. “ In Scotland so far as marriage is con 
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 hus- 
band 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. 
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. AGE AND IDENTITY. 
507 
In process of time, the father and mother both died. Their 
positive declarations had convinced the Duke of Douglass, 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 suppository 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 favor of the appellant. The following extracts 
from that of Lord Mansfield are interesting, both in reference 
to the point under consideration, and to one noticed in an- 
other part of this work, (Resemblance of children to their pa- 
rents.) 
“Lady Jane became pregnant in October, 1747, at the age 
of forty-nine years, a thing (says he) far from being uncom- 
mon, as is attested by physicians of the first rank, and con- 
firmed by daily experience. It is further proved, that the el- 
der child, the appellant, wras 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 dis- 
tinction between individuals in the human species is more dis- 
cernible than in other animals; a man may survey ten thou- 
sand 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 fea- 
tures, there may be a discriminancy of voice, a difference in 
the gesture, the smile, and various 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 resem- 
bled his mother. Many witnesses have sworn to Mr. Dou- 
glass being of the same form and make of body as his father; 
he has been known to be the son of Colonel Stewart by per- 
sons who have never seen him before, and is so like his elder 508 
AGE AND IDENTITY. 
brother, the present Sir John Stewart, that except by their 
age, it would be hard to distinguish the one from the other.'7 
“If Sir John Stewart, the most artless of mankind, was ac- 
tor 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 ccelo different from and unlike to 
Sir John Stewart and Lady Jane Douglass.” The House of 
Lords decided in favour of the appellant, five Peers only dis- 
senting*. 
I have incidentally noticed this subject in a former chapter, and 
mentioned some cases of births in females of an advanced age.f 
* 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 
Douglass, 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 
the 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 Douglass. (See Croker’s Bosw;ell, 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. Douglass, and on 
this the appeal was brought to the House of Lords. I am indebted to Mr. Rich, of 
London, for procuring forme, 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 I .aw, 8vo. London, 1767.” 
f Vol. 1, p. 183. If such cases present themselves in legal investigations, the 
proofs in favor 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 Medi- 
cal 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 Medicine, 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, wheth- 
er this could occur at the age of fifty-one ? Dr. Epps mentioned the case at the 
Westminster Medical Society, nd it was allowed that if she had continued to men- AGE AND IDENTITY. 
509 
As to premature pregnancy in European countries, the most 
astonishing instance probably is given by Meyer, of a Swiss 
girl becoming a mother at nine years of age.* Concerning 
this and similar cases, we can only say, that they are exam- 
ples 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 in- 
to most other codes.”f 
In Scotland, there appears to be a similar provision: “A 
daughter, suing for her provision, which was due to her, fail- 
ing heirs male of the grantor’s marriage, was repelled, the 
father and mother being both alive—though the father had 
even been for a long time furious, and the mother past fifty4 
The subject of identity seems to have a connection with 
the one we have noticed, and like it, may occasionally re- 
quire the opinion of physicians. 
Cases have not unfrequently arisen, both in civil and crimi- 
nal courts, where the question at issue has been, whether an 
individual he really the person whom he pretends or states him- 
self to he. The controversy in such instances must originate 
from the resemblance 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 
struate 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 Beauchamp, in the Vice-Chancellor’s 
Court, lately mentioned in the newspapers. 
* Brendel, p. 76. Metzger, p. 480. 
t 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. 
t Decisions Court of Session, vol. 1, p. 332. 510 
AGE AND IDENTITY. 
title of one of the chapters of Pliny’s Natural History, is 
Cases of Resemblance, and he enumerates 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 con- 
tested, come before a court, the difference of opinion that 
exists, will generally be of such a nature as to render the du- 
ty of the tribunal trying and difficult. This subject is calcu- 
lated to excite attention, to awaken discussion, and to cause 
great positiveness of opinion on one or the other side. Eve- 
ry feeling of the heart is enlisted, and the oaths of individu- 
als 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 detec- 
tion of falsehood, and the establishment of truth. If there 
be any thing like positive data, which cannot deceive, 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 instruc- 
tive 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 in- 
cidents are so extraordinary, that many have deemed it a fic- 
titious narrative. 
Martin Guerre had been absent from his home for the space 
of eight years. An adventurer named Arnald Dutille, who 
resembled him, formed the design of taking his place, and ac- 
tually succeeded so far, as to be received by the wife of Mar- 
tin 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 Mar- 
tin, without their suspecting his identity. It became, how- 
ever 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 AGE AND IDENTITY. 
511 
•fl.rn.auld 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 perplexi- 
ty 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 confront- 
ed, the impudence and effrontery of Dutille was such as to 
lead many to doubt, until the brother and sisters of the ab- 
sent 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 concern- 
ing it. In the following instances, however, there appears to 
have been considerable discussion on these points. 
A child, called Francis Noiseu, born at Paris on the 22d of 
December, 1762, was put to nurse in Normandy. When 
about sixteen 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 became 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 argu- 
ment in her favour, since it was not pretended that Noiseu 
had laboured under this disease previous to his being lost. 
Many witnesses also attested 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, a,nd that these 512 
AGE AND IDENTITY. 
were disregarded. 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 tumour or abrasion during the period of nursing. Cer- 
tainly, surgeons 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 sur- 
geons, 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 venesec- 
tion 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 before his eyes at Vevay. Some years after, an impos- 
tor pretended 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 claimed 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 
appeal, 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 chesnut hair, blue 
eyes, aquiline nose, fair complexion, and a high colour, were AGE AND IDENTITY. 
513 
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 accordingly 
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 liveli- 
hood. Having 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 departed 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 gallies 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 
parliament of Paris. The celebrated surgeon, Louis, was 
consulted, 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 
decision. 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 individual.* 
* The above cases are all taken from Fodere, vol. 1, chap. 2, who quotes the Causes 
Celebres. The following is interesting from its connection 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 514 
AGE AND IDENTITY. 
An examination of the cases just related, will lead to the 
conclusion, that considerable importance should be attached 
to physical signs. The recollection of individuals may be 
weakened, and even the physiognomy of the persons in ques- 
tion may be altered, 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 rob- 
bery on the positive oath of one of the parties plundered, and 
very narrowly escaped conviction. On the apprehension of 
the notorious highwayman, Page, the mystery was explained; 
the personal resemblance being so great, as to deceive all or- 
dinary observation.* 
“ In cases (says Blackstone) where the prisoner after con- 
viction escapes and is retaken, the jury shall be impanelled to 
try the collateral issue, viz. the identity of his person, and not 
whether he is guilty or innocent, for that has been tried be- 
fore. And in these collateral instances, the trial shall be in- 
stanter, 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.”! 
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 condemned to death, but an appeal 
was taken to the court of Cassation. The advocate consulted M. Lefe vre Gineau, mem- 
ber of the Institute and Professor of Experimental Physics in the Imperial College of 
France, whether it was possible that the priming (amorce) in being inflamed could produce 
light sufficient to discover the face of the 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 be- 
ing stationed at. different distances in order to witness the effect. The light produced 
was strong, but fuliginous, and so rapidly extinguished, that it was impossible to dis- 
tinguish the individual firing. “A peine etait il possible d’entrevoir la forme distinct* 
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. 
* Medical Jurisprudence, vol. 1, p. 222, and vol. 3, p. 143. 
t Commentaries, vol. 4, p. 396. In the Attorney-General*. Fadden, (Price* Ex- 
chequer Reports, vol. 1, p. 403,) the defendant represented that the person who had AGE AND IDENTITY. 
515 
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 indivi- 
dual, in causing 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 thirtv 
years, returned and claimed his property, which his heirs had 
already appropriated 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 impossible to recognize the per- 
son. This distinguished physician, in his consultation, assigns 
several causes which might produce sach an alteration; as 
age, change of air, aliments, the manner of life, and the dis- 
eases 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 was 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 
physical marks, and as the heirs could not prove the death of 
Casali, his name and estate were decreed to him.* 
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 habeas cor- 
pus, (he was now in jail,) in order to be present at the trial. It was granted. 
* Zacchias, Consilium, No. 61. It is to such cases, that the beautiful quotation 
from Marmion, by Dr. Paris, is applicable. 
“ Danger, long travel, want and woe, 
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 516 
AGE AND IDENTITY. 
It is not, however, in foreign countries only that these diffi- 
cult cases have happened. An individual was indicted and 
tried before Judge Livingston, at New-York, in 1804, on a 
charge of bigamy, and the whole evidence turned on the ques- 
tion 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 afterwards deserted. It was stated that 
Hoag had a scar on his forehead, a small mark on his neck, 
and that his speech was quick and lisping. All these pecu- 
liarities were found on the prisoner. Two witnesses deposed 
that Hoag had a scar under his foot, occasioned 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 was to be found on either of them ; and it was 
further proved, that at the period of his alleged courtship of 
the second wife in Westchester county, he was doing duty as 
a watchman in the city of New-York. The jury acquitted 
him.* 
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 scientim 
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 relations 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 documents.) 
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 iden- 
tified 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 Stirling, 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— AGE AND IDENTITY. 
517 
In all disputed cases, says Fodere, we should particularly 
notice 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, cannot be effaced. By means of a plate 
of pewter, he saw the letters come out on the back, although 
the criminal, who had escaped from prison, had caused an 
eruption over its whole surface. The cold body made the 
other parts pale, while the fatal letter V. appeared in full 
relief. 
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.* 
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.” 
Dunlor. 
* 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 chesnut coloured hair, is changed with great difficulty, and indeed it can hardly be 
affected. 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 insuied—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, 
profession, 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 wffiose favour the policy is 
granted.”! The nature of the agreement is such, that in pro- 
portion 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 required sum at once, and the company 
agree to pay a certain annual 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 ad- 
viser; or persons are directly appointed as physician and sur- 
geon to the respective offices, and charged with the duty of 
examination. In either or both cases, the result of their in- 
* 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 notice 
of most of the English cases to which I have referred. 
f Park on Insurance, vol. 2, p. 571, 6th edit. Paris and Fonblanque, v. 1, p. 381. INSURANCE UPON LIVES. 
519 
quiries guides them in accepting or refusing an insurance. 
The leading objects of investigation, of course, are, whether he 
labours under any disease, and particularly one that tends to 
shorten life; whether his habits are temperate or not, and his 
employment unhealthy or dangerous.* The following list of 
questions will give an idea of the required 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 wit- 
nesses: How long have you known Mr. A. B.? Has he had 
the gout? Has he had a spitting of blood, asthma, consump- 
tion, 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 insu- 
rance might not with safety be effected on his life ?”f Whe- 
ther the party has had either the smallpox orcowpox? 
“ With respect to the risk which the underwriter is to run, 
this is usually inserted in the policy, and he undertakes to an- 
swer for all those accidents to which the life of man is ex- 
posed, unless the cestuy qui vie puts himself to death, or he 
die by the hands of justice.” Hence, these are generally ex- 
cepted in policies,J and in certain cases, also, the premium is 
* Smitirs 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.) 
t 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 520 
INSURANCE UPON LIVES. 
special, and subject to particular arrangement, such as expo- 
sure to risk by long voyages, or by military service, and re- 
sidence in unhealthy climates. I 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 
physician's testimony may be, and indeed is, frequently re- 
quired, I apprehend that the best and most practical eluci- 
dation 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 trea- 
tise on insurance. It will be noticed, however, that they oc- 
curred previous to the establishment of the preliminary en- 
quiries 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, warrant- 
ed 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 relaxation or palsy, so that he could not retain his urine 
or fieces, and which was not mentioned to the insurer. Sir 
James died of a malignant fever within the time of the insu- 
rance. All the physicians and surgeons, who were examined 
for the plaintiff, swore, that the wound had no sort of con- 
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. Dis- 
ney, 3 Russel’s Chancery Reports, p. 351.) The House of Lords, however, on ap- 
peal, reversed this decision, “on the ground that, as a condition in a policy saving 
the insurance in the event of the party effecting the insurance 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 
condition. (2 Dow and Clarke’s Parliamentary Reports, p. 1.) 
* Paris and Fonblanque, vol. 1, p. 384. INSURANCE UPON LIVES. 
521 
nexion with the fever; and that the want of retention was not 
a disorder which shortened life, but he might, notwithstand- 
ing that, have lived to the common age of man; and the sur- 
geons who opened him said, that his intestines were all sound. 
There was one physician examined for the defendant, who 
said the want of retention was paralytic; but being asked to 
explain, he said it was only a local palsy, arising from the 
wound, but did not affect life; but on the whole, he did not 
look upon him as a good life. 
Lord Mansfield, before whom the case was tried, observ- 
ed—“ The question of fraud cannot exist in this case. When 
a man makes insurance upon a life generally, without any re- 
presentation of the state of the life insured, the insurer takes 
all the risk, unless there was some fraud in the person insur- 
ing, either by his suppressing some circumstance which he 
knew, or by alleging what was false. But if the person in- 
suring knew no more than the insurer, the latter takes the 
risk. When an insurance is upon a representation, every ma- 
terial circumstance should be mentioned, such as age, way of 
life, &c. But where there is a warranty, then nothing need 
be told, but it must, in general, be proved, if litigated, that 
the life was in fact a good one, and so it may he, though he 
have a particular infirmity. The only question is, whether he 
was in a reasonable good state of health, and such a life as 
ought to he insured on common terms ?” 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 con- 
tested, 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 underwrit- 
ten, as he had been for a long time before. Lord Mansfield, 
* Park on Insurance, vol. 2, p.583; Ross v. Bradshaw, and 1 Blackstone’s Re- 
ports, p. 312. 522 
INSURANCE UPON LIVES. 
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 insured, if he has no sickness 
at the time to make it an unequal contract.” The plaintiff 
obtained a verdict.* 
Dyspepsia. In an action brought by the executors of Dr. 
Watson 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 physician in Bath for advice, concerning dyspeptic symp- 
toms, and that these, though uncomfortable, do not generally, 
unless increased to an excessive degree, tend to shorten life, 
and further that his complaint was not organic dyspepsia. Se- 
veral 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, pre- 
viously to effecting the insurance, and that they considered 
him as a failing man. It was left to the jury to decide whe- 
ther the patient’s complaint was organic 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. 
* 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 indigestion 
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, how- 
ever, secluded, but took lodgings in the country and came to town every day and at- 
tended to business. This after some time restored him to health. His complexion 
was florid, and there was the general appearance of a tendency to a determination 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 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.” INSURANCE UPON LIVES. 
523 
An application was afterwards made to the Court of Com- 
mon 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 circum- 
stance was conclusive 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, within this exception, the lives of half 
the members of the profession of the law would be uninsura- 
ble. The application was refused.* 
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 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 supposed from the evidence, that by contri- 
vance, the physician had been prevented from stating this 
fact to the defendants, and therefore directed a nonsuit. But 
on an application to the Court of Common Pleas, a new trial 
was directed, on the ground, that although there was nothing 
express in the terms of the policy which required the impri- 
sonment to be stated, and although every thing called for by 
the office was answered, yet if the imprisonment were a ma- 
terial fact, the keeping it back would be fatal. It ought, how- 
ever, to have been submitted to the jury, whether this was or 
was not a material omission.f 
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 medi- 
cal attendant I” He answered, “ I have.none, except Mr. Guy 
of Chichester.” And “ Have you ever had a serious illness ?” 
* 4 Taunton’s Reports, p. 763, Watson v. Mainwairing. 
t 6 Taunton’s Reports, p. 186. Huguenin v. Rayley. 524 
INSURANCE UPON LIVES. 
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 physician, and Mr. Jordan, a surgeon, attended Col. Lyon, 
from the month of February to that of April, for an inflam- 
mation 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 certified him to be in health until the 
end of May. It was, however, agreed on all hands, that the 
disease of wrhich he died, had no relation to any of the com- 
plaints for which these gentlemen attended him. The verdict 
was for the defendant.* 
Consumption. A female with a disposition to this disease, 
such as cough and emaciation, had been attended by a medi- 
cal practitioner for some time immediately previous to effect- 
ing an insurance. He, however, did not suppose that struc- 
tural disease was present, and she was then convalescent. 
The knowledge of this illness was not communicated to the 
insurer-s, and another practitioner, not then in attendance, but 
who had known her for several years, was sent to examine 
her, and he stated that she was in ordinary good health. She 
died, a year after effecting the insurance, of consumption. 
Although a verdict had been found for the plaintiff, yet the 
court ordered a new trial, on the ground that neither the me- 
dical attendance, nor the illness had been communicated to 
the insurers, and that the jury must decide whether this con- 
cealment was material.! 
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 
adduced. 
* Carrington and Payne’s Nisi Prius Reports, vol. 1, p. 360. Maynard v. Rhode, 
Secretary Pelican Insurance Company, 
t 4 Bingham’s Reports, p. 60. Morrison v. Muspratt. INSURANCE UPON LIVES. 
525 
In 1824, a policy was affected by the Baron Van Lindenau 
on the life of Frederick IV., Duke of Saxe-Gotha and Alten- 
burg, in the Atlas Insurance Company. The Duke died on 
the 11th of February, 1825, and the insurers refused to pay 
the sum insured for. 
On the trial, it appeared that Lindenau had stated in his 
application, that the Duke was not gouty, asthmatic or con- 
sumptive, or subject to fits; that he had never had apoplexy, 
and that he had no disease tending to shorten life. Two phy- 
sicians 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 per- 
fectly cured: and they further stated that he was perfectly 
free from disease, and symptoms of disease. In a communi- 
cation from an agent in Germany, it mentioned that the 
Duke had formerly led a dissolute life, “ by which he had lost 
the use of his speech, and according to some, that also of his 
mental faculties; which, however, is contradicted by the me- 
dical men.” 
On this the company, instead of asking an ordinary pre- 
mium of £2 17s. per cent per annum, required £5 per cent. 
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 paraly- 
sis, and that he had periodical catarrhal affections, accompa- 
nied with fever. The chamberlain of the Duke, in his exa- 
mination mentioned, 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 facul- 
ties were impaired, although his bodily health was good. 
On examination after death, no chronic disease was disco- 
vered 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 tu- 
mour had commenced in early life. 
The defence was, that there had been a suppression of ma- 
terial facts. 526 
INSURANCE UPON LIVES. 
Mr. Green, an eminent English surgeon, gave it as his opi- 
nion, that from the history of the case merely, there were no 
symptoms of organic disease. He further thought that the tu- 
mour 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 dis- 
ease 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 an- 
swered, “ If I, as a medical man, was asked by an insurance 
“ company, concerning the state of a man’s health, who was 
“ unwilling to move, who was subject to control upon his in- 
tellect, and who had lost his speech, I should not consider 
“ myself at liberty to forbear mentioning these circumstances.” 
Lord Tenterden, who tried the cause, said this was suffi- 
cient; and that he should charge the jury, that if any material 
facts relative 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.* 
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 dis- 
ease tending to shorten life. Bird died in January, 1831; and 
on dissection, it was found that a large fungous tumour weigh- 
ing two pounds four ounces, occupied the place of the left 
kidney. Some of the witnesses wrere of opinion that it must 
have been of five or six years’ growth, and that it was an in- 
curable 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 compro- 
mise, by the defendant’s refunding the premium received.! 
* 3 Carrington and Payne’s Reports, 353. 8 Barnewall and Creswell, 586. 3 Man- 
ning and Ryland, 45. (Lindenau v. Desborough.) On the medical testimony, and 
particularly Mr. Green’s, which is severely criticized, see Medico-Chirurgical Review, 
vol. 14, p. 213; and London Medical Gazette, vol. 2, p. 669. 
f Chitty’s Medical Jurisprudence, Part 1, p. 235. INSURANCE UPON LIVES. 
527 
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 apparent- 
ly hale and healthy, have been decided against the plaintiffs.* 
It was urged, 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 regu- 
lar medical attendant had also been omitted. 
Opium eating. Professor Christison has directed the atten- 
tion of the profession to the effects of this on health and lon- 
gevity. 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 Edin- 
burgh 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 company 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 instituted. 
It is not necessary to go into a detaihof the evidence, fur- 
ther 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 contended that this was a “habit tending to shorten 
life.” He appears also to have been subject to rheumatism 
and stomach complaints, 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 inqui- 
ries relative to his health with the care usually observed, and 
* 6 East’s Reports, 188. Aveson v. Lord Kinniard and others. 5 Bingham’3 Re- 
ports, 503. Everett v. Desborough. 528 
INSURANCE UPON LIVES. 
therefore 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 important a circumstance as to render it necessary 
for Lord Mar to reveal it. The jury agreed with him in their 
verdict, although its justice may well be doubted.* 
Having collected, I believe, most of the English cases on 
this subject, I will conclude with the narrative of one that oc- 
curred in France.! It relates to Annuities, modified by the 
peculiar provisions 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 
person 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 con- 
tract, of an attack of apoplexy, 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 victim thirty hours after- 
wards ? 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 up- 
wards of two years; who, during that time, had been re- 
peatedly seized with apoplectic attacks: that Fried had, for a 
* 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. 
tTwo 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. 
529 
Jong 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 severe attack of apoplexy, and this recur- 
red 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 summoned, 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 
impaired, particularly since January : that he walked and 
spoke with difficulty; that his hearing was affected, and that 
the attacks 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 direc- 
tions 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 exa- 
mination 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 
affected with the disease of which he died on the day of sig- 
nature. Their arguments may be stated as follows: 
Apoplexy, independent of the symptoms which constitute 
the attack, has certain precursory symptoms, as well as con- 
comitant and subsequent ones. To the last belong hemiple- 530 
INSURANCE UPON LIVES. 
gia, affected senses, weakness of mind, &c. All, however, 
are referable to 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 hemiplegia always terminates in a 
fit of apoplexy. It is also asserted as a sound maxim, that a 
disease is not removed until the symptoms 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 
reject the idea of apoplexy and palsy being the acute and 
chronic forms of the same disease. Paralysis is a consecu- 
tive and permanent state; apoplexy a primitive and tempora- 
ry one. As to paralysis being an element of apoplexy, this 
would be to suppose that there could be no apoplexy without 
paralysis—when the contrary is undoubtedly true. And 
again, paralysis arises from many other causes besides apo- 
plexy. 
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 necessa- 
ry 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 aboli- 
tion of sense. Hence different organs are necessarily affect- 
ed 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 com- 
pression, section of nerves, &c.—as an avant-courier of apo- 
plexy? and lastly and most commonly, as a consequence of it. 
Was it the latter in this case, and if so, is the consequence INSURANCE UPON LIVES. 
531 
of a disease the disease itself ? The remark, that the symp- 
toms must be removed before the complaint can be considered 
as cured, does not apply here. He had no symptoms of apo- 
plexy, 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 par- 
ticular organic derangement, and this derangement must oc- 
cur, in order to produce a second. How then can paralysis 
be called chronic apoplexy ? 
The mind of the deceased, from the most intelligent testi- 
mony, appears to have been sound. Even those, who ques- 
tion it, rather speak of loss of memory, than of the more es- 
sential functions being impaired. 
The professors conclude by giviag 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 excited by an occasional cause, operating on the predis- 
position. 
From grave consultations prepared in the closet, and sub- 
mitted 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 treatment, while the predisposition only calls for pre- 
ventive. Hence, in applying this to the present subject, he 
considers paralysis as an epiphaenotnenon (a super-added symp- 
tom) 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 favor of the opinion of the Strasburg phy- 
sicians.! 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 
* All the papers, opinions and discussions relative to this case, were collected and 
published by Dr. Ristelhueber, in an octavo volume, in 1821, entitled “Rapportsand 
Consultations de Medecine Legale.” 
t New-York Medical and Physical Journal, vol. 5, p. 40. 
X Commentaire Medico legal sur 1’Article, 1975, du Code Civil, par M. Marc, in An- 
nales D’Hygiene, (1830) vol. 3, p. 161. 532 
INSURANCE UPON LIVES. 
opposite construction would render an individual like Friedr 
totally incapable of making a contract during the last ten 
years of his life. The article (says he) was framed to pre- 
vent an advantage being taken of a person labouring under 
what are by common consent called acute diseases, or else it 
would not have been restricted to twenty days. The disease 
should be continuous, and it is not correct to apply this enact- 
ment to a case where this is an intermission of disease, with 
supervening attacks. 
It had been endeavoured in the course of the controversy, 
to assimilate this case to one of hemoptisis, the first attack 
occurring, for example, on the day of signing. This is re- 
moved, 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 haemorr- 
hage arises from an occasional 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 af- 
fection, 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 all 
had preceded the time of signing of contract. The article in 
question requires that the individual should labour under the 
particular disease at this very period. 
It is evident, however, that Professor Marc has some scru- 
ples. He suggests the necessity of dissection in these in- 
stances, and intimates that an alteration of the article might 
perhaps be proper, so as to enact that a contract shall be void, 
if signed by a person labouring under a disease actually the 
same (qui a etc individuellement 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- 
* Lecons, vol. 1, p. 457. INSURANCE UPON LIVES. 
533 
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 
individuals. I will only say, that experience has fully demon- 
strated 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 material facts, or ignorance of them, may 
prove a source of unceasing regret.* 
* Medico-Chirurgical Review, vol. 14, p. 213. CHAPTER XIII. 
MENTAL ALIENATION. 
. Of the symptoms that constitute a state of insanity. Division of insanity into 
mania—monomania—dementia—idiotism — 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 — gaiety 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. Hoffbauer’s 
modifications of it into imbecility and stupidity. Idiotism. Its frequency in some 
countries. Cretins. Characteristics of idiotism—form of the head and face—affect- 
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 law 
—law of the State 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. Responsibi- 
lity 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 construc- 
tion put on it. Scotch law on this. Great difficulty in discriminating between 
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— 
Henriette Cornier. Characters distinguishing it from crime. Cases referable to it 
in the United States. 4. Inferior degrees 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 constitute a valid will— legal requisites—nuncupative W'ills— 
wills disposing of personal property—testaments. Persons who cannot make valid 
wills. Diseases which incapacitate. I .aw 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 be- 
come 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. MENTAL ALIENATION. 
535 
I have chosen the term mental alienation, at this time, sim- 
ply because it is more comprehensive than others in common 
use. Were not the words unsoundness of mind employed at 
the present 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, wrhich occasionally 
require the investigation of the medical jurist. 
In examining the subject of insanity, I propose to confine 
myself 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 research over that broad field which is usually occupied 
by the medical pathologist. And we shall find that the symp- 
toms 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 ex- 
tends to all kinds of objects, and is accompanied with some 
excitement. 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 rea- 
soning, in consequence of functional disorder of the brain, not 536 
MENTAL ALIENATION. 
congenital. 4. Idiotism, congenital, from original malconfor- 
mation in the organ of thought.* 
After describing these in as succinct a manner as possible, 
I shall lastly notice a form of disease, which is now frequently 
characterised by the name of moral insanity. 
Mania. In many instances, though it is far from being gen- 
eral, pain in the head and throbbing of its arteries precede an 
attack of insanity; and sometimes giddiness is complained of, 
as a precursory 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 connected 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 paroxysm 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. § 
The muscles of the face, also, partake in the change, and 
the rapidity of the alterations they undergo, depends on the 
succession of ideas which pass with such velocity through the 
mind of the sufferer. 
As the attack advances, the individual becomes uneasy, is 
* Medico-Chirurgical Review, vol. 1, p. 249, American edition. This is an analysis 
of the masterly article of Esquirol on insanity, in the Dictionnaire des Sciences Medi- 
cates. 
The above division, although modified and improved by Esquirol, was originally 
presented by Pinel. The term monomania was however introduced by the former. 
f Haslam on Madness, p. 41. 
t Hill, p. 68. “ It i3 curious (says Dr. Burrows,) that in many persons predisposed 
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.) 
§ “ 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 Anatomy of Painting, 
Edinburgh Review, vol. 8. p. 376.) MANTAL ALIENATION. 
537 
unable to confine his attention, walks with a quick and hurried 
step, and while doing so, suddenly stops. Men of the most 
regular and established habits, will suddenly become active, 
jealous 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 pre- 
sentiment of severe disease. Persons subject to habitual in- 
disposition, which has disappeared suddenly, fancy themselves 
in high health, and are greatly elated.* A very vigorous ac- 
tion of body and mind soon takes place, and particularly the 
exertion of great muscular strength. And here, it is impos- 
sible to present any thing like a description that shall be ge- 
nerally 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 boisterous man- 
ner, then suddenly lowering their tone, speak softly and whis- 
per. 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 conver- 
sation 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 hy- 
steria, with general madness, and laughing or weeping is a 
common attendant-! 
The food necessary for the sustenance of life is often neg- 
lected, and fasting is endured for a length of time without any 
apparent inconvenience, yet with some, there is an unusual 
and indiscriminate voraciousness, and they swallow every 
thing that may come in their way. 
* 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. 
t Rush, p. 145. It is a remark of Esquirol, that in female maniacs the sense of 
delicacy is obliterated. Dr. Knight, (p. 123,) however, states that he has rarely ob- 
served this. 538 
MENTAL ALIENATION. 
The stomach and bowels are unusually torpid—costiveness 
prevails, 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 colour. 
The pulse is very various, sometimes full and laboured, and 
sometimes natural. But little dependence can be placed on it 
as an indication.* The tongue is usually moist, and sometimes 
has a whitish appearance, and there is often a preturnatural 
secretion of saliva and mucus in the mouth and throat, which 
is of a viscid nature, and discharged with difficulty by spitting. 
According to Esquirol, maniacs are frequently tormented with 
great thirst. There is also generally a stoppage of the secre- 
tion of mucus in the nose. Dr. Rush mentions, that Dr. 
Moore, at his request, examined the maniacs in the Pennsyl- 
vania 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 
degrees of heat or cold without suffering. This, however, is 
incorrect, if we are to credit the united testimony of Haslam 
and Esquirol. During a paroxysm, indeed, they are insensi- 
ble to either, and particularly to cold, but they suffer like the 
sane. Mortification of the feet is a common occurrence, and 
some indeed die from the effects of a low temperature, during 
the winter, if not properly secured. It is suggested by Es- 
quirol, that the great internal heat which some experience, 
may explain their voluntary exposure.:}: 
The senses are often perverted, constituting what we com- 
monly call Illusions.§ The ear more particularly suffers. 
* In 85 females examined by Leuret at La Salpetriere, the pulse was above 100 in 
seven only; in 10, it ranged from 90 to 95; in 38, from 80 to 90; in 25, from 65 to 75; 
in 4, only from 60 to 65, and in one, it was under 60. According to this observer, the 
frequency of pulse decreases gradually in mania, monomania and dementia; the mean 
pulsation in the latter being 77. (Andral, in Lancet, N. S. vol. 11, p. 617.) 
t Rush, p. 146. 
t Haslam on Madness, p. 84. Dictionnaire des Sciences Medicates, vol. 30, art. 
Mania. The temperature of maniacs, according to Dr. Knight, (p. 123,) is always 
below the natural standard; yet, during a paroxysm, he agrees that they are insensi- 
ble to the effects of cold. 
§ An attempt has of late been made to distinguish this term from that of hallucina- MENTAL ALIENATION. 
539 
Haslam observes, that he scarcely recollects of a lunatic be- 
coming 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 re- 
ferable to the original diseased action of the functions of the 
brain, that many maniacs derive the delusion under wdiich 
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 ima- 
gine, urged to its performance, and in too many cases, mur- 
der or self-destruction is the unhappy result. “In conse- 
quence of some affection of the ear, the insane sometimes in- 
sist 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 ob- 
scenities 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 or- 
gan of communication with external objects. It is a common 
circumstance to mistake various substances or persons. Their 
appearance to the maniac is various—sometimes fiery and 
tion. Dr. Morrison defines them as follows: “ Illusions are dependent on the state of 
the organs of sense; hallucinations on that of the intellectual organs,” (p. 35.) Es- 
quirol 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 tw’o causes, and one a disordered 
state of the brain, and acknowledges, that the understanding 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 w'ell 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 re- 
plied, “ to prevent the intrusion of the sprites.” He was apprehensive that his head 
would become the receptacle of these imaginary formations; that they would pene 
trate 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 discove- 
ries 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.” 540 
MENTAL ALIENATION. 
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 spark- 
ling objects, as pebbles, glass, &c. 
Relief has sometimes been experienced by the temporary 
use of a bandage over the eyes. The unnatural excitement 
is thus mitigated.* 
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, per- 
ceived 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 ab- 
horrence 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.f 
The touch in many instances, loses its peculiar power of 
correcting 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 fre- 
* Esquirol, p. 22. 
t Sometimes the taste preserves its power, as in the following case, related by 
Sir Walter Scott, who, with Shakespeare, may be considered as the two master spi- 
rits 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 par- 
ticular friend, told me the following case of a lunatic patient confined in the Edin- 
burgh Infirmary. He was so far happy that his mental alienation was of a gay and 
pleasant 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 all 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 assis- 
tants, although his table was regularly supplied with every delicacy of the season, 
yet he 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 being fed upon nothing else, and because his stomach was not so easily de- 
ceived 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. MENTAL ALIENATION. 
541 
quently deceive themselves in respect to the size, form, and 
weight of things around them, and the greater number be- 
come unhandy in all mechanical occupations, music, writing, 
&C.* This, however, is far from being universal, as some 
speak and write with ease, and are remarkable for striking 
expressions, deep thoughts, and ingenious associations. 
Wakefulness is another symptom, which sometimes pre- 
cedes all others, and is coeval with pain or uneasiness of the 
head, or of some other diseased organ; and its degree is de- 
termined by the age, habits, situation, and original vigorous 
or feeble constitution of the patient. From its being always 
followed in the morning by the peculiar appearance of the 
eye already described, it may sometimes lead to proper sus- 
picion, as well as attention to the diseased person. This 
watchfulness is attended with an irresistible impulse to rise 
early, go abroad, and ramble about; or if remaining in the 
house, to be incessantly employed in arranging, and re-arrang- 
ing 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 or- 
thography. 
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 characteristics are timidity, distrustfulness, suspicion— 
never contented with their present condition, but always de- 
sirous of some change. It is this discontent of mind that de- 
taches 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 be- 
stow no confidence on the objects of it, nor pay any respect 
* Medico-Chirurgical Review, vol. 1, p. 246. 542 
MENTAL ALIENATION. 
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 favorable 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 re- 
covery. 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, notwithstanding the patient was constantly 
under the operation of depleting remedies. He also witness- 
ed another instance, in which the same remedies were insuf- 
ficient to produce an interruption for five minutes, of speech 
or vociferations, except during a few short intervals of sleep, 
for five months, f Others again have paroxysms with chronic 
but moderate derangement in their intervals; and in these in- 
tervals, the recovery is sometimes so great as to indicate in- 
sanity 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 rea- 
son, he states what he has seen, heard or felt—his motives 
and his determinations.^; 
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 beyond 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 
* Medico-Chirurgical Review, vol. 1, p. 247. Knight, p. 14. 
f Rush, p. 162. 
X 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.) MENTAL ALIENATION. 
543 
depends on the predominant species of delusion that is pre- 
sent. It is hence divided into several varieties. Some are 
gay and highly excited—laugh, talk and sing—fancy them- 
selves 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 se- 
venty, and always a decided royalist, had devoted himself to 
heraldic researches. He was so overjoyed at the return of 
the Bourbons to France, that he became insane. His pre- 
dominant mania, was to recite with a loud voice, the history 
of the kings of France, and to fatigue his auditors with a te- 
dious catalogue of chronological facts. If they listened with 
patience, he was contented and calm, but if any impatience 
was manifested, his fury became ungovernable.* 
Some patients, when suffering under this form, are exces- 
sively irascible, and even without any apparent cause, are sud- 
denly hurried into a violent passion or fury. It is while la- 
bouring under this, that they become dangerous to themselves 
or to those around them. They will seize any weapon, and 
strike and injure others or themselves. Sometimes conscious- 
ness of their situation is so far present, as to allow them to 
wrarn individuals of their danger, or to intreat them to pre- 
vent their doing injury. An internal sensation is perceived— 
as a burning heat with pulsation within the skull, previous to 
this excitement.! This description 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 warm.”! 
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 dis- 
ease of mature age, and rarely effects young and athletic per- 
sons. It is also generally characterized by a peculiar appear- 
ance, and particularly by black hair and eyes—by a striking 
* Fodcre. Traite du Delire, vol. 1, p. 385. 
t Others again refer the pain to the presence of some animal in the brain—the sto- 
mach, 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. Es- 
quirol opened her, and found a cancer of that viscus. (Page 10.) 
1 Parkman. 544 
MENTAL ALIENATION. 
cast of countenance, as the complexion is either yellow, brown, 
or blackish. This is to be ascribed to a sluggishness and tor- 
por of the cutaneous system, and in consequence, the impres- 
sions of cold and heat are slightly noticed, and sometimes not 
heeded. The physiognomy 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 pe- 
culiarly dull muddy look, rolling heavily on surrounding ob- 
jects, 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 re$, sometimes on a 
deep orange coloured ground, and this especially, when ad- 
vancing 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 attack—sometimes fixed, but more commonly wandering, 
and the suffering by this is extreme. Great apprehension, 
which indeed is a characteristic of this form, ensues, and 
plunges the sufferer into the most gloomy state of mind, ac- 
companied by indifference as to his personal comfort, or urg- 
ing him forcibly to self-destruction, or to the murder of others. 
The state of reverie and delusive ideas, gradually becomes 
more fixed, and the thoughts are concentrated on one mourn- 
ful topic, until finally he is, as it were, inanimate, motionless 
and speechless. A fixed position of the body is a very com- 
mon 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 occupied 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 torpor of his ner- 
vous 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.f 
* Hill, p. 98. 
t Rush, p. 216. Dr. Reid (Essays on nervous affections,) in his usual figurative lan- 
guage says, “ Paroxysms of mania are convulsions of the mind; those of melancholia 
its paralysis.” MENTAL ALIENATION. 
545 
The pulse is extremely vacillating, and generally is slow 
and feeble, yet with all this, has a labouring feel, not accom- 
panied with a bold throb, but as though difficulty attended 
every exertion. A sort of ticking movement is sometimes 
observed, which is often intermitting, giving from one hun- 
dred to one hundred and thirty strokes in a minute.* 
The skin is dry and burning, while the extremities are cold, 
and bathed in a clammy sweat.f With these, transient pur- 
ple-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 wdth flatus and eructation, 
and diarrhoea is uncommon, excepting the disease is about to 
undergo a salutary change. The urine is pale, thin and cloud- 
less, 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. 
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 
characterizes 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 exercised on points disconnected from the particu- 
lar hallucination, and it is very common that this absorbs the 
whole attention. 
In these instances, even when apparently sane, if the mor- 
bid impression be once referred to or excited, all is merged in 
it. And it is equally astonishing and melancholy, how vivid 
this remains, through the long lapse of years. A young cler- 
gyman, two days previous to the appointed period of his mar- 
riage, was employed in snipe-shooting with a friend. Acci- 
dentally, he received part of the charge of a gun in his fore- 
head. He instantly fell, and did not recover for some days, 
* Hill, p. 101. 
t Some lunatics complain of a burning or stinging in the skin, when on examination 
it appears healthy. (Knight, p. 116.) 546 
MENTAL ALIENATION. 
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 confined to the business of the wed- 
ding; out of this circle he never deviated, but dwelt upon 
every thing relating to it with minuteness; never retreating 
or advancing one step farther for half a century, being ideally 
still a young, active, expecting and happy bridegroom, chid- 
ing the tardiness of time, although it brought him at the age 
of eighty gently to the grave.”* 
There are very few melancholics whose delirium is not ex- 
asperated every two days; many have a strongly marked 
remission in the evening and after meals; others are exaspe- 
rated at the beginning of the day or at evening.! Haslam 
also observes, that the symptoms are aggravated by being 
placed in a recumbent posture. And patients, when in the 
raving state, seem, of themselves, to avoid the horizontal po- 
sition as much as possible, and when so confined that they 
cannot be erect, will keep themselves 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 
formation of an opinion. Infancy seems to be nearly exempted 
from its attacks, unless there be some congenital malconfor- 
mation, or unless idiotism be induced by convulsions, epilepsy, 
or some other previous and severe disease. The disease, 
however, often occurs in 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 excitement; 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 
* Hill, p. 421. 
f Parkman, Haslam on madness, p. 80. 
+ Medico-Chirurgical Review, vol. 1, p. 251. MENTAL ALIENLTION. 
547 
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 mad- 
ness, as the disposition to exercise it on certain subjects. Of- 
ten there is a manifest unwillingness to admit any evidence 
unfavourable to the false notions impressed upon the mind. In 
many instances, it would appear that the characteristic fea- 
ture of the disease, is a morbid inclination to indulge in reve- 
rie, and to yield the judgment and all the faculties to its con- 
trol. The impressions of reverie are so modified by disease 
as no longer to be distinguishable from those of memory or 
active reflection.”* 
Dementia. This is often the consequence of mania or mel- 
ancholy, and is somewhat allied to that decrepitude of mind, 
which frequently appears in old age. It may also originate 
from external 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 mis- 
taken for reasoning.”! They hate, love or fear particular in- 
dividuals uniformly, and kindness or attention will seldom, if 
ever, give them confidence in those they dislike. 
* I am unwilling to multiply the divisions of insanity, but there is one variety, par- 
ticularly noticed by Dr. Prichard, which may be deemed the intermediate one be- 
tween mania and dementia, as described in the text, and therefore deserves a brief 
notice. He stiles it incoherent madness, and its most striking characteristic, according 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 complete incoherence 
and confusion. The understanding of the patient is wholly lost in the constant hurry ol 
ideas that crowd upon him, while his habits show equally restless activity and ex- 
travagance. 
In many cases no hallucination or erroneous impression on the mind can be traced. 
The thoughts seem to be single and insulated, and words and sentences are half pro- 
nounced. It is impossible to fix the attention of the patient, and he is almost insensi- 
ble to external objects. In favourable cases this incoherency gradually subsides 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. 
t Parkman. 548 
MENTAL ALIENATION. 
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 having 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 wdth voracity, and 
appears perfectly happy.”* 
The ideas, although few and isolated, sometimess pass in 
rapid or alternate succession; and this gives rise to incessant 
babbling, unwearied declamation, and continual activity, with- 
out object or design. Occasionally they assume a menacing 
air, without any real anger, and this is soon succeeded by 
immoderate laughter.! 
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 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 commence- 
* Medieo-Chirurgical Review, vol. 1, p. 270. 
f Foderg. Traite du Delire, vol. 1, p. 413. 
\ It is proper to state that many other subdivisions have been made of that condition 
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, imbecility 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 de- 
grees, 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 derived 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. Soimdness and Unsoundness of Mind, in the Cyclopedia of 
Practical Medicine, vol. 4, p. 39. MENTAL ALIENATION. 
549 
ment, 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 Va- 
lais in Switzerland, and in Carinthia. In the former countries, 
the subjects of it are styled Cretins. But wherever found, 
whether in individual instances, or originating in some na- 
tional 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 lat- 
ter. 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 pendu- 
lous, 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 un- 
happy 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 inarti- 
culate sounds, cries, or a prolonged roar. A few are able to 
utter 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 voraciously, and without discrimi- 
nation; passed all evacuations involuntary, but the menses 
were regular and abundant. She walked little, and all her 
movements were convulsive. She was a perfectly helpless 
* Edinburgh Medical and Surgical Journal, vol. 5, p. 32. See also Edinburgh 
Review, vol. 2, p. 170. American edition. 550 
MENTAL ALIENATION. 
infant—insensible to heat, cold, rain, or even her own internal 
feelings. She could only utter the words “papa and mama,” 
which she frequently repeated.* 
Dr. Rush relates the case of a boy born near Philadelphia, 
Avhich 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 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 exhi- 
bited 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 fa- 
mily. 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.f 
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 dis- 
eases. Some approach to the description of dementia, or 
what is commonly called imbecility; others appear capable of 
cultivating the memory and attention. Though in general 
harmless and timid, yet there are occasionally exceptions.! 
* 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.) 
t 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.) MENTAL ALIENATION. 
551 
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 depraved, and the power of self-government is 
lost or greatly impaired.* 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 im- 
possible not to yield to them. Dr. Elliotson, while approving 
of this, suggests that there should be included in the defini- 
tion, the idea of such irresistible violence as leads to criminal 
flcis.f 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 11 madness without delirium or hallucination.” 
Esquirol, indeed, goes so far as to assert, that this is the pro- 
per characteristic of mental derangement. “ There are mad- 
men, (he observes,) in whom it is difficult to discover any 
trace of hallucination; but there are none in whom the pas- 
sions, and moral affections 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 fol- 
lowing 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 in- 
tellect, or knowing and reasoning faculties, and particularly 
without any maniacal hallucination.”^ 
According to our author, individuals of this description are 
often, before the idea of their insanity occurs, reputed to be 
* Prichard, Art. Insanity, in Cyclopaedia of Practical Medicine, 
t London Medical Gazette, vol. 8, p. 168. 
| Prichard ut antea. 552 
MENTAL ALIENATION. 
of singular, wayward and eccentric character.* They com- 
mit 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 con- 
stitution. The alteration is gradual, but sufficient to excite 
the apprehension and solicitude of friends; and though these 
may be unwilling to recognize 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 rea- 
soning 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 conduct, and in accounting for and justifying the 
state of moral feeling under which they appear to exist.” 
They think and act, however, under the influence of strongly 
excited feelings. 
It is under this divison 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 histories with which legal and medical works are lately 
filled. The temper is scarcely attempted to be restrained, nay 
its very transports are encouraged and justified, and it is hence 
not surprizing, that as age advances, liberty of action should 
be converted into licentiousness. France has tried the expe- 
riment. Other countries are rapidly feeling its early results. 
Pinel relates the case of a self-willed, violent boy, en- 
couraged by his mother in every caprice and passion. The 
slightest opposition 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 murder- 
ing a person, who used offensive language to him. On his 
trial, this course of conduct was adduced as proof of his in- 
* “ The errors of the eccentric (says Dr. Gooch) are the results of long habits con- 
tinued for a great part of their lives, and fabricated by slow and almost insensible de- 
grees; while the errors of the insane spring up suddenly within a few months or even 
weeks.” (Quarterly Review, vol. 41, p. 173.) MENTAL ALIENATION. 
553 
sanity, and he was condemned to perpetual confinement in the 
Bicetre. 
The results of this species are various. In many, it displays 
itself in an irresistable propensity to commit murder, (homo- 
cidal mania); in others, to commit theft, while some are im- 
pelled to set fire to buildings, often of the most venerable de- 
scription. 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 phoenomena include 
merely the expressions of intense malevolence, excited with- 
out 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 in- 
tense irascibility.* A large proportion are subject to melan- 
choly and dejection of mind, unaccompanied, however, by any 
illusion. It would appear to be confined to no age—and in- 
deed is said occasionally to make its appearance in those ad- 
vanced 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 considered as giving an assent to its actual exist- 
tence. The difference of opinion which exists, with exam- 
ples 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.! 
Besides the forms of insanity now described, there are oth- 
* “ 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 per- 
verted, when the disease is at its height.” (Leuret, Annales D’Hygiene, v. 1, p. 284.) 
f 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. 554 
MENTAL ALIENATION. 
ers mentioned by systematic writers; as demonomania, which 
is a variety of melancholy, originating from mistaken ideas on 
religious subjects; and nymphomania, or furor uterinus, a 
raving mania5 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 in- 
troduced in this place. They are usually divided into physi- 
cal and moral, or bodily and mental; but a separation of this 
nature is not conducive to just views of the disease. Insani- 
ty is essentially a bodily disease, and the moral causes ope- 
rate in producing it, as they do in producing other complaints. 
We may enumerate the following as remote causes: re- 
peated intoxication, abstinence, injuries to the head, fever, 
suppressed discharges and secretions, excessive evacuations, 
mercury largely and injudiciously administered, paralytic af- 
fections, influence of particular seasons, hereditary predispo- 
sition, sedentary habits, excess in pleasure, factitious passions, 
mistaken views of religion, parturition, errors in education, 
intense application to a particular study or object of investi- 
gation, 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 al- 
ways 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 ac- 
tual existence of insanity, and it therefore behoves him to be 
well acquainted with its actual symptoms. It is in this point 
of view, that the enumeration given in the previous section 
becomes valuable. It will also materially aid in detecting 
feigned or concealed insanity. 
* Ilaslam on Madness, p. 208, 210. Medico-Chirurgical Review, vol. 1, p. 251. 
t Marc, in Godraan’s Western Reporter, vol. 2, p. 68. Esquirol. MENTAL ALIENATION. 
555 
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 the examination of a lunatic, before he pro- 
nounces a decided opinion. If this be allowed to him, and 
also if he be enabled to obtain a complete history of the an- 
tecedent circumstances, much may be effected towards form- 
ing a correct opinion. The following remarks may serve as 
points on which the enquiry is to be grounded, and the com- 
parison instituted. 
1. Insanity is seldom sudden in its attacks. The aberra- 
tions from reason are at first slight and almost imperceptible, 
but gradually acquire more marked characteristics. With the 
feigned, on the other hand, they are sudden, abrupt and vio- 
lent. 
2. It requires powers beyond the scope of ordinary exer 
tion to counterfeit the character of an active paroxysm to its 
full extent The deception is not maintained when the pre- 
tenders are alone and unwatched—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 accompany- 
ing it, are so peculiar in the insane, that a medical examiner 
familiarized to them, will generally be able to designate the 
state that is present. Pretenders often outstrip madness it- 
self, and seem desirous to exhibit themselves in its most vio- 
lent and disgusting forms. They overdo their part. “ They 
seek to exhibit the total abolition of the rational faculty, in- 
stead of its partial perversion.” 
* Haslam's Medical Jurisprudence of Insanity, p. 322. 556 
MENTAL ALIENATION. 
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. 
Alexander 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.”* 
The feigned never desire to conceal their condition. 
5. Pretenders are unable to prevent sleep. That watch- 
fulness which is so constant an attendant on the insane, is 
scarcely to be preserved for any length of time by those who 
are in actual health. “In the case of a seaman, who enact- 
ed under our own eye the part of a furious maniac, in hopes 
of escaping punishment, sound sleep overpowered him on the 
second night of the attempt.”! 
6. The physician should endeavor to obtain from the indi- 
vidual, a history of himself. This requires attention and 
time, but the prosecution of the enquiry may lead to the de- 
velopement of some probable motives for his present 
Unless highly irritated, or suspicious of his medical attend- 
ant, some opportunity will occur in which the real state of 
mind will be shown. If there be delusive ideas prevailing, a 
glimpse of them may be caught, and by prudent management, 
the lunatic thus often makes him a confidant. Not only should 
the physician frequently converse with the patient, but also 
endeavour to have him write. In many instances the style, or 
the manner of penmanship will detect. § 
7. Mr. Hill also recommends .attention to the presence or 
absence of the peculiar animal odour that is observed in ma- 
niacs. And “ the best mode of making the discovery of it, is 
* 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. 
t Cyclopedia 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.) 
( Hill, p. 396. 
§ Conolly, p. 467. MENTAL ALIENATION. 
557 
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 occupied by him for some time, the curtains now to be 
opened by the inspector. On inhaling the effluvia under these 
circumstances, 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 
frequent 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 mentions the following case in which it was ap- 
plied, and which deserves quotation. Two men were con- 
demned to die in 1794, for treason, committed against the ge- 
neral government in the western counties of Pennsylvania. 
One of these was said to have become insane after sentence 
of death was pronounced on him. A physician was consulted 
upon his case, who declared the madness to be feigned. Ge- 
neral Washington, the president of the United States, direct- 
ed 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 re- 
ally mad. He was respited, and subsequently pardoned.f 
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 admi- 
nistration in any stage of approaching or actual insanity, and 
* Dr. Knight recognizes the correctness of this, and says Boerhaave and Van Swie 
ten 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 insane, even 
though 1 had no other proof of it.” 
f Rush’s Introductory Lectures. Lecture xvi., p. 369. 558 
MENTAL ALIENATION. 
more especially in the maniacal form, which is commonly at- 
tempted to be personated.* 
10. It is very difficult uniformly to assume that extreme and 
sudden irritation, which, in real maniacs, instantly arises from 
any contradiction of their opinions or wishes.! 
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 
remains composed for whole days together, we may look for 
a return of reason.” 
He further adds, that in his opinion, no one can be consi- 
dered cured, or in other words, of sane mind, “ until he freely 
and voluntarily 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 perfectly ignorant of what he has been doing.! 
“1 do not think it quite fair to expect this, (says Sir Henry 
Halford.) Something must be conceded to the pride of hu- 
man nature.Ӥ 
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 much more difficult, 
according to Dr. Haslam, than to pretend mania. “ They are 
deficient in the presiding principle, the ruling delusion, the 
unfounded aversions and causeless attachments which charac- 
terize insanity; they are unable to mimic the solemn dignity 
of characteristic madness, nor recur to those associations which 
mark this disorder; 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 
* Hill, p. 306. “ Some melancholics, as well as maniacs, are very insensible to 
the action of drastic purgatives.” (Marc, Godman’s Western Reporter, voL 2, p. 67.) 
See also Male, p. 257. 
f Fodere, Traite du Delire, vol. 2, p. 500. 
t Medico-Chirurgical Review, vol. 6, p. 371. 
§ Sir Henry Halford’s Essays, p. 141. 
|| Haslam’s Medical Jurisprudence of Insanity, p. 323. MENTAL ALIENATION. 
559 
whether they are pusillanimous and submissive. This is a 
precept of Zacchias; but it must also be remembered, that 
impetuous excesses sometimes occur in individuals of this de- 
scription. Their memory and conception should also be put 
to the test.* 
14. However skilful may be the attempt to counterfeit de- 
mentia, and it is the most easily assumed of all the forms, yet 
there is always in the pretender a kind of hesitation and re- 
flection to be observed in his discourse. His wild ideas do 
not succeed each other with the same rapidity as those of a 
person whose understanding has been really destroyed. Marc 
proposes, as another test, to repeat to the insane person a se- 
ries of ideas recently uttered. The pretended madman, in- 
stead of wandering incoherently, would judge it most expe- 
dient to repeat the same words for the purpose of proving his 
madness.f 
15. There are many instances, where, without any precise 
intention 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 often the subject of dispute in our courts of 
justice. If the physician 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 ap- 
plication of the test of Shakespeare, 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 Tu- 
thiil. After a month’s violence, he was composed and com- 
fortable, but extremely weak, and manifested great anxiety to 
* Marc, Godman’s Western Reporter, vol. 2, p. 66. t Marc ut antea, p. 68,' 560 
MENTAL ALIENATION. 
make his will. This request was evaded as long as possible, 
but at last consented to. The solicitor received the same in- 
structions, 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 pro- 
perty. With respect to the legacies, he answered correctly; 
but when inquired of, to whom his real estate was to go, he 
answered, “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 phan- 
tasms of the imagination, and they are hence insensible to the 
operation of hope or fear; the feigned, on the other hand, will 
often discover, by words or actions, the emotion which the 
threat produces. Zacchias relates, that in his day, an able 
physician ordered, 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 whip- 
ping will produce an irritation 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, f 
On the same principle, the following case was detected by 
Fodere. A female, named Susannah Cloitre, was, in 1789, 
imprisoned, on the charge of having, in company with others, 
committed several highway robberies. Before this time, she 
had repeatedly, through her ingenuity in feigning insanity, es- 
caped punishment from several tribunals in Savoy and Geneva. 
* Halford’s Essays, p. 47. 
t 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, &c. 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.) MENTAL ALIENATION. 
561 
Fodere was ordered to examine her; and on his first visit, she 
counterfeited 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 pa- 
tient was dressed. Fodere continued his visits for some days, 
when he certified that she was not affected in her mind.* 
17. Marc advises us to notice whether the returns of the 
disease 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.! 
In elucidation of the subject of doubtful insanity, Marc re- 
lates three cases, which I shall briefly analyze. 
A man named Doux, was committed to prison for attempt- 
ing the murder of his wife. Drs. Marc and Rostan were de- 
sired to visit him. His companions in confinement stated that 
they had not witnessed any thing inconsistent with sanity, and 
that he testified regret for his conduct. Doux’s own account 
was, that his wife had proved faithless, and that he was con- 
stantly witnessing her attachment to her paramour; a violent 
quarrel finally ensued, when he beat her, and left her appa- 
rently dead. 
* Fodere, Medecine Legale, vol. 2, p. 461. 
t 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- 
tors, not having “a method in his madness,” but mixing up the two irreconcilable 
characters of 
“ ‘ The moping idiot and the madman gay.’ ” 
Dunlop. 562 
MENTAL ALIENATION. 
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 circumstances 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] 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 
altered. The conjunctiva was injected, the tongue red, the 
pulse slow, and his answers to questions slow and incoherent. 
He knew nothing of the paramour, on whose conduct he had 
previously dilated so much; [and on being desired to shake 
hands firmly, he was unable to exercise the least constriction. 
It was also ascertained 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 Profes- 
sor Monteggia. 
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 examined him, were inclined to doubt its reality, from 
the suddenness of the attack—from its sometimes seeming to 
be melancholy, then exhilerated insanity, and then complete 
dementia. He made no answer to questions, except by sin- 
gle words, as hook, priest, crown, crucifix, and if he made an 
attempt, as it would sometimes appear, it ended in the repeti- 
tion of some of these words. 
In his presence, the physicians stated, that there were se- MENTAL ALIENATION. 
563 
veral 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 ob- 
ject. 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 Monteg- 
gia 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 was 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 
repeated; 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 
himself in bed, sighed profoundly, and exclaimed, My God, 1 
am dying. His attendant, who had never heard his voice be- 
fore, was extremely frightened, and sent immediately for 
Monteggia. The patient was tranquil, and speaking sensibly, 
without any appearance 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 re- 
mained a month, and then was conducted to his criminal asso- 
ciates in prison. 564 
MENTAL ALIENATION. 
Monteggia asks, whether this man was insane ? If so, was 
he cured by the opium ? 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 
Gerard, a bold villain, at Lyons, in 1829. He was arrested, 
but immediately afterwards seemed to be struck with demen- 
tia, accompanied with inability to speak. Drs. Biessy, Favre 
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, if 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 cau- 
tery to the soles of the feet would be a proper application. It 
was accordingly applied for several days, with active purga- 
tives, 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, Gerard signified by signs his objections to it. 
When urged to explain, he spoke—“ They accuse me of a 
crime of which I am innocent. They call me a fool,” &c. 
The disease was thus removed, qnd the physicians reported 
that it had been feigned.* 
Whether the investigation should be confided to medical 
men, or whether individuals generally are competent to it, is 
a question raised by some writers which I shall not discuss. 
In disputed cases, both of feigned and concealed insanity, it is 
very common for persons in every class in society, to come 
* Annales D’llygiene, 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. MENTAL ALIENATION. 
565 
forward with their testimony, stating that the individual is or 
is not insane, while their depositions are often founded on 
transient conversations—on short and inattentive examina- 
tions, 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 shewn. That they may lead 
to serious errors, will particularly 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 wick- 
edness.* 
This disease is observed to be concealed, in the hope of es- 
caping the restraints of confinement. And the difficulty of 
detection is increased by the remarkable cunning and dissimu- 
lation, of which some maniacs are capable. A few examples 
will illustrate this in a satisfactory manner. 
“ An Essex farmer, about the middle age,” says Haslam, 
11 had on one occasion so completely masked his disorder, that 
I was induced to suppose him well, when he was quite other- 
wise. He had not been at home many hours, before his de- 
rangement was discernible by all those, who came to con- 
gratulate 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 be- 
came tranquil, and orderly, but remonstrated on the injustice 
of his seclusion. 
Having once deceived me, he wished much that my opi- 
nion should be taken respecting the state of his intellects, 
and assured his friends that he would submit to my determi- 
nation. I had taken care to be well prepared for this inter- 
view, by obtaining an accurate account of the manner in 
which he had conducted himself. At this examination, he 
* 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 inquire 
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 sani- 
ty 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. 566 
MENTAL ALIENATION. 
managed himself with admirable 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 ex- 
pressed himself as particularly fortunate in being under my 
care, and bestowed many handsome compliments 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 particularly 
some extravagant opinions, respecting certain persons and cir- 
cumstances, he disclaimed all knowledge of such circumstances, 
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 mad-man. In a short time he was re- 
moved 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 sub- 
ject of severe animadversion; he said that he had there been 
treated with extreme cruelty; that he had been nearly starved, 
and eaten up by vermin of various descriptions. On enquiring 
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 hospital, 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 argu- 
ment for his liberation. But when I informed him of circum- 
stances 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 ne- 
cessary to order him to be strictly confined. He continued 
in a state of unceasing fury for more than fifteen months.”* 
* Haslam on Madness, p. 53. MENTAL ALIENATION. 
567 
Lord Erskine, in his celebrated speech for James Hadfield, 
mentions two cases which are striking and instructive. “ I 
examined,” says he, “ for the greater part of a day, in this 
very place, (the Court of King’s Bench,) an unfortunate gen- 
tleman, who had indicted a most affectionate brother, together 
with the keeper of a mad-house at Hoxton, for having im- 
prisoned him as a lunatic, whilst, according to his own evi- 
dence, he was in his perfect senses. ' I was, unfortunately, not 
instructed in what his lunacy consisted, although my instruc- 
tions left me no doubt of the fact, but not having the clue, he 
completely foiled me in every attempt to expose his infirmity. 
You may believe, that I left no means unemployed, which 
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 the most 
wanton oppression; at last Dr. Sims came into court, who had 
been prevented by business from an earlier attendance. 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 so much in the habit of exerting, believed himself 
to be the Lord and Saviour of mankind,|not merely at the 
time of his confinement, which was alone necessary for my 
defence, 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 igno- 
rant examination—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 him- 
self, 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 defendant’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 no- 568 
MENTAL ALIENATION. 
thing 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 by 
writing his letters in cherry juice, and throwing them into the 
river which surrounded the tower, where the Princess re- 
ceived 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, “ di- 
rected Dr. Munro to be acquitted, but this man, Wood, being 
a merchaat in Philpot-lane, and having been carried through 
the city on his way to the mad-house, indicted Dr. Munro 
over again, for the trespass and imprisonment in London- 
knowing that he had lost his cause by speaking of the Princess 
at Westminster, and such,” said Lord Mansfield, “ is the ex- 
traordinary subtlety and cunning of mad-men, that when he 
was cross-examined on the trial in London, as he had success- 
fully been before, in order to expose his madness, all the in- 
genuity 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 obstinately per- 
sisted 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 
* 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 difficulty that 
occurs in such cases. After repeated conferences, and much conversation with a lu- 
natic, he was persuaded of the soundness of his understanding, and prevailed on lord 
Thurlow to supersede the commission. The lunatic, however, immediately after- 
wards, 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, wTas 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 particular 
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 acquires 
his confidence and induces him to conceal nothing. Sometimes, however, we may MENTAL ALIENATION. 
569 
witness in these cases, has to decide—not whether a person 
is actually 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. 
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 moments, “ meets that which has so often 
checked his vacillatory emotions—the instant of such a meet- 
ing is the instant of self correction, of silence, or of sudden 
order and surprising self possession.”* 
It must also be remembered, that those who are insane on 
particular subjects, will reason correctly on ordinary and tri- 
vial points, provided they do not become associated with the pre- 
vailing notions which constitute their insanity.f And this cir- 
cumstance is very apt to become a source of error, since 
unobservant persons will be readily deceived by this tempo- 
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, is 
the uncontrolable inclination which some individuals have to drink vinous liquors, 
which always produce in them the most violent and dangerous excitement. The fol- 
lowing cases, related by Esquirol, illustrate this observation, and prove the necessity 
of subjecting such individuals to seclusion. 
“ A girl who has been maniacal, and on this account was taken to Salpetriere, is 
generally in such possession of her reason, that she acts as servant to the other insane. 
On the slightest contradiction, however, she takes to drinking, and unless prevented 
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 return to 
her family. With the hope of giving her powerful motives for overcoming the incli- 
nation, 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 accus- 
tomed to the management or cure of lunatics, become ten-fold more foolish, boisterous 
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 exposure are 
the sure result of diligent inquiry.” 
f Haslam’s Medical Jurisprudence of Insanity, p. 295. 570 
MENTAL ALIENATION. 
rary display of rational discourse, and form a hasty conclusion,. 
Hence the importance of continued examination. At the com- 
mencement of an interview, it may be all calmness and appa- 
rent rationality—yet when least expected, the disorder breaks 
forth, and in many instances, there seems to be no cause for 
this conversion from apparent sanity to evident derangement. 
Even when placed in the society of other mad-men, he is ca- 
pable of detecting their folly and aberration from reason, and 
will endeavor to convince them of the absurdity of their pre- 
vailing opinions, “ yet in a moment, his mind launches into the 
regions of fiction, its admired clearness becomes obscured, 
and its seeming regularity exhibits a confused assemblage, or 
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 dur- 
ing it. The subtlety of the patient should be recollected, and 
his artful 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 enquiries, and 
endeavor to evade, or pretend to disown them. “ The pur- 
pose is more effectually answered by leading him to the ori- 
gin of his distemper, and tracing down the consecutive series 
of his actions and association of ideas. In going over the road 
where he has once stumbled, he will infallibly trip again.”! 
III. Of the legal definition of a state 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 in- 
structing in anatomy. 
The common law of England on the subject before us, is 
* Haslam’s Medical Jurisprudence of Insanity, p. 296. 
t lb. p. 331. MENTAL ALIENATION. 
571 
thus expounded by Blackstone. “ An idiot or natural fool,” 
says he, “ is one that hath no understanding from his nativi- 
ty, and therefore is by law presumed as never likely to ob- 
tain any.” But a man is not an idiot, if he hath any glim- 
mering of reason, so that he can tell his parents, his age, or 
the like common matters.* Over individuals of this descrip- 
tion, the king is appointed guardian, and the lord chancellor 
acts under his authority, as the conservator of their proper- 
ty. He also is to provide for them, and at their death ren- 
ders their estates to their heirs. 
“A lunatic, or non compos mentis. is one who hath had un- 
derstanding, but by disease, grief or other accident, hath lost 
the use of his reason. A lunatic is indeed properly one that 
hath lucid intervals ; sometimes enjoying his senses and some- 
times not, and that frequently depending upon the change of 
the moon. But under the general name of non compos mentis, 
(which, Sir Edward 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 horn so; or such, in short, as are 
judged by the court of chancery incapable of conducting their 
own affairs.”f 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 pre- 
serves the property for the use of the insane person, 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, un- 
soundness of mind. 
Lord Chancellor Eldon was, I believe, the individual who 
first gave it a distinct place among the legal varieties of men- 
tal alienation, and the question of its existence has been a 
fruitful source of litigation. To appreciate the changes occa- 
sioned by its introduction, it will be sufficient to refer to the 
opinions of various chancellors of England. Lord Hardwicke 
* Black stone's Commentaries, vol. 1, p. 302,304. 
t Blackstone, vol. 1, p. 304. 572 
MENTAL ALIENATION. 
held that unsoundness of mind imported, not weakness of un- 
derstanding, but a total deprivation of sense. It was thus 
equivalent with the term insanity.* Lord Eldon, however, 
says, “ Of late, the question has not been whether the party 
is insane, but the court has thought itself authorized 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 contradistinguish- 
ed from idiocy and from lunacy, and yet 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 af- 
fairs will not do, unless such imbecility and such incapacity 
amount to evidence that the party is of unsound mind, and 
the jury find him to be so.j; 
In a subsequent case, the attempt of a jury to specify the 
conditions 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 in- 
competent to the management of his affairs, and consequently 
that he was of unsound mind, and had been so for two years.§ 
Lord Lyndhurst quashed this inquisition, and ordered a se- 
cond commission, which found the person to be of unsound 
mind. || . . 
* 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. 
f 8 Vesey junior’s Reports, p. 67. Ridgway v. Darwin. 
j: Shelford, p. 87. 
§ 4 Russel’s Chancery Reports, p. 182. In Re Holmes. 
The Rev. Mr. Holmes was seventy-seven years old. Two medical men (Drs. 
Pennington 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 pe- 
cuniary affairs. It was on this testimony that the first verdict was rendered. Medico- 
Chirurgical Review, vol. 12, p. 244. 
|| A legal friend has suggested to me that probably Lord Lyndhurst’s objection was 
to the argumentative nature of the verdict. MENTAL ALIENATION. 
573 
As to what is the legal acceptation of this term, I will quote 
the sentiments of an eminent barrister, Mr. Amos, late pro- 
fessor 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 nei- 
ther lunacy, idiotcy, imbecility, or incompetency to manage 
a person’s own affairs. And yet we have seen that an inqui- 
sition finding a person unfit to manage his own affairs, and 
therefore not of sound 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 ma- 
nage his own affairs.” And again, “ Soundness of mind is a 
legal term, the definition of which has varied, and cannot, 
even in the present day, be stated with any thing like scien- 
tific precision.”* 
Mr. Shelford, the author of a recent very elaborate Trea- 
tise on the Law of Lunatics, makes the following observa- 
tions: “It is to be lamented that the original meaning of the 
term “ unsound mind” should have been departed from, and 
that so much uncertainty and latitude should have been given 
to it, as are implied by the words of Lord Eldon. For if un- 
sound mind does not mean a deprivation of reason, but a de- 
gree of weakness, and the Crown can issue commissions to 
try whether a party be of sufficient understanding 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 
naturalized into our own jurisprudence. In the Revised Sta- 
tutes of the state of New-York, it is enacted, that the Chan- 
cellor shall have the care and custody of all idiots, lunatics, 
persons of unsound mind, and habitual drunkards-! Again it 
* London Medical Gazette, v. 8, p. 419, 421. 
f 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 JNew-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.) 574 
MENTAL ALIENATION. 
is ordained, that every person capable of holding land, except 
idiots, persons of unsound mind, and infants, may alienate it.* 
It is, therefore, of great importance 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 fol- 
lowing extract. It is deduced from the current of decisions. 
After remarking that the terms insanity, lunacy, unsound- 
ness of mind, and imbecility, are employed under very diffe- 
rent acceptations by lawyers, physicians and medical writers, 
the critic continues, “ and in consequence, witnesses have 
often seemed to differ widely from each other in their evi- 
dence, when in fact the chief difference between them con- 
sisted in the meaning that each attached to the vague and 
unscientific terms sanctioned by the practice of the courts. 
The inconveniences have been abundantly felt on many re- 
cent occasions, and appear, in particular, to have been the 
origin of the chief difficulties experienced in the late Ports- 
mouth cause. In defence of our medical brethren, and in jus- 
tification of the awkward appearances they have made, we 
may safely maintain, that the source of confusion does not lie 
with them. This has been clearly shewn, we think, in a let- 
ter addressed a few months ago, by Dr. Haslam to the Lord 
Chancellor, 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 lord- 
ship seems to hold that there are three such states, idiocy, 
lunacy, and unsoundness 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 comprehending 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 
* 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 inquirendo, that his acts are 
void or voidable in a court of law.” (Cowen’s Reports, vol. 4, p. 207.) MENTAL ALIENATION. 
575 
Unsoundness of mind, as contradistinguished 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. 4 Whatever,’ says the Chancellor, 4 may be the degree 
4 of weakness or imbecility of the party to manage his own 
4 affairs, if the finding of the jury is only that he was of an 
4 extreme imbecility of mind, that he has an imbecility to 
4 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 established by the result of their in- 
‘ quiry, a case in which the Chancellor can make a grant con- 
4 stituting a committee, either of the person or of the estate. 
4 All the cases decide that mere imbecility will not do, unless 
4 that imbecility and that incapacity to manage his affairs, 
4 amount to evidence that he is of unsound mind, and he must 
4 be found to be so.’ On carefully considering these expres- 
sions, we imagine this unsoundness of mind to be nothing else, 
in strict language, than imbecility, amounting to an inability 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.”* 
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 
person’s mind, and the question of idiocy is tried before the 
escheator 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 sum- 
moned by the persons appointed commissioners.f If the re- 
sult of the commission be a return that the individual is a lu- 
natic, he is then committed to the care of tutors or guardians, 
who are styled his committee. 
* 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, 
f Highmore on the Law of Idiocy and Lunacy, p. 20, 21. 576 
MENTAL ALIENATION. 
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 departure from sound mind he of a nature to justify the con- 
finement of the individual, or the imposition of restraint upon 
him as regards the use or disposal of his property ?f 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 well worthy of consideration. 
Mr. Edward Davies was born in low circumstances, and 
obtained an extremely imperfect education. He was noticed 
at school as being very shy of his companions, but was not 
considered 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 habitually 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 himself also deficient in education, he endeavoured to 
acquire information 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 
* Highmore, p. 73. 
t Or, to put it in another point of view, the physician and the jury are “ 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 protection " 
(Medico-Chirurgical Review, vol. 16, p. 512.) MENTAL ALIENATION. 
577 
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. Fore- 
seeing that if he married, she would be displaced from the 
management of his house and concerns, she prevented him 
from seeing young females. 
He made many attempts to emancipate himself from this 
control, 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 gesticulation, and expressed a strong antipathy to his 
mother and several relations, whom he supposed were com- 
bining against him. Mr. Lawrence considered him of unsound 
mind, but that the antipathy to his mother was the chief de- 
lusion. The disease would be removed, if he could be recon- 
ciled to her. 
About this time, his mother placed him under the care of 
Dr. Burrows, against whom it appears he entertained a strong 
aversion. He now consulted Dr. Latham on the subject of 
his supposed insanity. In the conversation with that physi- 
cian, he used much gesticulation and theatrical gestures; was 
apprehensive that any one should hear his narrative; spoke of 
his wealth, and occasionally quoted Byron and Shakespeare. 
He repeatedly insisted on Dr. Latham’s opinion whether he 
was insane, and threatened vengeance if he did so think. Dr. 
Latham was inclined, 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 night, 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 
confinement led to an application for his release. Several 
physicians examined him, (Sir George Tuthill, Dr. Munro, 
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 al- 578 
MENTAL ALIENATION. 
ready 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 con- 
finement, 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 application 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 cor- 
rectness of the opinions of the principal medical witnesses, 
and there possibly may be some colouring given more favour- 
able to the individual implicated, than the testimony warrants. 
But it is evident, so far as I can judge, that a sufficient in- 
quiry 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 re- 
marked by the author from whom I am quoting, (and who 1 
believe was Dr. Gooch,) that Davies was always, and proba- 
bly 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 absolutely in- 
dulged in no delusion, unless antipathy to his mother’s govern- 
ment was so considered. This, if his history had been pro- 
perly inquired into, would never have been so denominated. 
The important rule evidently deducible from the whole, is to 
ascertain the person’s natural character, and to reason from 
that as to deviations.* 
Another case that equally interested the intelligent portion 
* I have taken the narrative of this case from the Quarterly Review, vol. 42, p. 
354. 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 recognize 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 standardsays he, “ is the patient's 
own natural character, and not that of the physician or the philosopher.’' MENTAL ALIENATION. 
579 
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, and 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 fondness for matrimony, having engaged 
herself to several persons, and that, in many respects, she 
evinced little of the delicacy becoming her sex. Dr. Suther- 
land had visited her four times, and came to the conclusion 
that she was incapable of taking care of herself or of her pro- 
perty. She had memory, but neither judgment nor reasoning 
power. Dr. Gordon did not consider her capacity to exceed 
that of a child of seven years of age. Several non-medical 
witnesses who had known her from infancy, spoke of her ex- 
tremely passionate, and occasionally indelicate conduct. On 
her examination, however, before the commissioners, her an- 
swers 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 imbe- 
cile or idiotic. She confessed and lamented her ignorance of 
arithmetic, but said that her grandfather sent excuses when 
she wras 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 persuaded to elope with a person highly offensive 
to her mother; and in order to dissolve the connexion, the 580 
MENTAL ALIENATION. 
whole history of her life is ransacked for inconsistencies and 
improprieties. Dr. Morrison 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 observed in Miss Bagster.”* 
From the above statement, an idea may be formed of the 
principles and practice of the English law relative to the in- 
sane in Civil cases: 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 
memory, 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 in- 
tervals of understanding, he shall answer for what he does in 
those intervals, as if he had no deficiency.”f 
The French law makes similar provisions. “ It is neither 
a 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 
* London Medical Gazette, vol. 10, p. 519, 553. London Atlas, newspaper, July 
8 and 15, 1832. • 
In the suit for the dissolution of the marriage of the Earl of Portsmouth, on thr 
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—w ould follow funerals, &e. 
The commission found him of unsound mind, and the marriage was subsequently 
dissolved. (Haggard's Ecclesiastical Reports, vol. 1, p. 355.) 
t Blackstone, vol. 4, p. 24. 
\ Code Penal, art. 64. MENTAL ALIENATION. 
581 
Procureur-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.* 
The law at present in force in the state of New-York, is 
similar 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 families may be properly maintained. He is 
also empowered to dispose of and regulate their property under 
certain restrictions, and should the lunatic recover, his pro- 
perty is to be restored, but should the idiot or lunatic die, it 
goes to his heirs or next of kin.f 
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 lunatics, 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 com- 
missioners 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 directed 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.|| 
As to criminal cases, the broad principle, of want of respon- 
sibility is laid down. “No act done by a person in a state of 
* Causes Celebres par Mejan, vol. 6, p. 310. 
f Revised Laws, vol. 1, p. 147. Revised Statutes, vol. 2, p. 52. 
I 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. 
j] In the matter of Hanks, a lunatic. Johnson’s Chancery Reports, vol. 3, p. 567. 582 
MENTAL ALIENATION. 
insanity 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 provisions 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 summon 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 in- 
sane, the sheriff shall transmit the inquisition to the Governor, 
who can order the execution, in case the convict recovers.! 
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 
Asylum, 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 spe- 
cially appointed 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 
understood. 
The most striking are the distinctions that are made be- 
tween civil and criminal cases. The reader has doubtless al- 
ready observed, that in the latter, the testimony of others is 
sufficient to establish the insanity of the prisoner. But under 
a writ de lunatico 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 state. 
There is a still more striking distinction. If a lunatic be 
* Revised Statutes, vol. 2, p. 697. 
t Revised Statutes, vol. 2, p, 658. 
J Revised Statutes, vol. 2, p. 756, 771. We provide for all except the insane poor. 
§ The following is made a crime in Ohio: “ Having carnal intercourse w ith an in- 
sane woman, not the offender’s wife, he being over 18 years of age. Punishment in 
the penitentiary from 3 to 10 years.” (American Quarterly Review, vol. 10, p. 41.) MENTAL ALIENATION. 
583 
perfectly recovered and not otherwise, his property is to be 
restored to him.* But in criminal cases, if he exhibit a lucid 
inten'val of understanding, he may be punished for acts com- 
mitted during its presence, in the same manner as a sane per- 
son is punished. It will hence be proper to offer a few remarks 
on what is understood by a lucid interval. 
The term itself is, with great appearance of probability, 
supposed 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.f 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 instance that the aberrations of the 
human intellect correspond with, or were influenced by, the 
vicissitudes of the moon. Esquirol observes, that in respect to 
lunar influence, he cannot confirm the long prevalent opinion. 
The insane, he adds, are certainly more agitated about the 
full moon, but so they are about 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 agitates all.J 
If then the theory on which the term is founded, and the 
practical deduction from it are both incorrect, what are we to 
understand by the term itself at the present day, in legal pro- 
ceedings'? I answer this by some quotations from the writings 
of distinguished advocates and enlightened physicians. 
Daguesseau, one of the greatest names in French jurispru- 
dence, thus defines it: “It must not be a superficial tranqui- 
* 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 af- 
fairs.” The Lord Chancellor (Eldon,) refused on this to grant a committee, and issued 
a new commission. (Jacob’s Chancery Reports, vol. 1, p. 333.) 
f Haslam on Madness, p. 214. 
* Medico-Chirurgical Review, vol. 1, p. 251. 584 
MENTAL ALIENATION. 
lity, a shadow of repose; but on the contrary, a profound 
tranquility, a real repose: it must be, not a mere ray of rea- 
son, 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 unites the night to the day; but a perfect 
light, a lively and continued lustre, a full and entire day, in- 
terposed 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 tranquility for a time, a real 
calm, a perfect serenity; in fine, without looking for so many 
metaphors to represent our idea, it must be not a mere dimi- 
nution, 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,’’ 
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. 
* Highmore on the Law of Idiocy and Lunacy, p. 6. 
In farther noticing this subject, he remarks, that “ much of the difficulty of discrimL 
nating arises from confounding a sensible action with a lucid interval. An action may 
be sensible in appearance, without the author of it being sensible in fact; but an in- 
terval 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 momentary effect; the 
interval continues and supports itself: the action only marks a single fact; the inter- 
val 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 induce a presumption of lucid inter- 
vals, 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 ac- 
tions. A reasonable action is an act — an interval 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.” (Potliier’s Treatise on the Law of Obligations, vol. 2, appendix 19, p. 
670. London, 1806.) MENTAL ALIENATION. 
585 
Every action, and even gesture of the patient, should be se- 
dulously 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 employed occasionally in business or offices connected with, 
or likely to renew his wrong associations. If these trials pro- 
duce no recurrence of insanity, he may, with full assurance, 
be regarded as legally compos mentis during such period, even 
though he should relapse a short time afterwards into his for- 
mer malady.”* 
“ I should define,” says Haslam, “ a lucid interval to be a 
complete 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; be- 
cause, wanting this information, he will have no clue to direct 
his inquiries, and madmen do not always nor immediately in- 
trude 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 known that they have often dissembled their resentment, 
until a favourable opportunity has occurred of gratifying their 
revenge.”f 
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 
* Percival’s Medical Ethics, p. 214. 
t Haslam on Madness, p. 46 and 52. Dr. Burrows, however, remarks on such an 
opinion, 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 absurdum; 
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 pa* 
roxysm 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 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.” (Burrows's Commenta- 
ries on Insanity, p. 280.) 586 
MENTAL ALIENATION. 
moment, an abatement of pain or violence, or of a higher state 
of torture—a mind relieved from excessive pressure; but an 
interval in which the mind, having thrown off the disease, has 
recovered its general habit.” 
“ The burthen of proof,” he adds, “ attaches on the party 
•alleging such lucid intervals, who must show sanity and com- 
petence at the period when the act was done, and to which 
the lucid interval refers, and it is certainly of equal impor- 
tance that the evidence in support of the allegation of a lucid 
interval, after derangement at any period has been establish- 
ed, 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.* 
* Brown’s Chancery Cases, vol. 3, p. 443, 444. The Attorney-General v. Pam" 
ther. Lord Eldon has, however, intimated his disagreement with Lord Thurlow’s 
proposition. Ex parte Holyland, Vesey’s Reports, vol. 11, p. 10. And in a late tri- 
al (July 20, 1822,) in chancery, he has still more openly avowed his opposition to it. 
The following are stated 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. Parnther.) That noble lord was of opinion, that if the existence of insani- 
ty was once established, the evidence of a lucid interval ought so be as clear as the 
evidence 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 suf- 
ficiency of mind and understanding, and with the greatest ability. Now if Provi- 
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 affecting 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 Parkmson, a lunatic. (Albion newspa- 
per 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 pre. 
sume.) Dr. Powell probably holds the same opinion that Dr. Haslam does. MENTAL ALIENATION. 
587 
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 inter- 
val,’ if it does not take place when no symptom of delusion 
can be called forth at the time. How but by the manifesta- 
tion 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 delusion 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 dif- 
ficult to prove a lucid interval, because it is difficult to ascer- 
tain the total absence of delusion.”* 
Such then is the construction attached to the term lucid in- 
terval in civil cases, but its signification is narrowed down in 
criminal 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 accountable for his actions. It is allow- 
ed by all commentators “ that the line which divides them is 
invisible, and cannot be defined; yet one or other of these 
states must be collected from the circumstances of each par- 
ticular case, duly to be weighed by the judge and jury.”f 
“ Hoffbauer, after stating that during a lucid interval, a lunatic ought to be held re- 
sponsible for his actions, and to be esteemed able to make legal contracts, observes, 
‘ 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. 
t 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- 588 
MENTAL ALIENATION. 
Sir Vicary Gibbs, when attorney-general of England, and 
trying Bellingham for the murder of the Hon. Spencer Per- 
cival, used the following language: “ A man may be deranged 
in his mind—his intellects may be insufficient for enabling him 
to conduct the common affairs of life, such as disposing of his 
property, or judging of the claims which his respective rela- 
tions 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 discharged from his responsibility for criminal acts. I say 
this upon the authority of the first sages in this country, and 
upon the authority of the established law in all times, which 
law has never been questioned, that although a man be inca- 
pable of conducting his own affairs, he may still be answera- 
ble for his criminal acts, if he possess a mind capable of dis- 
tinguishing 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 rea- 
soning from 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 extravagance: 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. 
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 commit- 
ted, yet there being no reason for believing him to have been at that period, a ration- 
al and accountable being, he ought to be acquitted; and the jury accordingly acquit- 
ted him. (Ibid. vol. 1, p. 488.) 
Hadfield shot at the King on the persuasion of Truelock, a maniac, who prophecied 
that the Messiah should proceed from his mouth, and told Hadfield that the only ob- 
stacle was the King, and who must first be dispatched. 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 im- 
patience 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.) 
* Collinson on Lunacy, vol. 1, p/657. MENTAL ALIENATION. 
589 
There was a third species of insanity, in which the patient fan- 
cied 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 distinguishing right from 
wrong, there was no excuse for any act of atrocity which he 
might commit under this description of derangement.”* 
Sir John Nicholl, in the case of Dew v. Clark, which I shall 
hereafter notice, takes the following distinction between the 
responsibility 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 imagination, 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 ra- 
tional person would have believed, that is insane delusion.” 
This delusion may sometimes exist on one or two particu- 
lar subjects, though generally there are other concomitant 
circumstances, such as eccentricity, irritability, violence, sus- 
picion, exaggeration, inconsistency, and other marks and 
symptoms which may tend to confirm the existence of delu- 
sion, and to establish its insane character. The law then does 
recognize 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.” 
These are the principles by which the criminal jurispru- 
dence of England and this country is guided, in cases of in- 
sanity. The question to be considered in each case, as will 
be seen by the above quotations is, whether the criminal is 
capable of distinguishing between right and wrong. Is not 
* 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 lie 
killed. Dr. Sims on the contrary asserts, that no madman ever made this mistake. 
(Memoirs Medical Society of London, vol. 5, p.372.) 590 
MENTAL ALIENATION. 
this the same as inquiring 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 'l I apprehend it must be the jury, and 
I recommend, in accordance with the advice of Professor 
Amos, that the medical witness 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 insane, and incapable from his insanity of know- 
ing what he did, and of judging of the consequences of his 
actions. He had harboured 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 deliberation, told him his time was 
come; and taking a pistol, inflicted a mortal wound. A ver- 
dict of guilty was found, and the earl was executed.! 
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 
(1831), before Lord Chief Baron Lyndhurst for murder, by 
* 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, 
f Hargrave’s State Trials, vol. 10, p. 478. 
| Colhnson on Lunacy, vol. 1, p. 476. MENTAL ALIENATION. 
591 
shooting 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 warrants 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 deal- 
ings 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 medical witnesses deposed 
to their belief, that from the evidence they had heard, the 
prisoner laboured under that species of insanity which is call- 
ed 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, 
before they could acquit the prisoner on the ground of insa- 
nity, 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 com- 
mitting an offence against the laws of God and nature 1 His 
lordship referred to the doctrine laid down in Bellingham’s 
case by Sir James Mansfield, and expressed his complete ac- 
cordance in the observations of that learned judge. The jury 
acquitted the prisoner 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 
delusion and the act must be connected. Valuable as is this 
suggestion, yet it must be understood, that there are cases in 
which no connexion of this description can be shown, and in- 
deed 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 
* Carrington and Payne’s Reports, vol. 5, p. 168. 592 
MENTAL ALIENATION. 
homicide. It is that of melancholy, where the mind broods 
often in silence over a single idea, and 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 difference. “ Of 
methodical madness, of systematic perversion of intellect," 
says Haslam, “ the multitude can form no adequate concep- 
tion, and cannot be persuaded that insanity exists without tur- 
bulent expression, extravagant gesture, or phantastic decora- 
tion.” 
What can be more alike than the anger of the sane and in- 
sane I 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 
murders 1 It is taken from the mouth of the maniac himself, 
as stated to Dr. Haslam. “ The man whom I stabbed, richly 
deserved it. He 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 torture. After some days he released me. I gave him 
warning, for I told his wife I would have justice of him. On 
her communicating 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 threa- 
tened him, and by an affectation of repentance, prevailed on 
him to release me. For several days I paid him great atten- 
tion, and lent him every assistance. He seemed much pleased 
with the flattery, and became very friendly in his behaviour 
* 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 re- 
turn of the maniac to the scarcely more healthy state of stupid anger, and the charac- 
ter to be given to acts done by him when near the varying frontier which separates 
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. 
593 
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 main- 
tained between us, but as he was one day unlocking his gar- 
den-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 by Lord Lyndhurst, be presented 
to every jury; did the prisoner 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 acknowledged mildness of our laws, 
and the unwillingness to convict capitally, I feel a strong 
conviction that no practical injustice will be done. But to aid 
in affecting all this, it is very necessary that the medical wit- 
ness should have every facility allowed him for studying the 
nature of the case, and that its history should be well ascer- 
tained. 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 understood. 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 
t Haslam on Madness, p. 169. 594 
MENTAL ALIENATION. 
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 per- 
sons. But if the question be put in this other and more special 
sense, as relative to the very act done by 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 1 was he impressed with the consciousness of 
guilt and fear of punishment I It is then a pertinent and ma- 
terial question, but which cannot to any substantial purpose 
be answered, without taking into consideration the whole cir- 
cumstances of the situation. Every judgment in the matter 
of right and wrong, supposes a case or state of facts to which 
it applies, 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 conceive 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 tristia sibi dicens atque jingens” 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. Proceeding 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 com- 
plex and appropriated sense, as relative to the thing done and 
the situation of the pannels’s feelings and consciousness on that 
occasion, that this inquiry concerning his intelligence 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 
* Hume’s Commentaries, vol. 1, p. 24, 25. MENTAL ALIENATION. 
595 
pannel understands perfectly the distinction of right and 
wrong, yet if he labours, as is generally the case, under an 
illusion and deception as to his own particular case, and is 
thereby disabled from applying it correctly to his own con- 
duct, he is in that state of mental alienation which renders 
him not criminally answerable for his actions.”* 
I am aware, that in expressing the above opinions on the 
subject 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 
consequences 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 opi- 
nions 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 introduce the doctrine of his ability of 
judging between right and wrong, which, it must be conceded, 
* 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 maybe observed, that unquestionably the mere 
fancying a series of injuries to have been received, will not serve as an excuse for 
murder, for this plain reason, that supposing it true that such injuries had been re- 
ceived, they would have furnished no excuse for the shedding of blood; but on the 
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 in 
general was a crime, and therefore the law appears to have been more correctly laid 
down in the case of Iladfield, than in this instance.” (Edinburgh Law Journal, vol. 
1, p. 524.) It is the opinion of many physicians in England, that Bellingham was in- 
sane when he murdered Mr. Percival. 596 
MENTAL ALIENATION. 
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 
imperfectly 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 responsibility with perfect confidence? We humbly 
but earnestly suggest, that instead of deciding for responsibi- 
lity in partial insanity, it is both more just and more merciful 
to doubt as to that essential, when disease of mind, to a 
PALPABLE AND CONSIDERABLE 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 confinement, 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 condition is a morbid 
action of the brain, either structural or functional. A defini- 
tion of the effect, in feeling and manifestation, of a diseased 
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 lawr, 
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 attention to the proof generally of diseased mani- 
festations of the intellect 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 irresponsibility. If mercy is often ex- 
tended to youth, to seduction, even to great provocation, how 
much more ought it to shelter disease of the mind when clear- 
ly established? If it be true, and no physician denies it, that 
to diseases of the inflammatory class it is impossible to pre- 
scribe limits, or to predict that new and aggravated symptoms 
shall not suddenly follow in the course of the diseased action, 
is it not presuming too much to decide that inflammation of MENTAL ALIENATION. 
597 
the brain, a usual cause of insanity, has known boundaries, 
and shall not suddenly extend from partial to produce total 
insanity 1 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 symp- 
toms.”* 
In applying this argument, cases are adduced which it will 
be useful to review. Out of a great multitude, I will princi- 
pally select such as have excited peculiar interest of late years 
in different countries. 
Robert Dean was a young man of weak intellect and strong 
animal passions. He became warmly attached to a female 
superior in station to himself, and was rejected. This caused 
ungovernable feelings of revenge, and he determined on her 
murder. He had at the same time some religious ideas, and 
it occurred to him, that by putting this woman to death, he 
would send an unprepared sinner into eternity. But the im- 
pulse 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 determined should be the victim. He murdered 
it, and then gave himself up to justice. He was tried, con- 
demned 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 rav- 
ing even on the scaffold.”f 
* “Observations on the degree of knowledge yet applied to the plea of Insanity, in 
trials for crimes.” (Edinburgh Law Journal, vol. 1, p. 542.) 
t The melancholy results of fanaticism with which the history of almost every age 
and every nation is so 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 duty, and they pursue this to the wildest verge of act- 
ing and suffering. Thus in Denmark, during the middle of the last century, a large 
number of individuals wrere 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 whip- 
ped. (Quarterly Review, vol. 12, p. 219. London Magazine, 1768.) 598 
MENTAL ALIENATION. 
John Howison, aged 45 years, a sturdy beggar, but for- 
merly a hawker of small wares, was tried before the High 
Court of Justiciary in Scotland, December 31, 1831, for the 
murder of the wddow Geddes, on the 2d of the same month. 
For a fortnight 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 vil- 
lage where Mrs. Geddes (and who was an aged woman) re- 
sided, 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 brief space to come out 
again hurriedly, shut the door after him, and run from the vil- 
lage, quickening his pace when he thought himself observed. 
One witness heard the sound of a blow, when Howison wras 
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 ap- 
pear that he had taken a single article from the cottage, al- 
though there was some money open in a cup. 
Howison was visited by Dr. Spens and Mr. Watson several 
times befor 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 
possessed 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 
I need hardly mention the frequency of suicide, resulting directly as a consequence 
of these wild imaginations, while on the boundary line between crime and insanity, 
is that indefatigable spirit of slander which pursues every person who “ believes 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 conse- 
quences, 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. 599 
MENTAL ALIENATION. 
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 peculiarities. 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 together, 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 ge- 
nerally 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 with- 
out his weapons, he rose and procured them. In this state, 
he would sally forth, brandishing a stick and playing extra- 
vagant 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. 
He had taken a fancy to become a Quaker some weeks be- 
fore the murder, and attended the meetings, but paid no re- 
spect to the worship, muttered to himself, and pricked his body 
with pins and needles. On one occasion, he violently de- 
manded instant admission 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 insa- 
nity while a lodger with the witness already noticed, there 
was probably in this case a morbid determination to acts of 600 
MENTAL ALIENATION. 
violence. The insanity 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 cun- 
ning evinced, with the subsequent denial, were asserted to be 
altogether consistent with insanity. The absence of motive 
in this instance was also dwelt on. 
Howison was convicted, and an application to the Home 
Department, for the privilege to adduce additional proofs of 
his insanity, was denied. These consisted chiefly in unpro- 
voked and boisterous acts of violence, immediately previous 
to the murder. 
The evening before his execution he stated, that he had 
committed 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 in- 
terest in France, the country wdiere 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 de- 
stined for the employment of a clerk, and accordingly, in 1804, 
was received as an extraordinary one in the navy depart- 
ment. He rose gradually, through good conduct and atten- 
tion 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 unfre- 
quented places. He had no confidant—but in ordinary con- 
versation, his ideas were correct and sensible. One of his fel- 
low clerks deposed, that during the last year of his clerkship, 
Papavoine complained that an individual appeared to pursue 
him in his sleep, and threatened to kill him, but that wrhen he 
awoke he saw no one. This condition of mind continued for 
ten days, after which nothing remarkable was observed. 
* 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 time 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. MENTAL ALIENATION. 
601 
His father died in 1823, and as his mother did not seem able 
to superintend the establishment, he determined to undertake 
it himself. He accordingly obtained his dismission. Difficul- 
ties, however, 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 pecu- 
niary situation of the family became in consequence very cri- 
tical. 
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 be- 
fore his mother and addressed her, saying, “ Mother, my fa- 
ther is not dead. I have the proof in this paper. They some- 
times bury persons who are alive.” Alarmed at this, she ap- 
pears to have avoided taking her meals with him, although she 
continued residing 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 
excursion. P. complied, and proceeded to Beauvais, where 
he had relatives and some commercial connexions. His mis- 
anthropy did not, however, desert him here; he was habitual- 
ly taciturn and sad, although his conversation, when he in- 
dulged in it, was correct. The only peculiarity noticed was 
a question to his relative, whether his father and brother were 
really dead. “ I have a paper here (said he) which contra- 
dicts it.” He also complained of having a mortal enemy at 
Mouy. 
The day after his arrival, (October 3,) he received an un- 
expected 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 determined to proceed to Paris. He borrowed money to 
pay his expenses, and took with him the baggage he had 
brought from Mouy, writing at the same time to his mother 602 
MENTAL ALIENATION. 
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 re- 
tired— 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 ad- 
dressed her. “ Do you know whose children you were ca- 
ressing 1” She replied, “ We may caress children, although 
we do not know whose they are.” He abruptly left her, and 
appears to have gone immediately into an adjacent shop, 
where he inquired for a case knife. They refused to sell any, 
except by the dozen; but on his offering an advance in the 
price, a single one was 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 chil- 
dren, 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 clothes, he inquired whether 
they were not soiled. He also asked the way out of the fo- 
rest. He was identified by the mother, and gave up his name. 
On his examination, he denied having committed the crime, MENTAL ALIENLTION. 
603 
and persisted in this for upwards of a month; at the end of 
which period, he declared that he had some important disclo- 
sures to make, but could divulge them only to two royal prin- 
cesses. 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 wras considered as an artifice, to 
persuade the public of his insanity. About this period, also, 
he became 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 mur- 
der, 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 
murder, 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. La- 
bouring under insanity, he committed the act; but its execu- 
tion being completed, he became 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 li- 
terally bristled — he had never seen a person’s hair in such a 
state; his countenance was highly inflamed, and he actually 604 
MENTAL ALIENATION. 
frightened the soldiers who surrounded him. Although be- 
lieving at first that this was intended as a deception, the wit- 
ness had been finally constrained 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 fortunately the instances are rare. He aptly ad- 
duced 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 
mother — with his relatives at Beauvais — his hallucination 
concerning a person persecuting him and threatening his life, 
and the apparent want of premeditation in the murder, evi- 
denced by the rapidity of his actions, all were urged in his 
favour; and the advocate expressed his decided conviction 
that this was a case of monomania without delirium, as de- 
scribed 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 in- 
stant. 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 dis- 
ease? 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 ver- 
dict 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 
occasionally 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 pre- 
sumption 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. 
* Causes Celebres du dix-neuvieme siec’e, vol. 1, p. 203 to 290. MENTAL ALIENATION. 
605 
As to the cases that have been related, I will observe, that 
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 condemn- 
ed, 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 in- 
sanity passes through so many varying shades, (from the stu- 
pidity, for example, of Hoffbauer, to the raging mania of au- 
thors,) that before we have completed it, we shall find that 
we have introduced the effects of violent 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 
described on a previous page, and to the definition of which I 
must beg the reader to recur. 
As enounced by Dr. Prichard, it consists in a disorder of 
the moral affections and propensities, without any symptom 
of illusion or error impressed on the understanding.* He 
justly observes, that no such disorder has been recognized in 
the English courts of judicature, or is it even in general ad- 
mitted by English medical writers. If however such a disease 
does exist, our legislators and judges should be apprised of it. 
The idea of such a state, was first advanced by Pinel, who 
characterised it by the name of manie sans delire, and obser- 
ved, that persons labouring under it, appear to be governed 
* Dr. Gooch, without reference however to the present subject, denies that delusion 
is always present in insanity, and in illustration mentions the case of one of his pa- 
tients. 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 us by Dr. Gooch. 
Now she certainly was not insane on the subject of her husband’s infidelity. But was 
she not so on some other points 1 If not, what constituted her insanity ? This case is 
mentioned in the Quarterly Review, vol. 41, p. 180. 606 
MENTAL ALIENATION. 
by a sort of instinctive madness, as if the affections alone had 
suffered injury. Esquirol, when he wrote his valuable arti- 
cles for the Dictionary of Medical Sciences, did not recognize 
this species, but he has since avowed having met with several 
cases in lunatic asylums, and is convinced of its distinct cha- 
racter.* 
The dawnings of this melancholy affection, and the strug- 
gles of the understanding with it, will best be understood by 
the following 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 entreated 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 homi- 
cide, for which she could not assign any motive. She was 
rational on every subject, and whenever she felt the approach 
of this dreadful propensity, she intreated to have the strait- 
waistcoat put on and to be carefully guarded until the parox- 
ysm, which sometimes 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 Fauxbourg St. Antonie. Tormented by the 
desire 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 
* Note de Monomanie homicide, par M. Le Docteur Esquirol. Paris, 1827. MENTAL ALIENATION. 
607 
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 endeavoring to commit homicide upon one of his 
friends, and perished in a violent fit of maniacal fury.”* 
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 de- 
stroyed them. Nor is this confined to the puerperal period, 
when we might possibly suspect the presence of its peculiar 
insanity, but children of every age have been thus destroyed, 
both by fathers and mothers. 
The following is one of the most dreadful on record, for the 
atrocity of the crime, and as it is generally recognized as be- 
longing 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 viva- 
city, and remarkably fond of children. In the month of June, 
1825, a singular change occurred in her character. She be- 
came silent, melancholy, absorbed in reverie, and was soon 
dismissed from her service. She fell gradually into a perma- 
nent 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 frequently 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 Novem- 
ber, committed the following act. She was desired by Dame 
Fournier, who went from home in the morning, to prepare 
dinner, and to go to a neighbouring shop kept by Dame Belon, 
* Dr. Prichard, Art. Soundness and Unsoundness of Mind, in Cyclopaedia of Practi- 
cal Medicine. 608 
MENTAL ALIENATION. 
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 immediately took the child to the house 
of Dame Fournier, then empty, mounted the common stair- 
case 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 casement, and then put 
the body on the floor near to it. All these proceedings occu- 
pied about a quarter of an hour; and during this time, Hen- 
riette 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 V’ said the latter, advancing on 
the corridor. “I come to seek my child.” Li 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 mo- 
ther 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 premeditated de- 
sign, and the perfidy of her caresses, which had persuaded the 
unhappy mother to entrust to her the child. It was found im- 
possible to excite in her the slightest emotion of remorse or 
grief: to all that was said, she replied with indifference, “ I 
intended 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 decided as to the non-existence of such disease. 
Henriette was taken to the Salpetriere. There she was MENTAL ALIENATION. 
609 
repeatedly inspected by the physicians, whose last report con- 
cludes, that from February 25, to June 3, they “ had disco- 
vered merely a dejection of mind, slowness in the manifesta- 
tion of thought, and profound grief: secondly, that the phe- 
nomena 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 reverie, and had occasionally at- 
tempted suicide, it would seem that her present state is not 
the result of existing circumstances, since it has lasted a year 
before the commission of the act, in which case the opinion 
as to her sanity would be materially altered.” 
On the trial, M. Esquirol and several other physicians were 
examined. Their opinions leaned generally towards the pre- 
sence of real derangement. The Advocate-General treated 
the existence 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 perpe- 
tual imprisonment with hard labour, and to be branded. She 
heard the sentence without betraying the least emotion. 
It is a remark of Esquirol, that occasionally moral and phy- 
sical 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 fa- 
tal propensities are excited by the description of criminal ac- 
tions. 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 distin- 
guishing characters of this form of insanity, deduced from his 
own observations and those of Esquirol. 
“ 1. Acts of homicide perpetrated, or attempted, by insane 
persons, have generally been preceded by other striking pecu- 610 
MENTAL ALIENATION. 
liarities 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 
instances, 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 chil- 
dren—a mother 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 
perpetration; or he remains stupefied and overcome by a hor- 
rible consciousness 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 com- 
mission—motives of self-interest, of revenge, displaying wick- 
edness premeditated. Premeditated are, in some instances, 
the acts of the madman; but his premeditation is peculiar and 
characteristic.”* 
Under this head of moral insanity, besides the impulse to 
murder, there is also included a propensity to break and de- 
stroy whatever comes within reach of the individual; “ in 
short, an irresistible impulse to commit injury, or do mischief 
of all kinds.” And this is observed in cases in which it is im- 
possible to discover any motive influencing the mind of the 
person who is the subject of it. “ No illusive belief, for ex- 
ample, 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 im- 
pressed on the understanding of the self-destroyer, but a per- 
version of the strongest instinct of nature—self-preservation.” 
Again, the propensity of setting fire to houses or public build- 
* Prichard, ut antea. 
t Ibid. MENTAL ALIENATION. 
611 
ings, is ranked by Dr. Prichard under this head.* To these 
Orfila adds monomaniacal robbery; although he allows, that in 
this case, it is rather more difficult to show the want of mo- 
tive.! 
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 
dobut not many others, are among the supporters of the doc- 
trine. 
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 ca- 
ses are only the evidences of depraved passions, and while 
they allow that some are correctly styled maniacal, and there- 
fore 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 mo- 
nomaniacs of the present day. Nero and Tiberius, Robes- 
pierre and Collot D’Herbois, (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 
* Jonathan Martin, who set fire to York Minster, and in consequence destroyed that 
splendid and venerable relict of antiquity, does not belong to this class. He was un- 
doubtedly a monomaniac, and stated that he was inspired by a dream to do it, so that 
people would go to other places to hear the gospel. See Medico-Chirurgical Review, 
vol. 15, p. 222; and Shelford on the Law of Lunatics, p. 458. 
t Legons, 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 invariably 
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 physical ap- 
pearance. The only remarkable circumstances were his denial of having written any 
letters— though he had probably sent hundreds— and his deeming himself the object 
of persecution. They conclude by considering him subject to intermittent madness. 
f Regnault, Du Degre de Competence de Medecins, and Nouvelles Reflexions 
sur la Monomanie, Sfc. 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 
Liberte Morale. 612 
MENTAL ALIENATION. 
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 him to crime, it is urged, that even criminal murderers 
do not all destroy for money. In many of the instances of 
supposed insanity, early debauchery, with a profound igno- 
rance of the obligations due to God and man, marks the cha- 
racter. 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 
ancient time, 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 ex- 
tensively and permanently encouraged. Above all, they ob- 
ject to the act itself being deemed the material proof of the 
presence of insanity. Because one person murders another 
without any assignable motive, is the criminal by consequence 
to be considered a maniac I 
The authors whom I have quoted on the other side, adduce 
a multitude of facts in favour of their position. They pre- 
sent the narratives of the respective cases—the termination 
of many of them in raging mania or dementia, and the re- 
markable 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, ob- 
serves, that there are instinctive impulses, which deprive a man 
of liberty, but not of conscience. The criminal has con- 
science, liberty, will. The monomaniac, conscience without 
liberty. Thus some will withdraw themselves, when they 
feel the disposition for committing injury. If this reasoning 
be correct, can such a person be held responsible for his ac- 
tions, even if he knows what he is doing? 
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 
delirium. It has brought to the scaffold many deplorable vie- MENTAL ALIENATION. 
613 
tinis, who merited compassion rather than punishment. Un- 
fortunately, I perceive no other means of ascertaining this 
wretched state, in which an instinct, at the same time destruc- 
tive and irresistible, hurries on its victim to the commission of 
crimes the most abhorrent to nature, except a confinement in- 
definitely 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 agitation will be perceived, 
with flushings of the face, eyes sparkling, and perhaps, also, 
as in cases of propensity to suicide, the most highly wrought 
state of hypochondriac excitement. Women are in general 
more subject to this species of mania than men, especially at 
the periods of menstruation, (and particularly when in a mor- 
bid state,) or during gestation. These different situations, 
then, require great consideration. Moreover, the moral cir- 
cumstances which precede or accompany crimes, generally show 
whether they are the result of criminal intentions or derange- 
ment of intellect; that is to say, that in a real criminal, there 
is always 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 recognized. 
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 exhibited. On the 23d of June, 1833, 
he accompanied Mrs. Cochran 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 
* Marc ut antea, vol. 2, p. 68. 614 
MENTAL ALIENATION. 
he dragged the body about two rods from the scene of vio- 
lence, where it was concealed in brushwood. Very soon af- 
terwards, the husband ascertained from Prescott himself, on 
asking where his wife was, what he had 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 wray 
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 pas- 
ture together, from thence down into the brook field; that when 
about to return home he made her a proposal, which she in- 
dignantly repelled-—calling him a rascal, &c., and said she 
would tell her husband, and he would be punished. The pri- 
soner 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 in- 
sanity 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 testimo- 
ny I particularly recommend,) gave the result of their exten- 
sive experience on the subject of hereditary insanity, illustra- 
ting its great frequency, and the predisposition to its occur- 
rence that thus existed. Dr. Wyman has been sixteen years 
physician of the McLean Asylum for the insane in Charles- MENTAL ALIENATION. 
615 
town, (Massachusetts) and I was hence struck with one of his 
answers. “ Insanity is sometimes manifested by a sudden dis- 
position 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 wit- 
nesses. Hereditary insanity may manifest itself, he observed, 
without any known cause. It is often suddden and intermit- 
tent, and is sometimes accompanied by an irresistible disposi- 
tion to commit violence. 
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 Novem- 
ber, 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 in- 
duced 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 carried him to a pond and thrust him in, 
took off his clothes, tied his hands, and then whipped him se- 
verely 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 early infancy, had received 
a dangerous 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 cor- 
roborated. Dr. Mighels of Portland, however, deposed that 
that there was an unusual 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 
* I am indebted for all the facta in this case, to the Boston Medical and Surgical 
Journal, vol. 11, p. 361. 616 
MENTAL ALIENATION. 
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 if I turn- 
ed my back. Punishment influenced his conduct. I do not 
consider 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. 
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 reference to the revolting subject of his crime; 
and lastly, by his present appearance, his past history, and 
peculiar physical conformation.”* 
* Report of the Trial of Major Crawford, 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 mono- 
mania, infanticidal monomania, Ape. And this is probably in deference to Esqui- 
rol, w’ho, in his Note sur la monotnanie-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 appre- 
ciable alteration of the intellect or affections; they are impelled by a blind instinct— 
an idea which forces them to acts of violence. Now the first class is undoubtedly 
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, however, we proceed 
to analyze the cases, some difficulty w'ill be experienced in classifying them. I con- 
tent myself with indicating such as are worthy of examination. 
Many are contained in the three pamphlets of Georget—Examen Medico-legale, 
Discussion Medico-le gale, and Nouvelle Discussion Medico-le gale; Esquirol and Mi- 
chu on Monomanie-Homicide. (See Catalogue of Books consulted.) 
Orfila’s Leeons, vol. 2, p. 52 to 66. 2d edition. 
Annales D’Hygiene, vol. 1, p. 126. Three cases at Charenton, selected by Esquirol. 
—Vol. 2, p. 392. A murderer of his wife, examined by Esquirol and Ferrus.—Vol. 
3, p. 418. Case by Professor Grossi of Munich, of 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 monomania.— Vol. 11, p. 
242; vol. 12, p. 127. 
Ibid. vol. 12, p. 94. Arson by an uneducated girl, who was passionate, and deemed 
a fool.— Vol. 13, p. 220. Case of Nonnet, a raving madman. 
Trial of Sir Alexander G. Kinloch, for the murder of his brother, at Edinburgh, in 
1795, in State Trials; and Gordon Smith en Medical Evidence, p. 334. MENTAL ALIENATION. 
617 
IV. Of inferior degrees of diseased mind. 
There are several forms of disease, which either in a par- 
tial or temporary manner, bear a strong resemblance to in- 
sanity. The diagnostic appearances of such deserve a brief 
notice, accompanied with a consideration of the question, how 
far the mental 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, 
distinguished by its antecedent or accompanying disease—the 
sensibility 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 
accompanying 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 predominant idea. 
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 
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. 
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 Cor 
nier, Schmitt a parricide, Tristel and several others.— Vol. 13, p.244. Homicidal 
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 ease by Dr. Hawkins of London. 
New-York Medical & Physical Journal, vol. 3, p. 250. Case of Kirby, who drowned 
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 not seen her, gave it as their opinion, 
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 previous, 
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, stab- 
bed 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. 618 
MENTAL ALIENATION. 
The shortness of its term, its evident connexion and depen- 
dence as a symptom, on an obvious bodily disease, and the al- 
most total abolition of the mental faculties, are decided diag- 
nostics.* 
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 es- 
timated 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 temporary 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 si- 
militude 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 undertakings, and a cast of sadness and timidity gene- 
rally marks the countenance. As to all future events, says 
Cullen in his graphic 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 persons are particularly attentive to the 
state of their own health—to every the smallest change of feeling 
in their hodies.,, He also remarks, that hypochondriasis is al- 
ways accompanied with dyspeptic symptoms, and in elucida- 
tion of the diagnosis between it and melancholy, presents the 
following observations: “ When an anxious fear and despon- 
dency 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 symp- 
* Georget De La Folie, p. 237. MENTAL ALIENATION. 
619 
toms, every one will readily allow this to be a disease widely 
different from both dyspepsia and hypochondriasis.” “As an 
exquisitely melancholic temperament may induce a torpor and 
slowness in the action of the stomach, so it generally produces 
some dyspeptic symptoms; and from thence there may be 
some difficulty in distinguishing such a case from hypochon- 
driasis. But I would maintain, however, that when the cha- 
racters of the temperament are strongly marked, and more 
particularly when the false imagination turns upon other sub- 
jects than that of health, or when, though relative to the per- 
son’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 hypochondriasis.”* 
Fodere mentions the following circumstances, as distinctive 
of these diseases. The habit of body—the illusion, as illus- 
trated 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 destructive of his courage—while that of the hypo- 
chondriac renders him credulous, variable and timid. He is 
in every respect selfish, while the melancholic, although la- 
bouring under the pressure of his disease, often retains noble 
sentiments.f 
The hypochondriac, says Andral, becomes conscious of va 
rious 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 fu- 
rious 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 ima- 
ginary.” 
It rarely, he adds, does mischief to let the insane know you 
* Cullen, quoted by Smith, p. 423, 424. 
t Fodere, vol. 1, 232. 
t Lancet, N. S. vol. 11. p. 550. 620 
MENTAL ALIENATION. 
are fully apprised of the nature of their malady. But beware 
of giving a hypochondriac reason to think his mind is deran- 
ged; it is the surest way to make it so.* 
Hypochondriacs often talk of, and sometimes attempt sui- 
cide, but rarely have courage enough to complete it.f They 
are generally 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 degenerate into insanity, and indeed are sometimes its 
first degree.! 
Hallucination. “ An idea reproduced by the memory, asso- 
ciated and embodied by the imagination.Ӥ 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. || 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 fa- 
miliar 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 John- 
son, 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 Carthagenians, 
fight in his imagination.”!! If this had become permanent 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 
* Burrows’ Commentaries, p. 480. 
t Parkman. 
t “ When a hypochondriac fancies his legs are made of glass, or his head is larger 
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 delusions, 
though its nervous fears are sometimes as gratuitous and ill founded. 
§ Parkman. 
|[ The narrative by Nicolai himself, is given in Haslam’s Medical Jurisprudence of 
Insanity, p. 303. 
IT Collinson on Lunacy, vol. 1, p. 34. MENTAL ALIENATION. 
621 
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, indeed, expressly recognizes 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 in- 
sanity. “ Of all the modifications of mental derangement, 
there is none so terrible as that complicated with epilepsy. 
Maniacal epilepsy is usually characterized by the most fero- 
cious, malign and murderous paroxysms, and often it is as in- 
stantaneous as it is violent. The effects are sometimes di- 
rected against themselves, oftener against others, and not un- 
frequently 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 circumstan- 
ces 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 perceived a great alteration in his conduct and de- 
meanour. 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 dejected, 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. 
* On the subject of apparitions, or spectral illusions, see Hibbert, Alderson and Fer- 
riar’s Essays. Bostock’s Physiology, v. 3, p. 91,161. Edinburgh Journal of Science, 
vol. 2. 
t Ridgway v. Darwin, 8 Vesey’s Reports, p. 87. 
t Burrows, p. 155. 622 
MENTAL ALIENATION. 
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 power of distinguishing right from wrong, 
or whether he was under the influence of any illusion, with 
respect to the prosecutor. A verdict of guilty was returned.* 
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 des- 
pair, from being separated from one’s native country. I have 
already noticed its leading characteristics,! and will only add, 
that suicide is sometimes a consequence. Individuals labour- 
ing under it seldom, if ever, commit violence on others. 
Intoxication. Delirium Tremens. It is a well known and sa- 
lutary maxim of our laws, that crimes committed under the 
influence of intoxication, do not excuse the perpetrator from 
punishment. The temporary alienation has been voluntarily 
induced, and the individual is the more inexcusable, if by pre- 
vious experience he has learnt, that his angry passions are in- 
flamed through its means. 
In Ridgway v. Darwin, Lord Eldon cites a case, where a 
commission 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 pro- 
perty-! 
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 cer- 
tain cases, when the person considers himself aggrieved, it 
* Starkie on Evidence, vol. 3, p. 1704. 
f Page 26. 
1 Collinson on Lunacy, vol. 1, p. 71. Dr. Drake, sometime 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 testimeny have full weight ? Without questioning his com- 
petency, should not his capability be called in question ? (Western Journal of Medical 
and Physical Sciences, vol. 1, p. 81.) 623 
MENTAL ALIENATION. 
may be investigated by six freeholders, whether he is actual- 
ly what he is described to be, and their declaration is prima 
facie evidence of the fact.* 
The Scotch Law is thus explained by Mr. Alison. Drun- 
kenness 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 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 fa- 
tal to his intellect, to a degree unusual in other men, or which 
could not have been anticipated, it seems inhuman to visit him 
with the extreme punishment 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. ”f 
We have, until now, been only noticing the actual state of 
intoxication, and the disabilities consequent thereon. It is to 
be recollected, that long continued habits are apt to produce 
actual insanity, and that drunkenness, is in fact one of its com- 
mon causes. The conduct of individuals of this description 
should therefore be particularly noticed during the intervals 
of temperance, if any such exist. If spirituous liquors exer- 
cise such an influence as to render us doubtful concerning the 
state of mind at this time, we may reasonably infer that the 
alienation is becoming permanent. 
There is, however, in addition to all this, a well marked and 
distinct disease, induced from the intemperate use of spiritu- 
ous liquors, or certain other diffusible stimuli, but which has 
only attracted attention within the present century. It is 
* Act, passed March 16,1821. There are other provisions in this act, (which, how- 
ever, it is not necessary to quote here,) relating to the local powers of overseers in 
such cases. (Revised Statutes, 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.) 
t 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. 624 
MENTAL ALIENATION. 
styled delirium tremens, or mania c potu, and has some pecu- 
liar and striking characters. Among these I may enumerate 
tremors of the hands, a weak and compressible pulse, cold and 
clammy extremities, and frequently long continued sleepless- 
ness. The mind is incessantly agitated on some one or other 
subject, often fanciful, and as the hallucination increases, ap- 
paritions, or unreal animals, are often seen by the sufferer, or 
persons are supposed to be present, 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 attempt 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.* There are, however, exceptions; 
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 assertion) 
states, that a medical friend of his nearly lost his life by the 
violence of a person labouring under delirium tremens.f 
One circumstance connected with the history of this disease 
I have omitted until now, for the purpose of placing it singly 
before the reader, and thus pointing out a most important di- 
agnostic. It is, that although the habitual and excessive in- 
dulgence in strong liquors or other diffusible stimuli, is the 
predisposing cause, yet the privation of them is the exciting 
one. Individuals are seldom, if ever, seized until after several 
hours or sometimes 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 
dividing the spinal column in the neck. 
* In the above sketch I have only stated the leading features of the disease. For 
more extended information, I refer to the writings of Armstrong, Sutton, Carter, 
Coates, Cross, &c. 
t Cyclopedia of Practical Medicine, art. Delirium Tremens. MENTAL ALIENATION. 
625 
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 tremens, which generally lasted several days, and 
went off spontaneously. In these paroxysms, all its physical 
and moral symptoms 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 con- 
cealed 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 persons. He was also very watch- 
ful. The prevailing maniacal delusion was, that his wife was 
in combination with his neighbours (one his son by his first 
wife) against his life. He had charged her during his parox- 
ysms, with criminal intimacy with these, and had threatened 
to kill her. 
On Sunday he was intoxicated ; Monday, Tuesday and 
Wednesday presented nothing special. On Wednesday eve- 
ning 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, apparently in terror and agitation; manfested jea- 
lousy of his wife; barred the doors, and fancied that the per- 
sons of whom he was 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 yield- 
ed, and took a scythe and attempted to strike her. She de- 
fended 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 be- 626 
MENTAL ALIENATION. 
lieve him deranged. He evinced no dread of punishment, but 
was still in great apprehension of those who, he had believed, 
intended to kill him. After being committed, he became re- 
gular, and expressed sorrow for what he had done. 
On the trial, three medical witnesses agreed that he la- 
boured under mania e potu, when he committed the homicide. 
For the defence, it was urged that when drunkenness gives 
rise to insanity, 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 accountable 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 com- 
mon insanity. That of Birdsall, was jealousy and apprehen- 
sion of his wife. The court and jury seemed to hold that 
he was not deranged in the degree that destroyed his percep- 
tion 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 hallucination. In all his ma- 
niacal attacks, he entertained jealousy of his wife, and the 
idea that she was in a conspiracy against him. Here were 
assumed and unreal premises; deductions true to the principles 
of logic, hut false in point of fact; and lastly, acts consistent 
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. MENTAL ALIENATION. 
627 
As to the remaining part of the opinion of the court, viz. 
that the prisoner was aware that mania a potu followed his 
intoxication, and therefore he could not be excused from his 
voluntary state of insanity, Dr. Drake remarks, that the dis- 
ease equally arises sometimes from opium, and even from li- 
quors 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 prepense. 
From these considerations, Dr. Drake is disposed to doubt 
the justice of the sentence of McDonough, for the murder of 
his wife.* 
In consequence of a petition from many of the inhabitants 
of the State, who became convinced of his insanity, the pu- 
nishment of Birdsall was commuted by the Governor to that 
of imprisonment. 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 execu- 
tion, 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. 
* 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, before 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 suggested by Dr. 
Drake, when he asks whether, if McDonough had killed his wife in one of his ordi- 
nary 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. 628 
MENTAL ALIENATION. 
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 probabi- 
lity, that the low diet, darkness and solitude of his prison, may 
have reproduced and fixed the state of insanity, and which was 
continued 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 
murder of his second mate, Clark, while on the high seas. It 
appeared 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 drank 
to excess. In August, 1827, they spoke a vessel, from which 
Capt. Drew obtained a keg of liquor. He drank until he be- 
came stupified; but when he recovered, he ordered the keg 
and its contents to be thrown overboard. There was now no 
more liquor on board of the ship. 
In two or three days, Capt. Drew discovered signs of de- 
rangement. He could not sleep; had no appetite; thought 
the crew had conspired to kill him; wras 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 mor- 
ning, he, with Clark 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 re- 
quested him to go on deck. “ When I have done my break- 
fast, sir,” was the answer. Drew said, “ Go upon deck, or 
# Western Journal of the Medical and Physical Sciences, vol. 3, p. 44, 215, 598. MENTAL ALIENATION. 
629 
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 recovered, and he was told of the murder, 
he replied that he knew nothing of it — all that he was con- 
scious of, was, that when he awoke, he found himself hand- 
cuffed. 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 unquestiona- 
bly 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 homicide committed by the party, while so insane, 
but not at the time intoxicated, or under the influence of li- 
quor. 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 committed by a party, while 
in a fit of intoxication, the law not permitting 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 drunk- 
enness. However criminal in a moral point of view such an 
indulgence is, and however justly a party may be responsible 
for his acts arising from it, to Almighty God, human tribunals 
are generally 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 ne- 
glect or fault of the party, as from religious melancholy, undue 
exposure, extravagant pride, ambition, &c. Yet such insanity 630 
MENTAL ALIENATION. 
has always been deemed a sufficient excuse for any crime 
done under its influence.”* 
That this subject has not escaped the observation of Euro- 
pean 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 reprehensible 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 re- 
ferred to. 
“ Thomas Harty, the prisoner, was addicted to drinking 
spirituous 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 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 
* 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 tremens, 
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. 
f Orfila’s Legons, 2d edit. vol. 2, p. 127. Henke would also seem to have advanced a 
similar opinion. “ JEnomania (amenta vinolenta,) from the abuse of brandy.” “El de 
lg liqueur appelee Grog.” Bulletin Des Sciences Med. vol. 14, p. 184. 
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 can- 
not be questioned, and may render judicial proceedings more secure. It is, that deli- 
rium tremens is a disease, that from its striking peculiarities, cannot be feigned. MENTAL ALIENATION. 
631 
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 
intelligent individuals who conversed with him, did not con- 
sider 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. 
u 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 
endeavoured to infer from that evidence, in connexion with 
his equivocal 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 win- 
ter. Is it not an authorized presumption that he was insane 
when he committed the act V1 
On the part of the people, Mr. Buel met this argument by 
distinguishing between paroxysms of delirium tremens and a 
permanent 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 
perfect 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 patient 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.* 
* In the former edition, (vol. 1, p. 370,) I made the following remark: “ ft 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 
experience, that I cannot avoid quoting them “ In my experience, juries in this coun- 632 
MENTAL ALIENATION. 
The proofs of the presence of either, should never be merely 
presumptive. 
Old age. The following, according to Dr. Prichard, are 
among the striking features which attend the dementia of old 
age. Recent 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 recognizes 
persons with whom he has been long acquainted. There is 
therefore an incapacity for attention and for receiving present 
impressions, but certainly nothing 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 lu- 
natic,) and his want of understanding were such, as to render 
him incapable of managing his affairs. The Chancellor award- 
ed a commission in the nature of a writ of lunacy, to inquire 
whether the facts were accordant to the above statement, and 
he also directed 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 in- 
try, in capital cases, are not apt to convict under the influence of excitement produ- 
ced 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, in- 
sure acquittal.” 
* Prichard, art, Insanity, in Cyclopedia of Practical Medicine, vol, 2, p. 872. 
f Collinson on Lunacy, vol. 1, p. 66. MENTAL ALIENATION. 
633 
capable of managing his affairs. A committee of the estate 
was accordingly appointed.* 
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 un- 
acquainted with the individual, and the result is a restraint 
and watchfulness on the part of the aged, which naturally in- 
duces an appearance of perfect correctness of deportment. 
A slight suspicion excited by sordid domestics, or other inte- 
rested persons, may prevent an exhibition of the actual en- 
feebled state of mind, and more decidedly give them up to the 
plots by which property is so frequently alienated from the 
legal heirs. These circumstances should therefore be remem- 
bered in all commissions, and a free and unrestrained inter- 
course be deemed a most essential means in forming a proper 
opinion.f But on the other hand, no language is too strong 
to characterize 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 numer- 
ous 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 investi- 
gation of eccentricities and imperfections may lead to oppres- 
sion and injustice.;}: 
* Johnson’s Chancery Reports, vol. 2, p. 232. In the matter of James Barker. See 
also Vesey's Reports, vol. 12, p. 446, ex parte Cranmer. But the greatness of a tes- 
tator’s age is not alone a proof of his incapacity to make a will, for a man of one hun- 
dred years of age may yet be very competent. (Calls’ Virginia Reports, vol. 4. p. 423. 
Also Darling v. Bennet, Massachusetts Reports, vol. 8, p. 129. Johnson’s Chance- 
ry Reports, vol. 5, p. 158. Van Alst v. Hunter.) 
t 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 inti- 
mating 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.) 634 
MENTAL ALIENATION. 
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 testa- 
ments, or at least so far as relates to the formal part of their 
execution, they might often use this knowledge with advan- 
tage to families, upon sudden emergencies.* Having such au- 
thority, it will not, I trust, be deemed presumptuous, if I pre- 
face 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 con- 
sidered in previous ones. 
It must be noticed, in the first; place, that the law makes an 
important distinction between the disposition of real and of 
personal 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 
disposition of a person’s property. The law concerning these 
has of late years been 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 pre- 
sent, 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 af- 
ter six months from the speaking of the pretended testamen- 
tary words, no testimony shall be received to prove any nun- 
* Blackstone’s Commentaries, vol. 1, p. 13. MENTAL ALIENATION. 
635 
cupative will, except the said testimony or the substance 
thereof, was committed to writing within six days after the 
making of the said will, and also, that no letters testamenta- 
ry 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 contest the same, if they please.* 
A nuncupative will has also been decided to be not good, 
unless it be made when the testator is in extremis, or overta- 
ken 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 away. The following is the exist- 
ing 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.J 
Secondly, a will or bequest of personal property. The 
hand-writing of the person bequeathing was formerly suffi- 
cient to pass property so given, but witnesses are now re- 
quired, as with testaments. 
Lastly. Testaments by virtue of which real property is de- 
vised, 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 
* Revised Laws, vol. 1, p. 367. 
t Johnson’s Reports, vol. 20, p. 205. Prince v. Hazleton. In this case, the suppos- 
ed nuncupative will was made several days before the death of the testator, and al- 
though ill of a liver complaint, it does not appear that he had any idea that his disso- 
lution was so near. 
t Revised Statutes, vol. 2, p. 60. 
In Pennsylvania, where the English law is in force, the question, as to what con- 
stitutes a valid nuncupative will, lately came up under the following circumstances. 
The testatrix, Priscilla Yarnall, had been afflicted with pulmonary consumption for 
six months before her death. She seems to have been conscious of the danger of her 
situation, hut 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, because 
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.) 636 
MENTAL ALIENATION. 
two witnesses at least. This provision applies equally to wills 
of real or personal 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 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 physi- 
cian is often required. 
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.f In- 
fants, 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.:}: 
“Madmen, or otherwise non-compotes, idiots, or natural 
fools, persons grown childish by reason of old age or distem- 
per, such as have their senses besotted by drunkenness—all 
these, are incapable by reason of mental disability, to make 
any will, so long as such disability lasts. Ӥ 
Among the diseases which incapacitate an individual from 
making a valid will, or at least render his rationality doubtful, 
* 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 waiting and 
signed as above, except in extremis. (American Quarterly Review7, vol. 13, p. 44.) 
f As in the following case, whish was decided by the House of Lords in February. 
1775, on an appeal from the Court of Chancery. An estate was bequeathed to Tho- 
mas 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 sixteen 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. (Dods- 
ley’s Annual Register, 1775. Petersdorft’s Abridgement, vol. 10, p. 536.) 
t Revised Statutes, vol. 2, p. 63. 
§ Blackstone, vol. 2, p. 497. MENTAL ALIENATION. 
637 
may be enumerated the following: lethargic and comatose af- 
fections, whether arising from some internal affection, or from 
external injury. These suspend the action of the intellectual 
faculties; so also does an attack of apoplexy, and even, if pa- 
tients 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 accompanied with delirium, also impair the mind. Finally, 
in typhoid fevers, the low state which usually 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 property made by him are of course valid. Of these, none 
is more striking, than the clearness of intellect which some- 
times 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 embar- 
rass medical witnesses. I have arranged them under the re- 
spective diseases that were the subject of inquiry. 
Apoplexy. In Cook v. Goude and Bennet, the testator had 
made a will after an attack of apoplexy, from which he re- 
covered. He subsequently attended to business of every de- 
scription and travelled to various places. Death followed in 
three years after the first attack, from a second apoplectic fit. 
The testimony varied, and it was asserted by some that he had 
been frequently dull and lethargic, but Sir John Nicholl de- 
cided in favour of the will, because (along with other circum- 
stances,) incapacity was not proved.! 
In Waters v. Howlett, Sir John Nicholl remarked, that the 
* Fodere, vol. 1, p. 261. 
f Haggard’s Ecclesiastical Reports, vol. 1, p. 577. 638 
MENTAL ALIENATION. 
allegation pled an attack of apoplexy in June, 1826; that the 
will was executed in November, 1826; and that there was a 
subsequent attack of the disease in 1828, with consequent im- 
becility. 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 apo- 
plectic 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 observes,) persons who accidentally 
visit the deceased, are usually brought to depose; but their evi- 
dence almost universally turns out to be of no weight against 
acts of capacity at other times, particularly if there is no ap- 
pearance 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, deposed 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 sufficiently capable of making and 
executing it.”f 
Dr. Hastings was required professionally to visit, on the 6th 
of June, 1820, a rich farmer in the county of Hereford, Eng- 
land, 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 
* 3 Haggard’s Ecclesiastical Reports, p. 790. 
f Lee’s Ecclesiastical Reports, vol. 2, p. 229. Bittleston by her guardian, v. Clark. MENTAL ALIENATION. 
639 
trembling of his hands. He, however, answered all the ques- 
tions put to him with propriety, and did not exhibit any im- 
becility of mind. He peformed 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 
apoplexy, and such indeed was the result. After many fruit- 
less attempts to break up the habit of intoxication, he sunk 
into a state of mental imbecility, and died of apoplexy in Ja- 
nuary, 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 its validity wras 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 testimony, 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 
Chancellor 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 con- 
tinued until his death. He was confined to his bed during 
these four years, although able to ride out a few times, being 
* Midland Medical and Surgical Reporter, vol. 1, p. 410. Dr. Hastings mentions 
two other eases, 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 
“ relapsed 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. 640 
MENTAL ALIENATION. 
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 up- 
wards 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 incon- 
testible 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 were formerly acquainted with him; and those 
who did so, vary in opinion; but in 1826, it would seem that 
his memory was good respecting long past events. This, how- 
ever, 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, however, of executing the 
will, he could not make himself understood 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.* 
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 co- 
dicil, materially 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, there being no 
satisfactory proof of a change in his affections, and the evi- 
dence of volition and capacity being at least as strong in sup- 
port of the third as of the second codicil.f 
* Paige’s Chancery Reports, vol. 1, p. 171. See also Scribner v. Crane, ibid. vol. 
2, p. 147. 
t King and Thwaits v. Farley. Haggard’s Ecclesiastical Reports, vol. 1, p. 502. 
See also Marsh v. Tyrrel, 2 Haggard’s Ecclesiastical Reports, p. 84. Dr. Burrows 
was called in on the day of making the last 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 it. MENTAL ALIENATION. 
641 
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 it, by an- 
swering “ 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 vi- 
vant of apoplectic make, was, at the age of 64, attacked with 
hemiplegia 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 circum- 
stances, dictate and understand a will written for him two 
months previous to death! It was replied, that although all 
the above are signs of cerebral lesion, yet they do not neces- 
sarily suppose a loss of intellect. Reason may be present, al- 
though not so perfect. The number of witnesses required in 
France to attest a legal signature to a will, is also urged as a 
proof that so many persons could not have been mistaken as 
to the state of mind.f 
General weakness and debility. The will of a married wo- 
man, obtained when she was in an extremely weak state, nine 
days before death, by the active agency of her husband, the 
sole executor 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 weak- 
ness, and took laudanum largely during her illness.} 
Old age, implying mental imbecility. Kinleside v. Harrison. 
* Lee's Ecclesiastical Reports, vol. 1, p. 130. Martin v. Wotton. 
t 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 Haggard’s Ecclesiastical Reports, vol. 2, p. 169. Mynn v. Robinson. In Scotland 
there is a peculiar law to protect dying persons from importunity. No settlement or 
gift, executed after the commencement of the disease of which the person dies, except 
those in the ordinary administration of the estate, are valid, and this even if the gran- 
tor be not confined to his bed. If he survives sixty days after, it is good. (Bell’s Dic- 
tionary of the Law of Scotland, Art. Death Bed ) 642 
MENTAL ALIENATION. 
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 managed his own concerns. Thus he drew 
drafts, all of which were accurate and conformable to the va- 
riations required in them. His memory failed him occasionally 
and he was deaf, yet he was able to play whist well until a 
few 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.* 
In Brydges v. King. Mrs. Brygdes had made a will while 
in a state of health, material parts of which were altered by a 
codicil, 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 
visceral, and from lying 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 atten- 
dants, was executed. The regular physicisn 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 bu- 
siness. It was also in evidence, that her relatives and solicitor 
were excluded, under various pretences, from seeing her. The 
codicil was declared invalid by Sir John Nicholl.f 
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 
faculties are found failing in different persons. “ For example, 
the memory is sometimes perfect where higher powers of the 
* 2 Phillimore, p. 449. 
t Haggard’s Ecclesiastical Reports, p. 256. MENTAL ALIENATION. 
643 
understanding are greatly defective.” In an individual of im- 
becile 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 improvement 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 
wrill acquire many ideas, will recollect facts and circumstances 
and places and hacknied quotations from books, will conduct 
himself orderly and mannerly, will make a few rational re- 
marks on familiar and trite subjects, may retain self-dominion, 
may spend his own little income in providing for his wants, 
as a boy spends his pocket money, and yet may labour under 
great infirmity of mind, and be very liable to fraud and impo- 
sition.” 
“ The principal marks and features of imbecility are the 
same which belong to childhood, of course, (as already ob- 
served,) varying in degree in different individuals; frivolous 
pursuits, fondness for, and stress upon trifles, inertness of 
mind, paucity of ideas, shyness, timidity, submission to con- 
trol, acquiescence under influence and the like. Hence these 
infantine qualities have acquired 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 de- 
gree, it becomes necessary, especially in a case exposed to 
other adverse ‘presumptions,’ to ascertain 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.”* 
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 
witnesses of it were confirmed in their opinion as to capacity, 
volition and free agency by the adverse witnesses, and by the 
deceased’s affections and declarations. Will pronounced for.f 
A testatrix was old and greatly debilitated by the disease 
under which she laboured when she made her will and codicil, 
* Haggard’s Ecclesiastical Reports, vol. 1, p. 384. 
t Ibid, vol. 2, p. 142. 644 
MENTAL ALIENATION. 
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 condi- 
tion; 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 interrogatories propounded to 
her.” Some indeed thought, that she could not be excited for 
a time sufficient to make a will; others entertained a different 
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 - subscribing wit- 
nesses were also decided as to her competency at the time of 
executing the will. The court therefore adjudged in favour 
of the will.* 
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 
extend to his immediate family. The Roman law,” he re- 
marks, “ seemed to apply the incapacity only to an extreme 
failure of memory—as for a man to forget his own name, 
fatuus prcesumitur qui in proprio nomine err at. 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.”! 
* Littel’s Kentucky Reports, vol. 1, p. 252. Watts v. Bullock, 
f Johnson’s Chancery Reports, vol. 5, p. 161. Van Alst v. Hunter. In Turner v. 
Turner, (Littel’s Kentucky Reports, vol. I, p. 101,) the Court make a remark which 
is probably correct; and if so, deserves attention. “ There is less presumption of in- 
sanity at the time when a will was executed, where the testator is show'n to have been 
previously afflicted with the mental debility attending old age, than there is where 
the mental malady is ordinary lunacy.” MENTAL ALIENATION. 
645 
Drunkenness. The testator was proved to have been not 
properly a madman, but an habitual drunkard; who, under 
the excitement 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 
consequently not insane at the time of making his will; and 
he therefore established the will.* 
Delirium. In Evans v. Knight, where the condition of the 
testator was inquired into, eight years after his death, it was 
endeavoured to be shown that he had been labouring under a 
delirium caused by a fatal attack of peripneumonia. This at- 
tack 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 only 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 instructions 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 in- 
structions, the commission of suicide three days after will not 
invalidate the paper, by raising an inference of previous de- 
rangement.” Here the testator conversed sensibly and col- 
lectedly, and appeared perfectly rational when giving the in- 
structions.:): 
The existence of a lucid interval. The case of White v. 
Driver, related to the validity of the will of Mrs. Manning, 
who was proved to have been insane for several years, but 
the disorder was not uniform; nor did it always attack her 
with an equal degree of violence. She was at large during 
* Ayrey v. Hill, 2 Addaras, p. 206. See also Dodge v. Meech, (where the will 
was invalidated,) 1 Haggard’s Ecclesiastical Reports, p. 612. 
t 1 Addams, p. 229. See also Lemann v. Bonsall, ibid. p. 333. 
+ Burrows v. Burrows, 1 Haggard’s Ecclesiastical Reports, p. 109. 646 
MENTAL ALIENATION. 
the greater part of her life, and under her own government. 
From the testimony of the clergyman, the solicitor, the two 
apothecaries, and the nurse, “with all their suspicions awaken- 
ed, and their vigilant observations called forth,” it appeared 
that she was sane and rational during the transaction; and in- 
deed 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 esta- 
blish the act 1 Because, suppose you are able to show the par- 
ty 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 deceased, by herself writing the will 
now before the court, had plainly shown that she had a full 
and complete capacity to understand 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.! 
Monomania—Hatred against relatives. One of the most 
difficult questions for decision, is where the charge of insani- 
ty rests on some obstinate and long continued feelings of ha- 
tred or malice 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 in- 
sane, took up the idea that his brother had administered poison 
to him, and this became the prominent feature of his insanity. 
* 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. (Hag- 
gard’s Ecclesiastical Reports, vol. 2, p. 433.) MENTAL ALIENATION. 
647 
In a few months, however, he recovered, and returned to his 
profession, (that of a barrister) but could never divest him- 
self of the delusion that his brother had attempted to poison 
him, and under its influence he 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 elaborate and able opinions, and I cannot omit recom- 
mending its attentive 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 invest- 
ed by nature with a singular depravity, was the victim of vice 
and evil, &c., and he continued in this opinion and made simi- 
lar 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 unna- 
tural feeling merely, can avail in proof of the allegation; she 
can only prove it bv making out a case of antipathy, clearly 
resolvable into mental perversion, and plainly evincing that 
the deceased was insane as to her, notwithstanding his gene- 
ral sanity.” 
His decision on the will occupies many pages. He enquires 
what is the true criterion or test of the presence of insanity, 
and in answer, deems it comprisable in a single term, viz. de- 
lusion—a delusion out of which the patient is incapable of be- 
ing permanently reasoned. The term partial insanity is per- 
fectly consonant with the law of England—a man is not mad 
on all subjects. 
In addition to the circumstances mentioned above, as to the 648 
MENTAL ALIENATION. 
delusion of Mr. Stott against his child, it was proved by many 
witnesses, that even in early age, the burden of his conversa- 
tion 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 dress. He stript 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 daugh- 
ter, 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 produce 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 dif- 
ferent 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 tem- 
porary external restraints.” 
It appeared in testimony, that Stott had required his daugh- 
ter 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 
blasphemy while reading the bible, and his extraordinary 
prayers. 
He was a medical electrician, and conceived himself en- 
dowed with 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 pro- 
posed to a neighboring baker, to try the experiment on his 
wife. MENTAL ALIENATION. 
649 
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 con- 
sequence of being taken very ill, and two of his servants at 
the same time, with vomiting and purging, he believed that 
an attempt had been made to poison him. On the advice of 
his solicitor and physician, who then thought that he had ra- 
tional 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 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 era- 
sure or alteration, regularly attested by two clergymen, who, 
although aware of his opinion respecting poisoning, unhesita- 
tingly swore to their belief of his perfect mind. The solici- 
tor and physician gave similar testimony. His property was 
all bequeathed to Queen’s College, in trust for the poor of the 
parish where he resided, and it appeared on the trial that he 
had 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 testator wras 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, recognized his will, held rational conversation, and 
did church duty. A monomoniac, to affect such an instrument, 
under such circumstances, should be clear in point of existence 
and decided in character, beyond all doubt. That the de- 
* Dew v. Clark, in 1 Addams, p. 279, 2 Addams, p. 102, 3 Addams, p. 79. 650 
MENTAL ALIENATION. 
ceased thought and believed that an attempt had been made 
to poison him, seemed to be a fact established; but was it 
proved that his opinion in that respect was a mere morbid in- 
sane delusion, rendering him intestable ? The question was 
not, whether the attempt to poison was really made, but 
whether he had grounds for suspecting it1? 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 twen- 
ty-four years previous to his death he had been seized with a 
dangerous fever, from which he, unexpectedly to all, recover- 
ed. Some years afterwards, he indulged in habits of intoxi- 
cation, and these continued to the period of his dissolution. 
When not under the influence of liquor, he was feeble and in- 
active ; and it was precisely in this situation that he executed 
his will, evincing intelligence sufficient, in the opinion both of 
his physician and the attesting witnesses. The court there- 
fore observed, that they would have no hesitation in admit- 
ting 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 
mistress, and who possessed considerable influence over him. 
During his severe illness, many years previous, he was com- 
pletely deranged, 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 attend- 
ed him constantly in his illness. This antipathy continued, 
with a single exception, when he made a will in their favour, 
(afterwards cancelled) until his death. When enquired of by 
one of the witnesses, why he disinherited his brothers, he be- 
came violently irritated, and declared that they had endea- 
voured to get his estate before his death. “He cannot, there- 
fore,” said the court, in their opinion, “ be accounted a free 
* Haggard’s Ecclesiastical Reports, vol. 3, p. 527.. Shelford, p. 301. MENTAL ALIENATION. 
651 
agent in making his will, so far as his relatives are concern- 
ed, although free as to the rest of the world. But however 
free he may have been as to other objects, the conclusion is 
irresistible, that this peculiar defect of intellect did influence 
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 subjects he spoke rationally. All which are strong evi- 
dences of a derangement in one department of his mind, un- 
accountable indeed, 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 wri- 
ting) for a re-hearing, in which the objections to the doctrine 
of partial insanity are considered. It is well worthy of peru- 
sal, 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.^ 
Esquirol relates the following case as occurring in France. 
A respectable individual, 44 years old, of large property, and 
holding a very lucrative office, became exceedingly discon- 
tented with the division of some property made by his parents 
during their lifetime. He was suspicious of all, but particu- 
larly of his brothers and sisters. This soon extended to his 
domestics, whom he believed in a plot against him. He sup- 
posed himself surrounded by assassins, and went constantly 
armed. An anonymous letter completed his distracted state. 
In this condition he made his will, in which he stated his ap- 
prehension of being murdered 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 
* Littel’s Kentucky Reports, vol. 1, p. 371. Johnson v. Moore’s heirs. 652 
MENTAL ALIENATION. 
room a letter was found, saying that in consequence of disr 
covering new plots, he had resolved to destroy himself. Es- 
quirol was consulted on the validity of the will. This change 
had gone on for three years, and was literally a panophobia— 
a fear of every body — although, on other subjects, he had 
appeared rational. He did not doubt the insanity of the tes- 
tator.* 
As to the mode of proving whether an individual is compe- 
tent 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 incapacity, lies on the party who alleges his insanity. 
But if a mental derangement has been proved, it is then in- 
cumbent on the devisee 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 subsequent to the will, and a dozen servants of the 
testator, all unanimously swore him to be utterly incapable of 
making a will, or transacting any other business, at the time 
of making the supposed will and codicil, or at any intermediate 
time. To encounter this evidence, the counsel for the plain- 
tiff' examined several of the nobility and principal gentry of 
the county of Worcester, who frequently and familiarly con- 
versed 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 strong- 
ly 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 subse- 
* 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 influence 
of this passion was annulled. (Causes Celebres, par Mejan, vol. 13, p. 427.) 
f Johnson's Reports, vol. >5, p. 144. Jackson ex detn. 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.) MENTAL ALIENATION. 
653 
quently 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 niust 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, may 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 
A person born deaf and dumb, is competent as a witness, 
provided he evinces sufficient understanding. This was de- 
cided 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 acknow- 
ledged that these signs and motions were not significant of 
* 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. 
f “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.) 
The Code of Justinian appears to have considered the deaf and dumb as incapable 
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.) 654 
MENTAL ALIENATION. 
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 perjury. 
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 utterly 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 ad- 
missibility 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 transpor- 
tation for seven years.* 
In Scotland the deaf and dumb may be witnesses, if of suf- 
ficient 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 exami- 
nation of her teachers.f 
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 conducted by question and answer.j; 
* Phillip’s Law of Evidence, p. 14. Leach’s cases in Crown Law, p. 455. 
f Alison’s Practice of Criminal Law of Scotland, p. 436. 
X Code D’lnstruction Criminelle, art. 333. MENTAL ALIENATION. 
655 
The deaf and dumb are also allowed to obtain possession of 
their real estate, if they show sufficient understanding. A fe- 
male 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 sensi- 
ble answers thereto in writing, the same was ordered.* 
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 ge- 
neral 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, ex- 
plained his purport to him, making signs with his fingers. Af- 
ter which, the court ordered the trial to proceed, as on a plea 
of not guilty.f 
A very curious case came before the court of justiciary in 
Scotland, on the 1st of July, 1807. The prisoner, Jean Camp- 
bell, alias Bruce, was charged with murdering her child, by 
throwing it over the old bridge of 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 con- 
duct her defence. 
Mr. Drummond, counsel for the crown, now gave in a mi- 
nute, stating that he was satisfied of the prisoner’s being deaf 
* 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. 
f 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 w ith a person born deaf and dumb. (American Quar. Review, vol. 10, p. 46.) 656 
MENTAL ALIENATION. 
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 himself, 
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 ob- 
served 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 Institu- 
tion, deposed, that he had seen the prisoner once in the jail 
at Glasgow, and repeatedly in the jail of Edinburgh; that he 
has had communication with her by means of sighs; in gene- 
ral he understood her, but in particular instances he did not; 
that she, by her signs, communicated to him the circumstan 
ces which took place relative to her child; that the death of 
her child was altogether accidental, and that when it happen- 
ed, she was intoxicated; that she communicated to him, that 
upon that occasion the child was upon her back, covered with 
her petticoat and duffle cloak: and as he understood 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 wfflile 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, 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 MENTAL ALIENATION. 
657 
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 initial letters of her name, 
but inverts them, C. J.; and when she does so, points to her- 
self, which leads him to think she understands them: that she 
makes two or three other letters, but is not sure if they de- 
note 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 she was not mar- 
ried, as the children were to different individuals: that as far 
as the Communications could take place betwixt him and the 
prisoner, she is a woman of strong powers of mind: that no- 
thing 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 trea- 
sures of knowledge in proper time: that he conceives that the 
prisoner must be possessed of the power of conscience in a 
certain degree, and that she seems a woman of strong natural 
affection towards her children, as he was informed by persons 
at Glasgow; and which she manifested by the indignant de- 
nial of the charges of having wilfully 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 bereaving her 
child of life. That in his communications with the prisoner, 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 ge- 
neral. That she communicated to the witness her indignation 
at the fathers of her children for the way they had used her, and 
one of whom she has sometimes represented as her husband. 
That sometimes he could not understand whether she under- 
stood 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 658 
MENTAL, ALIENATION. 
she made signs that that had been taken away by the man she 
called her husband; that is to say, that the mari'iage 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 wras to be brought at Glasgow before a court of justice, 
and that he was confirmed in this from his having a conver- 
sation 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 interrogated 
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 would put it, by asking her by 
signs, whether she threw her child over the bridge or not 'l 
he thinks she could plead not guilty by signs, as she has al- 
ways communicated to him, and this is the only way in which 
he can so put the question to her; but he has no idea, abstract- 
edly 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 wdiat was 
his name; neither could she communicate by natural signs any 
particular place, unless he had been at that place with her be- 
fore, or had some mark for it; and that she could not commu- 
nicate 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 wa- 
ter 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, unless to prevent him from crying out. 
Here the court expressed a wish to see Mr. Ivinniburgh put MENTAL ALIENATION. 
659 
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 at- 
tention, and the assistance the court had derived from his pro- 
fessional skill. 
Dr. William Farquharson stated, that he twice visited the 
prisoner 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 feign- 
ing 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. Kinniburgh; and the witness made that obser- 
vation to Mr. Kinniburgh himself: that he had communica- 
tions 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 acci- 
dent, 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 received no education whatever. 
John Wood, esquire, auditor of excise, [who is deaf and 
partially dumb,] gave in a written statement upon oath, men- 
tioning 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 punishment 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 in- 
formation the counsel on each side could procure and furnish. 
The court then ordered informations on each side to be pre- 
pared and printed. 660 
MENTAL ALIENATION. 
At a susequent 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 infancy; had had no instruction whatever; was unable to 
give information 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, which he considered, in point of law, to be no 
pleading whatever. 
“ Lords Justice Clerk, Gillies, Pitmilly and Reston, were of 
a different 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 ar- 
raigned 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 wilfully stood mute, or from the visitation 
of God; they returned a verdict, 4 from the visitation of God;* 
and it having appeared that the prisoner had been in the use 
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 panel 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 observed 
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 
followed as a natural consequence, that the unhappy woman 
would be confined for life; whereas if she was bronght 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 opi- 
nion of the judges, from Smith’s Forensic Medicine, p. 430. MENTAL ALIENATION. 
661 
There are several points connected with the subject of 
mental alienation, which properly belong to Medical Police. 
Of this nature are the general causes, and the possibility of 
their removal; the treatment the insane should receive, and 
the care that the government should bestow on their safe- 
keeping.* 
“ 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. 
McNiel, the counsel for the prisoner, then rose, and stated that he could not allow 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 sivipliciter. Thus, though it is esta- 
blished that a deaf mute is doli cap ax, no means have yet been discovered of bringing 
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 and 
obligations as she could possibly have, yet their testimony went for nothing unless 
confirmed by an oath; and as it was obvious that she could not give an oath, her tes- 
timony must go for nothing.” Dunlop. 
* There have been some recent trials of deaf and dumb persons for robbery, in 
Paris. They appear to have been uneducated, and were acquitted. (Causes Celebres 
du xix siecle, vol. 4, p. 193.) One of the cases is noticed in the American Jurist, 
vol. 3, p. 158.